EXHIBIT 10.43
PRIVILEGED & CONFIDENTIAL EXECUTION COPY
ATTORNEY WORK PRODUCT
STOCK PURCHASE AGREEMENT
BETWEEN
THE STRATEGIC TRANSACTION COMPANY
PURCHASER
AND
TRITON INTERNATIONAL PETROLEUM, INC.
SELLER
Dated as of September 2, 1997
TABLE OF CONTENTS
-------------------
Section Page
- ------- ----
ARTICLE I
DEFINITIONS 1
1.1 Certain Definitions 1
ARTICLE II
SALE AND PURCHASE OF TPC SHARES 7
2.1 Sale and Purchase of TPC Shares 7
ARTICLE III
PURCHASE PRICE AND PAYMENT 7
3.1 Amount of Purchase Price 7
3.2 Payment of Purchase Price 7
ARTICLE IV
CLOSING AND TERMINATION 7
4.1 Closing Date 7
4.2 Termination of Agreement 8
4.3 Procedure Upon Termination 8
4.4 Effect of Termination 8
4.5 Repayment Obligations of the Seller 8
4.6 Waiver by the Seller 8
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SELLER 9
5.1 Organization and Good Standing 9
5.2 Authorization of Agreement 9
5.3 Capital and TPC Shares 10
5.4 Other Activities 10
5.5 Corporate Records 10
5.6 Conflicts; Consents of Third Parties 11
5.7 Litigation 11
5.8 Ownership and Transfer of TPC Shares 11
5.9 Financial Statements 11
5.10 No Undisclosed Liabilities 12
5.11 No Undisclosed Liabilities of Ocensa 13
5.12 Absence of Certain Developments 13
5.13 Claims 14
5.14 Compliance with Laws 14
5.15 No Misrepresentation 14
5.16 Related Documents 14
5.17 Rights as Initial Shipper and Throughput Obligor 14
5.18 Material Contracts 14
5.19 Taxes 15
5.20 Environmental Matters 15
5.21 Other Undisclosed Liabilities 16
5.22 Compliance with Related Agreements 16
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER 16
6.1 Organization and Good Standing 16
6.2 Authorization of Agreement 16
6.3 Conflicts; Consents of Third Parties 17
6.4 Litigation 17
ARTICLE VII
COVENANTS 17
7.1 Access to Information 17
7.2 Conduct of the Business 18
7.3 Consents 19
7.4 Other Actions 20
7.5 Confidentiality 20
7.6 Publicity 20
7.7 Holding of TPC Shares 20
7.8 Future Funding Obligations. 20
7.9 Right of First Refusal 20
7.10 Release of Liens 22
7.11 Changes Affecting the TPC Shares 22
7.12 Information 22
7.13 TPC Board of Directors 22
7.14 Obligations of Initial Shipper and Throughput Obligor 22
7.15 Obligations under the Ocensa Agreement 23
ARTICLE VIII
CONDITIONS TO CLOSING 23
8.1 Conditions Precedent to Obligations of the Purchaser 23
8.2 Conditions Precedent to Obligations of the Seller 24
ARTICLE IX
DOCUMENTS TO BE DELIVERED 25
9.1 Documents to be Delivered by the Seller 25
9.2 Documents to be Delivered by the Purchaser 25
ARTICLE X
INDEMNIFICATION 26
10.1 Indemnification 26
10.2 Indemnification Procedures 27
ARTICLE XI
MISCELLANEOUS 28
11.1 Payment of Sales, Use or Similar Taxes 28
11.2 Survival of Representations and Warranties 28
11.3 Expenses 28
11.4 Further Assurances 29
11.5 Submission to Jurisdiction; Consent to Service of Process 29
11.6 Entire Agreement; Amendments and Waivers 29
11.7 Governing Law 29
11.8 Table of Contents and Headings 29
11.9 Notices 29
11.10 Severability 30
11.11 Binding Effect; Assignment 30
11.12 Non-Petition 30
11.13 Counterparts 31
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of September 2, 1997 (the
"Agreement"), between 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 "Purchaser"), and 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 "Seller").
W I T N E S S E T H:
WHEREAS, the Seller owns all of the issued and outstanding shares of
capital stock 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;
WHEREAS, the Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, such shares of capital stock 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
For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 1.1:
"Advance Tariff Agreement" means the Advance Tariff Agreement, dated
as of March 31, 1995, between Ocensa and Triton Colombia, Inc.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person.
"Assignment for Rights Under the Advance Tariff Agreement" means the
Assignment and Acknowledgment Agreement for Rights Under the Advance Tariff
Agreement, dated as of June 1, 1995, between Ocensa and Bankers Trust Company,
as trustee.
"Assignment for Rights Under the Subscription Agreement" means the
Assignment and Acknowledgment Agreement for Rights Under the Subscription
Agreement and the Performance Guarantee Agreement, made as of June 1, 1995,
between Ocensa and Bankers Trust Company, as trustee.
"Assignment for Rights Under the Transportation Agreement" means the
Assignment and Acknowledgment Agreement for Rights Under the Transportation
Agreement, dated as of June 1, 1995, between Ocensa and Bankers Trust Company,
as trustee.
"Balance Purchase Price" shall have the meaning set forth in Section
3.2 hereof.
"Balance Sheets" shall have the meaning set forth in Section 5.9(a)
hereof.
"Balance Sheet Date" shall have the meaning set forth in Section
5.9(a) hereof.
"Claim" shall have the meaning set forth in Section 10.2(a) hereof.
"Class B Shares" means the non-voting Class B common stock of the
Purchaser to be issued by the Purchaser on or prior to the Closing Date.
"Closing" shall have the meaning set forth in Section 4.1 hereof.
"Closing Date" shall have the meaning set forth in Section 4.1
hereof.
"Common Security Trust Agreement" means the Common Security Trust
Agreement, dated as of June 1, 1995, among Ocensa, Bankers Trust Company, as
trustee, and holders from time to time of Senior Debt (as defined therein).
"Contract" means any contract, agreement, indenture, mortgage,
note, bond, loan, instrument, license, lease, commitment or other arrangement
or agreement.
"Distributions" shall have the meaning set forth in Section 1.1 of
the Dividend Trust Agreement.
"Dividend Account" shall have the meaning set forth in Section 2.2
of the Dividend Trust Agreement.
"Dividend Trust Agreement" means the Dividend Trust Agreement, dated
as of May 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 Dividend Trust Agreement.
"Environmental Law" means any foreign, federal, state or local
statute, regulation, ordinance, or rule of common law, as of now or hereafter
in effect in any way relating to the protection of human health and safety or
the environment.
"Escrow Agreement" means the escrow agreement to be entered into on
or prior to the Closing Date, among TPC, the Seller and an independent banking
institution relating to the escrow of an amount necessary to fund TPC's equity
funding obligations under the Ocensa Agreement and the Subscription Agreement.
"Expenses" shall have the meaning set forth in Section 10.1(a)(v)
hereof.
"Financing Plan" means the plan for the sources and amounts of
financing for the acquisition, construction and development of Oleoducto
Central (as defined in the Ocensa Agreement) (including capitalized interest).
"Financial Statements" shall have the meaning set forth in Section
5.9(a).
"Floating Rate Notes" means the floating rate notes to be issued by
the Purchaser pursuant to the terms of a trust indenture, dated as of the
Closing Date, between the Purchaser and First Trust of New York, N.A., as
indenture trustee.
"GAAP" means generally accepted United States accounting principles
as of the date hereof.
"Governmental Body" means any government or governmental,
administrative or 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).
"Hazardous Material" means any substance, material or waste which
is regulated by the foreign jurisdictions in which Ocensa conducts business,
or any state or local governmental authority including, without limitation,
petroleum and its by-products, asbestos, and any material or substance which
constitutes "hazardous waste," "hazardous substance," "hazardous material,"
"restricted hazardous waste," "industrial waste," "solid waste,"
"contaminant," "pollutant," "toxic waste" or "toxic substance" under any
provision of Environmental Law.
"Indemnifying Parties" shall have the meaning set forth in Section
10.1(a) hereof.
"Initial Payment" shall have the meaning set forth in Section 3.2
hereof.
"Law" means any federal, state, local or foreign law (including
common law or civil law), statute, code, ordinance, rule, regulation or other
requirement.
"Legal Proceeding" means any judicial, administrative or arbitral
actions, suits, proceedings (public or private), claims or governmental
proceedings.
"Lien" means any lien, pledge, mortgage, deed of trust, security
interest, 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.
"Losses" shall have the meaning set forth in Section 10.1(a)(v)
hereof.
"Material Adverse Change" means any material adverse change in the
business, properties, results of operations, prospects, condition (financial
or otherwise) of (i) Seller and its Affiliates, taken as a whole; (ii) TPC or
(iii) Ocensa.
"Material Adverse Effect" means any effect which has resulted in,
or is reasonably likely to result in, a Material Adverse Change.
"Material Contracts" shall have the meaning set forth in Section
5.18 hereof.
"Notification Date" shall have the meaning set forth in Section
7.9(b) hereof.
"Ocensa" means Oleoducto Central S.A., a sociedad anonima existing
under the laws of Colombia.
"Ocensa Agreement" means the Amended and Restated Oleoducto Central
Agreement, 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.
"Ocensa Balance Sheet" shall have the meaning set forth in Section
5.9(b) hereof.
"Ocensa Balance Sheet Date" shall have the meaning set forth in
Section 5.9(b) hereof.
"Ocensa Financial Statements" shall have the meaning set forth in
Section 5.9(b) hereof.
"Offeror" shall have the meaning set forth in Section 7.9(b) hereof.
"Order" means any order, injunction, judgment, decree, ruling, writ,
assessment or arbitration award.
"Performance Guarantee Agreement" means the Performance Guarantee
Agreement, dated as of December 14, 1994, by Triton Energy Corporation in
favor of Ocensa.
"Permit" means any approval, authorization, consent, license, permit
or certificate.
"Person" means any individual, corporation, partnership, firm,
joint venture, association, joint-stock company, trust, unincorporated
organization, Governmental Body or other entity.
"Political Events Agreement" means the Political Events Agreement,
dated as of December, 14, 1994, 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.
"Purchase Price" shall have the meaning set forth in Section 3.1
hereof.
"Purchaser Indemnified Parties" shall have the meaning set forth in
Section 10.1(a) hereof.
"Related Documents" means the Advance Tariff Agreement, the
Assignment for Rights Under the Advance Tariff Agreement, the Assignment for
Rights Under the Subscription Agreement, the Assignment for Rights Under the
Transportation Agreement, the Common Security Trust Agreement, the Dividend
Trust Agreement, the Performance Guarantee Agreement, the Political Events
Agreement, the Subscription Agreement, the Tranche D Note Purchase Agreement,
the Transportation Agreement and the Voting Agreement and any other Contracts
that relate to or affect the rights or obligations of the Ocensa shares.
"Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, or leaching into the
indoor or outdoor environment, or into or out of any property.
"Remedial Action" means all actions to (x) clean up, remove, treat
or in any other way address any Hazardous Material; (y) prevent the Release of
any Hazardous Material so it does not endanger or threaten to endanger public
health or welfare or the indoor or outdoor environment; or (z) perform
preremedial studies and investigations or post-remedial monitoring and care.
"Sale Date" shall have the meaning set forth in Section 7.9(b)
hereof.
"Sale Notice" shall have the meaning set forth in Section 7.9(b)
hereof.
"Sale Price" shall have the meaning set forth in Section 7.9(b)
hereof.
"Seller Documents" shall have the meaning set forth in Section 5.2
hereof.
"Subscription Agreement" means the Amended and Restated Subscription
Agreement, dated as of March 31, 1995, between Ocensa and TPC.
"Taxes" means (i) all federal, state, local or foreign taxes,
charges, fees, 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).
"Tax Return" means all returns, declarations, reports, estimates,
information returns and statements required to be filed in respect of any
Taxes.
"Terminating Party" shall have the meaning set forth in Section 4.2
hereof.
"TPC" means Triton Pipeline Colombia, Inc., a company incorporated
under the laws of the Cayman Islands.
"TPC Shares" means all of the issued and outstanding shares of
capital stock of TPC, and shall include securities or other property that may
be issued or distributed in respect thereof as a result of any merger,
spinoff, stock split, stock combination, recapitalization or other similar
transaction.
"Tranche D Note Purchase Agreement" means the Tranche D Note
Purchase Agreement, dated April 29, 1996 by and between Ocensa, John Hancock
Mutual Life Insurance Company, John Hancock Variable Life Insurance Company,
John Hancock Life Insurance Company of America, Southland Life Insurance
Company, Security Life of Denver Insurance Company, Peerless Insurance
Company, Life Insurance Company of Georgia, NN Life Insurance Company of
Canada, New York Life Insurance Company and Bankers Trust Company.
"Transportation Agreement" means the Transportation Agreement, dated
as of March 31, 1995, between Ocensa and Triton Colombia, Inc.
"Triton Energy" means Triton Energy Limited, a company incorporated
under the laws of the Cayman Islands.
"Voting Agreement" means the Voting Agreement, dated as of May 24,
1996, 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.
ARTICLE II
SALE AND PURCHASE OF TPC SHARES
2.1 Sale and Purchase of TPC Shares. Upon the terms and subject
to the 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 this 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 be an amount equal to $90,000,000 (the "Purchase Price"), or such other
price which is agreed by the parties hereto to reflect an arms' length
valuation using accepted valuation methods.
3.2 Payment of Purchase Price.
On the date of execution of this Agreement, the Purchaser shall pay to the
Seller, a portion of the Purchase Price in the amount of $25 million (the
"Initial Payment"). Unless this Agreement is terminated by the Purchaser
pursuant to Section 4.2 hereof, on the Closing Date, subject to the
satisfaction of the terms and conditions set forth herein, the Purchaser shall
pay to the Seller, the balance of the Purchase Price (the "Balance Purchase
Price"). Payment of the aggregate Purchase Price shall be made by wire
transfer of immediately available funds into the account designated by the
Seller.
ARTICLE IV
CLOSING AND TERMINATION
4.1 Closing Date. Subject to the satisfaction
of the conditions set forth 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 or prior to September 30, 1997. The date on
which the Closing shall be held is referred to in this Agreement as the
"Closing Date."
4.2 Termination of Agreement. This
Agreement may be terminated prior to the Closing at the election of the
Purchaser or the Seller (the "Terminating Party") on September 30, 1997, if
the Closing shall not have occurred by the close of business on such date as a
result of the determination by the Terminating Party, in its sole and absolute
discretion, that any of the conditions set forth in Section 8.1 or Section 8.2
hereof, as applicable, have not been satisfied as of such date. Each party
acknowledges and agrees that any such determination by the Terminating Party
shall be conclusive and binding on the other party. Each party hereby
irrevocably waives any right to contest or dispute such determination by the
Terminating Party for any reason whatsoever, including, without limitation,
the failure by the Terminating Party to comply with any of the covenants and
provisions contained in this Agreement that relate to the Terminating Party's
obligations to cooperate with or assist the other party to satisfy any of the
conditions set forth in Section 8.1 or Section 8.2 hereof, as applicable.
4.3 Procedure Upon Termination.
In the event of termination pursuant to Section 4.2 hereof, written notice
thereof shall forthwith be given by the Terminating Party to the other party,
and this Agreement shall terminate, and the obligations of the Purchaser to
purchase and the Seller to sell the TPC Shares hereunder shall be terminated,
without further action by the Purchaser or the Seller. If this Agreement is
terminated as provided herein, each party shall deliver to the other party all
documents, work papers and other material relating to the transactions
contemplated hereby, whether so obtained before or after the execution hereof,
to the party furnishing the same.
4.4 Effect of Termination. In the
event that this Agreement is terminated as provided in Section 4.2 hereof,
each of the parties shall be relieved of their duties and obligations arising
under this Agreement on and after the date of such termination and such
termination shall be without liability to the Purchaser or the Seller;
provided, however, that the obligations of the parties set forth in Section
4.5, Article X and Section 11.3 hereof shall survive any such termination and
shall be enforceable hereunder.
4.5 Repayment Obligations of the Seller. Within three business
days of any such termination of this Agreement pursuant to Section 4.2
hereof, the Seller shall pay to the Purchaser by wire transfer of
immediately available funds into an account designated by the Purchaser
(i) the Initial Payment; (ii) a structuring fee equal to $143,294.27;
and (iii) 50% of the reasonable transaction costs and expenses of the
Purchaser and its representatives pursuant to Section 11.3 hereof up to
a maximum of $400,000.
4.6 Waiver by the Seller. To the
fullest extent permitted by applicable law, the Seller hereby waives and
agrees that it shall not at any time insist upon, plead or in any manner
whatsoever claim or take the benefit or advantage of (i) any rights to notice
and/or a hearing, which might be required or permitted by any court prior to
allowing the Purchaser to terminate this Agreement pursuant to Section 4.2
hereof; (ii) the right to seek any legal or equitable remedies in any court of
law or equity against the Purchaser, including, without limitation, the right
to seek injunctive relief or specific performance of this Agreement, which may
delay, prevent or otherwise affect the repayment by the Seller of the Initial
Payment pursuant to Section 4.5 hereof; and (iii) any right of counterclaim,
set-off or defense against the Purchaser or any representative of the
Purchaser of any kind which exists or may arise in the future due to the
Purchaser's termination of this Agreement pursuant to Section 4.2 hereof.
Additionally, the Seller further agrees that its obligation to repay the
Initial Payment to the Purchaser pursuant to Section 4.5 hereof, shall be
absolute and unconditional and shall be paid in full in accordance with the
terms of Section 4.5 hereof irrespective of: (i) any lack of validity or
enforceability of, or any amendment or other modifications of, or waiver with
respect to, this Agreement; (ii) any release of any obligations under this
Agreement; or (iii) any other circumstances which might otherwise constitute a
defense available to, or discharge of, the Seller in respect of its
obligations under this Agreement, or the transactions contemplated hereunder,
and the Seller hereby waives its rights of abatement, diminution, postponement
or deduction, or to any defense, whether legal or equitable, or to any right
of set-off or recoupment against the Purchaser or its representatives arising
out of any termination of this Agreement by the Purchaser pursuant to Section
4.2 hereof. The Seller hereby acknowledges that it has been advised by
counsel with respect to this Agreement, the waivers set forth in this Section
4.6 hereof, and the transactions contemplated by this Agreement.
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 organized, 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, 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, including, without limitation, the Escrow 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.
(a) The authorized share capital of TPC is US $50,000 and the
number of shares of capital stock of 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. 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. TPC was created solely
for the purpose of acquiring an interest in Ocensa and has not engaged in any
other activity, other than managing its interest in Ocensa since the date of
its incorporation. Other than its 9.6% interest of Ocensa, TPC, since its
date of incorporation, 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 Purchaser:
(a) the seal and true, correct and complete copies of the
memorandum of association, articles of association or comparable
organizational documents of TPC; and
(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.
5.6 Conflicts; Consents of Third Parties.
(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 Litigation. There are no Legal Proceedings
initiated by any Person pending or, to the best knowledge of the Seller,
threatened against the Seller that are reasonably likely to prohibit or
restrain the ability of the Seller to enter into this Agreement or any of the
Seller Documents or to consummate the transactions contemplated hereby or
thereby.
5.8 Ownership and Transfer of TPC Shares. The Seller is the
record and beneficial owner of the TPC Shares and has valid title thereto,
free and clear of any and all Liens, otherthan as set forth in the Ocensa
Agreement and this Agreement; no Lien has been exercised over any of the
TPC Shares, 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 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.
5.9 Financial Statements.
(a) The Seller has delivered to the Purchaser copies of (i) the
unaudited balance sheet of TPC as at December 31, 1996 and the related
unaudited statements of income and of cash flows of TPC for the year then
ended; (ii) the unaudited balance sheet of TPC as at June 30, 1997 and the
related unaudited statements of income and cash flows of TPC for the 6 month
period then ended (iii) the consolidated audited balance sheet of Triton
Energy as at December 31, 1996 and the related consolidated audited statements
of income and cash flows of Triton Energy for the year then ended; and (iv)
the unaudited consolidated balance sheet of Triton Energy as at June 30, 1997
and the related unaudited consolidated statements of income and cash flows of
Triton Energy for the 6 month period then ended (such audited and unaudited
statements of TPC and Triton Energy, including the related notes, and
schedules thereto, are referred to herein as the "Financial Statements").
Each of the Financial Statements is complete and correct in all material
respects, has been prepared in accordance with GAAP (subject to the absence of
footnotes, and normal year-end adjustments in the case of the unaudited
statements) and in conformity with the practices consistently applied by TPC
or Triton Energy, as applicable, without modification of the accounting
principles used in the preparation thereof and presents fairly the financial
position, results of operations and cash flows of TPC and Triton Energy as
at the dates and for the periods indicated.
TPC has in cash or other current assets as reflected on its
unaudited balance sheet dated as at June 30, 1997, or will have in cash
through cash flows from operations, amounts sufficient to fund its obligations
as they come due and to conduct its business.
For the purposes hereof, the unaudited balance sheets of TPC as at
December 31, 1996 and June 30, 1997, the consolidated audited balance sheet of
Triton Energy as at December 31, 1996 and the unaudited consolidated balance
sheet of Triton Energy as at June 30, 1997 are collectively referred to as the
"Balance Sheets" and December 31, 1996 is referred to as the "Balance Sheet
Date."
(b) The Seller has delivered to the Purchaser copies of (i) the
audited balance sheet of Ocensa as at December 31, 1996 and the related
audited statements of income and cash flows of Ocensa for the year then ended;
and (ii) the unaudited balance sheet of Ocensa as at June 30, 1997 and the
related unaudited statements of income of Ocensa for the 6 month period then
ended (such audited and unaudited statements of Ocensa, including the related
notes and schedules thereto, are referred to herein as the "Ocensa Financial
Statements"). Each of the Ocensa Financial Statements is complete and correct
in all material respects, has been or will be prepared in accordance with
generally accepted accounting principles currently in effect in Columbia and
presents fairly the financial position, results of operations and cash flows
of Ocensa as at the dates and for the periods indicated.
For the purposes hereof, the audited and unaudited balance sheets of
Ocensa as at December 31, 1996 and June 30, 1997 are collectively referred to
as the "Ocensa Balance Sheet" and December 31, 1996 is referred to as the
"Ocensa Balance Sheet Date."
5.10 No Undisclosed Liabilities.
Neither Triton Energy nor TPC (except with respect to TPC's obligations under
the Ocensa Agreement and the Subscription Agreement) has any indebtedness,
obligations or liabilities of any kind (whether accrued, absolute,
con-tingent or otherwise, and whether due or to become due) that would have
been required to be reflected in, reserved against or otherwise described on
the Balance Sheets or in the notes thereto in accordance with GAAP which was
not so reflected in, reserved against or otherwise described in the Balance
Sheets or the notes thereto or that was not incurred in the ordinary course
of business consistent with past practice since the Balance Sheet Date.
5.11 No Undisclosed Liabilities of Ocensa.
(a) Except with respect to Ocensa's obligations under the Ocensa
Agreement and the Related Documents, Ocensa has no indebtedness, obligations
or liabilities of any kind (whether accrued, absolute, contingent or
otherwise, and whether due or to become due) that would have been required to
be reflected in, reserved against or otherwise described on the Ocensa Balance
Sheet or in the notes thereto in accordance with generally accepted accounting
principles currently in effect in Colombia which was not so reflected in,
reserved against or otherwise described in the Ocensa Balance Sheet or the
notes thereto or that was not incurred in the ordinary course of business
consistent with past practice since the Ocensa Balance Sheet Date.
(b) The Seller has delivered to the Purchaser the most current
Financing Plan which has been adopted by the Ocensa board of directors, and
such Financing Plan is complete and correct in all material respects. The
Seller is not aware of any proposed amendments or alterations to such
Financing Plan or any anticipated increases in any debt or equity funding that
have not been disclosed in writing to the Purchaser. Additionally, to the
Seller's best knowledge after reasonable investigation, the Seller is not
aware of any discussions or negotiations among the parties to the Ocensa
Agreement or the Ocensa board of directors to amend or alter such Financing
Plan nor is the Seller aware of any event that would require amendment or
alteration of such Financing Plan.
5.12 Absence of Certain Developments. Except as expressly
contemplated by this Agreement or as otherwise disclosed in writing to the
Purchaser, since the Balance Sheet Date or the Ocensa Balance Sheet Date,
as applicable:
(i) there has not been any Material Adverse Change nor has there
occurred any event which is reasonably likely to result in a Material Adverse
Change;
(ii) there has not been any change by TPC, Triton Energy or Ocensa
in accounting or Tax reporting principles, methods or policies;
(iii) TPC has not entered into any transaction or Contract or
conducted its business other than in the ordinary course consistent with past
practice;
(iv) TPC has not failed promptly to pay and discharge current
liabilities, except where disputed in good faith by appropriate
proceedings;
(v) TPC has not instituted or settled any material Legal
Proceeding;
(vi) there has been no termination or repudiation of the Ocensa
Agreement or any of the Related Documents; and
(vii) the Seller and its Affiliates are in full compliance with all
of the terms and provisions of the Ocensa Agreement and the Related Documents.
5.13 Claims. The Seller is not aware of any Legal
Proceedings, pending or threatened against TPC, Ocensa or the Seller or
against any of the officers, directors or key employees of TPC, Ocensa or the
Seller with respect to their business activities on behalf of TPC, Ocensa or
the Seller, or to which TPC, Ocensa or the Seller is otherwise a party, which,
if adversely determined, would have a Material Adverse Effect; nor to the
knowledge of the Seller is there any reasonable basis for any such Legal
Proceedings. None of TPC, Ocensa or the Seller is subject to any Order,
except to the extent the same is not reasonably likely to have a Material
Adverse Effect.
5.14 Compliance with Laws. The Seller is not aware of:
(a) any material violations by the Seller, TPC, Triton Colombia,
Inc., Triton Energy Corporation or Ocensa of any Laws in any jurisdiction in
connection with the operations of the Seller, TPC, Triton Colombia, Inc.,
Triton Energy Corporation or Ocensa at the date hereof; or
(b) any communications from any Governmental Body or
representatives concerning any investigation or allegation or noncompliance
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.
5.15 No Misrepresentation. No representation or warranty of
the Seller 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.
5.16 Related Documents. The Seller and its
Affiliates are in full compliance with the terms and provisions of the Ocensa
Agreement and the Related Documents, and no event of default, or event, which
with the passage of time or the giving of notice, would constitute an event of
default under the Ocensa Agreement or the Related Documents, has occurred,
including, without limitation, any event which has or would result in the
delivery of a "Restriction Notice" under the Dividend Trust Agreement.
5.17 Rights as Initial Shipper and Throughput Obligor. Upon
execution of this Agreement and upon consummation of the transactions
contemplated by this Agreement, Triton Colombia, Inc. shall continue to be
an Initial Shipper and Throughput Obligor (as each such term is defined
under the Ocensa Agreement and the Related Documents) and shall continue to
have all the rights and obligations of an Initial Shipper and Throughout
Obligor pursuant to the terms and provisions of the Ocensa Agreement
and the Related Documents.
5.18 Material Contracts. The Ocensa Agreement
and the Related Documents are all of the Contracts to which the
Seller, TPC, Triton Colombia, Inc., Triton Energy Corporation or any of their
respective Affiliates are a party or by which any of them are bound and (i)
which relate to the acquisition, financing, development or operations of
Ocensa and (ii) which could either (A) have a Material Adverse Effect and/or
(B) require an increase in the Equity Contributions, including Subordinated
Notes (as each such term is defined in the Ocensa Agreement), any increase in
the Senior Debt (as defined in the Ocensa Agreement) or any other increase in
the capital or funding requirements of TPC (collectively, the "Material
Contracts"). There have been made available to the Purchaser and its
representatives true and complete copies of all of the Material Contracts.
All of the Material Contracts are in full force and effect and are the legal,
valid and binding obligation of the Seller, TPC, Triton Colombia, Inc., Triton
Energy Corporation or any of their respective Affiliates, enforceable against
them in accordance with their 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 (regardless of whether enforcement is sought in a
proceeding at law or in equity). Neither the Seller, TPC, Triton Colombia,
Inc., Triton Energy Corporation nor any of their respective Affiliates is in
default in any material respect under any Material Contracts, nor, to the
knowledge of the Seller, is any other party to any Material Contract in
default thereunder in any material respect.
5.19 Taxes.
(a) To the best of the Seller's knowledge, (i) all Tax Returns
required to be filed by or on behalf of TPC have been properly prepared and
duly and timely filed with the appropriate taxing authorities in all
jurisdictions in which such Tax Returns are required to be filed (after giving
effect to any valid extensions of time in which to make such filings), and all
such Tax Returns were true, complete and correct in all material respects;
(ii) all amounts shown on such Tax Returns (including interest and penalties)
as due from TPC and all Taxes payable by or on behalf of TPC or in respect of
its income, assets or operations have been fully and timely paid, and adequate
reserves or accruals for Taxes have been provided in the Balance Sheet as at
June 30, 1997 of TPC with respect to any period for which Tax Returns have not
yet been filed or for which Taxes are not yet due and owing; and (iii) TPC is
in receipt of a letter from the Cayman Islands taxing authority stating that
TPC is exempt from any and all Taxes.
(b) There are no Liens as a result of any unpaid Taxes upon any of
the assets of TPC.
5.20 Environmental Matters. To the best of Seller's knowledge
after reasonable investigation:
(a) The operations of Ocensa are in compliance with all applicable
Environmental Laws and all Permits issued pursuant to Environmental Laws or
otherwise;
(b) Ocensa is not the subject of any outstanding written Order or
Contract with any Person respecting (i) Environmental Laws, (ii) Remedial
Action or (iii) any Release or threatened Release of a Hazardous Material;
(c) Ocensa has not received any written communication alleging that
Ocensa may be in violation of any Environmental Law, or any Permit issued
pursuant to Environmental Law, or may have any liability under any
Environmental Law; and
(d) There are no investigations of the business, operations, or
currently or previously owned, operated or leased property of Ocensa pending
or threatened which could lead to the imposition of any liability pursuant to
Environmental Law
which in each case, could have a Material Adverse Effect on TPC.
5.21 Other Undisclosed Liabilities. There is no provision of
applicable Law or any provision under any Contract or Related Document that
would (i) impose on the Purchaser as the shareholder of TPC or as a member
of an Initial Shipper Group (as defined in the Ocensa Agreement) any
liability for, or permit the imposition on the Purchaser as the shareholder
of TPC or as a member of an Initial Shipper Group any liability for, (A)
the actions or inaction of TPC or (B) the mere ownership of the shares
of TPC; or (ii) subject the Purchaser to any Legal Proceedings as a result
of any of the foregoing.
5.22 Compliance with Related Agreements. As of the Closing
Date, the TPC Shares will be validly transferred to the Purchaser in full
compliance with the conditions of Article Ten of the Ocensa Agreement.
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 incorporated, validly existing and in good standing under the
laws of the Cayman Islands.
6.2 Authorization of Agreement.
The Purchaser has all requisite power, authority and legal capacity to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the
Purchaser of this Agreement have been 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 its 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 Conflicts; Consents of Third Parties.
(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.
6.4 Litigation. There are no Legal Proceedings initiated by any
Person, 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.
ARTICLE VII
COVENANTS
7.1 Access to Information.
(a) The Seller agrees that, prior to the Closing 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.
(b) The Seller further agrees to cooperate with the Purchaser and
to give the Purchaser and its representatives access to such information as
may be necessary to effect a private placement of the Class B Shares with a
third party purchaser on or prior to the Closing Date. Such cooperation shall
include, without limitation, cooperation with the Purchaser in the preparation
of a private placement or offering memorandum, the preparation and/or review
of disclosure in the private placement or offering memorandum regarding the
Seller, TPC, Ocensa, the Ocensa Agreement and the Related Documents as may be
reasonably requested by Purchaser or its representatives, and the taking of
such other actions as are reasonably necessary to effectuate a private
placement of the Class B Shares on or prior to the Closing Date.
7.2 Conduct of the Business.
(a) Except as otherwise expressly contemplated by 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 its
Affiliates not to:
(i) conduct the business of TPC other than in the ordinary
course consistent with past practice;
(ii) violate in any material respect any applicable Laws;
(iii) 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;
(iv) effect any recapitalization, reclassification, stock
split or like change in the capitalization of TPC;
(v) amend the memorandum of association, articles of
association or comparable organizational documents or statutory books of TPC;
(vi) subject to any Lien (except for Liens that do not
materially impair the use of the property subject thereto in their respective
businesses as presently conducted), any of the properties or assets (whether
tangible or intangible) of TPC;
(vii) 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;
(viii) waive or release any material right of TPC except in
the ordinary course of business consistent with past practice;
(ix) permit TPC to enter into any transaction or to make or
enter into any Contract which by reason of its size or otherwise is not in the
ordinary course of business consistent with past practice;
(x) permit TPC to enter into or agree to enter into any merger
or consolidation with, any corporation or other entity;
(xi) permit TPC to make a unilateral declaration under Section
3.1 of the Political Events Agreement that a Political Event (as defined in
the Political Events Agreement) has occurred; or
(xii) agree to do anything prohibited by this Section 7.2(a) or
anything which would make any of the representations, warranties and
covenants of the Seller in this Agreement or the Seller Documents untrue or
incorrect in any material respect as of any time through and including the
Closing Date.
(b) Except as otherwise expressly contemplated by this Agreement
from the date hereof through and after the Closing Date, the Seller shall not
and shall cause its Affiliates not to:
(i) introduce any material change with respect to the
operation of Ocensa, including, without limitation, any amendments or
alterations to the Financing Plan;
(ii) fail to fully perform its obligations or duties under the
Ocensa Agreement and the Related Documents;
(iii) permit any increase in the Equity Contributions,
including Subordinated Notes (as each such term is defined in the Ocensa
Agreement) or permit any increase in the Senior Debt (as defined in the Ocensa
Agreement) or any other increase in the capital or funding requirements of
TPC; or
(iv) agree to do anything prohibited by this Section 7.2(b) or
anything which would make any of the representations, warranties and covenants
of the Seller in this Agreement or the Seller Documents untrue or incorrect in
any material respect as of any time through and after the Closing Date (except
insofar as they set out obligations that have been fully performed at the
Closing Date).
7.3 Consents. The Seller shall use its best
efforts, and the Purchaser shall cooperate with the Seller, 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.
7.4 Other Actions. Each of the Seller and the Purchaser shall
use its best 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.
7.5 Confidentiality. Each of the Seller and Purchaser
hereto acknowledges 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.
7.6 Publicity. Neither the Seller nor the Purchaser shall
issue any press release or public announcement concerning this
Agreement or the transactions contemplated hereby without obtaining the
prior written approval of the other party hereto, which approval will not be
unreasonably withheld or delayed, 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.
7.7 Holding of TPC Shares. The Purchaser shall accept
delivery of the TPC Shares on the Closing Date and shall pledge such
TPC Shares to First Trust of New York, N.A., as indenture trustee for the
Floating Rate Notes. The Purchaser agrees that it will cause such TPC Shares
to be held in trust in accordance with the terms of the trust indenture
relating to the Floating Rate Notes and shall not sell, pledge or
hypothecate and/or otherwise transfer or dispose of the TPC Shares except as
set forth in this Section 7.7 or in accordance with the terms of Section 7.9
hereof and any such transfer or disposition in breach of this Section 7.7
shall be void and of no effect.
7.8 Future Funding Obligations.
The Purchaser hereby covenants to notify the Seller if the Purchaser receives
notice under the Ocensa Agreement that the shareholders of Ocensa have an
opportunity to acquire additional equity shares under the Ocensa Agreement or
that any shares of Ocensa capital stock are proposed to be issued under the
Ocensa Agreement.
7.9 Right of First Refusal.
(a) The parties hereto agree that upon any sale of the TPC Shares,
the Seller shall have a right of first refusal on the TPC Shares as set forth
herein. The Seller's right of first refusal may be exercised by the Seller
itself or any third party designated by the Seller.
(b) In the event the Purchaser determines to sell the TPC Shares,
the Purchaser shall so inform the Seller in writing (the "Sale Notice") at
least 30 days prior to the closing date of the proposed disposition (the "Sale
Date"), stating the name and address of the proposed transferee (the
"Offeror") to the extent such information is not confidential, and the other
terms and conditions of such proposed disposition, including any consideration
proposed to be received for the TPC Shares (and, if the proposed disposition
is to be wholly or partly for consideration other than cash or an indebtedness
of the Offeror, the notice shall state the amount of the cash consideration,
if any, and shall describe all such nonmonetary consideration). The Sale
Notice shall be accompanied by a copy of such offer. The Seller shall have
the right to purchase the TPC Shares at the same consideration (the "Sale
Price") and on the same terms as are set forth in the Sale Notice (except that
any portion of the consideration set forth in the Sale Notice which is not
cash or indebtedness of the Offeror shall be payable in cash at the value
thereof as the Seller and the Purchaser may agree, or if they cannot agree,
then as determined by a third party mutually agreeable to the Seller and the
Purchaser not affiliated with any of the Seller or the Purchaser), exercisable
as more fully described herein. If the Seller decides to exercise its right
of first refusal, the Seller shall send irrevocable written notice thereof to
the Purchaser no later than ten business days after receipt of such notice
from the Purchaser (the "Notification Date") stating that it has decided to
purchase the TPC Shares at the Sale Price on the Sale Date. Such notice shall
also set forth delivery instructions for the TPC Shares. If the Seller has
delivered written notice on or prior to the Notification Date to the Purchaser
of its irrevocable decision to purchase the TPC Shares, such TPC Shares shall
be delivered by the Purchaser to the Seller or its designee, at the accounts
specified in the notice, on the Sale Date against receipt, in immediately
available funds, of the Sale Price at the account designated by the Purchaser.
Notwithstanding the foregoing, the Seller shall have no right of first refusal
if the Seller, Triton Colombia, Inc. or any of their respective direct or
indirect parent companies are in bankruptcy or insolvency proceedings.
Additionally, notwithstanding the foregoing, if there has occurred any event
of default with respect to the Seller or any of its direct or indirect parent
companies under any agreement which requires the payment of more than
$50,000,000 to any other party or parties thereto, the Sale Notice specified
in this Section 7.9(b) shall be delivered to the Seller by the Purchaser no
more than three business days prior to the Sale Date, and the Notification
Date specified in this Section 7.9(b) shall be one business day thereafter.
In order to secure the rights of the Seller under this Section 7.9, TPC shall
not, and the Purchaser shall not permit TPC to, sell or otherwise dispose of
any shares of Ocensa owned by TPC except under conditions that would permit
the Purchaser to sell the TPC Shares.
(c) If the Seller has not delivered irrevocable written notice of
its intent to purchase the TPC Shares on the Sale Date on or prior to the
Notification Date, the Purchaser shall be entitled to sell such TPC Shares,
without any restrictions, to any Person selected by the Purchaser without
further notice to the Seller. Additionally, if the Seller should default on
its payment obligations to the Purchaser after having delivered written notice
of its intent to purchase the TPC Shares, the Purchaser shall be at liberty to
sell the TPC Shares without restriction and without further notice to the
Seller; provided, however, that the Seller shall be liable to the Purchaser
for any expenses incurred by the Purchaser as a result of the Seller's
default.
(d) The Purchaser shall have no liability to the Seller hereunder
if any proposed sale of the TPC Shares to the Seller pursuant to this Section
7.9 does not comply with the provisions of Article Ten of the Ocensa
Agreement, or if such sale cannot be consummated due to the restrictions set
forth in Article Ten of the Ocensa Agreement. If the Seller determines to
exercise its right of first refusal set forth in this Section 7.9, the Seller
shall be responsible for taking all actions necessary to comply with the
provisions of Article Ten of the Ocensa Agreement. If within 45 days after
exercising its right of first refusal, the Seller is unable to meet the
conditions set forth in such Article Ten, the Purchaser shall, subject to
Section 7.15 hereof, be at liberty to sell the TPC Shares to any other Person
without any further restriction and without any liability to the Seller.
(e) Notwithstanding the foregoing, in the event of any sale by the
Purchaser of the TPC Shares to any Person other than the Seller, prior to
consummating such sale, the Purchaser shall obtain the agreement of such
Person, for the additional benefit of the Seller, that such Person shall not
acquire any interest in the name "Triton" or any name confusingly similar to
such name, and that such Person, as soon as is practicable following the
consummation of such sale, will change the name of TPC to a name that does not
contain the word "Triton" or any name confusingly similar thereto and will
cease the use of the name "Triton" in the conduct of the business of TPC.
7.10 Release of Liens. In the event that the Seller shall
exercise its right of first refusal, upon receipt by the Purchaser of the
Sale Price from the Seller, the Purchaser shall cause the TPC Shares to be
delivered to the Seller or its designee in accordance with the written
instructions provided by the Seller free and clear of all Liens, other
than as set forth in the Ocensa Agreement and this Agreement.
7.11 Changes Affecting the TPC Shares. In the event that TPC is
the subject of a merger, spin-off, recapitalization or other similar
transaction, any TPC Shares received by the Purchaser as the result of
such transactions shall be covered by this Agreement.
7.12 Information. The Purchaser shall cause TPC to provide
the Seller such information as the Seller may reasonably request
regarding matters on which holders of the TPC Shares or shares of
Ocensa are asked to vote.
7.13 TPC Board of Directors. The Purchaser, as sole
shareholder of TPC, will, in its sole discretion, appoint directors to
the Board of Directors of TPC.
7.14 Obligations of Initial Shipper and Throughput Obligor.
The Seller shall cause Triton Colombia, Inc. to fulfill all of its
obligations under the Ocensa Agreement and the Related Documents. The
Seller shall immediately notify the Purchaser of the occurrence of any event
which would cause the Initial Shipper or the Throughput Obligor (as
each such term is defined in the Ocensa Agreement and the Related
Documents) to be in default on any of its obligations thereunder.
7.15 Obligations under the Ocensa Agreement. Subject to
Section 7.9(d) hereof, if the Purchaser decides to sell any of the TPC
Shares, the Purchaser shall cause TPC to comply with the transfer
restrictions of Article Ten under the Ocensa Agreement, and the Purchaser
shall not attempt to circumvent the restrictions on transfer set forth in
Article Ten of the Ocensa Agreement, as set forth in Section 10.7 of the
Ocensa Agreement. The Purchaser shall immediately notify the Seller of
the occurrence of any event of which it has actual knowledge which would
cause TPC to be in violation of Article Ten of the Ocensa Agreement.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1 Conditions Precedent to Obligations of the Purchaser.
The obligation of 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 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 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 and this Agreement;
(e) there shall not have been or occurred any Material Adverse
Change;
(f) the 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, any consents required by
Article Ten of the Ocensa Agreement;
(g) no Legal Proceedings shall have been instituted or threatened
or claim or demand made against the Seller, TPC, or Ocensa 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;
(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 the valid transfer of all rights of TPC to Distributions and
interests in the Dividend Account established for the benefit of TPC to the
designee of the Purchaser; and
(i) the Purchaser shall have consummated the sale to a third party
purchaser of the Class B Shares in a private placement of such Shares for an
aggregate purchase price at least equal to 3% of the Purchase Price.
8.2 Conditions Precedent to Obligations of the Seller. The
obligation of 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;
(f) the Seller shall be reasonably satisfied that the transactions
contemplated by the parties hereto shall be accounted for as a sale of assets
by the Seller and that the full amount of the Purchase Price shall be
accounted for as the proceeds of such sale; and,
(g) 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.
(a) On the date of this Agreement, the Seller shall deliver, or
cause to be delivered, to the Purchaser, the opinions of Maples and Calder,
Simpson Thacher & Bartlett and Jackson Walker L.L.P., counsels to the Seller,
in form and substance reasonably satisfactory to the Purchaser.
(b) At the Closing, the Seller shall deliver, or cause to be
delivered, to the Purchaser the following:
(i) stock certificates representing the TPC Shares, duly endorsed
in blank or accompanied by stock transfer powers and with all requisite stock
transfer tax stamps attached;
(ii) the certificate referred to in Section 8.1(c) hereof;
(iii) the opinions of Maples and Calder and Simpson, Thacher &
Bartlett, counsels to the Seller, in form and substance reasonably
satisfactory to Purchaser;
(iv) copies of all consents and waivers referred to in Section
8.1(f) hereof;
(v) the Seller Documents;
(vi) an executed copy of the Escrow Agreement; and
(vii) such other documents as the Purchaser shall reasonably
request.
9.2 Documents to be Delivered by the Purchaser.
(a) On the date of this Agreement, the Purchaser shall deliver, or
cause to be delivered, to the Seller, the opinion of W.S. Walker & Co.,
counsel to the Purchaser.
(b) At the Closing, the Purchaser shall deliver, or cause to be
delivered, to the Seller the following:
(i) the Balance Purchase Price, in immediately available funds in
the manner specified in Section 3.2 hereof;
(ii) the certificate referred to in Section 8.2(c) hereof;
(iii) the opinion of W.S. Walker & Co., counsel to the Purchaser;
and
(iv) such other documents as the Seller shall reasonably request.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification.
(a) The Seller and Triton Energy (collectively, the "Indemnifying
Parties"), hereby agree jointly and severally, to indemnify and hold the
Purchaser, and its directors, officers, employees, Affiliates, agents,
successors and assigns (collectively, the "Purchaser Indemnified Parties")
harmless from and against:
(i) any and all liabilities of TPC of every kind, nature and
description, absolute or contingent, existing as against TPC prior to and
including the Closing Date coming into being or arising from any third party
as a result of the acquisition and ownership of the TPC Shares by the
Purchaser including, without limitation, any environmental liability relating
to Ocensa or any Legal Proceedings instituted by Ocensa or any other party to
the Ocensa Agreement;
(ii) subject to Section 11.2 hereof, any and all losses,
liabilities, obligations, damages, costs, expenses, claims, actions,
judgments, awards or demands arising from any third party based upon,
attributable to or resulting from the failure of any representation or
warranty of the Seller set forth in Article V hereof, or any representation or
warranty contained in any certificate delivered by or on behalf of the Seller
pursuant to this Agreement, to be true and correct in all respects as of the
date made;
(iii) any and all losses, liabilities, obliga-tions, damages,
costs, expenses, claims, actions, judgments, awards or demands arising from
any third party based upon, attributable to or resulting from the breach of
any covenant or other agreement on the part of the Seller under this
Agreement;
(iv) in the event of the termination of this Agreement
pursuant to Section 4.2 hereof, any and all losses, liabilities, obligations,
damages, costs, expenses, claims, actions, judgments, awards or demands
instituted or asserted against or incurred by the Purchaser as the result of
it having entered into this Agreement, including, without limitation, as a
result of the payment by the Purchaser of the Initial Payment or the repayment
or non-repayment by the Seller of the Initial Payment; and
(v) any and all notices, actions, suits, proceedings, claims,
demands, assessments, judgments, costs, penalties and expenses, including
reasonable attorneys' and other professionals' fees and disbursements
(collectively, "Expenses") incident to any and all losses, liabilities,
obligations, damages, costs and expenses with respect to which indemnification
is provided hereunder (collectively, "Losses").
(b) The obligations to indemnify and hold harmless contained herein
shall continue to be valid and binding after the conclusion of the
transactions contemplated herein or the termination of this Agreement pursuant
to the terms hereof.
10.2 Indemnification Procedures.
(a) In the event that any Legal Proceedings shall be instituted or
that any claim or demand ("Claim") shall be asserted by any Person in respect
of which payment may be sought under Section 10.1 hereof, the Purchaser shall
reasonably and promptly cause written notice of the assertion of any Claim of
which it has knowledge which is covered by this indemnity to be forwarded to
the Indemnifying Parties (together with a copy of any such claim and any
related service of process and pleadings). The Indemnifying Parties shall
have the right, at their sole option and expense, to undertake the defense
thereof by counsel of their choice, which must be reasonably satisfactory to
the Purchaser, and to defend against, negotiate, settle or otherwise deal with
any Claim which relates to any Losses indemnified against hereunder. If the
Indemnifying Parties elect to defend against, negotiate, settle or otherwise
deal with any Claim which relates to any Losses indemnified against hereunder,
they shall within ten (10) days (or sooner, if the nature of the Claim so
requires) notify the Purchaser of their intent to do so. If the Indemnifying
Parties elect not to defend against, negotiate, settle or otherwise deal with
any Claim which relates to any Losses indemnified against hereunder, fails to
notify the Purchaser of their election as herein provided or contests their
obligation to indemnify the Purchaser for such Losses under this Agreement,
the Purchaser may defend against, negotiate, settle or otherwise deal with
such Claim (subject to the right of the Indemnifying Parties to assume the
defense of such Claim at any time prior to settlement or final determination
thereof). If the Purchaser defends any Claim, then the Indemnifying Parties
shall reimburse the Purchaser for the Expenses of defending such Claim upon
submission of periodic bills. If the Indemnifying Parties shall assume the
defense of any Claim, the Purchaser may participate, at his or its own
expense, in the defense of such Claim; provided, however, that such Purchaser
shall be entitled to participate in any such defense with separate counsel at
the expense of the Indemnifying Parties if the named parties to such Claim
include both the Purchaser and the Indemnifying Parties and, in the reasonable
opinion of counsel to the Purchaser, a conflict exists between the Purchaser
and the Indemnifying Parties that would make such separate representation
advisable. The parties hereto agree to cooperate fully with each other in
connection with the investigation, defense, negotiation or settlement of any
such Claim.
(b) After any final judgment or award shall have been rendered by a
court, arbitration board or administrative agency of competent jurisdiction
and the expiration of the time in which to appeal therefrom, or a settlement
shall have been consummated, or the Purchaser and the Indemnifying Parties
shall have arrived at a mutually binding agreement with respect to a Claim
hereunder, the Purchaser shall forward to the Indemnifying Parties notice of
any sums due and owing by the Indemnifying Parties pursuant to this Agreement
with respect to such matter and the Indemnifying Parties shall be required to
pay all of the sums so due and owing to the Purchaser by wire transfer of
immediately available funds within five business days after the date of such
notice.
(c) The failure of the Purchaser to give reasonably prompt notice
of any Claim shall not release, waive or otherwise affect the Indemnifying
Parties's obligations with respect thereto except to the extent that the
Indemnifying Parties can demonstrate actual loss and prejudice as a result of
such failure.
(d) The indemnification procedures set forth in Section 10.2
hereof shall not apply to any Claim asserted by or against the Purchaser
pursuant to Section 10.1(a)(iv) hereof and the Seller shall pay all Losses and
Expenses incurred by the Purchaser pursuant to Section 10.1(a)(iv) hereof
immediately upon demand by the Purchaser and submission of written
documentation evidencing the incurrence of such Losses and Expenses.
ARTICLE XI
MISCELLANEOUS
11.1 Payment of Sales, Use or Similar Taxes. All sales, use,
transfer, 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
Seller.
11.2 Survival of Representations and Warranties. The parties
hereto hereby agree that the representations and warranties, covenants and
indemnities 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).
11.3 Expenses. The Seller agrees to pay on or about
the Closing Date: (i) all reasonable transaction fees, costs and expenses of
the Purchaser and its representatives incurred in connection with the
negotiation and execution of this Agreement and the Seller Documents and the
consummation of the transactions contemplated hereby and thereby; and, (ii) a
structuring fee equal to $143,294.27.
11.4 Further Assurances. The Seller and the Purchaser each
agrees to 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.
11.5 Submission to Jurisdiction; Consent to Service of Process.
(a) The parties hereto hereby irrevocably submit to the
nonexclusive 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 11.9.
11.6 Entire Agreement; Amendments and Waivers. This
Agreement (together 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.
11.7 Governing Law. THE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
11.8 Table of Contents and Headings.
The table of contents and section headings of this Agreement are
for reference purposes only and are to be given no effect in the construction
or interpretation of this Agreement.
11.9 Notices. All notices and other communications
under this Agreement 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 the Seller, 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
If to Purchaser, 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
11.10 Severability. If any provision of this Agreement is
invalid or unenforceable, the balance of this Agreement shall remain in
effect.
11.11 Binding Effect; Assignment.
This Agreement shall be binding upon and 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 4.5, Article X and Section 11.3 hereof and this Section 11.11. 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; provided, however,
that, subject to the provisions of the Ocensa Agreement, the Purchaser may
assign any of its rights under this Agreement without the consent of the
Seller (including, without limitation, the Purchaser's rights to seek
indemnification hereunder and to recover the Initial Payment and any
interest thereon pursuant to Section 4.5 hereof) to any Person designated by
the Purchaser. 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.
11.12 Non-Petition. Notwithstanding any termination of the
transactions contemplated herein, the Seller shall not, and shall cause its
Affiliates not to, prior to the date which is one year and one day after the
maturity date of the Floating Rate Notes, acquiesce, petition or otherwise
invoke or cause any other Person to invoke the process of any
Governmental Body for the purpose of commencing or sustaining a case against
the Purchaser under any bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official to the Purchaser or any substantial part of the Purchaser's
property, or making a general assignment for the benefit of creditors or
ordering the winding up or liquidation of the affairs of the Purchaser.
11.13 Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but allof 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 ENERGY LIMITED
By:
Name:
Title:
TRITON PIPELINE COLOMBIA, INC.
By:
Name:
Title: