OMNI ENERGY SERVICES CORP.
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is dated as of May
17, 2005, among OMNI Energy Services Corp., a Louisiana corporation (the
"Company"), and the purchasers identified on the signature pages hereto (each a
"Purchaser" and collectively the "Purchasers").
RECITALS
WHEREAS, the Company has authorized the sale and issuance to the
Purchasers of an aggregate of 5,000 shares (the "Shares") of the Company's
Series C 9% Convertible Preferred Stock, no par value (the "Series C Stock");
WHEREAS, the Company wishes to issue warrants to the Purchasers to
purchase up to an aggregate of 6,550,000 shares of the Company's Common Stock in
connection with Purchasers' purchase of the Securities; and
WHEREAS, Purchasers desire to purchase and the Company desires to sell the
Shares and the Warrants (as defined below) on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises, representations, warranties and covenants hereinafter set forth and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Purchase and Sale. Pursuant to the terms and conditions set forth in
this Agreement, the Company agrees to sell to the Purchasers, and the Purchasers
hereby agree to purchase the Shares at a purchase price of $1,000.00 per share,
for a total purchase price of $5,000,000 (the "Purchase Price") and three
Warrants in the forms of Exhibit A, Exhibit B and Exhibit C attached hereto
(collectively, the "Warrants") (the Shares and the Warrants are collectively
referred to herein as the "Securities"). The Warrants will be distributed
pro-rata among the Purchasers based on the percentage of the Series C Stock
purchased by each Purchaser.
2. Fees and Expenses. On the Closing Date, the Company shall reimburse the
Purchasers for their expenses (including legal fees and expenses) incurred in
connection with the preparation and negotiation of this Agreement and the
Related Agreements (as defined below), the Purchasers' due diligence review of
the Company and all related matters.
3. Closing, Delivery and Payment.
3.1. Closing. Subject to the terms and conditions herein, the
closing of the transactions contemplated hereby shall occur in two tranches. The
first closing (the "First Closing") shall take place on the date hereof (the
"First Closing Date"), at the offices of Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
("SWSS"), located at 000 X. Xxxxxx, Xxxxx 0000, Xxx Xxxxx, Xxxxxxxxxx. Subject
to the satisfaction of the conditions set forth in Section 7 below, the second
closing (the
"Second Closing") shall take place on August 15, 2005, at SWSS's offices or such
time or place as the Company and Purchasers may mutually agree (such date is
hereinafter referred to as the "Second Closing Date"). 3,500 of the Shares will
be sold and issued in the First Closing and the remaining 1,500 Shares will be
sold and issued in the Second Closing. The Shares and Warrants sold and issued
in each of the respective closings will be, and will be distributed among the
Purchasers, as set forth on Exhibit D.
3.2. Closing Deliverables.
(a) At the First Closing, and as a condition to the
Purchaser's obligations hereunder, the Company will deliver the following to the
Purchasers:
(i) an executed copy of this Agreement;
(ii) an executed copy of the Registration Rights
Agreement attached hereto as Exhibit E (the "Registration Rights Agreement");
(iii) filed stamped copy of the Articles of Amendment,
attached as Exhibit F (the "Amended Articles"), to the Company's Articles of
Incorporation designating the Series C Convertible Preferred Stock filed with
the Louisiana Secretary of State;
(iv) evidence of the closing of the Company's loan with
General Electric Capital Corporation;
(v) stock certificates representing the Shares purchased
at the First Closing; and
(vi) the Warrants purchased at the First Closing.
The Warrants, Registration Rights Agreement and Amended Articles are referred to
herein as the "Related Agreements."
(b) At the First Closing, each Purchaser will deliver the
following to the Company:
(i) an executed copy of this Agreement;
(ii) an executed copy of the Registration Rights
Agreement; and
(iii) the Purchase Price for the Shares to be purchased
by such Purchaser at the First Closing, via wire transfer to an account
designated by the Company.
(c) At the Second Closing, the Company will deliver the
following to the Purchasers:
(i) a certificate certifying that the Company's
representations and warranties set forth in this Agreement continue to be true
and correct in all material respects as of the Second Closing Date and that the
Company has complied with all of its obligations under this Agreement and the
Related Agreements;
(ii) stock certificates representing the Shares issued
at the Second Closing; and
(iii) the Warrants purchased at the Second Closing
(d) At the Second Closing, each Purchaser who is purchasing
Shares in the Second Closing will deliver the following to the Company:
(i) a certificate certifying that such Purchaser's
representations and warranties set forth in this Agreement continue to be true
and correct in all material respects as of the Second Closing Date and that such
Purchaser has complied with all of such Purchaser's obligations under this
Agreement and the Related Agreements; and
(ii) the Purchase Price for the Shares to be purchased
by such Purchaser at the Second Closing, via wire transfer.
4. Representations and Warranties of the Company. Except as set forth in
the Company's filings under the Securities Exchange Act of 1934 (collectively,
the "Exchange Act Filings"), copies of which have been made available to the
Purchasers), the Company hereby represents and warrants to the Purchaser as
follows:
4.1. Organization, Good, Standing and Qualification. Each of the
Company and its active Subsidiaries (as defined below) is an entity duly
incorporated or otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization (as
applicable), with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently conducted.
Neither the Company nor any active Subsidiary is in violation of any of the
provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the active
Subsidiaries is duly qualified to do business and is in good standing as a
foreign corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not, individually or in the aggregate: (i) adversely
affect the legality, validity or enforceability of this Agreement or the Related
Agreements, (ii) have or result in or be reasonably likely to have or result in
a material adverse effect on the results of operations, assets, business or
condition (financial or otherwise) of the Company and the Subsidiaries, taken as
a whole, or (iii) adversely impair the Company's ability to perform fully on a
timely basis its obligations under this Agreement or the Related Agreements (any
of (i), (ii) or (iii), a "Material Adverse Effect").
4.2. Subsidiaries. Each direct and indirect Subsidiary of the
Company, the direct owner of such Subsidiary and its percentage ownership
thereof, is set forth on Exhibit 21.1 to the Company's 10-K for the year ended
December 31, 2004. For the purpose of this Agreement, a "Subsidiary" of any
person or entity means (i) a corporation or other entity whose shares of stock
or other ownership interests having ordinary voting power (other than stock or
other ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the directors of such corporation, or other
persons or entities performing similar functions for such person or entity, are
owned, directly or indirectly, by such person or entity or (ii) a corporation or
other entity in which such person or entity owns, directly or indirectly, more
than 50% of the voting interests at such time.
4.3. Capitalization; Voting Rights.
(a) The authorized capital stock of the Company, as of the
date hereof consists of 45,000,000 shares of common stock par value $0.01, of
which 13,879,565 are issued and outstanding and 5,000,000 shares of preferred
stock no par value, of which 15,000 are designated as Series A 8% Convertible
Preferred Stock, none of which are issued and outstanding, 10,000 shares are
designated as Series B 8% Convertible Preferred Stock, 29 shares of which are
issued and outstanding, and 10,000 shares are designated as Series C 9%
Convertible Preferred Stock, none of which are issued and outstanding. The
authorized capital stock of each active Subsidiary of the Company is set forth
on Schedule 4.3.
(b) Except as disclosed in the Company's Exchange Act Filings
or on Schedule 4.3 there are no outstanding options, warrants, rights (including
conversion or preemptive rights and rights of first refusal), proxy or
stockholder agreements, or arrangements or agreements of any kind for the
purchase or acquisition from the Company of any of its securities other than
this Agreement and the Related Agreements.
(c) All issued and outstanding shares of the Company's Common
Stock: (A) have been duly authorized and validly issued and are fully paid and
nonassessable; and (B) were issued by the Company in full compliance with all
applicable state and federal laws concerning the issuance of securities.
(d) The rights, preferences, privileges and restrictions of
the shares of the Common Stock are as stated in the Company's Articles of
Incorporation, as amended (the "Charter") and pursuant to applicable law.
4.4. Authorization and Binding Obligations. All corporate,
partnership or limited liability company, as the case may be, action on the part
of the Company (including the respective officers and directors) necessary for
the authorization of this Agreement and the Related Agreements, the performance
of all obligations of the Company hereunder and under the other Related
Agreements at the Closing and, the authorization, sale, issuance and delivery of
the Securities has been taken or will be taken prior to the Closing. This
Agreement and the Related Agreements, when executed and delivered will be valid
and binding obligations of each of the Company enforceable against the Company
in accordance with their terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights and general principles of equity that
restrict the availability of equitable or legal remedies.
4.5. Liabilities. Neither the Company nor any of its Subsidiaries
has any material contingent liabilities, except current liabilities incurred in
the ordinary course of business and liabilities disclosed in the Company's
Exchange Act Filings or on Schedule 4.5.
4.6. Agreements; Action. Except as set forth on Schedule 4.6 or as
disclosed in any Exchange Act Filings:
(a) there are no agreements, understandings, instruments,
contracts, proposed transactions, judgments, orders, writs or decrees to which
the Company or any of its Subsidiaries is a party or by which it is bound which
may involve: (A) obligations (contingent or
otherwise) of, or payments to, the Company in excess of $250,000 (other than
obligations of, or payments to, the Company arising from purchase or sale
agreements entered into in the ordinary course of business); or (B) provisions
restricting the development, manufacture or distribution of the Company's
products or services.
(b) Since December 31, 2004, neither the Company nor any of
its Subsidiaries has: (A) declared or paid any dividends, or authorized or made
any distribution upon or with respect to any class or series of its capital
stock; (B) incurred any indebtedness for money borrowed or any other liabilities
(other than ordinary course obligations) individually in excess of $250,000 or,
in the case of indebtedness and/or liabilities individually less than $250,000,
in excess of $250,000 in the aggregate; (C) made any loans or advances to any
person not in excess, individually or in the aggregate, of $250,000, other than
ordinary course advances for travel expenses; or (D) sold, exchanged or
otherwise disposed of any of its assets or rights, other than the sale of its
inventory in the ordinary course of business.
(c) For the purposes of subsections (i) and (ii) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
4.7. Obligations to Related Parties. Except as set forth in the
Company's Exchange Act Filings or on Schedule 4.7, there are no obligations of
the Company or any of its Subsidiaries to officers, directors, stockholders or
employees of the Company or any of its Subsidiaries other than:
(a) for payment of salary for services rendered and for bonus
payments;
(b) reimbursement for reasonable expenses incurred on behalf
of the Company and its Subsidiaries; and
(c) for other standard employee benefits made generally
available to all employees (including stock option agreements outstanding under
any stock option plan approved by the Board of Directors of the Company).
Except as described above or set forth on Schedule 4.7, none of the officers,
directors or, to the best of the Company's knowledge, key employees or
stockholders of the Company or any members of their immediate families, are
indebted to the Company, individually or in the aggregate, in excess of $50,000
or have any direct or indirect ownership interest in any firm or corporation
with which the Company is affiliated or with which the Company has a business
relationship, or any firm or corporation which competes with the Company, other
than passive investments in publicly traded companies (representing less than
one percent (1%) of such company) which may compete with the Company. Except as
described above, no officer, director or stockholder, or any member of their
immediate families, is, directly or indirectly, interested in any material
contract with the Company and no agreements, understandings or proposed
transactions are contemplated between the Company and any such person. Except as
set forth on Schedule 4.7, the Company is not a guarantor or indemnitor of any
indebtedness of any other person, firm or corporation.
4.8. Changes. Since December 31, 2004, except as disclosed in any
Exchange Act Filing, on Schedule 4.8 or any other Schedule to this Agreement or
to any of the Related Agreements, there has not been:
(a) any change in the business, assets, liabilities, condition
(financial or otherwise), properties or operations of the Company or any of its
Subsidiaries, which individually or in the aggregate has had, or could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect;
(b) any resignation or termination of any officer, key
employee or group of employees of the Company or any of its Subsidiaries;
(c) any material change, except in the ordinary course of
business, in the contingent obligations of the Company or any of its
Subsidiaries by way of guaranty, endorsement, indemnity, warranty or otherwise;
(d) any damage, destruction or loss, whether or not covered by
insurance, has had, or could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect;
(e) any waiver by the Company or any of its Subsidiaries of a
valuable right or of a material debt owed to it;
(f) any direct or indirect loans made by the Company or any of
its Subsidiaries to any stockholder, employee, officer or director of the
Company or any of its Subsidiaries, other than advances made in the ordinary
course of business;
(g) any material change in any compensation arrangement or
agreement with any employee, officer, director or stockholder of the Company or
any of its Subsidiaries;
(h) any declaration or payment of any dividend or other
distribution of the assets of the Company or any of its Subsidiaries;
(i) any labor organization activity related to the Company or
any of its Subsidiaries;
(j) any debt, obligation or liability incurred, assumed or
guaranteed by the Company or any of its Subsidiaries, except those for
immaterial amounts and for current liabilities incurred in the ordinary course
of business;
(k) any sale, assignment, hypothecation or transfer of any
patents, trademarks, copyrights, trade secrets or other intangible assets owned
by the Company or any of its Subsidiaries;
(l) any change in any material agreement to which the Company
or any of its Subsidiaries is a party or by which either the Company or any of
its Subsidiaries is bound
which either individually or in the aggregate has had, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect;
(m) any other event or condition of any character that, either
individually or in the aggregate, has had, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect; or
(n) any arrangement or commitment by the Company or any of its
Subsidiaries to do any of the acts described in subsection (a) through (m)
above.
4.9. Title to Properties and Assets; Liens, Etc. Except as set forth
on Schedule 4.9, the Company and each of its Subsidiaries has good and
marketable title to its properties and assets, and good title to its leasehold
estates, in each case subject to no mortgage, pledge, lien, lease, encumbrance
or charge, other than:
(a) those resulting from taxes which have not yet become
delinquent;
(b) minor liens and encumbrances which do not materially
detract from the value of the property subject thereto or materially impair the
operations of the Company or any of its Subsidiaries; and
(c) those that have otherwise arisen in the ordinary course of
business.
All facilities, machinery, equipment, fixtures, vehicles and other properties
owned, leased or used by the Company and its Subsidiaries are in good operating
condition and repair and are reasonably fit and usable for the purposes for
which they are being used. Except as set forth on Schedule 4.9, the Company and
its Subsidiaries are in compliance with all material terms of each lease to
which it is a party or is otherwise bound except where such failure to be in
compliance, either individually or in the aggregate has had, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect.
4.10. Intellectual Property.
(a) Each of the Company and each of its Subsidiaries owns or
possesses sufficient legal rights to all patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information and other
proprietary rights and processes necessary for its business as now conducted, as
presently proposed to be conducted (the "Intellectual Property"), without any
infringement of the rights of others. There are no outstanding options, licenses
or agreements of any kind relating to the foregoing proprietary rights, nor is
the Company or any of its Subsidiaries bound by or a party to any options,
licenses or agreements of any kind with respect to the patents, trademarks,
service marks, trade names, copyrights, trade secrets, licenses, information and
other proprietary rights and processes of any other person or entity other than
such licenses or agreements arising from the purchase of "off the shelf" or
standard products.
(b) Neither the Company nor any of its Subsidiaries has
received any communications alleging that the Company or any of its Subsidiaries
has violated any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity, nor is the Company or any of
its Subsidiaries aware of any basis therefor.
(c) The Company does not and will not utilize any inventions,
trade secrets or proprietary information of any of its employees made prior to
their employment by the Company or any of its Subsidiaries, except for
inventions, trade secrets or proprietary information that have been rightfully
assigned to the Company or any of its Subsidiaries.
4.11. Compliance with other Instruments. Neither the Company nor any
of its Subsidiaries is in violation or default of (i) any material term of its
Charter or Bylaws, or (ii) of any provision of any indebtedness, mortgage,
indenture, contract, agreement or instrument to which it is party or by which it
is bound or of any judgment, decree, order or writ, which violation or default,
in the case of this clause (ii), has had, or could reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect. The
execution, delivery and performance of and compliance with this Agreement and
the Related Agreements to which it is a party, and the issuance and sale of the
Securities by the Company pursuant hereto, will not, with or without the passage
of time or giving of notice, result in any such material violation, or be in
conflict with or constitute a default under any such term or provision, or
result in the creation of any mortgage, pledge, lien, encumbrance or charge upon
any of the properties or assets of the Company or any of its Subsidiaries or the
suspension, revocation, impairment, forfeiture or nonrenewal of any permit,
license, authorization or approval applicable to the Company, its business or
operations or any of its assets or properties.
4.12. Filings, Consents and Approvals. Neither the Company nor any
Subsidiary is required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other
federal, state, local or other governmental authority or other person in
connection with the execution, delivery and performance by the Company of this
Agreement or the Related Agreements, other than (i) a current report on Form 8-K
announcing the transactions contemplated under this Agreement, (ii) the filing
of a registration statement with the SEC as required under the Registration
Rights Agreement, (iii) the notice and/or application(s) to Nasdaq National
Market ("Nasdaq") for the issuance and sale of the Securities and the listing of
the shares of Common Stock issuable upon conversion of the Shares or exercise of
the Warrants for trading thereon in the time and manner required thereby, and
(iv) the filing of Form D with the SEC and applicable Blue Sky filings
(collectively, the "Required Approvals").
4.13. Litigation. Except as set forth in the Company's Exchange Act
Filings or on Schedule 4.13 hereto, there is no action, suit, proceeding or
investigation pending or, to the Company's knowledge, currently threatened
against the Company or any of its Subsidiaries that prevents the Company or any
of its Subsidiaries from entering into this Agreement or the other Related
Agreements, or from consummating the transactions contemplated hereby or
thereby, or which has had, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect or any change in the
current equity ownership of the Company or any of its Subsidiaries, nor is the
Company aware that there is any basis to assert any of the foregoing. Neither
the Company nor any of its Subsidiaries is a party or subject to the provisions
of any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality. There is no action, suit, proceeding or investigation
by the Company or any of its Subsidiaries currently pending or which the Company
or any of its Subsidiaries intends to initiate.
4.14. Tax Returns and Payments. Except as set forth on Schedule
4.14, the Company and each of its Subsidiaries has timely filed all tax returns
(federal, state and local) required to be filed by it. All taxes shown to be due
and payable on such returns, any assessments imposed, and all other taxes due
and payable by the Company or any of its Subsidiaries on or before the Closing,
have been paid or will be paid prior to the time they become delinquent. Except
as set forth on Schedule 4.14, neither the Company nor any of its Subsidiaries
has been advised:
(a) that any of its returns, federal, state or other, have
been or are being audited as of the date hereof; or
(b) of any deficiency in assessment or proposed judgment to
its federal, state or other taxes.
The Company has no knowledge of any liability for any tax to be imposed upon its
properties or assets as of the date of this Agreement that is not adequately
provided for.
4.15. Employees. Except as set forth on Schedule 4.15, neither the
Company nor any of its Subsidiaries has any collective bargaining agreements
with any of its employees. There is no labor union organizing activity pending
or, to the Company's knowledge, threatened with respect to the Company or any of
its Subsidiaries. Except as disclosed in the Exchange Act Filings or on Schedule
4.15, neither the Company nor any of its Subsidiaries is a party to or bound by
any currently effective employment contract, deferred compensation arrangement,
bonus plan, incentive plan, profit sharing plan, retirement agreement or other
employee compensation plan or agreement. To the Company's knowledge, no employee
of the Company or any of its Subsidiaries, nor any consultant with whom the
Company or any of its Subsidiaries has contracted, is in violation of any term
of any employment contract, proprietary information agreement or any other
agreement relating to the right of any such individual to be employed by, or to
contract with, the Company or any of its Subsidiaries because of the nature of
the business to be conducted by the Company or any of its Subsidiaries; and to
the Company's knowledge the continued employment by the Company or any of its
Subsidiaries of its present employees, and the performance of the Company's and
its Subsidiaries' contracts with its independent contractors, will not result in
any such violation. Neither the Company nor any of its Subsidiaries is aware
that any of its employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with their duties to the Company or any of its Subsidiaries. Neither
the Company nor any of its Subsidiaries has received any notice alleging that
any such violation has occurred. Except for employees who have a current
effective employment agreement with the Company or any of its Subsidiaries, no
employee of the Company or any of its Subsidiaries has been granted the right to
continued employment by the Company or any of its Subsidiaries or to any
material compensation following termination of employment with the Company or
any of its Subsidiaries. Except as set forth on Schedule 4.15, the Company is
not aware that any officer, key employee or group of employees intends to
terminate his, her or their employment with the Company or any of its
Subsidiaries, nor does the Company or any of its Subsidiaries have a present
intention to terminate the employment of any officer, key employee or group of
employees.
4.16. Compliance with Laws; Permits. Neither the Company nor any of
its Subsidiaries is in violation of any applicable statute, rule, regulation,
order or restriction of any domestic or foreign government or any
instrumentality or agency thereof in respect of the conduct
of its business or the ownership of its properties which has had, or could
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect. No governmental orders, permissions, consents,
approvals or authorizations are required to be obtained and no registrations or
declarations are required to be filed in connection with the execution and
delivery of this Agreement or any other Related Agreement and the issuance of
any of the Securities, except such as has been duly and validly obtained or
filed, or with respect to any filings that must be made after the Closing, as
will be filed in a timely manner. Each of the Company and its Subsidiaries has
all material franchises, permits, licenses and any similar authority necessary
for the conduct of its business as now being conducted by it, the lack of which
could, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
4.17. Environmental and Safety Laws. Neither the Company nor any of
its Subsidiaries is in violation of any applicable statute, law or regulation
relating to the environment or occupational health and safety and no material
expenditures are or will be required in order to comply with any such existing
statute, law or regulation except for such violations that individually, or in
the aggregate, have had, or could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. No Hazardous Materials (as
defined below) are used or have been used, stored, or disposed of by the Company
or any of its Subsidiaries or, to the Company's knowledge, by any other person
or entity on any property owned, leased or used by the Company or any of its
Subsidiaries. For the purposes of the preceding sentence, "Hazardous Materials"
shall mean:
(a) materials which are listed or otherwise defined as
"hazardous" or "toxic" under any applicable local, state, federal and/or foreign
laws and regulations that govern the existence and/or remedy of contamination on
property, the protection of the environment from contamination, the control of
hazardous wastes, or other activities involving hazardous substances, including
building materials; or
(b) any petroleum products or nuclear materials.
4.18. Insurance. Each of the Company and each of its Subsidiaries
has general commercial, fire and casualty insurance policies with coverages
which the Company believes are customary for companies similarly situated to the
Company and its Subsidiaries in the same or similar business.
4.19. SEC Reports. Except as set in the Exchange Act Filings, the
Company has timely filed all proxy statements, reports and other documents
required to be filed by it under the Securities Xxxxxxxx Xxx 0000, as amended
(the "Exchange Act"). The Company has made available to the Purchaser copies of:
(i) its Annual Reports on Form 10-K for its fiscal year ended December 31, 2004;
(ii) its quarterly reports on Form 10-Q for the fiscal quarters ended March 31,
2004, June 30, 2004 and September 30, 2004 and (iii) its reports on Form 8-K
which have been filed from December 31, 2004 to date (collectively, the "SEC
Reports"). Except as set forth on Schedule 4.19 or in the Exchange Act Filings,
each SEC Report was, at the time of its filing, in substantial compliance with
the requirements of its respective form and none of the SEC Reports, nor the
financial statements (and the notes thereto) included in the SEC Reports, as of
their respective filing dates, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
4.20. Listing. The Company's Common Stock is listed for trading on
Nasdaq and satisfies all requirements for the continuation of such listing. The
Company has not received any notice that its Common Stock will be delisted from
Nasdaq or that its Common Stock does not meet all requirements for such
continued listing.
5. Representations, Warranties and Covenants of the Purchaser. Each
Purchaser hereby represents, warrants and covenants to the Company as follows:
5.1. Authorization; Enforceability. Each Purchaser has the power and
authority to purchase the Securities and to execute and deliver this Agreement
and the Related Agreements to which such Purchaser is a party and to perform the
provisions hereof and thereof. This Agreement constitutes, and upon execution
and delivery thereof, each other Related Agreement to which such Purchaser is a
party will constitute, such Purchaser's valid and legally binding obligation,
enforceable in accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws of general application relating to or affecting the enforcement of
creditors' rights generally and (ii) general principles of equity.
5.2. No Conflict with Other Instruments. The (i) execution, delivery
and performance of this Agreement by each Purchaser and the other Related
Agreements to which such Purchaser is a party, and (ii) consummation of the
transactions contemplated hereby and thereby by such Purchaser has not and will
not result in default (and to the knowledge of such Purchaser, no event has
occurred which, with notice or lapse of time or both, would constitute a
default) under any provision of any instrument or contract to which such
Purchaser is a party or by which such Purchaser or any of its property is bound,
or in violation of any provision of any governmental requirement applicable to
such Purchaser.
5.3. Consent. Filings, Consents and Approvals. No Purchaser is
required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal,
state, local or other governmental authority or other person in connection with
the execution, delivery and performance by the Purchaser of this Agreement or
the Related Agreements, other than the Required Approvals or any other filing or
notice required under federal or state securities laws to report the
transactions contemplated in this Agreement and the Related Agreements.
5.4. Investment for Own Account. Such Purchaser will hold the
Securities for their own account for investment purposes only, and not with a
view to, or for resale in connection with, any distribution that would require
registration under the Securities Act or the securities laws of any state. Such
Purchaser does not presently have any reason to anticipate any change in
circumstances or other particular occasion or event which would require selling
the Securities or any part thereof or interest therein. Such Purchaser
understands that there will be no established market for the Securities and that
such Purchaser may be restricted from selling the Securities except in a sale
exempt under federal and state securities laws.
5.5. No Registration. Such Purchaser understands that (a) the
Securities (1) have not been registered under the Securities Act or any state
securities laws, (2) will be issued in reliance upon an exemption from the
registration and prospectus delivery requirements of the Securities Act which
relate to private offerings, (3) may be required to be held by such Purchaser
indefinitely, and (b) such Purchaser must therefore bear the economic risk of
such investment indefinitely unless a
subsequent disposition thereof is registered under the Securities Act and
applicable state securities laws or is exempt therefrom. Such Purchased further
understands that such exemptions depend upon, among other things, the accuracy
of such Purchaser's representations set forth in this Section 5.
5.6. Access to Information. Such Purchaser has had an opportunity to
ask questions of, and receive satisfactory answers from, the Company and its
representatives or agents concerning the terms of this investment and the
undersigned's potential acquisition of the Securities, and all such questions
have been answered to such Purchaser's full satisfaction. Such Purchaser has
been furnished by the Company all information (or provided access to all
information) regarding the business and financial condition of the Company, the
attributes of the Securities and the merits and risks of an investment in the
Securities which such Purchaser has requested or otherwise needs to evaluate the
investment in the Securities, and such Purchaser does not desire any further
information or data concerning the Company. Specifically, such Purchaser
acknowledges receipt from the Company of, without limitation, the following
information (collectively, the "Investment Information"):
(a) the Company's Exchange Act Filings; and
(b) the Company's Charter and Bylaws.
Such Purchaser has received, read and understands the Investment Information.
Such Purchaser has examined all written materials furnished by the Company, or
caused the same to be examined by such Purchaser's representatives, to the
extent such Purchaser deemed necessary or appropriate. The undersigned
acknowledges that the Company has made available to the undersigned the
opportunity to obtain additional information to verify the accuracy of any
material shown to the undersigned by the Company and to evaluate the merits and
risks of this investment.
5.7. Accredited Investor. Such Purchaser is an "accredited investor"
as defined in Rule 501 of Regulation D promulgated under the Securities Act, and
such Purchaser, or those persons retained by such Purchaser, have knowledge,
skill and experience in financial, business and investment matters relating to
an investment of this type and are capable of evaluating the merits and risks of
such investment and protecting such Purchaser in connection with an investment
in the Securities. At such Purchaser's own expense, the undersigned has, to the
extent deemed necessary by such Purchaser, retained and relied upon appropriate
professional advice regarding the investment, tax and legal merits and
consequences of an investment in the Securities. Such Purchaser has not received
any legal, business, tax or other advice from the Company, its counsel or other
representatives.
5.8. Risk of Investment. Such Purchaser acknowledges that (i) it has
been called to such Purchaser's attention that such Purchaser's investment in
the Securities involves a high degree of risk, (ii) any investment in the
Company is not insured by any governmental or other entity, and (iii) such
Purchaser understands that the Securities will be an illiquid investment.
Further, such Purchaser acknowledges that there are certain tax risks associated
with the proposed investment and no assurances are being made that existing tax
laws and regulations will not be modified in the future, thus altering tax
consequences associated with this potential investment. The Company has never
made any representation, guarantee or warranty (A) as to the approximate or
exact length of time that such Purchaser will be required to remain an owner of
the Securities (or
any other securities of the Company); (B) the percentage of profit, amount of or
type of consideration and/or profit or loss, if any, that will result from an
investment in the Securities; or (C) that any future expectations relating to
the Company's performance indicate in any way what the Company's financial
condition or results of operations will be in the future. Such Purchaser
understands the speculative nature of an investment in the Securities and the
financial risks associated with the Securities.
5.9. Restrictions on Transfer. The Offering is being made in
reliance upon exemptions from registration under the Securities Act and
applicable state securities laws for an offer and sale of securities not
involving a public offering. The Securities may not be sold, transferred or
otherwise disposed of without satisfaction of certain conditions, including
registration under, or the availability of an exemption from registration under,
the Securities Act and applicable state securities laws. Such Purchaser agrees
that the Company may permit the transfer of the Securities out of such
Purchaser's name only when any request for transfer is accompanied by an opinion
of counsel acceptable in form and substance to Company counsel to the effect
that the proposed transfer results in no violation of the Securities Act or any
applicable state securities laws. A legend to this effect will be placed upon
each certificate representing the Securities.
5.10. Representations and Warranties. No person or entity, other
than the Company, has been authorized to give any information or to make any
representations on behalf of the Company in connection with the offering of the
Securities and, if given or made, such information or representations have not
been relied upon by the undersigned as having been made or authorized by the
Company. The only representations, warranties and information made by the
Company in connection with the Offering are those contained in this Agreement
and the Investment Information.
5.11. General Solicitation. The solicitation of an offer to buy the
Securities was communicated to such Purchaser in such a manner that at no time
was such Purchaser presented with or solicited by or through any leaflet, public
promotional meeting, television, radio, internet or other published
advertisement or any other form of general or public advertising or
solicitation.
5.12. Purchaser's Experience. By reason of such Purchaser's business
and financial experience, such Purchaser has the capacity to protect such
Purchaser's own interests in investments of this nature. Such Purchaser has
evaluated such Purchaser's financial resources and investment position, and the
risks associated with the proposed investment and concluded that such Purchaser
has the ability to bear the economic risks associated with this proposed
investment.
5.13. Non-public Information. After the date hereof, such Purchaser
agrees to hold in strict confidence any non-public information of the Company
(the "Information") acquired by such Purchaser, and not to use such Information
for any competitive purpose. Such Purchaser may transmit Information to its
partners, directors, officers, employees, agents or representatives, including
attorneys, accountants and consultants (collectively, "Representatives"), but
only to such Representatives who are informed of the confidential nature of the
Information and are directed to treat such Information as confidential.
Notwithstanding anything to the contrary herein, such Purchaser may disclose any
Information to the extent such Information or portion thereof (i) is or becomes
generally available to the public other than as a result of a disclosure by the
undersigned or its Representatives in breach of the terms hereof, (ii) is or
becomes available to such Purchaser on a non-confidential basis from a source,
other than the Company or its representatives, without
violation of a duty of confidentiality to the Company, or (iii) was known to
such Purchaser on a non-confidential basis prior to the disclosure to such
Purchaser by the Company or any of its representatives.
6. Covenants of the Company and each Purchaser.
6.1. Listing. The Company shall as promptly as practicable after
Closing secure the listing of the shares of Common Stock issuable upon
conversion of the Shares and upon the exercise of the Warrants on the Nasdaq
(subject to official notice of issuance) and shall maintain such listing so long
as any other shares of Common Stock shall be so listed. The Company will use
commercially reasonable best efforts to maintain the listing of its Common Stock
on Nasdaq, and will comply with the Company's reporting, filing and other
obligations under the bylaws or rules of the National Association of Securities
Dealers ("NASD") and such exchanges, as applicable.
6.2. Market Regulations. The Company shall notify the SEC, NASD and
applicable state authorities, in accordance with their requirements, of the
transactions contemplated by this Agreement, and shall take all other necessary
action and proceedings as may be required and permitted by applicable law, rule
and regulation, for the legal and valid issuance of the Securities to the
Purchasers and promptly provide copies thereof to the Purchasers.
6.3. Reporting Requirements; Reports for Xxxxxx Xxxxxxx. The Company
will timely file with the SEC all reports required to be filed pursuant to the
Exchange Act and refrain from terminating its status as an issuer required by
the Exchange Act to file reports thereunder even if the Exchange Act or the
rules or regulations thereunder would permit such termination. The Company will
prepare and timely file with the Commission, at the Company's expense, any
filings pursuant to Section 13 or 16 of the Exchange Act that are required for
Xxxxxx Xxxxxxx and The Xxxxxx X. Xxxxxxx Family Trust Dated September 19, 1999
in connection with this transaction and for any conversions of the Shares or
exercise of the Warrants in the future; provided, however, that Xxxxxx Xxxxxxx
agrees to deliver any necessary information required to complete such filings to
the Company no later than the next business day after the transaction requiring
such filing occurs.
6.4. Shareholder Approval. At the next annual meeting of the
Company's shareholders, which shall be held no later than July 31, 2005, the
Company shall include a proposal for the Company's shareholders to vote to
approve this Agreement, the Related Agreements and the transactions contemplated
hereby and thereby. The Company's Board of the Directors (the "Board") will
recommend that the shareholders vote in favor of such proposal.
6.5. Board Seats. Within 5 days of the First Closing Date, the Board
will appoint two individuals designated by a majority of the Series C Stock to
the Board to fill the existing vacancies on the Board in accordance with Section
D(i) of the Amended Articles.
6.6. Restrictions on Conversion and Exercise. Until this Agreement
and the Related Agreements are approved by the holders a majority of the
outstanding shares of capital stock of the Company entitled to vote, excluding
holders of the Series C Convertible Preferred Stock ("Shareholder Approval"), no
holder of Shares or Warrants shall be entitled to convert such holder's Shares
or exercise such holder's Warrants, if after such conversion or exercise such
holder will, with the shares of Common Stock issued on conversion or exercise
and any other shares of the
Company's Common Stock held by such holder, hold more than 19.99% of the
outstanding Common Stock or voting power of the Company on the date of such
conversion or exercise.
7. Conditions to the Second Closing. The Company and Purchasers
obligations to effect the Second Closing are subject to the satisfaction, at or
prior to the Second Closing, of the following conditions (any of which may be
waived in whole or in part):
7.1. Conditions to Obligations of Purchasers. A majority in interest
of the Purchasers shall have the option, in their sole and absolute discretion,
to elect whether or not to effect the Second Closing. If the Purchasers
determine not to effect the Second Closing, they shall deliver written notice to
the Company at least ten (10) business days prior to the Second Closing Date.
7.2. Conditions to Obligations of the Company.
(a) All of the representations and warranties made by the
Purchasers in this Agreement must be true and correct in all material respects
as if made on the Second Closing Date (except that representations and
warranties given as of a specific date shall be true and correct only as of such
date) and the Company shall have received a certificate from each Purchaser to
such effect.
(b) The Purchasers shall have in all material respects
performed or complied with all covenants and obligations that it is required to
perform or to comply with pursuant to this Agreement and the Company shall have
received a certificate from the each Purchaser to such effect.
(c) There shall not be any proceeding or threatened proceeding
against the Purchasers or any person affiliated with the Purchasers: (a)
involving any challenge to, or seeking damages or other relief in connection
with, any of the transactions contemplated by this Agreement, or (b) that may
have the effect of preventing, delaying, making illegal, or otherwise
interfering with any of the transactions contemplated by this Agreement.
8. Indemnification.
8.1. Company Indemnification. The Company agrees to indemnify, hold
harmless, reimburse and defend the Purchasers, each Purchaser's officers,
directors, agents, affiliates, control persons, and principal shareholders,
against any claim, cost, expense, liability, obligation, loss or damage
(including reasonable legal fees) of any nature, incurred by or imposed upon the
Purchasers which results, arises out of or is based upon: (i) any
misrepresentation by the Company or any of its Subsidiaries or breach of any
warranty by the Company or any of its Subsidiaries in this Agreement, any other
Related Agreement or in any exhibits or schedules attached hereto or thereto; or
(ii) any breach or default in performance by Company or any of its Subsidiaries
of any covenant or undertaking to be performed by Company or any of its
Subsidiaries hereunder, under any other Related Agreement or any other agreement
entered into by the Company and/or any of its Subsidiaries and Purchasers
relating hereto or thereto.
8.2. Purchasers' Indemnification. Each Purchaser agrees to
indemnify, hold harmless, reimburse and defend the Company and each of the
Company's officers, directors, agents, affiliates, control persons and principal
shareholders, at all times against any claim, cost, expense,
liability, obligation, loss or damage (including reasonable legal fees) of any
nature, incurred by or imposed upon the Company which results, arises out of or
is based upon: (i) any misrepresentation by the Purchasers or breach of any
warranty by the Purchasers in this Agreement, any other Related Agreement or in
any exhibits or schedules attached hereto or thereto; or (ii) any breach or
default in performance by the Purchasers of any covenant or undertaking to be
performed by the Purchasers hereunder, under any other Related Agreement or any
other agreement entered into by the Company and/or any of its Subsidiaries and
Purchasers relating hereto or thereto.
9. Miscellaneous.
9.1. Entire Agreement. This Agreement, the Related Agreements, the
exhibits and schedules hereto and thereto and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and no party shall be
liable or bound to any other in any manner by any representations, warranties,
covenants and agreements except as specifically set forth herein and therein.
9.2. Choice of Law. This Agreement shall be governed under the laws
of the State of Delaware, without regard to conflicts of law.
9.3. Attorney's Fees. In the event any litigation, arbitration,
mediation, or other proceeding ("Proceeding") is initiated by any party(ies)
against any other party(ies) to enforce, interpret or otherwise obtain judicial
or quasi-judicial relief in connection with this Agreement, the prevailing
party(ies) in such Proceeding shall be entitled to recover from the unsuccessful
party(ies) all costs, expenses, actual attorney's and expert witness fees,
relating to or arising out of (1) such Proceeding (whether or not such
Proceeding proceeds to judgment), and (2) any post-judgment or post-award
proceeding including, without limitation, one to enforce any judgment or award
resulting from any such Proceeding. Any such judgment or award shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, actual attorney and expert witness fees.
9.4. Counterparts. This Agreement may be signed in one (1) or more
counterparts, each of which shall constitute an original but all of which
together shall be one (1) and the same document. Signatures received by
facsimile shall be deemed to be original signatures.
9.5. Partial Invalidity. Each provision of this Agreement will be
valid and enforceable to the fullest extent permitted by law. If any provision
of this Agreement or the application of the provision to any person or
circumstance will, to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of the provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, will not be
affected by such invalidity or unenforceability, unless the provision or its
application is essential to this Agreement.
9.6. Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
9.7. Drafting Ambiguities. Each party to this Agreement and their
legal counsel have reviewed and revised this Agreement. The rule of construction
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendments or exhibits
to this Agreement.
9.8. Notices. Any notice from one party to another shall be
delivered either personally, via facsimile or by United States mail, postage
fully prepaid, addressed as follows:
Purchasers: To the respective addresses set forth below the
Purchaser's signature at the foot of this
Agreement.
With a copy (not
constituting notice): Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
Attn: Xxxxx X. Xxxxxxx, Esq.
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Company: OMNI Energy Services Corp.
Attention: Xxxxx X. Xxxxxx
0000 XX Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
With a copy to (not
constituting notice): Xxx Xxxxxxx, Esq.
Xxxxx Liddell & Xxxx LLP
3400 JPMorgan Chase Tower
000 Xxxxxx
Xxxxxxx, XX 00000-0000
Any notice being delivered within the continental United States shall be deemed
delivered upon (a) personal service, or (b) transmission via facsimile (with the
original thereof to be immediately sent via mail, postage prepaid), or (c) forty
eight (48) hours after the time of deposit in the mail, as the case may be. In
the event any Party changes its address, such change of address shall be
communicated to the other Party in the manner set forth in this Section.
9.9. Definition of Knowledge. For the purposes of this Agreement,
the Company shall only be deemed to have "knowledge" of a particular fact or
other matter, if an executive officer of the Company is actually aware of such
fact or matter, or a reasonably prudent individual operating in the capacity of
an executive officer of the Company could be expected to discover or otherwise
become aware of such fact or matter in the ordinary course of fulfilling the
responsibilities of an executive officer.
9.10. Interpretation/Representation. Wherever the context of this
Agreement requires, all words used in the singular shall be construed to have
been used in the plural, and vice versa, and the use of any gender specific
pronoun shall include any other appropriate gender. The term "person" shall
refer to any individual, corporation or legal entity having standing to bring an
action in its own name under applicable state law. The conjunctive "or" shall
mean "and/or" unless otherwise required by the context in which the conjunctive
"or" is used. The Purchasers acknowledge that the firm of Xxxxxxx Xxxx
Seidenwurm & Xxxxx, LLP represents only the Xxxxxx X. Xxxxxxx Family Trust and
that each of them has had an opportunity to consult with and be advised by its
own counsel and professional advisors.
9.11. Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by the Purchaser and
the closing of the transactions contemplated hereby to the extent provided
therein. All statements as to factual matters contained in any certificate or
other instrument delivered by or on behalf of the Company pursuant hereto in
connection with the transactions contemplated hereby shall be deemed to be
representations and warranties by the Company hereunder solely as of the date of
such certificate or instrument.
9.12. Successors. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, heirs, executors and administrators of the parties hereto and shall
inure to the benefit of and be enforceable by each person who shall be a holder
of the Securities from time to time, other than the holders of Common Stock
which has been sold by the Purchasers pursuant to Rule 144 or an effective
registration statement.
9.13. Amendment and Waiver.
(a) This Agreement may be amended or modified only upon the
written consent of the Company and a majority in interest of the Purchasers.
(b) The obligations of the Company and the rights of the
Purchasers under this Agreement may be waived only with the written consent of a
majority in interest of the Purchasers.
(c) The obligations of the Purchasers and the rights of the
Company under this Agreement may be waived only with the written consent of the
Company.
9.14. Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement or the Related
Agreements, shall impair any such right, power or remedy, nor shall it be
construed to be a waiver of any such breach, default or noncompliance, or any
acquiescence therein, or of or in any similar breach, default or noncompliance
thereafter occurring. All remedies, either under this Agreement or the Related
Agreements, by law or otherwise afforded to any party, shall be cumulative and
not alternative.
[Remainder of Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase
Agreement as of the date set forth in the first paragraph hereof.
COMPANY:
OMNI Energy Services Corp.,
a Louisiana corporation
/s/ Xxxxx X. Xxxxxx
--------------------------
Xxxxx X. Xxxxxx, President
PURCHASERS:
The Xxxxxx X. Xxxxxxx Family Trust Dated Xxxxxx X. Xxxxxx, III Trust dated
December 19, 1994 January 2, 1995
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------- ---------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
Its: ____________________ Its: ____________________
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------- -------------------
Xxxxx Xxxxx Xxxxx X. Xxxxxx
By: /s/ G. Xxxxx Xxxx
-------------------
G. Xxxxx Xxxx
