Exhibit 1.3
DATED 1999
---------------------------------------------
(1) X X XXXXX and OTHERS
(2) HALLIBURTON COMPANY
(3) X X XXXXXX and OTHERS
_____________________________________________
AGREEMENT
relating to
PES (INTERNATIONAL) LIMITED
_____________________________________________
Xxxxxxx XxXxxxx
Xxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
T x00(0)000 000 0000
F x00(0)000 000 0000
Table of Contents
1. Interpretation................................................................................2
2. Warranties....................................................................................7
3. Restrictive covenants.........................................................................8
4. Agreement to pay liquidated damages..........................................................10
5. Pre-completion matters.......................................................................15
6. Completion...................................................................................17
7. Information..................................................................................20
8. Termination of Shareholders Agreement........................................................20
9 General......................................................................................20
10. Costs........................................................................................21
11. Notices......................................................................................22
12. Agent for Service............................................................................23
Schedule............................................................................................25
1. This is the Schedule referred to in the foregoing Agreement..................................25
Part 1A......................................................................................25
The Executive Warrantors.....................................................................25
Part 1 B Maximum Liabilities under the Warranties..................................................27
Part 1 C The Covenantors...........................................................................28
Part 2A......................................................................................29
Corporate Structure..........................................................................29
Part 2B......................................................................................30
Part 2B......................................................................................31
Particulars concerning the Subsidiaries of the Company.......................................31
WARRANTIES..........................................................................................47
Part 3..............................................................................................47
1. Information..................................................................................47
2. Group structure..............................................................................47
3. Share capital................................................................................47
4. Financial position...........................................................................48
5. Events since the Accounts Date...............................................................48
6. Employment matters...........................................................................49
7. Authorities..................................................................................53
8. Litigation...................................................................................53
9. Applicable legislation.......................................................................54
10. Records and documents........................................................................55
11. Company Agreements...........................................................................55
12. Loans and financial facilities...............................................................56
13. Liabilities to the Executive Warrantors......................................................59
14. Entry into this Agreement....................................................................60
15. Intellectual and industrial property.........................................................60
16. Insolvency...................................................................................61
17. Properties...................................................................................62
18. Environmental matters........................................................................63
19. Dormant Subsidiaries.........................................................................64
20. Minors.......................................................................................64
21. Taxation.....................................................................................64
Part 4..............................................................................................66
DETAILS OF PROPERTIES...............................................................................66
Part 5..............................................................................................69
Part 6..............................................................................................74
Details of Subsisting Options................................................................74
Part 7..............................................................................................79
Details of Shareholders as at the date hereof.......................................................79
Agreed Form Documents
1. Forecasts and Projections
2. Offer Document
3. Service Agreements
4. Specified Intellectual Property
5. Board Minutes of the Company and the Existing Subsidiaries
6. Form of Directors' and Secretaries' Resignation
7. Form of Auditor's Resignation
8. Letters terminating Shareholders Agreement dated 22 April 1997 from
Halliburton Holdings Limited and PES (International) Limited
9. Optionholders Letter
11. Year 2000 Compliance Report
12. Halliburton Stock Option Plan
13. The Special Resolution proposed to be passed on [ ] June 1999
AGREEMENT
BETWEEN:
(1) Those persons whose names and addresses are set out in Part 1A of the
schedule annexed and executed as relative hereto (the "Executive
Warrantors");
(2) HALLIBURTON COMPANY, a company incorporated in the State of Delaware, USA,
whose address for the purposes of this Agreement is 3600 Lincoln Plaza, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Xxxxxx Xxxxxx ("Halliburton"
(which expression shall include any person who succeeds (in whole or in
part) to any of the rights of Halliburton hereunder in accordance with
clause 9.5)).
(3) Those persons whose names and addresses are set out in Part 1C of the
schedule annexed and executed as relative hereto (the "Covenantors").
RECITALS
(A) The Company is a private company limited by shares incorporated in Scotland
under the Companies Xxx 0000 further details of which are contained in Part
2A of the schedule annexed and executed as relative hereto.
(B) Immediately prior to signature of this Agreement, the authorised share
capital of the Company is (pound)150,000 divided into 1,500,000 Ordinary
Shares of which 1,266,540 have been allotted and issued and are fully paid
up and are held as set out in Part 2A of the schedule annexed and executed
as relative hereto.
(C) The Company is a holding company and is also the beneficial owner of the
number of shares in the issued share capital of each of the Existing
Subsidiaries (as hereinafter defined) as set out in Part 2B of the schedule
annexed and executed as relative hereto.
(D) The Existing Subsidiaries carry on the respective businesses as set out in
Part 2B of the schedule annexed and executed as relative hereto.
(E) In consideration of Halliburton agreeing to offer to acquire the entire
issued ordinary share capital of the Company (other than the Shares owned
by Halliburton Holdings Limited) on the terms set out in the Offer Document
the Executive Warrantors have entered into this Agreement.
NOW IT IS HEREBY AGREED as follows:
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1. Interpretation
1.1 In this Agreement (including the recitals), except where the context
otherwise requires, the following words and expressions shall have the
following meanings:
"Accounts" means the audited consolidated balance sheet and profit and loss
account of the Company and the Existing Subsidiaries as at and for the
period ended on the Accounts Date together with the notes thereto and the
directors' report and the auditors' report included therewith
"Accounts Date" means 31st March 1998
"Agreed Form" means a form agreed between the parties and for the purposes
of identification initialled by or on behalf of the parties
"Associate" means the same as in Articles 12.1(c)(i) to (iii) inclusive of
the Articles of Association of the Company
the "Board" means the board of directors of the Company as from time to
time constituted
the "Business" means the business of the design, manufacture, supply and
installation of Smartwell and Completion and Well Intervention Systems and
related products
"Business Day" means any day other than a Saturday, Sunday or day on which
clearing banks in Scotland or England are not open for business
"Call Options" means the option agreements whereby the Company may call for
the transfer to it of shares in Petroleum Engineering Services Asia Pty
Limited from the minority shareholders of such company, in exchange for the
issue to such minority shareholders of the maximum aggregate number of
5,480 Ordinary Shares
"Commercial Information" means all information (not limited to matters
which are confidential) at any time belonging to, or under the control of,
any Group Company which has at any time been used or intended to be used
for the purpose of the business of the Group (or any aspect of it)
"Company" means PES (International) Limited, a company registered in
Scotland under number 145181, whose registered office is at 00 Xxxxx Xxxxx,
Xxxxxxxx XX00 0XX
"Completion" means the date upon which the Offer becomes unconditional in
all respects
"Disclosed" means fairly disclosed by the Disclosure Documents and the
Disclosure Letter (and "Disclosure" shall be construed accordingly)
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"Disclosure Documents" means the Disclosure Letter and the [two identical
bundles of documents collated by or on behalf of the Executive Warrantors,
the outside covers of which have been signed for identification for or on
behalf of the Executive Warrantors and Halliburton]
"Disclosure Letter" means the letter (in Agreed Form) of even date with
this Agreement containing disclosures to the Warranties from Stronachs
Solicitors, 00 Xxxxx Xxxxx, Xxxxxxxx XX00 0XX ("Stronachs") on behalf of
the Executive Warrantors to, and accepted in writing by Halliburton
"Dormant Subsidiaries" means each of PES Netherlands Limited, PES Petroquip
Limited, PES Petroserv Limited, PES Petrospec Limited, PES Petroturn
Limited, Bluefoil Limited and PES Petroseal Limited, being seven of the
Existing Subsidiaries
"Encumbrance" means a standard security or other interest or equity of any
person (including any right to acquire, option or right of pre-emption or
conversion) or any mortgage, charge, pledge, lien, assignment,
hypothecation, security interest, title retention or any other security
agreement or arrangement, or any agreement to create any of the above
"ERA" means the Employment Rights Xxx 0000
"Existing Subsidiaries" means the companies the names of, and further
details relating to which, are set out in Part 2B of the schedule annexed
and executed as relative hereto
"Forecasts and Projections" means the forecasts and projections in Agreed
Form
"Group" means together the Company, the Existing Subsidiaries and every
other company which is at the date hereof a subsidiary or holding company
of the Company
"Group Company" means any company for the time being in the Group
"Halliburton Group" means Halliburton or any subsidiary company of
Halliburton (the expression "subsidiary company" having the same meaning as
in the Companies Xxx 0000 (as amended)) and "member of the Halliburton
Group" shall be construed accordingly
"Halliburton Options" means options to purchase Halliburton Shares granted
pursuant to the Halliburton Stock Option Plan
"Halliburton Shares" means common stock, par value US$2.50 per share, of
Halliburton
"Halliburton Stock Option Plan" means the stock option plan (in Agreed
Form) pursuant to which holders of Subsisting Options will be offered
options over Halliburton Shares
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"Hardware" means any and all computer, telecommunications and network
equipment owned or used by a Group Company
"IT Services" means any services relating to the IT Systems or to any other
aspect of a Group Company's data processing or data transfer requirements,
including facilities management, bureau services, hardware maintenance,
software development or support, consultancy, source code deposit, recovery
and network services
"IT Systems" means Hardware and/or Software owned or used by a Group
Company
"Management Accounts" means the unaudited consolidated management accounts
in respect of the Company and the Existing Subsidiaries as at 31st January
1999 and in respect of the 10 month period then ended in Agreed Form
"Offer" means the offer by Halliburton to acquire all the shares in the
Company not already owned by members of the Halliburton Group on the terms
and subject to the conditions set out in the Offer Document
"Offer Document" means the document making the Offer (in Agreed Form) to be
issued to the holders of Shares and for information only to the holders of
Subsisting Options
"Optionholders Letter" means the letter (in the Agreed Form) to be issued
by Halliburton to each of the holders of the Subsisting Options
simultaneously with the issue of the Offer Document to the holders of
Shares
"Ordinary Shares" means Ordinary Shares of 10 xxxxx each in the capital of
the Company having rights and privileges as set out in the Articles of
Association of the Company
"Product" means any goods and includes a product which is comprised in
another product (whether by virtue of being a component part or raw
material or otherwise) which a Group Company has supplied or agreed to
supply to any person or intends to turn to account
the "Properties" means as defined in paragraph 17.1 of Part 3 of the
schedule annexed and executed as relative hereto
"SCRAMs Systems" means the surface controlled reservoir analysis and
management system developed by the Group
"Second Determination Date" shall have the same meaning as in the Offer
Document
"Service Agreements" means the service agreements (in Agreed Form) entered
into on the date hereof by each of the Executive Warrantors and Covenantors
and a Group Company or a member of the Halliburton Group
"Shares" means shares in the capital of the Company (of whatever class)
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"Shareholders" means collectively all (or, where the context requires,
some) of the holders of Shares from time to time
"Shareholders Agreement" means the share subscription agreement dated 22nd
April 1997 and made between inter alios the Executive Warrantors, the
Company and Halliburton Holdings Limited
"Software" means any and all computer programs in both source and object
code form, including all modules, routines and sub-routines such programs
and all source and other preparatory materials relating to them, including
user requirements, functional specifications and programming
specifications, ideas, principles, programming languages, algorithms, flow
charts, logic, logic diagrams, orthographic representations, file
structures, coding sheets, coding and any manuals or other documentation
relating to them and computer generated works
"SSAP" means a statement of standard accounting practice or financial
reporting standard in force at the date of the Agreement as issued by the
Consultative Committee of Accounting Bodies and adopted by the Accounting
Standards Board Limited
"Subsisting Options" means all options (other than the Call Options) by
which any person is entitled to acquire or call for the issue or transfer
of Shares (of whatever nature and upon whatever terms), full details of
which (as at the date of this Agreement) are set out at Part 6 of the
schedule annexed and executed as relative hereto
"Specified Intellectual Property" means as defined in paragraph 15.1 of
Part 3 of the Schedule annexed and executed as relative hereto
"Taxation" means all forms of taxation, duties, imposts, levies and rates
whenever created or imposed and whether of the United Kingdom or elsewhere
and all penalties and interest payable in respect thereof
"Taxes Act" means the Income and Corporation Taxes Act 1988
"Terminated for Cause" (or like expressions) has the meaning given to it in
Clause 4.6 below
"Trade Union" means as defined in section 1 TULRCA
"TULRCA" means the Trade Union and Labour Relations (Consolidation) Xxx
0000
"TUPE" means the Transfer of Undertakings (Protection of Employment)
Regulations 1981 (as amended)
"UK GAAP" means SSAPs, the legal principles set out in Schedules 4 and 4A
Companies Xxx 0000, rulings and abstracts of the Urgent Issues Task Force
of the Accounting Standards Board Limited and guidelines, conventions,
rules and
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procedures of accounting practice in the United Kingdom which are regarded
as permissible by the Accounting Standards Board Limited
"Voluntary Resignation" (in the context of the termination of employment of
any person) shall mean where that person terminates his employment with a
member of the Halliburton Group (other than by reason of his death) without
remaining employed by another member of the Halliburton Group for any
reason whatsoever other than (a) in circumstances where the relevant member
of the Halliburton Group has agreed his Service Agreement is terminable by
the Covenantor without notice by reason of the conduct of his employing
company or the arbiter appointed in accordance with his Service Agreement
has decided that the relevant Service Agreement is terminable by the
Covenantor without notice by reason of the conduct of his employing company
or (b) where such person resigns as a consequence of illness, mental
disorder or injury which prevents him from properly performing his duties
under his Service Agreement (as certified by the independent medical
practitioner appointed in accordance with his Service Agreement)
"Warranties" means the statements contained in Part 3 of the schedule
annexed and executed as relative hereto and each and any of them
"Year 2000 Compliance Report" means the report in Agreed Form detailing the
steps taken by the Group to ensure that the operation of the IT Systems and
the provision of the IT Services will be unaffected by the change in year
from 1999 to 2000
1.2 Where clauses or paragraphs in this Agreement and the schedule annexed and
executed as relative hereto contain the expression "to the best of the
knowledge, information and belief of......" or "so far as .......... is/are
aware" or phrases having a similar meaning or effect, except as otherwise
expressly qualified, they shall be deemed to be followed by the words
"having made due and careful enquiry" only of the Executive Warrantors, the
directors of the Existing Subsidiaries, PricewaterhouseCoopers Aberdeen,
Stronachs, Central Insurance Services Limited and the following employees
of the Group: Xxxx Xxxxx and Xxxxx Xxxxxx (and of no other person) in every
case.
1.3 Words and expressions defined in the Companies Xxx 0000 (as amended by the
Companies Act 1989) shall, unless the context otherwise requires, have the
same meanings where used in this Agreement.
1.4 Headings are used in this Agreement for convenience only and shall not
affect its construction or interpretation.
1.5 In this Agreement references to the schedule is to the schedule annexed and
executed as relative to this Agreement and references to clauses are to
clauses in this Agreement and, unless otherwise specified, references to
paragraphs are to paragraphs of the clause in which such reference appears
and references to annexures are to annexures to this Agreement.
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1.6 In this Agreement reference to a person includes any legal or natural
person, partnership, trust, company, government or local authority
department or other body (whether corporate or unincorporate).
1.7 In this Agreement, unless the context does not so admit, reference to an
individual or individuals shall include his or their respective executors
or personal representatives.
1.8 In this Agreement, unless the context does not so admit, reference to the
singular includes a reference to the plural and vice versa and reference to
the masculine includes a reference to the feminine and neuter.
1.9 References in this Agreement to any statute or statutory provision shall be
deemed to include reference to any statute, regulation or statutory
instrument that hereafter amends, extends, consolidates or replaces the
same (or shall have done so) except insofar as any such statute, regulation
or statutory instrument increases the liability of any of the parties
hereto after the date hereof and to any other regulation, statutory
instrument or other subordinate legislation made thereunder or pursuant
thereto, and to any former statutory provision replaced (with or without
modification) by the provision referred to, and shall also include
reference to all statutory instruments or other subordinate legislation
made pursuant to any such statutory provision, subject always to the
exception hereinbefore provided.
1.10 This Agreement shall be governed by and construed in accordance with the
law of Scotland and the parties submit to the jurisdiction of the courts of
Scotland.
2. Warranties
2.1 In consideration of Halliburton agreeing to make the Offer, and
conditionally upon Completion occurring, the Executive Warrantors hereby
jointly and severally (save in the case of Warranty 13 (Liabilities to the
Executive Warrantors) which is given severally by each Executive Warrantor
for himself and in respect of his Associates) represent and warrant to
Halliburton, subject to the provisions of this clause 2 in the terms of the
Warranties and acknowledge that Halliburton is entering into this Agreement
and agreeing to make the Offer in reliance upon such Warranties.
2.2 The Warranties, and those other obligations of the Executive Warrantors
under this Agreement that then remain to be performed shall survive
Completion and shall bind the personal representatives of the Executive
Warrantors.
2.3 Notwithstanding anything to the contrary set out in this Agreement,
Halliburton may at its discretion (and without reference to and/or the
Agreement of the other Executive Warrantors) agree with any one or more of
the Executive Warrantors:
2.3.1 to vary the terms of this Agreement and/or of any document entered
into in pursuance of the terms of this Agreement as between
Halliburton and that particular Executive Warrantor or Executive
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Warrantors or, as the case may be, the party to that particular
document; and/or
2.3.2 compromise, vary, release or fail to enforce (in each case in whole
or in part) its rights against any one or more of the Executive
Warrantors (and/or any party to any document entered into pursuant
to this Agreement),
and in each such case the rights of Halliburton against the remaining
Executive Warrantor or Executive Warrantors shall be unaffected provided
always that any such variation, release, compromise or failure to enforce
shall not affect the rights of the Executive Warrantors inter se.
2.4 The Executive Warrantors acknowledge that they are aware that Halliburton,
when agreeing to purchase Shares pursuant to the Offer Document, is or will
be relying on the Warranties (save only as disclosed in the Disclosure
Letter). The Warranties shall survive the dispatch of the Offer Document
and each purchase of Shares made by Halliburton.
2.5 The Warranties are given subject to the limitations set out in Part 5 of
the schedule.
2.6 Each Warranty that is set out in a separate paragraph, or that could be
treated as a separate Warranty, shall be construed independently of any
other to the intent that the rights of Halliburton under, and the meaning
given to, any one such Warranty shall not be restricted by reference to any
other Warranty.
2.7 No Executive Warrantor shall have any right of relief or contribution
against any other Executive Warrantor.
3. Restrictive covenants
3.1 As a separate and independent stipulation and in consideration of
Halliburton making the Offer and conditionally upon Completion occurring,
and with the intent of assuring to Halliburton the full benefit and value
of the goodwill and connections of the Group, each of the Executive
Warrantors hereby covenants with Halliburton (contracting for itself and on
behalf of each member of the Group) that during the course of his
employment with the Group or the Halliburton Group and for the longer of
(a) three years from Completion and (b) one year following the date upon
which he ceases (for any reason whatsoever) to be so employed he will not
and will procure that any body corporate of which he has for the time being
control (within the meaning of section 840 Taxes Act) and/or any
partnership and/or business in which he may be engaged will not either on
his or its own account or in conjunction with or on behalf of any person,
firm or company:
3.1.1 (subject to Clause 3.5) carry on, engage in or be concerned or
interested directly or indirectly in any business or activity
within those parts of the world in which the Group carries on
business as at Completion which competes directly or indirectly
with the Business,
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provided always that nothing in this sub-clause shall prevent him
from holding or being beneficially interested in any securities of
a company, if he neither holds nor is beneficially interested in
more than five per cent (or in the case of securities in
Halliburton, such higher percentage as he shall hold or be
interested in as a consequence of the arrangements contemplated
hereby) in value of all the securities of that company; or
3.1.2 employ or offer employment to, either directly or indirectly, any
director or employee of any Group Company and/or any member of the
Halliburton Group employed in the Business, whether or not the same
would involve any breach of contract by such director or employee;
or
3.1.3 solicit or entice, or endeavour to solicit or entice, away from any
Group Company and/or any member of the Halliburton Group or deal
with (in each case in connection with any business or activity
which competes with the Business) any person who, to his knowledge,
is now or has, during the two years preceding the date hereof, been
a client, customer, supplier or otherwise in the habit of dealing
with any Group Company; or
3.1.4 at any time after Completion use as a trade or business name or
xxxx or carry on a business under a title containing the word or
expression "PES" or any other words colourably resembling such
word; or
3.1.5 at any time after the execution of this Agreement disclose to any
person whatsoever or use to the detriment of the Company or any
Group Company or otherwise make use of, or through any failure to
exercise reasonable care and diligence cause any unauthorised
disclosure or use of, any Commercial Information which is
confidential or in respect of which the Company or any Group
Company is bound by an obligation of confidence to a third party or
which the Executive Warrantors are prohibited under clause 7.2 from
disclosing without Halliburton's consent.
Each undertaking contained in this sub-clause 3.1 shall be read and
construed independently of the other undertakings and as an entirely
separate and severable undertaking.
3.2 The restriction contained in sub-clause 3.1.5 shall not extend to any
confidential or secret information which may come into the public domain
otherwise than through the default of any of the Executive Warrantors or
which an Executive Warrantor is or becomes compelled by law to disclose (to
the extent so compelled).
3.3 Each of the Executive Warrantors acknowledges that, having taken
independent legal advice, he considers that the above restrictive covenants
and provisions to be necessary to protect the goodwill of the Business
carried on by the Group and a factor on which the consideration payable by
Halliburton pursuant to the Offer is based, but if any of such covenants or
provisions are
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held to be void or invalid but would not have been so held if part of the
wording were deleted or its extent reduced or modified, or if the period or
area of nature of any such restriction were reduced, then such restriction
or provision shall apply with such modification as may be necessary to make
the same valid and enforceable.
3.4 Each of the Executive Warrantors who is employed by any Group Company
hereby warrants and undertakes to Halliburton, but conditionally upon
Completion occurring, that:
3.4.1 he is free to continue such employment; and
3.4.2 he is not or will not as a result of entering into his Service
Agreement be in breach of any other contract of employment (whether
past or now subsisting) or be liable to any action relating to any
such contract; or
3.4.3 he is not in breach of any duty of confidence or any undertaking or
arrangement relating to any industrial or intellectual property
rights or liable to any action relating to any obligations under
any such contract, undertaking or arrangement; and
3.4.4 so far as he is aware any Group Company is free to continue to
provide employment to such Executive Warrantor without being liable
to any other person for so continuing such employment.
3.5 Nothing in Clause 3.1.1. shall prevent the following Executive Warrantors
from holding (directly or indirectly) the following interests or being
involved in the following businesses provided always that the relevant
business does not compete with the Business:-
3.5.1 The holding of shares in Venture Production Company Limited ("VPC")
(a Company registered in Scotland under number SC169182) by
Xxxxxxxx Xxxxxxx Xxxxx and the devotion by Xx Xxxxx of up to 25% of
his time and attention to the business of VPC;
3.5.2 The holding of shares in VPC by Xxxxxxx Xxxx Xxxxxxx;
3.5.3 The holding of shares in W.B. Securities Limited (a Company
registered in Scotland under number SC87590) by Xxxxxxx Xxxxx
Xxxxxx, Xxxxx Xxxxx and Xxxxxxx X. Xxxxx which itself in turn holds
shares in VPC
4. Agreement to pay liquidated damages
4.1 Subject to Clause 4.2, as a separate and independent stipulation and in
consideration of Halliburton agreeing to issue shares in Halliburton to the
Covenantors in terms of the Offer and conditionally upon Completion
occurring and with the intent of assuring to Halliburton the full benefit
and value of the goodwill and connections of the Group, each of the
Covenantors
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hereby agrees that if at any time in the period of 3 years after Completion
his employment with a member of the Halliburton Group is either (a)
Terminated for Cause or (b) terminated as a result of his Voluntary
Resignation then he shall pay to Halliburton by way of liquidated damages
and as an adjustment to the consideration payable to that Covenantor in
terms of the Offer (in the manner set out below) a sum equal to the amount
set opposite his name in Part 1C of the Schedule PROVIDED THAT the total
liability of each Covenantor pursuant to this clause 4 shall not exceed
US$(A x 38.50) - O - T.
Where
A equals the aggregate of
(i) the number of Halliburton Shares actually allotted to him
pursuant to the Offer;
(ii) the number of Halliburton Shares actually allotted to him
pursuant to the exercise by him of Halliburton Options; and
(iii) the number of Halliburton Shares which he would actually
acquire on the exercise of all his unexercised Halliburton
Options (after taking account of the cancellation of part
of those options upon the cessation of his employment with
the Halliburton Group under the rules of the Halliburton
Stock Option Plan);
O means the exercise price paid or payable by the relevant Covenantor
(in US$) on the exercise of his Halliburton Options (to the extent
they have not lapsed)
T means the liability of the relevant Covenantor to Taxation which arose
or would arise:
(b) as a result of the exercise of his Halliburton Options (on the
assumption, whether or not that be the case, that to the extent
not previously exercised they were exercised on the date his
liability under this clause 4 is agreed or finally determined by
the arbiter referred to above (the "Liability Date")) which have
not then lapsed; and
(c) on the sale by him of Halliburton Shares issued to him pursuant
to the Offer and upon exercise of his Halliburton Options which
have not then lapsed (on the assumption, whether or not that be
the case, that any Halliburton Shares previously sold were sold
at a price of US$38.50 per Halliburton Share and that to the
extent not previously sold
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such Halliburton Shares were sold on the Liability Date at a
price of US$38.50 per Halliburton Share)
(calculated in US$ if necessary by reference to the closing mid point
dollar spot rate published in The Financial Times newspaper on, in the
case of Halliburton Options and/or Halliburton Shares already
exercised or sold, the dates of exercise and/or sale (as appropriate)
of those Halliburton Options and/or Halliburton Shares and, in the
case of Halliburton Options yet to be exercised or Halliburton Shares
not yet sold, the Liability Date).
4.2 It is agreed that any liability of a Covenantor pursuant to clause 4.1
shall be satisfied (or deemed satisfied) as follows:
(a) firstly, by the non-allotment of so many of the Halliburton
Shares which fall to be issued to that Covenantor (after the
Liability Date) pursuant to the Offer as have a value (calculated
on the basis that each Halliburton Share has a value equal to
US$38.50) up to but not exceeding the liability of that
Covenantor pursuant to clause 4.1; and
(b) next, by the payment by that Covenantor on the Second
Determination Date in cash of his liability pursuant to clause
4.1 to the extent that it shall not have been previously
satisfied in accordance with clause 4.2(a).
Each Covenantor agrees that his rights against Halliburton pursuant to the
Offer Document shall be deemed not to have been breached by a set off
properly made in accordance with this clause 4.2 and Halliburton agrees
that the liability of a Covenantor pursuant to this clause 4 shall be
reduced by the value (calculated in accordance with clause 4.2(a)) of any
Halliburton Shares not allotted to him pursuant to clause 4.2(a).
4.3 Each of the Covenantors having taken or being advised to take legal advice
hereby agrees that the provisions of clause 4.1 fairly reflect the fact
that in agreeing to make the Offer Halliburton has relied on
representations made by each Covenantor that he would remain employed by
the Group or the Halliburton Group for a period of at least 3 years from
Completion and during that period would not do or omit to do anything such
that his employer would have grounds to terminate his employment and those
representations made by him led to Halliburton agreeing to make an offer to
acquire the Company on the terms (in particular as to price) contained in
the Offer Document. He further agrees that the number of shares and sum
specified in clause 4.1 represents a genuine pre-estimate of the loss that
Halliburton would suffer (by reference, inter alia, to the value of the
shares in the Company purchased by Halliburton from that Covenantor)if he
ceased to be employed by the Group or the Halliburton Group within such 3
year period having regard in particular to the reliance the Group places on
him. By way of non-exhaustive illustration, the Covenantor accepts and
acknowledges that such loss is likely to be caused in the following ways:-
-12-
4.3.1 the loss of lucrative relationships established by him with
customers of the Group which may have a detrimental effect on the
Business;
4.3.2 the loss of good working relationships with other employees of the
Group;
4.3.3 the detrimental effect upon the morale of other employees of the
Group which may lead to them terminating their employment with the
Group;
4.3.4 the loss to the Group of the Covenantor's personal knowledge of the
Business and his knowledge of and participation in the formulation
of the product line strategies and business plans;
4.3.5 the loss to the Group of the Covenantor's knowledge of internal
Group systems, processes and procedures;
4.3.6 the creation of the opportunity for him to work for organisations
in competition with the Group and the creation of the opportunity
for him to entice business away from the Group using his
relationships with customers of the Business when he has discharged
his obligations under Clause 3 of this Agreement
4.3.7 the delay which the loss of the Covenantor's services to the Group
or the Halliburton Group may cause in the development by the Group
or the Halliburton Group of new products and services.
4.4 Each of the undertakings from the Covenantors containing clause 4.1 shall
be treated as a several and independent obligation.
4.5 Any payment by the Covenantors pursuant to this clause 4 shall be treated
by all parties, for tax purposes, as a reduction in the value of the
consideration paid to the Covenantors in respect of the sale and purchase
of their Shares under the Offer.
4.6 In this Agreement, "Terminated for Cause" (or like expressions) means:
4.6.1 in the case of the Covenantors other than Xxxxxx Xxxxxx Xxxxx,
termination of employment (either summarily or on notice) of a
person where the ground for such termination is that the relevant
person:-
(a) has committed any act of gross misconduct or repeated or
continued any other material breach of his obligations under
his Service Agreement; or
(b) has engaged in any conduct which, in the reasonable opinion
of the board of directors of the Company, is likely to cause
his continued employment to be detrimental to the interests
of the Halliburton Group; or
-13-
(c) has been convicted of any criminal offence which is
punishable with six months or more imprisonment (save for
any motoring offence for which he has not been sentenced to
a term of immediate or suspended imprisonment); or
(d) has committed any act of dishonesty, whether or not relating
to his employment; or
(e) is, in the reasonable opinion of the board of directors of
the Company, incompetent in the performance of his duties;
or
(f) has committed any act which materially violates the
"Halliburton Company Code of Business Conduct" (as in force
at May 18, 1999)
PROVIDED ALWAYS that such termination shall have been agreed in
writing with the relevant Covenantor or approved in writing by an
arbiter appointed in accordance with his Service Agreement it being
agreed that the approval of such arbiter shall be conclusive and
binding that such Covenantor has been Terminated for Cause for the
purposes of this Agreement; and
4.6.2 in the case of Xxxxxx Xxxxxx Xxxxx only, termination of employment
(either summarily or on notice) of a person where the ground for
such termination is that the relevant person:
(a) has committed any act of gross misconduct or repeated or
continued any other material breach of his obligations under
his Service Agreement; or
(b) has engaged in any conduct which, in the reasonable opinion
of the board of directors of the Company, is causing his
continued employment to be detrimental to a material extent
to the interests of the Halliburton Group; or
(c) has been convicted of any criminal offence which is
punishable with six months or more imprisonment (save for
any motoring offence, unless that motoring offence has been
punished with a term of actual (not suspended)
imprisonment); or
(d) has committed any deliberate and material act of dishonesty,
whether or not relating to his employment which is
detrimental to a material extent to the interests of the
Halliburton Group; or
(e) is, in the reasonable opinion of the board of directors of
the Company, incompetent in the performance of his duties
(provided that failure to meet any business plan shall not,
of itself, be the sole determinant when assessing
competency); or
-14-
(f) has committed any act (amounting to gross misconduct) which
materially violates the "Halliburton Company Code of
Business Conduct" (as in force at May 18, 1999);
PROVIDED ALWAYS that such termination shall have been agreed in
writing with Xxxxxx Xxxxxx Xxxxx or approved in writing as
constituting Termination for Cause in accordance with this
definition by an arbiter in accordance with his Service Agreement.
The agreement of Xxxxxx Xxxxxx Xxxxx or the approval of such an
arbiter appointed in accordance with such Service Agreement shall
be conclusive and binding on all persons that Xxxxxx Xxxxxx Xxxxx
has been Terminated for Cause for the purposes of this Agreement.
5. Pre-completion matters
5.1 In consideration of Halliburton agreeing to make the Offer, and
conditionally upon Halliburton issuing the Offer, each of the Executive
Warrantors undertakes to procure (so far as he is able so to procure by the
exercise of his powers as an officer, employee and/or director of the
Company and/or any Group Company and the rights attaching to his Shares)
that (between the date of this Agreement and Completion:
5.1.1 Halliburton is provided with copies of the monthly management
accounts and reports of all business unit manager meetings of the
Company in respect of that period, together with such other
information as Halliburton shall reasonably require from time to
time;
5.1.2 the business of each Group Company is carried on wholly in the
ordinary and usual course (as carried on as at the date hereof) and
with a view to profit; and
5.1.3 (save for the Special Resolution in the Agreed Form) the Company
shall not pass any shareholders' resolution, save as may be
required by this Agreement or the Offer Document.
5.2 Without prejudice to the generality of Clause 5.1 above, in consideration
of Halliburton agreeing to make the Offer, and conditionally upon
Halliburton issuing the Offer, each of the Executive Warrantors undertakes
to procure (so far as he is able so to procure by the exercise of his
powers as an officer, employee or director of the Company and/or any Group
Company and the rights attaching to his Shares) that, save with the prior
written consent of Halliburton, (between the date of this Agreement and
Completion) there shall be no:
5.2.1 sale or disposal or agreement for sale or disposal of any part of
the business or assets of any Group Company (save in the ordinary
course of trading of that company);
5.2.2 creation or issue or agreement to create or issue any mortgage or
charge (fixed or floating) upon any of the assets of any Group
-15-
Company or the incurring by any Group Company of any indebtedness
(other than normal trade credit or indebtedness on overdraft to the
relevant Group Company's bankers within the existing limits of such
overdraft facilities Disclosed);
5.2.3 dismissal or change in the remuneration or terms of remuneration or
employment of any of the directors or senior employees of any Group
Company (including without limitation pension contributions,
bonuses, commission and benefits in kind);
5.2.4 material (in the context of the business of the Group as a whole)
litigation or arbitration proceedings commenced by any Group
Company regarding any of the assets or business of any Group
Company;
5.2.5 material amendment to the current insurance policies of any Group
Company and the Executive Warrantors shall procure insofar as they
are so able by the exercise of their powers and rights referred to
above, that such policies shall continue in full force and effect
pending Completion, and that nothing shall be done to render such
policies void or voidable;
5.2.6 communication unless required by law or any regulatory authority
regarding this Agreement made to any person not concerned directly
with the preparation and negotiation of this Agreement;
5.2.7 declaration or payment of any dividend or other distribution to the
shareholders of any Group Company;
5.2.8 incurring by any Group Company of any new capital expenditure
commitments (not set out in the Disclosure Letter) in excess of
(pound)50,000 for any purpose whatsoever;
5.2.9 (other than following exercise of a Call Option) any change in the
authorised or issued share capital of any Group Company or the
grant by any Group Company of any option or other rights to
subscribe for or purchase any share in its capital or any amendment
to any of the rules governing the Subsisting Options ; or
5.2.10 act, matter or thing which constitutes a breach of clause 6 of the
Shareholders Agreement.
5.3 The Executive Warrantors shall procure (insofar as they are able so to
procure by the exercise of their powers as officers, employees or directors
of the Company and/or any Group Company and the rights attaching to their
respective holdings of Shares) that neither they, nor any Group Company
shall knowingly do or procure any act or omission before Completion which
would constitute a breach of any of the Warranties if they were to be
repeated at Completion.
-16-
5.4 If, at any time before Completion, any of the Executive Warrantors comes to
know of any fact, event or circumstance that:
5.4.1 shows that any Warranty is (or would be if repeated at Completion)
incorrect or misleading to a material extent, or that any
obligation of the Warrantors hereunder has not been or will not be
complied with to a material extent; or
5.4.2 is not generally known in the oil service industry in both the
United Kingdom and the United States of America and has occurred
since the date hereof that, individually or together with all other
similar facts, events or circumstances, could reasonably be
expected to constitute or cause a Material Adverse Effect on the
Company where "Material Adverse Effect" shall mean any change or
effect that would be material and adverse
(a) to the consolidated business, condition (financial or
otherwise), results of operations, properties or prospects
of the Group taken as a whole; or
(b) to the ability of any Executive Warrantor to perform his
obligations under this Agreement or resulting from his
acceptance of the Offer; or
5.4.3 suggests that any Group Company might be prevented from having
effective use and possession of or from disposing of any of its
material assets or carrying on its business because of any
industrial or other dispute or disputes;
then the Executive Warrantors shall immediately give to Halliburton full
details thereof by written notice.
5.5 Halliburton undertakes to the Executive Warrantors that Halliburton shall
issue the Offer Document to all holders of Shares (other than Halliburton
Holdings Limited) and the Optionholder's Letter to the holders of the
Subsisting Options within three Business Days following the date of this
Agreement.
5.6 Halliburton undertakes to the Executive Warrantors that Halliburton shall
procure that details of the level of acceptances of the Offer (including
the identity of every accepting Shareholder) and details of the responses
to the Optionholders Letter are provided to Stronachs Solicitors, 00 Xxxxx
Xxxxx, Xxxxxxxx xx behalf of the Executive Warrantors within 3 Business
Days following receipt by Halliburton (or Xxxxxxx XxXxxxx on their behalf)
of such acceptances and responses.
6. Completion
6.1 In consideration of Halliburton agreeing to make the Offer, each Executive
Warrantor shall procure that on or before Completion all amounts (other
than
-17-
normal course advances on expenses) owing to any Group Company at
Completion:
6.1.1 by that Executive Warrantor; and
6.1.2 by his Associates
shall be paid or repaid in full.
6.2 At or as soon as practicable following Completion the Executive Warrantors
shall (insofar as they are able to do so by the exercise of their powers as
officers, employees or directors of the Company and/or any Group Company
and the rights attaching to their respective holdings of Shares and as
individuals) deliver or procure the delivery to (or make available to the
satisfaction of) Halliburton:
6.2.1 the seal (if any), certificate of incorporation and statutory
books, duly written up to date, of each Group Company;
6.2.2 (insofar as not then in the possession of a Group Company, its
agents or bankers) all documents of title to the Properties and to
the Specified Intellectual Property and such other documents or
papers which relate in any way to the business of any Group Company
as Halliburton may reasonably request;
6.2.3 certificates from each of the banks at which a Group Company
maintains accounts of the amounts standing to the debit and credit
of such accounts at the close of business on the day preceding
Completion;
6.2.4 the written resignations in the agreed form of Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxx Xxxx Xxxxx and Xxxxxx Xxxxxx Xxxxx
as directors of the Company, such resignations to take effect from
Completion;
6.2.5 the written resignation of the auditors of the Company and of each
Group Company in the agreed form to take effect from Completion
containing the statements referred to in section 394(1) CA 1985
that they consider there are no such circumstances as are mentioned
in that section and confirming that they have deposited or shall
deposit that statement in accordance with section 394(2) CA 1985 at
the respective registered offices of the Company and of each Group
Company; and
6.2.6 the resignations in the appropriate form of such of the trustees of
the [insert details of pension fund] as Halliburton may require.
6.3 As soon as practicable following Completion the Executive Warrantors shall
procure that a meeting of the board of directors of the Company and each of
the Existing Subsidiaries (other than PES Netherlands Limited) is properly
convened and held and that at such meetings:
-18-
6.3.1 in the case of the Company only, the transfers of the Shares will
be approved for registration (subject to their being duly
stamped, which shall be at the cost of Halliburton);
6.3.2 all resignations provided for above will be tendered and accepted
so as to take effect at the close of the meeting;
6.3.3 the execution of the Service Agreements by or on behalf of the
Company shall be approved and authorised;
6.3.4 Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx Xxxxxx, Xxxx Xxxx and Xxxxx
Xxxxxxx will be appointed additional directors of the Company and
all persons nominated by Halliburton (subject to any maximum
number imposed by the relevant articles of association) will be
appointed additional directors of the Existing Subsidiaries and
all persons nominated by Halliburton will be appointed
secretaries;
6.3.5 all existing instructions and authorities to bankers will be
revoked and will be replaced with alternative instructions,
mandates and authorities in such form as Halliburton may require;
6.3.6 in the case of the Company and the Existing Subsidiaries
incorporated in the United Kingdom only the registered office
will be changed to Xxxxxxx Xxxxx, Xxxxxxxxx Xxxxxxxxxx Xxxxxx,
Xxxx, Xxxxxxxx, XX00 0XX;
6.3.7 the accounting reference date will be changed to 31st December;
6.3.8 Messrs Xxxxxx Xxxxxxxx will be appointed auditors; and
6.3.9 in the case of the Existing Subsidiaries (other than PES
Netherlands Limited and PES Petroturn Limited) only, transfers
will be approved for registration (subject to them having been
duly stamped at the cost of the Company) and declarations of
trust in a form satisfactory to Halliburton will be executed in
respect of all shares in the Subsidiaries held by any person
other than the Company or another Subsidiary;
and that the chairman of such meeting shall sign the minutes thereof in the
Agreed Form.
6.4 If Completion has not taken place prior to midnight (UK time) on [ ]
1999, then the parties hereto shall treat this Agreement as terminated and
it shall lapse and cease to have effect save for any rights and liabilities
of the parties which have accrued prior to midnight on [ ] 1999 which
shall subsist.
-19-
7. Information
7.1 Each of the Executive Warrantors shall, both before and after Completion,
give to Halliburton such information in his possession relating to the
Company and its affairs as Halliburton may reasonably require.
7.2 The Executive Warrantors shall not, at any time (for the avoidance of
doubt, whether or not Completion takes place), divulge to any person
(except in confidence to their professional advisers) any information
relating to this Agreement or the Offer without the prior written consent
of Halliburton. This provision shall not apply to the disclosure of any
information pursuant to legislation (including without limitation the
securities laws of the United States) or the requirements of any recognised
stock exchange.
8. Termination of Shareholders Agreement
8.1 Immediately upon but subject to Completion occurring as between the parties
hereto (save for Xxxxxxx Xxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxx Xxxxxxx and
Xxxxxxxx Xxxxxxxxx) the Company and Halliburton Holdings Limited (but not
otherwise), the Shareholders Agreement shall cease to be of any further
force or effect and any claims and liabilities accruing, as at the time of
Completion, under the Shareholders Agreement by any of the parties hereto
against any other of the parties hereto shall be deemed to have been
waived.
8.2 At Completion, Halliburton shall deliver to the Executive Warrantors a
letter in the Agreed Form duly executed by Halliburton Holdings Limited and
the Executive Warrantors shall deliver to Halliburton a letter in the
Agreed Form duly executed by the Company in order to give effect to this
Clause 8.
8.3 For the avoidance of doubt the obligations of Sydney Xxxxxx Xxxxxxxxxx
contained in Part 3 of the Shareholders Agreement shall survive
notwithstanding the provisions of this Clause 8.
9. General
9.1 This Agreement represents the entire Agreement between the parties in
relation to the subject matter hereof and shall supersede any previous
Agreement or understanding between all or any of the parties in relation to
all or any such matters.
9.2 The provisions contained in each clause of this Agreement shall be
enforceable independently of the others and the invalidity of any one
provision shall not affect the validity of the others. The rights of
Halliburton under this Agreement are independent, cumulative and without
prejudice to all other rights available to it and the exercise or non-
exercise of any such rights shall not prejudice or constitute a waiver of
any other rights of Halliburton whether under this Agreement or otherwise.
-20-
9.3 If there is any provision of this Agreement, or of any Agreement or
arrangement of which this Agreement forms part, which causes or would
cause this Agreement or that Agreement or arrangement to be subject to
registration under the Restrictive Trade Practices Xxx 0000, then that
provision shall not take effect until the day after particulars of this
Agreement or of that Agreement or arrangement (as the case may be) have
been furnished to the Director General of Fair Trading pursuant to section
24 of that Act. The parties agree that particulars of this Agreement or of
any Agreement or arrangement of which this Agreement forms part (as the
case may be) shall be duly furnished to the Director General of Fair
Trading pursuant to section 24 of that Act and the parties agree to do all
acts and things including, if necessary, executing documents, to ensure
that a valid and effective furnishing is made and that all restrictions in
this Agreement, and in any Agreement or arrangement of which this
Agreement forms part, are fully enforceable at law.
9.4 Subject to Clause 2.3, no variation of this Agreement shall be binding on
any party hereto unless and to the extent that the same is recorded in a
written document executed by all parties and attested.
9.5 If Halliburton transfers any Shares to any other member of the Halliburton
Group then Halliburton may assign to such member all or part of its rights
under this Agreement and following any such transfer as from the date of
such transfer, reference to "Halliburton" shall include reference to such
member. Any such Assignee shall be entitled to exercise rights under this
Agreement only for so long as it remains a member of the Halliburton
Group. Save as permitted by this Clause 9.5, none of the parties hereto
may assign any of its rights or obligations hereunder.
9.6 Save as required by law or pursuant to the requirements of any regulatory
body or in relation to information that is publicly available (other than
by reason of any wrongful disclosure of the same), none of the Executive
Warrantors shall, save with the prior written consent of Halliburton, make
any announcement concerning or otherwise disclose or divulge any
information concerning Halliburton's involvement with or interest in the
Company including (without limitation) any of the terms set forth in this
Agreement.
9.7 Nothing contained in this Agreement shall constitute or be deemed to
constitute a partnership between the parties hereto or any of them and no
party shall hold himself out as an agent for any other party save with the
prior consent of such other party.
10. Costs
10.1 Subject to Completion occurring, Halliburton shall at Completion make
payment of the professional, legal, accounting and other fees incurred by
the Executive Warrantors and/or the Company to the following parties,
provided always that the sum so payable to each of those parties does not
exceed the sum shown opposite the name of such party below:-
-21-
-----------------------------------------------------------------------
Advisor Amount
-----------------------------------------------------------------------
Xxxxxxxx & Co (pound)375,000 (plus VAT or
equivalent sales tax and outlays
of (pound)12,498.91)
-----------------------------------------------------------------------
PricewaterhouseCoopers (pound)160,000 (plus VAT)
-----------------------------------------------------------------------
Stronachs (pound)200,000 (plus VAT)
-----------------------------------------------------------------------
[Overseas Lawyers - TBA]
-----------------------------------------------------------------------
10.2 All invoices shall be addressed to "PES (International) Limited, payable
by Halliburton Company."
10.3 It is agreed that neither the Company nor any Group Company shall be
responsible for any fees of the transaction contemplated by this agreement
and save as is expressly set out in this agreement each party shall be
responsible for its own costs and expenses incurred in connection with
this agreement or the Offer.
11. Notices
11.1 Any notice or other written communication given under or in connection
with this agreement may be delivered personally or sent by prepaid
recorded delivery or registered post or by facsimile to the address and
for the attention of the relevant party set out in Clause 11.2 (or such
other address in England or Scotland as is otherwise notified from time to
time).
11.2 The addresses of the parties for the purpose of Clause 11.1 are as
follows:
Executive Warrantors: Stronachs Nominees Limited
00 Xxxxx Xxxxx
Xxxxxxxx
Facsimile number: 01224 845800
For the attention of: Xxxxx Sheach
Halliburton Halliburton Energy Services
0000 Xxxxxxx Xxxxx
Xxxxxxx
Xxxxx 00000
XXX
Facsimile number: 001 713 676 4414
For the attention of: Vice President and
Associate General Counsel
11.3 Any such notice or other written communication shall be deemed to have
been served:
11.3.1 if delivered personally, at the time of delivery;
-22-
11.3.2 if posted, at the expiry of two Business Days after it was
posted;
11.3.3 if sent by facsimile message, at the time of transmission (if
sent during Business Hours) or (if not sent during Business
Hours) at the beginning of Business Hours next following the time
of transmission in the place to which the facsimile was sent.
11.4 In proving such service it shall be sufficient to prove that personal
delivery was made, or that such notice or other written communication was
properly addressed stamped and posted or in the case of a facsimile
message that an activity or other report from the sender's facsimile
machine can be produced in respect of the notice or other written
communication showing the recipient's facsimile number and the number of
pages transmitted.
12. Agent for Service
The Executive Warrantors shall at all times maintain an agent for service
of the process in Scotland. Such agent shall be Stronachs Nominees Limited
of 00 Xxxxx Xxxxx, Xxxxxxxx. Any writ, judgment or other notice of legal
process shall be sufficiently served on the Executive Warrantors if
delivered to such agent at its address for the time being. The Executive
Warrantors undertake not to revoke the authority of such agent, and if for
any reason such agent no longer serves as agent of any of the Executive
Warrantors to receive service of process, such Executive Warrantors shall
promptly appoint another person as agent (with an address for service
within the jurisdiction of the Scottish courts) and notify the other
parties thereof.
IN WITNESS WHEREOF these presents consisting of this and the preceding [ ]
pages together with the schedule are executed at Aberdeen on [ ] 1999 by the
parties as follows:
For and on behalf of
HALLIBURTON COMPANY ....................
authorised signatory
....................................................
By XXXXXXXX XXXXXXX XXXXX ....................
....................................................
By XXXXXXX XXXXX XXXXXX ....................
....................................................
By XXXXXXX XXXX XXXXXXX ....................
....................................................
-00-
Xx XXXXXXXX XXXXXXXXX XXXXXXXXX ...................
....................................................
By XXXXXXX XXXX XXXXX ...................
....................................................
By XXXXXX XXXXXX XXXXX ..................
....................................................
By XXXXX XXXXX ..................
....................................................
By XXXXX XXXXX XXXXXXX ..................
....................................................
By XXXXXXXX XXXXXXXXX ..................
....................................................
All before the following witness:
.................................. Name
.................................. Address
..................................
..................................
.................................. Occupation
-24-
Schedule
1. This is the Schedule referred to in the foregoing Agreement
Part 1A
The Executive Warrantors
(1) (2)
Name and address Number of Ordinary Shares owned
and held or under option before
the Date hereof
Xxxxxxxx Xxxxxxx Xxxxx 300,000
of Xxxxxxxxx Xxxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx
Xxxxxxxx
Xxxxxxx Xxxxx Xxxxxx 24,780
0 Xxxxxxxxxx Xxxxx
Xxxxx
Xxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxxxx Xxxxxxxxx 131,620
Xxxxxxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 XXX
Xxxxxxxx
Xxxxxxx Xxxx Xxxxx 15,600
00 Xxxxx Xxxx Xxxxx
Xxx Xxxxxxxxx
Xxxxx 00000
XXX
-25-
Xxxxxx Xxxxxx Xxxxx 41,470
00 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx
Xxxxx 00000
XXX
Xxxxxxx Xxxx Xxxxxxx 2,500
0 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxxx
Xxxxxxxx
Xxxxx Xxxxx 16,530
00 Xxxxx Xxxxxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxx
-26-
Part 1 B
Maximum Liabilities under the Warranties
Executive Warrantor Maximum Liability under the Warranties
------------------- --------------------------------------
1. Xxxxxxxx Xxxxxxx Xxxxx (pound)4,635,804.53
2. Xxxxxxx Xxxxx Xxxxxx (pound)384,099.44
3. Xxxxxxxx Xxxxxxxxx Xxxxxxxxx (pound)2,270,153.30
4. Xxxxxxx Xxxx Xxxxx US$2,342,550.38
5. Xxxxxx Xxxxxx Xxxxx US$1,018,891.26
6. Xxxxxxx Xxxx Xxxxxxx US$37,295.54
7. Xxxxx Xxxxx (pound)289,870.00
-27-
Part 1 C
The Covenantors
Name and address Maximum Liability under clause 4
(US$)
Xxxxxxx Xxxxx Xxxxxx 296,975
0 Xxxxxxxxx Xxxxx
Xxxxx
Xxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxxxx Xxxxxxxxx Xxxxxxxxx 1,000,000
Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxx Xxxxxx Xxxxx 1,000,000
00 Xxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx
Xxxxx 00000
Xxxxx Xxxxx 326,217
00 Xxxxx Xxxxxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Scotland
Xxxxx Xxxxx Xxxxxxx 713,196
000 Xxxxx Xxxxxx Xxxxxx Xxxxxx
Xxxxx 00000
XXX
Xxxxxxxx Xxxxxxxxx 499,389
00000 Xxxx Xxxxxxx
Xxxxxxxx
Xxxxx 00000
XXX
-28-
Part 2A
Corporate Structure
Date of incorporation - 25th June 1993
Registered office - 00 Xxxxx Xxxxx
Xxxxxxxx XX00 0XX
-
Share capital authorised (pound)150,000 divided into 1,500,000 ordinary
- shares of 10p each
Share capital issued - (pound)126,654
Shareholders As set out in Part 7 of the Schedule
Directors Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxx Xxxxx
Xxxxxxx Xxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxx Xxxx XxXxxxxx
Xxxxx Xxxxx Xxxxxxx
Secretary Stronachs
Accounting reference date 31st March
Auditors PricewaterhouseCoopers
Mortgages, debentures and Floating charge dated 18th November
other charges 1993 in favour of the Governor and
Company of the Bank of Scotland
-29-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - Petroleum Engineering Services Ltd
Country of Incorporation - Scotland
Date of Incorporation - 14th June 1985
Registered Office - 00 Xxxxx Xxxxx, Xxxxxxxx XX00 0XX
Share capital authorised - 100(pound)1 ordinary shares
Share capital issued - 99(pound)1 ordinary shares
Shareholders No. of shares held
PES (International) Limited 100%
Directors - Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxx Xxxxx Xxxxxx,
Xxxxxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx Xxxxx,
Xxxxx Xxxxx
Secretary - Stronachs, 00 Xxxxx Xxxxx, Xxxxxxxx XX00 0XX
Accounting reference date - 31st March
Auditors - PricewaterhouseCoopers
Mortgages, debentures and - Bond and floating charge in favour of Bank of
other charges Scotland dated 17 May 1987 and registered
26th May 1987
Nature of business - Supply of oil and gas well subsurface
engineering
-30-
Part 2B
Particulars concerning the Subsidiaries of the Company
Name - PES Incorporated
Country of Incorporation - USA (Texas)
Date of Incorporation - 5th December 1994
Registered Office - 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxx
00000
Share capital authorised - 100,000 Class A shares and 100,000 Class B
shares
Share capital issued - 100,000 Class A shares and 100,000 Class B
shares
Shareholders - No. of shares held
PES (International) Limited 100%
Directors - S Xxxxx;
X X Xxxxx;
X X Xxxxx
Secretary - Xxxxx X Xxxxxxx
Accounting reference date - 31st March
Auditors - None
Mortgages, debentures and - None
other charges
Nature of business - Supply of oil and gas well subsurface
engineering
-31-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - Petroleum Engineering Services Asia Pty Ltd
Country of Incorporation - Australia
Date of Incorporation - 4th October 1995
Registered Office - Abbott & Associates Pty Ltd, 1st Floor, 0
Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx
Xxxxxxxxx, 0000
Share capital authorised - AUS$1,000,000 divided into 1,000,000 shares
as follows:-
909,998 $1 ordinary shares
10,000 $1 "A" class shares
10,000 $1 "B" class shares
10,000 $1 "C" class shares
10,000 $1 "D" class shares
10,000 $1 "E" class shares
10,000 $1 "F" class shares
10,000 $1 "G" class shares
10,000 $1 "H" class shares
10,000 $1 "I" class shares
2 $1 subscriber shares
Share capital issued - 40 $1 ordinary shares
Shareholders - No. of shares held
PES (International) Limited 28
X X Xxxxxxxxxx 6*
Andos Pty Limited 6*
*call option in place on shares to exchange
for a fixed number of PES (International)
Limited shares
Directors - X X Xxxxxxxxxx
J Xxxxxxxx
Secretary - Xxxxxxx X Xxxxxxxxxx & Xxxxxx Xxxxxxxx
-32-
Accounting reference date - 30th June
Auditors - None yet appointed
Mortgages, debentures and other charges - None
Nature of business - Supply of oil and gas well subsurface
engineering
-33-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - Petroleum Engineering Services
Norge AS
Country of Incorporation - Norway
Date of Incorporation - 18th March 1994
Registered Office - Xxxxxxxxxxxxx 00, 0000 Xxxxxxx, Xxxxxx
Share capital authorised - 100 shares NKR 500 each
(comprising 80 A shares and 20 B shares)
Share capital issued - 100 shares NKR 500 each
(comprising 80 A shares and 20 B shares)
Shareholders - No. of shares held
PES (International) Limited 80 A
shares (constituting 80%)
L Xxxxx 20 B shares (call option on
shares in place to exchange for fixed
number of PES (International)
Limited shares)
Directors - L Xxxxx
X X Xxxxx
Secretary - Xxxx Xxxxx
Accounting reference date - 31st March
Auditors - PricewaterhouseCoopers
Mortgages, debentures and - None
other charges
Nature of business - Supply of oil and gas well subsurface
engineering
-34-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - PES France
Country of Incorporation - France
Date of Incorporation - 20th December 1995
Registered Office - 0 Xxxxxx Xxxxxx Xxxxx, 00000 Xxx, Xxxxxx
Share capital authorised - 2,500 ord shares FrFr100 each
Share capital issued - 2,500 ord shares FrFr100 each
Shareholders - No. of shares held
PES de France 2494 X
X Xxxxxxxxx 1*
X Xxxxxxxxx 1*
X X Xxxxx 1*
E Vidil 1* X
X Xxxxx 1*
X X Xxxxxx 1*
*call option in place on shares to exchange
for cash.
Directors - X Xxxxxxxxx, X X Xxxxx
X X Xxxxxx, X X Xxxxxxxxx
Secretary - Xxxxxxx Xxxxx
Accounting reference date - 31st March
Auditors - ACF Audit, 0 Xxx Xxxxxx,
00000 Xxx
Mortgages, debentures and - None
other charges
Nature of business - Supply of oil and gas well subsurface
engineering
-35-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - PES de France
Country of Incorporation - France
Date of Incorporation - 21st December 1995
Registered Office - 0 Xxxxxx Xxxxxx Xxxxx, 00000 Xxx, Xxxxxx
Share capital authorised - 2,500 ord shares FrFr100 each
Share capital issued - 2,500 ord shares FrFr100 each
Shareholders - No. of shares held
PES (International) Limited 99.88% -
2,494 shares
X X Xxxxx 1 share*
X X Xxxxxx 1 share*
M D Cosentino 1 share*
X X Xxxxx 1 share*
M E Vidil 1 share*
Petroleum Engineering Services
Limited 1 share
*call option in place on shares to exchange
for cash.
Directors - D Xxxxxxxxx, X X Xxxxx
X Xxxxxx, X Xxxxxxxxx
Secretary - Xxxxxxx Xxxxx
Accounting reference date - 31st March
Auditors - ACF Audit, 0 Xxx Xxxxxx,
00000 Xxx
Mortgages, debentures and - None
other charges
Nature of business - Intermediate holding company of PES
France
-36-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - PES Netherlands Limited
Country of Incorporation - Scotland
Date of Incorporation - 13th December 1993
Registered Office - 00 Xxxxx Xxxxx, Xxxxxxxx XX00 0XX
Share capital authorised - 1,000 ordinary shares(pound)1 each
Share capital issued - 1,000 ordinary shares(pound)1 each
Shareholders - No. of shares held
PES (International) Limited 751
R Kemeling 249
Directors - Xxxxx Xxxxxxxx, Sydney Xxxxxx Xxxxxxxxxx
Secretary - Stronachs, 00 Xxxxx Xxxxx, Xxxxxxxx
Accounting reference date - 31st March
Auditors - PricewaterhouseCoopers
Mortgages, debentures and other charges - None
Nature of business - Non trading dormant company
-37-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - PES Trustees Limited
Country of Incorporation - Scotland
Date of Incorporation - 13th December 1993
Registered Office - 00 Xxxxx Xxxxx, Xxxxxxxx XX00 0XX
Share capital authorised - 1,000 shares(pound)1 each
Share capital issued - 1 ordinary share(pound)1
Shareholders - No. of shares held
PES (International) Limited 100%
Directors - Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx
Secretary - Stronachs, 00 Xxxxx Xxxxx, Xxxxxxxx XX00 0XX
Accounting reference date - 31st March
Auditors - PricewaterhouseCoopers
Mortgages, debentures and other charges - None
Nature of business - Acting as trustee for the ESOP
-38-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - P.E.S. Petroquip Limited
Country of Incorporation - Scotland
Date of Incorporation - 24th September 1985
Registered Office - 00 Xxxxx Xxxxx, Xxxxxxxx XX00
0XX
Share capital authorised - 100 ordinary shares(pound)1 each
Share capital issued - 2 ordinary shares(pound)1 each
Shareholders - No. of shares held
PES Engineering Services Limited
100%
Directors - Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxxxx Xxxxxxxxx
Secretary - Stronachs, 00 Xxxxx Xxxxx,
Xxxxxxxx XX00 0XX
Accounting reference date - 31st March
Auditors - None (dormant company exemption)
Mortgages, debentures and other charges - None
Nature of business - Non trading dormant company
-39-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - P.E.S. Petroserv Limited
Country of Incorporation - Scotland
Date of Incorporation - 2nd July 1985
Registered Office - 00 Xxxxx Xxxxx, Xxxxxxxx XX00
0XX
Share capital authorised - 100 ordinary shares(pound)1 each
Share capital issued - 100 ordinary shares(pound)1 each
Shareholders - No. of shares held
Petroleum Engineering Services
Limited 100
Directors - Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxxxx Xxxxxxxxx
Secretary - Stronachs, 00 Xxxxx Xxxxx,
Xxxxxxxx XX00 0XX
Accounting reference date - 31st March
Auditors - None (dormant company exemption)
Mortgages, debentures and other charges - None
Nature of business - Non trading dormant company
-40-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - P.E.S. Petrospec Limited
Country of Incorporation - Scotland
Date of Incorporation - 21st August 1985
Registered Office - 00 Xxxxx Xxxxx, Xxxxxxxx XX00 0XX
Share capital authorised - 100 ordinary shares(pound)1 each
Share capital issued - 100 ordinary shares(pound)1 each
Shareholders - No. of shares held
Petroleum Engineering Services
Limited 100
Directors - Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxxxx Xxxxxxxxx
Secretary - Stronachs, 00 Xxxxx Xxxxx,
Xxxxxxxx XX00 0XX
Accounting reference date - 31st March
Auditors - None (dormant company exemption)
Mortgages, debentures and other charges - None
Nature of business - Non trading dormant company
-41-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - Petroleum Manufacturing Services
Limited
Country of Incorporation - Scotland
Date of Incorporation - 23rd June 1988
Registered Office - 00 Xxxxx Xxxxx, Xxxxxxxx XX00 0XX
Share capital authorised - 100,000 ordinary shares(pound)1
each
Share capital issued - 50,000 ordinary shares(pound)1
each
Shareholders - No. of shares held
Petroleum Engineering Services
Limited 50,000
Directors - Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxxxx Xxxxxxxxx, Xxxxxxx
Xxxxx Xxxxxx
Secretary - Stronachs, 00 Xxxxx Xxxxx,
Xxxxxxxx XX00 0XX
Accounting reference date - 31st March
Auditors - PricewaterhouseCoopers
Mortgages, debentures and other charges - Bond and floating charge in
favour of Bank of Scotland
registered 21.11.96 Floating
Charge Debenture in favour of
Natwest Bank Plc registered on
24.1.90.
Nature of business - Manufacture and assembly of
oilfield well completion
equipment and related engineering
products
-42-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - Petroleum Engineering Services
(Italia) srl
Country of Incorporation - Italy
Date of Incorporation - 27th December 1994
Registered Office - PES (Italia) Srl, So Xxxxxxx
000/0, 00000 Xxxxxxxxxxxx,
Xxxxxxx, Xxxxx
Share capital authorised - 20,000 ordinary shares of ITL
1,000 each
Share capital issued - 20,000 ordinary shares of ITL
1,000 each
Shareholders - No. of shares held
PES (International) Limited 100%
Directors - C Xxxxx, S Xxxx,
Xxxxxxxx Xxxxxxxxx
Secretary - Xxxx Xxxxxxxxx
Accounting reference date - 31st March
Auditors - None required
Mortgages, debentures and other charges - None
Nature of business - Supply of oil and gas well
subsurface engineering
-43-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - P.E.S. Petroturn Limited
Country of Incorporation - Scotland
Date of Incorporation - 3rd September 1987
Registered Office - 00 Xxxxx Xxxxx, Xxxxxxxx XX00 0XX
Share capital authorised - 100 ordinary shares(pound)1 each
Share capital issued - 100 ordinary shares(pound)1 each
Shareholders - No. of shares held
Petroleum Engineering Services
Limited 76 X X Xxxxxxxxx 24
Directors - Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxxxx Xxxxxxxxx
Secretary - Stronachs, 00 Xxxxx Xxxxx,
Xxxxxxxx XX00 0XX
Accounting reference date - 31st March
Auditors - None (dormant company exemption)
Mortgages, debentures and other charges - None
Nature of business - Non trading dormant company
-44-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - P.E.S. Petroseal Limited
Country of Incorporation - Scotland
Date of Incorporation - 13th May 1987
Registered Office - 00 Xxxxx Xxxxx, Xxxxxxxx XX00 0XX
Share capital authorised - 100 ordinary shares(pound)1 each
Share capital issued - 100 ordinary shares(pound)1 each
Shareholders - No. of shares held
Petroleum Engineering Services
Limited 100
Directors - Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxxxx Xxxxxxxxx
Secretary - Stronachs, 00 Xxxxx Xxxxx,
Xxxxxxxx XX00 0XX
Accounting reference date - 31st March
Auditors - None (dormant company exemption)
Mortgages, debentures and other charges - None
Nature of business - Non trading dormant company
-45-
Part 2B
Particulars concerning the
Subsidiaries of the Company
Name - Bluefoil Limited
Country of Incorporation - Scotland
Date of Incorporation - 9th May 1989
Registered Office - 00 Xxxxx Xxxxx, Xxxxxxxx XX00 0XX
Share capital authorised - ((pound)300,000 8% - cumulative
participating redeemable
Preference shares(pound)1 each
5690 - cumulative convertible
participating preference shares 1
each 26,820 - ordinary shares
(pound)1 each)
Share capital issued - 26,820 ordinary shares (pound)1
each
Shareholders - No. of shares held
PES (International) Limited 100%
Directors - Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxx
Xxxxx Xxxxxx
Secretary - Stronachs, 00 Xxxxx Xxxxx,
Xxxxxxxx XX00 0XX
Accounting reference date - 31st March
Auditors - PricewaterhouseCoopers
Mortgages, debentures and other charges - Floating charge in favour of Bank
of Scotland registered 22nd
September 1989
Nature of business - Design engineering, manufacture
and supply of equipment to the
oil and gas industry. The company
ceased trading on 1st August 1996
-46-
WARRANTIES
Part 3
1. Information
1.1 The information set out in paragraphs (A) to (D) of the Recitals to this
Agreement and in Parts 2, 6 and 7 of the schedule is true and accurate.
1.2 The Forecasts and Projections were prepared in good faith and after careful
consideration and enquiry and on the basis of assumptions which the
Executive Warrantors honestly believe were and remain fair and reasonable
and none of the Executive Warrantors is aware (having made enquiry of the
directors of the Existing Subsidiaries and Xxxx Xxxxx only) of any specific
fact or matter (not generally known and affecting businesses in the same
market sector as the Group to a similar extent or in the same way) which
causes the Executive Warrantors to question those assumptions or the
Forecasts and Projections.
PROVIDED THAT this Warranty 1.2 shall not be construed as a guarantee or
promise that the results anticipated in the Forecasts and Projections will
be achieved.
1.3 All information contained in the Offer Document relating to the Group or
its business and affairs is true and accurate in all material respects and
not misleading.
1.4 All information contained in that part of the Disclosure Letter headed
"Specific Disclosures" is true and accurate in all material respects.
2. Group structure
Save for the Existing Subsidiaries the Company does not have any subsidiary
companies and neither does it nor any other Group Company own any shares,
securities or other interest in any other person.
3. Share capital
3.1 There is no outstanding right to call for the issue of any share or loan
capital of any Group Company.
3.2 All of the Subsisting Options could, if exercised, be satisfied by the
transfer of the relevant number of Shares by the trustees of PES Employee
Benefit Trust being PES Trustees Limited one of the Existing Subsidiaries.
-47-
3.3 Each of the Executive Warrantors is and will, subject only to this
Agreement, be beneficially entitled to and the registered holder of the
Shares set out opposite his name in column (2) of Part 1 of the schedule.
3.4 All dividends declared or otherwise due in respect of the Shares have been
paid.
3.5 There are no amounts unpaid on any of the Shares, each of which is fully
paid up (including as to any premium payable).
4. Financial position
4.1 The Accounts were prepared in accordance with UK GAAP, are consistent with
the practice adopted by the Company during the three financial periods
ended on the Accounts Date, comply with the requirements of the Companies
Xxx 0000 and give a true and fair view of the state of affairs of the Group
at the Accounts Date and of the results for the period then ended and, in
particular, but without prejudice to the generality of the foregoing, make
proper provision (where appropriate by way of note) for all liabilities,
contingent liabilities, bad and doubtful debts and depreciation and (save
as expressly disclosed therein) do not include any exceptional or
extraordinary item of income or expenditure (as defined by FRS 3).
4.2 The Management Accounts have been prepared on a basis consistent with
previous management accounts and fairly state levels of turnover, expenses
and liabilities as at 31st January 1999 and for the 10 month period then
ended.
4.3 The basis of valuation of stock in trade and work in progress has remained
in all material respects consistent with that adopted for the purpose of
the Company's audited accounts in respect of the beginning and end of each
of the accounting periods of the Company for the last three financial
years.
4.4 The Group's stock in trade (save for up to (pound)50,000 of such stock in
trade which may be obsolete or slow moving) is in good condition and is
capable of being sold by the relevant Group Company in the ordinary course
of business.
4.5 Rentals in excess of (pound)50,000 per item per annum payable by any Group
Company under any leasing, hire purchase or other similar agreement to
which it is a party have been Disclosed and have not been and, so far as
the Executive Warrantors are aware, are not subject to a rent review notice
or current proposal for increase.
5. Events since the Accounts Date
5.1 Since the Accounts Date no Group Company has entered into any transaction
or done any such act or thing as is referred to in clause 5.2 of this
Agreement save as expressly referred to or provided for in this Agreement
and in addition (but without prejudice to the generality of the foregoing)
each Group Company:
-48-
5.1.1 has carried on its business as a going concern in, and only in, the
ordinary course;
5.1.2 has not entered into (whether in the ordinary course of its
business or not) any long term, substantial or unusual obligations
or transactions including (without limitation) any capital
commitment involving more than (pound)500,000;
5.1.3 other than for amounts of less than (pound)100,000 in aggregate,
has not written off, written down, waived or released (or agreed so
to do) any amounts which became owing to it before or after the
Accounts Date;
5.1.4 has not acquired or set up (or agreed so to do) any new business,
branch or subsidiary; and
5.1.5 save for leasing, hire purchase, sale on credit or like agreements
entered into in the ordinary course of business, has not borrowed
any monies except from its bankers in the ordinary course of
business and within the limits of the facilities available to it
from such bankers and disclosed to Halliburton.
5.2 Since the Accounts Date no part of the business of any Group Company has
been affected by the cancellation or loss of any order or contract which
would have had an invoice value, excluding VAT or like sales tax in excess
of (pound)150,000 or (so far as the Executive Warranties are aware) by the
loss of any customer or of any source of supply nor (so far as the
Executive Warrantors are aware) are there any specific circumstances likely
to lead thereto.
6. Employment matters
6.1 Other than contracts in which a longer period is implied by non-UK law,
there is not in existence any contract of employment with any employee of a
Group Company that cannot be terminated by three months' notice or less
without giving rise to any claim for damages or compensation (other than a
statutory redundancy payment or statutory compensation for unfair
dismissal).
6.2 There are no agreements or other arrangements (binding or otherwise) or
outstanding or anticipated claims or disputes between any Group Company and
any trade union or other body representing all or any of the employees of
such Group Company.
6.3 No Group Company owes any amounts to, or has any outstanding obligations in
respect of, any present or former directors, employees or shareholders of
such company other than one months accrued remuneration.
6.4 Save to the extent (if any) to which provision or allowance has been made
in the Accounts or the Management Accounts:
6.4.1 since the Accounts Date no liability has been incurred or is (so
far as the Executive Warrantors are aware) anticipated by any Group
-49-
Company for breach of any contract of employment or for services
or for severance payments or for redundancy payments or
protective awards or for compensation for unfair dismissal or for
failure to comply with any order for the reinstatement or re-
engagement of any employee or for sex, disability or race
discrimination or for any other liability accruing from the
termination or variation of any contract of employment or for
services;
6.4.2 since the Accounts Date no gratuitous payment has been made or
promised by any Group Company in connection with the actual or
proposed termination, suspension or variation of any contract of
employment or for services of any present or former director,
officer or any dependant of any present or former director,
officer or employee of any Group Company; and
6.4.3 since the Accounts Date no Group Company has made or agreed to
make any payment to or provided or agreed to provide any benefit
for any present or former director, officer or employee of the
Company other than in respect of his normal contractual benefits.
6.5
6.5.1 So far as the Executive Warrantors are aware each Group Company
has in relation to each of its employees (and so far as relevant
to each of its former employees) complied in all material
respects with:
(a) all obligations imposed on it by all relevant statutes,
regulations and binding codes of conduct and practice
affecting its employment of any persons and all relevant
orders and awards made thereunder and has maintained
current, adequate and suitable records regarding the
service, terms and conditions of employment of each of its
employees; and
(b) all collective agreements, recognition agreements and
binding customs and practices for the time being affecting
its employees or their conditions of service.
6.5.2 So far as the Executive Warrantors are aware no Group Company is
in breach to any material extent of any of the following
provisions of the following Acts or of any regulations made under
any of such Acts:
sections 14, 59, 71 and 72 Shops Xxx 0000 section 155 Xxxxxxxxx
Xxx 0000 section 33 Health and Safety at Work etc. Xxx 0000.
or the equivalent in any foreign jurisdiction
6.5.3 There is no liability or claim against any Group Company
outstanding or so far as the Executive Warrantors are aware
anticipated under the Equal Pay Xxx 0000, the Sex Discrimination
Acts 1975 and 1986,
-50-
Disability Discrimination Xxx 0000 the Race Relations Xxx 0000,
the ERA, TUPE, the Social Security and Housing Benefits Xxx 0000,
the Social Security Contributions and Benefits Xxx 0000, TULRCA
or the Trade Union Reform and Employment Rights Xxx 0000 or the
equivalent in any foreign jurisdiction.
6.5.4 Within a period of one year preceding the date of this Agreement,
no Group Company has given notice of any redundancies to the
Secretary of State or started consultations with any independent
trade union under the provisions of Part IV TULRCA or under TUPE
nor has any Group Company failed to comply with any such
obligation under Part IV TULRCA.
6.6
6.6.1 No present director, officer or employee of any Group Company has
given or received notice terminating his employment and
Completion will not of itself entitle any employee to terminate
his employment or trigger any entitlement to a severance payment
or liquidated damages.
6.6.2 Each Group Company has complied with all specific written
recommendations made to it by the Advisory Conciliation and
Arbitration Service and with all specific written awards and
declarations made by the Central Arbitration Committee in respect
of its employees.
6.7 No Group Company has in existence, nor is proposing to introduce, and none
of its directors, officers or employees participates in (whether or not
established by a Group Company), any employee share trust, share incentive
scheme, share option scheme or profit sharing scheme for the benefit of all
or any of its present or former directors, officers or employees or the
dependants of any of such persons or any scheme under which any present or
former director, officer or employee of any Group Company is entitled to a
commission or remuneration of any other sort calculated by reference to the
whole or part of the turnover, profits or sales of any Group Company or any
other person, firm or company including any profit related pay scheme
established under Chapter III, Part V Taxes Act.
6.8
6.8.1 No dispute exists (nor, so far as the Executive Warrantors are
aware, are there any circumstances likely to cause a dispute)
between any Group Company and a material number or category of
its employees or any Trade Union(s) and so far as the Executive
Warrantors are aware , save for one months accrued entitlement to
remuneration, there are no wage or other claims outstanding
against any Group Company by any person who is now or has been a
director, officer or employee of any Group Company.
6.8.2 No Group Company has had during the last three years any strike,
work stoppages, slow-down or work-to-rule by its employees or
lock-
-51-
out, nor, so far as the Executive Warrantors are aware, is any
anticipated, which has caused, or is likely to cause, any Group
Company to be materially incapable of carrying on its business in
the normal and ordinary course.
6.9 No Group Company has been a party to any relevant transfer as defined in
TUPE within the period of two years preceding the date of this Agreement
nor has any Group Company failed to comply with any duty to inform and
consult any Trade Union under the said regulations (or the equivalent in
any overseas jurisdiction) within the period of one year preceding the
date of this Agreement.
6.10 No Group Company is a party to any agreement or arrangement with or
commitment to any Trade Union or staff association nor are any of its
employees members of any Trades Union or staff association.
6.11 Other than the Petroleum Engineering Services Limited Group Personal
Pension Scheme, the Petroleum Engineering Services Limited Directors
Retirement Plan, the Petroleum Engineering Services Limited Staff
Retirement and Death Benefits Scheme, the "pensjon sforkering" pension
scheme operated by Petroleum Engineering Services Norge AS and the scheme
operated by Petroleum Engineering Services Asia Pty Limited (together the
"Pension Schemes"), there is no arrangement to which any Group Company
contributes or may become liable to contribute under which benefits of any
kind are payable to or in respect of any of the employees, directors or
officers or any former employee or former director or former officer of
any Group Company (or to any spouse or dependant of any of them) on
retirement, on death or in the event of disability or sickness or in other
similar circumstances nor has any Group Company provided or promised to
provide any ex-gratia pensions, lump sums or like benefits for any current
or former employee director or officer of a Group Company.
6.12 The Pension Schemes provide only money purchase benefits and each Group
Company has paid all contributions which are due to or in respect of the
Pension Schemes by the due date for payment. In respect of any employee,
director or officer of any Group Company who is covered by lump sum death
benefits those benefits are fully insured with an insurance company on
normal terms and all premiums have been paid.
6.13 Full particulars of the Pension Schemes have been disclosed, such
particulars being true, complete and not misleading in any way. The
particulars include a copy of the trust deed and rules or other governing
documentation, booklets and any subsequent announcements to scheme
members, details of members including contributions payable by members and
their employer, details of current investments, latest scheme accounts
and, where appropriate, the schedule of payments complying with Section 87
of the Pensions Xxx 0000.
6.14 The Pension Schemes are approved by the Board of Inland Revenue for the
purposes of Chapter I or Chapter IV of Part XIV of the Taxes Act or are
approved by any other appropriate regulatory body and so far as the
Executive
-52-
Warrantors are aware have at all times and in all material respects
complied with the provisions of all relevant statutes, regulations and
requirements.
6.15 There are no claims or actions in progress or pending, nor so far as
the Executive Warrantors are aware any reason for such claims or
actions, in respect of any pension arrangement. There are no
unresolved disputes under any of the Pension Schemes' internal dispute
resolution procedures.
7. Authorities
To the best of the knowledge, information and belief of the Executive
Warrantors, each Group Company has obtained and complied in all
material respects with all permits, authorities, licences and consents
(whether granted by public or private authority) necessary or used to
carry on its business effectively and without hindrance in the manner
and in the places in which its business is now carried on, and, to the
best of the knowledge and belief of the Executive Warrantors (but
without any enquiry having been made other than of the directors and
senior employees of each Group Company), there are no circumstances
that might lead to the suspension, alteration or cancellation of any
such permits, authorities, licences or consents, nor is it party to
any agreement that materially restricts the fields within which it may
carry on its business.
8. Litigation
8.1 Save for proceeding to collect trade debts not exceeding
(pound)100,000 in aggregate due to a Group Company no Group Company is
engaged in, nor (to the best of the knowledge and belief of the
Executive Warrantors) is any officer or senior or key employee of any
Group Company, engaged in, any legal proceedings relating to the
affairs of a Group Company. To the best of the knowledge and belief of
the Executive Warrantors, there are no such proceedings threatened,
and, to the best of the knowledge and belief of the Executive
Warrantors there has been no act, omission or other occurrence that
will or is likely to give rise to any such proceedings.
8.2 There is no judgment or order of any court, tribunal or official body
against any Group Company or to the best of the knowledge, information
and belief of the Executive Warrantors any officer or senior or key
employee that has not been fully satisfied or discharged on terms that
have been disclosed to Halliburton.
8.3 No Group Company and no officer of any Group Company has been
prosecuted for any criminal, illegal or unlawful act connected with
the Group.
8.4 So far as the Executive Warrantors are aware no officer or employee of
any Group Company has made or received any Sensitive Payment in
connection with the business of the Group. For the purposes of this
clause the expression "Sensitive Payments" (whether or not illegal)
shall include (i) bribes or kickbacks paid to any person, firm or
company including central or local government officials or employees
or (ii) amounts received with an
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understanding that rebates or refunds will be made in contravention of
the laws of any jurisdiction either directly or through a third party
or (iii) political contributions or (iv) payments or commitments
(whether made in the form of commissions, payments or fees for goods
received or otherwise) made with the understanding or under
circumstances that would indicate that all or part of the payment is
to be paid by the recipient to central or local government officials
or as a commercial bribe, influence payment or kickback.
9. Applicable legislation
9.1 No notice or intimation has been received that any Group Company is in
breach of any legislation or regulations nor, so far as the Executive
Warrantors are aware (but without any enquiry having been made other
than of the directors and senior employees of each Group Company), is
any Group Company in material breach of any such legislation or
regulations.
9.2 Without prejudice to the generality of paragraph 9.1 above so far as
the Executive Warrantors are aware, no Group Company has been or is a
party to any arrangement or practice that infringes or requires or
required registration under or is liable to be referred under any of
the provisions of the Restrictive Trade Practices Acts 1956 to 1976,
the Fair Trading Xxx 0000, the Resale Prices Xxx 0000, the Competition
Xxx 0000, Articles 85 and 86 of the Treaty of Rome (or any regulation
or directive issued thereunder) or any other law or treaty relating to
monopolies, restrictive trade practices, fair trading or resale price
maintenance.
9.3 The business of the Group has so far as the Executive Warrantors are
aware at all times been conducted in compliance in all material
respects with all applicable legislation concerning health and safety
matters and all and any regulations or orders made or issued under any
such legislation and any relevant-binding codes of practice, guidance
notes and the like issued by government agencies (the "Health and
Safety Legislation").
9.4 To the best of the knowledge and belief of the Executive Warrantors no
works, repairs, construction, remedial action or expenditure is or is
likely to be required in relation to the Health and Safety Legislation
in order to carry on lawfully the business of the Group at the
Properties.
9.5 The Executive Warrantors have no knowledge of any outstanding notice,
claim or other communication alleging any contravention of or actual
or potential liability under the Health and Safety Legislation.
9.6 No Group Company carries on, nor does it purport to carry on, nor has
it at any time since 28th April, 1988 carried on, or purported to
carry on, investment business in the United Kingdom within the meaning
of section 3 Financial Services Xxx 0000 nor has it contravened any
provision of that Act.
9.7 There are no outstanding claims for compensation for inaccuracy, loss
or unauthorised disclosure of personal data nor, so far as the
Executive Warrantors are aware are there any circumstances likely to
lead thereto.
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10. Records and documents
10.1 The register of members of each Group Company is correct there has
been no notice of any proceedings to rectify the register and to the
best of the knowledge and belief of the Executive Warrantors there are
no circumstances that might lead to any application for rectification
of the register.
10.2 Each Group Company has kept duly made up all requisite books of
account (reflecting all assets, liabilities, financial transactions
and contracts), minute books, registers and records, and these and, to
the best of the knowledge and belief of the Executive Warrantors, all
other documents (properly stamped where necessary) belonging to or
which ought to be in the possession of each Group Company are in its
possession or in the possession of its bankers or agents.
10.3 All material documents requiring to be filed with the Registrar of
Companies (or the equivalent in any jurisdiction outside the United
Kingdom) by each Group Company have been properly made up and filed.
11. Company Agreements
11.1 No Group Company is a party to any agency, distributorship, marketing,
purchasing, service, licensing or like agreement that cannot be
terminated by it on less than three months' notice without payment of
compensation.
11.2 No Group Company:
11.2.1 is a member of any partnership or unincorporated association
(other than a recognised trade association);
11.2.2 is a party to any joint venture or consortium or agency or
distribution agreement; or
11.2.3 holds any shares or securities of or interest in any
corporation incorporated without limited liability or in
which liability is not limited.
11.3 All contracts to which a Group Company is a party with an invoice
value in excess of (pound)500,000 which have been entered into in the
last 5 years and in respect of which a Group Company has or could have
any actual or contingent liability in excess of (pound)50,000 have
been Disclosed. No Group Company is a party to or subject to any
agreement, transaction, obligation, commitment, understanding,
arrangement or liability which:
11.3.1 (other than call-off arrangements) is incapable of complete
performance in accordance with its terms within twenty-four
months after the date on which it was entered into or
undertaken;
11.3.2 (so far as the Executive Warrantors are aware) is likely to
result in a loss to the relevant Group Company on completion
of performance;
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11.3.3 cannot (so far as the Executive Warrantors are aware)
readily be fulfilled or performed by the relevant Group
Company on time and without undue or unusual expenditure of
money and effort;
11.3.4 involves or is likely to involve obligations, restrictions,
expenditure or receipts of an unusual, onerous or
exceptional nature and not in the ordinary course of
business;
11.3.5 requires an aggregate consideration payable by the relevant
Group Company in excess of (pound)100,000.
11.3.6 involves or is likely to involve the supply of goods by or
to the relevant Group Company the aggregate sales value of
which will represent in excess of five per cent of the
turnover of the relevant Group Company for the year ended on
the Accounts Date or if higher, (pound)500,000;
11.3.7 requires the relevant Group Company to pay any commission,
finder's fee, royalty or the like.
11.4 So far as the Executive Warrantors are aware the terms of all
contracts of each Group Company have been complied with by that Group
Company and (so far as the Executive Warrantors are aware) by the
other parties to the contracts in all material respects and there are
no circumstances likely to give rise to a default by any Group Company
or (so far as the Executive Warrantors are aware) by the other parties
under any such contract which in either such case would lead to a
liability exceeding (pound)50,000.
11.4.1 There are no outstanding claims, separately or in the
aggregate, of amounts exceeding (pound)50,000, against any
Group Company on the part of customers or other persons in
respect of defects in quality or delays in delivery or
completion of contracts or deficiencies of design or
performance or otherwise relating to liability for goods or
services sold or supplied by any Group Company and no such
claims are threatened and so far as the Executive Warrantors
are aware there is no matter or fact in existence in
relation to goods or services currently sold or supplied by
any Group Company which is likely to give rise to any such
claim.
11.4.2 The Executive Warrantors have no knowledge of the invalidity
of or grounds for rescission, avoidance or repudiation of
any agreement or other transaction to which any Group
Company is a party and neither they nor any Group Company
have received any notice of any intention to terminate,
repudiate or disclaim any such agreement or other
transaction.
12. Loans and financial facilities
12.1 No financial facilities available to a Group Company are guaranteed or
secured by any third party (other than any other Group Company), nor
is there anything
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known to the Company or the Executive Warrantors that would suggest
that any financial facilities available to a Group Company may be
withdrawn or will become repayable before their stated maturity.
12.2 Save as set out in Part 2 of this schedule, no Group Company has any
loan capital or debenture or any mortgage, charge or Standard Security
over any of its assets.
12.3 Other than in respect of any other Group Company or pursuant to the
standard terms of trade of a Group Company as disclosed in the
Disclosure Letter, no Group Company has:
12.3.1 any liability (present, future, ascertained or contingent)
under any guarantee, surety, indemnity, bond or similar
obligation;
12.3.2 any liability (present, future, ascertained or contingent)
under any Agreement for the hire, rent, hire purchase or
purchase on deferred terms of any asset (where the annual
payments in respect of a single asset exceed (pound)50,000);
or
12.3.3 so far as the Executive Warrantors are aware any due or
presently disputed liability under any warranty or
representation, (except a warranty or representation implied
by law in respect of a transaction entered into by such
Group Company in the ordinary course of its trading)
exceeding (pound)50,000
12.4 Particulars of all money borrowed by each Group Company have been
Disclosed. The total amount borrowed by the Company and the Existing
Subsidiaries from any source does not exceed any limitation on its
borrowing contained in its articles of association (or equivalent
documents) or in any debenture or loan stock trust deed or instrument
or any other document binding on a Group Company and the amount
borrowed by each Group Company from each of its bankers does not
exceed the overdraft facility agreed with such banker. No Group
Company has any outstanding loan capital.
12.5 So far as the Executive Warrantors are aware, all debts owed to each
Group Company are collectable in the ordinary course of business and
so far as the Executive Warrantors are aware each such debt will
realise in full its face value within nine months of its due date for
payment. No Group Company owns the benefit of any debt (whether
present or future) other than debts which have accrued to it in the
ordinary course of business.
12.6
12.6.1 Particulars of the balances on all the Group's bank accounts
as at the date falling 2 Business Days prior to the date
hereof have been Disclosed and the Group has no other bank
accounts. Since the date of such particulars there have been
no payments out of any such bank accounts except for
payments in the ordinary course of business.
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12.6.2 All unpresented cheques in amounts exceeding (pound)10,000
drawn by a Group Company have been Disclosed and there are
no such unpresented cheques drawn otherwise than in the
normal course of business.
12.7 The Executive Warrantors have Disclosed full details and true and
correct copies of all documents relating to all debentures, acceptance
lines, overdrafts, loans or other financial facilities outstanding or
available to the Company and all charges to which any asset of a Group
Company is subject. Neither the Executive Warrantors nor any Group
Company have done anything whereby the continuance of any such
facility or Encumbrance in full force and effect might be affected or
prejudiced.
12.8 Full details of all grants made to each Group Company in the last six
years, and all outstanding applications for any such grant, have been
Disclosed. No act or transaction which has occurred or Completion will
result in a Group Company being held liable to refund (in whole or in
part) any such grant or any loan received by virtue of any statute, or
in consequence of which any such grant or loan for which application
has been made by it will not or may not be paid or will or may be
reduced.
12.9 No Group Company is presently delaying the payment of any material
obligation due for payment.
12.10 No offer, tender or the like is outstanding (the turnover value of
which to any Group Company could exceed (pound)300,000 in any year)
which is capable of being converted into an obligation of any Group
Company by an acceptance or other unilateral act of some other person.
12.11 There are in force no powers of attorney given by any Group Company
other than to the holder of a charge solely to facilitate its
enforcement nor any other authority (express, implied or ostensible)
given by any Group Company to any person to enter into any contract or
commitment or do anything on its behalf other than any authority of
employees to enter into routine trading contracts in the normal course
of their duties.
12.12 The acquisition of the Shares by Halliburton and compliance with the
terms of this Agreement will not of itself:
12.12.1 (so far as the Executive Warrantors are aware) cause any
Group Company to lose the benefit of any right or privilege
it presently enjoys or cause any person who normally does
business with any Group Company not to continue to do so on
the same basis as previously;
12.12.2 (so far as the Executive Warrantors are aware) relieve any
person of any obligation to any Group Company (whether
contractual or otherwise) or legally entitle any person to
determine any such obligation or any right or benefit
enjoyed by any Group Company or to exercise any right
whether under an agreement with or otherwise in respect of
any Group Company;
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12.12.3 (so far as the Executive Warrantors are aware) conflict with
or result in the breach of or constitute a default under on
the part of any Group Company or any Executive Warrantor (i)
under any of the terms, conditions or provisions of any
agreement or instrument to which it is now a party; or any
loan or Encumbrance created by it; or (ii) of its memorandum
or articles of association;
12.12.4 result in any present or future indebtedness of any Group
Company becoming due and payable or capable of being
declared due and payable prior to its stated maturity;
12.12.5 (so far as the Executive Warrantors are aware) cause any
director, officer or senior employee of any Group Company to
leave employment; or
12.12.6 (so far as the Executive Warrantors are aware) conflict
with, violate or result in a breach of any law, regulation,
order, decree or writ applicable to any Group Company, the
Executive Warrantors or any of them, or entitle any person
to receive from any Group Company any finder's fee,
brokerage or other commission,
and, so far as the Executive Warrantors are aware, will not
prejudicially affect the attitude or actions of clients, customers and
suppliers with regard to any Group Company or cause any of them to
materially alter the terms on which they do business with the Group.
12.13
12.13.1 So far as the Executive Warrantors are aware no Group
Company has manufactured, marketed or supplied any Product
which was at the material times not fully compliant in all
material respects with the requirements of all applicable
European laws and the laws of any territory in which such
Product has been placed on the market.
12.13.2 At no time has any Group Company had knowledge of or
received any governmental enforcement action alleging any
defect in any Product or any contravention of any applicable
law or standard relating to the Products.
13. Liabilities to the Executive Warrantors
13.1 No Group Company has any liability to:
13.1.1 the Executive Warrantor giving this Warranty apart from (a)
under the Subsisting Options, and (b) one month's accrued
remuneration;
13.1.2 any Associates of the Executive Warrantor giving this
Warranty; or
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13.1.3 any company of which five per cent or more of the equity
share capital is owned or controlled directly or indirectly
by the Executive Warrantor giving this Warranty and/or his
Associates.
13.2 The Executive Warrantor giving this Warranty does not have nor (so far
as he is aware) do his Associates have any interest in any other
person which has or has had a material or close trading relationship
with or is or may be in competition with any Group Company.
14. Entry into this Agreement
The execution and performance of this Agreement by the Executive
Warrantors has been authorised by all necessary acts and does not, and
will not, violate any trust agreement, instrument, agreement or other
arrangement to which any Group Company or any of the Executive
Warrantors is party.
15. Intellectual and industrial property
15.1 The Company or the relevant Group Company is the sole legal and
beneficial owner and registered proprietor free from encumbrance or
licence of the inventions, trade secrets, letters patent, trade marks,
registered designs and applications for letters patent, trade marks
and registered designs, specified in the attached bundle of
documentation (in Agreed Form) (the "Specified Intellectual Property")
and so far as the Executive Warrantors are aware all the same are
valid and in force.
15.2 No right or licence has been granted to any person by any Group
Company to use in any manner or to do anything that would or might
otherwise infringe any of the Specified Intellectual Property and so
far as the Executive Warrantors are aware no act has been done or
omitted to be done by any Group Company that will result in any of the
Specified Intellectual Property ceasing to be valid and in force.
15.3 To the best of the knowledge and belief of the Executive Warrantors,
in carrying on its business no Group Company infringes, or uses
without authority, any third party's know-how, trade secrets, patents,
trademarks, service marks, registered designs, applications for any of
the foregoing, trade or business names, or copyrights. No claims have
been made or threatened by any third party against a Group Company in
respect of any infringement of any such industrial property or
intellectual property rights owned by such third party. No claims have
been made or threatened by any third party against a Group Company
that challenges a Group Company's rights of ownership or use of any
Group Company's industrial property or intellectual property. No
claims have been made or threatened by any third party against a Group
Company that challenges the validity of any industrial property or
intellectual property owned by any Group Company.
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15.4 No Group Company is a party to any secrecy, confidentiality or other
agreement that may restrict the use or disclosure by such Group
Company of any confidential information.
15.5 The operation of the SCRAMs Systems and the provision of the SCRAMs
Services will be unaffected by the change in year from 1999 to 2000
or by any related change in the field configurations containing date
information within the SCRAMs Systems. In particular:
15.5.1 there will be no error, malfunction or change in the
operation, functionality or performance of the SCRAMs
Systems or the provision of the SCRAMs Services;
15.5.2 no value for current date will cause any interruption in
the operation of the SCRAMs Systems or the provision of the
SCRAMs Services;
15.5.3 all manipulations of time-related data will produce the
desired results for all valid date values within the
applicable domain;
15.5.4 date-based functionality will behave consistently for dates
prior to, during and after the year 2000;
15.5.5 date elements in interfaces and data storage will permit
specifying the century to eliminate date ambiguity without
human intervention, including leap year calculations; and
15.5.6 where any date element is represented without a century,
the correct century shall be unambiguous for all
manipulations involving the element and in all interfaces
and data storage, the century in any date shall be
specified either explicitly or by unambiguous algorithms or
inferencing rules.
15.6 All IT Systems can be operated, and all IT Services can be provided,
in all respects using, recording, converting and accounting for
(including without limitation rounding up and down and calculating,
accounting for and recording compensatory payments) monetary or
currency values denominated in the euro in the same manner as it does
for any European currency existing as at the date of this Agreement
and in all respects in accordance with any applicable legislation,
laws, directives, regulations, directions or rules (including the
rules on conversion and rounding set out in Council Regulation
1103/97/EC).
15.7 The Year 2000 Compliance Report is true and accurate in all material
respects.
16. Insolvency
16.1 No Group Company is insolvent as defined by section 123 Insolvency
Act 1986 or has entered into any scheme of arrangement or voluntary
or other statutory arrangement with any of its creditors.
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16.2 No order has been made or resolution passed for the winding up of any
Group Company and there is not outstanding any petition for the
winding up of a Group Company or any petition applying for an
administration order to be made in relation to a Group Company or any
receivership of the whole or any part of the undertaking or assets of
a Group Company or the equivalent in any jurisdiction outside the
United Kingdom.
16.3 To the best of the knowledge and belief of the Executive Warrantors
there are no circumstances that would entitle any person to present a
petition for the winding up of a Group Company or to appoint a
receiver of the whole or any part of its undertaking or assets.
17. Properties
17.1 The properties set out in Part 4 of the schedule (the "Properties")
comprise all the heritable property owned, occupied, leased or
otherwise used by any Group Company, each of which has a good and
marketable title in its own name to the Property that it occupies.
The Properties are free from all sub-leases, Standard Securities,
charges (other than a floating charge by the Company dated 18th
November 1993 in favour of the Bank of Scotland (the "Charge")) or
other adverse interests and the relevant Group Company is in actual
exclusive occupation thereof, and has not granted or agreed to grant
any right or interest therein to any third party. So far as the
Executive Warrantors are aware there are no restrictions of access or
similar restrictions that would in any way affect the present use and
enjoyment of the Properties.
17.2 So far as the Executive Warrantors are aware the relevant Group
Company has complied in all material respects with and is not in
breach of its obligations including statutory obligations relating to
the Properties and no notice of any breach of any such obligations
has been received by a Group Company.
17.3 Other than the Charge, there are no subsisting material entries
registered against the Properties or any Group Company or in the
General Register of Sasines or under the relevant Land Certificate at
the Land Register of Scotland or other equivalent in any jurisdiction
furth of Scotland or elsewhere affecting the Properties or any Group
Company.
17.4 The particulars of the Properties set forth in Part 4 of the schedule
are true and correct and no Group Company has any other interest in
land.
17.5 There are no notices, complaints or requirements issued by or
agreements with any local, planning or other authority (including the
landlords or proprietors) or any burdens, servitudes, exceptions,
restrictions or reservations that would materially and detrimentally
affect the current use of the Properties and there are no
circumstances known to the Executive Warrantors, that are likely to
result in any such notice, charge, restriction requirements or other
being given or made.
17.6 There have not been served on any Group Company any schedules of
dilapidations or other notices concerning the state of the premises
and so far as
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the Executive Warrantors are aware all buildings and structures on
the Properties are in a reasonable state of repair and condition and
it is not now expected that any schedule of dilapidations requiring
works costing more than (pound)50,000 will be served upon any Group
Company within the next 12 months. No major repairs to the Properties
have been contracted for or are proposed by any Group Company or, (to
the best of the knowledge and belief of each of the Executive
Warrantors), the landlords, to be effected.
17.7 With regard to the Properties:
17.7.1 each lease is valid and subsisting, there is no dispute or
claim outstanding thereunder, or to the best of the
knowledge and belief of the Executive Warrantors, any
circumstances likely to give rise thereto and there is not
in existence any commitment, agreement or obligation to
vary any such lease;
17.7.2 the Group Companies have paid the rent and observed and
performed all the material obligations and liabilities on
the part of the tenant and the conditions contained in each
such lease and to the best of the Executive Warrantors'
knowledge and belief, there exists no ground(s) upon which
the landlord could terminate any such lease;
17.7.3 there are no rent reviews currently in progress under any
such lease;
17.7.4 the Properties are not subject to any sub-tenancy agreement
(which expression includes any informal sharing of
possession).
18. Environmental matters
18.1 For the purposes of this Warranty, "Environmental Laws" shall mean
and include all and any existing United Kingdom, European Community
or other legislation having application to the operations of any
Group Company and the Properties including without limitation,
statutes or other laws or legislation, Directives and regulations
relating to the environment.
18.2 To the best of the knowledge and belief of the Executive Warrantors,
each Group Company and the Executive Warrantors are and always have
been in material compliance with all Environmental Laws and in
particular have obtained and complied with all material terms and
conditions of all necessary permits, licences and other
authorisations in relation to the operations of each Group Company
and the Executive Warrantors and the use of the Properties and have
filed all necessary notifications, applications and notices that may
be so required.
18.3 To the best of the knowledge and belief of the Executive Warrantors,
there are in relation to each Group Company and the Executive
Warrantors and the Properties no past or present events, conditions,
circumstances, activities, practices or incidents that may or do
interfere with or prevent compliance with any Environmental Law or
that may or do give rise to any common law or legal liability or
otherwise form the basis of any claim, action, suit, proceeding,
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hearing or investigation relating to harm to human health or to the
environment or to property or breach of Environmental Laws.
18.4 To the best of the knowledge and belief of the Executive Warrantors,
there is not currently and there has not been in, on or under any of
the Properties any waste, pollutants, contaminants or other
substances or materials that may either individually or in
combination with other substances or materials be harmful to human
health or to the environment or to property.
18.5 To the best of the knowledge and belief of the Executive Warrantors,
there are no facts or circumstances in relation to any Group Company
or the Executive Warrantors or any of the Properties that may inhibit
or restrict or make more costly any operation of the business of any
Group Company or the occupation of or the redevelopment of any of the
Properties or any part thereof by reason of contamination.
18.6 Neither the business of any Group Company nor any property owned or
leased by any Group Company has been the subject of any environmental
audit or investigation other than such as have been disclosed in
writing to Halliburton.
19. Dormant Subsidiaries
Each of the Dormant Subsidiaries is dormant and, save for share
capital, none of the Dormant Subsidiaries has any assets or
liabilities of whatsoever nature.
20. Minors
None of the persons selling shares to Halliburton under the Offer who
is an individual is under 16 years of age.
21. Taxation
21.1 Save to the extent that specific provision or disclosure has been
made in the Accounts for any liability or contingent liability to
Taxation and save for any liability to Taxation arising in the
ordinary course of the Group's normal trading since the Accounts
Date, no Group Company has any liability or contingent liability in
respect of any form of Taxation (the deprivation or nullifying of any
relief or advantage (including the right to set past losses against
future profits) or the requirement to make any payment or the loss of
the right to any repayment by or to the Inland Revenue or any other
authority being deemed to be a liability in respect of Taxation for
the purposes of this paragraph).
21.2 Each Group Company has complied in all material respects with its
obligations to account to the Inland Revenue and all other relevant
authorities for all amounts for which it is accountable in respect of
Taxation (including, for the avoidance of doubt, any interest,
penalties fines or surcharges that may be associated therewith) any
amount payable under the PAYE system or amounts payable under social
security legislation.
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21.3 All returns and computations in connection with Taxation that should
have been made by each Group Company have been made correctly and on
a proper basis; no such return or computation has been disputed and,
so far as the Executive Warrantors or the Company are aware having
made reasonable enquiry, there are no facts which may give rise to
any such dispute or to any claim for any Taxation or to the
deprivation of any relief from Taxation or advantage that might have
been available.
[PES to advise whether it is VAT grouped or not
21.4 Each Group Company is duly registered for VAT or other sales tax
purposes and has in all other respects complied with all legislation
and other enactments relating to VAT or other sales tax and all
orders, regulations, directions or conditions made or imposed
thereunder and has maintained in all material respects correct and
up- to-date records, invoices and other documents appropriate or
necessary for the purposes of such legislation and is not in arrear
with any payment or returns thereunder or, to the best of the
knowledge, information and belief of the Executive Warrantors, liable
to any abnormal or non-routine payment or any forfeiture or penalty
or to the operation of any penal provision. Each Group Company is a
taxable person for the purposes of such legislation except in respect
of UK members of the Group in relation to VAT and is not treated and
has not at any time been treated as a member of any group for the
purpose thereof nor has any application for it to be so treated at
any time been made.]
21.5 No Group Company has made or agreed to make any payment to or
provided or agreed to provide any benefit for any Director or former
director, officer or employee of the Company, whether as compensation
for loss of office, termination of employment or otherwise, which is
not allowable as a deduction in calculating the profits of the
Company for Taxation purposes whether up to or after the Accounts D
ate.
21.6 No Group Company is a party to any transaction or arrangement under
which it may be required to pay for any asset or any services or
facilities of any kind an amount which is in excess of the market
value of that asset or those services or facilities nor will any
Group Company receive any payment for an asset or any services or
facilities of any kind that it has supplied or provided or is liable
to supply or provide which is less than the market value of that
asset or those services or facilities.
21.7 No Group Company has disposed of or acquired any asset otherwise than
at arm's length or from another Group Company.
21.8 No Group Company has made a claim under any of the following: section
280, TCGA (tax on chargeable gains payable by instalments), section
24(2), TCGA (assets of negligible value), section 242(2), TCGA (small
part disposals of land) or section 139, Finance Xxx 0000 (deferral of
unrealised exchange gains).
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21.9 No scheme registered under Chapter III of Part V, TA 88 applies to
any Group Company or any of its employees and no application for
registration of a scheme so applying has been made.
21.10 All interests, discounts and premiums payable by each Group Company
in respect of its loan relationships (within the meaning of section
81, Finance Act 1996) are eligible to be brought into account by the
Company as a debit for the purposes of Chapter II of Part IV, Finance
Act 1996 at the time and to the extent that such debits are
recognised in the statutory accounts of the Company concerned and no
Group Company has been a party to a loan relationship which had an
unallowable purpose (within the meaning of paragraph 13 of Schedule
9, Finance Act 1996).
21.11 All stampable documents wheresoever executed (other than those which
have ceased to have any legal effect) to which a Group Company is a
party have been duly stamped or stamped with a particular stamp
denoting that no stamp duty is chargeable. Since the Accounts Date
there have been and are no circumstances or transactions to which any
Group Company is or has been a party such that a liability to stamp
duty or any penalty in respect of such duty will arise on a Group
Company.
21.12 Since the Balance Sheet Date no Group Company has incurred any
liability to or been accountable for any stamp duty reserve tax and
there has been no agreement within section 87(1), Finance Xxx 0000
which could lead to a Group Company incurring such a liability or
becoming so accountable.
-66-
Part 4
DETAILS OF PROPERTIES
--------------------------------- -------------------------- ------------------------- --------------- ----------------
TENANT LANDLORD PROPERTY RENTAL TERM
--------------------------------- -------------------------- ------------------------- --------------- ----------------
Petroleum Engineering Services Aberdeen City Council Phase 1, Xxxx Xxxx (pound)14,600 99 years
Limited (formerly The Grampian Avenue, Dyce, Aberdeen per annum
Regional Council)
--------------------------------- -------------------------- ------------------------- --------------- ----------------
Petroleum Engineering Services Aberdeen City Council Phases II and III, Xxxx (pound)249,900 25 years
Limited (formerly The Grampian Xxxx Avenue, Dyce, per annum
Regional Council) Aberdeen
--------------------------------- -------------------------- ------------------------- --------------- ----------------
Petroleum Engineering Services Aberdeen City Council Phase IV Xxxx Xxxx (pound)68,450 92 years 00
Xxxxxxx Xxxxxx, Xxxx, Xxxxxxxx per annum months
--------------------------------- -------------------------- ------------------------- --------------- ----------------
Petroleum Manufacturing Medlaw Properties 0 Xxxx Xxxx Xxxxxx, Xxxxxxxxxx (pound)126,500 25 years
Services Limited Street Edinburgh per annum
--------------------------------- -------------------------- ------------------------- --------------- ----------------
Petroleum Engineering Services Xxxxxxx Brothers Northmost half of (pound)500 per month to
Limited (Xxxxxx) Limited, Motor Victoria Engineering month month
Engineers, Xxxxxx, by Works, Northesk Road,
Montrose Montrose
--------------------------------- -------------------------- ------------------------- --------------- ----------------
--------------------------------- ------------------------------ ------------- --------------------
TENANT COMMENCEMENT RENT REVIEW COMMENTS
DATE
--------------------------------- ------------------------------ ------------- --------------------
Petroleum Engineering Services 1 March 1992 5 yearly
Limited
--------------------------------- ------------------------------ ------------- --------------------
Petroleum Engineering Services 24 September 1993 5 yearly Review due on
Limited 24.09.98 has not
yet taken place
--------------------------------- ------------------------------ ------------- --------------------
Petroleum Engineering Services 1 April 1998
Limited
--------------------------------- ------------------------------ ------------- --------------------
Petroleum Manufacturing May 1997 5 yearly Lease not executed
Services Limited
--------------------------------- ------------------------------ ------------- --------------------
Petroleum Engineering Services 16 February 1990 None This property has
Limited been sub-let
--------------------------------- ------------------------------ ------------- --------------------
-67-
--------------------------------- -------------------------- ------------------------- --------------- ----------------
TENANT LANDLORD PROPERTY RENTAL TERM
--------------------------------- -------------------------- ------------------------- --------------- ----------------
PES Inc Genosys, 1442 Lake Front 0000 Xxxx Xxxxx Xxxxxx, $4,223 per 18 months
Circle, Xxxxx 000, Xxx Xxxxx 000, month remaining
Xxxxxxxxx, Xxxxx 00000 Xxx Xxxxxxxxx, Xxxxx
00000
--------------------------------- -------------------------- ------------------------- --------------- ----------------
Petroleum Engineering Services Sandnes Tak AS, Xxxxxxxxxxxxx 00, XXX 25,168 5 years with
Norge AS Xxxxxxxxxxxxx 00, 0000 Xxxxxxx, Xxxxxx per month option for
0000 Xxxxxxx further 3 years
--------------------------------- -------------------------- ------------------------- --------------- ----------------
Petroleum Engineering Services Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxx Xxxx0,000 per 12 months
Asia Pty Ltd Centre, Legal Aid Gernal Legal Aid General month
Building, 000 Xx Xxxxxxx Xxxxxxxx, 267 St
Terrace, Perth, XX Xxxxxxx Terrace, Perth
WA
--------------------------------- -------------------------- ------------------------- --------------- ----------------
Petroleum Engineering Services Xxxxxxxxxx Xxxxxxx Xxxx Xxxxxxx 1, No 663,8000 lira 12 months with
(Italia) Srl X.XX Xxxxxxx 000 000/0, 00000 per month option of
Montesilvano Montesilvano, Pescara, further 12
Italy Italy months
--------------------------------- -------------------------- ------------------------- --------------- ----------------
--------------------------------- ------------------------------ ------------- -------------------
TENANT COMMENCEMENT RENT COMMENT
DATE REVIEW
--------------------------------- ------------------------------ ------------- --------------------
PES Inc Lease to be
terminated shortly
---------------------------------- ---------------------------- ------------- --------------------
Petroleum Engineering Services 1 September 1997 Annually
Norge AS 1st June
---------------------------------- ---------------------------- ------------- --------------------
Petroleum Engineering Services 14 June 1998
Asia Pty Ltd
---------------------------------- ---------------------------- ------------- --------------------
Petroleum Engineering Services 1 June 1996 Annually,
(Italia) Srl increases
with
inflation.
---------------------------------- ---------------------------- ------------- --------------------
* Rent review due on 24 September 1998 has not yet taken place.
------------------------ ---------------------------- --------------------------- --------------- ----------------
TENANT LANDLORD PROPERTY RENTAL TERM
------------------------ ---------------------------- --------------------------- --------------- ----------------
PES France SUD OUEST BAIL 0, Xxxxxx X 000, Xxxxxx Xxxxxx XXXXX XXX 78,459 12 years
Xxxxxxxxx 33688 MERIGNAC 00000-XXX Xxxxxx per quarter
for the first
12 years &
FRF 31,925
per quarter
for the first
10 years
------------------------ ---------------------------- --------------------------- --------------- ----------------
FRF 4,065 per
quarter for
the 3
quarters
commencing 23
October 1998
FRF 8,795 per
quarter for
10 years
commencing
October 1999
------------------------ ---------------------------- --------------------------- --------------- ----------------
------------------------ ---------------------------- -------------------- --------------------
COMMENCEMENT
TENANT DATE RENT REVIEW COMMENTS
------------------------ ---------------------------- -------------------- --------------------
PES France 23 June 1997 PIBOR Bank rate
N/A
23 June 1997
------------------------ ---------------------------- -------------------- --------------------
23 October 1998 N/A Building
improvements
23 July 1999 N/A
------------------------ ---------------------------- -------------------- --------------------
-68-
Part 5
Warranty Limitations
1. The liability of the Executive Warrantors in respect of the
Warranties shall be limited as provided in this Part of the schedule.
2. Save in the case of fraud the liability of the Executive Warrantors
under, arising out of, or in connection with the Warranties shall be
restricted in each of the following respects:
(a) the liability of the Executive Warrantors in respect of
the Warranties shall cease
(i) in the case of any claim other than a claim
relating to Taxation on the date falling three
months after that upon which the audited
consolidated accounts of the Company and its
subsidiary undertakings for the year ending 31st
December 2000 are received by Halliburton or, if
earlier, the second anniversary of the date of
this Agreement;
(ii) in the case of any claim relating to Taxation,
on the date which is six years after the date
hereof.
except in either case in respect of any bona fide claim
intimated in writing (together with reasonable details of
the facts and circumstances giving rise to such claim and
Halliburton's reasonable estimate of the liability of the
Executive Warrantors in respect of such claim in both cases
as are then known to Halliburton) by Halliburton to the
Executive Warrantors on or before the relevant date
provided always that legal proceedings in respect of such
claim (in the absence of settlement or discharge of such
claim) shall have commenced within six months after either
written notice is first so served on the Executive
Warrantors or, if the claim so notified is in respect of a
contingent liability, within 6 months of such liability
becoming an actual liability;
(b) no claim shall be made against any of the Executive
Warrantors under the Warranties unless and until the amount
thereof or the aggregate amount thereof exceeds
(pound)50,000 (excluding interest and costs) provided that,
in each case, the full amount of the claim may be made and
recovered and not just the excess;
(c) the aggregate liability of the Executive Warrantors for
damages for breach of the Warranties shall be limited
to(pound)10,000,000;
(d) the liability of each of the Executive Warrantors in
respect of any claim under the Warranties and pursuant to
Clause 2.1.2 and the Tax
-69-
Agreement shall not exceed the amount set opposite his name
in Part 1B of the Schedule;
(e) to the extent that the subject matter of a claim under any
of the Warranties is capable of remedy by the Executive
Warrantors Halliburton shall, at the Executive Warrantors'
request and expense, afford to the Executive Warrantors
such reasonable opportunities (for a period of no more than
30 days following the date the Executive Warrantors are
notified of the claim) as are requested by the Executive
Warrantors or any of them to remedy the subject matter of
the claim;
(f) the Executive Warrantors shall not be liable under the
Warranties:
(i) in respect of any matter or liability to the
extent that specific provision (including, for
the avoidance of doubt, provision for specific
matters contained in any deferred tax provision
and any obsolete stock provision), accrual,
reserve or note in respect thereof was made in
the Accounts or the Management Accounts;
(ii) to the extent that any provisions, accrual,
reserve or note made as aforesaid proves
insufficient only by reason of any increase in
rates of Taxation or reduction of allowances or
reliefs made with retrospective effect after the
date of this Agreement;
(iii) to the extent that such liability would not have
arisen but for any alteration or enactment made
after the date of this Agreement of any Act of
Parliament or statutory instrument or any non-UK
equivalent or any change in established
interpretation of any law following the date
hereof or any change in administrative practice
of any government, governmental department,
agency or regulatory body or alteration in
methods of applying or calculating Taxation not
in effect at the date of this Agreement;
(iv) in respect of any matter in relation to which
Halliburton shall expressly have waived in
writing its rights;
(v) to the extent that such liability would not have
arisen but for
(A) a voluntary act or failure to act,
omission or transaction on the part of
Halliburton occurring after the date
hereof where Halliburton was aware (or
could reasonably have been expected to
be aware) of the consequences thereof;
or
(B) an event occurring at the instance or
with the written consent of
Halliburton prior to the date hereof
where Halliburton was aware (or could
-70-
reasonably have been expected to be
aware) of the consequences thereof;
(vi) in respect of any liability which is contingent
only, unless and until such liability becomes an
actual liability and becomes due and payable
provided that the notification of a contingent
liability shall be sufficient notification of
the relevant liability for the purposes of
paragraph 2(a) above;
(vii) in respect of any matter disclosed in this
Agreement or fairly disclosed in the Disclosure
Letter.
3. Without prejudice to Halliburton's obligations under paragraph 5
below, Halliburton shall (to the extent practical) consult with the
Executive Warrantors and consider (to the extent practical) any
representations of the Executive Warrantors following such
consultation prior to any admission of liability, compromise or
settlement by Halliburton or any Group Company in respect of any
matter that has given or may give rise to a claim under the
Warranties.
4. Halliburton shall notify the Executive Warrantors of any matter in
respect of which a claim lies or may lie against the Executive
Warrantors under the Warranties as soon as practicable after becoming
aware of such matter and thereafter Halliburton shall keep the
Executive Warrantors reasonably and properly informed regarding such
matter PROVIDED THAT such notification shall not be a condition
precedent to the Executive Warrantors' liability in respect thereof.
5. Halliburton shall take all reasonable steps (and so far as within its
power shall procure that such steps are taken) to mitigate any loss
or liability that might give rise to a claim against the Executive
Warrantors under this Agreement and, without prejudice to the
generality of the foregoing, procure that, before pursuing any claim
hereunder against the Executive Warrantors (other than intimation
thereof under paragraphs 2(a) and 4 above) and subject to it first
being indemnified to its reasonable satisfaction by the Executive
Warrantors in relation thereto, all reasonable endeavours are used to
recover any amounts due from third parties where, in relation to any
matter that may give rise to a claim under this Agreement,
Halliburton has or may have a claim against such third parties,
PROVIDED ALWAYS that in such circumstances the requirement to
commence legal proceedings within six months (as set out at paragraph
2(a) above) shall not apply.
6. If the Executive Warrantors have made a payment (the "claim payment")
pursuant to a claim under the Warranties and Halliburton shall
receive from any source a refund or payment in respect of the matter
of which such claim was made, Halliburton shall forthwith repay to
the relevant Executive Warrantors by whom the claim payment was made
(in proportion to the amount of the claim payment made by such
Executive Warrantor) a sum corresponding to the lesser of
(a) the amount of such refund or payment; and
-71-
(b) the amount of the claim payment made by the relevant Warrantor;
in either case net of any Taxation and expenses.
7. A reference in this Part of the Schedule to "the Executive Warrantors"
shall be construed as including a reference to any of the Executive
Warrantors.
8. The Executive Warrantors shall. have no liability under the Warranties
unless Completion shall occur.
9. Where any Warranty is given in terms such that circumstances are said to be
correct in all "material" respects or in terms that compliance has been
made to a "material" extent, this shall be taken to mean material in the
context of the Group Companies.
10. Any payment by the Executive Warrantors in respect of the Warranties shall
be treated by all parties, for tax purposes, as a reduction in the value of
the consideration paid to the Executive Warrantors in respect of the sale
and purchase of their Shares under the Offer.
11. No claim shall be competent under the warranties set out in paragraph 21
(Taxation) of Part 3 of the Schedule:-
11.1 if and to the extent that the claim results in whole or in part from
any voluntary act or omission by any Group Company following
Completion (including without prejudice to the generality of the
foregoing, the making of any tax election, with or without
retroactive respect) otherwise than in the ordinary course of
business or otherwise than pursuant to a legally binding obligation
created on or before Completion;
11.2 if and to the extent that the claim results from the change in
control of the Group Companies or any of them to occur on Completion;
11.3 if and to the extent that the claim results from any change in the
nature of conduct of any trade carried on by the Group Companies or
any of them after Completion;
11.4 if and to the extent that the claim relates to a liability to
Taxation which gives rise to a corresponding tax saving by the
affected Group Company or any other Group Company provided that
nothing in this paragraph 11.4 shall be taken to prevent a claim
being made which relates to any financing costs that may be incurred,
or loss of return on capital resulting from a payment made in respect
of such liability to Taxation from the date of such payment to the
date that such corresponding tax saving is actually received;
11.5 unless and to the extent that the subject matter of the claim results
in an actual payment of cash to the Inland Revenue or other Taxation
authority which cannot be reduced or eliminated by the utilisation of
any relief, deductions or allowances ("Relief") available to a Group
-72-
Company, where such Relief was available to a Group Company at the
time of Completion or, as a result of the subject matter of the
claim, becomes available to a Group Company at any time after
Completion.
-73-
Part 6
Details of Subsisting Options
Name and address Number of Ordinary Shares
under Option
Xxxxx Xxxxx Xxxxxxx 1000
000 Xxxxx Xxxxxx Xxxxxx Xxxxxx
Xxxxx, 00000
X.X.X.
Xxxxxxx Xxxxx Xxxxxx 21,610
0 Xxxxxxxxxx Xxxxx
Xxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxxx Xxxxx Xxxxx 5000
00 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx
XXXXXXXX
Xxxxx Xxxxx 1200
Xxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxxxxxx-Xxxxxxxx, XX00 0XX
Xxxxxxxx
Xxxx Xxxxxxx Xxx 5900
00 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, XX00 0XX
Xxxxxxxx
Xxxxxx Xxxxxx Xxxxx 3900
00 Xxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx
Xxxxx 00000
X.X.X.
Xxxxxx Xxxxxxx Xxxxxxx 6900
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxxxx
-74-
Name and address Number of Ordinary Shares
under Option
Xxxxx Xxxxx Xxxxxxx 0000
Xxxxxxxxxxxx Lodge
Monymusk
Xxxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxxxx
Xxxxx Xxxxx 15,220
00 Xxxxx Xxxxxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX,
Xxxxxxxx
Xxxx Xxxxx Xxxxx 1000
Mounie Castle Lodge
Oldmeldrum
Inverurie
Grampian AB51 0ED
Scotland
Xxxxxxx Xxxxxxx 6000
Woodlands
Xxxxxx Xxxx
Xxxxxxxx XX00 0XX
Xxxxxxxx
Xxxxx Xxxxxx Xxxx 1000
00 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxx of Don
Aberdeen
Aberdeenshire AB23 8EH
Scotland
Xxxxx Xxxxxxxxx Black 512
00 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx
Xxxxxxxxxxxxx
Xxxxx Xxxxxx 512
00 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx
Xxxxxxxxxxxxx
-75-
Name and address Number of Ordinary Shares
under Option
Xxxxxx Balasteros 512
0 Xxxxxxxxx Xxxxx
Xxxxxxxxxx
Xxxxx 00000
X.X.X.
Xxxxxx Xxxxxx Xxxxx 3000
00 Xxxx Xxxxxxxx Xxxxx
Xxxxx
Xxxxxxxx XX00 0XX
Xxxx Xxxxx 1024
00 Xxxxxxxxxx
Xxx Xxxxxxxxx
Xxxxx 00000
X.X.X.
Xxxxx Xxxxxxx Xxxxx 6000
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx XX00 0XX
Xxxxxx Xxxx 0000
Xxxxxxxx Xxxxx
Xxx Xxxx
Turriff
Aberdeenshire
Xxxxxxx Xxxx Xxxxxxx 2500
0 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxxx
Xxxxx Xxxx Xxxxx 1000
00 Xxxxxxx Xxxxx
Xxxxxx xx Xxx
Xxxxxxxx
Xxxxxx Xxxxxxx 2048
0000 Xxxxx Xxxx Xxxx
Xxxxxx
Xxxxx 00000
X.X.X.
-76-
Name and address Number of Ordinary Shares
under Option
Xxx Xxxxxx 1536
0 Xxxxxxxx Xxxxx
Xxxx Xxxxxxxx
Xxxx Xxxxxxx XX00 0XX
Xxxx Xxxxxx 1536
00 Xxxxxxx Xxxxx
Xxx Xxxxxxxxx
Xxxxx 00000
X.X.X.
Xxxxx XxXxxx 1024
00 Xxxxxxxx Xxxxxxxx
Xxxxxxx
Xxxxxxxxx XX00 0XX
Xxxx XxXxxx 1024
00 Xxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxx Xxxxxxxxx Xxxxxx 1000
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxxxxxx Xxxxxx 1024
00 Xxx Xxxxxx
Xxxxxxxxx Xxxxxxx, 00000 XXX
Xxxxxx
Xxxxxxx. Xxxxxxxx 1024
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx
Xxxxxxxx. Xxxxxxx 1024
0000 Xxxxxx
Xx Xxxxx
Xxxxx 00000
X.X.X.
Xxx X'Xxxxx 1024
Xxxxxxx, Xxxxx Xxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
-77-
Name and address Number of Ordinary Shares
under Option
Xxxx Xxxx Xxxxx 1000
Vygeboom
Hillheap of Xxxxx
Xxxxxxxx XX00 0XX
Xxxxxx Xxxxxxx 1536
00 Xxxxxxxxxx
Xxxxxx Xxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxxx Xxxx 3000
00 Xxxxxxxx Xxxxx
Xxxxxx xx Xxx
Xxxxxxxx
Xxxxxxx Xxxx Xxxxx 15,600
00 Xxxxx Xxxx Xxxxx
Xxx Xxxxxxxxx
Xxxxx 00000
X.X.X.
Xxxxx Xxxxxxx Xxxxx 10,000
Xxxxxxxx Xxxxxxx
Xxxx Xxxxxx
Xxxxxxxx XX00 0XX
Xxxxxx Xxxx Xxxxxxx 1000
0 Xxxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxx Xxxxxx Xxxxxx 500
00 Xxxxxx Xxxxxx
Xxxxxx xx Xxx
Xxxxxxxx XX0 0XX
Xxx Xxxx 5000
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx XX00 0XX
-78-
Part 7
Details of Shareholders as at the date hereof
Name and Address Number of shares held
3i Group plc 50,320
00 Xxxxxxxx Xxxx
Xxxxxx XX0 0XX
Xxxxx Xxxxxxxx 1,260
0 Xxxxxxx Xxxxx
Xxxxxxxx
Xxxxx
Xxxxxxx Xxxxxxxxx 0000
Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx 13,150
00000 Xxxx Xxxxxxx
Xxxxxxxx
Xxxxx 00000
X.X.X.
Alison Xxxxxx Xxxxx 160
00 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
XXXXXXXX
Xxxx Xxxxxxxxx Black 160
00 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
XXXXXXXX
Xxxxxx Xxxxxx Xxxxx 60
00 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
XXXXXXXX
Xxxxx Xxxxxxxxx Black 170
00 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
XXXXXXXX
-79-
Name and Address Number of shares held
Xxxxx Xxxxx 5,810
Xxxxxxxx Xx Xxxxxxxxx 00,
00000 Xxxxxxxxxxxx Xxxxxxx
XXXXX
Xxxxx Xxxxx Xxxxxxx 18,780
000 Xxxxx Xxxxxx Xxxxxx Xxxxxx
Xxxxx 00000
X.X.X.
Xxxxxxx Xxxxx Xxxxxx 2,290
0 Xxxxxxxxxx Xxxxx
Xxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxxx Xxxxx Xxxxxx 3,170
0 Xxxxxxxxxx Xxxxx
Xxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxx Xxxxx Xxxxxx 1,180
0 Xxxxxxxxxx Xxxxx
Xxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxx Xxxxxxxxx Xxxxxx 1,180
0 Xxxxxxxxxx Xxxxx
Xxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxx Xxxxx 520
00 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx, XXXXXXXX
Xxxx Xxxxx Xxxxx 520
00 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx
XXXXXXXX
-80-
Name and Address Number of shares held
Xxxxxx Xxxxx 520
00 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx
XXXXXXXX
Xxxxxxx Xxxxx Xxxxx 1,040
00 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx
XXXXXXXX
Xxxxxxxxx Xxxxxxxxx 6,970
0 Xxx Xx Xx Xxxxxxxxx
00000 Xxxxxxx
Xxxxxx
Xxxxx Xxxxx 2,500
Xxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxxxxxx-Xxxxxxxx XX00 0XX
Xxxxxxxx
June Xxxxxx Xxxxx 2700
Xxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxxxxxx-Xxxxxxxx XX00 0XX
Xxxxxxxx
Xxxxxx Xxxxxx Xxxxx 2,400
Xxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxxxxxx-Xxxxxxxx XX00 0XX
Xxxxxxxx
Xxxxxxx Xxxx Xxxxx 2,400
Xxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxxxxxx-Xxxxxxxx XX00 0XX
Xxxxxxxx
-81-
Name and Address Number of shares held
Xxxxxxx X'Xxxx Xxxxx 3,760
00000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx
Xxxxx 00000
X.X.X.
Xxxx Day 000
Xxxxxxxxx
Xxxx Xxxx
Xxxxxxx
Xxxxxxxx
Xxxx Xxxxxxx Xxx 1,170
00 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx XX00 0XX
Xxxxxxxx
Xxxxxx Xxx Xxxxxxx 3,760
00000 Xxxxxxx
Xxxxxx
Xxxxx 00000
X.X.X.
Halliburton Holdings Limited 334,360
000 Xxx Xxxxxxxx
Xxxxxxxxx
Xxxxxx XX00 0XX
Xxxxxxx
Xxxxxxxx Xxxxxxx Xxxxx 300,000
Xxxxxxxxx Xxxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx
Xxxxxxxx
Xxxxxx Xxxxxx Xxxxxxxxxx 28,000
00 Xxxxxxx Xxx
Xxxxxxxxx
Xxxxxxx Xxxxxxxxx 0000
Xxxxxxxxx
Xxxx-Xxxx Xxxxx 1,160
5 Lotissement Les Magnolias 64320 - Sendets France
-82-
Name and Address Number of shares held
Xxxxxx Xxxxxx Xxxxx 37,570
00 Xxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx
Xxxxx 00000
X.X.X.
PES Trustees Limited 141,130
00 Xxxxx Xxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxxxx
Xxxxxxx Xxxx Xxxx 11,460
00 Xxxxxx Xxxxxxx
Xxxxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxxxx
Xxxxxx Xxxxxxx Xxxxxxx 1,810
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxxxx
Xxxxxx Xxxxxxxx Xxxxxxx 300
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxxxx
Nicola Xxxx Xxxxxxx 300
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxxxx
Xxxx Xxxxx Xxxxx 100,750
00 Xxxxx Xxxx Xxxxx
Xxx Xxxxxxxxx
Xxxxx 00000
X.X.X.
-83-
Name and Address Number of shares held
Xxxxx Xxxxx Xxxxxxx 1,740
Abersnithack Lodge
Monymusk
Xxxxxxxxx Xxxxxxxxxxxxx
XX00 0XX
Xxxxxxxx
Xxxxx Xxxxx Xxxxxxx 1,600
Abersnithack Lodge
Monymusk
Xxxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxxxx
Xxxx Xxxxxxxxx Xxxxxxx 1,650
Abersnithack Lodge
Monymusk
Xxxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxxxx
Stuart Xxxxxxx Xxxxxxx 1,600
Abersnithack Lodge
Monymusk
Xxxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxxxx
Xxxx Xxxxx 1,820
00 Xxxxx Xxxxxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Scotland
Xxxx Xxxxxxxxx Xxxxx 1,820
00 Xxxxx Xxxxxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Scotland
-84-
Name and Address Number of shares held
Xxxxx Xxxxx 1,310
00 Xxxxx Xxxxxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Scotland
Xxxx Xxxxx Xxxxx 7,650
Mounie Xxxxxx Xxxxx
Xxxxxxxxxx
Xxxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxxxx
Grant Xxxxxxxxx Xxxxx 1,820
00 Xxxxx Xxxxxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Scotland
Xxxxxxx Xxxxxxx Xxxxx 1,820
00 Xxxxx Xxxxxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Scotland
Xxxxxxx Xxxxxx Tips 7,510
0000 Xxxxxxx Xxxx
Xxxxxx
Xxxxx 00000
X.X.X.
Xxxxxxx Xxxxxxx 000
Xxxxxxxxx
Xxxxxx Xxxx
Xxxxxxxx XX00 0X0
Xxxxxxxx
Xxxxx Xxxxxx Xxxx 1,380
00 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxx of Xxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Scotland
-85-
Name and Address Number of shares held
Xxxxxx Xxxx 1,380
00 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxx of Xxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxxxx
Xxxxx Xxxx 1,380
00 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxx of Xxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Xxxxxxxx
Xxxxxxxx Xxxx 1,380
00 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxx of Don
Aberdeen
Aberdeenshire AB23 8EH
Scotland
Xxxxxxxx Xxxxxxxxx Xxxxxxxxx 131,620
Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Scotland
Xxxx Xxxxxxxxx 15,290
Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxxxxx XX00 0XX
Scotland
_________
1,266,540
-86-
