Exhibit 10.33
STOCK PURCHASE AGREEMENT
by
and
among
PT MEDCO ENERGI INTERNASIONAL TBK.,
EEX INTERNATIONAL, INC.,
and
ENSERCH FAR EAST LTD.
Dated: March 11, 2002
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS..................................................................... 1
ARTICLE 2. PURCHASE AND SALE OF SHARES..................................................... 7
2.1 Purchase and Sale of Shares............................................. 7
2.2 Purchase Price.......................................................... 7
2.3 The Closing............................................................. 7
2.4 Deliveries at the Closing............................................... 8
ARTICLE 3. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION....................... 9
3.1 Representations and Warranties of Seller................................ 9
3.2 Representations and Warranties of Buyer................................. 10
ARTICLE 4. REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY........................... 11
4.1 Corporate Status........................................................ 11
4.2 Power and Authority; Enforceability..................................... 11
4.3 No Violation............................................................ 12
4.4 Brokers' Fees........................................................... 12
4.5 Capitalization.......................................................... 12
4.6 Records................................................................. 12
4.7 Company Subsidiaries.................................................... 12
4.8 Financial Statements.................................................... 12
4.9 Subsequent Events....................................................... 13
4.10 Legal Compliance........................................................ 14
4.11 Tax Matters............................................................. 14
4.12 Real Property........................................................... 14
4.13 Contracts............................................................... 14
4.14 Litigation.............................................................. 15
4.15 Employees............................................................... 15
4.16 Employee Benefits....................................................... 16
4.17 Permits................................................................. 16
4.18 Environmental, Health and Safety Matters................................ 16
4.19 Foreign Corrupt Practices Act Compliance................................ 16
4.20 Certain Assets Used by the Company...................................... 16
4.21 Current Drilling Commitments............................................ 16
4.22 Bankruptcy.............................................................. 17
4.23 No Other Representations................................................ 17
ARTICLE 5. PRE-CLOSING COVENANTS........................................................... 17
5.1 General................................................................. 17
5.2 Notices and Consents.................................................... 17
5.3 Operation of Business................................................... 18
5.4 Full Access............................................................. 18
5.5 Notice of Developments.................................................. 19
5.6 Affiliated Transactions................................................. 19
5.7 Operation of Properties................................................. 19
5.8 Commitments............................................................. 19
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ARTICLE 6. POST-CLOSING COVENANTS............................................................ 20
6.1 General................................................................... 20
6.2 Litigation Support........................................................ 20
6.3 Transition................................................................ 20
6.4 Taxes..................................................................... 21
ARTICLE 7. CLOSING CONDITIONS................................................................ 22
7.1 Conditions Precedent to Obligation of Buyer............................... 22
7.2 Conditions Precedent to Obligation of the Seller Parties.................. 23
ARTICLE 8. TERMINATION....................................................................... 23
8.1 Termination of Agreement.................................................. 23
8.2 Effect of Termination..................................................... 24
ARTICLE 9. INDEMNIFICATION................................................................... 24
9.1 Survival of Representations and Warranties................................ 24
9.2 Indemnification Provisions for Buyer's Benefit............................ 25
9.3 Indemnification Provisions for Seller's Benefit........................... 25
9.4 Indemnification Claim Procedures.......................................... 25
9.5 Notice of Claim........................................................... 26
9.6 Limitations on Indemnification Liability.................................. 26
9.7 Other Indemnification Provisions.......................................... 27
ARTICLE 10. REPRESENTATION DEFECTS........................................................... 27
10.1 Asserted Defects.......................................................... 27
10.2 Certain Adjustments to Purchase Price..................................... 28
10.3 Arbitration............................................................... 29
ARTICLE 11. MISCELLANEOUS.................................................................... 30
11.1 Schedules................................................................. 30
11.2 Entire Agreement.......................................................... 30
11.3 Successors................................................................ 30
11.4 Assignments............................................................... 31
11.5 Notices................................................................... 31
11.6 Binding Arbitration....................................................... 32
11.7 Time...................................................................... 33
11.8 Counterparts.............................................................. 33
11.9 Headings.................................................................. 33
11.10 Governing Law............................................................. 34
11.11 Amendments and Waivers.................................................... 34
11.12 Severability.............................................................. 34
11.13 Expenses.................................................................. 34
11.14 Construction.............................................................. 34
11.15 Incorporation of Exhibits and Schedules................................... 35
11.16 Remedies.................................................................. 35
11.17 Electronic Signatures..................................................... 35
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ATTACHMENTS
Exhibits
Exhibit A Form of Adjusted Purchase Price Certificate
Exhibit B Form of Seller's Officers' Certificate
Exhibit C Form of Seller's Secretary's Certificate
Exhibit D Form of Buyer's Officers' Certificate
Schedules
Schedule 3.2(c) Required Buyer Consents
Schedule 4.1 Company's Officers and Directors
Schedule 4.3 Required Company Consents
Schedule 4.8 Financial Statements
Schedule 4.9 Subsequent Events
Schedule 4.13 Contracts
Schedule 4.14 Litigation
Schedule 4.21 Current Drilling Commitments
Schedule 5.6 Surviving Affiliate Contracts
Schedule 5.8(e) Budget
Schedule 7.1(d) Sellers Parties' Closing Consents
Schedule 7.2(d) Buyer Closing Consents
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated March 11,
2002, is by and among (i) PT MEDCO ENERGI INTERNASIONAL TBK. ("Buyer"), (ii) EEX
International, Inc., a Texas corporation ("Seller"), and (iii) Enserch Far East
Ltd., a Cayman Islands company limited by shares and a wholly-owned subsidiary
of Seller (the "Company" and, together with Seller, the "Seller Parties").
RECITALS:
A. Seller owns all of the outstanding capital stock of the Company.
B. Buyer desires to purchase from Seller all of the outstanding
capital stock of the Company, and Seller desires to sell to Buyer all of the
outstanding capital stock of the Company, in accordance with this Agreement's
terms and conditions.
C. Buyer and the Seller Parties (the "Parties") intend for the
purchase and sale of the Shares (as defined) to be treated as a taxable purchase
for tax purposes.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants contained herein, Buyer and each Seller Party agree as follows:
ARTICLE 1.
DEFINITIONS
"Action" means any action, appeal, petition, plea, charge, complaint,
claim, suit, demand, litigation, arbitration, mediation, hearing, inquiry, or
proceeding.
"Adjustment Amount" is defined in Section 10.2(a).
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"Adjusted Purchase Price" is defined in Section 2.2(b).
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"Adjusted Purchase Price Certificate" is defined in Section 2.4(a)(i).
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"AFEs" is defined in Section 4.9.
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"Affiliate" or "Affiliated" with respect to any specified Person,
means a Person that, directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, such specified
Person. For this definition, "control" (and its derivatives) means the
possession, directly or indirectly, or as trustee or executor, of the power to
direct or cause the direction of the management and policies of a Person,
whether through ownership of voting Equity Interests, as trustee or executor, by
contract or credit arrangements or otherwise.
"Agreement" is defined in the preamble to this Agreement.
"Asserted Defects" is defined in Section 10.1(a).
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"Balance Sheet Date" is defined in Section 4.8.
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"Buyer" is defined in the preamble to this Agreement.
"Buyer Controlled Tax Proceeding" is defined in Section 6.4(b)(i).
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"Buyer Indemnified Parties" means Seller and its officers, directors,
managers, employees, agents, representatives, controlling Persons, shareholder,
and their Affiliates.
"Claim Notice" is defined in Section 9.5.
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"Closing" is defined in Section 2.3.
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"Closing Date" is defined in Section 2.3.
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"Code" means the Internal Revenue Code of 1986.
"Commercially Reasonable Efforts" means efforts that are designed to
enable a Party, directly or indirectly, to satisfy a condition to, or otherwise
assist in the consummation of, the Transactions and that do not require the
performing Party to expend any funds or assume liabilities other than
expenditures and liabilities that are customary and reasonable in nature and
amount in the context of the Transactions.
"Commitment" means (a) options, warrants, convertible securities,
exchangeable securities, subscription rights, conversion rights, exchange
rights, or other contracts that could require a Person to issue any of its
Equity Interests or to sell any Equity Interests it owns in another Person; (b)
any other securities convertible into, exchangeable or exercisable for, or
representing the right to subscribe for any Equity Interest of a Person or owned
by a Person; (c) statutory pre-emptive rights or pre-emptive rights granted
under a Person's Organizational Documents; and (d) stock appreciation rights,
phantom stock, profit participation, or other similar rights with respect to a
Person.
"Company" is defined in the preamble to this Agreement.
"Consent" means any consent, approval, notification, waiver, or other
similar Action that is necessary or convenient.
"Controlling Party" is defined in Section 6.4(b)(ii).
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"Damages" means all damages, losses, liabilities, payments, amounts
paid in settlement, obligations, fines, penalties, and other costs (including
reasonable and necessary fees and expenses of outside attorneys, accountants and
other professional advisors and of expert witnesses) and other costs of
litigation in connection with any Action.
"Defect Date" is defined in Section 10.1(a).
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"Disputes" is defined in Section 11.6(a)
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"Encumbrance" means any security interest, contract, easement,
covenant, community property interest, equitable interest, right of first
refusal, or restriction, including any material restriction on use, voting,
transfer, receipt of income, or exercise of any other material attribute of
ownership.
"Enforceable" - a contract is "Enforceable" if it is the legal, valid,
and binding obligation of the applicable Person enforceable against such Person
in accordance with its terms, except as such enforceability may be subject to
the effects of bankruptcy, insolvency, reorganization, moratorium, or other laws
relating to or affecting the rights of creditors, and general principles of
equity.
"Environmental Defect" means, with respect to the Property in
question, (a) any hazardous substances stored or located on a Property in
violation of any Orders or laws enacted by any Governmental Body of Indonesia;
or (b) any such Property that has been cited by any Governmental Body of
Indonesia for noncompliance with any existing regulations or Permits for
protection of the environment governing such Property, to the extent that any of
the foregoing arise out of or pertain to operations conducted by the Company on
the Properties prior to the Closing Date; provided, however, that "Environmental
Defects" shall not include risks that are inherent in normal, prudent oil and
gas production and gathering operations in compliance with laws and regulations
applicable to the Properties.
"Environmental, Health, and Safety Requirements" means all Orders and
laws enacted by any Governmental Body of Indonesia concerning or relating to
public health and safety, worker/occupational health and safety, and pollution
or protection of the environment, including those relating to the presence, use,
production, generation, handling, transportation, treatment, recycling,
transfer, storage, disposal, processing, discharge, release, control, or other
action or failure to act involving cleanup of any hazardous materials,
substances or wastes, chemical substances or mixtures, pollutants, contaminants,
toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated
biphenyls, noise, or radiation, each as amended and as now in effect.
"Equity Interest" means (a) with respect to a corporation, any and all
shares of capital stock, (b) with respect to a partnership, limited liability
company, trust or similar Person, any and all units, interests or other
partnership/limited liability company interests, and (c) any other direct equity
ownership or participation in a Person.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means each business or entity which is a member of a
"controlled group of corporations," under "common control" or an "affiliated
service group" with the Company within the meaning of Sections 414(b), (c) or
(m) of the Code, or required to be aggregated with the Company under Section
414(o) of the Code, or is under "common control" with the Company, within the
meaning of Section 4001(a)(14) of ERISA.
"Evaluation Date" means 7:00 AM, on September 30, 2001.
"Expenses" means direct, out of pocket expenses incurred in the
ownership and operation of the Properties, exclusive of any administrative or
other general expenses.
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"Expiration Date" means December 31, 2001.
"Financial Statements" is defined in Section 4.8.
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"Foreign Corrupt Practices Act" means the Foreign Corrupt Practices
Act of 1977.
"Governmental Body" means any legislature, agency, bureau, branch,
department, division, commission, court, tribunal, magistrate, justice, multi-
national organization, quasi-governmental body, or other similar recognized
organization or body of any federal, state, county, municipal, local, or foreign
government or other similar recognized organization or body exercising similar
powers or authority.
"Indemnification Claim" is defined in Section 9.4.
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"Indemnified Parties" means, individually and as a group, the Buyer
Indemnified Parties and the Seller Indemnified Parties.
"Indemnitor" means any Party having any liability to any Indemnified
Party under this Agreement.
"Interim Financial Statements" is defined in Section 4.8.
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"Knowledge" means with respect to (a) the Seller Parties, the actual
conscious knowledge of the following individuals with no investigation other
than owning and operating the Company in the historical course of their
business: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ and (b)
Buyer, the actual conscious knowledge of the following individuals with no
investigation other than performing their duties for Buyer in the historical
course of such duties: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Sugiharto and Rashid I Mangunkusumo.
"Material Adverse Change (or Effect)" means a change (or effect) in
the condition (financial or otherwise), properties, assets, liabilities, rights,
obligations, operations, or business which change (or effect), individually or
in the aggregate, could reasonably be expected to be materially adverse to such
condition, properties, assets, liabilities, rights, obligations, operations, or
business.
"Material Company Contract" means each of (a) the Production Sharing
Contract, dated February 29, 1988, by and between PERTAMINA and Trend East Java
Limited, for the exploration for and exploitation of hydrocarbons on the Tuban
Block area, onshore Northeast Hava, Indonesia, and (b) the Participation
Agreement, as amended, dated February 29, 1988, among Trend East Java Limited,
TOTAL Tuban, the Company, and RSR (Tuban) Pty. Ltd., which governs all
operations for the exploration for and exploitation of hydrocarbons on the ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, through which the Company owns an
undivided participating interest related to the Production Sharing Contract
described in (a) above.
"Order" means any order, ruling, decision, verdict, decree, writ,
subpoena, mandate, precept, command, directive, consent, approval, award,
judgment, injunction, or other similar determination or finding by, before any
Governmental Body or arbitrator.
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"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity,
quality and frequency) of the relevant Person and its subsidiaries.
"Organizational Documents" means the articles of incorporation, certificate
of incorporation, charter, bylaws, articles of formation, regulations, operating
agreement, certificate of limited partnership, partnership agreement, and all
other similar documents, instruments or certificates executed, adopted, or filed
in connection with the creation, formation, or organization of a Person,
including any amendments thereto.
"Parties" is defined in the preamble to this Agreement.
"Permit" means any permit, license, certificate, approval, consent, notice,
waiver, franchise, registration, filing, accreditation, or other similar
authorization required by any law, or Governmental Body.
"Person" means any individual, partnership, limited liability company,
corporation, association, joint stock company, trust, entity, joint venture,
unincorporated organization, or Governmental Body.
"PERTAMINA" means Perusahaan Pertambangan Minyak ▇▇▇ Gas Bumi Negara, an
Indonesia State Enterprise established on the basis of Law ▇▇. ▇/▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇.
"Properties" means, collectively, the properties subject of the Material
Company Contracts, the ▇▇▇▇▇ and associated equipment located thereon, and all
related properties, rights, and interests.
"Property Records" means, collectively, (i) either Seller Party's
production records, well files, maps, surveys, electric logs, seismic records,
geological and geophysical data, together with all other files, third party
contracts, documents, manuals and records, related to the Properties, other than
until the Closing documents subject to the attorney-client privilege, and (ii)
copies of either Seller Party's accounting and tax records pertaining to the
Properties, including computer stored data and records.
"Purchase Price" is defined in Section 2.2(a).
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"Representation Defect" is defined in Section 10.1(a).
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"Representation Defect Amount" is defined in Section 10.1(a).
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"Representation Defect Notice" is defined in Section 10.1(a).
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"Schedules" means the Schedules to this Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933.
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"Seller" is defined in the preamble to this Agreement.
"Seller Controlled Tax Proceeding" is defined in Section 6.4(b)(i).
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"Seller Indemnified Parties" means Buyer and its officers, directors,
managers, employees, agents, representatives, controlling Persons, and
shareholders.
"Seller Indemnified Parties Threshold Amount" is defined in Section
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9.6(a)(ii).
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"Seller Parties" is defined in the preamble to this Agreement.
"Share" means any issued and outstanding share of the common stock, par
value $1 per share, of the Company.
"Straddle Tax Proceeding" is defined in Section 6.4(b)(i).
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"Substances" means all severed crude oil, natural gas, casinghead gas, drip
gasoline, natural gasoline, petroleum, natural gas liquids, condensate,
products, liquids and other hydrocarbons and other minerals or materials of
every kind and description.
"Tax" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental customs, ad valorem, duties, capital stock,
franchise, profits, withholding, social security, unemployment, disability, real
property, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum tax, including any interest, penalty, or addition
thereto.
"Tax Proceeding" is defined in Section 6.4(b)(i).
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"Termination Date" means the earlier to occur of (a) the Expiration Date
and (b) the date on which this Agreement is terminated pursuant to Section 8.1
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(other than Section 8.1(b)).
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"Transaction Documents" means this Agreement and any documents or
instruments executed or entered into by any of the Parties in connection
herewith.
"Transactions" means all of the transactions contemplated by this
Agreement, including: (a) the sale of the Shares by Seller to Buyer and Buyer's
delivery of the Purchase Price therefor; (b) the execution, delivery, and
performance of all of the documents, instruments and agreements to be executed,
delivered, and performed in connection herewith; and (c) the performance by
Buyer and Seller Parties of their respective covenants and obligations (pre- and
post-Closing) under this Agreement.
"UNCITRAL" means the United Nations Commission on International Trade Law.
"$" means the currency of the United States of America.
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ARTICLE 2.
PURCHASE AND SALE OF SHARES
2.1 Purchase and Sale of Shares.
On and subject to the terms and conditions of this Agreement, Buyer agrees
to purchase from Seller, and Seller agrees to sell to Buyer, all of the Shares
for the consideration specified in Section 2.2, free from Encumbrances, together
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with all rights, titles and interests now or hereafter attaching to them at the
Closing.
2.2 Purchase Price.
(a) The purchase price for the Shares is $33,986,516.95 (the
"Purchase Price").
(b) Purchase Price Adjustments. The Purchase Price will be subject
to the following adjustments (as adjusted, the "Adjusted Purchase Price"):
(i) The Purchase Price will be reduced by the Adjustment
Amount to the extent such adjustments with respect thereto have been
asserted prior to the Defect Date as provided in Article 10.
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(ii) The Purchase Price will be decreased by the amount of all
proceeds received by the Company (without duplication) attributable
to the period from the Evaluation Date up to (and including) the
Closing Date that are derived from the sale of Substances produced
from the Properties and sold on or after the Evaluation Date, less
applicable production, severance and other similar Taxes, royalties,
overriding royalties and other burdens.
(iii) The Purchase Price will be increased by the amount of cash
calls from the operator of the Properties which are attributable to
the period from the Evaluation Date up to (and including) the Closing
Date and are incurred in a manner consistent with the representations
and covenants of the Seller Parties contained herein.
(iv) The Purchase Price will be reduced by the amount of
$20,000. This amount is attributable to the cash balance in the
Company's checking account.
2.3 The Closing.
The closing of the purchase and sale of the Shares (the "Closing") will
take place at the offices of Waterous & Co., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, WIK 3NE, commencing at 9:00 a.m., local time, on the second business
day following the satisfaction or waiver of all conditions to the obligations of
the Parties to consummate the purchase and sale of the Shares (other than
conditions with respect to actions the respective Parties will take at the
Closing itself) or such other date or place as Buyer and Seller may mutually
determine (the "Closing Date").
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2.4 Deliveries at the Closing.
At the Closing:
(a) Seller will deliver to Buyer:
(i) An officer's certificate, substantially in the form of
Exhibit A, duly executed on Seller's behalf, which shall set forth
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the Adjusted Purchase Price (the "Adjusted Purchase Price
Certificate").
(ii) Certificates representing the Shares, duly endorsed (or
accompanied by duly executed stock powers).
(iii) An officers' certificate, substantially in the form of
Exhibit B, duly executed on Seller's behalf, as to whether each
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condition specified in Sections 7.1(a)-7.1(d) has been satisfied in
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all respects.
(iv) A secretary's certificate, substantially in the form of
Exhibit C, duly executed on Seller's behalf.
(v) Certified resolutions of the directors and the
shareholders of the Company authorizing the registration in the
Company's register of shareholders of each transfer relating to the
Shares and of the Buyer as the holder of the Shares.
(vi) A resignation letter, effective as of the Closing Date,
from each of the Company's directors and officers and each member the
Company appointed to the operating committee for each project in
which the Company may appoint such a member, which resignation in the
case of officers and directors shall include a statement from such
individual acknowledging that he or she has no claim against the
Company for wrongful termination.
(vii) The Property Records (which delivery will be made in
Houston, Texas) and an inventory thereof in a form reasonably
satisfactory to Buyer and Seller.
(viii) Any powers of attorney (or other evidence of authority)
under which any transfer or documents are executed on behalf of
Seller or any nominee of Seller.
(ix) The original Organizational Documents of the Company,
certified by the appropriate Cayman Islands authority where
applicable.
(x) The Company's register of shareholders and all other
minute or record books of the Company.
(xi) The Company's official seal.
(b) Buyer will deliver to Seller:
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(i) The Adjusted Purchase Price, by wire transfer to
Southwest Bank of Texas, N.A., ABA # :▇▇▇▇▇▇▇▇▇, Cr: EEX
Corporation, account:297895; Swift Code: ▇▇▇▇▇▇▇▇.
(ii) An officers' certificate, substantially in the form
of Exhibit D, duly executed on Buyer's behalf, as to whether each
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condition specified in Section 7.2(a)-7.2(d) has been satisfied in
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all respects.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
CONCERNING THE TRANSACTION
3.1 Representations and Warranties of Seller.
Seller represents and warrants to Buyer that the statements contained in
this Section 3.1 are correct and complete as of the date of this Agreement and
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will be correct and complete as of the Closing Date (as though made then, except
as expressly provided in a representation or warranty, and as though the Closing
Date were substituted for the date of this Agreement throughout this Section
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3.1).
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(a) Status of Seller. Seller is an entity duly created, formed
or organized, validly existing, and in good standing under the laws of
the jurisdiction of its creation, formation, or organization.
(b) Power and Authority; Enforceability. Seller has the
relevant entity power and authority to execute and deliver each
Transaction Document to which Seller is a party, and to perform and
consummate the Transactions. Seller has taken all actions necessary to
authorize the execution and delivery of each Transaction Document to
which it is party, the performance of Seller's obligation's thereunder,
and the consummation of the Transactions. Each Transaction Document to
which Seller is a party has been duly authorized, executed, and delivered
by, and is Enforceable against, Seller.
(c) No Violation. The execution and the delivery by Seller of
the Transaction Documents to which Seller is a party and the performance
and consummation of the Transactions by Seller will not (i) breach any
law or Order to which Seller is subject or provision of its
Organizational Documents, (ii) breach any material contract, Order, or
Permit to which Seller is a party or by which Seller is bound or to which
any of Seller's assets is subject, or (iii) require any Consent, except
(A) any SEC and other filings required to be made by Buyer, and (B) any
notifications or filings to, or consents from, PERTAMINA.
(d) Brokers' Fees. Seller has no liability to pay any
compensation to any broker, finder, or agent with respect to the
Transactions for which Buyer or the Company could become directly or
indirectly liable.
(e) Shares; Seller Information. Seller holds of record and owns
beneficially all of the Shares, free and clear of any Encumbrances (other
than any restrictions under the Securities Act, state securities laws,
and Cayman Islands' securities laws). Seller is
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not a party to any contract that could require Seller to sell, transfer,
or otherwise dispose of any of the Shares (other than this Agreement).
Seller is not a party to any other contract with respect to the Shares.
3.2 Representations and Warranties of Buyer.
Buyer represents and warrants to Seller that the statements contained in
this Section 3.2 are correct and complete as of the date of this Agreement and
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will be correct and complete as of the Closing Date (as though made then and,
except as expressly provided in a representation or warranty, as though the
Closing Date were substituted for the date of this Agreement throughout this
Section 3.2).
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(a) Entity Status. Buyer is an entity duly created, formed or
organized, validly existing and in good standing under the laws of the
jurisdiction of its creation, formation or organization. There is no
pending or, to Buyer's Knowledge, threatened Action for the dissolution,
liquidation, insolvency, or rehabilitation of Buyer.
(b) Power and Authority; Enforceability. Buyer has the relevant
entity power and authority to execute and deliver each Transaction
Document to which it is party, and to perform and consummate the
Transactions. Buyer has taken all action necessary to authorize the
execution and delivery of each Transaction Document to which it is party,
the performance of its obligations thereunder, and the consummation of
the Transactions. Each Transaction Document to which Buyer is a party has
been duly authorized, executed and delivered by, and is Enforceable
against, Buyer.
(c) No Violation. Except as set forth on Schedule 3.2(c) the
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execution and delivery by Buyer of the Transaction Documents to which
Buyer is party and the performance and consummation of the Transactions
by Buyer will not (i) breach any law or Order to which Buyer is subject
or any provision of its Organizational Documents; (ii) breach any
material contract, Order, or Permit to which Buyer is a party or by which
it is bound or to which any of its assets is subject; or (iii) require
any Consent, except (A) any SEC and other filings required to be made by
Buyer, and (B) any notifications or filings to, or consents from,
PERTAMINA.
(d) Brokers' Fees. Buyer has no liability to pay any
compensation to any broker, finder, or agent with respect to the
Transactions for which either Seller Party could become liable.
(e) Company Review.
Buyer:
(i) Has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and
risks of its investment in the Shares contemplated hereby, and
that Buyer is able to bear the economic risk of such investment
indefinitely.
10
(ii) Has (i) had the opportunity to meet with
representative officers and other representatives of the Company
to discuss its business, assets, liabilities, financial condition,
cash flow, and operations, and (ii) received all materials,
documents and other information that it deems necessary or
advisable to evaluate the Shares and the Transactions.
(iii) Has made its own independent examination,
investigation, analysis and evaluation of the Shares, including
its own estimate of the value of the Shares.
(iv) Has undertaken such due diligence (including a
review of the Company's assets, properties, liabilities, books,
records, and contracts) as it deems adequate, including that
described above.
Nothing in this Section 3.2(e) will preclude Buyer from relying on the
--------------
representations, warranties, covenants, and agreements of the Seller Parties
herein or from pursuing its remedies with respect to a breach thereof.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
CONCERNING THE COMPANY
Each Seller Party, jointly and severally, represents and warrants to
Buyer that the statements contained in this Article 4 are correct and complete
---------
as of the date of this Agreement and will be correct and complete as of the
Closing Date (as though made then and, except as expressly provided in a
representation or warranty, as though the Closing Date were substituted for the
date of this Agreement throughout this Article 4), except as set forth in the
---------
Schedules the Seller Parties have delivered to Buyer on the date hereof.
4.1 Corporate Status.
The Company is an entity duly created, formed or organized, validly
existing, and in good standing under the laws of the jurisdiction of its
creation, formation, or organization. The Company is duly authorized to conduct
its business and is in good standing under the laws of each jurisdiction where
such qualification is required. The Company has the requisite entity power and
authority necessary to own or lease its properties and to carry on its
businesses as currently conducted. Schedule 4.1 lists the Company's directors
------------
and officers. Seller has delivered to Buyer correct and complete copies of the
Company's Organizational Documents, as amended to date. The Company is not in
breach of any provision of its Organizational Documents.
4.2 Power and Authority; Enforceability.
The Company has the relevant entity power and authority necessary to
execute and deliver each Transaction Document to which it is a party and to
perform and consummate the Transactions. The Company has taken all action
necessary to authorize the execution and delivery of each Transaction Document
to which it is a party, the performance of its obligations thereunder, and the
consummation of the Transactions. Each Transaction Document to which the
11
Company is party has been duly authorized, executed, and delivered by, and is
Enforceable against, the Company.
4.3 No Violation.
Except as listed on Schedule 4.3, the execution and the delivery of the
------------
applicable Transaction Documents by the Company and the performance of its
obligations hereunder and thereunder, and consummation of the Transactions by
the Company will not (a) breach any law or Order to which the Company is subject
or any provision of the Organizational Documents of the Company; or (b) breach
any material contract (including the Material Company Contracts), Order, or
Permit to which the Company is a party or by which it is bound or to which any
of its assets is subject (or result in the imposition of any material
Encumbrance upon any of its assets); or (c) require any Consent, except any
notifications or filings to, or consents from, PERTAMINA.
4.4 Brokers' Fees.
The Company has no liability to pay any compensation to any broker,
finder, or agent with respect to the Transactions for which Buyer or the Company
could become directly or indirectly liable.
4.5 Capitalization.
The Company's authorized Equity Interests consist of 850,000 shares of
common stock, par value $1 per share, of which 100 shares are issued and
outstanding and 0 shares are held in treasury. All of the Company's issued and
outstanding shares: (a) have been duly authorized and are validly issued, fully
paid, and nonassessable, (b) were issued in compliance with all applicable
Cayman Islands, state, and federal securities laws, (c) were not issued in
breach of any Commitments, and (d) are held of record and owned beneficially by
Seller. The Company has no Commitments outstanding and has no obligation to
issue any Commitments. No additional Commitments will arise in connection with
the Transactions. There are no contracts with respect to the voting or transfer
of the Company's Equity Interests. The Company is not obligated to redeem or
otherwise acquire any of its outstanding Equity Interests.
4.6 Records.
The copies of the Company's Organizational Documents that were provided
to Buyer are accurate and complete and reflect all amendments made through the
date hereof. The Company's minute books and other records have been made
available to Buyer for review.
4.7 Company Subsidiaries.
The Company owns no and has never owned any Equity Interests in any
Person.
4.8 Financial Statements.
Set forth on Schedule 4.8 are the following financial statements
------------
(collectively, the "Financial Statements"):
12
(a) unaudited balance sheets and statements of income as of and
for the fiscal years ended December 31, 2000 and December 31, 2001
(December 31, 2001 being the "Balance Sheet Date") for the Company; and
(b) unaudited balance sheets and statements of income (the
"Interim Financial Statements") as of and for the nine months ended the
Evaluation Date for the Company.
The Financial Statements have been prepared based on the books and
records of the Company and information from the operator of the Properties on a
fair and reasonable basis throughout the periods covered thereby, present fairly
the financial condition of the Company as of such dates and the results of
operations of the Company for such periods and are consistent with the books and
records of the Company and information from the operator of the Properties;
provided, however, that the Financial Statements lack footnotes and other
presentation items necessary for a complete understanding. Since the Balance
Sheet Date the Company has not effected any change in any method of accounting
or accounting practice.
4.9 Subsequent Events.
Except as set forth in Schedule 4.9, since the Balance Sheet Date, the
------------
Company has been operated in the Ordinary Course of Business (except for
activities pursuant to authorities for expenditures ("AFEs") contemplated in
Section 4.21), and except as would not have a Material Adverse Effect, none of
------------
the following has occurred:
(a) The Company has not sold, leased, transferred, or assigned
any assets other than for a fair consideration in the Ordinary Course of
Business, or for sales of Substances produced from the Properties in the
Ordinary Course of Business.
(b) The Company has not entered into any contract (or series of
related contracts).
(c) The Company has not made any capital expenditure (or series
of related capital expenditures).
(d) The Company has not made any capital investment in, any
loan to, or any acquisition of the securities or assets of, any other
Person.
(e) The Company has not issued any note, bond, or other debt
security or created, incurred, assumed, or guaranteed any liability for
borrowed money or any capitalized lease contract.
(f) The Company has not canceled, compromised, waived, or
released any Action (or series of related Actions).
(g) There has been no change made or authorized to be made to
the Organizational Documents of the Company.
13
(h) The Company has not issued, sold, or otherwise disposed of
any of its Equity Interests.
(i) The Company has not experienced any damage, destruction, or
loss (whether or not covered by insurance) to its properties.
4.10 Legal Compliance.
Except as would not cause a Material Adverse Effect, to Seller's
Knowledge, (i) the Company and its respective predecessors has complied with all
applicable laws, and (ii) no Action is pending or threatened against it alleging
any failure to so comply. Except as would not cause a Material Adverse Effect,
to Seller's Knowledge, the ownership and operation of the Properties has been in
conformity with all laws relating to such Properties.
4.11 Tax Matters.
The Company is not subject to any liabilities for Taxes, including Taxes
relating to prior periods, other than those set forth or adequately reserved
against in the Interim Financial Statements or those incurred since the
Evaluation Date in the Ordinary Course of Business. The Company has duly filed
or caused to be filed when due all Tax reports and returns in connection with
and in respect of its business and assets, and has timely paid and discharged
all amounts shown as due thereon. The Company has made available to Buyer
accurate and complete copies of all of its Tax reports and returns for all
periods, except those periods for which returns are not yet due. The Company has
not received any notice of any Tax deficiency outstanding, proposed or assessed
against or allocable to it, and the Company has not executed any waiver of any
statute of limitations on the assessment or collection of any Tax or executed or
filed with any Governmental Body any contract now in effect extending the period
for assessment or collection of any Taxes against it. There are no Encumbrances
for Taxes upon, pending against or, to Seller's Knowledge, threatened against,
any asset of the Company. The Company is not subject to any Tax allocation or
sharing contract.
4.12 Real Property.
Except for the Properties, the Company does not own or lease any real
property.
4.13 Contracts.
(a) Schedule 4.13 lists the following contracts to which the
-------------
Company is a party:
(i) Any contract (or group of related contracts) for the
lease of personal property to or from any Person providing for
lease payments.
(ii) Any contract to sell, lease, farmout or otherwise
dispose of any of its interests in any of the Properties other
than conventional rights of reassignment.
14
(iii) Any option to purchase or call on the Substances
produced from the Properties.
(iv) Any contract (or group of related contracts) under
which it has created, incurred, assumed, or guaranteed any
liability for borrowed money or any capitalized lease, or under
which it has imposed or suffered to exist a material Encumbrance
on any of its assets.
(v) Any contract with Seller or any Affiliates of Seller
other than the Company.
(vi) Any other contract (or group of related contracts)
the performance of which involves receipt or payment of
consideration in excess of $10,000.
(b) Seller has delivered to Buyer a correct and complete copy of
each Material Company Contract (as amended to date). With respect to each
Material Company Contract:
(i) The Material Company Contract is Enforceable against
the Company.
(ii) The Material Company Contract will continue to be
Enforceable against the Company on identical terms following the
consummation of the Transactions.
(iii) The Company is not in breach of such Material
Company Contract, and to Seller's Knowledge, no event has occurred
that, with notice or lapse of time, would constitute a breach
under the Material Company Contract.
(iv) To Seller's Knowledge, no party to the Material
Company Contract has repudiated any provision of the Material
Company Contract.
4.14 Litigation.
Schedule 4.14 sets forth each instance in which the Company (a) is
-------------
subject to any outstanding Order or (b) is a party to, the subject of, or, to
Seller's Knowledge, is threatened to be made a party to or the subject of any
Action. No Action required to be set forth in Schedule 4.14 questions the
-------------
Enforceability of this Agreement or the Transactions, or would reasonably be
expected to result in any Material Adverse Change with respect to the Company,
and to Seller's Knowledge, no such Action has been threatened against the
Company.
4.15 Employees.
The Company does not have and has never had any employees.
15
4.16 Employee Benefits.
With respect to the employee benefit plans or arrangements of any type
(including plans described in Section 3(3) of ERISA) sponsored, maintained or
contributed to by Seller or any ERISA Affiliate, no event has occurred and there
exists no condition or set of circumstances, in connection with which the
Company could, directly or indirectly, be subject to any liability under ERISA
or the Code.
4.17 Permits.
To Seller's Knowledge, the Company or the operator of the Properties
possesses all Permits required to be obtained for its business and operations.
4.18 Environmental, Health and Safety Matters.
Notwithstanding any other provision in this Agreement, the Seller Parties
make no representations or warranties with respect to Environmental, Health and
Safety Requirements. All matters concerning Environmental Defects are addressed
exclusively in Sections 10.1 through 10.3 of this Agreement.
------------- ----
4.19 Foreign Corrupt Practices Act Compliance.
Neither Seller Party has, directly or indirectly, in connection with the
Company's business, made or agreed to make any payment to any Person connected
with or related to any Governmental Body, except payments or contributions
required or allowed by applicable law. The internal accounting controls and
procedures of the Company are sufficient to cause the Company to comply with the
Foreign Corrupt Practices Act.
4.20 Certain Assets Used by the Company.
Neither Seller nor any of Seller's Affiliates (other than the Company)
own any asset that is used in the Company's business.
4.21 Current Drilling Commitments.
Schedule 4.21 contains a complete and accurate list as of the date hereof
-------------
of (a) all AFEs to drill or rework ▇▇▇▇▇ or for capital expenditures pursuant to
any contract to which the Company is a party or by which any of the Properties
is bound that any Person has proposed on or after the Evaluation Date, whether
or not accepted by the Company or any other Person; (b) all AFEs and commitments
to drill or rework ▇▇▇▇▇ or for other capital expenditures pursuant to any such
contracts for which all of the activities anticipated in such AFEs or
commitments have not been completed and paid for by the date hereof; (c) any
▇▇▇▇▇ located on the Properties or lands pooled or unitized therewith which have
been abandoned; and (d) any material items of equipment removed from the
Properties, other than those replaced by items of equal suitability and value.
16
4.22 Bankruptcy.
No steps have been taken for the appointment of an administrator,
judicial manager or receiver with respect to any part of the Properties or any
undertaking of the Company. To Seller's Knowledge, there are no circumstances
that would entitle any Person to succeed in winding up the Company or in
obtaining the appointment of a receiver, manager, trustee, judicial manager or
similar officer with respect to any part of the Properties or undertakings of
the Company.
4.23 No Other Representations.
Except as and to the extent set forth in this Agreement, neither Seller
Party makes any representations or warranties whatsoever (INCLUDING ANY IMPLIED
OR EXPRESS WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
CONFORMITY TO MODELS OR SAMPLES OF MATERIALS) to Buyer and each of them hereby
disclaims all Liability and responsibility for any representation, warranty,
statement, or information not included herein that was made, communicated, or
furnished (orally or in writing) to Buyer or its representatives (including any
opinion, information, projection, or advice that may have been or may be
provided to Buyer by any director, officer, employee, agent, consultant, or
representative of either Seller Party). Without limiting the foregoing, no
representation or warranty is made with respect to the information included in
the Information Memorandum dated October, 2001, or any supplement or amendment
thereof or other information provided in connection with the solicitation of
proposals to acquire the Shares, such information being provided for Buyer's
convenience to assist it in framing its due diligence.
ARTICLE 5.
PRE-CLOSING COVENANTS
The Parties agree as follows with respect to the period between the
execution of this Agreement and the earlier of the Closing and the Termination
Date:
5.1 General.
Each Party will use its Commercially Reasonable Efforts to take all
Actions and to do all things necessary, proper, or advisable to consummate, make
effective, and comply with all of the terms of this Agreement and the
Transactions applicable to it (including satisfaction, but not waiver, of the
Closing conditions for which it is responsible or otherwise in control, as set
forth in Article 7).
---------
5.2 Notices and Consents.
(a) Each Seller Party will give any notices to third parties, and will
use its Commercially Reasonable Efforts to obtain any third party Consents
listed on Schedule 4.3, or that Buyer reasonably may otherwise request in
------------
connection with the matters referred to in Sections 3.1(c) and 4.3. Each Seller
--------------- ---
Party will give any notices to, make any filings with, and use its Commercially
Reasonable Efforts to obtain any Consents of Governmental Authorities, if any,
required pursuant to any applicable law in connection
17
with the Transactions including in connection with the matters referred
to in Sections 3.1(c) and 4.3.
--------------- ---
(b) Buyer will give any notices to third parties, and will use
its Commercially Reasonable Efforts to obtain any third party consents
listed on Schedule 3.2(c), or that Seller reasonably may otherwise
---------------
request in connection with the matters referred to in Section 3.2(c).
--------------
Buyer will give any notices to, make any filings with, and use its
Commercially Reasonable Efforts to obtain any Consents of Governmental
Bodies, if any, required or reasonably deemed advisable by Seller
pursuant to any applicable law in connection with the Transactions
including in connection with the matters referred to in Section 3.2(c).
--------------
5.3 Operation of Business.
The Company will not engage in any practice, take any action, or enter
into any transaction outside the Ordinary Course of Business or engage in any
practice, take any action, or enter into any transaction of the sort described
in Section 4.9. Subject to compliance with applicable law, from the date hereof
-----------
until the earlier to occur of the Closing or the Termination Date, the Seller
Parties will confer on a regular and frequent basis with one or more
representatives of Buyer to report on operational matters and the general status
of the Company's ongoing business, operations and finances and will promptly
provide to Buyer or its representatives copies of all material filings they make
with any Governmental Body during such period.
5.4 Full Access.
(a) The Company will permit representatives of Buyer (including
financing providers) to have full access at all reasonable times, and in
a manner so as not to interfere with the normal business operations of
the Company, to all premises, properties, personnel, books, records,
contracts, and documents pertaining to the Company and will furnish
copies of all such books, records, contracts and documents and all
financial, operating and other data, and other information as Buyer may
reasonably request; provided, however, that no investigation pursuant to
this Section 5.4 will affect any representations or warranties made
-----------
herein or the conditions to the Parties' obligations to consummate the
Transactions.
(b) Notwithstanding Section 5.4(a), Buyer acknowledges that the
--------------
Company does not operate the Properties and that, despite its
Commercially Reasonable Efforts, it may not be able to provide access to
the Properties. The Seller Parties will not be obligated to provide Buyer
with access to any Property Records or other data that (i) consist of any
evaluations by either Seller Party or pertaining to either Seller Party
or their Affiliates, (ii) are unrelated to the Company, (iii) the Seller
Parties cannot legally provide to Buyer without breaching confidentiality
contracts with other Persons, of which the Seller Parties are not able to
obtain waivers using their Commercially Reasonable Efforts, or (iv) are
subject to the attorney-client privilege. At Buyer's request, such Seller
Party will use its Commercially Reasonable Efforts to obtain such waivers
or consents as
18
may be required for Buyer to have access to such documents, but will not be
required to incur any material expenses in connection therewith.
5.5 Notice of Developments.
The Seller Parties will give prompt written notice to Buyer of any
development occurring after the date of this Agreement, or any item about which
such Person did not have Knowledge on the date of this Agreement, which causes
or reasonably could be expected to cause a breach of any of the representations
and warranties in Section 3.1 or Article 4. Buyer will give prompt written
----------- ---------
notice to Seller of any development occurring after the date of this Agreement,
or any item about which such Person did not have Knowledge on the date of this
Agreement, which causes or reasonably could be expected to cause a breach of any
of the representations and warranties in Section 3.2. Except as set forth in
-----------
Section 9.2(a) or Section 9.3(a), no disclosure by any Party pursuant to this
-------------- --------------
Section 5.5 will be deemed to amend or supplement the Schedules or to prevent or
-----------
cure any misrepresentation or breach of any representation, warranty, or
covenant.
5.6 Affiliated Transactions.
Except as disclosed on Schedule 5.6, the Seller Parties will cause all
------------
contracts and transactions by and between Seller or any Affiliate of Seller and
the Company to be terminated effective as of the Closing, without any material
cost or continuing obligation to the Company or Buyer.
5.7 Operation of Properties.
The Seller Parties will take such steps as would a prudent non-operator to
cause the operator to continue the routine operation of the Properties in the
Ordinary Course of Business as would a prudent operator.
5.8 Commitments.
(a) The Company will not expend any funds, or make any commitments to
expend funds or enter into any contract that would obligate the Company to
expend funds, or otherwise incur any other liabilities, in connection with
owning or operating the Properties after the date hereof, other than
routine expenses incurred in the normal operation of the existing ▇▇▇▇▇ on
the Properties.
(b) The Company will not abandon, or consent to abandoning, any ▇▇▇▇▇
located on the Properties that are (or with the expenditure of funds would
be) capable of producing in paying quantities, or take any other steps that
represent a substantial departure from the Properties' current operational
status.
(c) The Company will not propose to drill any additional ▇▇▇▇▇, or
propose to deepen, plug back, or rework any existing ▇▇▇▇▇, or propose to
conduct any other operations that require consent under the applicable
operating contract, or propose to conduct any other operations other than
the normal operation of the existing ▇▇▇▇▇ on the Properties, or propose to
abandon any ▇▇▇▇▇ on the Properties.
19
(d) The Seller Parties will advise Buyer within three business days of
any proposals with respect to Section 5.8(a) that third parties make and
--------------
Buyer will advise the applicable Seller Party of the action Buyer desires
such Party to take within three business days of such notice. The
appropriate Seller Party will respond to each such proposal in the manner
Buyer requests. Any matter to which Buyer consents under this Section 5.8
-----------
will not be deemed to be an Asserted Defect under Article 10.
----------
(e) Set forth in Schedule 5.8(e) is the calendar year 2002 budget
---------------
proposed by the operator of the Properties. The 2002 budget has not yet
been approved by the Company as provided in the Material Company Contracts.
ARTICLE 6.
POST-CLOSING COVENANTS
The Parties agree as follows with respect to the period following the
Closing:
6.1 General.
In case at any time after the Closing any further action is necessary or
reasonably desirable to carry out the purposes of this Agreement, each Party
will take such further action (including executing and delivering such further
instruments and documents) as any other Party reasonably may request, all at the
requesting Party's sole cost and expense (unless the requesting Party is
entitled to indemnification therefor under Article 9). After the Closing Buyer
---------
will be entitled to possession of all documents, books, records, agreements, and
financial data of any sort relating to the Company, except for data that (i)
consist of any evaluations by Seller or pertaining to either Seller Party or
their Affiliates, (ii) are unrelated to the Company, (iii) the Seller Parties
cannot legally provide to Buyer without breaching confidentiality contracts with
other Persons, of which the Seller Parties are not able to obtain waivers using
their Commercially Reasonable Efforts, or (iv) are subject to the attorney-
client privilege of Seller and not the Company.
6.2 Litigation Support.
So long as any Party actively is contesting or defending against any Action
in connection with (a) the Transactions or (b) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to the Closing Date
involving the Company, each other Party will cooperate with such Party and such
Party's counsel in the contest or defense, make available their personnel, and
provide such testimony and access to their books and records as will be
necessary in connection with the contest or defense, at the sole cost and
expense of the contesting or defending Party (unless the contesting or defending
Party or one of its Affiliates is entitled to indemnification therefor under
Article 9).
---------
6.3 Transition.
Seller will not take any action that is designed or intended to have the
effect of discouraging any lessor, licensor, customer, joint interest owner,
production purchaser, supplier, or other business associate of the Company from
maintaining at least as favorable business
20
relationships with the Company after the Closing as it maintained with the
Company prior to the Closing.
6.4 Taxes.
(a) Seller shall be responsible for the preparation and filing of all
Tax returns of the Company relating to taxable periods ending on or before
the Balance Sheet Date, and Buyer shall be responsible for the preparation
and filing of all Tax returns of the Company for taxable periods ending
after the Balance Sheet Date. In the event of a Tax period beginning on or
before the Balance Sheet Date and ending after the Balance Sheet Date,
Buyer shall be responsible for the preparation and filing of Tax returns
relating thereto; provided that Buyer shall keep Seller apprised of all
matters with respect to such returns and shall allow Seller to review and
comment on such returns prior to the filing thereof.
(b) (i) Upon Buyer's receipt of notice of any audit, examination,
determination or other proceeding concerning Taxes relating to the
Company, the Properties or the Substances ("Tax Proceeding"), Buyer
shall promptly give Seller written notice thereof if the Tax
Proceeding relates to a period ending on or before the Balance Sheet
Date ("Seller Controlled Tax Proceeding") or a period beginning on or
prior to the Balance Sheet Date and ending after the Closing Date
("Straddle Tax Proceeding"). In the case of a Seller Controlled Tax
Proceeding, Seller shall have sole authority and control over the
conduct and settlement of such Tax Proceeding. If the Tax Proceeding
relates to a period beginning after the Balance Sheet Date, Buyer
shall have the sole authority and control over the conduct and
settlement of such Tax Proceeding ("Buyer Controlled Tax Proceeding").
If a Tax Proceeding is a Straddle Tax Proceeding, then Buyer and
Seller shall have joint authority and control over the Tax Proceeding.
The authority granted to Buyer and/or Seller pursuant to this Section
-------
6.4(b)(i) includes the authority to initiate any claim for a refund,
---------
file any amended Tax return or take any other action reasonably deemed
appropriate by such party(ies) with respect to such Tax Proceeding.
(ii) In the case of a Seller Controlled Tax Proceeding or a Buyer
Controlled Tax Proceeding, the party that is not controlling the
conduct and settlement of such Tax Proceeding shall, at the request of
the other party (the "Controlling Party"), do all things reasonably
requested by the Controlling Party, including executing powers of
attorney or other documents, to enable the Controlling Party to take
actions with respect to such Tax Proceeding pursuant to Section
-------
6.4(b)(i).
----------
(iii) This Section 6.4(b) shall only apply in cases where Buyer
--------------
may pursue indemnification from Seller under Section 9.2.
------------
21
(c) Buyer shall cause the Company to:
(i) (A) Retain, until the expiration of the statutes of
limitation for Tax audits (including any extensions thereof), records
of each cost incurred under any Material Company Contract since its
inception until the Closing Date and the Tax classification of each
such cost, and (B) provide to Seller, at the cost estimated as of the
Evaluation Date, all such records and all other records and
information for all Tax periods or portions thereof commencing on or
before the Closing Date.
(ii) At Seller's request, provide to Seller information relating
to any final determination of any Tax Proceeding that affects any
amount required to be shown on any Tax return of the Company for Tax
periods or portions thereof commencing on or before the Closing Date;
(iii) (A) Retain until the expiration of all applicable statutes
of limitations (including any extensions thereof) copies of all Tax
returns, supporting working schedules and other records or information
relating to all Tax periods or portions thereof commencing on or
before the Closing Date, and (B) at any time thereafter, prior to
destroying or otherwise disposing of such records, provide Seller with
a reasonable opportunity to review and copy them.
ARTICLE 7.
CLOSING CONDITIONS
7.1 Conditions Precedent to Obligation of Buyer.
Buyer's obligation to consummate the Transactions contemplated to occur in
connection with the Closing and thereafter is subject to the satisfaction of
each condition precedent listed below.
(a) Accuracy of Representations and Warranties. Each representation
and warranty set forth in Section 3.1 and Article 4 must have been accurate
----------- ---------
and complete in all material respects (except with respect to any
provisions including the word "material" or words of similar import, with
respect to which such representations and warranties must have been
accurate and complete) as of the date of this Agreement and must be
accurate and complete in all material respects (except with respect to any
provisions including the word "material" or words of similar import, with
respect to which such representations and warranties must have been
accurate and complete) as of the Closing Date, as if made on the Closing
Date, without giving effect to any supplements to the Schedules.
(b) Compliance with Obligations. Each Seller Party must have performed
and complied with all of its covenants to be performed or complied with at
or prior to the Closing (singularly and in the aggregate) in all material
respects.
22
(c) No Adverse Litigation. There must not be pending or threatened any
Action by or before any Governmental Body, arbitrator, or mediator which
will seek to restrain, prohibit, invalidate, or collect Damages arising out
of the Transactions.
(d) Consents. The Seller Parties must have obtained all of the
Consents listed on Schedule 7.1(d).
---------------
7.2 Conditions Precedent to Obligation of the Seller Parties.
The obligation of the Seller Parties to consummate the Transactions
contemplated to occur in connection with the Closing and thereafter is subject
to the satisfaction of each condition precedent listed below.
(a) Accuracy of Representations and Warranties. Each representation
and warranty set forth in Section 3.2 must have been accurate and complete
-----------
in all material respects (except with respect to any provisions including
the word "material" or words of similar import, with respect to which such
representations and warranties must have been accurate and complete) as of
the date of this Agreement, and must be accurate and complete in all
material respects (except with respect to any provisions including the word
"material" or words of similar import, with respect to which such
representations and warranties must have been accurate and complete) as of
the Closing Date, as if made on the Closing Date.
(b) Compliance with Obligations. Buyer must have performed and
complied with all its covenants and obligations required by this Agreement
to be performed or complied with at or prior to the Closing (singularly and
in the aggregate) in all material respects.
(c) No Order or Injunction. There must not be pending or threatened
any Action by or before any Governmental Body, arbitrator, or mediator
which will seek to restrain, prohibit, invalidate, or collect Damages
arising out of the Transactions.
(d) Consents. Buyer must have obtained all of the Consents listed on
Schedule 7.2(d).
---------------
ARTICLE 8.
TERMINATION
8.1 Termination of Agreement.
The Parties may terminate this Agreement as provided below:
(a) Buyer and Seller may terminate this Agreement as to all Parties by
mutual written consent at any time prior to the Closing;
(b) Buyer or Seller may terminate this Agreement upon delivery of
notice if the Closing has not occurred prior to the Expiration Date,
provided that the Party delivering such notice will not have caused such
failure to close;
23
(c) Buyer may terminate this Agreement by giving written notice to
Seller at any time prior to the Closing if either Seller Party has breached
any representation, warranty, or covenant contained in this Agreement in
any material respect; provided, however, that the failure of the Seller
Parties to obtain the consents required under Schedules 4.3 and 7.2(d)
------------- ------
prior to the Closing will not permit Buyer to terminate this Agreement
under this Section 8.1(c) so long as the Seller Parties obtain such
--------------
consents within 90 days after the Closing; or
(d) Buyer or Seller may terminate this Agreement if the Representation
Defect Amount (as defined in Section 10.1(a)) is greater than 20% of the
---------------
Purchase Price; or
(e) Seller may terminate this Agreement by giving notice to Buyer at
any time prior to the Closing if Buyer has breached any representation,
warranty, or covenant contained in this Agreement in any material respect.
8.2 Effect of Termination.
(a) Except for the obligations under this Article 8 and Article 11, if
--------- ----------
this Agreement is terminated under Section 8.1, then, except as provided in
-----------
this Section 8.2 all further obligations of the Parties under this
-----------
Agreement will terminate.
(b) If Buyer or Seller terminate this Agreement pursuant to Section
-------
8.1(c) or 8.1(d), as the case may be, then the rights of the non-breaching
----- ------
Party(ies) to pursue all legal remedies for Damages such Party suffer will
survive such termination unimpaired and no election of remedies will have
been deemed to have been made.
(c) Upon the termination of this Agreement, whether under Section
-------
8.1(a) or 8.1(b), Seller will be free to sell the Shares (or any portion
------ ------
thereof) to any other Person without any limitation under or because of
this Agreement. Buyer will cooperate with Seller in effectuating any such
sale and will promptly execute any instrument evidencing the termination of
Buyer's right to acquire the Shares as Seller may reasonably request.
Buyer will also immediately return to Seller all data and other information
(and all copies thereof and analysis therefrom) furnished to Buyer by or on
behalf of Seller in connection with this transaction.
ARTICLE 9.
INDEMNIFICATION
9.1 Survival of Representations and Warranties.
(a) Each representation and warranty of Seller contained in Section
-------
3.1 and any certificate related to such representations and warranties will
---
survive the Closing and will continue in full force and effect forever.
Each representation and warranty of either Seller Party contained in
Article 4 and any certificate related to such representations and
---------
warranties will survive the Closing and continue in full force and effect
for one year thereafter, except (i) the representations and warranties set
forth in Sections 4.4, 4.11, and 4.16, which will survive the Closing and
------------ ---- ----
continue in full force and effect until the applicable statute of
limitations expires (or for 15 years if there is no applicable statute of
24
limitations), and (ii) the representations and warranties set forth in
Sections 4.1, 4.2, and 4.5, which will survive the Closing and will
------------ --- ---
continue in full force and effect forever.
(b) Each representation and warranty of Buyer contained in Section 3.2
-----------
and any certificate related to such representations and warranties will
survive the Closing and continue in full force and effect forever.
9.2 Indemnification Provisions for Buyer's Benefit.
Seller will indemnify and hold the Seller Indemnified Parties harmless from
and pay any and all Damages, directly or indirectly, resulting from, relating
to, arising out of, or attributable to any one of the following:
(a) Any breach of any representation or warranty either Seller Party
has made in this Agreement as if such representation or warranty were made
on and as of the Closing Date without giving effect to any supplement to
the Schedules, other than any such breach that is disclosed in a supplement
to the Schedules delivered under Section 5.5, as having caused a condition
-----------
specified in Article 7 not to be satisfied.
---------
(b) Any breach by either Seller Party of any covenant or obligation of
either Seller Party in this Agreement.
9.3 Indemnification Provisions for Seller's Benefit.
Buyer will indemnify and hold the Buyer Indemnified Parties harmless from
and pay any and all Damages, directly or indirectly, resulting from, relating
to, arising out of, or attributable to any of the following:
(a) Any breach of any representation or warranty Buyer has made in
this Agreement as if such representation or warranty were made on and as of
the Closing Date without giving effect to any supplement to the Schedules,
other than any such breach that is disclosed in a supplement to the
Schedules delivered under Section 5.5, as having caused a condition
-----------
specified in Section 7.2 not to be satisfied.
-----------
(b) Any breach by Buyer of any covenant or obligation of Buyer in this
Agreement.
(c) Any Taxes for which the Company may become liable attributable to
its assets business or operations for the time after the Evaluation Date.
9.4 Indemnification Claim Procedures.
(a) If any third party notifies any Indemnified Party with respect to
the commencement of any Action that may give rise to a claim for
indemnification against any Indemnitor under this Article 9 (an
---------
"Indemnification Claim"), then the Indemnified Party will promptly give
notice to the Indemnitor. Failure to notify the Indemnitor will relieve the
Indemnitor of any liability that it may have to the Indemnified Party to
the
25
extent the defense of such Action is materially and irrevocably prejudiced
by the Indemnified Party's failure to give such notice.
(b) An Indemnitor will have the right at any time to assume and
thereafter conduct the defense of the Indemnification Claim with counsel of
the Indemnitor's choice reasonably satisfactory to the Indemnified Party;
provided, however, the Indemnified Party will not consent to the entry of
any judgment or enter into any settlement with respect to the
Indemnification Claim without the prior written consent of the Indemnitor
(not to be withheld unreasonably).
(c) Unless and until an Indemnitor assumes the defense of the
Indemnification Claim as provided in Section 9.4(b), the Indemnitor may
--------------
defend against the Indemnification Claim in any manner the Indemnitor
reasonably may deem appropriate.
(d) In no event will the Indemnified Party consent to the entry of any
judgment or enter into any settlement with respect to the Indemnification
Claim without the prior written consent of the Indemnitor (not to be
withheld unreasonably).
(e) Each Party hereby consents to the non-exclusive jurisdiction of
any Governmental Body, arbitrator, or mediator in which an Action is
brought against any Indemnified Party for purposes of any Indemnification
Claim that an Indemnified Party may have under this Agreement with respect
to such Action or the matters alleged therein, and agrees that process may
be served on such Party with respect to such claim anywhere in the world.
9.5 Notice of Claim.
A Party having Knowledge of an event or condition that may cause such Party
to be Damaged, which event or condition gives or could give rise to a claim for
indemnification under this Article 9, shall promptly notify each other Party
---------
thereof in writing (a "Claim Notice"). The Claim Notice shall contain a brief
description of the nature of the Damages suffered and, if practicable, an
aggregate dollar value estimate of the Damages suffered. Failure to provide a
Claim Notice with respect to such an event or condition within 30 days of the
occurrence of such event or condition will constitute a waiver of any such
claim.
9.6 Limitations on Indemnification Liability.
(a) With Respect to Claims by the Seller Indemnified Parties. Any
claims the Seller Indemnified Parties make under this Article 9 will be
---------
limited as follows:
(i) Ceiling. Seller's aggregate liability for Damages under this
-------
Agreement related to breaches of the representations, warranties, and
covenants herein will not exceed an amount equal to 50% the Purchase
Price.
(ii) Basket. Seller will have no liability for Damages related to
------
breaches of the representations, warranties, and covenants in this
Agreement unless and until the aggregate Damages claimed under Section
-------
9.2 exceeds 2 1/2% of the Purchase Price (the "Seller Indemnified
---
Parties Threshold Amount");
26
provided, however, once such amount exceeds the Seller Indemnified
Parties Threshold Amount, the Seller Indemnified Parties will be
entitled to recover all amounts to which they are entitled in excess
of the Seller Indemnified Parties Threshold Amount.
(b) With Respect to Claims by the Buyer Indemnified Parties. Any
claims the Buyer Indemnified Parties make under this Article 9 will be
---------
limited as follows:
(i) No Impleading. Buyer agrees that it will not, and it will
-------------
cause its Affiliates to not, implead, or cause to be impleaded, Seller
or any of its Affiliates in any Action arising from owning or
operating the Company.
(ii) The Parties acknowledge that substantial negotiations
occurred with respect to the value of (i) the "current assets" of the
Company. Accordingly, notwithstanding the representations made in
Section 4.8 or otherwise, no indemnity will be available under this
-----------
Agreement or otherwise if the Company collects different amounts with
respect to such items than the amounts reflected in the Financial
Statements.
(c) With Respect to Claims by any Indemnified Party. Any claims any
Indemnified Party makes under this Article 9 will be limited as follows:
---------
(i) Reduction for Insurance Claims. The amount required to be
------------------------------
paid for Damages will be reduced to the extent of any amounts an
Indemnified Party actually receives pursuant to the terms of the
insurance policies (if any) covering such Indemnification Claim.
(ii) Exclusion of Certain Types of Damages. All indemnification
-------------------------------------
obligations under this Article 9 will be limited to actual Damages and
---------
will exclude incidental, consequential, lost profits, indirect,
punitive, or exemplary Damages.
9.7 Other Indemnification Provisions.
(a) This Article 9 contains the sole and exclusive remedy for any
---------
claim against Buyer or either Seller Party with respect to claims under
this Agreement after the Closing (other than under Section 2.2).
-----------
(b) A claim for any matter not involving a third party may be asserted
by notice to the Party from whom indemnification is sought.
ARTICLE 10.
REPRESENTATION DEFECTS
10.1 Asserted Defects.
(a) If, in the course of its review of the Company and the Properties
in accordance with Section 5.4, Buyer discovers any Environmental Defects
-----------
or items,
27
occurrences, or circumstances which would constitute a breach of any
representation or warranty set forth in Article 4 (collectively,
---------
"Representation Defects"), Buyer may, on or before March 22, 2002 (the
"Defect Date"), assert any such Representation Defects by giving Seller
written notice of the same. To be effective, Buyer's notice of a defect
under this Section 10.1 (a "Representation Defect Notice") must include (i)
------------
if applicable, the Property affected by such Representation Defect, (ii) a
brief description of the matter allegedly constituting the Representation
Defect, (iii) the reports of experts, all other documentation (if any) on
which Buyer's assertion of such a defect is based, (iv) such supporting
documents as are reasonably necessary for Seller to verify the existence of
any such defect, (v) any requirements asserted by Buyer as being required
to cure such Representation Defect, (vi) Buyer's estimate of the sum that
would be required to correct such Representation Defect (the
"Representation Defect Amount"), and (vii) a description of the manner by
which such Representation Defect Amount was determined, together with
sufficient supporting detail to enable Seller to determine whether such
Representation Defect Amount is an appropriate valuation. Such
Representation Defects of which Buyer provides a valid Representation
Defect Notice prior to the Defect Date are "Asserted Defects." All matters
that might constitute Environmental Defects which are not Asserted Defects
will be deemed waived for all purposes related to this Agreement.
(b) Seller will have 10 days from and after the receipt of the
Representation Defect Notice to review and evaluate the Representation
Defect Notice and to determine whether it concurs with Buyer's assessment
of the Representation Defect and the Representation Defect Amount. Buyer
will have three days thereafter to review Seller's response to its
Representation Defect Notice. If Buyer notifies Seller of Asserted Defects
on or before the Defect Date, Seller may, for a period of 20 days after the
receipt of such notice, attempt to cure the Asserted Defects. Buyer and
Seller will exercise Commercially Reasonable Efforts to resolve any
disputes that may pertain to the existence of a Representation Defect or
the Representation Defect Amount.
10.2 Certain Adjustments to Purchase Price.
(a) If Asserted Defects are presented to the Seller Parties, and
Seller is unable (or unwilling) to cure such Asserted Defects in accordance
with Section 10.1(b) and without any cost or Encumbrance to the Company,
---------------
then, subject to Section 10.2(b) and 10.2(c), the Purchase Price will be
--------------- -------
reduced by an amount equal to the "Adjustment Amount." The Adjustment
Amount will be calculated in accordance with the following provisions:
(i) If the Asserted Defect results from a charge that is
undisputed and liquidated in amount, then the Adjustment Amount will
be the amount necessary to be paid to cure the Asserted Defect.
(ii) If the Asserted Defect represents a liability, Encumbrance,
burden, discrepancy or charge of a type not described in Section
10.2(a)(i), the Adjustment Amount will be determined by taking into
account (A) if applicable, the portion of the Property affected by the
Asserted Defect, (B) the legal effect of
28
the Asserted Defect, (C) the potential economic effect of the Asserted
Defect, and (D) such other factors as are necessary to make a proper
evaluation of the Asserted Defect's value.
(b) If after giving effect to the factors set forth above in this
Section 10.2, the Parties are still unable to reach agreement upon an
------------
appropriate Adjustment Amount, Seller may elect prior to the Closing to
either (i) continue to attempt to cure the Asserted Defect until the
Closing in accordance with Section 10.1, (ii) elect to cease efforts to
------------
cure the Asserted Defect, and employ for the purpose of the Closing, an
amount determined by averaging Seller's and Buyer's estimates of the
proposed adjustments relating to such Asserted Defect, (iii) indemnify
Buyer with respect to the Asserted Defect, or (iv) refer the matter for
resolution by arbitration in the manner set forth in Section 10.3.
------------
(c) If the Purchase Price reduction (taking into account any
adjustments under Section 10.2) that would result from the procedure above
------------
does not exceed 10% of the Purchase Price set forth in Section 2.2(a), then
--------------
the Purchase Price will not be adjusted and the Closing will occur in
accordance with Section 2.3.
-----------
10.3 Arbitration.
If despite their good faith efforts to do so, Buyer and Seller are unable
to reach agreement regarding (a) the existence of an Asserted Defect, (b) the
value of an Asserted Defect (and the corresponding adjustment to the Purchase
Price), or (c) the Adjustment Amount, either Buyer or Seller may elect to refer
the matter to arbitration in accordance with the following provisions:
(a) The arbitration will be held before a panel of one arbitrator who
will have a minimum of 15 years experience in the international oil and gas
industry, such that he or she is considered an expert on oil and gas
environmental matters.
(b) Notice of Buyer's or Seller's election to submit the matter for
arbitration shall be given to each other Party within three business days
after such referral is made.
(c) Upon delivery of such notice by either Buyer or Seller, each
Party, as applicable, will have ten days to provide the arbitrator (and
each other Party) with a statement of its position (with supporting
documentation) regarding the matter or matters in dispute together with its
best and final offer for settlement of the dispute. The failure to provide
a statement of position within this period will constitute a waiver of such
Party's right to have the arbitrator consider such materials.
(d) The arbitrator will consider the statements of position the
Parties submit and will, within ten business days after receipt of such
materials, issue his or her decision adopting the best and final offer for
settlement of the dispute either by Buyer or Seller.
(e) If necessary to accommodate resolution of any dispute under this
Section 10.3, the Closing Date will be extended for ten days after issuance
------------
of the decision by the arbitrator. All determinations made by the
arbitrator will be final, conclusive and binding on the Parties.
29
(f) Buyer and Seller will equally bear the costs and fees of the
arbitration. The Parties agree that a court reporter will record the
arbitration proceedings and that the reporter's record will be the agreed
to transcript of the proceedings. Buyer and Seller will share the expenses
of this recorder equally.
(g) The arbitrator will specify the basis for his or her decision.
The arbitrator's decision will be considered as a final and binding
resolution of the disagreement, will not be subject to appeal and may be
entered as an Order in any court of competent jurisdiction in London,
England. Each Party agrees to submit to the jurisdiction of any such court
for purposes of the enforcement of any such Order. No Party will ▇▇▇ the
other except for enforcement of the arbitrator's decision if each other
Party is not performing in accordance with the arbitrator's decision.
(h) Any arbitration proceeding hereunder will be conducted on a
confidential basis.
ARTICLE 11.
MISCELLANEOUS
11.1 Schedules.
The disclosures made on any Schedule with respect to any representation,
warranty or covenant shall be deemed to be made with respect to any other
representation or warranty requiring the same or similar disclosure to the
extent that the relevance of such disclosure to other representations and
warranties is evident from the face of the Schedule. The inclusion of any
matter on any Schedule will not be deemed an admission by any Party that such
listed matter is material or that such listed matter has or would have a
Material Adverse Effect on any Person(s), or used in determining any standard
with respect to such concepts.
11.2 Entire Agreement.
This Agreement, together with the Exhibits and Schedules hereto and the
certificates, documents, instruments and writings that are delivered pursuant
hereto, constitutes the entire agreement and understanding of the Parties in
respect of its subject matters and supersedes all prior understandings,
agreements, or representations by or among the Parties, written or oral, to the
extent they relate in any way to the subject matter hereof or the Transactions,
except the confidentiality agreement, by and between [______________] and
[______________], and dated as of [_________] [__], [____]. Except as expressly
contemplated by Article 9, there are no third party beneficiaries having rights
---------
under or with respect to this Agreement.
11.3 Successors.
All of the terms, agreements, covenants, representations, warranties, and
conditions of this Agreement are binding upon, and inure to the benefit of and
are enforceable by, the Parties and their respective successors.
30
11.4 Assignments.
No Party may assign either this Agreement or any of its rights, interests,
or obligations hereunder without the prior written approval of Buyer and Seller;
provided, however, that Buyer may (a) assign any or all of its rights and
interests hereunder to one or more of its Affiliates and (b) designate one or
more of its Affiliates to perform its obligations hereunder (in any or all of
which cases Buyer nonetheless will remain responsible for the performance of all
of its obligations hereunder).
11.5 Notices.
All notices, requests, demands, claims and other communications hereunder
will be in writing. Any notice, request, demand, claim or other communication
hereunder will be deemed duly given if (and then three business days after) it
is sent by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the intended recipient as set forth below:
If to Buyer and after the Closing to the Company:
Attn: [______________________]
[______________________]
[______________________]
Tel: [(____)_________-______]
Fax: [(____)_________-______]
Copy to (which will not constitute notice):
Attn: [______________________]
[______________________]
[______________________]
Tel: [(____)_________-______]
Fax: [(____)_________-______]
If to Seller and before the Closing to the Company:
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
31
Copy to (which will not constitute notice):
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
1900 Pennzoil Place - South Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication will be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by
giving the other Parties notice in the manner herein set forth.
11.6 Binding Arbitration.
(a) All disputes, claims, questions or disagreements arising under
this Agreement ("Disputes") will be resolved as follows: first, senior
management of Buyer and Seller will meet and attempt in good faith to
resolve such Dispute. If the Dispute cannot be resolved by agreement of the
Parties within 60 days of the first meeting of the senior management of
Buyer and Seller relating to such Dispute, the Dispute shall be settled by
arbitration under UNCITRAL in accordance with the rules thereof; provided
that the foregoing shall not preclude equitable or other judicial relief to
enforce the provisions hereof or to preserve the status quo pending
resolution of Disputes; and provided further and subject to Section 9.4
-----------
that resolution of Disputes with respect to claims by third Persons will be
deferred until any judicial proceedings with respect thereto are concluded.
(b) The arbitration will be held before a panel of three arbitrators
consisting of one arbitrator selected by Buyer, the other selected by
Seller, and the third then selected by those two arbitrators or, if the two
arbitrators cannot agree on an arbitrator, the President (or equivalent) of
UNCITRAL shall appoint one; provided that if the amount that is the subject
of the Dispute is less than $300,000, the panel of arbitrators will consist
of one arbitrator to be agreed to by Buyer and Seller, or if Buyer and
Seller cannot agree on an arbitrator, then to be appointed by the President
(or equivalent) of UNCITRAL. All arbitrator(s) will be knowledgeable
regarding international transactions similar to the Transactions in the oil
and gas exploration and development industry.
(c) Buyer and Seller will equally bear the costs and fees of the
arbitration. The Parties agree that a court reporter will record the
arbitration proceedings and that the
32
reporter's record will be the agreed transcript of the proceedings. Buyer
and Seller will share the expenses of this reporter equally.
(d) The arbitrators will specify the basis for their decision, the
basis for the Damages award and a breakdown of the Damages awarded, and the
basis of any other remedy. The arbitrators' decision will be considered as
a final and binding resolution of the disagreement, will not be subject to
appeal and may be entered as an Order in any court of competent
jurisdiction in the United States or Indonesia; provided that this
Agreement confers no power or authority upon the arbitrators to render any
decision that is based on clearly erroneously findings of fact, that
manifestly disregards the law, or exceeds of the powers of the arbitrator,
and no such decision will be eligible for confirmation. Each Party agrees
to submit to the jurisdiction of any such court for purposes of the
enforcement of any such Order. No Party will ▇▇▇ any other Party except for
enforcement of the arbitrator's decision if such other Party is not
performing in accordance with the arbitrator's decision. The provisions of
this Agreement will be binding on the arbitrators.
(e) Any arbitration proceeding will be conducted on a confidential
basis.
(f) The arbitrators' discretion to fashion remedies hereunder will be
no broader or narrower than the legal and equitable remedies available to a
court, unless the Parties expressly state elsewhere in this Agreement that
Parties will be subject to broader or narrower legal and equitable remedies
than would be available under the law governing this Agreement.
(g) The arbitration proceedings shall take place in London, England
or such other jurisdiction as the Parties may agree.
(h) The language of the arbitration proceedings shall be English.
11.7 Time.
Time is of the essence in the performance of this Agreement.
11.8 Counterparts.
This Agreement may be executed in two or more counterparts, each of which
will be deemed an original but all of which together will constitute one and the
same instrument.
11.9 Headings.
The Article and Section headings contained in this Agreement are inserted
for convenience only and will not affect in any way the meaning or
interpretation of this Agreement.
33
11.10 Governing Law.
This Agreement and the performance of the Transactions and obligations of
the Parties hereunder will be governed by and construed in accordance with the
laws of England, without giving effect to any choice of law principles.
11.11 Amendments and Waivers.
No amendment, modification, replacement, termination or cancellation of any
provision of this Agreement will be valid, unless the same will be in writing
and signed by Buyer and Seller. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, may be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or affect in any
way any rights arising because of any prior or subsequent such occurrence.
11.12 Severability.
The provisions of this Agreement will be deemed severable and the
invalidity or unenforceability of any provision will not affect the validity or
enforceability of the other provisions hereof.
11.13 Expenses.
Except as otherwise expressly provided in this Agreement, each Party will
bear its own costs and expenses incurred in connection with the preparation,
execution and performance of this Agreement and the Transactions including all
fees and expenses of agents, representatives, financial advisors, legal counsel
and accountants. Seller agrees that Company has not borne or will not bear any
costs and expenses (including any legal fees and expenses of either Seller
Party) in connection with this Agreement or any of the Transactions.
11.14 Construction.
The Parties have participated jointly in the negotiation and drafting of
this Agreement. If an ambiguity or question of intent or interpretation arises,
this Agreement will be construed as if drafted jointly by the Parties and no
presumption or burden of proof will arise favoring or disfavoring any Party
because of the authorship of any provision of this Agreement. Any reference to
any federal, state, local, or foreign law will be deemed also to refer to law as
amended to the date of this Agreement and all rules and regulations promulgated
thereunder, unless the context requires otherwise. The words "include,"
"includes," and "including" will be deemed to be followed by "without
limitation." Pronouns in masculine, feminine, and neuter genders will be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa, unless the context otherwise
requires. The words "this Agreement," "herein," "hereof," "hereby," "hereunder,"
and words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited.
34
11.15 Incorporation of Exhibits and Schedules.
The Exhibits, Schedules, and other attachments identified in this Agreement
are incorporated herein by reference and made a part hereof.
11.16 Remedies.
Except as expressly provided herein, the rights, obligations and remedies
created by this Agreement are cumulative and in addition to any other rights,
obligations, or remedies otherwise available at law or in equity. Except as
expressly provided herein, nothing herein will be considered an election of
remedies.
11.17 Electronic Signatures.
(a) Notwithstanding the Electronic Signatures in Global and National
Commerce Act (15 U.S.C. Sec. 7001 et. seq.), the Uniform Electronic
-- ---
Transactions Act, or any other law relating to or enabling the creation,
execution, delivery, or recordation of any contract or signature by
electronic means, and notwithstanding any course of conduct engaged in by
the Parties, no Party will be deemed to have executed a Transaction
Document or other document contemplated thereby (including any amendment or
other change thereto) unless and until such Party shall have executed such
Transaction Document or other document on paper by a handwritten original
signature or any other symbol executed or adopted by a Party with current
intention to authenticate such Transaction Document or such other document
contemplated.
(b) Delivery of a copy of a Transaction Document or such other
document bearing an original signature by facsimile transmission (whether
directly from one facsimile device to another by means of a dial-up
connection or whether mediated by the worldwide web), by electronic mail in
"portable document format" (".pdf") form, or by any other electronic means
intended to preserve the original graphic and pictorial appearance of a
document, will have the same effect as physical delivery of the paper
document bearing the original signature, provided a copy bearing an
original signature on paper is subsequently physically delivered.
"Originally signed" or "original signature" means or refers to a signature
that has not been mechanically or electronically reproduced.
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35
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
PT MEDCO ENERGI INTERNASIONAL TBK.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
EEX INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Exeutive Vice President
ENSERCH FAR EAST LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director