AGREEMENT AND PLAN OF MERGER
AMONG
XXXXXX DRILLING COMPANY,
SAINTS ACQUISITION COMPANY
AND
SUPERIOR ENERGY SERVICES, INC.
OCTOBER 28, 1998
TABLE OF CONTENTS
ARTICLE I
THE MERGER
1.1 The Merger.................................................1
1.2 Closing Date...............................................2
1.3 Consummation of the Merger.................................2
1.4 Effects of the Merger......................................2
1.5 Certificate of Incorporation; Bylaws.......................2
1.6 Directors and Officers.....................................2
1.7 Conversion of Superior Common Stock........................2
1.8 Exchange of Certificates...................................3
1.9 Stock Transfer Books.......................................6
1.10 Taking of Necessary Action; Further Action.................6
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Xxxxxx and Sub...........6
(a) Organization and Compliance with Law..................6
(b) Capitalization........................................7
(c) Authorization and Validity of Agreement...............8
(d) No Approvals or Notices Required; No Conflict with
Instruments to which Xxxxxx or any of the Xxxxxx
Subsidiaries is a Party...............................8
(e) Commission Filings; Financial Statements..............9
(f) Absence of Undisclosed Liabilities....................9
(g) Conduct of Business in the Ordinary Course; Absence
of Certain Changes and Events........................10
(h) Tax Representation...................................10
(i) Opinion of Financial Advisor.........................11
(j) Interim Operations of Sub............................11
(l) Certain Business Practices...........................11
2.2 Representations and Warranties of Superior................11
(a) Organization and Compliance with Law.................11
(b) Capitalization.......................................12
(c) Authorization and Validity of Agreement..............13
(d) No Approvals or Notices Required; No Conflict with
Instruments to which Superior or any of the Superior
Subsidiaries is a Party..............................13
(e) Commission Filings; Financial Statements.............14
(f) Absence of Undisclosed Liabilities...................14
(g) Conduct of Business in the Ordinary Course; Absence of
Certain Changes and Events...........................15
(h) Litigation...........................................15
(i) Employee Benefit Plans...............................16
(j) Taxes................................................17
(k) Environmental Matters................................19
(l) Severance Payments...................................20
(m) Voting Requirements..................................21
(n) Section 162(m) of the Code...........................21
(o) Brokers..............................................21
(p) Labor Relations......................................21
(q) Insurance............................................21
(r) Title to Properties..................................21
(s) Permits; Compliance..................................22
(t) Contingent Payment Obligations.......................22
(u) Certain Business Practices...........................22
(v) Opinion of Financial Advisor.........................22
ARTICLE III
COVENANTS OF SUPERIOR PRIOR TO THE EFFECTIVE TIME
3.1 Conduct of Business by Superior Pending the Merger........23
3.2 No Solicitation...........................................25
3.3 Affiliate Letters.........................................26
3.4 Obtain Tax Opinion........................................26
ARTICLE IV
COVENANTS OF XXXXXX PRIOR TO THE EFFECTIVE TIME
4.1 Conduct of Business by Xxxxxx Pending the Merger..........26
4.2 Stock Exchange Listing....................................26
4.3 Obtain Tax Opinion........................................26
4.4 Available Information.....................................27
4.5 Future Acquisitions.......................................27
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Meetings of Stockholders..................................27
5.2 Registration Statement; Proxy Statements..................28
5.3 Appropriate Action; Consents; Filings.....................29
5.4 Accountants Letters.......................................31
5.5 Pooling of Interests......................................31
5.6 Superior Employee Benefits................................31
5.7 Superior Stock Options....................................32
5.8 [Intentionally omitted]...................................33
5.9 Tax-Free Reorganization...................................33
5.10 Indemnification...........................................34
ARTICLE VI
CONDITIONS
6.1 Conditions to Obligation of Each Party to Effect
the Merger............................................... 35
6.2 Additional Conditions to Obligations of Xxxxxx............36
6.3 Additional Conditions to Obligations of Superior..........37
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination...............................................38
7.2 Effect of Termination.....................................39
7.3 Waiver and Amendment......................................39
7.4 Fees, Expenses and Other Payments.........................39
ARTICLE VIII
GENERAL PROVISIONS
8.1 Effectiveness of Representations, Warranties and
Agreements............................................... 40
8.2 Public Statements.........................................40
8.3 Assignment................................................41
8.4 Notices...................................................41
8.5 Governing Law.............................................41
8.6 Severability..............................................42
8.7 Counterparts..............................................42
8.8 Headings..................................................42
8.9 Entire Agreement; Third Party Beneficiaries...............42
8.10 Specific Performance......................................42
8.11 Disclosure Letters........................................42
-i-
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, dated as of the 28th day of
October, 1998 (the "Agreement"), is among Xxxxxx Drilling Company, a
Delaware corporation ("Xxxxxx"), Saints Acquisition Company, a newly formed
Delaware corporation and a wholly owned subsidiary of Xxxxxx ("Sub"), and
Superior Energy Services, Inc., a Delaware corporation ("Superior").
WITNESSETH:
WHEREAS, subject to and in accordance with the terms and conditions of
this Agreement, the respective Boards of Directors of Xxxxxx, Sub and
Superior, and Xxxxxx as sole stockholder of Sub, have approved the merger
of Sub with and into Superior (the "Merger"), whereby each issued and
outstanding share of common stock, par value $0.001 per share, of Superior
("Superior Common Stock") not owned directly or indirectly by Superior will
be converted into the right to receive 0.90 of a share of common stock, par
value $0.16 2/3 per share, of Xxxxxx ("Xxxxxx Common Stock");
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Sections
368(a)(1)(A) and 368(a)(2)(E) of the Internal Revenue Code of 1986, as
amended (the "Code"), and this Agreement constitutes a plan of
reorganization;
WHEREAS, the Merger is intended to be treated as a "pooling of
interests" for accounting purposes; and
WHEREAS, the parties hereto desire to set forth certain
representations, warranties and covenants made by each to the other as an
inducement to the consummation of the Merger;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained, the parties
hereto hereby agree as follows:
ARTICLE I
THE MERGER
1.1 THE MERGER. Subject to and in accordance with the terms and
conditions of this Agreement and in accordance with the General Corporation
Law of the State of Delaware (the "DGCL"), at the Effective Time (as
defined in Section 1.3) Sub shall be merged with and into Superior. As a
result of the Merger, the separate corporate existence of Sub shall cease
and Superior shall continue as the surviving corporation (sometimes
referred to herein as the "Surviving Corporation"), and all the properties,
rights, privileges, powers and franchises of Superior and Sub shall vest in
the Surviving Corporation, without any transfer or assignment having
occurred, and all debts, liabilities and duties of Superior and Sub shall
attach to the Surviving Corporation, all in accordance with the DGCL.
1.2 CLOSING DATE. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Xxxxxx &
Xxxxxx L.L.P., 2300 First City Tower, 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx
00000, as soon as practicable after the satisfaction or waiver of the
conditions set forth in Section 6.1 or at such other time and place and on
such other date as Xxxxxx and Superior shall agree, or if no date has been
agreed to, any date specified by one party to the other upon three days'
notice following satisfaction of the conditions set forth in Section 6.1,
provided that the other closing conditions set forth in Article VI shall
have been satisfied or waived at or prior to such time. The date on which
the Closing occurs is herein referred to as the "Closing Date."
1.3 CONSUMMATION OF THE MERGER. As soon as practicable on the
Closing Date, the parties hereto will cause the Merger to be consummated by
filing with the Secretary of State of Delaware a certificate of merger in
such form as required by, and executed in accordance with, the relevant
provisions of the DGCL. The "Effective Time" of the Merger (as that term
is used in this Agreement) shall mean such time as the certificate of
merger is duly filed with the Secretary of State of Delaware or at such
later time (not to exceed 90 days from the date the certificate is filed)
as is specified in the certificate of merger pursuant to the mutual
agreement of Xxxxxx and Superior.
1.4 EFFECTS OF THE MERGER. The Merger shall have the effects set
forth in the applicable provisions of the DGCL.
1.5 CERTIFICATE OF INCORPORATION; BYLAWS. At the Effective Time, the
Certificate of Incorporation and Bylaws of Sub, as in effect immediately
prior to the Effective Time, shall be the Certificate of Incorporation and
Bylaws, respectively, of the Surviving Corporation, provided that they
shall be amended as of the Effective Time to reflect that the name of the
Surviving Corporation shall be "Superior Energy Services, Inc."
1.6 DIRECTORS AND OFFICERS. The officers and directors of the
Surviving Corporation, each to hold office until their respective
successors are duly elected or appointed and qualified, shall be as set
forth on Annex I attached hereto.
1.7 CONVERSION OF SUPERIOR COMMON STOCK.
(a) As of the Effective Time, by virtue of the Merger and
without any action on the part of the holder of any shares of Superior
Common Stock or any shares of capital stock of Sub, and subject to Section
1.8(f), each share of Superior Common Stock issued and outstanding
immediately prior to the Effective Time (other than shares to be canceled
in accordance with Section 1.7(b)) shall be converted into the right to
receive 0.90 of a share of Xxxxxx Common Stock (the "Merger
Consideration"); provided, however, that if, between the date hereof and
the Effective Time, the outstanding shares of Xxxxxx Common Stock or
Superior Common Stock shall have been changed into a different number of
shares or a different class, by reason of any stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of
shares, the Merger Consideration shall be correspondingly adjusted to the
extent appropriate to reflect such stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of
shares. As of the Effective Time, all such shares of Superior Common Stock
shall no longer be outstanding and shall automatically be canceled and
retired and shall cease to exist, and each holder of a certificate
representing any such shares of Superior Common Stock shall cease to have
any rights with respect thereto, except the right to receive the Merger
Consideration.
(b) Each share of Superior Common Stock held in the treasury of
Superior and each share of Superior Common Stock owned by Sub, Xxxxxx or
any direct or indirect wholly owned subsidiary of Xxxxxx or of Superior
immediately prior to the Effective Time shall be canceled and extinguished
without any conversion thereof and no payment shall be made with respect
thereto.
(c) Each share of common stock of Sub issued and outstanding
immediately prior to the Effective Time shall be converted into one share
of the common stock, $.001 par value per share, of the Surviving
Corporation.
1.8 EXCHANGE OF CERTIFICATES.
(a) From and after the Effective Time, (i) Xxxxxx shall make
available to a bank or trust company designated by Xxxxxx (the "Exchange
Agent"), for the benefit of the holders of shares of Superior Common Stock,
for exchange in accordance with this Section 1.8, through the Exchange
Agent, certificates evidencing such number of shares of Xxxxxx Common Stock
issuable to holders of Superior Common Stock in the Merger pursuant to
Section 1.7. The Exchange Agent shall, pursuant to irrevocable written
instructions from Xxxxxx, deliver the Xxxxxx Common Stock, together with
any cash to be paid in lieu of fractional interests in shares of Xxxxxx
Common Stock pursuant to Section 1.8(f) and any dividends or distributions
related thereto (collectively, the "Exchange Fund"), in exchange for
certificates theretofore evidencing Superior Common Stock surrendered to
the Exchange Agent pursuant to Section 1.8(c). Except as contemplated by
Sections 1.8(f) and (g) hereof, the Exchange Fund shall not be used for any
other purpose.
(b) As promptly as practicable after the Effective Time, Xxxxxx
shall cause the Exchange Agent to mail to each holder of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding shares of Superior Common Stock (the "Certificates") (i) a
letter of transmittal (which shall be in customary form and shall specify
that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery of the Certificates to
the Exchange Agent) and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for the Merger Consideration.
(c) Upon surrender to the Exchange Agent of a Certificate for
cancellation, together with such letter of transmittal, duly executed and
completed in accordance with the instructions thereto, and such other
documents as may be reasonably required pursuant to such instructions, the
holder of such Certificate shall be entitled to receive in exchange
therefor (i) a certificate representing that number of whole shares of
Xxxxxx Common Stock, if any, to which such holder is entitled pursuant to
Section 1.7 and (ii) cash in lieu of any fractional shares of Xxxxxx Common
Stock to which such holder is entitled pursuant to Section 1.8(f) and any
dividends or other distributions to which such holder is entitled pursuant
to Section 1.8(d) (together, the "Additional Payments"), and the
Certificate so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of shares of Superior Common Stock which is not
registered in the transfer records of Superior, the applicable Merger
Consideration and Additional Payments, if any, may be issued to a
transferee if the Certificate representing such shares of Superior Common
Stock is presented to the Exchange Agent, accompanied by all documents
required to evidence and effect such transfer and by evidence that any
applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this Section 1.8, each Certificate shall be deemed at all
times after the Effective Time to represent only the right to receive upon
such surrender the Merger Consideration with respect to the shares of
Superior Common Stock formerly represented thereby and Additional Payments,
if any.
(d) No dividends or other distributions declared or made after
the Effective Time with respect to Xxxxxx Common Stock with a record date
after the Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of Xxxxxx Common Stock the holder
thereof is entitled to receive upon surrender thereof, and no cash payment
in lieu of any fractional shares shall be paid to any such holder pursuant
to Section 1.8(f), until the holder of such Certificate shall surrender
such Certificate. Subject to the effect of escheat, tax or other
applicable laws, following surrender of any such Certificate, there shall
be paid to the holder of the certificates representing whole shares of
Xxxxxx Common Stock issued in exchange therefor, without interest,
(i) promptly, the amount of any cash payable with respect to a fractional
share of Xxxxxx Common Stock to which such holder is entitled pursuant to
Section 1.8(f) and the amount of dividends or other distributions with a
record date after the Effective Time and theretofore paid with respect to
such whole shares of Xxxxxx Common Stock, and (ii) at the appropriate
payment date, the amount of dividends or other distributions, with a record
date after the Effective Time but prior to surrender and a payment date
occurring after surrender, payable with respect to such whole shares of
Xxxxxx Common Stock. After the Effective Time, each outstanding
Certificate which theretofore represented shares of Superior Common Stock
shall, until surrendered for exchange in accordance with this Section 1.8,
be deemed for all purposes to evidence ownership of the number of shares of
Xxxxxx Common Stock into which the shares of Superior Common Stock (which,
prior to the Effective Time, were represented thereby) shall have been so
converted.
(e) All shares of Xxxxxx Common Stock issued or cash paid upon
conversion of the shares of Superior Common Stock in accordance with the
terms hereof (including any cash paid pursuant to Section 1.8(d) or (f))
shall be deemed to have been issued in full satisfaction of all rights
pertaining to such shares of Superior Common Stock.
(f) Notwithstanding anything herein to the contrary, no
certificates or scrip evidencing fractional shares of Xxxxxx Common Stock
shall be issued in connection with the Merger, and any such fractional
share interests to which a holder of record of Superior Common Stock at the
Effective Time would otherwise be entitled will not entitle such holder to
vote or to any rights of a stockholder of Xxxxxx. In lieu of any such
fractional shares, each holder of record of Superior Common Stock at the
Effective Time who but for the provisions of this Section 1.8(f) would be
entitled to receive a fractional interest of a share of Xxxxxx Common Stock
pursuant to the Merger shall be paid cash, without any interest thereon,
equal to the fraction of a share of Xxxxxx Common Stock to which such
holder would be entitled but for this provision multiplied by the closing
price of the Xxxxxx Common Stock on the New York Stock Exchange on the
Effective Date.
(g) Any portion of the Exchange Fund (including any shares of
Xxxxxx Common Stock) which remains undistributed to the holders of Superior
Common Stock for six months after the Effective Time shall be delivered to
Xxxxxx, upon demand, and any holders of Superior Common Stock who have not
theretofore complied with Sections 1.7 and 1.8 shall thereafter look only
to Xxxxxx for the applicable Merger Consideration and any Additional
Payments to which they are entitled. Any portion of the Exchange Fund
remaining unclaimed by holders of shares of Superior Common Stock as of a
date which is immediately prior to such time as such amounts would
otherwise escheat to or become property of any governmental entity shall,
to the extent permitted by applicable law, become the property of Xxxxxx,
free and clear of any claims or interest of any person previously entitled
thereto.
(h) None of the Exchange Agent, Xxxxxx or the Surviving
Corporation shall be liable to any holder of Certificates for any shares of
Xxxxxx Common Stock (or dividends or distributions with respect thereto),
or cash delivered to a public official pursuant to any abandoned property,
escheat or similar law.
(i) Each of the Surviving Corporation and Xxxxxx shall be
entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of Certificates such amounts as it
is required to deduct and withhold with respect to the making of such
payment under the Code, or any provision of state, local or foreign tax
law. To the extent that amounts are so withheld by the Surviving
Corporation or Xxxxxx, as the case may be, such amounts withheld shall be
treated for all purposes of this Agreement as having been paid to the
holder of the Certificates in respect of which such deduction and
withholding was made by the Surviving Corporation or Xxxxxx, as the case
may be.
(j) If any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required
by the Surviving Corporation, the posting by such person of a bond, in such
reasonable amount as the Surviving Corporation may direct, as indemnity
against any claim that may be made against it with respect to such
Certificate, the Exchange Agent will issue in exchange for such lost,
stolen or destroyed Certificate the Merger Consideration and Additional
Payments, if any.
(k) If, at any time after the Effective Time, the Surviving
Corporation shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the
Surviving Corporation its right, title or interest in, to or under any of
the rights, properties or assets of either of Sub or Superior acquired or
to be acquired by the Surviving Corporation as a result of, or in
connection with, the Merger or otherwise to carry out this Agreement, the
officers of the Surviving Corporation shall be authorized to execute and
deliver, in the name and on behalf of each of Sub and Superior or
otherwise, all such deeds, bills of sale, assignments and assurances and to
take and do, in such names and on such behalves or otherwise, all such
other actions and things as may be necessary or desirable to vest, perfect
or confirm any and all right, title and interest in, to and under such
rights, properties or assets in the Surviving Corporation or otherwise to
carry out the purposes of this Agreement.
1.9 STOCK TRANSFER BOOKS. At the Effective Time, the stock transfer
books of Superior shall be closed and there shall be no further
registration of transfers of shares of Superior Common Stock thereafter on
the records of Superior. On or after the Effective Time, any Certificates
presented to the Exchange Agent or Xxxxxx for any reason shall be converted
into the Merger Consideration and Additional Payments, if any.
1.10 TAKING OF NECESSARY ACTION; FURTHER ACTION. The parties hereto
shall take all such reasonable and lawful action as may be necessary or
appropriate in order to effectuate the Merger as promptly as possible. If,
at any time after the Effective Time, any such further action is necessary
or desirable to carry out the purposes of this Agreement and to vest in the
Surviving Corporation all right, title and possession to all assets,
property, rights, privileges, powers and franchises of Superior or Sub,
such corporations shall direct their respective officers and directors to
take all such lawful and necessary action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF XXXXXX AND SUB. Xxxxxx and Sub
hereby jointly and severally represent and warrant to Superior that:
(a) Organization and Compliance with Law. Each of Xxxxxx and its
consolidated significant subsidiaries as defined in Rule 1.02 of
Regulation S-X (the "Xxxxxx Subsidiaries") is a corporation, a limited
liability company or a limited liability partnership duly organized,
validly existing and in good standing under the laws of the
jurisdiction in which it is chartered or organized and has all
requisite corporate power and authority and all necessary governmental
authorizations to own, lease and operate all of its properties and
assets and to carry on its business as now being conducted, except
where the failure to be so organized, existing or in good standing or
to have such governmental authority would not have a material adverse
effect on the financial condition, results of operations or business
of Xxxxxx and the Xxxxxx Subsidiaries, taken as a whole (a "Xxxxxx
XXX"). A Xxxxxx XXX shall not be deemed to include material adverse
changes affecting the contract drilling industry or the United States
economy generally. Except as set forth in Section 2.1(a) of the
disclosure letter delivered by Xxxxxx to Superior on the date hereof
(the "Xxxxxx Disclosure Letter"), each of Xxxxxx and the Xxxxxx
Subsidiaries is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary, except in such
jurisdictions where the failure to be duly qualified does not and
would not, either individually or in the aggregate, have a Xxxxxx XXX.
Each of Xxxxxx and the Xxxxxx Subsidiaries is in compliance with all
applicable laws, judgments, orders, rules and regulations, domestic
and foreign, except where failure to be in such compliance would not
have a Xxxxxx XXX.
(b) Capitalization.
(i) The authorized capital stock of Xxxxxx consists of
120,000,000 shares of Xxxxxx Common Stock, and 1,942,000 shares
of preferred stock, par value $1.00 per share ("Xxxxxx Preferred
Stock"). As of September 30, 1998, there were issued and
outstanding 76,783,045 shares of Xxxxxx Common Stock, 482,044
shares of Xxxxxx Common Stock were held as treasury shares, and
no shares of Xxxxxx Preferred Stock were issued and outstanding
but 120,000 shares have been designated as Junior Participating
Preferred Stock, par value $.01 per share. All issued shares of
Xxxxxx Common Stock were validly issued and are fully paid and
nonassessable and no holder thereof is entitled to preemptive
rights. Except as set forth in Section 2.1(b) of the Xxxxxx
Disclosure Letter, and except for shares reserved for issuance
pursuant to Xxxxxx stock plans described in Section 2.1(b) of
Xxxxxx Disclosure Letter and pursuant to the 5 1/2 % Convertible
Subordinated Debentures due 2004 (the "Convertible Debentures"),
no shares of Xxxxxx Common Stock are reserved for issuance, and
except for Xxxxxx'x obligations under that certain Rights
Agreement dated as of July 14, 1998 between Xxxxxx and Norwest
Bank Minnesota, N.A., as Rights Agent, there are no contracts,
agreements, commitments or arrangements obligating Xxxxxx (i) to
offer, sell, issue or grant any capital stock of Xxxxxx or (ii)
to redeem, purchase or acquire, or offer to purchase or acquire,
any outstanding capital stock of Xxxxxx or to grant any lien on
any shares of capital stock of Xxxxxx. All shares of Xxxxxx
Common Stock to be issued pursuant to the Merger, when issued in
accordance with this Agreement, will be validly issued, fully
paid and nonassessable and will not violate the preemptive rights
of any person. Except as set forth in Section 2.1(b) of the
Xxxxxx Disclosure Letter, Xxxxxx is not a party to, and is not
aware of, any voting agreement, voting trust or similar agreement
or arrangement relating to any class or series of its capital
stock, or any agreement or arrangement providing for registration
rights with respect to any capital stock or other securities of
Xxxxxx.
(ii) As of September 30, 1998, there were outstanding
options to purchase 5,597,500 shares of Xxxxxx Common Stock
pursuant to the plans and agreements referenced in Section
2.1(b)(i) above ("Xxxxxx Options"), and 11,371,020 shares were
reserved for issuance upon conversion of the Convertible
Debentures.
(iii) As of the date hereof, the authorized capital stock of
Sub consists of 1,000 shares of common stock, par value $0.01 per
share, all of which were validly issued and are fully paid and
nonassessable and are owned by Xxxxxx.
(iv) Except as set forth in Section 2.1(b) of the Xxxxxx
Disclosure Letter, all outstanding shares of the Xxxxxx
Subsidiaries (A) are owned by Xxxxxx or a wholly owned subsidiary
of Xxxxxx, free and clear of all liens, charges, encumbrances,
adverse claims and options of any nature, (B) were duly
authorized and validly issued and are fully paid and
nonassessable, and (C) have not been issued in violation of any
preemptive rights. Except as set forth in Section 2.1(b) of the
Xxxxxx Disclosure Letter, there are not now, and at the Effective
Time there will not be, any outstanding options, warrants, scrip,
rights to subscribe for, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into
or exchangeable for, shares of any class of capital stock of the
Xxxxxx Subsidiaries, or contracts, understandings or arrangements
to which Xxxxxx or a Xxxxxx Subsidiary is a party, or by which
any of them is or may be bound, to issue additional shares of
capital stock or options, warrants, scrip or rights to subscribe
for, or securities or rights convertible into or exchangeable
for, any additional shares of capital stock of any Xxxxxx
Subsidiary.
(c) Authorization and Validity of Agreement. Xxxxxx and Sub have
all requisite corporate power and authority to enter into this
Agreement and to perform their obligations hereunder. The execution
and delivery by Xxxxxx and Sub of this Agreement and the consummation
by each of them of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Xxxxxx and
Sub (other than, with respect to the approval of the issuance of
shares of Xxxxxx Common Stock pursuant to the Merger (the "Share
Issuance") and the approval of an amendment to Xxxxxx'x Restated
Certificate of Incorporation to increase the authorized share capital
(the "Charter Amendment"), by the holders of a majority of the
outstanding shares of Xxxxxx Common Stock in accordance with Section
5.1(b)). On or prior to the date hereof, the Board of Directors of
Xxxxxx has determined to recommend approval of the Share Issuance and
the Charter Amendment to the stockholders of Xxxxxx, and such
determination is in effect as of the date hereof. This Agreement has
been duly executed and delivered by Xxxxxx and Sub and is the valid
and binding obligation of Xxxxxx and Sub, enforceable against Xxxxxx
and Sub in accordance with its terms, except as the same may be
limited by legal principles of general applicability governing the
application and availability of equitable remedies.
(d) No Approvals or Notices Required; No Conflict with
Instruments to which Xxxxxx or any of the Xxxxxx Subsidiaries is a
Party. Neither the execution and delivery of this Agreement nor the
performance by Xxxxxx or Sub of their respective obligations
hereunder, nor the consummation of the transactions contemplated
hereby by Xxxxxx and Sub, will (i) except for the requirement of a
Charter Amendment to increase the authorized share capital, conflict
with the certificate of incorporation or bylaws or other equivalent
organizational documents of Xxxxxx or the charter or bylaws of any of
the Xxxxxx Subsidiaries; (ii) assuming satisfaction of the
requirements set forth in clause (iii) below, violate any provision of
law applicable to Xxxxxx or any of the Xxxxxx Subsidiaries;
(iii) except for (A) requirements of federal or state securities laws,
(B) requirements arising out of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx"), (X) requirements of notice
filings in such foreign jurisdictions as may be applicable, and
(D) the filing of a certificate of merger by Sub in accordance with
the DGCL, require any consent or approval of, or filing with or notice
to, any public body or authority, domestic or foreign, under any
provision of law applicable to Xxxxxx or any of the Xxxxxx
Subsidiaries; or (iv) require any consent, approval or notice under,
or violate, breach, be in conflict with or constitute a default (or an
event that, with notice or lapse of time or both, would constitute a
default) under, or permit the termination of any provision of, or
result in the creation or imposition of any lien upon any properties,
assets or business of Xxxxxx or any of the Xxxxxx Subsidiaries under,
any note, bond, indenture, mortgage, deed of trust, lease, franchise,
permit, authorization, license, contract, instrument or other
agreement or commitment or any order, judgment or decree to which
Xxxxxx or any of the Xxxxxx Subsidiaries is a party or by which Xxxxxx
or any of the Xxxxxx Subsidiaries or any of their respective assets or
properties is bound or encumbered, except (A) the approval by the
stockholders of Xxxxxx in accordance with Section 5.1(b), (B) those
that have already been given, obtained or filed, (C) those that are
required pursuant to bank loan agreements, as set forth in Section
2.1(d) of the Xxxxxx Disclosure Letter, which will be obtained prior
to the Effective Time, or (D) those that, in the aggregate, would not
have a Xxxxxx XXX.
(e) Commission Filings; Financial Statements. Xxxxxx and each of
the Xxxxxx Subsidiaries have timely filed all reports, registration
statements and other filings, together with any amendments required to
be made with respect thereto, that they have been required to file
with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). All
reports, registration statements and other filings (including all
notes, exhibits and schedules thereto and documents incorporated by
reference therein) filed by Xxxxxx with the Commission since
August 31, 1996 through the date of this Agreement, together with any
amendments thereto, are sometimes collectively referred to as the
"Xxxxxx Commission Filings." As of the respective dates of their
filing with the Commission, the Xxxxxx Commission Filings complied in
all material respects with the Securities Act, the Exchange Act and
the rules and regulations of the Commission thereunder, and did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which
they were made, not misleading.
Each of the consolidated financial statements (including any
related notes or schedules) included in the Xxxxxx Commission Filings
was prepared in accordance with generally accepted accounting
principles applied on a consistent basis (except as may be noted
therein or in the notes or schedules thereto) and complied with all
applicable rules and regulations of the Commission. Such consolidated
financial statements fairly present the consolidated financial
position of Xxxxxx and the Xxxxxx Subsidiaries as of the dates thereof
and the results of operations, cash flows and changes in stockholders'
equity for the periods then ended (subject, in the case of the
unaudited interim financial statements, to normal year-end audit
adjustments on a basis consistent with past periods).
(f) Absence of Undisclosed Liabilities. Except as disclosed in
Section 2.1(f) of the Xxxxxx Disclosure Letter or in the Xxxxxx
Commission Filings, as of the date of this Agreement, neither Xxxxxx
nor any of the Xxxxxx Subsidiaries has any liabilities that are
reasonably likely to have, individually or in the aggregate, a Xxxxxx
XXX, except liabilities which are accrued or reserved against in the
consolidated balance sheet of Xxxxxx as of August 31, 1997 or May 31,
1998, included in the Xxxxxx Commission Filings or reflected in the
notes thereto. Neither Xxxxxx nor any Xxxxxx Subsidiary has incurred
or paid any liability since May 31, 1998, except for liabilities
incurred or paid (i) in the ordinary course of business consistent
with past practice, (ii) in connection with transactions contemplated
by this Agreement, or (iii) pursuant to transactions not prohibited by
this Agreement.
(g) Conduct of Business in the Ordinary Course; Absence of
Certain Changes and Events. Since August 31, 1997, except as
contemplated by this Agreement or as disclosed in the Xxxxxx
Commission Filings filed with the Commission prior to the date hereof
or as set forth in Section 2.1(g) of the Xxxxxx Disclosure Letter,
Xxxxxx and the Xxxxxx Subsidiaries have conducted their business only
in the ordinary and usual course, and there has not been (i) any
Xxxxxx XXX or any condition, event or development that reasonably may
be expected to result in a Xxxxxx XXX; (ii) any material change by
Xxxxxx in its accounting methods, principles or practices; (iii) any
revaluation by Xxxxxx or any of the Xxxxxx Subsidiaries of any of
their respective assets, including, without limitation, writing down
the value of inventory or writing off notes or accounts receivable
other than in the ordinary course of business; (iv) any declaration,
setting aside or payment of any dividends or distributions in respect
of Xxxxxx Common Stock, or any redemption, purchase or other
acquisition of any of its securities or any securities of any of the
Xxxxxx Subsidiaries; (v) any damage, destruction or loss (whether or
not covered by insurance) materially adversely affecting the
properties or business of Xxxxxx and the Xxxxxx Subsidiaries, taken as
a whole; (vi) any increase in indebtedness for borrowed money other
than borrowings under existing credit facilities or indebtedness
incurred in the ordinary course of business; or (vii) any granting of
a security interest in or lien on any material property or assets of
Xxxxxx and the Xxxxxx Subsidiaries, taken as a whole, other than
(A) liens for taxes not due and payable or which are being contested
in good faith; (B) maritime liens and mechanics', warehousemen's and
other statutory liens incurred in the ordinary course of business;
(C) defects and irregularities in title and encumbrances which are not
substantial in character or amount and do not materially impair the
use of the property or asset in question; and (D) liens securing
indebtedness incurred in the ordinary course of business
(collectively, "Permitted Liens").
(h) Tax Representation. Xxxxxx has no plan or intention to (i)
liquidate the Surviving Corporation; (ii) merge the Surviving
Corporation with or into another corporation; (iii) sell or otherwise
dispose of the stock of the Surviving Corporation except for transfers
or successive transfers to one or more corporations controlled (within
the meaning of section 368(c) of the Code) in each case by the
transferor corporation; (iv) cause the Surviving Corporation to issue
additional shares of its capital stock that would result in Xxxxxx'x
losing control (within the meaning of section 368(c) of the Code), of
the Surviving Corporation; (v) cause or permit the Surviving
Corporation to sell or otherwise dispose of any of its assets or of
any of the assets acquired from Sub except for dispositions made in
the ordinary course of business or transfers or successive transfers
to one or more corporations controlled (within the meaning of section
368(c) of the Code) in each case by the transferor corporation; or
(vi) reacquire or cause any person related (as defined in Treas. Reg.
1.368-1(e)(3)) to Xxxxxx to acquire any of the Xxxxxx Common
Stock issued to the Superior stockholders pursuant to the Merger.
Neither Xxxxxx nor any of the Xxxxxx Subsidiaries own any Superior
Common Stock. Following the Merger, the Surviving Corporation will
continue its historic business (within the meaning of Treas. Reg.
1.368-1(d)) or use a significant portion of its historic
business assets (within the meaning of Regulation 1.368-1(d)) in a
trade or business.
(i) Opinion of Financial Advisor. Xxxxxx has received the
opinion of Xxxxxxxxx & Company, Inc. on the date of this Agreement to
the effect that the Merger Consideration is fair, from a financial
point of view, to Xxxxxx.
(j) Interim Operations of Sub. Sub was formed solely for the
purpose of engaging in the transactions contemplated hereby, has
engaged in no other business activities and has conducted its
operations only as contemplated hereby.
(k) No agent, broker, person or firm acting on behalf of Xxxxxx
is or will be entitled to any commission or broker's or finder's fee
from any of the parties hereto in connection with any of the
transactions contemplated herein, except fees to Xxxxxxxxx & Company,
Inc. and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, both to
be paid by Xxxxxx.
(l) Certain Business Practices. As of the date of this
Agreement, neither Xxxxxx or any of the Xxxxxx Subsidiaries nor any
director, officer, employee or agent of Xxxxxx or any of the Xxxxxx
Subsidiaries has (i) used any funds for unlawful contributions, gifts,
entertainment or other unlawful payments relating to political
activity, (ii) made any unlawful payment to any foreign or domestic
government official or employee or to any foreign or domestic
political party or campaign or violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended (the "FCPA"),
(iii) consummated any transaction, made any payment, entered into any
agreement or arrangement or taken any other action in violation of
Section 1128B(b) of the Social Security Act, as amended (the "SSA"),
or (iv) made any other unlawful payment.
2.2 REPRESENTATIONS AND WARRANTIES OF SUPERIOR. Superior hereby
represents and warrants to Xxxxxx that:
(a) Organization and Compliance with Law. Each of Superior and
its consolidated subsidiaries (the "Superior Subsidiaries") is a
corporation or a limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction in
which it is chartered or organized and has all requisite corporate
power and authority and all necessary governmental authorizations to
own, lease and operate all of its properties and assets and to carry
on its business as now being conducted, except where the failure to be
so organized, existing or in good standing or to have such
governmental authority would not have a material adverse effect on the
financial condition, results of operations or business of Superior and
the Superior Subsidiaries, taken as a whole (a "Superior MAE"). A
Superior MAE shall not be deemed to include material adverse changes
affecting the oilfield services industry or the United States economy
generally. Except as set forth in Section 2.2(a) of the disclosure
letter delivered by Superior to Xxxxxx on the date hereof (the
"Superior Disclosure Letter"), each of Superior and the Superior
Subsidiaries is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary, except in such
jurisdictions where the failure to be duly qualified does not and
would not, either individually or in the aggregate, have a Superior
MAE. Each of Superior and the Superior Subsidiaries is in compliance
with all applicable laws, judgments, orders, rules and regulations,
domestic and foreign, except where failure to be in such compliance
would not have a Superior MAE.
(b) Capitalization.
(i) The authorized capital stock of Superior consists of
40,000,000 shares of Superior Common Stock and 5,000,000 shares of
preferred stock, par value $.01 per share ("Superior Preferred
Stock"). As of October 26, 1998, there were issued and outstanding
28,792,523 shares of Superior Common Stock, 474,500 shares of Superior
Common Stock were held as treasury shares and no shares of Superior
Preferred Stock were issued and outstanding. All issued shares of
Superior Common Stock were validly issued and are fully paid and
nonassessable and no holder thereof is entitled to preemptive rights.
Except as set forth in Section 2.2(b) of the Superior Disclosure
Letter, Superior is not a party to, and is not aware of, any voting
agreement, voting trust or similar agreement or arrangement relating
to any class or series of its capital stock, or any agreement or
arrangement providing for registration rights with respect to any
capital stock or other securities of Superior.
(ii) As of the date hereof, there were outstanding options
(the "Superior Options") to purchase an aggregate of 1,726,500 shares
of Superior Common Stock under the Amended and Restated Superior, Inc.
1995 Stock Incentive Plan (the "Superior Stock Option Plan"). Other
than as set forth in this Section 2.2(b), there are not now, and at
the Effective Time there will not be, any (A) shares of capital stock
or other equity securities of Superior outstanding other than Superior
Common Stock issuable pursuant to the exercise of Superior Options or
(B) outstanding options, warrants, scrip, rights to subscribe for,
calls or commitments of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for, shares of
any class of capital stock of Superior, or contracts, understandings
or arrangements to which Superior is a party, or by which it is or may
be bound, to issue additional shares of its capital stock or options,
warrants, scrip or rights to subscribe for, or securities or rights
convertible into or exchangeable for, any additional shares of its
capital stock.
(iii) Except as set forth in Section 2.2(b) of the Superior
Disclosure Letter, all outstanding shares of capital stock of the
Superior Subsidiaries (A) are owned by Superior or a wholly owned
subsidiary of Superior, free and clear of all liens, charges,
encumbrances, adverse claims and options of any nature, (B) were duly
authorized and validly issued and are fully paid and nonassessable,
and (C) have not been issued in violation of any preemptive rights.
There are not now, and at the Effective Time there will not be, any
outstanding options, warrants, scrip, rights to subscribe for, calls
or commitments of any character whatsoever relating to, or securities
or rights convertible into or exchangeable for, shares of any class of
capital stock of the Superior Subsidiaries, or contracts,
understandings or arrangements to which Superior or a Superior
Subsidiary is a party, or by which any of them is or may be bound, to
issue additional shares of its capital stock or options, warrants,
scrip or rights to subscribe for, or securities or rights convertible
into or exchangeable for, any additional shares of capital stock of
any Superior Subsidiary. There are not now, and at the Effective Time
there will not be, any outstanding contractual obligations of Superior
or any of the Superior Subsidiaries to repurchase, redeem or otherwise
acquire any outstanding shares of capital stock or other ownership
interests of any such Superior Subsidiary or to provide funds to or
make any investment (in the form of a loan, capital contribution or
otherwise) in any such Superior Subsidiary or any other entity.
(iv) Except for the Superior Subsidiaries or as set forth in
Section 2.2(b) of the Superior Disclosure Letter, Superior does not,
directly or indirectly, own of record or beneficially, or have the
right or obligation to acquire, any outstanding securities or other
interest in any corporation, partnership, joint venture or other
entity.
(c) Authorization and Validity of Agreement. Superior has all
requisite corporate power and authority to enter into this Agreement
and to perform its obligations hereunder. The execution and delivery
by Superior of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action (subject only, with respect to the Merger,
to approval of this Agreement by its stockholders as provided for in
Section 5.1(a)). On or prior to the date hereof, the Board of
Directors of Superior has determined to recommend approval of the
Merger to the stockholders of Superior, and such determination is in
effect as of the date hereof. This Agreement has been duly executed
and delivered by Superior and is the valid and binding obligation of
Superior, enforceable against Superior in accordance with its terms,
except as the same may be limited by legal principles of general
applicability governing the application and availability of equitable
remedies.
(d) No Approvals or Notices Required; No Conflict with
Instruments to which Superior or any of the Superior Subsidiaries is a
Party. Neither the execution and delivery of this Agreement nor the
performance by Superior of its obligations hereunder, nor the
consummation of the transactions contemplated hereby by Superior, will
(i) conflict with the certificate of incorporation or bylaws of
Superior or the charter or bylaws or other equivalent organizational
documents of any of the Superior Subsidiaries; (ii) assuming
satisfaction of the requirements set forth in clause (iii) below,
violate any provision of law applicable to Superior or any of the
Superior Subsidiaries; (iii) except for (A) requirements of federal or
state securities laws, (B) requirements arising out of the HSR Act,
(C) requirements of notice filings in such foreign jurisdictions as
may be applicable, and (D) the filing of a certificate of merger in
accordance with the DGCL, require any consent or approval of, or
filing with or notice to, any public body or authority, domestic or
foreign, under any provision of law applicable to Superior or any of
the Superior Subsidiaries; or (iv) require any consent, approval or
notice under, or violate, breach, be in conflict with or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or permit the termination of any
provision of, or result in the creation or imposition of any lien upon
any properties, assets or business of Superior or any of the Superior
Subsidiaries under, any note, bond, indenture, mortgage, deed of
trust, lease, franchise, permit, authorization, license, contract,
instrument or other agreement or commitment or any order, judgment or
decree to which Superior or any of the Superior Subsidiaries is a
party or by which Superior or any of the Superior Subsidiaries or any
of their respective assets or properties is bound or encumbered,
except (A) the approval by the stockholders of Superior of this
Agreement in accordance with Section 5.1(a), (B) those that have
already been given, obtained or filed, (C) those that are required
pursuant to bank loan agreements, as set forth in Section 2.2(d) of
the Superior Disclosure Letter, which Superior will use its reasonable
efforts to obtain prior to the Effective Time, and (D) those that, in
the aggregate, would not have a Superior MAE.
(e) Commission Filings; Financial Statements. Superior and each
of the Superior Subsidiaries have timely filed all reports,
registration statements and other filings, together with any
amendments required to be made with respect thereto, that they have
been required to file with the Commission under the Securities Act and
the Exchange Act. All reports, registration statements and other
filings (including all notes, exhibits and schedules thereto and
documents incorporated by reference therein) filed by Superior with
the Commission since January 1, 1996 through the date of this
Agreement, together with any amendments thereto, are sometimes
collectively referred to as the "Superior Commission Filings." As of
the respective dates of their filing with the Commission, the Superior
Commission Filings complied in all material respects with the
Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder, and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of
the circumstances under which they were made, not misleading.
Each of the consolidated financial statements (including any
related notes or schedules) included in the Superior Commission
Filings was prepared in accordance with generally accepted accounting
principles applied on a consistent basis (except as may be noted
therein or in the notes or schedules thereto) and complied with the
rules and regulations of the Commission. Such consolidated financial
statements fairly present the consolidated financial position of
Superior and the Superior Subsidiaries as of the dates thereof and the
results of operations, cash flows and changes in stockholders' equity
for the periods then ended (subject, in the case of the unaudited
interim financial statements, to normal year-end audit adjustments on
a basis consistent with past periods).
(f) Absence of Undisclosed Liabilities. Except as disclosed in
Section 2.2(f) of the Superior Disclosure Letter or in the Superior
Commission Filings, as of the date of this Agreement, neither Superior
nor any of the Superior Subsidiaries has any liabilities that are
reasonably likely to have, individually or in the aggregate, a
Superior MAE, except liabilities which are accrued or reserved against
in the consolidated balance sheet of Superior as of December 31, 1997
or June 30, 1998, included in the Superior Commission Filings or
reflected in the notes thereto. Neither Superior nor any Superior
Subsidiary has incurred or paid any liability since June 30, 1998,
except for liabilities incurred or paid (i) in the ordinary course of
business consistent with past practice, (ii) in connection with
transactions contemplated by this Agreement, or (iii) pursuant to
transactions not prohibited by this Agreement.
(g) Conduct of Business in the Ordinary Course; Absence of
Certain Changes and Events. Since January 1, 1998, except as
contemplated by this Agreement or as disclosed in the Superior
Commission Filings filed with the Commission prior to the date hereof
or as set forth in Section 2.2(g) of the Superior Disclosure Letter,
Superior and the Superior Subsidiaries have conducted their business
only in the ordinary and usual course, and there has not been (i) any
Superior MAE, or any condition, event or development that reasonably
may be expected to result in a Superior MAE; (ii) any material change
by Superior in its accounting methods, principles or practices;
(iii) any revaluation by Superior or any of the Superior Subsidiaries
of any of their respective assets, including, without limitation,
writing down the value of inventory or writing off notes or accounts
receivable other than in the ordinary course of business; (iv) any
entry by Superior or any of the Superior Subsidiaries into any
commitment or transaction material to Superior and the Superior
Subsidiaries, taken as a whole; (v) any declaration, setting aside or
payment of any dividends or distributions in respect of Superior
Common Stock or any redemption, purchase or other acquisition of any
of its securities or any securities of any of the Superior
Subsidiaries; (vi) any damage, destruction or loss (whether or not
covered by insurance) materially adversely affecting the properties or
business of Superior and the Superior Subsidiaries, taken as a whole;
(vii) any increase in indebtedness for borrowed money other than an
increase as a result of borrowings under existing credit facilities or
indebtedness incurred in the ordinary course of business; (viii) any
granting of a security interest in or lien on any material property or
assets of Superior and the Superior Subsidiaries, taken as a whole,
other than Permitted Liens; or (ix) any increase in or establishment
of any bonus, insurance, severance, deferred compensation, pension,
retirement, profit sharing, stock option (including, without
limitation, the granting of stock options, stock appreciation rights,
performance awards or restricted stock awards), stock purchase or
other employee benefit plan or any other increase in the compensation
payable or to become payable to any officers or key employees of
Superior or any of the Superior Subsidiaries other than those that are
required under existing contractual arrangements.
(h) Litigation. Except as disclosed in the Superior Commission
Filings or as set forth in Section 2.2(h) of the Superior Disclosure
Letter, there are no claims, actions, suits, investigations, inquiries
or proceedings (including any proceedings in arbitration) pending or,
to the knowledge of Superior, threatened against or affecting Superior
or any of the Superior Subsidiaries or any of their respective
properties at law or in equity, or before or by any federal, state,
municipal or other governmental agency or authority, or before any
arbitration board or panel, wherever located, that individually or,
with respect to multiple actions, suits or proceedings that allege
similar theories of recovery based on similar facts, in the aggregate
if adversely determined could have a Superior MAE, or that involve the
risk of criminal liability. There are no claims pending or, to the
knowledge of Superior, threatened by any present or former officer,
director, employee or affiliate against Superior or any of the
Superior Subsidiaries for indemnification pursuant to any statute,
organizational document, contract or otherwise with respect to any
action, suit, investigation or proceeding pending in any court or
before or by any governmental authority.
(i) Employee Benefit Plans.
(i) Section 2.2(i) of the Superior Disclosure Letter
provides a list of each of the following which is sponsored,
maintained or contributed to by Superior, a Superior Subsidiary or any
corporation, trade, business or entity under common control with
Superior or a Superior Subsidiary within the meaning of section
414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA (as
defined below) (a "Superior ERISA Affiliate") for the benefit of its
current or former employees, officers or directors as of the Closing
Date:
(A) each "employee benefit plan" ("Plan"), as such term is
defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"); and
(B) each personnel policy, stock option plan, collective
bargaining agreement, bonus plan or arrangement, incentive award
plan or arrangement, vacation policy, severance pay plan, policy
or agreement, deferred compensation agreement or arrangement,
executive compensation or supplemental income arrangement,
consulting agreement, employment agreement and each other
employee benefit plan, agreement, arrangement, program, practice
or understanding that is not described in Section 2.2(i)(i)(A)
("Benefit Program or Agreement").
True and complete copies of each of the Plans, Benefit Programs or
Agreements, related trusts, if applicable, and all amendments thereto,
have been or on request will be furnished to Xxxxxx.
(ii) None of Superior, any Superior Subsidiary or any Superior
ERISA Affiliate contributes to or has an obligation to contribute to,
or has at any time contributed to or had an obligation to contribute
to, a plan subject to Title IV of ERISA, including, without
limitation, a multiemployer plan within the meaning of Section 3(37)
of ERISA.
(iii) Except as otherwise set forth in Section 2.2(i) of the
Superior Disclosure Letter:
(A) each Plan and each Benefit Program or Agreement has been
administered, maintained and operated in all material respects in
accordance with the terms thereof and in compliance with its
governing documents and applicable law (including, where
applicable, ERISA and the Code);
(B) there is no matter pending with respect to any of the
Plans before any governmental agency, and there are no actions,
suits or claims pending (other than routine claims for benefits)
or, to the knowledge of Superior, threatened against, or with
respect to, any of the Plans or Benefit Programs or Agreements or
their assets;
(C) no act, omission or transaction has occurred which would
result in the imposition on Superior, any Superior Subsidiary or
any Superior ERISA Affiliate of breach of fiduciary duty
liability damages under Section 409 of ERISA, a civil penalty
assessed pursuant to Subsections (c), (i) or (1) of Section 502
of ERISA or a tax imposed pursuant to Chapter 43 of Subtitle D of
the Code;
(D) the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not
require Superior, any Superior Subsidiary or any Superior ERISA
Affiliate to make a larger contribution to, or pay greater
benefits under, any Plan, Benefit Program or Agreement than it
otherwise would, whether or not some other subsequent action or
event would be required to cause such payment or provision to be
triggered, or create or give rise to any additional vested rights
or service credits under any Plan or Benefit Program or
Agreement; and
(E) each of the Plans intended to be qualified under section
401 of the Code (1) satisfies in form the requirements of such
section except to the extent amendments are not required by law
to be made until a date after the Closing Date, (2) has received
a favorable determination letter from the Internal Revenue
Service regarding such qualified status, (3) has not, since
receipt of the most recent favorable determination letter, been
amended, and (4) has not been operated in a way that would
adversely affect its qualified status.
(iv) In connection with the consummation of the transactions
contemplated by this Agreement, no payments of money or other
property, acceleration of benefits, or provisions of other rights have
or will be made hereunder, under any agreement contemplated hereby, or
under the Plans or Benefit Programs or Agreements that would be
reasonably likely to result in the imposition of the sanctions imposed
under sections 280G and 4999 of the Code, whether or not some other
subsequent action or event would be required to cause such payment,
acceleration or provision to be triggered.
(v) Each Plan may be unilaterally amended or terminated in
its entirety without liability except as to benefits accrued
thereunder prior to such amendment or termination.
(j) Taxes. Except as set forth in Section 2.2(j) of the Superior
Disclosure Letter, all federal and all material state, local, foreign
returns, declarations, reports, including claims for refunds,
estimates, information returns and statements (including any
amendments thereof) ("Tax Returns") of or relating to any Taxes (as
hereinafter defined) that are required to be filed on or before the
Closing Date by or with respect to Superior or any of the Superior
Subsidiaries, or any other corporation that is or was a member of an
affiliated group (within the meaning of section 1504(a) of the Code)
of corporations of which Superior was a member for any period ending
on or prior to the Closing Date, have been or will be duly and timely
filed with appropriate governmental authorities, and all Taxes,
including interest and penalties, due and payable with respect to the
periods covered by such Tax Returns or otherwise required to be duly
paid or deposited by or with respect to Superior or any of the
Superior Subsidiaries have been paid or adequately provided for in
reserves established by Superior. Except as set forth in Section
2.2(j) of the Superior Disclosure Letter, all U.S. Federal Income Tax
Returns of or with respect to Superior or any of the Superior
Subsidiaries have been audited by the applicable governmental
authority, or the applicable statute of limitations has expired, for
all periods up to and including the tax year ended December 31, 1994.
There is no material claim against Superior or any of the Superior
Subsidiaries with respect to any Taxes, and no material assessment,
deficiency or adjustment has been asserted or proposed with respect to
any Tax Return of or with respect to Superior or any of the Superior
Subsidiaries that has not been adequately provided for in reserves
established by Superior in the consolidated financial statements
included in the Superior Commission Filings. The total amounts set up
as liabilities for current and deferred Taxes in the consolidated
financial statements included in the Superior Commission Filings have
been prepared in accordance with generally accepted accounting
principles and are sufficient to cover the payment of all material
Taxes, including any penalties or interest thereon and whether or not
assessed or disputed, that are, or are hereafter found to be, or to
have been, due with respect to the operations of Superior and the
Superior Subsidiaries through the periods covered thereby. Superior
and each of the Superior Subsidiaries have (and as of the Closing Date
will have) made all deposits (including estimated tax payments for
taxable years for which the consolidated federal income tax return is
not yet due) required with respect to Taxes. Except as set forth in
Section 2.2(j) of the Superior Disclosure Letter, no waiver or
extension of any statute of limitations as to any federal, local or
foreign Tax matter has been given by or requested from Superior or any
of the Superior Subsidiaries, and none of such Tax Returns are now
under audit or examination by any federal, state, local or foreign or
other governmental entity. Except for statutory liens for current
Taxes not yet due, no liens for Taxes exist upon the assets of either
Superior or the Superior Subsidiaries. Except as set forth in Section
2.2(j) of the Superior Disclosure Letter, neither Superior nor any of
the Superior Subsidiaries (i) has filed consolidated income Tax
Returns with any corporation, other than consolidated federal and
state income Tax Returns with Superior, for any taxable period which
is not now closed by the applicable statute of limitations, (ii) is a
party to any tax sharing or tax indemnity agreement, or (iii) has any
liability for Taxes of any other person (other than current members of
Superior's affiliated group of corporations) under Treas. Reg.
1.1502-6 (or any similar provision of state, local or foreign
law), as a transferee or successor, by contract or otherwise. Neither
Superior nor the Superior Subsidiaries has any income or gain
resulting from any intercompany transaction as described in Treas.
Reg. 1.1502-13.
Superior and the Superior Subsidiaries have made available to
Xxxxxx true and correct copies of all federal, state and local income
and franchise Tax Returns, examination reports and statements of
deficiencies asserted or assessed against or agreed to by Superior or
any Superior Subsidiary for all open Tax periods. None of the assets
of Superior or the Superior Subsidiaries (i) is property that is
required to be treated as being owned by any other person pursuant to
the "safe harbor lease" provisions of former section 168(f)(8) of the
Code, (ii) is "tax-exempt use property" within the meaning of section
168(h) of the Code, or (iii) secures any debt the interest on which is
tax-exempt under section 103(a) of the Code.
For purposes of this Agreement, "Tax" or "Taxes" means any and
all taxes, fees, levies, duties, tariffs, imposts and other charges of
any kind (together with any and all interest, penalties, additions to
tax and additional amounts imposed with respect thereto) imposed by
any government or taxing authority, including, without limitation,
taxes or other charges on or with respect to income, franchises,
severance, gross receipts, property, sales, use, capital stock,
payroll, employment, social security, workers' compensation,
unemployment compensation, disability or net worth; taxes or other
charges in the nature of excise, withholding, ad valorem, stamp,
transfer, value added or gains taxes; license, registration and
documentation fees; and custom duties, tariffs and similar charges
whether or not disputed.
(k) Environmental Matters. Except for matters disclosed in the
Superior Commission Filings or as set forth in Section 2.2(k) of the
Superior Disclosure Letter and except for matters that in the
aggregate would not have a Superior MAE, (i) the properties,
operations and activities of Superior and the Superior Subsidiaries
comply with all applicable Environmental Laws (as defined below);
(ii) Superior and the Superior Subsidiaries and the properties and
operations of Superior and the Superior Subsidiaries are not subject
to any existing, pending or, to the knowledge of Superior, threatened
action, suit, investigation, inquiry or proceeding by or before any
governmental authority under any Environmental Law; (iii) all notices,
permits, licenses or similar authorizations, if any, required to be
obtained or filed by Superior or the Superior Subsidiaries under any
Environmental Law in connection with any aspect of the business of
Superior or the Superior Subsidiaries, including without limitation
those relating to the treatment, storage, disposal or release of a
hazardous substance or solid waste, have been duly obtained or filed
and will remain valid and in effect after the Merger, and Superior and
the Superior Subsidiaries are in compliance with the terms and
conditions of all such notices, permits, licenses and similar
authorizations; (iv) Superior and the Superior Subsidiaries have
satisfied and are currently in compliance with all financial
responsibility requirements applicable to their operations and imposed
by the U.S. Coast Guard and Minerals Management Service pursuant to
OPA (as hereinafter defined) or by any other governmental authority
under any other Environmental Law, and Superior and the Superior
Subsidiaries have not received any notice of noncompliance with any
such financial responsibility requirements; (v) to the knowledge of
Superior, there are no physical or environmental conditions existing
on any property of Superior and the Superior Subsidiaries or resulting
from Superior's and the Superior Subsidiaries' operations or
activities, past or present, at any location, that would give rise to
any on-site or off-site remedial obligations under any Environmental
Laws; (vi) to the knowledge of Superior, since the effective date of
the relevant requirements of applicable Environmental Laws, all
hazardous substances or solid wastes generated by Superior or any of
the Superior Subsidiaries or used in connection with any of their
properties or operations have been transported only by carriers
authorized under Environmental Laws to transport such substances and
wastes, and disposed of only at treatment, storage and disposal
facilities authorized under Environmental Laws to treat, store or
dispose of such substances and wastes, and, to the knowledge of
Superior, such carriers and facilities have been and are operating in
compliance with such authorizations and are not the subject of any
existing, pending or overtly threatened action, investigation or
inquiry by any governmental authority in connection with any
Environmental Laws; (vii) there has been no exposure of any person or
property to hazardous substances, solid waste, or any pollutant or
contaminant, nor has there been any release of hazardous substances,
solid waste, or any pollutant or contaminant into the environment by
Superior or the Superior Subsidiaries or in connection with any of
their properties or operations that could reasonably be expected to
give rise to any claim for damages or compensation; and
(viii) Superior and the Superior Subsidiaries have made available to
Xxxxxx true and correct copies of all internal and external
environmental audits and studies and all correspondence on substantial
environmental matters in the possession of Superior and the Superior
Subsidiaries relating to any of the current or former properties or
operations of Superior and the Superior Subsidiaries.
For purposes of this Agreement, the term "Environmental Laws"
shall mean any and all laws, statutes, ordinances, rules, regulations,
orders or determinations of any Governmental Authority pertaining to
health or the environment currently in effect in any and all
jurisdictions in which the party in question and its subsidiaries own
property or conduct business, including, without limitation, the Clean
Air Act, as amended, the Comprehensive Environmental, Response,
Compensation, and Liability Act of 1980 ("CERCLA"), as amended, the
Federal Water Pollution Control Act, as amended, the Occupational
Safety and Health Act of 1970, as amended, the Resource Conservation
and Recovery Act of 1976 ("RCRA"), as amended, the Safe Drinking Water
Act, as amended, the Toxic Substances Control Act, as amended, the
Hazardous & Solid Waste Amendments Act of 1984, as amended, the
Superfund Amendments and Reauthorization Act of 1986, as amended, the
Hazardous Materials Transportation Act, as amended, the Oil Pollution
Act of 1990 ("OPA"), any state laws pertaining to the handling of oil
and gas exploration and production wastes or the use, maintenance and
closure of pits and impoundments, and all other environmental
conservation or protection laws. For purposes of this Agreement, the
terms "hazardous substance" and "release" have the meanings specified
in CERCLA, and the terms "solid waste" and "disposal" have the
meanings specified in RCRA; provided, however, that to the extent the
laws of the state in which the property is located establish a meaning
for "hazardous substance," "release," "solid waste" or "disposal" that
is broader than that specified in either CERCLA or RCRA, such broader
meaning shall apply. For purposes of this Agreement, the term
"Governmental Authority" includes the United States, the state,
county, city and political subdivisions in which the party in question
owns property or conducts business, and any agency, department,
commission, board, bureau or instrumentality of any of them that
exercises jurisdiction over the party in question.
(l) Severance Payments. Except as set forth in Section 2.2(l) of
the Superior Disclosure Letter, none of Superior or the Superior
Subsidiaries will owe a severance payment or similar obligation to any
of their respective employees, officers or directors as a result of
the Merger or the transactions contemplated by this Agreement, nor
will any of such persons be entitled to severance payments or other
benefits as a result of the Merger or the transactions contemplated by
this Agreement in the event of the subsequent termination of their
employment.
(m) Voting Requirements. The affirmative vote of the holders of
a majority of the outstanding shares of Superior Common Stock is the
only vote of the holders of any class or series of the capital stock
of Superior necessary to approve this Agreement and the Merger.
(n) Section 162(m) of the Code. Except as disclosed in Section
2.2(n) of the Superior Disclosure Letter, the disallowance of a
deduction under section 162(m) of the Code for employee remuneration
will not apply to any amount paid or payable by Superior or the
Surviving Corporation or any of their subsidiaries under any contract,
benefit plan, program, arrangement or understanding of Superior
currently in effect.
(o) Brokers. No agent, broker, person or firm acting on behalf
of Superior is or will be entitled to any commission or broker's or
finder's fee from any of the parties hereto in connection with any of
the transactions contemplated herein, except fees to Xxxxxxx Xxxx &
Company L.L.C. to be paid by Superior.
(p) Labor Relations. Except as set forth in Section 2.2(p) of
the Superior Disclosure Letter, neither Superior nor any of the
Superior Subsidiaries is a party to, or bound by, any collective
bargaining agreement, contract or other agreement or understanding
with respect to a labor union or labor organization, and, to the
knowledge of Superior, there are no organizational efforts with
respect to the formation of a collective bargaining unit presently
being made or threatened involving employees of Superior or any of the
Superior Subsidiaries. There are no unfair labor practice complaints
against Superior or any of the Superior Subsidiaries pending before
the National Labor Relations Board and there is no labor strike,
dispute, slow down or stoppage, or any union organizing campaign,
actually pending or, to the knowledge of Superior, threatened against
Superior or any of the Superior Subsidiaries, except for any such
proceedings which would not reasonably be expected to have a Superior
MAE.
(q) Insurance. Section 2.2(q) of the Superior Disclosure Letter
sets forth a list and brief description of the insurance policies of
Superior and the Superior Subsidiaries relating to their properties
and the conduct of their business. All premiums due and arising
thereon have been paid and such policies are in full force and effect.
True and correct copies of all such insurance policies have been or on
request will be made available to Xxxxxx.
(r) Title to Properties. Superior or the Superior Subsidiaries,
individually or together, have good and marketable title to all of the
properties reflected in Superior's consolidated balance sheet as of
June 30, 1998 (the "Consolidated Balance Sheet"), other than any
properties reflected in Superior's Consolidated Balance Sheet that (i)
have been sold or otherwise disposed of since the date of Superior's
Consolidated Balance Sheet in the ordinary course of business
consistent with past practice or (ii) are not, individually or in the
aggregate, material to Superior, free and clear of security interests
or liens, other than (y) liens the existence of which is reflected in
Superior's Consolidated Financial Statements, and (z) Permitted Liens.
Superior or the Superior Subsidiaries, individually or together, hold
under valid lease agreements all real and personal properties
reflected in Superior's Consolidated Balance Sheet as being held under
capitalized leases, and all real and personal property that is subject
to operating leases, and enjoy peaceful and undisturbed possession of
such properties under such leases, other than (i) any properties as to
which such leases have expired in accordance with their terms without
any liability of any party thereto since the date of Superior's
Consolidated Balance Sheet and (ii) any properties that, individually
or in the aggregate, are not material to Superior. Neither Superior
nor any Superior Subsidiary has received any written notice of any
adverse claim to the title to any properties owned by them or with
respect to any lease under which any properties are held by them,
other than any claims that, individually or in the aggregate, could
not reasonably be expected to have a Superior MAE.
(s) Permits; Compliance. Superior and the Superior Subsidiaries
have obtained all permits, licenses, authorizations, orders,
certificates, registrations or other approvals (collectively,
"Permits") that are necessary to carry on their businesses as
currently conducted, except for any such Permits as to which,
individually or in the aggregate, the failure to possess could not
reasonably be expected to have a Superior MAE. Such Permits are in
full force and effect, have not been violated in any respect that
could reasonably be expected to have a Superior MAE and no suspension,
revocation or cancellation thereof has been threatened, and there is
no action, proceeding or investigation pending or threatened regarding
suspension, revocation or cancellation of any of such Permits, except
where the suspension, revocation or cancellation of such Permits could
not reasonably be expected to have a Superior MAE.
(t) Contingent Payment Obligations. Set forth in Section 2.2(t)
of the Superior Disclosure Letter is a listing of all contingent
amounts required by Superior or any Superior Subsidiary to be paid
after the Effective Time relating to acquisitions by Superior or any
Superior Subsidiary completed prior to the Effective Time.
(u) Certain Business Practices. As of the date of this
Agreement, neither Superior or any of the Superior Subsidiaries nor
any director, officer, employee or agent of Superior or any of the
Superior Subsidiaries has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful payments
relating to political activity, (ii) made any unlawful payment to any
foreign or domestic government official or employee or to any foreign
or domestic political party or campaign or violated any provision of
the FCPA, (iii) consummated any transaction, made any payment, entered
into any agreement or arrangement or taken any other action in
violation of Section 1128B(b) of the SSA, or (iv) made any other
unlawful payment.
(v) Opinion of Financial Advisor. Superior has received the
opinion of Xxxxxxx Xxxx & Company on the date of this Agreement to the
effect that the Merger Consideration is fair, from a financial point
of view, to the holders of Superior Common Stock.
ARTICLE III
COVENANTS OF SUPERIOR PRIOR TO THE EFFECTIVE TIME
Superior covenants and agrees as follows:
3.1 CONDUCT OF BUSINESS BY SUPERIOR PENDING THE MERGER. From the
date of this Agreement until the Effective Time, unless Xxxxxx shall
otherwise agree in writing or as otherwise expressly contemplated by this
Agreement or set forth in Section 3.1 of the Superior Disclosure Letter:
(a) the business of Superior and the Superior Subsidiaries shall
be conducted only in, and Superior and the Superior Subsidiaries shall
not take any action except in, the ordinary course of business and
consistent with past practice;
(b) Superior shall not, directly or indirectly, (i) issue, sell,
pledge, dispose of or encumber, or permit any Superior Subsidiary to
issue, sell, pledge, dispose of or encumber, any capital stock of
Superior or any Superior Subsidiary except upon the exercise of the
options set forth in Section 2.2(b)(ii) of the Superior Disclosure
Letter, upon the exercise of Superior Options or upon conversion of
any convertible securities of Superior outstanding as of the date of
this Agreement; (ii) amend or propose to amend the respective charters
or bylaws of Superior or any Superior Subsidiary; (iii) split, combine
or reclassify any outstanding capital stock, or declare, set aside or
pay any dividend payable in cash, stock, property or otherwise with
respect to its capital stock whether now or hereafter outstanding;
(iv) redeem, purchase or acquire or offer to acquire, or permit any of
the Superior Subsidiaries to redeem, purchase or acquire or offer to
acquire, any of its or their capital stock; (v) enter into any
contract, agreement, commitment or arrangement with respect to any of
the matters set forth in this Section 3.1(b); (vi) enter into, adopt
or (except as may be required by law and except for an amendment to
the Superior Stock Option Plan (or any option agreements existing
thereunder) to provide the Board of Directors of Superior (or a duly
appointed committee thereof) with the power to take the actions
required pursuant to Section 5.7) amend or terminate any bonus, profit
sharing, compensation, severance, termination, stock option, stock
appreciation right, restricted stock, performance unit, stock
equivalent, stock purchase, pension, retirement, deferred
compensation, employment, severance or other employee benefit
agreement, trust, plan, fund or other arrangement for the benefit or
welfare of any director, officer or employee; (vii) increase in any
manner the compensation or fringe benefits of any director, officer or
key employee, other than those that are required under existing
contractual arrangements; (viii) except as provided in Section 5.7,
pay to any director, officer or employee any benefit not required by
any employee benefit agreement, trust, plan, fund or other arrangement
as in effect on the date hereof; (ix) commence any legal proceedings
other than in accordance with past practice or settle any legal
proceedings or claims against Superior or any Superior Subsidiary not
covered by insurance for an amount or amounts in excess of $50,000 in
the aggregate; or (x) lend or advance any funds or otherwise extend
credit to any person other than Superior or a Superior Subsidiary
except for advances to employees for business related expenses
consistent with past practice and trade credit extended in the
ordinary course of business;
(c) Superior shall use its reasonable efforts (i) to preserve
intact the business organization of Superior and each of the Superior
Subsidiaries; (ii) to maintain in effect any authorizations or similar
rights of Superior and each of the Superior Subsidiaries; (iii) to
keep available the services of the current officers and key employees
of Superior and the Superior Subsidiaries; (iv) to preserve the
goodwill of those having business relationships with it and the
Superior Subsidiaries; (v) to maintain and keep its properties and the
properties of the Superior Subsidiaries in as good a repair and
condition as presently exists, except for deterioration due to
ordinary wear and tear and damage due to casualty; and (vi) to
maintain in full force and effect insurance comparable in amount and
scope of coverage to that currently maintained by it and the Superior
Subsidiaries;
(d) Without the prior written consent of Xxxxxx, which consent
will not be unreasonably withheld, Superior shall not make or agree to
make, or permit any of the Superior Subsidiaries to make or agree to
make, new capital expenditures; provided, however, that Superior may
incur up to $5.3 million of capital expenditures in the fourth quarter
of 1998 pursuant to their 1998 capital expenditure budget previously
disclosed to Xxxxxx and may incur up to an aggregate of $200,000 in
1999;
(e) Without the prior written consent of Xxxxxx, which consent
will not be unreasonably withheld, Superior shall not, and shall not
permit any of the Superior Subsidiaries to (i) sell, pledge, dispose
of or encumber any material portion of its assets; (ii) incur, assume
or guarantee indebtedness for money borrowed, other than borrowings
under their revolving line of credit in the ordinary course of
business; or (iii) prepay any indebtedness or other material
liability, except prepayments of indebtedness pursuant to or required
by revolving lines of credit and prepayments made to obtain prepayment
discounts consistent with prior practices;
(f) Superior shall not, and shall not permit any of the Superior
Subsidiaries to, authorize, propose or announce an intention to
authorize or propose, or enter into an agreement with respect to, any
merger, consolidation or business combination (other than the Merger)
or any acquisition of a material amount of assets or securities, or
otherwise acquire direct or indirect control over any other person,
except for (i) purchases of U.S. Treasury securities or U.S.
government agency securities, which in either case have maturities of
three years or less, (ii) other investments in connection with cash
management activities consistent with past practice, or
(iii) purchases of inventory, spares and replacements consistent with
past practices;
(g) Superior shall, and shall cause the Superior Subsidiaries to,
perform their respective obligations under any contracts and
agreements to which any of them is a party or to which any of their
assets is subject;
(h) Superior shall not, and shall not permit any of the Superior
Subsidiaries to, take any action that would, or that reasonably could
be expected to, result in any of the representations and warranties
set forth in this Agreement becoming untrue or any of the conditions
to the Merger set forth in Article VI not being satisfied. Superior
promptly shall advise Xxxxxx orally and in writing of any change or
event having, or which, insofar as reasonably can be foreseen, would
have, a Superior MAE; and
(i) Superior shall, and shall cause the Superior Subsidiaries to,
make available to Xxxxxx and its representatives such information with
respect to the business and affairs of Superior and the Superior
Subsidiaries as Xxxxxx shall reasonably request, and shall confer at
such times as Xxxxxx may reasonably request with one or more
representatives of Xxxxxx to report material operational matters and
the general status of ongoing operations.
3.2 NO SOLICITATION. From and after the date of this Agreement,
neither Superior nor any Superior Subsidiary shall, directly or indirectly,
through any officer, director, employee, representative or agent of
Superior or any of the Superior Subsidiaries, (i) solicit or knowingly
encourage, including by way of furnishing information, or take any other
action to knowingly facilitate the initiation of any inquiries or proposals
regarding (A) any merger, combination, tender offer, share exchange, sale
of shares of capital stock or similar business combination transactions
involving Superior or the Superior Subsidiaries, or the acquisition,
directly or indirectly, of a material interest in any voting securities of
Superior or any of the Superior Subsidiaries or (B) any sale or other
disposition, directly or indirectly, of 5% or more of the assets of
Superior and the Superior Subsidiaries, taken as a whole (any of the
transactions being referred to herein as a "Superior Acquisition
Transaction"), (ii) negotiate or otherwise engage in discussions with any
person (other than Xxxxxx, Sub or their directors, officers, employees,
agents and representatives) with respect to any Superior Acquisition
Transaction, (iii) enter into any agreement, arrangement or understanding
requiring it to terminate or fail to consummate the Merger or any other
transactions contemplated by this Agreement; or (iv) agree to endorse or
endorse any Superior Acquisition Transaction; provided, however, that
nothing in this Section 3.2 or elsewhere in this Agreement shall prevent
the members of the Board of Directors of Superior from (i) furnishing
information to (but only pursuant to a confidentiality agreement
substantially similar to the Confidentiality Agreement between Superior and
Xxxxxx dated October 22, 1998 (the "Confidentiality Agreement")) or
entering into discussions or negotiations with any person or group that
makes an unsolicited bona fide written proposal for a Superior Acquisition
Transaction (an "Alternative Proposal"), if, and only to the extent that,
(A) the Board of Directors of Superior, based on the written opinion of
outside counsel (a copy of which shall be provided promptly to Xxxxxx),
determines in good faith that such action is required for the Board of
Directors of Superior to comply with its fiduciary duties to stockholders
imposed by law, (B) such Alternative Proposal is not conditioned on the
receipt of financing, the Board of Directors of Superior has reasonably
concluded in good faith that the person or group making such Alternative
Proposal will have adequate sources of financing to consummate such
Alternative Proposal and that such Alternative Proposal is more favorable
to the stockholders of Superior than the Merger, and the Board of Directors
of Superior has received a written opinion from a nationally-recognized
investment banking firm (a copy of which shall be provided promptly to
Xxxxxx) to the effect that the consideration to be received by stockholders
of Superior in connection with such Alternative Proposal is superior, from
a financial point of view, to the consideration to be received by them in
the Merger, (C) prior to furnishing such information to, or entering into
discussions or negotiations with, such person or entity, Superior provides
written notice to Xxxxxx to the effect that it is furnishing information
to, or entering into negotiations with, such person or group, and
(D) Superior keeps Xxxxxx informed of the status and all material
information with respect to any such discussions or negotiations, and
(ii) to the extent applicable, complying with Rule 14e-2 promulgated under
the Exchange Act with regard to an Alternative Proposal.
3.3 AFFILIATE LETTERS. At least 30 days prior to the Closing Date,
Superior shall deliver to Xxxxxx a list, which shall be reasonably
acceptable to Xxxxxx, identifying all persons whom it believes are, at the
time this Agreement is submitted for approval to the stockholders of
Superior, "affiliates" of Superior for purposes of Rule 145 under the
Securities Act. Superior shall deliver or cause to be delivered to Xxxxxx
on or prior to the Closing Date a duly executed affiliate letter in the
form of Exhibit A (an "Affiliate's Agreement") for each such "affiliate" of
Superior. Xxxxxx shall be entitled to place legends as specified in such
Affiliate's Agreements on the certificates evidencing any Xxxxxx Common
Stock to be received by such affiliates pursuant to the terms of this
Agreement and to issue appropriate stop transfer instructions to the
transfer agent for Xxxxxx Common Stock consistent with the terms of such
Affiliate's Agreements.
3.4 OBTAIN TAX OPINION. Superior shall use its best efforts to
obtain the tax opinion referred to in Section 6.3(d) hereof.
ARTICLE IV
COVENANTS OF XXXXXX PRIOR TO THE EFFECTIVE TIME
Xxxxxx covenants and agrees as follows:
4.1 CONDUCT OF BUSINESS BY XXXXXX PENDING THE MERGER. From the date
of this Agreement until the Effective Time, unless Superior shall otherwise
agree in writing or as otherwise expressly contemplated by this Agreement,
Xxxxxx shall not, and shall not permit any of the Xxxxxx Subsidiaries to,
take any action that would, or that reasonably could be expected to, result
in any of the representations and warranties set forth in this Agreement
becoming untrue or any of the conditions to the Merger set forth in
Article VI not being satisfied. Xxxxxx promptly shall advise Superior
orally and in writing of any change or event having, or which, insofar as
reasonably can be foreseen, would have, a Xxxxxx XXX.
4.2 STOCK EXCHANGE LISTING. Xxxxxx shall use all reasonable efforts
to cause the shares of Xxxxxx Common Stock to be issued in the Merger and
the shares of Xxxxxx Common Stock to be reserved for issuance upon the
exercise of Superior Options to be assumed by Xxxxxx in the Merger, if any,
to be approved for listing on the New York Stock Exchange (the "NYSE"),
subject to official notice of issuance, prior to the Closing Date.
4.3 OBTAIN TAX OPINION. Xxxxxx shall use its best efforts to obtain
the tax opinion referred to in Section 6.2(f) hereof.
4.4 AVAILABLE INFORMATION. Xxxxxx shall, and shall cause the Xxxxxx
Subsidiaries to, make available to Superior and its representatives such
information with respect to the business and affairs of Xxxxxx and the
Xxxxxx Subsidiaries as Superior shall reasonably request, and shall confer
at such times as Superior may reasonably request with one or more
representatives of Superior to report material operation matters and the
general status of ongoing operations.
4.5 FUTURE ACQUISITIONS. Xxxxxx shall not, and shall not permit any
of the Xxxxxx Subsidiaries to, enter into an agreement with respect to, any
merger, consolidation or business combination (other than the Merger) or
any acquisition of a material amount of assets or securities, or otherwise
acquire direct or indirect control over any other person, to the extent
such transaction would prohibit the consummation of this transaction.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 MEETINGS OF STOCKHOLDERS.
(a) Superior shall, promptly after the date of this Agreement,
take all actions necessary in accordance with the DGCL and its certificate
of incorporation and bylaws to convene a special meeting of the Superior
stockholders to consider approval and adoption of this Agreement and the
Merger (the "Superior Stockholders' Meeting"), and Superior shall consult
with Xxxxxx in connection therewith. Subject to Section 3.2 hereof and to
the fiduciary duties of its Board of Directors, the Board of Directors of
Superior shall recommend to the stockholders of Superior the approval of
this Agreement and Superior shall use all reasonable efforts to solicit
from stockholders of Superior proxies in favor of the approval and adoption
of this Agreement and the Merger and to secure the vote or consent of
stockholders required by the DGCL and its certificate of incorporation and
bylaws to approve and adopt this Agreement and the Merger (the "Required
Superior Vote").
(b) Xxxxxx shall, promptly after the date of this Agreement,
take all actions necessary in accordance with the DGCL and its certificate
of incorporation and bylaws to convene a special meeting of Xxxxxx'x
stockholders (the "Xxxxxx Stockholders' Meeting") to consider approval of
the Charter Amendment and the Share Issuance, and Xxxxxx shall consult with
Superior in connection therewith. Subject to the fiduciary duties of its
Board of Directors, the Board of Directors of Xxxxxx shall recommend to the
stockholders of Xxxxxx the approval of the Charter Amendment and the Share
Issuance and Xxxxxx shall use all reasonable efforts to solicit from
stockholders of Xxxxxx proxies in favor of the approval of the Charter
Amendment and the Share Issuance and to secure the vote or consent of the
stockholders of Xxxxxx required by the DGCL and the rules of the NYSE to
approve the Charter Amendment and the Share Issuance (the "Required Xxxxxx
Vote").
5.2 REGISTRATION STATEMENT; PROXY STATEMENTS.
(a) Joint Proxy Statement/Prospectus. As promptly as practicable
after the execution of this Agreement, Xxxxxx and Superior shall jointly
prepare and file with the Commission a joint proxy statement and forms of
proxies in connection with (i) the solicitation of proxies to be voted at
the Xxxxxx Stockholders' Meeting with respect to the Charter Amendment and
the Share Issuance and (ii) in connection with the solicitation of proxies
to be voted at the Superior Stockholders' Meeting with respect to this
Agreement and the Merger (such joint proxy statement, together with any
amendments thereof or supplements thereto effected prior to the effective
date of the Registration Statement, being the "Joint Proxy Statement"). As
soon as practicable after the date hereof, Xxxxxx shall prepare and file
with the Commission a registration statement on Form S-4 (such registration
statement, together with any amendments thereof or supplements thereto,
being the "Registration Statement"), containing a Joint Proxy Statement for
stockholders of Xxxxxx and a proxy statement/prospectus for stockholders of
Superior in connection with the registration under the Securities Act of
the offering, sale and delivery of the Xxxxxx Common Stock to be issued
pursuant to this Agreement upon consummation of the Merger to stockholders
of Superior (the "Joint Proxy Statement/Prospectus"). Each of Xxxxxx and
Superior shall furnish all information concerning it and the holders of its
capital stock as the other may reasonably request in connection with such
actions. Each of Xxxxxx and Superior will use all reasonable efforts to
have or cause the Registration Statement to become effective as promptly as
practicable, and shall take any action required to be taken under any
applicable federal or state securities laws in connection with the issuance
of shares of Xxxxxx Common Stock in the Merger. As promptly as practicable
after the Registration Statement shall have become effective, (x) Xxxxxx
shall mail the Joint Proxy Statement/Prospectus to its stockholders
entitled to notice of and to vote at the Xxxxxx Stockholders' Meeting and
(y) Superior shall mail the Joint Proxy Statement/Prospectus to its
stockholders entitled to notice of and to vote at the Superior
Stockholders' Meeting.
(b) Superior Information. The information supplied by Superior
for inclusion in the Registration Statement shall not, at the time the
Registration Statement is declared effective, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading. The information supplied by Superior for inclusion in the
Joint Proxy Statement/Prospectus shall not, at the date the Joint Proxy
Statement/Prospectus (or any supplement thereto) is first mailed to
stockholders of Xxxxxx, at the date (if different) the Joint Proxy
Statement/Prospectus (or any supplement thereto) is first mailed to
stockholders of Superior, at the time of the Xxxxxx Stockholders' Meeting,
at the time (if different) of the Superior Stockholders' Meeting or at the
Effective Time, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time prior to the
Effective Time any event or circumstance relating to Superior or any of the
Superior Subsidiaries, or their respective officers or directors, should be
discovered by Superior that should be set forth in an amendment to the
Registration Statement or a supplement to the Joint Proxy
Statement/Prospectus, Superior shall promptly inform Xxxxxx. All documents
that Superior is responsible for filing with the Commission in connection
with the transactions contemplated herein shall comply as to form in all
material respects with the applicable requirements of the Securities Act
and the regulations thereunder and the Exchange Act and the regulations
thereunder.
(c) Xxxxxx Information. The information supplied by Xxxxxx for
inclusion in the Registration Statement shall not, at the time the
Registration Statement is declared effective, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading. The information supplied by Xxxxxx for inclusion in the Joint
Proxy Statement/Prospectus shall not, at the date the Joint Proxy
Statement/Prospectus (or any supplement thereto) is first mailed to
stockholders of Xxxxxx, at the date (if different) the Joint Proxy
Statement/Prospectus (or any supplement thereto) is first mailed to
stockholders of Superior, at the time of the Xxxxxx Stockholders' Meeting,
at the time (if different) of the Superior Stockholders' Meeting or at the
Effective Time, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they are made, not misleading. If at any time prior to the Effective
Time any event or circumstance relating to Xxxxxx or any of its affiliates,
or to their respective officers or directors, should be discovered by
Xxxxxx that should be set forth in an amendment to the Registration
Statement or a supplement to the Joint Proxy Statement/Prospectus, Xxxxxx
shall promptly inform Superior. All documents that Xxxxxx is responsible
for filing with the Commission in connection with the transactions
contemplated hereby shall comply as to form in all material respects with
the applicable requirements of the Securities Act and the regulations
thereunder and the Exchange Act and the regulations thereunder.
(d) Amendments. No amendment or supplement to the Registration
Statement, the Joint Proxy Statement or the Joint Proxy
Statement/Prospectus shall be made by Xxxxxx or Superior without the
approval of the other party, which shall not be unreasonably withheld or
delayed. Xxxxxx and Superior each will advise the other, promptly after it
receives notice thereof, of the time when the Registration Statement has
become effective or any supplement or amendment has been filed, the
issuance of any stop order suspending the effectiveness of the Registration
Statement or the solicitation of proxies pursuant to the Joint Proxy
Statement/Prospectus, the suspension of the qualification of Xxxxxx Common
Stock issuable in connection with the Merger for offering or sale in any
jurisdiction, any request by the staff of the Commission for amendment of
the Registration Statement, the Joint Proxy Statement or the Joint Proxy
Statement/Prospectus, the receipt from the staff of the Commission of
comments thereon or any request by the staff of the Commission for
additional information with respect thereto.
5.3 APPROPRIATE ACTION; CONSENTS; FILINGS.
(a) Superior and Xxxxxx shall each use all reasonable efforts
(i) to take, or to cause to be taken, all actions, and to do, or to cause
to be done, all things that, in either case, are necessary, proper or
advisable under applicable law or otherwise to consummate and make
effective the transactions contemplated by this Agreement, (ii) to obtain
from any governmental authorities any authorizations or orders required to
be obtained by Xxxxxx or Superior or any of their respective subsidiaries
in connection with the authorization, execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby, including the Merger, (iii) to make all necessary filings, and
thereafter make any other required submissions, with respect to this
Agreement and the Merger required under (A) the Securities Act (in the case
of Xxxxxx) and the Exchange Act and the regulations thereunder, and any
other applicable federal or state securities laws, (B) the HSR Act and (C)
any other applicable law. Xxxxxx and Superior shall cooperate with each
other in connection with the making of all such filings, including
providing copies of all such documents to the nonfiling party and its
advisors prior to filings and, if requested, shall accept all reasonable
additions, deletions or changes suggested in connection therewith.
Superior and Xxxxxx shall furnish all information required for any
application or other filing to be made pursuant to any applicable law or
any applicable regulations of any governmental authority (including all
information required to be included in the Joint Proxy Statement, the Joint
Proxy Statement/Prospectus or the Registration Statement) in connection
with the transactions contemplated by this Agreement.
(b) Each of Superior and Xxxxxx shall give prompt notice to the
other of (i) the occurrence, or failure to occur, of any event which
occurrence or failure would be likely to cause any of its representations
or warranties contained in this Agreement to be untrue or inaccurate at any
time from the date hereof to the Effective Time, (ii) any material failure
by it or any of its officers, directors, employees or agents to comply with
or satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder, (iii) any notice or other communication from any
Person alleging that the consent of such Person is or may be required in
connection with the Merger, (iv) any notice or other communication from any
governmental authority in connection with the Merger, (v) any actions,
suits, claims, investigations or proceedings commenced or threatened in
writing against, relating to or involving or otherwise affecting Superior,
Xxxxxx or their respective subsidiaries that relate to the consummation of
the Merger, and (vi) any change that is reasonably likely to have a
Superior MAE or a Xxxxxx XXX, respectively, or is likely to delay or impede
the ability of either Superior or Xxxxxx, respectively, to consummate the
transactions contemplated by this Agreement or to fulfill their respective
obligations set forth herein.
(c) Xxxxxx and Superior agree to cooperate and use all
reasonable efforts vigorously to contest and resist any action, including
legislative, administrative or judicial action, and to have vacated,
lifted, reversed or overturned any order (whether temporary, preliminary or
permanent) of any court or governmental authority that is in effect and
that restricts, prevents or prohibits the consummation of the Merger or any
other transactions contemplated by this Agreement, including the vigorous
pursuit of all available avenues of administrative and judicial appeal and
all available legislative action.
(d) (i) Each of Superior and Xxxxxx shall give (or shall cause
their respective subsidiaries to give) any notices to third persons,
and use, and cause their respective subsidiaries to use, all
reasonable efforts to obtain any consents from third persons
(A) necessary, proper or advisable to consummate the transactions
contemplated by this Agreement or to satisfy any of the conditions set
forth in Article VI, (B) otherwise required under any contracts,
licenses, leases or other agreements in connection with the
consummation of the transactions contemplated hereby or (C) required
to prevent a Superior MAE or a Xxxxxx XXX from occurring prior to or
after the Effective Time.
(ii) If any party shall fail to obtain any consent from a
third person described in subsection (d)(i) above, such party shall
use all reasonable efforts, and shall take any such actions reasonably
requested by the other parties, to limit the adverse effect upon
Superior and Xxxxxx, their respective subsidiaries, and their
respective businesses resulting, or that could reasonably be expected
to result after the Effective Time, from the failure to obtain such
consent.
5.4 ACCOUNTANTS LETTERS.
(a) Superior shall use its reasonable efforts to cause KPMG Peat
Marwick LLP to deliver a letter dated as of the date of the Proxy
Statement, and addressed to Superior and Xxxxxx, in form and substance
reasonably satisfactory to Xxxxxx and customary in scope and substance for
agreed upon procedures letters delivered by independent public accountants
in connection with registration statements and proxy statements similar to
the Registration Statement and Joint Proxy Statement.
(b) Xxxxxx shall use its reasonable efforts to cause
PricewaterhouseCoopers to deliver a letter dated as of the date of the
Registration Statement, and addressed to Xxxxxx and Superior, in form and
substance reasonably satisfactory to Superior and customary in scope and
substance for agreed upon procedures letters delivered by independent
public accountants in connection with registration statements and proxy
statements similar to the Registration Statement and Joint Proxy Statement.
5.5 POOLING OF INTERESTS. Each party hereto shall use all reasonable
efforts to cause the Merger to be treated for financial accounting purposes
as a "pooling of interests" and shall not take, and shall use all
reasonable efforts to prevent any Affiliate (as such term is defined in the
Securities Act) of such party from taking, any actions that could prevent
the Merger from being treated for financial accounting purposes as a
pooling of interests.
5.6 SUPERIOR EMPLOYEE BENEFITS. As soon as practicable after the
Effective Time, those employees of Superior and the Superior Subsidiaries
who become employees of the Surviving Corporation or a subsidiary of the
Surviving Corporation or Xxxxxx or a Xxxxxx Subsidiary shall be entitled to
participate in all employee benefit plans of Xxxxxx, including, without
limitation, the Xxxxxx 401(k) savings plan, in respect of their service
after the Effective Time to the same extent that employees of Xxxxxx who
are employed in comparable positions are entitled to participate. Xxxxxx
and Superior further agree that any such employees shall be credited for
their service with Superior for purposes of eligibility, benefit
entitlement and vesting in the plans provided by Xxxxxx. Such employees'
benefits under Xxxxxx'x medical benefit plan shall not be subject to any
exclusions for any pre-existing conditions (to the extent such exclusions
did not apply under Superior's medical benefit plan), and credit shall be
received for any deductibles or out-of-pocket amounts previously paid. The
employees of Superior and the Superior Subsidiaries shall continue to
participate in the benefit plans of Superior to the extent that the
requirements set forth in the first sentence of this Section 5.6 are not
satisfied.
5.7 SUPERIOR STOCK OPTIONS.
(a) Superior shall, in accordance with the terms of the Superior
Stock Option Plan, cause each Superior Option that is outstanding under
such plan at the Effective Time that has an exercise price in excess of the
market price of the Superior Common Stock on the Closing Date (each an
"Out-of-the-Money Superior Option") to be canceled as of the Effective
Time. At the Effective Time, (i) Xxxxxx shall assume the Superior Stock
Option Plan and (ii) each Superior Option that is outstanding under the
Superior Stock Option Plan as of the Effective Time (other than the Out-of-
the-Money Superior Options) shall fully vest in accordance with the terms
of the Superior Stock Option Plan and shall be deemed to constitute an
option to acquire, on the same terms and conditions as were applicable
under the Superior Stock Option Plan and such Superior Option, 0.90 of a
share of Xxxxxx Common Stock for each share of Superior Common Stock
covered by such Superior Option (rounded downward to the nearest whole
number), at a price per share (rounded upward to the nearest whole cent)
equal to (y) the aggregate exercise price per share of Superior Common
Stock purchasable pursuant to such Superior Option immediately prior to the
Effective Time divided by (z) 0.90.
(b) As soon as practicable after the Effective Time, Xxxxxx
shall deliver to the participants in the Superior Stock Option Plan
appropriate notice setting forth such participants' rights pursuant thereto
and, except as otherwise provided in subsection (a) above, the grants
pursuant to the Superior Stock Option Plan shall continue in effect on the
same terms and conditions (subject to the adjustments required by this
Section 5.7 after giving effect to the Merger).
(c) At the Effective Time, Xxxxxx shall grant to each holder of
an Out-of-the-Money Superior Option who is employed by Superior at such
time an option (each a "Replacement Option") to purchase a number of shares
of Xxxxxx Common Stock equal to the number of shares of Superior Common
Stock covered by such Out-of-the-Money Superior Option at the time it was
canceled multiplied by 0.90. Each Replacement Option shall be granted
pursuant to a stock option plan maintained by Xxxxxx or the Superior Stock
Option Plan, as determined by Xxxxxx in its sole discretion. The purchase
price for each share of Xxxxxx Common Stock subject to each Replacement
Option shall be equal to the closing sales price of the Xxxxxx Common Stock
on the Closing Date (or, if there are no sales on that date, the last
preceding date on which there was a sale) on the New York Stock Exchange
(the "Market Value per Share"). Subject to the terms of the stock option
plan pursuant to which a Replacement Option is granted and the agreement to
be executed by Xxxxxx and each such individual evidencing the grant of such
option (which agreement shall be in the form customarily used for granting
options under such plan), each such option shall (i) have a term of ten
years (which term shall begin on the Closing Date), (ii) vest and become
exercisable in accordance with the vesting schedules set forth in the
corresponding Out-of-the-Money Superior Options, and (iii) constitute an
option that is not intended to be treated as an incentive stock option
(within the meaning of section 422 of the Code).
(d) At the Effective Time, Xxxxxx shall xxxxx to each of the
persons listed on Annex II (provided such individual is employed by
Superior at such time) an option to purchase 75,000 shares of Xxxxxx Common
Stock pursuant to a stock option plan maintained by Xxxxxx or the Superior
Stock Option Plan, as determined by Xxxxxx in its sole discretion. The
purchase price for each share of Xxxxxx Common Stock subject to each such
option shall be equal to the Market Value per Share. Subject to the terms
of the stock option plan pursuant to which such options are granted and the
agreement to be executed by Xxxxxx and each such individual evidencing the
grant of such option (which agreement shall be in the form customarily used
for granting options under such plan), each such option shall (i) have a
term of ten years (which term shall begin on the Closing Date), (ii) vest
and become exercisable with respect to (A) 20% of the shares covered
thereby on the Closing Date and (B) an additional 20% of the shares covered
thereby on each of the first, second, third and fourth anniversaries of the
Closing Date, and (iii) constitute an option that is not intended to be
treated as an incentive stock option (within the meaning of section 422 of
the Code).
(e) As soon as practicable after the Effective Time, Xxxxxx
shall file a registration statement on Form S-8 (or any successor or other
appropriate forms), or another appropriate form with respect to the shares
of Xxxxxx Common Stock subject to the options described in the preceding
paragraphs of this Section 5.7 and shall use its reasonable efforts to
maintain the effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or
prospectuses contained therein), for so long as such options remain
outstanding.
(f) The Board of Directors of Superior (or a duly appointed
committee thereof responsible for the administration of the Superior Stock
Option Plan in accordance with the terms of such plan) shall, prior to or
as of the Effective Time, take all necessary actions, pursuant to and in
accordance with the terms of the Superior Stock Option Plan and the
instruments evidencing the Superior Options, to provide (i) for the
cancellation of the Out-of-the-Money Superior Options as provided in
paragraph (a) of this Section 5.7, (ii) for the conversion of the Superior
Options (other than the Out-of-the-Money Superior Options) into options to
acquire Xxxxxx Common Stock in accordance with paragraph (a) of this
Section 5.7, and (iii) that no consent of the holders of the Superior
Options is required in connection with such cancellation and conversion.
5.8 [Intentionally omitted]
5.9 TAX-FREE REORGANIZATION.
(a) Xxxxxx and Superior shall each use its best efforts to cause
the Merger to be treated as a reorganization within the meaning of section
368(a) of the Code.
(b) To the extent permitted under applicable tax laws, the
Merger shall be reported as a reorganization within the meaning of sections
368(a)(1)(A) and 368(a)(2)(E) of the Code in all federal, state, and local
Tax Returns after the Effective Time.
(c) Following the Merger, the Surviving Corporation will hold at
least 90 percent of the fair market value of Superior's net assets, at
least 70 percent of the fair market value of Superior's gross assets, at
least 90 percent of the fair market value of the net assets of Sub and at
least 70 percent of the fair market value of the gross assets of Sub, held
immediately prior to the Merger, taking into account amounts used to pay
reorganization expenses and any distributions other than regular dividends.
5.10 INDEMNIFICATION.
(a) From and after the Effective Time, Xxxxxx and the Surviving
Corporation shall, to the extent provided in the certificate of
incorporation or by-laws of Superior immediately prior to the Effective
Time, indemnify, defend and hold harmless each person who is now, or has
been at any time prior to the date hereof or who becomes prior to the
Effective Time, an officer, director or employee of Superior or any of the
Superior Subsidiaries (the "Indemnified Parties") against losses, claims,
damages, costs, expenses, liabilities or judgments or amounts that are paid
in settlement with the approval of the indemnifying party (which approval
shall not be unreasonably withheld) of or in connection with a claim,
action, suit, proceeding or investigation based in whole or in part on or
arising in whole or in part out of the fact that such person is or was a
director, officer or employee of Superior or any of the Superior
Subsidiaries, whether pertaining to any matter existing or occurring at or
prior to the Effective Time and whether reasserted or claimed prior to, or
at or after, the Effective Time. The defense of any such claim, action,
suit, proceeding or investigation shall be conducted by Xxxxxx and the
Surviving Corporation. If Xxxxxx or the Surviving Corporation has failed
to conduct such defense, the Indemnified Parties may retain counsel
satisfactory to them and Xxxxxx and the Surviving Corporation shall pay all
reasonable fees and expenses of such counsel for the Indemnified Parties
promptly as statements therefor are received. The party not conducting the
defense will use reasonable efforts to assist in the vigorous defense of
any such matter, provided that such party shall not be liable for any
settlement of any claim effected without its written consent, which
consent, however, shall not be unreasonably withheld. Any Indemnified
Party wishing to claim indemnification under this Section 5.10, upon
learning of any such claim, action, suit, proceeding or investigation,
shall notify Xxxxxx and the Surviving Corporation (but the failure so to
notify shall not relieve them from any liability which they may have under
this Section 5.10 except to the extent such failure prejudices them). If
Xxxxxx and the Surviving Corporation are responsible for the attorneys'
fees of the Indemnified Parties, then the Indemnified Parties as a group
may retain only one law firm to represent them with respect to each such
matter unless there is, under applicable standards of professional conduct,
a conflict on any significant issue between the positions of any two or
more Indemnified Parties.
(b) The Surviving Corporation shall purchase and maintain for a
period of four years after the Effective Time continuation coverage for
Superior's directors' and officers' liability insurance policy as in effect
on the date hereof or obtain a directors' and officers' insurance policy
with comparable coverage; provided, however, that the Surviving Corporation
shall not be required to expend in any year an amount in excess of 150% of
the annual aggregate premiums currently paid by Superior for such
insurance; and provided, further, that if the annual premiums of such
insurance coverage exceed such amount, the Surviving Corporation shall be
obligated to obtain a policy with the best coverage available, in the
reasonable judgment of the Board of Directors of Xxxxxx, for a cost not
exceeding such amount.
(c) The rights granted hereunder to the Indemnified Parties who
are Superior directors shall be contractual rights inuring to the benefit
of such Indemnified Parties and shall survive this Agreement and any
merger, consolidation or reorganization of the Surviving Corporation or
Xxxxxx.
ARTICLE VI
CONDITIONS
6.1 CONDITIONS TO OBLIGATION OF EACH PARTY TO EFFECT THE MERGER. The
respective obligations of each party to effect the Merger shall be subject
to the fulfillment at or prior to the Closing Date of the following
conditions, any or all of which may be waived by the parties hereto, in
whole or in part, to the extent permitted by applicable law:
(a) This Agreement shall have been approved and adopted by the
requisite vote of the stockholders of Superior, as may be required by
law and by any applicable provisions of Superior's certificate of
incorporation or bylaws;
(b) The Charter Amendment and the Share Issuance shall have been
approved and adopted by the requisite vote of the stockholders of
Xxxxxx as required by the DGCL and the rules of the NYSE;
(c) The waiting period (and any extension thereof) applicable to
the consummation of the Merger under the HSR Act shall have expired or
been terminated;
(d) No order shall have been entered and remain in effect in any
action or proceeding before any foreign, federal or state court or
governmental agency or other foreign, federal or state regulatory or
administrative agency or commission that would prevent or make illegal
the consummation of the Merger;
(e) The Registration Statement shall be effective (and remain
effective on the Closing Date), and all post-effective amendments
filed shall have been declared effective or shall have been withdrawn;
and no stop order suspending the effectiveness thereof shall have been
issued and no proceedings for that purpose shall have been initiated
or, to the knowledge of the parties, threatened by the Commission;
(f) There shall have been obtained any and all material permits,
approvals and consents of securities or blue sky commissions of any
jurisdiction, and of any other governmental body or agency, that
reasonably may be deemed necessary so that the consummation of the
Merger and the transactions contemplated thereby will be in compliance
with applicable laws, the failure to comply with which would have a
material adverse effect on the business, financial condition or
results of operations of the Surviving Corporation and its
subsidiaries, taken as a whole after consummation of the Merger;
(g) The shares of Xxxxxx Common Stock issuable upon consummation
of the Merger and the shares of Xxxxxx Common Stock issuable upon
exercise of any Superior Options that are to become options to
purchase Xxxxxx Common Stock pursuant to Section 5.7 shall have been
approved for listing on the New York Stock Exchange, subject to
official notice of issuance; and
(h) All approvals of private persons or corporations, (i) the
granting of which is necessary for the consummation of the Merger or
the transactions contemplated in connection therewith and (ii) the
non-receipt of which would have a material adverse effect on the
business, financial condition or results of operations of the
Surviving Corporation and its subsidiaries, taken as a whole after the
consummation of the Merger, shall have been obtained; save and except
the consent of the lenders under the Superior revolving credit
facility shall not be a condition of Closing.
6.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF XXXXXX. The obligation
of Xxxxxx to effect the Merger is, at the option of Xxxxxx, also subject to
the fulfillment at or prior to the Closing Date of the following
conditions, any or all of which may be waived by the parties hereto, in
whole or in part, to the extent permitted by applicable law:
(a) Each of the representations and warranties of Superior
contained in Section 2.2 that is qualified as to materiality shall be
true and correct, and each of such representations and warranties that
is not so qualified as to materiality shall be true and correct in all
material respects, as of the date of this Agreement and (except to the
extent such representations and warranties speak specifically as of an
earlier date) as of the Closing Date as though such representations
and warranties had been made at and as of that time; all of the terms,
covenants and conditions of this Agreement to be complied with and
performed by Superior on or before the Closing Date shall have been
duly complied with and performed in all material respects; and a
certificate to the foregoing effect dated the Closing Date and signed
by the chief executive officer of Superior shall have been delivered
to Xxxxxx;
(b) Since the date of this Agreement, no Superior MAE shall have
occurred, and Xxxxxx shall have received a certificate signed by the
chief executive officer of Superior dated the Closing Date to such
effect;
(c) Superior shall have received, and furnished written copies to
Xxxxxx of, each of the Superior affiliates' agreements required
pursuant to Section 3.3;
(d) Xxxxxx shall have received from Jones, Walker, Waechter,
Poitevent, Carre`re & Dene`gre, L.L.P., counsel to Superior, an
opinion dated the Closing Date in the form attached as Exhibit B; and
(e) Xxxxxx shall have received from Xxxxxx & Xxxxxx L.L.P., a
written opinion dated as of the Closing Date to the effect that for
U.S. federal income tax purposes (i) the Merger will be treated as a
reorganization within the meaning of section 368(a) of the Code, (ii)
Xxxxxx, Sub and Superior will each be a party to the reorganization
within the meaning of section 368(b) of the Code, and (iii) no gain or
loss will be recognized by Xxxxxx, Sub or Superior as a result of the
Merger. In rendering such opinion, counsel may require and rely upon
(and may incorporate by reference) representations and covenants to
the extent commercially reasonable, including those contained in
certificates of officers and/or directors or Xxxxxx, Superior, and
Sub. Xxxxxx shall have received executed copies of the certificates
of officers and directors of Xxxxxx, Superior, and Sub that may
reasonably be required by counsel in connection with the tax opinions
referred to in this Section 6.2(f).
6.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF SUPERIOR. The obligation
of Superior to effect the Merger is, at the option of Superior, also
subject to the fulfillment at or prior to the Closing Date of the following
conditions, any or all of which may be waived by the parties hereto, in
whole or in part, to the extent permitted by applicable law:
(a) Each of the representations and warranties of Xxxxxx and Sub
contained in Section 2.1 that is qualified as to materiality shall be
true and correct, and each of such representations and warranties that
is not so qualified as to materiality shall be true and correct in all
material respects, as of the date of this Agreement and (except to the
extent such representations and warranties speak specifically as of an
earlier date) as of the Closing Date as though such representations
and warranties had been made at and as of that time; all the terms,
covenants and conditions of this Agreement to be complied with and
performed by Xxxxxx on or before the Closing Date shall have been duly
complied with and performed in all material respects; and a
certificate to the foregoing effect dated the Closing Date and signed
by the chief executive officer of Xxxxxx shall have been delivered to
Superior;
(b) Since the date of this Agreement, no Xxxxxx XXX shall have
occurred, and Superior shall have received a certificate signed by the
chief executive officer of Xxxxxx dated the Closing Date to such
effect;
(c) Superior shall have received from Xxxxxx & Xxxxxx L.L.P.,
counsel to Xxxxxx, an opinion dated the Closing Date in the form
attached as Exhibit C; and
(d) Superior shall have received from Jones, Walker, Waechter,
Poitevent, Carre`re & Dene`gre, L.L.P., a written opinion dated as
of the Closing Date to the effect that for U.S. federal income tax
purposes (i) the Merger will be treated as a reorganization within the
meaning of section 368(a) of the Code, (ii) Xxxxxx, Sub and Superior
will each be a party to that reorganization within the meaning of
section 368(b) of the Code, and (iii) Superior and the stockholders of
Superior who exchange Superior Common Stock for Xxxxxx Common Stock
will not recognize any gain or loss as a result of the exchange of
Xxxxxx Common Stock pursuant to the Merger, other than to the extent
such stockholders receive cash in lieu of fractional shares. In
rendering such opinion, counsel may require and rely upon (any may
incorporate by reference) representations and covenants to the extent
commercially reasonable, including those contained in certificates of
officers and/or directors of Xxxxxx, Superior and Sub and others.
Superior shall have received executed copies of the certificates of
officers and directors of Superior, Xxxxxx and Sub that may reasonably
be required by counsel in connection with the tax opinions referred to
in this Section 6.3(d).
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 TERMINATION. This Agreement may be terminated and the Merger and
the other transactions contemplated herein may be abandoned at any time
prior to the Effective Time, whether prior to or after approval by the
stockholders of Xxxxxx and/or Superior:
(a) by mutual consent of Xxxxxx and Superior;
(b) by either Xxxxxx or Superior if the Merger has not been
effected on or before May 31, 1999; provided, however, that the right
to terminate this Agreement under this Section 7.1(b) shall not be
available to a party whose failure to fulfill any obligation under
this Agreement has been the cause of or resulted in the failure of the
Merger to occur on or before such date; provided, further, that this
Agreement may be extended by written notice of either Xxxxxx or
Superior to a date not later than August 31, 1999, if the Merger shall
not have been consummated as a result of Xxxxxx or Superior having
failed by May 31, 1999 to receive all required permits and orders with
respect to the Merger or as a result of entering of an order by a
court or governmental authority;
(c) by either Xxxxxx or Superior if a final, nonappealable order
of a judicial or administrative authority of competent jurisdiction to
restrain, enjoin or otherwise prevent a consummation of this Agreement
or the transactions contemplated in connection herewith shall have
been entered;
(d) by either Xxxxxx or Superior if this Agreement shall fail to
get the Required Superior Vote by the stockholders of Superior at the
Superior Stockholders' Meeting;
(e) by either Xxxxxx or Superior if the Charter Amendment or the
Share Issuance fails to get the Required Xxxxxx Vote by the
stockholders of Xxxxxx at the Xxxxxx Stockholders' Meeting;
(f) by Xxxxxx if there has been a breach of any representation or
warranty or covenant set forth in this Agreement by Superior, such
that the conditions set forth in Section 6.2(a) would not be
satisfied, which breach has not been cured within 30 days following
receipt by Superior of notice of such breach;
(g) by Superior if there has been a breach of any representation
or warranty or covenant set forth in this Agreement by Xxxxxx, such
that the conditions set forth in Section 6.3(a) would not be
satisfied, which breach has not been cured within 30 days following
receipt by Xxxxxx of notice of such breach;
(h) by Xxxxxx, if (i) the Board of Directors of Superior
withdraws, modifies or changes its recommendation of this Agreement or
the Merger or shall have resolved to do any of the foregoing or the
Board of Directors of Superior shall have recommended to the
stockholders of Superior any Alternative Proposal or resolved to do
so; (ii) a tender offer or exchange offer for 30 percent or more of
the outstanding shares of Superior Common Stock is commenced and the
Board of Directors of Superior, within 10 Business Days after such
tender offer or exchange offer is so commenced, either fails to
recommend against acceptance of such tender or exchange offer by its
stockholders or takes no position with respect to the acceptance of
such tender or exchange offer by its stockholders; or (iii) any person
shall have acquired beneficial ownership or the right to acquire
beneficial ownership of, or any "group" (as such term is defined under
Section 13(d) of the Exchange Act and the regulations promulgated
thereunder), shall have been formed which beneficially owns, or has
the right to acquire beneficial ownership of, 30 percent or more of
the then outstanding shares of Superior Common Stock; or
(i) by Superior, if Superior accepts an Alternative Proposal and
makes the payment required pursuant to Section 7.4 of this Agreement.
7.2 EFFECT OF TERMINATION. Except as provided in Section 7.4 or 8.1
of this Agreement, in the event of the termination of this Agreement
pursuant to Section 7.1, this Agreement shall forthwith become void, there
shall be no liability on the part of Xxxxxx, Sub or Superior or any of
their respective officers or directors to the other and all rights and
obligations of any party hereto shall cease, except that nothing herein
shall relieve any party from liability for any misrepresentation or breach
of any covenant or agreement under this Agreement.
7.3 WAIVER AND AMENDMENT. Any provision of this Agreement may be
waived at any time by the party that is, or whose stockholders are,
entitled to the benefits thereof. This Agreement may not be amended or
supplemented at any time, except by an instrument in writing signed on
behalf of each party hereto, provided that after this Agreement has been
approved and adopted by the stockholders of Superior or the Share Issuance
and Charter Amendment have been approved by stockholders of Xxxxxx, this
Agreement may be amended only as may be permitted by applicable provisions
of the DGCL. The waiver by any party hereto of any condition or of a
breach of another provision of this Agreement shall not operate or be
construed as a waiver of any other condition or subsequent breach. The
waiver by any party hereto of any of the conditions precedent to its
obligations under this Agreement shall not preclude it from seeking redress
for breach of this Agreement other than with respect to the condition so
waived.
7.4 FEES, EXPENSES AND OTHER PAYMENTS.
(a) Except as provided in this Section 7.4, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the parties incurring such expense,
except that expenses incurred in connection with printing and mailing the
Registration Statement and the Joint Proxy Statement/Prospectus shall be
shared equally by Xxxxxx and Superior.
(b) If this Agreement is terminated by Xxxxxx pursuant to
Section 7.1(h) or Section 7.1(i), then Superior shall pay to Xxxxxx a
termination fee equal to $7 million.
(c) If this Agreement is terminated by Xxxxxx or Superior
pursuant to Sections 7.1(d) or 7.1(f) and within 12 months of any such
termination, Superior or any of the Superior Subsidiaries accepts a written
offer or enters into a written agreement to consummate a Superior
Acquisition Proposal with such person or any of its Affiliates and Superior
or such Superior Subsidiary is acquired, through merger, consolidation,
share exchange, sale of assets or otherwise, by such person or any of its
Affiliates, then Superior shall at the closing (and as a condition of such
closing) pay to Xxxxxx immediately a termination fee of $7 million.
(d) If Superior shall fail to pay Xxxxxx any fee or other amount
due hereunder, Superior shall pay the costs and expenses (including legal
fees and expenses) of Xxxxxx in connection with any action, including the
filing of any lawsuit or other legal action, taken to collect payment,
together with interest on the amount of any unpaid fee at the publicly
announced prime interest rate of Citibank N.A. in effect from time to time,
from the date such fee or other payment was required to be paid until
payment in full.
(e) Subject to the following sentences, the payments required by
this Section 7.4 shall constitute liquidated damages in full and complete
satisfaction of, and shall be the sole and exclusive remedy of Xxxxxx for,
any loss, liability, damage or claim arising out of or in conjunction with
the transactions contemplated by this Agreement, including any termination
of this Agreement pursuant to Section 7.1 and shall not constitute a
penalty. Notwithstanding the foregoing sentence, if (i) this Agreement is
terminated by Xxxxxx as a result of an intentional breach of any
representation, warranty, covenant or agreement by Superior and no
termination fee is required to be paid pursuant to Section 7.4(c), Xxxxxx
may pursue any remedies available to it at law or in equity and shall be
entitled to recover such additional amounts as Xxxxxx may be entitled to
receive at law or in equity or (ii) this Agreement is terminated by
Superior as a result of an intentional breach of any representation,
warranty, covenant or agreement by Xxxxxx, Superior may pursue any remedies
available to it at law or in equity and shall be entitled to recover such
additional amounts as Xxxxxx may be entitled to receive at law or in
equity.
ARTICLE VIII
GENERAL PROVISIONS
8.1 EFFECTIVENESS OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The
representations and warranties in this Agreement shall terminate at the
Effective Time and the representations, warranties, covenants and
agreements of each of the parties hereto shall terminate upon the
termination of this Agreement pursuant to Section 7.1, except that the
covenants and agreements set forth in Article I and Sections 2.1(h),
5.3(d), 5.5, 5.6, 5.7, 5.9 and 5.10 shall survive the Effective Time and
Section 7.4 and Article VIII hereof shall survive the termination of this
Agreement.
8.2 PUBLIC STATEMENTS. Superior and Xxxxxx agree to consult with
each other prior to issuing any press release or otherwise making any
public statement with respect to the transactions contemplated hereby, and
shall not issue any such press release or make any such public statement
without the consent of the other, except as may be required by law or
applicable stock exchange rules.
8.3 ASSIGNMENT. This Agreement shall inure to the benefit of and
will be binding upon the parties hereto and their respective legal
representatives, successors and permitted assigns. Except as set forth in
this Agreement, this Agreement shall not be assignable by the parties
hereto.
8.4 NOTICES. All notices, requests, demands, claims and other
communications which are required to be or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given
if (i) delivered in person or by courier, (ii) sent by telecopy or
facsimile transmission, answer back requested, or (iii) mailed, certified
first class mail, postage prepaid, return receipt requested, to the parties
hereto at the following addresses:
if to Superior: Superior Energy Services, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxx
with a copy to: Jones, Walker, Waechter, Poitevent, Carre`re &
Dene`gre, L.L.P.
First NBC Building
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
if to Xxxxxx: Xxxxxx Drilling Company
Xxxxxx Building
0 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
with a copy to: Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: T. Xxxx Xxxxx
or to such other address as any party shall have furnished to the other by
notice given in accordance with this Section 8.4. Such notices shall be
effective, (i) if delivered in person or by courier, upon actual receipt by
the intended recipient, (ii) if sent by telecopy or facsimile transmission,
when the answer back is received, or (iii) if mailed, upon the earlier of
five days after deposit in the mail and the date of delivery as shown by
the return receipt therefor.
8.5 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the substantive law of the State of Delaware without
giving effect to the principles of conflicts of law thereof; provided,
however, that any matter involving the internal corporate affairs of any
party hereto shall be governed by the provisions of the DGCL.
8.6 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provision, covenants and
restrictions of this Agreement shall continue in full force and effect and
shall in no way be affected, impaired or invalidated.
8.7 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall
constitute one and the same agreement.
8.8 HEADINGS. The Section headings herein are for convenience only
and shall not affect the construction hereof.
8.9 ENTIRE AGREEMENT; THIRD PARTY BENEFICIARIES. This Agreement and
the Confidentiality Agreement constitute the entire agreement and supersede
all other prior agreements and understandings, both oral and written, among
the parties or any of them, with respect to the subject matter hereof and
neither this nor any document delivered in connection with this Agreement
confers upon any person not a party hereto any rights or remedies hereunder
except as specifically provided herein.
8.10 SPECIFIC PERFORMANCE. The parties hereby acknowledge and agree
that the failure of any party to this Agreement to perform its agreements
and covenants hereunder, including its failure to take all actions as are
necessary on its part to the consummation of the Merger, will cause
irreparable injury to the other parties to this Agreement for which
damages, even if available, will not be an adequate remedy. Accordingly,
each of the parties hereto hereby consents to the granting of equitable
relief (including specific performance and injunctive relief) by any court
of competent jurisdiction to enforce any party's obligations hereunder.
The parties further agree to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such equitable
relief and that this Section is without prejudice to any other rights that
the parties hereto may have for any failure to perform this Agreement.
8.11 DISCLOSURE LETTERS.
(a) The Superior Disclosure Letter, executed by Superior as of
the date hereof, and delivered to Xxxxxx on the date hereof, contains all
disclosure required to be made by Superior under the various terms and
provisions of this Agreement. Each item of disclosure set forth in the
Superior Disclosure Letter specifically refers to the Article and Section
of the Agreement to which such disclosure responds, and shall not be deemed
to be disclosed with respect to any other Article or Section of the
Agreement.
(b) The Xxxxxx Disclosure Letter, executed by Xxxxxx as of the
date hereof, and delivered to Superior on the date hereof, contains all
disclosure required to be made by Xxxxxx under the various terms and
provisions of this Agreement. Each item of disclosure set forth in the
Xxxxxx Disclosure Letter specifically refers to the Article and Section of
the Agreement to which such disclosure responds, and shall not be deemed to
be disclosed with respect to any other Article or Section of the Agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
THE NEXT PAGE IS THE SIGNATURE PAGE.]
-1-
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by its officers thereunto duly authorized, all as
of the date first above written.
SUPERIOR ENERGY SERVICES, INC.
By: /s/ XXXXXXX X. XXXX
_____________________________
Name: Xxxxxxx X. Xxxx
Title: President
XXXXXX DRILLING COMPANY
By: /s/ XXXXX X. XXXXX
______________________________
Name: Xxxxx X. Xxxxx
Title: Senior Vice President - Finance
Chief Financial Officer
SAINTS ACQUISITION COMPANY
By: /s/ XXXXX X. XXXXX
_____________________________
Name: Xxxxx X. Xxxxx
Title: Vice President
