AGREEMENT AND PLAN OF MERGER
Among
SUPERIOR ENERGY SERVICES, INC.,
BAYTRON ACQUISITION, INC.
and
BAYTRON, INC.
Dated July 30, 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........... 4
Section 2.4 The Effective Time; Effect of Merger...... 4
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 Baytron............ 5
Section 3.2 Delivery and Exchange of Certificates...... 5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
AND BAYTRON............................................ 6
Section 4.1 Ownership.................................. 6
Section 4.2 Authority.................................. 6
Section 4.3 Noncontravention........................... 6
Section 4.4 Legal Proceedings.......................... 6
Section 4.5 Investment Representation.................. 6
Section 4.6 Organization; Qualification; Subsidiaries. 8
Section 4.7 Capital Stock.............................. 8
Section 4.8 Corporate Authorization; Enforceability. 8
Section 4.9 No Conflict................................ 9
Section 4.10 Consent................................... 9
Section 4.11 Charter and Bylaws........................ 9
Section 4.12 Baytron'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................................. 18
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............. 18
Section 5.1 Organization............................... 18
Section 5.2 Capitalization............................. 18
Section 5.3 Authority; Enforceability.................. 19
Section 5.4 Consents and Approvals; Conflicts.......... 19
Section 5.5 SESI 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 to Merger................ 20
Section 6.2 Access to Properties and Records............ 20
Section 6.3 Conduct of Business......................... 20
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
Baytron Acquisition................................ 22
Section 7.3 Conditions to Obligations of Baytron and
Shareholders....................................... 22
ARTICLE 8 POST-CLOSING COVENANTS............................. 23
Section 8.1 Bonus Pool.................................. 23
Section 8.2 Motor Home.................................. 23
Section 8.3 Location.................................... 23
Section 8.4 Registration and Repurchase Rights.......... 23
ARTICLE 9 TERMINATION AND AMENDMENT.......................... 26
Section 9.1 Termination................................. 26
Section 9.2 Effect of Termination....................... 26
Section 9.3 Amendment................................... 27
Section 9.4 Extension; Waiver........................... 27
ARTICLE 10 INDEMNIFICATION; REMEDIES......................... 27
Section 10.1 Indemnification by Seller.................. 27
Section 10.2 Indemnification by SESI.................... 27
Section 10.3 Notice and Defense of Third Party Claims. 28
ARTICLE 11 MISCELLANEOUS.................................... 28
Section 11.1 Confidentiality........................... 28
Section 11.2 Survival of Representations, Warranties
and Agreements.................................... 29
Section 11.3 Notices................................... 29
Section 11.4 Headings; Gender.......................... 29
Section 11.5 Entire Agreement; No Third Party
Beneficiaries..................................... 30
Section 11.6 Governing Law............................. 30
Section 11.7 Assignment................................ 30
Section 11.8 Severability.............................. 30
Section 11.9 Counterparts.............................. 30
Exhibits
A - Form of Certificate of Merger
B - Form of Employment Agreement
C - Form of Disclosure Schedule
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated July 30, 1996 (this
"Agreement"), is by and among Superior Energy Services, Inc., a
Delaware corporation ("SESI"), its wholly-owned subsidiary,
Baytron Acquisition, Inc., a Louisiana corporation ("Baytron
Acquisition"), and Baytron, Inc., a Louisiana corporation
("Baytron"), and the following shareholders of Baytron: Xxxxx
Xxxxxxx and Xxxx Xxxxxxx (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 Baytron and the Boards of
Directors of SESI and Baytron Acquisition have determined it to
be desirable and mutually advantageous to enter into a business
combination to be effected by the merger of Baytron with and into
Baytron 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.
"Baytron 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 Baytron as of and for the fiscal year ended
September 30, 1995.
"Baytron Common Stock" shall mean the common stock, without
par value, of Baytron.
"Baytron Financial Statements" shall mean the Baytron Annual
Financial Statements and the Baytron Interim Financial
Statements, collectively.
"Baytron Interim Financial Statements" shall mean the
unaudited balance sheet, and the related unaudited statements of
income and cash flows of Baytron as of and for the seven-month
period ended April 30, 1996.
"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."
"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.
"Disclosure Schedule" shall mean the disclosure schedules
and other documents attached hereto as Exhibit "C" prepared by
Baytron 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.
"Exercise Price" means the average of the daily last sales
price of SESI Common Stock on the Nasdaq National Market as
reported in the Wall Street Journal for the 20 consecutive
trading days immediately preceding the date SESI receives a
request for registration of Registrable Shares pursuant to
Section 8.4(a).
"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 Baytron 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 Baytron or its property is subject, which provides for
future payments of more than $5,000 in the aggregate.
"Multiemployer Plan" means a plan or arrangement as defined
in Section 4001(a)(3) and 3(37) of ERISA.
"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 Effective Time and, with respect to any Tax period
that includes but does not end at the Effective Time, the portion
of such period that ends at and includes the Effective Time.
"Proceedings" shall mean 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 cannot then be sold
without restriction under Rule 145(d) under the Securities Act.
"Returns" shall mean 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.
"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 March 31,
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.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Surviving Corporation" shall mean Baytron Acquisition
following the Effective Time.
"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, Baytron
shall merge with and into Baytron Acquisition, the separate
existence of Baytron shall cease, and Baytron 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 & Xxxxxxx L.L.P. in
New Orleans, Louisiana, commencing at 10:00 a.m., local time, on
or before July 31, 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 officers of Baytron
Acquisition shall execute, deliver and acknowledge the
Certificate of Merger and the appropriate officers of Baytron and
Baytron 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, respectively, 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 upon the filing of the Certificate of
Merger with the Secretary of State of the State of Louisiana, or
at such other time and date as is provided in the Certificate of
Merger pursuant to the mutual agreement of Baytron and SESI (the
"Effective Time"). Upon the Effective Time and by virtue of the
Merger, the Surviving Corporation shall possess all the rights,
privileges and franchises possessed by Baytron and the Surviving
Corporation shall be responsible for all of the liabilities and
obligations of Baytron in the same manner as if the Surviving
Corporation 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 Baytron Acquisition will be the
directors and officers of the Surviving Corporation.
(b) The Articles of Incorporation of Baytron
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 "Baytron, Inc."
(c) The By-laws of Baytron 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 Baytron.
(a) At the Effective Time, by reason of the Merger,
each of the issued and outstanding shares of Baytron Common Stock
immediately prior to the Effective Time shall, by virtue of the
Merger, be converted into the right to receive (i) 550 shares of
SESI Common Stock (i.e., 550,000 shares in the aggregate) and
(ii) $1,100 cash (i.e., $1,100,000 in the aggregate). Each share
of Baytron Common Stock held in treasury shall be canceled.
(b) At the Effective Time, by reason of the Merger,
each share of Baytron 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
Baytron Acquisition all certificates formerly representing shares
of Baytron Common Stock. Upon such delivery, SESI shall deliver
to each Shareholder a certificate representing the shares of SESI
Common Stock into which such shares of Baytron Common Stock have
been converted together with the cash payment specified in
Section 3.1(a). Until so delivered, each certificate which,
before the Effective Time, represented shares of Baytron Common
Stock, shall be deemed for all purposes to represent the number
of whole shares of SESI Common Stock into which the shares of
Baytron Common Stock theretofore represented thereby shall have
been converted.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDERS AND BAYTRON
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 and
Baytron Acquisition as set forth as follows in Sections 4.1
through 4.5 and (b) each Shareholder and Baytron, jointly,
severally and in solido, represent and warrant to and agree with
SESI and Baytron Acquisition 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
Effective Time will be, the record and beneficial owner of the
number of shares of Baytron 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 Effective Time 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 Baytron 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 the SESI Common
Stock in connection with the Merger 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 the SESI Common Stock acquired by the
Shareholder in connection with the Merger or (ii) pursuant to an
applicable exemption under the Securities Act. In receiving the
SESI Common Stock in connection with the Merger, 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
the 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 represents that he or she is an
"accredited investor" as that term is defined in Regulation D
under the Securities Act and that he or she is able to fend for
himself or herself and can bear the economic risk of his or her
investment in the SESI Common Stock.
(c) 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.
(d) Each Shareholder has received from SESI and has
reviewed with his or her representatives a copy of each of the
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.
(e) Each Shareholder understands that the 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.
(f) Each Shareholder understands that the shares of
SESI Common Stock to be issued in the Merger 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.
(g) 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.
Baytron 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 Baytron are pending. Baytron
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. Baytron has no subsidiaries or
equity interests in any other Person.
Section 4.7 Capital Stock. The authorized capital stock of
Baytron consists of 1,000 shares of Baytron Common Stock, of
which 1,000 shares are issued and outstanding and none are held
in its treasury. All issued and outstanding shares of Baytron
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 Baytron or any security convertible into Baytron Common
Stock and Baytron 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 Baytron Common Stock have been issued in
compliance with all legal requirements and without violation of
any pre-emptive or similar rights.
Section 4.8 No Conflict. Neither the execution and the
delivery of this Agreement by Baytron, 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 Baytron'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 4.9 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 Baytron in connection with the execution,
delivery or performance by Baytron of this Agreement or the
consummation by it of the transactions contemplated hereby.
Section 4.10 Charter and Bylaws. Baytron has made available
to SESI accurate and complete copies of (a) the Articles of
Incorporation and By-laws of Baytron, (b) the stock records of
Baytron and (c) the minutes of all meetings of the Board of
Directors of Baytron, any committees of such board and the
stockholders of Baytron (and all consents in lieu of such
meetings). Such records, minutes and consents accurately reflect
the stock ownership of Baytron and all actions taken by the Board
of Directors, committees and stockholders. Baytron is not in
violation of any provision of its Articles of Incorporation or
By-laws.
Section 4.11 Baytron's Financial Statements. The Disclosure
Schedule contains true and complete copies of the Baytron
Financial Statements. The Baytron Financial Statements (a) have
been prepared from the books and records of Baytron and are
complete, correct and in accordance with the books of account and
records of the Company and (b) accurately and fairly present
Baytron's financial position as of the respective dates thereof
and results of operations and cash flows for the periods then
ended. Baytron has not since the date of the Baytron Interim
Financial Statements incurred any liability or obligation
(whether accrued, absolute, contingent, unliquidated or
otherwise), except (i) liabilities reflected in the Baytron
Interim Financial Statements, (ii) liabilities described in the
notes accompanying the Baytron Annual Financial Statements, (iii)
current liabilities which have arisen since the date of the
Baytron Interim Financial Statements in the ordinary course of
business (none of which is a material liability for breach of
contract, tort or infringement) and (iv) 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 4.12 Accounts Receivable. All of the accounts
receivable reflected on the Baytron Interim Financial Statements
or created thereafter have arisen only from bona fide
transactions in the ordinary course of business, represent valid
obligations owing to Baytron 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 when due, without any counterclaims, setoffs
or other defenses and without provision for any allowance for
uncollectible accounts other than such allowance as appears in
the Baytron Interim Financial Statements.
Section 4.13 Absence of Certain Changes. Since April 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 Baytron. Baytron has not
since April 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, directors or employees;
(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 Baytron 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 Baytron has terminated
or intends to terminate its relationship with Baytron;
(v) waived any right in connection with any aspect of
its business that could have a material effect on the business of
Baytron; or
(w) made any agreement or commitment to do any of the
foregoing.
Section 4.14 Suppliers and Customers. To the best knowledge
of the Shareholders, (a) no supplier providing products,
materials or services to Baytron intends to cease selling such
products, materials or services to Baytron or to limit or reduce
such sales to Baytron or materially alter the terms or conditions
of such sales and (b) no customer of Baytron intends to
terminate, limit or reduce its or their business relations with
Baytron.
Section 4.15 Properties.
(a) Baytron has good title to all material properties
and assets reflected on the Baytron 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 furnished to SESI. Baytron is in
full compliance with and has not received a notice of default
under any Lease and Baytron 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 Baytron.
(c) Baytron does not own, and has never owned, any
real property other than as described in the Disclosure Schedule.
Section 4.16 Permits; Compliance with Laws. Baytron (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 4.17 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. Baytron and each other party to each Material
Contract are in compliance in all material respects with the
provisions of such Material Contract.
Section 4.18 Litigation. There are no Proceedings pending
or threatened against Baytron 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 4.19 Environmental Matters. Baytron is not in
violation of any applicable laws or regulations relating to the
environment and Baytron is not a party to any proposed removal,
remedy or remedial action. Baytron 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 Baytron's leased or owned properties. The properties
currently and previously leased or owned by Baytron 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 4.20 ERISA and Related Matters.
(a) The Disclosure Schedule lists each Employee Plan
that Baytron maintains, administers, contributes to, or has any
contingent liability with respect thereto. Baytron 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 Baytron maintains, or administers. Except as
set forth in the Disclosure Schedule, Baytron has made all
contributions to and has no contingent liability with respect to
any of its Benefit Arrangements. Baytron 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. Baytron 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) Baytron does not maintain, administer, or become
obligated to contribute to or have any contingent liability with
respect to any Multiemployer Plan or any Title IV Plan.
(e) 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.
(f) To the best knowledge of the Shareholders, full
payment has been made of all amounts which Baytron 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.
(g) To the best knowledge of each of the Shareholders,
neither Baytron nor any of its shareholders, directors, officers
or employers has engaged in any transaction with respect to an
Employee Plan that could subject Baytron to a tax, penalty or
liability for a prohibited transaction, as defined in Section 406
of ERISA or Section 4975 of the Code.
(h) To the best knowledge of each of the Shareholders,
Baytron 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 Baytron or a dependent thereof.
(i) 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 Baytron,
any employees or directors of Baytron, or any fiduciary (as
defined in ERISA Section 3(21)) of such Employee Plan or Benefit
Arrangement.
(j) No employee or former employee of Baytron 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.
(k) Baytron 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 4.21 Taxes.
(a) All Returns required to be filed by or on behalf
of Baytron 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 Baytron 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) Baytron 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 Baytron
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) Baytron has furnished or made available to SESI
true and complete copies of: (i) all federal and state income
and franchise tax returns of Baytron 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 Baytron 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 Baytron 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 Baytron, and no notice (either formally
or informally) has been received by Baytron that it has not filed
a Return or paid Taxes required to be filed or paid by it.
(iii) Baytron 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 Baytron.
(v) No action has been taken that would have the
effect of deferring any liability for Taxes for Baytron from any
period prior to the Closing Date to any period after the Closing
Date.
(vi) There are no requests for rulings, subpoenas
or requests for information pending with respect to Baytron.
(vii) No power of attorney has been granted by
Baytron, with respect to any matter relating to Taxes.
(viii) The amount of liability for unpaid Taxes of
Baytron 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 Baytron 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) Baytron 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) Baytron has not issued or assumed any
indebtedness that is subject to section 279(b) of the Code.
(iii) Baytron 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 Baytron and no action has been taken
that would result in any income tax liability to Baytron 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 Baytron.
(vi) Baytron 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) Baytron has not disposed of any property
that has been accounted for under the installment method.
(viii) Baytron is not a party to any interest rate
swap, currency swap or similar transaction.
(ix) Baytron 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 Baytron.
(x) Baytron has not participated in any
international boycott as defined in Code Section 999.
(xi) Baytron 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) Baytron 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) Baytron 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 Baytron;
(ii) The current tax basis of the assets of
Baytron;
(iii)The net operating losses of Baytron by
taxable year;
(iv) The net capital losses of Baytron; and
(v) The tax credit carry overs of Baytron.
Section 4.22 Transactions with Certain Persons. Except for
employment relationships in the ordinary course of business, no
employee of Baytron or any of their Affiliates is presently a
party to any transaction with Baytron, 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 4.23 Intellectual Property. Baytron 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
Baytron. There are no limitations contained in any such
agreements which, upon consummation of the Merger, will alter any
such rights, breach any such agreement or any third-party vendor,
or require payments of additional sums thereunder. Baytron 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 Baytron to use, copy, modify or
distribute the same.
Section 4.24 Insurance. SESI has been provided access to
all insurance policies or binders which relate to Baytron's
business. All premiums due under such policies and binders have
been paid or accrued for on the Baytron 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 Baytron and no notice of disallowance
of any claim under any insurance policy or binder, whether or not
currently in effect, has been received by Baytron. Baytron has
no liability for or exposure to any premium expense for expired
policies and there are no current claims by Baytron under any
such policy or binder nor are there any insured losses for which
claims have not been made.
Section 4.25 Safety and Health. The property and assets of
Baytron 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. Baytron
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 4.26 Bank Accounts; Powers of Attorney. The
Disclosure Schedule sets forth with respect to each bank account
or cash account maintained 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 4.27 Compensation Agreements. The Disclosure
Schedule lists all written employment, commission, bonus or other
compensation and consulting agreements to which Baytron is a
party. Except as set forth on the Disclosure Schedule, Baytron
is not a party to any written or oral employment, commission,
bonus or other compensation or consulting agreement which Baytron
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 4.28 Director and Officer Indemnification. The
directors and officers of Baytron are not entitled to
indemnification by Baytron, 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 Baytron.
Section 4.29 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 4.30 Effectiveness of Representations and
Warranties. All of the representations and warranties of Baytron
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 Baytron and the Shareholders on and as of the
Closing Date.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF XXXX
XXXX represents and warrants to and agrees with Baytron and
the Shareholders as follows:
Section 5.1 Organization. SESI and Baytron 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,
17,320,916 of which are validly issued and outstanding, and
5,000,000 of preferred stock, $.001 par value, none of which are
outstanding. SESI holds of record all of the issued and
outstanding shares of Baytron Acquisition capital stock.
Section 5.3 Authority; Enforceability. Each of SESI and
Baytron 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 Merger
and of the other transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of SESI
and Baytron Acquisition and no other corporate proceedings on the
part of SESI or Baytron 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 Baytron Acquisition and constitutes a valid and binding
obligation of each of SESI and Baytron Acquisition, enforceable
against 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 SESI and Baytron Acquisition of this
Agreement or the consummation by SESI and Baytron Acquisition of
the transactions contemplated hereby. Neither the execution and
delivery of this Agreement by SESI and Baytron 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 Baytron 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
Baytron Acquisition or to which either SESI or Baytron
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 SESI or Baytron 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 SESI or Baytron
Acquisition or (b) either SESI's or Baytron Acquisition's ability
to consummate any of the transactions contemplated hereby.
Section 5.5 SESI 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 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 on and
as of the Closing Date.
ARTICLE 6
PRE-CLOSING COVENANTS
Section 6.1 Legal Requirements to Merger. 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 Merger and will promptly
cooperate with and furnish information to each other in
connection with any such requirements imposed upon any of them in
connection with the Merger. Each of Baytron, SESI, Baytron
Acquisition 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 in
connection with the Merger or the taking or any action
contemplated by this Agreement.
Section 6.2 Access to Properties and Records. Until the
Effective Time, Baytron and the Shareholders shall allow SESI and
its authorized representatives full access, during normal
business hours and on reasonable notice, to all of Baytron'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 Baytron's business and assets. Baytron and the
Shareholders shall further use their best efforts to cause the
employees, counsel and regular independent certified public
accountants of Baytron to be available upon reasonable notice to
answer questions of SESI's representatives concerning the
business and affairs of Baytron, 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 Baytron.
Section 6.3 Conduct of Business. From and after the date of
this Agreement and until the Closing Date, Baytron and SESI 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 Effective Time,
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 Baytron
will not, prior to the Effective Time or the termination of this
Agreement pursuant to Section 9.1, (nor will they permit any of
their affiliates or any of Baytron'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 Baytron's business and properties or any Baytron Common Stock
whether by merger, purchase of assets, purchase of stock or
otherwise. The Shareholders and Baytron 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 Merger
shall be subject to the satisfaction or, where permissible,
waiver by such party of the following conditions at or prior to
the Effective Time:
(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 Merger 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 Merger.
(b) SESI and Baytron shall have received an opinion of
Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx 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 the 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, Baytron Acquisition or Baytron as a result of the Merger.
(c) Each Person specified in Exhibit "B" shall have
entered into an Employment Agreement having the terms specified
therein.
Section 7.2 Conditions to Obligations of SESI and Baytron
Acquisition. The obligations of SESI and Baytron Acquisition to
effect the Merger are subject to the satisfaction of the
following conditions unless waived by SESI and Baytron
Acquisition:
(a) The representations and warranties of Baytron 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 Baytron 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 Merger shall have been
obtained. Baytron shall have used its best efforts to obtain all
necessary permits, authorizations, consents and approvals
required by such Governmental Entities prior to the Closing Date.
(c) SESI and Baytron Acquisition shall have had a full
opportunity to conduct inspections of the operating assets and
books and records of Baytron.
(d) Baytron 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 Baytron, 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 Baytron and
the Shareholders shall be satisfactory in all respects to SESI.
Section 7.3 Conditions to Obligations of Baytron and
Shareholders. The obligations of Baytron and the Shareholders to
effect the Merger are subject to the satisfaction for the
following conditions, unless waived by Baytron and all of the
Shareholders:
(a) The representations and warranties of SESI and
Baytron 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 Baytron 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) Baytron and the Shareholders shall have received a
certificate of a duly authorized officer of SESI and Baytron
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 Baytron or the
Shareholders shall reasonably request.
ARTICLE 8
POST-CLOSING COVENANTS
Section 8.1 Bonus Pool. SESI will cause Baytron Acquisition
following the Effective Time to establish an employee bonus pool
for its employees for the 12 month periods ending July 31, 1997,
1998 and 1999 in accordance with this Section 8.1. If Baytron
Acquisitions' income before bonus and income taxes as determined
in accordance with generally accepted principles exceeds
$470,000, in any of these periods then a bonus pool of $50,000
will be established for that year for the benefit of the Baytron
Acquisition's employees to be allocated as determined by Xxx or
Xxxx Xxxxxxx.
Section 8.2 Motor Home. Prior to the Closing Date (a)
Baytron shall cause the motor home it owns to be conveyed to Mr.
Xxx Xxxxxxx in such a manner so that following the Closing
Baytron Acquisition will not recognize a loss for financial
reporting purposes and (b) Xx. Xxxxxxx shall assume any
obligations, including those related to indebtedness for borrowed
money, related to the motor home.
Section 8.3 Location. SESI shall cause Baytron Acquisition
for a period of three years from the Closing Date to maintain its
principal executive office in the offices occupied by Baytron
prior to the Effective Time and will continue to pay $3,000
monthly rent pursuant to a lease agreement mutually satisfactory
to the Shareholders and Baytron Acquisition.
Section 8.4 Registration and Repurchase Rights.
(a) Subject to Section 8.4(b) at any time after
September 30, 1996, 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. If the Shareholders intend to
distribute the Registrable Shares by means of an underwriting,
they shall so advise SESI in their request. 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
8.4(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) If the Shareholders request that SESI effect the
registration of Registrable Shares pursuant to Section 8.4(a),
then SESI shall in lieu of proceeding with filing a registration
statement have the option exercisable within 5 business days of
receipt of such request to purchase all or any portion of the
Registrable Shares requested to be registered pursuant to Section
8.4(a) for the Exercise Price upon the terms and conditions
stated in this Section 8.4(b). This option may be exercised any
number of times and from time to time for all or a portion of the
Registrable Shares requested to be registered pursuant to Section
8.4(a). This option may be exercised by giving written notice to
the Shareholders, which notice shall state (i) the number of
Registrable Shares to be purchased, (ii) the aggregate Exercise
Price for such Registrable Shares and (iii) the date specified
for the closing of such purchase, which date shall not be more
than 10 days after giving such notice.
(c) If SESI declines to take the steps necessary to
effect the registration of Registrable Shares requested by the
Shareholders or suspends the ability of the Shareholders to
resell Registrable Shares pursuant to such registration statement
pursuant to Section 8.4(a) because of pending corporate
developments or business transactions of the nature described in
clauses (i) and (ii) thereof, then the Shareholders shall have
the right upon each such occurrence to require that SESI
repurchase up to 100,000 of the Registrable Shares for the
Exercise Price. This right may be exercised by giving written
notice to SESI, which notice shall state (i) the number of
Registrable Shares to be sold to SESI, (ii) the aggregate
Exercise Price for such Registrable Shares and (iii) the date
specified for the closing of such purchase, which date shall not
be less than 10 days after giving such notice.
(d) Whenever SESI proposes to file a registration
statement (other than pursuant to Section 8.4(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
8.4(d) without obligation to any Shareholder. In connection with
any offering under this Section 8.4(d) 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.
(e) SESI will pay all the expenses incurred by SESI in
complying with this Section 8.4, 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.
(f) 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 8.4(a) or any registration effected
pursuant to Section 8.4(d) in which Registrable Shares are
included (except as part of such underwritten registration), that
may be requested by the underwriters managing the public
offering.
(g) 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.
(h) 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 8.4.
(i) 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 the Merger may be abandoned at any time prior to the
Effective Time:
(a) by mutual consent of SESI and Baytron;
(b) by SESI or Baytron, if (a) there shall have been a
material breach of any representation, warranty, covenant or
agreement on the part of Baytron or the Shareholders or on the
part of SESI or Baytron Acquisition, as the case maybe, 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 consummation
of the Merger shall have become final and nonappealable; or
(c) by SESI, Baytron or any Shareholder if the Merger
shall not have been consummated on or before August 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 Merger to occur on
or before such date.
Section 9.2 Effect of Termination. In the event of a
termination of this Agreement by either Baytron or SESI 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, Baytron Acquisition or
Baytron 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
Effective Time, 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 Seller. Except as otherwise
expressly provided in this Section 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 Seller 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 Baytron or 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 Baytron and 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
Seller shall be liable for all Losses in excess of Seller'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 Article 10 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
the 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 Effective Time and
subsequent to the termination of this Agreement pursuant to
Section 9.1, each of SESI and Baytron Acquisition will keep
confidential and will not disclose to any third party any
information obtained by it from Baytron or Baytron's
representatives in connection with this Agreement except (a) that
information may be disclosed by SESI and Baytron Acquisition to
their 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 or Baytron
Acquisition 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 Baytron Acquisition, to:
0000 Xxxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Facsimile transmission No.: 000-000-0000
if to Baytron, to:
00 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Facsimile transmission No.
or if to the Shareholders, to:
00 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxx
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, except that Baytron Acquisition may assign any or all of
Baytron Acquisition's rights, interests and obligations hereunder
to SESI or to any wholly owned subsidiary of SESI. Subject to
the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
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, SESI, Baytron and the Shareholders 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/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
President
BAYTRON ACQUISITION, INC.
By: /s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
President
BAYTRON, INC.
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
President
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
