STOCK PURCHASE AGREEMENT
BY AND AMONG
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ DRILL TECH INC.
AND
OMNI ENERGY SERVICES CORP.
MAY 13, 1998
TABLE OF CONTENTS
ARTICLE I SALE AND PURCHASE OF SHARES 1
SECTION 1.01 SALE OF SHARES. 1
SECTION 1.02 CONSIDERATION: PURCHASE PRICE. 1
SECTION 1.03 DIRECTORS AND OFFICERS. 1
SECTION 1.04 EMPLOYMENT AND NON-COMPETITION AGREEMENT. 1
ARTICLE II THE CLOSING 2
SECTION 2.01 TIME AND PLACE. 2
SECTION 2.02 THE COMPANY'S AND SHAREHOLDER'S DELIVERIES. 2
SECTION 2.03 PURCHASER'S DELIVERIES. 2
SECTION 2.04 DELIVERY OF DOCUMENTS BY ALL PARTIES. 2
ARTICLE III REPRESENTATIONS AND WARRANTIES OF COMPANY
AND SHAREHOLDER ...........................................3
SECTION 3.01 CORPORATE EXISTENCE. 3
SECTION 3.02 CORPORATE POWER AND AUTHORITY. 3
SECTION 3.03 NO CONFLICT. 3
SECTION 3.04 CAPITALIZATION. 3
SECTION 3.05 SHAREHOLDER RESIDENCY 4
SECTION 3.06 CORPORATE RECORDS 4
SECTION 3.07 CONSENTS. 4
SECTION 3.08 TITLE TO ASSETS; LIENS. 4
SECTION 3.09 LEASES AND IMMOVABLE PROPERTY. 4
SECTION 3.10 CONTRACTS. 4
SECTION 3.11 EMPLOYEE MATTERS. 4
SECTION 3.12 ABSENCE OF CERTAIN CHANGES. 5
SECTION 3.13 ABSENCE OF CERTAIN CHANGES OR EVENTS. 5
SECTION 3.14 PROPRIETARY RIGHTS. 6
SECTION 3.15 COMPLIANCE WITH LAWS; LICENSES AND PERMITS. 7
SECTION 3.16 RELATIONSHIP WITH SUPPLIERS AND CUSTOMERS. 7
SECTION 3.17 TAXES. 7
SECTION 3.18 CONCERNING JOINT, SEVERAL AND IN SOLIDO LIABILITY OF
COMPANY AND THE SHAREHOLDER...........................7
SECTION 3.19 ERISA. 8
SECTION 3.20 LEGAL PROCEEDINGS. 9
SECTION 3.21 ENVIRONMENTAL. 9
SECTION 3.22 DISCLOSURE AND RELIANCE. 10
ARTICLE IV REPRESENTATIONS AND WARRANTIESOF PURCHASER 11
SECTION 4.01 CORPORATE EXISTENCE. 11
SECTION 4.02 CORPORATE POWER AND AUTHORITY. 11
SECTION 4.03 ABSENCE OF BREACH. 11
SECTION 4.04 CONSENTS. 12
ARTICLE V LIABILITY AND INDEMNIFICATION 12
SECTION 5.01 NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES 12
SECTION 5.02 INDEMNIFICATION BY THE SHAREHOLDER AND COMPANY 12
SECTION 5.03 INDEMNIFICATION BY PURCHASER 12
SECTION 5.04 CONDITIONS OF INDEMNIFICATION 13
SECTION 5.05 LIMITATIONS ON LIABILITY 14
ARTICLE VI MISCELLANEOUS 14
SECTION 6.01 NOTICES 14
SECTION 6.02 COST AND EXPENSES. 15
SECTION 6.03 FURTHER ASSURANCES 15
SECTION 6.04 RESIGNATION 15
SECTION 6.05 GOVERNING LAW. 15
SECTION 6.06 ENTIRE AGREEMENT. 15
SECTION 6.07 AMENDMENT. 15
SECTION 6.08 PARTIES IN INTEREST. 15
SECTION 6.09 COUNTERPARTS. 15
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "AGREEMENT") is executed as of May
13, 1998, by and among ▇▇▇▇▇▇▇▇ DRILL TECH INC., a Canadian corporation,
formerly known as 686593 ALBERTA LTD. ("COMPANY"), ▇▇▇▇ ▇▇▇▇▇▇▇▇, the sole
shareholder ("SHAREHOLDER") of Company, and OMNI ENERGY SERVICES CORP.
("PURCHASER") and the transactions contemplated hereby shall be effective
for accounting purposes as of May 1, 1998 the ("EFFECTIVE DATE").
W I T N E S S E T H :
WHEREAS, Shareholder owns 100% of the issued and outstanding shares
of capital stock of ▇▇▇▇▇▇▇▇, all such shares of capital stock of ▇▇▇▇▇▇▇▇
owned by Shareholder being described on EXHIBIT "A" attached hereto and
made a part hereof (collectively, the "SHARES");
WHEREAS, Shareholder desires to sell, and Purchaser desires to
purchase, all of the Shares, subject to the terms and conditions of this
Agreement;
WHEREAS, the board of directors of Purchaser has approved the
acquisition of all of the Shares;
WHEREAS, Company owns a seismic support business (the "BUSINESS"); and
NOW, THEREFORE, in reliance upon the representations and warranties
made herein and in consideration of the mutual agreements herein contained,
the parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
SECTION 1.s SALE OF SHARES. Subject to the terms and conditions set
forth in this Agreement, including, without limitation, the conditions set
forth in Section 2.02 hereof, Shareholder hereby agrees to sell to
Purchaser, and Purchaser hereby agrees to purchase from Shareholder all of
the Shares (the "STOCK PURCHASE").
SECTION 2.s CONSIDERATION: PURCHASE PRICE. Upon the terms and subject
to the conditions contained in this Agreement, in consideration of and
payment for the Shares, Purchaser shall pay to Shareholder, in cash at the
Closing (as defined in Section 2.01 hereof) EIGHT HUNDRED SIXTY-SEVEN
THOUSAND EIGHT HUNDRED SEVENTY AND NO/100 DOLLARS (U.S.$867,870.00) (the
"PURCHASE PRICE").
SECTION 3.s DIRECTORS AND OFFICERS. At the Closing, all officers and
directors of Company shall tender their resignations to Purchaser.
SECTION 4.s EMPLOYMENT AND NON-COMPETITION AGREEMENT. At the Closing,
Purchaser shall enter into (i) an Employment and Non-Competition Agreement
with ▇▇▇▇ ▇▇▇▇▇▇▇▇, as set forth on EXHIBIT "B" attached hereto, (ii) an
Employment and Non-Competition Agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as set forth
on EXHIBIT "C" attached hereto; and (iii) an Employment and Non-Competition
Agreement with ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as set forth on EXHIBIT "D" attached
hereto (the "EMPLOYMENT AGREEMENTS").
ARTICLE II
THE CLOSING
SECTION 1.s 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 Shares (the "CLOSING") will take place at 8:00 a.m. on the date
hereof at the offices of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ located at #1500, ▇▇▇-
▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, (the "CLOSING DATE").
SECTION 2.s THE COMPANY'S AND SHAREHOLDER'S DELIVERIES. At the
Closing, Shareholder shall deliver to Purchaser the following items:
(a) certificates representing the Shares which shall be endorsed in
blank;
(b) certified resolutions of Company approving the Stock Purchase and
other transactions contemplated by this Agreement to which
Purchaser is a party;
(c) all resignation letters required by Section 1.03 hereof;
(d) a certificate of good standing for Company issued by Province of
Alberta;
(e) articles of incorporation and bylaws for Company; and
(f) receipt for the purchase price received.
SECTION 3.s PURCHASER'S DELIVERIES. Upon execution of this Agreement
by all parties hereto, Purchaser shall pay Shareholder the Purchase Price
in cash by wire transfer to an account as designated by Shareholder.
SECTION 4.s DELIVERY OF DOCUMENTS BY ALL PARTIES. At the Closing, all
parties to this Agreement shall execute and deliver the following
documents:
(a) ▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ Employment and Non-Competition Agreement with
Purchaser as set forth on EXHIBIT "B" attached hereto;
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ Employment and Non-Competition Agreement with
Purchaser as set forth on EXHIBIT "C" attached hereto; and
(c) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ Employment and Non-Competition Agreement with
Purchaser as set forth on EXHIBIT "D" attached hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COMPANY AND SHAREHOLDER
Company and the Shareholder hereby represent and warrant to Purchaser
that as of the Closing Date:
SECTION 1.s CORPORATE EXISTENCE. Company is a corporation duly
organized, validly existing and in good standing under the laws of the
Province of Alberta, Canada. Company has all requisite corporate power to
carry on the Business, as it is now being conducted, and to own and operate
its assets and properties, and is duly qualified to transact business and
is in good standing in each jurisdiction where the ownership of its assets
and properties or the conduct of the Business requires such qualification.
SECTION 2.s CORPORATE POWER AND AUTHORITY. Company 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
Company has been duly taken and this Agreement has been duly executed and
delivered by Company. This Agreement is a good, valid and binding
obligation of Company and Shareholder, enforceable against Company and
Shareholder 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.s NO CONFLICT. The execution and delivery of this
Agreement by Company and Shareholder, the compliance by Company and
Shareholder with the terms and conditions hereof and the consummation by
Company and Shareholder 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 Company, (b) violate any provision of, any judicial, administrative or
arbitration order, award, judgment, writ, injunction or decree applicable
to Company or Shareholder, or any governmental permit or license issued to
Company, 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
Company, under any material indenture, mortgage, lien, agreement or
instrument to which Company is a party or by which Company or any of its
assets or properties may be bound.
SECTION 4.s CAPITALIZATION. The Shares constitute 100% of the issued
and outstanding capital stock of Company, and there is no unanimous
shareholders agreement in place. Shareholder owns the Shares free and
clear of all security interests, pledges, liens, claims, encumbrances,
equities, voting trusts and agreements, proxies and limitations or
restrictions on the transfer thereof whatsoever. The Shares have been duly
authorized and validly issued and are fully paid and non-assessable.
There exist no options, warrants, subscriptions or other rights to
purchase, or securities convertible into or exchangeable for, Company
common stock. No shares of Company common stock have been issued or
disposed of in violation of the preemptive rights of any of Company's
present or former shareholders.
SECTION 5.s SHAREHOLDER RESIDENCY. The Shareholder is a resident of
Canada for the purpose of the Income Tax Act [Canada].
SECTION 6.s CORPORATE RECORDS. Correct and complete copies of
Company's articles of incorporation (and all amendments thereto) and bylaws
as amended and in effect as of the date hereof, will be delivered to
Purchaser pursuant to Section 2.02. Company's minute books, copies of
which have been made available to Purchaser, contain accurate minutes of
all formally noticed meetings of, and written consents to all actions taken
without meetings by, the boards of directors (and any committees thereof)
and shareholders of Company since their respective formations.
SECTION 7.s 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
Shareholder or the Company, other than those which have been obtained.
SECTION 8.s TITLE TO ASSETS; LIENS. Company has good and
indefeasible title to all assets and properties that it purports to own in
each case subject to no security interest, pledge, lien, lease, encumbrance
or charge other than: (a) liens for taxes not yet due and payable, (b)
liens that secure debt that is reflected on Company's Financial Statements
previously delivered to Purchaser, and (c) servitudes, easements,
encroachments, rights-of-way, restrictions, covenants, and similar inchoate
encumbrances which do not affect the current use of such assets. The
assets and properties owned or leased by Company as of the date of Closing
are the only assets necessary for the conduct of the business of Company,
as presently conducted.
SECTION 9.s LEASES AND IMMOVABLE PROPERTY. Attached hereto as
SCHEDULE 3.09 is a list of each lease pursuant to which Company is the
lessee with respect to each parcel of immovable property leased by it
(collectively, "LEASED PROPERTY"). Company possesses and occupies all of
the Leased Property. Company does not own any immovable property. All
improvements (including all buildings, or portions thereof, and all
fixtures) on any of the Leased Property are in good repair and operating
condition, normal wear and tear and required maintenance (which has
heretofore been regularly performed) excepted, and are suitable and fit for
the purposes for which they are currently being used. The use and
occupation of the Leased Property and the improvements thereon by Company
comply in all material respects with all Legal Requirements, zoning
regulations and building codes.
SECTION 10.s CONTRACTS. Schedule 3.10 describes all contracts or
commitments of Company and/or Shareholder that are material to the
operation of the Business or the ownership, use or operation of Company's
assets and properties (including without limitation, mortgages, indentures,
loan agreements, long-term supply contracts and open contracts).
SECTION 11.s EMPLOYEE MATTERS. None of the employees of Company is a
member of or represented by any labor union; Company 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
Company's employees; and, to Company'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, Company had no more than 15 employees at any one
time.
SECTION 12.s ABSENCE OF CERTAIN CHANGES. Since December 31, 1997,
Company 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 Company or to the assets.
SECTION 13.s ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
expressly contemplated by this Agreement, since December 31, 1997, Company
has not:
(a) made any change in its authorized capital or outstanding
securities or redeemed, purchased or otherwise acquired, or agreed to
redeem, purchase or otherwise acquire, or issued, sold or delivered, or
agreed to issue, sell or deliver, any capital stock or other securities
(whether authorized and unissued or held in the treasury) or rights to
acquire such capital stock or other securities;
(b) declared or made, or agreed to declare or make, any payment
of dividends or distributions of any assets of any kind whatsoever in
respect of its capital stock;
(c) borrowed or agreed to borrow any funds or incurred, or
become subject to, any obligation or liability (absolute or contingent),
except obligations and liabilities incurred in the ordinary course of
business;
(d) paid any obligation or liability (absolute or contingent)
other than current liabilities then due and owing and paid in the ordinary
course of business;
(e) except as occurred in the ordinary course of business and
consistent with the past practices of Company sold, transferred or
otherwise disposed of, or agreed to sell, transfer or otherwise dispose of,
or acquired, or agreed to acquire, any assets, properties or rights;
(f) mortgaged, pledged or otherwise subjected, or agreed to
mortgage, pledge or otherwise subject, any of its assets to any lien,
charge or other encumbrance, or agreed to do so;
(g) entered or agreed to enter into any agreement or arrangement
granting any preferential rights to purchase any of its assets, properties
or rights (including management and control thereof), or requiring the
consent of any party to the transfer and assignment of any of such assets,
properties or rights (including management and control thereof);
(h) written up or written down the carrying value of any of its
assets;
(i) changed the job costing system or depreciation methods of
accounting for its assets;
(j) other than in the ordinary course of business, made or
permitted any amendment or termination of any contract, agreement or
license to which it is a party or by which it or its assets or properties
are subject, or forgiven or canceled any debts or claims or released or
waived any rights or claims;
(k) entered into any employment, compensation or consulting
agreement that is not terminable by Company as the case may be, at will at
any time, or collective bargaining agreement with any person or group, or
modified or amended the terms of any such existing agreement;
(l) other than in the ordinary course of business, increased or
agreed to increase the rate of compensation payable to become payable by
Company or to any of its officers, directors or employees or adopted any
new, or made any amendment in any existing, profit sharing, bonus, deferred
compensation, savings, insurance, pension, retirement or other employee
benefit plan;
(m) experienced any labor trouble or lost or terminated any key
employees, or material customers or suppliers;
(n) received any citation for any violations of any material
Legal Requirement including, without limitation, The Occupational Health
and Safety Act (Alberta) or any rules or regulations promulgated
thereunder;
(o) suffered any material adverse change in its financial
condition, prospects, assets, liability or business or suffered any
material damages, destruction or losses (whether or not covered by
insurance);
(p) entered into any other commitment or transaction or
experienced any other event that has materially and adversely affected, or
is likely to materially and adversely affect, the business, operations,
prospects, assets, liabilities or financial condition of Company,
considered on consolidated basis; or
(q) defaulted under any insurance coverage, failed to give any
notice or present any claim under such coverage in a timely fashion or in
the manner or detail required by the policy or binder. Futhermore, Company
has no outstanding unpaid premiums with respect to any insurance held by
the Company and has not received any notice of cancellation or non-renewal
with respect to, or disallowance of any claim under any such coverage.
SECTION 14.p PROPRIETARY RIGHTS. SCHEDULE 3.13 identifies all
patents, inventions, research, trademarks, trade names, copyrights, service
marks, royalty rights or design rights used now or within the last year by
Company in the operation of the Business or ownership, use or operation of
its assets and properties. Except as set forth on SCHEDULE 3.13, (a)
Company is not 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 its assets and properties and (b) there are
no claims or suits pending or, to Shareholder's knowledge, threatened
against Company claiming an infringement by Company 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 its
assets or properties.
SECTION 15.p COMPLIANCE WITH LAWS; LICENSES AND PERMITS. Company is
in compliance, in all material respects, with all applicable laws,
regulations, orders, judgments, ordinances or decrees of any federal,
provincial, state or local court or any governmental authority. Company
has not received any notices or orders, nor to its knowledge have any
notices or orders been issued or threatened, relating to any violation by
Company of any law, ordinance, regulation or requirement that would have a
material adverse effect on the Business or the ownership, use or operation
of its assets and properties. Company has no knowledge of any condition,
state of facts or the occurrence of any event that might reasonably form
the basis for any claim of liabilities or litigation against the Company.
SECTION 16.p RELATIONSHIP WITH SUPPLIERS AND CUSTOMERS. Company has
not received notice of any intention to terminate or materially modify any
relationship with its suppliers or customers.
SECTION 17.p TAXES. All foreign, federal, state, province, parish
and local tax returns and reports required to be filed by Company in
connection with the operations of the Business or the ownership, use or
operation of its assets and properties have been filed within the time
period and in the manner prescribed by law. Shareholder 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 Company's assets and properties 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 Company's assets and properties have
been paid in full or appropriate provision for payment has been made
through the date hereof, including, without limitation, any Workers'
Compensation Board tax or payment and all estimated corporate income tax
payments due and payable through the date hereof. Neither Shareholder nor
Company currently has any outstanding tax liability under the law of any
jurisdiction that would subject Purchaser or the Company's assets and
properties to the liability or withholding requirements of such
jurisdiction's law. To the knowledge of Shareholder there is no pending
examination or proceeding by any authority or agency with respect to the
Business or use, operation or ownership of the Company's assets and
properties relating to the assessment or collection of any taxes.
SECTION 18.p CONCERNING JOINT, SEVERAL AND IN SOLIDO LIABILITY OF
COMPANY AND THE SHAREHOLDER.
(a) Company and Shareholder are 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 Company and Shareholder and in
consideration of the undertakings of Shareholder to accept joint, several
and in solido liability for the obligations of each of them.
(b) Company and 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 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 Company and
Shareholder without preferences or distinction among them.
(c) If and to the extent that Company or 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, Company and/or Shareholder will make such
payment with respect to, or perform, such obligation.
(d) The obligations of Company and Shareholder under the provisions
of Section 3.8 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) Company and 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. Company and
Shareholder hereby assent to, and waive 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 Company and/or
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, Company and Shareholder
assent 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 Section 3.8 afford grounds for terminating, discharging or
relieving such party, in whole or in part, from any of its obligations
under Section 3.8 it being the intention of Company and Shareholder that,
so long as any of the obligations hereunder remain unsatisfied, the
obligations of such party under Section 3.8 shall not be discharged except
by performance and then only to the extent of such performance. The
obligations of Company and Shareholder under Section 3.8 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 Company or
Shareholder. The joint, several and solidary liability of the Company and
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
Company.
SECTION 19.p ERISA. Company 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 Company and (c) covers any employee or
former employee of Company. Company has not within the last five years
engaged in, nor is Company a successor to an entity that has engaged in, a
transaction described in Section 4069 of ERISA.
SECTION 20.p LEGAL PROCEEDINGS. There are no actions, suits, or
proceedings pending, or threatened investigations, against or affecting
Company or Shareholder, or the use, ownership or operation of the Company's
assets or properties, or the Business at law or in equity, by or before any
governmental authority, which action, suit, investigation or proceeding, if
resolved against Company or Shareholder is reasonably likely to have a
material adverse effect on the use, ownership or operation of its assets or
properties, the Business, including, without limitation, (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,
(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 3.21 hereof) or any state or local law covering such matters, and
circumstances which would reasonably give rise to claims under the
Employment Standards Code (Alberta), the Labour Relations Code (Alberta),
and the Alberta Human Rights, Citizenship and Multiculturalism Act. 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 its assets or properties, or the Business. No
action or proceeding has been instituted or threatened against Company or
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. The
Company has paid all Employment Insurance and Canada Pension Plan premiums
and is not in default in paying such premiums.
SECTION 21.p ENVIRONMENTAL.
(a) "Environmental Laws" means any federal, state, provincial, 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; (ix) the Louisiana Environmental Quality
Act; and (x) the Alberta Environmental Protection and Enhancement 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) Company, and to the best of the Company's knowledge, parties
operating on behalf of the Company have (i) obtained all necessary
licenses, permits and other authorizations and approvals required under the
Environmental Laws, and (ii) complied with all Environmental Laws
concerning (a) emissions, discharges, releases or threatened release of
toxic or hazardous substances or wastes into the environment; (b)
generation, use, collection, treatment, storage, transportation,
processing, distribution, recover, removal, discharge, disposal or handling
of toxic or hazardous substances or wastes; and (c) record-keeping,
maintenance, testing, inspection, notification and reporting requirements
with respect to toxic or hazardous substances or wastes. Company 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. The Company and to the best of the Company's
knowledge, parties operating on behalf of the Company, are in compliance
with all Environmental Laws.
(c) Company 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 Company pursuant to any
Environmental Law. Company has no knowledge of, nor has Company 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 Company 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 leased or operated by Company.
(e) Company has not, nor has any person engaged by Company, treated,
used, generated or manufactured any hazardous substances or wastes.
Company 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 Company of hazardous
substances and wastes has been in compliance with all Environmental Laws.
(f) The written data and information disclosed or reported pursuant
to the Environmental Laws by Company does not contain any untrue statement
of a material fact or fail to state any material fact necessary to make any
such disclosure or reporting not misleading.
SECTION 22.p DISCLOSURE AND RELIANCE. None of the information,
documents, certificates or instruments furnished by Company 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 Shareholder 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 Shareholder's
knowledge, Shareholder represents that they have made due and reasonable
inquiry with respect thereto. Purchaser acknowledges and affirms that it
has had access to such of the books, records, and other materials and
information regarding the Company 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 Shareholder that:
SECTION 1.p 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 is duly qualified to transact business and is in
good standing in each jurisdiction where the ownership of its assets and
properties 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.p 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.p 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.p 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
LIABILITY AND INDEMNIFICATION
SECTION 1.p NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties contained in Articles III and IV of this
Agreement shall survive the Closing Date. The liability of any party to
indemnify any other party pursuant to this Article V shall be limited to
claims as to which notice has been given to the indemnifying party on or
prior to the fifth anniversary of the Closing Date, whether or not any
damages have been actually been sustained as of such date.
SECTION 2.p INDEMNIFICATION BY THE SHAREHOLDER AND COMPANY. The
Shareholder and Company bind themselves IN SOLIDO to protect, indemnify and
hold harmless Purchaser and its respective shareholders, officers,
directors, agents, attorneys and affiliated parties, and their respective
legal representatives, successors and assigns, from and against any demand,
claim, action, cause of action, suit, proceeding, investigation, liability,
obligation, judgment, loss, damage, cost or expense (including, without
limitation, reasonable attorneys' fees) as they are incurred or suffered by
any of them and caused by or arising out of:
(a) any breach or default in the performance by Shareholder of
any covenant or agreement of the Shareholder contained in this Agreement,
or any agreement attached hereto as an exhibit;
(b) any breach of any representation or warranty made by
Shareholder in Article III of this Agreement, or in any agreement attached
hereto as an exhibit; or
(c) any and all actions, suits, proceedings, claims, demands,
judgments, costs and expenses (including reasonable legal and accounting
fees) incident to any of the foregoing.
SECTION 3.c INDEMNIFICATION BY PURCHASER. Purchaser binds itself to
protect, indemnify and hold harmless the Shareholder and his respective
heirs, beneficiaries, legal representatives, successors, assigns and
affiliated persons, from and against any demand, claim, action, cause of
action, suit, proceeding, investigation, liability, obligation, judgment,
loss, damage, cost or expense (including, without limitation, reasonable
attorneys' fees) as they are incurred or suffered by any such indemnified
person and caused by or arising out of:
(a) any breach or default in the performance by Purchaser of any
covenant or agreement of Purchaser contained in this Agreement, or any
agreement attached hereto as an exhibit;
(b) any breach of any representation or warranty made by
Purchaser in Article IV of this Agreement or any agreement attached hereto
as an exhibit;
(c) any and all actions, suits, proceedings, claims, demands,
judgments, costs and expenses (including reasonable legal and accounting
fees) incident to any of the foregoing; or
(d) carrying on the business of the Company from the Closing
Date.
SECTION 4.c CONDITIONS OF INDEMNIFICATION. The obligations and
liabilities of the Company and Shareholder or Purchaser (for purposes of
this Section 5.04, the "INDEMNIFYING PARTIES") to protect, indemnify and
hold harmless any other party (the "INDEMNIFIED PARTY") under Sections 5.02
or 5.03 hereof with respect to claims asserted by third parties shall be
subject to the following terms and conditions:
(a) promptly after receipt of notice of commencement of any
action evidenced by service of process or other legal pleading, or the
assertion in writing of any claim by a third party, the Indemnified Party
shall give to the Indemnifying Party, written notice thereof together with
a copy of such claim, process, or other legal pleading, and the
Indemnifying Party shall have the right to undertake the defense thereof by
representatives of its choosing (subject to the right of the Indemnified
Party to consent reasonably thereto) and at its expense; provided, however,
that the Indemnified Party may participate at its own expense in the
defense with counsel of its own choice. The failure to give the preceding
notice shall not operate as a waiver of any indemnification rights
hereunder so long as the Indemnifying Party is not prejudiced as a result
thereof, and the Indemnifying Party may undertake the defense in accordance
with the foregoing as soon as it learns of the third party claim even
though it may learn of such claims through some other means.
(b) in the event that the Indemnifying Party, by the 30th day
after receipt of notice (as set forth above) of any such claim (or, if
earlier, by the 10th day preceding the day on which an answer or other
pleading must be served in order to prevent judgment by default in favor of
the person asserting such claim), does not elect to defend against such
claim, the Indemnified Party shall have the right, but not the obligation,
to undertake the defense, compromise or settlement of such claim on behalf
of and for the account and risk of the Indemnifying Party's expense,
subject to the right of the Indemnifying Party to assume the defense of
such claims at any time prior to settlement, compromise or final
determination thereof.
(c) anything in this Section 5.04 to the contrary
notwithstanding, the Indemnifying Party shall not settle any claim without
the consent of the Indemnified Party unless such settlement involves only
the payment of money and does not involve any admission of liability or
stipulation of fact which the Indemnified Party believes in its sole
discretion may have an adverse effect on it and, if Purchaser is the
Indemnified Party, on Company, and the claimant provides to the Indemnified
Party a release from all liability in respect of such claim. If the
settlement of the claim involves more than the payment of money or involves
an admission of liability or stipulation of fact, the Indemnifying Party
shall not settle the claim without the prior written consent of the
Indemnified Party.
(d) the Indemnified Party and the Indemnifying Party will each
cooperate with all reasonable requests of the other with respect to any
indemnified claim.
SECTION 5.d LIMITATIONS ON LIABILITY. After the Closing, except in
the case of actual fraud or willful, wanton or malicious misrepresentation
on the part of any party, the rights of the Shareholder and Purchaser under
this Article V shall be their exclusive right and remedy and in lieu of any
and all other rights or remedies that any such party may have under this
Agreement or otherwise with respect to the transactions contemplated
hereby. If any party hereto shall be obligated to indemnify another party
hereunder, then the Indemnifying Party shall, upon payment of such
indemnity, be subrogated to all rights of the Indemnified Party with
respect to claims to which such indemnification relates.
ARTICLE VI
MISCELLANEOUS
SECTION 1.d NOTICES. Any notice or communication required or
permitted hereunder shall be given in writing, sent by (a) personal
delivery, (b) expedited delivery service with proof of delivery, (c)
registered or certified United States mail, postage prepaid or (d) telegram
or telex, addressed to the appropriate party as follows:
TO THE SHAREHOLDER: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TO THE PURCHASER: OMNI Energy Services Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: Jones, Walker, Waechter,
Poitevent, Carrre & ▇▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to the attention of such other individual as
hereafter shall be designated in writing by the applicable party sent in
accordance herewith. Any such notice or communication shall be deemed to
have been given either at the time of personal delivery or, in the case of
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or in the case of telegram or
telex, upon receipt.
SECTION 2.d 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.d FURTHER ASSURANCES. The parties hereto agree (i) to
furnish upon request to each other such further information, (ii) to
execute and deliver to each other such other documents, (iii) to provide to
each other or each other's officers, counsel, independent accountants or
other representatives or agents reasonable access during normal business
hours to the books, records and other information relating to the Company
that is within their possession for the purpose of allowing the completion
of tax returns, financial statements or other reasonable business or
financial purposes and (iv) to do such other acts and things, all as the
other party hereto may at any time reasonably request for the purpose of
consummating the transactions contemplated by and carrying out the intent
of this Agreement and any other documents referred to herein.
SECTION 4.d RESIGNATION. Shareholder hereby resigns, effective as of
the Closing Date, from all offices, directorships and other capacities held
by Shareholder with respect to the Company.
SECTION 5.d GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of
Louisiana.
SECTION 6.d ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and
understandings (whether written or oral) among the parties with respect to
such subject matter.
SECTION 7.d AMENDMENT. This Agreement may be amended or modified only
by written agreement of all of the parties hereto.
SECTION 8.d PARTIES IN INTEREST. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors, executors, administrators, personal representatives, heirs and
permitted assigns, and no party hereto may assign its rights or obligations
hereunder without the prior written consent of the other parties hereto.
Nothing in this Agreement is intended or shall be construed to confer upon
or to give any person other than the parties hereto any rights or remedies
under or by reason of this Agreement.
SECTION 9.d COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
PURCHASER:
OMNI ENERGY SERVICES CORP.
BY: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
RESIDENT
SHAREHOLDER:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
COMPANY:
▇▇▇▇▇▇▇▇ DRILL TECH INC.
BY: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
PRESIDENT
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned authority, on this day personally appeared
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, known to me to be the person whose name is subscribed to
the foregoing Stock Purchase Agreement and acknowledged to me that he
executed the same for the purposes and consideration therein expressed, as
his personal act and deed.
Given under my hand and seal of office this 7th day of May, 1998.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
PRESIDENT
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
N O T A R Y P U B L I C
My Commission Expires: At My Death
ACKNOWLEDGMENT
PROVINCE OF ALBERTA
JUDICIAL DISTRICT OF CALGORY
BEFORE ME, the undersigned authority, on this day personally appeared
▇▇▇▇ ▇▇▇▇▇▇▇▇, known to me to be the person whose name is subscribed to the
foregoing Stock Purchase Agreement and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, as his
personal act and deed.
Given under my hand and seal of office this 13th day of May, 1998.
/S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
N O T A R Y P U B L I C
My Commission Expires: At The Pleasure of the Lieutenant Governor
LIST OF EXHIBITS
EXHIBIT A - Description of Shares
EXHIBIT B - Employment Agreement and Non-Competition between OMNI Energy
Services Corp. and ▇▇▇▇ ▇▇▇▇▇▇▇▇
EXHIBIT C - Employment and Non-Competition Agreement between OMNI Energy
Services Corp. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXHIBIT D - Employment and Non-Competition Agreement between OMNI Energy
Services Corp. and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LIST OF SCHEDULES
SCHEDULE 3.09 - Leases
SCHEDULE 3.10 - Contracts
SCHEDULE 3.14 - Proprietary Rights
EXHIBIT A
to Stock Purchase Agreement
DESCRIPTION OF SHARES
1) TEN (10) CLASS "A" VOTING PARTICIPATING SHARES with an unspecified
conversion rate attached.
SCHEDULE 3.09
LEASES
SCHEDULE 3.10
CONTRACT COMMITMENTS
1. Veritas Geophysical
Wasa Lake, British Columbia, Canada
2-D Program
Start-up date: May 02, 1998
400 shot holes
3 drills
2. Plains Resources Calumet Florida Inc.
Raccoon Point, Florida, U.S.A.
6.2 linear miles of 2-D Seismic Program
16.2 sq. miles of 3-D Seismic Program
CONTRACTS UNDER NEGOTIATION
1. Western Geophysical
Caroline, Alberta
3-D Speculative Program
Approx. 3000 holes
2. Western Geophysical
Anchorage, Alaska, U.S.A.
Kenai 2-D Program
700 holes
SCHEDULE 3.14
PROPRIETARY RIGHTS
1. ▇▇▇▇▇▇▇▇ DRILL TECH INC.