NAME OF JV COMPANY] SHAREHOLDERS AGREEMENT BY AND AMONG TRICO MARINE SERVICES (HONG KONG) LIMITED, CHINA OILFIELD SERVICES LIMITED AND [NAME OF JV COMPANY] Dated as of December 20, 2005
EXHIBIT
10.1
EXECUTION
COPY
[NAME
OF JV
COMPANY]
SHAREHOLDERS
AGREEMENT
BY
AND
AMONG
TRICO
MARINE
SERVICES
(HONG
KONG)
LIMITED,
CHINA
OILFIELD
SERVICES
LIMITED
AND
[NAME
OF JV
COMPANY]
Dated
as of December 20, 2005
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS AND
INTERPRETATION.......................................................
1
1.1
DEFINITIONS.......................................................................................................................
1
1.2
INTERPRETATION................................................................................................................
5
1.3
GOVERNING
LANGUAGE.
...................................................................................................
6
ARTICLE
II PURPOSE AND BUSINESS OF THE
COMPANY.............................................. 6
2.1
PURPOSE
...................................................................................................................................
6
2.2
SCOPE
OF
BUSINESS...............................................................................................................
6
2.3
VESSEL
BAREBOAT
PRINCIPLES
.........................................................................................
7
ARTICLE
III CAPITALIZATION;SUBSCRIPTION; CAPITAL CONTRIBUTIONS AND
TRANSFERS
.......................................................................................................................................
8
3.1
CAPITALIZATION;
SUBSCRIPTION
........................................................................................
8
3.2
CAPITAL
CONTRIBUTIONS.........................................................................................................
8
3.3
FAILURE
TO
MAKE
CAPITAL
CONTRIBUTION
.......................................................................
9
3.4
SHARE
CERTIFICATES
....................................................................................................................
9
3.5
PROJECT
START-UP
COSTS............................................................................................................
9
3.6
PRIORITY
SUBSCRIPTION
RIGHTS..............................................................................................
10
3.7
TRANSFER
OF SHARES;
RIGHT
OF
FIRST
REFUSAL..............................................................
10
3.8
BOARD
APPROVAL
OF TRANSFER..............................................................................................
11
3.9
AFFILIATE
TRANSFERS....................................................................................................................
11
ARTICLE
IV
FINANCING...........................................................................................................................
11
ARTICLE
V
MANAGEMENT OF THE
COMPANY...............................................................................
11
5.1
FORMATION
AND CHARTER
DOCUMENTS
.................................................................................
11
5.2
BOARD
OF
DIRECTORS;
TERM
AND
VACANCIES
........................................................................
11
5.3
MEETINGS
AND AGENDA.....................................................................................................................
12
5.4
QUORUM....................................................................................................................................................
12
5.5
POWER
OF
THE BOARD
OF
DIRECTORS............................................................................................
12
5.6
MATTERS
REQUIRING
RESOLUTION
BY UNANIMOUS
VOTE
.......................................................
14
5.7
DUTIES
OF
DIRECTORS;
CONFLICTS
OF INTEREST.........................................................................
14
5.8
BOARD
DISPUTES
.....................................................................................................................................
14
5.9
DELEGATION.................................................................................................................................................
15
5.10
COMPLIANCE...............................................................................................................................................
15
5.11
REMUNERATION
.........................................................................................................................................
15
5.12
INDEMNIFICATION
.....................................................................................................................................
15
i
5.13
SENIOR
OFFICERS.......................................................................................................
16
ARTICLE
VI SHAREHOLDER MEETINGS
......................................................................
16
6.1
GENERAL MEETING
....................................................................................................
16
6.2
CALLING A GENERAL MEETING;
AGENDA............................................................
17
6.3
RELATED MATTERS
....................................................................................................
17
6.4
QUORUM FOR GENERAL
MEETING..........................................................................
17
6.5
VOTING GENERALLY
.................................................................................................
17
6.6
ORDINARY RESOLUTIONS
........................................................................................
17
6.7
SPECIAL RESOLUTIONS
.............................................................................................
18
6.8
AUTHORIZATION OF
DOCUMENTS..........................................................................
18
ARTICLE
VII SHAREHOLDERS’
UNDERTAKINGS.......................................................
18
7.1
COSL
UNDERTAKINGS................................................................................................
18
7.2
TRICO
UNDERTAKINGS
.............................................................................................
19
7.3
COMPLIANCE WITH
LAW...........................................................................................
19
7.4
COMPANY’S INDEMNITY
OBLIGATION..................................................................
19
7.5
TAX
AND OTHER
PREFERENCES..............................................................................
20
7.6
PRESERVATION OF ECONOMIC BENEFITS
............................................................ 20
7.7
COSTS
AND EXPENSES
...............................................................................................
20
ARTICLE
VIII COVENANT NOT TO COMPETE
............................................................. 20
8.1
COMPETITION................................................................................................................
20
8.2
SEPARATE AGREEMENT
............................................................................................
21
ARTICLE
IX REPRESENTATIONS AND
WARRANTIES................................................ 22
(A)
DUE
ORGANIZATION AND EXISTENCE; CORPORATE POWER ........................
22
(B)
EXECUTION AND DELIVERY OF
AGREEMENT..................................................... 22
(C)
BINDING
AGREEMENT................................................................................................
22
9.2
TRICO
VESSELS
............................................................................................................
22
ARTICLE
X
PERSONNEL AND LABOR MANAGEMENT..............................................
23
10.1
EMPLOYEES; HIRING
................................................................................................
23
10.2
SENIOR MANAGEMENT
...........................................................................................
23
10.3
EXPATRIATE
EMPLOYEES........................................................................................
23
ARTICLE
XI
DIVIDENDS....................................................................................................
23
11.1
DIVIDENDS...................................................................................................................
23
11.2
RESERVES
....................................................................................................................
23
11.3
PRIOR YEAR
LOSSES..................................................................................................
24
ARTICLE
XII
TAXATION....................................................................................................
24
ii
12.1
TAX
MATTERS.............................................................................................................
24
ARTICLE
XIII FINANCE, ACCOUNTING AND AUDITING ..........................................
24
13.1
BOOKS AND
RECORDS..............................................................................................
24
13.2
FISCAL
YEAR...............................................................................................................
24
13.3
AUDITED ACCOUNTS; AUDITORS
.........................................................................
24
13.4
INTERIM ACCOUNTS
.................................................................................................
24
13.5
INSPECTION BY SHAREHOLDER-APPOINTED AUDITOR..................................
24
13.6
BANK
ACCOUNTS
......................................................................................................
25
13.7
TAX
MATTERS.............................................................................................................
25
ARTICLE
XIV TERM AND
TERMINATION.....................................................................
25
14.1
TERM; EFFECTIVENESS
............................................................................................
25
14.2
PROJECT
START-UP....................................................................................................
25
14.3
TERMINATION.............................................................................................................
26
14.4
CONTINUED OPERATION
.........................................................................................
26
14.5
LIABILITY.....................................................................................................................
26
ARTICLE
XV MANDATORY
BUY-SELL..........................................................................
27
15.1
REMEDIES
....................................................................................................................
27
15.2
NOTICE
.........................................................................................................................
27
15.3
MANDATORY
OFFER.................................................................................................
27
15.4
FINANCING; TERMS
..................................................................................................
27
15.5
OFFEREE RESPONSE NOTICE
..................................................................................
27
15.6
BUY-SELL
CLOSING...................................................................................................
28
15.7
BUY-SELL CLOSING
DELIVERIES...........................................................................
28
15.8
DEFAULT OF PURCHASING PARTY
.......................................................................
28
ARTICLE
XVI LIQUIDATION; BUYOUT
RIGHT.............................................................
29
16.1
LIQUIDATION...............................................................................................................
29
16.2
LIQUIDATION COMMITTEE
.....................................................................................
29
16.3
BUYOUT RIGHT
..........................................................................................................
29
ARTICLE
XVII
INSURANCE...............................................................................................
29
ARTICLE
XVIII
DEFAULT..................................................................................................
30
18.1
DEFAULT.......................................................................................................................
30
18.2
REMEDIES FOR
DEFAULT........................................................................................
30
ARTICLE
XIX FORCE
MAJEURE......................................................................................
30
19.1
FORCE MAJEURE
.......................................................................................................
30
19.2
SUSPENSION OF
OBLIGATIONS...............................................................................
30
iii
ARTICLE
XX GOVERNING LAW; DISPUTE RESOLUTION..........................................
31
20.1
GOVERNING LAW
......................................................................................................
31
20.2
DISPUTE
RESOLUTION..............................................................................................
31
20.3
WAIVER OF SOVEREIGN IMMUNITY
....................................................................
32
ARTICLE
XXI MISCELLANEOUS
....................................................................................
32
21.1
NOTICES........................................................................................................................
32
21.2
CONFIDENTIALITY
....................................................................................................
33
21.3
ENTIRE CONTRACT; SUPERSEDING EFFECT; PRECEDENCE...........................
33
21.4
WAIVER;
MODIFICATION.........................................................................................
34
21.5
HEADINGS....................................................................................................................
34
21.6
BINDING
EFFECT........................................................................................................
34
21.7
SEVERABILITY............................................................................................................
34
21.8
FURTHER
ASSURANCES............................................................................................
34
21.9
COUNTERPARTS.........................................................................................................
34
21.10
MUTUAL NEGOTIATION
........................................................................................
34
21.11
REMEDIES
CUMULATIVE.......................................................................................
34
21.12
CONSENTS;
AUTHORIZATIONS.............................................................................
35
21.13
TIME OF THE ESSENCE
...........................................................................................
35
21.14
NO
THIRD PARTY
BENEFICIARY..........................................................................
35
ANNEXES
ANNEX
1
Trico
Vessels
ANNEX
2
Company
Geographic ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ Charters
ANNEX
4
Initial
Board of Directors and Officers
ANNEX
5
BIMCO
Model Form Bareboat Charter Agreement
ANNEX
6
Trico
Vessel Specifications
iv
SHAREHOLDERS
AGREEMENT
This
SHAREHOLDERS AGREEMENT (this “Agreement”),
dated
as of December
20,
2005,
is by and among:
Trico
Marine Services (Hong Kong) Limited,
a
limited liability company duly organized
and
validly existing under the laws of Hong Kong and having its registered office
at
18/F
Tung
Ning
▇▇▇▇, ▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (hereinafter referred to
as
“Trico”);
China
Oilfield Services Limited,
a
corporation duly organized and validly existing under
the
laws
of the PRC and having its registered office at ▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, Haiyang new
and
Hi-tech
Development Zone, Tanggu, Tianjin 300451, PRC (“COSL”);
and
[Name
of JV Company],
a
limited liability company duly organized and validly existing
under
the
laws of the Hong Kong and having its registered office at _____ (the
“Company”).
Each
of
Trico, COSL and the Company is hereinafter sometimes referred to individually
as
a
“Party”,
and
collectively, as the “Parties”.
RECITALS
WHEREAS,
Trico possesses significant business know-how and experience in the
provision
of marine support services to offshore petroleum operations;
WHEREAS,
COSL possesses certain relationships necessary to develop the
marine
support
services business in and to and from the PRC;
WHEREAS,
after conducting a joint feasibility study, COSL and Trico together
are
desirous
of forming the Company for the purpose of developing a joint venture
marine
support
services business in the Territory and will cause the Company to enter
into
agreements
with customers to provide the Services; and
WHEREAS,
the Shareholders now desire to set forth their respective rights
and
obligations
in connection with the ownership and management of the Company and
their
cooperation
concerning the business of the Company and the provision of Services
to
customers
in the Territory.
NOW,
THEREFORE, following friendly consultations on the basis of mutual
benefit
and
equality, and in consideration of the mutual covenants and agreements set forth
herein
and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby
expressly acknowledged, the Parties, intending to be legally bound, hereby
agree
as
follows:
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
1.1 Definitions.
As used
in this Agreement (including the recitals hereto), the
following
words and terms shall have the meanings ascribed to them below:
1
“Act”
means
the Companies Ordinance (Chapter 32 of the Laws of Hong Kong).
“Affiliate”
means,
(i) in respect of COSL, any enterprise or other entity which,
directly
or indirectly, controls, or is controlled by COSL; the term “control”
meaning
ownership
of more than fifty percent (50%) of the registered capital or voting stock
(shares)
of,
or
the power to appoint a majority of the directors of the board of, an enterprise
or other
entity
and (ii) in respect of Trico, any company which, through ownership of voting
stock
(shares)
or otherwise, directly or indirectly, is controlled by, under common control
with, or
in
control of, Trico; the term “control” meaning ownership of more than fifty
percent (50%)
or
more
of the voting stock (shares) of a company, or the power to appoint or elect
a
majority
of
the
directors of a company, or the power to direct the management of a
company.
“Agreement”
has
the
meaning given to that term in the introductory paragraph
hereto.
“Authority”
means
the government, legislative or regulatory body of Hong Kong or
any
municipality or other political subdivision thereof or The Stock Exchange of
Hong Kong
Limited,
including any instrumentality, ministry, department, agency, court,
authority,
corporation,
commission, division, branch, office or industrial association under the direct
or
indirect
control of any such body, whose rulings and requirements have the force of
law
or
which
are
otherwise binding on the Company or a Party.
“Big
4”
means,
collectively, PriceWaterhouseCoopers, KPMG, Ernst & Young LLP,
and
Deloitte & Touche.
“Board”
means
the board of directors of the Company.
“Breaching
Shareholder”
has
the
meaning given to that term in Section 18.1.
“Business
Day”
means
any day other than a Saturday, Sunday or other day on which
banks
in
Hong Kong are required or authorized to be closed.
“Business
Dispute”
has
the
meaning given to that term in Section 5.8.
“Business
Dispute Notice”
has
the
meaning given to that term in Section 5.8.
“Buy-Sell
Closing Date”
has
the
meaning given to that term in Section 15.6.
“Buyout
Right”
means
the right of any Party who is not in default pursuant to this
Agreement
to purchase any other Party’s ownership rights, according to the procedure
in
Section
16.3.
“Capital
Contribution”
has
the
meaning given to that term in Section 3.2.
“Chairman”
means
the duly elected chairman of the Board.
“China”
or
“PRC”
means
the People’s Republic of China or any political subdivision thereof other than
Hong Kong.
2
“Claimant”
has
the
meaning given to that term in Section 20.2.
“Closing
Date” means
the
date on which COSL and Trico make their respective
Capital
Contributions as provided in Section 3.2.
“Company”
has
the
meaning given to that term in the introductory paragraph hereto.
“COSL”
has
the
meaning given to that term in the introductory paragraph hereto.
“Director”
means
any director for the time being of the Company and where
appropriate,
includes an alternate director.
“Dispute”
means
any dispute, controversy, claim, counterclaim, demand, cause of
action
or
other matter in question arising out of, relating to or in connection with
this
Agreement,
including the alleged breach hereof, or in any way relating to the subject
matter
of
this
Agreement or the relationship among the Parties created by this
Agreement.
“Encumbrances”
means
any mortgage, charge, lien, pledge, option, restriction, right
of
first
refusal, third party right or interest, or other encumbrance or security
interest of any
kind.
“Force
Majeure”
means
any event or circumstance outside the reasonable control of
a
Party,
including earthquake, typhoon, flood or other natural disaster, strike or war,
but not
including
acts or omissions of any Governmental Authority or any change of Law,
which
occurs
after the commencement of the term of the Company and prevents or hinders
any
Party
from entire or partial performance of its obligations hereunder.
“GAAP”
means
generally accepted accounting principles as are in effect from time
to
time
in
the United States of America, including the official interpretations thereof
as
defined
by
the
Financial Accounting Standards Board, its predecessors and its successors,
and
applied
on
a
consistent basis both as to classification of items and amounts.
“General
Shareholder Meeting”
means
any general meeting of Shareholders, being
either
an
annual general meeting or an extraordinary general meeting, conducted pursuant
to
this
Agreement, the Organizational Documents and the Act.
any
political subdivision thereof.
“Hong
Kong GAAP”
means
generally accepted accounting principles as are in effect
from
time
to time in Hong Kong, including any official interpretations thereof, and
applied on a consistent
basis
both as to classification of items and amounts.
“HK
Dollars”
means
the official currency of Hong Kong.
“ICC”
has
the
meaning given to that term in Section 20.2.
“Interest
Rate”
means
an interest rate that is equal to the lower of (a) the highest rate
permitted
by applicable Law or (b) LIBOR plus two percent (2%).
3
“Law”
means
any constitution, statute, code, regulation, rule, injunction,
judgment,
order,
circular, decree, ruling, charge or other restriction of any applicable
Authority.
“LIBOR”
means
the
offered rate for U.S. dollar deposits, for a three-month period in
an
amount
that is nearest in amount to the amounts to which the Interest Rate applies
quoted
on
the
day that is two Business Days prior to the date from which interest accrues
with
respect
to amounts owed hereunder, as such appears on Page 3750 of the Dow ▇▇▇▇▇
Market
(Telerate)
Service (or such other page as may replace Page 3750 on such service or
such
service
as may be nominated by the British Bankers' Association as the information
vendor
for
the
purpose of displaying British Bankers' Association Settlement Rates for
Dollar
deposits)
as of 11:00 a.m. London time on such date.
“Liquidation
Committee”
has
the
meaning given to that term in Section 16.2.
“Loss”
means
any actually paid or payable claim, loss, cost, liability, expense,
damage,
judgment, obligation, charge, fee, fine, penalty, costs, and expenses of
litigation or
other
dispute resolution (including court costs, bonds and other deposits required
by
any court of justice, arbitration tribunal or governmental authority, and
attorney’s and expert’s fees or disbursements).
“Major
Shareholder”
means
each of Trico and COSL.
“Material
Adverse Effect”
means
any action or series of actions, or inaction, by a
Party
that has had an adverse effect or effects on the assets, liabilities,
operations, business
condition
(financial or otherwise) or prospects of the Company which, individually or
in
the
aggregate,
results or could reasonably be expected to result in a Loss to the Company
or
diminution
of greater than ten percent (10%) of the net asset value of the
Company.
“Non-Breaching
Shareholder”
has
the
meaning given to that term in Section 18.1.
“Ordinary
Shareholder Resolution”
has
the
meaning given to that term in Section 6.6.
“Organizational
Documents”
means
the Memorandum and Articles of Association
of
the
Company, including all amendments thereto.
“Party”
or
“Parties”
has
the
meaning given to each such term in the introductory
paragraph
hereto.
“Person”
means
any natural person, partnership, corporation, company, trust,
enterprise,
governmental entity or other entity or association having separate
legal
personality.
“Project
Start-up Costs”
means
the costs and expenses incurred by the Shareholders
that
are
directly associated with the development and establishment of the
Company,
including
without limitation (i) costs incurred in connection with transporting the
Trico
Vessels
to locations in the Territory and in connection with dry docking, class
inspection and
re-flagging
of such vessels, (ii) legal consulting fees, (iii) financial consulting fees,
(iv)
engineering
consulting fees, (v) due diligence costs and expenses, and (vi) working
group
operating
expenses, such as office rent and equipment, travel, telecommunication
costs,
salaries
and other expenses.
4
“Project
Start-up Team”
has
the
meaning given to that term in Section 14.2.
“Respondent”
has
the
meaning given to that term in Section 20.2.
“Rules”
has
the
meaning given to that term in Section 20.2.
“Services”
has
the
meaning given to that term in Section 2.2.
“Shareholders”
means
the Major Shareholders and any additional holders of Shares
of
the
Company made party to this Agreement.
“Shares”
means
the ordinary shares of the Company, as more fully described in
Section
3.1.
“Special
Shareholder Resolution”
has
the
meaning given to that term in Section 6.7.
“Territory”
has
the
meaning given to that term in Section 2.1.
“Total
Capital Contribution”
has
the
meaning given to that term in Section 3.2.
“Tribunal”
means
the panel of three (3) arbitrators appointed pursuant to Section
20.2.
“Trico”
has
the
meaning given to that term in the introductory paragraph hereto.
“Trico
Vessels”
means
the 14 vessels listed on Annex 1.
“U.S.
Dollars”
means
the official currency of the United States of America.
1.2 Interpretation.
In this
Agreement:
(a)
all
defined terms include the plural as well as the singular;
(b)
words
importing any gender include other genders;
(c)
the
terms “hereof” or “thereof”, “herein” or “therein”, “hereunder” or
“thereunder”,
and comparable terms refer to the entire agreement with respect to
which
such terms are used and not to any particular article, section or
other
subdivision
thereof;
(d)
a
reference to any Person or Party includes the successors and
permitted
assigns
of such Person or Party;
(e)
references to laws, statutes or regulations include any amendment
or
modification
to such law, statute or regulation and are to be construed as including
all
statutory
or regulatory provisions consolidating, amending or replacing the
law,
statute
or regulation referred to;
5
(f)
references to any document, instrument or agreement shall (i) include
all
schedules,
annexes, exhibits and other attachments thereto, (ii) include all
documents,
instruments
or agreements issued or executed in replacement thereof and (iii)
except
where
otherwise indicated, mean such document, instrument or agreement,
or
replacement
or predecessor thereto, as amended, modified and supplemented from
time
to
time and in effect at any given time;
(g)
the
words “include”, “includes” and “including” are not limiting and
shall
mean
“including without limitation”;
(h)
references to “Articles” or “Sections” or “Annexes” are references
to
articles
or sections or annexes (as the case may be) of this Agreement, unless
stated
otherwise;
(i)
references to any Authority includes any Authority succeeding to
the
functions
and capabilities of an Authority; and
(j)
any
reference in this Agreement to a “day” is a calendar day and shall
include
Saturdays, Sundays and holidays, except that if an obligation to be
performed
under
this Agreement falls due on a Saturday, Sunday or any other day which is not
a
Business
Day, the obligation shall be deemed due on the next occurring
Business
Day.
Any
reference herein to a “month” is a calendar month (in accordance with
the
Gregorian
calendar).
1.3
Governing
Language.
The
governing language of this Agreement shall be the
English
language. All notices, correspondence, information, literature, data,
manuals,
procedures
and other documents required under this Agreement shall be in the
English
language
and the Chinese language, provided that in the event of any discrepancy
between
them,
the
English language version shall prevail.
ARTICLE
II
PURPOSE
AND BUSINESS OF THE COMPANY
2.1
Purpose.
The
Company shall be engaged primarily in the development and
provision
of international marine support services for the oil and gas industry in the
countries
listed
on
Annex 2 (the “Territory”)
and to
facilitate and enhance the technological and
economic
cooperation between the Major Shareholders so as to achieve the
expected
economic
benefits and targets of the Major Shareholders.
2.2
Scope
of Business.
The
scope of business of the Company shall include the
following
services (the “Services”):
(a)
to
provide marine support services for the oil and gas industry in the
Territory
for offshore exploration, production, construction and pipeline
projects,
including
marine transportation of drilling materials, supplies and crews, and
support
for
the
construction, installation, maintenance and removal of offshore
facilities;
(b)
to
provide marine support services for deepwater remotely operated
vehicle
(“ROV”)
and
remote intervention support services and pre-set mooring and
deepwater
anchor deployment;
6
(c)
to
provide support vessels for pre-installation survey and precision
lightweight
global positioning system receiver activities; fiber optic cable
installation,
cable
plough and burial ROV operations, and installation and post-lay burial
standby
and
system maintenance; and
(d)
to
conduct any other business and activities permitted under
applicable
Hong
Kong
Law to achieve the business purposes of the Company, as defined by
the
Board
from time to time.
2.3
Vessel
Bareboat Principles.
The
Parties agree and acknowledge that during
the
start-up period of the Company’s business, it is in the interest of the Company
for certain
Trico
Vessels to be engaged under bareboat charter arrangements. To this end and
without
prejudice
to the restrictions on the Territory of the Company set forth in Section 2.1,
Trico
and
COSL
shall enter into bareboat charter contracts with the Company in respect of
one
or
more
of
the Trico Vessels as provided in Sections 2.3(a) and 2.3(a) below; provided,
however,
that
such charters shall be, in respect of Trico, only for operations
conducted
outside
the Territory, and, in respect of COSL, only for operations conducted in the
PRC, in
each
case
unless the Party receives the approval of the majority of the Board. The
Parties
further
acknowledge that Trico has entered into long-term charter contracts with
third-party
charterers
in respect of certain of the Trico Vessels, and that such charter contracts
will
remain
in
effect until the primary term and any charterer-elected contractual option
periods
have
expired.
(a)
COSL
Charters within the PRC.
COSL
shall enter into bareboat charter
arrangements
with the Company in respect of the Trico Vessels indicated on
Annex
3(A) for operations conducted in the PRC, such bareboat charters to
commence
on the first day that such Trico Vessels are available to COSL for
operations
in the PRC market and to terminate on the later of (i) the end of
any
existing
charter contract term for such vessel (including any applicable
charterer-elected
contractual option periods); and (ii) the bareboat end of term
date
specified with respect to such vessel on Annex 3(A). All such
bareboat
charter
arrangements shall be based on the BIMCO Model Form Bareboat
Charter
Agreement attached as Annex 5 hereto and shall include pricing
terms
as
set
forth on Annex 3(A).
(b)
Trico
Charters Outside of the Territory.
Trico
shall enter into bareboat
charter
arrangements with the Company in respect of the Trico Vessels
indicated
on Annex 3(B) for operations to be conducted outside of the
Territory,
such bareboat charters to commence on the first day that ownership
and
title
of such Trico Vessels legally transfers to the Company and to
terminate
on the later of (i) the end of any existing charter contract term
for
such
vessel (including any applicable charterer-elected contractual
option
periods);
and (ii) the bareboat end of term date specified with respect to
such
vessel
on
Annex 3(B). Notwithstanding the foregoing, Trico shall have the
right
to
extend such bareboat charters through December 31, 2006. If Trico
elects
to
extend any applicable charter contract beyond June 30, 2006, Trico
shall
provide notice to the Company within 10 days thereof and
acknowledge
that
the
applicable charter contract shall expire as of December 31, 2006.
The
Parties
agree that the charter rate for any such extension period shall be
agreed
between
Trico and the Company and that in any case such charter rate shall not
exceed
125% of the bareboat rate set forth on Annex 3(B). All such charter
contracts
shall be based on the BIMCO Model Form Bareboat Charter
Agreement
attached as Annex 5 hereto and shall include pricing terms as set
forth
on
Annex 3(B).
ARTICLE
III
CAPITALIZATION;SUBSCRIPTION;
CAPITAL CONTRIBUTIONS AND
TRANSFERS
3.1 Capitalization;
Subscription.
The
total authorized capital of the Company
as
of
the
date hereof is HK$1,000,000, divided into one million (1,000,000)
ordinary
shares(“Shares”),
each
Share having a par value of HK$1.00. Each of the Shares shall have
the
same
voting and other rights and privileges, except as otherwise specified in
this
Agreement
and the Organizational Documents. COSL shall subscribe for five
hundred
thousand
(500,000) Shares, representing 50% of the issued and outstanding Shares, and
Trico
shall
subscribe for five hundred thousand (500,000) Shares, representing 50% of the
issued
and
outstanding Shares, in consideration of their respective Capital Contributions
on the
Closing
Date.
3.2
Capital
Contributions.
(a)
The
total amount of Capital Contributions of the Company shall
initially
be
forty-one million U.S. Dollars (US$41,000,000) (such amount, the “Total
Capital
Contribution”),
which
shall include US$38,000,000 in fixed assets and
US$3,000,000
in working capital. The Total Capital Contribution shall comprise
the
following
Capital Contributions (each a “Capital
Contribution”)
by
each of the
Major
Shareholders:
(i) COSL
Contribution.
As
consideration for its Shares,
COSL
shall on the Closing Date make its Capital Contribution in
immediately
available funds in the amount of twenty million five
hundred
thousand US Dollars (US$20,500,000).
(ii)
Trico
Contribution.
As
consideration for its Shares,
on
the
Closing Date, Trico shall make its Capital Contribution in kind
in
the
amount of twenty million five hundred thousand U.S. Dollars
(US$20,500,000)
by contributing and assigning to the Company (either
directly
or effectively by contract) all of its rights, title and interest
in
the
Trico
Vessels, which shall include all vessel spares parts assigned
to
such
vessels as of the Closing Date. The Parties agree and
acknowledge
that the total value of the Trico Vessels is deemed to be
thirty-eight
million US Dollars (US$38,000,000). Accordingly, the
Parties
agree that, in addition to its Shares, Trico shall receive on the
Closing
Date immediately available funds from the Company in the
amount
of
seventeen million five hundred thousand US Dollars
(US$17,500,000)
in exchange for its contribution of the Trico Vessels,
such
amount constituting the difference between the value of the Trico
Vessels
and Trico’s Capital Contribution.
7
(iii) Closing
Date.
The
Closing Date shall occur on the
date
that
is mutually agreed by COSL and Trico; provided,
however,
that
in
no event shall the Closing Date occur more than forty-five (45)
days
after the execution of this Agreement.
3.3
Failure
to Make Capital Contribution.
(a)
In
the
event that a Major Shareholder fails to make its Capital Contribution
or
any
part
thereof within the time period stipulated herein, such Major Shareholder shall
be
liable
to
pay interest to the other non-defaulting Major Shareholder on the amount of
its
Capital
Contribution or any relevant part thereof. Interest shall accrue at the Interest
Rate
from
the
date such Capital Contribution is due until the date such Capital Contribution
is
actually
paid into the Company. If the Capital Contribution of a Major Shareholder
remains
outstanding
(in part or in whole) ten (10) Business Days after the date specified for
such
Capital
Contribution, the other non-defaulting Major Shareholder shall have the right
to
terminate
this Agreement in accordance with the terms of this Agreement.
(b)
In
the
event that a Major Shareholder fails to make its Capital Contribution
in
full
within the time period stipulated herein for any reason, including its inability
to timely
secure
any required PRC government approvals, the other non-defaulting Major
Shareholder
shall
have the right to terminate this Agreement in accordance with the terms of
this
Agreement;
provided, however, that if the defaulting Major Shareholder provides
prior
written
notice to the non-defaulting Shareholder of its desire to extend the time
period, the
non-defaulting
Shareholder may at its discretion elect to extend the time period for a
mutually
agreed
period, such extension to be without prejudice to any of the
non-defaulting
Shareholder’s
rights under this Agreement.
3.4
Share
Certificates.
After
each Major Shareholder has made its own Capital
Contribution,
the Company shall issue a share certificate to such Major
Shareholder
representing
the Shares, which share certificate shall bear the following legend in
English:
“THE
TRANSFER OR ENCUMBRANCE IN ANY MANNER OF THE SHARES
REPRESENTED
BY THIS SHARE CERTIFICATE IS
RESTRICTED
BY AND SUBJECT TO
THE
PROVISIONS OF THE MEMORANDUM
AND ARTICLES
OF ASSOCIATION
OF THE
COMPANY,
AS
WELL
AS THAT CERTAIN SHAREHOLDERS
AGREEMENT,
DATED
AS
OF
DECEMBER
20,
2005,
COPIES
OF
ALL OF WHICH MAY BE REVIEWED AT THE
COMPANY’S
HEAD
OFFICE DURING BUSINESS HOURS.”
The
share
certificates issued to the Major Shareholders will be conclusive evidence
of
full
provision of the Capital Contribution made by each Major Shareholder. In case
of
loss or
damage
of
the share certificate, the affected Major Shareholder shall immediately notify
the
Board
of
such loss or damage, and simultaneously apply for the issuance of a
new
replacement
share certificate.
3.5 Project
Start-up Costs.
All
Project Start-up Costs incurred by any of the
Major
Shareholders from the date of execution of this Agreement shall be capitalized
and
treated
as part of the Company start-up costs upon approval of the Directors at the
inaugural
meeting
of the Board. Upon execution of this Agreement, the Major Shareholders shall
each
contribute
funds into an expense account in order to fund Project Start-up Costs incurred
after
the
execution of this Agreement in accordance with a budget to be proposed by the
Project
Start-up
Team. All Project Start-up Costs shall be borne by the Major Shareholders in
proportion
to
their
respective percentage ownership interest in the Company, and the
consent
of
the
Project Start-up Team shall be required in order to pay Project Start-up Costs
from
such
jointly administered expense account.
8
3.6
Priority
Subscription Rights.
In the
event the Board decides to increase the
authorized
and issued share capital of the Company above the amount set forth in Section
3.1
above,
including pursuant to an issuance of Shares, options or warrants for Shares,
or
other
instruments
convertible into equity of the Company, then each Major Shareholder
shall,
during
the period established by the duly adopted resolution of the Shareholders
authorizing
the
issuance of such Shares, have the right, but not the obligation, to subscribe
for any such
Shares,
options, warrants or other instruments, pro
rata based
on
such Major Shareholder’s
ownership
percentage of the then issued and outstanding Shares. The Parties agree that
the
Board
will not have the power to increase the authorized capital of the Company,
nor
to
require
any additional investment in the Company by the Major Shareholders, until
after
payment
in full has been made by each Major Shareholder of its undertaken
Capital
Contribution
as set forth in Section 3.2.
In
the
event the Board decides to increase the authorized and issued share capital
of
the
Company and a Major Shareholder fails to subscribe or pay for the pro
rata portion
of the
Shares
to
which it is entitled during such period, that Major Shareholder shall notify
the
Board
in
writing of its intention not to participate in such increase within thirty
(30)
days
after
the
Board has notified the Major Shareholders of its decision to increase the
authorized
and
issued share capital of the Company. In such event the Major Shareholder who
elected to
exercise
its right shall have the right to purchase the unsubscribed or unpaid portion.
In that
case,
after the authorized and issued share capital of the Company has been increased,
the
percentage
interest of the Shareholders set forth in Section 3.1 shall be adjusted
accordingly.
3.7
Transfer
of Shares; Right of First Refusal.
When a
Shareholder intends to assign,
sell,
transfer, alienate or dispose of all or any of its Shares (a “Transferring
Shareholder”),
it
shall deliver to the Company and the other Shareholders written notice
(an
“Offer
Notice”)
thereof setting forth (i) the name of the transferee, (ii) the number of
Shares
to
be
transferred (the “Offered
Shares”),
and
(iii) the transfer price. The Major Shareholders
shall
have a right of first refusal exercisable in writing within ninety (90) days
of
the receipt
of
such
notice, to purchase the Offered Shares at a price and on terms and conditions
no
less
favorable
than those offered to such third party. If the Major Shareholders fail to
exercise
their
right to acquire the Offered Shares within ninety (90) days after the date
of
the
Transferring
Shareholder’s Offer Notice, then, subject to Section 3.8 below, such
Major
Shareholder(s)
shall be deemed to have given its consent to such transfer and the
Transferring
Shareholder
shall be free to assign, sell, transfer, alienate or dispose of the Offered
Shares to
the
third
party, subject to the following:
(a)
such
transfer is valid under the laws of Hong Kong;
(b)
the
Transferring Shareholder shall provide the Major Shareholders with
a
copy
of
the executed written transfer agreement, which shall provide that
the
transferee
shall assume all the rights and obligations of the Transferring
Shareholder
under
this Agreement; and
9
(c)
neither the business of the Company nor the performance of this
Agreement
or other contracts or agreements shall be materially and adversely
interrupted
by any such sale or other transfer of such interest.
If
the
Major Shareholders exercise their right to acquire the Offered Shares within
such
thirty-day
period, then,
subject to Section 3.8, the Transferring Shareholder shall sell the
Offered
Shares to the Major Shareholders exercising
its rights on the terms set forth in the Offer Notice.
3.8
Board
Approval of Transfer.
No
Shareholder shall assign, sell, transfer,
alienate
or dispose of all or any of its Shares to a third party without the unanimous
consent
of
the
Board. Each the Major Shareholder agrees to direct its representatives on the
Board to
consent
to any transfer that satisfies the provisions set forth in Section 3.7. Further,
no
Shareholder
shall pledge, hypothecate or encumber its Shares, either voluntarily
or
involuntarily,
without the express written consent of the other Party.
3.9 Affiliate
Transfers.
Notwithstanding the provisions of Section 3.7 and
Section
3.8, a Shareholder may assign all or some of its Shares to an Affiliate;
provided that
the
assigning Shareholder shall remain liable in the event the transferee fails
to
perform its
obligations
under this Agreement, and the non-assigning Shareholders hereby waive
their
pre-emptive
rights of purchase in such event and hereby provide their consent to
such
assignment.
The non-assigning Shareholder hereby covenants that it will comply with
all
reasonable
requests of the Transferring Shareholder to effect the assignment to an
Affiliate,
including
instructing its Directors to sign a Board resolution approving the
assignment,
executing
an amendment contract whereby the Affiliate becomes a party to this Agreement
as
a
Shareholder and other acts required by Hong Kong Law.
ARTICLE
IV FINANCING
The
Company’s future additional financing will be obtained by utilizing
funds
through
loans from financial institutions or other sources to be entered into on
reasonable
commercial
terms. No Shareholder shall be required to provide any guarantee, indemnity
or
security
for the borrowings of the Company.
ARTICLE
V
MANAGEMENT
OF THE COMPANY
5.1
Formation
and Charter Documents.
The
Company shall exist and operate
pursuant
to the terms of the Organizational Documents, this Agreement and applicable
Law.
The
Board
is the highest authority of the Company, and business and affairs of the
Company
shall
be
exercised by or under the authority of the Board as provided
herein.
5.2
Board
of Directors; Term and Vacancies.
The
Company shall be governed
by
a
Board composed of six (6) directors, of which the Shareholders agree three
(3)
shall be
nominated
by COSL and three (3) by Trico. The Directors shall be elected by
the
Shareholders
for a term of office of three (3) years. A Director whose term of office
expires
may
be
re-elected. Should any casual vacancy occur in the membership of the Board,
the
Board
shall appoint the person nominated by the Shareholder that nominated the
Director
whose
departure created such vacancy. Within 30 days following the end of the term
of
office
for
the
initial Chairman (and thereafter for each successor Chairman), the Shareholders
shall
discuss
and agree upon a successor Chairman, who shall be elected from one of the
Directors.
The
initial Board members and Chairman are listed on Annex 4. Each Shareholder
may
replace
one or more Directors appointed by it at any time upon written notice to the
other
Parties
of such appointment or replacement.
10
5.3
Meetings
and Agenda.
The
Board shall convene at least four (4) meetings
every
year and may meet from time to time, as may be convened by the Chairman or
by
the
majority
of Directors. Following the inaugural meeting of the Board, the first meeting
each
year
shall be held within two (2) months after the end of each preceding fiscal
year.
Additionally,
the Board shall meet on an annual basis to discuss the desirability
and
feasibility
of expanding the Company’s business into additional markets.
Board
meetings shall be held at the Company’s principal office in Hong Kong or
at
such
other location as may be agreed by the Board and shall be presided over by
the
Chairman.
Board meetings may also be convened by teleconference; provided,
however,
that
at
least
one Board meeting each year shall be held in person. In lieu of a meeting of
the
Board,
the Board may adopt resolutions by written consent provided such resolution
is
sent to
all
directors and affirmatively signed by all of the Directors. Such resolution
shall become
effective
on the date when all of the Directors have executed it (which may be in
counterparts
or
by
facsimile).
The
Chairman shall deliver to each Director a written notice not less than ten
(10)
days
before the date of each regular Board meeting. The notice will set forth the
agenda,
invitees,
place and time of the Board meeting. Should the Chairman deem it necessary,
or
upon
the
request of two or more Directors, the Chairman of the Board shall convene a
special
meeting
and shall send a written notice of such meeting to all the Directors within
twenty-one
(21)
days
of the Chairman’s decision or receipt of such request.
If
a
Director wishes an interpreter to attend a Board meeting to
facilitate
communication
between the Directors, such Director shall so inform the Chairman.
The
Party
that nominated such Director shall supply an interpreter at its sole
expense.
5.4
Quorum.
A
quorum for meetings of the Board shall require the presence in
person
or
by phone in accordance with the Organizational Documents of at least five
(5)
Directors.
Each
Director, including the Chairman, shall have only one vote. Except as set
forth
in
Section 5.6, all decisions of the Board shall be taken by the affirmative vote
of a majority
of
the
Directors. The proceedings of meetings of the Board will be conducting in
English and
Chinese.
Unless otherwise required by applicable Law, the official minutes of meetings
and
resolutions
taken therein shall be kept in English and Chinese, and shall be signed by
the
Directors
present at the meeting and shall be entered in the minute book of the
Company.
Decisions
may be taken or resolutions passed by the Board without a meeting if a
proposal
for
action is submitted in writing to each of the members of the Board and each
such
member
consents
in writing to such action (this may be performed by counterpart copies and
by
facsimile)
5.5
Power
of the Board of Directors.
Except
as otherwise expressly provided by
applicable
Law or this Agreement, and except for matters that, under applicable Law or
this
Agreement,
fall exclusively within the jurisdiction of the General Shareholder Meeting,
the
Board
shall, consistent with any resolutions of the General Shareholder Meeting,
administer
the
business and property of the Company and manage the affairs of the Company
and
shall
have
full
authority to do so, provided that its resolutions and acts are consistent with
the Act,
this
Agreement and the Organizational Documents. Without limiting the foregoing,
the
Board
shall
not
take any action requiring an Ordinary Shareholder Resolution pursuant to
Section
6.6
or a
Special Shareholder Resolution pursuant to Section 6.7 or as required by the
Act, but
the
Board
of Directors may implement a decision made by an Ordinary
Shareholder
Resolution
or a Special Shareholder Resolution.
11
Subject
to
the foregoing and the authority delegated by the General Shareholder
Meeting,
the
functions and powers of the Board shall include decisions on the following
matters:
(a)
the
appointment, dismissal or alteration of the description of duties of
the
Chief
Executive Officer, Chief Operating Officer, Executive Vice President, or
Chief
Financial
Officer;
(b)
the
Company’s business policy, development plans, long-term objectives,
economic
plans (including investment), and financing plans;
(c)
the
acquisition, assignment, transfer or lease of title to land and
structures
on
land;
(d)
the
grant or creation of any mortgages related to the Company’s
property;
(e)
the
commencement of litigation or arbitration proceedings against third
parties
which could have a material impact on the business of the Company;
(f)
the
examination and approval of the Company’s annual report, balance
sheets,
profit and loss statement and the report on changes in the financial position
of
the
Company;
(g)
the
establishment of annual budgets and the plans for marine support
service
business and personnel;
(h)
the
establishment of employee benefit plans and human resources
policies;
(i)
systems and methods of financing and accounting;
(j)
establishment, acquisition, disposition or closing of branch offices,
and
other
facilities outside of Hong Kong;
(k)
allocation of net profits including contributions to legally required
funds,
dividend
payments, measures for making up losses and measures for handling
unforeseen
events;
(l)
formulating basic guidelines on staff and workers, including conditions
of
employment,
pensions, salaries and salary standards, bonuses, subsidies, labor
insurance,
labor protection and disciplinary rules and regulations;
12
(m)
conclusion, modification and termination of contracts involving the
import
or
transfer of patent and trademark rights, know-how and technical
cooperation;
(n)
appointment and dismissal of external auditor(s) of the Company;
and
(o)
any
other matter that is not included in Section 5.6 or otherwise
delegated
to
the
Chief Executive Officer or Chief Operating Officer.
5.6 Matters
Requiring Resolution by Unanimous Vote.
Subject
to the first
paragraph
of Section 5.5 and the authority delegated by the General Shareholder Meeting,
the
following
matters shall be resolved only pursuant to a resolution passed by
unanimous
agreement
of the Board:
(a)
extension, termination, dissolution and liquidation of the Company;
(b)
merger with, participation in and withdrawal from other economic
organizations;
(c)
any
amendment to the Organizational Documents of the Company,
including
any increase in the authorized capital of the Company;
(d)
any
acquisition, assignment, transfer or other disposition of equipment
or
other
property with a book or market value in excess of the sum of five million
US
Dollars
(US$5,000,000);
(e)
any
(i) material expansion of, or amendment to, the business scope or
organizational
structure of the Company, (ii) significant changes in development
of
Company’s
business activities or, (iii) amendment to the Territory listed on Annex
2;
(f)
incurrence of indebtedness (including any guarantee of indebtedness
of
another
party) in excess of five million US Dollars (US$5,000,000) (or the
equivalent
thereof
in any other currency) at any one time, other than as provided in the
budget.
5.7
Duties
of Directors; Conflicts of Interest.
Directors
shall avoid any situation
that
would conflict with
the
interests of the Company, including:
(a)
a
commercial transaction between the Company and a Director or
between
the
Company and an entity in which the Director has a direct or indirect
interest;
(b)
holding a direct or indirect interest in a competitor of the Company;
or
(c)
receiving value from an entity other than the Company in an attempt
to
influence
the actions of the Company.
The
Directors shall inform the Board immediately upon the occurrence of any
conflict
of
interest.
5.8
Board
Disputes
(a)
If
the Board has been unable to obtain sufficient votes or consents as
provided
in Section 5.5 or Section 5.6 to approve or disapprove any action listed in
Section
5.5 or Section 5.6, as the case may be, that is properly submitted to it for
a
vote
(either of which, a “Business
Dispute”),
then
the Board members will consult
and
negotiate with each other in good faith to find a mutually agreeable solution.
If
the
Board
does not reach such solution within 30 days from the date the
disagreement
occurred,
then either Major Shareholders may give notice to the other that the Board’s
failure
to approve or disapprove such action will, in such Party’s judgment, adversely
affect
the
Company (a “Board
Dispute Notice”).
Notwithstanding the foregoing, in the event that a
Business
Dispute involves issues or factors that require a longer period to resolve,
the
Parties
may
agree to extend such period by mutual consent in writing.
13
(b)
Within two (2) days after the giving of the Dispute Notice, the
Business
Dispute
will be referred by the Board to the senior executive of each Major
Shareholder
to whom the respective Board members report (each a “Party
Executive”)
in
an
attempt to reach resolution. If the Party Executives are unable to resolve
the Business
Dispute
within ten (10) days after the date of the Dispute Notice, or
such
longer period as they
may
agree
in writing, then they will refer the BusinessDispute
to the chief executive officer of each
Party.
The chief executive officers willmeet,
consult and negotiate with each other in good faith. If
they
are
unable to agreewithin
20
days of the date of the Dispute Notice, then they will adjourn such
attemptsfor
a
further period of five (5) days during which no meeting will be held. On the
day
following
such
period, the chief executive officers of the Parties will meet again in an
effort
to
resolve the
Business
Dispute. If the chief executive officers are unable to resolve
the Business Dispute within
48
hours after the time at which their last meeting occurred, and one of the
Parties reasonably determines
that
such
Business Dispute constitutes, will give rise to, or result in, a Material
Adverse Effect, then
Article
XV will apply.
5.9
Delegation.
The
Board may, to the extent permitted by this Agreement, the
Organizational
Documents and the Act, delegate its responsibilities from time to time to
any
of
its
members and to individuals occupying other senior management positions. Should
the
Chairman
be unable to perform his duties for any reason, he may temporarily authorize
any
other
Director in writing to represent the Company.
5.10
Compliance.
The
Shareholders hereby expressly covenant and agree to cause
each
member of the Board elected from nominees nominated by it to comply in full
with
the
provisions
of this Agreement, the Organizational Documents, and the Act.
5.11
Remuneration.
The
Directors shall not receive remuneration for their
services
as Directors.
The
Major Shareholder that appointed the Directors shall reimburse the
reasonable
costs of transportation, meals and lodging and other per diem allowances
incurred
while
the
Directors are engaged in matters relating to the business of the
Company.
5.12
Indemnification.
The
Company may, by Ordinary Shareholder Resolution
indemnify
and hold harmless every person involved in any action, suit or
proceeding,
whether
civil, criminal, administrative or investigative by reason of the fact that
he
or she, or
a
person
of whom he or she is the legal representative, is or was a director or officer
of the
Company,
whether the basis of such proceeding is alleged action in an official capacity
as a
director,
officer, employee or agent or in any other capacity, to the fullest extent
authorized
by
applicable Law.
14
5.13
Senior
Officers.
The
Company shall have the following senior officers: one
(1)
Chief
Executive Officer, who shall also be the General Manager of the Company, one
(1)
Chief
Operating Officer, one (1) Executive Vice President, and one (1) Chief
Financial
Officer.
During the first 36 months commencing on the Closing Date, the Major
Shareholders
agree
to direct their respective Directors to vote for Trico’s nominees for the
positions of Chief
Operating
Officer and Chief Financial Officer and to vote for the COSL’s nominees for the
positions
of
Chief
Executive Officer and Executive Vice President. Commencing on the date that
is
36 months
from
the
Closing Date, or on such earlier date as the Major shareholders may mutually
agree, the Major
Shareholders
agree to direct their respective Directors to vote for the candidate for the
position of Chief
Executive
Officer nominated by the Party that did not appoint the Director who is
currently serving as the
Chairman.
The positions of Chief Operating Officer, Executive Vice President, and Chief
Financial Officer
shall
be
agreed and appointed by the Board.
The
Chief
Executive Officer shall report to the Board and shall have responsibility for
the day-to-day
management
and operation of the Company. The Chief Executive Officer shall
act
upon the instructions
of
the
Board, executing
its resolutions.
The
senior
officers shall act in accordance with the laws and regulations of Hong Kong.
Should
the Chief Executive Officer be unable to perform his duties for any reason,
the
Chief
Operating Officer may temporarily carry out the duties of the Chief Executive
Officer
until
such time as a new Chief Executive Officer is appointed or the Chief Executive
Officer
has
resumed the performance of his duties. No senior officer shall hold a post
concurrently
with
other economic organizations, nor shall any senior officer be engaged (in
whatever
capacity)
in any other economic organizations which are in commercial competition with
the
Company.
The
Chief
Executive Officer, Chief Operating Officer, Executive Vice President,
and
the
Chief
Financial Officer may be dismissed at any time by a decision of the Board.
Should
the
Chief
Executive Officer, Chief Operating Officer, Executive Vice President, and
the
Chief
Financial Officer violate any law or be derelict in their duties, the Board
may
dismiss
them.
Unless
otherwise decided by the Board, the term of office for all senior personnel
(the
Chief
Executive Officer, Chief Operating Officer, Executive Vice President, and
Chief
Financial
Officer) shall be three (3) years.
ARTICLE
VI
SHAREHOLDER
MEETINGS
6.1
General
Meeting.
An
annual General Shareholder Meeting shall be held each
year
no
later than four (4) months after the end of the preceding fiscal year at the
Company’s
head
office or at such other location as may be designated by the Board. An
extraordinary
General
Shareholder Meeting may be convened at any time as and when necessitated by
the
needs
of
the Company in accordance with Section 6.2. Decisions may be taken or
resolutions
passed
by
the Shareholders without a General Shareholder Meeting if a proposal for action
is
submitted
in writing to each of the Shareholders and each such Shareholder consents
in
writing
to such action (this may be performed by counterpart copies and by facsimile)
and
such
written consents shall be as effective as if an Ordinary Shareholder Resolution
or Special
Shareholder
Resolution had been passed by the Shareholders at a General Shareholder
Meeting.
15
6.2
Calling
a General Meeting; Agenda.
The
Board shall call an annual General
Shareholder
Meeting for each year. An extraordinary General Shareholder Meeting may
be
called
by
the Board, or by one or more Shareholders holding an aggregate percentage of
at
least
40%
of the Shares.
The
Company or other applicable person shall provide notice of a
General
Shareholder Meeting to each Shareholder at least ten (10) Business Days in
advance
of
such
General Shareholder Meeting.
6.3 Related
Matters.
The
chairman of the General Shareholder Meeting shall be
elected
from among the Shareholders (or their representatives) by a majority vote of
the
Shares
represented at the relevant meeting. The secretary and the vote collector of
the
General
Shareholder Meeting shall be elected from among the Shareholders (or
their
representatives).
Unless otherwise required by applicable Law, each General
Shareholder
Meeting
shall be conducted in English and Chinese, and the minutes of each
General
Shareholder
Meeting shall be prepared in English and Chinese promptly after each
meeting
and
shall
be kept in the minute book of the Company.
6.4
Quorum
for General Meeting.
A
quorum for any General Shareholder
Meeting
shall consist of Shareholders present in person or represented by proxy holding
more
than
75%
of the Shares, provided that the presence of a quorum shall not modify or lessen
the
affirmative
vote required by Sections 6.6 and 6.7. If within three hours of the time
appointed
for
a
General Shareholder Meeting such quorum is not present, the General
Shareholder
Meeting
shall stand adjourned to such place, time and date, not less than two (2)
Business
Days
and
not to exceed 30 days thereafter, as the Board may establish by written notice.
At
such
successive General Shareholder Meeting, the same requirement for having a
quorum
shall
be
applicable.
6.5
Voting
Generally.
Each
Share shall entitle its owner to one vote. Votes shall
be
cast
in writing. Shareholders may be represented at General Shareholder Meetings
by
a
corporate
representative in the case of companies or by proxies, the holders of which
need
not
be
Shareholders. Proxy holders that are Shareholders shall be entitled to vote
based on the
Shares
of
the Shareholders they represent separately, in addition to voting based on
their
own
Shares.
6.6
Ordinary
Resolutions.
Except
as set forth in Section 6.7 or as required by
the
Organizational Documents or the Act, all resolutions, actions and decisions
of
the
Shareholders
shall be adopted, taken or made at a General Shareholder Meeting by
the
affirmative
vote
of
Shareholders (or their representatives) representing a majority of
all
issued
and outstanding Shares (not just those Shares that are present or represented
by
proxy)
or
by
written consent in lieu of a meeting if signed by all of the Shareholders
(“Ordinary
Shareholder
Resolutions”).
Without prejudice to any other provisions of this Agreement
that
require the Shareholders to act by Ordinary Shareholder Resolution, the
following
actions
shall require the action of the Shareholders acting by Ordinary
Shareholder
Resolution:
(a)
any
decision establishing or modifying the fundamental accounting
policies
of the Company;
16
(b)
any
agreement by the Company to guarantee the payment or performance
of
the
obligations of any other Person;
(c)
any
approval of the taking of any material action by the Company
outside
the
ordinary course of business;
(d)
any
decision for the Company to incur indebtedness for borrowed money
in
an
amount above the limits set forth in Section 5.6; and
(e)
appointing or removing the Company’s independent auditors.
6.7
Special
Resolutions.
Resolutions, actions and decisions of the Shareholders
may
only
be adopted, taken or made at a General Shareholder Meeting by the
affirmative
vote
of
Shareholders (or their representatives) representing at least two-thirds (66
2/3%)
of
all issued and outstanding Shares (not just those Shares that are present or
represented by proxy)
or
by written consent in lieu of a meeting if signed by all of the Shareholders,
in
respect of the
following
matters (“Special
Shareholder Resolutions”):
(a)
any
merger, consolidation or similar amalgamation of the Company with
any
other
company or concern;
(b)
any
decision to dissolve, wind-up, liquidate, deregister or terminate
the
Company;
(c)
any
sale, transfer, assignment or other disposition of all or substantially
all
of
the
assets of the Company;
(d)
alteration to the rights attaching to the Shares; and
(e)
any
amendment to the Organizational Documents.
6.8
Authorization
of Documents.
To be
valid and binding, all notes, offers and
acceptances,
powers of attorney, commitments, deeds, transfers, assignments,
contracts,
obligations,
certificates and other instruments of the Company must be authorized by
(i)
Ordinary
Shareholder Resolution, with respect to those matters set forth under Section
6.6, or
(ii)
Special Shareholder Resolution, with respect to those matters set forth under
Section 6.7.
Subject
to the Act, this Agreement and the Organizational Documents, the Shareholders
may
delegate
such of this authority and power as it considers appropriate to a member or
members
of
the
Board, other executives of the Company or other appropriate Persons (subject
to
authorization
and spending limits to be specified by Ordinary Shareholder Resolution
or
Special
Shareholder Resolution, as the case may be).
ARTICLE
VII SHAREHOLDERS’ UNDERTAKINGS
7.1
COSL
Undertakings.
In
addition to its other obligations set forth in this
Agreement,
COSL hereby covenants and undertakes to:
(a)
assist in handling all the matters and providing all documents related to
the
establishment
of the Company, including the application to the relevant PRC authorities for
any approvals, filing
for
registrations, or obtaining of business licenses,
if
required;
17
(b)
assist the Company in dealing with any PRC Government Authorities
and
third
parties as may be necessary to ensure that the Company is able to operate in
the
manner
contemplated herein;
(c)
assist the Company in applying for tax benefits and other
preferential
treatments;
(d)
assist non-PRC employees of Trico and the Company in obtaining
entry
visas
and
providing assistance for their travels in China; and
(e)
any
other responsibilities as may be agreed upon by the Parties from
time
to
time.
7.2
Trico
Undertakings.
In
addition to its other obligations set forth in this
Agreement,
Trico hereby covenants and undertakes to:
(a)
provide any relevant documents and materials necessary for the
establishment
of the Company;
(b)
provide its expertise with respect to the Services to the Trico Vessels
and
marine
support service industry trends as well as world-class marketing
and
managerial
skills;
(c)
other
responsibilities as may be agreed upon by the Parties from time to
time;
and
(d)
in
support COSL’s desire to include the accounts of the Company in the
consolidated
accounts of COSL or its Affiliates in accordance with Hong Kong
GAAP,
effect a change to the pro
rata shareholding
of the Company, such that COSL
shall
subscribe for five hundred and ten thousand (510,000) Shares, and Trico
shall
subscribe
for four hundred ninety thousand (490,000) Shares, representing 51%
and
49%
of
the issued and outstanding Shares, respectively.
7.3
Compliance
with Law.
All of
the activities of the Company shall comply
with
applicable Hong Kong Law, provided,
however,
that
nothing in this Agreement shall be
deemed
to
require Trico or any person appointed or nominated by Trico pursuant to
this
Agreement
to violate any law or regulation applicable to Trico or such appointee or
nominee.
For
the
purposes of this Section, Trico shall include any Affiliate of Trico as well
as
the
directors,
officers, employees and agents of Trico and its affiliates.
7.4
Company’s
Indemnity Obligation.
The
liability of each of the Shareholders
in
respect of the Company shall be limited to the amount, if any, unpaid on the
Shares
respectively
held by them. The creditors of the Company shall have recourse only to
the
assets
of
the Company and shall have no right to claim compensation or seek other
remedies
from
the
Shareholders. The Company shall indemnify any of the Major Shareholders
against
any
and
all losses, damages or liability suffered by such Major Shareholder in respect
of
third-party
claims against such Major Shareholder arising out of the operation of the
Company.
Subject
to the foregoing, the Shareholders will share the profits, risks and
losses
of
the
Company proportionately to their respective shareholding
percentages.
18
7.5 Tax
and Other Preferences.
If,
during the term of this Agreement, Hong
Kong,
PRC
or any subdivision or agency thereof, issues, amends, supplements or
rescinds
any
tax,
foreign exchange or other laws, rules, regulations or decrees which result
in
treatment
that is more favorable to the Company or any Major Shareholder than the terms
of
this
Agreement and the laws, rules, regulations and decrees applicable to the Company
as of
the
date
of this Agreement, the Company and/or the Major Shareholders shall each use
its
or
their
reasonable efforts to apply for and obtain, upon approval of such application
(if
necessary),
the benefits of such preferential treatment.
7.6 Preservation
of Economic Benefits.
If,
during the term of this Agreement, a
Major
Shareholder’s economic benefits under this Agreement are directly or
indirectly
(through
its interest in the Company) materially and adversely affected because of any
tax,
foreign
exchange or other laws, rules, regulations or decrees, or any amendment
or
supplement
to or rescission of the same by the government of Hong Kong, PRC or
any
subdivision
or agency thereof, the Parties shall consult promptly upon notice of such
effect
and
shall
make any and all necessary amendments to the relevant provisions of
this
Agreement
in order to maintain in all material respects such Major Shareholder’s
economic
benefits
hereunder. The Parties shall use their reasonable efforts to have the
amendments
approved
by the appropriate approval authority, if such approval is required under
applicable
Law
in
effect at that time.
7.7
Costs
and Expenses.
Each of
the Shareholders shall bear its own costs in
connection
with the performance of its respective undertakings as set forth
above.
ARTICLE
VIII COVENANT NOT TO COMPETE
8.1 Competition.
(a)
Each of
the Shareholders recognizes that it will derive substantial economic
benefit
from
the
Company’s successful development and provision of the Services, and in
consideration
thereof
has voluntarily agreed to the covenants set forth in this Section 8.1. Each
of
the Shareholders
further
acknowledges and agrees that the limitations and restrictions set forth herein
are reasonable and not
oppressive
and are material and substantial parts of this Agreement intended to protect
the
Parties’
substantial
and legitimate business interests with respect to the Services and the
Company.
In
view of
the foregoing and subject to Section 8.2, the Shareholders hereby
covenant
and
agree that none of them will engage in, or permit their respective
Affiliates
to
engage in, any of the Services within the Territory. Specifically, none
of
them
shall,
nor shall they permit any of their Affiliates to:
(i)
at
any
time from the Closing Date until the
expiration
of five (5) years from the date such Shareholder ceases to
hold
a
beneficial interest in any Shares, directly or indirectly, for
itself
or
on
behalf of or in conjunction with any other Person or business of
whatever
nature, engage or participate in any business similar to, or competing
with
the
business of the Company (either directly orindirectly) in the
Territory;
19
(ii)
at any
time from the Closing Date until the
expiration
of five (5) years from the date such Shareholder ceases to
hold
a
beneficial interest in any Shares, appropriate, or fail to promptly
notify
and turn over to the Company, any business opportunity relating
to
or
arising in connection with the business of the Company and/or the
provision
of Services, or engage in any activity that is detrimental to
the
Company’s business or that limits the Company’s ability to fully
exploit
such business opportunities or prevents the benefits of such
business
opportunities from accruing to the Company and the Major
Shareholders;
or
(iii)
at
any
time from the Closing Date until the
expiration
of two (2) years from the date it ceases to hold a beneficial
interest
in any Shares, directly or indirectly, for itself or on behalf of
or
in
conjunction with any other Person or business of whatever nature,
solicit,
interfere with or endeavor to entice away from the Company
any
customer, employee, subcontractor or consultant of the Company.
(b)
The
Company, Trico and COSL further acknowledge and agree that the
Company,
at any time from the Closing Date, shall not, with respect to (A) COSL
and
its
traditional marine services business in China, or (B) Trico and its
traditional
marine
services business outside of the Territory:
(i)
either
directly or indirectly, engage or participate in many business similar to,
or
competing with, such Major Shareholder’s traditional marine services business
i
n
its
respective territory; or
(ii)
appropriate,
or fail to promptly notify and turn over to such Major Shareholder, any
business
opportunity relating to or arising in connection with the traditional marine
services
business
of such Major Shareholder in its respective territory and/or the provision
of
Services,
or
engage
in any activity that is detrimental to such Major Shareholder’s
traditional marine services
business
in its respective territory or that limits such Major Shareholder’s ability to
fully exploit
such
business opportunities or prevents the benefits of such business opportunities
from accruing
to
such
Major Shareholder.
Notwithstanding
the foregoing, the Company shall be permitted to take the actions specified
in Sections 8.1(b)(i)
and/or
(ii) if the Company receives the prior approval in writing of such Major
Shareholder’s management prior
to
commencement of such
actions.
8.2
Separate
Agreement.
The
covenants set forth in Section 8.1 above are
severable
and separate, and the unenforceability of any specific covenant shall not affect
the
provisions
of any other covenant. Moreover, in the event any court of competent
jurisdiction
shall
determine that the scope, time or territorial restrictions set forth are
unreasonable, then it
is
the
intention of the Parties that such restrictions be enforced to the fullest
extent which the
court
deems reasonable, and this Agreement shall thereby be reformed.
20
ARTICLE
IX REPRESENTATIONS AND WARRANTIES
9.1
Each
of
the Parties represents and warrants to the others as follows:
(a)
Due
Organization and Existence; Corporate Power. It is a duly formed
and
validly
existing legal entity under the laws of the jurisdiction of its establishment.
It has
complied
with all its legal and statutory obligations and has all legal capacity and
corporate
power
under its constitutive documents to execute and deliver this Agreement and
perform its
obligations
under this Agreement.
(b)
Execution
and Delivery of Agreement. The execution of this Agreement by
its
undersigned representative and the delivery and performance by it of this
Agreement:
(i)
have
been
duly authorized by all necessary corporate actions and legal
actions;
(ii)
do
not
and shall not result in the breach of, or constitute a default
under,
or
require the consent under, its constitutive documents or any
indenture,
bank loan or credit arrangement, mortgage, or other agreement or
instrument
to
which it is a party or by which it or any of its properties may be
bound
or
affected; and
(iii)
do
not
require any consent, approval, authorization, or other order of,
or
action by,
any Authority or any other third party, other than such consents,
approvals,
authorizations, orders and actions as have been obtained by it on
or
prior
to the
date hereof, which remain in full force and effect on the date
hereof.
(c) Binding Agreement. This Agreement, when duly executed and delivered by
the
Parties, shall constitute its valid, binding and enforceable obligation in
accordance with
its
terms.
9.2
Trico
Vessels.
(a)
COSL
hereby acknowledges and agrees that it has been provided with a
copy
of
the third party appraisal prepared for Trico by an independent third
party
valuation
firm and agrees that the valuation of the Trico Vessels provided in
such
third
party appraisal is acceptable.
(b)
COSL
hereby acknowledges that the
Trico
Vessels are being assigned to
the
Company “as is”, “where is” and with “all faults” but free from
Encumbrances.
Notwithstanding
foregoing, Trico shall warrant that at the time the Trico Vessels
are
contributed
to the Company in accordance with the terms of this Agreement, all of
the
equipment
on board each Trico Vessel, as set forth in Annex 6, shall be in
working
condition.
Other than as expressly set forth in this Agreement, Trico disclaims any
representations
or
warranties as to the value or condition of the Trico Vessels or
their
suitability
for any particular purpose.
21
ARTICLE
X PERSONNEL AND LABOR MANAGEMENT
10.1
Employees;
Hiring.
The
recruitment, dismissal, compensation, labor
insurance,
welfare benefits, rewards, penalties and other matters relating to the employees
of
the
Company shall be conducted in accordance with the plans formulated by the Board
and
applicable
Law. The Board may, in its discretion, delegate decisions on employee and
labor
matters
to the Chief Executive Officer and the Chief Operating Officer.
10.2 Senior
Management.
The
appointment and compensation of the Chief
Executive
Officer, Chief Operating Officer, Executive Vice President, and Chief
Financial
Officer
shall be decided by the Board on the basis of their respective positions and
duties and
set
forth
in contracts with the Company.
10.3
Expatriate
Employees.
Expatriate employees of the Company delegated
from
Trico or one of its subsidiaries shall receive salaries, welfare and other
benefits from the
Company
equal to those paid to comparable personnel of Trico or its Affiliates outside
the
PRC,
plus
foreign living allowance as established by the majority of the Board.
Such
salaries,
welfare and other benefits shall be paid in US Dollars in accordance with
the
provisions
of this Agreement. Expatriate employees of the Company delegated from
COSL
or
one of
its subsidiaries shall receive salaries, welfare, living allowance and other
benefits
not
less
favourable than that from Trico.
ARTICLE
XI DIVIDENDS
11.1
Dividends.
The
Board may declare and pay dividends in such amounts as the
Board
determines to be appropriate having regard to the Company’s financial condition
and
its
current and projected cash requirements. Dividend distribution will be made
to
Shareholders
according to their respective pro
rata ownership
percentage of the Shares of the
Company.
Dividends may be paid in cash or cash equivalents, in the Company’s own
shares
or
other
form as the Board deems appropriate. Cash dividend distributions to Trico,
if
any,
will
be
made in U.S. Dollars and, unless Trico instructs otherwise, will be remitted
to
an
account
or accounts designated by Trico. Cash dividend distributions to COSL (including
any
distribution
to be made upon a liquidation of the Company), if any, will be made in U.S.
Dollars a
nd
will
be paid to an account or accounts designated by COSL.
At
the
Board’s discretion, the Company may pre-distribute available profits
as
dividends
to the Shareholders quarterly each year, with the final statement at the end
of
each
year.
11.2
Reserves.
Prior to
payment of any dividend, the Board, by resolution, may
make
allocations for a reserve fund out of the Company’s surplus or designate or
allocate any
part
or
all of such surplus in any manner for any
proper
purpose or purposes, and, subject to
the
provisions of applicable Law and the Organizational Documents, may increase,
create, or
abolish
any such reserve, designation, or allocation in the same manner.
22
11.3
Prior
Year Losses.
The
Company may not distribute a dividend until the
losses
of
the previous fiscal year have been recouped. Dividends not distributed in any
fiscal
year
may
be distributed together with the profits of the current fiscal
year.
ARTICLE
XII TAXATION
12.1
Tax
Matters.
The
Company shall pay taxes in accordance with applicable
Law.
The
Company, the Shareholders and all of their personnel shall obtain the benefits
of
all
tax
exemptions, reductions, privileges and preferences that are now, or in the
future
become,
obtainable under applicable Law and under any applicable treaties or
bilateral
arrangements
to which Hong Kong is now or in the future becomes a party.
ARTICLE
XIII
FINANCE,
ACCOUNTING AND AUDITING
13.1
Books
and Records.
The
Company will adopt an accounting system which
uses
accruals, debits and credits, and which is consistent with GAAP and Hong Kong
GAAP
and
will
maintain, or cause to be maintained, proper and complete records and books
of
account
in accordance with the requirements of the Act and other applicable Law.
Such
books
and
records shall accurately and fairly reflect, in reasonable detail, all of
the
Company’s
transactions and shall be denominated in U.S. Dollars. The books will be open
to
inspection
by any Shareholder, or the representative of any Shareholder, designated in
writing
by
such
Shareholder, at the principal executive office of the Company during normal
business
hours
on reasonable written notice. The records shall include quarterly unaudited
financial reports
prepared
in accordance with both GAAP and Hong Kong GAAP by or under the supervision
of
the
Company’s
Chief Financial Officer, which shall be furnished to each of the
Shareholders.
13.2
Fiscal
Year.
The
fiscal year of the Company will be from January 1 to
December
31 or such other periods as the Board of Directors shall designate from time
to
time.
13.3
Audited
Accounts; Auditors.
The
Board shall retain one or more of the Big
4
to
conduct annual audits of the accounts of the Company, which audits shall be
completed
no
later
than three (3) months following the close of each fiscal year. All such audits
shall be
conducted
in accordance with GAAP and Hong Kong GAAP. The auditors shall submit
such
other
audit reports as the Chief Executive Officer, the Chief Financial Officer or
the
Board
may
request from time to time.
13.4
Interim
Accounts.
Within
30 days after the end of each quarter, the Chief
Executive
Officer shall provide the Major Shareholders with financial statements of
the
Company
prepared by the Chief Financial Officer for the previous quarter. On or prior
to
March
31,
the Chief Executive
Officer
and the Chief Financial Officer shall, with the
assistance
of the Company’s auditors, prepare the previous year’s balance sheet, cash
flow
statements,
profit and loss statement and recommendation for profit distribution, and
submit
them
to
the Board for examination and approval, and after examination and approval
by
the
Board,
deliver them to the Major Shareholders.
13.5
Inspection
by Shareholder-Appointed Auditor.
Any
Major Shareholder
shall
have the right to retain independent certified public accountants or auditors
to
examine
the
records of the Company annually or at any time at the expense of such Major
Shareholders.
Such
Major Shareholder shall report the results to the other Major Shareholder.
If the results of
any
such
audit are materially different (by five percent (5%) or more
of
net income) from that
conducted
by the Company’s auditor and are accepted by the Board,
the expense of such
audit
shall be borne by the Company.
23
13.6
Bank
Accounts.
The
Company shall maintain accounts in its own name in
one
or
more banks or other institutional depositories selected by the Board and the
cash funds
of
the
Company shall be kept in such accounts. The funds in such accounts shall
be
withdrawn
only on the signatures of any Person or Persons designated in writing by,
or
pursuant
to the written instructions of, the Board. Funds of the Company will not
be
commingled
with funds of any other Person.
13.7
Tax
Matters.
The
Company shall take any and all reasonable action required
to
assist
COSL and/or Trico to complete their income tax reporting requirements, so long
as
such
actions do not in any case adversely affect or create any additional obligations
for the
Company.
ARTICLE
XIV TERM AND TERMINATION
14.1
Term;
Effectiveness
(a)
This
Agreement shall become effective immediately upon the signature of
each
Party’s authorized representative; provided,
however,
that
neither Trico nor
COSL
shall have any obligation to make its respective Capital Contribution or
to
consummate
the transactions contemplated under this Agreement until each of
them
shall
have provided written notice to the other confirming that such notifying
Party’s
board
of
directors or other appropriate organ of corporate authority has approved
the
execution,
delivery and performance by such Party of this Agreement; and further
provided
that
the
Parties’ respective board of directors or other appropriate organ
of
corporate
authority shall have the right to make reasonable comments regarding
the
Agreement.
(b)
Each
of COSL and Trico will use reasonable efforts to obtain such
approval
from its respective board of directors or other appropriate organ of
corporate
authority
no later than 40 days following the date of this Agreement. In the event
that
such
approvals are not obtained by such date, either Party may terminate
this
Agreement
upon five (5) days’ prior notice to the other Party.
(c)
This
Agreement shall continue in effect for as long as either of the
Major
Shareholders
(or their successors or assigns) owns any Shares, unless this
Agreement
is
earlier terminated upon the mutual written agreement of the Shareholders
or
pursuant
to its terms.
14.2
Project
Start-up.
Prior to
the Closing Date, a team comprising a director of
the
Board
nominated by COSL, a director of the Board nominated by Trico, a senior
officer
nominated
by COSL and a senior officer nominated by Trico shall be established
(the
“Project
Start-up Team”)
for
development and establishment of the Company including
proposing
Project Start-up Costs and approving the transfer of money in an expense
account
to
pay
Project Start-up Costs pursuant to Section 3.5. Trico agrees that within 20
days
of the
date
of
this Agreement it shall provide the Company and the Project Start-up Team
updated
information
and evaluation of the market for the Services in the Southeast Asia
market.
24
14.3
Termination.
This
Agreement may be terminated and the Company
dissolved
upon the unanimous approval of the Board. The Parties agree that upon
the
occurrence
of any of the following events, and upon receipt of a written request from
a
Major
Shareholder,
the other Major Shareholder will cause its respective Directors to vote
to
terminate
this Agreement and to dissolve the Company; provided,
however,
that no
Major
Shareholder
shall have the right to terminate this Agreement as the result of any
occurrence
or
event
listed below to the extent same shall have been caused by any action or omission
of
such
Major Shareholder, or its Affiliates:
(a)
Inability of the Company to continue operations due to heavy
losses;
(b)
Inability of the Company to continue operations due to the failure of
a
Shareholder
to perform its obligations under this Agreement;
(c)
A
material breach by any Party of its obligations under this
Agreement,
which
breach cannot timely be remedied to the reasonable satisfaction of the
nonbreaching
Parties;
(d)
If,
after the execution of this Agreement, any Major Shareholder’s
rights
under
this Agreement are adversely and materially affected by any event,
including
the
promulgation of any new laws, regulations or other actions of a government
office
in
Hong
Kong or the PRC restricting or otherwise adversely affecting the rights of
the
Company
or any Major Shareholder under this Agreement, and the Parties fail
to
reach
an
agreement on the steps to take to prevent the adverse effects after
having
consulted
with each other and made efforts to make any adjustment necessary
to
maintain
each Major Shareholder’s rights under this Agreement;
(e)
Mutual agreement of the Parties hereto because of an event of Force
Majeure;
(f)
Any
Major Shareholder is adjudicated insolvent or bankrupt; or
(g)
Other
situations determined by a unanimous vote of the Board.
14.4
Continued
Operation.
Upon the
occurrence of any of the events listed in
Section
14.3 above and the written request of one of the Major Shareholders to dissolve
and
terminate
the Company, the Parties shall have 30 days from the receipt of such
termination
request
to unanimously agree to continue the operation of the Company, provided the
Parties
have
agreed upon such revisions or amendments to the Organizational Documents and
this
Agreement.
14.5
Liability.
Unless
otherwise agreed by the Parties the termination of this
Agreement
shall not relieve the Shareholders or the Company from liability for
nonperformance
of
obligations which have accrued hereunder prior to the date of such
termination.
25
ARTICLE
XV MANDATORY BUY-SELL
15.1
Remedies.
Either
Major Shareholder may elect a remedy set forth in Section
15.2
upon
the occurrence of a Business Dispute that is not resolved pursuant to Section
5.8;
provided
that the failure to resolve such Business Dispute constitutes or will constitute
or
result
in
a Material Adverse Effect.
15.2
Notice.
A Major
Shareholder may, within ten (10) days of the conclusion of
the
procedures set forth in Section 5.8(b), give notice to the other Major
Shareholder. The
notice
must specify one of the following alternatives: (a) dissolution and termination
of the
Company
in accordance with Article XVI; or (b) initiation of the sale of its Shares
or
the
purchase
of the other Party’s Shares by giving the notice specified in Section 15.3. If
both
Major
Shareholders give notices within that time period, the notice given first
prevails.
15.3
Mandatory
Offer.
Either
Major Shareholder (the “Offeror”)
may
give
written
notice (the “Mandatory
Offer”)
to the
other Major Shareholder (the “Offeree”),
stating
that the Offeror offers unconditionally at the option of the Offeree both:
(a)
to
purchase
all of the Shares of the Offeree, and (b) to sell all of the Shares of the
Offeror to the
Offeree,
in each case with the same purchase price specified per Share.
15.4
Financing;
Terms.
The
Mandatory Offer will be accompanied by one or
more
binding written commitments from substantial and reputable financial
institutions to
provide
the purchasing Party with funds sufficient to purchase all of the Shares,
subject only
to
conditions that are customary in such commitments and that are reasonably likely
to be
satisfied.
The
Mandatory Offer will be irrevocable by the Offeror until the earlier of (a)
the
Buy-Sell
Closing Date or (b) the date on which the Offeree elects to purchase the
Offeror’s
Shares
pursuant to Section 15.5(ii). The Mandatory Offer will not have any other
terms,
except
that (i) the purchase may be made by a wholly-owned subsidiary or other designee
of
the
purchasing Party (and any reference to the purchasing Party will also be a
reference to
any
such
subsidiary or other designee, as applicable), and (ii) the purchasing Party
will
undertake
to (A) assume at the Buy-Sell Closing Date all obligations of the selling Party
to
third
parties in connection with the selling Party’s Shares (with a corresponding
reduction in
the
purchase price); and (B) to use reasonable efforts to obtain the release of
the
selling Party
from
such
known obligations between the date of the Mandatory Offer and the
Buy-Sell
Closing
Date. Each Party further agrees to direct its representatives on the Board
to
consent
to
the
sale of the Shares from by the selling Party to the purchasing
Party.
15.5
Offeree
Response Notice.
At any
time during the 30 days following receipt
of
the
Mandatory Offer, the Offeree may give the Offeror a written notice electing
either to:
(i)
sell
all of the Shares of the Offeree; or (ii) buy all of the Shares of the Offeror
(in which
case
the
Offeree’s notice must be accompanied by the binding written commitments
from
substantial
and reputable financial institutions required by Section 15.4); in either case
upon
the
terms
in this Article 15 and otherwise as set out in the Mandatory Offer.
If
the
Offeree fails to give the notice within the 30-day period, or if the
Offeree’s
notice
is
not accompanied by the binding written commitments from substantial and
reputable
financial
institutions required by Section 15.4, then it will be conclusively deemed
to
have
accepted
the Mandatory Offer of the Offeror to purchase the Offeree’s Shares pursuant to
Section
15.3(a) in accordance with the terms of the Mandatory Offer.
26
15.6
Buy-Sell
Closing.
The
closing (the “Buy-Sell
Closing”)
of the
purchase and
sale
will
take place on the 60th day following the date on which the Mandatory Offer
under
Section
15.3 is given, or, if that day is not a Business Day, on the next following
Business
Day
(the
“Buy-Sell
Closing Date”).
The
Buy-Sell Closing Date will be extended to the
extent
necessary for either Party to secure any required governmental approval or
consent so
long
as
that Party is using its reasonable efforts to pursue the approval or consent
and
every
30
days
during the extension delivers to the other Party a certificate that approval
is
being so
pursued.
The Buy-Sell Closing will take place at 11:00 am on the Buy-Sell Closing Date
at
the
offices of the attorneys for the Company (or, if there are none, at the offices
of the
attorneys
for the selling Party).
15.7
Buy-Sell
Closing Deliveries.
At the
Buy-Sell Closing, the purchasing Party
will
pay
the purchase price for the selling Party’s Shares in immediately available
funds, and
the
selling Party will deliver the following executed documentation, in form and
substance
reasonably
acceptable to the purchasing Party: (i) an assignment of the selling Party’s
Shares;
(ii)
the
resignation of each of its designees who are acting as directors on the Board
or
officers
of the Company; (iii) a general release of all claims against the Company and
the
purchasing
Party relating to Company matters; and (iv) such other documentation as
the
purchasing
Party may reasonably require in order to vest in the purchasing Party or
its
designee
full right, title and interest in and to the Shares of the selling
Party.
15.8
Default
of Purchasing Party.
If the
purchasing Party defaults in any of its
closing
obligations, the selling Party will have the option to purchase all of the
purchasing
Party’s
Shares at a price for each Share of the purchasing Party that is 75% of the
purchase
price
for
each Share that would have been payable on the original Buy-Sell Closing.
The
option
is
to be exercised by notice to the purchasing Party not later than 60 days after
the
original
Buy-Sell Closing Date. The new Buy-Sell Closing will occur at a date and
time
reasonably
designated in the notice, which date will not be later than 90 days after the
notice.
If
the
selling Party exercises its option provided in the preceding sentence, the
selling Party
will
suffer damages as a consequence of such default; therefore, if a purchase is
subject to
this
Section 15.8, the difference between the purchase price paid for the Shares
of
the
purchasing
Party pursuant to this Section 15.8 and the Fair Market Value of the Shares
of
the
purchasing
Party will be regarded for all purposes as liquidated damages and not as a
penalty.
For
purposes of this Section 15.8, “Fair Market Value” and “Fair Market Value of
the
Company”
are each the highest price available for the Company in an open and
unrestricted
market
between informed, prudent Persons, acting at arms’ length and under no
compulsion
to
act,
expressed in terms of money or money’s worth and will disregard any value that
might
be
assigned by a purchaser with a special interest. The Fair Market Value of a
Party’s Shares
is
the
amount determined by multiplying (a) the Fair Market Value of the Company by
(b)
a
number,
the numerator of which equals the number of Shares held by the Party and
the
denominator
of which equals the total number of Shares issued and outstanding.
27
ARTICLE
XVI LIQUIDATION; BUYOUT RIGHT
16.1
Liquidation.
The
assets of the Company shall be liquidated and the Company
dissolved
in accordance with the Act and applicable Hong Kong Law: (i) upon
the
termination
of this Agreement or (ii) if the Company is adjudicated insolvent or
bankrupt.
16.2
Liquidation
Committee.
The
liquidation of the Company shall be carried out
by
a
committee (the “Liquidation
Committee”),
which
shall be appointed by the Board and
shall
comprise at least one of each Major Shareholder’s appointed Directors and/or
other
qualified
persons. The Liquidation Committee shall have the power and authority to
represent
the
Company in all legal matters concerning the liquidation and will be responsible
for the
valuation
and liquidation of the Company’s assets in accordance with applicable Hong
Kong
Law
and
the principles set forth in this Agreement. The Liquidation Committee shall
use
best
endeavors
to realize, upon the sale of all of the assets of the Company, the going
concern
value
of
the Company based upon the actual circumstances of the Company, taking
into
account
the market value of companies in similar industries and internationally
accepted
principles
relevant to the determination of going concern value.
16.3
Buyout
Right.
Upon
any termination of this Agreement arising from a
default
committed by a Major Shareholder, the Major Shareholder who is not in
default
under
any
of its obligations pursuant to this Agreement shall have the right (the
“Buyout
Right”)
to
purchase the Shares of the other Shareholders. The purchase price shall be
an
amount
equal to the selling Shareholder’s pro
rata Share
ownership in the Company
multiplied
by the valuation of the Company as determined by an independent third
party
qualified
to perform such activities to be appointed by the Major
Shareholders.
A
Shareholder purchasing Shares pursuant to a Buyout Right shall pay the
purchase
price
to
the selling Shareholder within 90 days after the purchase price has been
determined
or
after
any requisite governmental approvals have been obtained, whichever date is
later. If,
for
any
reason, the buying Shareholder does not pay the purchase price in full within
such 90-
day
period, then interest shall be paid thereafter upon the unpaid balance until
the
fully
unpaid
balance and accrued interest are paid. Such interest shall be calculated at
the
Interest
Rate.
In
the
event the non-selling Shareholder declines to purchase 100% of the
other
selling
Shareholders’ Shares, the Liquidation Committee shall use its reasonable efforts
to
locate
a
purchaser for the Company. If no purchaser is found within ninety (90) days,
then
the
Liquidation Committee shall proceed to sell the assets of the Company at a
price
not less
than
their then reasonable value as an on-going concern and, after deducting the
expenses of
the
Liquidation Committee and any tax due on that portion of the equity of the
Company that
exceeds
the Total Capital Contribution, shall distribute the net proceeds to each of
the
Shareholders
pro-rata based on the ratio the Shares held by such Shareholder bears to
the
total
number of issued and outstanding Shares of the Company.
ARTICLE
XVII INSURANCE
The
Company shall obtain and maintain insurance policies on various risks
including
but
not
limited to the machinery and industrial products for lease to third parties,
with an
insurance
company or companies authorized to engage in the insurance business in
Hong
Kong.
The
insurance policies, value insured and the terms of insurance shall be decided
by
the
Board.
28
ARTICLE
XVIII DEFAULT
18.1 Default.
A
Shareholder (the “Breaching
Shareholder”)
shall
be in breach of
this
Agreement if it fails fully to perform, or suspends its performance of, any
of
its
obligations
under this Agreement and such failure or suspension is not corrected within
45
days
of
receipt of written notice of such breach from any other Shareholder (the
“Non-
Breaching
Shareholder”),
or,
if such failure or suspension cannot reasonably be corrected
within
45
days of such notice, within such longer period as may reasonably be required
to
correct
such failure or suspension, not to exceed 90 days from receipt of written notice
of
such
breach from any Non-Breaching Shareholder.
18.2
Remedies
for Default.
Upon
the occurrence of a breach of this Agreement
and
delivery of the written notice under the preceding Section 18.1, the
Non-Breaching
Shareholder
or Shareholders may then request termination of this Agreement upon
delivery
of
15
days’ prior written notice to the Breaching Shareholder. The Breaching
Shareholder
shall
indemnify the Company and the Non-breaching Shareholder for any loss, cost,
liability
and
expense, including but not limited to, attorney’s fees, incurred as a result of
such breach,
together
with interest thereon, from the date of the occurrence of such loss through
the
date of
payment,
calculated at the Interest Rate.
ARTICLE
XIX FORCE MAJEURE
19.1
Force
Majeure.
Should
any Party be prevented from performing in whole or
in
part
its obligations under this Agreement (other than any obligation to pay money)
due to
an
event
of Force Majeure, the affected Party shall promptly notify the other Parties
in
writing,
providing in writing a detailed description of such event of Force Majeure,
the
reason
for
its
inability to perform or its delay in performance, the anticipated duration
of
such event of
Force
Majeure or the effect thereof, and the actions required by the affected Party
to
correct
the problems caused by such event of Force Majeure. A Party so affected by
Force
Majeure
shall use every reasonable effort to minimize the effects of Force Majeure
upon
the
performance
of this Agreement and shall promptly resume performance as soon as reasonably
possible
after removal of the circumstances of Force Majeure.
19.2
Suspension
of Obligations.
If an
event of Force Majeure occurs, to the extent
that
the
affected Party is unable to timely perform its obligations hereunder, such
Party
may
suspend
all or part of the performance of its obligations hereunder, provided
that:
(a)
such
suspension shall be of no greater scope and no longer duration than
isreasonably
required
to
correct any deficiencies of performance caused by the event of Force
Majeure; and
(b)
such suspension of
performance shall not include any Party’s obligations with
respect to
its
Capital Contribution, financing, and
other
payment obligations.
ARTICLE
XX
GOVERNING
LAW; DISPUTE RESOLUTION
20.1
Governing
Law.
This
Agreement, its validity, interpretation, execution and
the
rights and obligations of the Parties, and the settlement of any disputes,
hereunder shall be
governed
by and construed in accordance with the provisions of this Agreement, which
shall be
construed
to give maximum effect to the intent of the Parties expressed herein, and to
the
extent not
addressed
by the provisions of this Agreement, by the published and Publicly available
laws of
Hong
Kong. In the event of any Dispute to be settled through arbitration in
accordance
with Section 20.2,
the
Tribunal shall decide the Dispute in accordance first with this
Agreement and then by reference to the
governing
law or international practice, except to the
extent that some provision of the governing law would
invalidate
or limit the effectiveness
of any of the provisions of this Agreement.
20.2
Dispute
Resolution.
Any
Dispute shall, upon the written request (a
“Request”)
of any
Party, be settled through friendly consultation among the Parties. In
the
event
that a Dispute is not resolved through consultation within thirty (30) days
of
the receipt
of
the
Request, at the request of any Party, such Dispute shall be finally settled
by
arbitration
in
accordance with the rules (“Rules”)
of the
ICC International Court of Arbitration (the
“ICC”)
then
in effect. The arbitration venue shall be Hong Kong International
Arbitration
Centre.
The
arbitration shall be conducted in, and the award shall be rendered in, the
English
language,
and documents and evidence shall be submitted by the Parties in their
original
language,
subject to the Tribunal’s authority to order appropriate translations.
(a)
Selection
of Arbitral Tribunal.
The
Tribunal shall be composed of three (3)arbitrators.
In
the
request for arbitration, the Party requesting arbitration (the
“Claimant”)
shall
nominate one (1) arbitrator. The Party named as respondent by the
Claimant
(the “Respondent”)
shall
nominate one (1) arbitrator within the time period
specified
in the Rules. The two arbitrators nominated by the Claimant and the
Respondent
shall together nominate the third and presiding arbitrator of the
Tribunal,
who
shall
be of a different nationality than the Parties. If within the time
limits
established
in the Rules a Party fails to nominate an arbitrator or the
arbitrators
nominated
by the Parties have not appointed the presiding arbitrator, such
appointment
shall be made by the ICC. Any replacement for an arbitrator shall
be
nominated
by the Party originally entitled to make the relevant nomination.
( b)
Arbitration
Award.
The
award shall be in writing, shall give reasons for
the decisions
reached
by the Tribunal and shall be signed and dated by the arbitrators,
and a copy of the
award
shall be contemporaneously delivered to each of the Parties. The Party against
which
an
award
assesses a monetary obligation or enters an injunctive or mandatory order shall
pay
that
obligation or comply with that order on or before the 30th calendar day
following the receipt
of
the
final, signed award or by such other date as the award may provide. The award
shall be final
and
binding on the Parties and may be confirmed in, and judgment upon the award
entered by, any
court
having jurisdiction over the Parties. The Tribunal’s award shall be entitled to
all of
the
protections
and
benefits of a final judgment as to any Dispute, including compulsory
counterclaims, that were or could
have
been
presented to the Tribunal, and shall be final and binding on the Parties and
non-appealable to the
maximum
extent permitted by law.
29
(c)
Performance
Pending Award.
This
Agreement and the rights and
obligations
of the Parties shall be fully performed pending the award in any arbitration
proceeding hereunder.
(d)
Separability
and Survival of Agreement to Arbitrate.
The
provisions of
this
Agreement to arbitrate are independent of the remaining provisions of the
Agreement and
the
Parties intend that they shall continue in effect even though one or more
provisions of this
Agreement
shall be determined to be null or void. This Agreement to arbitrate shall also
survive the
termination
or expiration of this Agreement.
20.3
Waiver
of Sovereign Immunity.
Each of
the Parties is subject to civil and
commercial
law with respect to its obligations under this Agreement, and the signing
and
performance
of this Agreement by such Party constitute private and commercial acts
rather
than
governmental and public acts. Each of the Parties irrevocably represents,
warrants and
agrees
that this Agreement is a commercial rather than a public or governmental
activity and
that
it
is not entitled to claim immunity from legal proceedings with respect to itself
or any of
its
assets on the grounds of sovereignty or otherwise under any law or in any
jurisdiction
where
an
action may be brought for the enforcement of any of the obligations arising
under or
relating
to this Agreement. To the extent that any of the Parties or any of their assets
has or hereafter
may
acquire any right to immunity from set-off, legal proceedings, attachment
prior
to
judgment, other attachment or execution of judgment on the grounds of
sovereignty or
otherwise,
such Party hereby irrevocably waives such rights to immunity in respect of
its
obligations
arising under or relating to this Agreement.
ARTICLE
XXI MISCELLANEOUS
21.1
Notices.
Except
as expressly set forth to the contrary in this Agreement, all
notices,
requests or consents provided for or permitted to be given under this Agreement
mus
t
be in
writing in English and Chinese and must be delivered to the recipient in person,
by
courier,
mail, or by facsimile. A notice, request or consent given under this Agreement
is
effective
on receipt by the Party to which it is sent; provided, however, that a facsimile
that is
transmitted
after the normal business hours of the recipient shall be deemed effective
on
the
next
Business Day. All notices, requests and consents to be sent to a Party must
be
sent to or
made
at
the addresses given for that Party herebelow or such other address as that
Party
may
specify
by notice to the other Party. Whenever any notice is required to be given by
law
or
this
Agreement, a written waiver thereof, signed by the Person entitled to notice,
whether
before
or
after the time stated therein, shall be deemed equivalent to the giving of
such
notice.
To
Trico:
Trico
Marine Services (Hong Kong) Limited
18/F
Tung
Ning ▇▇▇▇, ▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇
Attention:
Company Secretary
Telephone:
▇▇▇▇ ▇▇▇▇-▇▇▇▇
Fax:
▇▇▇▇
▇▇▇▇-▇▇▇▇
with
a
copy to:
30
Trico
Marine Services
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention:
General Counsel
Telephone:
▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax:
▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
To
COSL:
China
Oilfield Services Limited
▇.▇.
▇▇▇
▇▇▇
▇▇▇▇▇▇▇
,
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇:
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Telephone:
▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax:
▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇
To
the
Company:
[Name
of
Company]
_______________
_______________
Hong
Kong
Attention:
[ ]
Telephone:
+852 [ ]
Fax:
+852
[ ]
21.2
Confidentiality.
Each of
the Parties acknowledges that from time to time
prior
to
and during the term of this Agreement, a Party may have disclosed to any other
Party
confidential
or proprietary information. The Party receiving such information shall,
during
the
term
of this Agreement, and for five (5) years thereafter not use such information
for a
purpose
other than the performance of its obligations with respect to the Services
or
under
this
Agreement, maintain the confidentiality of such information and not disclose
it
to any
other
person or entity, except to such of their employees having a direct need to
know
in
order
to
perform their responsibilities or except that such information becomes known
other
than
by
the breach of such Party under this Agreement or is required to be disclosed
by
applicable
Law. Each Party shall take whatever steps are necessary to ensure that
its
Affiliates
or its employees receiving such confidential or proprietary information
comply
with
this
provision.
21.3 Entire
Contract; Superseding Effect; Precedence.
The
Annexes are an
integral
part of this Agreement. This Agreement constitutes the final, complete and
exclusive
statement
and expression of the agreement of the Parties relating to the subject matter
hereof
and
the
transactions contemplated hereby and supersedes all provisions and
concepts
contained
in all prior contracts or agreements between the Parties or any of their
Affiliates
with
respect to the subject matter hereof and the transactions contemplated hereby,
whether
oral
or
written. In the event of a conflict between the terms of this Agreement and
the
Organizational
Documents, this Agreement shall prevail.
31
21.4
Waiver;
Modification.
This
Agreement may not be later modified except by
a
further
writing signed by a duly authorized officer of each Party and no term of
this
Agreement
may be waived except by writing signed by the Party waiving the benefit of
such
term.
Any
waiver or consent of any kind by any Party shall be effective only to the extent
set
forth
in
such writing and shall not operate or be construed as a waiver of or consent
to
a
subsequent
breach. Any delay or omission in exercising any right, power or remedy
pursuant
to
a
breach or default by a Party shall not impair any right, power or remedy that
any other
Party
may
have with respect to a future breach or default. No failure on the part of
a
Party to
complain
of any act or omission by another Party or to declare another Party in default
with
respect
to its obligations hereunder, irrespective of how long that failure continues,
shall
constitute
a waiver by such Party of its rights with respect to that default until the
applicable
statute
of limitations period has expired.
21.5
Headings.
The
section and article headings contained in this Agreement are
inserted
for convenience or reference only and shall not affect the meaning or
interpretation
of
this
Agreement.
21.6
Binding
Effect.
This
Agreement is binding on and shall inure to the benefit
of
the
Parties and their respective successors and permitted assigns.
21.7
Severability.
If any
term or other provision of this Agreement or the
application
thereof to any Party or circumstance is held to be illegal, invalid or
unenforceable
to
any
extent, the remainder of this Agreement and the application of that provision
to
the
other
Parties or other circumstances shall not be affected thereby, and the Parties
shall use
reasonable
endeavours to negotiate in good faith a replacement provision that is valid
and
enforceable
and that puts the Parties in substantially the same economic, business and
legal
position
as they would have been in if the original provision had been held legal, valid
and
enforceable.
21.8
Further
Assurances.
In
connection with this Agreement and the transactions
contemplated
hereby, each Party shall execute and deliver any additional documents
and
instruments
and perform any additional acts that may be necessary or appropriate
to
effectuate
and perform the provisions of this Agreement and those
transactions.
21.9
Counterparts.
This
Agreement may be executed in any number of
counterparts
by the Parties on separate counterparts, each of which when executed
and
delivered
shall constitute an original, but all of which shall together constitute one
and
the
same
instrument.
21.10
Mutual
Negotiation.
This
Agreement and the language contained herein
have
been
arrived at by the mutual negotiation of the Parties. Accordingly, no
provision
hereof
shall be construed against one Party or in favor of another Party by reason
of
draftsmanship.
21.11
Remedies
Cumulative.
The
rights and remedies available under this
Agreement
or otherwise available will be cumulative of all other rights and remedies
and
may be exercised successively.
32
21.12
Consents;
Authorizations.
Each
Party shall be responsible for obtaining all
consents,
authorizations, approvals and assurances of whatsoever nature necessary to
enable
it
to
comply with its obligations under this Agreement.
21.13
Time
of the Essence.
Time is
of the essence in respect to the performance of
all
obligations of the Parties under this Agreement.
21.14
No
Third Party Beneficiary.
Nothing
in this Agreement is intended, or shall
be
construed, to confer upon or give any person other than the Parties and their
respective
heirs,
personal representatives, legal representatives, successors and assigns, any
rights or
remedies
under or by reason of this Agreement.
[Signature
page follows]
33
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by
their
respective duly authorized signatories as of the date first written
above.
|
[Name
of JV Company]
|
Trico
Marine Services (Hong Kong)
|
|
By:
_________________
|
By:
_________________
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
China
Oilfield Services Limited
|
|
|
By:
_________________
|
|
|
Name:
|
|
|
Title:
|
|
Signature
page to COSL-Trico Marine Shareholders Agreement
34