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EXHIBIT 2.3.1
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (the "Amendment") is
made and entered into as of this 24th day of January, 1997, by and between
DELAVNEY-GESTAO E CONSULTADORIA LDA., a corporation organized under the laws of
the Madeira Islands ("Seller"), CONSTRUTORA XXXXXXX XXXXXXXXX S.A., a
corporation organized under the laws of Brazil ("Construtora"), XXXXXXX
XXXXXXXXX PERFURACAO LTDA., a corporation organized under the laws of Brazil
("Xxxxxxx"), DRILTECH INC., a corporation organized under the laws of the
Cayman Islands ("Driltech"), (Construtora, Xxxxxxx and Driltech being
collectively referred to herein as "Parent"), and CLIFFS DRILLING COMPANY, a
corporation organized under the laws of the State of Delaware ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller, Construtora, Xxxxxxx, Driltech, and Buyer entered
into a Stock Purchase Agreement dated as of December 6, 1996 (the "Original
Agreement") with respect to the purchase and sale of all of the issued and
outstanding shares of capital stock of GREENBAY DRILLING COMPANY LTD., a
corporation organized under the laws of the British Virgin Islands ("BVI"),
(capitalized terms used herein without definition having the meanings ascribed
to such terms in the Original Agreement); and
WHEREAS, the parties acknowledge that the official consent of
Petrobras to the transfer from Parent to BVI or its designee of Drilling
Contract(s) between Parent and Petrobras (the "Petrobras Contracts") or the
consent of Hercules Offshore Corporation ("Hercules") to the transfer from
Parent to BVI or its designee of the Lease Agreement (collectively referred to
herein as the "Consents") have not yet been obtained; and
WHEREAS, the parties desire to amend the Original Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual terms,
covenants and conditions herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. The parties acknowledge and agree that the Assets owned by BVI
as of the Closing Date shall not include the Petrobras Contracts or the related
Lease Agreement associated with the Leased Drilling Rig, inasmuch as the
assignments from Parent into BVI or its designee of such Petrobras Contracts
and the Lease Agreement become effective only upon receipt of the Consents of
Petrobras and Hercules, respectively.
2. Notwithstanding the terms and provisions of Section 8.2(b) and
(c) of the Original Agreement, it is agreed that:
(a) From and after the Closing date up to and including
receipt of the Consents of Petrobras and Hercules to the assignment of
the Petrobras Contracts and the Lease Agreement, respectively, by
Parent to BVI or its designee,
(i) Parent shall operate the Leased Drilling Rig
and perform the Petrobras Contracts and Lease Agreement, for
its benefit and at its sole cost, risk and expense; and
(ii) Parent shall (A) maintain insurance covering
the top drive and related equipment associated with the Leased
Drilling
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Rig, (B) name Buyer and BVI as additional insureds with
respect to the top drive and related equipment, and (C) waive
all rights of subrogation against Buyer and BVI with respect
to claims and losses associated with the top drive and related
equipment.
(b) Upon receipt of the Consents of Petrobras and
Hercules to the assignment of the Petrobras Contracts and the Lease
Agreement by Parent to BVI or its designee, such assignments shall
become effective, and thereafter Buyer shall be responsible for
operation of the Leased Drilling Rig and performance of the Petrobras
Contracts and the Lease Agreement.
(c) In the event that Seller and Parent are unable to
obtain Consents of Petrobras and Hercules on or before April 24, 1997,
(i) the term "Assets" shall be deemed not to include the Petrobras
Contracts, the related Lease Agreement, or the top drive and related
equipment associated with the Leased Drilling Rig; (ii) Buyer shall
reassign or cause BVI to reassign to Seller or Parent all right, title
and interest of Buyer and BVI in and to the top drive and related
equipment associated with the Leased Drilling Rig; and (iii) if the
inability to obtain Consent of Petrobras is not due to the breach by
Buyer of its obligations set forth in Section 5 of this Amendment,
Seller and/or Parent shall pay to Buyer liquidated damages in the
amount of $1,500,000.
3. Notwithstanding the terms and provisions of Section 8.5 of the
Original Agreement, it is agreed that:
(a) In the event that the Leased Drilling Rig shall
become an actual, constructive, arranged or compromised total loss
prior to receipt of the Consents of Petrobras and Hercules, (i) the
term "Assets" shall be deemed not to include the Petrobras Contracts,
the related Lease Agreement, or the top drive and related equipment
associated with the Leased Drilling Rig; and (ii) Seller and/or Parent
shall pay to Buyer liquidated damages in the amount of $1,500,000.
(b) In the event that the Leased Drilling Rig sustains
damage not amounting to an actual, constructive, arranged or
compromised total loss prior to receipt of the Consents of Petrobras
and Hercules, the terms of Section 8.5(c) of the Original Agreement
shall apply, except that references to Closing and Closing Date
therein shall refer instead to the effective date of the assignment by
Parent to BVI or its designee of the Petrobras Contracts and the Lease
Agreement.
4. From the date hereof until the earlier to occur of (i) receipt
of the Consents of Petrobras and Hercules, or (ii) April 24, 1997, the terms
and provisions of the Original Agreement shall be interpreted, with respect
only to the Leased Drilling Rig, the Petrobras Contracts and the Lease
Agreement, as if the Closing and the Closing Date had not yet occurred.
5. Seller and Parent will each use its Best Efforts to obtain the
Consents of Petrobras and Hercules as soon as practicable. Buyer will use its
Best Efforts (i) to assist Seller and Parent in obtaining the Consents of
Petrobras and Hercules as soon as practicable and (ii) deliver to Petrobras all
documents necessary for such acceptance by February 7, 1997, or within seven
days following request from Petrobras. Buyer will take all necessary action
within its control to cause its Brazilian affiliate to be accepted by
Petrobras, and Buyer will refrain from taking any action inconsistent with
obtaining the Consent of Petrobras and performing the Petrobras Contracts.
6. This instrument is executed and shall constitute an instrument
supplemental to and in amendment of the Original Agreement and shall be
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construed with and as a part of the Original Agreement.
7. Except as modified and expressly amended by this Amendment and
any other supplement or amendment, the Original Agreement is in all respects
ratified and confirmed, and all of the terms provisions and conditions thereof
shall be and remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers hereunto duly authorized as of the date
first above written.
DELAVNEY-GESTAO E CONSULTADORIA LDA.
By:/s/ TRAJANO X. XXXXX XXXXX
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Trajano X. Xxxxx Xxxxx
Manager
CONSTRUTORA XXXXXXX XXXXXXXXX S.A.
By:/s/ TRAJANO X. XXXXX XXXXX
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Trajano X. Xxxxx Xxxxx
Attorney-in-fact
XXXXXXX XXXXXXXXX PERFURACAO LTDA.
By:/s/ TRAJANO X. XXXXX XXXXX
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Trajano X. Xxxxx Xxxxx
Attorney-in-fact
DRILTECH INC.
By:/s/ TRAJANO X. XXXXX XXXXX
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Trajano X. Xxxxx Xxxxx
Attorney-in-fact
CLIFFS DRILLING COMPANY
By:/s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx,
Vice President Finance
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