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EXHIBIT 2.1
DATED JANUARY 13, 1997
BETWEEN:
MAERSK OLIE OG GAS AS
AND
THAI ROMO LIMITED
--------------------------------
MAERSK OIL (THAILAND) LTD.
SHARE SALE AGREEMENT
--------------------------------
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INDEX
ARTICLE 1 - INTERPRETATION ............................................ 4
ARTICLE 2 - AGREEMENT FOR SALE ........................................ 4
ARTICLE 3 - CONDITIONS PRECEDENT AND TERMINATION ...................... 5
ARTICLE 4 - COMPLETION ................................................ 6
ARTICLE 5 - OPERATION OF THE BUSINESS ................................. 8
ARTICLE 6 - WARRANTIES ................................................ 9
ARTICLE 7 - CONFIDENTIALITY ........................................... 12
ARTICLE 8 - GUARANTEES ................................................ 12
ARTICLE 9 - GENERAL PROVISIONS ........................................ 13
ARTICLE 10 - NOTICES ................................................... 13
ARTICLE 11 - PROPER CONDUCT ............................................ 14
ARTICLE 12 - PROPER LAW AND JURISDICTION ............................... 14
EXHIBIT A - LETTER TO EMPLOYEES OF MAERSK OIL (THAILAND) LTD.
FIRST SCHEDULE - LIST OF SHAREHOLDERS AND DIRECTORS
SECOND SCHEDULE - WARRANTIES BY VENDOR
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SHARE SALE AGREEMENT
THIS AGREEMENT is made the 13th day of January, 1997
BETWEEN:
(1) MAERSK OLIE OG GAS AS of 50, Esplanaden, DK-1263 Copenhagen K, Denmark
("Vendor")
AND:
(2) Thai Romo Limited of 19th Floor, B.B. Building, Asoke Road, Sukhumvit
21, Bangkok 10110, Thailand ("Purchaser")
WHEREAS:
A. Maersk Oil (Thailand) Ltd. whose registered office is situated at
54 B.B. Building, 19th Floor, Asoke Road, Sukhumvit 21, Kwang
Klongtoey Nua, Khet Klongtoey, 10110 Bangkok, Thailand ("Company") is
incorporated in Thailand as a private company limited by shares under
Registration No. 4245/2534.
B. The issued share capital of Company comprises Baht 110,000,000 (One
Hundred and Ten Million Baht) divided into 110,000 (One Hundred and
Ten Thousand) shares of Baht 1,000 (One Thousand Baht) each fully paid
and registered in the name of Vendor and its nominees, as set out in
the First Schedule hereto.
C. The persons whose names are set out in the First Schedule hereto are
the only directors of Company.
D. Vendor has agreed to sell and transfer 46.34146% of the issued share
capital of Company, i.e. 50,976 shares (the "Sale Shares") to
Purchaser and/or its nominees on the terms and conditions of this
agreement.
E. Simultaneously with entering into this agreement Vendor is entering
into similar agreements with Thaipo Limited and Palang Sophon Limited
concerning Vendor's sale of respectively 50,976 and 8,048 shares of
Maersk Oil (Thailand) Ltd. (Purchaser, Thaipo Limited and Palang
Sophon Limited hereinafter jointly referred to as "The Purchaser
Group").
F. The business of Company is the exploration and production in the
petroleum concession of Block B8/32 in the Gulf of Thailand together
with its joint venturers Thaipo Limited, Thai Romo Limited and Palang
Sophon Limited ("the Joint Venturers") pursuant to concession numbered
1/2534/36 awarded by the Thai Ministry of Industry on August 1, 1991,
as amended on March 6, 1992 and September 4, 1995 ("The Concession").
Company and the Joint Venturers have established their relationship
between themselves by a joint operating agreement dated April 25, May
18 and 28 and June 27, 1991 as amended on March 2, 1995 ("the Joint
Operating Agreement").
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WHEREBY IT IS AGREED as follows:
ARTICLE 1 - INTERPRETATION
1.1 Headings throughout this agreement have been inserted for ease of
reference only.
1.2 In this agreement:
"Business Day" means a day (other than a Saturday, a Sunday and any
other public holiday) on which banks are open for business in
Copenhagen, the United States of America and Bangkok;
"Completion" means performance and execution by Vendor of all acts,
matters, things and instruments needed to be done to transfer the Sale
Shares to Purchaser and its nominees;
"Intellectual Property Right" means any patent, trade mark, service
mark, registered design, trade or business name, licence, copyright,
right to manufacture or use hardware, software or related programs or
documentation, invention, utility model, trade secret, proprietary
process or formula, application for patent, trade mark, service mark
or registered design, right in respect of industrial or intellectual
property or knowledge the product of research or development;
"Proprietary Information" means information, formulae, data, know-how,
drawings, confidential and other reports, improvements, inventions,
techniques, processes, designs, analyses and strategies relating to or
developed or resulting from the business, accounts, financial affairs,
contractual arrangements or other transactions or dealings of Company;
"Taxation" means rates, taxes, charges, levies, assessments, outgoings
and impositions of every kind whether parliamentary, municipal or
otherwise assessed, levied, charged or imposed or liable to be
assessed, levied, charged or imposed against or upon Company, whether
upon the income, turnover, profits, individual transactions or
otherwise, in any part of the world whether of a capital, revenue or
other nature or of a novel kind.
ARTICLE 2 - AGREEMENT FOR SALE
2.1.1 Subject as hereinafter provided Vendor as beneficial owner shall sell
and transfer the Sale Shares to Purchaser free from all mortgages,
pledges, charges, liens, options, encumbrances and claims and with all
rights and benefits attaching thereto subject to the terms and
conditions of the Concession and the Joint Operating Agreement and
Purchaser in reliance on the Warranties (as hereinafter defined) in
this agreement shall purchase them for the total consideration of
i) twenty two million twelve thousand three hundred sixty
four US dollars (US$ 22,012,364) and
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ii) 50,976/110,000 of the net current asset value as shown in
Thai Baht on the balance sheet of Company as at December
31, 1995 corresponding to ten million nine hundred
thousand US dollars (US$ 10,900,000), i.e. five million
fifty one thousand two hundred fifty eight US dollars
(US$ 5,051,258)
totaling twenty seven million sixty three thousand six hundred twenty
two US dollars (US$27,063,622) (hereinafter referred to as the
"Consideration") representing an equal amount in respect of each of
the Sale Shares and payable in full by bank transfer on Completion.
2.1.2 On December 18, 1996 Den Danske Bank (the "Bank") has provided Company
with an overdraft facility of USD 1 million (the "Facility"). Vendor
shall procure that any and all amounts drawn under the Facility and
any and all amounts drawn under other necessary facilities provided by
the Bank after the date hereof (together the "Overdraft Amounts") be
repaid to the Bank at Completion and an amount in cash (the
"Additional Payment") equivalent to 46.34146% of the Overdraft Amounts
shall be reimbursed by Purchaser to Vendor at the time of payment of
the Consideration as per Article 4.5.
2.1.3 The consideration provided for in Articles 2.1.1 (ii) and 2.1.2 above
is subject to audit by Purchaser within 14 days of Completion and
Vendor undertakes to provide to Purchaser at Completion copies of all
accounts, documents and other materials necessary to enable the audit
to be undertaken. Following completion of the audit Purchaser will
submit to Vendor a statement ("the Audit Statement") which either
confirms that the audit has verified the said consideration or that
the said consideration does not reflect the correct position as stated
in each of the respective Articles.
In the event that the audit reveals either an underpayment or
overpayment of the consideration as provided in either of said
Articles then Purchaser or Vendor (as the case may be) will pay to the
other Party an amount equal to the said underpayment or overpayment
within 14 days of the date of the Audit Statement.
In the event of a bona fide dispute as to the amount payable under the
Audit Statement which the Parties are unable to resolve by mutual
agreement then either Party may be at liberty to submit the dispute to
the relevant English Court for determination.
2.2 Vendor and Purchaser shall bear their own respective fees and expenses
and Taxation incurred in connection with the transactions contemplated
by this agreement, it being acknowledged that any liability for stamp
or share duty payable on the transfer of the Sale Shares shall be for
the account of Purchaser.
ARTICLE 3 - CONDITIONS PRECEDENT AND TERMINATION
3.1 Completion of this agreement is conditional upon all relevant
unconditional governmental and regulatory consents of the Government
of Thailand and its departments and agencies to the transfer of the
Sale Shares having first been obtained.
3.2 The Parties shall use reasonable endeavours to procure the fulfilment
of the above condition precedent as aforesaid as soon as practicable.
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3.3 In the absence of fulfilment of the said condition precedent by five
(5) months from signature date either Party (being not then in breach
of this agreement) may terminate this agreement by notice in writing
to the other Party at any time thereafter, in which case neither Party
shall be liable in any way to the other Party.
ARTICLE 4 - COMPLETION
4.1 Completion shall take place in Copenhagen within ten (10) Business
Days after the date on which the condition precedent to Completion set
out in Article 3.1 has been satisfied. Completion shall take place
simultaneously with completion of Share Sales Agreements entered into
between on the one side Vendor and on the other side Thaipo Limited
and Palang Sophon Limited, respectively.
4.2 At Completion Vendor shall deliver to Purchaser in such form or to such
effect as Purchaser may reasonably require:
a) duly executed transfers of the Sale Shares in favour of Purchaser
or its nominees;
b) all share certificates in respect of the Sale Shares;
c) the certificate of incorporation and any memorandum and articles
of association, all Shareholder and Board resolutions as well as
VAT registration of Company;
d) a direction in writing to each banker of Company signed by the
person(s) for the time being authorised or required to sign the
same specifying such persons as The Purchaser Group may nominate
as the only persons thereafter entitled to operate the bank
accounts of Company and cancelling all other prior authorities
relating to operation thereof;
e) such resignations in writing from office of the directors and
other officers (if any) of Company as The Purchaser Group may
require;
f) the resignation in writing from office of the auditors of
Company;
g) a written acknowledgement from each person resigning from office
as aforesaid that he has no claim of whatsoever nature whether
present or contingent and whether for payment of money or
otherwise against or upon Company for loss of office, employment
or emolument or on loan account or arising out of any other act,
matter or thing;
h) all common and duplicate seals of Company;
i) all mortgages, pledges, charges, leases, agreements, title deeds
and documents, licences, indicia of title, cheque books, books of
account, vouchers, copies of taxation returns and assessments,
copies of companies office returns, copies of minutes of all
shareholders' meeting and board of directors' meetings in Company
and notifications and all other records, papers, books,
stationary, documents and other chattels and property of Company,
it being understood and agreed that Vendor shall arrange for the
termination of any and all insurances pertaining to Company with
effect from Completion;
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j) all current certificates, licences and authorities for the time
being held in connection with the status, maintenance and
advancement of the business and undertakings and assets of
Company; and
k) an agreement between Vendor and Company terminating the Service
Contract No. TH 2605 dated April 23, 1991 and confirming that all
liabilities and obligations thereunder have been fulfilled.
4.3 As soon as practicable after Completion Vendor and The Purchaser Group
shall procure the holding of such meetings of shareholders, directors
and members of Company as may be necessary to adopt irrevocable
special and ordinary resolutions required by Company's Articles of
Association and the Civil and Commercial Code, Thailand, to transact
the following matters:
a) approving the transfers of the Sale Shares to Purchaser and/or its
nominees for registration in the Share Register Book of Company
and notifying the Commercial Registration Department, Ministry of
Commerce, Thailand;
b) approving with immediate effect the appointment to the office of
such persons as The Purchaser Group may nominate to be the
directors of Company and arrange for registration of the
appointment immediately after the appointment is approved;
c) accepting (with effect immediately after the aforementioned
appointments) the aforementioned resignations from office of the
directors of Company;
d) approving the aforementioned directions to each banker of Company;
e) approving the issue of share certificates evidencing Purchaser and
its nominees to be the registered holder of the Sale Shares;
f) changing the address of the registered office of Company to such
address as The Purchaser Group may nominate, and
g) changing the name of Company to such name advised by The
Purchaser Group and adopting a new seal of Company. Purchaser
acknowledges that neither the name of MAERSK nor any other name
utilising the MAERSK name or MAERSK logo, nor the MAERSK logo,
may be used by Purchaser.
h) approving the termination of the employment contracts of such
employees of Company as Vendor and The Purchaser Group may agree,
it being assumed that none of Company's expatriate personnel,
i.e. employees stationed from Vendor's offices in Denmark, shall
remain as employees of the Company at Completion.
4.4 At or before Completion, Vendor and The Purchaser Group shall procure
the following:
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a) the consent in writing of the Board of Directors of Company to
appointment of all persons nominated by The Purchaser Group for
appointment to office as directors of Company;
b) the holding of such meetings of shareholders, directors and
members of Company as may be necessary to adopt irrevocable
special and ordinary resolutions required by Company's Articles
of Association and the Civil and Commercial Code, Thailand,
approving the purchase of the Sale Shares, the execution of this
agreement, and the transactions contemplated herein.
c) the proper recording of the share transfers and details of the
shares and transferees into the Company's Share Register Book.
4.5 On Completion and against performance of the preceding provisions of
this Article Purchaser shall pay the Consideration and, if applicable,
the Additional Payment to Vendor by bank transfer;
4.6 As soon as practicable after Completion The Purchaser Group shall
cause all relevant authorities to be notified in the manner prescribed
by law of the resignations and appointments of directors, secretaries,
auditors and other officers, change of name and change of address of
the registered office of Company and all other matters arising out of
this agreement.
4.7 With effect from Completion and pending registration of the transfers
of the Sale Shares Vendor irrevocably nominates, constitutes and
appoints Purchaser its proxy and attorney for the purpose of
exercising all rights, powers, authorities and descriptions attaching
to or arising out of the beneficial ownership of the Sale Shares in
such manner as Purchaser may think fit.
ARTICLE 5 - OPERATION OF THE BUSINESS
Between the date hereof and Completion Vendor shall:
(a) give to Purchaser and its duly authorised representatives
necessary access to the premises and assets of Company and to all
books, records, accounts, and documents of whatsoever kind of or
controlled or used by Company (including without prejudice to the
generality of the foregoing computer programs, and appropriate
entry codes and passwords) and be permitted to take copies
thereof, and that the directors and employees of Company shall be
instructed to give such information and explanations to Purchaser
and/or any such persons as may be requested provided that
Purchaser shall treat such information as strictly confidential
until Completion and, if Completion shall not take place,
thereafter;
(b) procure that such person as Purchaser may from time to time
nominate shall be given and shall be entitled to receive the same
notices and information as if a director of Company and that such
person shall be invited and entitled to attend as an observer
(but not as a director or an officer) at all board and management
meetings thereof;
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(c) procure that Company shall maintain and carry on its business in
the ordinary and usual course and that no act or omission other
than in such ordinary and usual course shall be effected without
the prior consent in writing of The Purchaser Group;
(d) consult with The Purchaser Group with regard to Company and
co-operate with The Purchaser Group so as to ensure an efficient
handover of Company on Completion and use its reasonable
endeavours to protect Company for the benefit of The Purchaser
Group;
(e) save as contemplated by this agreement, not amend, novate or
supplement any agreement to which Company is party without the
consent of The Purchaser Group (such consent not to be
unreasonably withheld or delayed)
(f) in so far as reasonably practicable, reach and give effect to
significant management decisions in relation to Company after
consultations with The Purchaser Group; and
(g) not permit Company to sign as a party any contract or any other
form of legal obligation without first having obtained The
Purchaser prior consent (such consent not to be unreasonably
withheld or delayed), except that, having given Purchaser prior
notification of same, Company shall be entitled to sign any
contract or any other form of legal obligation the value of which
to Company and the Joint Venturers together will or is likely to
be less than one million United States dollars (US$ 1,000,000) or
any contract or any form of legal obligation involving ongoing
drilling operations.
(h) ensure that Company pursues any insurance claim against insurers
or assists and cooperates with Purchaser if Purchaser is able to
pursue a claim against Company's insurers.
(i) shall not do or omit to do anything which may materially
prejudice or render void or voidable the Company's insurance
arrangements.
(j) procure that Company shall maintain its insurance arrangements
and have the interest of Purchaser noted as an additional name
insured under such insurance arrangements until Completion.
ARTICLE 6 - WARRANTIES
6.1 Vendor warrants to and in favour of Purchaser as follows:
a) the execution, delivery and performance of this agreement and of
the terms, conditions, covenants, warranties and agreements
herein contained on the part of Vendor have been duly authorised
and approved so as to constitute valid and binding obligations;
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b) the sale hereby agreed does not give rise to the contravention of
or failure to comply with any statute, statutory instrument,
regulation, by-law or rule of law for the time being in force to
which Vendor or Company is subject;
c) Vendor has furnished to Purchaser all material information, of
which Vendor is aware, regarding the business and financial
condition of Company;
d) all written information material to the subject matter of this
agreement given by Vendor or any director, officer, auditor,
servant or agent of Vendor or Company or any of Vendor's other
subsidiaries to Purchaser in the course of the negotiations
leading to this agreement and the statements contained in the
recitals and schedules hereto, in particular without limitation,
other than the limitation of liability as specified in Article
6.6, the warranties contained in the Second Schedule hereto, are
true and accurate in all material respects;
e) the warranty set out in Article 11.
6.2 The foregoing warranties set out in Articles 6.1 a)-e) (the
"Warranties") shall be deemed to be repeated by Vendor to and in
favour of Purchaser on Completion with reference to the facts and
circumstances then subsisting PROVIDED THAT if there should between
the date of this agreement and the date of Completion occur a breach
of any of the warranties Vendor shall disclose such breach to
Purchaser and if Purchaser then proceeds to complete the purchase of
the Sale Shares it shall be deemed to have waived all its rights to
rescind this agreement in relation to that breach or to claim damages
in respect of it.
6.3 Vendor acknowledges that Purchaser is entering into this agreement in
reliance upon the Warranties and disclosure of information of Vendor
herein contained.
6.4 Each of the Warranties contained in Article 6.1 and in the Second
Schedule hereto is a separate warranty and independent of each of the
other warranties.
6.5 The Purchaser acknowledges and agrees that:
(a) the Warranties are the only representations, warranties or other
assurances of any kind given by or on behalf of the Vendor and on
which the Purchaser may rely in entering into this agreement;
(b) no other statement, promise or forecast made by or on behalf of
the Vendor may form the basis of, or be pleaded in connection
with, any claim by the Purchaser under or in connection with this
agreement:
(c) any claim by the Purchaser or any person deriving title from it
in connection with the Warranties (a "Warranty Claim") shall be
subject to the following provisions of this Article; and
(d) at the time of entering into this agreement it is not aware of
any matter or thing which is inconsistent with the Warranties or
constitutes a breach of any of them.
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6.6 The liability of the Vendor under or in respect of the Warranties
shall be limited as follows:
(a) there shall be disregarded for all purposes any breach of the
Warranties in respect of which the amount of the damages to which
the Purchaser would otherwise be entitled is less than US$ 10,000
(and for this purpose a series of individual claims arising from
a common matter, act, omission or circumstance shall be treated
as one claim);
(b) the Purchaser shall not be entitled to recover any damages in
respect of any breach or breaches of the Warranties unless and
until the aggregate liability of the Vendor in respect of all
Warranty Claims exceeds in aggregate the sum of US$ 50,000;
(c) the maximum aggregate liability of the Vendor in respect of all
and any Warranty Claims shall not exceed USD 9.3 million;
(d) notwithstanding any other provision of this agreement Vendor
shall under no circumstances be liable to Purchaser for any
special, consequential or indirect damages or loss of profit or
turnover.
6.7 The Purchaser shall not be entitled to make any Warranty Claim:
(a) to the extent that sufficient provision or allowance for the
matter or liability which would otherwise give rise to the claim
in question has been made in Company's last audited accounts;
(b) if the claim would not have arisen but for a change in
legislation made after the date of this agreement (whether
relating to taxation, rates of taxation or otherwise) or the
withdrawal of any extra-statutory concession previously made by
any taxing authority (whether or not the change purports to be
effective retrospectively in whole or part).
6.8 If the Purchaser or the Company becomes aware of a matter which could
give rise to a Warranty Claim the Purchaser shall give notice of the
relevant facts to the Vendor as soon as reasonably practicable and in
any event within 30 days of the Purchaser becoming aware of those
facts and if the Warranty Claim in question is as a result of or in
connection with a liability or alleged liability to an employee or to
a third party:
(a) the Purchaser shall procure the Company to take such action to
avoid, dispute, resist, appeal, compromise or contest the
liability as may be reasonably requested by the Vendor; and
(b) subject to being indemnified to its reasonable satisfaction
against all costs and disbursements of and in relation to any
legal proceedings which may be instituted at the request of the
Vendor in respect of such claim or matter, shall not (and shall
procure that the Company shall not) pay, accept or compromise any
such claim without giving the Vendor a reasonable opportunity to
resist them.
6.9 The Vendor shall cease to have any liability under or in respect of
the Warranties:
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(a) six years from the date of Completion of this agreement in respect
of the Warranties relating to taxation; and
(b) two years from that date in respect of any other Warranties.
6.10 Without prejudice to the Purchaser's duty to mitigate any loss in
respect of any breach of the Warranties, if in respect of any matter
which would otherwise give rise to breach of the Warranties the
Company is entitled to claim under any policy of insurance, the amount
of insurance monies which the Company receives from the insurer shall
reduce pro tanto or extinguish the claim for breach of the Warranties
in relation to any such matter.
ARTICLE 7 - CONFIDENTIALITY
7.1 Except the necessary disclosures to the Thai authorities, pending
Completion neither Party hereto shall disclose the contents or import
of this agreement or make any announcement or statement concerning the
sale and purchase hereby agreed to any person (except the legal
representative of a Party hereto or as required by law or any stock
exchange) without the previous consent in writing of the other Party
hereto.
7.2 Pending Completion and thereafter Vendor shall not directly or
indirectly in any part of the world use or attempt to use any
Proprietary Information in any manner which will or may cause loss or
damage whether direct or indirect to the business or financial affairs
of Company except with the previous consent in writing of Purchaser.
7.3 The provisions of this Article shall continue to apply after
Completion without limit in time or place but shall cease to apply to
any specific item of Proprietary Information immediately upon the same
becoming known generally by persons, other than Vendor or its
affiliated or associated companies, involved in any business similar
to that of Company or disclosed in a publication by Company or by any
other person or persons otherwise than in contravention of the
provisions of this Article.
ARTICLE 8 - GUARANTEES
8.1 Purchaser shall use all reasonable endeavours to procure the release
of the guarantee by Vendor to the Thai Department of Mineral Resources
date May 24, 1991.
8.2 At Completion Purchaser shall release Vendor of the guarantee by
Vendor to Purchaser pursuant to Article 23 of the JOA.
8.3 Pending release of the guarantees mentioned under Article 8.1 and
Article 8.2 above Purchaser shall indemnify and keep indemnified
Vendor against all losses, claims, demands, damages, costs and
expenses arising in relation to an event occurring after Completion
and prior to such release, which Vendor may incur or suffer under or
pursuant to such guarantees and under or pursuant to Article 15.3 of
the Joint Operating Agreement.
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ARTICLE 9 - GENERAL PROVISIONS
9.1 Purchaser acknowledges and agrees that it has not relied on any
covenant, undertaking, representation or warranty given or made by or
on behalf of Vendor in entering into this agreement which is not
contained or referred to in this agreement and that the provisions of
this agreement represent the whole of the agreement between the
parties.
9.2 According to the Concession, Company is operator for Block B8/32
excluding the Tantawan sub-area as defined in the Concession.
There are no provisions in the Joint Operating Agreement for removal
of operator or obligation for operator to resign as operator due to
the transfer of beneficial ownership of the shares of Company.
Should, however, the Government of the Kingdom of Thailand, including
the Ministry of Industry or any of its departments or agencies, for
whatever reason before or after Completion, require that Company
resign its operatorship (whether or not pursuant to a provision of law
or of any contract) or assert that Company should resign its
operatorship, Vendor shall have no liability whatsoever as a result
and Purchaser shall not be entitled to make any claim for breach or
alleged breach of any warranty or representation made in this
agreement, provided that Vendor shall use its reasonable endeavours to
procure that the said Government agrees to Company's remaining as
Operator. In the event that any other party without due cause asserts
that Company should resign its operatorship Vendor shall have no
liability whatsoever as a result. Furthermore, this agreement shall
not be capable of being rescinded as a result and the terms of this
agreement shall remain unaffected by any such requirement or
assertion.
9.3 The rights and benefits conferred by this agreement on any Party
hereto are personal to that Party and may not be assigned or
transferred by that Party except as herein provided or with the
previous consent in writing of the other Party hereby.
9.4 In case any provision of this agreement is found to be invalid,
illegal or unenforceable for whatsoever reason then to the extent only
of such invalidity, illegality or unenforceability such provision
shall be deemed to be severed from this agreement and the remaining
provisions of this agreement shall continue in full force and effect
unimpaired by such severance. In such event the Parties shall
negotiate, in good faith, any adjustments to be made to this agreement
with a view to reestablishing the `balance' between the Parties in
respect of the provisions affected, however, preserving the existing
provisions to the greatest possible extent.
ARTICLE 10 - NOTICES
10.1 Any notice or communication authorised or required to be given under
or pursuant to this agreement shall be in writing or some facsimile of
writing and addressed to the intended recipient at its address set out
in this agreement or as last notified to the Party giving such notice
or communication.
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10.2 Any notice or communication sent shall be effective on actual receipt.
10.3 Any notice or communication delivered by hand before 4:00 p.m. on a
Business Day in the time of the place of delivery shall be deemed to
have been received on that Business Day.
10.4 The Parties' addresses and fax numbers for delivery of notices are as
follows:
Vendor: Purchaser:
Maersk Olie og Gas AS Thai Romo Limited
50, Esplanaden 19th Floor
DK-1263 Copenhagen K B.B. Building
Att: Mr. Anders Wurtzen, Legal Department Asoke Road
Telefax: +45 3363 3878 Sukhumvit 21
Bangkok 10110
Thailand
Telefax: +1 713 621 7072
ARTICLE 11 - PROPER CONDUCT
11.1 Vendor undertakes that Company has complied and shall prior to
Completion comply with all applicable laws dealing with improper or
illegal payment, gifts or gratuities. In any event, Vendor undertakes
that Company has not paid and shall not prior to Completion pay,
promise to pay or authorise the payment of any money or anything of
value, directly or indirectly to any person (whether a governmental
official or private individual) for the purpose of illegally or
improperly inducing any official or political party or official
thereof in obtaining or retaining business. Furthermore, Vendor
undertakes that Company has not taken and will not prior to Completion
take any action, or fail to take any action, which act or failure to
act would subject Company or the holder of the Sale Shares to
liability under the laws of its country or domicile dealing with
improper payments as described in this subsection. Any breach of this
obligation shall be a material breach of this agreement and shall
entitle Purchaser to terminate this agreement.
11.2 Purchaser warrants and represents to Vendor, and Vendor in relation to
itself and Company warrants and represents to Purchaser, that prior to
the execution of this agreement it has not taken any action, or failed
to take any other action, with respect to the transaction contemplated
herein which act or failure to act would have violated Article 11.1.
ARTICLE 12 - PROPER LAW AND JURISDICTION
12.1 This instrument shall be governed and construed in accordance with
English law.
12.2 The parties hereto shall submit to the jurisdiction of the English
Courts in respect of all disputes arising out of this agreement.
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AS WITNESS the parties have signed this agreement.
SIGNED by
Maersk Olie og Gas AS
acting by: /s/ N. Fjeldgaard
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title
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SIGNED by
Thai Romo Limited
acting by: /s/ Patrick R. Rutherford
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title: Director
------------------------------------
Being a part of The Purchaser Group Thaipo Limited hereby agrees to Articles
4,5 and 12 of this agreement:
acting by: /s/ R. Phil Laney
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title: Director
------------------------------------
Being a part of The Purchaser Group Palang Sophon Limited hereby agrees to
Articles 4, 5 and 12 of this agreement:
acting by: /s/ Chote Sophonpanich /s/ Charn Sophonpanich
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title:
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FIRST SCHEDULE - LIST OF SHAREHOLDERS AND DIRECTORS
LIST OF SHAREHOLDERS:
o Maersk Olie og Gas AS 109.994 shares
o Mr. Kjeld Fjeldgaard 1 share
o Mr. Anders Wurtzen 1 share
o Mr. Jorgen Rahbek Liboriussen 1 share
o Mr. Flemming Edvard Ipsen 1 share
o Mr. Jan Al-Erhayem 1 share
o Mr. Henrik Jakobsen 1 share
LIST OF DIRECTORS
o Mr. Ib Kruse
o Mr. Kjeld Fjeldgaard
o Mr. Jan Al-Erhayem
o Mr. Jorgen Rahbek Liboriussen
o Mr. Anders Nielsen
o Ms. Ubolratana Sitakalin
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SECOND SCHEDULE - WARRANTIES BY VENDOR
PART 1 - GENERAL
A Information
(1) All information given by Vendor to Purchaser is at the date hereof
true, complete and accurate in all respects.
(2) There is no fact or matter directly affecting Company which has not
been disclosed to Purchaser disclosure of which might render any of
the information referred to above misleading or inaccurate.
B Validity of this Agreement
The signature, execution and performance of this agreement by Vendor
and (where appropriate) Company have been duly authorised by all
necessary action of Vendor and Company and when signed shall
constitute valid and binding obligations of Vendor and (where
appropriate) Company.
C Title to Shares
(1) The Sale Shares constitute 46.34146% of the whole of the issued and
allotted share capital of Company.
(2) All the issued shares of Company are fully paid up and Company has not
exercised or purported to exercise or claimed any lien over any of its
issued shares.
(3) There is no option, right to acquire, mortgage, charge, pledge, lien
or other form of security or encumbrance or any equity on, over or
affecting the Sale Shares or any of them; and no claim has been made
by any person to be entitled to any of the foregoing
(4) Vendor is entitled to sell and transfer or renounce (as the case may
be) the full legal and beneficial ownership in the Sale Shares, to or
in favour of Purchaser.
PART II - ACCOUNTS
D General
(1) The audited financial statements of Company for the year to 31
December 1995 ("the Accounts") (true copies whereof have been supplied
to Purchaser) have been prepared in accordance with the historic cost
basis and with good and generally accepted accounting practice are
true, complete and accurate in all respects, set out accurately and
correctly the assets and liabilities of Company as at 31st December
1995 ("the Accounts Date"), and show a true and fair view of the state
of affairs and the financial position of Company as at and for the
financial period ending on the Accounts Date and of the profits and
losses of Company for the period ended on the Accounts Date. Without
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prejudice, and solely for Purchaser's information, Purchaser has
received a copy of actual and estimated spending for the period
January 1, 1996 through April 30, 1996 estimates of spending for the
period May 1, 1996 through December 31, 1996, and a draft Financial
Statement for the period January 1, 1996 through November 30, 1996 of
Company.
(2) Without prejudice to the generality of the foregoing, in the Accounts:
2.01 depreciation of the fixed assets of Company has been
made at a rate sufficient to write down the value of
such assets to nil not later than the end of their
useful working lives and no fixed asset has
attributed to it a value exceeding the current
market value thereof at the Accounts Date;
2.02 proper provision or reserve has been made for all
liabilities and obligations (actual contingent or
disputed) and all capital and burdensome
commitments; and
2.03 full provision or reserve has been made for all
Taxation assessed or liable to be assessed on
Company or for which Company is or may be
accountable in respect of profits, gains or income
arising or accruing or transactions effected down to
the Accounts Date and dividends and other
distributions made down to date or provided for in
the Accounts.
E Consistency of Preparation; Extraordinary Items
(1) The bases and policies of accounting of Company adopted for the
purpose of preparing the Accounts are the same as those adopted for
the purpose of preparing the audited accounts of Company for the three
last preceding accounting periods, and in particular, but without
prejudice to the generality of the foregoing, Company's stock in trade
and work in progress have been valued on a basis in all material
respects consistent with that adopted for the purpose of Company's
audited accounts in respect of the beginning and end of each of such
periods.
(2) The profits and losses of Company shown by the Accounts and by the
audited accounts of Company for the last three preceding accounting
periods have not in any material respect been affected by any unusual,
exceptional, extraordinary or non-recurring item or by any other
matter which has rendered such profits or losses unusually high or
low, except as disclosed in said Accounts.
PART III - COMMERCIAL
F Changes
Since the Accounts Date:
(i) Company has carried on its business in the ordinary
and usual course and under its own name and has not
in any way used or carried on business under any
name other than its corporate name;
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(ii) there has been no change in the financial,
contractual or trading position of Company or in the
nature or scope of its business; and in particular,
but without prejudice to the generality of the
foregoing, so far as Vendor is aware the business of
Company has not been materially adversely affected
by any unusual, exceptional, extraordinary or
non-recurring item or by any unusual actual or
threatened liability or by any material reduction in
value of any of its assets;
(iii) except as stated in Exhibit A, no change has been
made in the basis of remuneration of the agents,
distributors, directors, officers and employees of
Company; and no agent, distributor, director,
officer or employee has given notice or is under
notice of dismissal or has ceased or is to cease to
be employed by or under contract to Company in
circumstances in which he could claim damages or
compensation in respect of such cessation; and
(iv) no adverse change has occurred in the assets or
liabilities (including contingent liabilities) of
Company from the state of affairs shown in the
Accounts; and Company has not entered into or
assumed any contract, obligation, commitment or
liability other than in the normal and proper course
of business.
G Legislation; Illegal Acts
(1) Company is not and has not been party to any agreement or arrangement
or activity (and there is and has been no event or circumstance
including entry into or the performance of this agreement) which is or
might be in breach or contravention of, or registrable or would or
might require the giving of any notice under law.
(2) Neither Company nor any of its directors or employees has committed
any criminal, illegal or unlawful act or any breach of contract or any
tortious act which might result in prosecution or a claim for damages
or for an injunction or for other relief being made against Company.
H Licenses
Subject to Article 9.2, all necessary requirements, permissions,
consents and permits, whether statutory, municipal or otherwise
relating or applicable to or required by or for Company, its
directors, officers and employees, the ownership or use of its assets,
and the due operation of its business have been duly obtained, are
valid and subsisting, are not subject to any unusual or onerous
conditions and have been and are being at all times complied with;
Company has not done or omitted to do anything whereby any of the
foregoing has ceased or might cease to be valid or has or might become
liable to be amended, revoked, forfeited or withdrawn, and there are
no circumstances (including, without limitation, the sale and purchase
of the Sale Shares as proposed herein) which will or, so far as Vendor
is aware, are likely to lead to any of the foregoing being amended,
revoked, forfeited or withdrawn.
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I Litigation
(1) Neither Company nor (in relation to any matter for which Company may
be liable) any person is involved in any civil or criminal litigation,
arbitration, tribunal, enquiry or other proceedings before any
adjudicating body of any jurisdiction (including proceedings before
the general or special commissioners for the purposes of any statute
relating to Taxation); no such litigation, arbitration, tribunal,
enquiry or other proceedings is or are pending or being threatened by
or against Company or (in relation to any such matter) any such
person, and there are, so far as Vendor is aware, no circumstances
likely to lead to any such litigation, arbitration, tribunal, enquiry
or proceedings.
(2) No director, officer or employee of Company has been convicted of or
is in criminal proceedings charged with and not acquitted of any
criminal offence (other than traffic offenses the subject of a fixed
penalty fine) which might result in prosecution or a claim for damages
or for an injunction or for other relief being made against the
Company.
(3) No governmental or official investigation or inquiry concerning
Company or any person or matter relating to the business of Company is
in progress or threatened and there are, so far as Vendor is aware, no
circumstances which are likely to give rise to any such proceedings,
investigation or inquiry.
J Bank Accounts
Latest available statements of the accounts (whether current, deposit,
escrow or other accounts) of Company with banks and other financial
institutions (which were true, complete and accurate at the time of
submittal to Purchaser) have been supplied to Purchaser and Company
(whether for itself or jointly with or on trust for others) has no
other such account (whether in credit or overdrawn) not included in
such statements.
K Keeping of Books
(1) All the books, records, journals, ledgers, accounts, and other
documents of Company (including, but without prejudice to the
generality of the foregoing, all invoices and other records and
documents required to be kept by law or regulation) are up to date,
have been completed and are a true and complete record of all
transactions of Company and prove the title of Company to its property
assets and business; and all such documents (duly stamped where
appropriate) are now and will at and after Completion be in the
possession of Company.
L Indebtedness
Apart from debts arising under the normal operation of the Service
Agreement, there is no indebtedness to or from Company from or to
Vendor, any associated company or affiliate of Vendor or any of the
employees, officers and directors of Company, Vendor or any associated
company or affiliate of Vendor.
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PART IV - CONTRACTUAL
M Validity
(1) Neither Company nor (to the best of Vendor's knowledge and belief in
any respect which would or might affect Company) any third party is in
breach of any contract or arrangement or any duty at law or under any
statute regulation or code of practice or conduct which is material to
Company's business.
(2) Company and (to the best of Vendor's knowledge and belief in any
respect which would or might affect Company) every other person party
thereto is fully able to perform all contracts and arrangements to
which Company is party without any adverse effect on Company.
N Loans, Financial Affairs
(1) Company is not a party to or under any liability in respect of any
capital commitments undertaken, loans advanced or borrowed acceptances
or acceptance credits, guarantees, indemnities, mortgages, charges,
liens, encumbrances, debentures or other surety or security
arrangements or unusual or abnormal liabilities undertaken, nor is it
or any of its officers or employees contemplating or in the course of
negotiating any of the foregoing; neither Company nor any third party
is in default in respect of any of the foregoing.
Notwithstanding the above Company has obtained an overdraft facility
with Den Danske Bank, Copenhagen of US dollars 1 (one) million. It is
expected that Den Danske Bank will not extend said overdraft facility
beyond Vendor's and Purchaser's signing this agreement.
O Outstanding Authorities
(1) Company has not created or given or permitted to subsist any agency or
power of attorney or other authority (express, implied or ostensible)
which is still outstanding or effective to any person to enter into
any contract or commitment or do anything on its behalf.
PART V - CORPORATE
P Corporate Books and Returns, Corporate Standing
(1) The register of members of Company contains true, complete and
accurate records of the members of Company at the date hereof and at
all times previously, and all other statutory registers of Company are
and have at all times been up to date, correct and accurate.
(2) The copies of the Memorandum and Articles of Association of Company
which have been produced to Purchaser are accurate and complete in all
respects as at the date hereof and fully set out all rights attaching
to the share capital of Company.
(3) All returns, particulars, resolutions and other documents required to
be filed with or delivered in respect of Company have been duly and
promptly filed or delivered.
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Q Insolvency
(1) There has not been and there is not in respect of Company:
1.01 any order made, petition presented or resolution passed for
its winding up; or
1.02 any distress, execution or other process levied on the whole
or any part of its undertaking or assets; or
1.03 any receiver or other encumbrancer appointed or any likelihood
of any such appointment over the whole or any part of its
undertaking or assets; or
1.04 any unfulfilled or unsatisfied judgment or court order
outstanding or any delay by Company in the payment of any
obligation due for payment.
R Distributions and Share Capital
(1) Company has not at any time repaid or redeemed or agreed or proposed
to repay or redeem any share, stock, debenture stock, note, bond or
other security or otherwise reduced or agreed to reduce its share or
loan capital save in accordance with the terms of issue thereof.
(2) Company has not capitalised or agreed or resolved to capitalise any
profits or reserves; nor advanced or received any loan or issued any
share, stock, debenture, debenture stock, note, bond or other security
so that the advance or receipt or the issue thereof or the interest
thereon falls to be treated as a distribution; nor made any other
distribution (whether of income or capital) except dividends shown in
its audited accounts.
PART VI - ASSETS
S General
(1) True, complete and accurate particulars (including, without prejudice
to the generality of the foregoing, particulars of payments made and
to be made) of all contracts of lease, hire purchase, hire,
conditional sale and similar contracts to which Company is party and
of the assets to which such contracts relate, have been disclosed to
Purchaser; there has been no default, breach of or non-compliance with
any of the terms of any such contract by Company or by any other party
thereto, and Company has not given or received notice whereby any such
contract may terminate other than upon the date and in the
circumstances appearing in such contract.
T Intellectual Property Rights
(1) Company has no Intellectual Property Rights and no royalty or fee is
payable by Company to any person in respect of the enjoyment, use,
commercialisation of any Intellectual Property Right.
PART VII - TAXATION
U Returns, Payments etc.
(1) Company has duly and punctually made all returns and given or
delivered all notices, accounts, computations and information which
ought to have been made for the purposes of Taxation and all such
returns, notices, accounts and information supplied to the relevant
tax authorities in Thailand, Denmark or elsewhere for any such purpose
are complete and accurate and have been made on a proper and
consistent basis and there is no dispute in any material respect or
question with such authorities and there is no fact or
23
circumstance which might be the occasion of any such dispute or of any
claim for Taxation.
(2) Company has duly and punctually paid all tax which it has become
liable to pay and is under no liability to pay any penalty or interest
in connection with any claim for Taxation and specifically there are
no sums due or payable in respect of Taxation directly resulting from
the disposal of part of the area of the Concession covering the
Tantawan field.
V Deduction of Tax
(1) All payments made by Company required to be or which ought to have
been made under deduction or withholding of Taxation have been so made
and any sums required to be accounted for have been accounted for to
the relevant authority.
PART VII - EMPLOYEES
W Employment Contracts and Pension Schemes
(1) True, complete and accurate details of the terms of employment of all
directors, officers, and employees of Company (including, but without
prejudice to the generality of the foregoing, details of their length
of service) including relevant service with previous employers,
status, salary benefits and other prerequisites have been disclosed to
Vendor.
(2) There are not in existence any contracts of employment with directors
or employees of Company which cannot be terminated by three months'
notice or less without giving rise to any claim for damages or
compensation (other than any claim arising under statute) and Company
is not under any obligations to increase the remuneration payable to
any employee or to give any bonus incentive or perquisite or to make
any payment or provide any benefit under any option incentive or
profit sharing scheme.
(3) Company has complied with all applicable laws in Thailand and
elsewhere in relation to the deduction of amounts representing tax,
pension contributions or employee benefits or instalments of tax from
salary and wages, interest, dividends and other payments of whatsoever
kind made to employees, creditors, and shareholders of Company and
other persons and remittance of the same taxation and other revenue
authorities.
(4) All applicable laws relating to the employment, dismissal, redundancy,
remuneration, health and safety of employees have been complied with
by Company.
(5) Except as stated in Exhibit A no director's fee, bonus, profit share,
commission or other remuneration or emolument other than salary or
wages (whether discretionary or otherwise) has been paid or become
payable to any director or employee of Company since the date to which
the Accounts were prepared.
(6) The only retirement benefit, pension or other similar scheme or
arrangement (whether legally enforceable or otherwise) in operation
relating to Company is the Provident Fund Pension Scheme according to
which each employee pays 5% of his/her monthly salary
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and Company pays 10% of the employee's salary into the Provident Fund.
Company's monthly payment to the Provident Fund is approximately Thai
Baht 15,000.
PART IX - THE CONCESSION
X General
(1) Companys interest in the Concession and the Joint Operating Agreement,
as legal and beneficial owner, is thirty one and two thirds percent
(31 2/3%).
(2) Subject to the Concession the Company's interest in the Concession is
free from any mortgage, charge (whether fixed or floating), pledge,
lien, equity or other encumbrance and from all overriding interests,
royalties, deferred payments, net profit interests, carried interests,
production payment, and or other burden, equity or third party rights
whatsoever and there is no agreement or commitment to give or create
any of the same.
(3) Company has not committed any breach of and is not in default under
either of the Concession or the Joint Operating Agreement, and has not
received notice (nor is it aware) that any of the parties to the
Concession or the Joint Operating Agreement has committed any breach
of, or is in default under the Concession or the Joint Operating
Agreement, which breach or default, as the date hereof, is of a
material nature and subsisting.
(4) No act or omission of the Company, or, as far as the Company is aware,
of any other person, firm or company has occurred which would or might
entitle the Government to revoke the Concession and no notice has been
given to the Company or, as far as the Company is aware, to any other
person, firm or company by the Government of any intention to revoke
the Concession and there are no other grounds for rescission,
avoidance, revocation, repudiation or termination of the Concession.
(5) The Government has not given notice to Company of any intention to
require further works to be conducted (whether in relation to
exploration or development), or to call for the submission of or
impose a development programme.
(6) Company has kept proper and consistent accounts, books and records of
its activities relating to its operations conducted with respect to
the Concession and such accounts, books and records are up to date and
there has been no change in any practice or policy insofar as such
change might affect the valuation of assets or the recording of
expenditure or receipts relating to the Concession. All returns
relating to the Concession are up to date and there is currently no
dispute concerning the same of which Company is aware.
(7) Company is not a party to any litigation, arbitration or
administrative proceedings or to any dispute in relation to, and which
are likely to prejudice or endanger in any manner, the Concession and
Company is not aware that any such litigation, arbitration or
administrative proceedings are threatened or pending either by or
against Company and there are no facts known to Company which are
likely so to prejudice or endanger the Concession and, as far as
Company is aware, none of the parties to the Concession is involved in
or threatened with any litigation, arbitration or administrative
proceedings or
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any dispute in relation to, or which is likely to prejudice or
endanger in any manner, the Concession.
(8) The Company is not a party to and as far as the Company is aware there
is no other agreement, arrangement or undertaking relating to the
creation, existence or validity of the Concession.
(9) As far as the Company is aware, no event has occurred which would
materially and adversely affect its ability to observe or perform its
obligations under this Agreement and the transaction contemplated
hereby.
(10) Company has not received any demand, claim or notice which relates to
pollution or to environmental damage, and which requires remediation
or action with respect to the Concession or any demand or notice with
respect to the breach of any pollution or environmental laws
applicable to the Concession and as far as the Company is aware there
have been no escapes of waste material, hazardous substances or other
pollution events other than what is recognised as industry practice
and within the pollution or environmental laws applicable to the
Concession.
(11) As far as the Company is aware, save as provided in the Concession and
legislation applicable to the Concession there are no arrangements
which restrict the Purchasers ability to dispose of the assets to be
acquired hereunder or the Vendor's share of petroleum won and saved
from the Concession.
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Bangkok, 21st May 1996
Dear Khun Suradej,
As you have previously been informed, a sale of Maersk Oil (Thailand) Ltd.
(MOTL) is currently being considered. The company in which you are employed may
change ownership.
Therefore, in consideration of your choosing to remain an employee of MOTL and
your are not giving notice of termination of your employment contract,
effective prior to April 1, 1997, you are guaranteed:
1) a bonus of 10 (ten) months of your base salary, payable not
later than in April, 1997 and
2) employment through December 31, 1996 even in the event that
sale of MOTL is effective before that date.
If MOTL gives notice of termination of your employment contract (for any reason
other than breach of your employment contract) with effect from January 1, 1997
or later, you will receive the above bonus within one month of the effective
date of your termination.
If you give notice of termination of your employment contract with MOTL, with
effect from any date prior to April 1, 1997 or if you breach your employment
contract and we are thus forced to terminate your employment contract, you will
not receive the above bonus nor the salary for the unearned portion of the
guaranteed employment period.
Furthermore, if your employment is terminated for any reason other than breach
of your employment contract, all other bonuses and benefits to which you are
entitled under your employment contract or under the law will remain
unaffected.
We do hope that irrespective of the uncertainty created by our sales effort,
you will remain an employee of Maersk Oil (Thailand) Ltd., and that our
hitherto good cooperation will continue in good faith.
On behalf of Maersk Oil (Thailand) Ltd.
/s/ Henrik Jakobsen
Henrik Jakobsen
Resident Manager
/s/ Suradej Patanasiri
Accepted by Suradej Patanasiri
21st May, 1996