EXHIBIT 10.86
SHARE PURCHASE AGREEMENT
BETWEEN
TRITON INTERNATIONAL PETROLEUM, INC.
PURCHASER
AND
THE STRATEGIC TRANSACTION COMPANY
SELLER
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Dated as of May 8, 2000
TABLE OF CONTENTS
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Section Page
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ARTICLE I DEFINITIONS 1
1.1 Certain Definitions 1
ARTICLE II SALE AND PURCHASE OF TPC SHARES 4
2.1 Sale and Purchase of TPC Shares 4
ARTICLE III PURCHASE PRICE AND PAYMENT 4
3.1 Amount of Purchase Price 4
3.2 Payment of Purchase Price 4
ARTICLE IV CLOSING 4
4.1 Closing Date 4
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE SELLER 4
5.1 Organization and Good Standing 4
5.2 Authorization of Agreement 5
5.3 Capital and TPC Shares 5
5.4 Other Activities 6
5.5 Corporate Records 6
5.6 Conflicts; Consents of Third Parties 6
5.7 Ownership and Transfer of TPC Shares 7
5.8 Compliance with Laws 7
5.9 No Misrepresentation 7
5.10 Absence of Certain Developments 7
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER 8
6.1 Organization and Good Standing 8
6.2 Authorization of Agreement 8
6.3 No Misrepresentation 8
6.4 Conflicts; Consents of Third Parties 9
6.5 Litigation 9
6.6 Financing 9
ARTICLE VII COVENANTS 9
7.1 Access to Information 9
7.2 Consents 10
7.3 Other Actions 10
7.4 Confidentiality 10
7.5 Publicity 10
7.6 Conduct of the Business 10
ARTICLE VIII CONDITIONS TO CLOSING 11
8.1 Conditions Precedent to Obligations of the Purchaser 11
8.2 Conditions Precedent to Obligations of the Seller 12
ARTICLE IX DOCUMENTS TO BE DELIVERED 13
9.1 Documents to be Delivered by the Seller 13
9.2 Documents to be Delivered by the Purchaser 13
ARTICLE X MISCELLANEOUS 14
10.1 Payment of Sales, Use or Similar Taxes 14
10.2 Survival of Representations and Warranties 14
10.3 Expenses 14
10.4 Further Assurances 14
10.5 Submission to Jurisdiction; Consent to Service of Process 14
10.6 Entire Agreement; Amendments and Waivers 15
10.7 Governing Law 15
10.8 Table of Contents and Headings 15
10.9 Notices 15
10.10 Severability 16
10.11 Binding Effect; Assignment 16
10.12 Counterparts 16
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT, dated as of May 8, 2000 (the "Agreement"),
between Triton International Petroleum, Inc., a company incorporated under the
laws of the Cayman Islands whose registered office is at Ugland House, P.O. Box
309, Grand Cayman, Cayman Islands, B.W.I. (the "Purchaser"), and The Strategic
Transaction Company, a company incorporated under the laws of the Cayman Islands
whose registered office is at Elizabethan Square, P.O. Box 1984, George Town,
Grand Cayman, Cayman Islands, B.W.I. (the "Seller").
W I T N E S S E T H:
WHEREAS, the Seller owns all of the issued and outstanding shares of Triton
Pipeline Colombia, Inc., a company incorporated under the laws of the Cayman
Islands;
WHEREAS, Triton Pipeline Colombia, Inc. owns 9.6% of the shares of common
stock of Oleoducto Central S.A., a sociedad anonima existing under the
laws of Colombia; which shares have been converted into the rights to receive
Preferred Shares, or acciones privilegiadas, under Colombian law, par
value Ps 100,000 each
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller, said shares of Triton Pipeline Colombia,
Inc. for the purchase price and upon the terms and conditions hereinafter set
forth; and
WHEREAS, certain terms used in this Agreement are defined in Section 1.1
hereof;
NOW, THEREFORE BE IT RESOLVED, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions.
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For purposes of this Agreement, the following terms shall have the meanings
specified in this Section 1.1:
"Closing" shall have the meaning set forth in Section 4.1 hereof.
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"Closing Date" shall have the meaning set forth in Section 4.1 hereof.
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"Contract" means any contract, agreement, indenture, mortgage, note, bond, loan,
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instrument, license, lease, commitment or other arrangement or agreement.
"Distributions" shall have the meaning set forth in Section 1.1 of the Dividend
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Trust Agreement.
"Dividend Trust Agreement" means the Dividend Trust Agreement, dated as of May
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24, 1996, among Ocensa, Empresa Colombiana De Petroleos-Ecopetrol, BP Colombia
Pipelines Limited, Total Pipeline Colombie S.A., TPC, IPL Enterprises (Colombia)
Inc., TCPL International Investments Inc., and Bankers Trust (Cayman)
International, Ltd. as dividend trustee.
"Dividend Trustee" shall have the meaning set forth in Section 1.1 of the
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Dividend Trust Agreement.
"Governmental Body" means any government or governmental, administrative or
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regulatory body thereof, or political subdivision thereof, whether federal,
state, local or foreign, or any agency, instrumentality or authority thereof, or
any court or arbitrator (public or private).
"Indenture" means the Indenture dated February 2, 1998 between Seller and First
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Trust of New York, National Association (the "Indenture").
"Law" means any federal, state, local or foreign law (including common law or
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civil law), statute, code, ordinance, rule, regulation or other requirement.
"Legal Proceeding" means any judicial, administrative or arbitral actions,
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suits, proceedings (public or private), claims or governmental proceedings.
"Lien" means any lien, pledge, mortgage, deed of trust, security interest,
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claim, lease, charge, option, right of first refusal, easement, servitude,
transfer restriction under any shareholder or similar agreement, encumbrance or
any other restriction or limitation whatsoever.
"Material Adverse Effect" means any effect which has resulted in, or is
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reasonably likely to result in, a material adverse change in the business,
properties, results of operations, prospects, condition (financial or otherwise)
of the Seller and its subsidiaries, taken as a whole.
"Ocensa" means Oleoducto Central S.A., a sociedad anonima existing under the
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laws of Colombia.
"Ocensa Agreement" means the Amended and Restated Oleoducto Central Agreement,
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dated as of March 31, 1995, among Ocensa, Empresa Colombiana De
Petroleos-Ecopetrol, BP Colombia Pipelines Limited, Total Pipeline Colombie
S.A., TPC, IPL Enterprises (Colombia) Inc. and TCPL International Investments
Inc., as amended through the date of this Agreement.
"Ocensa Shares" means the shares of common stock of Ocensa owned by TPC, which
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shares have been converted into the right to receive Preferred Shares, or
acciones privilegiadas, under Colombian law, par value Ps 100,000 each.
"Order" means any order, injunction, judgment, decree, ruling, writ, assessment
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or arbitration award.
"Permit" means any approval, authorization, consent, license, permit or
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certificate.
"Person" means any individual, corporation, partnership, firm, joint venture,
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association, joint-stock company, trust, unincorporated organization,
Governmental Body or other entity.
"Purchase Price" shall have the meaning set forth in Section 3.1 hereof.
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"Purchaser Documents" shall have the meaning set forth in Section 6.2 hereof.
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"Seller Documents" shall have the meaning set forth in Section 5.2 hereof.
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Stop Notice" means a stop notice filed and served pursuant to Order 50, Rule 11
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of the Cayman Islands Grand Court Rules.
"Taxes" means (i) all federal, state, local or foreign taxes, charges, fees,
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imposts, levies or other assessments, including, without limitation, all net
income, gross receipts, capital, sales, use, ad valorem, value added, transfer,
franchise, profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp, occupation,
property and estimated taxes, customs duties, fees, assessments and charges of
any kind whatsoever; (ii) all interest, penalties, fines, additions to tax or
additional amounts imposed by any taxing authority in connection with any item
described in clause (i); and (iii) any transferee liability in respect of any
items described in clauses (i) and/or (ii).
"TPC" means Triton Pipeline Colombia, Inc., a company incorporated under the
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laws of the Cayman Islands.
"TPC Shares" means all of the issued and outstanding shares in TPC, and shall
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include securities or other property that may be issued or distributed in
respect thereof as a result of any merger, spin-off, stock or share split, stock
or share combination, bonus issue, recapitalization or other similar
transaction.
"Voting Agreement" means the Voting Agreement, dated as of May 24, 1996, among
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Ocensa, Empresa Colombiana De Petroleos - Ecopetrol, BP Colombia Pipelines
Limited, Total Pipeline Colombie S.A., TPC, IPL Enterprises (Colombia) Inc., and
TCPL International Investments Inc.
ARTICLE II
SALE AND PURCHASE OF TPC SHARES
2.1 Sale and Purchase of TPC Shares. Upon the terms and subject to the
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conditions contained herein, on the Closing Date the Seller, as record and
beneficial owner, shall sell, assign, transfer, convey and deliver to the
Purchaser, and the Purchaser shall purchase from the Seller, the TPC Shares,
free from all Liens (other than as set forth in the Ocensa Agreement), and with
all rights now or hereafter attaching to the TPC Shares.
ARTICLE III
PURCHASE PRICE AND PAYMENT
3.1 Amount of Purchase Price. The purchase price for the TPC Shares shall
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be an amount equal to $88,800,000 (the "Purchase Price").
3.2 Payment of Purchase Price. Payment of the aggregate Purchase Price
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shall be made on the Closing Date by wire transfer of immediately available
funds into the account designated by the Seller.
ARTICLE IV
CLOSING
4.1 Closing Date. Subject to the satisfaction of the conditions set forth
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in Sections 8.1 and 8.2 hereof (or the waiver thereof by the party entitled to
waive that condition), the closing of the sale and purchase of the TPC Shares
provided for in Section 2.1 hereof (the "Closing") shall take place on the date
that is five (5) business days following the date that such conditions are
satisfied (or waived by the party entitled to waive that condition), or such
other date that is agreed to by the Purchaser and the Seller. The date on which
the Closing shall be held is referred to in this Agreement as the "Closing
Date."
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as of the date
of this Agreement and as of the Closing Date that:
5.1 Organization and Good Standing. The Seller and TPC are companies duly
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incorporated, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation as set forth above and have all
requisite corporate power and authority to own, lease and operate their
properties and to carry on their businesses as now conducted. TPC is duly
qualified or authorized to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction in which it owns or leases real
property and each other jurisdiction in which the conduct of its business or the
ownership of its properties requires such qualification or authorization
except where the failure to be so qualified, authorized or in good standing
would not have a Material Adverse Effect.
5.2 Authorization of Agreement. The Seller has all requisite power,
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authority and legal capacity to execute and deliver this Agreement and each
other agreement, document, or instrument or certificate contemplated by this
Agreement or to be executed by the Seller in connection with the consummation of
the transactions contemplated by this Agreement (collectively, with this
Agreement, the "Seller Documents"), and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance by the
Seller of this Agreement have been, and each of the Seller Documents will be at
or prior to the Closing Date, duly authorized by all necessary corporate action
on behalf of the Seller, and when so executed and delivered by the Seller
(assuming the due authorization, execution and delivery by the other parties
hereto and thereto) will constitute legal, valid and binding obligations of the
Seller, enforceable against the Seller in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
5.3 Capital and TPC Shares.
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(a) The authorized share capital of TPC is US $50,000 and the number of
shares in TPC issued and outstanding is 35,000, with a par value of $1.00 per
share. There are no put options, call options, commitments, exchange rights,
preferential rights, plans, covenants or other agreements of any nature that are
outstanding that provide for the purchase, issue or sale of any of the TPC
Shares or grant to any Person conversion or exchange rights in connection with
the TPC Shares, or pursuant to which any Person, in any capacity, may be
entitled to receive or subscribe for shares issued or to be issued by TPC. All
of the TPC Shares were duly authorized for issuance and are validly issued,
fully paid and non-assessable. STC has not received a Stop Notice in respect of
the Shares. None of the TPC Shares has been issued in violation of any
preferential right or right to take up unsubscribed shares and none of the TPC
Shares is subject to any Lien, other than as set forth in the Ocensa Agreement
and this Agreement.
(b) No Person has any claim pending or, to the Seller's best knowledge,
threatened against TPC based on the fact that any issue, exchange, subscription,
cancellation or redemption of TPC's share capital by TPC did not comply
with all the applicable Contracts and Laws, including, without limitation, the
Ocensa Agreement. Except for this Agreement, the Ocensa Agreement and the
Voting Agreement, there are no Contracts that are legally binding and
enforceable, with respect to the issue, redemption, conversion, exchange, vote
or transfer of any of the shares or other securities of TPC.
5.4 Other Activities. Since February 2, 1998, TPC has not engaged in any
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activity other than managing its interest in Ocensa since the date of its
incorporation. Other than its 9.6% interest of Ocensa, TPC, since February 2,
1998, has not, and does not, directly or indirectly, own any stock or other
equity interest in any other Person.
5.5 Corporate Records. The Seller has delivered or made available to the
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Purchaser:
(a) the seal and true, correct and complete certified copies of the
memorandum of association, articles of association of TPC, Register of Members,
Register of Mortgages and Charges, Register of Directors and Officers, and
Certificate of Good Standing;
(b) the statutory books, books of account and documents of record of TPC,
complete and up-to-date and all other documents of TPC in the possession of the
Seller;
(c) the minutes of the meetings and copies of all written resolutions of the
Board of Directors and the committees thereof of TPC since February 2, 1998;
(d) the minutes of all shareholders' meetings and copies of all written
resolutions of shareholders of TPC since February 2, 1998;
(e) a copy of the registers of members, directors and officers of TPC as of
the most recent date practicable; and
(f) a list of any bank accounts maintained by TPC;
5.6 Conflicts; Consents of Third Parties.
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(a) None of the execution and delivery by the Seller of this Agreement and
the Seller Documents, the consummation of the transactions contemplated hereby
or thereby, or compliance by the Seller with any of the provisions hereof or
thereof will (i) conflict with, or result in the breach of, any provision of the
memorandum of association, articles of association or comparable
organizational documents or statutory books of the Seller or TPC; (ii) conflict
with, violate, result in the breach or termination of, or constitute a default
under, any Contract to which the Seller or TPC is a party or by which any of
them or any of their respective properties or assets is bound, including,
without limitation, the Ocensa Agreement; (iii) violate any statute, rule,
regulation, order or decree of any Governmental Body by which the Seller or TPC
is bound; or (iv) result in the creation of any Lien upon the properties or
assets of TPC.
(b) Except as set forth in the Ocensa Agreement or as will have been
obtained on or prior to the Closing Date, no other consent, waiver, approval,
Order, Permit or authorization of, or declaration or filing with, or
notification to, any Person is required on the part of the Seller or TPC in
connection with the execution and delivery of this Agreement or the Seller
Documents, or the compliance by the Seller or TPC, as the case may be, with any
of the provisions hereof or thereof.
5.7 Ownership and Transfer of TPC Shares. The Seller is the registered and
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beneficial owner of the TPC Shares and has valid title thereto, free and clear
of any and all Liens, other than as set forth in the Ocensa Agreement and this
Agreement; no Lien has been exercised over any of the TPC Shares other than the
lien of the Indenture, there is no outstanding call on any of the TPC Shares and
all of the TPC Shares are fully paid. The Seller has the corporate power
and authority to sell, transfer, assign and deliver the TPC Shares as provided
in this Agreement, and such delivery and entry in the register of members of TPC
will convey to the Purchaser good and marketable title to the TPC Shares, free
and clear of any and all Liens, other than as set forth in the Ocensa Agreement
and this Agreement.
5.8 Compliance with Laws. The Seller is not aware of:
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(a) any material violations by the Seller, TPC, or Ocensa of any Laws in any
jurisdiction in connection with the operations of the Seller, TPC, or
Ocensa at the date hereof; or
(b) any communications from any Governmental Body or representatives
concerning any investigation or allegation or non-compliance with Laws in any
jurisdiction, or deficiencies in financial reporting practices or other matters
that would reasonably be expected to have a Material Adverse Effect.
5.9 No Misrepresentation. No representation or warranty of the Seller
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contained in this Agreement or in any certificate or other instrument furnished
by the Seller to the Purchaser or its representatives pursuant to the terms
hereof, contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained herein or therein not
misleading.
5.10 Absence of Certain Developments. Except as expressly contemplated by
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this Agreement and except with respect to the conversion of the common stock of
Ocensa owned by TPC into the right to receive Preferred Shares, or acciones
privilegiadas, par value Ps 100,000 each, or as otherwise disclosed in writing
to the Purchaser, since February 2, 1998:
(a) TPC has not entered into any transaction or Contract (other than with
respect to the recapitalization of Ocensa) or conducted its business other than
in the ordinary course consistent with past practice;
(b) TPC has not instituted or settled any material Legal Proceeding;
(c) to the actual knowledge of the directors of TPC, there have been no
actions, claims, suits, litigation, administrative proceedings or governmental
investigations or inquiries, instituted or threatened, before any court,
arbitrator, administrator or governmental body affecting TPC, provided that TPC
makes no representations or warranties as to any matters (x) occurring in or
arising out of actions taken by any Person in the Republic of Colombia, or (y)
arising out of the operations of Ocensa or TPC's ownership of shares of Ocensa;
(d) the Seller has not received any notice from Deutsche Morgan Grenfell
(Cayman) Limited ("DMG") of any substantial change in circumstances or
conditions that are known to DMG that may affect TPC pursuant to Section 2(e) of
the Management Agreement dated February 2, 1998 between TPC and DMG; and
(e) there have been no amendments to the memorandum of association or
articles of association of TPC since February 2, 1998.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Seller as of the date
of this Agreement and as of the Closing Date that:
6.1 Organization and Good Standing. The Purchaser is a company duly
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organized, validly existing and in good standing under the laws of the Cayman
Islands and has all requisite corporate power and authority to own, lease and
operate its property and to carry on its business as it is currently conducted.
6.2 Authorization of Agreement. The Purchaser has all requisite power,
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authority and legal capacity to execute and deliver this Agreement and each
other agreement, document, or instrument or certificate contemplated by this
Agreement or to be executed by the Purchaser in connection with the consummation
of the transactions contemplated by this Agreement (collectively, with this
Agreement, the "Purchaser Documents") and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance by the
Purchaser of this Agreement have been, and each of the Purchaser Documents will
be at or prior to the Closing Date, duly authorized by all necessary corporate
action on behalf of the Purchaser, and when so executed and delivered by the
Purchaser (assuming the due authorization, execution and delivery by the other
parties hereto) will constitute, legal, valid and binding obligations of the
Purchaser, enforceable against the Purchaser in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
6.3 No Misrepresentation. No representation or warranty of the Purchaser
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contained in this Agreement or in any certificate or other instrument furnished
by the Purchaser to the Seller or its representatives pursuant to the terms
hereof, contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained herein or therein not
misleading.
6.4 Conflicts; Consents of Third Parties.
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(a) None of the execution and delivery by the Purchaser of this Agreement,
the consummation of the transactions contemplated hereby, or the compliance by
the Purchaser with any of the provisions hereof will (i) conflict with, or
result in the breach of, any provision of the memorandum of association,
articles of association or comparable organizational documents of the Purchaser;
(ii) conflict with, violate, result in the breach or termination of, or
constitute a default under, any Contract to which the Purchaser is a party or by
which the Purchaser or its properties or assets are bound; (iii) violate any
statute, rule, regulation, order or decree of any Governmental Body by which the
Purchaser is bound; or (iv) result in the creation of any Lien upon the
properties or assets of the Purchaser.
(b) No consent, waiver, approval, Order, Permit or authorization of, or
declaration or filing with, or notification to, any Person is required on the
part of the Purchaser in connection with the execution and delivery of this
Agreement or the compliance by the Purchaser with any of the provisions hereof.
6.5 Litigation. There are no Legal Proceedings initiated by any Person,
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pending or, to the best knowledge of the Purchaser, threatened against the
Purchaser that are reasonably likely to prohibit or restrain the ability of the
Purchaser to enter into this Agreement or consummate the transactions
contemplated hereby.
6.6 Financing. As of the date of this Agreement, Purchaser has access to,
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and as of the Closing, Purchaser will have, sufficient funds necessary to (a)
pay the Purchase Price and (b) pay all of its fees and expenses incurred in
connection with the transactions contemplated by this Agreement.
ARTICLE VII
COVENANTS
7.1 Access to Information. The Seller agrees that, prior to the Closing
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Date, the Seller shall make available to the Purchaser, through its officers,
employees and representatives (including, without limitation, its legal advisors
and accountants), the properties, businesses, operations, books and records
of TPC and Ocensa as the Purchaser reasonably requests and the Seller shall make
extracts and copies of such books and records for delivery to the Purchaser, to
the extent the Seller may do so in compliance with Law and applicable
contractual requirements. Any such investigation and examination shall be
conducted during regular business hours and under reasonable circumstances, and
the Seller shall cooperate, and shall cause TPC to cooperate, fully therein. No
investigation by the Purchaser prior to or after the date of this Agreement
shall diminish or obviate any of the representations, warranties, covenants or
agreements of the Seller contained in this Agreement or the Seller Documents.
7.2 Consents. The Seller and Purchaser shall use their commercially
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reasonable efforts to obtain at the earliest practicable date all consents and
approvals required to consummate the transactions contemplated by this
Agreement, including, without limitation, the consents and approvals referred to
in Section 5.6(b) hereof and required by Article Ten of the Ocensa
Agreement.
7.3 Other Actions.
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(a) Each of the Seller and the Purchaser shall use its commercially
reasonable efforts to (i) take all actions necessary or appropriate to
consummate the transactions contemplated by this Agreement and (ii) cause the
fulfillment at the earliest practicable date of all of the conditions to their
respective obligations to consummate the transactions contemplated by this
Agreement.
(b) Effective as of the Closing, the Seller shall enter into and cause TPC
to enter into, as applicable, and the Purchaser shall enter into and cause its
Affiliates to enter into, as applicable, agreements terminating the following:
(i) Acknowledgement Agreement dated February 2, 1998, between the Seller and the
Purchaser, (ii) Confirmation of Initial Shipper Group Status dated February 2,
1998 among Triton Colombia, Inc., TPC, Triton Energy Corporation and the Seller,
and (iii) Confirmation of Initial Shipper and Throughput Obligor Status dated
February 2, 1998 among Triton Colombia, Inc., TPC, Triton Energy Corporation and
the Seller.
7.4 Confidentiality. Each of the Seller and Purchaser hereto acknowledges
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to the other party that all information or documentation that any of the parties
provided to the other before, on or after the Closing Date, or that one of
the parties would have provided in the course of the negotiation of this
Agreement, with the exception of the information that is publicly available,
shall be treated as confidential and owned by such party and it shall not be
disclosed to third parties (except to legal and financial advisors of each
party) without the consent of the party that delivered the information or the
document, except as required by applicable Law.
7.5 Publicity. Neither the Seller nor the Purchaser shall issue any press
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release or public announcement concerning this Agreement or the transactions
contemplated hereby without obtaining the prior written approval of the other
party hereto, unless, in the sole judgment of the Purchaser or the Seller,
disclosure is otherwise required by applicable Law, provided that, to the extent
required by applicable Law, the party intending to make such release shall
use its best efforts consistent with such applicable Law to consult with the
other party with respect to the text thereof.
7.6 Conduct of the Business.Except as otherwise expressly contemplated by
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this Agreement or with the prior written consent of the Purchaser, from the date
hereof through and including the Closing Date, the Seller shall not and
shall cause TPC not to:
(a) conduct the business of TPC other than in the ordinary
course consistent with past practice;
(b) transfer, issue, sell or dispose of any shares of capital
stock or other securities of TPC or grant options, warrants, calls or other
rights to purchase or otherwise acquire shares of the capital stock or other
securities of TPC;
(c) effect any recapitalization, reclassification, stock split
or like change in the capitalization of TPC;
(d) amend the memorandum of association, articles of association
or comparable organizational documents or statutory books of TPC;
(e) subject to any Lien any of the properties or assets (whether
tangible or intangible) of TPC;
(f) acquire any material properties or assets for TPC or sell,
assign, transfer, convey, lease or otherwise dispose of any of the material
properties or assets of TPC; or
(g) agree to do anything prohibited by this Section 7.6.
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ARTICLE VIII
CONDITIONS TO CLOSING
8.1 Conditions Precedent to Obligations of the Purchaser. The obligation of
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the Purchaser to consummate the transactions contemplated by this Agreement
is subject to the fulfillment, on or prior to the Closing Date, of each of the
following conditions (any or all of which may be waived by the Purchaser in
whole or in part to the extent permitted by applicable Law):
(a) all representations and warranties of the Seller contained herein shall
be true and correct in all material respects as of the Closing Date;
(b) the Seller shall have performed and complied in all material respects
with all agreements and obligations and covenants required by this Agreement to
be performed or complied with by it on or prior to the Closing Date;
(c) the Purchaser shall have been furnished with certificates (dated the
Closing Date and in form and substance reasonably satisfactory to the Purchaser)
executed by the Seller certifying as to the fulfillment of the conditions
specified in Sections 8.1(a) and 8.1(b) hereof;
(d) the Seller shall have delivered a duly completed and signed transfer
form in favor of the Purchaser or its designee of the TPC Shares, together with
the relative certificates representing 100% of the TPC Shares. The TPC Shares
shall have been, or shall at the Closing Date be, validly delivered and
transferred to the Purchaser, free and clear of any and all Liens, other than as
set forth in the Ocensa Agreement;
(e) the Seller shall have delivered to the Purchaser all of the certificates
representing the Ocensa Shares, free and clear of any Liens granted by
Seller;
(f) no Legal Proceedings shall have been instituted or threatened or claim
or demand made against the Seller or the Purchaser seeking to restrain or
prohibit or to obtain substantial damages with respect to the consummation of
the transactions contemplated hereby, and there shall not be in effect any Order
by a Governmental Body of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of the transactions contemplated hereby;
(g) the Purchaser and Seller shall have obtained all consents and waivers
referred to in Section 5.6(b) hereof, in a form reasonably satisfactory to the
Purchaser, with respect to the transactions contemplated by this Agreement and
the Seller Documents including, without limitation, the consents required by
Article Ten of the Ocensa Agreement; and
(h) the Seller shall have delivered to the Dividend Trustee in accordance
with Section 4.16 of the Dividend Trust Agreement written notice of the transfer
of the TPC Shares as provided in this Agreement and the Seller shall have caused
to be delivered to such Dividend Trustee valid revocation of any instructions
with regard to the payment of Distributions pursuant to such Dividend Trust
Agreement, including without limitation the instructions dated February 2, 1998.
8.2 Conditions Precedent to Obligations of the Seller. The obligation of
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the Seller to consummate the transactions contemplated by this Agreement is
subject to the fulfillment, on or prior to the Closing Date, of each of the
following conditions (any or all of which may be waived by the Seller in whole
or in part to the extent permitted by applicable Law):
(a) all representations and warranties of the Purchaser contained herein
shall be true and correct in all material respects as of the Closing Date;
(b) the Purchaser shall have performed and complied in all material respects
with all obligations and covenants required by this Agreement to be performed or
complied with by it on or prior to the Closing Date;
(c) the Seller shall have been furnished with certificates (dated the
Closing Date and in form and substance reasonably satisfactory to the Seller)
executed by the Purchaser certifying as to the fulfillment of the conditions
specified in Sections 8.2(a) and 8.2(b) hereof;
(d) the Seller shall have obtained all consents and waivers, if any,
referred to in Section 5.6(b) hereof, in a form reasonably satisfactory to the
Seller, with respect to the transactions contemplated by this Agreement;
(e) no Legal Proceedings shall have been instituted or threatened or claim
or demand made against the Seller or the Purchaser seeking to restrain or
prohibit or to obtain substantial damages with respect to the consummation of
the transactions contemplated hereby, and there shall not be in effect any Order
by a Governmental Body of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of the transactions contemplated hereby;
and
(f) the Seller has received the Purchase Price in the manner specified in
Section 3.2 hereof.
ARTICLE IX
DOCUMENTS TO BE DELIVERED
9.1 Documents to be Delivered by the Seller.
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(a) At the Closing, the Seller shall deliver, or cause to be delivered, to
the Purchaser the following:
(i) share certificates representing the TPC Shares, a share transfer form as
required by the Articles of Association of TPC, and a certified copy of the
Register of Members of TPC showing Purchaser as the registered holder of the TPC
Shares;
(ii) stock certificates representing the Ocensa Shares;
(iii) the certificate referred to in Section 8.1(c) hereof;
(iv) copies of all consents and waivers referred to in Section 8.1(e)
hereof;
(v) the opinions of Walkers and Weil, Gotshal & Manges LLP, counsel to the
Seller, in form and substance reasonably satisfactory to the Purchaser;
(vi) the Seller Documents; and
(vii) such other documents as the Purchaser shall reasonably request.
9.2 Documents to be Delivered by the Purchaser. At the Closing, the
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Purchaser shall deliver, or cause to be delivered, to the Seller the following:
(i) the certificate referred to in Section 8.2(c) hereof;
(ii) copies of all consents and waivers referred to in Section 8.1(e)
hereof;
(iii) the opinions of Maples and Calder and Simpson Thacher & Bartlett,
counsel to the Purchaser, in form and substance reasonably satisfactory to the
Seller;
(iv) the Purchaser Documents; and
(v) such other documents as the Seller shall reasonably request.
ARTICLE X
MISCELLANEOUS
10.1 Payment of Sales, Use or Similar Taxes. All sales, use, transfer,
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intangible, recordation, documentary stamp or similar Taxes or charges, of any
nature whatsoever, applicable to, or resulting from, the transactions
contemplated by this Agreement shall be borne by the Purchaser.
10.2 Survival of Representations and Warranties. The parties hereto hereby
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agree that the representations and warranties and covenants contained in this
Agreement or in any certificate, document or instrument delivered in connection
herewith, shall remain in full force and effect after the Closing Date (except
insofar as they set out obligations that have been fully performed at the
Closing Date).
10.3 Expenses. Each party agrees to pay its own fees, costs and expenses
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and those of its representatives, and on or about the Closing Date the Seller
agrees to pay all fees, costs and expenses of TPC and its representatives,
incurred in connection with the negotiation and execution of this Agreement and
the Seller Documents or Purchaser Documents, as applicable, and the consummation
of the transactions contemplated hereby and thereby.
10.4 Further Assurances. The Seller and the Purchaser each agrees to
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execute and deliver such other documents or agreements and to take such other
action as may be reasonably necessary or desirable for the implementation of
this Agreement and the consummation of the transactions contemplated hereby. At
the Closing, the Seller shall deliver to the Purchaser, TPC or any other
Person designated by TPC or the Purchaser, the statutory books, minute books,
books of account and documents of record of TPC, and all other documents and
property of TPC in the possession of the Seller. Following the Closing, the
Purchaser and the Seller shall each provide the other at Seller's expense with
such assistance as may reasonably be requested by either of them in connection
with the preparation of any financial statement or Tax return.
10.5 Submission to Jurisdiction; Consent to Service of Process.
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(a) The parties hereto hereby irrevocably submit to the non-exclusive
jurisdiction of any federal or state court located within the State of New York
over any dispute arising out of or relating to this Agreement or any of the
transactions contemplated hereby and each party hereby irrevocably agrees that
all claims in respect of such dispute or any suit, action or proceeding related
thereto may be heard and determined in such courts. The parties hereby
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of venue of any
such dispute brought in such court or any defense of inconvenient forum for the
maintenance of such dispute. Each of the parties hereto agrees that a judgment
in any such dispute may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) Each of the parties hereto hereby consents to process being served by
any party to this Agreement in any suit, action or proceeding by the mailing of
a copy thereof in accordance with the provisions of Section 10.9.
10.6 Entire Agreement; Amendments and Waivers. This Agreement (together
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with any documents referred to herein or executed contemporaneously by the
parties in connection herewith) constitutes the whole arrangement between the
parties hereto and supersedes any previous agreements or arrangements between
them relating to the subject matter hereof. No amendment to this Agreement
shall be effective unless made in writing and signed by duly authorized
representatives of the Purchaser and the Seller.
10.7 Governing Law. THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT
OF LAWS PROVISIONS THEREOF.
10.8 Table of Contents and Headings. The table of contents and section
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headings of this Agreement are for reference purposes only and are to be given
no effect in the construction or interpretation of this Agreement.
10.9 Notices. All notices and other communications under this Agreement
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shall be in writing and shall be deemed given when delivered personally or
mailed by certified mail, return receipt requested, to the parties (and shall
also be transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified
by notice given to the other party pursuant to this provision):
If to Seller, to:
The Strategic Transaction Company
Elizabethan Square
P.O. Box 1984
George Town, Grand Cayman
Cayman Islands, B.W.I.
Attention: Ms. Marlene Blake
Telephone: (809) 949-8244
Telecopy: (809) 949-8178
If to the Purchaser, to:
Triton International Petroleum, Inc.
c/o Triton Energy
6688 North Central Expressway
Suite 1400
Dallas, TX 75206
Attention: Legal Department
Telephone: (214) 691-5200
Telecopy: (214) 691-0198
10.10 Severability. If any provision of this Agreement is invalid or
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unenforceable, the balance of this Agreement shall remain in effect.
10.11 Binding Effect; Assignment. This Agreement shall be binding upon and
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inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights in any Person not a party to this
Agreement except as provided in Section 10.3 hereof and this Section 10.11. No
assignment of this Agreement or of any rights or obligations hereunder may be
made by either the Seller or the Purchaser (by operation of Law or otherwise)
without the prior written consent of the other party hereto and any attempted
assignment without the required consents shall be void. Upon any such permitted
assignment, the references in this Agreement to the Purchaser shall also
apply to any such assignee unless the context otherwise requires.
10.12 Counterparts. This Agreement may be executed in counterparts, each of
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which shall constitute an original, but all of which shall together
constitute one Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
THE STRATEGIC TRANSACTION COMPANY
By:
Name:
Title:
TRITON INTERNATIONAL PETROLEUM, INC.
By:
Name:
Title:
AGREED AND ACCEPTED:
TRITON PIPELINE COLOMBIA, INC.
By:
Name:
Title: