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EXHIBIT 10.15
SHARE PURCHASE AGREEMENT
Agreement entered into as of this 18th day of October 1996, by and
between (1) Abbot Group plc a public company formed and existing under the laws
of England with registered number 623285 ("Abbot"), (2) Xxxxxx Industries, Inc
a company formed and existing under the laws of the State of Delaware, USA (the
"Seller") and (3) KCA Drilling Group Limited, a company formed and existing
under the laws of England with registered number 1059871 ("the Buyer"). Abbot,
the Seller and the Buyer are referred to collectively herein as the "Parties".
The Seller owns all of the issued shares of Nabors Europe, Ltd., a company
formed and existing under the laws of England with registered number 1189464
(the "Company").
This Agreement contemplates a transaction in which the Buyer will purchase from
the Seller, and the Seller will sell to the Buyer, all of the issued shares of
the Company in return for cash and the issue of warrants to subscribe for
shares in Abbot upon and subject to the terms of this Agreement.
Now, therefore, in consideration of the premises and the mutual promises herein
made, and in consideration of the representations, warranties, and covenants
herein contained, the Parties agree as follows.
1. DEFINITIONS
1.1 In this Agreement the following words and expressions shall unless the
context otherwise expressly requires have the meanings set out opposite
them:-
"Abbot" has the meaning set forth in the preface
above.
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"Abbot Circular" the circular to be issued to the
shareholders of Abbot on the date of this
Agreement in the approved terms.
"the Abbot Group" means Abbot and all its subsidiaries and
subsidiary undertakings from time to time.
"Accounts Date" means 30 September 1995.
"Act" means the Companies Xxx 0000.
"Affiliate" means in relation to any body corporate, any
subsidiary of such body corporate, any
holding company of such body corporate and
any subsidiary of any such holding company
as such terms are defined in the Act.
"Ancillary Documents" means the documents to be executed pursuant
to or in connection with this Agreement.
"Applicable Rate" means the National Westminster Bank plc base
rate from time to time.
"Britannia Bonus" means any of the following sums which may
become payable by the Independent Operator
to NDESL or any Relevant Party pursuant to
certain provisions of the Britannia
Contract, namely:
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(i) pursuant to Form 12 (Drilling
Facilities Capex Target and Profit)
of Exhibit 4C to the Britannia
Contract ("the Drilling Facilities
Profit"); and
(ii) pursuant to Form 12(a) of Exhibit 4C
to the Britannia Contract ("the
Topsides Alliance Incentive").
"Britannia Bonus Account means the monthly sum of Pound Sterling
Payment" 6338 payable by the Independent Operator
to NDESL or any Relevant Party pursuant to
paragraph 1.0 of Form 12 (Drilling
Facilities Capex Target & Profit) of Exhibit
4C to the Britannia Contract.
"Britannia Contract" means contract BRT1-XA1 for detail design of
drilling facilities and drilling operations
and maintenance for the Britannia platform
between NDESL and Chevron U.K. Limited dated
1st November 1994.
"Buyer" means KCA Drilling Group Limited a company
formed and existing under the laws of
England with registered number 1059871.
"Business Day" means any day other than a Saturday or a
Sunday on which clearing
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banks in the City of London are open for
business.
"Cash Portion of the means the aggregate of (i) L.20,000,000
Purchase Price" (ii) US$2,270,000, (iii) Pound Sterling
294,815 and (iv) the amount in Sterling
equal to the Consolidated Working Capital to
be calculated as provided in Section 2.6 and
(v) an amount in the currency in which it
was paid equal to the Permitted Expenditure.
"Closing" has the meaning set forth in Section 2.3
below.
"Closing Date" has the meaning set forth in Section 2.3
below.
"Company" has the meaning set forth in the preface
above further details of which are set out
in Part I of Schedule 1.
"Company Shares" means all of the issued shares of the
Company and "Company Share" means any one of
them.
"Conditions" means the conditions set out in Section 7.
"Confidential Information" means any information concerning the
businesses and affairs of the Target Group
that is not already generally available to
the public otherwise than as the result of a
breach of an obligation of
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confidentiality owed to the Target Group,
including, without limitation, information
concerning: the operation of any process;
trade secrets; the manufacture, design or
development of any products; the marketing
of any products or services (including
customer lists, financial information, sales
statistics, survey reports and market share
data); the selection and purchase of any
component part or equipment existing in
whatever form including but not limited to
engineering and chemical data
specifications, formulae, drawings, manuals,
component lists, instructions, designs and
circuit diagrams.
"Consolidated Working means the adjusted current net assets of the
Capital" Target Group as at the Closing Date
determined in accordance with the accounting
principles and practices described in
Schedule 2, plus an amount equal to the
Redundancy Adjustment.
"Consolidated Working means the statement of Consolidated Working
Capital Statement" Capital to be prepared pursuant to Section
2.6 and in accordance with the accounting
principles and practices described in
Schedule 2.
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"Contracts" means those contracts to which the Company
or any of the Subsidiaries is a party which
are listed in (and as amended by the
amendments referred to in) Schedule 3.
"Disclosure Letter" means the disclosure letter delivered by the
Seller to the Buyer on the date hereof in
the approved terms.
"Drill Pipe" means the drill pipe details of which are
attached as Schedule 10, Part 1.
"Encumbrance" means any encumbrance or security interest
of any kind whatsoever including (without
limitation) any mortgage, pledge, lien,
charge, hypothecation, right to acquire,
right of pre-emption, option, conversion
right, third party right or interest, right
of set off or counterclaim, trust
arrangement or retention of title agreement
or similar arrangement.
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"Estimated Cash Portion means the aggregate of (i) Pound Sterling
of the Purchase Price" 20,000,000, (ii) US $2,270,000, (iii) Pound
Sterling 294,815 and (iv) the amount in
Sterling equal to the estimated amount of
the Consolidated Working Capital to be
calculated as provided in Sections 2.2.2 and
2.6 and (v) an amount in the currency in
which it was paid equal to the amount of any
Permitted Expenditure.
"Estimated Bonus" means the amount which the Seller estimates
as at the date of this Agreement will be
payable by way of bonus pursuant to the
Britannia Contract being Pound Sterling
985,566 by way of Drilling Facilities Profit
and Pound Sterling 601,537 by way of
Topsides Alliance Incentive.
"Excluded Assets" means (i) all of the residential property
owned by the Company or its Subsidiaries,
and (ii) all of the right, title and
interest of the Company and its Subsidiaries
to the assets owned or leased by the branch
of NDESL operating in the United States,
(iii) those tenders and bids and (iv) the
99,900 shares of Pound Sterling 1 each in
Paloak Limited all as identified in Schedule
5 together with all liabilities of the
Company and its Subsidiaries associated with
items (i) to (v).
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"Financial Statements" means the audited balance sheets of the
Company and each Subsidiary and the audited
consolidated balance sheets of the Target
Group as at, and the audited profit and loss
accounts and cash flow statement of the
Company and each Subsidiary and the audited
consolidated profit and loss accounts of the
Target Group for the financial periods ended
on, 30 September 1994 and the Accounts Date
together with the notes and directors'
report and auditors' report and all other
documents or statements annexed thereto or
incorporated therein.
"GAAP" means United Kingdom generally accepted
accounting principles as in effect from time
to time.
"ICTA" means the Income and Corporation Xxxxx Xxx
0000.
"Independent Operator" means Chevron U.K. Limited of 0 Xxxxxxx
Xxxxxx, Xxxxxx X0X OAH or any assignee or
successor thereto as party to the Britannia
Contract.
"Instrumentation" means the instrumentation details of which
are attached as Schedule 10, Part 2.
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"Intellectual Property" means all the intellectual property in any
part of the world used, or required to be
used by the Company or any Subsidiary in, or
in connection with, its business including
but not limited to trade marks, service
marks, patents, utility models, registered
design rights, applications for any of the
foregoing, unregistered trade marks and
service marks, trade and business names
including rights in any get-up or trade
dress, copyright (including rights in
computer software), unregistered design
rights and inventions.
"Knowledge" means the actual knowledge of Xx X.
Xxxxxxxx, Xx X. Xxxxx, Xx X. Xxxxxx, Xx X.
Xxxxx, Xx X. Xxxxx and Xx X. XxXxxx and any
other matters of which they ought reasonably
in the due performance of their respective
duties in relation to the Target Group to be
aware.
"Liability for Taxation" has the meaning set forth in the Tax
Covenant.
"Licence" means a licence, permit, certificate,
consent, approval, registration or
authorisation.
"London Stock Exchange" means the London Stock Exchange Limited.
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"Most Recent Financial means the unaudited balance sheet of the
Statements" Company and each Subsidiary and the
unaudited consolidated balance sheet of the
Target Group as at, and the unaudited profit
and loss account of the Company and each
Subsidiary and the unaudited consolidated
profit and loss account of the Target Group
for, the financial period ended on the Most
Recent Month End.
"Most Recent Month End" means 31 August 1996.
"NDESL" means Xxxxxx Drilling and Energy Services UK
Limited registered in Scotland with company
number 125584 further details of which are
set out in Part 2 of Schedule 1.
"Notional Tax Rate" the statutory rate of corporation tax
applicable to the tax period in which the
Britannia Bonus or any part of it is
included in taxable income of NDESL or any
Relevant Party.
"Ordinary Course of means the ordinary course of business
Business" consistent with past custom and practice.
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"Parties" has the meaning set forth in the preface
above and "Party" shall mean either one of
them.
"Permitted Expenditure" means any capital expenditure made in
accordance with the terms of Section 5.1.
"Person" includes an individual, a partnership, body
corporate, a trust, a joint venture, an
unincorporated association or a governmental
entity (or any department, agency, or
political subdivision thereof) and includes
a reference to that person's legal personal
representatives and successors.
"Properties" means the properties details of which are
set out in Schedule 6 and references to a
"Property" include a reference to each of
the individual Properties.
"Purchase Price" has the meaning set forth in Section 2.2
below.
"Redundancy Adjustment" means a cash sum up to a maximum of
Pound Sterling 150,000 equal to the
aggregate amount paid by the Company or any
of the Subsidiaries in the period from 24
May 1996 until the date of this Agreement in
connection with the termination of
employment of the individuals listed in Part
2 of Schedule 4 by reason of
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redundancy (including any legal costs and
expenses associated with any claims made in
connection with such termination of
employment).
"Registered Intellectual means any trade marks, service marks or
Property" patents which have been registered at a
public registry.
"Relevant Party" means any person to whom any of NDESL's
rights and/or obligations under Britannia
Contract are assigned or any successor of
NDESL as party thereto.
"Relevant Services" means the services referred to in Section
11.1.1(ii).
"Resolutions" means the shareholders' resolutions in the
approved terms set out in the notice of
extraordinary meeting attached to the Abbot
Circular.
"Retained Group" means the Seller and any subsidiary or
subsidiary undertaking of the Seller from
time to time other than any member of the
Target Group.
"RTPA" means the Restrictive Trade Practices Act
1976 and 1977.
"Seller" has the meaning set forth in the preface
above.
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"Subsidiary" means either of NDESL and TWSL and
"Subsidiaries" means both of them.
"subsidiary and have the meanings given to them respectively
subsidiary undertaking" by sections 736 and 258 of the Act.
"Target Group" means the Company and each of the
Subsidiaries.
"Taxation" has the meaning given in the Tax Covenant.
"Taxation Authority" has the meaning given in the Tax Covenant.
"Tax Covenant" means the tax covenant contained in Schedule
7.
"Tax Refund" means any tax refund (including any interest
or repayment supplement thereon) to the
extent that such refund relates to the
period before the Closing Date and for the
avoidance of doubt including any tax refund
received in connection with the litigation
referred to in Section 6.2.
"TCGA" means the Taxation of Chargeable Gains Xxx
0000.
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"TWSL" means Thistle Well Services Limited
registered in Scotland with company number
139344 further details of which are set out
in Part 3 of Schedule 1.
"VAT" means, in the United Kingdom, value added
tax.
"VATA" means the Value Added Tax Xxx 0000.
"Warrant" means the warrant to be issued by Abbot to
the Seller as of the Closing Date in the
approved terms.
"Warranties" means the representations, warranties and
undertakings contained in Sections 3.1 and 4
and references to a "Warranty" shall be
construed accordingly.
1.2 A document expressed to be "in the approved terms" shall mean any
document which has been signed or initialled for the purposes of
identification by or on behalf of the Seller and the Buyer.
1.3 In this Agreement, unless the context otherwise requires, reference to:
1.3.1 a Section or Schedule is a reference to a Section of or Schedule
to this Agreement;
1.3.2 a statutory provision includes a reference to that provision as
modified, replaced, amended and/or re-enacted from time to time
(whether before or after the date of this Agreement) and any
prior or subsequent subordinate legislation made under it;
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1.3.3 "holding company" and "body corporate" have the respective
meanings attributed to them in sections 736 and 740 of the Act;
1.3.4 a "company" has the meaning set out in section 735 of the Act;
and
1.3.5 a "connected person" is a reference to a person connected with
another within the meaning of section 839 of ICTA.
1.4 The Schedules form part of this Agreement and shall be interpreted or
construed as though they were set out in this Agreement.
1.5 The headings to the Sections, Schedules and paragraphs of the Schedules
are for convenience only and shall not affect the interpretation of this
Agreement.
2. PURCHASE AND SALE OF COMPANY SHARES.
2.1 BASIC TRANSACTION. The Seller agrees to sell to the Buyer and the Buyer
agrees to purchase the Company Shares free from any Encumbrances with
full title guarantee (provided however that for the purposes of
interpreting the words "full title guarantee" the provisions of sections
6(1) and 6(2) of the Law of Property (Miscellaneous Provisions) Xxx 0000
("LPA") shall be deemed not to apply and, other than with regard to
subsequent transfers of the Company Shares by the Buyer or an Affiliate
of the Buyer to another Affiliate of the Buyer, the provisions of
section 7 of the LPA shall also be deemed not to apply.
2.2 PURCHASE PRICE. In consideration of the transfer to the Buyer of the
Company Shares, (a) the Buyer agrees to pay to the Seller (i) twenty
million pounds sterling (Pound Sterling 20,000,000), (ii) two million
two hundred and seventy thousand U.S. Dollars (US$2,270,000), (iii)
Pound Sterling 294,815 and (iv) the amount in Sterling equal to the
Consolidated Working Capital as of the
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Closing Date and (v) an amount in the currency in which it was paid
equal to the amount of any Permitted Expenditure and (b) Abbot agrees at
the Closing Date to issue to the Seller the Warrant (together the
"Purchase Price"). The Purchase Price shall be satisfied as follows:
2.2.1 At Closing, the Buyer shall pay to the Seller the Estimated Cash
Portion of the Purchase Price by telegraphic transfer of the
Sterling component and the US Dollar component of the Estimated
Cash Portion of the Purchase Price in immediately available funds
into the following account of the Seller: account name Hong Kong
Bank NY Foreign Exchange; account number 00000000; at Midland
Bank plc, Swift code MIDL GB22, sort code 40-53-88;
2.2.2 At least ten calendar days prior to Closing, the Seller shall
prepare and deliver to the Buyer a statement setting forth (i) an
estimate of the amount of the Consolidated Working Capital and
the amount of any Permitted Expenditure, and (ii) a calculation
of the Estimated Cash Portion of the Purchase Price based upon
such estimate. In the event that the Buyer does not agree with
the Seller's computation, the Buyer shall promptly notify the
Seller of the same, the Seller shall promptly provide such
additional information as the Buyer shall reasonably request to
support such computation, and the Parties shall negotiate in good
faith and attempt to agree, at least three Business Days prior to
the Closing Date, upon an acceptable estimate of such amounts.
Failing any such mutual agreement, the Estimated Cash Portion of
the Purchase Price delivered at Closing shall be Pound Sterling
23,295,000 plus US$2,270,000.
2.2.3 At Closing, Abbot will issue the Warrant. Abbot undertakes that
there shall be no issuance of any equity securities,
subdivisions, consolidations, exchange of shares, rights issues,
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reductions of capital or the like of the issued share capital of
Abbot after the date of this Agreement and on or before the
Closing Date save for the placing and open offer described in the
Abbot Circular.
2.2.4 All stamp duty payable on the purchase of the Company Shares
shall be borne by the Buyer.
2.3 THE CLOSING. The closing of the transactions contemplated by this
Agreement ("CLOSING") shall take place at the offices of Xxxxxxx Xxxxxx,
00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0, Xxxxxxx 3 Business Days after the
Conditions have been satisfied or waived (in accordance with Section 7)
or such other date as the Parties may mutually determine (the "CLOSING
DATE").
2.4 DELIVERIES AT THE CLOSING. At Closing:
2.4.1 the Seller will deliver to the Buyer:
2.4.1.1 duly executed transfers of all of the Company Shares in
favour of the Buyer together with the relative share
certificates;
2.4.1.2 duly executed transfers in favour of the Company of
such shares in the Subsidiaries as are registered in
the names of nominee holders, together with the
relative share certificates;
2.4.1.3 a copy, certified to be a true copy by a director or
secretary of the Seller, of a resolution of the
Seller's board of directors (or an authorised committee
of that board) authorising the execution and completion
of this
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Agreement and the execution of the Ancillary Documents
to which it is a party;
2.4.1.4 duly executed power(s) of attorney in favour of the
Buyer, or the Company in relation to the Subsidiaries,
in the approved terms to enable the Buyer and the
Company pending registration as the holder of the
Company Shares or the shares in the Subsidiaries (as
the case may be) to exercise all voting and other
rights attaching to the Company Shares and the shares
in the Subsidiaries;
2.4.1.5 the title deeds and documents relating to each of the
Properties as listed on Schedule 6 (which obligation
shall be deemed satisfied by making them available at
the offices of Xxxxx & Williamsons at 0 Xxxxx Xxx,
Xxxxxxxx, Xxxxxxxxxxxxx XX0 0XX);
2.4.1.6 a document from Xxxxxxx Mutual Life Insurance Company
(and any Affiliates) ("Xxxxxxx") evidencing the release
and discharge of all charges over the shares and assets
of the Target Group and all guarantees given to Xxxxxxx
by the Target Group together with the appropriate form
under the Act evidencing the release and discharge of a
charge dated 26 August 1992 in favour of the Royal Bank
of Scotland plc over the assets of TWSL;
2.4.1.7 a deed of acknowledgement from the Seller in the
approved terms that all inter-group indebtedness
between the Retained Group on the one hand and the
Target Group on the other has been discharged in full;
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2.4.1.8 a legal opinion from Xxxxx & XxXxxxxx, New York in
substantially the approved terms relating to the
Seller;
2.4.1.9 the resignation of Coopers & Xxxxxxx as the auditors of
each member of the Target Group, such resignation to
contain a statement in accordance with Section 394 of
the Act that there are no circumstances connected with
their ceasing to hold office which they consider should
be brought to the attention of the members or creditors
of the relevant member of the Target Group;
2.4.1.10 all the statutory books (duly written up to date) of
the Company and the Subsidiaries and their respective
certificates of incorporation and on change of name (if
any) and common seals;
2.4.1.11 letters of resignation in the approved terms from each
of the directors and the secretary of the Company and
the directors and secretary of each of the
Subsidiaries, such resignations to take effect from
close of the meeting of the board of directors of the
Company referred to in Section 2.4.4 and letters of
resignation in the approved terms from those of the
Excluded Employees who have accepted employment with
the Retained Group;
2.4.1.12 the latest inspection reports in respect of the Drill
Pipe;
2.4.1.13 the Buyer will deliver to the Seller the Estimated Cash
Portion of the Purchase Price in accordance with the
payment instructions specified in Section 2.2.1;
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2.4.1.14 the Buyer will deliver to the Seller a legal opinion
from a reputable firm of lawyers admitted in the
practice of the Isle of Man in substantially the
approved terms.
2.4.2 Abbot will issue to the Seller the Warrant;
2.4.3 the Seller shall cause the directors of the Company to hold a
meeting of the board of directors of the Company at which they
shall pass resolutions in the approved terms (inter alia) to:-
2.4.3.1 approve the registration of the Buyer as a member of
the Company subject only to the production of duly
stamped transfers in respect of the Company Shares;
2.4.3.2 accept the resignations referred to in Section 2.4.1.11
and appoint such persons as the Buyer may nominate as
directors and secretary of the Company;
2.4.3.3 revoke all authorities to the bankers of the Company
relating to bank accounts and give authority to such
persons as the Buyer may nominate to operate the same.
2.4.4 the Seller shall procure that a board meeting of each of the
Subsidiaries is held at which the directors:
2.4.4.1 approve the registration of the Company as a member of
its Subsidiaries in respect of, and subject only to the
production of duly stamped transfers of, the shares
referred to in Section 2.4.1.2;
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2.4.4.2 accept the resignations referred to in Section 2.4.1.12
in respect of the relevant Subsidiary and appoint the
persons nominated by the Buyer as directors and
secretary of the Subsidiary;
2.4.4.3 revoke all existing authorities to bankers relating to
the operation of the Subsidiary's bank accounts and
give authority in favour of the person nominated by the
Buyer to operate such account.
2.5 If Closing does not proceed on the date set for Closing in Section 2.3
(or on the date to which Closing is postponed pursuant to Section 2.5.2)
because any Party fails to discharge fully any of its obligations under
this Section 2 or under Sections 5.5 to 5.8, the Buyer in the case of
failure by the Seller or the Seller in the case of failure by the Buyer
or Abbot may, without prejudice to any other remedies available except
as such remedies are limited in Section 5.4, by notice to the other
elect to:
2.5.1 proceed to Closing so far as practicable; or
2.5.2 postpone Closing to such date as the non-defaulting Party
specifies being not later than 21 November 1996 in which event
the provisions of this Agreement apply as if that other date is
the date set for Closing in Section 2.3; or
2.5.3 terminate this Agreement in which event the provisions of Section
9.2 shall apply.
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2.6 POST-CLOSING ADJUSTMENT.
2.6.1 On or before the date that is 125 calendar days following the
Closing Date (or the next Business Day if such date is not a
Business Day), the Buyer will prepare and deliver to the Seller a
statement ("the Consolidated Working Capital Statement") showing
the actual amount of the Consolidated Working Capital together
with the amount of any Permitted Expenditure. The Seller shall
use all reasonable endeavours to procure that Coopers & Xxxxxxx
shall grant to the Buyer access to their working papers for the
Seller and for the Retained Group to the extent reasonably
required to enable the Buyer to prepare the Consolidated Working
Capital Statement and the Seller shall promptly make available to
the Buyer all information which is in the possession of the
Retained Group which may reasonably be required to prepare the
Consolidated Working Capital Statement.
2.6.2 The Buyer shall make available to the Seller all information
which shall be in the possession of the Buyer or any member of
the Target Group and shall use all reasonable endeavours to
procure that the accountants acting on behalf of the Buyer in
connection with the preparation of the Working Capital Statement
shall grant to the Seller access to their working papers in
respect of the Working Capital Statement to the extent reasonably
required by the Seller for the Seller to verify whether the
Consolidated Working Capital Statement is correct. Within 30
calendar days following delivery of the Consolidated Working
Capital Statement to the Seller, the Seller shall notify the
Buyer whether it agrees with the Consolidated Working Capital
Statement. If the Seller disagrees with the Consolidated Working
Capital Statement, the Seller shall provide the Buyer with a
written notice specifying the basis for the Seller's
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disagreement, and the Seller and the Buyer shall work in good
faith to reach agreement on the amount of the Consolidated
Working Capital. In the absence of a written notice from the
Seller to the Buyer, specifying the basis for the Seller's
disagreement, the Seller shall be deemed to have agreed the
amount of the Consolidated Working Capital contained in the
Consolidated Working Capital Statement delivered to it pursuant
to Section 2.6.1.
2.6.3 If the Buyer and the Seller fail to reach agreement on the amount
of the Consolidated Working Capital within 30 calendar days
following the date of written notice given in accordance with
clause 2.6.2, either the Seller or the Buyer may cause the matter
to be referred to one of the "Big Six" independent public
accounting firms as the Seller and the Buyer may mutually agree.
In default of agreement within 3 Business Days of one party
nominating a firm, any Party shall be entitled to request the
President of the Institute of Chartered Accountants in England
and Wales to select such independent accounting firm (other than
Coopers & Xxxxxxx and Xxxxxx Xxxxxxxx). The fees and
disbursements of such accountants shall be borne equally by the
Buyer and the Seller. Such accountants shall examine the records
of the Seller, the Target Group and the Buyer, and, no later than
90 calendar days following the date upon which such matter shall
be referred to such accountants, such accountants shall determine
the amount of the Consolidated Working Capital and the amount of
any Permitted Expenditure. Any such determination (i) shall
(except as to any manifest error) be final and binding on the
Parties, and (ii) may be enforced by appropriate judicial or
other proceedings.
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2.6.4 The Cash Portion of the Purchase Price shall reflect any such
determination by such accountants. If the Cash Portion of the
Purchase Price (whether by agreement of the Parties or after
giving effect to any such determination by such accountants)
exceeds the Estimated Cash Portion of the Purchase Price paid at
the Closing, the Buyer shall pay to the Seller the amount of such
excess plus interest thereon from the Closing Date until paid at
the Applicable Rate. If the Cash Portion of the Purchase Price
(whether by agreement of the Parties or after giving effect to
any such determination by such accountants) is less than the
Estimated Cash Portion of the Purchase Price paid at the Closing,
the Seller shall pay to the Buyer the amount of such shortfall
plus interest thereon from the Closing Date until paid at the
Applicable Rate. Such payment shall be made, in either case,
within 15 calendar days following the agreement of the Parties or
the final determination of the Cash Portion of the Purchase Price
by such accountants. All of such interest shall be computed on
the basis of the actual number of days elapsed in a year of 365
or 366 days, as the case may be.
3. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION.
3.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents and
warrants to the Buyer that the statements contained in this Section 3.1
are true and accurate as of the date of this Agreement except as
fairly set forth in the Disclosure Letter.
3.1.1 ORGANIZATION OF SELLER. The Seller is duly organized and validly
existing under the laws of the jurisdiction of its incorporation.
3.1.2 AUTHORISATION OF TRANSACTION. The Seller has full power and
authority to execute and deliver this Agreement and each of the
Ancillary Documents to which it is a party and to perform its
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obligations thereunder. This Agreement and each of the Ancillary
Documents to which it is a party constitute the valid and legally
binding obligation of the Seller, enforceable in accordance with
their respective terms and conditions. The Seller need not give
any notice to, make any filing with, or obtain any authorisation,
consent, or approval of any government or governmental agency in
order to consummate the transactions contemplated by this
Agreement.
3.1.3 NONCONTRAVENTION. Neither the execution and the delivery of the
Agreement or the Ancillary Documents to which it is a party, nor
the consummation of the transactions contemplated thereby, will
(i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which the Seller is subject or (ii) violate any provision of
Seller's charter or bylaws or (iii) conflict with, result in a
breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement,
contract, lease, license, instrument, or other arrangement to
which the Seller is a party or by which it is bound or to which
any of its assets is subject.
3.1.4 BROKERS' FEES. The Seller has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for
which the Buyer could become liable or obligated.
3.2 REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and
warrants to the Seller that the statements contained in this Section 3.2
are true and accurate as of the date of this Agreement.
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3.2.1 ORGANIZATION OF THE BUYER. The Buyer is a corporation duly
incorporated under English law.
3.2.2 AUTHORISATION OF TRANSACTION. The Buyer has full power and
authority to execute and deliver this Agreement and each of the
Ancillary Documents to which it is a party and to perform its
obligations thereunder. This Agreement and each of the Ancillary
Documents to which it is a party constitutes the valid and
legally binding obligation of the Buyer, enforceable in
accordance with its terms and conditions. The Buyer need not give
any notice to, make any filing with, or obtain any authorisation,
consent, or approval of any government or governmental agency in
order to consummate the transactions contemplated by this
Agreement.
3.2.3 NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement or the Ancillary Documents to which it is a party, nor
the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which the Buyer is subject or (ii) violate any provision of its
Memorandum or Articles of Association or (iii) conflict with,
result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other
arrangement to which the Buyer is a party or by which it is bound
or to which any of its assets is subject.
3.2.4 BROKERS' FEES. The Buyer has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with
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respect to the transactions contemplated by this Agreement for
which the Seller could become liable or obligated.
3.3 REPRESENTATIONS AND WARRANTIES OF ABBOT. Abbot represents and warrants
to the Seller that the statements contained in this Section 3.3 are true
and accurate as of the date of this Agreement.
3.3.1 ORGANIZATION OF ABBOT. Abbot is a corporation duly incorporated
under English law.
3.3.2 AUTHORISATION OF TRANSACTION. Abbot has full power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder and, without limitation, to issue the
Warrant to the Seller on the Closing Date and to comply with its
obligations thereunder. This Agreement and each of the Ancillary
Documents to which it is a party constitutes the valid and
legally binding obligation of Abbot, enforceable in accordance
with its terms and conditions. Abbot need not give any notice to,
make any filing with, or obtain any authorisation, consent, or
approval of any other person in order to consummate the
transactions contemplated by this Agreement.
3.3.3 NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement or the Ancillary Documents to which it is a party, nor
the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which Abbot is subject or (ii) violate any provision of its
Memorandum or Articles of Association or (iii) conflict with,
result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any
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agreement, contract, lease, license, instrument, or other
arrangement to which Abbot is a party or by which it is bound or
to which any of its assets is subject.
3.3.4 BROKERS' FEES. Abbot has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect
to the transactions contemplated by this Agreement for which the
Seller could become liable or obligated.
3.3.5 CAPITALIZATION. The authorised share capital of Abbot is
Pound Sterling 31,500,000 comprising 185,000,000 ordinary shares
of 15 xxxxx each and 3,750,000 convertible preference shares of
Pound Sterling 1 each of which 108,064,471 ordinary shares and
3,750,000 convertible preference shares are issued and are fully
paid. Upon the successful completion of the placing and open
offer referred to in the Abbot Circular, Abbot's authorised share
capital will be Pound Sterling 31,500,000, comprising 185,000,000
ordinary shares of 15 xxxxx each and 3,750,000 convertible
preference shares of Pound Sterling 1 each of which 130,277,365
ordinary shares and 3,750,000 convertible preference shares will
be issued and fully paid.
3.4 The representations and warranties contained in Sections 3.2.2, 3.2.3,
3.3.2 and 3.3.3 insofar as they relate to the performance of the
obligations of Abbot and the Buyer in Sections 2.2, 2.4.2 and 2.4.3 are
given subject to the satisfaction of the Conditions in Section 7.1.1 and
7.1.2.
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4. REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY AND ITS
SUBSIDIARIES.
4.1 The Seller represents and warrants to the Buyer that the statements
contained in Schedule 8 are true and accurate as of the date of this
Agreement and except as fairly set forth in the Disclosure Letter, or as
set forth in this Agreement or any Schedule to this Agreement.
4.2 Save as provided in the Disclosure Letter and save for any information
within the actual knowledge of any executive member of the Board of
Directors of Abbot (which information shall be deemed to be known to the
Buyer), no information of which Abbot or the Buyer has knowledge shall
prejudice any claim being made by the Buyer under any of the Warranties,
nor shall it affect the amount recoverable under any such claim and,
subject thereto, neither the rights and remedies of the Buyer, nor the
Seller's liability in respect of the Warranties shall be affected by any
investigation made by or on behalf of the Buyer into the Target Group.
4.3 Each of the Warranties shall be interpreted as a separate and
independent Warranty and shall not be deemed to be limited by reference
to any other Warranty.
4.4 No information supplied by, or on behalf of, the Company or its
Subsidiaries to the Seller or its advisers in connection with the
business and affairs of the Target Group constitutes a representation,
warranty or undertaking to the Seller as to its accuracy by the Company
or its Subsidiaries and the Seller waives each and every claim which it
may have against the Company, its Subsidiaries or their respective
employees in respect of such information.
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5. PRE-CLOSING COVENANTS.
The Parties agree as follows with respect to the period between the execution
of this Agreement and the Closing.
5.1 OPERATION OF BUSINESS. The Seller shall procure that the Company and
its Subsidiaries shall, save to the extent required or permitted by this
Agreement or to enable the Seller to perform its obligations under this
Agreement including its obligations to procure the transfer of the
Excluded Assets, the Drill Pipe and the Instrumentation and the
discharge of all bank indebtedness and intercompany accounts pursuant to
Sections 5.5 to 5.8, conduct its business only in the Ordinary Course of
Business so as to maintain it as a going concern and shall not without
the prior written consent of the Buyer;
5.1.1 create, allot, issue, repay, redeem or grant any options over any
share or loan capital of the Company or its Subsidiaries or agree
to do any of those things;
5.1.2 acquire or dispose of or agree to acquire or dispose of any share
or other interest in any company, partnership or other venture;
5.1.3 acquire or dispose of or agree to acquire or dispose of any
individual fixed asset with a book value in excess of Pound
Sterling 5,000 nor fixed assets with an aggregate book value
in excess of Pound Sterling 100,000;
5.1.4 declare, make or pay any dividend or other distribution;
5.1.5 pass a shareholders' resolution;
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5.1.6 create, or agree to create, an Encumbrance over any asset or
redeem, or agree to redeem, an existing Encumbrance over any
asset;
5.1.7 acquire or dispose of any freehold or leasehold property or grant
or terminate any lease or third party right (including Licences)
in respect of any of the Properties nor agree to do any of those
things or change the existing use of the Properties or change or
agree to change the terms of any lease or third party rights in
respect of the Properties or the rents or fees payable
thereunder;
5.1.8 make or agree to make any amendment to any of the Contracts which
amendment has the effect of increasing costs to the Target Group
or decreasing revenues to the Target Group in an aggregate value
on an annualised basis in excess of Pound Sterling 50,000, or
terminate any of the Contracts;
5.1.9 amend the terms of employment of any employee of the Target Group
(including as to pension commitments and share options) or offer
to engage any new employee or consultant at an annual salary or
fee (on the basis of full time engagement) in excess of Pound
Sterling 25,000 or dismiss any Employee save for the hiring or
dismissal of offshore employees where such action is reasonably
required to enable the Target Group to comply with its
obligations under any Contract or other drilling contract (if
any);
5.1.10 compromise, settle, release, discharge or compound any litigation
or arbitration proceedings except where the costs of such
litigation or arbitration proceedings are to be borne by the
Seller pursuant to the terms of Section 6.2 of this Agreement in
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which case the Seller shall have absolute discretion in the
handling of such proceedings;
5.1.11 enter into any new contracts for the provision of labour services
for drilling platforms or enter into any other contracts for the
supply of goods or services with an annual revenue or cost in
excess of Pound Sterling 50,000;
provided that (i) where any capital expenditure is made by the Target
Group which is not in breach of this Section 5.1 after the date of this
Agreement and prior to Closing such sum shall be added to the Purchase
Price as Permitted Expenditure payable by the Buyer, and (ii) this
Section 5.1 shall not prevent the Seller making any ex-gratia payment
to, or granting or permitting to be exercised any option over shares
(other than shares in any company in the Target Group) by, any employee
of the Target Group or from offering employment with the Retained Group
to the employees listed in Schedule 4, Part 1.
5.2 OWNERSHIP OF SHARES. In the period prior to Closing, the Seller will
retain the entire legal and beneficial ownership of the Company Shares
and of the entire issued share capital of the Subsidiaries (subject to
legal title held by nominee shareholders as set out in Parts 2 and 3 of
Schedule 1).
5.3 NOTIFICATION. The Seller undertakes prior to Closing to notify
immediately the Buyer in writing if it becomes aware that any of the
circumstances set out in paragraphs (i), (ii) or (iv) of Section 5.4
have arisen or will arise.
5.3.1 REMEDIES FOR BREACH. Notwithstanding any breach by the Seller of
a provision of this Agreement including any breach of the
Warranties, the Buyer shall proceed to Closing and shall not be
entitled in any circumstances to rescind or terminate this
Agreement, save in the case
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of (i) fraud by the Seller or (ii) the Seller not having
disclosed to the Buyer prior to the date of this Agreement the
fact that it had given or received notice of termination of any
Contract or that any Contract had been terminated or (iii) the
Seller not having complied with its obligations under Sections
2.4.1, 2.4.4 and 2.4.5 or under Sections 5.5 to 5.8 at or prior
to Closing or (iv) the Seller failing to deliver the Company
Shares at Closing in accordance with the provisions of Section
2.1 or failing to deliver the shares of the Subsidiaries in
accordance with paragraph 5.1 of Schedule 8.
5.3.2 If the Buyer decides to proceed to Closing and not to exercise
its right of rescission this shall be without prejudice to any
rights the Buyer may have to claim damages for breach of contract
or to exercise any other right or remedy, whether under this
Agreement or otherwise, resulting from a breach of this Agreement
or the Warranties, but subject in each case to all other
limitations on the Seller's liability contained in this
Agreement. The Buyer shall in no circumstances be entitled to
rescind this Agreement after Closing.
5.4 BORROWED FUNDS. Seller shall procure that, as of the Closing Date, no
member of the Target Group shall have any indebtedness to any bank or
other financial institution.
5.5 EXCLUDED ASSETS. To the extent that such assignments or transfer have
not occurred prior to the date hereof the Seller shall prior to Closing
cause each member of the Target Group to assign or transfer to a member
of the Retained Group all Excluded Assets (whether paid in cash or left
outstanding as an intercompany debt, but subject always to compliance
with Section 5.5) and any such assignment or transfer shall be permitted
without the consent of the Buyer, provided however, that:-
5.5.1 if any such assignment or transfer shall be prohibited without
the consent of a third party and such consent shall not have
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been obtained prior to the Closing, then (i) such assignment or
transfer shall not be completed prior to the Closing, (ii), from
and after the Closing, the Buyer and the Seller will use all
reasonable commercial efforts to obtain such third-party consent,
(iii), if the Buyer obtains such third-party consent, the Buyer
will cause the company which owns such Excluded Asset to transfer
such Excluded Asset to the Seller or its designee for the
consideration attributed to it in Schedule 5, pursuant to a deed
or other assignment document reasonably acceptable to the Seller
and the Buyer. The Seller shall indemnify and keep indemnified
the Buyer and its Affiliates from and against any claims,
proceedings, costs and liability (other than any liability
arising out of any action of the Buyer, any of its Affiliates or
any member of the Target Group from and after the Closing)
arising out of (A) the ownership of such Excluded Asset, and (B)
any such transfer; and
5.5.2 the Seller shall not be obliged to cause NDESL to transfer the
99,900 shares of L.1,00 each in Paloak Limited, but shall be
entitled to do so if it so desires.
5.6 ACCOUNTS WITH AFFILIATES. Prior to Closing, the Seller shall procure
that, as of the Closing Date, all intercompany loan accounts or
indebtedness including any trading accounts between (i) the Retained
Group and (ii) the Target Group are discharged in full.
5.7 DRILL PIPE AND INSTRUMENTATION. The Seller shall procure that prior to
Closing the Drill Pipe and the Instrumentation shall be transferred to
NDESL free from any Encumbrance and with full title guarantee, but with
the provisions of Sections 6(1) and 6(2) of the LPA disapplied and,
other than with regard to subsequent transfers between NDESL and an
Affiliate or between Affiliates of NDESL, with the provisions of Section
7 of the LPA disapplied (subject, in the case of the Instrumentation, to
a
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contract right in favour of Elf Caledonia Limited) for an aggregate cash
price payable by NDESL (excluding any VAT, if applicable) of two million
two hundred and seventy thousand US dollars (US$2,270,000) and two
hundred and ninety-four thousand eight hundred and fifteen pounds
(Pound Sterling 294,815). The Seller shall also procure the assignment
to NDESL (to the extent such rights are capable of assignment) of all
such manufacturer's rights, warranties and guarantees as may be
available to the transferor in connection with the Instrumentation.
5.8 CHANGE OF CORPORATE NAMES. The Buyer acknowledges that the Seller may
cause the Company and the Subsidiaries at or prior to Closing to effect
changes to their respective names to remove therefrom the name "Nabors".
Abbot undertakes that no member of the Abbot Group shall at any time use
such name or the names "Sundowner" or "Canrig" or any substantially or
confusingly similar name, or any trademark, logo or symbol that includes
or is otherwise associated with any such name, for any purpose,
including without limitation in connection with the marketing of any
products or services by the Target Group; and insofar as changes to such
names have not been effected at or prior to Closing, the Buyer shall
procure that all necessary steps are taken to complete such changes of
names within 5 Business Days from Closing. Notwithstanding the
foregoing, the Buyer may, for a period not exceeding 90 days immediately
following Closing, use machinery and equipment that has affixed thereto
the name "Nabors" provided, however, that (i) the Buyer shall use all
reasonable endeavours to erase, cover or remove such name as soon as
possible after Closing and (ii) the Buyer shall indemnify and hold
harmless the Seller and any member of the Retained Group from and
against any loss, liability, damage or claim that the Seller or any
member of the Retained Group may suffer as a result of such use by the
Buyer of such names, trademarks, logos or symbols.
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5.9 FULL ACCESS. The Seller will permit, and the Seller will cause each of
the Company and its Subsidiaries to permit, representatives of the Buyer
to have access at all reasonable times subject to reasonable notice, and
in a manner so as not to interfere unnecessarily with the normal
business operations of the Company and its Subsidiaries, to all
premises, properties, personnel, books, records (including tax records),
contracts, and documents of or pertaining to each of the Company and its
Subsidiaries other than to the Excluded Assets. The Buyer will treat as
confidential and hold as such any Confidential Information it receives
from the Seller, the Company, and its Subsidiaries in the course of the
reviews contemplated by this Section 5.10, will not at any time
hereafter use any of the Confidential Information or disclose or divulge
any such Confidential Information except in connection with this
Agreement or to meet the requirements of the London Stock Exchange or
other governmental or regulatory authorities, and, if this Agreement is
terminated for any reason whatsoever, will return to the Seller, the
Company, and its Subsidiaries all tangible embodiments (and all copies)
of the Confidential Information which are in its possession.
6. POST-CLOSING COVENANTS.
The Parties agree as follows with respect to the period following the Closing.
6.1 GENERAL. In case at any time after the Closing any further action is
necessary to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and
delivery of such further instruments and documents) as the other Party
reasonably may request, all at the sole cost and expense of the
requesting Party.
6.2 TAX LITIGATION. For the avoidance of doubt and, notwithstanding any of
the terms of the agreement between Xxxxxxxx Brothers North Sea, Inc.
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and NDESL dated 21 September 1990 providing for the transfer of the
business and assets of Xxxxxxxx Brothers North Sea, Inc. to NDESL,
nothing in this Agreement shall limit or restrict the rights of the
Seller or Xxxxxxxx Brothers North Sea, Inc. to conduct, compromise,
settle or resist the High Court litigation (number CH 1996 G4108) and
any related litigation in whatsoever manner it sees fit and without any
need to refer to, consult or seek or obtain any consent or approval of
the Buyer, NDESL, or their respective successors or assigns in relation
thereto. The Buyer shall procure that neither it nor NDESL nor any of
their respective successors or assigns shall in any way so limit or
restrict the rights of or impose any obligations upon the Seller or
Xxxxxxxx Brothers North Sea Inc in relation to such litigation. The
Buyer shall further procure that neither it nor NDESL nor any of their
respective successors or assigns shall demand payment from the Inland
Revenue or assert any right to receive payment from the Inland Revenue
in relation thereto without having obtained the prior consent in writing
of Xxxxxxxx Brothers North Sea, Inc. The Seller shall indemnify and
keep indemnified the Buyer and the Target Group from and against any
claims, proceedings, liability, damages, costs and expenses which the
Buyer or the Target Group may incur or suffer in relation to the
litigation referred to in this Section 6.2 whatsoever.
6.3 TAX RETURNS.
6.3.1 The Seller or its duly authorised agent shall prepare the tax
returns of the Company and its Subsidiaries for the accounting
periods ended on or prior to 30 September 1996.
6.3.2 The Buyer shall procure that the Company and its Subsidiaries
shall cause the returns mentioned in Section 6.3.1 to be
authorised, signed and submitted to the appropriate authority
without amendment or with such amendments as the Seller shall
agree provided that the Buyer shall not be obliged to procure
that the Company and its Subsidiaries take any such action as is
mentioned in this Section 6.3.2 in relation to any tax return
that is not true and accurate in all material respects.
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6.3.2 Subject to Section 6.3.4 the Seller or its duly authorised agent
shall prepare all documentation and deal with all matters
(including correspondence) relating to the tax returns of the
Company and its Subsidiaries for all accounting periods ended on
or prior to 30 September 1996 and the Buyer shall procure that
the Company and its Subsidiaries shall afford such access at all
reasonable times subject to reasonable notice and in a manner so
as not to interfere unnecessarily with the normal business
operations of the Company and its Subsidiaries to such books,
accounts and records as the Seller may require to enable the
Seller or its duly authorised agent to prepare those returns and
conduct matters relating thereto in accordance with the Seller's
rights under this Section.
6.3.3 The Seller shall keep the Buyer fully informed as to any action
taken or proposed to be taken in conjunction with Section 6.3.3.
6.3.4 The Buyer shall afford the Seller the opportunity to make such
amendments as the Seller reasonably believes are necessary to the
tax return or tax returns that relate to the period from 1
October 1996 to Closing provided that the Buyer shall not be
obliged to procure that the Company and its subsidiaries take any
such action in relation to any tax return that is not true and
accurate in all material respects.
6.3.5 The Buyer shall keep the Seller informed as to any action taken
or proposed to be taken in conjunction with Section 6.3.5 and
shall not submit any documentation or correspondence to the
relevant Taxation Authority until the Seller has approved them,
such approval not to be unreasonably withheld or delayed.
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6.4 RELEASE OF GUARANTEES. Abbot shall and shall procure that the Abbot
Group and the Target Group shall use their respective reasonable
endeavours to procure that as soon as practicable after Closing the
Seller and all members of the Retained Group shall be released from any
guarantee or surety (whether or not listed in Part 1 of Schedule 9 and
where not so listed as soon as practicable after Abbot or any member of
Abbot's Group becoming aware of the existence of such guarantee or
surety) given by any of them to any third party in respect of the
performance of the obligations of any member of the Target Group under
the terms of any agreements entered into by any of them which endeavours
shall include the offering by Abbot of a guarantee in identical terms in
substitution for the guarantee of the relevant member of the Retained
Group and pending such release shall indemnify and keep indemnified the
Seller for itself and as trustee for all members of the Retained Group
against any and all liabilities, costs, claims, proceedings and damages
which may arise in connection with any guarantee or surety given in
respect of the performance of the obligations of any member of the
Target Group (whether or not listed in Part 1 of Schedule 9) other than
to the extent that they arise out of any default of the Seller or any
member of the Retained Group or any member of the Target Group prior to
Closing.
6.4.1 On the Closing Date Abbot shall (i) pay to the Seller the sum of
Pound Sterling 125,000 in the same manner as the Sterling
payment is made under Section 2.2.1 or in a manner otherwise
agreed between Abbot and the Seller (ii) include (and during the
following six months maintain the inclusion of) each member of
the Retained Group which is listed as a guarantor in Part I of
Schedule 9 as an additional insured on such insurance policies as
are required to comply with the obligations of the Target Group
under the relevant Contracts, and (iii) at Seller's request,
supply copies of certificates evidencing the same. Upon the
expiry of six months from the Closing Date and on each
anniversary of such date (or the first subsequent Business Day
thereafter if such anniversary is
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not a Business Day) ("the Anniversary Date"), unless on that date
all members of the Retained Group have been released from all
guarantees referred to in Section 6.4.1, Abbot shall (i) pay to
the Seller the sum of Pound Sterling 250,000 in the same manner
as the Sterling payment is made under Section 2.2.1 or in a
manner otherwise agreed between Abbot and the Seller and (ii)
procure that each member of the Retained Group which is listed as
guarantor in Part 1 of Schedule 9 continues until the following
Anniversary Date to be included as an additional insured on such
policies aforesaid and (iii) at the Seller's request supply
copies of certificates evidencing the same.
6.4.2 In the event that all of the guarantees referred to in Section
6.4.1 have been released prior to the expiry of six months from
the Closing Date or prior to the expiry of twelve months from any
Anniversary Date upon which the last payment was made under
Section 6.4.2, the Seller shall refund to Abbot such percentage
of Pound Sterling 125,000 (in the case of the six months
following the Closing Date) or such percentage of Pound Sterling
250,000 (in the case of the twelve months between any two
Anniversary Dates) as is equal to the percentage which the
unexpired portion of such period represents of the whole of such
period.
6.4.3 The Seller shall use all reasonable endeavours to procure that as
soon as practicable after Closing the Target Group shall be
released from all guarantees and sureties given by any member of
the Target Group to any third party in respect of the performance
of the obligations of any member of the Retained Group under the
terms of any agreements entered into by any of them, which
includes without limitation those listed in Part 2 of Schedule 9,
which endeavours shall include the offering by the Seller of a
guarantee in identical terms in substitution for the guarantee of
the relevant member of the Target Group and pending such release
shall indemnify and keep indemnified the Buyer for itself and as
trustee for all members of the Target Group against any and all
liabilities, costs, claims, proceedings and damages
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which may arise in connection with any such guarantee or surety other
than to the extent that they arise out of any default of the Abbot Group
or any member of the Target Group after Closing.
6.5 BRITANNIA CONTRACT. The Buyer shall procure that:
6.5.1 NDESL and any Relevant Party shall with effect from Closing
perform all its outstanding obligations under the Britannia
Contract in the Ordinary Course of Business and so as to ensure
that the amount of and the timing of payment of the Britannia
Bonus shall not be adversely affected;
6.5.2 NDESL and any Relevant Party shall not without the Seller's prior
written consent assign the Britannia Contract (except for an
assignment to another member of the Abbot Group if the assignment
will not adversely affect the amount of or timing of payment of
the Britannia Bonus) and shall not otherwise divest itself of any
rights or obligations thereunder in either case during the period
until the Buyer shall have complied with all of its obligations
under Section 6.5.6 or until the Seller has been released from
the guarantee of the Britannia Contract referred to in Part 1 of
Schedule 9, whichever is later;
6.5.3 no member of the Abbot Group shall initiate any action nor agree
to any proposal whereby the terms of the Britannia Contract are
amended or any other arrangements are entered into which is
likely to adversely affect the amount of or the timing of payment
of the Britannia Bonus save (i) with the Seller's written
consent, which consent (or refusal to consent) shall not be
unreasonably delayed or (ii) if the Seller has received at the
date of any such action, amendment or other arrangement referred
to in this Section 6.5.3, payment from the Buyer or from Abbot of
a sum equal to the Estimated Bonus
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after deduction of a sum representing tax at the Notional Tax
Rate and the Seller has at such date been released from the
guarantee of the Britannia Contract referred to in Part 1 of
Schedule 9;
6.5.4 NDESL and any Relevant Party shall supply to the Seller
immediately upon receipt a copy of the monthly cost reports
prepared by the Independent Operator in connection with the
Britannia Contract;
6.5.5 NDESL and any Relevant Party shall use all reasonable endeavours
to procure that payment of the Britannia Bonus is made by the
Independent Operator strictly in accordance with the terms of the
Britannia Contract as at the date hereof or as varied pursuant to
Section 6.5.3 and in any event within 60 days of the due date
therefor; and if there is any dispute with the Independent
Operator as to the amount of the Britannia Bonus payable, neither
NDESL or any Relevant Party nor any member of the Abbot Group
shall seek to compromise or settle the amount of such bonus
without the consent of the Seller; the Seller may at any time
after the expiry of such 60 day period and shall, after it has
refused to give its consent to any compromise or settlement, take
over the conduct of such claim against the Independent Operator
and the Buyer shall procure that NDESL or any Relevant Party
shall take such action with respect to the conduct of such claim
as the Seller shall reasonably request subject to the Seller
indemnifying and keeping NDESL or any Relevant Party indemnified
against all costs and expenses thereby incurred;
6.5.6 not later than 7 days after receipt by NDESL or any Relevant
Party or any member of the Abbot Group of the Britannia Bonus (or
any part of it) the Buyer shall, subject to section 6.5.7, pay to
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the Seller the amount of such receipt in the currency received
after deduction of a sum representing tax at the Notional Tax
Rate. Such payment shall be made by telegraphic transfer of
immediately available funds into such bank account of the Seller
as was specified pursuant to Section 2.2.1 or such other account
as may previously have been notified in writing by the Seller to
the Buyer;
6.5.7 notwithstanding Section 6.5.6, the Buyer shall not be obliged to
pay over any sums received by NDESL or any Relevant Party or any
member of the Abbot Group or by any successor or assign of any of
them by way of Britannia Bonus Account Payment until the date
upon which such person receives payment of the Drilling
Facilities Profit as finally determined at which time the Buyer
shall pay over a sum equal to the Drilling Facilities Profit less
the sum of all Britannia Bonus Account Payments received by NDESL
or any Relevant Party prior to the Closing Date net of a sum
representing tax at the Notional Tax Rate on the amount of such
payment and such sums shall be treated for all purposes
thereafter as if they were part of the Drilling Facilities Profit
portion of the Britannia Bonus;
6.5.8 interest shall be chargeable at the rate of 3% per annum over the
base rate of National Westminster Bank plc compounded monthly on
sums which are overdue under Section 6.5.6, from the due date for
payment thereunder until the date of actual payment to the
Seller.
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6.6 CONTRACTS. The Seller agrees to indemnify the Buyer and keep the Buyer
indemnified (for itself and as trustee for the benefit of each member of
the Target Group) from and against all liabilities damages and costs
arising out of or in connection with any claim or proceedings made
(whether commenced before or after the date of this Agreement) against
any member of the Target Group by any other party to any contract
(including the Contracts) to which any member of the Target Group is or
has at any time prior to the date of this Agreement been a party as a
result of any breach prior to Closing by such member of the Target Group
of any term of such contract (where such breach gives rise to a
liability for a member of the Target Group in excess of L.50,000) and
except to the extent that the Buyer has continued such breach after
Closing, provided always that the liability of the Seller under this
Section 6.6 shall be limited to the full amount of the claim made by the
other party to such contract (including any damages awarded to such
other party for lost profits or without limitation other consequential
losses) and shall in no circumstances include any other damages, lost
profits or, without limitation, other consequential losses of the Buyer
or other member of the Target Group or the Abbot Group (other than the
costs and expenses of the Buyer or other relevant member of the Target
Group of defending such claim) resulting from the termination of such
contract and provided further that the liability of the Seller shall be
subject to the limitations referred to in Section 8 other than Section
8.2.
7. CONDITIONS TO OBLIGATION TO CLOSE.
7.1 CONDITIONS. Closing shall be subject to the Buyer's rights under
Section 5.4 and:
7.1.1 the passing by Abbot's shareholders without amendment of the
ordinary resolution and the special resolution set out in the
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notice of extraordinary general meeting attached to the Abbot
Circular; and
7.1.2 the admission to listing of the shares which are the subject of
the placing and open offer described in the Abbot Circular on the
London Stock Exchange becoming effective;
7.1.3 the Seller having complied with its covenants hereunder to
discharge intercompany and third party indebtedness, to procure
transfer of the Excluded Assets out of the Target Group and to
transfer the Drill Pipe and Equipment to NDESL all as more
particularly detailed in Sections 5.5 to 5.8; and
7.2 The Buyer shall use all reasonable endeavours to procure fulfilment of
the Condition set out in Sections 7.1.1 and 7.1.2 including without
limitation making application to the London Stock Exchange not later
than 14 November 1996 for the admission of the shares which are subject
to the placing and open offer described in the Abbot Circular; and the
Seller shall use all reasonable endeavours to procure fulfilment of the
Condition set out in Section 7.1.3 in each case as soon as possible and
shall notify the other immediately upon fulfilment of each such
Condition.
7.3 If either the Buyer, Abbot or the Seller becomes aware of any matter,
circumstance or thing that might prevent a Condition being satisfied it
shall immediately notify the other.
7.4 The Buyer shall be entitled to waive the Condition (or any part of it)
contained in Section 7.1.3 and the Seller shall be entitled to waive the
Condition contained in Section 7.1.1 so far as it relates to the passing
of the special resolution but not so far as it relates to the passing of
the ordinary resolution.
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8. LIABILITY UNDER REPRESENTATIONS AND WARRANTIES. The provisions of this
Section shall operate to limit the liability of the Seller in respect of
any claim under or in connection with (i) the Warranties referred to in
Section 4, (ii) Section 6.6 and (iii), except where expressly provided
to the contrary, the Tax Covenant and references to "claim" and "claims"
shall be construed accordingly. The Parties agree as follows:
8.1 AGGREGATE LIABILITY. The maximum aggregate liability of the Seller in
respect of all claims shall not exceed Pound Sterling 20,000,000;
8.2 SMALL CLAIMS. Except in relation to a claim in respect of Taxation,
under the Tax Covenant or under Section 6.6 where no such limit applies,
no liability shall attach to the Seller where the amount of any claim is
less than Pound Sterling 20,000, such claims being ignored for the
purposes of calculating the liability of the Seller under this Agreement;
8.3 DEDUCTIBLE. Except in relation to a claim in respect of Taxation or
under the Tax Covenant where no such limit applies, no liability shall
attach to the Seller unless the aggregate amount of all claims for which
it would, in the absence of this provision, be liable shall exceed
Pound Sterling 500,000 and in such event the Seller shall only be
liable for the excess;
8.4 NOTIFICATION OF CLAIMS. No claim shall be brought against the Seller
unless:-
8.4.1 written particulars thereof (stating in reasonable detail of
which the Buyer is aware the specific matters in respect of which
the claim is made) shall have been notified in writing to the
Seller before in the case of a claim relating to Taxation or
under the Tax Covenant 31 December 2003 or in relation to any
other claim 31 March 1998; and
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8.4.2 in the case of a claim other than one relating to Taxation or
under the Tax Covenant proceedings in respect of the claim shall
have been commenced by being both issued and served within twelve
months of the giving of such notice and in the case of a claim
relating to Taxation or under the Tax Covenant proceedings in
respect of the claim shall have been commenced by being both
issued and served on or before 31 December 2004;
8.5 NOTIFICATION AS SOON AS PRACTICABLE. No liability shall attach to the
Seller in respect of any claim other than a claim relating to Taxation
or under the Tax Covenant unless notice is given to the Seller of the
relevant facts of that claim as soon as reasonably practicable and in
any event no later than 90 days after the senior management of the Buyer
or any member of Target Group becomes aware thereof provided that a
failure to comply with this provision shall not prevent the Buyer
recovering damages for any such claim to the extent it can show that the
Seller has not been prejudiced by such failure;
8.6 THIRD PARTY CLAIMS. In the event that a claim other than a claim under
the Tax Covenant against the Seller arises as a result of or in
connection with a liability to or a dispute with any third party, then,
8.6.1 if the sum claimed is Pound Sterling 250,000 or more and if the
Seller notifies the Buyer in writing of its wish to have conduct
of the liability or dispute with the third party, the Buyer shall
(provided that it is indemnified and kept indemnified by the
Seller against any costs and expenses which may be incurred by
the Buyer in taking such action) take and shall procure that the
relevant member of the Target Group shall take such action to
avoid, dispute, resist, appeal, compromise or contest such
liability or dispute as may be reasonably requested by the
Seller;
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8.6.2 if the sum claimed is less than Pound Sterling 250,000, and/or
until the Seller has elected to have conduct of a given liability
or dispute under Section 8.6.1, the Buyer shall be free to
conduct such liability or dispute provided that no such liability
or dispute shall be admitted, settled or discharged without the
written consent of the Seller such consent (or refusal to
consent) not to be unreasonably delayed;
8.6.3 if the Seller shall have refused to give its consent to any
admission, settlement or discharge, the Buyer may (i) elect to
retain conduct of the liability or dispute in which event the
Buyer shall be responsible for the whole amount of any subsequent
settlement of or judgment in respect of such liability or dispute
including any associated costs and expenses and shall not be
entitled to recover all or any part thereof from the Seller or
(ii) elect that the Seller take over exclusive conduct of the
liability or dispute in which event the Seller shall be
responsible for the whole amount of any subsequent settlement of
or judgment in respect of such liability or dispute including any
associated costs and expenses less any deductible which may be
applicable pursuant to Section 8.4 for which the Buyer shall be
responsible; and
8.6.4 where the Seller has conduct of any liability or dispute in
accordance with Sections 8.6.1 to 8.6.3, the Seller shall report
to the Buyer at intervals of not less than once in a period of
thirty days.
8.7 CLAIMS AGAINST THIRD PARTIES. In the event that the Buyer or any member
of the Target Group is entitled to recover any sum (whether by payment,
discount, credit or otherwise) from any third party (including any
Taxation Authority) in respect of any matter for which a claim other
than a claim under the Tax Covenant could be made against the Seller,
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the Buyer shall provided that it is indemnified and kept indemnified by
the Seller against any costs and expenses which may be incurred by the
Buyer in relation to such recovery use, or procure that the relevant
member of the Target Group shall use, all reasonable endeavours to
recover such sum before making the claim against the Seller, and any sum
recovered will reduce the amount of the claim (after deduction of all
reasonable costs and expenses of recovery); and, in the event of the
recovery being delayed until after the claim has been satisfied by the
Seller, the Buyer shall account to the Seller in respect of any amount
so recovered (after deduction of all reasonable costs and expenses of
the recovery) up to the amount of the claim. This Section 8.8 shall not
apply to any entitlement to recover sums by way of Britannia Bonus from
the Independent Operator, which shall be governed by Section 6.5.
8.8 GENERAL. No liability shall attach to the Seller in respect of any
claim other than a claim under the Tax Covenant:
8.8.1 to the extent that provision or reserve in respect of the matter
or thing giving rise to such claim has been provided for in the
Financial Statements or that such matter or thing has been taken
into account therein or in determining the amount of the
Consolidated Working Capital;
8.8.2 if such claim would not have arisen but for a change in the rate
of Taxation or a change in legislation made after the date hereof
with retrospective effect any extra statutory concession or
practice previously made by any Taxation Authority (whether or
not such change purports to be effective retrospectively in whole
or in part) or if such claim would not have arisen but for any
judgment delivered after the date hereof;
8.8.3 to the extent that such claim would not have arisen but for a
change in the treatment of assets and liabilities or of the
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Taxation attributable to timing differences (including capital
allowances) in future accounts of the Target Group or but for any
other change in the accounting bases upon which the Target Group
prepares its future accounts except to the extent necessary to
rectify any non compliance with GAAP as at the date of this
Agreement;
8.8.4 to the extent that such claim relates to any loss for which the
Buyer or any member of the Target Group is indemnified by
insurance;
8.8.5 if and to the extent that such claim would not have arisen or
would have been reduced or eliminated but for a failure on the
part of any member of the Target Group to make any claim,
election, surrender or disclaimer or give any notice or consent
or do any other thing after Closing the making, giving or doing
of which was taken into account in preparing the Financial
Statements or determining the Consolidated Working Capital;
8.8.6 to the extent that the claim or breach would not have arisen but
for some act, omission, transaction or arrangement whatsoever
carried out at the written request or with the written approval
of the Buyer prior to Closing or which was expressly authorised
by the Agreement.
8.9 USE OF RELIEFS. Where and to the extent that there are available to the
Target Group any reliefs, rights of repayment or other rights or claims
of a similar nature to set against or otherwise mitigate any liability
arising from any claim for Taxation giving rise to a claim under the
Warranties or the Tax Covenant and such reliefs, rights of repayment or
other rights or claims have not been taken into account in computing and
so reducing or eliminating any provision for deferred Taxation or
treated as an asset in the Consolidated Working Capital Statement
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wholly by reason of any act, omission or transaction of any member of
the Target Group before the date of Closing, credit for any such
reliefs, rights of repayment or other rights or claims shall be given to
the Seller to the extent that they can be set off against the liability
in question.
8.10 CESSER OF LIABILITY. The liability of the Seller shall cease and any
subsisting claim which relates to the business or assets of any member
of the Target Group shall be withdrawn upon that member of the Target
Group or its business or substantially all of its assets ceasing for any
reason within the twelve months after the date of Closing to be directly
or indirectly controlled by Abbot.
8.11 WARRANTIES EXCLUSIVE. The Buyer, other than in relation to the
representations and warranties contained in Sections 3.1 and 4, waives
any remedies it may have under the Xxxxxxxxxxxxxxxxx Xxx 0000 and any
remedy it may have for breach of warranty in relation to any information
(written or oral), statements or warranties or representations of any
description made, supplied or given by the Seller or any member of the
Retained Group or the Target Group or the officers, agents, employees or
advisers of any of them in relation to the assets and liabilities of the
Target Group, their value or amount, or the business or affairs of the
Target Group.
8.12 WAIVER OF RESCISSION. The Buyer shall not be entitled to rescind this
Agreement in any circumstances other than as provided in Section 5.4.
8.13 REDUCTION OF CONSIDERATION. If the Seller pays any sum to the Buyer
pursuant to a claim, the Purchase Price shall be deemed to be reduced by
the amount of such payment.
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8.14 MITIGATION OF LOSS. Nothing in this Section 8 shall limit or restrict
the Buyer's general obligation at law to mitigate any loss or damage
which it may incur in consequence of any matter giving rise to a
potential claim under this Agreement.
8.15 BREACH OF THE CONTRACTS. In addition to the other limitations set out
in this Section 8, the liability of the Seller in respect of any claim
by any member of the Abbot Group under or in connection with paragraphs
8.1 and 8.3 of the Warranties in Schedule 8 shall be limited to the
amount required to remedy the breach of the applicable law or to obtain
the relevant Licence.
8.16 DOUBLE CLAIMS. No claim shall be made under the Warranties in respect
of any matter for which a claim has been made under Section 6.6 of this
Agreement or under the Tax Covenant or vice versa.
9. TERMINATION
9.1 TERMINATION OF AGREEMENT. The Buyer and Seller may terminate this
Agreement by mutual written consent at any time prior to the Closing.
9.2 EFFECT OF TERMINATION. If any Party terminates this Agreement pursuant
to Section 9.1, Section 2.5.3 and Section 5.4 all rights and obligations
of the Parties hereunder shall terminate without any liability of any
Party to any other Party; provided, however, that the confidentiality
provisions contained in Section 12 and the provisions of Section 14
(other than Sections 14.5, 14.9 and 14.13) shall survive termination and
further provided that such termination shall be without prejudice to the
rights of any Party to claim in respect of any breach of this Agreement
by any other Party.
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10. TAX
10.1 In relation to Taxation the provisions of Schedule 7 shall apply.
10.2 Not later than 7 days after receipt by NDESL or any Relevant Party or
any member of the Abbot Group of a Tax Refund received in connection
with the litigation referred to in Section 6.2 the Buyer shall pay to
the Seller a sum equal to the amount of the Tax Refund after deduction
of any Liability for Taxation thereon of NDESL or any Relevant Party or
any member of the Abbot Group related to such Tax Refund. Such payment
shall be made by telegraphic transfer of immediately available funds
into such bank account of the Seller as was specified pursuant to
Section 2.2.1 or such other account as may be nominated by the Seller.
For the avoidance of doubt, if any Tax Refund is received by any member
of the Retained Group, such member shall be entitled to retain the same
and shall be entitled to set off the obligation of the Buyer pursuant to
this Section 10.2 against any obligation of Xxxxxxxx Brothers North Sea,
Inc to make payment of any Tax Refund to NDESL pursuant to the agreement
between Xxxxxxxx Brothers North Sea, Inc and NDESL dated 21 September
1990.
10.3 If after any payment is made pursuant to Section 10.2 and the receipt by
NDESL or any Relevant Party or any member of the Abbot Group of the
relevant Tax Refund gives rise to a Liability for Taxation of NDESL or
any Relevant Party or any member of the Abbot Group then (if and to the
extent that the amount of the Liability for Taxation was not deducted
from the payment made by the Buyer pursuant to Section 10.2) the Seller
shall pay to the Buyer (by way of refund of any amount paid pursuant to
Section 10.2) an amount (which is after taking into account any Taxation
payable on such amount) equal to such Liability for Taxation such
payment to be made five days after the Buyer shall serve notice on the
Seller demanding payment.
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11. PROTECTION OF GOODWILL.
11.1 The Seller undertakes to the Buyer that, without the written consent of
the Buyer:-
11.1.1 in respect of any and all fixed platforms located in the United
Kingdom Continental Shelf, for a period of 3 years from Closing
it will not and will procure that no other member of the Retained
Group shall directly or indirectly and whether as principal,
agent, shareholder or partner, enter into or offer to enter into
any agreement for the provision of (i) labour only services of
substantially the same type and for substantially the same
purposes as those services presently provided by members of the
Target Group pursuant to the Contracts or (ii) the services of
managing platform drilling crews, maintaining platform drilling
equipment and providing engineering services relating to drilling
facilities; and
11.1.2 it will not and will procure that no other member of the Retained
Group will directly or indirectly and whether as principal,
agent, shareholder or partner, for a period of 2 years from
Closing offer employment to any person who is at the date of this
Agreement and/or was at Closing an employee employed in a
managerial, technical or sales capacity by any member of the
Target Group nor do any act or thing intended to cause any such
employee to terminate his employment with any member of the
Target Group, whether or not such employee would thereby breach
his contract of employment.
11.2 Nothing in Section 11.1 shall prevent the Seller or any member of the
Retained Group from acquiring any company or business or acquiring an
interest in such company or business whether as principal, agent,
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shareholder or partner where part of such business ("the Competing
Part") comprises the provision of labour services or Relevant Services
of the type and in the geographic area referred to in Section 11.1,
provided:
(i) that such Competing Part does not comprise a majority
(calculated by reference to its profits on ordinary
activities before Taxation) of the business acquired;
and
(ii) that, to the extent the Seller or any member of the
Retained Group acquires operating control of the
Competing Part, it shall exercise its right of control
to procure that the Competing Part does not offer to
provide (for the period and in the geographic area
referred to in Section 11.1) labour services or
Relevant Services of the type referred to in Section
11.1 the result of which would be the loss of a
contract pursuant to which any member of the Abbot
Group is providing at the date of such acquisition
substantially the same services provided pursuant to
any other contracts to which any member of the Abbot
Group may at the date of such acquisition be party.
11.3 The Buyer hereby agrees with the Seller that for the period of 3 years
from Closing neither the Buyer nor any member of the Abbot Group shall
offer to provide (for the period and in the geographic area referred to
in Section 11.1) labour services or Relevant Services of the type
referred to in Section 11.1 the result of which would be the loss of a
contract pursuant to which the Competing Part is providing at the date
of such acquisition substantially the same services.
11.4 Nothing in Section 11.1.2 shall prevent the Seller or any member of the
Retained Group from offering employment to any of the employees
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listed in Part 1 of Schedule 4 (i) at any time after the expiry of six
months from Closing if they shall by that time have been or at any time
thereafter are, made redundant or (ii) at any time prior to Closing.
11.5 Each of the undertakings contained in Section 11.1 is separate and
severable and shall be construed on that basis. If any of such
undertakings is found to be void but would be valid if some part of it
were deleted or if the period or extent of it were reduced such
undertaking shall apply with such modification as may be necessary to
make it valid and effective.
11.6 For the avoidance of doubt, the provisions of Section 11 shall not
extend (i) to any activities carried out by the Seller or any other
member of the Retained Group in respect of the Excluded Assets; nor (ii)
to any supply or offer to supply labour services in connection with the
sale, supply, leasing or other provision of any rig which uses the
"Sundowner" technology.
11.7 If Closing of this transaction shall not occur on or before 21 November
1996, Abbot shall not and shall procure that no member of the Abbot
Group shall for a period of three years following the date of this
Agreement provide services to those persons who are currently
independent operators under the Contracts or wireline contracts of a
type which are provided under the Contracts or wireline contracts as at
the date of this Agreement in respect of the platforms to which those
Contracts relate. This Section 11.7 shall cease to apply upon the
Seller ceasing to own a majority of the ordinary shares of NDESL or if,
in respect of any given Contract, such Contract is terminated and NDESL
is not permitted to tender for the renewal or extension of the Contract
in question.
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12. CONFIDENTIAL INFORMATION
12.1 The Seller shall before and after Closing not make use of or disclose to
any person Confidential Information belonging to the Target Group, take
all reasonable steps to prevent the use or disclosure by any member of
the Retained Group of Confidential Information belonging to and/or used
by the Target Group and procure that each member of the Retained Group
complies with the provisions of this Section 12.
12.2 Section 12.1 does not apply to use or disclosure of Confidential
Information required to be used or disclosed by law, a court of
competent jurisdiction or by the London Stock Exchange or any exchange
on which the Seller's shares are traded or to the disclosure of
Confidential Information to a director, officer or employee of the Buyer
or to an employee of the Target Group whose function requires that he
has possession of the Confidential Information or disclosure of
Confidential Information to an adviser for the purposes of advising the
Seller in connection with this Agreement or Confidential Information
which becomes publicly known except as a result of the Seller's breach
of Section 12.1.
12.3 Section 12.1 does not apply to the use or disclosure of Confidential
Information belonging to and for use by the Target Group in respect of
or in any way connected with the Excluded Assets or in any way connected
with Sundowner or Canrig technology.
12.4 Abbot covenants not to make use of or disclose and to take all
reasonable steps to prevent the use or disclosure by any member of the
Abbot Group of any Sundowner or Canrig technology or information
relating thereto which it may have in its possession.
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13. GUARANTEE
13.1 In consideration of the Seller entering into this Agreement, Abbot
hereby unconditionally and irrevocably guarantees to the Seller the due
and punctual performance and observance by the Buyer of its obligations,
undertakings, warranties, indemnities and covenants under or pursuant to
this Agreement and the Ancillary Documents and agrees to indemnify and
keep indemnified the Seller against all losses, damages, costs and
expenses (including legal costs and expenses) which the Seller may
suffer through or arising from any breach by the Buyer of such
obligations, warranties, undertakings, indemnities or covenants. The
liability of Abbot as aforesaid shall not be released or diminished by
any arrangements or alterations of terms (whether of this Agreement or
the Ancillary Documents or otherwise) or any forbearance, neglect or
delay in seeking performance of the obligations hereby imposed or any
granting of time for such performance.
13.2 If and whenever the Buyer defaults for any reason whatsoever in the
performance of any obligation or liability undertaken or expressed to be
undertaken by it under or pursuant to this Agreement or the Ancillary
Documents, Abbot shall forthwith upon demand unconditionally perform (or
procure performance of) and satisfy (or procure the satisfaction of) the
obligation or liability in regard to which such default has been made in
the manner prescribed by this Agreement or the Ancillary Documents (as
the case may be) and so that the same benefits shall be conferred on the
Seller or any member of the Retained Group as it would have received if
such obligation or liability had been duly performed and satisfied by
the Buyer. Abbot hereby waives any rights which it may have to require
the Seller to proceed first against or claim payment from the Buyer to
the intent that as between the Seller and Abbot the latter shall be
liable as principal debtor as if it had entered
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into all undertakings, agreements and other obligations jointly and
severally with the Buyer.
13.3 This guarantee and indemnity is to be a continuing security to the
Seller for all obligations, warranties, undertakings, indemnities and
covenants on the part of the Buyer under or pursuant to this Agreement
and the Ancillary Documents notwithstanding any settlement of account or
other matter or thing whatsoever.
13.4 This guarantee and indemnity is in addition to and without prejudice to
and not in substitution for any rights or security which the Seller may
now or hereafter have or hold for the performance and observance of the
obligations, undertakings, covenants, indemnities and warranties of the
Buyer under or in connection with this Agreement or the Ancillary
Documents.
13.5 In the event of Abbot having taken or taking any security from the Buyer
in connection with this guarantee and indemnity, Abbot hereby undertakes
to hold the same in trust for the Seller pending discharge in full of
all Abbot's obligations under this Agreement and the Ancillary
Documents. Abbot shall not, after any claim has been made pursuant to
this Section 13, claim from the Buyer any sums which may be owing to it
from the Buyer or have the benefit of any set-off or counter-claim or
proof against or dividend, composition or payment by the Buyer until all
sums owing to the Seller in respect hereof shall have been paid in full.
13.6 As a separate and independent stipulation, Abbot agrees that any
obligation expressed to be undertaken by the Buyer under this Agreement
or the Ancillary Documents (including, without limitation, any moneys
expressed to be payable under this Agreement) which may not be
enforceable against or recoverable from the Buyer by reason of any legal
limitation, disability or incapacity of any of them or any other fact or
circumstance shall nevertheless be enforceable against or
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recoverable from Abbot as though the same had been incurred by Abbot and
Abbot were sole or principal obligor in respect thereof and shall be
performed or paid by Abbot on demand.
14. MISCELLANEOUS
14.1 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any press
release or make any public announcement relating to the subject matter
of this Agreement without the prior written approval of the others;
provided, however, that any Party may make any public disclosure if
required by applicable law, a court of competent jurisdiction, the
London Stock Exchange, the Securities and Exchange Commission or any
listing or trading agreement concerning its publicly-traded securities
(in which case the disclosing Party will, where practicable, use its
reasonable endeavours to advise and consult with the other Party as to
the contents prior to making the disclosure. This shall not apply to
announcements made or sent by the Buyer after Closing advising
customers, suppliers and others who have dealings with the Target Group
of the change in control of the Target Group.
14.2 NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any rights
or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
14.3 ENTIRE AGREEMENT. This Agreement (including the Ancillary Documents)
constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the
Parties, written or oral, to the extent they have related in any way to
the subject matter hereof.
14.4 SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this
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Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other Parties except, after
Closing, to any wholly-owned subsidiary. No such assignment shall
relieve the assignor of any obligations under this Agreement.
14.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
14.6 HEADINGS. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.7 NOTICES. All notices, requests, demands, claims, and other
communications hereunder ("notices") will be in writing. Any notice
hereunder shall be deemed duly given if delivered personally at the
address shown below or if it is sent by first class recorded delivery
post or certified airmail, postage prepaid, and addressed to the
intended recipient as set forth below:
If to the Seller: Xxxxxx Industries Inc. Copy to: Xxxxx & XxXxxxxx
000 Xxxx Xxxxxx Xxxx 000 Xxx Xxxxxx Xxxxxx
Xxxxx 0000 Xxxxxx XX0X 0XX
Houston
Attention: President Attention: HS/SCH/APD
If to the Buyer: KCA Drilling Group Copy to: Xxxxxxx Xxxxxx
Limited Dashwood House
Minto Drive, Altens 00 Xxx Xxxxx Xxxxxx
Xxxxxxxx XX00 0XX Xxxxxx
Attention: Company Secretary Attention: AF/CP
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If to Abbot: Abbot Group Plc Copy to: Pinsent Xxxxxx
Xxxxx Drive Dashwood House
Altens 00 Xxx Xxxxx Xxxxxx
Xxxxxxxx XX00 0XX Xxxxxx
Attention: Company Secretary Attention: AF/CP
A Party may change the address to which notices are to be delivered by
giving the other Parties notice in the manner herein set forth. Any
notice delivered personally, shall be deemed served at the time of
delivery, if delivered by recorded delivery other than airmail two days
after posting and if sent by airmail five days after posting or if such
day is not a Business Day then the next following Business Day.
14.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of England without giving effect to any choice
or conflict of law provision or rule whether of England or any other
jurisdiction that would cause the application of the laws of any
jurisdiction other than England and the Parties hereto submit to the
non-exclusive jurisdiction of the English courts. The Seller hereby
agrees that service of any legal proceedings may be made on it by
delivering them to the London office of its solicitors, Xxxxx & XxXxxxxx
and the Buyer and Abbot each hereby agree that service of any legal
proceedings may be made on it by delivering them to its solicitors,
Xxxxxxx Xxxxxx.
14.9 AMENDMENTS. No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by the Parties.
14.10 WAIVER. The failure by any Party to exercise or delay in exercising any
right or remedy under this Agreement shall not constitute a waiver of
the right or remedy or a waiver of any other rights or remedies that
Party may otherwise have and no single or partial exercise of any right
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or remedy under this Agreement shall prevent any further exercise of the
right or remedy or the exercise of any other right or remedy.
14.11 SEVERABILITY. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
14.12 EXPENSES
14.12.1 Subject to the remainder of this Section 14, each of
the Buyer, Abbot and the Seller will bear its own costs and
expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transaction contemplated
hereby.
14.12.2 If Closing does not occur on or before 21 November 1996
otherwise than as a result of the Buyer lawfully exercising its
right to rescind this Agreement pursuant to Section 5.4.1, the
Seller shall have the following remedies:
14.12.2.1 Abbot shall forthwith upon the expiry of such period
pay to the Seller the sum of L.1,000,000 being a sum
agreed between the parties as representing
compensation for the costs, expenses and management
time that has been incurred by the Seller and its
Affiliates in relation to the proposed sale of the
Company Shares. By way of security for the
liability of the Buyer under this Section 14.12.2.1,
the Buyer shall at the date of this Agreement pay
the sum of L.1,000,000 into a separately designated
interest-bearing deposit account with National
Westminster Bank Plc (the "Escrow Account") which
account shall be free from any lien,
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charge, encumbrance, set-off or counterclaim and
which shall be operated as provided in Schedule 11.
14.12.2.2 From the outset of the negotiations leading to this
Agreement, the parties have agreed that if this
Agreement could not be executed and the transaction
closed on essentially a simultaneous basis, then one
of the risks of the transaction's failure to close,
specifically the risk of loss of profit as a
consequence of any termination of a Contract,
regardless of the cause of such termination would be
borne by Abbot and the Buyer.
The parties understand that as a consequence of the
requirement for Abbot to obtain the approval of its
shareholders for such transaction pursuant to the
Listing Rules of the London Stock Exchange a
simultaneous execution and closing is not possible.
Accordingly, without prejudice to and in addition to
the Seller's rights under Section 14.12.2.1 and
14.12.2.3, if, after signing of this Agreement, a
Contract is terminated (otherwise than by a member
of the Target Group or its successors or assigns) or
a notice of termination of a Contract is sent to any
member of the Target Group or its successors or
assigns, then Abbot and the Buyer will be jointly
and severally liable for all losses, damages, costs
and expenses suffered by the Seller in connection
with such termination including without limitation,
lost profits for what would have been the remainder
of the principal term of the Contract had it not
been terminated.
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14.12.2.3 Without prejudice to, and in addition to the
Seller's rights under Sections 14.12.2.1 and
14.12.2.2, the Seller reserves its rights to claim
all losses, damage, costs and expenses suffered by
the Seller or any member of the Target Group
resulting from the inability to consummate the
execution and Closing of the sale of the Company
Shares on a simultaneous basis.
14.12.2.4 The remedies specified in Sections 14.12.2.1 to
14.12.2.3 shall be without prejudice to any other
remedies the Seller may have resulting from a breach
by the Buyer or Abbot of this Agreement.
14.13 RTPA. No party shall give effect to or enforce any restrictions
contained in this Agreement or any agreement or arrangement of which
this Agreement forms part and by virtue of which particulars of this
Agreement (or the relevant agreement or arrangement) are required to be
furnished under the RTPA until particulars have been duly furnished to
the Director General of Fair Trading as required by the RTPA.
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SCHEDULE 1
COMPANY DETAILS
Part 1 - Nabors Europe Limited
Registered number: 1189464
Registered office: Xxxxxxxx Xxxxx, Xxxxxx XX0X 0XX
Authorised share capital: Pound Sterling 200 divided into 200 Ordinary
Shares of Pound Sterling 1 each
Issued share capital: Pound Sterling 102 divided into 102 Ordinary
Shares of Pound Sterling 1 each
Shareholders: Xxxxxx Industries Inc - 101 Ordinary Shares of
Pound Sterling 1 each P&W Trustees (Aberdeen)
Ltd - 1 Ordinary Share of Pound Sterling 1
Accounting Reference Date: 30 September
Directors: Xxxxx Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxx
Xxxxx Xxxxxx
Secretary: Xxxxx Xxxxxx Xxxxx
Part 2 Xxxxxx Drilling and Energy Services (UK) Limited
Registered number: SC125584
Registered office: Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx XX0 0XX
Authorised share capital: Pound Sterling 4,217,002 divided into 4,217,002
Ordinary Shares of Pound Sterling 1 each
Issued share capital: Pound Sterling 4,216,904 divided into 4,216,904
Ordinary Shares of Pound Sterling 1 each
Shareholders: Nabors Europe Limited - 4,216,903 Ordinary Shares
of Pound Sterling 1 each
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P&W Trustees (Aberdeen) Limited - 1 Ordinary Share
of Pound Sterling 1
Accounting Reference Date: 30 September
Directors: Xxxxx Xxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxx
Xxxx Xxxxx XxXxxx
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxxx
Secretary: Xxxxx Xxxxxx Xxxxx
Part 3 - Thistle Well Services Limited
Registered number: SC138344
Registered office: Kirkton Avenue
Pitmedden Road Industrial Estate
Aberdeen, Grampian XX0 0XX0
Authorised share capital: Pound Sterling 100,000 divided into 100,000
Ordinary Shares of Pound Sterling 1 each
Issued share capital: Pound Sterling 100,000 divided into 100,000
Ordinary Shares of Pound Sterling 1 each
Shareholders: Xxxxxx Drilling and Energy Services (UK) Limited
99,999 Ordinary Shares of Pound Sterling 1 each
P&W Trustees (Aberdeen) Limited - 1 Ordinary Share
of Pound Sterling 1
Accounting Reference Date: 30 September
Directors: Xxxxx Xxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxx
Ewan Xxxxx XxXxxx
Xxxxx Xxxxxx
Secretary: Xxxxx Xxxxxx Xxxxx
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SCHEDULE 2
CONSOLIDATED WORKING CAPITAL STATEMENT - ACCOUNTING PRINCIPLES
The Working Capital Statement shall be prepared on the following basis:-
1. GENERAL REQUIREMENTS
(a) as if the period from 30 September 1995 to the Closing Date were
a financial period of the Target Group;
(b) in accordance with the requirements of all relevant statutes and
generally accepted accounting principles and practices in the
United Kingdom.
2. SPECIFIC REQUIREMENTS
(a) TAX
including full provision for Taxation (including deferred tax) up
to and including the Closing Date and for the avoidance of doubt
shall include corporation tax due, if any, as a result of (i) the
transfer of Excluded Assets as detailed in Section 5.6 (ii) the
repayment or discharge of indebtedness due to any bank or
financial institution as detailed in Section 5.5 (iii) the
cancellation or discharge or the intercompany loan account and
all accounts due to HM Customs and Excise in respect of their
enquiry into breaches of rules of the Company's IPR System, as
detailed in the Disclosure Letter;
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(b) PROVISION FOR EMPLOYEES
including full provision to the extent required by GAAP for
redundancy and all other employees costs engaged on the Elf and
Oryx Contracts.
(c) STOCK
Stocks are stated at the lower of cost and net realisable value.
In general cost is calculated on an average cost basis. Net
realisable value is calculated by reference to the estimated
selling prices less cost of realisation.
Provision is made for obsolescent and slow moving stocks against
specific stock items identified by management of the company,
when the stock is considered to be of nil operational value.
(d) DEBTORS
Sales regarding labour are recognised in accordance with terms of
contracts. Sales regarding equipment hire are recognised on a
daily basis.
Incentive well profit is recognised in the month in which the
well is determined to have been completed.
Foreign currency sales are translated at the average rate ruling
in the month of the work being carried out.
Trade debtors are stated at their invoice value after any
provision for bad or doubtful debts. A debtor is considered
receivable on the earliest date on which payment is due, rather
than on the earliest date on which payment is expected.
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Provision for bad debts is considered after a monthly review of
the aged debt report. Where customers have become insolvent or
in liquidation provision is made in full. When payment is
overdue management adopt standard credit control procedures.
When these procedures are exhausted full provision is made.
Intercompany balances representing transactions with group
companies are reconciled and agreed on a monthly basis.
Prepayments are calculated on a time apportionment basis by
amounts paid pre year end which relate to post year end.
Accrued income includes work that has been carried out pre year
end, but for which a sales invoice has not been raised by the
year end.
(e) CASH AT BANK AND IN HAND
Cash at bank and in hand includes cash in hand and deposits
denominated in foreign currencies translated into sterling at the
period end rate of exchange. Deposits are included where they
are repayable on demand with any bank.
(f) CREDITORS: AMOUNTS FALLING DUE WITHIN ONE YEAR
Liabilities are recognised when the goods or services have been
received.
Trade creditors represent amounts owed to suppliers of goods and
services which have been approved for payment and processed
through the purchase ledger for payment.
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Loan creditor relates to the amount that is repayable within one
year.
Corporation tax creditor relates to the tax charge for the year,
and any prior years that have not yet been paid.
PAYE and social security creditor relates to the liability for
the last month of the year to be paid the following month. Also
any other PAYE and National Insurance liabilities that have not
been paid.
Accruals represent the costs of goods received or services
provided where these have not been processed through the purchase
ledger.
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SCHEDULE 3
CONTRACTS
(1) Contract BRT1 - XA1 - Detail Design of Drilling Facilities and Drilling
Operations and Maintenance.
Parties: Chevron U.K. Limited (1)
Xxxxxx Drilling & Energy Services U.K. Limited (2)
Date: 1 November 1994
As amended by Amendment numbers 1 to 4 to Contract No. BRT1 XA1 dated 1
November 1994, 1 April 1995, 1 September 1995 and 11 March 1996
respectively. (Refer to paragraph 11.1 of Schedule 8)
(2) Contract ALB-1038 - Alba Field Development Northern Platform.
Parties: Chevron U.K. Limited (1)
Xxxxxxxx Xxxxxx U.K. Limited (now NDESL) (2)
Date: 28 October 1991
As amended by Amendment numbers 1 to 4 and 6 to 8 to Contract ALB - 1038
dated 5 March 1992, 23 November 1992, 22 February 1993, September 1993,
1 September 1994, 22 November 1994 and 1 October 1994 respectively.
(Refer to paragraph 11.1 of Schedule 8)
(3) Contract CNS-7174 - Integrated Drilling Services and Well Services -
Ninian Field Operations.
Parties: Chevron U.K. Limited (1)
Xxxxxx Drilling & Energy Services U.K. Limited (2)
Date: 1 January 1994
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As amended by Amendment numbers 1 to 3 to Contract CNS - 7174 dated 22
November 1994, 1 January 1995 and 1 July 1995 respectively. (Refer to
paragraph 11.1 of Schedule 8)
(4) Contract W038 - Drilling, Well Intervention and Rig Maintenance Services
on the Xxxxxx and Xxxxxxxxx Platforms.
Parties: Oryx U.K. Energy Company (1)
Xxxxxx Drilling & Energy Services U.K. Limited (2)
Date: 23 February 1995
(5) Contract C.A. 7400 - Provision of Platform Drilling Services.
Parties: Elf Enterprise Caledonia Ltd. (1)
Xxxxxx Drilling & Energy Services U.K. Limited (2)
Date: 15 July 1995
As amended by Amendment number 1 to Contract CA. 7400 dated 24 April
1996. The letter referred to at Document 7.1/a/3/2 constitutes a de
facto amendment to Contract CA. 7400. (Refer to paragraph 11.1 of
Schedule 8)
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SCHEDULE 4
PART 1 - EXCLUDED EMPLOYEES
X. Xxxxx
X. Xxxxxx
J. Xxxxx
X. Xxxxxxx
X. Xxxxxxxx
PART 2 - EMPLOYEES INCLUDED IN REDUNDANCY ADJUSTMENT
NAME TOTAL
Xxxxx Xxx 12,175,05
Xxxxx Xxx 4,781.50
Xxxxx Xxx 2,521.75
Else Salem 1,927.22
Xxxxxxx Xxxx 5,090.67
Xxxxxxx Xxxx 11,000.00
Xxxxx Xxxx 1,507.57
Xxx Xxxxxx 7,386.98
Xxxxx Xxxxxxxxx 3,904.80
Xxxxx Xxxxxxx 752.56
Xxx Xxxxxx 10,968.26
Xxxxxxxx Xxxxxx 4,779.11
Xxxxxx Xxxxxx 1,428.56
Xxxxx Xxxxx 20,000.00
TOTALS 88,224.03
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SCHEDULE 5
EXCLUDED ASSETS
Part 1 - Residential Property:
a) Dwellinghouse located at 0 Xxxxxxxxxx
Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
b) Dwellinghouse located at 000 Xxxxxxx
Xxxxxxx, Xxxxxxxx
Part II - Assets assigned to US Branch:
The drilling rigs identified below together with pipe and all related assets
and supplies located and supplied in the USA including receivables and trade
payables:
(i) Drilling Rig No. 518, a Xxxxxxx Denver
1500.-E, located in the United States.
(ii) Drilling Rig No. 90, a National 100-UE,
located in the United States.
(iii) Drilling Rig No. 93, a Xxxxxxx Denver
1320-UE, located in the United States.
(iv) Drilling Rig No. 273, a National 1320-
UE, located in the United States.
Part III - Bids, tenders, proposals and information of a like nature relating
to:
(i) The activities of Sundowner and its
technology.
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(ii) The activities of Canrig and its
technology.
(iii) BHP Prirazlomnoye Project.
(iv) Texaco Mariner Project.
(v) All other bids, tenders and proposals
and related working papers prepared by
the Target Group, or any of them, which
have not resulted in a contract being
awarded to the Target Group, or any of
them, and whose validity has expired by
reason of the passing of time.
Part IV - Paloak Shares
99,900 shares of L.1 each in Paloak Limited
The Gleneagles Oilman's (AOGA) Sponsorship
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SCHEDULE 6
PROPERTIES
1. Lease of Main Building - sites 15 & 00 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxxx, Dyce, Aberdeen.
Date: 21 October 1981 and 9 November 1981
Parties: Kabell (Management and Development) Limited (1)
Xxxxxxxx Brothers North Sea Inc. (2)
2. Lease of Site 00 Xxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxx, Xxxx, Xxxxxxxx.
Date: 10 January 1992 and 5 February 1992
Parties: The Grampian Regional Council (1)
Xxxxxxxx Xxxxxx U.K. Limited (2)
3. Lease of sites 21 & 00 Xxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxx, Xxxx, Xxxxxxxx
Date: 25 November 1991 and 23 December 1991
Parties: The Grampian Regional Council (1)
Xxxxxxxx Xxxxxx U.K. Limited (2)
4. Lease of Xxxx 0, Xxxxxxxxxxxxx Xxxx, Xxxxxxxxx Xxxx, Xxxx Tullos,
Aberdeen.
Date: 26 June 1992 and 6 July 1992
Parties: Citygate Court Property Limited (1)
Thistle Well Services Limited (2)
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5. Lease of Units 7 and 8 and Office Suites 1 and 0, Xxxxxxxxxxxxx Xxxx,
Xxxxxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx.
Date: 4 August 1989 and 19 August 1989
Parties: Scarborough and Aberdeen Property Company Limited (1)
Thistle Well Services Limited (2)
6. Lease of Xxxx 0, Xxxxxxxxxxxxx Xxxx, Xxxxxxxxx Xxxx, Xxxx Tullos,
Aberdeen.
Date: 24 May 1981 and 14 June 1981
Parties: Citygate Court Property Company Limited (1)
Thistle Well Services Limited (2)
7. Office Suite 6, International Base, Xxxxxxxxx Road, East Tullos,
Aberdeen
Date: 26 June 1992 and 6 July 1992
Parties: Citygate Court Property Company Limited (1)
Thistle Well Services Limited (2)
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LIST OF DOCUMENTS RELATING TO THE PROPERTIES TO BE DELIVERED TO THE
BUYER AT CLOSING
(a) XXXX 0, XXXXXXXXXXXXX XXXX, XXXXXXXXX XXXX, XXXX XXXXXX XXXXXXXXXX
XXXXXX, ABERDEEN
1. Extract registered Lease between Citygate Court Property Co Ltd and
Thistle Well Services Ltd registered 12th July 1991.
2. Extract registered Assignation by Thistle Well Services Ltd in favour of
Coldeal Ltd registered 18th February 1993.
3. Copy Sub-Lease between Thistle Well Services Ltd and Nodeco Ltd dated
28th May and 22nd August 1996.
4. Letter of Consent dated 14th May 1996 from Landlord to the sub-lease
between Thistle Well Services Ltd and Nodeco Ltd, with Thistle Well
Services Ltd's acceptance.
5. Correspondence relating to installation of crane and testing chamber
comprising letter from City of Aberdeen Planning Department dated 8th
November 1989 and letter from Ashley Property Consultants dated 14th
November 1989.
6. Copy planning permission dated 7th June 1995 relating to construction of
unit loading canopy over door opening.
7. Copy planning permission dated 27th September 1995 relating to proposed
toilets and changing room.
8. Copy building warrant B95/1448.
9. Copy building warrant B95/1449.
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10. Copy executed an Assignation by Thistle Well Services Ltd in favour of
Xxxxxx Drilling and Energy Services (UK) Ltd with consent of Citygate
Court Property Co Ltd dated 16 September 1996 and 8 October 1996.
(b) XXXX 0, XXXXXXXXXXXXX XXXX, XXXXXXXXX XXXX, XXXX XXXXXX INDUSTRIAL
ESTATE, ABERDEEN
1. Extract registered Lease between Citygate Court Property Co Ltd and
Thistle Well Services Ltd, registered 10th August 1992,
2. Extract registered Assignation by Thistle Well Services Ltd in favour of
Coldeal Ltd, registered 18th February 1993.
3. Copy offer of sub-lease by Xxxxx & Williamsons on behalf of Xxxxxx
Drilling and Energy Services (UK) Ltd to Oil Tech Trading Ltd.
4. Copy executed an Assignation by Thistle Well Services Ltd in favour of
Xxxxxx Drilling and Energy Services (UK) Ltd with consent of Citygate
Court Property Co Ltd dated 16 September 1996 and 8 October 1996.
(c) XXXXX 0 & 0 XXX XXXXXX XXXXXX 0 & 4, INTERNATIONAL BASE, XXXXXXXXX ROAD,
EAST XXXXXX INDUSTRIAL ESTATE, ABERDEEN
1. Extract registered Lease between Scarborough & Aberdeen Property Co Ltd
and Thistle Well Services Ltd registered 5th September 1989.
2. Extract registered Minute of Agreement recording a review of rent
between Citygate Court Property Co Ltd and Thistle Well Services Ltd
registered 2Oth September 1991.
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3. Extract registered Assignation by Thistle Well Services Ltd in favour of
Coldeal Ltd registered 18th February 1993.
4. Copy building warrant B92/1589 with copy completion certificate dated
14th July 1992 relating thereto (alterations to office suites 1 & 4).
5. Letter of Consent from Ashley Property Consultants dated 7th December
1988 re connecting door between Units 7 & 8.
6. Copy letter dated 16th June 1992 from Citygate Court Property Co Ltd re
minor alterations to office suite 1 June/July 1991.
7. Coloured copy lease plan.
8. Photocopy Schedule of Condition in respect of Unit 7 prepared by X.X.
Xxxxxxx (undated).
9. Copy executed an Assignation by Thistle Well Services Ltd in favour of
Xxxxxx Drilling and Energy Services (UK) Ltd with consent of Citygate
Court Property Co Ltd dated 16 September 1996 and 8 October 1996.
(d) OFFICE SUITE 6, INTERNATIONAL BASE, XXXXXXXXX ROAD, EAST XXXXXX
INDUSTRIAL ESTATE, ABERDEEN
1. Photocopy draft Lease between Citygate Court Property Co Ltd and Thistle
Well Services Ltd.
2. Copy missives of lease (four letters) dated 16th March 1992 and
subsequent dates.
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3. Extract registered Assignation by Thistle Well Services Ltd in favour of
Coldeal Ltd registered 18th February 1993.
4. Letter from Citygate Court Property Co Ltd dated 27th March 1992 re
formation of new doorway between office suites 4 & 6.
5. Copy executed an Assignation by Thistle Well Services Ltd in favour of
Xxxxxx Drilling and Energy Services (UK) Ltd with consent of Citygate
Court Property Co Ltd dated 16 September 1996 and 8 October 1996.
(e) INTERNATIONAL BASE- MISCELLANEOUS
1. Photocopy completion certificate dated 14th May 1990 re building warrant
B89/2709 dated 22nd December 1989.
2. Interim Reports on Search against Thistle Well Services Ltd number 74490
from date of incorporation to 7th July 1992.
3. Interim Reports on Search against Thistle Well Services Ltd from 29th
June 1987 to 8th July 1992.
(f) SITES 15 AND 23 PITMEDDEN ROAD INDUSTRIAL ESTATE, DYCE, ABERDEEN
1. Photocopy extract registered Lease between the Grampian Regional Council
and Kabell (Management & Development) Ltd recorded DGRS (Aberdeen) 18th
August 1981 (Site 15).
2. Photocopy extract registered Lease between the Grampian Regional Council
and Kabell (Management & Development) Ltd recorded said DGRS 18th August
1981 (Site 23).
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3. Photocopy completed Lease between Kabell (Management and Development)
Ltd and Xxxxxxxx Brothers North Sea Inc dated 21st October and 9th
November 1981 (various areas of ground generally comprising Units 15 and
Units 23) (two copies).
4. Photocopy extract registered Minute of Agreement between Kabell
(Management & Development) Ltd and Xxxxxxxx Brothers North Sea Inc
registered 2nd October 1984.
5. Photocopy extract registered Minute of Agreement between the Governor
and Company of the Bank of Scotland and Xxxxxxxx Brothers North Sea Inc
registered 16th June 1989.
6. Photocopy Sub-Lease between Xxxxxxxx Brothers North Sea Inc and Xxxxxxxx
Nabors UK Ltd dated 21st September 1990.
7. Extract registered Minute of Agreement incorporating Assignation and
Variation of Lease between Xxxxxxxx Brothers North Sea Inc and Xxxxxx
Drilling & Energy Services UK Ltd and Albany Life Assurance Co Ltd
registered 12th January 1996 (two extracts - one with formal intimation
attached).
8. Quick copy Disposition by Commissioner for Xxxx Xxxxxx and Another with
consents to Xxxx Xxxxxxxx and Another recorded in the Sasines Register
for the County of Aberdeen on 18th May 1921.
9. Quick copy Deed of Servitude by Commissioner for Xxxx Xxxxxx and Another
to the County Council of the County of Aberdeen recorded said Register
of Sasines 26th September 1925.
10. Quick copy Disposition by Trustees of Xxxxx Xxxxxxxx to Xxxxxx Xxxxxx &
Sons (Dyce) Ltd recorded DGRS {Aberdeen) 5th April 1967.
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11. Quick copy Deed of Servitude containing Disposition by Trustees of Xxxxx
XxXxxxxx to Xxxxxx Xxxxxx & Sons (Dyce) Ltd registered DGRS (Aberdeen)
9th May 1967.
12. Quick copy Disposition by Trustees of Xxxxx XxXxxxxx to Xxxxxx Xxxxxx &
Sons (Dyce) Ltd registered DGRS 5th April 1967.
13. Quick copy Disposition by Trustees of Xxxxx XxXxxxxx to Xxx & Don River
Purification Board registered DGRS (Aberdeen) 9th July 1969.
14. Property enquiry certificate issued by City of Aberdeen District Council
dated 29th January 1991 re Xxxxx 00 xxx 00 Xxxxxxx Xxxxxx, Xxxxxxxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxx.
(x) XXXX 00 XXXXXXXXX XXXX XXXXXXXXXX XXXXXX, XXXX, XXXXXXXX
0. Extract registered Lease between the Grampian Regional Council and
Xxxxxxxx Nabors UK Ltd recorded DGRS (Aberdeen) 6th March 1992.
(h) SITES 21 AND 00 XXXXXXXXX XXXX XXXXXXXXXX XXXXXX, XXXX, XXXXXXXX
0. Extract registered Lease between the Grampian Regional Council and
Xxxxxxxx Nabors U.K. Ltd recorded DGRS (Aberdeen) 10th February 1992.
2. Miscellaneous prior titles re Site 00 Xxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxx,
Dyce, Aberdeen.
3. Miscellaneous prior titles re Site 00 Xxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxx,
Dyce, Aberdeen.
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SCHEDULE 7
TAX COVENANT
1. INTERPRETATION
1.1 In this Schedule unless the context otherwise requires:-
"Buyer's Relief" means:
(a) any Relief which arises in respect of, by
reference to or in consequence of any income
profits or gains earned, accrued or received
after Closing and any Event occurring after
Closing;
(b) any Relief which is taken into account in
computing and so reducing or eliminating any
provision for deferred Taxation which
appears in the Consolidated Working Capital
(or which, but for such Relief, would have
appeared in the Consolidated Working
Capital); and
(c) any Relief which is treated as an asset in
the Consolidated Working Capital;
"Claim for Taxation" means any assessment, notice, demand, letter or
other document issued by or action taken by or on
behalf of any Taxation Authority or any
circumstances indicating that the Company or any of
its Subsidiaries is or may be placed or is
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sought to be placed under a Liability for Taxation;
"Event" means any event, act, failure, omission (including
the failure to make sufficient distributions to
avoid an apportionment or deemed distribution of
income), transaction (including the sale of the
Shares pursuant to this Agreement), or change in
residence, whether or not the Company or any of its
Subsidiaries was a party thereto;
"Liability for
Taxation" means:
(a) any liability (including a liability which
is a primary liability of some other person
and whether or not there is a right of
recovery against another person) to make an
actual payment or increased payment of
Taxation;
(b) any liability (including a liability which
is a primary liability of some other person
and whether or not there is a right of
recovery against another person) to make a
payment or increased payment of Taxation
which would have arisen but for being
satisfied, avoided or reduced by any Buyer's
Relief; and
(c) the disallowance, loss, clawback, reduction,
restriction or modification of
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any Buyer's Relief within paragraph (b) or
(c) of the definition of Buyer's Relief;
"Relief" includes any relief, saving, allowance, deduction,
exemption or set-off relevant to the computation of
any Liability for Taxation, any credit against
Taxation or any right to a repayment of Taxation;
"Taxation" includes (without limitation):
(a) within the United Kingdom advance
corporation tax, capital gains tax,
corporation tax, customs and excise duties,
income tax (including PAYE), inheritance
tax, insurance premium tax, national
insurance contributions, petroleum revenue
tax, rates and community charge, stamp duty,
stamp duty reserve tax and VAT;
(b) outside the United Kingdom (and in
particular in the United States of America),
all taxes on gross or net income, profits or
gains and taxes on receipts, sales, use,
occupation, franchise, value added and
personal property;
(c) all former taxes and all other levies,
imposts, duties, charges or withholdings in
the nature of taxes imposed by any Taxation
Authority;
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(d) any payment which the Company or any of its
Subsidiaries may be or become bound to make
to any person in respect of any taxation or
as a result of any enactment relating to any
taxation and any obligation to repay any
payment received for group relief,
surrenders of advance corporation tax or
refunds of taxation; and
(e) all interest, penalties, fines and other
charges arising out of the above or to a
failure to make any return or supply any
information in connection with any of the
above;
"Taxation Authority" means the Inland Revenue, HM Customs & Excise, the
Department of Social Security and any other body
having functions in relation to the administration
and collection of Taxation whether in the United
Kingdom or elsewhere.
1.2 In interpreting this Schedule:
1.2.1 words and expressions defined elsewhere in this Agreement shall
have the same meanings in this Schedule except where otherwise
provided or expressly defined in this Schedule and, unless the
context otherwise requires, Section 1.3 of this Agreement shall
apply to the interpretation of this Schedule;
1.2.2 any reference to income, profits or gains earned, accrued or
received or an Event which has occurred includes income,
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profits or gains deemed to have been or treated as or regarded as
earned, accrued or received or an Event deemed to have or treated
as having or regarded as having occurred, as the case may be.
2. COVENANT TO PAY
The Seller covenants with the Buyer to pay to the Buyer an amount equal to:
2.1 any Liability for Taxation of the Company or any of its Subsidiaries in
respect of, by reference to or in consequence of:
2.1.1 any income, profits or gains earned, accrued or received on or
before Closing; or
2.1.2 any Event which occurred on or before Closing;
2.2 any Liability for Taxation of the Company or any of its Subsidiaries
under sections 190 and 191 TCGA, section 132 Finance Xxx 0000, section
214 ICTA or section 96(8) Finance Xxx 0000 which would not have arisen
but for any act or omission of any company (other than (i) any Company
which at the time the Liability for Taxation arises is an Affiliate of
the Buyer or (ii) the Company or any of its Subsidiaries) which was at
any time before Closing a member of the same group of companies as the
Company or any of its Subsidiaries for any Taxation purposes;
2.3 any Liability for Taxation of the Company or any of its Subsidiaries
under section 767A ICTA by reason of corporation tax assessed on any
company (other than (i) any Company which at the time the Liability for
Taxation arises is an Affiliate of the Buyer or (ii) the Company or any
of its Subsidiaries) and remaining unpaid where the company in question
is or was under the control of any person who has at any time prior to
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Closing had control of the Company or any of its Subsidiaries (within
the meaning in section 767B(4) ICTA);
2.4 any Liability for Taxation of the company or any of its Subsidiaries
arising as a result of the transfer of the Excluded Assets prior to
Closing pursuant to clause 5.6 of the Agreement;
2.5 any Liability for Taxation of the Company or any of its Subsidiaries
arising in respect of any operations carried on in the United States of
America prior to Closing;
2.6 any costs reasonably and properly incurred by the Company or any of its
Subsidiaries in connection with any liability falling within 2.1 to 2.5
above.
3. EXCLUSIONS
The Covenant contained in paragraph 2 shall not apply and the Buyer shall have
no claim against the Seller under it to the extent that:
3.1 provision or reserve in respect of the liability in question is made in
the Financial Statements or that payment or discharge of such liability
has been taken into account therein or in determining the amount of the
Consolidated Working Capital;
3.2 the Buyer has recovered damages from the Seller for breach of any of the
Warranties in respect of the same liability or otherwise pursuant to the
Agreement;
3.3 the liability in question arises as a result of a change in rates of
Taxation or a change in legislation relating to Taxation or a change in
any extra statutory concession or the published practice of any
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Taxation Authority, made, in each case, after Closing and with
retrospective effect;
3.4 the claim would result in the maximum aggregate liability of the Seller
set out in Clause 8.1 (Liability under Representatives and Warranties)
of this Agreement being exceeded;
3.5 the claim is made outside the time limit contained in Clause 8.4 of this
Agreement;
3.6 such claim would not have arisen but for a change in the treatment of
assets and liabilities or of the Taxation attributable to timing
differences (including capital allowances) in future accounts of the
Target Group or but for any other change in the accounting bases upon
which the Target Group prepares its future accounts except to the extent
necessary to rectify any non-compliance with GAAP as at the date of this
Agreement;
3.7 such claim would not have arisen but for an omission, act or transaction
(other than an omission, act or transaction carried out pursuant to a
legally binding obligation created on or before Closing) occurring after
Closing otherwise than in the Ordinary Course of Business which the
Buyer knew or ought reasonably to have known would give rise to the
liability in question;
3.8 such claim would not have arisen or would have been reduced or
eliminated but for a failure on the part of any member of the Target
Group to make any claim, election, surrender or disclaimer or give any
notice or consent or do any other thing after Closing the making, giving
or doing of which was taken into account in preparing the Financial
Statements or determining the Consolidated Working Capital and which was
reasonably apparent from the face thereof;
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3.9 to the extent that the claim or breach would not have arisen but for
some act, omission, transaction or arrangement whatsoever carried out at
the written request of the Buyer prior to Closing;
4. AMOUNT OF LIABILITY FOR TAXATION
The amount of any Liability for Taxation shall be as follows:
4.1 to the extent that a Liability for Taxation involves a liability of the
Company or any of its Subsidiaries to make an actual payment or
increased payment of Taxation, the amount of such payment or increased
payment;
4.2 to the extent that a Liability for Taxation involves a liability of the
Company or any of its Subsidiaries to make a payment or increased
payment of Taxation which would have arisen but for being satisfied,
avoided or reduced by any Buyer's Relief, the amount of Taxation which
the Buyer's Relief in fact saves;
4.3 to the extent that a Liability for Taxation involves the disallowance,
loss, clawback, reduction, restriction or modification of any Buyer's
Relief (other than a right to a repayment of Taxation) which has been
taken into account in the Consolidated Working Capital, the amount by
which the working capital of the Company or its Subsidiaries as shown in
the Consolidated Working Capital Statement would have been reduced but
for the presumed availability of the Buyer's Relief; and
4.4 to the extent that a Liability for Taxation involves the disallowance or
reduction by any Taxation Authority of a right to a repayment of
Taxation, the amount of the repayment so disallowed or lost.
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5. TIME FOR PAYMENT
5.1 Any amount which the Seller is obliged to pay to the Buyer under this
Schedule shall be paid in cleared funds on or before the following dates
(or, if later, the fifth Business Day after the Buyer notifies the
Seller of the relevant Claim in accordance with paragraph 6.1):
5.1.1 in the case of a Liability for Taxation which involves a
liability of the Company or any of its Subsidiaries to make an
actual payment or increased payment of Taxation, the fifth
Business Day prior to the date on which the Taxation is due and
payable to the relevant Taxation Authority;
5.1.2 in the case of a Liability for Taxation which involves a
liability of the Company or any of its Subsidiaries to make a
payment or increased payment of Taxation which would have arisen
but for being satisfied, avoided or reduced by the use by the
Company or any of its Subsidiaries of any Buyer's Relief, the
fifth Business Day prior to the date on which the Taxation would
have been payable to the relevant Taxation Authority;
5.1.3 in the case of a Liability for Taxation which involves the
disallowance or reduction by any Taxation Authority of a right to
repayment of Taxation, the fifth Business Day after the date on
which such repayment of Taxation would otherwise have been due to
be made by such Taxation Authority; and
5.1.4 in any other case, the fifth Business Day after service by the
Buyer to the Seller of a written demand for payment.
5.2 If any amount payable by the Seller to the Buyer under this Schedule is
not paid on or before the due date for payment, that sum shall carry
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interest at the rate of 2 per cent above the base lending rate of
National Westminster Bank plc from the due date until payment.
6. CONDUCT OF CLAIMS
6.1 If the Buyer becomes aware of any Claim for Taxation which could give
rise to a claim being made by the Buyer under this Schedule or the
warranties contained in Clause 9 of Schedule 8 of the Agreement it shall
notify the Seller as soon as reasonably practicable.
6.2 The Buyer agrees (if the Seller indemnifies and secures the Buyer and
the Company or any of its Subsidiaries to the reasonable satisfaction of
the Buyer against any loss, liability, costs or damages which may
thereby be incurred including the Taxation the subject matter of the
Claim) to take and procure that the Company or any of its Subsidiaries
shall take such action and give such information and assistance as the
Seller may reasonably request to resist, appeal or compromise any Claim
for Taxation notified to the Seller in accordance with paragraph 6.1.
6.3 The action which the Seller may request under paragraph 6.2 shall
include the Buyer or the Company or any of its Subsidiaries applying to
postpone (so far as legally possible) the payment of any Taxation and
allowing professional advisers nominated by the Seller (subject to
approval by the Buyer, such approval not to be unreasonably withheld or
delayed) to take over at the Seller's own expense the conduct of all
negotiations and proceedings in connection with the Claim for Taxation.
6.4 The Seller shall keep the Buyer fully informed as to any action taken or
postponed to be taken in conjunction with the conduct of all
negotiations and proceedings of whatever nature arising in connection
with the such dispute and all other relevant matters and shall supply to
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the Buyer in advance copies of all returns and communications proposed
to be made to any Taxation Authority.
7. RELIEFS
7.1 If the auditors for the time being of the Company or its Subsidiaries
shall determine (at the request and expense of the Seller) that any
Liability for Taxation which has resulted in a payment having been made
by the Seller under this Schedule or the Warranties contained in Clause
9 of Schedule 8 of the Agreement has given rise to a Relief for the
Company, any of its Subsidiaries or the buyer which would not otherwise
have arisen or subject to Clause 8.2 that the provision for Taxation in
the Consolidated Working Capital Statement was an overprovision, then,
as and when the liability of the Company, its Subsidiaries or the Buyer
to make an actual payment of or in respect of Taxation is reduced by
reason of that Relief or a payment is received in respect of a Relief
(after taking account of the effect of all other Reliefs that are or
become available to the Company, its Subsidiaries or the Buyer including
any Relief derived from a subsequent accounting period) from the amount
that that liability would have been but for the availability of that
Relief, (or in the case of an overprovision forthwith upon the
determination of the auditors) the amount by which that liability is so
reduced or the amount of the payment or the amount of the overprovision
shall be dealt with in accordance with paragraph 7.3.
7.2 The amount of the overprovision shall be calculated on the basis that no
overprovision may arise or be increased by:-
7.2.1 a retrospective change in the law of Taxation announced after
Closing;
7.2.2 any Relief arising after Closing; or
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7.2.3 any act of the Buyer or the Company carried out after Closing
except if any of clause 3.7, clause 3.8, or clause 3.9 hereof are
applicable.
7.4 Where it is provided under paragraph 8.1 that any amount (the "Relevant
Amount") is to be dealt with in accordance with this paragraph:-
7.4.1 the Relevant Amount shall first be set off against any payment
then due from the Seller under this Schedule or under the
Agreement in respect of the Warranties contained in clause 9 of
Schedule 8 of the Agreement; and
7.4.2 to the extent there is an excess of the Relevant Amount over any
payment referred to in clause 7.4.1 hereof, a refund shall be
made to the Seller of any previous payment or payments made by
the Seller under this Schedule or under the Agreement in respect
of the Warranties contained in clause 9 of Schedule 8 of the
Agreement and not previously refunded under this paragraph up to
the amount of such excess; and
7.4.3 to the extent that the excess referred to in paragraph 7.4.2 is
not exhausted under that paragraph, except in the case of an
overprovision the remainder of that excess shall be carried
forward and set off against any future payment or payments which
become due from the Seller under this Schedule or under the
Agreement in respect of the Warranties contained in clause 9 of
Schedule 8 of the Agreement and in the case of an overprovision
the amount of the excess shall be paid to the Seller forthwith.
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7.4 The Buyer shall use its reasonable endeavours to procure that the
auditors make a timely determination when requested to do so by the
Seller for the purposes of paragraph 7.1 hereof.
7.5 For the avoidance of doubt, the amount of any overprovision shall
include not only the amount of any provision for Taxation in the
Consolidated Working Capital to the extent the same is determined to
have been an overprovision, but also the amount of any Tax Refund of any
Company arising as a result of any Event on or before Closing, to the
extent the same was not reflected in the Consolidated Working Capital or
exceeds the amount of any Tax Refund reflected in the Consolidated
Working Capital other than any Tax Refund received in connection with
the litigation referred to in Section 6.2 of the Agreement. Where the
auditors determine no Tax Refund has been received or that a Tax Refund
has been received and in either case the amount is less than that
provided in the Consolidated Working Capital, the amount of such
shortfall shall be treated as reducing any overprovision for Taxation.
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8. CLAIMS AGAINST THIRD PARTIES
8.1 Where the Seller has made a payment under this Schedule or the
Warranties contained in clause 9 of Schedule 8 of the Agreement and the
Company or any of the Subsidiaries is entitled to recover from any third
party (including a Taxation Authority but excluding the Buyer, the
Company or any of the Subsidiaries) any sum in respect of the matter to
which the payment made by the Seller relates (including recoveries by
way of discount, credit or set-off), the Buyer shall or shall procure
that the Company or any of its Subsidiaries shall (at the request and
expense of the Seller and upon the Seller indemnifying and securing the
Buyer, the Company and its Subsidiaries against all costs or expenses
which may thereby be incurred) subject to paragraph 8.3, take such
action as the Seller may reasonably request to enforce such recovery
against the person in question.
8.2 The Buyer shall account to the Seller for any sums recovered in
accordance with paragraph 8.1 (including any interest or repayment
supplement paid by such a person) net of Taxation (if any) on such sum
and after deduction of any costs or expenses reasonably incurred by the
Buyer, the Company or any of its Subsidiaries in recovering such sum,
provided that the amount paid by the Buyer under this paragraph
(excluding interest or repayment supplement) shall not exceed the amount
paid by the Seller in respect of the relevant claim under Warranties
contained in clause 9 of Schedule 8 of the Agreement.
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9. TAXATION ON PAYMENTS BY SELLER
9.1 All payments by the Seller under this Schedule shall be made in full
without any deduction or withholding (whether in respect of Taxation,
set-off, counter claim or otherwise) unless the deduction or withholding
is required by law, in which case the Seller shall forthwith pay to the
Buyer such additional amount as will ensure that the Buyer receives a
net amount equal to the full amount which it would have received but for
such deduction or withholding. The Buyer shall account to the Seller
for the benefit of any credit obtained by the Buyer in respect of the
deduction or withholding.
9.2 If any payment received by the Buyer under this Schedule is subject to
Taxation, the Seller shall pay to the Buyer such additional amount
(after taking into account any Taxation payable in respect of such
additional amount) as will ensure that the Buyer receives a net amount
equal to the full amount which it would have received had the payment
not been subject to Taxation.
9.3 The provisions of paragraph 9 shall not apply to interest payable under
paragraph 5.2
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10. ASSIGNMENT
The benefit of the provisions of this Schedule 10 shall not be assigned by the
Buyer.
11. BUYER'S INDEMNITY
11.1 The Buyer agrees to indemnify the Seller against any liability which the
Seller may incur under section 767A and section 767B ICTA as a result of
a failure by the Company or any of the Subsidiaries to discharge any
liability for Taxation for which provision has been made in the
Consolidated Working Capital Statement (for itself and as agent for any
company controlled by the Seller).
11.2 The Seller shall use any amount paid by the Buyer pursuant to clause
11.1 to discharge the liability for Taxation which has given rise to the
Claim.
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SCHEDULE 8
WARRANTIES
1. ORGANIZATION, QUALIFICATION, AND CORPORATE POWER
Each of the Company and its Subsidiaries is a company duly organized and
validly existing under the laws of the jurisdiction of its incorporation. Each
of the Company and its Subsidiaries is duly authorised to conduct business in
the United Kingdom. Each of the Company and its subsidiaries is duly
authorised under the laws of each jurisdiction where such qualification is
required, except where the lack of such qualification would not have a material
adverse effect on the financial condition of the Company and its Subsidiaries
taken as a whole. Each of the Company and its Subsidiaries has full corporate
power and authority to carry on the businesses in which it is engaged and to
own and use the properties owned and used by it. Schedule 1 lists the
directors and secretary of each of the Company and its Subsidiaries.
2. CAPITALIZATION
The Seller owns the entire legal and beneficial interest in the Company Shares
free and clear of Encumbrances. The Company Shares constitute the whole of the
Company's allotted and issued share capital and are fully paid or credited as
fully paid. There are no outstanding or authorised options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require the Company or any of the
Subsidiaries to issue, sell, or otherwise cause to become outstanding any of
its share capital. There is no Encumbrance on, over or affecting any of the
Company Shares or any unissued shares, debentures or other securities of any
member of the Target Group and no person has, or has claimed, the right
(whether exercisable now or in the future and whether contingent or not) to
call for the issue or transfer of any shares, debentures or other securities of
any member of the Target Group.
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3. NONCONTRAVENTION
Neither the execution and the delivery of this Agreement, nor any of the
Ancillary Documents nor the consummation of the transactions contemplated
hereby, will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of
any government, governmental agency, or court to which any of the Company and
its Subsidiaries is subject or (ii) violate any provision of the Memorandum or
Articles of Association of any of the Company and its Subsidiaries or (iii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which any of the Company and its
Subsidiaries is a party or by which it is bound or to which any of their
respective assets is subject (or result in the imposition of any Encumbrance
upon any of their respective assets) or (iv) of itself result in the creation
of an Encumbrance on any of the assets of the Target Group; or (v) of itself
result in any member of the Target Group losing the benefit of any Licence.
None of the Company and its Subsidiaries needs to give any notice to, make any
filing with, or obtain any authorisation, consent, or approval of any
government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement.
4. BROKERS' FEES
None of the Company and its Subsidiaries has any liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.
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5. ASSETS AND STOCK
5.1 All assets included in the Financial Statements or acquired by the
Company or its Subsidiaries since the Accounts Date and all assets owned
by the Company and each Subsidiary are:-
(i) legally and beneficially owned by the Target Group free from any
Encumbrance;
(ii) in the possession or under the exclusive control of the Target
Group; and
(iii) where subject to a requirement for a Licence, duly licensed or
registered in the sole name of a member of the Target Group.
5.2 The Asset register marked "A" attached to the Disclosure Letter
comprises a record which is true, complete and accurate as to the plant,
machinery, equipment and vehicles owned by or leased to each member of
the Target Group and actively used in the performance of its business.
5.3 All equipment (other than the Drill Pipe and Instrumentation, in respect
of which no such warranty is given) owned by or leased to the Target
Group or parties to the Contracts (other than the Target Group) which is
located on the relevant platforms on which services are being provided
pursuant to the Contracts at the date of this Agreement and which is
required for the performance of such services has been maintained in
accordance with good oilfield practice.
5.4 No member of the Target Group is a party to a lease or hire, agreement
in respect of the assets listed in the asset register marked "A"
attached to the Disclosure Letter, nor party to any such agreement in
respect of any other assets under which there is an obligation to make
an annual payment in excess of Pound Sterling 50,000 or a hire purchase,
credit
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sale or conditional sale agreement, under which there is an outstanding
obligation to make payments in excess of Pound Sterling 50,000.
5.5 No member of the Target Group has purchased any raw materials or
finished products on terms that title thereto does not pass until full
payment is made.
6. SUBSIDIARIES
6.1 Schedule 1 sets forth for the Company and each Subsidiary as a true and
complete record of (i) its name and registered office, (ii) its
authorised and issued share capital of each class, and (iii) the names
of the registered holders of the issued shares and the number of shares
held by each such holder. All of the shares of the Company and each
Subsidiary have been duly authorised, validly issued and are fully paid.
Neither the Company nor any Subsidiary currently holds or has at any
time held any shares or any interest therein in any other company (save
for the Company's holding of shares in the Subsidiaries).
6.2 TWSL is and has been since the Accounts Date dormant as defined in
Section 250(3) of the Act.
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7. FINANCIAL STATEMENTS
7.1 Attached to the Disclosure Letter are the Financial Statements and the
Most Recent Financial Statements. The Financial Statements (including
the notes thereto) and the Most Recent Financial Statements have been
prepared in accordance with GAAP applied on a consistent basis
throughout the period covered thereby and present a true and fair view
of the financial condition of the Company and its Subsidiaries as of
such dates and the results of the operation of the Company and its
Subsidiaries for such periods PROVIDED, HOWEVER, that the Most Recent
Financial Statements are subject to normal year-end adjustments and lack
footnotes and other presentation items and do not include any income,
expenditure or capital sum referable to the U.S. branch assets as
described in Schedule 5.
7.2 The Financial Statements have been prepared on a basis and using
accounting conventions, standards, principles and practices which are
consistent in all material respects for the three financial years ended
on the Accounts Date.
7.3 The Company's and its Subsidiaries' accounting reference date is as set
out in Schedule 1 and has not at any time in the 3 years prior to the
Accounts Date been any other date.
7.4 Since the Accounts Date:
(i) the business of Target Group has been carried on in the ordinary
and usual course so as to maintain the business as a going
concern;
(ii) no distributions within the meaning of Part VIII of the Act or of
ICTA have been declared paid or made by any member of the Target
Group except as provided in the Accounts;
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(iii) no share or loan capital of any Target Group has been or agreed
to be issued allotted redeemed purchased or repaid by any member
of the Target Group;
(iv) no asset with a book value in excess of Pound Sterling 50,000
(nor assets with an aggregate book value in excess of Pound
Sterling 500,000) have been acquired or disposed of by any member
of the Target Group except for current assets in the ordinary and
usual course of trading;
(v) no contract, arrangement or transaction has been entered into and
no payment has been made by any member of the Target Group
otherwise than in the Ordinary Course of Business and on entirely
arm's length terms;
(vi) no single item of capital expenditure has been or agreed to be
incurred and no single commitment of a capital nature has been or
agreed to be entered into exceeding Pound Sterling 50,000 (nor
capital expenditure or commitments of a capital nature in an
aggregate amount of Pound Sterling 500,000) in total by any
member of the Target Group;
(vii) no resolution of the shareholders of any member of the Target
Group has been passed;
(viii) to the Knowledge of the Seller, there has not been any material
adverse change in the financial condition of the Company and its
Subsidiaries taken as a whole.
7.5 Each member of the Target Group's accounts, books, ledgers, financial
and other records are in its possession or under its control, up
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to date and contain a record of all matters required to be entered in
them by the Act, GAAP and other relevant legislation.
8. LEGAL COMPLIANCE
8.1 To the Knowledge of the Seller, each of the Company and its Subsidiaries
has complied with all applicable laws (including rules, regulations,
codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder).
8.2 Neither the Seller nor any member of the Target Group has received
written notice of any current, pending or threatened governmental,
regulatory or other investigation, enquiry or disciplinary action
regarding any member of the Target Group.
8.3 To the Knowledge of the Seller, each member of the Target Group has all
necessary Licences for the proper carrying on of its business in the
United Kingdom and each Licence is valid, in force and unconditional or
subject only to a condition that has been fulfilled and under which no
further action is required.
8.4 All returns, particulars, resolutions and other documents required to be
delivered to the Registrar of Companies by each member of the Target
Group have been properly prepared and delivered.
8.5 The copy of the memorandum and articles of association of the Target
Group attached to the Disclosure Letter is true, complete, accurate and
up-to-date and includes copies of all resolutions or agreements required
by law to be annexed to it and each register, minute book and other book
required to be kept by the Act has been properly kept, is up-to-date and
contains a true, accurate and complete record of the matters which
should be dealt with in those books and no notice or
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allegation that any of them is incorrect or should be rectified has been
received.
8.6 Due compliance has been made with the provisions of the Act and other
legal requirements in connection with the formation of each member of
the Target Group, the allotment and issue, purchase and redemption of
shares, debentures or other securities of the Target Group, the payment
of dividends, any reduction of share capital and no notice or allegation
has been received that any of the foregoing is incorrect of should be
rectified.
8.7 No member of the Target Group has received notice that any of the
Licences necessary for the operation of their respective businesses has
been or will be cancelled or not renewed.
9. TAX MATTERS
9.1 Each of the Company and its Subsidiaries has filed all Tax returns that
it was required to file, and has paid all Tax shown thereon as owing,
except where the failure to file Tax returns or to pay Tax would not
have a material adverse effect on the financial condition of the Company
and its Subsidiaries taken as a whole.
9.2 The Disclosure Letter lists all Tax returns filed with respect to any of
the Company and its Subsidiaries for taxable periods ended on or after
31 December 1990, and indicates those Tax returns that have been subject
to Inland Revenue enquiry and indicates those Tax returns that are
currently subject to audit.
9.3 None of the Company and its Subsidiaries has waived any statute of
limitations in respect of taxes or agreed to any extension of time with
respect to an Tax assessment or deficiency except as noted in the
Disclosure Letter.
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9.4 None of the Company and its Subsidiaries is a party to any Tax
allocation or sharing agreement.
10. REAL PROPERTY
10.1 To the Seller's Knowledge all members of the Target Group have obtained
planning permission in terms of the Planning Acts and all necessary
consents and warrants required under the Buildings Regulations with
respect to any development of an alteration or addition to the
Properties carried out by such member.
10.2 With regard to any property held on lease by any member of the Target
Group and forming part of the Properties true, accurate and complete
copies of each relevant lease of any such property to any such member
have been supplied to the Buyer each such lease is valid and subsisting
and no member of the Target Group has received notice of any dispute or
claim outstanding thereunder.
10.3 No member of the Target Group has contracted to purchase or lease any
property for future settlement nor has any such member contracted or
agreed to dispose of or in any way alienate any of the Properties.
10.4 The Properties are held subject to and with the benefit of the tenancies
(which expression includes sub-tenancies and sub-under tenancies) as set
out in Part 2 of the Schedule 6 and none others.
10.5 With respect to such tenancies referred to in paragraph 10.4:
10.5.1 true, accurate and complete copies of each relevant tenancy of
any such property by all members of the Target Group have been
supplied to the Buyer such tenancy is valid and subsisting,
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no member of the Target Group has received notice of any dispute
or claims outstanding thereunder;
10.5.2 the relevant member of the Target Group has observed and
performed the covenants on the part of the landlord thereunder.
10.6 No member of the Target Group has in relation to the Properties been
served with any notices at the instance of the Local Authority as
environmental health authority or other official regulatory body or
authority in respect of any breach of legislation, regulations, codes of
practice, circulars or guidance notes made thereunder relating to:
waste; contaminated land; discharges to land, ground and surface water
and sewers; emissions to air; noise; dangerous, hazardous or toxic
substances of materials; nuisance; health and safety.
11. MATERIAL CONTRACTS
11.1 Attached to the Disclosure Letter are true, accurate and complete copies
of the Contracts and any amendments thereto which comprise all of the
contractual terms and material written arrangements and understandings
(whether or not legally binding) between the parties to the Contracts.
11.2 There are no drilling contracts or other material written arrangements
or understandings in relation to drilling (whether or not legally
binding) to which any member of the Target Group is a party other than
the Contracts.
11.3 No member of the Target Group is a party to, or subject to, any
contract, or material written arrangement or understanding (whether or
not legally binding) the performance or discharge of which could involve
consideration or payment in excess of Pound Sterling 50,000 and which:-
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11.3.1 is long term (ie. not terminable on 90 days' notice or less
without payment of compensation or damages);
11.3.2 is not wholly on an arm's length basis in the Ordinary Course of
Business;
11.3.3 expressly restricts its freedom to carry on its business in any
part of the world in such manner as it thinks fit;
11.3.4 is an outstanding offer, tender, proposal, estimate or quotation
which, if accepted or incorporated into a contract would
constitute a contract which, if now in existence, would fall
within any of paragraphs 11.2 or 11.3 and which would account for
more than 5% of the turnover for 1996 as shown in the Most Recent
Financial Statements;
11.3.5 is a distributorship, agency or management agreement or
arrangement;
11.3.6 accounted for more than 5% of the Target Group's turnover in the
period since the Accounts Date as shown by the Most Recent
Financial Statements.
11.4 Save as disclosed in the Financial Statements, there is not outstanding
any guarantee, indemnity or suretyship given by or for the benefit of
any member of the Target Group.
11.5 To the Knowledge of the Seller no Contract has been terminated and no
notice of termination or intention to terminate has been served by or on
any member of the Target Group in respect of any of the Contracts.
11.6 There will at Closing be no outstanding obligations and no continuing
contracts or arrangements between any member of the Retained Group
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and the Target Group except as contemplated by this Agreement or any of
the Ancillary Documents.
12. POWERS OF ATTORNEY
There are no outstanding powers of attorney executed on behalf of any of the
Company and its Subsidiaries.
13. LITIGATION
The Disclosure Letter sets forth each instance in which any of the Company and
its Subsidiaries (i) is subject to any outstanding injunction, judgment, order,
decree, ruling, or charge or (ii) is a party to any action, suit, proceeding,
hearing, or investigation of, in, or before any court or quasi-judicial or
administrative agency of any local, or foreign jurisdiction and to the Seller's
Knowledge no such action, suit, proceeding, hearing or investigation is pending
by or against any member of the Target Group.
14. JOINT VENTURE
No member of the Target Group is or has agreed to become a member of any
partnership or other unincorporated association, joint venture, European
Economic Interest Grouping or consortium (other than a recognised trade
association) or other profit or income sharing arrangement.
15. BRANCH
No member of the Target Group has any branch, agency or place of business
outside the United Kingdom and does not use its letterhead, books or vehicles
or otherwise carry on its business under any name other than its corporate
name.
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16. ACCURACY OF SCHEDULES
The contents of Schedules 1, 3, 4, 5, 6 and 10 are true and accurate.
17. COMPETITION AND FAIR TRADING
17.1 No member of the Target Group has given or been requested to give an
undertaking or written assurance (legally binding or not) to any court
or a governmental authority or an authority of the European Communities
or European Economic Area under the RTPA, Fair Trading Act 1973,
Competition Xxx 0000, Resale Prices Xxx 0000, Treaty of Rome, Agreement
on the European Economic Area or other statute or legal instrument of
the United Kingdom or other jurisdiction. To the Seller's Knowledge, no
member of the Target Group is affected by an order or regulation made
under the Fair Trading Xxx 0000 or Competition Xxx 0000 or the
competition law of another jurisdiction or by a decision of the
Commission of the European Communities or EFTA Surveillance Authority or
a competition authority of another jurisdiction.
17.2 To the Seller's Knowledge, no member of the Target Group has received a
communication or request for information relating to any aspect of the
Target Group's business from or by the Director General of Fair Trading,
Monopolies and Mergers Commission, Secretary of State for Trade and
Industry, Commission of the European Communities or EFTA Surveillance
Authority or competition or governmental authority of another
jurisdiction. No agreement, arrangement or conduct (by omission or
otherwise) of any member of the Target Group has been the subject of an
investigation, report or decision by any of those persons or bodies.
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17.3 No member of the Target Group has received any grant or subsidy which
would be repayable as a result of the sale of the Company Shares to the
Buyer.
18. INSOLVENCY
18.1 In relation to each member of the Target Group:-
18.1.1 no resolution has been passed (and no meeting has been convened,
and no written resolution has been circulated with a view to any
resolution), no petition has been presented and no order has been
made for administration or winding up or for the appointment of a
receiver or provisional liquidator;
18.1.2 no procedure has been commenced, by the Registrar of Companies or
any other person, with a view to striking off under section 652
of the Act;
18.1.3 no receiver has been appointed, no Encumbrance has been enforced,
and no floating charge has crystallised on or over any of its
assets, and no event has occurred or will occur by virtue of the
execution and performance of this Agreement or the Ancillary
Documents and the other agreements and documents referred to in
it which would cause, or entitle any person to cause, any of
these things to happen;
18.1.4 it has not stopped paying its creditors, is not insolvent, and is
not unable to pay its debts for the purposes of section 123 of
the Insolvency Xxx 0000;
18.1.5 there is no unsatisfied judgement or order of any court or
tribunal, or award of any arbitrator, against it;
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18.1.6 no distress, execution or other process has been levied against
any of its assets;
18.1.7 no meeting of its creditors, or any class of them, has been held
or summoned, no proposal has been made for a moratorium,
composition or arrangement in relation to any of its debts, or
for a voluntary arrangement under Part 1 of the Insolvency Xxx
0000; and
18.1.8 no event analogous to any of the above has occurred in any
jurisdiction.
18.2 In relation to the Seller:-
18.2.1 no resolution has been passed, no petition has been presented and
no order has been made for administration or winding up or for
the appointment of a receiver or provisional liquidator;
18.2.2 no receiver has been appointed, no Encumbrance has been enforced,
no floating charge has crystallised and no distress, execution or
other process has been levied, on or over any of the Company
Shares; and
18.2.3 no event analogous to any of the above has occurred in any
jurisdiction.
19. INTELLECTUAL PROPERTY
19.1 No member of the Target Group is the registered proprietor of any
Registered Intellectual Property and there are no applications for the
registration of any Intellectual Property by any member of the Target
Group pending.
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19.2 All Intellectual Property currently used in or in connection with the
business of the Target Group and which is material to the Target Group
as a whole is legally and beneficially owned by a member of the Target
Group and is used exclusively by it.
19.3 To the Knowledge of the Seller, the processes and methods employed, the
services provided, the business conducted and the products manufactured
used or dealt with by the Target Group do not infringe any Intellectual
Property of any third party.
20. INSURANCE
Attached to the Disclosure Letter is a true and complete copy of the insurances
maintained for the two years prior to the date of this Agreement in respect of
the Target Group's assets and Properties which are of an insurable nature. All
premiums under such insurances have been paid up to date, and there have been
no claims made under such insurances during the twelve months prior to the date
hereof and there are no claims outstanding thereunder.
21. PENSION SCHEMES
21.1 Other than the Legal and General Group Personal Pension Plan ("Pension
Plan") there are no pension, retirement benefit or similar schemes or
arrangements for the provision of "relevant benefits" within the meaning
of Section 612 of the Taxes Act for or in respect of the employees or
former employees of the Company or any of the Subsidiaries and neither,
to the Knowledge of the Seller, the Company nor any of the Subsidiaries
is there any legally binding obligation, other than those under the
Pension Plan, to pay any pension or make any other payment after
retirement or death or otherwise to provide "relevant benefits" as
aforesaid to or in respect of any employee of the Target Group.
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21.2 The level of contributions made by the Company or any of the
Subsidiaries pursuant to, and the terms of, the Pension Plan are
contained in the Disclosure Letter.
22. EMPLOYMENT MATTERS
22.1 No member of the Target Group is a party (i) to any consultancy
agreements or arrangements with any person nor to any contract for
services to be provided to any member of the Target Group by any
individual as a sub-contractor, outworker or otherwise where the
consideration paid under the agreement or arrangement or contract for
services exceeds L.25,000 nor (ii) to any written service agreements
with any of its directors.
22.2 There are no contracts of service with employees (whether or not in
writing) which cannot be terminated by a member of the Target Group 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) and no member of the Target
Group has given or received notice of resignation from any of the
employees.
22.3 Save as set out in the schedule of employees attached to the Disclosure
Letter:
22.3.1 no member of the Target Group has any employees with an annual
salary in excess of L.25,000;
22.3.2 there are no material terms and conditions of employment for any
employee other than Target Group's written standard terms and
conditions of employment as annexed to the Disclosure Letter;
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22.3.3 no employee receives or is entitled (contingently or otherwise)
to receive any bonus, commission, variable remuneration,
insurance, benefit in kind, motor vehicle for private use or
other reward other than wages or salary at a fixed rate;
and true, complete and accurate particulars of each employee's current
remuneration, date of commencement of continuous employment (for the
purposes of the Employment Protection (Consolidation) Act 1978) appear
in that schedule together with such employee's age and sex as notified
to the relevant company.
22.4 No member of the Target Group has offered or agreed to increase the
remuneration of, or altered or sought to alter any of the terms and
conditions of employment of, any employee compared to those shown in the
schedule to the Disclosure Letter.
22.5 There are no trade unions or other bodies representing employees or any
of them and no member of the Target Group recognises any trade union or
other body representing employees or any of them.
22.6 There has been no strike or work to rule by any employee or collective
withdrawal of labour by more than five employees for the purposes of
industrial action within the 2 years prior to the date of this
Agreement.
22.7 No member of the Target Group has within the period of 12 months
preceding the date of this Agreement given notice of any redundancies to
the Secretary of State or started consultations with any appropriate
representative under the provisions of Part IV of the Trade Union and
Labour Relations (Consolidation) Xxx 0000, nor has any member of the
Target Group failed to comply with such obligation under that Part.
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22.8 No member of the Target Group has within the period of 12 months
preceding the date of this Agreement been a party to any relevant
transfer as defined in the Transfer of Undertakings (Protection of
Employment) Regulations 1981 nor has any member of the Target Group
failed to comply with any duty to inform and consult any appropriate
representative under the said Regulations.
22.9 Each member of the Target Group has in relation to each of its present
employees complied with all terms of their contracts of employment and
all statutes, statutory instruments, collective agreements, customs and
practices which are binding upon it and no such member has any
obligation to make any ex gratia payment to any such employee.
22.10 There is no share incentive scheme, share option scheme, profit sharing
scheme or other bonus or incentive scheme for all or any employees nor
has any proposal been announced to establish any such scheme.
22.11 No member of the Target Group has any liability as a former member,
officer or shadow director of any person.
22.12 There are no outstanding claims or proceedings by or against any former
employee of any member of the Target Group and the Seller has no
knowledge of any such claim or proceedings pending or threatened.
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SCHEDULE 9
GUARANTEES AND SURETIES
Part 1
(i) CONTRACT DATED 1 NOVEMBER 1994 BETWEEN (1) CHEVRON UK LIMITED AND (2)
NDESL IN RESPECT OF BRITANNIA FIELD (NO. BRT1-XA7)
Guarantee dated 20 September 1994 between
(1) Chevron UK Limited and
(2) Xxxxxx Industries, Inc. (guarantor)
(ii) CONTRACT DATED 15 JULY 1995 BETWEEN (1) ELF ENTERPRISE CALEDONIAN LTD
AND (2) NDESL (NO. CA-7400)
Guarantee dated 20 July 1995 between
(1) Elf Enterprise Caledonian Ltd and
(2) Xxxxxx Industries, Inc. (guarantor)
Part 2
None
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SCHEDULE 10
DRILL PIPE AND INSTRUMENTATION
PART 1 - DRILL PIPE
SOVEREIGN DRILL STRING
STRING NUMBER OF
NO. DESCRIPTION JOINTS
------ ----------- ---------
1. 5 1/2" FH S 135 Drill Pipe Range 2, 2.90# per foot Armacor M 383
hardbanding on box. Internal coating TK34 Tool Joints 2"
longer than standard Tool Unit OD 7 1/4" x 3 1/2"
2. 5" Drill Pipe S-135 Range 2, 19.5 lb/ft 4 1/2 IF Connection 6 466
5/8" OD x 3 1/4" ID Tool Joints 2" longer than standard Armacor
M hardbanding on box. Internal coating PC200 c/w pressed steel
protectors.
3. 5" Drill Pipe S-135 Range 2, 19.5 lb/ft 4 1/2 IF Connection 6 483
5/8" OD x 3 1/4" ID Tool Joints 2" longer than standard
Armacor M hardbanding on box. Internal coating PC200 c/w
pressed steel protectors.
4. 3 1/2 Grade S-135 Range 2, 13.3 lbs/ft, 3 1/2 IF Connections 4 326
3/4" OD x 2 9/16 ID 2" longer than standard Armacor M
hardbanding on box. Internal coating PC200 c/w pressed steel
protectors.
5. 3 1/2 Grade S-135 Range 2, 13.3 lbs/ft, 3 1/2 IF Connections 4 322
3/4" OD x 2 9/16 ID 2" longer than standard Armacor M
hardbanding on box. Internal coating PC200 c/w pressed steel
protectors.
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PART 2 - INSTRUMENTATION
XXXXXX XXXXXX TOTCO DATA ACQUISITION (DAQ) SYSTEM
The MD Totco TOTAL Data Acquisition (DAQ) System is configured with a
combination of the following "TOTAL" modules:
o TOTAL Data Acquisition Module System 3* USX 000A
o VISULOGGER XC Management Module
o WITS Interface Module UY 200 B
o SAFE Area Display Module UYX 021
o M/D TOTCO Certification Module
o M/D TOTCO Sensor Module
In addition, the GASWATCH - XC Gas Detection System has been installed.
---------------
* To be upgraded by MD Totco to System 4 at no cost (refer 2.10/1/d
of Disclosure Bundle).
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SCHEDULE 11
ESCROW ACCOUNT
1. The Escrow Account shall be in the joint names of Xxxxx & XxXxxxxx of
000 Xxx Xxxxxx Xx, Xxxxxx XX0 ("xxx Seller's Solicitors") and Xxxxxxx
Xxxxxx of 00 Xxx Xxxxx Xx, Xxxxxx XX0 ("the Buyer's Solicitors") and
shall be designated "Nabors Europe Escrow Account" and the amount for
the time being standing to its credit (including the amount of interest
credited thereto) is hereinafter referred to as "the Deposit".
2. Subject as ordered by a court of competent jurisdiction :-
2.1 except as provided herein, no payment shall be made out of the
Escrow Account;
no payment shall be made out of the Escrow Account except in accordance
with the bank mandate in relation to the Escrow Account which shall
require the signature of one authorised signatory from each of the
Seller's Solicitors and the Buyer's Solicitors;
2.2 if Closing does not occur on or before 21 November 1996, the
Deposit shall be paid to the Seller's Solicitors as agent for the
Seller forthwith without further authority on the part of the
Buyer; and
2.3 if Closing shall occur at any time on or before 21 November 1996,
then the Deposit shall be paid immediately following Closing to
the Buyer's Solicitors as agent for the Buyer without further
authority on the part of the Seller.
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3. The payment out to the Seller or to the Buyer of the Deposit pursuant to
paragraph 2.3 or 2.4 above shall be without prejudice to the rights of
the other to claim that it is lawfully entitled to all or some part of
the Deposit pursuant to the terms of the Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
first above written.
SIGNED BY _____________ )
for and on behalf of )
XXXXXX INDUSTRIES INC )
SIGNED BY _____________ )
for and on behalf of )
KCA DRILLING GROUP LIMITED )
SIGNED BY _____________ )
for and on behalf of )
ABBOT GROUP PLC )
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