1
EXHIBIT 10.1
TRANSACTION AGREEMENT
between
SCHLUMBERGER LIMITED
and
CAMCO INTERNATIONAL INC.
Dated as of June 18, 1998
2
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................................................1
ARTICLE II DELIVERY, REGISTRATION AND LISTING OF SCHLUMBERGER
STOCK.......................................................................................4
2.1 Delivery of Schlumberger Common Stock.......................................................4
2.2 Preparation of S-4 and the Proxy Statement..................................................4
2.3 Authorization for Shares and Stock Exchange Listing.........................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES..............................................................5
3.1 Representations and Warranties of Camco.....................................................5
(a) Authority; No Violations; Consents and Approvals.......................................5
(b) Litigation.............................................................................7
(c) Incorporation by Reference.............................................................7
3.2 Representations and Warranties of Schlumberger..............................................7
(a) Organization, Standing and Power.......................................................7
(b) Capital Structure......................................................................7
(c) Authority; No Violations, Consents and Approvals.......................................8
(d) SEC Documents.........................................................................10
(e) Information Supplied..................................................................10
(f) Absence of Certain Changes or Events..................................................11
(g) No Undisclosed Material Liabilities...................................................11
(h) Litigation............................................................................11
(i) No Vote Required......................................................................12
(j) Accounting Matters....................................................................12
(k) Beneficial Ownership of Camco Common Stock............................................12
(l) Material Contracts and Agreements.....................................................12
ARTICLE IV ADDITIONAL AGREEMENTS......................................................................12
4.1 Legal Conditions to Merger.................................................................12
4.2 Agreement to Defend........................................................................14
4.3 Accounting Matters.........................................................................14
4.4 Public Announcements.......................................................................14
4.5 Other Actions..............................................................................14
4.6 Advice of Changes; SEC Filings.............................................................14
4.7 Reorganization.............................................................................15
4.8 Takeover Defenses..........................................................................15
4.9 Letter of Camco's Accountants..............................................................15
4.10 Letter of Schlumberger's Accountants.......................................................15
-i-
3
4.11 Rights Agreement...........................................................................15
4.12 Stock Options..............................................................................16
ARTICLE V CONDITIONS PRECEDENT.......................................................................16
5.1 Conditions to Camco's Closing Deliveries...................................................16
(a) Representations and Warranties........................................................16
(b) Performance of Obligations of Schlumberger............................................16
(c) Certifications and Opinion............................................................16
(d) Fairness Opinion......................................................................17
5.2 Conditions to Schlumberger's Closing Deliveries............................................17
(a) Representations and Warranties........................................................18
(b) Performance of Obligations of Camco...................................................18
(c) Certifications and Opinion............................................................18
ARTICLE VI TERMINATION AND AMENDMENT..................................................................19
6.1 Termination................................................................................19
6.2 Effect of Termination......................................................................19
6.3 Amendment..................................................................................20
6.4 Extension; Waiver..........................................................................20
ARTICLE VII GENERAL PROVISIONS.........................................................................20
7.1 Payment of Expenses........................................................................20
7.2 Nonsurvival of Representations, Warranties and Agreements..................................20
7.3 Notices....................................................................................20
7.4 Interpretation.............................................................................21
7.5 Counterparts...............................................................................22
7.6 Entire Agreement; No Third-Party Beneficiaries.............................................22
7.7 Governing Law..............................................................................22
7.8 No Remedy in Certain Circumstances.........................................................22
7.9 Assignment.................................................................................22
7.10 Enforcement of the Agreement...............................................................22
EXHIBITS:
Exhibit A - Agreement and Plan of Merger
-ii-
4
TRANSACTION AGREEMENT
THIS TRANSACTION AGREEMENT, dated as of June 18, 1998 (this
"Transaction Agreement"), is by and between Schlumberger Limited, a Netherlands
Antilles corporation ("Schlumberger"), and Camco International Inc., a Delaware
corporation ("Camco").
WHEREAS, pursuant to that certain Agreement and Plan of Merger
of even date herewith, among Schlumberger Technology Corporation, a Texas
corporation and a wholly owned subsidiary of Schlumberger ("STC"), Schlumberger
OFS, Inc., a Delaware corporation and a wholly owned Subsidiary of STC ("Sub"),
and Camco (the "Merger Agreement"), Sub will be merged with and into Camco with
Camco becoming a wholly owned subsidiary of STC (the "Merger");
WHEREAS, the Board of Directors at Camco and Schlumberger have
each determined that this Transaction Agreement and the transactions
contemplated hereby are in the best interests of their respective stockholders;
WHEREAS, pursuant to the Merger Agreement, each outstanding
share of common stock, par value $.01 per share, of Camco ("Camco Common Stock")
will be exchanged for and converted into 1.18 (the "Conversion Number") shares
of voting common stock, par value $.01 per share of Schlumberger ("Schlumberger
Common Stock"); and
WHEREAS, Schlumberger desires to make certain representations
and commitments in connection with the Merger;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties agree as follows:
ARTICLE I
DEFINITIONS
As used in this Transaction Agreement, the following terms
shall have the following meanings:
"Camco" has the meaning set forth in the preamble hereto.
"Camco Common Stock" has the meaning set forth in the recitals
hereto.
"Camco Disclosure Letter" means the disclosure letter
delivered by Camco to STC pursuant to the Merger Agreement.
"Camco Litigation" has the meaning set forth in Section 3.1(b)
hereof.
-1-
5
"Camco Order" has the meaning set forth in Section 3.1(j) of
the Merger Agreement.
"Camco Stock Option" has the meaning set forth in Section 5.5
of the Merger Agreement.
"Certificate of Merger" has the meaning set forth in Section
1.1 of the Merger Agreement.
"Closing" has the meaning set forth in Section 1.1 of the
Merger Agreement.
"Closing Date" has the meaning set forth in Section 1.2 of the
Merger Agreement.
"Code" has the meaning set forth in the recitals to the Merger
Agreement.
"Confidentiality Agreements" has the meaning set forth in
Section 5.1 of the Merger Agreement.
"Conversion Number" has the meaning set forth in the recitals
hereto.
"Delivery Date" has the meaning set forth in Section 2.1
hereof.
"DGCL" has the meaning set forth in Section 1.1 of the Merger
Agreement.
"Effective Time" has the meaning set forth in Section 1.1 of
the Merger Agreement.
"Exchange Act" has the meaning set forth in Section
3.1(a)(iii) hereof.
"GAAP" has the meaning set forth in Section 3.1(d) of the
Merger Agreement.
"Governmental Entity" has the meaning set forth in Section
3.1(a)(iii) hereof.
"HSR Act" has the meaning set forth in Section 3.1(a)(iii)
hereof.
"Knowledge" "known to", "best knowledge" and terms of similar
meaning shall mean (a) with respect to Camco, (i) the Chief Financial Officer,
the Chief Accounting Officer and the General Counsel and Secretary of Camco as
of the date of this Agreement and (ii) all of the officers of Camco as of the
Closing Date and (b) with respect to Schlumberger, (A) (1) the Executive Vice
President, Chief Financial Officer and (2) the General Counsel and Secretary of
Schlumberger, as of the date of this Agreement and (B) all of the officers of
Schlumberger as of the Closing Date.
"Material Adverse Effect" has the meaning set forth in Section
3.1(a)(i) hereof.
"Merger" has the meaning set forth in the recitals hereto.
-2-
6
"Merger Agreement" has the meaning set forth in the recitals
hereto.
"NYSE" has the meaning set forth in Section 3.2(c)(iii)
hereof.
"Proxy Statement" has the meaning set forth in Section
3.1(a)(iii) hereof.
"Returns" has the meaning set forth in Section 3.1(k)(i) of
the Merger Agreement.
"Rights Agreement" has the meaning set forth in Section 3.1(b)
of the Merger Agreement.
"S-4" has the meaning set forth in Section 3.1(e) of the
Merger Agreement.
"Schlumberger" has the meaning set forth in the preamble
hereto.
"Schlumberger Common Stock" has the meaning set forth in the
recitals hereto.
"Schlumberger Disclosure Letter" means the disclosure letter
delivered by Schlumberger to Camco pursuant to this Transaction Agreement.
"Schlumberger Litigation" has the meaning set forth in Section
3.2(h) hereof.
"Schlumberger Option Plans" has the meaning set forth in
Section 3.2(b) hereof.
"Schlumberger Preferred Stock" has the meaning set forth in
3.2(b) hereof.
"Schlumberger SEC Documents" has the meaning set forth in
Section 3.2(d) hereof.
"SEC" has the meaning set forth in Section 3.1(a) of the
Merger Agreement.
"Securities Act" has the meaning set forth in Section 3.1(d)
of the Merger Agreement.
"Significant Subsidiary" has the meaning set forth in Section
4.1(g) of the Merger Agreement.
"STC" has the meaning set forth in the recitals hereto.
"Sub" has the meaning set forth in the recitals hereto.
"Subsidiary" has the meaning set forth in Section 2.1(b) of
the Merger Agreement.
"Voting Debt" has the meaning set forth in Section 3.1(b) of
the Merger Agreement.
-3-
7
ARTICLE II
DELIVERY, REGISTRATION AND
LISTING OF SCHLUMBERGER STOCK
2.1 Delivery of Schlumberger Common Stock. Prior to the Merger, upon
the request of STC and subject to the conditions set forth in Section 5.2
hereof, Schlumberger will sell to STC all or any portion of that number of
shares of Schlumberger Common Stock which are to be received by the holders of
Camco Common Stock in exchange for and upon conversion of the Camco Common Stock
pursuant to Section 2.1(c) of the Merger Agreement. The date on which
Schlumberger delivers such Schlumberger Common Stock to STC is referred to in
this Transaction Agreement as the "Delivery Date". Schlumberger acknowledges
that, pursuant to Section 2.1(e) of the Merger Agreement, if subsequent to the
date of this Agreement but prior to the Effective Time, the number of shares of
Schlumberger Common Stock issued and outstanding is changed as a result of a
stock split, reverse stock split, stock dividend, recapitalization or other
similar transaction, the Conversion Number and other items dependent thereon
will be appropriately adjusted in the Merger Agreement and this Transaction
Agreement.
2.2 Preparation of S-4 and the Proxy Statement. Schlumberger and Camco
shall promptly prepare and file with the SEC the Proxy Statement and
Schlumberger shall prepare and file with the SEC the S-4, in which the Proxy
Statement will be included as a prospectus. Each of Schlumberger and Camco shall
use its best efforts to have the S-4 declared effective under the Securities Act
as promptly as practicable after such filing. Each of Camco and Schlumberger
shall use its best efforts to cause the Proxy Statement to be mailed to
stockholders of Camco at the earliest practicable date. Schlumberger shall use
its best efforts to obtain all necessary state securities laws or "blue sky"
permits, approvals and registrations in connection with the issuance of
Schlumberger Common Stock in the Merger and upon the exercise of Camco Stock
Options and Camco shall furnish all information concerning Camco and the holders
of Camco Common Stock as may be reasonably requested in connection with
obtaining such permits, approvals and registrations.
2.3 Authorization for Shares and Stock Exchange Listing. Prior to the
Effective Time, Schlumberger shall have taken all action necessary to permit it
to issue the number of shares of Schlumberger Common Stock required to be issued
pursuant to Section 2.1 of the Merger Agreement. Schlumberger shall use all
reasonable efforts to cause the shares of Schlumberger Common Stock to be
delivered in the Merger to be approved for listing on the NYSE, subject to
official notice of issuance, prior to the Closing Date.
-4-
8
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Camco. Camco represents and
warrants to Schlumberger as follows:
(a) Authority; No Violations; Consents and Approvals.
(i) Camco has all requisite corporate power and
authority to enter into this Transaction Agreement and to
consummate the transactions contemplated hereby. The execution
and delivery of this Transaction Agreement and the
consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part
of Camco. This Transaction Agreement has been duly executed
and delivered by Camco and assuming this Transaction Agreement
constitutes the valid and binding obligation of Schlumberger,
constitutes a valid and binding obligation of Camco
enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity and
limitations imposed on indemnity obligations by applicable
federal and state securities laws.
(ii) Except as set forth on Schedule 3.1(c) to the
Camco Disclosure Letter, the execution and delivery of this
Transaction Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to the loss
of a material benefit under, or result in the creation of any
lien, security interest, charge or encumbrance upon any of the
properties or assets of Camco or any of its Subsidiaries
under, any provision of (A) the Certificate of Incorporation
or Bylaws of Camco or any provision of the comparable charter
or organizational documents of any of its Subsidiaries, (B)
any loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession,
franchise or license applicable to Camco or any of its
Subsidiaries or (C) assuming the consents, approvals,
authorizations or permits and filings or notifications
referred to in Section 3.1(a)(iii) are duly and timely
obtained or made and the approval of the Merger and the Merger
Agreement by the stockholders of Camco has been obtained, any
judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Camco or any of its Subsidiaries or
any of their respective properties or assets, other than, in
the case of clause (B) or (C), any such conflicts, violations,
defaults, rights, liens, security interests, charges or
encumbrances that, individually or in the aggregate, would not
have a Material Adverse Effect (as defined below) on Camco,
materially impair the
-5-
9
ability of Camco to perform its obligations hereunder or
prevent the consummation of any of the transactions
contemplated hereby. As used in this Transaction Agreement a
"Material Adverse Effect" shall mean, any effect or change
that is or would be materially adverse to the business,
operations, assets, condition (financial or otherwise) or
results of operations of (x) in respect of Camco, Camco and
its direct and indirect Subsidiaries, taken as a whole, and
(y) in respect of the STC Affiliated Group, the STC Affiliated
Group taken as a whole; provided, however, a Material Adverse
Effect shall not include (1) any effect or change, including
changes in national or international economic conditions,
relating to or affecting the oil and gas service and equipment
industry as a whole (including a decline in worldwide oil and
gas commodity prices), (2) changes, or possible changes, in
foreign, federal, state or local statutes and regulations, (3)
the loss of employees, customers or suppliers by Camco or one
or more of its Subsidiaries as a direct or indirect
consequence of any announcement relating to the Merger or (4)
any action taken or required to be taken to satisfy any
requirement imposed in connection with the review of the
Merger under the HSR Act. As used herein, the term
"Consideration" means the number of shares of Camco Common
Stock outstanding on the day prior to the date of this
Agreement multiplied by the Conversion Number and then
multiplied by the closing sales price of Schlumberger Common
Stock on the NYSE on the last trading day prior to the date of
this Agreement.
(iii) No consent, approval, order or authorization
of, or registration, declaration or filing with, or permit
from, any U.S. or non-U.S. court, administrative agency or
commission or other governmental authority or instrumentality
(a "Governmental Entity") is required by or with respect to
Camco or any of its Subsidiaries in connection with the
execution and delivery of this Transaction Agreement by Camco
or the consummation by Camco of the transactions contemplated
hereby, as to which the failure to obtain or make would have a
Material Adverse Effect on Camco, except for: (A) the filing
of a premerger notification report by Camco under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), and the expiration or termination of
the applicable waiting period with respect thereto; (B) the
filing with the SEC of (1) a proxy statement in preliminary
and definitive form relating to the meeting of Camco's
stockholders to be held in connection with the Merger (the
"Proxy Statement") and (2) such reports under Section 13(a) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and such other compliance with the Exchange Act and the
rules and regulations thereunder, as may be required in
connection with this Transaction Agreement, the Merger
Agreement and the transactions contemplated hereby and
thereby; (C) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware; (D) such filings
and approvals as may be required by any applicable state
securities, "blue sky" or takeover laws, or environmental
laws; (E) such filings and approvals as may be required by any
applicable non-U.S.
-6-
10
Governmental Entity; and (F) such filings and approvals as may
be required by any non-U.S. premerger notification,
securities, corporate or other law, rule or regulation.
(b) Litigation. Except as disclosed in the Camco SEC Documents
or in the Camco litigation report previously delivered to Schlumberger,
there is no (i) suit, action or proceeding pending or, to the best
knowledge of Camco, threatened against or affecting Camco or any
Subsidiary of Camco ("Camco Litigation"), or (ii) Camco Order, that
would (in any case) have a Material Adverse Effect on Camco or prevent
Camco from consummating the transactions contemplated by this
Transaction Agreement.
(c) Incorporation by Reference. Each of the representations
and warranties made by Camco in the Merger Agreement is incorporated by
reference herein as if fully set forth herein together with the
definitions of the defined terms used therein, mutatis mutandis, so
that references to the recipient of any such representations and
warranties shall be deemed to be references to Schlumberger. Each such
representation and warranty so incorporated herein by reference is
hereby confirmed directly to Schlumberger.
3.2 Representations and Warranties of Schlumberger. Schlumberger
represents and warrants to Camco as follows:
(a) Organization, Standing and Power. Schlumberger is a
corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation, has all requisite
corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted, and is duly
qualified and in good standing to do business in each jurisdiction in
which the business it is conducting, or the operation, ownership or
leasing of its properties, makes such qualification necessary, other
than where (individually as in the aggregate) the failure to be so
organized or so to qualify would not have a Material Adverse Effect on
Schlumberger. Complete and correct copies of the Certificates of
Incorporation and Bylaws of Schlumberger have heretofore been made
available to Camco.
(b) Capital Structure. As of the date hereof, the authorized
capital stock of Schlumberger consists of 1,000,000,000 shares of
Schlumberger Common Stock and 200,000,000 shares of preferred stock
("Schlumberger Preferred Stock"). At the close of business on May 31,
1998 (i) 498,941,351 shares of Schlumberger Common Stock were issued
and outstanding and an aggregate of 58,644,415 shares of Schlumberger
Common Stock were reserved for issuance pursuant to Schlumberger's:
-7-
11
Discounted Stock Purchase Plan............................................ 14,624,867
1998 Stock Option Plan ................................................... 12,000,000
1979 Stock Incentive Plan ................................................ 119,300
1979 Incentive Stock Option Plan.......................................... 86,044
1994 Stock Option Plan ................................................... 19,557,184
1989 Stock Incentive Plan ................................................ 12,247,263
IVS Stock Option Plan .................................................... 9,757
(collectively, the "Schlumberger Option Plans"); (ii) 120,201,108
shares of Schlumberger Common Stock were held by Schlumberger in its
treasury or by its wholly owned Subsidiaries; (iii) a warrant to
acquire 15,000,000 shares of Schlumberger Common Stock at an exercise
price per share of $29.975 was outstanding; (iv) no shares of
Schlumberger Preferred Stock were outstanding; and (v) no Voting Debt
was outstanding. All outstanding shares of Schlumberger Common Stock
are, and the shares of Schlumberger Common Stock when issued in
accordance with this Transaction Agreement, and upon exercise of the
Camco Stock Options to be assumed pursuant to the Merger, will be,
validly issued, fully paid and nonassessable and not subject to
preemptive rights. Except as set forth on Schedule 3.2(b) to the
Schlumberger Disclosure Letter, all outstanding shares of capital stock
of the Significant Subsidiaries of Schlumberger have been duly
authorized and validly issued and are fully paid and non-assessable,
and were not issued in violation of any preemptive rights or other
preferential rights of subscription or purchase other than those that
have been waived or otherwise cured or satisfied, and, except as set
forth in the Schlumberger SEC Documents or Schedule 3.2(b) to the
Schlumberger Disclosure Letter, all such shares are owned by
Schlumberger or a direct or indirect wholly owned Subsidiary of
Schlumberger, free and clear of all liens, charges, encumbrances,
claims and options of any nature.
(c) Authority; No Violations, Consents and Approvals.
(i) Schlumberger has all requisite corporate power
and authority to enter into this Transaction Agreement and to
consummate the transactions contemplated hereby. The execution
and delivery of this Transaction Agreement and the
consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part
of Schlumberger. This Transaction Agreement has been duly
executed and delivered by Schlumberger. Assuming this
Transaction Agreement constitutes the valid and binding
obligation of Camco, it also constitutes a valid and binding
obligation of Schlumberger and is enforceable against
Schlumberger in accordance with its terms; provided, however,
that such enforceability is subject to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
principles of equity and limitations imposed on indemnity
obligations by applicable federal and state securities laws.
-8-
12
(ii) Except as set forth an Schedule 3.2(c)(ii) to
the Schlumberger Disclosure Letter, the execution and delivery
of this Transaction Agreement does not, and the consummation
of the transactions contemplated hereby and compliance with
the provisions hereof will not, conflict with, or result in
any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or
to the loss of a material benefit under, or result in the
creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of Schlumberger or any of
its Subsidiaries under, any provision of (A) the Certificate
of Incorporation or Bylaws of Schlumberger or any provision of
the comparable charter or organizational documents of any of
its Significant Subsidiaries, (B) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise or
license applicable to Schlumberger or any of its Subsidiaries
or (C) assuming the consents, approvals, authorizations or
permits and filings or notifications referred to in Section
3.2(c)(iii) are duly and timely obtained or made and the
approval of the Merger and this Transaction Agreement by the
stockholders of Schlumberger has been obtained, any judgment,
order, decree, statute, law, ordinance, rule or regulation
applicable to Schlumberger or any of its Subsidiaries or any
of their respective properties or assets, other than, in the
case of clause (B) or (C), any such conflicts, violations,
defaults, rights, liens, security interests, charges or
encumbrances that, individually or in the aggregate, would not
have a Material Adverse Effect on Schlumberger or prevent in
any material respect the consummation of any of the
transactions contemplated hereby.
(iii) No consent, approval, order or authorization
of, or registration, declaration or filing with, or permit
from, any Governmental Entity is required by or with respect
to Schlumberger or any of its Subsidiaries in connection with
the execution and delivery of this Transaction Agreement by
Schlumberger or the consummation by Schlumberger of the
transactions contemplated hereby, as to which the failure to
obtain or make would have a Material Adverse Effect on
Schlumberger, except for: (A) the filing of a premerger
notification report by Schlumberger under the HSR Act and the
expiration or termination of the applicable waiting period
with respect thereto; (B) the filing with the SEC of the Proxy
Statement, the S-4, such reports under Section 13(a) of the
Exchange Act and such other compliance with the Securities Act
and the Exchange Act and the rules and regulations thereunder
as may be required in connection with this Transaction
Agreement, the Merger Agreement and the transactions
contemplated hereby and thereby, and the obtaining from the
SEC of such orders as may be so required; (C) the filing of
the Certificate of Merger with the Secretary of State of the
State of Delaware; (D) filings with, and approval of, the New
York Stock Exchange, Inc. (the "NYSE"); (E) such filings and
approvals as may be required by any applicable state
securities, "blue sky" or takeover laws or environmental laws;
(F) such filings and approvals as may be required by any
applicable non-U.S. Governmental Entity; and (G) such filings
and approvals as may
-9-
13
be required by any non-U.S. premerger notification,
securities, corporate or other law, rule or regulation.
(d) SEC Documents. A true and complete copy of each report,
schedule, registration statement and definitive proxy statement filed
by Schlumberger with the SEC since January 1, 1995 and prior to the
date of this Transaction Agreement (the "Schlumberger SEC Documents")
has been made available to Camco. The Schlumberger SEC Documents are
all the documents (other than preliminary material) that Schlumberger
was required to file with the SEC since such date. As of their
respective dates, the Schlumberger SEC Documents complied in all
material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be, and the rules and regulations of the
SEC thereunder applicable to such Schlumberger SEC Documents, and none
of the Schlumberger SEC Documents contained when filed any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of Schlumberger included in the
Schlumberger SEC Documents complied as to form in all material respects
with the published rules and regulations of the SEC with respect
thereto, were prepared in accordance with GAAP applied on a consistent
basis during the periods involved (except as may be indicated in the
notes thereto or, in the case of the unaudited statements, as permitted
by Rule 10-01 of Regulation S-X of the SEC) and fairly present in
accordance with applicable requirements of GAAP (subject, in the case
of the unaudited statements, to normal year-end adjustments and other
adjustments discussed therein) the consolidated financial position of
Schlumberger and its consolidated Subsidiaries as of their respective
dates and the consolidated results of operations and the consolidated
cash flows of Schlumberger and its consolidated Subsidiaries for the
periods presented therein.
(e) Information Supplied. None of the information supplied or
to be supplied by Schlumberger or any of its Subsidiaries for inclusion
or incorporation by reference in the S-4 will, at the time the S-4 is
filed with SEC or when it becomes effective under the Securities Act
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and none of the information supplied
or to be supplied by Schlumberger or any of its Subsidiaries and
included or incorporated by reference in the Proxy Statement will, at
the date mailed to stockholders of Camco or at the time of the meeting
of such stockholders to be held in connection with the Merger, 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 light of the circumstances under which they are
made, not misleading. If at any time prior to the Effective Time any
event with respect to Schlumberger or any of its Subsidiaries, or with
respect to other information supplied by Schlumberger or any of its
Subsidiaries for inclusion in the Proxy Statement or S-4, shall occur
which is required to be described in an amendment of, or a supplement
to, the Proxy Statement or the S-4, such event shall be so described,
and such amendment or supplement shall be promptly filed with
-10-
14
the SEC. The Proxy Statement, insofar as it relates to Schlumberger or
Subsidiaries of Schlumberger or other information supplied by
Schlumberger or any of its Subsidiaries for inclusion therein, will
comply as to form in all material respects with the provisions of the
Exchange Act and the rules and regulations thereunder, except that no
representations or warranties are made by Schlumberger with respect to
statements made or incorporated by reference therein based on
information supplied by Camco or any of Camco's Subsidiaries.
(f) Absence of Certain Changes or Events. Except as disclosed
in, or reflected in the financial statements included in, the
Schlumberger SEC Documents or on Schedule 3.2(f) to the Schlumberger
Disclosure Letter, or except as contemplated by this Transaction
Agreement or the Merger Agreement, since December 31, 1997 there has
not been: (i) any declaration, setting aside or payment of any dividend
or other distribution (whether in cash, stock or property) with respect
to any of Schlumberger's capital stock, except for regular quarterly
cash dividends of $.1875 per share on Schlumberger Common Stock with
usual record and payment dates for such dividends; (ii) any amendment
of any material term of any outstanding equity security of Schlumberger
or any Significant Subsidiary; (iii) any material change in any method
of accounting or accounting practice by Schlumberger or any Significant
Subsidiary; or (iv) any other transaction, commitment, dispute or other
event or condition (financial or otherwise) of any character (whether
or not in the ordinary course of business) that would have a Material
Adverse Effect on Schlumberger.
(g) No Undisclosed Material Liabilities. Except as disclosed
in the Schlumberger SEC Documents or on Schedule 3.2(g) to the
Schlumberger Disclosure Letter, there are no liabilities of
Schlumberger or any of its Subsidiaries of any kind whatsoever, whether
accrued, contingent, absolute, determined, determinable or otherwise,
that would have a Material Adverse Effect on Schlumberger, other than:
(i) liabilities adequately provided for on the balance sheet of
Schlumberger dated as of March 31, 1998 (including the notes thereto)
contained in Schlumberger's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998; (ii) liabilities incurred in the ordinary
course of business since March 31, 1998; and (iii) liabilities under
this Transaction Agreement and the Merger Agreement.
(h) Litigation. Except as disclosed in the Schlumberger SEC
Documents or on Schedule 3.2(h) to the Schlumberger Disclosure Letter,
there is no (i) suit, action or proceeding pending or, to the best
knowledge of Schlumberger, threatened against or affecting Schlumberger
or any Subsidiary of Schlumberger ("Schlumberger Litigation"), or (ii)
judgment, decree, injunction, rule or order of any Governmental Entity
or arbitrator outstanding against Schlumberger or any Subsidiary of
Schlumberger that (in any case) would have a Material Adverse Effect on
Schlumberger or prevent Schlumberger from consummating the transactions
contemplated by this Transaction Agreement or by the Merger Agreement.
-11-
15
(i) No Vote Required. No vote of the holders of any class or
series of Schlumberger capital stock is necessary to approve the
issuance of Schlumberger Common Stock pursuant to this Transaction
Agreement and the transactions contemplated hereby.
(j) Accounting Matters. To the best knowledge of the financial
and accounting officers of Schlumberger prior to the date hereof,
neither Schlumberger nor any of its Affiliates has taken any action
that (without giving effect to any action taken or agreed to be taken
by Camco or any of its Affiliates) would jeopardize the treatment of
the business combination to be effected by the Merger as a pooling of
interests for accounting purposes.
(k) Beneficial Ownership of Camco Common Stock. As of the date
hereof, neither Schlumberger nor its Subsidiaries "beneficially owns"
(as defined in Rule 13d-3 under the Exchange Act) any shares of Camco
Common Stock.
(l) Material Contracts and Agreements. All material contracts
of Schlumberger or its Subsidiaries have been included in the
Schlumberger SEC Documents unless not required to be included pursuant
to the rules and regulations of the SEC. Schedule 3.2(l) of the
Schlumberger Disclosure Letter sets forth a list of all written or oral
contracts, agreements or arrangements to which Schlumberger or any of
its Subsidiaries or any of their respective assets are bound which meet
the definition of material contracts set forth in Section 6.01 of
Regulation S-K promulgated under the Securities Act and which have not
been included in the Schlumberger SEC Documents.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Legal Conditions to Merger.
(a) Except as otherwise provided herein, Camco and
Schlumberger will each take all reasonable actions necessary to comply
promptly with all legal requirements that may be imposed on such party
with respect to the Merger (including, without limitation, furnishing
all information required under the HSR Act and in connection with
approvals of or filings with any other Governmental Entity) and will
promptly cooperate with and furnish information to each other in
connection with any such requirements imposed upon any of them or any
of their Subsidiaries in connection with the Merger. Each of Camco and
Schlumberger will, and will cause its respective Subsidiaries to, take
all actions necessary to obtain (and will cooperate with each other in
obtaining) any consent, acquiescence, authorization, order or approval
of, or any exemption or nonopposition by, any Governmental Entity or
court required to be obtained or made by Camco, Schlumberger or any of
their Subsidiaries in connection with the Merger or the taking of any
action contemplated thereby, by the Merger Agreement or by this
Transaction Agreement, including
-12-
16
complying with any requests or orders made by the Justice Department or
the Federal Trade Commission in connection with the Merger.
(b) Each of the parties hereto shall file a premerger
notification and report form under the HSR Act with respect to the
Merger as promptly as reasonably possible following execution and
delivery of this Agreement. Each of the parties agrees to use
reasonable efforts to promptly respond to any request for additional
information pursuant to Section (e)(1) of the HSR Act. Except as
otherwise required by United States regulatory considerations, Camco
will furnish to Schlumberger copies of all correspondence, filings or
communications (or memoranda setting forth the substance thereof
(collectively, "Company HSR Documents")) between Camco, or any of its
respective representatives, on the one hand, and any governmental
entity, or members of the staff of such agency or authority, on the
other hand, with respect to this Agreement, the Merger Agreement or the
Merger; provided; however, that (x) with respect to documents and other
materials filed by or on behalf of Camco with the Antitrust Division of
the Department of Justice, the Federal Trade Commission, or any state
attorneys general that are available for review by Schlumberger, copies
will not be required to be provided to Schlumberger and (y) with
respect to any Camco HSR Documents (1) that contain any information
which, in the reasonable judgment of Fulbright & Xxxxxxxx L.L.P.,
should not be furnished to Schlumberger because of antitrust
considerations or (2) relating to a request for additional information
pursuant to Section (e)(1) of the HSR Act, the obligation of Camco to
furnish any such Camco HSR Documents to Schlumberger shall be satisfied
by the delivery of such Camco HSR Documents on a confidential basis to
Xxxxx & Xxxxx, L.L.P., pursuant to a confidentiality agreement in form
and substance reasonably satisfactory to Schlumberger. Except as
otherwise required by United States regulatory considerations,
Schlumberger will furnish to Camco copies of all correspondence,
filings or communications (or memoranda setting forth the substance
thereof (collectively, "Schlumberger HSR Documents")) between
Schlumberger or any of its representatives, on the one hand, and any
Governmental Entity, or member of the staff of such agency or
authority, on the other hand, and any Governmental Entity, or member of
the staff of such agency or authority, on the other hand, with respect
to this Agreement, the Merger Agreement or the Merger; provided,
however, that (x) with respect to documents and other materials filed
by or on behalf of Schlumberger with the Antitrust Division of the
Department of Justice, the Federal Trade Commission, or any state
attorneys general that are available for review by Camco, copies will
not be required to be provided to Camco, and (y) with respect to any
Schlumberger HSR Documents (1) that contain information which, in the
reasonable judgment of Xxxxx & Xxxxx, L.L.P., should not be furnished
to Camco because of antitrust considerations or (2) relating to a
request for additional information pursuant to Section (e)(1) of the
HSR Act, the obligation of Schlumberger to furnish any such
Schlumberger HSR Documents to Camco shall be satisfied by the delivery
of such Schlumberger HSR Documents on a confidential basis to Fulbright
& Xxxxxxxx L.L.P. pursuant to a confidentiality agreement in form and
substance reasonably satisfactory to Camco.
-13-
17
(c) In the event that any governmental body with jurisdiction
of this Merger shall require Schlumberger or any of its Subsidiaries to
agree to take or not to take any action as a condition to approving or
not objecting to the Merger, Schlumberger will take such action (i) if
the loss in annual revenues to the Surviving Corporation would
reasonably be expected not to exceed $75 million during the ensuing
twelve months following the Closing, or (ii) if Schlumberger otherwise
considers it reasonable and appropriate in the circumstances to take
such action.
4.2 Agreement to Defend. In the event any claim, action, suit,
investigation or other proceeding by any governmental body or other person or
other legal or administrative proceeding is commenced that questions the
validity or legality of the transactions contemplated hereby or seeks damages in
connection therewith, the parties hereto agree to cooperate and use their
reasonable efforts to defend against and respond thereto.
4.3 Accounting Matters. During the period from the date of this
Transaction Agreement through the Effective Time, unless the parties shall
otherwise agree in writing, neither Schlumberger nor Camco or any of their
respective Subsidiaries shall knowingly take or fail to take any reasonable
action which action or failure to act would jeopardize the treatment of the
Merger as a pooling of interests for accounting purposes.
4.4 Public Announcements. Schlumberger and Camco will consult with each
other before issuing any press release or otherwise making any public statements
with respect to the transactions contemplated by this Transaction Agreement, and
shall not issue any such press release or make any such public statement prior
to such consultation, except as may be required by applicable law or by
obligations pursuant to any listing agreement with any national securities
exchange or transaction reporting system.
4.5 Other Actions. Except as contemplated by this Transaction Agreement
or the Merger Agreement, neither Schlumberger nor Camco shall, and neither shall
permit any of its Subsidiaries to, take or agree or commit to take or omit to
take any action that is reasonably likely to result in any of its respective
representations or warranties hereunder or under the Merger Agreement being
untrue in any material respect or in any of the conditions to the Merger set
forth in Article VI to the Merger Agreement not being satisfied.
4.6 Advice of Changes; SEC Filings. Schlumberger and Camco shall confer
on a regular basis with each other, report on operational matters of Camco and
promptly advise each other orally and in writing of any change or event having,
or which, insofar as can reasonably be foreseen, could have, a Material Adverse
Effect on Schlumberger or Camco, as the case may be. Subject to the provisions
of Section 4.1, Camco and Schlumberger shall promptly provide each other (or
their respective counsel) copies of all filings made by such party with the SEC
or any other state or federal Governmental Entity in connection with this
Transaction Agreement or the Merger Agreement and the transactions contemplated
hereby and thereby.
-14-
18
4.7 Reorganization. It is the intention of Schlumberger and Camco that
the Merger will qualify as a reorganization described in Section 368(a)(1)(B) of
the Code (and any comparable provisions of applicable state law). Neither
Schlumberger nor Camco (nor any of their respective Subsidiaries) will take or
omit to take any action (whether before, on or after the Closing Date) that
would cause the Merger not to be so treated. The parties (and their respective
Subsidiaries) will characterize the Merger as such a reorganization for purposes
of all Returns and other filings.
4.8 Takeover Defenses. Schlumberger and Camco shall each take such
action with respect to any takeover provisions in its respective Certificate of
Incorporation or Bylaws or afforded it by statute to the extent necessary to
consummate the Merger on the terms set forth in the Merger Agreement.
4.9 Letter of Camco's Accountants. Camco shall use its best efforts to
cause to be delivered to Schlumberger a letter of Xxxxxx Xxxxxxxx LLP, Camco's
independent public accountants, dated a date within two business days before the
date on which the S-4 shall become effective and addressed to Schlumberger and
Camco, in form and substance reasonably satisfactory to Schlumberger and
customary in scope and substance for letters delivered by independent public
accountants in connection with registration statements similar to the S-4. In
connection with Camco's efforts to obtain such letter, if requested by Xxxxxx
Xxxxxxxx XXX, Xxxxxxxxxxxx shall provide a representation letter to Xxxxxx
Xxxxxxxx LLP complying with SAS 72, if then required.
4.10 Letter of Schlumberger's Accountants. Schlumberger shall use its
best efforts to cause to be delivered to Camco a letter of Price Waterhouse LLP,
Schlumberger's independent public accountants, dated a date within two business
days before the date on which the S-4 shall become effective and addressed to
Camco and Schlumberger, in form and substance reasonably satisfactory to Camco
and customary in scope and substance for letters delivered by independent public
accountants in connection with registration statements similar to the S-4. In
connection with Schlumberger's efforts to obtain such letter, if requested by
Price Waterhouse LLP, Camco shall provide a representation letter to Price
Waterhouse LLP complying with SAS 72, if then required.
4.11 Rights Agreement. Prior to the Effective Time, the Board of
Directors of Camco shall take any action (including, as necessary, amending or
terminating (but with respect to termination, only as of immediately prior to
the Effective Time) the Rights Agreement) necessary so that none of the
execution and delivery of this Transaction Agreement, the conversion of shares
of Camco Common Stock into the right to receive Schlumberger Common Stock in
accordance with Article II of this Transaction Agreement, and the consummation
of the Merger or any other transaction contemplated hereby will cause (a) the
Camco Rights to become exercisable under the Rights Agreement, (b) Schlumberger
or any of its Subsidiaries to be deemed an "Acquiring Person" (as defined in the
Rights Agreement), (c) the provisions of Section 11 or Section 13 of the Rights
Agreement to become applicable to any such event or (d) the "Distribution Date"
or the "Share Acquisition Date" (each as defined in the Rights Agreement) to
occur upon any such event, and so that the "Expiration Date" (as defined in the
Rights Agreement) of the Camco Rights will occur
-15-
19
immediately prior to the Effective Time. Without the prior written consent of
Schlumberger, neither the Board of Directors of Camco nor Camco shall take any
other action to terminate the Rights Agreement, redeem the Camco Rights, cause
any person not to be or become an "Acquiring Person" or otherwise amend the
Rights Agreement in a manner, or take any other action under the Rights
Agreement, adverse to Schlumberger.
4.12 Stock Options. Schlumberger shall take all corporate action
necessary to reserve for issuance a sufficient number of shares of Schlumberger
Common Stock for delivery upon exercise of the Camco Stock Options assumed by
STC in accordance with Section 2.1(d) and Section 5.5 of the Merger Agreement.
As soon as possible after the Effective Time, Schlumberger shall file with the
SEC a registration statement on Form S-8 (or any successor form) with respect to
the shares of Schlumberger Common Stock subject to the Camco Stock Options.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Camco's Closing Deliveries. The obligations of Camco
under Section 5.2 hereof are subject to the conditions that the Merger Agreement
shall not have been terminated, that each of the conditions set forth in Article
VI of the Merger Agreement other than those conditions to be satisfied at the
Closing shall have been satisfied or waived as set forth therein and that each
of the following conditions shall have been satisfied or waived by Camco:
(a) Representations and Warranties. Each of the
representations and warranties of Schlumberger set forth in this
Transaction Agreement shall be true and correct in all material
respects as of the date of this Transaction Agreement and (except to
the extent such representations and warranties speak as of an earlier
date) as of the Delivery Date as though made on and as of the Delivery
Date, except where the failure to be so true and correct (without
giving effect to the individual materiality thresholds otherwise
contained in Section 3.2 hereof) would not have a Material Adverse
Effect on Schlumberger (such that the aggregate of the Material Adverse
Effect on Schlumberger hereunder exceeds $400 million) and Schlumberger
shall have received a certificate dated the Delivery Date by a duly
authorized officer of Schlumberger to that effect.
(b) Performance of Obligations of Schlumberger. Schlumberger
shall have performed in all material respects all obligations required
to be performed by it under this Transaction Agreement at or prior to
the Delivery Date.
(c) Certifications and Opinion. Schlumberger shall have
furnished Camco with:
(i) a certified copy of a resolution or resolutions
duly adopted by the Board of Directors or a duly authorized
committee thereof of Schlumberger approving this Transaction
Agreement and the transactions contemplated hereby; and
-16-
20
(ii) a favorable opinion, dated the Closing Date, in
customary form and substance, of Xxxxx X. Xxxxxxxx, Esquire,
General Counsel of Schlumberger, to the effect that:
(A) Schlumberger is a corporation duly
incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation
and has corporate power to own its properties and
assets and to carry on its business as presently
conducted and as described in the Registration
Statement; and the execution and delivery of this
Transaction Agreement did not, and the consummation
of the transactions contemplated hereby will not,
violate any provision of Schlumberger's Certificate
of Incorporation or Bylaws;
(B) the Board of Directors of Schlumberger
has taken all action required under its jurisdiction
of incorporation, its Certificate of Incorporation or
its Bylaws to authorize the execution and delivery of
this Transaction Agreement and the transactions
contemplated hereby; and this Transaction Agreement
is a valid and binding agreement of Schlumberger
enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other
similar laws or judicial decisions now or hereafter
in effect relating to creditors' rights generally or
governing the availability of equitable relief; and
(C) the Schlumberger Shares to be delivered
to the holders of Camco Common Stock pursuant to
Article II of the Merger Agreement are duly
authorized and when issued and delivered as
contemplated by the Merger Agreement will be legally
and validly issued and fully paid and nonassessable
and no stockholders of Schlumberger shall have any
preemptive rights with respect thereto either
pursuant to the organizational documents of
Schlumberger or under applicable law of the
jurisdiction of Schlumberger's organization.
(d) Fairness Opinion. Xxxxxx Xxxxxxx & Co. Incorporated has
not revoked, modified or changed its opinion referred to in Section 3.1(p) of
the Merger Agreement in any manner adverse to the holders of the Common Stock of
Camco.
5.2 Conditions to Schlumberger's Closing Deliveries. The obligations of
Schlumberger under Section 2.1 and Section 5.1 hereof are subject to the
conditions that the Merger Agreement shall not have been terminated, that each
of the conditions set forth in Article VI of the Merger Agreement other than
those conditions to be satisfied at Closing shall have been satisfied or waived
as set forth therein and that each of the following conditions shall have been
satisfied or waived by Schlumberger:
-17-
21
(a) Representations and Warranties. Each of the
representations and warranties of Camco set forth in this Transaction
Agreement shall be true and correct in all material respects as of the
date of this Transaction Agreement and (except to the extent such
representations and warranties speak as of an earlier date) as of the
Delivery Date as though made on and as of the Deliver Date, except
where the failure to be so true and correct (without giving effect to
the individual materiality thresholds otherwise contained in Section
3.1 hereof) would not have a Material Adverse Effect on Camco (such
that the aggregate of the Material Adverse Effect on Camco hereunder
exceeds $200 million) and Schlumberger shall have received a
certificate dated the Delivery Date on behalf of Camco by the chief
executive officer and chief financial officer of Camco to that effect.
(b) Performance of Obligations of Camco. Camco shall have
performed in all material respects all obligations required to be
performed by it under this Transaction Agreement at or prior to the
Delivery Date.
(c) Certifications and Opinion. Camco shall have furnished
Schlumberger with:
(i) a certified copy of a resolution or resolutions
duly adopted by the Board of Directors of Camco approving this
Transaction Agreement and consummation of the transactions
contemplated hereby; and
(ii) a favorable opinion, dated the Delivery Date, in
customary form and substance, of Xxxxxx X. Xxxxxxx, Esquire,
General Counsel of Camco, to the effect that:
(A) the execution and delivery of this
Transaction Agreement did not violate any provision
of Camco's Certificate of Incorporation or Bylaws;
and
(B) the Board of Directors of Camco has
taken all action required by the DGCL and its
Certificate of Incorporation or its Bylaws to
authorize the execution and delivery of this
Transaction Agreement and the transactions
contemplated hereby; and this Transaction Agreement
is a valid and binding agreement of Camco enforceable
in accordance with its terms, except as such
enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other
similar laws or judicial decisions now or hereafter
in effect relating to creditors' rights generally or
governing the availability of equitable relief.
-18-
22
ARTICLE VI
TERMINATION AND AMENDMENT
6.1 Termination. This Transaction Agreement shall automatically
terminate if the Merger Agreement is terminated. In addition, this Transaction
Agreement may be terminated:
(a) by mutual written consent of Camco and Schlumberger, or by
mutual action of their respective Boards of Directors;
(b) by Schlumberger if (i) Camco shall have failed to comply
in any material respect with any of the covenants or agreements
contained in this Transaction Agreement to be complied with or
performed by Camco at or prior to such date of termination (provided
such breach has not been cured within 30 days following receipt by
Camco of notice of such breach and is existing at the time of
termination of this Transaction Agreement); or (ii) any representations
and warranties of Camco contained in this Transaction Agreement shall
not have been true when made (provided such breach has not been cured
within 30 days following receipt by Camco of notice of such breach and
is existing at the time of termination of this Transaction Agreement)
or on and as of the Effective Time as if made on and as of the
Effective Time (except to the extent it relates to a particular date),
except where the failure to be so true and correct (without giving
effect to the individual materiality thresholds otherwise contained in
Section 3.1 hereof) would not have a Material Adverse Effect on Camco
such that the aggregate of the Material Adverse Effect on Camco exceeds
$200 million; and
(c) by Camco if (i) Schlumberger shall have failed to comply
in any material respect with any of the covenants or agreements
contained in this Transaction Agreement to be complied with or
performed by it at or prior to such date of termination (provided such
breach has not been cured within 30 days following receipt by
Schlumberger of notice of such breach and is existing at the time of
termination of this Transaction Agreement); or (ii) any representations
and warranties of Schlumberger contained in this Transaction Agreement
shall not have been true when made (provided such breach has not been
cured within 30 days following receipt by Schlumberger of notice of
such breach and is existing at the time of termination of this
Transaction Agreement) or on and as of the Effective Time as if made on
and as of the Effective Time (except to the extent it relates to a
particular date), except where the failure to be so true and correct
(without giving effect to the individual materiality thresholds
otherwise contained in Section 3.2 hereof) would not have a Material
Adverse Effect on Schlumberger such that the aggregate of the Material
Adverse Effect on Schlumberger exceeds $400 million.
6.2 Effect of Termination. In the event of termination of this
Transaction Agreement by either Camco or Schlumberger as provided in Section
6.1, this Transaction Agreement shall forthwith become void and there shall be
no liability or obligation on the part of Schlumberger or
-19-
23
Camco under this Termination Agreement except (a) with respect to Section 7.1,
and (b) to the extent that such termination results from the willful breach by a
party hereto of any of its representations or warranties or of any of its
covenants or agreements, in each case, as set forth in this Transaction
Agreement except as provided in Section 8.9. Nothing herein shall be construed
to limit any of the rights and obligations under the Merger Agreement.
6.3 Amendment. This Transaction Agreement may be amended by the parties
hereto, by action taken or authorized by their respective Boards of Directors,
at any time before or after approval of the matters presented in connection with
the Merger by the stockholders of Camco, but, after any such approval, no
amendment shall be made which by law requires further approval by such
stockholders without such further approval. This Transaction Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties hereto.
6.4 Extension; Waiver. At any time prior to the Effective Time, the
parties hereto, by action taken or authorized by their respective Boards of
Directors, may, to the extent legally allowed: (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto;
(b) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto; and (c) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party.
ARTICLE VII
GENERAL PROVISIONS
7.1 Payment of Expenses. Each party hereto shall pay its own expenses
incident to preparing for entering into and carrying out this Transaction
Agreement and the consummation of the transactions contemplated hereby, whether
or not the Merger shall be consummated, except that the filing fees with respect
to the Proxy Statement, and the S-4 shall be paid by Schlumberger.
7.2 Nonsurvival of Representations, Warranties and Agreements. None of
the representations, warranties and agreements in this Transaction Agreement or
in any instrument delivered pursuant to this Transaction Agreement shall survive
the Effective Time and any liability for breach or violation thereof shall
terminate absolutely and be of no further force and effect at and as of the
Effective Time, except for the agreements contained in Section 6.2 and this
Article VI and the representations, covenants and agreements contained in
Section 4.7. The Confidentiality Agreements shall survive the execution and
delivery of this Transaction Agreement, and the provisions of the
Confidentiality Agreements shall apply to all information and material delivered
hereunder.
7.3 Notices. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally, telegraphed or
telecopied or sent by certified or registered
-20-
24
mail, postage prepaid, and shall be deemed to be given, dated and received when
so delivered personally, telegraphed or telecopied or, if mailed, five business
days after the date of mailing to the following address or telecopy number, or
to such other address or addresses as such person may subsequently designate by
notice given hereunder:
(a) if to Schlumberger, to:
Schlumberger Limited
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esquire
Fax: (000) 000-0000
with a copy to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esquire
Fax: (000) 000-0000
and (b) if to Camco, to:
Camco International, Inc.
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esquire
Fax: (000) 000-0000
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esquire
Fax: (000) 000-0000
7.4 Interpretation. When a reference is made in this Transaction
Agreement to Sections, such reference shall be to a Section of this Transaction
Agreement unless otherwise indicated. The table of contents, glossary of defined
terms and headings contained in this Transaction Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Transaction Agreement. Whenever the word "include", "includes" or
"including" is used in this Transaction Agreement, it shall be deemed to be
followed by the words "without limitation." The
-21-
25
phrase "made available" in this Transaction Agreement shall mean that the
information referred to has been made available if requested by the party to
whom such information is to be made available.
7.5 Counterparts. This Transaction Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
7.6 Entire Agreement; No Third-Party Beneficiaries. This Transaction
Agreement (together with the Confidentiality Agreements, the Merger Agreement
and any other documents and instruments referred to herein) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereto
and is not intended to confer upon any person other than the parties hereto any
rights or remedies hereunder.
7.7 Governing Law. This Transaction Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
7.8 No Remedy in Certain Circumstances. Each party agrees that, should
any court or other competent authority hold any provision of this Transaction
Agreement or part hereof to be null, void or unenforceable, or order any party
to take any action inconsistent herewith or not to take an action consistent
herewith or required hereby, the validity, legality and enforceability of the
remaining provisions and obligations contained or set forth herein shall not in
any way be affected or impaired thereby, unless the foregoing inconsistent
action or the failure to take an action constitutes a material breach of this
Transaction Agreement or makes this Transaction Agreement impossible to perform,
in which case this Transaction Agreement shall terminate pursuant to Article VI
hereof. Except as otherwise contemplated by this Transaction Agreement, to the
extent that a party hereto took an action inconsistent herewith or failed to
take action consistent herewith or required hereby pursuant to an order or
judgment of a court or other competent authority, such party shall not incur any
liability or obligation unless such party breached its obligations under Section
4.1 hereof or did not in good faith seek to resist or object to the imposition
or entering of such order or judgment.
7.9 Assignment. Neither this Transaction Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Transaction Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
7.10 Enforcement of the Agreement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Transaction
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the
-22-
26
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Transaction Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States located in the State of Delaware or in
the Chancery Court of the State of Delaware, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each of the
parties hereto (a) consents to submit itself to the personal jurisdiction of any
Federal or state court sitting in Wilmington, Delaware in the event any dispute
between the parties hereto arises out of this Agreement solely in connection
with such a suit between the parties, (b) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court and (c) agrees that it will not bring any action relating to
this Agreement in any court other than a Federal or state court sitting in
Wilmington, Delaware.
-23-
27
IN WITNESS WHEREOF, each party has caused this Transaction Agreement to
be signed by its respective officers thereunto duly authorized, all as of the
date first written above.
SCHLUMBERGER LIMITED
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------
Xxxxxx X. Xxxxxxxx
Vice Chairman
CAMCO INTERNATIONAL, INC.
By: /S/ XXXXXXX X. XXXXXX
--------------------------------
Xxxxxxx X. Xxxxxx
President and Chief
Executive Officer
