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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 16, 1996
SUPERIOR ENERGY SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-20310 75-2379388
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
1503 Engineers Road, Belle Chasse, Louisiana 70037
(Address of principal executive offices) (Zip Code)
(504) 393-7774
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report.)
Item 2: Acquisition or Disposition of Assets
Pursuant to an Agreement and Plan of Merger dated as of
September 15, 1996, by and among Superior Energy Services, Inc.
("Superior"), Dimensional Oil Field Acquisition, Inc.
("Dimensional Acquisition"), Dimensional Oil Field Services, Inc.
("Dimensional") and the shareholders of Dimensional, Superior
acquired Dimensional effective as of September 16, 1996. The
acquisition was accomplished by the merger of Dimensional with
and into Dimensional Acquisition, a wholly-owned subsidiary of
Superior, formed for this purpose, (the "Merger") with the effect
that Dimensional has become a wholly-owned subsidiary of
Superior. Upon consummation of the Merger, the outstanding
shares of common stock of Dimensional were converted into rights
to receive an aggregate of (i) 1,000,000 restricted shares of
Superior's authorized and unissued common stock, (ii) $1,500,000
cash and (iii) $1,000,000 principal amount of promissory notes.
A portion of the common stock and promissory notes having an
aggregate principal amount of $375,000 are subject to a custodial
agreement under which the common stock and the notes will be
released to the former Dimensional shareholders upon
Dimensional's meeting specified earning levels.
Superior is not aware of any material relationships between
itself, its affiliates, directors or officers or any associates
of its directors or officers with any shareholders of
Dimensional.
Dimensional is and following the Merger will continue to be
engaged in the business of plugging and abandoning oil and gas
wells.
Item 7. Financial Statements and Exhibits
(a)Financial Statements of Businesses Acquired
It is impracticable to provide the financial statements of
Dimensional Oil Field Services, Inc. required by this item at
the time this current report on Form 8-K is filed. The required
financial statements will be filed as soon as practicable, but
not later than 60 days after the latest date that this report
on Form 8-K must be filed.
(b) Pro Forma Financial Information.
It is impracticable to provide the pro forma financial
information of Dimensional Oil Field Services, Inc. required by
this item at the time this current report on Form 8-K is filed.
The required pro forma financial information will be filed as
soon as practicable, but not later than 60 days after the latest
date that this report on Form 8-K must be filed.
(c) Exhibits.
2.1. Agreement and Plan of Merger dated September 15, 1996, by
and among Superior Energy Services, Inc., Dimensional Oil
Field Acquisition, Inc., Dimensional Oil Field Services,
Inc. and Emmett E. Crockett, Evelyn Crockett, George K.
Crockett and Robert L. Crockett. The following attachments
are omitted from herein and will be provided to the
Commission upon request: Form of Certificate of Merger,
Form of Custodial Agreement, Form of Employment Agreement,
Form of Promissory Note, and Form of Disclosure Schedule.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
SUPERIOR ENERGY SERVICES, INC.
By: /s/ Robert S. Taylor
Robert S. Taylor
Chief Financial Officer
and duly authorized officer
Dated: September 30, 1996
AGREEMENT AND PLAN OF MERGER
Among
SUPERIOR ENERGY SERVICES, INC.,
DIMENSIONAL OIL FIELD ACQUISITION, INC.,
DIMENSIONAL OIL FIELD SERVICES, INC.
and
EMMETT E. CROCKETT
EVELYN CROCKETT
GEORGE K. CROCKETT
ROBERT L. CROCKETT
Dated as of September 15, 1996
TABLE OF CONTENTS
ARTICLE 1 DEFINED TERMS.............................................. 1
Section 1.1 Definitions.......................................... 1
ARTICLE 2 THE MERGER................................................. 4
Section 2.1 Merger............................................... 4
Section 2.2 The Closing.......................................... 4
Section 2.3 Filing of Certificate of Merger...................... 5
Section 2.4 The Effective Time; Effect of Merger................. 5
Section 2.5 Directors and Officers; Articles of
Incorporation; By-laws...................................... 5
ARTICLE 3 CONVERSION OF STOCK; PAYMENT............................... 5
Section 3.1 Conversion of Shares of Dimensional; Payment......... 5
Section 3.2 Delivery and Exchange of Certificates................ 6
ARTICLE 4 REPRESENTATIONS AND WARRANTIESOF DIMENSIONAL AND THE
SHAREHOLDERS..................................................... 6
Section 4.1 Ownership............................................ 6
Section 4.2 Authority............................................ 6
Section 4.3 Noncontravention..................................... 6
Section 4.4 Legal Proceedings.................................... 7
Section 4.5 Investment Representation............................ 7
Section 4.6 Organization; Qualification; Subsidiaries............ 8
Section 4.7 Capital Stock........................................ 8
Section 4.8 Corporate Authorization; Enforceability.............. 8
Section 4.9 Consent.............................................. 9
Section 4.10 No Conflict......................................... 9
Section 4.11 Charter and Bylaws.................................. 9
Section 4.12 Dimensional's Financial Statements.................. 9
Section 4.13 Accounts Receivable................................. 9
Section 4.14 Absence of Certain Changes.......................... 10
Section 4.15 Suppliers and Customers............................. 11
Section 4.16 Properties.......................................... 11
Section 4.17 Permits; Compliance with Laws....................... 12
Section 4.18 Material Contracts.................................. 12
Section 4.19 Litigation.......................................... 12
Section 4.20 Environmental Matters............................... 12
Section 4.21 ERISA and Related Matters........................... 12
Section 4.22 Taxes............................................... 14
Section 4.23 Transactions with Certain Persons................... 17
Section 4.24 Intellectual Property............................... 17
Section 4.25 Insurance........................................... 17
Section 4.26 Safety and Health................................... 18
Section 4.27 Bank Accounts; Powers of Attorney................... 18
Section 4.28 Compensation Agreements............................. 18
Section 4.29 Director and Officer Indemnification................ 18
Section 4.30 Documents and Written Materials..................... 18
Section 4.31 Effectiveness of Representations and Warranties..... 18
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF SESI AND DIMENSIONAL
ACQUISITION...................................................... 19
Section 5.1 Organization......................................... 19
Section 5.2 Capitalization....................................... 19
Section 5.3 Authority; Enforceability............................ 19
Section 5.4 Consents and Approvals; Conflicts.................... 19
Section 5.5 SESI Common Stock.................................... 20
Section 5.6 SESI Disclosure...................................... 20
Section 5.7 Effectiveness of Representations and Warranties...... 20
ARTICLE 6 PRE-CLOSING COVENANTS...................................... 20
Section 6.1 Legal Requirements................................... 20
Section 6.2 Access to Properties and Records..................... 20
Section 6.3 Conduct of Business.................................. 21
Section 6.4 Public Statements.................................... 21
Section 6.5 No Solicitation...................................... 21
Section 6.6 Update Information................................... 21
ARTICLE 7 CLOSING CONDITIONS......................................... 21
Section 7.1 Conditions Applicable to all Parties................. 21
Section 7.2 Conditions to Obligations of SESI and
Dimensional Acquisition..................................... 22
Section 7.3 Conditions to Obligations of Dimensional and the
Shareholders................................................ 23
ARTICLE 8 POST-CLOSING COVENANTS..................................... 23
Section 8.1 Bonus Pool........................................... 23
Section 8.2 Registration Rights.................................. 23
ARTICLE 9 TERMINATION AND AMENDMENT.................................. 25
Section 9.1 Termination.......................................... 25
Section 9.2 Effect of Termination................................ 26
Section 9.3 Amendment............................................ 26
Section 9.4 Extension; Waiver.................................... 26
ARTICLE 10 INDEMNIFICATION; REMEDIES................................. 26
Section 10.1 Indemnification by Shareholders..................... 26
Section 10.2 Indemnification by SESI............................. 27
Section 10.3 Notice and Defense of Third Party Claims............ 27
ARTICLE 11 MISCELLANEOUS............................................. 28
Section 11.1 Confidentiality..................................... 28
Section 11.2 Survival of Representations, Warranties and
Agreements.................................................. 28
Section 11.3 Notices............................................. 28
Section 11.4 Headings; Gender.................................... 29
Section 11.5 Entire Agreement; No Third Party Beneficiaries...... 29
Section 11.6 Governing Law....................................... 29
Section 11.7 Assignment.......................................... 29
Section 11.8 Severability........................................ 29
Section 11.9 Counterparts........................................ 29
Exhibits
A - Form of Certificate of Merger
B - Form of Custodial Agreement
C - Form of Employment Agreement
D - Form of Promissory Note
E - Form of Disclosure Schedule
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of September 15,
1996 (this "Agreement"), is by and among Superior Energy
Services, Inc., a Delaware corporation ("SESI"), its wholly-owned
subsidiary, Dimensional Oil Field Acquisition, Inc., a Louisiana
corporation ("Dimensional Acquisition"), Dimensional Oil Field
Services, Inc., a Louisiana corporation ("Dimensional"), and
Emmett E. Crockett, Evelyn Crockett, George K. Crockett and
Robert L. Crockett (each of whom are referred to collectively
herein as the "Shareholders" and sometimes individually as a
"Shareholder").
W I T N E S S E T H:
WHEREAS, the Board of Directors of Dimensional and the
Boards of Directors of SESI and Dimensional Acquisition have
determined it to be desirable and mutually advantageous to enter
into a business combination to be effected by the merger of
Dimensional with and into Dimensional Acquisition on the terms
and subject to the conditions set forth herein; and
WHEREAS, the parties hereto intend that, for federal income
tax purposes, the merger will constitute a reorganization within
the meaning of Sections 368(a)(1)(A) and 368(a)(2)(D) of the
Internal Revenue Code of 1986, as amended, and that this
Agreement constitute a plan of reorganization.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements herein contained, the
parties hereto agree as follows:
ARTICLE 1
DEFINED TERMS
Section 1.1 Definitions. In addition to the other
defined terms used herein, as used in this Agreement, the
following terms when capitalized have the meanings indicated.
"Affiliate" shall have the meaning ascribed by Rule 12b-2
promulgated under the Exchange Act.
"Applicable Law" shall mean any statute, law, rule or
regulation or any judgement, order, writ, injunction or decree of
any Governmental Entity to which a specified Person or its
property is subject.
"Agreement" shall mean this Agreement and Plan of Merger,
including the Exhibits hereto, all as amended or otherwise
modified from time to time.
"Benefit Arrangement" shall mean any employment, severance
or similar contract, or any other contract, plan, policy or
arrangement (whether or not written) providing for compensation,
bonus, profit-sharing, stock option or other stock related rights
or other forms of incentive or deferred compensation, vacation
benefits, insurance coverage (including any self-insured
arrangement), health or medical benefits, disability benefits,
severance benefits and post-employment or retirement benefits
(including compensation, pension, health, medical or life
insurance benefits), other than the Employee Plans, that (a) is
maintained, administered or contributed to by the employer and
(b) covers any employee or former employee of the employer.
"Business Day" shall mean a day other than a Saturday, a
Sunday or a day on which national banks are closed.
"Certificate of Merger" shall mean the Certificate of Merger
in the form attached hereto as Exhibit "A".
"Custodial Agreement" shall mean the Custodial Agreement in
the form attached hereto as Exhibit "B" dated as of the Closing
Date by and among SESI, Shareholders and the Custodial Agent.
"Custodial Agent" shall mean George Pivach II and his
successors and assigns.
"Closing" means the consummation of the Merger and the
other transactions contemplated by this Agreement.
"Closing Date" shall mean the date on which the Closing
occurs.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Dimensional Annual Financial Statements" shall mean the
unaudited balance sheet and related unaudited statements of
income, stockholders' equity and cash flows, and the related
notes thereto of Dimensional as of and for the fiscal year ended
December 31, 1995.
"Dimensional Common Stock" shall mean the common stock,
without par value, denominated as either Class A or Class B
Common Stock of Dimensional and owned by the Shareholders.
"Dimensional Financial Statements" shall mean the
Dimensional Annual Financial Statements and the Dimensional
Interim Financial Statements, collectively.
"Dimensional Interim Financial Statements" shall mean the
unaudited balance sheet and the related unaudited statements of
income and cash flows of Dimensional as of and for the six-month
period ended June 30, 1996.
"Disclosure Schedule" shall mean the disclosure schedules
and other documents attached hereto as Exhibit "E" prepared by
Dimensional and the Shareholders in accordance with the
applicable provisions of this Agreement.
"Effective Time" shall have the meaning ascribed to it in
Section 2.4 hereof.
"Employee Plan" means a plan or arrangement as defined in
Section 3(3) of ERISA, that (A) is subject to any provision of
ERISA, (B) is maintained, administered or contributed to by the
employer and (C) covers any employee or former employee of the
employer.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated
thereunder.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Governmental Entity" shall mean any court or tribunal in
any jurisdiction or any public, governmental or regulatory body,
agency, department, commission, board, bureau or other authority
or instrumentality.
"Leases" shall mean any executory lease to which Dimensional
is subject having future rental payments of more than $5,000 in
the aggregate.
"Liens" shall mean pledges, liens, defects, leases,
licenses, equities, conditional sales contracts, charges, claims,
encumbrances, security interests, easements, restrictions,
chattel mortgages, mortgages or deeds of trust, of any kind or
nature whatsoever.
"Material Contract" means any executory contract, agreement
or other understanding, whether or not reduced to writing, to
which Dimensional or its property is subject, which provides for
future payments by Dimensional of more than $5,000 in the
aggregate.
"Merger" means the merger of Dimensional with and into
Dimensional Acquisition pursuant to this Agreement and the
Certificate of Merger.
"Multiemployer Plan" means a plan or arrangement as defined
in Section 4001(a)(3) and 3(37) of ERISA.
"Notes" shall mean a promissory note in the form attached
hereto as Exhibit "D".
"Permitted Liens" shall mean any mechanic's, worker's,
materialmen's, operator's, maritime or other liens arising as a
matter of law in the ordinary course of business.
"Person" shall mean an individual, firm, corporation,
general or limited partnership, limited liability company,
limited liability partnership, joint venture, trust, governmental
authority or body, association, unincorporated organization or
other entity.
"Pre-Closing Periods" shall mean all Tax periods ending at
or before the Closing Date and, with respect to any Tax period
that includes but does not end at the Closing Date, the portion
of such period that ends at and includes the Closing Date.
"Proceedings" means any suit, action, proceeding, dispute
or claim before or investigation by any Governmental Entity.
"Registrable Shares" means SESI Common Stock issued to the
Shareholders pursuant to this Agreement that is not then held
pursuant to the Custodial Agreement and cannot be sold without
restriction under Rule 145(b) under the Securities Act.
"Returns" means all returns, reports, estimates,
declarations and statements of any nature regarding Taxes for any
Pre-Closing Period required to be filed by the taxpayer relating
to its income, properties or operations.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"SESI Common Stock" means the shares of common stock, $.001
par value per share, of SESI.
"SESI Disclosure Documents" shall mean SESI's Annual Report
on Form 10-KSB for the year ended December 31, 1995, SESI's
Quarterly Report on Form 10-QSB for the quarter ended June 30,
1996 and any other document filed by SESI with the Securities and
Exchange Commission in accordance with the Exchange Act prior to
the Closing Date.
"Taxes" shall mean any federal, state, local, foreign or
other taxes (including, without limitation, income, alternative
minimum, franchise, property, sales, use, lease, excise, premium,
payroll, wage, employment or withholding taxes), fees, duties,
assessments, withholdings or governmental charges of any kind
whatsoever (including interest, penalties and additions to tax).
ARTICLE 2
THE MERGER
Section 2.1 Merger. At the Effective Time, in
accordance with the terms and subject to conditions of this
Agreement and the Louisiana Business Corporation Law, Dimensional
shall merge with and into Dimensional Acquisition, the separate
existence of Dimensional shall cease, and Dimensional Acquisition
shall continue as the surviving corporation.
Section 2.2 The Closing. Unless this Agreement shall
have been terminated pursuant to the provisions hereof, and
subject to satisfaction or waiver of the conditions specified in
Section 7 hereof, the Closing shall take place at the offices of
Jones, Walker, Waechter, Poitevent, Carrere & Denegre L.L.P. in
New Orleans, Louisiana, commencing at 10:00 a.m., local time, on
or before September 30, 1996. If all conditions set forth in
Section 7 hereof are satisfied or duly waived, at the Closing (a)
the certificates, agreements and instruments specified in Section
7 shall be delivered, (b) the appropriate officer of Dimensional
Acquisition shall execute, deliver and acknowledge the
Certificate of Merger and the appropriate officers of Dimensional
and Dimensional Acquisition shall execute the certifications and
acknowledgments of this Agreement required by the Louisiana
Business Corporation Law and (c) the parties shall take such
further action as is required to consummate the transactions
contemplated by this Agreement.
Section 2.3 Filing of Certificate of Merger.
Immediately following its execution and acknowledgment, the
Certificate of Merger shall be delivered to the Secretary of
State of Louisiana for filing, and the Certificate of Merger
shall thereafter be recorded in the manner required by the
Louisiana Business Corporation Law.
Section 2.4 The Effective Time; Effect of Merger. The
Merger shall be effective at such time and date as is provided in
the Certificate of Merger pursuant to the mutual agreement of
Dimensional and SESI (the "Effective Time"). Upon the Effective
Time and by virtue of the Merger, Dimensional Acquisition shall
possess all the rights, privileges and franchises possessed by
Dimensional and Dimensional Acquisition shall be responsible for
all of the liabilities and obligations of Dimensional in the same
manner as if Dimensional Acquisition had itself incurred such
liabilities or obligations, and the Merger shall have such other
effects as are provided in the Louisiana Business Corporation
Law.
Section 2.5 Directors and Officers; Articles of
Incorporation; By-laws.
(a) After the Effective Time and until their
successors shall have been duly elected or appointed, the
directors and officers of Dimensional Acquisition will be the
directors and officers of the surviving corporation.
(b) The Articles of Incorporation of Dimensional
Acquisition, as in effect immediately prior to the Effective
Time, shall be amended as provided in the Certificate of Merger
to change its name to "Dimensional Oil Field Service, Inc."
(c) The By-laws of Dimensional Acquisition as in
effect immediately prior to the effective time shall be the By-
laws of the surviving corporation after the Effective Time until
thereafter duly amended.
ARTICLE 3
CONVERSION OF STOCK; PAYMENT
Section 3.1 Conversion of Shares of Dimensional; Payment.
(a) At the Effective Time, by reason of the Merger,
each of the issued and outstanding shares of Dimensional Common
Stock immediately prior to the Effective Time shall, by virtue of
the Merger, be converted into the right to receive (i) 10 shares
of SESI Common Stock (i.e., 1,000,000 shares in the aggregate),
(ii) $15 cash (i.e., $1,500,000 in the aggregate) and (iii) $10
(i.e., $1,000,000 in the aggregate) principal amount of Notes.
Superior shall deliver the portion of the consideration payable
pursuant to this Section 3.1(a) subject to the terms of the
Custodial Agreement as specified therein.
(b) At the Effective Time, by reason of the Merger,
each share of Dimensional Common Stock outstanding immediately
prior to the Merger shall be canceled.
Section 3.2 Delivery and Exchange of Certificates.
Following the Effective Time, the Shareholders shall deliver to
Dimensional Acquisition all certificates formerly representing
shares of Dimensional Common Stock. Upon such delivery, SESI
shall deliver to each Shareholder a certificate or certificates
representing the shares of SESI Common Stock into which such
shares of Dimensional Common Stock have been converted together
with the cash payment and Notes specified in Section 3.1(a).
Until so delivered, each certificate which, before the Effective
Time, represented shares of Dimensional Common Stock, shall be
deemed for all purposes to represent the number of whole shares
of SESI Common Stock into which the shares of Dimensional Common
Stock theretofore represented thereby shall have been converted.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF DIMENSIONAL AND THE SHAREHOLDERS
Except as set forth in the Disclosure Schedule, (a) each
Shareholder, with respect to matters relating to himself or
herself, represents and warrants to and agrees with SESI as set
forth as follows in Sections 4.1 through 4.5 and (b) Dimensional
and each Shareholder, jointly, severally and in solido, represent
and warrant to and agree with SESI as follows with respect to the
matters set forth in Sections 4.6 through 4.31:
Section 4.1 Ownership. Each Shareholder is, and at the
Closing Date will be, the record and beneficial owner of the
number of shares of Dimensional Common Stock, which are
represented by the certificates bearing the numbers, shown
opposite his or her name in the Disclosure Schedule. Each
Shareholder has and at the Closing Date will have good and
marketable title to all such shares and the absolute right to
deliver such shares in accordance with the terms hereof, free and
clear of all Liens.
Section 4.2 Authority. Each Shareholder has full legal
right, power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by each
Shareholder and constitutes, and each other agreement, instrument
or documents executed or to be executed by such Shareholder in
connection with the transactions contemplated hereby has been, or
when executed will be, duly executed and delivered by such
Shareholder and constitutes, or when executed and delivered will
constitute, a valid and legally binding obligation of such
Shareholder, enforceable against such Shareholder in accordance
with their respective terms, except that such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights generally
and equitable principles which may limit the availability of
certain equitable remedies in certain instances.
Section 4.3 Noncontravention. The execution, delivery and
performance by each Shareholder of this Agreement and the
consummation by each Shareholder of the transactions contemplated
hereby do not and will not (a) result in the creation or
imposition of any Lien upon the Dimensional Common Stock held by
such Shareholder or (b) violate any Applicable Law binding upon
such Shareholder.
Section 4.4 Legal Proceedings. There are no Proceedings
pending or, to the best of knowledge of the Shareholders
threatened seeking to restrain, prohibit or obtain damages or
other relief in connection with this Agreement or the
transactions contemplated hereby.
Section 4.5 Investment Representation.
(a) Each Shareholder is acquiring SESI Common Stock
for investment for his or her own account and not with a view to,
or for sale or other disposition in connection with, any
distribution of all or any part thereof except (i) in an offering
covered by a registration statement filed with the Securities and
Exchange Commission under the Securities Act covering SESI Common
Stock acquired by the Shareholder or (ii) pursuant to an
applicable exemption under the Securities Act. In receiving SESI
Common Stock, such Shareholder is not offering or selling, and
will not offer and sale, for SESI in connection with any
distribution of such SESI Common Stock, and such Shareholder does
not have any contract, undertaking, agreement or arrangement with
any person for the distribution of SESI Common Stock and will not
participate in any undertaking or in any underwriting of such an
undertaking except in compliance with Applicable Law.
(b) Each Shareholder has such knowledge and experience
in financial and business matters that he or she is capable of
evaluating the merits and risks of an investment in SESI Common
Stock.
(c) Each Shareholder has received from SESI and has
reviewed with his or her representatives a copy of each of SESI
Disclosure Documents. Each Shareholder has also been afforded
access to information about SESI and SESI's financial position,
results of operation, business, property and management
sufficient to enable him or her to evaluate an investment in SESI
Common Stock, and has had the opportunity to ask questions of and
has received satisfactory answers from SESI concerning the
foregoing matters.
(d) Each Shareholder understands that SESI Common
Stock acquired pursuant hereto have not been registered under the
Securities Act on the basis that the sale provided for in this
Agreement and the issuance of SESI's Common Stock hereunder is
exempt from registration under the Securities Act, and that
SESI's reliance on such exemption is based, in part, upon such
Shareholder's representations set forth herein.
(e) Each Shareholder understands that the shares of
SESI Common Stock will not be registered under the Securities
Act, that such shares will be "restricted securities" as that
term is defined in Rule 144 promulgated by the Securities and
Exchange Commission under the Securities Act, and that the
Shareholder cannot transfer such shares unless they are
subsequently registered under the Securities Act and under any
applicable state securities law or are transferred in a transfer
that, in the opinion of counsel satisfactory to SESI, is exempt
from such registration. Each Shareholder further understands
that SESI will, as a condition to the transfer of any such
shares, require that the request for transfer be accompanied by
an opinion of counsel, in form and substance satisfactory to
SESI, to the effect that the proposed transfer does not result in
a violation of the Securities Act or any applicable state
securities law, unless such transfer is covered by an effective
registration statement. Each Shareholder understands that such
shares of SESI Common Stock may not be sold publicly in reliance
on the exemption from registration under the Securities Act
afforded by Rule 144 unless and until the minimum holding period
(currently two years) and other requirements of Rule 144 have
been satisfied.
(f) Each Shareholder understands and agrees that all
certificates evidencing the shares of SESI Common Stock issued
hereunder will bear restrictive legends in substantially the
following form:
The securities represented by this
certificate have not been
registered under the Securities Act
of 1933, as amended (the "Act"), or
any applicable state law, and may
not be transferred without
registration under the Act and any
such state law or an opinion of
counsel satisfactory to the
corporation that registration is
not required.
Section 4.6 Organization; Qualification; Subsidiaries.
Dimensional is a corporation duly organized, validly existing and
in good standing under the laws of the State of Louisiana, having
all requisite corporate power and authority to own its property
and to carry on its business as it is now being conducted. No
actions or proceedings to dissolve Dimensional are pending.
Dimensional is duly qualified or licensed to do business and is
in good standing in each jurisdiction in which the property
owned, leased or operated by it or the conduct of its business
requires such qualification or licensing. Dimensional has no
subsidiaries or equity interests in any other Person.
Section 4.7 Capital Stock. The authorized capital stock of
Dimensional consists of 100,000 shares of Dimensional Common
Stock, of which 100,000 shares are issued and outstanding and
none are held in its treasury. Following the consummation of the
transactions contemplated by this Agreement, SESI will own all of
the issued and outstanding capital stock of Dimensional. All
issued and outstanding shares of Dimensional Common Stock have
been duly authorized and are validly issued, fully paid and non-
assessable. There are no outstanding stock options or other
rights to acquire any shares of the capital stock of Dimensional
or any security convertible into Dimensional Common Stock and
Dimensional has no obligation or other commitment to issue, sell
or deliver any of the foregoing or any shares of its capital
stock. All shares of Dimensional Common Stock have been issued
in compliance with all legal requirements and without violation
of any pre-emptive or similar rights.
Section 4.8 Corporate Authorization; Enforceability. The
execution, delivery and performance of this Agreement has been
duly authorized by the Board of Directors of Dimensional. The
Shareholders are the holders of all of the outstanding shares of
Dimensional Common Stock. The execution of this Agreement by
each of the Shareholders constitutes their written unanimous
consent as shareholders of Dimensional to the Merger and to the
execution, delivery and performance by Dimensional of this
Agreement. No further vote or consent of shareholders or
directors of Dimensional and no further corporate acts or other
corporate proceedings are required of Dimensional for the due and
valid authorization, execution, delivery and performance of this
Agreement or the consummation of the Merger. Subject to such
filings as are required by Applicable Law, this Agreement is the
legal, valid and binding obligation of Dimensional and is
enforceable against Dimensional in accordance with its terms,
except that enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and equitable principles
which may limit the availability of certain equitable remedies in
certain instances.
Section 4.9 Consent. No consent, approval, order or
authorization of, or declaration, filing or registration with,
any Governmental Entity or other Person is required to be
obtained or made by Dimensional in connection with the execution,
delivery or performance by Dimensional of this Agreement or the
consummation by it of the transactions contemplated hereby.
Section 4.10 No Conflict. Neither the execution and the
delivery of this Agreement by Dimensional or the Shareholders,
nor the consummation of the transactions contemplated hereby do
or will (a) violate, conflict with, or result in a breach of any
provisions of, (b) constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default)
under, (c) result in the termination of or accelerate the
performance required by, (d) result in the creation of any Lien,
upon any of Dimensional's properties or assets under any of the
terms, conditions or provisions of its Articles of Incorporation
or By-laws or any note, bond, mortgage, indenture, deed of trust,
lease, license, loan agreement or other instrument or obligation
to or by which it or any of its assets is bound, or (e) violate
any order, writ, injunction, decree, statute, rule or regulation
of any Governmental Entity applicable to it or any of its assets.
Section 4.11 Charter and Bylaws. The Shareholders have made
available to SESI accurate and complete copies of (a) the
Articles of Incorporation and By-laws of Dimensional, (b) the
stock records of Dimensional and (c) the minutes of all meetings
of the Board of Directors of Dimensional, any committees of such
board and the stockholders of Dimensional (and all consents in
lieu of such meetings). Such records, minutes and consents
accurately reflect the stock ownership of Dimensional and all
actions taken by the Board of Directors, committees and
stockholders. Dimensional is not in violation of any provision
of its Articles of Incorporation or By-laws.
Section 4.12 Dimensional's Financial Statements. The
Disclosure Schedule contains true and complete copies of the
Dimensional Financial Statements. The Dimensional Financial
Statements have been prepared from the books and records of
Dimensional and are complete, correct and in accordance with the
books of account and records of Dimensional. Dimensional has not
since the date of the Dimensional Interim Financial Statements
incurred any liability or obligation (whether accrued, absolute,
contingent, unliquidated or otherwise), except (i) liabilities
reflected in the Dimensional Interim Financial Statements, (ii)
current liabilities which have arisen since the date of the
Dimensional Interim Financial Statements in the ordinary course
of business (none of which is a material liability for breach of
contract, tort or infringement) and (iii) liabilities arising
under executory contracts entered into in the ordinary course of
business (none of which is a material liability for breach of
contract).
Section 4.13 Accounts Receivable. All of the accounts
receivable reflected on the Dimensional Interim Financial
Statements or created thereafter have arisen only from bona fide
transactions in the ordinary course of business, represent valid
obligations owing to Dimensional and have been accrued in
accordance with generally accepted accounting principles. All
such accounts receivable either have been collected in full or
will be collectible in full within 120 days of when due, without
any counterclaims, setoffs or other defenses and without
provision for any allowance for uncollectible accounts
aggregating more than $120,000.
Section 4.14 Absence of Certain Changes. Since June 30,
1996 there has been no event or condition of any character that
has had, or can reasonably be expected to have, a material
adverse effect on the financial condition, results of operations,
cash flow, business or prospects of Dimensional. Dimensional has
not since June 30, 1996:
(a) made any material change in the conduct of its
business and operations or failed to operate its business so as
to preserve its business organization intact and to preserve the
good will of its customers, suppliers and others with whom it has
significant business relations;
(b) entered into any agreement or transaction not in
the ordinary course of business;
(c) incurred any obligation or liability, absolute or
contingent, except trade or business obligations incurred in the
ordinary course of business or sales, income, franchise, or ad
valorem taxes accruing or becoming payable in the ordinary course
of business;
(d) declared or paid any dividend or other
distribution with respect to any of its capital stock or
purchased any of its capital stock;
(e) acquired or disposed of any assets material to its
business or operations;
(f) subjected any of its assets to any Lien other than
Permitted Lien;
(g) increased the rate of compensation (including
bonuses, contingent severance payments, retirement, profit
sharing, benefit or similar payments) payable or to become
payable to any of its officers or directors;
(h) adopted any employee welfare, pension, retirement,
profit sharing or similar plan or made any material addition to
or modification of existing plans;
(i) experienced any labor trouble or any controversy
or unsettled grievance involving any personnel;
(j) terminated or received notice of the termination
of any contract, commitment or transaction that is material to
it, or waived any right of material value to it;
(k) made any material change in any accounting
principle, procedure or practice followed by it;
(l) issued any stock or merged or consolidated with
any other business or agreed to do so;
(m) made any capital expenditure or entered into any
Lease;
(n) borrowed any money or guaranteed or assumed any
indebtedness of others;
(o) suffered any extraordinary losses or any material
damage, destruction or casualty with respect to its assets, or
experienced any events, conditions, losses or casualties which
have resulted in or might result in claims under its insurance
policies of an aggregate of $5,000 or more;
(p) loaned any money to any Person;
(q) defaulted under any note, loan, mortgage,
guarantee or other instrument of indebtedness or any Material
Contract;
(r) received any notification, warning or inquiry from
or given any notification to or had any communication with any
Governmental Entity, with respect to any proposed remedial action
or any violation or alleged or possible violation of any law,
rule, regulation or order relating to or affecting its business,
nor are any facts known to Dimensional that may reasonably be
expected to give rise to any such notification, warning or
inquiry;
(s) transferred any asset, right or interest to, or
entered into any transaction with any Shareholder or any of their
Affiliates;
(t) amended its Articles of Incorporation or Bylaws;
(u) received notice or had knowledge or reason to
believe that any substantial customer of Dimensional has
terminated or intends to terminate its relationship with
Dimensional;
(v) waived any right in connection with any aspect of
its business that could have a material effect on the business of
Dimensional; or
(w) made any agreement or commitment to do any of the
foregoing.
Section 4.15 Suppliers and Customers. To the best knowledge
of the Shareholders, (a) no supplier providing products,
materials or services to Dimensional intends to cease selling
such products, materials or services to Dimensional or to limit
or reduce such sales to Dimensional or materially alter the terms
or conditions of such sales and (b) no customer of Dimensional
intends to terminate, limit or reduce its or their business
relations with Dimensional.
Section 4.16 Properties.
(a) Dimensional has good title to all material
properties and assets reflected on the Dimensional Financial
Statements, free and clear of any Liens, except Permitted Liens.
(b) The Disclosure Schedule sets forth a complete and
correct list of all Leases, all of which are valid and
enforceable and in full force and effect. Complete and correct
copies of each Lease have been made available to SESI.
Dimensional is in full compliance with and has not received a
notice of default under any Lease and Dimensional is not involved
in any dispute under any Lease, the effect of which would have a
material adverse effect on the business, assets or financial
condition of Dimensional.
(c) Dimensional does not own, and has never owned, any
real property other than as described in the Disclosure Schedule.
Section 4.17 Permits; Compliance with Laws. Dimensional (a)
has all necessary permits, licenses and governmental
authorizations required for the lease, ownership, occupancy or
operation of its properties and assets and the carrying on of its
business, and (b) has conducted its business in substantial
compliance with and is in substantial compliance with all
applicable laws, regulations, orders, permits, judgments,
ordinances or decrees of any Governmental Entity.
Section 4.18 Material Contracts. The Disclosure Schedule
lists and describes all Material Contracts. A complete and
correct copy of each Material Contract has been furnished to or
made available to SESI. Each Material Contract is valid, binding
and enforceable, except to the extent that enforcement may be
limited by bankruptcy, reorganization, insolvency and other
similar laws and court decisions relating to or affecting the
enforcement of creditors' rights generally and by equitable
principles. Dimensional and each other party to each Material
Contract are in compliance in all material respects with the
provisions of such Material Contract.
Section 4.19 Litigation. There are no Proceedings pending
or threatened against Dimensional and, to the best knowledge of
the Shareholders, there have been no events and there are no
facts or circumstances that could result in any Proceedings.
Section 4.20 Environmental Matters. Dimensional is not in
violation of any Applicable Law relating to the environment and
Dimensional is not a party to any proposed removal, remedy or
remedial action. Dimensional has not received any notice that
any investigation, administrative order, consent order and
agreement, removal or remedial action, litigation or settlement
with respect to any environmental permit, law or regulation is
proposed, threatened, anticipated or in existence with respect to
any of Dimensional's leased or owned properties. The properties
currently and previously leased or owned by Dimensional are not
and have never been on or associated with any "national
priorities" list or any equivalent state list or any federal or
state "superlien" list.
Section 4.21 ERISA and Related Matters.
(a) The Disclosure Schedule lists each Employee Plan
that Dimensional maintains, administers, contributes to, or has
any contingent liability with respect thereto. Dimensional has
provided a true and complete copy of each such Plan, current
summary plan description, (and, if applicable, related trust
documents) and all amendments thereto and written interpretations
thereof together with (i) all annual reports, if any, that have
been prepared in connection with each such Employee Plan; (ii)
all material communications received from or sent to the Internal
Revenue Service or the Department of Labor within the last two
years (including a written description of any oral
communications); and (iii) the most recent Internal Revenue
Services determination letter with respect to each Employee Plan
and the most recent application for a determination letter.
(b) The Disclosure Schedule identifies each Benefit
Arrangement that Dimensional maintains, or administers. Except
as set forth in the Disclosure Schedule, Dimensional has made all
contributions to and has no contingent liability with respect to
any of its Benefit Arrangements. Dimensional has furnished to
SESI copies or descriptions of each Benefit Arrangement. To the
knowledge of each of the Shareholders, each Benefit Arrangement
has been maintained in substantial compliance with its terms and
with the requirements prescribed by any and all statutes, orders,
rules and regulations which are applicable to such Benefit
Arrangement.
(c) Benefits under any Employee Plan or Benefit
Arrangement are as represented in said documents and have not
been increased or modified (whether written or not written)
subsequent to the dates of such documents. Dimensional has not
communicated to any employee or former employee any intention or
commitment to modify any Employee Plan or Benefit Arrangement or
to establish or implement any other employee or retiree benefit
or compensation arrangement.
(d) Each Employee Plan which is intended to be
qualified under Section 401(a) of the Code is so qualified and
has been so qualified during the period from its adoption to
date, and, to the best knowledge of each of the Shareholders, no
event has occurred since such adoption that would adversely
affect such qualification and each trust created in connection
with each such Employee Plan forming a part thereof is exempt
from tax pursuant to Section 501(a) of the Code. To the best
knowledge of each of the Shareholders, each Employee Plan has
been maintained and administered in compliance with its terms and
with the requirements prescribed by any and all applicable
statutes, orders, rules and regulations, including but not
limited to ERISA and the Code.
(e) To the best knowledge of the Shareholders, full
payment has been made of all amounts which Dimensional is or has
been required to have paid as contributions to any Employee Plan
or Benefit Arrangement under applicable law or under the terms of
any such plan or any arrangement.
(f) To the best knowledge of each of the Shareholders,
neither Dimensional nor any of its Shareholders, directors,
officers or employers has engaged in any transaction with respect
to an Employee Plan that could subject Dimensional to a tax,
penalty or liability for a prohibited transaction, as defined in
Section 406 of ERISA or Section 4975 of the Code.
(g) To the best knowledge of each of the Shareholders,
Dimensional has no current or projected liability in respect of
post-retirement or post-employment welfare benefits for retired,
current or former employees. No health, medical, death or
survivor benefits have been provided under any Benefit
Arrangement to any person who is not an employee or former
employee of Dimensional or a dependent thereof.
(h) There is no litigation, administrative or
arbitration proceeding or other dispute pending or threatened
that involves any Employee Plan or Benefit Arrangement which
could reasonably be expected to result in a liability to
Dimensional, any employees or directors of Dimensional, or any
fiduciary (as defined in ERISA Section 3(21)) of such Employee
Plan or Benefit Arrangement.
(i) No employee or former employee of Dimensional will
become entitled to any bonus, retirement, severance, job security
or similar benefit or enhanced benefit (including acceleration of
compensation, an award, vesting or exercise of an incentive
award) or any fee or payment of any kind solely as a result of
any of the transactions contemplated hereby.
(j) Dimensional is not a party to any agreement,
contract, arrangement or plan that has resulted or would result,
separately or in the aggregate, in the payment of any "excess
parachute payments" within the meaning of Section 280G of the
Code (i.e., a golden parachute).
Section 4.22 Taxes.
(a) All Returns required to be filed by or on behalf
of Dimensional have been duly filed on a timely basis and such
Returns (including all attached statements and schedules) are
true, complete and correct. All Taxes shown to be payable on the
Returns or on subsequent assessments with respect thereto have
been paid in full on a timely basis, and no other Taxes are
payable by Dimensional with respect to items or periods covered
by such Returns (whether or not shown on or reportable on such
Returns) or with respect to any period prior to the Closing Date.
(b) Dimensional has withheld and paid over all Taxes
required to have been withheld and paid over (including any
estimated taxes), and has complied with all information reporting
and backup withholding requirements, including maintenance of
required records with respect thereto, in connection with amounts
paid or owing to any employee, creditor, independent contractor,
or other third party.
(c) There are no Liens on any of the assets of
Dimensional with respect to Taxes, other than Liens for Taxes not
yet due and payable or for Taxes that are being contested in good
faith through appropriate proceedings and for which appropriate
reserves have been established.
(d) Dimensional has furnished or made available to
SESI true and complete copies of: (i) all federal and state
income and franchise tax returns of Dimensional for all periods
beginning on or after January 1, 1993, and (ii) all tax audit
reports, work papers statements of deficiencies, closing or other
agreements received by Dimensional or on its behalf relating to
Taxes.
(e) Except as disclosed on the Disclosure Schedule or
in documents provided to or made available to SESI:
(i) The Returns of Dimensional have never been
audited by a governmental or taxing authority, nor is any such
audit in process, pending or threatened (formally or informally).
(ii) No deficiencies exist or have been asserted
(either formally or informally) or are expected to be asserted
with respect to Taxes of Dimensional, and no notice (either
formally or informally) has been received by Dimensional that it
has not filed a Return or paid Taxes required to be filed or paid
by it.
(iii) Dimensional is not a party to any pending
action or proceeding for assessment or collection of Taxes, nor
has such action or proceeding been asserted or threatened (either
formally or informally) against it or any of its assets.
(iv) Except as reflected in the Returns or as
disclosed on the Disclosure Schedule, no waiver or extension of
any statute of limitations is in effect with respect to Taxes or
Returns of Dimensional.
(v) There are no requests for rulings, subpoenas
or requests for information pending with respect to Dimensional.
(vi) No power of attorney has been granted by
Dimensional, with respect to any matter relating to Taxes.
(vii) The amount of liability for unpaid Taxes of
Dimensional for all periods ending on or before the Effective
Date will not, in the aggregate, exceed the amount of the current
liability accruals for Taxes, as such accruals are reflected on
the balance sheet of Dimensional as of the Closing Date.
(f) Except as disclosed on the Disclosure Schedule, or
as described in documents furnished to or made available to SESI:
(i) Dimensional has not made an election, and is
not required to treat any asset as owned by another person for
federal income tax purposes or as tax-exempt bond financed
property or tax-exempt use property within the meaning of section
168 of the Code.
(ii) Dimensional has not issued or assumed any
indebtedness that is subject to section 279(b) of the Code.
(iii) Dimensional has not entered into any
compensatory agreements with respect to the performance of
services which payment thereunder would result in a nondeductible
expense to Section 280G of the Code or an excise tax to the
recipient of such payment pursuant to Section 4999 of the Code.
(iv) No election has been made under Section 338
of the Code with respect to Dimensional and no action has been
taken that would result in any income tax liability to
Dimensional as a result of deemed election within the meaning of
Section 338 of the Code.
(v) No consent under Section 341(f) of the Code
has been filed with respect to Dimensional.
(vi) Dimensional has not agreed, nor is it
required to make, any adjustment under Code Section 481(a) by
reason of change in accounting method or otherwise.
(vii) Dimensional has not disposed of any property
that has been accounted for under the installment method.
(viii) Dimensional is not a party to any interest
rate swap, currency swap or similar transaction.
(ix) Dimensional is not a United States real
property holding corporation within the meaning of Section
897(c)(2) of the Code and SESI is not required to withhold tax on
the acquisition of the stock of Dimensional.
(x) Dimensional has not participated in any
international boycott as defined in Code Section 999.
(xi) Dimensional is not subject to any joint
venture, partnership or other arrangement or contract that is
treated as a partnership for federal income tax purposes.
(xii) Dimensional has not made any of the
foregoing elections and is not required to apply any of the
foregoing rules under any comparable state or local income tax
provisions.
(xiii) Dimensional does not have and has never had
a permanent establishment in any foreign country, as defined in
any applicable tax treaty or convention between the United States
and such foreign country.
(xiv) The transactions contemplated herein are not
subject to the tax withholding provisions of Section 3406 of the
Code, or of Subchapter A of Chapter 3 of the Code, or of any
other provision of law.
(g) Set forth in the Disclosure Schedule or in
documents furnished or made available to SESI is accurate and
complete information with respect to each of the following for
all tax periods beginning January 1, 1993:
(i) All material tax elections in effect with
respect to Dimensional;
(ii) The net operating losses of Dimensional by
taxable year;
(iii)The net capital losses of Dimensional; and
(iv) The tax credit carry overs of Dimensional.
(h) (i) The Shareholders and Dimensional have not
taken or agreed to take any action that would prevent the Merger
from constituting a reorganization qualifying under the
provisions of section 368(a) of the Code.
(ii) There is no plan or intention by any
Shareholder to sell, exchange or otherwise dispose of a number of
shares of SESI Common Stock to be received in the Merger that
would reduce the Shareholder's ownership of SESI Common Stock to
a number of shares having a value, as of the Effective Time, of
less than 50 percent of the value of all of the Dimensional
Common Stock (including shares of Dimensional Common Stock
exchanged for cash in lieu of fractional shares of SESI Common
Stock) outstanding immediately prior to the Effective Time.
(iii) Immediately following the Effective Time,
Dimensional Acquisition will hold at least 90 percent of the fair
market value of the net assets of Dimensional and at least 70
percent of the fair market value of the gross assets of
Dimensional held immediately prior thereto. For purposes of this
representation, amounts used by Dimensional to pay Merger
expenses and all redemptions and distributions made by
Dimensional will be included as assets of Dimensional immediately
prior to the Merger.
(iv) The Shareholders and Dimensional will each
pay their respective expenses, if any, incurred in connection
with the Merger.
(v) There is no intercorporate indebtedness
existing between Dimensional and SESI or between Dimensional and
Dimensional Acquisition that was issued, acquired or will be
settled at a discount.
(vi) Dimensional is not an investment company as
defined in Section 368(a)(3)(A) of the Code.
Section 4.23 Transactions with Certain Persons. Except for
employment relationships in the ordinary course of business, no
employee of Dimensional or any of their Affiliates is presently a
party to any transaction with Dimensional, including without
limitation any contract, agreement or other arrangement providing
for the furnishing of services by or the rental of real or
personal property from any such person or from any of their
Affiliates.
Section 4.24 Intellectual Property. Dimensional either own
or has valid licenses to use all patents, copyrights, trademarks,
software, databases, and other technical information used in its
business as presently conducted, subject to limitations contained
in the agreements governing the use of same, which limitations
are customary for companies engaged in businesses similar to
Dimensional. There are no limitations contained in any such
agreements which will alter any such rights, breach any such
agreement or any third-party vendor, or require payments of
additional sums thereunder. Dimensional is in compliance with
all such licenses and agreements and there are no pending or, to
the best knowledge of the Shareholders, threatened Proceedings
challenging or questioning the validity or effectiveness of any
license or agreement relating to such property or the right of
Dimensional to use, copy, modify or distribute the same.
Section 4.25 Insurance. SESI has been provided access to
all insurance policies or binders which relate to Dimensional's
business. All premiums due under such policies and binders have
been paid or accrued for on the Dimensional Financial Statements
and all such policies and binders are in full force and effect
and no notice of cancellation or nonrenewal of any such policy or
binder has been received by Dimensional and no notice of
disallowance of any claim under any insurance policy or binder,
whether or not currently in effect, has been received by
Dimensional. Dimensional has no liability for or exposure to any
premium expense for expired policies and there are no current
claims by Dimensional under any such policy or binder nor are
there any insured losses for which claims have not been made.
Section 4.26 Safety and Health. The property and assets of
Dimensional have been and are being operated in compliance with
all Applicable Laws designed to protect safety or health, or
both, including without limitation, the Occupational Safety and
Health Act, and the regulations promulgated pursuant thereto.
Dimensional has not received any written notice of any
violations, deficiency, investigation or inquiry from any
Governmental Entity, employer or third party under any such law
and, to the best knowledge of the Shareholders, no such
investigation or inquiry is planned or threatened.
Section 4.27 Bank Accounts; Powers of Attorney. The
Disclosure Schedule sets forth with respect to each bank account
or cash account maintained by Dimensional at any bank, brokerage
or other financial firm, the name of the institution at which
such account is maintained, the number of the account, and the
names of the individuals having authority to withdraw funds from
such account.
Section 4.28 Compensation Agreements. The Disclosure
Schedule lists all written employment, commission, bonus or other
compensation and consulting agreements to which Dimensional is a
party. Except as set forth on the Disclosure Schedule,
Dimensional is not a party to any written or oral employment,
commission, bonus or other compensation or consulting agreement
which Dimensional may not terminate without any payment or
penalty, at will, with or without cause, except to the extent
that employment at will may be limited by Applicable Law.
Section 4.29 Director and Officer Indemnification. The
directors and officers of Dimensional are not entitled to
indemnification by Dimensional, except to the extent that
indemnification rights are provided for generally in Louisiana
and there are no pending claims for indemnification by any
director or officer of Dimensional.
Section 4.30 Documents and Written Materials. Originals or
true and complete copies of all documents or other written
materials underlying items listed in the Disclosure Schedule have
been furnished or made available to SESI in the form in which
each of such documents is in effect, and will not be modified in
any material respect prior to the Closing Date without SESI's
prior written consent.
Section 4.31 Effectiveness of Representations and
Warranties. All of the representations and warranties of
Dimensional and the Shareholders in this Agreement shall be true
in all material respects on the Closing Date and shall be deemed
to have been made again by Dimensional and the Shareholders on
and as of the Closing Date.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SESI
AND DIMENSIONAL ACQUISITION
SESI and Dimensional Acquisition represent and warrant to
and agree with Dimensional and the Shareholders as follows:
Section 5.1 Organization. SESI and Dimensional Acquisition
are corporations duly organized, validly existing and in good
standing under the laws of Louisiana and have all requisite
corporate power and authority to own their properties and carry
on their businesses as now being conducted.
Section 5.2 Capitalization. As of the date of this
Agreement, the authorized capital stock of SESI consists of
40,000,000 shares of common stock, $.001 par value per share,
17,597,045 of which are validly issued and outstanding, and
5,000,000 of preferred stock, $.01 par value, none of which are
outstanding. SESI owns all of the issued and outstanding shares
of Dimensional Acquisition's capital stock.
Section 5.3 Authority; Enforceability. Each of SESI and
Dimensional Acquisition has the requisite corporate power and
authority to execute and deliver this Agreement and to carry out
its obligations hereunder. The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of each of SESI and
Dimensional Acquisition and no other corporate proceedings on the
part of either SESI or Dimensional Acquisition are necessary to
authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly executed and
delivered by each of SESI and Dimensional Acquisition and
constitutes a valid and binding obligation of each of SESI and
Dimensional Acquisition, enforceable against each of them in
accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and similar
laws affecting the enforcement of creditors' rights generally and
equitable principles which may limit the availability of certain
equitable remedies in certain instances.
Section 5.4 Consents and Approvals; Conflicts. No filing
with or notice to, and no permit, authorization, consent or
approval of, any Governmental Entity is necessary for the
execution and delivery by either SESI or Dimensional Acquisition
of this Agreement or the consummation by either SESI or
Dimensional Acquisition of the transactions contemplated hereby.
Neither the execution and delivery of this Agreement by either
SESI or Dimensional Acquisition, nor the consummation of the
transactions contemplated hereby, will violate any of the
provisions of the Articles of Incorporation or Bylaws of either
SESI or Dimensional Acquisition; or conflict with or result in a
breach of, or give rise to a right of termination of, or
accelerate the performance required by, any terms of any court
order, consent decree, note, bond, mortgage, indenture, deed of
trust, or any license or agreement binding on either SESI or
Dimensional Acquisition or to which either SESI or Dimensional
Acquisition is subject or a party, or constitute a default
thereunder, or result in the creation of any Lien upon any of the
assets or result in the creation of any Lien upon any of the
assets of either SESI or Dimensional Acquisition, except for any
such conflict, breach, termination, acceleration, default or Lien
which would not have a material adverse effect on (a) the
business, assets or financial condition of either SESI or
Dimensional Acquisition or (b) either SESI's or Dimensional
Acquisition's ability to consummate any of the transactions
contemplated hereby.
Section 5.5 SESI Common Stock. All shares of SESI Common
Stock to be issued pursuant to this Agreement will be, when
issued, duly authorized, validly issued, fully paid and non-
assessable.
Section 5.6 SESI Disclosure. The SESI Disclosure Documents
do not include any misstatement of any fact material to the
assets, business, operations, financial condition and prospects
of SESI, taken as a whole, or omit to state such a material fact
necessary in order to make the statements, in the light of the
circumstances under which they are made, not misleading.
Section 5.7 Effectiveness of Representations and Warranties.
All of the representations and warranties of SESI and Dimensional
Acquisition in this Agreement shall be true in all material
respects on the Closing Date and shall be deemed to have been
made again by SESI and Dimensional Acquisition on and as of the
Closing Date.
ARTICLE 6
PRE-CLOSING COVENANTS
Section 6.1 Legal Requirements. Subject to the conditions
set forth in Section 7 and to the other terms and provisions of
this Agreement, each of the parties to this Agreement agrees to
take, or cause to be taken, all reasonable actions necessary to
comply promptly with all legal requirements applicable to it with
respect to the transactions contemplated by this Agreement and
will promptly cooperate with and furnish information to each
other in connection with any such requirements imposed upon any
of them. Each of SESI, Dimensional Acquisition, Dimensional and
the Shareholders will take all reasonable actions necessary to
obtain, and will cooperate with each other in obtaining, any
consent, authorization, order or approval of, or any exemption
by, any Governmental Entity or other public or private party,
required to be obtained or made by it or the taking or any action
contemplated by this Agreement.
Section 6.2 Access to Properties and Records. Until the
Closing Date, Dimensional and the Shareholders shall allow SESI
and its authorized representatives full access, during normal
business hours and on reasonable notice, to all of Dimensional's
properties, offices, vehicles, equipment, inventory and other
assets, documents, files, books and records, in order to allow
SESI a full opportunity to make such investigation and inspection
as its desires of Dimensional's business and assets. Dimensional
and the Shareholders shall further use their best efforts to
cause the employees, counsel and regular independent certified
public accountants of Dimensional to be available upon reasonable
notice to answer questions of SESI's representatives concerning
the business and affairs of Dimensional, and shall further use
their best efforts to cause them to make available all relevant
books and records in connection with such inspection and
examination, including without limitation work papers for all
audits and reviews of financial statements of Dimensional.
Section 6.3 Conduct of Business. From and after the date of
this Agreement and until the Closing Date, SESI and Dimensional
shall each conduct their respective businesses in the ordinary
course and consistently with past practice, except as expressly
required or otherwise permitted by this Agreement, and shall not
take or permit any action which would cause any of their
representations made in this Agreement not to be true and correct
on the Closing Date.
Section 6.4 Public Statements. Prior to the Closing Date,
none of the parties to this Agreement shall, and each party shall
use its best efforts so that none of its advisors, officers,
directors or employees shall, except with the prior written
consent of the other parties, publicize, announce or describe to
any third person, except their respective advisors and employees,
the execution or terms of this Agreement, the parties hereto or
the transactions contemplated hereby, except as required by law
or as required pursuant to this Agreement to obtain the consent
of such third person; provided, in any case, that SESI may make
such disclosures and announcements as may be necessary or
advisable under applicable securities laws.
Section 6.5 No Solicitation. The Shareholders and
Dimensional will not to prior to the Closing Date or the
termination of this Agreement pursuant to Section 9.1, (nor will
they permit any of their affiliates or any of Dimensional's
officers, directors or agents to) directly or indirectly solicit
or participate or engage in or initiate any negotiations or
discussions, or enter into or authorize any agreement or
agreements in principle, or announce any intention to do any of
the foregoing, with respect to any offer or proposal to acquire
all or any significant part of Dimensional's business and
properties or any Dimensional Common Stock whether by merger,
purchase of assets, purchase of stock or otherwise. The
Shareholders and Dimensional will notify SESI promptly upon
receipt of any inquiry, offer or other communication from any
third party regarding any such activities.
Section 6.6 Update Information. Each party hereto will
promptly disclose to the other any information contained in its
representations and warranties that because of an event occurring
after the date hereof is incomplete or no longer correct;
provided, however, that none of such disclosures will be deemed
or modified, amend, or supplement the representations and
warranties of such party, unless the other party consents to such
modification, amendment, or supplement in writing.
ARTICLE 7
CLOSING CONDITIONS
Section 7.1 Conditions Applicable to all Parties. The
respective obligations of each party to consummate the
transactions contemplated by this Agreement shall be subject to
the satisfaction or, where permissible, waiver by such party of
the following conditions at or prior to the Closing Date:
(a) No statute, rule, regulation, executive order,
decree, preliminary or permanent injunction or restraining order
shall have been enacted, entered, promulgated or enforced by any
court of competent jurisdiction or other Governmental Entity
which prohibits or restricts the consummation of the transactions
contemplated by this Agreement, and no action, suit, claim or
proceeding by a state or federal Governmental Entity before any
court or other Governmental Entity shall have been commenced and
be pending which seeks to prohibit or restrict the consummation
of the transactions contemplated by this Agreement.
(b) SESI and Dimensional shall have received an
opinion of Jones, Walker, Waechter, Poitevent, Carrere & Denegre
L.L.P. to the effect that the Merger constitutes a reorganization
within the meaning of Sections 368(a)(1)(A) and 368(a)(2)(D) of
the Code, that the Shareholders will recognize no gain or loss
for federal income tax purposes with respect to SESI Common Stock
received by them in connection with the Merger, and that no gain
or loss for federal income tax purposes will be recognized by
SESI, Dimensional Acquisition or Dimensional as a result of the
Merger.
(c) Each Person specified in Exhibit "C" shall have
entered into an Employment Agreement having the terms specified
therein.
Section 7.2 Conditions to Obligations of SESI and
Dimensional Acquisition. The obligations of SESI and Dimensional
Acquisition to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of the following
conditions unless waived by SESI and Dimensional Acquisition:
(a) The representations and warranties of Dimensional
and the Shareholders set forth in this Agreement shall be true
and correct in all material respects as of the date of this
Agreement and as of the Closing Date as though made on and as of
the Closing Date, except as otherwise contemplated by this
Agreement, and Dimensional and the Shareholders shall have
performed in all material respects all obligations required to be
performed by them under this Agreement at or prior to the Closing
Date.
(b) All consents and approvals of third parties
necessary for consummation of the transactions contemplated by
this Agreement shall have been obtained. Dimensional and the
Shareholders shall have used their best efforts to obtain all
necessary permits, authorizations, consents and approvals
required by such Governmental Entities prior to the Closing Date.
(c) The Shareholders and other parties thereto shall
have executed and delivered the Custodial Agreement.
(d) SESI shall have had a full opportunity to conduct
inspections of the operating assets and books and records of
Dimensional. Dimensional shall have provided SESI certified
copies of its Articles of Incorporation and Bylaws and
certificates of existence, good standing and qualification to do
business as a foreign corporation, certified by the Secretary of
State of the State of Louisiana.
(e) SESI shall have received a certificate of a duly
authorized officer of Dimensional, dated the Closing Date,
certifying as to the incumbency of any person executing this
Agreement or any certificate or other document delivered in
connection with this Agreement and certifying as to such other
matters as SESI shall reasonably request.
(f) Any and all changes made to the Disclosure
Schedule or to the representations and warranties of Dimensional
and the Shareholders shall be satisfactory in all respects to
SESI.
Section 7.3 Conditions to Obligations of Dimensional and the
Shareholders. The obligations of Dimensional and the
Shareholders to consummate the transactions contemplated by this
Agreement are subject to the satisfaction for the following
conditions, unless waived by all of the Shareholders:
(a) The representations and warranties of SESI and
Dimensional Acquisition set forth in this Agreement shall be true
and correct in all material respects as of the date of this
Agreement and as of the Closing Date as though made on and as of
the Closing Date, except as otherwise contemplated by this
Agreement, and SESI and Dimensional Acquisition shall have
performed in all material respects all obligations required to be
performed by them under this Agreement at or prior to the Closing
Date.
(b) Dimensional and the Shareholders shall have
received a certificate of a duly authorized officer of SESI and
Dimensional Acquisition, dated the Closing Date, and certifying
as to the incumbency of any person executing this Agreement or
any certificate or other document delivered in connection with
this Agreement and certifying such other matters as Dimensional
and the Shareholders shall reasonably request.
ARTICLE 8
POST-CLOSING COVENANTS
Section 8.1 Bonus Pool. SESI will cause Dimensional
Acquisition following the Closing Date to establish an employee
bonus pool for its employees for the 12 month periods ending
August 31, 1997, 1998 and 1999 in accordance with this Section
8.1. If Dimensional Acquisition's income before bonus, income
taxes, depreciation, depletion and goodwill amortization as
determined in accordance with generally accepted accounting
principals exceeds $1,000,000 in any of these periods then a
bonus pool of 20% of the excess will be established for that
period for the benefit of the Shareholders employed by
Dimensional Acquisition in accordance with the terms of the
Employment Agreements.
Section 8.2 Registration Rights.
(a) The Shareholders may, acting together, jointly
request in writing that SESI effect the registration under the
Securities Act of all or any part of the Registrable Shares owned
by the Shareholders. Thereupon, SESI shall, as expeditiously as
possible, take such steps as are necessary to effect the
registration of all Registrable Shares that SESI has been
requested to so register. SESI shall be obligated to prepare and
file at its expense one registration statement under the
Securities Act pursuant to this Section 8.2(a); provided,
however, that SESI may for up to a 90 day period defer filing a
registration statement and from time to time suspend the ability
of the Shareholders to resell Registrable Shares pursuant to such
registration statement if SESI reasonably concludes, after
consultation with the Shareholders, that filing a registration
statement or updating the prospectus contained therein would (i)
interfere with or adversely affect the negotiation or completion
of any transaction that is being contemplated by SESI at the time
the right to delay is exercised or (ii) involve an initial or
continuing disclosure obligation that would not be in the best
interest of SESI's stockholders. If at any time SESI defers
filing a registration statement or suspends the ability to sell
the Registrable Shares pursuant to such registration statement,
SESI shall use its best efforts to file such registration
statement or permit resales of Registrable Shares pursuant to
such registration statement as soon as thereafter as practicable;
provided, however, that the foregoing shall not require SESI to
alter its actions with respect to any pending corporate
developments or business transactions of the nature described in
clauses (i) and (ii) above.
(b) Whenever SESI proposes to file a registration
statement (other than pursuant to Section 8.2(a)) relating to
SESI Common Stock proposed to be sold for SESI's account at any
time and from time to time, it will, prior to such filing, given
written notice to all Shareholders of its intention to do so and,
upon the written request of a Shareholder or Shareholders given
within 30 days after SESI provides such notice (which request
shall state the intended method of disposition of such
Registrable Shares), SESI shall use its best efforts to cause all
Registrable Shares that SESI has been requested by such
Shareholder or Shareholders to register to be registered under
the Securities Act to the extent necessary to permit their sale
or other disposition in accordance with the intended methods of
distribution specified in the request of such Shareholder or
Shareholders; provided that SESI shall have the right to postpone
or withdraw any registration effected pursuant to this Section
8.2(b) without obligation to any Shareholder. In connection with
any offering under this Section 8.2(b) involving an underwriting,
SESI shall not be required to include any Registrable Shares in
such offering unless the holders thereof accept the terms of the
underwriting as agreed upon between SESI and the underwriters
selected by it (provided that such terms must be consistent with
this Agreement), and then only in such quantity as will not, in
the opinion of the underwriters, jeopardize the success of the
offering by SESI. If in the opinion of the managing underwriter
the registration of all, or part of, the Registrable Shares that
the Shareholders have requested to be included would materially
and adversely affect such public offering, then SESI shall be
required to include in the underwriting only that number of
Registrable Shares, if any, that the managing underwriter
believes may be sold without causing such adverse effect.
(c) SESI will pay all the expenses incurred by SESI in
complying with this Section 8.2, including, without limitation,
all registration and filing fees, exchange listing fees, printing
expenses, fees, and expenses of counsel for SESI, state "blue
sky" fees and expenses, and the expense of any special audits
incident to or required by any such registration, but excluding
underwriting discounts, selling commissions, and the fees and
expenses of selling Shareholders' own counsel.
(d) Each Shareholder agrees not to effect any public
sale or distribution (including sales pursuant to Rule 144) of
Registrable Shares during the seven (7) days prior to (provided
that such Shareholders receive a notice from SESI of a
commencement of such 7-day period) and up to a 180-day period
beginning on the effective date of any underwritten registration
effected pursuant to Section 8.2(a) or any registration effected
pursuant to Section 8.2(b) in which Registrable Shares are
included (except as part of such underwritten registration), that
may be requested by the underwriters managing the public
offering.
(e) If and whenever SESI is required by the provisions
of this Agreement to use its best efforts to effect the
registration of any of the Registrable Shares under the
Securities Act, SESI shall file with the Securities and Exchange
Commission a registration statement with respect to such
Registrable Shares and use its best efforts to cause that
registration statement to become and remain effective and any
amendments and supplements to the registration statement and the
prospectus included in the registration statement as may be
necessary to keep the registration statement effective, in the
case of a firm commitment underwritten public offering, until
each underwriter has completed the distribution of all securities
purchased by it and, in the case of any other offering, until the
earlier of the sale of all Registrable Shares covered thereby or
90 days after the effective date thereof.
(f) Each holder of Registrable Shares included in any
registration shall furnish to SESI such information regarding
such holder and the distribution proposed by such holder as SESI
may request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in
this Section 8.2.
(g) SESI agrees to:
(i) comply with the requirements of Rule 144(c)
under the Securities Act with respect to current public
information about SESI;
(ii) use its best efforts to file with the
Securities and Exchange Commission in a timely manner all reports
and other documents required of SESI under the Securities Act and
the Exchange Act; and
(iii) furnish to any holder of Registrable Shares
upon request (i) a written statement by SESI as to its compliance
with the requirements of Rule 144(c) and the reporting
requirements of the Securities Act and the Exchange Act, (ii) a
copy of the most recent annual or quarterly report of SESI, and
(iii) such other reports and documents of SESI as such holder may
reasonably request to avail itself of any similar rule or
regulation of the Securities and Exchange Commission allowing it
to sell any such securities without registration.
ARTICLE 9
TERMINATION AND AMENDMENT
Section 9.1 Termination. This Agreement may be terminated
and may be abandoned at any time prior to the Closing Date:
(a) by mutual consent of SESI and Dimensional;
(b) by SESI or Dimensional, as the case may be, if (a)
there shall have been a material breach of any representation,
warranty, covenant or agreement on the part of Dimensional or the
Shareholders or on the part of SESI or Dimensional Acquisition,
as the case may be, which breach shall not have been cured prior
to the earlier of (i) 10 days following notice of such breach and
(ii) the Closing Date; or (b) any permanent injunction or other
order of a court or other competent Governmental Entity
preventing the transactions contemplated by this agreement shall
have become final and nonappealable; or
(c) by SESI or Dimensional if the transactions
contemplated by this Agreement shall not have been consummated on
or before September 30, 1996; provided, that the right to
terminate this Agreement under this Section 9.1(c) shall not be
available to any party whose breach of its representations and
warranties in this Agreement or whose failure to perform any of
its covenants and agreements under this Agreement has resulted in
the failure of the transactions contemplated by this agreement to
occur on or before such date.
Section 9.2 Effect of Termination. In the event of a
termination of this Agreement as provided in Section 9.1, this
Agreement shall forthwith become void and there shall be no
liability or obligation under any provisions hereof on the part
of SESI or Dimensional or their respective officers, directors or
stockholders, except (a) pursuant to the covenants and agreements
contained in Section 11.1 and this Section 9.2 and (b) to the
extent that such termination results from the willful material
breach by a party hereto of any of its representations,
warranties, covenants or agreements set forth in this Agreement,
in which case the non-breaching party shall have a right to
recover its damages caused thereby.
Section 9.3 Amendment. This Agreement may not be amended
except by an instrument in writing signed by each of the parties
hereto.
Section 9.4 Extension; Waiver. At any time prior to the
Closing Date, the parties hereto may, in their respective sole
discretion and to the extent legally allowed, (a) extend the time
for the performance of any of the obligations or other acts of
the other parties hereto; (b) waive any inaccuracies in the
representations and warranties contained herein or in any
document delivered pursuant thereto; and (c) waive compliance
with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in a written instrument
signed by or on behalf of such party.
ARTICLE 10
INDEMNIFICATION; REMEDIES
Section 10.1 Indemnification by Shareholders. Except as
otherwise expressly provided in this Article 10, the Shareholders
shall defend, indemnify and hold harmless SESI and each of SESI's
officers, directors, employees, Affiliates, successors and
assigns (SESI and such persons, collectively, "SESI's Indemnified
Persons"), and shall reimburse SESI's Indemnified Persons, for,
from and against each and every demand, claim, action, loss
(which shall include any diminution in value), liability,
judgment, damage, cost and expense (including, without
limitation, interest, penalties, costs of preparation and
investigation, and the reasonable fees, disbursements and
expenses of attorneys, accountants and other professional
advisors) (collectively, "Losses") imposed on or incurred by
SESI's Indemnified Persons, directly or indirectly, relating to,
resulting from or arising out of: (a) any inaccuracy in any
representation or warranty of any Shareholder in this Agreement
or any certificate, document or other instrument delivered or to
be delivered pursuant hereto in any respect whether or not SESI's
Indemnified Persons relied thereon or had knowledge thereof or
(b) any breach or nonperformance of any covenant, agreement or
other obligation of the Shareholders under this Agreement or any
certificate, document or other instrument delivered or to be
delivered pursuant hereto; provided, however, that, except for a
knowing and intentional breach of any representation or warranty
of the Shareholders in this Agreement (as to which there shall be
no Minimum Amount), Shareholders shall have no liability under
Section 10.1(a) unless and until the aggregate of all Losses
resulting therefrom exceeds $25,000 (the "Shareholder's Minimum
Amount"), in which event Shareholder shall be liable for all
Losses in excess of Shareholder's Minimum Amount.
Section 10.2 Indemnification by SESI. Except as otherwise
expressly provided in this Article 10, SESI shall defend,
indemnify and hold harmless to Shareholders and each of the
Shareholders' successors and assigns (Shareholder and such
persons, collectively, "Shareholders' Indemnified Persons"), and
shall reimburse Shareholders' Indemnified Persons for, from and
against all Losses imposed on or incurred by Shareholders's
Indemnified Persons, directly or indirectly, relating to,
resulting from or arising out of: (a) any inaccuracy in any
representation or warranty in any respect, whether or not
Shareholders' Indemnified Persons relied thereon or had knowledge
thereof, or (b) any breach or nonperformance of any covenant,
agreement or other obligation of SESI under this Agreement or any
certificate, document or other instrument delivered or to be
delivered pursuant hereto; provided, however, that SESI shall
have no liability under this Section 10.2(b) unless and until the
aggregate of all Losses exceeds $25,000 ("SESI Minimum Amount"),
in which event SESI shall be liable for all Losses in excess of
SESI's Minimum Amount.
Section 10.3 Notice and Defense of Third Party Claims. If
any third party demand, claim, action or proceeding shall be
brought or asserted under this Article 10 against an indemnified
party or any successor thereto (the "Indemnified Person") in
respect of which indemnity may be sought under this Article 10
from an indemnifying person or any successor thereto (the
"Indemnifying Person"), the Indemnified Person shall give prompt
written notice thereof to the Indemnifying Person who shall have
the right to assume its defense, including the hiring of counsel
reasonably satisfactory to the Indemnified Person and the payment
of all expenses; except that any delay or failure to so notify
the Indemnifying Person shall relieve the Indemnifying Person of
its obligations under this Article 10 only to the extent, if at
all, that it is prejudiced by reason of such delay or failure.
The Indemnified Person shall have the right to employ separate
counsel in any of the foregoing actions, claims or proceedings
and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the
Indemnified Person unless both the Indemnified Person and the
Indemnifying Person are named as parties and the Indemnified
Person shall in good faith determine that representation by the
same counsel is inappropriate. In the event that the
Indemnifying Person, within ten days after notice of any such
action or claim, does not assume the defense thereof, the
Indemnified Personal shall have the right to undertake the
defense, compromise or settlement of such action, claim or
proceeding for the account of the Indemnifying Person, subject to
the right of the Indemnifying Person to assume the defense of
such action, claim or proceeding with counsel reasonably
satisfactory to the Indemnified Person at any time prior to the
settlement, compromise or final determination thereof. Anything
in this Article 10 to the contrary notwithstanding, the
Indemnifying Person shall not, without the Indemnified Person's
prior consent, settle or compromise any action or claim or
consent to the entry of any judgment with respect to any action,
claim or proceeding for anything other than money damages paid by
the Indemnifying Person. The Indemnifying Person may, without
the Indemnified Person's prior consent, settle or compromise any
such action, claim or proceeding or consent to entry of any
judgment with respect to any such action or claim that requires
solely the payment of money damages by the Indemnifying Person
and that includes as an unconditional term thereof the release by
the claimant or the plaintiff of the Indemnified Person from all
liability in respect of such action, claim or proceeding.
ARTICLE 11
MISCELLANEOUS
Section 11.1 Confidentiality. Until the Closing Date and
subsequent to the termination of this Agreement pursuant to
Section 9.1, SESI will keep confidential and will not disclose to
any third party any information obtained by it from Dimensional
or the Shareholder's representatives in connection with this
Agreement except (a) that information may be disclosed by SESI to
its advisors in connection with the negotiation of and the
activities conducted pursuant to this Agreement, or (b) to the
extent that such information is or becomes generally available to
the public through no act or omission of SESI in violation of
this Agreement.
Section 11.2 Survival of Representations, Warranties and
Agreements. The representations, warranties, covenants and
agreements in this Agreement (or in any Exhibit hereto) or in any
instrument delivered pursuant to this Agreement shall survive the
Closing and shall not be limited or affected by any investigation
by or on behalf of any party hereto.
Section 11.3 Notices. All notices hereunder must be in
writing and shall be deemed to have given upon receipt of
delivery by: (a) personal delivery to the designated individual,
(b) certified or registered mail, postage prepaid, return receipt
requested, (c) a nationally recognized overnight courier service
(against a receipt therefor) or (d) facsimile transmission with
confirmation of receipt. All such notices must be addressed as
follows or such other address as to which any party hereto may
have notified the other in writing:
If to SESI or Dimensional Acquisition, to:
1503 Engineers Road
Belle Chase, LA 70037
Attention: Terence Hall
Facsimile transmission No.: 504-393-0003
if to Dimensional:
1912 Engineers Road
Belle Chasse, LA 70037
Facsimile transmission No.: 504-
of if to the Shareholders, to:
1912 Engineers Road
Belle Chasse, LA 70037
Facsimile transmission No.:
Section 11.4 Headings; Gender. When a reference is made in
this Agreement to a section, exhibit or schedule, such reference
shall be to a section, exhibit or schedule of this Agreement
unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement. All personal pronouns used in this Agreement shall
include the other genders, whether used in the masculine,
feminine or neuter gender, and the singular shall include the
plural and vice versa, whenever and as often as may be
appropriate.
Section 11.5 Entire Agreement; No Third Party Beneficiaries.
This Agreement (including the documents, exhibits and instruments
referred to herein) (a) constitutes the entire agreement and
supersedes all prior agreements, and understandings and
communications, both written and oral, among the parties with
respect to the subject matter hereof, and (b) is not intended to
confer upon any person other than the parties hereto any rights
or remedies hereunder.
Section 11.6 Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of
Louisiana without regard to any applicable principles of
conflicts of law.
Section 11.7 Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned
by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other
parties.
Section 11.8 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced
by reason of any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected
in any adverse manner to either party. Upon such determination
that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible, and in any case such term or
provision shall be deemed amended to the extent necessary to make
it no longer invalid, illegal or unenforceable.
Section 11.9 Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original
and all of which taken together shall constitute one and the same
document.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed themselves or by their respective duly
authorized officers as of the date first written above.
SUPERIOR ENERGY SERVICES, INC.
By: /s/ Terence Hall
Terence Hall
President
DIMENSIONAL OIL FIELD ACQUISITION, INC.
By: /s/ Terence Hall
Terence Hall
President
DIMENSIONAL OIL FIELD SERVICES, INC.
By: /s/ Emmett E. Crockett
Emmett E. Crockett
President
SHAREHOLDERS:
/s/ Emmett E. Crockett
Emmett E. Crockett
/s/ Evelyn Crockett
Evelyn Crockett
/s/ George K. Crockett
George K. Crockett
/s/ Robert L. Crockett
Robert L. Crockett