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EXHIBIT 2.3.2
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT (the "Amendment") is
made and entered into as of this 24th day of April, 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, Seller, Construtora, Xxxxxxx, Driltech, and Buyer entered into
an Amendment No. 1 to Stock Purchase Agreement dated as of January 24, 1997
(the "First Amendment") providing for certain post-Closing arrangements with
respect to certain matters as described therein; and
WHEREAS, the parties desire to amend the Original Agreement, as
amended by the First Amendment, 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 did not include the Drilling Contract(s) between Petroleo
Brasileiro S.A. - Petrobras ("Petrobras") and Parent (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
and effectiveness of the consent of Petrobras to the transfer of the Petrobras
Contracts and the consent of Hercules Offshore Corporation ("Hercules") to the
transfer of the Lease Agreement (collectively referred to herein as the
"Consents"), 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 the
effective date 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) As of the effective date 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 with an effective date on or before
May 1, 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 the
effective date 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 the effective date 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) the
effective date of the Consents of Petrobras and Hercules, or (ii) May 1, 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. It is acknowledged and agreed that from and after the date
hereof, all references to the "Closing" or the "Closing Date" in the
indemnification provisions of Article X of the Original Agreement shall, with
respect only to the Leased Drilling Rig, the Petrobras Contracts and the Lease
Agreement, be deemed to refer instead to the effective date 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.
6. It is acknowledged and agreed that as between the parties, the
rights and obligations set forth in the Original Agreement, as amended by the
First Amendment and this Amendment, including without limitation the
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indemnification provisions set forth in Article X of the Original Agreement, as
amended, shall override any conflicting provisions contained in any documents,
instruments or agreements between any or all of the parties, on the one hand,
and Petrobras or Hercules, on the other.
7. 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 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.
8. This instrument is executed and shall constitute an instrument
supplemental to and in amendment of the Original Agreement, as amended by the
First Amendment, and shall be construed with and as a part of the Original
Agreement, as amended by the First Amendment.
9. Except as modified and expressly amended by this Amendment and
any other supplement or amendment, the Original Agreement, as amended by the
First Amendment, 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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