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EXHIBIT 10.63
17 JULY 1998
TRITON ASIA HOLDINGS, INC.
ARCO JDA LIMITED
TRITON ENERGY LIMITED
ATLANTIC RICHFIELD COMPANY
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SHARE PURCHASE AGREEMENT
RELATING TO
THE SALE AND PURCHASE OF PART OF THE SHARE CAPITAL
OF TRITON INTERNATIONAL OIL CORPORATION
CONTENTS
Clause Page
1. Interpretation 5
2. Sale and Purchase 5
3. Conditions 5
4. Price 6
5. Pre-Completion Undertakings 7
6. Completion 8
7. Completion Certificate and Balance Sheet 10
8. Seller's Warranties 12
9. Purchaser's Warranties and Undertaking 14
10. Seller Xxxxxxxxx 00
00. Purchaser Guarantor 15
12. Waivers 15
13. Assignment 16
14. Further Assurance 16
15. Entire Agreement 16
16. Announcements 17
17. Costs and Expenses 18
18. Counterparts and Amendments 18
19. Severability 18
20. Notices 19
21. Governing Law 21
22. Jurisdiction 21
23. Service of Process 21
24. Agent for Service of Process 21
SCHEDULE 1 23
SCHEDULE 2 25
Part A: Basic Information about the Company 28
Part B: Basic Information about the
Subsidiaries 29
SCHEDULE 3 28
Completion Arrangements 31
SCHEDULE 4 32
The Warranties 32
Intra-Group Guarantees 37
SCHEDULE 5 43
Indemnification Procedures and Limitations on
the Seller's liability for Warranty Claims and
Liabilities Indemnity Claims 46
SCHEDULE 6 49
Part A: Production Sharing Contract 52
AGREEMENT is made on 17 July 1998
BETWEEN
TRITON ASIA HOLDINGS, INC, a company incorporated under the laws of the
Cayman Islands whose principal place of business is at Caledonian House, Xxxx
Street, P.O. Box 1043, Xxxxxx Town, Grand Cayman, the Cayman Islands (the
SELLER); and
ARCO JDA LIMITED, a company incorporated under the laws of the Commonwealth of
the Bahamas whose registered office is at #3 Magna Carta Court, P.O. Box,
N-4805, Xxxxxxx Street, Nassau, Bahamas (the PURCHASER);
TRITON ENERGY LIMITED, a company incorporated under the laws of the Cayman
Islands whose principal place of business is at Caledonian House, Xxxx Street,
P.O. Box 1043, Xxxxxx Town, Grand Cayman, the Cayman Islands (the SELLER
GUARANTOR);
ATLANTIC RICHFIELD COMPANY, a company incorporated under the laws of the State
of Delaware, U.S.A., whose principal place of business is located at 000 X.
Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, 00000 (the PURCHASER GUARANTOR).
WHEREAS
(A) Triton International Oil Corporation (the COMPANY) is a company
organised and existing under the laws of the Cayman Islands with an authorised
capital of US$50,000 divided into 50,000 Ordinary Shares of which 1,000 shares
are issued and outstanding.
(B) The Seller is sole legal and beneficial owner of all of the issued
and outstanding shares of capital stock of the Company.
(C) The Seller has agreed to sell fifty percent (50%) of the shares of
issued and outstanding capital stock of the Company to the Purchaser for the
consideration and upon the terms set out in this Agreement.
WHEREBY IT IS AGREED as follows:
INTERPRETATION
1.1 In this Agreement, expressions defined in Schedule 1 shall have the
meaning therein provided.
SALE AND PURCHASE
2. Subject to the terms and conditions herein, at Completion, the Seller
shall sell or procure the sale of and the Purchaser shall purchase the Shares
with full title guarantee. The Shares shall be sold free from all charges,
encumbrances, security interests, options, equities, claims or other third
party rights (including rights of pre-emption) of any nature whatsoever.
CONDITIONS
3.1 The respective obligations of each of the Seller and the Purchaser to
effect the transactions contemplated hereby shall be subject to the fulfilment
in all material respects of the following conditions any of which may be
waived, in whole or in part, by the Party whose obligations are subject to
such condition:
(a) the other Party shall have performed or complied in all material
respects with each obligation, covenant or each agreement contained in this
Agreement required to be performed or complied with on or prior to the
Completion Date including without limitation, the obligations, arrangements
and undertakings set forth in Schedule 3; and the representations and
warranties of the Seller or the Purchaser, as the case may be, contained in
this Agreement shall be true and correct in all material respects when made
and on and as at the Completion Date and the Seller and the Purchaser shall
each have received a certificate of the President or a Vice President of the
other Party certifying to such effect; and
(b) none of the Parties hereto shall be subject to (i) any pending or
threatened litigation or proceeding to restrain or prohibit the transactions
contemplated by this Agreement or to obtain damages or other relief in
connection with the consummation of the transactions contemplated by this
Agreement, or (ii) any order or injunction against the consummation of the
transactions contemplated by this Agreement and in the event any such order or
injunction is granted, each Party agrees to use its reasonable efforts to have
any such injunction lifted.
3.2 The obligations of the Purchaser to effect the transactions
contemplated hereby shall be subject to the fulfilment in all material
respects of the following conditions any of which may be waived, in whole or
in part, by the Purchaser:
(a) the Seller (for and on behalf of the Group Companies) nor the Group
Companies themselves, shall not have entered into a definitive and binding gas
sales agreement for the sale of natural gas from the Malaysian-Thailand Joint
Development Area without the prior written consent of the Purchaser; and
(b) the Seller shall have made the necessary elections on Form 8832
pursuant to the provisions of Section 7701 of the Internal Revenue Code of
1986, as amended, and the rules and regulations promulgated thereunder, to
treat the Company as a disregarded entity of the Seller and to treat the
Subsidiaries as disregarded entities of the Seller. Such elections shall be
filed with the Internal Revenue Service and shall be made effective prior to
the Completion Date; and
(c) there having been no change or development that has, or would
reasonably be expected to have, a Material Adverse Effect; and
(d) TOCT (Texas) having been converted to a limited liability company and
all its issued and outstanding share capital held by Triton International Oil
Corp. (Delaware) having been transferred to the Company; and
(e) TOCT (Texas) having transferred its holding of 9% preferred stock in
the capital of TOCT (JDA) to the Company and TOCT (JDA) having cancelled all
outstanding 9% preferred stock.
3.3 The obligations of the Seller to effect the transactions contemplated
hereby shall be subject to the receipt by the Seller Guarantor of the consents
of the Seller Guarantor's lenders under its revolving credit agreements.
PRICE
4.1 The total purchase price payable by the Purchaser to the Seller for
the Shares shall be US$150,000,000.
4.2 The Purchaser shall pay the purchase price by wire transfer of
immediately available funds to an account to be designated by the Seller on
the Completion Date.
PRE-COMPLETION UNDERTAKINGS
5.1 Pending Completion, the Seller shall ensure that, and shall procure
that Triton International Oil Corporation (Delaware) shall, where relevant,
exercise the voting rights attaching to its shareholding in the capital of
TOCT (Texas) and (through TOCT (Texas)) in CTOC, to ensure that:
(a) each Group Company and CTOC, as the case may be, shall carry on its
business in the ordinary and usual course of normal day-to-day operations,
consistent with the past practices of such Group Company or CTOC;
(b) save as permitted pursuant to Clause 5.2(b), no Group Company or
CTOC, as the case may be, enters into any contract or commitment (or makes a
bid or offer which if accepted would result in a contract or commitment)
having a value or requiring expenditure in excess of $1,000,000, excluding
contracts or commitments entered into pursuant to the 1998 Work Programme and
Budget or otherwise as set out in the Disclosure Letter;
(c) subject to the terms of the Confidentiality Agreement, the
Purchaser's representatives shall be allowed, upon reasonable notice and
during normal business hours, access to the employees, officers, properties,
offices and other facilities, documents, data (including the types of data
listed in Section 9(c) of Schedule 3), books and records of each Group Company
(including, without limitation, all statutory books, minute books, leases,
contracts, supplier lists and customer lists) together with the right to take
copies.
5.2 Pending Completion, the Seller, the Group Companies and any other
subsidiary of the Seller may:
(a) negotiate and (without prejudice to Clause 3.2(a)) enter into for and
on behalf of the Group Companies a definitive gas sales agreement for the sale
of natural gas from the Malaysian-Thailand Joint Development Area;
(b) proceed with the development of the Malaysia-Thailand Joint
Development Area as contemplated by the development plan approved by the
Malaysia-Thailand Joint Authority, a copy of which has been provided to the
Purchaser;
(c) take steps to restructure the capital of the Company as contemplated
under the Shareholders Agreement;
(d) cause the outstanding 9% preferred stock of Triton Oil Company of
Thailand (JDA) Limited to be cancelled in such a manner as the Seller and the
Group Companies may determine; and
(e) subject to Clause 5.3, cause any Intra-Group Indebtedness to be
cancelled, such cancellation to be effective upon Completion.
5.3 To the extent that any Intra-Group Indebtedness comprises amounts
which fall within, or are capable of being taken account of and included in,
the Completion Certificate, such indebtedness shall not be cancelled but shall
be capitalised in accordance with Clause 8.1 of the Shareholders Agreement.
5.4 The Seller shall file with the Internal Revenue Service and shall
make the necessary elections on Form 8832 pursuant to the provisions of
Section 7701 of the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated thereunder, to treat the Company as a disregarded
entity of the Seller and to treat the Subsidiaries as disregarded entities of
the Seller. Such elections shall be made effective prior to the Completion
Date.
COMPLETION
6.1 Completion shall take place at 10:00 a.m. on the Completion Date at
the offices of X.X. Xxxxxx and Company in the Cayman Islands.
6.2 At Completion the Purchaser and the Seller shall do those things
respectively required of them under Schedule 3.
6.3 Neither the Purchaser nor the Seller shall be obliged to complete
this Agreement unless (i) the conditions to such Party's obligations to effect
the transactions contemplated by this Agreement as set forth in Clause 3.1
have been waived or satisfied; (ii) the conditions to the Purchaser's
obligations to effect the transactions contemplated by this Agreement as set
forth in Clause 3.2 have been waived or satisfied; and (iii) the conditions to
the Seller's obligations to effect the transactions contemplated by this
Agreement as set forth in Clause 3.3 have been waived or satisfied; and (iv)
the Seller or, as the case may be, the Purchaser complies with the
requirements of Clause 6.2.
6.4 Notwithstanding anything contained in this Agreement to the contrary,
this Agreement may be terminated at any time prior to Completion:
(a) by the mutual written consent of the Purchaser and the Seller;
(b) by either the Purchaser or the Seller if the conditions to such
Party's obligations to effect the transactions contemplated by this Agreement
as set forth in Clauses 3.1, 3.2 or 3.3 as the case may be, have not been
satisfied or waived on or prior to the Completion Date (other than through the
failure of the Party seeking to terminate this Agreement to comply fully with
its obligations under this Agreement); provided, however, that if the
respective obligations of the Seller and the Purchaser under Clause 6.2 are
not complied with on the Completion Date, in addition to having the right to
terminate this Agreement (without limiting its rights hereunder) the Party not
in default may:
(i) defer Completion (so that the provisions of this Clause 6 shall
apply to Completion as so deferred); and/or
(ii) proceed to Completion as far as practicable (without limiting
its rights under this Agreement);
(c) notwithstanding the provisions of Clause 3.1(b)(ii), by either the
Purchaser or the Seller if the Completion has not occurred on or prior to 45
days after the signing date of this Agreement as a result of the entry of any
order or injunction against the consummation of the transactions contemplated
by this Agreement; and
(d) by either the Purchaser or the Seller if the Completion has not
occurred on or prior to forty five (45) days after the signing date of this
Agreement (other than through the failure of any Party seeking to terminate
this Agreement to comply fully with its obligations under this Agreement).
6.5 Each Party's right of termination under Clause 6.4 is in addition to
any other rights it may have under this Agreement or otherwise (including the
right to pursue legal remedies for the other Party's material breach of, or
failure to comply in any material respect with, its obligations under this
Agreement), and the exercise of a right of termination will not be an election
of remedies. If this Agreement is terminated under Clause 6.4, each party
hereto will pay its own fees and expenses in accordance with Clause 17.1.
6.6 Subject to the provisions of Schedule 5, all representations,
warranties (including without limitation, the Warranties), covenants and
obligations set forth in this Agreement, the Disclosure Letter or the
certificates delivered pursuant to Clause 3.1(a) will survive the Completion.
COMPLETION CERTIFICATE AND BALANCE SHEET
7.1 The Seller shall use all reasonable endeavours to procure that,
promptly after Completion, the Completion Certificate and the Completion
Balance Sheet are prepared and delivered to the Purchaser.
7.2 The Completion Balance Sheet shall be prepared in accordance with U.S.
generally accepted accounting principles on a consistent basis with the
Internal Balance Sheet.
7.3 The Seller shall arrange for a draft of the Completion Certificate and
the Completion Balance Sheet together with all working papers to be prepared
and delivered to the Purchaser within forty five (45) days of Completion.
7.4 The Purchaser shall notify the Seller within 15 days of receipt of
such draft Completion Certificate or Completion Balance Sheet , as the case
may be, whether or not it accepts it for the purposes of this Agreement
provided that the Purchaser shall not be entitled to object to such Completion
Certificate to the extent that the amounts set forth therein have already been
audited by the MTJA as evidenced by documentation reasonably satisfactory to
the Purchaser.
7.5 If the Purchaser notifies the Seller that it does not accept such
draft Completion Certificate or Completion Balance Sheet, as the case may be:
(a) it shall set out in detail its reasons for such non-acceptance and
specify the adjustments (and provide appropriate supporting evidence for each
such adjustment) which, in its opinion, should be made to the draft Completion
Certificate or the Completion Balance Sheet as the case may be, in order to
comply with the requirements of this Agreement; and
(b) the Parties shall use all reasonable endeavours to meet and discuss
the objections of the Purchaser and to reach agreement upon the adjustments
(if any) required to be made to the draft Completion Certificate or Completion
Balance Sheet as the case may be.
7.6 If (a) the Purchaser is satisfied with the draft Completion
Certificate and the Completion Balance Sheet (either as originally submitted
or after adjustments agreed between the Seller and the Purchaser), (b) the
amount in dispute does not exceed $1,000,000 or (c) if the Purchaser fails to
notify the Seller of its non-acceptance of the draft Completion Certificate or
the Completion Balance Sheet, as the case may be, within the 15 day period
referred to in Clause 7.4, then the draft Completion Certificate or the
Completion Balance Sheet, as the case may be, (incorporating any agreed
adjustments) shall constitute the Completion Certificate or the Completion
Balance Sheet, as the case may be, for the purposes of this Agreement.
7.7 If the Seller and the Purchaser do not reach agreement within 30 days
of the Purchaser's notice of non-acceptance under Clause 7.5 and the amount in
dispute equals or exceeds $1,000,000, then the matters in dispute shall be
referred, on the application of either party, for determination by an
independent firm of internationally recognised chartered accountants (the
EXPERT) to be agreed upon by the Seller and the Purchaser or, failing
agreement, to be selected by the accountants for each of the Seller and the
Purchaser. The following terms of reference shall apply:
(a) the Purchaser and the Seller shall each promptly prepare a written
statement on the matters in dispute which (together with the relevant
documents) shall be submitted to the Expert for determination;
(b) in giving such determination, the firm shall state what adjustments
(if any) are necessary to the draft Completion Certificate or the Completion
Balance Sheet, as the case may be, in order to comply with the requirements of
this Agreement;
(c) the Expert shall act as an expert (and not as an arbitrator) in making
any such determination which shall be final and binding on the Parties;
(d) the expenses of any such determination by the Expert shall be borne
equally between the Seller and the Purchaser.
7.8 If the Seller and the Purchaser reach (or pursuant to Clause 7.6 are
deemed to reach) agreement on the Completion Certificate or the Completion
Balance Sheet, as the case may be, is finally determined at any stage in the
procedures set out in this Clause 7:
(a) the Completion Certificate or the Completion Balance Sheet, as the
case may be, as so agreed or determined shall be the Completion Certificate or
the Completion Balance Sheet respectively, for the purposes of this Agreement
and shall be final and binding on the Parties; and
(b) the amount of the Preferred Stock Value shall be derived from the
Completion Certificate.
7.9 Each Party shall use all reasonable endeavours to ensure that each
Group Company provides the other Party with such access to the employees,
accounts, working papers and other financial information of the relevant Group
Company as is reasonably necessary for the purposes of this Clause 7. Each
Party shall similarly use all reasonable endeavours to ensure that the
Purchaser and the Seller each have such access to all relevant working and
other papers of the other as is reasonably necessary for and limited to the
purposes of this Clause 7.
SELLER'S WARRANTIES
8.1 Subject to Clause 8.4, the Seller warrants to the Purchaser that the
Warranties are true and correct in all material respects at the date of this
Agreement, except as set forth in the Disclosure Letter, and that there is no
fact known to the Seller that would reasonably be expected to have a Material
Adverse Effect that has not been set forth in this Agreement or the Disclosure
Letter.
8.2 The Purchaser acknowledges that it does not rely on and has not been
induced to enter into this Agreement on the basis of any warranties,
representations, covenants, undertakings, indemnities or other statements
whatsoever, other than those set forth in this Agreement, and acknowledges
that none of the Seller, the Company, either of the Subsidiaries or any of
their agents, officers or employees have given any such warranties,
representations, covenants, undertakings, indemnities or other statements.
The Seller waives any rights it may have against any Group Company in respect
of incorrect information received from them and passed onto the Purchaser for
the purpose of assisting the Seller to give a warranty or prepare the
Disclosure Letter.
8.3 The Purchaser acknowledges and affirms that it has had full access to
the Data Room and the information contained therein and that it has made its
own independent investigation, analysis and evaluation of the Company and its
assets and the value of the petroleum reserves, business, financial condition,
operation and prospects of the Group Companies from such information.
8.4 Subject to Clause 8.5 and to provisions of Schedule 5 with respect to
Warranty Claims, the Purchaser shall be entitled to claim both before and
after Completion that any of the Warranties has or had been breached and
Completion shall not in any way constitute a waiver of any of the Purchaser's
rights. Subject to the provisions of Schedule 5, the Seller shall indemnify,
defend and hold harmless the Purchaser, each of its affiliates and their
respective directors, officers, employees and agents (collectively referred to
as the "Purchaser" for purposes of this Clause 8 and Schedule 5) from and
against, and will pay to the Purchaser the amount of, any costs, losses,
liabilities, claims, damages, or expenses, whether or not involving a third
party claim, arising, directly or indirectly, from or in connection with a
breach of any of the Warranties.
8.5 After Completion, the sole remedy of the Purchaser for any breach of
any of the Warranties or any other breach of this Agreement by the Seller
shall be an action for damages and the Purchaser shall not be entitled to
rescind this Agreement.
8.6 Subject to the provisions of Schedule 5, with respect to Liabilities
Indemnities Claims and with effect from Completion, the Seller shall
indemnify, defend and hold harmless the Purchaser or any Group Company, as the
case may be, from and against, and will (subject to Clause 8.7) pay to the
Purchaser or Group Company, as the case may be:
(i) an amount equivalent to 100% of any cost, damage, loss or expense or,
to the extent that the same has given rise to an actual cost, damage, loss or
expense, any liability or claim (including interest and penalties) suffered or
incurred by the Purchaser, or
(ii) an amount equivalent to 100% of any cost, damage, loss or expense
(including interest) or, to the extent that the same has given rise to an
actual cost, damage, loss or expense, any liability or claim (including
interest and penalties) suffered or incurred by the Company or any other Group
Company,
in each case, in respect of or arising out of any liability
(whether actual or contingent and regardless of whether such liability
is disclosed in the Accounts, the Completion Balance Sheet, this
Agreement or the Disclosure Letter, and in particular, but without
limitation, as to Tax, whether or not listed in Part C of Schedule 4) of
the Company or any other Group Company:
(a) which arises exclusively as a result of, or attributable to, the
actions of any Group Company prior to Completion; and
(b) which is not specifically set forth or reflected in or reasonably
contemplated by the 1998 Work Programme and Budget;
(the LIABILITIES INDEMNITY).
8.7 If any amount payable under Clause 8.6 represents an amount payable in
respect of Petroleum Operations (as such term is defined in the PSC) which
would be, or deemed to be, recoverable under the PSC, such amount shall, to
the extent that the Purchaser has at such time not paid an amount to the
Company in respect of the same, be paid by the Seller to the Company.
PURCHASER'S WARRANTIES AND UNDERTAKING
9.1 The Purchaser warrants that:
(a) it has obtained all corporate authorisations and all other applicable
governmental, statutory, regulatory or other consents, licences,
authorisations, waivers or exemptions required to empower it to enter into and
perform its obligations under the Transaction Documents;
(b) this Agreement constitutes and the other documents executed by the
Purchaser which are to be delivered at Completion will, when executed,
constitute the valid and binding obligations of the Purchaser, enforceable
against the Purchaser in accordance with their respective terms except that
such enforceability (i) may be limited by bankruptcy, insolvency, moratorium
or other similar laws affecting or relating to the enforcement of creditors'
rights generally and (ii) is subject to general principles of equity;
(c) the execution and delivery of, and the performance by the Purchaser of
its obligations under the Transaction Documents will not:-
(i) result in a breach of any provision of the memorandum or articles
of association of the Purchaser; or
(ii) result in a breach of any order, judgment or decree of any court
or governmental agency to which the Purchaser is a party or by which the
Purchaser is bound except for any breach that would not materially prejudice
the Purchaser's ability to consummate the transactions contemplated by the
Transaction Documents.
9.2 The Seller shall be entitled to claim both before and after Completion
that any of the warranties contained in this Clause 9 has or had been breached
and (in accordance with Clause 12) Completion shall not in any way constitute
a waiver of any of the Seller's rights; provided, however, that after
Completion, the sole remedy of the Seller for any breach of any of the
warranties contained in this Clause 9 or any other breach of this Agreement by
the Purchaser shall be an action for damages and the Seller shall not be
entitled to rescind this Agreement.
SELLER GUARANTOR
10.1 In consideration of the Purchaser entering into this Agreement, the
Seller Guarantor (as principal obligor and not merely as a surety)
unconditionally and irrevocably guarantees as a continuing obligation the
proper performance by the Seller of all its obligations under or pursuant to
this Agreement.
10.2 The Seller Guarantor's liability hereunder shall not be discharged or
impaired by any amendment to or variation of this Agreement, any release of,
or granting of time or other indulgence to, the Seller or any third party, any
liquidation, administration, receivership or winding-up of the Seller or by
any other act or omission or any other events or circumstances whatsoever
(whether or not known to the Seller, the Purchaser or the Seller Guarantor)
which would or might (but for this Clause) operate to impair or discharge the
Seller Guarantor's liability under this guarantee.
PURCHASER GUARANTOR
11.1 In consideration of the Seller entering into this Agreement, the
Purchaser Guarantor (as principal obligor and not merely as a surety)
unconditionally and irrevocably guarantees as a continuing obligation the
proper performance by the Purchaser of all its obligations under or pursuant
to this Agreement.
11.2 The Purchaser Guarantor's liability hereunder shall not be discharged
or impaired by any amendment to or variation of this Agreement, any release
of, or granting of time or other indulgence to, the Purchaser or any third
party, any liquidation, administration, receivership or winding-up of the
Purchaser or by any other act or omission or any other events or circumstances
whatsoever (whether or not known to the Purchaser, the Seller or the
Purchaser's Guarantor) which would or might (but for this Clause) operate to
impair or discharge the Purchaser Guarantor's liability under this guarantee.
WAIVERS
12. No failure or delay by any Party in exercising any right or remedy
provided by law under or pursuant to this Agreement shall impair such right or
remedy or operate or be construed as a waiver or variation of it or preclude
its exercise at any subsequent time and no single or partial exercise of any
such right or remedy shall preclude any other or further exercise of it or the
exercise of any other right or remedy.
ASSIGNMENT
13.1 Subject to Clause 13.2, neither this Agreement, nor any interest in
it, including the benefit of the Warranties, shall be assignable by the
Purchaser in whole or in part at any time to any third party and the Purchaser
undertakes that it will not assign the whole or any part of any interest in
this Agreement at any time to any person.
13.2 The Purchaser may assign the whole or any part of its interest under
this Agreement to a subsidiary or affiliate of the Purchaser provided that:
(a) the Seller's liability under this Agreement shall not be increased as
a result of such assignment; and
(b) any such assignment shall provide that, immediately prior to such
company ceasing to be a subsidiary or affiliate of the Purchaser, such company
shall re-assign such assigned benefit to the Purchaser provided that this
shall not in any way limit the right to transfer the Shares in accordance with
the provisions of the Shareholders Agreement.
FURTHER ASSURANCE
14.1 Each of the Parties agrees to use all commercially reasonable efforts
to perform (or procure the performance of) all further acts and things, and
execute and deliver (or procure the execution and delivery) of all such
further documents, as may be required by law or as may be necessary or
desirable to give effect to this Agreement and the transactions contemplated
by it.
14.2 The Parties agree to procure that, save for any Intra-Group
Indebtedness which is or will be repaid by the issue of Class A Preferred
Stock in accordance with the terms of the Shareholders Agreement, all
Intra-Group Indebtedness shall be cancelled as soon as is reasonably
practicable following Completion.
ENTIRE AGREEMENT
15.1 This Agreement and the Disclosure Letter set out the entire agreement
and understanding between the Parties in respect of the sale and purchase of
the Shares save for the Shareholders Agreement, the Incentive Payments
Agreement and the Tax Partnership Agreement. The Confidentiality Agreement,
so far as the same relates to confidential information furnished to the
Purchaser or the Purchaser Guarantor concerning the Group Companies or any of
the matters referred to in or contemplated by this Agreement shall be
terminated as of Completion and the confidentiality undertakings of each Party
to the other in relation to such matters as from Completion shall be as set
forth in the Shareholders Agreement provided that paragraphs 11 and 12 of the
Confidentiality Agreement shall continue and remain in effect for the periods
set out therein.
15.2 It is agreed that:
(a) neither Party has entered into this Agreement in reliance upon any
representation, warranty or undertaking of the other party which is not
expressly set out or referred to in this Agreement;
(b) a party may claim in contract for breach of Warranty under this
Agreement but shall have no other claim or remedy under this Agreement in
respect of a misrepresentation (whether negligent or otherwise and whether
made prior to and/or in this Agreement) or untrue statement made by the other
party; and
(c) this Clause 15 shall not exclude any liability for fraudulent
misrepresentation.
ANNOUNCEMENTS
16.1 Except as required by law or by any stock exchange or governmental or
other regulatory or supervisory body or authority of competent jurisdiction to
whose rules the Party making the announcement or disclosure is subject,
whether or not having the force of law, no announcement or disclosure in
connection with the existence or subject matter of this Agreement shall be
made or issued by or on behalf of either Party without the prior written
consent of the other, such consent not to be unreasonably withheld or delayed
provided that the Seller Guarantor may disclose the existence and subject
matter of this Agreement to a bank or other financial institution to the
extent appropriate to a Party arranging for funding for its operations and
commitments.
16.2 Where any announcement or disclosure is made in reliance on the
exception in Clause 16.1, the Party making the announcement or disclosure will
use its reasonable endeavours to consult with the other Party at least twenty
four (24) hours in advance as to the form, content and timing of the
announcement or disclosure.
COSTS AND EXPENSES
17.1 Subject to Clause 17.2, each signatory hereto shall pay its own legal
and accountancy costs, charges and other expenses (including taxation)
incurred in connection with the negotiation, preparation and completion of
this Agreement.
17.2 Each signatory hereto shall bear its own stamp or other documentary
or transaction duties and any other transfer taxes arising as a result or in
consequence of this Agreement or of its implementation.
COUNTERPARTS AND AMENDMENTS
18.1 This Agreement may be executed in any number of counterparts and by
the parties to it on separate counterparts, each of which is an original but
all of which together constitute one and the same instrument.
18.2 Any amendments or modifications to this Agreement must be in writing
and signed by all the signatories hereto.
SEVERABILITY
19. If any provision of this Agreement is held to be invalid or
unenforceable, then such provision shall (so far as invalid or unenforceable)
be given no effect and shall be deemed not to be included in this Agreement
but without invalidating any of the remaining provisions of this Agreement.
The Parties shall then use all reasonable endeavours to replace the invalid or
unenforceable provisions by a valid and enforceable substitute provision the
effect of which is as close as possible to the intended effect of the invalid
or unenforceable provision.
XXXX
00. Notwithstanding any other provisions of this Agreement (or any other
agreement which, together with this Agreement, may form part of an agreement
for the purposes of the Restrictive Trade Practices Act 1976 (the RTPA))
(together the RTPA AGREEMENT), each Party and each of the Seller Guarantor and
the Purchaser Guarantor declares that it will not give effect, and will
procure that none of its subsidiaries shall give effect, to any restriction or
restrictions contained in the RTPA Agreement which cause the RTPA Agreement to
be registrable under the Act until one day after the particulars of the RTPA
Agreement shall have been provided to the Director General of Fair Trading.
The parties shall use their best endeavours to procure the furnishing of such
particulars as soon as possible after the signing of this Agreement and in any
event within the period required by the Act.
NOTICES
21.1 Subject to Clause 25, any notice or other communication to be given
under this Agreement shall be in writing and signed by or on behalf of the
Party giving it and may be served by leaving it at, or sending it (by fax,
prepaid recorded delivery or registered post) to, the address and for the
attention of the relevant person set out in Clause 21.2 (or as otherwise
notified from time to time hereunder). Any notice so served by fax, recorded
delivery or registered post shall be deemed to have been received:
(a) in the case of fax, twelve (12) hours after the time of despatch;
(b) in the case of recorded delivery or registered post, forty eight (48)
hours from the date of posting.
21.2 The addresses of the Parties for the purpose of Clause 21.1 are as
follows:
SELLER: Triton Asia Holdings, Inc.
Address: c/o Triton Exploration Services, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
XXX
For the attention of: Xxxxxx X. Xxxxxxx, III
Fax: + 1 214 691 0198
PURCHASER: ARCO JDA Limited
Address: #3 Magna Carta Court
P.O. Box, N-4805
Xxxxxxx Street, Nassau
Bahamas
with a copy to: Atlantic Richfield Company
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
For the attention of: Xxxxxx X. Xxxxxx
Senior Vice President
Fax: 000-000-0000
SELLER GUARANTOR: Triton Energy Limited
Address: c/o Triton Exploration Services, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
XXX
For the attention of: Xxxxxx X. Xxxxxxx, III
Fax: + 1 214 691 0198
PURCHASER GUARANTOR: Atlantic Richfield Company
Address: 000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
For the attention of: Xxxxxx X. Xxxxxx
Senior Vice President
Fax: 000-000-0000
21.3 In proving such service it shall be sufficient to prove that the
envelope containing such notice was properly addressed and delivered either to
the address shown thereon or into the custody of the postal authorities as a
pre-paid recorded delivery or registered post letter, or that the facsimile
transmission was made after receipt of evidence of successful transmission.
GOVERNING LAW
22. This Agreement and the relationship between the Parties shall be
governed by, and interpreted in accordance with, English law excluding rules
governing conflicts of laws which would apply the laws of another
jurisdiction.
JURISDICTION
23. Both Parties agree that the Courts of England are to have exclusive
jurisdiction to settle any dispute (including claims for set-off and
counterclaim) which may arise in connection with the creation, validity,
effect, interpretation or performance of, or the legal relationships
established by this Agreement or otherwise arising in connection with this
Agreement and for such purposes irrevocably submit to the jurisdiction of the
English Courts.
SERVICE OF PROCESS
24. Both Parties irrevocably consent to service of process or any other
documents in connection with proceedings in any court by facsimile
transmission, personal service, delivery at any address specified in this
Agreement or any other usual address, mail or in any other manner permitted by
English law, the law of the place of service or the law of the jurisdiction
where proceedings are instituted.
AGENT FOR SERVICE OF PROCESS
25.1 The Purchaser shall at all times maintain an agent for service of
process and any other documents in proceedings in England or any other
proceedings in connection with this Agreement and the Transaction Documents.
Such agent shall be ARCO British Limited currently of London Square, Cross
Lanes (off London Road), Guildford, Surrey and any writ, judgment or other
notice of legal process shall be sufficiently served on the Purchaser if
delivered to such agent at its address for the time being. The Purchaser
irrevocably undertakes not to revoke the authority of the above agent and if,
for any reason, the Seller requests the Purchaser to do so he shall promptly
appoint another such agent with an address in England and advise the Seller.
If, following such a request, the Purchaser fails to appoint another agent,
the Seller shall be entitled to appoint one on behalf of Purchaser at the
expense of the Purchaser.
25.2 The Seller shall at all times maintain an agent for service of
process and any other documents in proceedings in England or any other
proceedings in connection with this Agreement and the Transaction Documents.
Such agent shall be Triton Resources (UK) Ltd., currently of Xxxxxxxxxx Xxxxx,
000 Xxx Xxxxxx, Xxxxxx and any writ, judgment or other notice of legal process
shall be sufficiently served on the Seller if delivered to such agent at its
address for the time being. The Seller irrevocably undertakes not to revoke
the authority of the above agent and if, for any reason, the Purchaser
requests the Seller to do so he shall promptly appoint another such agent with
an address in England and advise the Purchaser. If, following such a request,
the Seller fails to appoint another agent, the Purchaser shall be entitled to
appoint one on behalf of Seller at the expense of the Seller.
IN WITNESS this Agreement has been signed on behalf of the Parties the day and
year first above written.
SCHEDULE 1
1.1 In this Agreement, the following expressions shall have the following
meanings:
ACCOUNTS means the pro-forma consolidated balance sheet of the Company and
Subsidiaries as at the Accounts Date and the related consolidated statements
of operations for the year ending the Accounts Date, all derived from the
accounting records of the Seller Guarantor, together with any notes, reports,
statements or documents included in or annexed to them;
ACCOUNTS DATE means 31 December 1997;
BUSINESS DAY means a day (other than a Saturday or a Sunday) on which banks
are open for business in London and in Dallas, Texas;
CLAIM means any claim for a breach of the Warranties;
CLAIM LIMITATION PERIOD has the meaning in paragraph 2 of Schedule 5;
COMPANY means Triton International Oil Corporation, basic information
concerning which is set out in Part A of Schedule 2;
COMPLETION means completion of the sale and purchase of the Shares under this
Agreement;
COMPLETION BALANCE SHEET means the balance sheet prepared in accordance with
Clause 7 to be used by the Purchaser and the Purchaser Guarantor in the
preparation of their respective books, records and financial statements;
COMPLETION CERTIFICATE means the certificate showing the Preferred Stock Value
as at Completion, to be prepared in accordance with Clause 7;
COMPLETION DATE means ten (10) Business Days from the date hereof, provided
that if the Conditions shall not have been satisfied, waived or deferred on or
before such date, COMPLETION DATE shall mean three Business Days after the day
on which the Condition shall have been satisfied, waived or deferred or such
other date as the Parties may agree but in any event, no later than forty five
(45) days after the date hereof;
COMPLETION PAYMENT means $150,000,000;
CONDITIONS means the conditions referred to in Clause 3;
CONFIDENTIALITY AGREEMENT means the confidentiality agreement between Triton
Energy Limited and the Purchaser Guarantor dated 8 April 1998;
CTOC means Carigali Triton Operating Company, being the Operator under the
Production Sharing Contract;
DATA ROOM means the room located at the offices of CIBC Wood Gundy plc, 00
Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX, to which the Purchaser has had access;
DISCLOSURE LETTER means the letter in the agreed form from the Seller to the
Purchaser executed and delivered immediately before the execution of this
Agreement;
GROUP COMPANY means the Company and the Subsidiaries as applicable and
GROUP COMPANIES shall be interpreted accordingly;
INCENTIVE PAYMENTS AGREEMENT means the agreement in the agreed terms between
the Seller and the Purchaser in respect of the incentive payments to be made
to the Seller, in substantially the form attached to this Agreement;
INTERNAL BALANCE SHEET means the pro-forma consolidated balance sheet of the
Company and the Subsidiaries as at 31 December 1997 as set out in Schedule 7;
INTRA-GROUP GUARANTEES means all guarantees, indemnities, counter-indemnities
and letters of comfort of any nature whatsoever:
(a) given to any third party by any Group Company in respect of a
liability of any member of the Retained Group; and/or (as the context may
require)
(b) given to any third party by any member of the Retained Group in
respect of a liability of any Group Company;
INTRA-GROUP INDEBTEDNESS means all debts outstanding between any Group Company
and members of the Retained Group;
LIABILITY AMOUNT means the amount equal to the aggregate of $150,000,000 and
the total of all incentive payments made pursuant to the Incentive Payments
Agreement to the extent that such payments have actually been paid by the
Purchaser to the Seller at the time that any determinations regarding
thresholds or aggregate amounts with respect to the Seller's indemnity
liability to the Purchaser are made pursuant to Schedule 5 of this Agreement;
LIABILITIES INDEMNITY shall have the meaning ascribed to it in Clause 8.6;
LIABILITIES INDEMNITY CLAIM means any claim brought by the Purchaser pursuant
to the Liabilities Indemnity;
MTJA means the Malaysia-Thailand Joint Authority which is the joint authority
established by the Kingdom of Thailand and Malaysia pursuant to the Memorandum
of Understanding and the Agreement between the Government of the Kingdom of
Thailand and the Government of Malaysia on the Constitution and Other Matters
relating to the Establishment of the Malaysia-Thailand Joint Authority dated
30 May 1990;
MALAYSIA-THAILAND JOINT DEVELOPMENT AREA means that area defined in the
Memorandum of Understanding;
MATERIAL ADVERSE EFFECT means (i) a material adverse effect on the financial
condition, results of operations, properties or assets of the Group Companies
taken as a whole, or (ii) a change, effect, event, occurrence or state of
facts that would prevent or materially delay the consummation of the
transactions contemplated by this Agreement, excluding any such material
adverse effect described in Clause (i) or any such event described in Clause
(ii) to the extent that the same is the result of (i) changes in the status of
negotiations relating to the gas sales agreement referred to in Clause 5.2(a);
(ii) adverse changes in general economic conditions; or (iii) adverse changes
affecting the worldwide energy industry generally or the region in which the
Group Companies and their subsidiaries operate;
MEMORANDUM OF UNDERSTANDING means the Memorandum of Understanding between the
Kingdom of Thailand and Malaysia on the Establishment of a Joint Authority for
the Exploitation of the Resources of the Sea-Bed in a Defined Area of the
Continental Shelf of the two countries in the Gulf of Thailand dated 21
February 1979;
OIL AND GAS CONTRACTS means the Production Sharing Contract and the Operating
Agreements;
OPERATING AGREEMENTS means the contracts in relation to the exploration for
and exploitation of petroleum resources in specified areas in the
Malaysia-Thailand Joint Development Area as set out in Part B of Schedule 6;
OPERATOR means the operator under an Operating Agreement;
PARTIES means the Purchaser and the Seller, and PARTY means either the
Purchaser or the Seller.
PETROLEUM OPERATIONS shall have the meaning ascribed to it in the Production
Sharing Contract;
PETRONAS means Petronas Carigali (JDA) Sendirian Berhad, a corporation
organised and existing under the laws of Malaysia and having its registered
office at 000, Xxxxx Xxxx, 00000 Xxxxx Xxxxxx, Xxxxxxxx;
PREFERRED STOCK VALUE means the amount of historical unrecovered costs
expended on behalf of the Group Companies on Petroleum Operations (as defined
in the Production Sharing Contract) up to the date of Completion;
PRODUCTION SHARING CONTRACT means the contract relating to exploration and
exploitation of petroleum for Malaysia-Thailand Joint Development Area Block
A-18 as set out, with ancillary documents, in Part A of Schedule 6;
PSC means a Production Sharing Contract relating to Block A-18 dated 21 April
1994, as amended from time to time;
PURCHASE PRICE means the total purchase price set out in Clause 4.1;
RETAINED GROUP means the Seller, its parent company and their respective
subsidiaries (but excluding any Group Company);
SELLER'S GUARANTEES means any guarantees, indemnities or other contingent
obligations given or undertaken by the Seller, its parent company or their
subsidiaries in relation to or arising out of any obligations or liabilities
of any Group Company;
SENIOR MANAGEMENT means the Chairman of the Board and Senior Vice Presidents
of the Seller;
SHAREHOLDERS AGREEMENT means the Shareholders Agreement referred to in Section
2 of Schedule 3, in substantially the form attached to this Agreement;
SHARES means fifty percent (50%) of the issued and outstanding shares of
common stock, par value $1.00 per share, of the Company to be sold to the
Purchaser;
SUBSIDIARIES means TOCT (JDA) and TOCT (Texas);
TAX or TAXATION means and includes any and all forms of taxation, withholding,
duty, levy or impost imposed by any governmental authority, whether the United
States, Malaysia, Thailand or elsewhere; and all penalties, charges, costs and
interest relating thereto;
TAX PARTNERSHIP AGREEMENT means the agreement to be entered into at Completion
by the Purchaser and the Group Companies;
TAX WARRANTIES means the Seller's Warranties set out in Part C of Schedule 4
(Warranties);
TOCT (JDA) means Triton Oil Company of Thailand (JDA) Limited, a company
incorporated under the laws of the Cayman Islands, basic information
concerning which is set out in Part B of Schedule 2;
TOCT (TEXAS) means Triton Oil Company of Thailand, a company incorporated
under the laws of Texas, basic information concerning which is set out in Part
B of Schedule 2;
TRANSACTION DOCUMENTS means this Agreement, the Shareholders Agreement, the
Incentive Payments Agreement, the Tax Partnership Agreement and the Disclosure
Letter;
WARRANTIES means the warranties set out in Schedule 4 (Warranties) given by
the Seller and WARRANTY shall be construed accordingly; and
1998 WORK PROGRAMME AND BUDGET means the work programme and budget agreed as
at the date of this Agreement under the Production Sharing Contract, a copy of
which is attached to the Disclosure Letter.
1.2 In this Agreement:
(a) the HEADINGS are inserted for convenience only and shall not affect
the construction of this Agreement;
(b) references TO THE BEST KNOWLEDGE OF THE SELLER or SO FAR AS THE SELLER
IS AWARE or any similar expression are references to the actual knowledge or
awareness, as the case may be, of Senior Management;
(c) any reference to a document IN THE AGREED FORM is to the form of the
relevant document agreed between the parties and initialled for the purpose of
identification.
SCHEDULE 2
PART A: BASIC INFORMATION ABOUT THE COMPANY
1. NAME: Triton International Oil Corporation
2. PLACE OF INCORPORATION: Cayman Islands
3. REGISTERED NUMBER: 65713
4. REGISTERED OFFICE: Caledonian Bank & Trust Limited,
Ground Floor, Caledonian House,
Xxxx Street, PO Box 1043, Xxxxxx
Town, Grand Cayman, Cayman Islands
5. DIRECTORS: Xxxxxx X. Xxxxx,
Xxxxxx X. Xxxxxxx, III,
Xxxxx Xxxx
6. SECRETARY: Xxxxxx X. Xxxxxxx, III
7. AUTHORISED CAPITAL: US$50,000 divided into 50,000
Ordinary Shares of par value of
US$1.00 each
8. ISSUED CAPITAL: 1,000 Ordinary Shares
9. REGISTERED SHAREHOLDERS: Triton Energy Limited to be
transferred to Triton Asia Holdings,
Inc. prior to Completion
10.ACCOUNTING REFERENCE DATE: 31 December
00.XXX RESIDENCE: Cayman Islands
PART B: BASIC INFORMATION ABOUT THE SUBSIDIARIES
TRITON OIL COMPANY OF THAILAND (JDA) LIMITED
1. NAME: Triton Oil Company of Thailand
(JDA) Limited
2. PLACE OF INCORPORATION: Cayman Islands
3. REGISTERED NUMBER: 58407
4. REGISTERED OFFICE: Caledonian Bank & Trust Limited,
Ground Floor, Caledonian House,
Xxxx Street, PO Box 1043, Xxxxxx
Town, Grand Cayman, Cayman
Islands
5. DIRECTORS: Xxxxxx X. Xxxxx,
Xxxxxx X. Xxxxxxx III,
Xxxxx Xxxx
6. SECRETARY: Xxxxxx X. Xxxxxxx III
7. AUTHORISED CAPITAL: US$50,000 divided into 50,000 shares
of par value US$1.00 each
8. ISSUED CAPITAL: 1,000 ordinary shares
9. REGISTERED SHAREHOLDERS: Triton International Oil Corporation
(Cayman Islands)
10.FISCAL YEAR END 31 December
00.XXX RESIDENCE: Cayman Islands
TRITON OIL COMPANY OF THAILAND
1. NAME: Triton Oil Company of Thailand
2. PLACE OF INCORPORATION: Texas, United States of America
3. REGISTERED NUMBER: 298892
4. REGISTERED OFFICE: 0000 Xxxxx Xxxxxxx Xxxxxxxxxx,
#0000, Xxxxxx, Xxxxx 00000
5. DIRECTORS: Xxxxxx X. Xxxxx,
Xxxxxx X. Xxxxxxx III,
Xxxxx Xxxx
6. SECRETARY: Xxxxxx X. Xxxxxxx III
7. AUTHORISED CAPITAL: 1,000 shares of $1.00 par value each
8. ISSUED CAPITAL: 1,000 shares
9. REGISTERED SHAREHOLDERS: Triton International Oil Corporation
(Delaware)
10.FISCAL YEAR END 31 December
00.XXX RESIDENCE: USA
SCHEDULE 3
COMPLETION ARRANGEMENTS
Referred to in Clause 6 (Completion)
At Completion:-
1. the Seller shall deliver to the Purchaser certificates representing the
Shares duly endorsed and in proper form for transfer by delivery under
applicable law, or accompanied by duly executed instruments of transfer in
blank, for transfer in the name of the Purchaser or such person as the
Purchaser may nominate;
2. the Parties shall execute in substantially the form attached a
Shareholders Agreement;
3. the Seller shall cause the relevant Group Company to convene a board
meeting of such Group Company at which the directors or managers, as
applicable, designated by the Purchaser are appointed;
4. the Seller shall convene a general meeting of stockholders of the
Company at which a new memorandum and articles of association (in a form
mutually acceptable to the Parties) will be adopted and the share capital
structure as contemplated by the Shareholders Agreement will be approved and
created in such form and manner as is mutually acceptable to the Parties;
5. the Seller and the Purchaser shall enter into the Incentive Payments
Agreement;
6. the Purchaser and the Group Companies shall execute the Tax Partnership
Agreement in a form which is mutually acceptable to the Parties;
7. the Purchaser shall pay the Completion Payment to an account to be
specified by the Seller by way of wire transfer of immediately available
funds.
SCHEDULE 4
THE WARRANTIES
PART A: GENERAL
DISCLOSURE
DISCLOSURE LETTER
1.1 Except as set out in the Disclosure Letter, the Seller represents and
warrants that the following are true and correct in all material respects.
THE SELLER
CAPACITY OF THE SELLER
2.1(a) The Seller is a corporation duly incorporated, is validly existing
and in good standing under the laws of its jurisdiction of organisation and is
duly qualified to transact business in each jurisdiction where a failure to be
so qualified could reasonably be expected to have a Material Adverse Effect.
(b) The Seller has obtained all corporate authorisations and all other
applicable governmental, statutory, regulatory or other consents, licences,
authorisations, waivers or exemptions required to empower it to enter into and
perform its obligations under this Agreement except for any authorisation,
consent, license, waiver or exemption that, if not obtained, would not have a
Material Adverse Effect or materially prejudice the Seller's ability to
consummate the transactions contemplated by the Transaction Documents.
2.2 This Agreement and the other documents executed by the Seller which
are to be delivered at Completion will, when executed, constitute valid and
binding obligations of the Seller in accordance with their respective terms
except that such enforceability (i) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to the enforcement of
creditors' rights generally and (ii) is subject to general principles of
equity.
2.3 The execution and delivery of, and the performance by the Seller of
its obligations under the Transaction Documents, and the consummation of the
transactions contemplated by the Transaction Documents will not:-
(a) result in a breach of any provision of the memorandum or articles of
association of the Seller or any of the Group Companies; or
(b) result in a breach of any order, judgment or decree of any court or
governmental agency, or any breach or violation of, or default under, any
contract, agreement, indenture, instrument or other document to which the
Seller or any Group Company is a party or by which the Seller or any Group
Company or any of their respective assets is bound, except for any breach,
violation or default that would not have a Material Adverse Effect or
materially prejudice the Seller's ability to consummate the transactions
contemplated by the Transaction Documents.
CORPORATE
THE COMPANY AND THE SHARES
3.1(a) All of the Shares are fully-paid or properly credited as fully-paid
and the Seller is the sole legal and beneficial owner of them free from all
security interests, options, equities, claims or other third party rights,
charges or encumbrances (including rights of pre-emption) of any nature
whatsoever and the Seller has not entered into any agreement (other than the
sale of the Shares to the Purchaser pursuant to the terms of this Agreement)
to sell or otherwise dispose of the Shares or issue further Shares (or other
forms of security) in the capital of the Company.
(b) In addition to the Shares, the Seller is the sole legal and beneficial
owner of all of the remaining share capital of the Company free from all
security interests, options, equities, claims or other third party rights,
charges or encumbrances (including, without limitation, rights of pre-emption)
of any nature whatsoever, and the Seller has not encumbered or agreed to sell,
issue or transfer any of the shares of capital stock of the Company (other
than the sale of the Shares to the Purchaser pursuant to the provisions of
this Agreement).
(c) The information in respect of the Company set out in Part A of
Schedule 2 is true and accurate.
(d) The Company has not encumbered, redeemed, allotted, created, repaid or
agreed to sell, issue or transfer any of the shares of its own capital stock.
(e) The Company has not in the past owned or had an interest, and does not
currently own or have an interest, of any nature whatsoever, in any equity
securities or other securities of any other entity or party (other than the
Subsidiaries), or in any contracts to acquire the same. The Company has not
in the past had and does not currently have any direct or indirect equity or
ownership interest in any other business or assets (other than the share
capital of the Subsidiaries).
(f) The Seller warrants that as of the date of this Agreement:
(i) neither the Company, nor any officer, employee, agent or
representative of the Company, has maintained or is currently maintaining a
register in respect of the Shares within the United Kingdom; and
(ii) the Shares are not paired with any shares issued by a body
corporate incorporated in the United Kingdom.
(g) The Company is a corporation duly incorporated, is validly existing
and in good standing under the laws of its jurisdiction of organisation and is
duly qualified to transact business in each jurisdiction where a failure to be
so qualified could reasonably be expected to have a Material Adverse Effect.
THE SUBSIDIARIES
3.2(a) The Company and/or Triton International Oil Corporation (Delaware)
is the sole legal and beneficial owner of the whole of the issued share
capital of the Subsidiaries free from all security interests, options,
equities, claims or other third party rights, charges or encumbrances
(including, without limitation, rights of pre-emption) of any nature
whatsoever and neither the Seller, the Company or Triton International Oil
Corporation (Delaware) have entered into any agreement to sell or otherwise
dispose of any of the share capital of the Subsidiaries or issue further
shares (or other forms of security) in the capital of the Subsidiaries.
(b) The information in respect of the Subsidiaries set out in Part B of
Schedule 2 is true and accurate.
(c) The Subsidiaries have not encumbered, redeemed, allotted, created,
repaid or agreed to sell, issue or transfer any of the shares of their own
capital stock.
(d) The Subsidiaries have not in the past owned or had an interest, and do
not currently own or have an interest of any nature whatsoever in any equity
securities or other securities of any other entity or party, except for the 9%
Preference Shares of TOCT (JDA) or in any contracts to acquire the same. The
Subsidiaries have not in the past had and do not currently have any direct or
indirect equity or ownership interests in any business or assets other than
their interests in the oil and gas contracts.
(e) Each Subsidiary is a corporation duly incorporated, is validly
existing and in good standing under the laws of its jurisdiction of
organisation and is duly qualified to transact business in each jurisdiction
where a failure to be so qualified could reasonably be expected to have a
Material Adverse Effect.
OTHER INTERESTS
3.3 No Group Company owns or has any interest of any nature whatsoever in
any shares, debentures or other securities issued by any undertaking other
than the Subsidiaries.
FINANCIAL MATTERS
ACCOUNTS
4.1 The Accounts of the Company fairly present the consolidated financial
position of the Company and the Subsidiaries as of the Accounts Date and the
consolidated results of operations for the period then ended, as at the
Accounts Date and of their results for the financial year ended on the
Accounts Date.
4.2 Subject to the absence of footnotes and a cash flow statement and
except with respect to the treatment of capitalised interest, the Accounts
were prepared in accordance with U.S. generally accepted accounting principles
applied on a consistent basis during the periods indicated.
POSITION SINCE ACCOUNTS DATE
4.3 Since the Accounts Date:
(i) the business of each Group Company has been carried on in the ordinary
and usual course of business, consistent with the past practice of such Group
Company;
(ii) no dividend or other distribution has been declared, paid or made by
any Group Company;
(iii) no capital stock or loan capital has been allotted or issued or
agreed to be allotted or issued by any Group Company;
(iv) no contract, liability or commitment (whether in respect of capital
expenditure or otherwise) has been entered into by any Group Company involving
a liability for expenditure in excess of $1,000,000;
(v) no Group Company has (whether in the ordinary and usual course of
business or otherwise) acquired or disposed of, or agreed to acquire or
dispose of, any business or any asset having a value in excess of $1,000,000;
(vi) except as contemplated by this Agreement with respect to Intra-Group
Indebtedness, no debtor has been released by any Group Company on terms that
it pays less than the book value of its debt and no debt owing to any Group
Company has been deferred, subordinated or written off or has proved to any
extent irrecoverable;
(vii) no change has been made in terms of employment, including pension
fund commitments, by any Group Company (other than those required by law)
which would increase the total staff costs of the Group Companies by more than
$500,000 per annum;
(viii) no Group Company has incurred any liability (contingent or
otherwise) which has or is reasonably likely to have a Material Adverse Effect
other than as disclosed in or contemplated by the 1998 Work Programme and
Budget.
ACCOUNTING AND OTHER RECORDS
4.4 The statutory books, books of account and other records of each Group
Company have been maintained in all material respects in accordance with all
applicable laws and United States generally accepted accounting practices on a
proper and consistent basis.
DEBT POSITION
DEBTS OWED TO THE GROUP COMPANIES
5.1 There are no debts owing to any Group Company other than:
(i) the Intra-Group Indebtedness reflected in the Internal Balance Sheet
as increased in the ordinary course of business to the date hereof;
(ii) other trade debts incurred in the ordinary and usual course of
business, not exceeding, in the aggregate, $1,000,000.
DEBTS OWED BY THE GROUP COMPANIES
5.2(a) No Group Company has outstanding any material borrowing or
indebtedness in the nature of borrowing (including, without limitation, any
indebtedness for moneys borrowed or raised under any acceptance credit, bond,
note, xxxx of exchange or commercial paper, finance lease, hire purchase
agreement, forward sale or purchase agreement or conditional sale agreement or
other transaction having the commercial effect of a borrowing) other than:
(i) the Intra-Group Indebtedness reflected in the Internal Balance
Sheet; and
(ii) moneys borrowed from third parties reflected in the Internal
Balance Sheet and which are listed in the Disclosure Letter.
(b) There is not existing any event of default or any other event or
circumstance which would entitle any person to call for early repayment under
any agreement relating to any borrowing or indebtedness of any Group Company
or to enforce any security given by any Group Company (or, in either case, any
event or circumstance which with the giving of notice and/or the lapse of time
and/or a relevant determination would constitute such an event or
circumstance).
INTRA-GROUP GUARANTEES
5.3 There are no Intra-Group Guarantees currently in force.
REGULATORY MATTERS
LICENCES
6.1 Each Group Company has obtained and has in effect all licences,
permissions, authorisations and consents required for carrying on its business
effectively in the places and in the manner in which such business is now
carried on except for any such licence, permission, authorisation and consent
that, if not obtained or not in effect would not have a Material Adverse
Effect.
COMPLIANCE WITH LAWS
7.1(a) Each Group Company has conducted its business and corporate affairs
in accordance with its Memorandum and Articles of Association.
(b) No Group Company is in violation of any applicable law, ordinance,
rule, regulation, order, decree or judgment of any applicable judicial,
legislative, executive, administrative or regulatory body or any court,
arbitration, board or tribunal where any such violation, individually or in
the aggregate, would have a Material Adverse Effect. Each Group Company is in
compliance with the provisions of the Foreign Corrupt Practices Act and has
not taken any action in furtherance of the Arab League's boycott of Israel, or
in any other boycott of Israel, or in any other boycott and has fully complied
with all reporting requirements to the appropriate governmental authorities
with respect to any request to participate in the Arab League's boycott of
Israel, or such other boycott as the case may be, if any such requests have
been received.
LITIGATION AND INVESTIGATIONS
LITIGATION
8.1 Except as disclosed in the Annual Report on Form 10-K for the year
ended December 31, 1997 of Triton Energy Limited, no Group Company is a
defendant in or otherwise a party to any litigation, arbitration or
administrative proceedings which are in progress and there are no judgments,
decrees, orders or arbitral awards outstanding against any Group Company nor,
so far as the Seller is aware, are there any litigation, arbitration or
administrative proceedings threatened or pending by or against any Group
Company or any of its assets which have had or would be reasonably expected
have a Material Adverse Effect.
DIRECTORS AND EMPLOYEES
EMPLOYEES
9.1(a) Since the Accounts Date, no Group Company has entered into any
agreement imposing an obligation on the Group Company to increase the basis
and/or rates of remuneration and/or the provision of other benefits in kind to
or on behalf of any of its directors or employees at any future date, other
than in the customary and ordinary course of business.
(b) Each Group Company has made all filings and taken all action required
to be made or taken under applicable social security, labour and welfare laws
and regulations where the failure to make any such filing or take such action
would have a Material Adverse Effect. All social security and welfare charges
due under such laws and regulations have been fully paid or adequately
reserved for in the Accounts.
AGREEMENTS
9.2 There is not in existence any written or unwritten contracts of
employment with a director or an employee of any Group Company (or any
contract for services with any person) which either (i) cannot be terminated
by twelve (12) months' notice or less without giving rise to a claim for
damages or compensation that would exceed US$1,000,000 or (ii) in the
aggregate would result in an obligation in excess of US$1,000,000.
COMPLIANCE
9.3 Each Group Company has in relation to each of its employees (and so
far as relevant to each of its former employees) complied in all material
respects with all statutes, regulations, codes of conduct, collective
agreements, terms and conditions of employment or service, orders and awards
relevant to their conditions of service or to the relations between it and its
employees (or former employees, as the case may be) or any recognised trade
union where the failure to have so complied would have a Material Adverse
Effect.
DISPUTES
9.4 No dispute is pending, and to the best knowledge of the Seller no
dispute is threatened, between any Group Company and a material number or
category of its employees (or any trade union or other body representing all
or any of such employees) which would reasonably be expected to have a
Material Adverse Effect.
INCENTIVE SCHEMES
9.5 No Group Company has in existence any share incentive scheme, share
option scheme or profit sharing, bonus, commission or other incentive scheme
for all or any of its directors or employees.
PAYMENTS ON TERMINATION
9.6 Except to the extent (if any) to which provision or allowance has been
made in the Accounts of each Group Company:
(a) there is no existing material liability of any Group Company for
breach of any contract of employment or for services or redundancy payments,
protective awards, compensation for wrongful dismissal or unfair dismissal or
for failure to comply with any order for the reinstatement or re-engagement of
any employee or for any other material liability accruing from the termination
of any contract of employment or for services; and
(b) there is no existing material liability of any Group Company for any
payment in connection with the actual or proposed termination or suspension of
employment, or variation of any contract of employment, of any present or
former director or employee of any Group Company.
INSOLVENCY ETC.
10.1 No order has been made, petition presented, resolution passed or
meeting convened for the purpose of considering a resolution for the winding
up (or other process whereby the business is terminated and the assets of the
company concerned are distributed amongst the creditors and/or shareholders or
other contributories) of any Group Company and there are no cases or
proceedings under any applicable insolvency, reorganisation or similar laws in
any jurisdiction concerning any Group Company.
10.2 No petition has been presented or other proceedings commenced for an
administration order to be made (or any other order to be made by which during
the period it is in force, the affairs, business and property of the company
concerned, are managed by a person appointed for the purpose by a court,
governmental agency or similar body) in relation to any Group Company, nor has
any order been made.
10.3 No receiver (including any administrative receiver), liquidator,
trustee, administrator, custodian or similar official has been appointed in
any jurisdiction in respect of the whole or any part of any of the property,
assets and/or undertaking of any Group Company and no step has been taken for
or with a view to the appointment of such a person.
ENVIRONMENTAL
11.1 The businesses of each of the Group Companies have been and are
operated in compliance with all Federal, state and local environmental
protection, health and safety or similar laws, statutes, ordinances,
restrictions, licenses, rules, regulations, permit conditions and legal
requirements for the countries and areas in which they operate (ENVIRONMENTAL
LAWS), except where the failure to be so in compliance has not had or would
not reasonably be expected to have a Material Adverse Effect.
11.2 None of the Group Companies has caused the generation, treatment,
manufacture, processing, distribution, use, storage, discharge, release,
disposal, transport or handling of any chemicals, pollutants, contaminants,
wastes, sold wastes, toxic substances, hazardous substances, hazardous wastes,
petroleum, petroleum products or any substance regulated under any
Environmental Law (HAZARDOUS SUBSTANCES) at any of its properties or
facilities, except for such instances as have not had or would not reasonably
be expected to have a Material Adverse Effect.
11.3 Neither the Company nor the Subsidiary has received any written
notice from any governmental entity or other third party alleging any
violation by the Company or the Subsidiary of, or responsibility or liability
of the Company or the Subsidiary under, any Environmental Law or for personal
injuries and/or property damages, except for such allegations as have not had
or would not reasonably be expected to have a Material Adverse Effect.
PART B: CONTRACTS WARRANTIES
MATERIAL CONTRACTS
GENERALLY
1.1 There is not outstanding any agreement or arrangement to which any
Group Company is a party:
(a) which, by virtue of the acquisition of the Shares by the Purchaser or
other performance of the terms of this Agreement, will result in:
(i) any other party being relieved of any obligation to any Group
Company or becoming entitled to exercise any right (including any right of
termination or any right of pre-emption or other option) that would have a
Material Adverse Effect; or
(ii) any Group Company being in default under any such agreement or
arrangement or losing any benefit, right or licence which it currently enjoys
or in a liability or obligation of any Group Company being increased which, in
any such case, would have a Material Adverse Effect;
(b) which requires (or confers any right to require) the allotment or
issue of any shares, debentures or other securities of any Group Company now
or at any time in the future;
(c) which establishes any joint venture, consortium, partnership or profit
(or loss) sharing agreement or arrangement to which any Group Company is a
party other than the Oil and Gas Contracts, the liabilities under which exceed
$250,000 per annum;
(d) (other than existing contracts for drilling and drilling services
associated with xxxxx currently drilling or planned for 1998) which requires
expenditure by any Group Company in excess of $1,000,000 other than the Oil
and Gas Contracts;
(e) which establishes any material agency, distributorship, marketing,
purchasing, manufacturing or licensing agreement or arrangement to which any
Group Company is a party;
(f) which is a currency and/or interest rate swap agreement, asset swap,
future rate or forward rate agreement, interest cap, collar and/or floor
agreement or other exchange or rate protection transaction or combination
thereof or any option with respect to any such transaction or any other
similar transaction to which any Group Company is a party where the notional
amount exceeds $1,000,000;
(g) which is a recognition, procedural or other agreement between any
Group Company and any recognised independent trade union;
(h) which is any other agreement or arrangement having a material effect
on the business, assets, properties, results of operations, financial or
trading position or prospects of any Group Company;
(i) which is a bid, tender, proposal or offer which, if accepted, would
result in any Group Company becoming a party to any agreement or arrangement
of a kind described in sub-paragraphs (a) to (h) above.
1.2 So far as the Seller is aware, no Group Company is in default under
any agreement to which it is a party where such default has had or would
reasonably be expected to have a Material Adverse Effect.
OIL AND GAS CONTRACTS
GENERALLY
2.1 The Oil and Gas Contracts made available to the Purchaser for
inspection in the Data Room are the only material agreements or arrangements
relating to the oil and gas interests of any Group Company in the
Malaysia-Thailand Joint Development Area.
2.2 Each Group Company has complied in all material respects with its
obligations under the Oil and Gas Contracts.
2.3 All payments due and payable by any Group Company as at the date
hereof in relation to the Oil and Gas Contracts have been paid in full.
2.4 To the best knowledge of the Seller, each Oil and Gas Contract is
currently in force and no Group Company has, within the last nine (9) months
received written notice of the revocation, variation, termination or surrender
of any of them, of the withdrawal of any party or of any intention of any
party so to revoke, vary, terminate, surrender or withdraw from any of them.
2.5 No act or omission by any Group Company has occurred which could
reasonably be expected to result in revocation of any of the Oil and Gas
Contracts.
2.6 Subject to the provisions of the Oil and Gas Contracts, the
Subsidiaries are the beneficial owners of their interests under the Oil and
Gas Contracts free from all charges, liens, encumbrances, equities and claims
whatsoever.
PRODUCTION SHARING CONTRACT
2.7 All compulsory work obligations contained in the Production Sharing
Contract which are (subject to extensions granted by the relevant authorities)
required to have been performed by any Group Company at the date hereof have
been fully performed.
2.8 Neither the Seller, the Company nor either of the Subsidiaries has
received any notice from the Malaysia-Thailand Joint Authority or any
government or competent governmental agency of any intention to require
further work of a material nature to be conducted (whether in relation to
exploration, appraisal or development).
OPERATING AGREEMENTS
2.9 No sole risk or non-consent proposals or operations are formally
proposed and currently extant or underway in relation to the Operating
Agreements.
2.10 All cash calls due and payable by the Subsidiaries as at the date
hereof in relation to the Operating Agreements have been paid in full.
ABANDONMENT OBLIGATIONS
2.11 No payments have been made by the Subsidiaries in respect of or on
account of or by way of provision (other than accounting provisions) for any
future abandonment obligations in respect of the Production Sharing Contract
or the Operating Agreements and no abandonment agreement has been entered into
affecting the Production Sharing Contract or the Operating Agreements and,
subject to the documents made available to the Purchaser in the Data Room, and
subject to all legislation and regulation, no obligation to make any such
payments or provision is in existence.
PART C: TAXATION
1.1 Except as listed below each Group Company has timely filed or caused
to be timely filed all Tax returns required by any Tax authority and has paid
any and all liability with respect to such returns:
(a) Withholding tax imposed by the Kingdom of Thailand;
(b) VAT imposed by the Kingdom of Thailand.
1.2 Except as listed below, there is no dispute outstanding, nor so far as
the Seller is aware, is any threatened as of the date of this Agreement with
any Revenue authority regarding liability or potential liability to any Tax
(including in such case penalties or interest) recoverable, directly or
indirectly, from any Group Companies or regarding any claim for refund,
overpayment or other relief from Tax to any Group Company:
(a) Withholding tax imposed by the Kingdom of Thailand;
(b) VAT imposed by the Kingdom of Thailand.
1.3 Proper provision in accordance with generally accepted accounting
practice has been made in respect of Taxation (whether actual or contingent)
in the Accounts.
1.4 Since the Accounts Date:-
(a) no period of account for tax purposes of any Group Company has ended
except that a tax year for TOCT (Texas) ended on 31 May 1998;
(b) no event has occurred which will result in any Group Company becoming
liable to pay or bear a Tax liability directly or primarily chargeable against
or attributable to another person, firm or company other than any other Group
Company; and
(c) no Group Company has paid or become liable to pay any interest or
penalty in connection with any Tax, has otherwise paid any Tax after its due
date for payment or owes any Tax the due date for payment of which has passed
or will arise in the 30 days after the date of this Agreement.
SCHEDULE 5
INDEMNIFICATION PROCEDURES AND LIMITATIONS ON
THE SELLER'S LIABILITY FOR WARRANTY CLAIMS AND LIABILITIES INDEMNITY CLAIMS
1. LIMITATION ON QUANTUM FOR WARRANTY CLAIMS
1.1 The Purchaser shall not be entitled in any event to damages or other
amounts in respect of any Warranty Claim or Warranty Claims unless and until:-
(a) the aggregate amount of all such claims exceeds 5% of the Liability
Amount (in which event the liability of the Seller shall be limited to the
amount by which such aggregate amount exceeds 5% of the Liability Amount) and
(b) the amount of any individual claim shall exceed 0.5% of the Liability
Amount (in which event the liability of the Seller shall be limited to the
amount by which such aggregate amount exceeds 0.5% of the Liability Amount);
1.2 The total aggregate liability of the Seller under or pursuant to this
Agreement for Warranty Claims, when aggregated with the total aggregate
liability of the Seller under or pursuant to this Agreement for Liabilities
Indemnity Claims, shall not in any event exceed the Liability Amount.
2. LIMITATION ON QUANTUM FOR LIABILITIES INDEMNITY CLAIMS
The total aggregate liability of the Seller under or pursuant to this
Agreement for Liabilities Indemnity Claims, when aggregated with the total
aggregate liability of the Seller under or pursuant to this Agreement for
Warranty Claims, shall not in any event exceed the Liability Amount.
3. TIME LIMITS FOR BRINGING WARRANTY CLAIMS AND LIABILITIES INDEMNITY
CLAIMS
3.1 The Seller shall not be liable for any Warranty Claim unless the
Purchaser shall have given to the Seller written notice of such Claim:-
(i) on or before the first anniversary of the Completion Date in
respect of Warranty Claims relating to the Tax Warranties; or
(ii) on or before the first anniversary of the Completion Date in
respect of Warranty Claims relating to the Warranties other than the Tax
Warranties.
Such written notice shall specify (in reasonable detail) the matter which
gives rise to the Warranty Claim, the nature of the Warranty Claim and, to the
extent that it is possible for the Purchaser to make a determination of the
amount claimed in respect of a Warranty Claim that is quantifiable and not
contingent, reasonable details concerning the Purchaser's calculation of the
loss thereby alleged to have been suffered by it. Notwithstanding the
foregoing, any defects or inaccuracies in such written notice or failure to
provide such notice promptly after the Purchaser becomes aware of the matter
giving rise to the Warranty Claim, subject to the limitation periods set forth
in Clauses (i) and (ii) above, shall not relieve the Seller of liability for
such Warranty Claim.
3.2 The Seller shall not be liable for any Liabilities Indemnity Claim
unless the Purchaser, for or on behalf of itself or a Group Company, or any
Group Company, as the case may be, shall have given to the Seller written
notice of such Claim:-
(i) on or before the fifth anniversary of the Completion Date in
respect of Liabilities Indemnity Claims relating to Taxation or any
liabilities arising out of non-compliance by the Group Companies with
Environmental Laws (as such term is defined in paragraph 11.1 of Schedule 4);
or
(ii) on or before the third anniversary of the Completion Date in
respect of all other Liabilities Indemnity Claims.
Such written notice shall specify (in reasonable detail) the matter which
gives rise to the Liabilities Indemnity Claim, the nature of the Liabilities
Indemnity Claim and, to the extent that it is possible for the Purchaser or
the relevant Group Company, as the case may be, to make a determination of the
amount claimed in respect of a Liabilities Indemnity Claim that is
quantifiable and not contingent, reasonable details concerning the calculation
of the loss thereby alleged to have been suffered by it. Notwithstanding the
foregoing, any defects or inaccuracies in such written notice or failure to
provide such notice promptly after the Purchaser or the relevant Group
Company, as the case may be, becomes aware of the matter giving rise to the
Liabilities Indemnity Claim, subject to the limitation periods set forth in
Clauses (i) and (ii) above, shall not relieve the Seller of liability for such
Liabilities Indemnity Claim.
(Each period specified in Clauses 3.1(i) and (ii) and 3.2 (i) and (ii) being a
CLAIM LIMITATION PERIOD).
4. EXCLUSION OF LIABILITY FOR DISCLOSED MATTERS WITH RESPECT TO WARRANTY
CLAIMS
The Seller shall not be liable for any Warranty Claim in respect of any fact,
matter, event or circumstance to the extent that:-
(a) such fact, matter, event or circumstance has been disclosed in this
Agreement or the Disclosure Letter; or
(b) specific allowance, provision or reserve has been made for such fact,
matter, event or circumstance in the Accounts or the notes to such Accounts.
5. NO EXCLUSION OF LIABILITY FOR DISCLOSED MATTERS WITH RESPECT TO
LIABILITIES INDEMNITY CLAIMS
The Seller shall be liable for a Liabilities Indemnity Claim regardless of
whether or not the fact, matter, event or circumstance giving rise to such
Liabilities Indemnity Claim:-
(a) has been disclosed in this Agreement or the Disclosure Letter; or
(b) specific allowance, provision or reserve has been made therefor in the
Accounts or the notes to such Accounts.
6. PROCEDURE FOR INDEMNIFICATION - THIRD PARTY CLAIMS
(a) Upon the Purchaser becoming aware of any third party claim, potential
claim, matter or event (a THIRD PARTY CLAIM) which might lead to a Warranty
Claim or a Liabilities Indemnity Claim being made, the Purchaser (on behalf of
itself or any Group Company, as the case may be) shall:-
(i) within twenty Business Days notify the Seller by written notice
of such third party claim; provided, however, that failure to give the written
notice within such period shall not relieve the Seller of liability except to
the extent that the Seller's ability to defend any proceeding with respect to
such third party claim is materially prejudiced thereby;
(ii) take such action and give such information and access to
personnel, premises, chattels, documents and records to the Seller and their
professional advisers as the Seller may reasonably request (or co-operate to
procure that the relevant Group Company will do so) to avoid, dispute, resist,
mitigate, settle, compromise, defend or appeal such third party claim or any
adjudication with respect thereto;
(iii) at the written request and expense of the Seller, allow the
Seller to assume control of the conduct of such actions as the Seller may deem
appropriate in connection with any such third party claim (with counsel
reasonably satisfactory to the Purchaser), in the name of the Purchaser or the
appropriate Group Company, and, at the Seller's cost and expense, provide such
information and assistance as the Seller may reasonably require in connection
with the preparation for and conduct of such actions; provided, however, that
the Purchaser shall have the right to participate in such actions and to be
represented, solely at the Purchaser's own expense, by separate counsel;
provided, further, that if the Seller fails to diligently conduct such
actions, the Purchaser may assume control thereof, and the Seller shall be
liable for all reasonable costs and expenses incurred by the Purchaser in
connection therewith;
(iv) if the Seller has elected to assume control of the actions
relating to a third party claim, make no admission of liability, agreement,
settlement or compromise with any third party in relation to any such third
party claim without the prior written consent of the Seller, which consent
shall not be unreasonably withheld or delayed; provided, however, that if the
Seller has not elected to assume control of the actions relating to such third
party claim, the Purchaser may make an admission of liability, agreement,
settlement or compromise with respect to such third party claim in its sole
reasonable judgment, and the Seller shall be bound thereby; and
(v) take all reasonable action to mitigate any loss suffered by it or
any Group Company in respect of which a Warranty Claim or Liabilities
Indemnity Claim could be made.
(b) If the Seller has elected to assume control of the actions relating to
a third party claim, it shall not be entitled to make any agreement,
settlement or compromise thereof without the prior written consent of the
Purchaser. If the sole relief and effect of any agreement, settlement or
compromise that the Seller desires to make with a third party in respect of a
third party claim is the payment of monetary damages in full by the Seller
(the "Settlement Offer") and the Purchaser has refused its consent thereto,
then the Seller's maximum liability as to such third party claim will not
exceed the amount of the Settlement Offer.
7. NO RECOVERY TWICE FOR THE SAME LOSS
The Purchaser agrees for itself and on behalf of each Group Company with the
Seller that each of them shall not be entitled to recover damages or obtain
payment, reimbursement, restitution or indemnity more than once in respect of
any one loss, liability, expense, shortfall, damage, deficiency or breach, and
for this purpose recovery by the Purchaser or any Group Company shall be
deemed to be a recovery by each of them.
8. OTHER RECOVERY; REIMBURSEMENT OF AMOUNTS PAID UNDER THE LIABILITIES
INDEMNITY
The Seller's Liability in respect of Indemnity Liabilities Claims and Warranty
Claims shall be net of any Tax benefit (after giving effect to the Tax
consequences of any recovery with respect to such claims) and net of
recoveries under any insurance policies (except to the extent of any increase
in the cost of any experience-rated insurance policies held by the Purchaser
or the relevant Group Company) or from another person. If the Seller pays to
the Purchaser or a Group Company an amount in respect of a Warranty Claim or a
Liabilities Indemnity Claim and the Purchaser or a Group Company subsequently
recovers from another person or from insurance an amount which is attributable
to or arises from the matter giving rise to such Warranty Claim or Liabilities
Indemnity Claim:
(a) if the Total Liability Amount is equal to or less than the Sum
Recovered, the Purchaser or the relevant Group Company, as the case may be,
shall pay to the Seller the Total Liability Amount paid by the Seller to the
Purchaser or the relevant Group Company, as the case may be, in respect of
such Warranty Claim or Liabilities Indemnity Claim; and
(b) if the Total Liability Amount is more than the Sum Recovered, the
Purchaser or the relevant Group Company, as the case may be, shall pay to the
Seller an amount equal to the Sum Recovered.
For the purposes of this Clause SUM RECOVERED means an amount equal to the
total of the amount actually recovered from the other person or insurance plus
any interest in respect of the amount recovered from the person or insurance
less any tax computed by reference to the amount recovered from the person or
insurance payable by the Purchaser or the relevant Group Company and TOTAL
LIABILITY AMOUNT means an amount equal to the amount paid by the Seller in
respect of the Warranty Claim or Liabilities Indemnity Claim. In addition, if
the Seller pays to the Purchaser or a Group Company an amount in respect of a
Warranty Claim or a Liabilities Indemnity Claim that is or becomes
cost-recoverable pursuant to the terms of the PSC and such amount was not
reflected in the Completion Certificate, the Parties shall cause the Company
to issue to the Seller additional shares of Class A Preferred Stock in respect
of such amounts as contemplated by the Shareholders Agreement.
9. ACTS OF THE PURCHASER
No Warranties Claim or Liabilities Indemnities Claim shall lie against the
Seller to the extent that such Warranties Claim or Liabilities Indemnity Claim
is attributable to any voluntary act, omission, transaction or arrangement
carried out by the Purchaser before or after Completion
10. PURCHASER'S KNOWLEDGE
The Seller shall not be liable under the Warranties to the extent that the
Purchaser or any of its management level employees had actual knowledge of the
Claim or of the matters forming the basis of the Claim either at the date of
this Agreement or, if later, Completion.
11. RETROSPECTIVE LEGISLATION
No liability shall arise in respect of any Warranties Claim or under any
Liabilities Indemnity Claim if and to the extent that liability for such
breach occurs or is increased as a result of any legislation not in force at
the date hereof which takes effect retrospectively, and which was not known to
the Seller (or of which the Seller should reasonable have been aware) at the
date hereof.
12. NO CLAIM UNDER WARRANTIES IF MATTER IS SUBJECT OF LIABILITIES
INDEMNITY
If the matter giving rise to a claim under the Liabilities Indemnity is also
one which would give rise to a Warranties Claim, the remedy of the Purchaser
(or the relevant Group Company, as the case may be) in respect of such matter
shall be limited to a claim under the Liabilities Indemnity and the Purchaser
shall not be entitled to bring a Warranties Claim.
SCHEDULE 6
PART A: PRODUCTION SHARING CONTRACT
Contract dated 21 April 1994 between Malaysia-Thailand Joint Authority and
Petronas Carigali (JDA) Sdn., Bhd. and Triton Oil Company of Thailand relating
to exploration and exploitation of petroleum for Malaysia-Thailand Joint
Development Area Block A-18, together with:
a Deed of Assignment dated 1 September 1995 between Triton Oil Company
of Thailand and Triton Oil Company of Thailand (JDA) Limited;
a Deed of Assignment dated 1 October 1996 between Triton Oil Company
of Thailand and Triton International Oil Corporation; and
a letter dated 23 December 1997 from the Malaysia-Thailand Joint
Authority to Petronas Carigali (JDA) Sdn Bhd and Triton Oil Company of
Thailand (JDA) Ltd. and Triton Oil Company of Thailand confirming permission
to retain the Block A-18, JDA contract area for further exploration.
PART B: OPERATING AGREEMENTS
The following contracts as amended from to time:
1. Joint Operating Agreement dated 21 April 1994 between Petronas Carigali
(JDA) Sendirian Berhad and Triton Oil Company of Thailand relating to
Malaysia-Thailand Joint Development Area Block A-18.
2. Joint Operating Company Agreement dated 21 March 1994 between Petronas
Carigali (JDA) Sendirian Berhad and Triton Oil Company of Thailand relating to
Xxxxxxxx-Xxxxxxxx Xxxxx Xxxxxxxxxxx Xxxx Xxxxx X-00.
For and on behalf of
TRITON ASIA HOLDINGS, INC.
For and on behalf of
ARCO JDA LIMITED
For and on behalf of
TRITON ENERGY LIMITED
For and on behalf of
ATLANTIC RICHFIELD COMPANY
