AMENDMENT NO. 2
TO THE
MEMBERSHIP INTERESTS PURCHASE AGREEMENT
This Amendment No. 2 to the Membership
Interests Purchase Agreement (this “ Amendment
”), dated as of September 30, 2008, is entered into by
and among Newpark Resources, Inc., a Delaware corporation (“
Newpark ”), Newpark Drilling Fluids LLC, a Texas
limited liability company and a direct wholly-owned subsidiary of
Newpark (“ DFI ”), Newpark Texas, L.L.C., a
Louisiana limited liability company and an indirect wholly-owned
subsidiary of Newpark (“ Newpark Texas ”), CCS
Inc., an Alberta corporation (“ CCS ”), and CCS
Midstream Services, LLC, a Louisiana limited liability company
(“ Purchaser ”), and an Affiliate of
CCS.
A. Reference is herein made to that certain
Membership Interests Purchase Agreement by and among Newpark, DFI,
Newpark Texas, CCS, and Purchaser, dated April 16, 2008 (as
amended by Amendment No. 1 dated as of June 30, 2008, the
“ Purchase Agreement ”). Terms used but not
defined herein shall have the meanings set forth in the Purchase
Agreement.
B. Newpark, DFI, Newpark Texas, CCS, and Purchaser,
who constitute all of the parties to the Purchase Agreement, desire
to amend the Purchase Agreement as set forth herein in accordance
with Section 11.8 of the Purchase Agreement.
NOW, THEREFORE , in consideration of the mutual promises set
forth herein and in the Purchase Agreement, and other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, the parties
hereby agree as follows:
Section 1. Amendment Format . In
connection with each amendment to the Purchase Agreement as set
forth herein that is not being deleted or added in its entirety
(i) the text of the language in the Purchase Agreement which
is being deleted by such amendment is stricken through and
boldfaced, and (ii) the text of the language in the Purchase
Agreement which is being added is double-underlined and
boldfaced.
Section 2. Amendment to
Section 5.1(a) . The first paragraph of
Section 5.1(a) of the Purchase Agreement is amended and
restated in its entirety by the following:
(a) After the date of this Agreement until
the earlier of the Closing or the termination of this Agreement,
Newpark shall, and shall cause each of the Transferred Entities and
their respective representatives to (i) afford Purchaser and
its representatives access, at reasonable times during normal
business hours after first obtaining the consent of Newpark, to the
books, records, properties and personnel of the Transferred
Entities; (ii) furnish Purchaser and its representatives with
such additional financial, operating and other data and information
within the control of Newpark and/or the Transferred Entities as
Purchaser may reasonably request; and (iii) otherwise
cooperate with the investigation by Purchaser and its
representatives of the Transferred Entities; provided, however,
that if the Outside Date is extended past October 8
November 14 , 2008, Newpark may limit
Purchaser’s access to the personnel of the Transferred
Entities if Newpark determines, in its reasonable discretion, that
such access would be disruptive to Newpark’s business. Any
expenses related to the furnishing of such information which is
within the control of Newpark and/or the Transferred Entities shall
be paid by Newpark. The foregoing shall not require Newpark, DFI,
Newpark Texas or any Transferred Entity to permit any inspection,
or to disclose any information, that in the reasonable judgment of
Newpark is reasonably likely to result in the disclosure of any
trade secrets to third parties, violate any of its obligations with
respect to confidentiality or disclose information that does not
relate exclusively to the Business. All information provided to
Purchaser and its representatives in accordance with this
Agreement, including this Section 5.1, or by a third party
subject to an obligation of confidentiality for the benefit, either
directly or indirectly, of Newpark shall, prior to the Closing, be
held by Purchaser and its representatives in accordance with, shall
be considered “ Evaluation Material ” under, and
shall be subject to the terms of, the Confidentiality Agreement.
All requests for information made pursuant to this
Section 5.1(a) shall be directed to a designated officer of
Newpark or such other individual as may be designated by Newpark,
and shall not be granted to the extent deemed inconsistent with any
Law.
Section 3. Amendment to
Section 5.2(e) . Section 5.2(e) of the Purchase
Agreement is amended and restated in its entirety by the
following:
(e) For purposes of this Agreement, the
“ Agreed Value ” of any Divested Asset shall be
the amount equal to: (A) (x) the number obtained by dividing
$85,000,000 by the LTM EBITDA (determined in accordance with
Sections 9.1(a)(x) and 9.1(b)) multiplied by (y) the
Adjusted EBITDA (the “ Adjusted EBITDA Method
”), or (B) if the Divested Asset is a property or asset
owned or leased by CCS or its Affiliates and CCS reasonably
determines that the Adjusted EBITDA Method will not result in a
fair determination of the Agreed Value, CCS may calculate the
Agreed Value utilizing a discounted cash flow analysis based upon
the present value of the estimated future cash f
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