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EXHIBIT 10(o)
AGREEMENT FOR THE
ACQUISITION OF THE
SHARE CAPITAL OF THE
O.I.L. GROUP OF
COMPANIES
between
Ocean Group plc
as Vendor
Tidewater Inc.
as Purchaser
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CONTENTS
1. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Sale of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Completion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6. Pre-Completion Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7. Restriction of Vendor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8. Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10. Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11. Provisions Relating to this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
12. Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
13. Law and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
14. Environmental Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SCHEDULE 1 : COMPLETION ARRANGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SCHEDULE 2 : COMPLETION CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SCHEDULE 3 : THE SALE SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SCHEDULE 4 : THE SALE GROUP . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SCHEDULE 5 : WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SCHEDULE 6 : PARTICULARS OF PROPERTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SCHEDULE 7 : EMPLOYEE LETTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
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SCHEDULE 8 : TAXATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SCHEDULE 9 : NET ASSETS ADJUSTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
SCHEDULE 10: PENSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
SCHEDULE 11: VENDOR'S PROTECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
SCHEDULE 12: THE VESSELS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
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THIS AGREEMENT is made on March 1997
BETWEEN
(1) OCEAN GROUP plc, a company registered in England under number 73975
whose registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ IAN (the "Vendor"); and
(2) TIDEWATER INC., a corporation organized under the laws of the State of
Delaware, U.S.A. whose principal office is at Tidewater Place, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇.▇.▇. (the
"Purchaser").
WHEREAS:
(A) The Vendor owns, directly or indirectly, such percentage of the entire
share capital of each of the companies listed in column (1) of Schedule
3 (the "Sale Group") as is specified in column (4) of such Schedule.
(B) The Purchaser wishes to acquire the entirety of the direct or indirect
ownership interest of the Vendor in the members of the Sale Group
through the acquisition of the Sale Shares from the Vendor on the
terms of this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement where the context admits:
"Affiliate" means, in respect of any company, a company which is its
subsidiary or holding company, or a company which is a subsidiary of
that holding company;
"Business Day" means a day, other than a Saturday or Sunday, on which
banks are open for ordinary banking business in London;
"Competing Acquisition Proposal" means any offer or proposed offer by
any person to acquire all or any material part of the Sale Group or the
assets thereof;
"Completion" means completion of the sale and purchase of the Sale
Shares;
"Completion Conditions" bears the meaning given thereto in clause 4.1;
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"Completion Date" means such date as the parties may agree or as one
party may specify to the other on not less than 3 days' notice
following satisfaction or (if capable of waiver) waiver of the
Completion Conditions set out in sub-clauses (A)(1), (A)(2) and (B) of
Schedule 2, but, in any event, not later than 30th May 1997;
"Confidentiality Agreement" means the Confidentiality Agreement dated
January 10, 1997 made by and between the Vendor and the Purchaser a
copy of which is attached to the Disclosure Letter;
"Directors" means the persons named as such in Schedule 4 and "the
Continuing Directors" means the persons (if any) named as such in such
Schedule;
"Disclosure Letter" means the letter having the same date as this
Agreement delivered by the Vendor to the Purchaser;
"Encumbrance" includes any interest or equity of any person (including
any right to acquire, option or right of pre-emption) or any mortgage,
charge, pledge, lien other than liens arising by operation of law and
securing indebtedness not more than seven days overdue, assignment,
hypothecation or other priority interest, deferred purchase, title
retention, trust, leasing, sale-and-repurchase or sale-and-leaseback
arrangement, right of set off or any other agreement or arrangement
whatsoever having the same commercial or economic effect as security
(including any hold back or "flawed asset" arrangement) over or in any
property, assets or rights of whatsoever nature and includes any
agreement for any of the foregoing;
"Indebtedness" means the entire net indebtedness (expressed in pounds
sterling after translation (if necessary) at the appropriate exchange
rate then prevailing) owed or outstanding as at the Completion Date by
or to members of the Sale Group on the one hand to or by members of the
Vendor's Group on the other;
"Indebtedness Certificate" means a certificate from the Vendor signed
by its Finance Director certifying the amount of the Indebtedness;
"LIBOR" means in relation to a sum of money the interest rate at which
deposits in the currency of that sum (or nearest equivalent amount) and
for the period during which it is outstanding (or nearest equivalent
period) are offered by Barclays Bank Plc to leading banks in the London
Inter-bank market as from 11.00 am (London time) on the first Business
Day during which it is outstanding;
"London Stock Exchange" means London Stock Exchange Limited;
"New York Stock Exchange" means the New York Stock Exchange, Inc.;
"Properties" means the properties particulars of which are set out in
Schedule 6;
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"Restricted Business" has the meaning given in clause 7.1;
"Sale Group" means the companies listed in Schedule 4;
"Sale Shares" means the shares to be bought and sold pursuant to this
Agreement, being all the shares set forth in column (3) of Schedule 3;
"Taxes Act 1988" means Income and Corporation Taxes ▇▇▇ ▇▇▇▇;
"Value Added Tax" and "VAT" mean value added tax as provided for in the
Value Added Tax ▇▇▇ ▇▇▇▇ and legislation supplemental thereto or
replacing, modifying or consolidating it;
"Vendor's Group" means the Vendor and each of its Affiliates,
subsidiary undertakings and any other body corporate in which any such
company owns at least 20% in nominal value of the issued equity share
capital other than the Sale Group;
"Vessels" means the vessels described in Schedule 12; and
"Warranties" means the warranties set out in Schedule 5, in paragraph 4
of Schedule 8, in paragraph 5 of Schedule 10 and, for the purposes of
Schedule 11, shall include the provisions of clause 4.5 of this
Agreement.
1.2 CONSTRUCTION
In this Agreement, except where the context otherwise requires:-
(A) words and phrases the definitions of which are contained or
referred to in Part XXVI Companies Act 1985 shall be
construed as having the meanings so attributed to them;
(B) references to statutory provisions shall be construed as
references to those provisions as amended or re-enacted or
as their application is modified by other provisions from
time to time and shall include references to any provisions
of which they are re-enactments (whether with or without
modification);
(C) where any statement is qualified by the expression "so far
as the Vendor is aware" or "to the best of the Vendor's
knowledge and belief" or any similar expression, that
statement shall be deemed to include an additional statement
that such statement has been made after due and careful
enquiry;
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(D) references to clause(s) and schedule(s) are references to
clause(s) and schedule(s) of and to this Agreement,
references to sub-clause(s) or paragraph(s) are, unless
otherwise stated, references to sub-clause(s) of the clause
or paragraph(s) of the schedule in which the reference
appears;
(E) the words "include" and "including" are to be construed
without limitation;
(F) references to a "person" include any individual, company,
body corporate, corporation sole or aggregate, government,
state or agency of a state, firm, partnership, joint
venture, association, organisation or trust (in each case,
whether or not having separate legal personality and
irrespective of the jurisdiction in or under the law of
which it was incorporated or exists) and a reference to any
of them shall include a reference to the others;
(G) any reference to writing shall include typewriting,
printing, lithography, photography and other modes of
representing words in a legible form other than writing on
an electronic display screen or similar device; and
(H) references to any document being "in agreed terms" or "in an
agreed form" are to that document in the form signed on
behalf of the parties for identification.
1.3 HEADINGS
The headings and sub-headings, and any contents pages, are inserted for
convenience only and shall not affect the construction of this
Agreement.
1.4 SCHEDULES
Each of the schedules shall have effect as if set out in this
Agreement.
2. SALE OF SHARES
2.1 SALE AND PURCHASE
Subject to the terms and conditions of this Agreement, on the
Completion Date the Vendor with full title guarantee shall sell or
procure the sale of and the Purchaser shall purchase, free from all
Encumbrances and together with all rights now or hereafter attaching
thereto, the Sale Shares.
2.2 SIMULTANEOUS COMPLETION
Neither the Vendor nor the Purchaser shall be obliged to complete the
sale and purchase of the Sale Shares unless the sale and purchase of
all of the Sales Shares is completed simultaneously.
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3. CONSIDERATION
3.1 AMOUNT
The total consideration for the Sale Shares (which shall be allocated
as shown in column (5) of Schedule 3) shall, subject to adjustment as
otherwise provided for in this Agreement, be the payment by the
Purchaser of a sum equal to (A) L.328,000,000 (three hundred and
twenty-eight million pounds sterling) less the amount of the
Indebtedness plus or minus (B) the amount of the Net Assets as provided
in Schedule 9.
3.2 METHOD
The sum specified in clause 3.1 shall be payable in sterling in cash in
accordance with the provisions of paragraph 1.2 of Schedule 1.
3.3 PAYMENT OF INDEBTEDNESS
At Completion, the Purchaser shall repay the Indebtedness on behalf of
the Sale Group in accordance with the provisions of paragraph 1(2) of
Schedule 1.
3.4 ESTIMATED COMPLETION DATE PAYMENT
At Completion, the Purchaser shall pay to the Vendor the amount in
respect of the Estimated Completion Date Payment as provided in
paragraph 2 of Schedule 9.
4. CONDITIONS
4.1 CONDITIONS
Subject to the following provisions of this clause, Completion is
conditional upon the satisfaction or (if capable of waiver) waiver of
those conditions listed in Schedule 2 (the "Completion Conditions").
4.2 SATISFACTION
(A) Each of the parties will cooperate with the other and use
its reasonable efforts to (i) procure all necessary consents
and approvals, (ii) complete and file all necessary
applications and certificates, (iii) satisfy all
requirements prescribed by law for completion of the sale of
the Sale Shares and all Completion Conditions and (iv)
effect the transactions contemplated by this Agreement at
the earliest practicable date.
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(B) In addition and without limiting sub-clause (A), the
Purchaser agrees, immediately following exchange and public
announcement of this Agreement, to commence and diligently
pursue such physical inspection and other due diligence of
the Vessels as it deems necessary or prudent to satisfy
itself that the Completion Condition set out in paragraph
(B) of Schedule 2 can be met. The Vendor shall cooperate in
all reasonable respects by procuring that any relevant
member of the Sale Group shall (i) provide details of the
location of the Vessels; (ii) permit access to the Vessels
to the representatives of the Purchaser upon prior
appointment and permit such representatives to ascertain the
general physical and operating condition of the Vessels;
(iii) at or prior to such inspection provide to the
Purchaser's representatives details of the classification of
each Vessel and any material recommendations and notations
to such classification; and (iv) generally provide such
further information as the Purchaser's representatives may
reasonably require to assist the Purchaser in considering
whether or not the Completion Condition set out in paragraph
(B) of Schedule 2 has been met.
The Purchaser acknowledges and agrees that (i) the foregoing
obligation of the Vendor shall not require the Vendor to
undertake such actions in a manner that would interfere
materially with the normal conduct of its vessel operations;
(ii) it shall be liable for, and shall indemnify and hold
harmless the Vendor and each member of the Sale Group from
and against all costs, claims, demands, expenses or
liabilities whatsoever arising, directly or indirectly, out
of any injury or damage to any person and any damage to or
loss of any property of any person whatsoever in connection
with its inspection of the Vessels; and (iii) inspection of
any particular Vessel shall be subject to the Vendor or the
relevant member of the Sale Group having obtained the prior
consent of the charterer of such Vessel to such inspection
(and the Vendor agrees to use and to procure that each
relevant member of the Sale Group uses, all reasonable
endeavours, (excluding the expenditure of money) to obtain
such consent).
(C) In addition and without limiting sub-clause (A), the Vendor
undertakes to and agrees with the Purchaser that the
directors of the Vendor will (i) convene an extraordinary
general meeting of the shareholders of the Vendor (the
"Extraordinary General Meeting") to be held on or prior to
21st April 1997 for purposes of considering and, if thought
fit, passing the resolution referred to in paragraph (A)(1)
of Schedule 2 (the "Resolution") (ii) procure the posting of
a circular to shareholders as soon as reasonably practicable
after, but, in any event, within 14 days of the date of
execution of this Agreement containing, subject to their
fiduciary duties as directors, a recommendation from the
Board of the Vendor that its shareholders vote at the
Extraordinary General Meeting in favour of the Resolution
and, in any event, a statement that each of the members of
the Board intends to vote his shares in favour of the
Resolution; and (iii) subject, in each case,
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to their fiduciary duties as directors, not make any other
or further resolution or recommendation inconsistent with
such recommendation and not withdraw such favourable
recommendation to the shareholders prior to the
Extraordinary General Meeting.
(D) If a Competing Acquisition Proposal is publicly announced
prior to the earlier of Completion and the termination of
this Agreement and either, (i) the directors of the Vendor
withdraw their favourable recommendation to the shareholders
or make any other or further resolution or recommendation
inconsistent with such favourable recommendation or (ii) the
shareholders of the Vendor fail to approve the sale of the
Sale Shares at the Extraordinary General Meeting then the
Vendor shall pay to the Purchaser in complete satisfaction
of the obligations of the Vendor under this Agreement and to
the exclusion of any other remedy or right which the
Purchaser may otherwise have hereunder but without prejudice
to the provisions of Clause 12.2, a termination fee of US$15
million in cash within 7 Business Days after the date (on or
prior to 31 March 1998) that the Vendor completes the sale
whether pursuant to the Competing Acquisition Proposal or
otherwise, all or any material part of the Sale Group or the
assets thereof.
(E) The Purchaser shall, no later than 8.30 pm (London time) on
10th April, 1997 either:
(1) confirm in writing to the Vendor that the
Completion Condition in paragraph (B) of Schedule
2 has been satisfied (or, as the case may be,
waived) (whereupon the said Completion Condition
shall be satisfied), falling which,
(2) deliver to the Vendor a written summary of the
reasons why the Purchaser believes that the
Completion Condition in paragraph (B) of Schedule
2 has not been satisfied, including, to the
extent reasonably practicable, information with
respect to the expenditures with respect to the
Vessels that the Purchaser has concluded would be
necessary for such Vessels to be in Satisfactory
Condition (as defined in that paragraph), it
being understood that any such information
provided by the Purchaser to the Vendor pursuant
to this sub-clause shall not preclude the
Purchaser from asserting the need for other
expenditures or asserting that other bases exist
for claiming that such Completion Condition has
not been satisfied in the event of a dispute
between the parties.
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4.3 WAIVER
The Purchaser may waive in whole or in part all or any of the
Completion Conditions (other than the condition set out in paragraph
(A)(1) of Schedule 2).
4.4 DISCLOSURE
Each of the parties shall disclose in writing to the other anything
which will or may prevent any of the Completion Conditions from being
satisfied by 30th May 1997 immediately after it comes to its notice.
4.5 CERTIFICATE
(A) The Vendor shall deliver a certificate, signed by its
Finance Director, in agreed terms (the "Completion
Certificate") to the Purchaser at Completion confirming that
the Condition set out in paragraph (A)(1) of Schedule 2 has
been satisfied (if this is the case) and confirming that,
save to the extent disclosed pursuant to clause 8.3, to the
best of the knowledge and belief of the Vendor, none of the
Warranties or covenants contained in clause 6.2 has been
broken or breached to any material extent (save as already
disclosed in the Disclosure Letter) and accepts that if
Completion occurs the Purchaser will have completed the
purchase of the Sale Shares in reliance, amongst other
things, on such certificate.
(B) If, following Completion, the Purchaser becomes aware that
the condition in paragraph (A)(1) of Schedule 2 was not
satisfied at Completion or that the Completion Certificate
was, when given, inaccurate, the Purchaser shall be entitled
to claim against the Vendor on the basis of the Completion
Certificate so given.
4.6 TERMINATION
If:
(A) the Completion Condition set out at paragraph (B) of
Schedule 2 is not satisfied or waived within 21 days of the
date hereof; or
(B) any fact which would prevent any of the Completion
Conditions set out in paragraph (A) of Schedule 2 from being
satisfied on or prior to 30th May 1997 comes to the
knowledge of either of the parties,
then (unless in the case of paragraph (B) above the relevant Completion
Condition is waived (where capable of waiver)) this Agreement shall
terminate forthwith without prejudice to the accrued rights of either
party at the time of termination and, with respect to a termination
pursuant to paragraph (B) above in relation to
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the Completion Condition set out at paragraph (A)(1) of Schedule 2
without prejudice to the provisions of clause 4.2(D).
5. COMPLETION
5.1 COMPLETION LOCATION
Completion shall take place on the Completion Date at the offices of
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ prior to 2.30 pm,
London time.
5.2 VENDOR'S OBLIGATIONS
On Completion the Vendor shall do or procure the doing of those things
set out in paragraph 1.1 of Schedule 1.
5.3 PURCHASER'S OBLIGATIONS
On Completion the Purchaser shall do or procure the doing of those
things set out in paragraph 1.2 of Schedule 1.
5.4 FAILURE TO COMPLETE
If the obligations of the Vendor under Schedule 1 are not complied with
in any material respect on the Completion Date, the Purchaser may:-
(A) defer Completion to a date not later than the later of (i)
30th May 1997 or (ii) 28 days after the Completion Date (in
either event so that the provisions of this sub-clause 5.4,
apart from this item (A), shall apply to Completion as so
deferred); or
(B) proceed to Completion so far as practicable (without
prejudice to its rights under this Agreement); or
(C) terminate this Agreement.
6. PRE-COMPLETION OBLIGATIONS
6.1 PURCHASER'S RIGHT OF ACCESS
After the date of satisfaction (or waiver) of the Completion Condition
set out at paragraph (B) of Schedule 2, the Purchaser and any persons
authorised by it, upon reasonable notice and subject to the terms of
the Confidentiality Agreement, shall be allowed all reasonable access
to all the premises books and records of each member of the Sale Group,
and the Vendor shall supply or procure the supply of any information
reasonably required by the Purchaser relating to the members of the
Sale Group and their respective affairs.
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6.2 LIAISON ON CONDUCT OF BUSINESS
The Vendor covenants that, from the date of this Agreement until
Completion, the business of the Sale Group will be carried on in the
usual and normal course and that no member of the Sale Group shall
enter into any contract or commitment or do anything which, in any such
case, is either out of the ordinary and usual course of its business or
of a material nature without the prior consent in writing of the
Purchaser. In particular, but without limiting the foregoing, the
Vendor covenants that from the date of this Agreement until Completion,
each member of the Sale Group shall preserve the possession and control
of all of its assets other than those permitted to be disposed of
pursuant to the terms of this Agreement, shall conduct its business
only in the ordinary course consistent with past practice and, except
as otherwise provided herein or with the prior consent in writing of
the Purchaser,
(A) shall procure that items 2.7(A)(1) to (26) of Schedule 5
(other than items 2.7(A)(7) and (14)) shall be complied with
at all times from the date hereof to Completion; or
(B) shall not enter into any new vessel charters including
charterer's options to extend (i) on other than arms' length
terms, or (ii) for less than full and proper consideration,
or (iii) for a term in excess of six months, or (iv) having
change of control or other comparable provisions that would
cause such contracts to terminate on, or cause by its terms
the rights or obligations of the parties thereto to be
materially affected by, the sale of the Sale Shares to the
Purchaser upon the terms of this Agreement; or
(C) shall not dispose of or enter into any agreement to dispose
of (whether by one transaction or by a series of
transactions) any Vessel, or, except for dispositions made
in the ordinary course of business and consistent with past
practices, sell, dispose of, lease, license, mortgage,
encumber or subject to any Encumbrance any of its other
properties or assets; or
(D) shall not make or agree to make any capital expenditure
other than those made in the ordinary course of business and
consistent with past practices out of available cash
(excluding the proceeds of borrowings) (it being understood
that any capital expenditures made or agreed to be made with
respect to the acquisition of a vessel shall be deemed
outside of the ordinary course of business); or
(E) save as referred to in the Disclosure Letter, shall not
declare, make or pay any dividends or distributions (whether
of capital or profits); or
(F) shall not authorise or agree to commit to do any of the
actions prohibited by sub-paragraphs (B), (C) or (D) or (E).
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6.3 EMPLOYEES
The Vendor shall use all reasonable endeavours to provide to the
Purchaser within 10 Business Days after the execution of this
Agreement, a list of all employees and consultants of the Sale Group
(other than vessel crews).
7. RESTRICTION OF VENDOR
7.1 RESTRICTED BUSINESS
In this clause, "Restricted Business" means the provision of platform
supply vessels and anchor-handling tug supply vessels to the offshore
oil and gas industries.
7.2 COVENANTS
The Vendor undertakes with the Purchaser that it will not and that none
of its Affiliates will:
(A) for the period of 3 years after Completion, either on its
own account or in conjunction with or on behalf of any
person, carry on, or be engaged, concerned or interested
(directly or indirectly) in carrying on anywhere in the
world, a Restricted Business (other than as a holder of less
than 3 per cent. of any class of shares or debentures listed
on the London Stock Exchange, the New York Stock Exchange or
any other stock exchange);
(B) for the period of 2 years after Completion, either on its
own account or in conjunction with or on behalf of any other
person, solicit or entice away from any member of the Sale
Group any person who on or after 1st January, 1997 is or was
an officer, manager, employee, servant or customer of such
member (save for any such person who answers a public
advertisement or who is approached by or who approaches the
Vendor or any of its Affiliates, at a time when he is no
longer an employee of any such member or of the Purchaser)
whether or not such person would commit a breach of contract
by reason of leaving service or transferring business; and
(C) directly or indirectly use or attempt to use in the course
of any business, at any time after Completion, on its own
account or in conjunction with or on behalf of any person,
any trade or service ▇▇▇▇ or logo used in the business of
any member of the Sale Group (including, but not limited to
OSA and/or OIL names or marks) or any other name, logo,
trade or service ▇▇▇▇ which is or might be confusingly
similar thereto.
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7.3 REASONABLENESS
The restrictions contained in sub-clause 7.2, as qualified by the
exceptions contained in this clause 7, are considered reasonable by the
parties, but if any such restriction shall be found to be void or
voidable but would be valid and effective if some part or parts of the
restriction were deleted, or the period or area of application reduced,
such restriction shall apply with such modification as may be necessary
to make it valid and effective.
7.4 REGISTRATION
Any provision of this Agreement, or of any agreement or arrangement of
which it forms a part, by virtue of which such agreement or arrangement
is subject to registration under the Restrictive Trade Practices Act
1976 shall only take effect the day after particulars of such agreement
or arrangement have been duly furnished to the Director General of Fair
Trading pursuant to section 24 of that Act.
7.5 LIMITED EXCEPTIONS
(A) Nothing contained in sub-clause 7.2 shall prohibit the
Vendor or any Affiliate of the Vendor from making
acquisitions of other businesses an insignificant part of
which consists of activities that would but for this clause
7.5 constitute a breach by the Vendor, or any Affiliate of
the Vendor, of the restrictions contained in sub-clause 7.2,
provided that the Vendor or such Affiliate disposes of any
business or assets that would otherwise be in breach of
sub-clause 7.2 within one year of the date of acquisition.
For the purposes of the foregoing an "insignificant" part
means less than 20% by reference to the contribution to
total revenues of the business so acquired.
(B) Nothing contained in clause 7.2 shall prohibit O.I.L.
(Shetland) Limited from continuing to carry on its existing
business in the same scope and manner and to the same extent
as presently carried on.
(C) Nothing contained in sub-clause 7.2(C) shall prohibit O.I.L.
(Shetland) Limited using "O.I.L." as part of its name for a
period of twelve months from Completion.
(D) The Purchaser covenants that neither it nor any member of
the Sale Group shall following the expiry of twelve months
after Completion use the name or business name "Ocean" or
the logo used by the Vendor in its business or any other
name, logo, trade or service ▇▇▇▇ which is or might be
confusingly similar thereto.
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8. WARRANTIES
8.1 PURCHASER'S KNOWLEDGE
The Warranties are given subject to matters fairly disclosed in this
Agreement or in the Disclosure Letter, but no other information
relating to the Sale Group of which the Purchaser has knowledge (actual
or constructive) shall prejudice any claim made by the Purchaser under
the Warranties or operate to reduce any amount recoverable.
8.2 WARRANTIES TO BE INDEPENDENT
Each of the Warranties shall be separate and independent and, save as
expressly provided, shall not be limited by reference to any other
Warranty or anything in this Agreement.
8.3 FURTHER DISCLOSURE
Each of the parties shall prior to Completion forthwith disclose in
writing to the other any act, action, event or occurrence which may
arise or become known to it after the date of this Agreement and before
Completion which constitutes a material breach of the Warranties or
which would constitute a breach with respect to the Warranties if they
were to be repeated as at Completion.
8.4 RIGHT OF TERMINATION
In the event of:-
(A) it becoming apparent on or before Completion that the Vendor
is in breach of any of the Warranties to an extent which
constitutes, individually or collectively, a Material
Breach; or
(B) any act, action, event or occurrence arising after the date
of this Agreement and before Completion which would if the
Warranties were to be repeated as at Completion, constitute
a Material Breach of the Warranties; or
(C) the failure by the Vendor to perform and comply in all
material respects with all agreements and covenants required
to be performed or complied with by it prior to or on the
Completion Date, including without limitation, the
provisions regarding Liaison of Business in clause 6.2;
then, in any such event, the Purchaser may terminate this Agreement by
notice in writing to the Vendor, such termination discharging in full
all obligations of each party to the other and so that this Agreement
shall cease to be of any force or effect but without prejudice to the
provisions of clause 12.2 and (in relation to sub-paragraph 8.4(A)
only) of clause 4.2(D).
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For the purposes of this sub-clause 8.4 (A) and (B) only, a Material
Breach shall be deemed to have occurred with respect to the Warranties
if there transpires any act, action, event or occurrence that
constitutes or that would, if such Warranties were to be given as at
Completion, have constituted a breach of such Warranties and that
results, or would reasonably be likely to result, individually or in
the aggregate, in a quantifiable loss of L.20 million or more.
For the purposes of sub-clause 8.4(C) only, a failure to perform and
comply with covenants and obligations in all material respects shall be
deemed to occur if that results, or would reasonably be likely to
result, individually or in aggregate, in a quantifiable loss of L.10
million or more.
9. CONFIDENTIALITY
The confidentiality obligations of the parties shall continue to be
governed by the Confidentiality Agreement.
10. ANNOUNCEMENTS
10.1 RESTRICTION
Between the date hereof and the Completion Date, and subject to
sub-clause 10.2, neither the Vendor nor the Purchaser shall make any
announcement concerning the sale of the Sale Shares without the prior
written approval of the other, such approval not to be unreasonably
withheld or delayed.
10.2 PERMITTED ANNOUNCEMENTS
Either the Vendor or the Purchaser may make an announcement concerning
the sale of the Sale Shares if the announcement is required by law or
by any securities exchange or regulatory or governmental body having
jurisdiction over it, wherever situated, including but not limited to
the United States Securities and Exchange Commission, the New York
Stock Exchange, the London Stock Exchange, and The Panel on Take-overs
and Mergers, and whether or not the requirement has the force of law
provided that any such announcement shall be made only after
consultation with the other party to the extent that the same is
practicable.
11. PROVISIONS RELATING TO THIS AGREEMENT
11.1 ASSIGNMENT
(A) This Agreement and the benefits and obligations under it and
any part of it (including the Warranties) shall not be
assignable except that the Purchaser may, upon giving
written notice to the Vendor, assign the benefit (but not
the burden) of this Agreement to an Affiliate of the
Purchaser provided that any such assignee remains an
Affiliate of the
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Purchaser and provided further that before such assignee
ceases to be an Affiliate of the Purchaser, the Purchaser
will procure that the benefit of this Agreement is assigned
to the Purchaser or (upon giving further written notice to
the Vendor) to another company which is an Affiliate of the
Purchaser (any such further assignment to be subject to the
same conditions as above).
(B) The Purchaser may, on one occasion only, also assign all or
any part of its rights and benefits under this Agreement,
including the Warranties and any cause of action arising
from any of them, to a transferee of the entire share
capital of OIL Engineering Limited or of all or
substantially all of the assets and undertaking of OIL
Engineering Limited Provided that
(1) without prejudice to the provisions of Schedule
11, the amount of the liability of the Vendor to
any such transferee to whom any such assignment
is made shall not, in respect of any breach of
the Warranties or any cause of action arising,
exceed the lesser of:
(a) the amount of the loss of such
transferee for which the Vendor would
otherwise be liable hereunder in
respect of the relevant breach of
Warranty giving rise to such cause of
action, and
(b) the amount of the loss of the
Purchaser for which the Vendor would
have been liable hereunder in respect
of the relevant breach of Warranty
giving rise to such cause of action;
and
(2) the Vendor shall have no liability whatsoever to
such transferee (if it otherwise would have)
unless such transferee fully observes the
obligations expressed to be undertaken by the
Purchaser pursuant to Schedule 11 of this
Agreement.
11.2 ENTIRE AGREEMENT
(A) This Agreement, together with any documents, schedules or
exhibits referred to in it (including, inter alia, the
Confidentiality Agreement), constitutes the whole agreement
between the parties relating to its subject matter and
supersedes and extinguishes any prior drafts, agreements,
undertakings, representations, warranties and arrangements
of any nature, whether in writing or oral, relating to such
subject matter.
(B) The Purchaser acknowledges that it has not been induced to
enter into this Agreement by any representation or warranty
other than those contained in this Agreement (as qualified
by the Disclosure Letter) and, having negotiated and freely
entered into this Agreement, agrees that it shall have
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no remedy in respect of any other such representation or
warranty except in the case of fraud. The Purchaser
acknowledges that its legal advisers have explained to it
the effect of this sub-clause.
(C) No variation of this Agreement shall be effective unless
made in writing and signed by each of the parties.
11.3 AGREEMENT SURVIVES COMPLETION
The covenants, conditions, provisions and Warranties contained in this
Agreement will not merge or terminate upon Completion, but to the
extent that they have not been fulfilled and satisfied or are capable
of having effect will remain in full force and effect.
11.4 RIGHTS ETC CUMULATIVE AND OTHER MATTERS
(A) The rights, powers, privileges and remedies provided in this
Agreement are cumulative and are not exclusive of any
rights, powers, privileges or remedies provided by law or
otherwise.
(B) No failure to exercise nor any delay in exercising any
right, power, privilege or remedy under this Agreement shall
impair or operate as a waiver thereof.
(C) No single or partial exercise of any right, power, privilege
or remedy under this Agreement shall prevent any further or
other exercise thereof or the exercise of any other right,
power, privilege or remedy.
11.5 FURTHER ASSURANCE
At any time after Completion, the Vendor shall, at the request and cost
of the Purchaser, execute or procure the execution of such documents
and do or procure the doing of such acts and things as the Purchaser
may reasonably require for the purpose of vesting the Sale Shares in
the Purchaser or its nominees and giving to the Purchaser the full
benefit of all the provisions of this Agreement.
11.6 INVALIDITY
If any provision of this Agreement shall be held to be illegal, void,
invalid or unenforceable under the laws of any jurisdiction, the
legality, validity and enforceability of the remainder of this
Agreement in that jurisdiction shall not be affected, and the legality,
validity and enforceability of the whole of this Agreement shall not be
affected in any other jurisdiction.
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11.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts, which
shall together constitute one Agreement. Any party may enter into this
Agreement by signing any such counterpart.
11.8 NOTICES
(A) Any notice (which term shall include any other
communication) required to be given under this Agreement or
in connection with the matters contemplated by it shall,
except where otherwise specifically provided, be in writing
in the English language.
(B) Any such notice shall be addressed as provided in sub-clause
11.8(C) and may be:-
(1) personally delivered, in which case it shall be
deemed to have been given upon delivery at the
relevant address; or
(2) if within the United Kingdom, sent by first class
pre-paid post, in which case it shall be deemed
to have been given two Business Days after the
date of posting; or
(3) if from or to any place outside the United
Kingdom, sent by pre-paid priority airmail, in
which case it shall be deemed to have been given
seven Business Days after the date of posting; or
(4) sent by facsimile, in which case it shall be
deemed to have been given when despatched,
subject to confirmation of uninterrupted
transmission by a transmission report, provided
that any notice despatched by facsimile after
17.00 hours on any day shall be deemed to have
been received at 08.00 on the next Business Day.
(C) The addresses and other details of the parties referred to
in sub-clause 11.8(B) are, subject to sub- clause 11.8(D):-
(1) Name: Ocean Group plc
For the attention of: Finance Director, Ocean
Group plc
Address: ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Facsimile number: 01344 744352
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(2) Name: Tidewater Inc.
For the attention of: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Address: Tidewater Place, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile number: 001 504 566 4580
With copies to
(a) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
and General Counsel, Tidewater Inc.,
at the same postal address, on
facsimile number 001 504 566 4559; and
(b) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
Waechter, Poitevent, Carrere &
▇▇▇▇▇▇▇, Place St. ▇▇▇▇▇▇▇, ▇▇▇ ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ▇▇▇, on facsimile number
001 504 582 8108.
(D) Any party to this Agreement may notify the other parties of
any change to the address or any of the other details
specified in sub-clause 11.8(C), provided that such
notification shall only be effective on the date specified
in such notice or five Business Days after the notice is
given, whichever is later.
12. COSTS
12.1 PAY OWN COSTS
Subject to sub-clause 12.2, each party shall pay its own costs of and
incidental to the negotiation, preparation, execution and carrying into
effect of this Agreement.
12.2 VENDOR PAYS
The Vendor shall on demand fully reimburse and indemnify the Purchaser
in respect of all expenses which the Purchaser has incurred(including
legal fees and expenses) in:-
(A) the negotiation, preparation, execution and carrying into
effect of this Agreement; and
(B) investigating the affairs of the Sale Group.
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with, in each case, any VAT chargeable if, by reason of a knowing and
intentional breach of any Warranty or covenant of this Agreement by the
Vendor, the Purchaser shall exercise the right conferred by clause 8.4
of this Agreement to terminate this Agreement.
13. LAW AND JURISDICTION
13.1 ENGLISH LAW
This Agreement shall be governed by, and construed in accordance with,
English law.
13.2 JURISDICTION
In relation to any legal action or proceedings to enforce this
Agreement or arising out of or in connection with this Agreement
("proceedings") each of the parties irrevocably submits to the
jurisdiction of the English courts and waives any objection to
proceedings in such courts on the grounds of venue or on the grounds
that the proceedings have been brought in an inconvenient forum.
13.3 PROCESS AGENT
The Purchaser appoints Simmlaw Services Limited of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as its process agent to receive on its behalf service
of process in any proceedings in England. Service upon the process
agent shall be good service upon the Purchaser whether or not it is
forwarded to and received by the Purchaser. If for any reason the
process agent ceases to be able to act as process agent, or no longer
has an address in England, the Purchaser irrevocably agrees to appoint
a substitute process agent with an address in England acceptable to the
Vendor and to deliver to the Vendor a copy of the substitute process
agent's acceptance of that appointment within 30 days.
14. ENVIRONMENTAL INDEMNITY
14.1 INDEMNITY
The Vendor hereby agrees with the Purchaser (for itself and as agent of
each member of the Sale Group) to indemnify and keep the Purchaser and
each member of the Sale Group fully and effectively indemnified from
and against any and all liabilities, losses, damages, claims, costs,
expenses, interest, awards, judgments and penalties (including, without
limitation, proper and reasonable lawyers' and consultants' fees and
expenses) (hereinafter a "Loss") actually suffered or incurred by the
Purchaser or any member of the Sale Group by reason of an Environmental
Claim relating to or arising or resulting from or which would not have
been made but for (i) any Release prior to the date hereof of Hazardous
Materials or Waste
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into the Environment on or about or from the Shetland Property or (ii)
any breach of Environmental Laws prior to the date hereof at or from
the Shetland Property.
14.2 INDEMNITY PERIOD
The Environmental Indemnity shall only apply in respect of
Environmental Claims made against the Purchaser or any member of the
Sale Group on or prior to the tenth anniversary of the date of this
Agreement.
14.3 NOTIFICATION
The Purchaser shall provide prompt written notice to the Vendor of any
matter of which the Purchaser shall become aware which gives rise to or
which the Purchaser has reason to believe may give rise to a Loss by
reason of an Environmental Claim and, as a result, a claim under the
Environmental Indemnity.
14.4 ENVIRONMENTAL PROCEEDINGS
(A) In relation to Environmental Proceedings in the form of
third party claims resulting from any matter to which the
indemnity in clause 14.1 is applicable, the Vendor (or such
other person as the Vendor shall determine) shall have the
right at any time to assume conduct of such Environmental
Proceedings Provided that such right is subject to the
Vendor agreeing at the time of such assumption that any Loss
which may be incurred by the Purchaser or any member of the
Sale Group shall (subject to the other provisions of this
clause 14) be recoverable under the indemnity contained in
sub-clause 14.1.
(B) If Environmental Proceedings arise under sub-clause 14.4(A)
above and the Vendor does not assume conduct of such
Environmental Proceedings as provided for in such
sub-clause, the Purchaser (or such other person as the
Purchaser shall determine) shall have conduct of such
Environmental Proceedings.
(C) In relation to Environmental Proceedings in the form of an
action brought by a regulatory authority resulting from any
matter to which sub-clause 14.1 applies, the Purchaser (or
such other person as the Purchaser shall determine) shall
have the right to assume conduct of such Environmental
Proceedings.
(D) The person having conduct of any Environmental Proceedings
as provided for above (the "Conduct Party") shall ensure
that:
(1) reasonably frequent and detailed reports shall be
provided to the other party regarding the
progress of such Environmental Proceedings;
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(2) save as may be prohibited by law, copies of all
correspondence and documents passing between the
parties to such Environmental Proceedings shall
be provided to the other party;
(3) all reasonable efforts are made in such
Environmental Proceedings to minimise losses;
(4) all reasonable instructions and requests of the
other party in relation to such Environmental
Proceedings are complied with;
(5) no settlement or admission (including any failure
to or decision not to appeal) shall be agreed or
made without the prior consent in writing of the
other party, provided that such consent is not to
be unreasonably withheld; and
(6) the other party shall provide or procure the
provision to the Conduct Party of all such
information and assistance as the Conduct Party
may reasonably request.
14.5 ENVIRONMENTAL LIMITATIONS
(A) CAP
The liability of the Vendor under the Environmental Indemnity
shall not in any event exceed in aggregate (i) the purchase
price payable hereunder for the Sale Shares as set out in
clause 3.1 (subject to adjustment as therein referred to)
plus the amount of the Indebtedness less (ii) all sums paid
by the Vendor under this Agreement by reason of any breach by
the Vendor of its obligations contained herein or of the
Warranties or under the indemnities in any of the schedules
hereto.
(B) ACTS AND OMISSIONS AFTER COMPLETION
(1) The Purchaser shall not be entitled to claim
under the Environmental Indemnity to the extent
that the relevant claim would not have arisen but
for, results from or is increased by a member of
the Sale Group or their respective officers,
directors, employees, partners, agents,
contractors, sub-contractors or consultants
disclosing after Completion information to any
relevant authority or any other person, except
where the disclosure is required by law.
(2) The Purchaser shall procure that with effect from
Completion each member of the Sale Group shall so
far as reasonable avoid, reduce and mitigate any
claim under the Environmental Indemnity provided
that this clause shall not entitle the Purchaser
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to claim for the cost of work carried out before
notification of a potential Environmental Claim
is made under sub-clause 14.3.
(C) FUTURE LAWS
The Purchaser shall only be entitled to claim under the
Environmental Indemnity the extent that the claim results
from Environmental Laws which are in force and directly
binding on the Purchaser or the relevant member of the Sale
Group as at Completion. The Purchaser and each member of
the Sale Group shall not be entitled to be paid under the
Environmental Indemnity to the extent that the claim would
not have arisen but for, results from or is increased by
Environmental Laws which come into force after the date of
Completion (except for the contaminated land provisions set
out at the date of Completion in section 57 of the
Environment ▇▇▇ ▇▇▇▇ and including the first set of
regulations and guidance which comes into force, but not
subsequent amendments to them) or changes in policy,
guidance or practice by the relevant authorities after the
date of Completion.
(D) LOSSES
The Purchaser shall not be entitled to claim under the
Environmental Indemnity in respect of loss of profits, loss
of sales, loss of production, business interruption, or any
other indirect or consequential loss or damage.
14.6 ENVIRONMENTAL DEFINITIONS
In this clause 14 the following expressions shall bear the following
respective meanings:
"Environment" means all or any of the media of air, water and land and
in relation to the media of air and water includes, without limitation,
the air and water within buildings and the air and water within other
natural or man-made structures above or below ground and any water
contained in any underground strata;
"Environmental Claims" means any and all actions, suits, demands,
demand letters, costs, claims, liens, notices of non-compliance or
violation, notices of liability or potential liability, investigations,
proceedings, consent orders or consent agreements relating in any way
to any Environmental Law, any Environmental Matter or Hazardous
Material or Waste arising from any alleged injury or threat of injury
to health, safety or to the Environment or damage or alleged damage to
property;
"Environmental Indemnity" means the indemnity contained at clause 14.1;
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"Environmental Laws" means any law now in effect relating to pollution
or protection of the Environment, health or safety or to the use,
handling, transportation, treatment, storage, disposal, release,
discharge of Hazardous Materials or Waste and, in respect of the United
Kingdom, section 57 and paragraph 162 of Schedule 22 to the Environment
▇▇▇ ▇▇▇▇ shall, notwithstanding any provision in this Agreement to the
contrary, be deemed to be in force and applied on the date hereof;
"Environmental Matters" means:
(i) the Release of, contact with and exposure of any person to,
Hazardous Materials or Waste; and
(ii) any other matters relating to the condition, protection,
maintenance or restoration of the Environment or any part of
it arising out of the manufacturing, processing, treatment,
handling, storage, export or transportation of Hazardous
Materials or Waste;
"Environmental Proceedings" means criminal, civil, judicial, regulatory
or administrative proceeding suit or action brought or taken by a
relevant authority under Environmental Laws or some other person (not
being the Purchaser) to which the indemnified person is a party;
"Hazardous Materials" means (a) oil, petroleum and petroleum products,
bi-products or breakdown products, radioactive materials,
asbestos-containing materials and polychlorinated biphenyls, arsenic,
chromium, copper, mercury and (b) any other pollutant, contaminants,
chemicals, materials, articles or substances whether in soluble, liquid
or gaseous form which have resulted or may result in the pollution or
impairment of the Environment;
"Law" means any Governmental, supra-Governmental, federal, state, local
or foreign statute, law, and any court judgment, ordnance, regulation,
rule, code, order, code of practice, guidance (including the first
version which comes into force of any statutory guidance issued under
section 57 of the Environment Act 1995) or other requirement having the
force of law in any jurisdiction (including common law);
"Release" includes spillage, escape, leaching, release, discharge, leak
or emission or continuing migration howsoever caused;
"Shetland Property" means the property at Lerwick, Shetland Islands
previously owned or leased or occupied by O.I.L. Limited;
"Waste" includes any unwanted or surplus substance irrespective of
whether it is capable of being recycled or recovered or has any value.
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AS WITNESS the hands of the duly authorised representatives of the parties on
the date first before written.
SIGNED by )
duly authorised for and on behalf ) /s/ ▇.▇. ▇▇▇▇▇
of OCEAN GROUP plc in the )
presence of: )
SIGNED by ) /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
duly authorised for and on behalf )
of TIDEWATER INC. in the ) /s/ CLIFFE ▇. ▇▇▇▇▇▇▇
presence of: )
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