ASSET PURCHASE AGREEMENT
BY AND AMONG
COASTAL TURBINES, INC.,
▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
AND
OMNI ENERGY SERVICES CORP.
APRIL 17, 1998
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "AGREEMENT"), dated as of April
17, 1998, is entered into by and among COASTAL TURBINES, INC., a Louisiana
corporation ("SELLER"), ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, the sole
shareholders of Seller (collectively, the "SHAREHOLDERS" and individually,
a "SHAREHOLDER), and OMNI ENERGY SERVICES CORP., a Louisiana corporation
("PURCHASER").
W I T N E S S E T H:
WHEREAS, the Shareholders own 100% of the Seller's issued and
outstanding common stock;
WHEREAS, Seller owns a turbine repair, service and overhaul business
(the "BUSINESS");
WHEREAS, Seller, in connection with the Business, owns the assets,
properties and other rights described in Section 1.01 below (collectively,
the "ASSETS"); and
WHEREAS, Seller desires to sell and Purchaser desires to buy all of
the Assets upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants set forth herein, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I
PURCHASE AND SALE
SECTION 1.11834. SALE AND PURCHASE OF THE ASSETS. Upon the terms and
subject to the conditions set forth in this Agreement, at the Closing (as
defined in Section 2.01 hereof) Seller shall convey, sell, transfer and
deliver to Purchaser and Purchaser shall purchase, acquire and accept from
Seller, all of the following Assets for the consideration specified below,
excluding those Assets, and rights specified in Section 1.02:
(1) FIXED ASSETS. All helicopters, machinery, equipment, spare
parts, furniture, and other movable assets of the Business, listed on
SCHEDULE 1.01(A) (collectively, the "FIXED ASSETS");
(2) INVENTORY. All usable inventory of the Business listed on
SCHEDULE 1.01(B) (the "INVENTORY");
(3) LICENSES AND PERMITS. All licenses, permits, consents, use
agreements, approvals, authorizations and certificates of any regulatory,
administrative or other governmental agency or body to the extent they
relate exclusively to the Business or the ownership, use or operation of
the Assets, in each case to the extent transferable by Seller including
without limitation the FAA 145 repair station certificate;
(4) TRADEMARKS, TRADE NAMES AND SIMILAR RIGHTS. All right, title and
interest of Seller in and to the name "Coastal Turbines, Inc." together
with the goodwill of the Business associated with such trade name, and all
of Seller's other intellectual property relating exclusively to the
Business or the ownership, use or operation of the Assets, including,
without limitation, trade secrets, trademarks and trade names, trademark
and trade name registrations, service marks and service ▇▇▇▇ registrations,
copyrights, copyright registrations, the applications therefor and all
rights of Seller as licensee under licenses to the extent transferable,
relating to such intellectual property, together with all of the goodwill
appurtenant thereto (all such intellectual property being hereinafter
referred to collectively as the "PROPRIETARY RIGHTS");
(5) SUPPLIES. All operating supplies, fuel, packaging supplies,
maintenance, warehouse and office supplies, tools, maintenance equipment
and all similar property owned by Seller;
SECTION 2.5. EXCLUDED ASSETS. Notwithstanding the provisions of
Section 1.01 hereof, the Assets do not include the following (the "EXCLUDED
ASSETS"):
(1) ACCOUNTS RECEIVABLE. All accounts receivable of the Business
(including intracompany liabilities or obligations owed to the Business by
Seller), together with any unpaid interest accrued thereon and any security
or collateral therefor, and all sums due for service performed or products
provided by Seller prior to the Closing Date (as defined in Section 2.01),
including, if any, unbilled receivables as of the Closing Date;
(2) INSURANCE. All insurance policies and rights thereunder,
including rights to any cancellation value on the Closing Date; and
(3) OPEN WORK ORDERS. All engine repair, service and/or engine
overhaul work orders entered into by Seller before the Closing Date ("OPEN
WORK ORDERS"), to the extent listed on SCHEDULE 1.02(B) and all rights and
obligations arising thereunder;
(4) CASH. Any and all cash on hand including deposits, accounts and
cash equivalents, on the Closing Date.
SECTION 3.4. ASSUMED LIABILITIES. Except as otherwise provided in
this Agreement, subject to and in accordance with the terms and provisions
of this Agreement, at the Closing Purchaser will assume, perform and
discharge only the following liabilities (collectively, the "ASSUMED
LIABILITIES"):
(1) TAXES. Other than the obligations of Seller, as landlord, for
the tax liabilities set forth in the Lease attached as EXHIBIT A hereto,
any and all taxes which may be applicable to the ownership, use or
operation of the Assets or the Business related thereto with respect to
periods beginning with the Closing, or arising from events or occurrences
on or after the Closing, including without limitation, income, AD VALOREM,
personal property, sales, value added, goods and services, or use taxes
resulting from Purchaser's ownership of the Assets.
SECTION 4.1. EXCLUDED LIABILITIES. Purchaser shall not assume and
shall not be responsible for any liabilities, obligations or commitments of
the Seller other than the Assumed Liabilities. In addition, to the extent
that after the Closing, the Purchaser incurs a liability, or is otherwise
responsible for personal injury or property damage, fines, penalties,
remediation costs or other damages, including any liability or
responsibility under any Environmental Laws (as defined in Section 3.15
hereof), then to the extent such liability is based upon a condition or
defect of the Assets that existed on or before the Closing Date or related
to actions taken by the Seller in (i) operating the Business or (ii) in the
ownership, use or operation of the Assets, in each case prior to the
Closing Date, such liability shall constitute an Excluded Liability.
SECTION 5.1 CONSIDERATION; PURCHASE PRICE. Upon the terms and
subject to the conditions contained in this Agreement, in consideration of
and payment for the Assets, Purchaser shall pay to Seller (i) ONE MILLION
ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($1,100,000) and (ii) 4,546 Shares
of OMNI Energy Services Corp. common stock (the "STOCK") (collectively, the
"PURCHASE PRICE"). The Purchase Price shall be payable to Seller as
follows: Purchaser shall pay to Seller, in cash at the Closing, ONE
MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($1,100,000.00) (the "CASH
PAYMENT"), and Purchaser shall issue to Seller at the Closing a stock
certificate(s) representing the Stock (the "STOCK CERTIFICATES").
SECTION 6.1 EMPLOYMENT AND NON-COMPETITION AGREEMENT. At the
Closing, Purchaser shall enter into an Employment and Non-Competition
Agreement with ▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "EMPLOYMENT AGREEMENT"), as set forth on
EXHIBIT B attached hereto and made a part hereof.
ARTICLE II
THE CLOSING
SECTION 1.11834. TIME AND PLACE. Upon the terms and subject to the
conditions set forth in this Agreement, the closing of the purchase and
sale of the Assets and the assumption of the Assumed Liabilities (the
"CLOSING") will take place at 10:00 a.m. on the date hereof at the offices
of Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, located at ▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, (the "CLOSING
DATE").
SECTION 2.11834. SELLER'S DELIVERIES. At the Closing, Seller will
deliver to Purchaser the following, in form and substance reasonably
satisfactory to Purchaser and its counsel:
(1) A ▇▇▇▇ of Sale and General Assignment in the form attached hereto
as EXHIBIT C transferring and assigning to Purchaser all of Seller's right,
title and interest in all Assets; and
assigning to Purchaser (together with any necessary consents) and other
intangible rights included within the Assets to the extent assignable (to
the extent non-assignable, it is understood and agreed that Purchaser shall
receive the economic benefits thereto, to the extent reasonably
practicable);
(2) Full and complete possession of the Assets as provided herein;
(3) To the extent transferable, originals of all certificates, use
agreements, permits, licenses and governmental, administrative and
regulatory approvals and authorizations that are in Seller's possession and
that are necessary to own and operate the Assets in compliance with all
applicable federal, state and municipal laws;
(4) At the Closing, Seller shall enter into a lease agreement,
pursuant to which Seller shall lease to Purchaser Seller's facility,
located at ▇▇▇ ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, for a term to commence on
the Effective Date and otherwise on the terms and in the form of EXHIBIT A
attached hereto and made a part hereof.
(5) Copies of any consents that are referenced in Section 3.04
hereof;
(6) All original titles and registrations with the Federal Aviation
Administration relating to any of the Assets described on SCHEDULE 1.01(A)
including without limitation any of the helicopters, helicopter engines or
related spare parts listed on such schedule;
(7) The UCC-3 termination statements listed on EXHIBIT D, executed by
Bank of Sunset & Trust Co. and Bank One, respectively;
(8) Such other documents and instruments reasonably necessary to
effect the transactions contemplated hereby, including the conveyance of
title to the Assets to Purchaser.
SECTION 3.8. PURCHASER'S DELIVERIES. At the Closing, Purchaser will
deliver to Seller the following, in form and substance reasonably
satisfactory to Seller and its counsel:
(1) The Cash Payment, by wire transfer to an account specified in
writing by Seller to Purchaser prior to the Closing;
(2) The Stock Certificates to be delivered and issued by Purchaser to
Seller at the Closing.
(3) A ▇▇▇▇ of Sale and General Assignment in the form attached hereto
as EXHIBIT C pursuant to which Purchaser shall assume the Assumed
Liabilities;
(4) Such other documents and instruments as shall be reasonably
necessary to effect the transactions contemplated hereby.
SECTION 4.4. OTHER DELIVERIES. ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇ and Purchaser
shall each execute and deliver the Employment Agreement contemplated by
Section 1.07.
SECTION 5.4. TITLE, POSSESSION AND RISK OF LOSS. Title, possession
and risk of loss or destruction or damage to the Assets shall pass to
Purchaser at and upon Closing. Purchaser shall take all steps and actions
as may be required to take actual possession, operation and control and
responsibility for the Assets on the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller and each of the Shareholders hereby represent and warrant to
Purchaser that:
SECTION 1.11834. CORPORATE EXISTENCE. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Louisiana. Seller has all requisite corporate power to carry on
the Business, as it is now being conducted, and to own and operate the
Assets, and is duly qualified to transact business and is in good standing
in each jurisdiction where the ownership of the Assets or the conduct of
the Business requires such qualification and the failure to be so qualified
would have a material adverse effect on the Business.
SECTION 2.11834. CORPORATE POWER AND AUTHORITY. Seller has the
requisite corporate power and authority to enter into this Agreement and
consummate the transactions contemplated hereby. All corporate action
necessary to authorize the execution, delivery and performance of this
Agreement by Seller has been duly taken and this Agreement has been duly
executed and delivered by Seller. This Agreement is a good, valid and
binding obligation of Seller and each of the Shareholders, enforceable
against Seller and each of the Shareholders in accordance with its terms
(except as limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally).
SECTION 3.11834. NO CONFLICT. The execution and delivery of this
Agreement by Seller and each of the Shareholders, the compliance by Seller
and each of the Shareholders with the terms and conditions hereof and the
consummation by Seller of the transactions contemplated hereby will not (a)
result in or constitute a default, breach, or violation of any of the
terms, conditions or provisions of the Articles of Incorporation or Bylaws
of Seller, (b) violate any provision of, any judicial, administrative or
arbitration order, award, judgment, writ, injunction or decree applicable
to, or any governmental permit or license issued to, Seller or any
Shareholder, or (c) conflict with, result in a breach of, constitute a
default or event of default (whether by notice or the lapse of time or
both) under or accelerate or permit the acceleration of the performance
required by Seller or any Shareholders, under any material indenture,
mortgage, lien, agreement or instrument to which Seller or any Shareholder
is a party or by which Seller or any of the Assets or any shareholder may
be bound.
SECTION 4.11834. CONSENTS. No authorization, consent, approval,
permit or license of or filing with any governmental or public body or
authority, any lender or lessor or any other person or entity is required
to authorize the execution, delivery and performance of this Agreement on
the part of Seller or any Shareholder, other than those which have been
obtained.
SECTION 5.11834. TITLE TO AND CONDITION OF ASSETS.
(1) Seller has good and marketable title to all of the Assets, free
and clear of all pledges, liens, defects, leases, licenses, equities,
conditional sales contracts, charges, claims, encumbrances, security
interests, easements, restrictions, chattel mortgages, mortgages or deeds
of trust (collectively, the "LIENS"). The instruments of conveyance, and
other endorsements and instruments of transfer and assignment contemplated
by this Agreement are sufficient to transfer good and marketable title to
the Assets to Purchaser, free and clear of all Liens. The Assets are in
good and usable condition and repair, ordinary wear and tear excepted.
(2) The items of Inventory sold hereunder have been manufactured,
mixed, packaged and labeled in accordance with all governmental laws and
regulations, whether federal, state or local, including all environmental
laws and regulations. The items of packaging supplies, office, warehouse,
processing, operating and storage supplies, spare parts, fuel, tools,
maintenance equipment and similar property sold to Purchaser hereunder are
suitable for use in the ordinary course of the Business.
(3) Seller has obtained all necessary releases of security interests
from any lenders and creditors of Seller holding a security interest in any
of the Assets.
SECTION 6.3 CONTRACTS. Other than Open Work Orders, there are no
contracts or commitments of Seller and/or Shareholders that are material to
the operation of the Business or the ownership, use or operation of the
Assets (including without limitation, mortgages, indentures, loan
agreements, long-term supply contracts and open contracts).
SECTION 7.3 EMPLOYEE MATTERS. None of the employees of Seller is a
member of or represented by any labor union; Seller nor any of its
employees are subject to any collective bargaining agreement; no petition
for certification or union election is pending with respect to any of
Seller's employees; and, to Seller's knowledge, there are no attempts of
any kind being made to organize any of such employees. Within one year
prior to the Closing Date, Seller had no more than 6 employees at any one
time.
SECTION 8.3 ABSENCE OF CERTAIN CHANGES. Since [December 31, 1997],
Seller has conducted the Business only in the ordinary course and there
has been no material adverse changes in the business, operations or
financial condition of the Seller or to the Assets.
SECTION 9.3. PROPRIETARY RIGHTS. SCHEDULE 3.09 identifies all
patents, inventions, research, trademarks, trade names, copyrights, service
marks, royalty rights or design rights used now or within the last year by
Seller or the Shareholders in the operation of the Business or ownership,
use or operation of the Assets or the performance of the Assumed
Liabilities. Except as set forth on SCHEDULE 3.09, (a) neither Seller nor
the Shareholders are bound by or a party to any options, licenses or
agreements of any kind with respect to patents, trademarks, service marks,
copyrights and pending applications therefor relating to the Business or
the ownership, use or operation of the Assets or the Assumed Liabilities
and (b) there are no claims or suits pending or, to Seller's or the
Shareholder's knowledge, threatened against Seller or the Shareholder
claiming an infringement by Seller or the Shareholders of any patents,
copyrights, licenses, trademarks, service marks or trade names of others in
connection with the Business or the ownership, use or operation of the
Assets or the Assumed Liabilities.
SECTION 10.3. COMPLIANCE WITH LAWS; LICENSES AND PERMITS. Seller
is in compliance, in all material respects, with all applicable laws,
regulations, orders, judgments, ordinances or decrees of any federal, state
or local court or any governmental authority. Neither Seller nor the
Shareholders have received any notices or orders, nor to its knowledge have
any notices or orders been issued, relating to any violation by Seller or
the Shareholders of any law, ordinance, regulation or requirement that
would have a material adverse effect on the Business or the ownership, use
or operation of the Assets or the Assumed Liabilities.
SECTION 11.3. RELATIONSHIP WITH SUPPLIERS AND CUSTOMERS. Seller has
not received notice of any intention to terminate or materially modify any
relationship with its suppliers or customers.
SECTION 12.3. TAXES. All foreign, federal, state, parish and local
tax returns and reports required to be filed by Seller in connection with
the operations of the Business or the ownership, use or operation of the
Assets have been filed within the time period and in the manner prescribed
by law. Seller has no reason to believe that any such returns and reports
filed for the five preceding calendar years do not reflect accurately all
liability for taxes required to be paid in connection with the operations
of the Business or the ownership, use or operation of the Assets for the
periods covered thereby. All taxes and assessments (including interest and
penalties) owed in connection with the operations of the Business or the
ownership, use or operation of the Assets have been paid in full or
appropriate provision for payment has been made through the date hereof,
including all estimated corporate income tax payments due and payable
through the date hereof. Seller currently has no outstanding tax liability
under the law of any jurisdiction that would subject Purchaser or the
Assets to the liability or withholding requirements of such jurisdiction's
law. To the knowledge of Seller there is no pending examination or
proceeding by any authority or agency with respect to the Business or use,
operation or ownership of the Assets relating to the assessment or
collection of any taxes.
SECTION 13.3 CONCERNING JOINT, SEVERAL AND IN SOLIDO LIABILITY OF
SELLER AND THE SHAREHOLDERS.
(a) Seller and each Shareholder is accepting joint, several and in
solido liability hereunder in consideration of the Purchase Price and other
obligations undertaken by Purchaser under this Agreement, for the mutual
benefit, directly and indirectly, of Seller and each Shareholder and in
consideration of the undertakings of each Shareholder to accept joint,
several and in solido liability for the obligations of each of them.
(b) Seller and each Shareholder jointly, severally and solidarily
hereby irrevocably and unconditionally accept, as a co-obligor, joint,
several and solidary liability with the other with respect to the payment
and performance of the all of the obligations arising under this Agreement,
it being the intention of the parties hereto that all the obligations shall
be the joint, several and solidary obligations of each of the Seller and
each Shareholder without preferences or distinction among them.
(c) If and to the extent that Seller or either Shareholder shall fail
to make any payment with respect to any of the obligations hereunder as and
when due or to perform any of such obligations in accordance with the terms
thereof, then in each such event, Seller or either Shareholder will make
such payment with respect to, or perform, such obligation.
(d) The obligations of Seller and each Shareholder under the
provisions of this Section 3.13 constitute full recourse obligations of
such party, enforceable against such party to the full extent of such
party's properties and assets, irrespective of the validity, regularity or
enforceability of this Agreement or any other circumstances whatsoever.
(e) Seller and each Shareholder hereby waive notice of acceptance of
its joint, several and solidary liability, notice of occurrence of any
breach of this Agreement, or of any demand for any payment or performance
under this Agreement, notice of any action at any time taken or omitted by
Purchaser under or in respect of any of the obligations hereunder, any
requirement of diligence and, generally, all demands, notices and other
formalities of every kind in connection with this Agreement. Seller and
each Shareholder hereby assent to, and waives notice of, any extension or
postponement of the time for the payment or performance of any of the
obligations hereunder, the acceptance of any partial payment or
performance thereon, any waiver, consent or other action or acquiescence by
Purchaser at any time or times in respect of any default by Seller and/or
any Shareholder in the performance or satisfaction of any term, covenant,
condition or provision of this Agreement, any and all other indulgences
whatsoever by Purchaser in respect of any of the obligations hereunder.
Without limiting the generality of the foregoing, Seller and each
Shareholder assents to any other action or delay in acting or failure to
act on the part of Purchaser, including, without limitation, any failure
strictly or diligently to assert any right or to pursue any remedy or to
comply fully with applicable laws or regulations thereunder which might,
but for the provisions of this Section 3.13, afford grounds for
terminating, discharging or relieving such party, in whole or in part, from
any of its obligations under this Section 3.13, it being the intention of
Seller and each Shareholder that, so long as any of the obligations
hereunder remain unsatisfied, the obligations of such party under this
Section 3.13 shall not be discharged except by performance and then only to
the extent of such performance. The obligations of Seller and each
Shareholder under this Section 3.13 shall not be diminished or rendered
unenforceable by any winding up, reorganization, arrangement, liquidation,
reconstruction or similar proceeding with respect to any reconstruction or
similar proceeding with respect to Seller or any Shareholder. The joint,
several and solidary liability of the Seller and each Shareholder hereunder
shall continue in full force and effect notwithstanding any absorption,
merger, amalgamation or any other change whatsoever in the name,
membership, constitution or place of formation of Seller or any
Shareholder.
SECTION 14.3 ERISA. Seller has never maintained or become obligated
to contribute to any plan or arrangement as defined in Section 3.3 of
ERISA, that (a) is subject to Title IV of ERISA, (b) is maintained,
administered or contributed to by Seller and (c) covers any employee or
former employee of Seller. Seller has not within the last five years
engaged in, nor is Seller a successor to an entity that has engaged in, a
transaction described in Section 4069 of ERISA.
SECTION 15.3 LEGAL PROCEEDINGS. There are no actions, suits, or
proceedings pending, or threatened investigations, against or affecting
Seller or the Shareholders, or the use, ownership or operation of the
Assets, the Business or the Assumed Liabilities, at law or in equity, by or
before any governmental authority, known to Seller or the Shareholders,
which action, suit, investigation or proceeding, if resolved against Seller
or the Shareholders is reasonably likely to have a material adverse effect
on the use, ownership or operation of the Assets, the Business or the
Assumed Liabilities, including (i) unfair labor practice charges or
complaints alleging violations of the National Labor Relations Act or any
similar state law or regulation, (ii) charges of discrimination before the
Equal Employment Opportunity Commission or any state or local government
agency responsible for the enforcement of state or local anti-
discrimination laws, (iii) claims before the United States Department of
Labor or before any local government agency responsible for the enforcement
of similar state or local laws alleging violations of the Fair Labor
Standards Act or any state or local laws covering such matters, and (iv)
claims before the United States Department of Labor or any other federal
agency or before any state or local government agency responsible for the
enforcement of state or local laws alleging violations of any occupational
safety and health laws, or Environmental Laws (as defined in Section 3.16
hereof) or any state or local law covering such matters. There are no
outstanding unsatisfied judgments, decrees, consent orders or other orders
of any governmental authority against or affecting the use, ownership or
operation of the Assets, the Business, or the Assumed Obligations known to
Seller or the Shareholders. No action or proceeding has been instituted
or, to the best of Seller's and the Shareholders' knowledge, threatened
against Seller or any Shareholder before any governmental authority by any
Person seeking to restrain or prohibit the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby or
thereby.
SECTION 16.3 ENVIRONMENTAL.
(a) "Environmental Laws" means any federal, state, local or foreign
environmental law, ordinance, criterion guideline or regulation, which
include but are not limited to: (i) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601-
9675, as amended by the Superfund Amendments and Reauthorization Act of
1986; (ii) the Federal Insecticide, Fungicide, and Rodenticide Act, as
amended; (iii) the Resource Conservation and Recovery Act, as amended; (iv)
the Toxic Substances Control Act, as amended; (v) the Hazardous Material
Transportation and Uniform Safety Act; (vi) the Clean Air Act, as amended;
(vii) the Federal Water Pollution Control Act, as amended; (viii) the Oil
Pollution Act of 1990, as amended and (ix) the Louisiana Environmental
Quality Act. "Hazardous substances," "hazardous wastes," and "toxic
substances" includes materials defined as "hazardous substances,"
"extremely hazardous substances," "hazardous wastes," "hazardous
constituents," "hazardous materials," "petroleum," "chemical substances,"
"pollutants," "contaminants," "solid waste" or "toxic substances" in the
Environmental Laws.
(b) Seller has (i) obtained all necessary licenses, permits and other
authorizations and approvals required under the Environmental Laws, and
(ii) complied with all Environmental Laws concerning (x) emissions,
discharges, releases or threatened release of toxic or hazardous substances
or wastes into the environment; (y) generation, use, collection, treatment,
storage, transportation, recover, removal, discharge, disposal or handling
of toxic or hazardous substances or wastes; and (z) record-keeping,
maintenance, testing, inspection, notification and reporting requirements
with respect to toxic or hazardous substances or wastes. Seller has not
filed any notice under any Environmental Law indicating past or present on-
site treatment, storage or disposal of toxic or hazardous substances or
wastes or reporting a spill or release of toxic or hazardous substances or
wastes into the environment.
(c) Seller is not, nor has it been, subject to any civil, criminal or
administrative action, suit, demand, claim, hearing, notice or demand
letter, notice of violation, investigation, nor is any such action,
proceeding pending or threatened against Seller pursuant to any
Environmental Law. Seller has no knowledge of, nor has Seller received
notice of, any past, present or future events, conditions, circumstances,
activities, practices, incidents, actions or plans which may interfere with
or prevent compliance or continued compliance with any Environmental Law or
which may give rise to any common law or legal liability or otherwise form
the basis of any claim, action, demand, suit, proceeding, hearing, study or
investigation under any Environmental Law. There are no facts or
circumstances that would form the basis of a claim, citation or allegation
against Seller for a violation of, or alleging liability under, any
Environmental Law.
(d) There are not, and have not been, any underground tanks of any
type (including tanks storing gasoline, diesel fuel, oil or other petroleum
products) or disposal sites for toxic or hazardous substances or wastes
located on or under any of the real property owned or operated by Seller.
(e) Seller has not, nor has any person engaged by Seller, treated,
used, generated or manufactured any hazardous substances or wastes. Seller
has not engaged any person to handle, transport, treat store or dispose of
hazardous substances or wastes on its behalf, and disposal transportation,
treating, storage or handling by the Seller of hazardous substances and
wastes has been in compliance with all Environmental Laws.
SECTION 17.3. DISCLOSURE AND RELIANCE. None of the information,
documents, certificates or instruments furnished by Seller or the
Shareholders to Purchaser or any of its representatives in connection with
this Agreement are false or misleading in any material respect or contain
any material misstatement of fact or omit to state any material facts
required to be stated to make the statements therein not misleading. The
representations and warranties made herein are made by Seller and the
Shareholders with the knowledge and expectation that Purchaser is placing
reliance thereon. To the extent that any portion of the representations or
warranties made herein were made to Seller's or any Shareholder's
knowledge, Seller and the Shareholders represent that they have made due
and reasonable inquiry with respect thereto. Purchaser acknowledges and
affirms that such party has had access to such of the books, records, and
other materials and information regarding the Seller and the Business and
the Assets, deemed necessary by Purchaser to evaluate the merits and risks
of the transactions contemplated by this Agreement and acknowledges that it
has relied solely on the representations, warranties and covenants
contained in this Agreement and the Schedules and its own investigation in
entering into this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PURCHASER
Purchaser represents and warrants to Seller that:
SECTION 1.11834. CORPORATE EXISTENCE. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Louisiana with full corporate power to carry on its business as
now being conducted and to own and operate the Assets now owned and
operated by it, and is duly qualified to transact business and is in good
standing in each jurisdiction where the ownership of its Assets or the
conduct of its business requires such qualification and the failure to be
so qualified would have a material adverse effect on Purchaser.
SECTION 2.11834. CORPORATE POWER AND AUTHORITY. Purchaser has the
requisite corporate power and authority to enter into this Agreement and
consummate the transactions contemplated hereby. All corporate action
necessary to authorize the execution, delivery and performance of this
Agreement by Purchaser has been taken, or, prior to Closing, will have been
taken, and this Agreement has been duly executed and delivered by
Purchaser. This Agreement is a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms
(except as limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally).
SECTION 3.11834. ABSENCE OF BREACH. The execution and delivery of
this Agreement by Purchaser, the compliance by Purchaser with the terms and
conditions hereof and the consummation by Purchaser of the transactions
contemplated hereby will not (a) result in or constitute a default, breach,
or violation of any of the terms, conditions or provisions of the
Certificate of Incorporation or Bylaws of Purchaser, (b) to Purchaser's
knowledge, violate any provision of, any judicial, administrative or
arbitration order, award, judgment, writ, injunction or decree applicable
to, or any governmental permit or license issued to, Purchaser, or (c)
conflict with, result in a breach of, constitute a default or event of
default (whether by notice or the lapse of time or both) under or
accelerate or permit the acceleration of the performance required by, any
material indenture, mortgage, lien, lease, agreement or instrument to which
Purchaser is a party or by which Purchaser may be bound.
SECTION 4.11834. CONSENTS. No authorization, consent, approval,
permit or license of or filing with any governmental or public body or
authority, any lender or lessor or any other person or entity is required
to authorize the execution, delivery and performance of this Agreement on
the part of Purchaser.
ARTICLE V
INDEMNIFICATION
SECTION 1.11834. INDEMNIFICATION BY SELLER. Seller and each of the
Shareholders shall, and hereby agree to, indemnify and hold Purchaser
harmless against and in respect of:
(1) All debts, liabilities and obligations of Seller and/or
Shareholders of any nature, whether accrued, absolute, contingent, or known
or unknown on the date hereof, existing or arising on or resulting from
events which occurred or failed to occur on or before the Closing Date, to
the extent not expressly assumed by Purchaser hereunder;
(2) Any liability, loss, claim, damage or deficiency resulting
directly or indirectly from any misrepresentation, breach of warranty or
nonfulfillment of any agreement on the part of Seller and/or any
Shareholder under this Agreement, or from any misrepresentation in or
omission from any certificate or other instrument furnished or to be
furnished to Purchaser hereunder; and
(3) Any debt, liability, loss, claim, damage or deficiency ("CLAIMS")
of any nature whatsoever (whether stated in contract or in tort) resulting
directly or indirectly from or relating to any of the Open Work Orders
whether arising or resulting from events which occurred before or after the
Closing Date including without limitation any and all such Claims arising
under or related to product liability, breach of warranty, ▇▇▇▇▇▇▇'▇
compensation and Environmental Laws;
(4) All other actions, suits, claims, proceedings, demands,
assessments, adjustments, costs and expenses incident to the foregoing,
including, without limitation, attorneys' fees and other out-of-pocket
expenses.
SECTION 2.4. INDEMNIFICATION BY PURCHASER. From and after the
Closing, Purchaser will indemnify and hold harmless Seller against and in
respect of:
(1) Any and all claims, actions, debts, obligations, damages, losses,
deficiencies, liabilities, costs and expenses incurred or suffered by
Seller that result from, relate to or arise out of:
(1) any and all liabilities and obligations of Seller which have
been expressly assumed by Purchaser pursuant to this Agreement;
(2) any misrepresentation, breach of warranty or nonfulfillment
of any agreement or covenant on the part of Purchaser under this Agreement,
or from any misrepresentation in or omission from any certificate or other
instrument furnished or to be furnished to Seller pursuant hereto; and
(2) All other actions, suits, claims, proceedings, demands,
assessments, adjustments, costs and expenses incident to the foregoing,
including, without limitation, legal fees and other out-of-pocket expenses.
ARTICLE VI
GENERAL PROVISIONS
SECTION 1.2. NOTICES. Any notices, demands, requests or other
communications required or permitted hereunder shall be in writing and
shall be deemed to have been sufficiently given if sent by fax or by
registered or certified mail, postage prepaid, addressed as follows:
TO THE SELLER: Coastal Turbines, Inc.
▇▇▇ ▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Ltd.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TO THE PURCHASER: OMNI Energy Services Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: Jones, Walker, Waechter,
Poitevent, Carrre & ▇▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other addresses as shall be furnished by like notice by such party.
Any such notice or communication given by mail shall be deemed to have been
given two business days after deposit in the U.S. mails, and any such
notice or communications given by fax shall be deemed to have been given
when sent by and the appropriate acknowledgment received.
SECTION 2.2. COST AND EXPENSES. Unless otherwise provided herein,
each party shall pay its own respective costs and expenses (including
without limitation, the fees, disbursements and expenses of its attorneys,
accountants and advisors) in connection with the negotiation, preparation
and execution of this Agreement and the consummation of the transactions
contemplated hereby.
SECTION 3.2. SUCCESSORS AND ASSIGNS. Without the other party's
written consent, this Agreement and the rights and obligations hereunder
may not be assigned by any party hereto. This Agreement shall be binding
upon and shall inure to the benefit of the parties and their respective
successors and permitted assigns.
SECTION 4.2. ENTIRE AGREEMENT; AMENDMENT. This Agreement, including
the schedules and exhibits hereto, constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements with respect thereto. This Agreement may be amended, but
only in a writing signed by an authorized representative of each of the
parties hereto.
SECTION 5.2. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
SECTION 6.2. HEADINGS. The headings of Articles and Sections herein
are inserted for convenience of reference only and shall be ignored in the
construction or interpretation hereof.
SECTION 7.2. GOVERNING LAW. This Agreement and all documents
required hereunder shall be governed by and construed in accordance with
the laws of the State of Louisiana, excluding such laws that direct the
application of the laws of any other jurisdiction.
SECTION 8.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations, warranties and indemnification obligations contained in
this Agreement shall survive the Closing.
SECTION 9.11834. SEVERABILITY. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties
hereby waive any provisions of applicable law that render any provisions
hereof prohibited or unenforceable in any respect, but all the provisions
of this Agreement shall be enforced to the fullest extent permitted under
applicable law.
SECTION 10.11834. TRANSFER TAXES. All stamp, transfer, documentary,
sales, use, registration and other such taxes and fees (including any
penalties and interest incurred in connection with this Agreement and the
transactions contemplated hereby) (collectively, the "TRANSFER TAXES")
shall be paid by Purchaser, and Purchaser shall, at its own expense,
properly file on a timely basis all necessary tax returns and other
documentation with respect to any Transfer Tax.
SECTION 11.11834. ENFORCEMENT. The parties agree that irreparable
damage would occur if any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
court of the United States located in the State of Louisiana or in
Louisiana state court, this being in addition to any other remedy to which
the parties are entitled at law or in equity.
SECTION 12.11834. NO THIRD-PARTY BENEFICIARIES. This Agreement is
not intended to create any rights, benefits or remedies in favor of any
person not a party hereto and shall not be deemed to confer upon any such
person any rights, benefits or remedies.
SECTION 13.11834 RIGHT OF SET-OFF. Purchaser shall have the right to
set-off against any amounts otherwise payable to Seller by Purchaser, under
this Agreement, the Employment and Non-Competition Agreement or otherwise,
any amounts payable by Seller to Purchaser pursuant to the indemnification
provisions herein set forth. Said right of set-off, however, shall not be
exclusive of any other right or remedy Purchaser may have with respect to
indemnification claims, whether by contract, at law or in equity. Further,
the amounts which are otherwise payable to Seller by Purchaser shall not be
deemed to limit Purchaser's right to indemnification under this Agreement,
at law or in equity.
SECTION 14.11834 FURTHER ASSURANCES. Seller, the Shareholders and
Purchaser each agree to execute and deliver such other documents,
certificates, agreements and other writings and to take such other actions
as may be necessary or desirable in order to consummate or implement
expeditiously the transactions contemplated by this Agreement, including,
without limitation, any and all documents necessary to assign to Purchaser,
or in the case of intellectual property to grant Purchaser the right to
use, any of the Assets used by Seller in the operation of the Business or
the ownership, use or operation of the Assets that are not conveyed to
Purchaser at the Closing.
[The remainder of this page is left intentionally blank]
IN WITNESS WHEREOF, this Asset Purchase Agreement has been executed on
behalf of each of the parties hereto as of the day and year first above
written.
PURCHASER:
OMNI ENERGY SERVICES CORP.:
By: /S/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and General Manager
Aviation Division
SELLER:
COASTAL TURBINES, INC.:
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
SHAREHOLDERS:
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
EXHIBIT A
LEASE AGREEMENT
This LEASE AGREEMENT (this "LEASE") is entered into as of the 17th day
of April, 1998 (the "EFFECTIVE DATE"), by and among COASTAL TURBINES, INC.,
a Louisiana corporation ("SELLER"), ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
the sole shareholders of Seller (collectively, the "SHAREHOLDERS" and
individually, a "SHAREHOLDER"), and OMNI ENERGY SERVICES CORP., a Louisiana
corporation ("PURCHASER"), in connection with that certain Asset Purchase
Agreement (the "PURCHASE AGREEMENT") of even date herewith. Capitalized
terms not otherwise defined herein shall have the meaning provided in the
Purchase Agreement.
W I T N E S S E T H:
WHEREAS, as a condition precedent to Purchaser's agreement to enter
into the Purchase Agreement, Seller has agreed to lease to Purchaser the
facility it owns and currently occupies located at ▇▇▇ ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ (the "FACILITY").
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Seller, Shareholders and Purchaser agree as follows:
(1) LEASE. Seller hereby leases to Purchaser all rights of Seller in
and to the Facility on the terms and conditions hereinafter set forth.
(2) TERM. The term of this Lease shall commence on the Effective
Date and shall terminate 90 days after commencement of this Lease (the
"INITIAL TERM"). Purchaser shall have an option to extend the term of
this Lease (the "RENEWAL TERM"), with such Renewal Term to be for 90 days,
commencing upon the expiration of the Initial Term. Purchaser shall renew
the Lease by notifying the Seller in writing prior to the termination of
the Initial Term.
(3) CONSIDERATION. Seller is entering into this Lease in order to
induce Purchaser to enter into the Purchase Agreement. The fulfillment of
Purchaser's obligations under the Purchase Agreement shall constitute all
rental which is due under this Lease's Initial Term. Seller and Purchaser
intend that the only expenses which Purchaser shall incur in connection
with this Lease's Initial Term are the cost of (a) any usual and customary
monthly utility charges necessary for Purchaser's use of the Facility,
including, without limitation, all water, power and sewerage, prorated as
to the Effective Date accordingly, and (b) insuring the Assets Purchaser
acquired pursuant to the Purchase Agreement and located at the Facility
during the duration of this Lease's Initial Term. In addition to the
expenses Purchaser shall incur in connection with the Initial Term, during
the Renewal Term, Purchaser shall pay to Seller rent in the amount of ONE
THOUSAND TWO HUNDRED NINETY-FIVE DOLLARS ($1,295.00) per month. However,
if the Purchaser terminates this Lease during the Renewal Term, under the
terms of this Lease, the rent shall be prorated and Purchaser shall be
reimbursed accordingly.
(4) MAINTENANCE AND REPAIRS. Seller assumes responsibility and
liability for the maintenance and repair of the Facility, and it shall be
the duty of Seller, at its own expense, to keep the Facility and any
structure located thereon in good condition during the term of this Lease,
ordinary wear and tear excepted. If Seller does not perform its required
maintenance and repair obligations within ten (10) days following receipt
of notice from Purchaser specifying the problem to be corrected, Purchaser
may arrange for the necessary maintenance and repair and Seller shall
promptly reimburse Purchaser for the reasonable cost of such maintenance or
repair.
(5) COMPLIANCE WITH LAWS. Purchaser's operations shall comply with
all zoning and nuisance laws. Seller shall be responsible for keeping the
Facility in compliance with all building codes, zoning laws, fire codes,
accessibility laws (including, without limitation, the Americans With
Disabilities Act), and other federal, state, and local laws, ordinances,
regulations, and orders relating to the physical condition of the Facility
and the improvements thereon.
(6) TAXES AND OTHER PUBLIC CHARGES. Seller shall pay, as they become
due and payable and at least 30 days before any fine, penalty, interest, or
cost may accrue thereon, all real estate taxes, assessments, service
charges, special district taxes, and all other levies and charges, which
are assessed or imposed by governmental or other taxing or levying
authority upon the Property or any part thereof, or become payable during
the term of this Lease.
(7) INSURANCE. Seller shall be responsible for maintaining all
insurance on the Facility (other than the movable contents thereof), and
Seller shall maintain such coverages as Seller shall desire in its sole
discretion. If Seller maintains any liability coverage, such coverage
shall name Purchaser as an additional insured. Any property or liability
insurance policies maintained by Seller shall contain a waiver of
subrogation in favor of Purchaser, and, upon Purchaser's request, Seller
shall provide Purchaser with copies of Seller's insurance policies and
appropriate insurance certificates in order to confirm the required waiver
of subrogation. Purchaser shall, however, insure its own movable property
located at the Facility against theft, damage, or destruction with such
property insurance coverage as Purchaser desires in its sole discretion.
Seller shall not be liable for any damage or destruction of Purchaser's
movable property located at the Facility.
(8) ALTERATIONS TO THE PROPERTY. Purchaser shall not alter or improve
the exterior or interior structural components of the Facility. With
Seller's prior written consent, Purchaser may, at Purchaser's sole expense,
alter the interior non-structural components of the building.
(9) COVENANT OF QUIET ENJOYMENT. Seller covenants that, for so long
as Purchaser fulfills its obligations hereunder, Purchaser shall have the
quiet enjoyment of the Facility throughout the term of this Lease.
(10) USE OF THE FACILITY. Purchaser shall use the Facility for any
lawful purpose in connection with the use, ownership or operation of the
Assets.
(11) INDEMNITY. Purchaser shall not be liable for any loss, injury,
death or damage to persons or property which at any time may be suffered or
sustained by any person or entity as a result, in whole or in part, of the
Facility's condition, and Seller shall indemnify Purchaser against, and
hold Purchaser harmless from, all claims, liability, loss or damage
whatsoever on account of any such loss, injury, death or damage. Seller's
indemnification obligation shall not apply to loss, injury, death, or
damage arising by reason of the negligence, gross negligence or willful
misconduct of Purchaser, its agents, or employees. Purchaser shall name
the Shareholders as insured under the Purchaser's comprehensive general
liability policy.
(12) TERMINATION. At any time during the Renewal Term, Purchaser may
terminate this Lease by notifying the Seller in writing five (5) days prior
to such termination date.
(13) SURRENDER OF THE FACILITY. At the expiration of this Lease, or
at its earlier termination for any cause provided in this Lease, Purchaser
shall surrender the Facility to Seller so that Seller can repossess the
Facility no later than noon on the tenth (10th) day following the day upon
which this Lease expires or terminates.
(14) NOTICES. All notices shall be in writing and provided in
accordance with the Purchase Agreement's notices provision.
(15) GOVERNING LAW. This Lease shall be governed by the laws of
Louisiana.
(16) COUNTERPARTS. This Lease may be executed in two counterparts,
each of which shall constitute an original but both of which when taken
together shall constitute one and the same instrument.
(17) SUCCESSORS AND ASSIGNS. This Lease shall be binding upon the
respective successors and assigns of the parties hereto.
(18) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties and indemnification obligations contained in this Lease shall
survive the Closing.
(19) SEVERABILITY. Should any provision of this Lease be held
unenforceable under any now existing or hereafter arising law, ordinance,
regulation, or jurisprudence, the remaining provisions of this Lease shall
remain in full force and effect.
[This page is left intentionally blank]
IN WITNESS WHEREOF, the parties hereunto set their hands as of the
Effective Date.
SELLER:
COASTAL TURBINES, INC.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
SHAREHOLDERS:
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
By:/S/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
PURCHASER:
OMNI ENERGY SERVICES CORP.
By:/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
EXHIBIT B
OMNI ENERGY SERVICES CORP.
AND
▇▇▇▇ ▇. ▇▇▇▇▇▇
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT is made and entered into
as of the 17th day of April, 1998 (this "AGREEMENT") by and between OMNI
ENERGY SERVICES CORP., a Louisiana corporation (as "COMPANY"), and ▇▇▇▇ ▇.
▇▇▇▇▇▇, a resident of the State of Louisiana ("EMPLOYEE").
WHEREAS, the Company has agreed to acquire the assets and assume
certain liabilities of Coastal Turbines, Inc., a Louisiana corporation
("COASTAL"), of which Employee and his wife ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ are the sole
shareholders and Employee is president, (the "PURCHASE AGREEMENT") of even
date herewith. Capitalized terms not otherwise defined herein shall have
the meaning provided in the Purchase Agreement;
WHEREAS, the Company is desirous of obtaining the services of the
Employee upon the terms and conditions contained herein; and
WHEREAS, the Employee is desirous of providing services for the
Company upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT. The Company hereby hires the Employee and the
Employee hereby agrees to be employed upon the terms and conditions
hereinafter set forth.
2. TERM. Subject to the provisions for termination as hereinafter
provided, the term of this Agreement shall be for a period of thirty-six
(36) months from the date hereof.
3. COMPENSATION. For the period beginning on the mutual execution
of this Agreement and expiring on the termination of this Agreement,
Company shall pay Employee Sixty Thousand Dollars ($60,000) per annum.
4. BENEFITS. Effective upon the Closing and for the period of
Employee's employment under the terms of this Agreement, Company shall
provide to Employee (i) fifteen (15) days of annual paid vacation, (ii)
sick leave consistent with the Company's sick leave policy for employee
managers, (iii) enrollment in a health insurance plan consistent with the
Company's policy for providing insurance to employee managers and their
families, and (iv) enrollment in any 401K plan or other retirement benefit
plan as soon as it becomes available to Company employees. Further, the
parties agree that Company shall consider at a later date a mutually agreed
upon bonus incentive plan.
5. DUTIES. Employee shall be employed as General Manager and Chief
Inspector of the Repair Station, and shall assume all of the
responsibilities and perform all of the duties, tasks and other work as
outlined in the Coastal Turbines, Inc. Repair Station Inspection Procedures
Manual, dated January 24, 1994, and as it may from time to time be amended.
6. TERMINATION. This Agreement may be terminated at any time by the
Company, without prior notice, for cause or for breach of any obligation of
Employee to Company. For purposes of this Agreement "cause" shall mean:
(a) personal dishonesty within the course of employment with the
Company which evidences a want of integrity or is a breach
of trust;
(b) persistent failure to abide by reasonable rules and
regulations governing the transaction of business of the
Company as the Company's Board of Directors may from time to
time adopt or approve;
(c) persistent inattention to duties, or the commission of acts
within employment with the Company amounting to gross
negligence or willful misconduct;
(d) misappropriation of funds or property of the Company or
committing any fraud against the Company or against any
other person or entity in the course of employment with the
Company;
(e) misappropriation of any corporate opportunity, or otherwise
obtaining personal profit from any transaction which is
adverse to the interests of the Company or to the benefits
of which the Company is entitled;
(f) the commission of a felony involving moral turpitude; or
(g) any violation of a term of this Agreement.
7. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION. Employee
recognizes, acknowledges and agrees that the names of the Company's
customers and its pricing structure, processes, operations, marketing
programs, sales techniques, designs, specifications and other trade secrets
(collectively, the "PROPRIETARY INFORMATION") are valuable, special and
unique assets of the Company. Employee will not, during or after the term
of Employee's employment, directly or indirectly, utilize for the benefit
of any person, business, enterprise or entity other than Company, or
disclose any portion or part of the Company's Proprietary Information to
any person, firm, corporation, association or other entity for any reason
or purpose whatsoever. Furthermore, it is agreed that all data, lists,
papers, memoranda, documents, and all products of Employee's skill,
resulting from Employee's employment herein, shall be and remain the sole
and exclusive property of the Company, and Employee shall execute any and
all agreements and instruments that may be necessary to evidence the
Company's ownership of such property. In the event of a breach or
threatened breach by the Employee of the provisions of this Section 6, the
Company shall be entitled to an injunction restraining the Employee from
breaching the terms of this Agreement. Nothing herein shall be construed
as prohibiting the Company from pursuing any other remedy available to the
Company for such breach or threatened breach, including the recovery of
damages from the Employee.
8. COVENANT OF NON-COMPETITION. For the period of Employee's
employment and for a period ending two (2) years after termination of
Employee's employment (whether such termination occurs because of a breach
of this Agreement by the Company or by Employee, because of a termination
of this Agreement by Company or Employee or the expiration of the term of
this Agreement or for any reason following the expiration of the term of
this Agreement) the Employee will not, directly or indirectly: (a) within
any parish or municipality in Louisiana as set forth in EXHIBIT B-1 hereto
or, with respect to activity outside of Louisiana, within any jurisdiction
in which customers of the Company are located or reside, solicit, induce or
otherwise contact past, current or prospective customers of the Company for
the purpose of soliciting business from such customers, or any other
purpose whatsoever which is detrimental to the Company or its business; (b)
within any parish or municipality in Louisiana as set forth in EXHIBIT B-1
hereto or, with respect to activity outside of Louisiana, within any
jurisdiction in which Coastal or the Company engages in or has engaged in
business, own, manage, operate, control, be employed by, consult with,
participate in, or be connected in any manner with the ownership,
management, operation or control of any business, enterprise, or entity
(including a sole proprietorship of Employee) which: (i) owns, operates,
participates in, or controls any aspect of the engine overhaul and repair,
aviation, seismic support or geophysical services business, which
businesses include but are not limited to surveying, the provision of
seismic drilling and support services, the transportation of personnel
and/or equipment used in connection with seismic drilling and support
services, and the design and manufacture of such equipment, or (ii) owns,
operates, participates in, or controls any business which competes with the
Company or (c) employ, hire, offer employment to, retain, engage or
otherwise solicit or seek to obtain the services, whether as an employee,
consultant, independent contractor or otherwise, of any employee,
consultant, independent contractor or any other person or enterprise that
performs or has in the past performed services for the Company.
9. REFORMATION/SAVINGS CLAUSE. The parties agree that if either the
length of time or the geographical area of Employee's covenants contained
herein are deemed too restrictive by any court of competent jurisdiction in
any proceeding involving the validity of said covenants, then the court may
reduce the offending restriction to the maximum restriction it deems
reasonable under the circumstances so as to give the maximum permissible
effect to the intentions of the parties as set forth herein, and the court
may enforce such provisions as so reformed.
10. REMEDIES AND EQUITABLE PROVISIONS. The following provisions
shall apply in respect of Employee's covenants and agreements contained in
this Agreement:
(a) Employee acknowledges and agrees that Employee's covenants
contained in this Agreement are reasonable and necessary for the proper
protection of Company and that the Employee's agreements herein not to
compete with the Company shall not hinder Employee in obtaining gainful
employment at the termination of this Agreement in the event Employee shall
desire such employment.
(b) Employee acknowledges and agrees that Company does not have an
adequate remedy at law for the breach or threatened breach of Employee's
covenants contained in this Agreement and Employee therefore agrees that
Company, in addition to any other remedy which may be available to it,
shall be entitled to enforce Employee's covenants by injunction or other
equitable means. Without limiting the generality of the foregoing, the
Company shall be entitled to an injunction restraining the Employee from
owning, managing, operating, controlling, being employed by, participating
in, or being in any way so connected with any activity which is prohibited
in Section 8 and/or the solicitation of any business on his behalf or on
behalf of others from any customer. Nothing herein stated shall be
construed as prohibiting Company from pursuing any other remedies available
to the Company for such breach or threatened breach including the recovery
of damages from the Employee.
(c) The parties agree that if Company should institute litigation
against Employee to enforce any provisions of this Agreement, then the
prevailing party in such litigation shall be entitled to receive, in
addition to any other relief awarded such party, reasonable attorneys' fees
in respect of the prosecution or defense of such litigation.
11. NOTICES. Any notices, demands, requests or other communications
required or permitted hereunder shall be in writing and shall be deemed to
have been sufficiently given if sent by fax or by registered or certified
mail, postage prepaid, addressed as follows:
TO THE SELLER: Coastal Turbines, Inc.
▇▇▇ ▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Ltd.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TO THE PURCHASER: OMNI Energy Services Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: Jones, Walker, Waechter,
Poitevent, Carrre & ▇▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other addresses as shall be furnished by like notice by such party.
Any such notice or communication given by mail shall be deemed to have been
given two business days after deposit in the U.S. mails, and any such
notice or communications given by fax shall be deemed to have been given
when sent by and the appropriate acknowledgment received.
12. WAIVER OF BREACH. The waiver or nonenforcement by the Company of
a breach of any provision of this Agreement by the Employee shall not
operate or be construed as a waiver of any subsequent breach by the
Employee.
13. ASSIGNMENT. Employee acknowledges that the services to be
rendered by him are unique and personal. Accordingly, Employee may not
assign any of his rights or delegate any of his duties or obligations under
this Agreement. The rights and obligations of Company under this Agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of Company.
14. SEVERABILITY. Every provision of this Agreement is entitled to
be severable. The parties agree that if any term or provision hereof is
held to be illegal, invalid, against public policy or unenforceable for any
reason whatsoever, such illegality or invalidity shall not affect the
validity of the remainder to the Agreement, and the remaining provisions of
this Agreement shall not be affected thereby.
15. AMENDMENTS. No alterations, modifications, amendments or changes
herein shall be effective or binding upon the parties unless the same shall
have been agreed in writing by all the parties.
16. SECTION HEADINGS. Section and other headings in this Agreement
are for reference purposes only, and are in no way intended to describe,
interpret, define or limit the scope or extent of any provision hereof.
17. COUNTERPART EXECUTION. This Agreement may be executed by any
number of counterparts with the same effect as if all parties hereto had
signed the same document. All counterparts shall be construed together and
shall constitute one agreement.
18. APPLICABLE LAW. COMPANY AND EMPLOYEE ACKNOWLEDGE AND AGREE THAT
THE LAW OF SEVERAL STATES COULD, CONCEIVABLY, APPLY TO THE TERMS OF THIS
AGREEMENT. IN ORDER TO PROVIDE CERTAINTY WITH RESPECT TO THE CONSTRUCTION,
INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT, IT IS THE INTENTION OF
THE PARTIES THAT THE INTERNAL LAWS OF THE STATE OF LOUISIANA SHALL GOVERN
ONLY THE CONSTRUCTION, INTERPRETATION, VALIDITY AND ENFORCEMENT OF EACH
TERM OF THE AGREEMENT WHICH RELATES TO OBLIGATIONS WHICH ARE INTENDED TO BE
PERFORMED OR RESTRICTIONS UPON THE ACTIVITIES OR CONDUCT OF THE PARTIES
WITHIN THE STATE OF LOUISIANA. THE CONSTRUCTION, INTERPRETATION, VALIDITY
AND ENFORCEMENT OF EACH TERM OF THE AGREEMENT WHICH RELATES TO OBLIGATIONS
TO BE PERFORMED OR RESTRICTIONS UPON THE ACTIVITIES OR CONDUCT OF THE
PARTIES OUTSIDE OF THE STATE OF LOUISIANA SHALL BE GOVERNED BY THE LAW OF
THE STATE IN WHICH SUCH ACTIVITIES OCCUR. THE PARTIES TO THIS AGREEMENT
HAVE AGREED TO THIS BIFURCATED CHOICE OF LAW AFTER CAREFUL CONSIDERATION
AND REFLECTION.
19. RIGHTS CUMULATIVE. The rights of Company hereunder shall be
cumulative and the enforcement by Company of any right shall not affect in
any way the ability of Company to enforce any other right hereunder or any
right or remedy of Company at law or in equity.
20. ENTIRE AGREEMENT. This instrument contains the entire agreement
of the parties and may not be changed orally but only by agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized managers, and the Employee has hereunto set
his hand as of the day and year first above written.
COMPANY:
OMNI ENERGY SERVICES CORP.,
a Louisiana corporation
By: /S/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President and General Manager
Aviation Division
EMPLOYEE:
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
EXHIBIT B-1
LOUISIANA PARISHES IN WHICH COVENANT NOT TO COMPETE APPLIES
Orleans
Jefferson
Plaquemines
St. ▇▇▇▇▇▇▇
Lafourche
Terrebonne
St. ▇▇▇▇▇▇
Assumption
St. ▇▇▇▇▇
Iberville
St. ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Acadia
Cameron
Vermilion
Calcasieu
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
St. ▇▇▇▇▇▇▇
EXHIBIT "C"
▇▇▇▇ OF SALE AND GENERAL ASSIGNMENT
This ▇▇▇▇ OF SALE AND GENERAL ASSIGNMENT (this "▇▇▇▇ OF SALE") is
dated as of the 17th day of April, 1998 (the "CLOSING DATE") by and among
COASTAL TURBINES INC., a Louisiana corporation ("SELLER") and ▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "SHAREHOLDERS") in favor of OMNI ENERGY
SERVICES CORP., a Louisiana corporation ("PURCHASER"). Capitalized terms
not otherwise defined herein shall have the meaning provided in that
certain Asset Purchase Agreement (the "PURCHASE AGREEMENT") by and among
Seller, Purchaser, and Shareholders, of even date herewith.
For and in consideration of the Purchase Price and for other good and
valuable consideration specified in the Purchase Agreement, the receipt and
sufficiency of which is hereby acknowledged, Seller and the Shareholders do
hereby bargain, grant, sell, convey, assign, transfer and deliver unto
Purchaser on the Closing Date all of the Assets including, but not limited
to, the assets listed on Schedules 1.01(a), 1.01(b), and 3.09 and Exhibits
A and B hereto.
TO HAVE AND TO HOLD, such Assets unto Purchaser and its successors and
assigns forever free and clear of any chattel mortgages, security interest,
pledges, restrictions, liens, encumbrances, equities or claims, and Seller
and the Shareholders hereby bind themselves, their respective successors
and assigns, jointly, severally, and solidarily to WARRANT AND FOREVER
DEFEND all and singular the Assets unto Purchaser, its successors and
assigns, against any person whomsoever claiming the same, or any part
thereof.
[This page is left intentionally blank]
IN WITNESS WHEREOF, Seller, Shareholders and Purchaser have executed
this ▇▇▇▇ of Sale effective as of the Closing Date.
SELLER:
COASTAL TURBINES, INC.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
SHAREHOLDERS:
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
PURCHASER:
OMNI ENERGY SERVICES CORP.
By: /S/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President and General
Manager
Aviation Division
EXHIBIT D
UCC-3 TERMINATION STATEMENTS
SCHEDULE 1.01(A)
CTI EQUIPMENT LIST
TCM 3000 lb. Fork Lift
60 Gal. 150PSI Black Max Air Compressor
Ex-Cell - 2 Ton Engine Hoist
Econoline Glass Bead Blast Cabinet
▇▇▇▇▇▇▇▇ - Grade A Surface Plate 24" x 36"
Arbor Press - 12"
Table Vise
Snap-On Parts Washer
20 Ton Hydraulic Press
2ea Red Barn Machine - Engine Work Stands
Enco 10" Rotary Table
1X - 3X Microscope
Micron - Microfiche Reader
5ea Work Tables 4' x 8'
31ea Heavy Duty Parts Racks - Shop & Parts Room
2ea Office Desk with Chairs
1ea Receptionist Desk with Return & Chair
4ea Guest Chairs
Hewlett Packard Plain Paper Fax Machine 200
Xerox Copier Model 5309
Panasonic 412 Key Phone System with 6 Phone Receivers
GE 15 cu. ft. Refrigerator
Brother AX-500 Typewriter
Freightmaster 400 Scale
3ea 2 Drawer File Cabinets
1ea 4 Drawer File Cabinet
▇▇▇▇▇▇▇ 250 Series Tooling C20B - Some C28/C30
Micrometers, Dial Indicator, Depth Mic, etc. - ▇▇▇▇▇▇▇▇
Special Test Fixtures
Shipping/Receiving Desk
Computer Desk
IBM 486 Computer with Lexmark 1000 Color Printer
SCHEDULE 1.01(B)
INVENTORY
PART NO. DESCRIPTION QUANTITY
Overhaul 6871486 Combustion Liner S/N 8-81-350 1
Overhaul 6871486 Combustion Liner S/N SB116 1
Overhaul 6871486 Combustion Liner S/N SA1753 1
Overhaul 6871486 Combustion Liner S/N_______ 1
Overhaul 6871486 Combustion Liner S/N_______ 1
Overhaul 6871486 Combustion Liner S/N_______ 1
Overhaul 6890040 #1 Noz Shield S/N 9-78-102 1
Overhaul 6890040 #1 Noz Shield S/N ▇▇-▇▇-▇▇▇ 1
Overhaul 6890040 #1 Noz Shield S/N 5-84-273 1
Overhaul A6890040 #1 Noz Shield PMA S/N LP94D-03 1
Overhaul 6895826 C30 #1 Noz Shield S/N 3-79-71 1
Overhaul 6895826 C30 #1 Noz Shield S/N 1-81-26 1
Overhaul 6898784 Adapter S/N 67814 1
Overhaul 6898784 Adapter S/N 51555 1
Overhaul 6898730 PT Support S/N DW14879 1
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Support S/N MK35120 1
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Inner Shaft S/N 58532 1
Overhaul 23001903 PT Outer Shaft S/N 55365 1
Overhaul 6851534 Scroll S/N MA24267 1
Overhaul 6851534 Scroll S/N MA11608 1
Overhaul 6870811 Shroud S/N ER22636 1
Overhaul 6870811 Shroud S/N ER32600 1
Overhaul 6892070 Oil Filter Hsg S/N 12773 1
Overhaul 6892070 Oil Filter Hsg S/N 28177 1
SCHEDULE 1.01(B) CONTD.
Overhaul 6853511 Exhaust Collector S/N 16892 1
Overhaul 6879879 Exhaust Collector S/N 26571 1
SPARES
CAE-821691F
C20B Compressor CAC-39711
C20B Gearbox CAC-37383
CAE-822887F
C20B Turbine CAT-33728
CAE-830810
C20B Compressor CAC-33835
C20B Compressor CAC-31623
C20B Turbine CAT-36760
C20B Turbine CAT-22973
C20B Compressor CAC-16149
C20B Compressor CAC-34400
All of these modules are in various stages of repair / overhaul. Complete
log book records for all modules / engines.
SCHEDULE 1.01(B) CONTD.
REPAIRABLES
5ea C20B GEARBOX COVERS
4ea C20B GEARBOX HOUSINGS
1ea C20F GEARBOX HOUSING
9sets ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ C20B COMUSTION LINERS
3ea C20B #2 TURBINE NOZZLES
7ea C20B #4 TURBINE NOZZLES
4ea C20B SUMP COVERS
2ea C20B OUTER COMBUSTION CASES
3ea C20B COMPRESSOR SCROLLS
1ea ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ FUEL PUMPS
5ea FUEL NOZZLES
SERVICEABLE MODULES
C20B Compressor CAC-31942F TSO-3289.2 (Rental)
C20B Compressor CAC-33739 TSO-1075.5 (TSI-0)
C20B Turbine CAT-80069 TSO-1828.1 (Rental)
C20B Turbine CAT-32460F TSO-2760.2 (Rental)
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇ ▇▇▇-▇▇▇▇.▇ (▇▇▇▇▇▇)
C20B Gearbox CAG-32442F TSO-2667.7 (TSI-0)(Rental)
C20B Gearbox CAG-32507F TSO-2848.3 (TSI-0)
C20B Gearbox CAG-37864 TSN-4282.0
SCHEDULE 1.02(C)
OPEN WORK ORDERS
ESTIMATE OF REPAIRS
1. W/O 230 American Aviation CAT-22969 $16,000.00
3&4 wheel retired
2. W/O 233 Horizon Helicopters CAC-38671 $15,000.00
repair for F.O.D.
3. W/O 228 Texas National Helicopters $18,000.00
CAG-37040
repair for metal in oil
4. W/O 236 American Aviation CAT-22606 $10,000.00
Sudden stoppage inspection
5. W/O 238 Horizon Helicopters CAT-31290F $45,000.00
3500 hr. Overhaul
6. W/O 239 American Aviation CAC-39252 $ 2,000.00
Metal in oil
7. W/O 240 American Aviation CAG-33751 $15,000.00
Metal in oil
8. W/O ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $ 3,000.00
Metal in oil
9. W/O 242 Helicopter De Guatemala CAT30695P $23,000.00
1750 hr. Mini-Turbine
SCHEDULE 3.09
PROPRIETARY RIGHTS
COASTAL TURBINES, INC.