EXHIBIT 10.64
3 AUGUST 1998
TRITON ASIA HOLDINGS, INC.
ARCO JDA LIMITED
TRITON ENERGY LIMITED
ATLANTIC RICHFIELD COMPANY
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SHAREHOLDERS AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Interpretation 5
2. Business of the Company 5
3. Board of Directors 5
4. Proceedings of Board of Directors 6
5. Shareholders Meetings 6
6. Representation in Relevant Forum 7
7. management positions 8
8. Funding and Issue of Preferred Stock 10
9. Costs Recovery 14
10. Distribution Policy 15
11. Taxation 15
12. Transfers of Shares 16
13. Duration and Termination 19
14. Restructuring 20
15. Confidential information 20
16. Rights to Information 22
17. Notices 23
18. Triton Guarantor 23
19. ARCO Guarantor 24
20. General 24
21. Governing Law and Applicable Laws 26
22. Decision Deadlock and Dispute resolution 26
23. Arbitration 27
SCHEDULE 1 28
Definitions 28
SCHEDULE 2 32
Representation in Relevant Forum 32
THIS AGREEMENT is made on 3 August 1998
BETWEEN
TRITON ASIA HOLDINGS, INC., a company incorporated under the laws of the
Cayman Islands, whose principal place of business is at Caledonian House,
▇▇▇▇ Street, P.O. Box 1044, ▇▇▇▇▇▇ Town, Grand Cayman, the Cayman Islands
(TRITON);
ARCO JDA LIMITED, a company incorporated under the laws of the Commonwealth of
the Bahamas whose registered office is at #3 Magna Carta Court, P.O. Box,
N-4805, ▇▇▇▇▇▇▇ Street, Nassau, Bahamas (ARCO);
TRITON ENERGY LIMITED, a company incorporated under the laws of the Cayman
Islands, whose principal place of business is Caledonian House, ▇▇▇▇ Street,
P.O. Box 1043, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands (the TRITON
GUARANTOR); and
ATLANTIC RICHFIELD COMPANY, a company incorporated under the laws of the State
of Delaware, U.S.A., whose principal place of business is located at ▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (the ARCO GUARANTOR).
WHEREAS
(A) Triton International Oil Corporation (the COMPANY) is a company
organised and existing under the laws of the Cayman Islands with an authorised
capital of:
(1) US$50,000. divided into 50,000 Ordinary Shares of a nominal or par
value of US$1.00 each (of which 1,000 are issued and outstanding); and
(2) U.S.$487,000,000. divided into 110,000,000 shares of a nominal or par
value of US$1.00 each of Class A Preference Shares and 377,000,000 shares of
nominal or par value of US$1.00 each of Class B Preference Shares.
(B) Triton Oil Company of Thailand (JDA) Limited (TOCTJDA) and Triton Oil
Company of Thailand Ltd. Co. (TOCT (TEXAS)) (together the SUBSIDIARIES) are
wholly owned subsidiaries of the Company.
(C) Pursuant to an agreement dated July 17, 1998 (the SHARE PURCHASE
AGREEMENT) ARCO has acquired from Triton 50% of the issued and outstanding
Ordinary Shares of the Company.
(D) ARCO and Triton have agreed that their respective rights as
shareholders in the Company shall be regulated by the provisions of this
Agreement.
(E) The Triton Guarantor and the ARCO Guarantor wish to guarantee the
obligations of their respective subsidiaries.
INTERPRETATION
1. In this Agreement, expressions defined in Schedule 1 shall have the
meaning therein provided.
BUSINESS OF THE COMPANY
2.1 The business of the Company is participation in the exploration and
development of Block A-18 through a holding of the entire issued share capital
or membership interests, as the case may be, in the Subsidiaries.
2.2 The Parties agree that, except by agreement of the Parties, the
business of the Company shall consist exclusively of the Business.
2.3 The Parties shall consider, when reasonably practicable, changing the
names of the Subsidiaries.
BOARD OF DIRECTORS
3.1 The Company shall be managed by the Board of Directors. The Board of
Directors shall consist of four (4) Directors. Each of the Parties shall be
entitled to nominate two (2) Directors.
3.2 A member of the Board of Directors may only be removed from office by
the Party who nominated such member. Such Party shall be entitled to nominate
a replacement for any member so removed or for any member appointed by it who
is disqualified, dies or resigns from office or whose term of office expires
in accordance with the Articles. The Parties will use their votes as
shareholders as necessary in order to achieve such results.
3.3 Each Party will cast its votes as shareholder in conformity with the
provisions of this Agreement and in such a manner as to result in the
appointment of its own nominees and the other Party's nominees in accordance
with Clauses 3.1 and 3.2.
3.4 The Board of Directors may from time to time establish such other
standing and ad hoc committees as may be required, whose membership (including
the attendance of Board members), responsibilities, duties and procedures in
each case, shall be specified by the Board of Directors resolution pursuant to
which they are established.
PROCEEDINGS OF BOARD OF DIRECTORS
4.1 The Board of Directors shall meet periodically as required to conduct
the Business of the Company. Meetings may take place in such location and in
person or by telephone, as agreed between the Parties. The quorum for the
transaction or business at any meeting of the Board of Directors shall be at
least one nominee of Triton and one nominee of ARCO present at the time when
the relevant business is transacted.
4.2 No resolution of the Board of Directors or any committee of the Board
of Directors to which powers are delegated shall be passed except by unanimous
vote.
4.3 The right to appoint the Chairman of the Board of Directors shall
rotate between the Parties on an annual basis in respect of each calendar
year. The Chairman of the Board of Directors for the remainder of 1998 will
be a nominee of Triton. The Chairman shall not have a second, deciding or
casting vote on any matter presented for decision to the Board of Directors or
a meeting of shareholders of the Company.
4.4 The Directors of the Company shall also be appointed as the Directors
of each of the Subsidiaries, unless otherwise agreed by the Parties.
4.5 If a deadlock arises by reason of a failure by the Directors to reach
agreement on any matter put before a meeting of the Board of Directors or any
committee thereof, the provisions of Clause 22 will apply.
SHAREHOLDERS MEETINGS
5.1 Meetings of shareholders of the Company shall be held annually as
soon as possible, but no later than six months, after the year end and at such
other times as are necessary to transact any business which requires
shareholder approval pursuant to this Agreement or the Articles. Meetings of
shareholders may also be convened as provided in Article 38 of the Articles.
5.2 A resolution of the shareholders of the Company shall be passed by a
simple majority in number, or, where the same is provided for in accordance
with Cayman Islands law or the Articles, a higher majority, of the votes of
those Shares which are represented at a meeting of shareholders.
5.3 The Parties agree and undertake not to propose and in any event to
oppose any resolution put to the shareholders of the Company in general
meeting which is, or the giving of effect to which would be, inconsistent with
the provisions of this Agreement or the exercise of the rights or performance
of the obligations by the Parties hereunder.
5.4 If a deadlock arises by reason of a failure by the Shareholders to
reach agreement on any matter put before the meeting of shareholders of the
Company the provisions of Clause 22 will apply.
REPRESENTATION IN RELEVANT FORUM
6.1 The Parties will use all rights available to them and vote their
shares of the Company, and cause each Relevant Company to exercise any votes
that any of them have under the Block A-18 Agreements, to ensure that the
Parties have equal representation in each Relevant Forum. In particular, as
soon as practicable after the execution of this Agreement, the Parties shall
ensure that each Shareholder Group is represented on each Relevant Forum as
set out in Schedule 2. To the extent that a Relevant Forum is not set out in
Schedule 2, the Parties shall act to ensure that the Parties have equal
representation on such Relevant Forum.
6.2 Where any proposal is made requiring any decision to be taken by a
Relevant Forum, the representatives of the Parties on the Board of Directors
will meet to discuss the proposal and attempt to agree upon a joint decision.
Where such a joint decision is reached, the representative(s) of the Parties
on the Relevant Forum will vote in accordance with such joint decision.
6.3 Where no such joint decision is reached:
(a) the provisions of Clause 22 will apply;
(b) if the deadlock is not resolved and a joint decision is not reached
pursuant to Clause 22 by the time that such joint decision on the proposal is
required in the Relevant Forum, the representative(s) of the Parties on the
Relevant Forum will vote against the proposal unless such vote would result in
a reduction or loss of the Relevant Company's interest in the PSC or JOA in
which event the representative(s) of the Parties shall vote in favour of the
proposal.
6.4 The Parties will ensure that no Relevant Company exercises any right
or gives any consent under any Block A-18 Agreement without the consent of
both Parties.
MANAGEMENT POSITIONS
7.1 ARCO shall be entitled to second employees to Senior Management
Positions as contemplated under Section II clause 4 of the JOCA, in accordance
with this Clause 7.
7.2 The Parties acknowledge that under the terms of the JOCA there will
be rotation in the right to second employees in April 1999. No change in
secondment is anticipated before that date. As of April 1999, the following
provisions of this Clause 7 will apply.
7.3 Where for the purposes of the JOCA Triton has a right to second an
employee to the position of General Manager, then (as between the Parties):
(a) for 1999, ARCO shall have the right to make such nomination; and
(b) for 2009 and subsequent periods, the Parties shall ensure that the
right to nominate the General Manager and other Senior Management Positions is
allocated on an equal basis as between themselves.
7.4 Where for the purposes of the JOCA Triton has the right to appoint
the Exploration Manager, then (as between the Parties);
(a) for 1999 and 2004, Triton shall have the right to make such
nomination;
(b) for 2009 and subsequent periods, the Parties shall ensure that the
right to nominate the Exploration Manager and other Senior Management
Positions is allocated on an equal basis as between themselves.
7.5 Where for the purposes of the JOCA Triton has the right to appoint
the Finance & Administration Manager, then (as between the Parties);
(a) for 2004, ARCO shall have the right to make such nomination;
(b) for 2014 and subsequent periods, the Parties shall ensure that the
right to nominate the Finance & Administration Manager and other Senior
Management Positions is allocated on an equal basis as between themselves.
7.6 In respect of all other Senior Management Positions and any other
posts subordinate to these, the Parties shall ensure that the right to
nominate is allocated on an equal basis as between themselves.
7.7 The Parties will use all reasonable endeavours to give effect to the
principle that both Parties should be treated equally by such representatives
in respect of disclosure of information and consultations.
7.8 The Parties agree, and shall use all reasonable endeavours to
procure, that:
(a) TOCTJDA maintains a branch office in Kuala Lumpur which shall manage
the interests of the Subsidiaries in and relating to Block-A 18; and
(b) the Branch has a sufficient number of appropriately qualified
personnel to perform such management function.
7.9 The Parties agree that they will have the right to nominate senior
executives of TOCTJDA on the following basis:
(a) the General Manager of TOCTJDA will be nominated by Triton until
April 1999 and thereafter;
(i) by the Party which does not have the right to nominate the
General Manager under the JOCA where one of the Parties has such a right; and
(ii) by the Party which most recently had the right to nominate the
General Manager under the JOCA where neither of the Parties has such right;
(b) for so long as a Party shall have the right to nominate the General
Manager of TOCTJDA pursuant to this Agreement, the other Party shall have the
right to nominate the Finance and Administration Manager of TOCTJDA who shall
also serve in the capacity of Assistant General Manager and who shall be
consulted on all significant and material matters and issues;
(c) ARCO shall at all times have the right to nominate the Technical
Manager of TOCTJDA; and
(d) Triton shall at all times have the right to nominate the Commercial
Manager of TOCTJDA.
7.10 The powers and authorities of the General Manager of TOCTJDA shall be
established by the Board of Directors of TOCTJDA subject to such limitations
as the Parties may from time to time agree. The General Manager of TOCTJDA
shall, and the Party which has nominated such manager in accordance with this
Clause 7 shall procure that the General Manager shall, so far as is
practicable in the circumstances, report to the Board of Directors of the
Company regarding the management of the Subsidiaries and the Subsidiaries'
interests in and relating to Block A-18.
7.11 Each Party will consult with the other Party in respect of
nominations to be made by it, and will do all it reasonably can to ensure that
such nominations are acceptable to the other Party.
FUNDING AND ISSUE OF PREFERRED STOCK
8.1 Triton and/or an Affiliated Company of Triton (as the case may be) has
to date funded, by way of inter-company debt, the Petroleum Operations in an
amount equal to approximately $100 million which will be determined, as
between the parties, by the Completion Certificate as the historical
unrecovered costs expended on behalf of the Subsidiaries on Petroleum
Operations under the PSC up to the date of this Agreement (TRITON SUNK COSTS),
and that such debt has been, or to the extent that it has not will be, repaid
by the issue of Class A Preference Shares of the Company to Triton in such
number and value as is equal to the Triton Sunk Costs (TRITON PREFERRED
STOCK). The Company shall issue to Triton such amount of Triton Preferred
Stock as is equal to the amount of the Triton Sunk Costs within ninety (90)
days of the date of this Agreement.
8.2 The Parties further:
(a) acknowledge that Triton may be required to incur Additional Triton
Sunk Costs; and
(b) agree that the Company shall issue to Triton (quarterly or at such
other intervals as may be decided by the Board of Directors) such amount of
Class A Preference Shares of the Company in such number and value as is equal
to the amount of the Additional Triton Sunk Costs (the ADDITIONAL TRITON
PREFERRED STOCK).
8.3 ARCO will bear and pay for 100% of the Company's and each Subsidiary's
costs to conduct Petroleum Operations under the PSC from the date of this
Agreement until First Commercial Production from a Gas Field in the Contract
Area up to a maximum amount (in nominal dollars as spent) of the Limit Amount.
In consideration of such payments, the Company shall issue to ARCO (quarterly
or at such other intervals as may be decided by the Board of Directors) shares
of Class B Preference Shares of the Company (the ARCO PREFERRED STOCK) in such
number and value as is equal to the costs paid by ARCO pursuant to this
Clause.
8.4 The Parties shall each bear and pay for 50% of the Company's and each
Subsidiary's costs to conduct Petroleum Operations under the PSC from and
after the earlier of:
(a) First Commercial Production from a Gas Field in the Contract Area; or
(b) payment by ARCO of costs pursuant to Clause 8.3 up to the Limit
Amount.
The Board of Directors shall adopt a cash call procedure which will ensure
that the Company and each Subsidiary can timely meet funding obligations under
the Block A-18 Agreements.
8.5 Each year the Board of Directors shall review and approve the Support
Activities to be conducted by each Party during the upcoming year. Support
Activities are intended to be allocated equally between the Parties and
Support Costs are to be borne and paid by the Party incurring such Support
Costs, unless such Support Costs are included in a Support Activities Budget
approved by the Board of Directors. The Board of Directors are authorised to
adopt an annual Support Activities Budget, which shall include those Support
Costs which are to be jointly borne and paid by the Parties. A Party paying
Support Costs which are included in a Support Activities Budget shall invoice
the other Party for 50% of such Support Costs. Each invoice will contain
sufficient supporting documentation to substantiate the amount of the Support
Cost paid. A Party receiving such an invoice shall pay the amount of the
invoice within 30 days following receipt. Each Party shall have the right to
audit the books and records of the other Party in respect of Support Costs
included in a Support Activities Budget. Notwithstanding the provisions of
this Clause 8.5, the Parties may elect to contribute Support Costs which are
included in a Support Activities Budget to the Company in which case the
Company shall, upon such election, invoice the Parties for its relevant share
of such Support Costs.
8.6 In the event either Party fails to timely advance its share of equity
in accordance with the cash call procedure adopted by the Board of Directors
(herein the DEFAULTING PARTY and such amount the SHORTFALL AMOUNT), then:
(a) the Company shall notify both Parties of such default;
(b) the Shortfall Amount, as outstanding from time to time, shall bear
interest from the date such payment was due to the Company until paid in full.
Interest will be calculated on the unpaid portion of the Shortfall Amount on a
daily compounded basis, at the rate quoted as LIBOR Rate under the JOA, plus
five percent (5%), applicable on the date payment was due and thereafter on
the first day of each succeeding seven (7) day term.
(c) the other Party (NON-DEFAULTING PARTY) may, but shall not be obligated
to, advance to the Company all or a portion of the Shortfall Amount, and any
such advances, plus interest thereon at the rate provided in Clause 8.6(b)
shall become a debt owed by the Company to the Non-Defaulting Party (herein
the OBLIGATIONS). The Company shall pay such Obligations out of all available
cash flow and shall not make any payment in respect of any Shares or Preferred
Stock until the Obligations shall be discharged in full;
(d) to the extent that Obligations have been in existence and unpaid for
thirty (30) consecutive calendar days and for as long thereafter as such debt
remains, the Directors nominated by the Defaulting Party shall give (and be
deemed to have given) their proxy to the Directors nominated by the
Non-Defaulting Party to vote on any matter coming before the Board of
Directors in respect of the management or operations of the Company, other
than:
(i) the sale, assignment or transfer of any interest in the Company
or any assets of the Company; or
(ii) any matter which might result in a delay in payments to be made
under the Incentive Agreement; and
(e) if Obligations remain in existence for a consecutive period of more
than ninety (90) days, the Non-Defaulting Party shall be entitled to purchase
the Defaulting Party's Shares and Preferred Stock at a price payable in cash
to the Defaulting Party equal to the Defaulting Party's proportionate share of
the Appraised Market Value of such Shares and Preferred Stock, net of any
amounts owed to the Non-Defaulting Party under this Clause. APPRAISED MARKET
VALUE means the average of the value of the Defaulting Party's Shares and
Preferred Stock determined by two international investment banking firms (the
TWO BANKS), one to be appointed by each Party, provided such two values are
within five percent (5%) of the mean of the two values. If the valuations are
not within five percent (5%) of the mean of the two values, the Two Banks
shall (and if the Two Banks cannot agree, the President of the International
Chamber of Commerce shall) appoint a third international investment banking
firm, who on the basis of presentations by the first two international
investment banking firms shall determine which of the two values is closest to
the fair market value, i.e., the value achievable if the Defaulting Party's
Shares and Preferred Stock were sold by a willing seller to a willing buyer,
neither being under compulsion to sell or to buy, and then the valuation
closest to the fair market value as so determined shall be the Appraised
Market Value.
8.7 A Shortfall Amount, plus interest thereon at the rate stated in Clause
8.6(b), shall constitute an equity deficiency on the part of the Defaulting
Party owed to the Company (EQUITY DEFICIENCY). The amount of the Equity
Deficiency shall be reduced to the extent that cash flow used by the Company
to discharge the Obligations would have been payable as dividends or
distributions to the Defaulting Party in respect of its Shares or Preferred
Stock. The Defaulting Party shall have the right to cure an Equity Deficiency
at any time prior to the time provided in Clause 8.6(e) by paying the full
amount thereof to the Company. Any such amount paid by the Defaulting Party
shall be applied by the Company to discharge any Obligations or Additional
Obligations. If an Equity Deficiency has not been cured by the time that all
Obligations are paid by the Company pursuant to Clause 8.6(c), then the
Parties agree that in order to bring their respective capital accounts into
balance the Company shall pay to the Non-Defaulting Party all payments in
respect of any Shares or Preferred Stock which would have otherwise been paid
to the Defaulting Party until the Equity Deficiency has been cured. Should
the Company be restructured, liquidated or otherwise wound up before an Equity
Deficiency is cured then an amount equal to the Equity Deficiency shall first
be paid to the Non-Defaulting Party before any payments are made in respect of
Shares or Preferred Stock to either Party.
8.8 For so long as any Obligations are outstanding, the Non-Defaulting
Party shall have the right to advance funds to the Company for the discharge
of any debts or obligations of the Company which the Non-Defaulting Party
reasonably believes may give rise to the initiation of bankruptcy or other
insolvency proceeding respecting the Company; alternatively, if the Company
does not or cannot discharge any of its debts or obligations, the
Non-Defaulting Party may directly pay and discharge such debts or obligations
if a bankruptcy or insolvency proceeding shall have been filed or is
threatened to be filed on an imminent basis against the Company. In either
circumstance, the amounts so advanced or paid, plus interest thereon at the
rate stated in Clause 8.6 (b), shall become an additional obligation of the
Company to the Non-Defaulting Party (the ADDITIONAL OBLIGATIONS). The Company
shall pay such Additional Obligations out of all available cash flow and shall
not make any payment in respect of any Shares or Preferred Stock until the
Additional Obligations shall be discharged in full. In the event that there
are Obligations and Additional Obligations unpaid at the same time, the
Company shall use all available cash flow to discharge the Additional
Obligations first and then discharge the Obligations. The Company shall
promptly give notice to the Non-Defaulting Party of any unpaid debts or other
obligations which might reasonably give rise to the filing of a bankruptcy or
other insolvency proceeding respecting the Company.
8.9 The Company and the Subsidiaries shall at all times maintain and keep
accurate books and records in accordance with U.S. generally accepted
accounting principles, applicable law and the PSC, including, without
limitation, records, required to enable the Company, the Subsidiaries and
their respective shareholders to comply with income tax laws, rules and
regulations applicable to any of them.
COSTS RECOVERY
9.1 Each Party shall be entitled to recover an amount equal to the
allowable costs for Petroleum Operations under the terms of the PSC actually
paid by such Party or its Affiliated Companies. Recovery of such costs shall
be on a "first in, first out" basis as further provided in this Clause 9.
9.2 To the extent that a Relevant Company recovers allowable costs under
Clause 5.1(b) or 8.5(b) of the PSC, the Parties will procure that:
(a) an amount equal to such costs will be paid by the Relevant Company to
the Company, and
(b) the Company will apply the portion of such payment attributable to
operating costs to the Shares; and
(c) the Company will apply the balance of the payment so received in
redemption of the Preferred Stock in accordance with Clause 9.3.
9.3 The Preferred Stock will be redeemed as follows:
(a) first, in repayment of the Triton Preferred Stock and the Additional
Triton Preferred Stock up to the aggregate of the Triton Allowable Amount and
the Additional Triton Allowable Amount;
(b) next, in repayment of the ARCO Preferred Stock up to the ARCO
Allowable Amount.
9.4 Any Preferred Stock which remains after the application of Clause 9.3
will remain outstanding, will have no further claim on the assets of the
Company and will be cancelled on a liquidation of the Company.
DISTRIBUTION POLICY
10.1 Unless otherwise agreed between the Parties, the Parties shall take
such action as may be necessary to procure:
(a) the distribution by the Relevant Company of 100% of its accumulated
profits lawfully available for distribution to the Company; and
(b) the distribution by the Company to the Parties of 100% of its
accumulated profits (net of tax and extraordinary items) lawfully available
for distribution.
10.2 The Parties agree and shall, so far as is possible procure, that
distributions to be made pursuant to Clauses 9 and 10 shall be made as soon as
reasonably practicable upon the required funds becoming available.
TAXATION
11.1 The Parties acknowledge and agree that they will take all necessary
actions and make all necessary elections to cause the Company and the
Subsidiaries, together, to be treated as a single partnership for U.S. tax
purposes, and the Parties agree that they will enter into a U.S. tax
partnership agreement providing for special allocations under Section 704 of
the Internal Revenue Code of 1986, as amended, of items of income, gain,
expense, loss, deduction or credit to reflect (i) the actual payment by a
Party of items of expense, loss or deduction and (ii) each Party's respective
share of income or gain with corresponding credit. ARCO shall be designated
the tax matters partner in the U.S. tax partnership agreement.
11.2 The Parties shall each:
(a) as to the Company and the Subsidiaries provide such assistance as may
reasonably be required in connection with the preparation of any Tax return,
audit or other examination by any Taxation authority or judicial or
administrative proceedings relating to liability for Taxes; and
(b) cause the Company and the Subsidiaries to
(i) retain and provide to the Parties any records or other
information that may be relevant to any Tax return, audit or examination,
proceeding or determination of the Company, the Subsidiaries or the Parties;
(ii) provide the Parties with any final determination of any such
audit or examination, proceeding, or determination that affects any amount
required to be shown on any Tax return of the other for any period;
(iii) provide the Parties with a copy of all income tax returns and
receipts for all income taxes paid; and
(iv) retain, until any applicable statutes of limitations (including
any extensions) have expired, copies of all Tax returns, supporting work
schedules, and other records or information that may be relevant to such Tax
returns for all tax periods or portions thereof ending before or including the
date of this Agreement and shall not destroy or otherwise dispose of any such
records without first providing the other Party with a reasonable opportunity
to review and copy the same.
TRANSFERS OF SHARES
12.1 No Party may, directly or indirectly, sell, transfer, pledge,
encumber or otherwise dispose of (TRANSFER) all or part of its holding of
Shares save as in accordance with this Clause 12. Provided that in no event
shall this Clause 12 apply to, or transfer be deemed to include, a merger,
amalgamation, consolidation or exchange of shares in the capital of the
ultimate parent company of a Party or to a transaction or series of related
transactions in connection with the sale of all or substantially all of the
assets of the ultimate parent company of a Party to a single Purchaser.
12.2 A Party may transfer all or part of its holding of Shares to an
Affiliated Company of the Triton Guarantor or the ARCO Guarantor, as the case
may be, on terms that if any such company ceases at any time to be an
Affiliated Company of the Triton Guarantor or the ARCO Guarantor, such
transferee prior to so ceasing shall transfer all of the Shares held by it at
the time in question to an Affiliated Company of the Triton Guarantor or the
ARCO Guarantor, as the case may be.
12.3 Subject to Clause 12.6, a Party may at any time transfer all or part
of its holding of Shares (or any interest in Shares) to any person in
accordance with the procedures set out in Clauses 12.4 and 12.5
12.4.1 A Party may transfer all or any part of its holding of Shares, (the
TRANSFEROR PARTY) provided such Transferor Party shall first give to the other
party (the CONTINUING PARTY) notice in writing (a TRANSFER NOTICE) of any
proposed transfer together with details of any proposed third party purchaser
thereof (the THIRD PARTY PURCHASER), the purchase price, the number of Shares
to be transferred (the TRANSFER SHARES) and any other material terms agreed
between the Transferor Party and the Third Party Purchaser. A Transfer Notice
shall, except as hereinafter provided, be irrevocable.
12.4.2 On receipt of the Transfer Notice, the Continuing Party shall have
the right to purchase all (but not some only) of the Transfer Shares at the
purchase price specified in the Transfer Notice by giving written notice to
the Transferor Party within thirty (30) days of receipt of the Transfer Notice
(THE ACCEPTANCE PERIOD). The obligations of the Parties to complete such
purchase shall be subject to the provisions of Clause 12.4.3.
12.4.3 The Continuing Party shall become bound to purchase the Transfer
Shares on giving written notice to the Transferor Party to exercise its rights
under Clause 12.4.2. In such event, completion of the sale and purchase of
the Transfer Shares shall take place within thirty (30) days after the giving
of such notice (or such longer period as may be required to obtain any
necessary governmental approvals which shall be applied for on a timely
basis).
12.4.4 If the Continuing Party does not exercise its rights of purchase
under Clause 9.4.2, the Transferor Party shall be entitled to transfer the
Transfer Shares on a bona fide arm's length sale to a Third Party Purchaser at
a price being not less than the purchase price specified in the Transfer
Notice (after deducting, where appropriate, any dividend or other distribution
declared or made after the date of the Transfer Notice and to be retained by
the Transferor Party) provided that the completion of the sale and purchase by
such Third Party Purchaser shall take place within ninety (90) days of the
date of the Transfer Notice (or such longer period as may be required to
obtain any necessary governmental approvals).
12.5.1 If a Party desires to sell a Substantial Holding pursuant to this
Clause 12.5, a Party may transfer all or any of its holding of shares
comprising a Substantial Holding without regard to the restrictions specified
in Clause 12.4 provided that the following provisions of this Clause 12.5 are
complied with.
12.5.2 If a Party desires to sell a Substantial Holding pursuant to Clause
12.5(the OFFEROR PARTY), such Offeror Party shall give a notice in writing (an
OFFER NOTICE) to the other Party that it desires to transfer the Substantial
Holding, identifying the price at which it proposes to offer the Substantial
Holding to the other Party (the PRESCRIBED PRICE).
12.5.3 On receipt of the Offer Notice, the other Party shall have the
right to purchase all (but not some only) of the Substantial Holding at the
Prescribed Price by giving written notice to the Offeror Party within thirty
(30) days of receipt of the Offer Notice (the PRESCRIBED PERIOD). The
obligations of the Parties to complete such purchase shall be subject to the
provisions of Clause 12.5.4;
12.5.4 The other Party shall become bound to purchase the Substantial
Holding on giving written notice to the Offeror Party to exercise its rights
under Clause 12.5.3. In such event, completion of the sale and purchase of
the Substantial Holding shall take place within thirty (30) days after the
giving of such notice (or such longer period as may be required to obtain any
necessary governmental approvals which shall be applied for on a timely
basis).
12.5.5 If the other Party does not exercise its rights of purchase under
Clause 12.5.3, the Offeror Party shall have a one hundred and eighty (180) day
period (or such longer period as may be required to obtain any necessary
governmental approvals) in which to transfer such Substantial Holding at any
price not being less than the Prescribed Price (after deducting, where
appropriate, any dividend or other distribution declared or made after the
date of the Offer Notice and to be retained by the Offeror Shareholder) which
transfer shall not be subject to Clause 12.4. If the Offeror Party does not
transfer the Substantial Holding at a price not being less than the Prescribed
Price within such one hundred and eighty (180) day period (as extended where
applicable), then the provisions of Clause 12.5 shall be applicable to any
subsequent proposed transfers of a Substantial Holding.
12.6 Nothing in this Clause 12 shall permit a transfer of Shares to any
person if, following such transfer, the restructuring of the interests of the
Parties pursuant to Clause 14 would be liable to result in the transferee and
its Affiliated Companies collectively holding a Participating Interest (as
such term is defined in the JOA) of sixty five percent (65%) or more.
12.7 In the event that a proposed transfer involves consideration other
than cash or involves other properties included in a wider transaction
(package deal) then the Parties shall agree on the cash value of such
consideration or on a reasonable and justifiable allocation of cash value. If
the Parties are not able to agree on such cash value then the cash value of
the consideration will be determined in accordance with procedure specified in
Clause 8.6(f) for determining Appraised Market Value.
12.8 Any transfer of Shares permitted by, or made pursuant to, this Clause
12 shall be on terms that:
(i) the transferee has covenanted with the other Party (in a form
reasonably acceptable to it) to observe this Agreement and to perform all the
obligations of the transferor under this Agreement in respect of the Shares
which are the subject of the transfer; and
(ii) upon giving such covenants the transferee shall be treated as a Party
for the purposes of this Agreement and the obligations of the transferring
Party in respect of the Shares which are the subject of the transfer shall
terminate (save in respect of any antecedent breach).
12.9 For the purposes of this Clause 12, Party shall include ARCO, Triton
and any company in their respective Shareholder Group which directly or
indirectly owns the Shares, excluding the ultimate parent company of each
Party.
DURATION AND TERMINATION
13.1 Except as otherwise provided herein, this Agreement shall continue in
full force and effect without limit in point of time until the earlier of the
following events:
(a) the Parties agree in writing to terminate this Agreement; and
(b) one Party acquires 100% of the Shares; and
(c) an effective resolution is passed or a binding order is made for the
winding-up of the Company;
at which point the Agreement will terminate save for any provisions hereof
which are expressed to continue in force thereafter.
13.2 Termination of this Agreement for any cause shall not release a Party
from any liability which at the time of termination has already accrued to
another Party or which thereafter may accrue in respect of any act or omission
prior to such termination.
13.3 In addition to any requirements under applicable law, the Parties
agree that any decision by the Company to make a voluntary bankruptcy filing
shall require the unanimous consent of the Directors.
RESTRUCTURING
14.1 Unless the Parties are prevented pursuant to the PSC or JOA or by any
other legal or regulatory provisions, the Parties hereby acknowledge that they
will use all reasonable endeavours to restructure their interests in the
Company and the Company's interests in the Subsidiaries (whether by
liquidation, winding up or otherwise) as soon as possible after the completion
of the development phase of the project, as indicated by First Commercial
Production, so that the Parties shall, where possible, hold interests directly
in CTOC, the PSC, the JOA, the JOCA and any other related agreements and that
the entire interest in TOCT (Texas) shall be transferred to and held by Triton
or an Affiliated Company of Triton.
14.2 The Parties agree that they shall use all reasonable endeavours to
minimise the Tax liabilities of each Party arising out of any such
restructuring specified in Clause 14.1.
14.3.1 Subject to Clause 14.3.2, following any restructuring pursuant to
this Clause, the Parties agree that they will, where relevant and so far as is
legally possible, enter into agreements to give effect to and comply with the
provisions of this Agreement, including without limitation the cost recovery
provisions of Clause 9.3.
14.3.2 The Parties agree that, following any restructuring pursuant to
this Clause, the provisions of Clause 12 shall terminate and shall be
superseded in all respects by the relevant provisions of the JOA.
14.4 The Parties agree that the tax partnership established pursuant to
Clause 11.1 shall survive any restructuring made pursuant to this Clause 14.
CONFIDENTIAL INFORMATION
15.1 Each of the Parties shall:
(a) keep confidential and not disclose to any third parties, other than an
Affiliated Company or officers, employees and representatives of a Party or an
Affiliated Company, the terms of this Agreement and all information, whether
in written or any other form, which has been disclosed to it by or on behalf
of the other Party in confidence or which by its nature ought to be regarded
as confidential (including, without limitation, any business information in
respect of the other Party which is not directly applicable or relevant to the
transactions contemplated by this Agreement); and
(b) procure that its Affiliated Companies and its and their officers,
employees and representatives keep secret and treat as confidential all such
documentation and information.
15.2 Clause 15.1 does not apply to information:
(a) which shall after the date of this Agreement become published or
otherwise generally available to the public, except in consequence of a wilful
or negligent act or omission by the other Party in contravention of the
obligations in Clause 15.1;
(b) to the extent made available to the recipient Party by a third party
who is entitled to divulge such information and who is not under any
obligation of confidentiality in respect of such information to the other
Party or which has been disclosed under an express statement that it is not
confidential;
(c) to the extent required to be disclosed by any applicable law or by any
recognised stock exchange or governmental or other regulatory or supervisory
body or authority of competent jurisdiction to whose rules the Party making
the disclosure is subject, whether or not having the force of law, provided
that the Party disclosing the information shall notify the other Party of the
information to be disclosed (and of the circumstances in which the disclosure
is alleged to be required) as early as reasonably possible, but in no event
less than twenty four (24) hours, before such disclosure must be made and
shall take all reasonable action to avoid and limit such disclosure;
(d) which has been independently developed by the recipient Party
otherwise than in the course of the exercise of that Party's rights under this
Agreement or the implementation of this Agreement;
(e) which, in order to perform its obligations under or pursuant to this
Agreement, either Party is required to disclose to a third party;
(f) disclosed to any applicable tax authority either to the extent
required by a legal obligation or to the extent reasonably required to assist
the settlement of the disclosing Party's tax affairs or those of any of its
shareholders or any other person under the same control as the disclosing
Party;
(g) which the recipient Party can prove was already known to it before its
receipt from the disclosing Party;
(h) given to a bona fide prospective purchaser of all or a part of a
Party's holding of Shares or Preferred Stock (including a person with whom a
Party or an Affiliated Company of such Party is conducting bona fide
negotiations directed toward a merger, amalgamation, consolidation or the sale
of a majority of its or the Affiliated Company's, as the case may be, shares)
provided the provisions of Clause 12 have, where relevant, been complied with;
or
(i) given to a bank or other financial institution to the extent
appropriate to a Party arranging for funding for its operations; provided that
the bank or financial institution is subject to confidentiality undertakings
substantially identical to those set forth in this Clause 15.
15.3 The provisions of this Clause 15 shall survive any termination of
this Agreement.
RIGHTS TO INFORMATION
16.1 The Parties (insofar as they are able) shall cause the Company to
permit the Directors to discuss the affairs, finances and accounts of the
Company with the officers and other principal executives and Affiliated
Companies and the professional advisers of the Party by whom such Directors
were nominated.
16.2 At such times as may reasonably be requested, all books, records,
accounts and documents relating to the business and the affairs of the Company
shall be open to the inspection of the Directors who may make such copies
thereof or extracts therefrom as such persons may deem appropriate and pass
such information to the officers, principal executives and professional
advisers of the relevant Party. Any information secured as a consequence of
such discussions and examinations and shared with a Party in accordance with
this Clause 16 shall be kept strictly confidential by that Party.
16.3 Each of the Parties shall be entitled to have access to all
information and data relating to Petroleum Operations under the PSC provided
to the Company.
NOTICES
17.1 Any notice or other communication required to be given or made under
or in connection with this Agreement or with any arbitration or intended
arbitration under this Agreement shall be given or made.
17.2 Any such notice or other communication shall be in writing and shall
be sufficiently given or made if:-
(i) delivered in person during normal business hours on a business day (in
the country or state of the recipient's address) and left with an Officer or
Director of the relevant Party provided that evidence of receipt is obtained;
or
(ii) sent by electronic means of sending messages, including telex or fax,
which produces a paper record (TRANSMISSION) during normal business hours on a
business day (in the country or state of the recipient's address) charges
prepaid;
to the relevant Party at the address set out in this Agreement or such other
address as may be substituted therefor by notice.
17.3 Each notice given or made in accordance with Clauses 17.2(i) and
17.2(ii) shall be deemed to have been received:
(i) in the case of Clause 17.2(i), on the day it was delivered; or
(ii) in the case of Clause 17.2(ii), on the same day it was sent by
Transmission.
17.4 The addresses of the Parties for the purposes of Clause 17.2 are as
first set forth in this Agreement. It is understood that a Party may at any
time change its address for the purposes of Clause 17.2 by written notice to
the other Parties.
TRITON GUARANTOR
18.1 In consideration of ARCO entering into this Agreement, the Triton
Guarantor (as principal obligor and not merely as a surety) unconditionally
and irrevocably guarantees as a continuing obligation the proper performance
by Triton and any Affiliated Company of Triton which becomes a party to this
Agreement of all their obligations under or pursuant to this Agreement.
18.2 The Triton Guarantor's liability hereunder shall not be discharged or
impaired by any amendment to or variation of this Agreement, any release of,
or granting of time or other indulgence to, Triton or any third party, any
liquidation, administration, receivership or winding-up of Triton or by any
other act or omission or any other events or circumstances whatsoever (whether
or not known to Triton, ARCO or the Triton Guarantor) which would or might
(but for this Clause) operate to impair or discharge the Triton Guarantor's
liability under this guarantee.
ARCO GUARANTOR
19.1 In consideration of Triton entering into this Agreement, ARCO
Guarantor (as principal obligor and not merely as a surety) unconditionally
and irrevocably guarantees as a continuing obligation the proper performance
by ARCO and any Affiliated Company of ARCO which becomes a party to this
Agreement of all their obligations under or pursuant to this Agreement.
19.2 ARCO Guarantor's liability hereunder shall not be discharged or
impaired by any amendment to or variation of this Agreement, any release of,
or granting of time or other indulgence to, ARCO or any third party, any
liquidation, administration, receivership or winding-up of ARCO or by any
other act or omission or any other events or circumstances whatsoever (whether
or not known to ARCO, Triton or the ARCO Guarantor) which would or might (but
for this Clause) operate to impair or discharge the ARCO Guarantor's liability
under this guarantee.
GENERAL
20.1 No remedy conferred by any of the provisions of this Agreement is
intended to be exclusive of any other remedy which is otherwise available by
law or otherwise, and each and every other remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing by law or otherwise. The election of any one or more of such
remedies by any of the Parties shall not constitute a waiver by such Party of
the right to pursue any other available remedy.
20.2 No announcement of any kind shall be made in respect of this
Agreement or the operations of the Company except as otherwise agreed in
writing among the Parties or unless required by law or the rules of any stock
exchange on which the shares of any Party are listed or other governmental or
regulatory body to which any Party is subject, in which case the Party
concerned shall take all reasonable steps to obtain the consent of the other
Party to the contents of the announcement which consent shall not be
unreasonably withheld and the Party making the announcement shall (unless it
is not reasonably practicable to do so) give a copy of the text to the other
Parties prior to the announcement being released.
20.3 No variation of this Agreement shall be effective unless in writing
and signed by or on behalf of each of the Parties.
20.4. Each Party shall co-operate with the other and execute and deliver
to the other such other instruments and documents and take such other actions
as may be reasonably requested from time to time in order to carry out,
evidence and confirm its rights and the intended purpose of this Agreement.
20.5. Each Party shall bear its own costs and expenses incurred by it in
connection with entering into and implementing this Agreement.
20.6. If any term or provision in this Agreement is held to be illegal or
unenforceable, in whole or in part, under any enactment or rule of law, such
term or provision or part shall to that extent be deemed not to form part of
this Agreement but the enforceability of the remainder of this Agreement shall
not be affected.
20.7. Except as specifically provided in this Agreement, in the event of
any ambiguity or discrepancy between the provisions of this Agreement (the
RELEVANT PROVISIONS) and the Articles, then the Relevant Provisions shall
prevail. Accordingly, the Parties shall exercise all voting and other rights
and powers available to them so as to give effect to the Relevant Provisions
and shall further if necessary procure any required amendment to the Articles
provided that the Relevant Provisions and such amendment to the Articles will
not contravene Cayman Islands law. If the Relevant Provisions are contrary to
the Governing Law, the Parties shall exercise their rights and powers as
aforesaid to procure any required amendment to this Agreement.
20.8. Nothing in this Agreement shall be deemed to constitute any Party
the agent of any other Party for any purpose.
20.9. This Agreement may be entered into in any number of counterparts,
each of which when executed and delivered shall be an original but all the
counterparts together shall constitute one and the same instrument.
GOVERNING LAW AND APPLICABLE LAWS
21.1 This Agreement, except as expressly referred to herein, shall be
governed by and construed in accordance with English law, excluding any
conflict of laws principles which would apply the laws of another
jurisdiction.
21.2 The Company and the Subsidiaries shall be subject to all applicable
laws, rules and regulations. In this regard, neither the Company, the
Subsidiaries nor any person acting for or on their behalf will, in connection
with this Agreement, the PSC or the Business, offer, pay or agree to pay,
directly or indirectly, any consideration of any nature whatsoever to any
official, agent or employee of any government, or to any candidate for
political office in any country to influence the act, decision or omission of
any such official, agent, employee, political party, political party official
or candidate in his or its official capacity which is contrary to, prohibited
by or penalised under any law, rule or regulation applicable to the Company,
the Subsidiaries or any of their respective shareholders or which would render
the Company, the Subsidiaries or any of their respective shareholders (or the
Affiliated Companies or any of them) in violation of or subject to liability
under any law, rule or regulation applicable to such entity or person,
including but not limited to the Foreign Corrupt Practices Act of the United
States to the extent it is applicable to any such entity or person. Nothing
in this Agreement shall be deemed to be a consent to be subject to the laws or
the jurisdiction the United States of America or any state thereof, or any
court within the United States of America or any state thereof.
DECISION DEADLOCK AND DISPUTE RESOLUTION
22.1. It is the intention of the Parties that all decisions on matters
associated with the management, operation and functioning of the Company or
otherwise involving or affecting the Company shall be made on the basis of a
fully informed consensus of the Board of Directors. However, the Parties
recognise that the proper management, operation and functioning of the Company
will require that decisions be made in a timely manner and that any decision
deadlocks be resolved as expeditiously as possible in accordance with a clear
and well defined procedure which will ensure that the differing viewpoints on
a decision deadlock are heard before a decision is made.
22.2. In the event that the Board of Directors fails to reach agreement on
any matter, whether by failure of the Board of Directors to act on any matter
properly submitted to the Board for resolution within ninety (90) days of the
date such matter was so submitted or by failure of the Board of Directors
after consideration of such matter to resolve it by the required vote, then
any Director may, upon written notice to the Parties refer such matter (the
REFERRED MATTER) for resolution to a senior corporate officer designated by
ARCO and a senior corporate officer designated by Triton. Such written notice
shall be accompanied by a brief written memorandum or other form of written
statement setting out the Referred Matter, the referring Director's position
on the Referred Matter, the referring Director's understanding of the position
of the Directors who are opposed to his position on the Referred Matter and
the referring Director's recommendation on the Referred Matter. Any other
Director may also prepare and distribute to the Parties a similar brief
written memorandum or other form of written statement.
22.3. The senior corporate officers of the Parties will negotiate as soon
as reasonably practicable to attempt to resolve the Referred Matter; and in
all cases shall endeavour to resolve the Referred Matter before the Company is
required to make a decision under a Block A-18 Agreements.
22.4. If the senior corporate officers of the Parties fail to resolve the
Referred Matter, either Party may, at any time after the expiry of thirty (30)
calendar days after delivery of the notice required in Clause 22.2, refer the
matter to arbitration in accordance with Clause 23.
ARBITRATION
23. The parties irrevocably agree that any disputes in relation hereto
shall be submitted to binding arbitration in London conducted in the English
language in accordance with the arbitration rules of the International Chamber
of Commerce.
SCHEDULE 1
DEFINITIONS
ADDITIONAL OBLIGATIONS has the meaning set out in Clause 8.8.
ADDITIONAL TRITON ALLOWABLE AMOUNT means the amount of Additional Triton Sunk
Costs and determined as allowable for recovery under clause 5.1(b) or 8.5(b)
of the PSC.
ADDITIONAL TRITON SUNK COSTS means costs expended from time to time after the
date of this Agreement on Petroleum Operations pursuant to the Liabilities
Indemnity.
ADDITIONAL TRITON PREFERRED STOCK has the meaning set out in Clause 8.2.
AFFILIATED COMPANY means, in relation to a company, a holding company or
subsidiary of such company or a subsidiary of any holding company of such
company for which purposes (and for the purposes of this Agreement generally)
a company is a subsidiary of another company, its holding company, if that
other company has a shareholding interest entitling that other company to cast
more than half of all votes exercisable at every general meeting of
shareholders on all issues or if it is a subsidiary of company which is itself
a subsidiary of that other company.
ARCO ALLOWABLE AMOUNT means the amount of expenditure incurred by ARCO
pursuant to Clause 8.3 and determined as allowable for recovery under clause
5.1(b) or 8.5(b) of the PSC.
ARCO PREFERRED STOCK has the meaning set out in Clause 8.3.
ARTICLES means the articles of association of the Company (as amended by
special resolution dated 31 July 1998 and as further amended from time to time
hereafter).
BLOCK A-18 means the area designated as Block A-18 of the Malaysia-Thailand
Joint Development Area.
BLOCK A-18 AGREEMENTS means the PSC, the JOA and the JOCA.
BUSINESS means the business of the Company as described in Clause 2.1.
COMPLETION CERTIFICATE shall have the meaning ascribed to it in the Share
Purchase Agreement.
CONTRACT AREA has the meaning set out in the PSC.
CTOC means Carigali-Triton Operating Co. SDN.BHD, a Malaysia corporation.
EQUITY DEFICIENCY has the meaning set out in Clause 8.7.
FIRST COMMERCIAL PRODUCTION has the meaning set out in the PSC.
GAS FIELD has the meaning set out in the PSC.
INCENTIVE AGREEMENT means the agreement made between the Parties of the same
date as this Agreement relating to certain bonus payments payable to the
Company.
JOA means the joint operating agreement relating to Block A-18 dated 21 April
1994, as amended from time to time.
JOCA means the agreement dated 21 March 1994 relating to the establishment,
management and operation of CTOC, as amended from time to time.
LIABILITIES INDEMNITY means the indemnity given by Triton pursuant to the
Share Purchase Agreement.
LIMIT AMOUNT means the amount of U.S.$377 million (in nominal dollars as
spent).
PARTIES means ARCO and Triton and PARTY means ARCO or Triton;
PETROLEUM OPERATIONS has the meaning set out in the PSC.
PREFERRED STOCK means the ARCO Preferred Stock, the Triton Preferred Stock and
the Additional Triton Preferred Stock.
PSC means a Production Sharing Contract relating to Block A-18 dated 21 April
1994, as amended from time to time.
RELEVANT COMPANY means either or both of the Subsidiaries.
RELEVANT FORUM means any of the following:
(i) the Operations Committee under the PSC;
(ii) the Management Committee under the JOA;
(iii) the Board of Directors of CTOC; and
(iv) any other body, committee or group established pursuant to any of the
Block A-18 Agreements.
SENIOR MANAGEMENT POSITIONS has the meaning set out in the JOCA.
SHARES means Ordinary Shares in the capital of the Company.
SHAREHOLDER GROUP means, in respect of a Party, the group of companies
comprising the Shareholder, its holding company and intermediate subsidiaries
of the holding company.
SHARE PURCHASE AGREEMENT has the meaning set out in Recital (C).
SUBSIDIARIES has the meaning set out in Recital (B).
SUBSTANTIAL HOLDING means not less than twenty five percent (25%) of the
Shares in issue and outstanding at the relevant time.
SUPPORT ACTIVITIES means activities performed in direct support of the Company
which are not allowable for cost recovery under the PSC.
SUPPORT ACTIVITIES BUDGET means a budget for the costs of Support Activities
which are to be borne and paid 50% by Triton and 50% by ARCO.
SUPPORT COSTS means the direct costs incurred to conduct Support Activities.
It is understood that the costs of personnel in a Shareholder Group performing
Support Activities shall be charged on the basis of the actual time to perform
such Support Activities and a "manday" rate approved from time to time by the
Board of Directors.
TAX or TAXATION means and includes any and all forms of taxation, withholding,
duty, levy, or impost imposed by any governmental authority, whether the
United States, Malaysia, Thailand or elsewhere and all penalties, charges,
costs and interest relating thereto.
TOCT (TEXAS) has the meaning set out in Recital (B).
TOCTJDA has the meaning set out in Recital (B).
TRITON ALLOWABLE AMOUNT means the amount of the Triton Sunk Costs incurred by
Triton in respect of Petroleum Operations prior to the date of this Agreement
(including those not actually paid until after the date of this Agreement) and
determined as allowable for recovery under Clause 5.1(b) or 8.5(b) of the PSC.
TRITON PREFERRED STOCK has the meaning set out in Clause 8.1.
TRITON SUNK COSTS has the meaning set out in Clause 8.1.
SCHEDULE 2
REPRESENTATION IN RELEVANT FORUM
1. OPERATIONS COMMITTEE UNDER PSC (CLAUSE 4.2 PSC, CLAUSE 19 JOCA)
Rules relating to appointment:
(a) where one Party has appointed an individual as the representative of
CTOC on the Operations Committee, the other Party is entitled to nominate the
representative of the Contractors on the Operations Committee;
(b) the effect of this is that, at any given time, of the four
representatives on the Operations Committee which are allocated to the
Contractors and the Operator, there will be two appointed by Carigali, one
appointed by Triton and one appointed by ARCO.
2. MANAGEMENT COMMITTEE UNDER JOA
Rules of appointment:
(a) where one Party has the right to nominate the General Manager of
TOCTJDA, that Party will also have the right to appoint the primary
representative and the other Party will have the right to appoint the
alternate;
(b) where neither Party has the right to appoint the General Manager of
CTOC under the JOCA and one Party has the right to nominate the General
Manager of TOCTJDA, the Party that does not have the right to nominate the
General Manager of TOCTJDA will have the right to appoint the primary
representative and the other Party will have the right to appoint the
alternate.
(c) the parties will do all they can to ensure that the alternate is
entitled to attend meetings (including being invited along as a technical
advisor, if necessary).
3. BOARD OF DIRECTORS OF CTOC (SECTION III CLAUSE 15 OF JOCA)
Rules of appointment:
(a) ARCO will have the right to appoint one Director and Triton will have
the right to appoint one Director;
(b) the effect of this is that, at any given time, of the four Directors,
there will be two appointed by Carigali, one appointed by Triton and one
appointed by ARCO.
SIGNED by )
for and on behalf of TRITON ASIA )
HOLDINGS, INC. )
SIGNED by )
for and on behalf of ARCO )
JDA LIMITED )
SIGNED by )
for and on behalf of )
TRITON ENERGY LIMITED )
SIGNED by )
for and on behalf of )
ATLANTIC RICHFIELD )
COMPANY )
JOINDER
TRITON INTERNATIONAL OIL CORPORATION, a company incorporated under the laws of
the Cayman Islands, whose principal place of business is at Caledonian House,
▇▇▇▇ Street, P.O. Box 1044, ▇▇▇▇▇▇ Town, Grand Cayman, the Cayman Islands,
hereby joins this Agreement for the limited purpose of agreeing to be bound,
and does hereby agree to be bound, by the provisions of Clauses 8.6, 8.7 and
8.8 of this Agreement.
SIGNED by )
for and on behalf of TRITON )
INTERNATIONAL OIL )
CORPORATION )
