SALE AND PURCHASE AGREEMENT between HYPERDYNAMICS CORPORATION (acting for and on behalf of itself and SCS Corporation) and DANA PETROLEUM (E&P) LIMITED
Exhibit
10.1
between
HYPERDYNAMICS
CORPORATION
(acting
for and on behalf of itself and
SCS
Corporation)
“Seller”
and
XXXX
PETROLEUM (E&P) LIMITED
“Buyer”
2009
This Sale
and Purchase Agreement (“SPA” or “Agreement”), is entered into December 4, 2009
(the “Effective Date”) by and between Hyperdynamics Corporation of Xxx Xxxxx
Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxx, Xxxxx 00000, XXX (“HDY”) acting
for itself and as agent for on behalf of SCS Corporation of Xxx Xxxxx Xxxxx
Xxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxx, Xxxxx 00000, XXX (“SCS”), as Seller, and
Xxxx Petroleum (E&P) Limited, of 00 Xxxxxx Xxxxx, Xxxxxxxx XX00 0XX,
Xxxxxxxx, XX (“XXXX”), as Buyer. HDY and XXXX xxx also be referred to herein
individually as a “Party” or collectively as the “Parties”.
Recitals:
WHEREAS,
Seller owns, through SCS, a wholly owned and controlled subsidiary of HDY,
certain rights pertaining to the PSC; and
WHEREAS
the Government and SCS have entered into the MoU; and
WHEREAS,
Buyer and Seller have executed the LOI; and
WHEREAS,
Buyer wishes to buy, on its own behalf or that of a designated Affiliated
Company, and Seller wishes to sell, an undivided interest in HDY’s rights,
interests, obligations and duties as Contractor in and under the PSC, as it may
be subsequently clarified and modified by and under the MoU.
NOW,
THEREFORE, in consideration of the mutual covenants set forth in this Agreement,
and other good and valuable consideration, the adequacy of which is hereby
acknowledged, the Parties agree as follows:
ARTICLE
I
DEFINITIONS
1.1 "Accruals
Basis" shall mean that basis of accounting under which costs and benefits are
regarded as applicable to the period in which the liability to the cost is
incurred or the right to the benefit arises regardless of when invoiced, paid or
received and “Accruals” shall be construed accordingly.
1.2 “Affiliated
Company” in relation to an entity shall mean:
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(i)
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a
company or corporation that is directly or indirectly controlled by such
entity; or
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(ii)
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a
company or corporation that directly or indirectly controls such entity;
or
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(iii)
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a
company or corporation that is directly or indirectly controlled by a
company or corporation that also directly or indirectly controls such
entity.
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For these
purposes “control” means control of more than 50% of the voting shares or other
voting rights of such company or corporation.
1.3 “Agreed Interest Rate” means in relation to any day
or other relevant period of time to which such rate is being applied, the
mid-market London Interbank Offered Rate for three month deposits of US dollars
as quoted in the “Financial Times” on the date on which the day occurs or the
relevant period commences plus one percentage point (1%).
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1.4 “Assignee” shall mean Buyer (or its
nominated Affiliated Company).
1.5 “Assignment
of Participating Interest” shall mean an interest assignment assigning the Buyer
Participating Interest from Seller to Buyer (or its nominated Affiliated
Company) substantially in the form attached at Exhibit C, Part I.
1.6 “Assignor”
shall mean Seller by and through its wholly owned and controlled subsidiary, SCS
Corporation.
1.7 “Buyer
Participating Interest” shall mean an undivided twenty-three percent (23%) of
the contractual interests, rights, obligations and duties of SCS as Contractor
under and in the PSC and the Contract Area subject to the PSC, including any and
all contracts, studies, work, evaluations, geological analyses, geo-seismic data
and processing thereof, equipment, facilities of all types and nature and any
other matter, study or thing associated therewith, including the right of first
refusal applicable to SCS pursuant to Article 2.3 of the MoU on a pro rata basis, and also
including all rights to future production allocated pursuant to the PSC to
recovery of items of costs and expenditures paid or payable by Buyer pursuant to
this Agreement and/or the JOA, whether incurred before, on or after the
Effective Date, together with any and all tax deductibility in respect of such
costs and expenditures.
1.8 “Closing”
shall have the meaning attributed thereto in Article 6.2.
1.9 “Conditions
Precedent” shall have the meaning attributed thereto in Article
6.1.
1.10
“Contract Area” shall have the meaning as such term is defined in the PSC, it
being understood and acknowledged that such Contract Area is subject to
variation pursuant to the MoU.
1.11 “Definitive
Agreements” shall
mean this Agreement, the Assignment of Participating Interest, the PSC
Assignment, and the JOA.
1.12 “Government”
shall mean the Government of the Republic of Guinea
1.13 “Hydrocarbon
Production and Sharing Contract” or “PSC” shall mean the Hydrocarbon and Production Sharing
Contract Between The Republic of Guinea and SCS Corporation executed on
September 22, 2006, a copy of which is attached as Exhibit A.
1.14 “JOA”
shall mean the joint operating agreement (including accounting procedure) in
respect of the PSC and Contract Area to be negotiated and executed by SCS, the
Buyer (or its nominated Affiliated Company) and any third parties.
1.15 “LOI”
shall mean the letter of intent entered into effective October 11, 2009 by
Seller and Buyer to govern, inter alia, Buyer’s
evaluation of its entry into the PSC.
1.16 “Material
Contracts” shall have the meaning attributed thereto in Article
3.2(c).
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1.17 “Memorandum
of Understanding” or “MoU” shall mean that document executed by the Government
and SCS on or about September 11, 2009, a copy of which is attached as Exhibit
B.
1.18 “Ministry”
shall mean the Ministry of Mines, Energy and Hydraulics of the Republic of
Guinea or a successor ministry to which the hydrocarbon sector is assigned, and
“Minister” shall mean the minister of the Ministry.
1.19 “PSC
Assignment” shall mean a deed of assignment of the PSC for delivery to the
Minister as a muniment of the Assignment of Participating Interest upon its
approval pursuant to Article 23 of the PSC, substantially in the form attached
as Exhibit C, Part II.
1.20 “PSC
Clarification” shall mean the document by or through which the PSC shall be
clarified, amended or restated so as to incorporate, inter alia, the relevant
terms of, and supersede, the MoU, which document shall be executed by all
parties to the PSC and which is to be negotiated by Seller, Buyer (or its
nominated Affiliated Company), any third parties, and the
Government.
1.21 “Purchase
Price” shall have the meaning attributed thereto in Article 5.1.
1.22 “Warrantee”
shall mean a Party in whose favour a representation, warranty or covenant is
granted hereunder.
1.23 “Warrantor”
shall mean a Party by whom a representation, warranty or covenant is granted
hereunder.
1.24 Interpretation:
(a) Any
headings in this Agreement are for convenience only and shall not affect the
construction of this Agreement and the Exhibits.
(b) References
in this Agreement to Articles, or Exhibits are (unless the context otherwise
requires) to articles of, or exhibits to, this Agreement.
(c) References
in this Agreement to any statute or statutory provision shall include references
to any statute or statutory provision which amends, extends, consolidates or
replaces the same or which has been amended, extended, consolidated or replaced
by the same and shall include any orders, regulations, instruments or other
subordinate legislation made under the relevant statute.
(d) The
word ‘including’ shall be construed as meaning “including without
limitation”.
(e) Any
document expressed to be “in the agreed form” means a document in a form
approved by the Parties.
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(f) Reference
to any agreement or document is to that agreement or document (and, where
applicable, any of its provisions) as amended, supplemented, novated, restated
or replaced from time to time.
(g) Reference
to any Party to this Agreement or any other document or arrangement includes
that Party’s successors in title and permitted assigns.
(h) Reference
to any licence, production sharing contract or other instrument of title is to
such instrument as extended, amended, varied, renewed or substituted and in
effect at the date hereof.
(i) Unless
the context requires otherwise, reference to the singular shall include the
plural and vice versa, reference to any gender shall include all genders, and
references to persons shall include natural persons, bodies corporate,
unincorporated associations and partnerships.
ARTICLE
II
PURCHASE
AND SALE
2.1 Purchase and
Sale. Seller hereby agrees to sell, convey and assign to
Buyer, by means of the Assignment of Participating Interest, the Buyer
Participating Interest, and Buyer hereby agrees to accept such sale, conveyance
and assignment, subject always to the terms and conditions of this Agreement and
to prior satisfaction or waiver of all of the Conditions Precedent.
2.2 Assumption of Obligations;
Joint and Several Liability. Buyer hereby agrees and covenants with and
in favor of Seller and the Government that on and from the Closing it will
perform and observe the terms and conditions and be bound by all the liabilities
and obligations contained in the PSC and on the part of the Contractor therein
described to be performed and observed (including, without limitation, the joint
and several liability of the Contractor to the Republic of Guinea pursuant to
the PSC), insofar as they relate to the Buyer Participating
Interest.
2.3 Disclaimer. Except
for the representations and warranties contained in this Agreement, Seller makes
no warranty or representation of any kind as to the PSC, or any information
provided by Seller to Buyer prior to Closing. Buyer agrees that any conclusions
drawn from the records and from any information provided by Seller to Buyer
prior to the Closing shall be the result of its own independent review and
judgment.
2.4 Acquisition by
Affiliate. Buyer may elect to have the Buyer Participating Interest
acquired in the name of any Affiliated Company of Buyer, provided that Buyer
must nominate any such Affiliated Company to Seller in writing prior to Closing
and provided that such Affiliated Company of Buyer either has the financial and
technical capabilities to perform the obligations of the Buyer or, should Buyer
be unable to demonstrate such financial and technical capabilities to the
reasonable satisfaction of Seller, Buyer provides a parent company guarantee to
Seller, in the agreed form, guaranteeing the performance of such
obligations.
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ARTICLE
III
SELLER’S
REPRESENTATIONS, WARRANTIES & COVENANTS
3.1 Seller’s Corporate
Representations
and Warranties. Seller
hereby makes the following representations and warranties to Buyer, which
warranties shall apply at the date hereof and shall be deemed to be repeated at
Closing with reference to the facts and circumstances then
existing:
(a) Incorporation and
Qualification. HDY
and SCS are corporations duly organized, validly existing and in good standing
under the laws of the State of Delaware.
(b) Power and
Authority. Seller
has all requisite power and authority to carry on its business as presently
conducted and to execute and deliver this Agreement and perform its obligations
under this Agreement. The execution and delivery of this Agreement and
consummation of the transactions contemplated by this Agreement and the
fulfillment of and compliance with the terms and conditions hereof will not
violate, or be in conflict with, any material provision of its governing
documents or any material provision of any agreement or instrument to which it
is a party or by which it is bound, or, to its knowledge, any judgment, decree,
order, statute, rule or regulation applicable to it.
(c) No Lien, No
Violation. The
execution, delivery and performance of this Agreement (and any agreement
executed by Seller pursuant hereto) does not, and the fulfillment of and
compliance with the terms and conditions hereof, will not, (i) create a lien or
encumbrance or trigger an outstanding security interest that will remain in
existence after Closing, (ii) violate, or be in conflict with, result in a
default under, give rise to any right of termination, cancellation or
acceleration under, any material provision of Seller’s governing documents or
any agreement or instrument to which Seller is bound, or (iii) to Seller’s
knowledge, violate or be in conflict with any law, statute, rule,
regulation, judgment, decree, or order applicable to Seller, or (iv) except for
the Assignment of Participating Interest, the PSC Assignment and the PSC
Clarification, require any consents, approvals, notifications or authorizations
of any governmental authorities.
(d) Authorization and
Enforceability. The
execution, delivery and performance of this Agreement (and that of any agreement
executed by Seller pursuant hereto) is duly and validly authorized by all
requisite corporate action on behalf of Seller, has been duly executed and
delivered and constitutes the legal, valid and binding obligation of Seller,
enforceable in accordance with its terms, subject, however, to the effects of
bankruptcy, insolvency, reorganization, moratorium and other laws for the
protection of creditors, as well as to general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity or at
law.
(e) Liability
for Brokers’ Fees. Seller
has not incurred any liability, contingent or otherwise, for brokers’ or
finders’ fees relating to the transactions contemplated herein or this Agreement
for which Buyer shall have any responsibility whatsoever.
(f) No
Bankruptcy. There
are no bankruptcy proceedings pending, being contemplated by or, to Seller’s
knowledge, threatening involuntary bankruptcy against Seller.
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(g) Litigation. There
are no actions, suits, ongoing governmental investigations, written governmental
inquiries or proceedings pending or, to Seller’s knowledge, threatened in
writing against Seller, in any court or by or before any federal, state,
municipal or other governmental agency that would, considered in the aggregate,
affect Seller’s ability to consummate the transaction contemplated by this
Agreement.
3.2 Seller’s Representations and
Warranties with Respect to the Buyer Participating Interest and the
PSC. Seller hereby makes the following representations and
warranties to Buyer, which warranties shall apply at the date hereof and shall
be deemed to be repeated at Closing with reference to the facts and
circumstances then existing:
(a) Title; Status of PSC;
Consents and Approvals. Subject to and except for the terms of
the MoU, there has been no action or omission by which Seller has conveyed,
divested itself of, diminished or lessened its legal and beneficial title to
Buyer's Participating Interest, including the right to sell and transfer
ownership to the Buyer, and Seller has, to the best of its knowledge and belief
(having made diligent enquiry), materially complied with aall licences,
agreements, consents, permissions and approvals necessary for the conduct of all
operations carried out in relation to the PSC and to the Buyer Participating
Interest under the PSC.
(b) No
Encumbrances. Other than any royalties and payments due
under or by virtue of the PSC or by virtue of any statutory enactment, no
mortgage, charge (whether fixed or floating), pledge, lien, encumbrance or other
security or net profit or royalty interest or any other burden or equity
whatsoever has been created over the Buyer Participating Interest nor is there
in effect any agreement or commitment to create the same.
(c) Material
Contracts. The PSC and the MoU are the only material contracts
which govern or relate to the creation, existence and validity of the Buyer
Participating Interest.
Seller
otherwise represents that the following are the only contracts material to the
Buyer Participating Interest or the PSC (“Material Contracts”): (1) Master
Geophysical Data Acquisition Agreement, between Geophysical Service Incorporated
and SCS Corporation, dated February 13, 2008 (the “GSI Agreement”); (2) Letter
Agreement with Offshore Seismic Services, Inc. dated February 14, 2003 (the “OSS
Agreement”); and (3) Marine 2D Seismic Data Acquisition Services Agreement with
Bergen Oilfield Services AS dated September 29, 2009 (the “BOS
Agreement”). All such Material Contracts shall be subject to Article
4.2, Buyer’s Evaluation.
With
respect to the GSI Agreement, any and all payments in relation thereto made
after the Effective Date shall be treated as expenses for the joint account
under the JOA, but shall not be billed until after Closing, provided that, Buyer’s
liability for such payments shall in no event exceed the Buyer Participating
Interest share thereof and Seller hereby indemnifies and holds harmless Buyer
from any liability in respect of such payments in excess of the Buyer
Participating Interest share thereof irrespective of the terms of the JOA, and
provided further that,
notwithstanding the foregoing, in the event, and only in the event, that
Buyer does not make payment of the Purchase Price within the time period set out
in Article 5.1 and Seller exercises its option to buy back the Buyer
Participating Interest, then Buyer shall be liable in full for any payment made
under the GSI Agreement solely as a result of the transfer of the GSI seismic
data to Buyer, and Seller shall deduct any balancing payment due in respect
thereof by Buyer from the reimbursement of costs payable by Seller to Buyer
pursuant to Article 5.1 on exercise by Seller of such option.
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With
respect to the BOS Agreement, Buyer shall, as of the Effective Date, be liable
for payments made in respect thereof (whether before or after the Effective
Date), pro rata to the Buyer Participating Interest and any payments already
made by Seller prior to Closing shall be billed immediately to Buyer and paid by
Buyer immediately following, and subject to, Closing, while all remaining
payments thereafter shall be treated as expenses for the joint account under the
JOA, provided that, if
this Agreement terminates prior to Closing in accordance with Article 6.1,
Buyer can, at its sole option, choose between either returning immediately
and in toto all BOS seismic data and
information in its possession and making no payment to Seller in respect thereof
or retaining possession of the property of or license to use such information,
pursuant to the BOS Agreement, and paying Seller the Buyer Participating
Interest share of all payments due in respect thereof.
With
respect to the OSS Agreement, Buyer shall have no liability in respect thereof
and Seller hereby indemnifies and holds harmless Buyer from any liability
arising in relation thereto.
(d) Environmental
Matters. In relation to environmental matters:
(i) Seller
has not received any demand or notice under any environmental law in force at
the date hereof with respect to a material breach thereof related to the Buyer
Participating Interest; and
(ii) no
complaint has been made or filed with Seller by the Government in respect of the
Buyer Participating Interest relating to any material environmental damage or
material injury or alleged material damage or injury.
(e) Access to
Data. Seller has provided Buyer with access to copies of all
material geological, geophysical, and well data and any other material
information possessed by Seller relating to the Contract Area.
(f) No
Warranties. Seller makes no representations or warranties
regarding (i) the validity, enforceability and legal status of or force of law
with respect to the PSC, except as specifically provided in this Article 3.2;
(ii) any estimate of the value of reserves in the Contract Area; (iii) any
projections as to future events; or (iv) except as specifically provided in this
Article 3.2, the accuracy, or completeness of any of the records or of any
information provided to Buyer with respect to the PSC.
3.3 Continuing Validity.
The representations, warranties, and acknowledgements in favour of Buyer
contained in this Article III shall be valid up to and at Closing and shall
survive for the purposes of Article 8.1(b) for a period of twelve (12) months
after Closing, other than the representations, warranties, and acknowledgements
in Articles 3.1 (a), (b), (c), (d) and (e), which shall survive for the
applicable statute of limitations.
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3.4 Seller’s
Covenants. From and after the Effective Date and until
Closing, the Seller hereby covenants and agrees that, except if, and to the
extent, agreed otherwise in writing by the Buyer:
(a) Insurance. Seller
will maintain all insurances required for the operation of the PSC and shall pay
all premiums due in respect thereof.
(b) Article
8.4. Seller shall fulfill its obligations as set forth in
Article 8.4.
(c) Information and
Consultation. Seller shall make available to Buyer all
information, data and other material in the possession of the Seller relating to
the PSC and the Buyer Participating Interest and operations conducted in respect
thereof and shall consult fully and freely with Buyer in relation to any
material decision affecting the PSC and the Buyer Participating Interest and
take due and proper account of Buyer’s representations in relation
thereto.
(d) Make
Payments. Seller shall pay any and all costs relating to the
Buyer Participating Interest and the PSC when due.
(e) No
Encumbrances. Except as provided and allowed under Article
3.4(f) with respect to changes in the PSC pursuant to the MoU, Seller shall not
sell, charge, assign or encumber or suffer to be encumbered in any manner the
Buyer Participating Interest, or purport to do so.
(f) Protect and
Maintain. Seller shall carry on its activities in relation to
the Buyer Participating Interest in accordance with good oil and gas field
practice so as to protect and maintain the same; shall not, without adequate
notice to Buyer and opportunity for Buyer to participate fully in relevant
negotiations pursuant to Article 8.4, agree to amend in any material respect or
terminate any material agreement relating to the Buyer Participating Interest,
including the PSC and the MoU; and shall not, without adequate notice to Buyer
and opportunity for Buyer to participate fully in relevant negotiations pursuant
to Article 8.4, execute or agree to execute any new material agreement relating
to the Buyer Participating Interest. It is acknowledged and agreed
that while participation in relevant negotiations under Article 8.4 applies
primarily to the PSC Clarification, for the purposes of this Article 3.4(f) it
shall be deemed to apply to any and all, existing and new, material agreements
relating to the Buyer Participating Interest. It is further
acknowledged and agreed, for the avoidance of any doubt, that the provisions of
this Article 3.4(f) shall not be construed in any way so as to permit Seller to
breach any other covenant granted by Seller pursuant to this Article
3.4.
(g) No Action
Inconsistent. Seller shall not (i) take, or agree or commit to
take, any action that would make any representation or warranty of Seller under
Article III inaccurate in any material respect at, or as of any time prior to,
the Closing, or (ii) omit, or agree or commit to omit, to take any action
necessary to prevent any such representation or warranty from being inaccurate
in any material respect at any such time.
(h) No
Release. Seller shall not waive, release, cancel, settle or
compromise any material right or right of action, pertaining to the Buyer
Participating Interest.
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(i) Notification to
Minister. Seller shall promptly, and in any event no
later than thirty (30) days prior to Closing, notify the Minister, in the agreed
form, of the proposed assignment of the Buyer Participating Interest to Buyer
pursuant to Article 23.1 of the PSC and shall copy such notice to
Buyer.
ARTICLE
IV
BUYER’S
REPRESENTATIONS AND WARRANTIES
4.1 Buyer’s Representations and
Warranties. Buyer hereby makes the following representations
and warranties to Seller, which warranties shall apply at the date hereof and
shall be deemed to be repeated at Closing with reference to the facts and
circumstances then existing:
(a) Organization and
Standing. Buyer
is a corporation duly formed, validly existing and in good standing under the
laws of England and Wales.
(b) Power. Buyer
has all requisite power and authority to carry on its business as presently
conducted and to execute and deliver this Agreement and perform its obligations
under this Agreement. The execution and delivery of this Agreement and
consummation of the transactions contemplated by this Agreement and the
fulfillment of and compliance with the terms and conditions hereof will not
violate, or be in conflict with, any material provision of its governing
documents or any material provision of any agreement or instrument to which it
is a party or by which it is bound, or, to its knowledge, any judgment, decree,
order, statute, rule or regulation applicable to it.
(c) Authorization and
Enforceability. The
execution, delivery and performance of this Agreement and the transactions
contemplated by this Agreement have been duly and validly authorized by all
requisite corporate action on behalf of Buyer. This Agreement
constitutes Buyer’s legal, valid and binding obligation, enforceable in
accordance with its terms, subject, however, to the effects of bankruptcy,
insolvency, reorganization, moratorium and similar laws for the protection of
creditors, as well as to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(d) Liability for Brokers’
Fees. Buyer
has not incurred any liability, contingent or otherwise, for brokers’ or
finders’ fees relating to the transactions contemplated by this Agreement for
which Seller shall have any responsibility whatsoever.
(e) Litigation. There
is no action, suit, proceeding, claim or investigation by any person, entity,
administrative agency or governmental body pending or, to Buyer’s knowledge,
threatened against it before any governmental authority that impedes or is
likely to impede its ability to consummate the transactions contemplated by this
Agreement, or to assume the liabilities to be assumed by it under this
Agreement.
(f) No
Bankruptcy. There
are no insolvency or bankruptcy proceedings pending, being contemplated by or,
to Buyer’s knowledge, threatened against Buyer.
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4.2 Buyer’s
Evaluation.
(a) Records. Buyer
is experienced and knowledgeable in the oil and gas business and is aware of its
risks. Effective upon the Closing, the Buyer acknowledges that it has
been afforded the opportunity to examine the records and the PSC and to examine
all information provided by Seller to Buyer prior to and after the execution of
this Agreement. Except for the representations and warranties of
Seller contained in this Agreement, Buyer acknowledges and agrees that Seller
has not made any representations or warranties, express or implied, written or
oral, as to the accuracy or completeness of the records or any other information
relating to the PSC provided to Buyer or its representatives, by or on behalf of
Seller, prior to and after the date of the execution of this Agreement,
including, except as specifically provided under Article 3.2, the validity,
enforceability and legal status of, or force of law with respect to, the PSC,
any estimate of the value of reserves or any projections as to future
events.
(b) Independent
Evaluation. In
entering into this Agreement, except for Seller’s representations, warranties
and covenants set forth in this Agreement, Buyer acknowledges and affirms that
it has and will continue to rely solely upon the terms of this Agreement and
upon its own independent analysis, evaluation and investigation of, and judgment
with respect to, the business, economic, legal, tax or other consequences of the
transactions contemplated by this Agreement, including without limitation, its
estimate and appraisal of the validity, enforceability and legal status of or
force of law with respect to the PSC, and the petroleum, natural gas and other
reserves associated with the PSC. Except as expressly provided in
this Agreement, Seller and its Affiliated Companies, agents, representatives,
advisors, contractors, directors or employees shall not have any liability to
Buyer or its Affiliated Companies, agents, representatives, advisors,
contractors, directors or employees resulting from any use, authorized or
unauthorized, of the records or other information relating to the PSC provided
by or on behalf of Seller.
4.3 Continuing Validity.
The representations, warranties, and acknowledgements in favour of Seller
contained in this Article IV shall be valid up to and at Closing and shall
survive for the purposes of Article 8.1(c) for a period of twelve (12) months
after Closing, other than the representations, warranties, and acknowledgements
in Articles 4.1 (a), (b), (c) and (d), which shall survive for the applicable
statute of limitations.
ARTICLE
IVB
WARRANTY
CONDITIONS
4B.1 The
Warrantee is not entering into this Agreement in reliance on any representation
or warranty, whether oral or written, express or implied, other than the
representations and warranties set forth herein. For the avoidance of
doubt, other than the representations and warranties set forth herein, no Party
as Warrantor makes any representation or warranty in respect of any matter and
disclaims all liability and responsibility for any representation, statement,
warranty, advice or opinion (whether made orally or in writing) to the other
Party/Parties as Warrantee and the other Party/Parties as Warrantee acknowledges
that it has not relied upon such representation, statement, warranty, advice or
opinion in entering this Agreement or any transactions arising as a result of
this Agreement.
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4B.2 The
Warrantee shall not be entitled to claim that any fact or matter constitutes a
breach of the representations and warranties set out herein to the extent that
such fact or matter is set out herein or in the PSC or the MoU or in any
documentation relating to the Buyer Participating Interest which has been
provided to the Warrantee prior to the date hereof.
4B.3 If
any matter or thing materially inconsistent with any of the representations and
warranties becomes known to either Party at or before Closing, such Party shall
as soon as reasonably practicable thereafter notify the other Party accordingly
(giving such details of such matter as may then be reasonably practicable) and
the Warrantor shall use all reasonable endeavors to remove such material
inconsistency prior to Closing. For the avoidance of doubt, for
purposes of this Article 4B and notwithstanding any other provision
hereof:
(a) a
PSC Clarification which is concluded before the Closing and which materially
modifies the PSC, including any Contractor obligations thereunder, shall be
deemed to constitute a matter or thing materially inconsistent with the
representations and warranties hereunder even when Buyer has been given the
opportunity to participate or has, in fact, participated pursuant to Article
8.4; and
(b) a
material amendment to any material agreement or a new material agreement, other
than the PSC Clarification, relating to the Buyer Participating Interest which
is concluded before the Closing and which has not been agreed to by Buyer
pursuant to Article 3.4(f) shall be deemed to constitute a matter or thing
materially inconsistent with the representations
and warranties hereunder even when Buyer has been given the opportunity to
participate or has, in fact, participated pursuant to Article
3.4(f).
4B.4 If
such matter or thing continues, or is likely to continue, to be materially
inconsistent at Closing the Parties shall nevertheless, if practicable, proceed
with the assignment and transfer of the Buyer Participating Interest; provided
that in the case of such matter or thing being materially inconsistent with the
warranties of the Seller as Warrantor, and the Seller as Warrantor having been
given the opportunity to remove such material inconsistency and such matter or
thing continuing, or being likely to continue to be, materially inconsistent at
Closing and which matter or thing would, in the reasonable opinion of the Buyer
as Warrantee, materially affect the value of the Buyer Participating
Interest then, unless the Parties can agree to their mutual satisfaction and
prior to Closing suitable amendments to this Agreement to reflect any diminution
in the value of the Buyer Participating Interest, the Buyer as Warrantee may
elect, by written notice to the Seller as Warrantor either (i) to proceed to
Closing, or (ii) to rescind this Agreement prior to Closing in which event such
rescission shall be its sole remedy and it shall have no subsequent right to
pursue damages or any other remedy whether at law or in equity.
4B.5 Where
a representation or warranty is qualified by the words “so far as the
Seller/Buyer is aware”, or any similar expression, the Warrantor acknowledges
that it has represented to the Warrantee that such representation or warranty
has been so qualified after due enquiry of those senior employees or agents of
the Warrantor or its Affiliated Companies who are, have been, or prior to
Closing are, responsible for commercial, operational, technical, tax and legal
matters relating to the Buyer Participating Interest and that the Warrantor has
used its reasonable endeavours to ensure that the statement contained in that
representation or warranty is accurate.
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ARTICLE
V
PURCHASE
PRICE
5.1 Purchase
Price. The
total purchase price is nineteen million five-hundred and eighty thousand United
States Dollars (US$19,580,000) (“Purchase Price”) payable within ten (10) days
following execution of the PSC Clarification by all parties thereto, including
the Government, and its entry into full legal effect pursuant to the laws of the
Republic of Guinea as follows:
(a) Five
million United States Dollars (US$5,000,000) in cash to Seller’s nominated bank
account via wire transfer; and
(b) Fourteen
million five-hundred and eighty thousand United States Dollars (US$14,580,000)
payable, at Buyer’s sole option, in either cash to Seller’s nominated bank
account via wire transfer or in new ordinary shares of UK£0.15 each in Xxxx
Petroleum plc issued and allotted to Seller (or its stated nominees), to the
value of US$14,580,000, such shares to be valued at the average mid point
closing price for the five trading days immediately preceding the day on which
the payment referred to above is made and the US$ figure being converted to UK£
for this purpose using the US$/UK£ spot rate as quoted in the “Financial
Times”
averaged over the same five day period as that used for calculating the share
value. Any shares so issued shall be issued by Xxxx Petroleum
plc credited as fully paid and shall rank pari passu with the existing
ordinary shares in Xxxx Petroleum plc in all respects. No additional
restrictions or encumbrances over and above those applicable to existing
ordinary shares shall be applied to such shares by Xxxx Petroleum plc which
would prevent their immediate sale by Seller on the open market.
For the
avoidance of any doubt, in the event that the PSC Clarification is required to
be approved or ratified, following execution, by act of parliament or any other
equivalent governmental decree or process of the Republic of Guinea, then no
payment shall be due pursuant to this Article 5.1 until such approval or
ratification has occurred, provided that, should Buyer
not make the payment required pursuant to this Article 5.1 within eighteen (18)
months of Closing and the Parties have engaged in all reasonable efforts to
conclude the PSC Clarification as soon as reasonably practicable, Seller shall
have the right, in its sole discretion, upon written notice to Buyer, to buy
back the Buyer Participating Interest by tendering, within thirty (30) days of
the notice, full reimbursement to Buyer for all payments made by Buyer on or
after the Effective Date, less any balancing payment due in respect of GSI
Agreement solely as a result of the transfer of the GSI seismic data to Buyer as
set forth in Article 3.2 (c). Nothing in the previous sentence
prevents or is intended to prevent the Buyer, upon receipt of Seller’s notice to
buy back the Buyer Participating Interest, from making a counteroffer to buy
Seller’s then-existing interest under the PSC.
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ARTICLE
VI
CONDITIONS
PRECEDENT AND CLOSING
6.1 Conditions
Precedent. The obligation of the Parties to consummate the
sale and purchase of the Buyer Participating Interest is subject to the
satisfaction of the following conditions (the “Conditions
Precedent”):
(a) Execution
of all the Definitive Agreements, it being acknowledged that the Definitive
Agreements (other than this Agreement) shall not be executed until
Closing.
(b) Receipt
of all necessary Government approvals and consents (deemed or otherwise),
including approval, where required, of the Definitive Agreements and any and all
other ancillary documents of transfer and recordation.
(c) Receipt
of all necessary approvals and consents by relevant third parties including
approval, where required, of the Definitive Agreements and any and all other
ancillary documents of transfer and recordation.
If any of
the Conditions Precedent (other than, firstly, any Conditions Precedent that
have been appropriately waived on or prior to such date and, secondly, the
Condition Precedent set forth at Article 6.1(a) which shall be fulfilled at
Closing), has not been satisfied by 31 January 2010, or by such later date as
the Parties may agree in writing, this Agreement shall terminate on that date
with the exception of the provisions of Articles 7, 8.5, and 8.6 which shall
continue to apply between the Parties notwithstanding such
termination.
Each of
the Parties shall each use all reasonable endeavours to obtain fulfillment of
the Conditions Precedent as soon as reasonably practicable after the Effective
Date and shall provide all reasonable assistance to the other Party to achieve
fulfillment of the Conditions Precedent, and shall keep the other Party informed
of progress in fulfilling the Conditions Precedent.
6.2 Date of
Closing. Unless otherwise mutually agreed by the Parties,
closing of the transactions contemplated by this Agreement (the “Closing”) shall
take place on the third business day following the first date on which all of
the Conditions Precedent have been met (other than, firstly, any Conditions
Precedent that have been appropriately waived on or prior to such date and,
secondly, the Condition Precedent set forth at Article 6.1(a) which shall be
fulfilled at Closing).
6.3 Time and Place of
Closing. The Closing shall be held at the offices of Seller in
Houston, Texas beginning at 0900 Central Time, or at such other time and place
as the Parties may mutually agree in writing (which may include virtual or
remote Closing by telephone and email).
6.4 Closing
Obligations. At Closing, the following events shall
occur, each being deemed to have occurred simultaneously with the
others:
(a) Seller
shall deliver the Assignment of Participating Interest and the PSC Assignment
duly executed by all parties thereto other than Buyer, necessary to convey the
Buyer Participating Interest to Buyer.
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(b) Buyer
shall execute the Assignment of Participating Interest and the PSC
Assignment.
(c) Seller
shall deliver the JOA duly executed by all parties thereto other than Seller and
Buyer, and the Parties shall each execute the JOA and any other documentation
agreed pursuant to this Agreement in agreed form and do all such other acts and
things as may be reasonably required in order to complete the transfer of the
Buyer Participating Interest to the Buyer.
ARTICLE
VII
TERMINATION
7.1 No Termination; Specific
Performance. This Agreement may not be terminated by either
Party except as expressly provided in this Agreement. The Parties
agree that money damages may not be an adequate remedy for any breach of this
Agreement and, notwithstanding Article 8.6, in the event that a Party breaches,
or threatens to breach, this Agreement the non-breaching Party may pursue any
and all available remedies at law and equity, including but not limited to
specific performance, and the breaching Party shall pay the non-breaching
Party’s costs and legal expenses in connection with any successful enforcement
action due to such breach.
ARTICLE
VIII
MISCELLANEOUS
8.1 Indemnities.
(a) Seller
shall indemnify and hold harmless Buyer from and against all claims, costs,
expenses, liabilities, and obligations arising from or attributable to all
matters connected with or arising in, on or under the Buyer Participating
Interest, the PSC or the Contract Area attributable, on an Accruals Basis, to
the period of time prior to Closing, REGARDLESS OF
WHETHER ANY OF THE ABOVE ARE ATTRIBUTABLE TO THE NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL FAULT OR RESPONSIBILITY OF BUYER, SELLER, OR ANY OTHER
PERSON.
(b) Seller
shall indemnify and hold harmless Buyer from and against any and all claims,
liabilities, and obligations resulting from the failure of any of the
representations, warranties and covenants contained in Article III of this
Agreement to have been true when made and as of Closing, REGARDLESS OF
WHETHER ANY OF THE ABOVE ARE ATTRIBUTABLE TO THE NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL FAULT OR RESPONSIBILITY OF BUYER, SELLER, OR ANY OTHER
PERSON.
(c) Buyer
shall indemnify and hold harmless Seller from and against any and all claims,
liabilities, and obligations resulting from the failure of any of the
representations and warranties contained in Article IV of this Agreement to have
been true when made and as of Closing, REGARDLESS OF
WHETHER ANY OF THE ABOVE ARE ATTRIBUTABLE TO THE NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL FAULT OR RESPONSIBILITY OF BUYER, SELLER, OR ANY OTHER
PERSON.
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(d) The
maximum aggregate liability of the indemnifying Party in respect of claims,
liabilities, and obligations pursuant to Article 8.1 (b) or (c) shall not
exceed:
(i) Five
Million U.S. Dollars (US$5,000,000) in respect of the representations and
warranties set forth in Article 3.2; and
(ii) the
Purchase Price in respect of all representations, warranties and covenants set
forth in Articles III and IV other than those set forth in Article
3.2.
(e) The
indemnifying Party shall not be required to indemnify the indemnified Party in
respect of any claim, liability, or obligation pursuant to Article 8.1 (b) or
(c) in respect of which the amount of such individual claim, liability, or
obligation is less than Fifty Thousand US Dollars ($50,000) and any such
individual claim shall also be ignored for the purposes of Article
8.1(f).
(f) The
indemnifying Party shall not be required to indemnify the indemnified Party in
respect of any claim, liability, and obligation pursuant to Article 8.1 (b) or
(c) until the aggregate of such claims, liabilities, and obligations exceeds Two
Hundred Thousand US Dollars ($200,000),
in which event the indemnifying Party shall be liable for the whole sum claimed
and not merely the excess.
8.2 Further
Assurances. From time to time after Closing, the Parties shall
each execute, acknowledge and deliver to the other such further instruments and
take such other action as may be reasonably requested in order to accomplish
more effectively the purposes of the transactions contemplated by this
Agreement.
8.3 Notices.
All
notices shall be addressed as follows:
If to
Buyer:
Xxxx
Xxxxxx
Manager
International Business and New Ventures
00 Xxxxxx
Xxxxx
Xxxxxxxx,
XX00 0XX, Xxxxxxxx, XX
Telephone:
x00 0000 000 000
Facsimile:
x00 0000 000 000
If to
Seller:
Xxx
Xxxxxxx, President and Chief Executive Officer
Hyperdynamics
Corporation
Xxx Xxxxx
Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxx
Xxxx, Xxxxx 00000, XXX
Telephone:
x0 000 000 0000
Facsimile:
x0 000 000 0000
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With copy
to:
Xxxxxx X.
Xxxxxxxx
Xxxxxx X.
Xxxxxxx
XXXXXX
XXXXX LLP
0000
Xxxxxxxxxx Xxxxxx
Xxxxx
0000
Xxxxxx,
XX 00000
Telephone:
x0 000 000 0000
Facsimile:
x0 000 000 0000
Any Party
may, by written notice so delivered to the other Party, change the address or
individual to which delivery shall thereafter be made. All notices
and communications with respect to this Agreement shall be in
writing. Any communication or delivery hereunder shall be deemed to
have been duly made and the receiving Party charged with notice (i) if
personally delivered, when received, (ii) if sent by telecopy or facsimile
transmission, on the first business day on or after which such facsimile is
successfully transmitted and received, (iii) if mailed, three
business days after mailing, certified mail, return receipt requested, or (iv)
if sent by overnight courier, the first business day on or after such notice is
sent by overnight courier.
8.4 Buyer
Participating
Prior to Execution of All Definitive
Agreements. Notwithstanding any other provisions hereof, Buyer
shall be entitled to participate fully with Seller in the evaluation of
technical data leading to direction and interpretation of geological and
geophysical data during that period between the Effective Date and Closing and,
furthermore, shall participate fully during such period in the preparation for
negotiations with the Ministry regarding the terms of the PSC Clarification;
shall be kept fully appraised of the progress of such negotiations; and, subject
to Ministry consent, shall be entitled to participate in such
negotiations. Such negotiations shall be commenced as soon as
reasonably practicable following the Effective Date.
8.5 Confidentiality; Press
Releases. The terms and conditions of the Confidentiality Agreement
entered into by Buyer and SCS on September 8, 2008, which is attached hereto as
Exhibit D, are incorporated by reference into this Agreement and shall apply,
mutatis mutandis, with
regard to all information exchanged or developed hereunder, provided that, the foregoing
confidentiality provisions shall be superseded by confidentiality provisions in
the JOA when inconsistent with same. Notwithstanding the foregoing, neither
Party shall be prohibited, in any event, from making any disclosure if it is
necessary to do so in order to comply with the applicable laws, rules, or
regulations of any governmental entity, court, or stock exchange having
jurisdiction over such Party or any of its Affiliated Companies.
Neither
Party may issue press releases, public communications or public statements
regarding the existence or terms of this Agreement and matters arising in
relation hereto unless and until the other Party has been furnished with a copy
of such statement in advance and has given written approval, which shall not be
unreasonably withheld and which shall be timely given, in no case exceeding
twenty-four hours. Notwithstanding the foregoing, neither Party shall
be prohibited, in any event, from making any press release, public communication
or public statement if it is necessary to do so in order to comply with the
applicable laws, rules, or regulations of any governmental entity, court, or
stock exchange having jurisdiction over such Party or any of its Affiliated
Companies.
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8.6 Choice of
Law. This Agreement and the transactions contemplated herein,
and any dispute pursuant hereto shall be subject to and construed in accordance
with, and governed by, the laws of the State of Texas without reference to the
conflict of laws principles thereof, provided that, the choice of
governing law shall, unless the Parties agree otherwise, be deemed amended to be
the same as that set out in any binding sales and purchase agreement in relation
to an interest in the PSC entered into hereafter by Seller (or any Affiliated
Company of Seller) with Repsol Exploración S.A. (or any Affiliated Company of
Repsol Exploración S.A.), and Seller undertakes to notify Buyer promptly should
such deemed amendment occur. Subject to Article 7.1, any dispute
arising out of or relating to this Agreement, including any question regarding
its existence, validity or termination, which cannot be amicably resolved by the
Parties, shall be settled by arbitration in accordance with the International
Arbitration Rules of the American Arbitration Association (“AAA”) by three
arbitrators or, if both Parties agree, by a sole arbitrator, appointed in
accordance with the said Rules. The arbitration proceedings shall be
held in London, England and shall be conducted in the English
language. Awards shall be reduced to writing,
and shall be final and binding on the Parties without the right of appeal and
may include interim or provisional remedies and injunctive relief, both
temporary and permanent. The Parties undertake to carry out the award
without delay. Judgement upon the award may be entered in any court
having jurisdiction. A dispute shall be deemed to have arisen when
either Party notifies the other Party in writing to that effect.
Any party
to the dispute may apply to a court for interim measures (i) prior to the
constitution of the arbitral tribunal (and thereafter as necessary to enforce
the arbitral tribunal’s rulings); or (ii) in the absence of the jurisdiction of
the arbitral tribunal to rule on interim measures in a given
jurisdiction. The Parties agree that seeking and obtaining such
interim measures shall not waive the right to arbitration. The
arbitrators (or in an emergency the presiding arbitrator acting alone in the
event one or more of the other arbitrators is unable to be involved in a timely
fashion) may grant interim measures including injunctions, attachments and
conservation orders in appropriate circumstances, which measures may be
immediately enforced by court order. Hearings on requests for interim
measures may be held in person, by telephone, by video conference or by other
means that permit the parties to the dispute to present evidence and
arguments.
8.7 Costs and
Expenses. Each Party shall
be liable for its own legal, accounting and other costs and expenses incurred by
it in connection with the undertakings associated with this Agreement, including the negotiation and
execution of Definitive Agreements. Notwithstanding the
foregoing, any stamp duty, excise, sales or equivalent tax due to the Government
based on the value of, or which becomes chargeable as a result of, the
transactions contemplated by this Agreement or on any of the Definitive
Agreements shall be paid by the Parties (and where applicable any third party),
pro rata to their post-Closing participating interests.
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8.8 Taxation. Each
Party shall be responsible for reporting and discharging its own tax measured by
the profit and income of the Party and the satisfaction of such Party’s share of
all contractual obligations under the PSC and under this
Agreement. Each Party shall protect, defend and indemnify each other
Party from any and all loss, cost or liability arising from the indemnifying
Party’s failure to report and discharge such taxes or satisfy such obligations.
The Parties intend that all income and all tax benefits (including deductions,
depreciation, credits and capitalisation) with respect to the expenditures made
by the Parties hereunder will be allocated by the Government tax authorities to
the Parties based on the share of each tax item actually received or borne by
each Party. If such allocation is not accomplished due to the
application of law or other Government action, the Parties shall attempt to
adopt mutually agreeable arrangements that will allow them to achieve the
financial results intended. If interpretation or enforcement of the
laws of the Republic of Guinea or the PSC by the Government imposes joint and
several liability on the Parties for any levy, charge or tax, the Parties agree
to cross indemnify each other to the extent that such levy, charge or tax is
owed by one Party individually.
8.9 Counterparts and Facsimile and
Electronic Signatures. This Agreement may be executed and
delivered by the Parties (in original form or by facsimile or emailed pdf scan)
in counterparts, each of which shall be deemed an original instrument, but all
of which together shall constitute the same instrument, provided that this
Agreement shall not be effective until each Party has executed and delivered a
counterpart. Facsimile
signatures and electronically generated or scanned signatures shall be
considered binding.
8.10 Amendments. This
Agreement may not be amended or any rights hereunder waived except by an
instrument in writing signed by the Parties.
8.11 Assignment. This
Agreement and the rights and obligations herein may not be assigned by a Party,
in whole or in part, without the prior written consent of the other Party (which
consent shall not be unreasonably withheld or delayed). In the event
that consent is given to assignment to an Affiliated Company of a Party, the
assigning Party hereby guarantees to the other Party and shall procure the due
performance by such Affiliated Company of its obligations pursuant to this
Agreement.
8.12 No Third Party
Beneficiaries. This Agreement is intended to benefit only the
Parties and their respective permitted successors and assigns.
8.13 Successors and
Assigns. This
Agreement shall be binding upon and shall inure to the benefit of the Parties
and their respective successors and permitted assigns.
8.14 Compliance With U.S. and
International Laws Governing Sanctions and Corrupt Practices.
Each Party represents that, to the best of its knowledge and belief, it
is not subject to economic or other sanctions imposed under the laws
of the United States or treaties or conventions of the United Nations
and is eligible to receive exports from the United States under the laws of
the United States.
8.15 Entire
Agreement. This Agreement constitutes the entire understanding
among the Parties with respect to the subject matter hereof, superseding all
negotiations, prior discussions and prior agreements and understandings relating
to such subject matter, including the LOI, which shall be superseded in its
entirety by this Agreement and shall terminate of even date
herewith.
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8.16 Binding
Effect. This Agreement shall be binding upon, and shall inure
to the benefit of the Parties and their respective successors and
assigns.
8.17 Survival. This
Agreement shall remain in full force and effect notwithstanding
Closing.
The
Parties have executed this SALE
AND PURCHASE AGREEMENT on the Effective Date.
HYPERDYNAMICS
CORPORATION
By:
/s/ Xxx Xxxxxxx
Xxx
Xxxxxxx
President
and Chief Executive Officer
XXXX
PETROLEUM (E&P) LIMITED
By:
/s/ Xxxxxx X. Xxxxx
Xxxxxx X.
Xxxxx
Technical
& Commercial Director
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