EXHIBIT 2.1
UNIT EXCHANGE AGREEMENT
This Unit Exchange Agreement dated as of December 10, 1997, (the
"Agreement") is by and among David A. Jeansonne, Roger E. Thomas, Allen R.
Woodard (in his individual capacity and as natural tutor of Wesley William
Woodard and of Kaylee Theresa Woodard), Shannon H. Daigle, Ben E. Thomas,
Christina Thomas, Alan J. Thomas, Advantage Capital Partners II Limited
Partnership, Advantage Capital Partners III Limited Partnership, Advantage
Capital Partners IV Limited Partnership, Advantage Capital Partners V
Limited Partnership, Advantage Capital Partners Limited Partnership and
American Aviation Incorporated (each a "Common Unit Holder" and
collectively, the "Common Unit Holders"); David E. Crays, William F.
Fincher, David Booth and Rita Darbonne (each as "Option Holder" and
collectively, the "Option Holders"); Advantage Capital Management
Corporation ("ACMC") and OMNI Energy Services Corp. ("Omni Energy").
WITNESSETH:
WHEREAS, the Common Unit Holders are the owners of all 113,476 issued
and outstanding common units (the "Common Units") of OMNI Geophysical,
L.L.C., a Louisiana limited liability company ("Omni"), and the Option
Holders are the owners of the 1,116 outstanding options to purchase
additional Common Units (the "Common Unit Options"), the ownership of each
as represented on Exhibit A hereto;
WHEREAS, Omni Energy desires to issued 12,000,000 shares of its common
stock ("Common Stock") and 118,018 options to purchase common stock at an
exercise price of $2.28 per share ("Common Stock Options"), in exchange for
the 113,476 Common Units and for the corresponding 1,116 outstanding Common
Unit Options.
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein and in reliance upon the undertakings,
representations and warranties contained herein, the parties hereby agree
as follows:
ARTICLE 1
EXCHANGE OF UNITS AND OPTIONS; CANCELLATION OF SHARES
Section 1.1 Exchange of Units and Options. Subject to the terms and
conditions stated herein, the Common Unit Holders hereby exchange with full
title the 113,476 Common Units and the Option Holders hereby exchange with
full title the 1,116 Common Unit Options, for which Omni Energy hereby
exchanges 12,000,000 shares of Common Stock and 118,018 Common Stock
Options (the "Exchange"), respectively.
Section 1.2 Cancellation of Shares. Upon the consummation of the
transactions set forth in Section 1.1 above, the 1,000 shares of Common
Stock previously issued by Omni Energy to ACMC shall be cancelled and no
consideration shall be given for such shares. ACMC hereby agrees and
consents to the cancellation of such shares.
ARTICLE 2
CONSENTS
Section 2.1 Amendment to Schedule A Operating Agreement. The Common
Unit Holders agree to amend and do hereby amend Schedule A of the Amended
and Restated Operating Agreement (the "Operating Agreement") of Omni to
reflect the Exchange of Common Units by the Common Unit Holders. The
revised Schedule A is attached as Exhibit B to this Agreement.
Section 2.2 Consent to Exchange. The Common Unit Holders,
representing all of the members of Omni ("Members") consent to : (a) the
Exchange pursuant to this Agreement; (b) the transfer of each of the Common
Unit Holder's interests to Omni Energy as set forth in Exhibit A; (c) the
admission of Omni Energy as a substitute Member for each Common Unit
Holder; and (d) the Amendment to Schedule A of the Operating Agreement as
set forth in Exhibit B. The Option Holders consent to the exchange of
their 1,116 Common Unit Options for 118,018 options to purchase Omni Energy
Common Stock.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF COMMON UNIT HOLDERS
AND OPTION HOLDERS
Each Common Unit Holder and Option Holder represents and warrants to
Omni Energy as of the date hereof as follows:
Section 3.1 Ownership. Such Common Unit Holder or Option Holder is
the sole record and beneficial owner of the Common Units or Common Unit
Options set forth beside its name on Exhibit A. Such Common Unit Holder
has good and marketable title to such Common Units and the right to deliver
such Common Units in accordance with the terms of this Agreement. Such
Option Holder has good and marketable title to such Common Unit Options and
the right to deliver such Common Unit Options in accordance with the terms
of this Agreement. The transfer of Common Units or Common Unit Options by
such Common Unit Holder or Option Holder to Omni Energy in accordance with
the terms of this Agreement transfers good and marketable title to such
Common Units or Common Unit Options to Omni Energy free and clear of all
liens, restrictions, rights, options and claims of every kind.
Section 3.2 Authority; Enforceability. Such Common Unit Holder or
Option Holder has the full legal right, power and authority to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
such Common Unit Holder or Option Holder and constitutes a valid and
legally binding obligation of such Common Unit Holder or Option Holder
enforceable against it in accordance with its terms, except as (a)
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, moratorium or similar laws from time to time in effect
affecting creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general applicability.
Section 3.3 No Conflict. Neither the execution and the delivery of
this Agreement by such Common Unit Holder or Option Holder, nor the
consummation of the transactions contemplated hereby: (a) violate, conflict
with, or result in a breach of any provisions of; (b) constitute a default
(or an event which, with notice or lapse of time or both, would constitute
a default) under; (c) result in the termination of or accelerate the
performance required by; (d) result in the creation of any Lien upon the
Common Units or Common Unit Options set forth beside its name on Exhibit A
under any of the terms, conditions or provisions of the Articles of
Organization or the Operating Agreement of Omni, or to any material extent,
under the terms and conditions of any note, bond, mortgage, indenture, deed
of trust, lease, license, loan agreement or other instrument or obligation
to or by which Omni, such Common Unit Holder or Option Holder or any of
their respective assets are bound; or (e) to any material extent, violate
any Applicable Law binding upon Omni, such Common Unit Holder or Option
Holder or any of their respective assets.
Section 3.4 No Other Representations or Warranties. Except as set
forth above in this Section 3, no other representations or warranties,
express or implied, are made in this Agreement by the Common Unit Holders
or the Option Holders to Omni Energy.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF OMNI ENERGY
Omni Energy represents and warrants to Omni and the Common Unit
Holders and the Option Holders as of the date hereof as follows:
Section 4.1 Organization. Omni Energy is a corporation duly
organized, validly existing and in good standing under the laws of
Louisiana and has all requisite corporate power and authority to own its
properties and carry on its business as now being conducted.
Section 4.2 Capitalization. As of the date of this Agreement, the
authorized capital stock of Omni Energy consists of 45,000,000 Common
Shares, $0.01 par value per share; and 5,000,000 shares of preferred stock,
$0.01 par value per share, issuable in series.
Section 4.3 Authority; Enforceability. Omni Energy has the requisite
corporate power and authority to execute and deliver this Agreement and to
carry out its obligations hereunder. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of Omni Energy and no other corporate proceedings on
the part of Omni Energy are necessary to authorize this Agreement or to
consummate the transactions so contemplated. This Agreement has been duly
executed and delivered by Omni Energy and constitutes a valid and binding
obligation of Omni Energy, enforceable against Omni Energy in accordance
with its terms, except as (a) enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, moratorium or similar laws
from time to time in effect affecting creditors' rights generally and (b)
the availability of equitable remedies may be limited by equitable
principles of general applicability.
Section 4.4 No Conflict. Neither the execution and delivery of this
Agreement by Omni Energy, nor the consummation of the transactions
contemplated hereby, do or will: (a) violate, conflict with, or result in a
breach of any provisions of; (b) constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under;
(c) result in the termination of or accelerate the performance required by;
(d) result in the creation of a Lien upon the Omni Energy shares of Common
Stock or Common Stock Options under any of the terms, conditions or
provisions of the Articles of Incorporation or Bylaws of Omni Energy or any
note, bond, mortgage, indenture, deed of trust, lease, license, loan
agreement or other instrument or obligation to or by which Omni Energy or
any of its assets are bound; or (e) violate any Applicable Law binding upon
Omni Energy and on any of its assets.
Section 4.5 Shares to be Exchanged. When issued in accordance with
the terms of this Agreement, the shares of Common Stock to be exchanged for
the Common Units will be duly authorized, validly issued and non-assessable
shares of the Common Stock. The Common Stock to be issued upon exercise of
the Common Stock Options, if and when exercised, will be duly authorized,
validly issued and non-assessable shares of Common Stock.
Section 4.6 No Other Representations or Warranties. Except as set
forth above in this Section 4, no other representations or warranties,
express or implied, are made in this Agreement by Omni Energy to the Common
Unit Holders or Option Holders.
ARTICLE 5
INDEMNIFICATION; REMEDIES
Section 5.1 Indemnification by Common Unit Holders. Except as
otherwise expressly provided in this Article 5, each Common Unit Holder, as
its sole obligation and the exclusive remedy of Omni Energy, shall
severally (and not jointly) defend, indemnify and hold harmless Omni
Energy, and shall reimburse Omni Energy, for, from and against, each and
every demand, claim, action, loss, liability, judgment, damage, cost and
expense (including, without limitation, interest, penalties, costs of
preparation and investigation, and the reasonable fees, disbursements and
expenses of attorneys, accountants and other professional advisors)
(collectively, "Losses") imposed on or incurred by Omni Energy, directly or
indirectly, relating to, resulting from or arising out of: (a) any
inaccuracy in any representation or warranty of such Common Unit Holder in
this Agreement, whether or not Omni Energy relied thereon or had knowledge
thereof, or (b) any breach or nonperformance of any covenant, agreement or
other obligation of such Common Unit Holder under this Agreement or any
certificate, document or other instrument delivered or to be delivered
pursuant hereto.
Section 5.2 Indemnification by Options Holders. Except as otherwise
expressly provided in this Article 5, each Option Holder, as its sole
obligation and the exclusive remedy of Omni Energy, shall severally (and
not jointly) defend, indemnify and hold harmless Omni Energy, and shall
reimburse Omni Energy, for, from and against, each and every demand, claim,
action, loss, liability, judgment, damage, cost and expense (including,
without limitation, interest, penalties, costs of preparation and
investigation, and the reasonable fees, disbursements and expenses of
attorneys, accountants and other professional advisors) (collectively,
"Losses") imposed on or incurred by Omni Energy, directly or indirectly,
relating to, resulting from or arising out of: (a) any inaccuracy in any
representation or warranty of such Option Holder in this Agreement, whether
or not Omni Energy relied thereon or had knowledge thereof, or (b) any
breach or nonperformance of any covenant, agreement or other obligation of
such Option Holder under this Agreement or any certificate, document or
other instrument delivered or to be delivered pursuant hereto.
Section 5.3 Indemnification by Omni Energy. Except as otherwise
expressly provided in this Article 5, Omni Energy, as its sole obligation
and the exclusive remedy of the Common Unit Holders and Option Holders,
shall defend, indemnify and hold harmless the Common Unit Holders and
Option Holders, and shall reimburse them for, from and against all Losses
imposed on or incurred by the Common Unit Holders and Option Holders,
directly or indirectly, relating to, resulting from or arising out of: (a)
any inaccuracy in any representation or warranty of Omni Energy in this
Agreement, whether or not the Common Unit Holders or Option Holders relied
thereon or had knowledge thereof, or (b) any breach or nonperformance of
any covenant, agreement or other obligation of Omni Energy under this
Agreement or any certificate, document or other instrument delivered or to
be delivered pursuant hereto.
Section 5.4 Notice and Defense of Third Party Claims. If any third
party demand, claim, action or proceeding shall be brought or asserted
under this Article 5 against an indemnified party or any successor thereto
(the "Indemnified Person") in respect of which indemnity may be sought
under this Article 5 from an indemnifying person or any successor thereto
(the "Indemnifying Person"), the Indemnified Person shall give prompt
written notice thereof to the Indemnifying Person who shall have the right
to assume its defense, including the hiring of counsel reasonably
satisfactory to the Indemnified Person and the payment of all expenses;
except that any delay or failure to so notify the Indemnifying Person shall
relieve the Indemnifying Person of its obligations under this Article 5
only to the extent, if at all, that it is prejudiced by reason of such
delay or failure. The Indemnified Person shall have the right to employ
separate counsel in any of the foregoing actions, claims or proceedings and
to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the Indemnified Person unless both the
Indemnified Person and the Indemnifying Person are named as parties and the
Indemnifying Person and the Indemnified Person shall in good faith agree
that representation by the same counsel is inappropriate. In the event
that the Indemnifying Person, within ten days after notice of any such
action or claim, does not assume the defense thereof, the Indemnified
Person shall have the right to undertake the defense, compromise or
settlement of such action, claim or proceeding for the account of the
Indemnifying Person, subject to the right of the Indemnifying Person to
assume the defense of such action, claim or proceeding with counsel
reasonably satisfactory to the Indemnified Person at any time prior to the
settlement, compromise or final determination thereof. Anything in this
Article 5 to the contrary notwithstanding, the Indemnifying Person shall
not, without the Indemnified Person's prior consent, settle or compromise
any action or claim or consent to the entry of any judgment with respect to
any action, claim or proceeding for anything other than money damages paid
by the Indemnifying Person. The Indemnifying Person may, without the
Indemnified Person's prior consent, settle or compromise any such action,
claim or proceeding or consent to entry of any judgment with respect to any
such action or claim that requires solely the payment of money damages by
the Indemnifying Person and that includes as an unconditional term thereof
the release by the claimant or the plaintiff of the Indemnified Person from
all liability in respect of such action, claim or proceeding.
ARTICLE 6
DEFINED TERMS
Definitions. In addition to the other defined terms used herein, as
used in this Agreement, the following terms when capitalized have the
meanings indicated.
"Applicable Law" shall mean any statute, law, rule or regulation or
any judgment, order, writ, injunction or decree of any Governmental Entity
to which a specified person or its property is subject.
"Governmental Entity" shall mean any court or tribunal in any
jurisdiction or any public, governmental or regulatory body, agency,
department, commission, board, bureau or other authority or
instrumentality.
"Liens" shall mean pledges, liens, defects, leases, licenses,
equities, options, rights to buy, conditional sales contracts, charges,
claims, encumbrances, security interests, easements, restrictions, chattel
mortgages, mortgages or deeds of trust, of any kind or nature whatsoever.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Survival of Representations, Warranties and Agreements.
The representations, warranties, covenants and agreements in this Agreement
or in any instrument delivered pursuant to this Agreement shall survive the
Exchange and shall not be limited or affected by any investigation by or on
behalf of any party hereto.
Section 7.2 Notices. All notices hereunder must be in writing and
shall be deemed to have been given upon receipt of delivery by: (a)
personal delivery to the designated individual; (b) certified or registered
mail, postage prepaid, return receipt requested; (c) a nationally
recognized overnight courier service (against a receipt therefor); or (d)
facsimile transmission with confirmation of receipt. All such notices must
be addressed to the address at which any party hereto may have notified the
other in writing.
Section 7.3 Headings; Gender. When a reference is made in this
Agreement to a section, exhibit or schedule, such reference shall be to a
section, exhibit or schedule of this Agreement unless otherwise indicated.
The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement. All personal pronouns used in this Agreement shall include the
other genders, whether used in the masculine, feminine or neuter gender,
and the singular shall include the plural and vice versa, whenever and as
often as may be appropriate.
Section 7.4 Entire Agreement; No Third Party Beneficiaries. This
Agreement (including the documents, exhibits and instruments referred to
herein) (a) constitutes the entire agreement and supersedes all prior
agreements, and understandings and communications, both written and oral,
among the parties with respect to the subject matter hereof, and (b) is not
intended to confer upon any person other than the parties hereto any rights
or remedies hereunder.
Section 7.5 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Louisiana without
regard to any applicable principles of conflicts of law.
Section 7.6 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party.
Section 7.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by reason of
any rule of law or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so long
as the economic or legal substance of the transactions contemplated hereby
is not affected in any adverse manner to either party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible, and
in any case such term or provision shall be deemed amended to the extent
necessary to make it no longer invalid, illegal or unenforceable.
Section 7.8 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
taken together shall constitute one and the same document.
Section 7.9 Amendment and Modification. This Agreement may not be
amended or modified except by an instrument in writing signed by each of
the parties hereto.
Section 7.10 Limitation of Liability. Notwithstanding any other
provision of this Agreement, in no event shall any party hereto be liable
to any other party hereto with respect to breach or violation of any
provision in this Agreement, whether based on contract, tort (including
negligence), strict liability or other theory of law or equity, for loss of
anticipated profits or consequential loss or damage of any nature arising
at any time or from any cause whatsoever.
Section 7.11 Construction as Separate Contracts. Each Common Unit
Holder and each Option Holder is contracting separately with the other
parties hereto as to the Common Units or Common Unit Options shown as owned
by it on Exhibit A hereto. Notwithstanding anything to the contrary in
this Agreement, the covenants, obligations, representations and warranties
in this Agreement are made severally, and not jointly, by each such Common
Unit Holder or Option Holder and relate only to its Common Units or Common
Unit Options.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed themselves or by their respective duly authorized officers as of
the date first written above.
COMMON UNIT HOLDERS
ADVANTAGE CAPITAL PARTNERS
LIMITED PARTNERSHIP
By: Advantage Capital Corporation,
a Louisiana corporation,
General Partner
By: /s/ Steven T. Stull
--------------------
Name: Steven T. Stull
Title: President
ADVANTAGE CAPITAL PARTNERS II
LIMITED PARTNERSHIP
By: Advantage Capital Corporation,
General Partner
By: /s/ Steven T. Stull
--------------------
Name: Steven T. Stull
Title: President
ADVANTAGE CAPITAL PARTNERS III
LIMITED PARTNERSHIP
By: Advantage Capital Management
Corporation, General Partner
By: /s/ Steven T. Stull
--------------------
Name: Steven T. Stull
Title: President
ADVANTAGE CAPITAL PARTNERS IV
LIMITED PARTNERSHIP
By: Advantage Capital Financial
Company, L.L.C., General Partner
By: /s/ Steven T. Stull
--------------------
Name: Steven T. Stull
Title: President
ADVANTAGE CAPITAL PARTNERS V
LIMITED PARTNERSHIP
By: Advantage Capital Advisors, L.L.C.,
General Partner
By: /s/ Steven T. Stull
--------------------
Name: Steven T. Stull
Title: President
AMERICAN AVIATION, INCORPORATED
By: /s/ David A. Jeansonne
-----------------------
Name: David A. Jeansonne
Title: President and Chief Executive Officer
/s/ David A. Jeansonne
-----------------------
David A. Jeansonne
/s/ Roger E. Thomas
--------------------
Roger T. Thomas
Wesley William Woodard
By: /s/ Allen R. Woodard
---------------------
Allen R. Woodard,
Natural Tutor
Kaylee Theresa Woodard
By: /s/ Allen R. Woodard
---------------------
Allen R. Woodard,
Natural Tutor
/s/ Ben E. Thomas
------------------
Ben E. Thomas
/s/ Christina M. Thomas
------------------------
Christina M. Thomas
/s/ Alan J. Thomas
-------------------
Alan J. Thomas
/s/ Allen R. Woodard
---------------------
Allen R. Woodard
/s/ Shannon Daigle
-------------------
Shannon Daigle
OMNI OPTION HOLDERS
/s/ David E. Crays
-------------------
David E. Crays
/s/ William F. Fincher
-----------------------
William F. Fincher
/s/ David Booth
----------------
David Booth
/s/ Rita Darbonne
------------------
Rita Darbonne
ADVANTAGE CAPITAL MANAGEMENT
CORPORATION
By: /s/ Steven T. Stull
--------------------
Name: Steven T. Stull
Title: President
OMNI ENERGY SERVICES CORP.
By: /s/ Steven T. Stull
--------------------
Name: Roger E. Thomas
Title: President
EXHIBIT A
MEMBERS AND ADDRESS TOTAL NUMBER OF COMMON COMMON UNIT TOTAL NUMBER
SHARES SHARE PERCENTAGE COMMON SHARES
Allen R. Woodard 12,164 10.719% 1,286,333
4484 Interstate 49, North
Lafayette, Louisiana 70520
Allen R. Woodard, Natural Tutor 500 0.441% 52,875
of Wesley William Woodard
1901 Sevanne Road
Houma, Louisiana 70360
Allen R. Woodard, Natural Tutor 500 0.441% 52,875
of Kaylee Theresa Woodard
1901 Sevanne Road
Houma, Louisiana 70360
Roger E. Thomas 10,664 9.398% 1,127,708
4484 Interstate 49, North
Lafayette, Louisiana 70520
Ben E. Thomas 500 0.441% 52,875
1524 Applewood Road
Baton Rouge, Louisiana 70808
Christina M. Thomas 500 0.441% 52,875
1524 Applewood Road
Baton Rouge, Louisiana 70808
Alan J. Thomas 500 0.441% 52,875
1524 Applewood Road
Baton Rouge, Louisiana 70808
David A. Jeansonne 2,836 2.499% 299,905
P. O. Box 5409
Lafayette, Louisiana 70502
American Aviation Incorporated 10,213 9.000% 1,080,017
P. O. Box 5409
Lafayette, Louisiana 70502
Shannon H. Daigle 1,461 1.287% 154,500
358 W. Kenilworth Street
New Orleans, Louisiana 70124
Advantage Capital Partners 2,780 2.450% 293,983
Limited Partnership
909 Poydras Street, Suite 2230
New Orleans, Louisiana 70112
Advantage Capital Partners II 9,398 8.282% 993,831
Limited Partnership
909 Poydras Street, Suite 2230
New Orleans, Louisiana 70112
Advantage Capital Partners III 15,282 13.467% 1,616,060
Limited Partnership
909 Poydras Street, Suite 2230
New Orleans, Louisiana 70112
Advantage Capital Partners IV 28,612 25.214% 3,025,697
Limited Partnership
909 Poydras Street, Suite 2230
New Orleans, Louisiana 70112
Advantage Capital Partners V 17,566 15.480% 1,857,591
Limited Partnership
909 Poydras Street, Suite 2230
New Orleans, Louisiana 70112
TOTAL 113,476 100.000% 12,000,000{*}
OMNI OMNI ENERGY
OPTION HOLDER COMMON UNIT OPTIONS COMMON STOCK OPTIONS
David E. Crays 516 54,567
William F. Fincher 250 26,438
David Booth 250 26,438
Rita Darbonne 100 10,575
EXHIBIT B
SCHEDULE A
OMNI GEOPHYSICAL, L.L.C.
MEMBERS, CAPITAL CONTRIBUTIONS, UNITS AND SHARING PERCENTAGES
MEMBER CAPITAL TOTAL NUMBER COMMON UNIT
CONTRIBUTION COMMON UNITS SHARE PERCENTAGE
Omni Energy Services Corp. $79,012.63 113,476 100%
4484 NE Evangeline Thruway
Carencro, Louisiana 70520