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EXHIBIT 10.9
Scanlube Shareholders' Agreement, dated as of November 22, 1995, by and
between Preem Petroleum AB (formerly OK Petroleum AB) and Hydro Texaco
Holdings A/S
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SHAREHOLDERS' AGREEMENT
Agreement made this 22nd day of November, 1995, by and between Hydro
Texaco Holdings A/S, a Danish corporation with offices at Parken, Oster Alle
48, 2100 Copenhagen 0, Denmark ("Holdings") and OK Petroleum AB, a Swedish
corporation with offices at Sandhamnsgatan 51, S-115 90 Stockholm, Sweden,
("OKP").
ARTICLE 1 - SUBJECT MATTER
AND OBJECTIVES
1.1 Holdings and OKP intend to form a joint venture in the form of a
Swedish limited liability company, to be named Goteborgs
Smorjmedelsfabrik Aktiebolag (Scanlube) (the "Company"), which
will be owned as to 50% of share capital each by Holdings and OKP.
1.2 The business operations of the Company (the "Business") commencing
on the Effective Date, shall be to acquire base oils, additives,
labels, packages and other supplies related to the production of
lubricants, and thereafter produce, package and sell lubricants to
each of the Shareholders, their Affiliates and Affiliates of Texaco
Inc. and Norsk Hydro a.s following orders from the Shareholders.
ARTICLE 2 - DEFINITIONS
For the purpose of this Agreement:
2.1 "Affiliate" means, as to any entity, any company owned, directly
or indirectly, as to more than 50% of voting capital stock, or the
equivalent interest in a partnership, by that entity. For purposes
of this Agreement other than Article 16.2, Affiliates of Holdings
shall be deemed to include Affiliates of Texaco Inc. and Norsk
Hydro a.s. For purposes of Article 16.2 only, Affiliates of OKP
shall include Corral Petroleum AB.
2.2 "Countries" means Sweden, Norway, Denmark (including Greenland and
the Faroe Islands) and Iceland.
2.3 "Effective Date" means December 1, 1995.
2.4 "SEK" or "Kronor" means the currency of Sweden.
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2.5 "Shareholders" means Holdings and OKP and any other entity who
becomes a party to this Agreement in accordance with the
provisions hereof.
2.6 "Oleum" means Oleum Marketing AB, a Swedish corporation
wholly-owned by OKP.
2.7 "Third Party" means an entity other than Shareholders, their
Affiliates, and Affiliates of Texaco Inc. and Norsk Hydro a.s.
ARTICLE 3 - APPROVALS
3.1 As expeditiously as possible, the Shareholders will prepare and
file a joint application on Form A/B to the Directorate General of
Competition of the Commission of the European Union ("DG-IV") for
clearance of the transactions contemplated by this Agreement, in
form mutually satisfactory to the Shareholders. The Shareholders
will thereafter cooperate in responding to information requests
and other communications from DG-IV as expeditiously as possible.
3.2 In the event DG-IV either (a) advises the Shareholders that the
venture contemplated by this Agreement will be denied an exemption
pursuant to Article 85(3) of the Treaty of Rome, or (b) seeks to
impose changes which will materially and adversely affect the
venture contemplated by this Agreement, the Shareholders shall
meet and attempt to negotiate a solution which will meet the
objections raised by DG-IV while preserving the economic benefits
of the venture to the Shareholders. If no such solution has been
agreed upon within three (3) months from the receipt of advice
from DG-IV, either Shareholder shall be entitled to give the
other three (3) months' notice of termination of this Agreement in
which case the transactions contemplated by Article 4 below shall
be reversed, such that OKP shall refund to Holdings all monies
invested by Holdings in the Company, less depreciation, and
Holdings shall convey all of its shares in the company to OKP. The
Shareholders shall in such case attempt to negotiate a supply
agreement on terms which would preserve the economic benefit of the
venture to both Shareholders.
3.3 As expeditiously as possible the Shareholders will prepare and
file a joint application on form K 2 to the Swedish Competition
Authority for clearance of the acquisition by Holdings of 50% of the
shares in the Company. In the event that the transaction is not
cleared by the Competition Authority or is subjected to
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changes which will materially and adversely affect the venture
contemplated by this Agreement, the Shareholders shall meet and
attempt to negotiate a solution which will meet the objections
raised by the Competition Authority or the competent Swedish
Courts while preserving the economic benefits of the venture to the
Shareholders. Article 3.2 applies to time limits, procedures and
effects mutatis mutandis.
3.4 As expeditiously as possible the Shareholders will prepare and
file a joint application on form K 1 to the Swedish Competition
Authority for clearance of the transactions contemplated by this
Agreement including the exclusive Trademark License and
Distribution Agreement in order to achieve legal security as far
as Swedish law is concerned should the DG-IV deny this Agreement
an exemption pursuant to Article 85(3) of the Treaty of Rome or
offer only a "comfort letter." In the event that the transaction
is not cleared by the Competition Authority or is subjected to
changes which will materially and adversely affect the venture
contemplated by this Agreement, the Shareholders shall meet and
attempt to negotiate a solution which will meet the objections
raised by the Competition Authority or the competent Swedish
Courts while preserving the economic benefits of the venture to the
Shareholders. Article 3.2 applies to time limits, procedures and
effects mutatis mutandis.
ARTICLE 4 - VENTURE FORMATION
4.1 The actions described in this Article 4 shall be commenced
immediately upon the filing referred to in 3.1 above and shall be
completed as soon as possible and in no event later than January
15, 1996.
4.2 It is contemplated that the Company will be formed by changing the
name and ownership of OK Mellansverige Fastighets AB, a company
which at the time of execution of this Agreement was wholly-owned
by OKP and was not engaged in any form of trading or business. Any
reference to Company shall be understood to be a reference to the
said OK Mellansverige Fastighets AB.
4.3 OKP shall cause the name of the Company to be changed to
Goteborgs Smorjmedelsfabrik Aktiebolag (Scanlube), and shall
cause the By-Laws of the Company to be amended to the form
attached as Exhibit 1 (Swedish original and English translation).
OKP shall file all such changes and amendments with the Patent and
Registration Office for registration. In the event the name
Goteborgs Smorjmedelsfabrik Aktiebolag (Scanlube) is not available,
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the Shareholders shall agree on another name for the Company.
4.4 OKP shall procure transfer to the Company, at fully depreciated
nil value, of the following assets, hereinafter referred to as the
"Plant," as existing on the date of this Agreement in the
lubricant production division of Oleum.
- Buildings and land facilities, appendix 1
- Machinery and equipment, appendix 1
- Lease to the land site, appendix 2
- Leasing agreements, appendix 2
4.5 OKP shall procure that the Company offer employment, on the same
terms and conditions and with the same benefits, to all of the
employees of Oleum presently employed at the Plant as listed in
appendix 3, effective as of the Effective Date. Until the
Effective Date, such employees shall continue to be employed by
Oleum.
4.6 OKP shall cause the share capital of the Company to be increased to
SEK 100,000 (One hundred thousand Kronor), divided into 1000
shares, each having a par value of SEK 100 (One hundred Kronor),
and each having equal voting and equity rights.
4.7 OKP shall transfer to Holdings 500 shares of the stock of Company,
for which Holdings shall pay SEK 50,000 (Fifty thousand Kronor)
in immediately available funds on the date of transfer. The
capital of the Company will then be held in the following
proportions:
Holdings 50%
OKP 50%
4.8 Prior to the Effective Date, the Shareholders shall agree on a
Business Plan which will provide, INTER ALIA, for the Company's
initial needs for investment and working capital, including
without limitation, an initial subordinated loan by each Shareholder
in the amount of SEK 10,000,000 (Ten million Kronor), and a bank
line of credit in the amount of SEK 10,000,000 (Ten million
Kronor), to be guaranteed by Shareholders if necessary.
4.9 OKP shall procure that Oleum shall transfer at book value all raw
materials, semi-finished and finished products inventory at hand
at the Plant as of the Effective Date. Further, OKP shall transfer
the payables from Oleum related to Scanlube's ongoing business at
hand as of the Effective Date. Receivables from Oleum prior to the
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Effective Date shall remain the property of Oleum.
4.10 Holdings shall have the right to sell to the Company at
replacement cost value a volume of base oils and additives and
finished products related to Holdings discontinued lubricants
manufacturing business on a schedule to be agreed between Company
and Shareholders based on the needs of the business.
ARTICLE 5 - COMMENCEMENT
OF OPERATIONS
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5.1 The Shareholders intend that the Company will commence operation
pursuant to this Agreement and the Operating Agreement provided
for in Article 10.2 below on the Effective Date.
5.2 Prior to the Effective Date, the Plant shall remain under the
management and operation of Oleum, and OKP shall procure that the
Plant is operated by Oleum in a manner consistent with prior
business practices, in full compliance with all applicable laws
and regulations and contracted obligations. No substantial change
in the operation of the Plant shall take place without the consent
of Holdings, except in order to meet emergency situations when
there is no opportunity to consult Holdings.
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES
6.1 OKP represents and warrants to Holdings that as to the period
August 12, 1994 through the Effective Date, except with regard
to matters mutually agreed upon in writing by Holdings and OKP:
(a) The Plant will be in the same physical and operating condition
on the Effective Date as at the beginning of such period,
reasonable wear and tear and changes consented to by
Holdings excepted.
(b) Throughout such period, the Plant's machinery and equipment
will have received such normal maintenance and extraordinary
repairs as may have been scheduled or required.
6.2 Holdings will undertake an inspection of the Plant and notify OKP
not later than one month after the Effective Date of any material
deviation from the physical and operational condition under 6.1(a)
and (b) above. Thereafter, OKP makes no further representations or
warranty with respect to Article 6.1.
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6.3 OKP represents and warrants to Holdings that as of the Effective
Date:
(a) No lien, pledge, mortgage, charge or other encumbrance has
been placed or asserted against the Plant, nor against Oleum
which may affect title to the Plant, by any third party
whatsoever. Oleum has good title and is able to convey good
title to the assets and leasehold interests comprising the
Plant.
(b) Company is a Swedish stock corporation (aktiebolag) in good
standing.
(c) Company has no outstanding or contingent liabilities to any
third party whatsoever.
(d) OKP has good title and is able to convey good title to the
shares of Company.
ARTICLE 7 - BOARD OF DIRECTORS,
MANAGING DIRECTOR AND AUDITORS
7.1 The Board of Directors of the Company (the Board) shall consist of
six (6) Directors. Holdings shall nominate three (3) Directors(s),
and OKP shall nominate three (3) Director(s), all of them to be
appointed by the General Meeting of the Shareholders. The Managing
Director of the Company shall not be a Director, but shall have
the right to attend and be heard at meetings of the Directors. The
first Managing Director shall be Mr. Hans Lycke.
7.2 Any Shareholder may request the removal of a Director nominated by
it and may nominate a new Director to replace such Director.
7.3 The Board shall elect one of its members to be the Chairman and
one member to be Vice Chairman. The first Chairman shall be
nominated by Holdings and the first Vice Chairman shall be
nominated by OKP. Nominations for Chairman and Vice Chairman shall
be rotated among the Shareholders on an annual basis. The Chairman
shall not have a casting vote. Nominations shall be made in
consultation between the Shareholders.
7.4 The Shareholders shall appoint not more than two auditors, each of
whom shall be an authorized auditor (auktoriserad revisor). The
Shareholders shall use their best efforts to agree on the
nomination of auditors. Failing such agreement, each party shall
have the right
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to nominate one auditor, to be appointed by the General Meeting of
the Shareholders.
7.5 Each Shareholder shall have the right, for its own account, to
audit the books of the Company through an authorized auditor or
its own internal auditors. Such auditor shall report his findings
to the Shareholders.
7.6 The Shareholders undertake to vote at the Shareholders' Meetings in
accordance with nominations or requests for removal pursuant to
the provisions of this Article 7.
ARTICLE 8 - MEETINGS OF THE BOARD OF DIRECTORS
8.1 The Board of the Company constitutes a quorum only if at least one
Director nominated by Holdings and one Director nominated by OKP
are present.
8.2 A Director shall not be disqualified to participate in decisions
regarding agreements or arrangements between the Company and
either of the Shareholders or an Affiliate of either of the
Shareholders or an Affiliate of Texaco Inc. or Norsk Hydro a.s.
8.3 Meetings of the Board shall be held in a language understood by
all Directors and minutes shall be kept both in Swedish and in
English.
ARTICLE 9 - UNANIMITY FOR CERTAIN RESOLUTIONS
9.1 Notwithstanding the provisions of the By-Laws or the Swedish
Companies Act, unanimity shall be required among the Shareholders
at Shareholders' Meetings or among all Directors of the Board as
regards the following matters:
(a) Amendments of the By-Laws;
(b) Changes in the share capital as set out in the By-Laws or the
registered share capital, the issuance of shares or the
issuance of convertible promissory notes, promissory notes
combined with an option to subscribe shares and profit share
certificates;
(c) Distribution of dividends;
(d) Appointment of the Managing Director of the Company;
(e) Formation or acquisition of a new business or extension of the
Company's current business where such acquisition or extension
is material;
(f) Close-down or sale of any material business of the Company;
(g) Sale or acquisition of material tangible or intangible assets;
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(h) Substantial borrowings and pledging of security;
(i) Appreciation of fixed assets;
(j) Loans and Guarantees from the Company to a Shareholder;
(k) Capital contributions to the Company from the Shareholders in
excess of what has been stipulated in this Agreement;
(l) Agreements between a Shareholder and the Company according to
Article 9.4 of this Agreement;
(m) Voluntary liquidation;
(n) Approval of the annual budget including investments;
(o) Approval of the annual operating plan;
(p) Sale of lubricants and related products to Third Parties; and
(q) Contract blending of lubricants and related products for Third
Parties except as provided in Article 9.2.
(r) Manufacture of products other than lubricants.
9.2 OKP shall have the right to conclude separate business agreements
with Svenska Lantmannen and/or OK Marknadsservice under which OKP
will have the right to manufacture lubricants at the Plant on
behalf of these companies on the same terms and conditions as the
Shareholders.
9.3 Notwithstanding any requirement for unanimity, this shall not
prevent a Shareholder from, after having consulted with the other
Shareholders and provided that the Company's normal current
business is not adversely affected thereby, and provided further
that the other Shareholders' benefit from the Business is not
adversely affected thereby, carrying out a separate sole risk
investment within the Company, financed through contributions or
subordinated loans from that Shareholder. The Shareholder not
participating in such a sole risk investment shall have the right
to reverse its decision and participate in the investment,
provided that such non-participating Shareholder shall notify the
participating Shareholder before the investment is completed and
shall pay to the original participating Shareholder an amount
equal to five per cent (5%) of the investment value, but not less
than SEK 50,000 (Fifty thousand Kronor).
9.4 It is the aim of the Company to produce and sell lubricants of
such formulations as will be purchased by both Shareholders. In
the event that a Shareholder would find that a material economic
benefit could be derived from changing
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one or more formulations, it may suggest such a change to the
other Shareholder. If the Shareholders cannot agree on such a
change of formulations, the Company shall produce and sell
products of such new formulations to the Shareholder requesting
the change while continuing production and sales under current
formulations to the other Shareholder. Any net extra costs
incurred by the Company in connection with the production and
sales of such different formulations shall be borne by the
Shareholder requesting the change.
If the Shareholders cannot agree on the amount of the extra costs
incurred by the Company in connection with the production and
sales of such different formulations, either Shareholder may
declare that a dispute exists and refer it for resolution under
Article 24 below.
9.5 All agreements or other economic relations between a Shareholder,
or an Affiliate of a Shareholder on one side and the Company on
the other side, shall be made on arm's length commercial terms and
conditions, except as specified in the Operating and Supply
Agreement. Such agreements or relations, if material, shall be
discussed by the Board of the Company.
ARTICLE 10 - ACTIVITIES
10.1 Unless otherwise set forth in this Agreement or agreed by the
Board, the Company will conduct no other activities than the
Business.
10.2 A separate operating and Supply Agreement shall be concluded
between the Company and Shareholders. Such Operating and Supply
Agreement shall contain provisions regarding budgeting, payments
and cost calculations as well as guidelines for the conduct of the
business operations of the Company. Such Operating and Supply
Agreement shall, when executed, be attached to and become a part
of this Agreement. In case of any inconsistency between this
Agreement and the Operating and Supply Agreement, this Agreement
shall control.
10.3 As soon as possible after the Operating and Supply Agreement has
been concluded, Holdings and OKP shall prepare any and all
necessary economic projections and studies required for the
Business, together with any and all required applications for
licenses, registrations and approvals.
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ARTICLE 12 - ASSIGNMENT AND LICENSE AGREEMENT
12.1 OKP shall procure the assignment from Oleum to the Company of all
agreements in force as of the Effective Date for the supply of raw
materials and packaging to the Plant, and the leases and contracts
listed in Article 4.4 above.
12.2 The following agreements shall be entered into between company and
the Shareholders, their Affiliates or Affiliates of Texaco Inc.,
with effect as of the Effective Date.
(a) Operating and Supply Agreement as provided in
Article 10.2.
(b) Supplemental Agreement as to Environmental Liabilities
among Company and Shareholders.
(c) Lubricating Oil Technology License Agreement between
Company and Texaco Development Corporation.
(d) Trademark License and Distribution Agreement
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between OKP and Texaco International Trader Inc.
(e) Manufacturing Technical Service Agreement between
Company, OKP and Texaco Limited.
(f) Marketing Technical Services Agreement between OKP and
Texaco Limited.
(g) Direct Order Taking Service Agreement among Company,
OKP and Oleum.
(h) Service Agreement (Information Technology) between
Company and Oleum.
ARTICLE 13 - REQUIRED PERMITS,
LICENSES AND APPROVALS
13.1 It shall be the responsibility of the Company to obtain and to
secure the the continuation or renewal of all required permits,
licenses and approvals for the Business. The Shareholders shall
provide their best efforts to assist the Company in obtaining and
securing the same.
ARTICLE 14 - COMMERCIAL POLICY AND FINANCING
14.1 The activities of the Company shall be carried out in accordance
with sound business principles with the aim of reduction of costs
of operations, taking into consideration the provisions of this
Agreement. The profits resulting from the activities of the Company
shall be used for such appropriations to reserves and funds as are
prescribed by the laws of Sweden, or otherwise should reasonable be
made in accordance with internationally accepted accounting
practices and good business standards, and to the extent not
needed for such purposes within the discretion of the Directors of
the Company, for dividends to the Shareholders. This Company shall
carry adequate policies of insurance to cover its assets and
potential liabilities.
14.2 Subject to Article 9.3 hereof, all costs for the operations of the
Company, including but not limited to costs for financing,
administrative overhead, services from Texaco Limited (which
include license fees to Texaco Development corporation), and from
Texaco Services (Europe) Ltd. and Oleum, shall be covered by the
Shareholders, except that no license fees under the agreements
listed in Article 12.2 shall be included in computing costs
related to the
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production of rape seed oils. The Company shall procure raw
materials and services at competitive conditions and at arm's
length. Revenues from sales of products or services to Third
Parties, if any, shall reduce the costs so to be covered by the
Shareholders. Detailed provisions as to the application of these
principles shall be set out in the Operating and Supply Agreement.
14.3 Contributions to the equity of the Company shall be borne by the
the Shareholders in proportion to share capital in the Company.
ARTICLE 15 - ACCOUNTING
15.1 All operations and activities of the Company, including
accounting, taxation, and record keeping shall be in strict
accordance with the requirements of the applicable European Union
and Swedish law, rules and regulations.
15.2 The Company shall render to the Shareholders:
(a) (i) unaudited quarterly reports of revenue and expense; (ii) a
report of assets, liabilities, retained earnings or losses and
net shareholders equity; and (iii) a statement of changes in
financial position no more than thirty (30) days after the close
of each fiscal quarter; and
(b) (i) an income statement; (ii) a balance sheet; and (iii) an
administration report, all prepared in accordance with
applicable Swedish law on annual reports and applicable generally
accepted accounting principles and examined in accordance with
applicable law on annual reports and applicable generally
accepted auditing standards by the auditor(s) of the Company no
more than one hundred and twenty (120) days after the close of
its fiscal year.
ARTICLE 16 - TRANSFER OF SHARES
16.1 Except as provided below, the Shareholders shall not be entitled to
transfer, pledge, encumber in any way or sell all or part of their
respective shares in the Company or to assign or pledge their
respective rights and obligations under this Agreement.
16.2 A Shareholder may, at any time, transfer all, but not less than
all, of its shares to an Affiliate. A condition of such transfer
shall be that the transferee Affiliate
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agrees to assume all rights and obligations of the transferring
Party. The Shareholders further agree that they will not transfer
the shares of any transferee Affiliate in such a manner as to
defeat the pre-emption right set forth in Article 16.3 below.
16.3 A Shareholder wishing to sell shares in Company may after the year
2000 sell, all but not less than all, of the shares owned by it.
Such selling Shareholder shall then first offer the shares for
pre-emption to the other Shareholders pursuant to the following
provisions.
(a) Notwithstanding the provisions below, a transfer of shares in
the Company to a Third Party shall not take place without the
consent of the other Shareholder. Such consent shall be given
unless, in the reasonable opinion of the other Shareholder it
is shown that there are material reasons to assume that the
assignee does not have the ability or desire to abide by this
Agreement.
(b) A Shareholder (the "Offeror") wishing to offer shares as
aforesaid shall so notify the Chairman of the Board in writing
stating the price and other terms for the proposed sale. The
Chairman shall notify the other Shareholder (the "Offeree")
about the offer in writing. The Offeree shall notify the
Chairman and the Offeror within one month of receipt of such
notification as to whether the Offeree intends to exercise its
pre-emption right.
(c) In the event the Offeree has notified the Chairman in a timely
manner of its intention to exercise its pre-emption right, and
the Shareholders cannot agree on the redemption price, the
price shall be the fair market value at the time of
redemption, taking into account any bona fide offer which may
exist, as decided by one independent auditor appointed by the
Arbitration Institute of the Stockholm Chamber of Commerce
from one of the following accounting firms, Price Waterhouse,
KPMG, Coopers & Lybrand, Ernst & Young or Arthur Andersen.
Such auditor shall make his determination within sixty (60)
days of his appointment. The determination shall be final and
binding.
(d) Within one week following such decision by the independent
auditor, the Offeror shall have the right to withdraw the
offer by written notice to the Chairman who shall so notify
the Offeree.
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(e) In the event that the Offeror has not notified the Chairman
as provided in the preceding paragraph but the Offeree has not
notified the Chairman of its intention to exercise its
pre-emption right or the Offeree has not exercised its
pre-emption right within one month after the price has been
decided by the auditor as aforesaid, then the Offeror shall be
entitled to sell the shares, within two months thereafter, to
any Third Party and provided that such Third Party agrees to
be bound by this Agreement as provided in clause (h) below. If
such sale does not take place within such two-month period,
the right of pre-emption is restored.
(f) Should a sale to a Third Party take place at a lower price than
that offered in the aforesaid first notice to the Chairman or
than the price decided by the independent auditor, then the
Offeree shall be entitled to redeem the shares so sold at such
lower price within one month after the Offeree has become
aware of such sale and the Offeror shall be obliged to inform
the Offeree of such sale and the price therefor. The
Shareholders undertake to incorporate conditions to this
effect in any sales agreement with a third party.
(g) The aforesaid provisions shall, where relevant, apply also as
regards subscription and participation rights.
(h) The selling Shareholder shall ascertain that the buyer assumes
all rights and obligations of the selling Shareholder under
this Agreement in lieu of such selling Shareholder.
(i) The provisions of this Article 16 shall, as between the
Shareholders, apply in lieu of Section 11 of the By-Laws.
16.4 OKP shall have the right, notwithstanding the other provisions of
this Article 16, to transfer a total of less than one-half of its
shares in the Company to Svenska Lantmannen ("SLR") and/or to OK
Marknadservice ("OKM"). If so, SLR and/or OKM shall have the
status of Shareholders under this Agreement with a PRO RATA share,
but OKP and SLR and/or OKM shall jointly exercise their voting
rights at Shareholders' meetings and any other right to vote,
appoint or nominate. In the event of such transfer, OKP shall
unconditionally guaranty the full performance by SLR and/or OKM of
all of their obligations under this Agreement. A condition of such
transfer shall
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be that SLR and/or OKM grant to OKP an irrevocable proxy for all
of their voting rights as Shareholders.
ARTICLE 17 - COMPETITION
17.1 Except as provided in Article 11.1 above, the Shareholders agree
not to produce lubricants in the Countries through other channels
than the Company, it being recognized that it will be necessary to
locally purchase or import greases and other lubricants and
specialty products which the Plant is unable to produce or which
the Shareholders reasonably agree cannot be economically produced
at the Plant.
ARTICLE 18 - CONFIDENTIALITY
18.1 It is recognized that each Shareholder will, in the course of
performance under this Agreement, come into possession of
confidential and proprietary information of the Company. Each
Shareholder shall maintain such information in the strictest
confidence, shall not reveal such information to any party unless
required by law or by the regulations of any recognized stock
exchange, and shall not use such information for the purpose of
competition with the Company in any market.
18.2 It is recognized that each Shareholder may, in the course of
performance under this Agreement, come into possession of
confidential and proprietary information of each other. To the
extent not governed by other agreements among the Shareholders and
their Affiliates, each Shareholder shall maintain such information
in strictest confidence, shall not reveal such information to any
party unless required by law or by the regulations of any
recognized stock exchange, and shall not use such information for
any purpose other than that intended by this Agreement.
18.3 The Shareholders shall ensure that the Company imposes upon all
its employees to whom secret or confidential information may be
disclosed to keep any such information secret and confidential.
ARTICLE 19 - TERM
19.1 This Agreement shall enter into force upon the execution hereof by
Holdings and OKP and shall, subject to Article 22.1, remain in
force until 31st December 2010, except that it may be terminated
as of 31st December 2000 or any later date by any Shareholder
giving the other Shareholder written notice not less than twelve
(12)
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months before such dates. This Agreement may be extended beyond
31st December 2010 by mutual agreement of the Shareholders.
19.2 Should this Agreement be terminated as set forth in Article 19.1
above and no understanding as to the future operations of the
Company can be reached between the Shareholders, then the Company
shall be wound up and its assets distributed between the
Shareholders in proportion to their respectively ownership of
shares in the Company.
ARTICLE 20 - NOTICES
20.1 All notices, requests, demands and other communications under this
Agreement shall be in writing, and shall, be deemed to have been
duly given if forwarded by first-class registered or certified
mail (including courier service), telefax, or hand delivery as
follows:
If to OKP, to OK Petroleum AB
Sandhamnsgatan 51
115 90 Stockholm
Sweden
Att.: President
Phone: (46-8) 450-1000
Fax: (46-8) 661-8749
If to Holdings, to Hydro Texaco Holdings A/S
Parken
Oster Alle 48
2100 Copenhagen O
Denmark
Att.: Managing Director
Phone: (45-39) 47 80 00
Fax: (45-39) 47 83 71
or to such other address as a Shareholder may specify from time to
time in writing.
20.2 Notice shall be effective upon receipt.
ARTICLE 21 - LANGUAGE
21.1 The language of this Agreement is English. Any document or
communications hereunder shall, unless otherwise agreed, be in the
English language.
ARTICLE 22 - AMENDMENTS TO THE AGREEMENT
22.1 Any amendment to this Agreement must be in writing and signed by
the Shareholders in order to be binding.
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ARTICLE 23 - GOVERNING LAW
23.1 This Agreement shall be governed by the laws of Sweden.
ARTICLE 24 - SETTLEMENT OF DISPUTES
24.1 The Shareholders are committed to the avoidance of dispute, and to
the settlement of any potential dispute by negotiation. Holdings
and OKP will each designate a senior officer who will remain
familiar with the affairs of the Company and other ongoing
relationships between OKP, Holdings and their Affiliates. The
Shareholders will promptly notify such senior officers of any
matter constituting a potential dispute, and the senior officers
will negotiate in good faith to reach an amicable settlement. The
Senior Officers may, in their discretion, agree to use the
services of a mediator, the expenses of which shall be borne
equally by Holdings and OKP.
24.2 Disputes arising from this Agreement, its interpretation or
application shall be finally settled by arbitration in Stockholm
in accordance with the Rules of the Arbitration Institute of the
Stockholm Chamber of Commerce. The arbitration proceedings and any
award shall be in the English language.
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This Agreement has been executed in two (2) originals on
November 22, 1995.
* * *
HYDRO TEXACO HOLDINGS A/S OK PETROLEUM AS
/s/ Thomas S. Neslage /s/ Sven-Erik Zachrisson
- ---------------------------------- -----------------------------------
By: Thomas S. Neslage By: Sven-Erik Zachrisson
Title: Chief Executive Officer Title:
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