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EXHIBIT 10.1
SHARE PURCHASE AGREEMENT
REGARDING
PURCHASE OF 3.529.588 SHARES IN
SEA TRUCK HOLDING AS
This Share Purchase Agreement (this "AGREEMENT") is made by and between
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1. The shareholders listed in Attachment 1 to this Agreement; represented
by power of attorneys by ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇. ▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), Kapellvn. 48, 4319
Sandnes,
hereinafter jointly referred to as the "SELLERS",
and
2. Gulf Offshore Norge AS, with its registered address at Strandveien 50
E, 1366 Lysaker, Norge,
hereinafter referred to as the "PURCHASER",
together hereinafter referred to as the "PARTIES" and individually as a "PARTY".
PREAMBLE
- The Sellers own 3.529.588 shares (the "SHARES") in Sea Truck Holding AS
and desire to sell the Shares to the Purchaser.
- The Purchaser desires to acquire the Shares.
- This Agreement sets forth the terms and conditions of the sale of the
Shares from the Sellers to the Purchaser.
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings specified
below:
"CLOSING" is defined in Section 2.3.
"CLOSING DATE" means the date and time as of which the Closing actually takes
place.
"COMPANY" means Sea Truck Holding AS, Organisation No. 930 395 404, with its
registered address at Strandgt. 5 ▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
"COMPLETION OF THE DEMERGER" means when the Demerger has been registered by the
Norwegian Register of Business Enterprises in accordance with the Norwegian
Limited Liability Companies Act of 13 June 1997 No 44 (hereinafter referred to
as the "Companies Act") Section 14-8, cf. Section 13-16.
"DEMERGER" means the demerger of Sea Truck Holding AS contemplated prior to, and
independently of, the acquisition of the Shares, and approved by the Company's
General Meeting 27 February 2001 and anticipated to be completed at
approximately 18 June 2001.
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"ENVIRONMENT" means soil, land surface or subsurface strata, surface waters,
groundwaters, drinking water supply, stream sediments, ambient air, plant and
animal life and any other environmental medium or natural resource.
"ESCROW ACCOUNT AGREEMENT" means the Escrow Account Agreement enclosed hereto as
Attachment 2.
"GOVERNMENTAL BODY" means any political subdivision or jurisdiction of any
nature, any government or governmental or quasi-governmental authority of any
nature, any multinational organisation or body or any body exercising or
entitled to exercise any administrative, executive, judicial, legislative,
police, regulatory or taxing authority or power of any nature.
"GROUP COMPANY" means either the Company or any of its Subsidiaries.
"GAAP" means generally accepted accounting principles in Norway.
"ORDER" means any award, decision, injunction, judgement, order, ruling,
subpoena or verdict entered, issued, made or rendered by any court,
administrative agency or other Governmental Body or by any arbitrator.
"ORGANISATIONAL DOCUMENTS" means (a) the memorandum, articles or certificate of
incorporation or association and the bylaws and any similar constitutive
document of a company; (b) the partnership or other similar agreement of any
general or limited partnership or any association or other entity; (c) any
charter or similar document adopted or filed in connection with the creation,
formation or organisation of any Person; and (d) any filing or registration with
any trade, commercial or other similar registry; and (e) any amendment to any of
the foregoing.
"PERSON" means any individual or legal entity.
"PURCHASE PRICE" is defined in Section 2.1.
"RELATED PERSON" means with respect to a Person any Person that directly or
indirectly controls, is directly or indirectly controlled by, or is directly or
indirectly under common control with such specified Person, any Person that
holds a material interest in such specified Person or in which such specified
Person holds a material interest and each Person that serves as a director,
officer, partner, executor or trustee of such specified Person or of any Related
Person.
"SHARES" is defined in the Preamble.
"SUBSIDIARY" means with respect to any Person (the "Owner"), any company or
other entity of which securities or other interests having the power to elect a
majority of that entity's board of directors or similar governing body, or
otherwise having the power to direct the business and policies of that entity
(other than securities or other interests having such power only upon the
happening of a contingency that has not occurred) are held by the Owner or one
or more of its Subsidiaries; when used without reference to a particular Person,
"Subsidiary" means a Subsidiary of the Company.
"TAXES" means all taxes, however denominated, including interest, penalties and
other additions to tax that may become payable, imposed by any applicable
statute, rule or regulation or any Governmental Body, including all taxes,
withholdings and other charges in respect of income, profits, gains, payroll,
unemployment insurance, social security or other social benefits taxes, sales,
use,
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value added, ad valorem, excise, franchise, gross receipts, business licenses,
occupations, real or personal property, stamps, transfers, imports, exports,
environment and workers' compensation, which any Group Company is required to
pay, withhold or collect.
"TAX RETURN" means any return (including any information return), report,
statement, schedule, notice, form or other document or information filed with or
submitted to, or required to be filed with or submitted to, any Governmental
Body in connection with the determination, assessment, collection or payment of
any Tax or in connection with the administration, implementation, or enforcement
of or compliance with any applicable statute, rule or regulation relating to any
Tax.
"VESSELS" means the vessels owned by the Company including PSV "Sound Truck",
PSV "▇▇▇▇▇ Truck", PSV "Stream Truck", PSV "▇▇▇▇▇▇▇▇▇" (ex. Sea Truck), PSV
"Safe Truck".
2. SALE AND PURCHASE OF SHARES; CLOSING
2.1 PURCHASE PRICE
Purchaser shall transfer an amount of NOK 51 per Share, which in the aggregate
amounts to NOK 180.008.899 (the "PURCHASE PRICE") to the Escrow Account (as
defined in the Escrow Account Agreement) within two banking days of the signing
of this Agreement.
2.2 CLOSING TRANSACTIONS
Subject to the conditions set forth in this Agreement, at Closing the Sellers
shall sell and transfer all of the Shares to the Purchaser and the Purchase
Price shall be released to the Sellers in accordance with the provisions of the
Escrow Account Agreement.
2.3 CLOSING
The purchase and sale (the "CLOSING") provided for in this Agreement shall take
place at the offices of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇▇▇,
at 10:00 a.m. (local time) immediately after Completion of the Demerger or at
such other time and place as the parties may agree.
Notwithstanding the above, if the Completion of the Demerger has not taken place
before or at 18 July 2001, the Purchaser shall have the right at his own
discretion to decide that the Closing shall take place at 19 July 2001 or within
two weeks thereafter. The Parties shall in such case use their best efforts to
find an appropriate way to transfer the assets and liabilities comprised by the
Demerger plan to the Sellers, provided, however, that the Sellers in such case
shall indemnify the Purchaser for any costs (including tax) incurred by the
Purchaser as a consequence thereof.
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2.4 CLOSING OBLIGATIONS
At the Closing
(a) The Sellers shall confirm that the Purchaser is duly registered in the
Company's shareholders' registry according to the Companies Act Sections
4-5, 4-7 and 4-10 and (ii) a certificate from the Register of Business
Enterprises that the completion of the Demerger has been properly
registered, unless waived by the Purchaser.
(b) The Sellers shall receive the Purchase Price in accordance with the
provision of the Escrow Account Agreement.
3. THE SELLERS' WARRANTIES
The Sellers warrant to the Purchaser, as at the date of this Agreement and at
the Closing, on a joint and several basis, as follows:
3.1 ORGANISATION; CAPITALISATION
The Company is a limited liability company duly organised and validly existing
under the laws of Norway with full corporate power and authority to conduct its
business as it is now being conducted, to own or use the properties and assets
that it purports to own or use and to perform its obligations under all
contracts to which it is a party. The Company is registered with the Norwegian
Register of Business Enterprises under Organisation No. 930 395 404.
The share capital of the Company is NOK 6.860.152,- divided into 6.860.152
shares, each with a nominal value of NOK 1,-. The capital of the Company has
been fully paid in.
The Articles of Association of the Company are attached to this Agreement as
Attachment 3. The Articles of Association of the Company are in full force and
effect.
3.2 POWER AND AUTHORITY
The execution, delivery and performance of this Agreement by the Sellers have
been duly and validly authorized by all requisite action. This Agreement has
been duly executed and delivered by the Sellers and assuming the due
authorization, execution and delivery hereof by Purchaser constitutes the legal,
valid and binding obligation of Sellers, enforceable against them in accordance
with its terms. Skandsen and ▇▇▇▇▇▇ are authorized to represent each of the
Sellers for all purposes relating to this Agreement.
3.3 TITLE TO THE SHARES
All of the Shares are owned of record and beneficially by the Sellers, free and
clear of all liens and encumbrances. No Person has any right to acquire any
Shares
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or other rights to the equity of the Company. Upon consummation of the purchase
and sale of the Shares as contemplated hereby, the Purchaser will own all of the
Shares, free and clear of all liens and encumbrances and no other rights to the
equity of the Company will be outstanding.
3.4 SUBSIDIARIES
Attachment 4 contains a true and complete list of all Subsidiaries of the
Company.
Except as set forth in Attachment 4, all of the outstanding shares in and other
rights to the equity of each Subsidiary are owned of record and beneficially by
one or more Group Companies, free and clear of all liens and encumbrances. No
Person has any right to acquire any shares in or other rights to the equity of
any Subsidiary, and there are no contracts relating to the issuance, sale or
transfer of any equity securities or other securities of any Subsidiary.
The Sellers have delivered to the Purchaser true and complete copies of all
Organisational Documents of all Subsidiaries currently in force.
3.5 FINANCIAL STATEMENTS
The Sellers has delivered to the Purchaser audited balance sheets of the Company
as at 31 December 2000, and the related audited statements of income and cash
flows for the fiscal years then ended, together with the report thereon of
Deloitte & Touche, including in each case the notes thereto, attached hereto as
Attachment 5.
The financial statements and notes mentioned above fairly present the financial
condition and the results of operations and cash flows of the Company as at the
respective dates of, and for the periods referred to, in the financial
statements, all in accordance with applicable laws and regulations and GAAP,
and, except as disclosed therein, such financial statements reflect the
consistent application of such accounting principles throughout the periods
involved.
3.6 NO UNDISCLOSED LIABILITIES
The Group Companies have no liabilities or obligations of any nature (whether
known or unknown and whether absolute, accrued, contingent, or otherwise) which
are not reflected or reserved against in the consolidated balance sheet of the
Company and its Subsidiaries as of 31 December 2000, and the notes thereto,
except for liabilities or obligations pursuant to agreements entered into in the
ordinary course of business which according to applicable laws and regulations
and GAAP need not be reflected or reserved against in financial statements and
except for current liabilities incurred in the ordinary course of business since
1 January 2001.
3.7 AGREEMENTS
Attachment 6 contains a true and complete list of all material agreements to
which any Group Company is a party. All such agreements are valid and
enforceable in
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accordance with their terms, and no event has occurred or circumstance exists
which constitutes, or with notice or lapse of time (or both) would constitute,
an event of default by any Group Company or any other party to such a material
contract. The entering into of this Agreement does not give any party the right
to terminate, renegotiate or otherwise alter the terms and conditions of any
such material contract to which any Group Company is a party.
3.8 BOOKS AND RECORDS
The books of account, minute books and other records of each Group Company, all
of which have been made available to the Purchaser, are complete and correct and
have been maintained in accordance with sound business practices and all
applicable laws and regulations.
3.9 TITLE TO PROPERTIES/VESSELS
Each Group Company owns all the properties and assets, including but not limited
to the Vessels, reflected in the balance sheet as of 31 December 2000 (whether
real, personal or mixed, and whether tangible or intangible) and all such
properties and assets are inn good working order and free from any defects or
shortcomings that the Sellers were aware of or could reasonably be expected to
be aware of.
3.10 ACCOUNTS RECEIVABLE
All accounts receivable of the Group Companies that are reflected on the
consolidated balance sheet as of 31 December 2000 represent valid obligations
arising from sales actually made or services actually performed in the ordinary
course of business and will be collectible when due.
3.11 TAXES
Each Group Company has filed or caused to be filed all Tax Returns that are or
were required to be filed, which Tax Returns are true, correct and complete.
Each Group Company has paid, or made provision for the payment of, all Taxes
that have or may have become due pursuant to those Tax Returns or otherwise, or
pursuant to any assessment received by such Company. All Taxes that each Group
Company is or was required by applicable laws and regulations to withhold or
collect have been duly withheld or collected and, to the extent required, have
been paid to the proper Governmental Body or other Person. Sellers and each
Group Company have agreed to and approved Purchaser's election, to the extent
permitted or required, pursuant to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Internal
Revenue Code of 1976, as amended, or the regulations promulgated thereunder, to
treat the purchase of the Shares as a purchase of assets.
3.12 CONDUCT OF BUSINESS; NO MATERIAL ADVERSE CHANGE
(a) Since 1 January 2001 the business of the Group Companies has been
conducted only in the ordinary course of business;
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(b) The Group Companies management and employees have used all reasonable
efforts to preserve intact the current business organisation of the Group
Companies, kept available the services of the current officers, employees
and agents of the Group Companies, and maintained the relations and
goodwill with suppliers, customers, creditors, employees, agents and
others having business relationships with the Group Companies;
(c) Since 1 January 2001, no distribution (whether in the form of dividend or
otherwise) has been made from the Company;
(d) Since 1 January 2000, there has not been any material adverse change in
the business, operations, properties, assets or condition of the Group
Companies taken as a whole which has not been considered or has been
stated in the Completion Accounts; and no event has occurred that may
reasonably be expected to result in such a material adverse change to the
knowledge of the Sellers.
3.13 EMPLOYEE MATTERS
All employment agreements, pension and other employee benefits, fringe benefit
and compensation plans and arrangements of the Group Companies have been made on
customary terms for the industry.
Since 1 January 2000 there has not been, and there is not presently pending,
existing or threatened any work stoppage or other labour dispute in any Group
Company.
3.14 COMPLIANCE WITH LAWS; GOVERNMENTAL AUTHORISATIONS
All of the Group Companies are, and have always been, in full compliance with
all applicable laws and regulations, permits issued to it by any Governmental
Body and Orders binding upon them, including, without limitation, those relating
to owning and operating vessels and those relating to the Environment.
The Group Company further are, and have always been, in full compliance with all
terms and conditions set by any Governmental Body in connection with any form of
financing or subsidy rendered to any Group Company by such Governmental Body.
3.15 LEGAL PROCEEDINGS
Except as set forth in Attachment 7, no Group Company is a party to any civil or
criminal legal proceeding or any Order. To the best of Sellers knowledge, there
are no potential claims against the Group Companies and there is no significant
risk that any Group Company will become involved in any other material civil or
criminal legal proceeding.
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3.16 MEMBERS OF THE BOARD OF DIRECTORS AND SHAREHOLDERS
Except as set forth in Attachment 8, there exist no obligations, liabilities or
commitments between (i) any member of the board of directors in any Group
Company and any Group Company, and (ii) any shareholder of the Company and any
Group Company.
3.17 ENVIRONMENTAL MATTERS
The Group Companies have not taken any action, or omitted to take any action,
and do not own or lease any real property or other assets, which may give rise
to any obligation on any Group Company to remediate any part of the Environment.
3.18 INTELLECTUAL PROPERTY
Each of the Group Companies owns, as of the date of this Agreement, or has a
valid and fully paid-up perpetual license to use all patents, trademarks and
other intellectual property rights, including copy rights for all software
products, that it has used or presently uses.
3.19 INSURANCE
Each Group Company and its business have been adequately insured in the period
prior to Closing.
3.20 DISCLOSURE
There is no fact or circumstance known to the Sellers (other than general
economic or industry conditions) which would reasonably be expected to be
material to the Purchaser or the Company in making the decision to enter into
this Agreement which has not been disclosed to the Purchaser.
4. OBLIGATIONS OF THE SELLERS PRIOR TO CLOSING
4.1 ACCESS AND INVESTIGATION
The Sellers shall, and shall cause each Group Company and its representatives
to, between the date of this Agreement and the Closing Date
(a) afford the Purchaser and its representatives, its prospective lenders and
advisors (collectively, the "Purchaser's Advisors") full and free access
to each Group Company's personnel, properties (including subsurface
testing), contracts, books and records, and other documents and data,
(b) furnish the Purchaser and the Purchaser's Advisors with copies of all
such contracts, books and records, and other existing documents and data
as the Purchaser may reasonably request, and
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(c) furnish the Purchaser and the Purchaser's Advisors with such additional
financial, operating and other data and information as the Purchaser may
reasonably request.
4.2 OPERATION OF THE BUSINESSES OF THE GROUP COMPANIES
Between the date of this Agreement and the Closing Date, the Sellers shall, and
shall cause each Group Company to:
(a) conduct the business of such Group Company only in the ordinary course of
business;
(b) use all reasonable efforts to preserve intact the current business
organisation of such Group Company, keep available the services of the
current officers, employees and agents of such Group Company, and
maintain the relations and goodwill with suppliers, customers, creditors,
employees, agents and others having business relationships with such
Group Company;
(c) confer with the Purchaser concerning operational matters of a material
nature, including any negotiations or other material communications
relating to any material contract; and
(d) otherwise report periodically to the Purchaser concerning the status of
the business, operations and finances of the Group Companies.
4.3 NEGATIVE OBLIGATION
Between the date of this Agreement and the Closing Date, the Sellers shall not,
and shall cause each Group Company not to, take any affirmative action, or fail
to take any reasonable action within their or its control, as a result of which
any of the warranties set forth in Section 3 would fail to be correct if made as
of the Closing Date.
4.4 NO DISTRIBUTIONS
The Sellers shall cause the Company not to make any distributions (whether in
the form of dividend or otherwise) from the Company between the date of this
Agreement and the Closing Date.
4.5 NOTIFICATION
Between the date of this Agreement and the Closing Date, the Sellers shall
promptly notify the Purchaser in writing if the Sellers or any Group Company
becomes aware of any fact or condition that causes or constitutes a breach of
any of the Sellers warranties in Section 3 as of the date of this Agreement, or
if the Sellers or any Group Company becomes aware of the occurrence after the
date of
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this Agreement of any fact or condition that would (except as expressly
contemplated by this Agreement) cause or constitute a breach of any such
warranty had such warranty been made as of the time of occurrence or discovery
of such fact or condition. During the same period, the Sellers shall promptly
notify the Purchaser in writing if the Sellers or any Group Company becomes
aware of any fact or condition that causes or constitutes any breach of any
obligation of the Sellers in this Section 4.
4.6 PAYMENT OF INDEBTEDNESS BY RELATED PERSONS
The Sellers shall cause all indebtedness owed to any Group Company by the
Sellers or any Related Person of the Sellers, including, without limitation, all
accounts payable to any Group Company, to be paid in full prior to Closing.
4.7 DEMERGER
The Sellers shall, in a timely fashion, take all steps necessary to complete the
Demerger, included (i) establishing adequate security in accordance with the
Companies Act Section 14-7, cf, Section 13-15, and (ii) as soon as possible
after the expiration of the creditors' time limit, give notice to the Register
of Business Enterprises of the effect of the Demerger in accordance with the
Companies Act Section 14-8, cf. Section 13-16.
4.8 REASONABLE EFFORTS
Between the date of this Agreement and the Closing Date, the Sellers shall use
all reasonable efforts to cause the conditions in Section 4 to be satisfied and
to take, or cause the Group Companies to take, any other action that may be
required or advisable in connection with the transactions contemplated hereby.
The Sellers shall provide all reasonable assistance, if required by the
Purchaser, in the process of filing the applications as described in Section 5.1
and the election of Purchaser in Section 3.11.
4.9 NO NEGOTIATION
Until such time, if any, as this Agreement is terminated pursuant to Section 8,
the Sellers shall not, and shall ensure that the Group Companies or their
directors, officers, employees, agents and representatives and Related Parties
shall not, directly or indirectly (a) enter into any agreement or arrangement
involving the possible acquisition of any Shares or material assets of any Group
Company (other than sales of inventory in the ordinary course of business), (b)
solicit or encourage offers from, engage in any discussion with, or provide any
information to, any Person relating to any such acquisition, or (c) respond to
any inquiries from any Person relating to any such acquisition, except to inform
such Person that discussions are under way with another party, without naming
the Purchaser.
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5. OBLIGATIONS OF THE PURCHASER PRIOR TO THE CLOSING DATE
5.1 APPROVALS OF GOVERNMENTAL BODIES
As promptly as practicable after the date of this Agreement, the Purchaser shall
make all filings required by applicable laws and regulations to be made by them
to consummate the transactions contemplated hereby, provided that this Agreement
will not require the Purchaser to dispose of or make any change in any portion
of its business or to incur any other burden to obtain the approval of any
Governmental Body.
5.2 REASONABLE EFFORTS
Except as set forth in the provision to Section 5.1, between the date of this
Agreement and the Closing Date, the Purchaser shall use all reasonable efforts
to cause the conditions in Section 5 to be satisfied.
6. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATION TO CLOSE
The Purchaser's obligation to purchase the Shares and to take the other actions
required to be taken by the Purchaser at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by the Purchaser, in whole or in part):
6.1 ACCURACY OF WARRANTIES
The warranties of the Sellers in Section 3 must be accurate in all respects
material to the transactions contemplated hereby and to the business, assets,
financial condition or prospects of the Group Companies taken as a whole.
6.2 PERFORMANCE BY THE SELLERS AND THE COMPANY
All of the obligations that the Sellers are required to perform or to comply
with pursuant to this Agreement at or prior to the Closing must have been duly
performed and complied with in all respects material to the transactions
contemplated hereby.
6.3 NO PROHIBITION
Neither the consummation nor the performance of any of the transactions
contemplated hereby will, directly or indirectly (with or without notice or
lapse of time), result in a material violation of any applicable law, regulation
or Order that is in effect or proposed for adoption.
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6.4 NO MATERIAL ADVERSE CHANGE
No material adverse change shall have occurred prior to the Closing with respect
to the assets, business, prospects, financial condition or results of operations
of the Group Companies taken as a whole.
6.5 LEGAL DUE DILIGENCE
A satisfactory limited legal due diligence investigation of the Group Companies,
which does not reveal any major negative circumstances or conditions with
respect to the assets, business, prospects, financial conditions or results of
the operations of the Group Companies, shall have been carried out by the
Purchaser's legal advisers.
7. CONDITION PRECEDENT TO THE SELLERS' OBLIGATION TO CLOSE
The obligation of the Sellers to sell the Shares and take the other actions
required to be taken by the Sellers at the Closing is subject to the
satisfaction, at or prior to the Closing, of the following condition (which may
be waived by the Purchaser, in whole or in part):
7.1 THE PURCHASER'S PERFORMANCE
All of the covenants and obligations that the Purchaser is required to perform
or to comply with pursuant to this Agreement at or prior to the Closing must
have been performed and complied with in all respects material to the
transactions contemplated hereby.
8. UNWINDING
8.1 UNWINDING CONDITIONS
This Agreement may be unwound (a) by mutual consent of the Sellers and the
Purchaser, (b) by the Purchaser, if the Completion of the Demerger has not taken
place before or at 18 July 2001 and provided the Purchaser has not decided that
the Closing shall take place irrespectively of the Completion of the Demerger,
or (c) by either of the Sellers or the Purchaser, upon five business days prior
written notice, if the conditions set forth in Section 4, 5 and 6 of this
Agreement are not met within 120 days after the date of signing of this
Agreement and the Escrow Account Agreement, provided however, that (i) the
Sellers may not demand unwinding pursuant to (c) above if the non fulfilment of
the conditions in Sections 4, 5 and 6 results from the non Completion of the
Demerger, and (ii) neither the Sellers nor the Purchaser may demand the
unwinding pursuant to (c) above if the non fulfilment of the conditions in
Sections 4, 5 and 6 resultsdirectly or indirectly from breach of any provision
of this Agreement or the Escrow Account Agreement by the Party which desires to
unwind this Agreement.
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9. TERMINATION
9.1 TERMINATION EVENTS
This Agreement may be terminated:
a. by either the Sellers or the Purchaser, upon 5 business days prior
written notice to the other, within 90 days after Closing if a breach of
any provision of this Agreement has been committed by the other Party,
such breach has not been waived and such breach is material to the
transactions contemplated hereby or to the business, assets, financial
condition or prospect of the Company taken as a whole;
b. by mutual consent of the Sellers and the Purchaser.
Notification under this Article must, in order to be valid, be given without
undue delay after the Party in question becomes aware, or should have been aware
of the circumstance that triggers a claim based on this clause.
9.2 EFFECT OF TERMINATION
If this Agreement is terminated pursuant to Section 9.1, all further obligations
of the parties under this Agreement will terminate, except that the obligations
in Section 11.3 and Section 11.6 will survive; provided, however, that if this
Agreement is terminated by a Party because of the material breach (ref. article
9.1 above) of the Agreement by the other Party, the terminating Party's right to
pursue all legal remedies will survive such termination unimpaired in accordance
with section 11.5 and 11.6.
10. INDEMNIFICATION BY THE SELLERS
10.1 INDEMNIFICATION AND PAYMENT OF DAMAGES BY THE SELLERS
The Sellers shall, pro rata, indemnify and hold harmless the Purchaser for any
loss, whether in the form of a third party liability, an expense (including
costs of investigation and defence and reasonable attorneys' fees), diminution
of value or otherwise, arising, directly from:
(a) any breach of any of the warranties made by the Sellers in Section 3, and
(b) any material breach by the Sellers of any of their obligations in this
Agreement with the condition that the circumstance is within the Sellers'
control.
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10.2 TIME LIMITATIONS
The Sellers shall have no liability (for indemnification or otherwise) with
respect to any warranty or obligation to be performed and complied with prior to
the Closing Date unless on or before one year from Closing the Purchaser
notifies the Sellers of a claim specifying the factual basis of that claim in
reasonable detail to the extent then known by the Purchaser, provided, however,
that such notice in respect of a claim based on breach of the warranty in
Section 3.14 and Section 3.16, compliance with laws and environment, may be made
as long as the Company may be exposed to any liability according to applicable
law; and further provided that a claim based on breach of the warranty in
Section 3.11, tax, may be made within ten years from Closing. In instances where
other sections of this Agreement contain a shorter time limitation, such shorter
time limitation shall be binding to the Parties.
10.3 LIMITATIONS ON PAYMENTS
The Sellers shall have no liability (for indemnification or otherwise) with
respect to any loss (as described in Section 10.1), until the total of all
losses exceeds NOK 1.000.000,-, but shall then be liable for the total amount of
such losses, provided, however that the Sellers shall not be liable for any
losses exceeding in the aggregate the Purchase Price.
10.4 UNLIMITED LIABILITY FOR INTENTIONAL BREACH
The limitations set forth in Section 10.2 and Section 10.3 shall not apply to
claims based on any breach of the warranties of the Sellers in this Agreement of
which any of the Directors in the Group Company's Board of Directors or the
Group Company's Managing Director had, or would in the absence of gross
negligence have had, knowledge at any time prior to the date hereof nor to any
intentional or grossly negligent breach by the Sellers of any of its obligations
under this Agreement.
12. GENERAL PROVISIONS
12.1 EXPENSES; ADVISORS' ADVICE
Except as otherwise expressly provided in this Agreement, each Party to this
Agreement shall bear its respective expenses incurred in connection with the
preparation, execution and performance of this Agreement and the transactions
contemplated hereby, including all fees and expenses of agents, representatives,
counsel and accountants.
With respect to the work provided by Deloitte & Touche Advokater DA, for the
Board of Sea Truck Holding AS since 1 April 2001, these expenses shall be
charged the Company directly.
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Each Party is responsible for obtaining tax, accounting and other advice
relating to the transactions contemplated by this Agreement, including, without
limitation, advice regarding the structuring of such transactions, from its own
advisors, and, if one Party shares the advice of its advisors with the other
Parties, such Party shall not have any liability of any kind or nature to such
other Parties with respect to such advice.
12.2 PUBLIC ANNOUNCEMENTS
The initial press release disclosing this Agreement and the transactions
contemplated hereby shall require the approval of all Parties. The Parties shall
to the extent practicable consult with each other regarding any subsequent
public announcement or similar publicity with respect to this Agreement or the
transactions contemplated hereby. The Parties shall consult with each other
concerning the means by which the Company's employees, customers and suppliers
and others having dealings with the Company will be informed of the transactions
contemplated hereby, and the Purchaser will have the right to be present for any
such communication.
12.3 CONFIDENTIALITY
The Sellers and the Purchaser shall maintain in confidence, and shall cause
their respective directors, officers, employees, agents and advisors to maintain
in confidence, any written, oral or other information obtained in confidence
from the other Party or the Company in connection with this Agreement or the
transactions contemplated hereby, unless (a) such information is already known
to such Party or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such Party, (b) the
use of such information is necessary or appropriate in making any filing or
obtaining any consent or approval required for the consummation of the
transactions contemplated hereby, or (c) the furnishing or use of such
information is required by law, regulation or legal process.
If the transactions contemplated hereby are not consummated, each Party shall
return or destroy as much of such written information as the other Party may
reasonably request. Whether or not the Closing takes place, the Sellers shall
waive, and shall upon the Purchaser's request cause the Company to waive, any
cause of action, right or claim arising out of the access of the Purchaser and
its representatives to any trade secrets or other confidential information of
the Company except for grossly negligent or intentional competitive misuse by
the Purchaser of such trade secrets or confidential information.
12.4 NOTICES
All notices, requests, demands, and other communications required or permitted
by this Agreement shall be in writing in the English language and (a) delivered
by messenger; (b) transmitted by telecopier; or (c) delivered by a reputable
international courier service, with courier charges paid or payable by the
sender.
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All such notices and other communications shall be addressed as follows
to the respective parties set forth below or to such other address as any such
party may hereafter specify in writing:
Notices to the Sellers shall be addressed to:
any of the shareholders listed in Attachment 1, with a copy to:
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇. ▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇. ▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇
with a copy to:
Deloitte & Touche ▇▇▇▇▇▇▇▇▇ ▇▇
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Tel: + ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Notices to the Purchaser shall be addressed to:
Gulf Offshore Norge AS c/o Gulf Offshore N.S. Ltd,
▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇
Attention: Managing Director
Fax: (01224) 336039
Tel: (01224) 336030
with a copy to:
Wiersholm, Mellbye & Bech
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Attention: Torkel Ern0
Fax: ▇▇▇ ▇▇▇ ▇▇
Tel: ▇▇▇ ▇▇▇ ▇▇
Notices shall be deemed to have been given (i) on the day of delivery (evidenced
by a signed receipt) if delivered by messenger; (ii) two business days after it
has been delivered to a reputable international courier service; or (iii) on the
day sent by telecopy if the transmission is confirmed by the sender's
telecopier.
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12.5 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the laws
of Norway.
12.6 DISPUTE RESOLUTION
Except as set forth below, any dispute relating in any way to this Agreement,
the rights or obligations of the parties hereunder, or the transactions
contemplated hereby, shall be finally settled by arbitration conducted in the
Norwegian language, held in Oslo, Norway, in accordance with the procedural
rules of Chapter 32 of the Norwegian Civil Procedures Act. The arbitration shall
be held before a panel of three arbitrators, one of whom shall be chosen by the
Sellers, one of whom shall be chosen by the Purchaser and one of whom (who shall
be the chairman of the panel) by the first two arbitrators so selected. In the
event of any failure by a party to appoint its arbitrator within thirty days
after the request for arbitration is first given, or the failure by the first
two arbitrators to appoint the third arbitrator within thirty days after the
appointment of the last of the first two arbitrators to be appointed, such
arbitrator or arbitrators shall at the request of either party be appointed by
the Oslo City Court. Any Party may seek judgement upon any award in any court
having jurisdiction or an application may be made to such court for the judicial
acceptance of the award and for an order of enforcement.
Notwithstanding the above, any Party hereto may bring an action in any court of
competent jurisdiction (i) for provisional relief pending the outcome of
arbitration, including, without limitation, provisional injunctive relief or
pre-judgment attachment of assets, or (ii) to compel arbitration or enforce any
arbitral award. For purposes of any proceeding authorised by this provision,
each Party hereby consents to the exclusive jurisdiction of the courts of Oslo,
Norway.
12.7 ASSIGNMENTS, SUCCESSORS AND NO THIRD PARTY RIGHTS
No Party may assign any of its rights under this Agreement without the prior
written consent of the other Parties, except that the Purchaser may assign any
of its rights under this Agreement to any Subsidiary or Shareholders of the
Purchaser. Subject to the preceding sentence, this Agreement shall apply to, be
binding in all respects upon, and inure to the benefit of the successors and
permitted assigns of the Parties.
12.8 HEADINGS; CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience only and
shall not affect its construction or interpretation. All words used in this
Agreement shall be construed to be of such gender or number as the circumstances
require.
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The Parties claims and liabilities based on this Agreement shall be transferred
to the Parties possible judicial successors.
12.9 ATTACHMENTS
The following attachments constitute part of this Agreement:
Attachment 1: List of Shareholders defined as Sellers in this Agreement.
Attachment 2: Escrow Account Agreement.
Attachment 3: Articles of Association of the Company.
Attachment 4: List of all Subsidiaries of the Company.
Attachment 5: Audited balance sheet of the Company as at 31 December 2000.
Attachment 6: Complete list of all material agreements to which any Group
Company is a party.
Attachment 7: List of legal proceedings to which any Group Company is a party.
Attachment 8: Obligations, liabilities or commitments between a board
member/shareholder of the Company and any Group Company.
* * *
This Agreement is signed in 2 original copies of which the Parties retain one
copy each.
Sandnes, 28 May 2001
Signed for and on behalf of all of the Sellers:
---------------------- ----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Thor Skandsen
Signed for and on behalf of the Purchaser:
----------------------
Gulf Offshore Norge AS
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