Exhibit 10.1
DATED
30 SEPTEMBER 2009
QUOTA PURCHASE
AGREEMENT
between
TOREADOR RESOURCES
CORPORATION
and
ROHÖL-AUFSUCHUNGS
AKTIENGESELLSCHAFT
CONTENTS
|
1.
|
|
INTERPRETATION
|
|
1
|
|
|
|
|
|
|
|
2.
|
|
CONDITIONS
|
|
10
|
|
|
|
|
|
|
|
3.
|
|
SALE AND PURCHASE
|
|
11
|
|
|
|
|
|
|
|
4.
|
|
PURCHASE PRICE
|
|
12
|
|
|
|
|
|
|
|
5.
|
|
CLOSING
|
|
13
|
|
|
|
|
|
|
|
6.
|
|
WARRANTIES AND INDEMNITIES
|
|
16
|
|
|
|
|
|
|
|
7.
|
|
CLAIMS BY THE BUYER
|
|
18
|
|
|
|
|
|
|
|
8.
|
|
BUYER’S WARRANTIES
|
|
22
|
|
|
|
|
|
|
|
9.
|
|
TAX MATTERS AND WELL INDEMNITY
|
|
24
|
|
|
|
|
|
|
|
10.
|
|
CONFIDENTIALITY AND ANNOUNCEMENTS
|
|
27
|
|
|
|
|
|
|
|
11.
|
|
FURTHER ASSURANCE
|
|
28
|
|
|
|
|
|
|
|
12.
|
|
ASSIGNMENT
|
|
28
|
|
|
|
|
|
|
|
13.
|
|
WHOLE AGREEMENT
|
|
29
|
|
|
|
|
|
|
|
14.
|
|
VARIATION AND WAIVER
|
|
29
|
|
|
|
|
|
|
|
15.
|
|
COSTS
|
|
29
|
|
|
|
|
|
|
|
16.
|
|
NOTICE
|
|
29
|
|
|
|
|
|
|
|
17.
|
|
INTEREST ON LATE PAYMENT
|
|
30
|
|
|
|
|
|
|
|
18.
|
|
COUNTERPARTS
|
|
31
|
|
|
|
|
|
|
|
19.
|
|
LANGUAGE
|
|
31
|
|
|
|
|
|
|
|
20.
|
|
SEVERANCE
|
|
31
|
|
|
|
|
|
|
|
21.
|
|
AGREEMENT SURVIVES CLOSING
|
|
31
|
|
|
|
|
|
|
|
22.
|
|
GOVERNING LAW AND JURISDICTION
|
|
31
|
|
|
|
|
|
|
|
SCHEDULE 1 - PARTICULARS OF THE COMPANY AND THE
MINORITY SUBSIDIARY
|
|
|
|
|
|
|
|
PART 1. THE COMPANY
|
|
|
|
PART 2. MINORITY SUBSIDIARY
|
|
|
|
|
|
|
|
SCHEDULE 2 - CONDITIONS
|
|
32
|
|
|
|
|
|
SCHEDULE 4 - ADDITIONAL PAYMENT
|
|
33
|
|
|
|
|
|
SCHEDULE 5 – WARRANTIES
|
|
34
|
|
|
|
|
|
|
|
1.
|
|
ORGANISATION
|
|
34
|
|
|
|
|
|
|
|
2.
|
|
POWER TO SELL THE COMPANY
|
|
34
|
|
|
|
|
|
|
|
3.
|
|
QUOTA OF THE COMPANY
|
|
35
|
|
|
|
|
|
|
|
4.
|
|
CONSTITUTIONAL AND CORPORATE
DOCUMENTS
|
|
35
|
|
|
|
|
|
|
|
5.
|
|
INFORMATION
|
|
36
|
|
|
|
|
|
|
|
6.
|
|
COMPLIANCE WITH LAWS
|
|
36
|
|
|
|
|
|
|
|
7.
|
|
LICENCES AND CONSENTS AND
APPLICATIONS
|
|
36
|
|
|
|
|
|
|
|
8.
|
|
JOINT VENTURE AGREEMENTS
|
|
37
|
|
|
|
|
|
|
|
9.
|
|
WORK PROGRAMS
|
|
38
|
|
|
|
|
|
|
|
10.
|
|
STATUS OF OPERATIONS
|
|
38
|
|
|
|
|
|
|
|
11.
|
|
INSURANCE
|
|
38
|
|
|
|
|
|
|
|
12.
|
|
POWER OF ATTORNEY
|
|
39
|
|
|
|
|
|
|
|
13.
|
|
DISPUTES AND INVESTIGATIONS
|
|
39
|
|
|
|
|
|
|
|
14.
|
|
CONTRACTS
|
|
39
|
|
|
|
|
|
|
|
15.
|
|
FINANCE AND GUARANTEES
|
|
40
|
|
|
|
|
|
|
|
16.
|
|
INSOLVENCY
|
|
41
|
|
|
|
|
|
|
|
17.
|
|
ASSETS
|
|
41
|
|
|
|
|
|
|
|
18.
|
|
CONDITION OF EQUIPMENT
|
|
41
|
|
|
|
|
|
|
|
19.
|
|
DEMERGER
|
|
42
|
|
|
|
|
|
|
|
20.
|
|
EMPLOYMENT
|
|
42
|
|
|
|
|
|
|
|
21.
|
|
PROPERTY
|
|
43
|
|
|
|
|
|
|
|
22.
|
|
ACCOUNTS
|
|
44
|
|
|
|
|
|
|
|
23.
|
|
INTRAGROUP RELATIONSHIPS
|
|
44
|
|
24.
|
|
FINANCIAL AND OTHER RECORDS
|
|
44
|
|
|
|
|
|
|
|
25.
|
|
CHANGES SINCE ACCOUNTS DATE
|
|
45
|
|
|
|
|
|
|
|
26.
|
|
TAXATION
|
|
45
|
|
|
|
|
|
|
|
27.
|
|
ENVIRONMENTAL MATTERS
|
|
45
|
|
|
|
|
|
|
|
28.
|
|
INTELLECTUAL PROPERTY
|
|
46
|
|
|
|
|
|
|
|
29.
|
|
LIABILITY FOR BROKERS’ FEES
|
|
46
|
|
|
|
|
|
|
|
SCHEDULE 6 - PARTICULARS OF
PROPERTIES
|
|
|
|
|
|
|
|
PART 1. FREEHOLD PROPERTIES
|
|
|
|
|
|
|
|
PART 2. LEASEHOLD PROPERTIES
|
|
|
|
|
|
|
|
PART 3. OTHER REAL PROPERTY
|
|
|
|
|
|
|
|
SCHEDULE 7 - DISCLOSURE LETTER
|
|
|
|
|
|
|
|
SCHEDULE 8 - ARTICLES OF ASSOCIATION OF THE
COMPANY
|
|
|
|
|
|
|
|
SCHEDULE 9 – NEW ARTICLES OF
ASSOCIATION
|
|
|
|
|
|
|
|
SCHEDULE 10 – CLOSING AGENDA
|
|
|
|
|
|
|
|
SCHEDULE 11 – ESCROW AGREEMENT
|
|
|
THIS AGREEMENT is dated 30 September 2009
PARTIES
(1)
TOREADOR RESOURCES
CORPORATION a corporation
organized under the laws of Delaware and whose registered office is
at 13760 Noel Road, Suite 1100, Dallas, Texas TX 75240-1383,
United States of America ( Seller ).
(2)
ROHÖL-AUFSUCHUNGS
AKTIENGESELLSCHAFT , a
corporation organized under the laws of Austria, registered under
company registration number FN 78563 i, having its registered
office at Schwarzenbergplatz 16, 1015 Vienna, Austria (
Buyer ).
BACKGROUND
(A)
The Company has a registered capital
of HUF 3,070,000 (three million and seventy thousand Hungarian
Forints) consisting of HUF 3,010,000 (three million and ten
thousand Hungarian Forints) in cash and HUF 60,000 (sixty thousand
Hungarian Forints) by way of contribution in kind.
(B)
Further particulars of the Company
and of its Minority Subsidiary at the date of this Agreement are
set out in Schedule 1.
(C)
The Seller owns the legal and
beneficial title to the Quota.
(D)
The Seller has agreed to sell and
the Buyer has agreed to buy the Quota subject to the terms and
conditions of this Agreement.
(E)
The Seller and the Buyer acknowledge
that the Company’s intention is that it will be demerged into
a number of separate legal entities subsequent to the
Closing.
AGREED TERMS
1.
INTERPRETATION
1.1
The definitions
and rules of interpretation in this Clause apply in this
Agreement.
Accounts: the draft interim audited financial statements
of the Company as at and to the Accounts Date issued by RSM DTM
Audit KFT dated September 29, 2009.
Accounts Date:
31 July 2009.
Additional Payment:
EUR 2,000,000 (two million
Euros).
Additional Payment
Condition: has the
meaning ascribed to it in Schedule 4.
Affiliates:
with respect to any person, a person
that directly or indirectly controls, is controlled by or is under
common control with such person, with control in such context
meaning the ability to direct the management or policies of a
person through
1
ownership of voting shares or other
securities, pursuant to a written agreement, or otherwise, but for
the avoidance of any doubt does not include the Minority
Subsidiary.
Agreed Assets
are all Assets EXCEPT FOR
(i) concessions, licenses and similar rights insofar as they
relate to Ot-Ny-5 only; (ii) assets in the course of
construction; (iii) raw materials and consumables; and
(iv) EUR 600,000 (six hundred thousand Euros) and in respect
of (i), (ii) and (iii) as shown in the Accounts and in
respect of (iv) in respect of the cleared funds held in the
Specified Bank Account.
Agreed Provisions
are the abandonment provisions for
those Wells which are not expected to produce being
(i) Ba-K-1; (ii) Kiha-D-1; (iii) Orm-DK-1;
(iv) Orm-K-3; (v) Orm-K-4; (vi) Zsa-Ny-1;
(vii) Tik-1; and (viii) Nko-Ny-1 and which are shown in
the Accounts.
Agreement:
means this Quota Purchase
Agreement.
Applications:
the application for the BA-IX mining
plot license, the Mezotur-V mining plot license and the Inke
Application.
Approvals:
has the meaning ascribed to it in
Section 7 of Schedule 5 of this Agreement.
Articles of
Association: the articles
of association (deed of foundation) of the Company registered at
the Registry Court and shown in Schedule 8.
Assets: the Company’s assets as shown in the
Accounts.
Business Day:
a day (other than a Saturday, Sunday
or public holiday) when banks in both Budapest and Vienna are open
for business.
Buyer’s Report:
the report to be provided by the
Buyer to the Seller pursuant to the provisions of Clause
5.6.
Buyer’s
Warranties: the
representations and warranties in Clause 8 given by the Buyer in
favour of the Seller.
Claim: a claim for breach of this Agreement including a
breach of any of the Warranties. A Claim is connected with another
Claim if they all arise out of the occurrence of the same event or
relate to the same subject matter.
Clause: means a clause or Section of this
Agreement.
Close of Business:
18:00 hours on a Business
Day.
Closing: the closing of the sale and purchase of the
Quota in accordance with this Agreement.
Closing Agenda:
a document in the agreed form set
forth in Schedule 10 (a) identifying the matters to be
undertaken at Closing and (b) including drafts of the
documents to be exchanged by the Buyer and Seller at Closing
including (i) a joint written notification of the Buyer and
the Seller addressed to the managing directors of the Company that
the Buyer has acquired the Quota and requesting the managing
directors to register such change of ownership in the
members’ list of the Company;
2
(ii) the members’ list
signed by the managing directors of the Company showing the Buyer
as the new sole holder of the Quota along with the New Articles of
Association; (iii) the withdrawal of the managing directors
and the appointment of the new managing directors Travis Wetzlaugk
and Ernst Burgschwaiger; (iv) a declaration by the Buyer that
it regards the provisions of the New Articles of Association as
binding upon itself; and (v) the power of attorney of the
Company in favour of PRK to proceed with the formal registration of
the purchase of the Quota at the Registry Court on the Closing
Date.
Closing Balance Sheet:
the unaudited financial statements
of the Company as at the Closing Date on a basis consistent with
the Accounts (i.e. in accordance with applicable Hungarian
accounting standards for statutory year end accounts) to be
prepared by the Seller which will be accompanied by (but not form
part of the Closing Balance Sheet) (i) an additional
calculation to demonstrate the Closing Net Assets and (ii) a
trial balance.
Closing Date:
has the meaning given in Clause
5.1.
Closing Net Assets:
the amount by which the Agreed
Assets varies from the sum of (x) the amount of Agreed
Provisions and (y) the amount of Total Debt or expressed as
follows Closing Net Assets = Agreed Assets – (Agreed
Provisions + Total Debt)
Closing Payment:
EUR 3,700,000 (three million seven
hundred thousand Euros).
Closing Payment
Holdback: EUR 300,000
(three hundred thousand Euros).
Company: Toreador Hungary Limited (to be renamed as RAG
Hungary Limited after Closing), a company incorporated and
registered in Hungary with Company Registration Number: Cg.
01-09-679019 and having its registered office at H-1113 Budapest,
Bocskai út 134-146, Dorottya Udvar Building D, 3
rd floor, further details of which are set
out in Part 1 of Schedule 1.
Confidentiality
Agreement: the
confidentiality agreement between the Seller and Buyer dated 9
June 2009.
Conditions:
the conditions, and each of them, as
set out in Schedule 2.
Contract Area:
any and all areas with respect to
which the Company has a right of use under Hungarian Permits,
including the Licenses, as at the date of this
Agreement.
Damages: any and all damages or losses, liabilities,
costs (including, without limitation, proper legal and other
similar professional costs), charges, expenses, actions, fines and
penalties (in each case calculated on a Euro to Euro basis)
suffered or sustained by the Buyer or the Company including losses
of future revenues, income or profits (in Hungarian:
“elmaradt haszon” or “elmaradt vagyoni
elöny”), but excluding consequential damages (in
Hungarian: “közvetett kár”) and damages or
losses which are contingent, potential or unforeseen.
Demerger: the legal process pursuant to which the Company
will be demerged into 4 corporate entities created by way of legal
succession, the purpose of which is to
3
transfer certain assets and
liabilities from the Company into the relevant newly formed
entities and thereby to mitigate the tax consequences of the
transfers of such certain assets and liabilities.
Disclosed:
all matters disclosed in or under
the Disclosure Letter.
Disclosure Letter:
the letter to be issued by the
Seller in favour of the Buyer in the form shown in Schedule 7 to
this Agreement.
Draft Closing Balance
Sheet: a draft of the
Closing Balancing Sheet to be prepared in accordance with the
requirements of Clause 5.5 of this Agreement.
Encumbrance:
any interest or equity of any person
(including any right to acquire, option or right of pre-emption) or
any mortgage, lease, charge, pledge, lien, assignment,
hypothecation, security, interest, voting interest, title,
retention or any other security agreement or arrangement including
any third party rights of a similar kind or having a similar effect
to the foregoing.
Escrow Account:
the bank account of the Escrow Agent
the details of which are Bank: Notartreuhandbank AG (NTB), Bank
Code: 31500, Account Number: 896-01.398.403, In the name of:
Toreador Hungary/TH, IBAN: AT21 3150 0896 0139 8403, BIC:
RZBAATWW.
Escrow Agent:
Dr. Rudolf Kaindl, Austrian
notary public, Vienna-Donaustadt IV, 1220 Vienna,
Donaustadtstraße 1.
Escrow Agreement:
the agreement attached to this
agreement as Schedule 11 to be made between (1) the Buyer
(2) the Seller and (3) the Escrow Agent setting out the
terms and conditions of the Escrow Agent and the holding of the
Additional Payment.
EUR or €: the single currency of a
member state of the European Communities that adopts or has adopted
the euro as its lawful currency under the legislation of the
European Community for Economic Monetary Union.
Expert: a person appointed in
accordance with the provisions of Clause 5.9 and Clauses 5.11 to
5.20 (inclusive) to resolve any dispute arising in connection with
the Closing Balance Sheet.
Exploration Licenses:
mean (i) the single license to
explore Szolnok Block and the Tompa Block as issued by the
Hungarian Mining Authority pursuant to resolution number 1828/99
dated April 20th, 1999 and, extended by resolution no.
4432/2005/1 dated April 25 ›th , 2005
and (ii) the Inke Exploration License.
Governmental
Authority: any government
and/or any political subdivision thereof, including departments,
courts, commissions, boards, bureaus, ministries, agencies or other
instrumentalities.
Hungarian Governmental
Authority : any
Governmental Authority in or of the Republic of Hungary.
Hungarian Mining
Authority: the Hungarian
Office for Mining and Geology and all and any district mining
offices in Hungary.
4
Hungarian Permits
: all permits, licenses, variances,
approvals and other authorizations of Hungarian Governmental
Authorities required to use, own, operate or maintain the Licenses
including, without limitation, the drilling permit for
Balotaszallas-E-1.
Hungarian Taxes:
all Taxes imposed by any Hungarian
Governmental Authority.
Inke Application:
the application dated 8 July 2009
for an exploration license for hydrocarbons in the area known as
Inke.
Inke Exploration
License: the single
license to explore the Inke Applicatino area as issued by the
Hungarian Mining Authority pursuant to resolution number
4572/15/2009 dated September 14, 2009, but which remains subject to
a 14 day appeal period from date of receipt of the letter on
September 22, 2009.
Joint Venture
Agreements means each of
(a) the Szolnok JOA, (b) the Tompa FIA, (c) the Tompa SFA and/or
(d) the TK Articles of Association, copies of which have been
provided to the Buyer.
Kiskunhalas
Application: the
application for a hydrocarbon exploration license in respect of the
Kiskunhalas Area dated 20 March 2007 and finally rescinded by the
Hungarian Mining Authority on 12 February 2009.
Kiskunhalas Area:
the area known by the Company as
Kiskunhalas and as set out in the Kiskunhalas
Application.
Kiskunhalas
Litigation: the
supervisory request submitted by the Company to the Supreme Court
of Hungary dated 18 March 2009 in relation to the judgment of the
Kecskemet County Court dated 16 January 2009 affecting the
Kiskunhalas Application.
Laws: all laws, statutes, rules, regulations,
ordinances, orders, decrees, requirements, judgments and codes of
Governmental Authorities in force, fully-implemented and
enforceable as of the date hereof.
Lease: the lease referred to in Part 2 of Schedule
6.
Licenses: the Exploration Licenses and/or the Mining Plot
License.
Material Contract:
has the meaning given in paragraph
14.1 of Schedule 5.
Mining Plot License:
the mining plot license known as
Balotaszallas-VIII and issued by the Hungarian Mining Authority on
2 June 2009 under resolution SzBK-1.562/15/2009.sz and amended on
16 June 2009 under resolution SzBK-1.562/18/2009.sz.
Minority Subsidiary:
TK-Services Limited further
particulars of which are set out in Part 2 of Schedule
1.
New Articles of
Association: the new
articles of association (deed of foundation) of the Company to be
registered at the Registry Court upon Closing and shown in Schedule
9.
5
OTP Merkantil Loan
: the financing provided to the
Company by OTP Merkantil in respect of certain vehicles as shown in
the Accounts.
Party: the Seller or the Buyer, as the case may
be.
Parties: the Seller and/or the Buyer.
Properties:
has the meaning given in paragraph
21 of Schedule 5.
Purchase Price:
the purchase price for the Quota to
be paid by the Buyer to the Seller in accordance with Clause
4.
Quota: the Seller’s holding of HUF 3,070,000
(three million and seventy thousand Hungarian Forints) consisting
of HUF 3,010,000 (three million and ten thousand Hungarian Forints)
in cash and HUF 60,000 (sixty thousand Hungarian Forints) as
in-kind contribution all of which has been fully paid up and which
represents 100% (one hundred per cent.) of the registered capital
of the Company.
Records: all books, records, data, files, maps and
accounting records related to the Licenses or other Assets or used
or held for use in connection with the use, ownership, operation or
maintenance thereof, or which otherwise relate to the Company or
its business, but excluding (i) all corporate,
financial and Taxation records of the Company’s Affiliates
(including the Seller), (ii) any work product of legal counsel for
the Company pertaining to this Transaction or any Affiliate
(including the Seller) including any and all correspondence
pertaining thereto; and (iii) any and all records concerning any
bids or offers or communications received from and records of
negotiations with third parties relating to the sale of the Quota
and/or the Assets (together the “ Excluded Records
”).
Registry Court:
the Municipal Court of Budapest,
Hungary acting as the registry court.
Section: means a section or Clause of this
Agreement.
Specified Bank
Account: the account with
K&H Bank in which the sum of EUR 600,000 (six hundred thousand
Euros) is held as follows:- Account name: Toreador
Magyarország Kft; Account number (IBAN): HU33 1040 1093 4956
4856 5552 1056; Bank name: K&H Bank Nyrt.; Bank address: H-1051
Budapest, Vigadó sq. 1.; SWIFT code: OKHBHUHB.
Subsidiary:
in relation to a company (the
holding company), any other company in which the holding company
(or a person acting on its behalf) directly or indirectly holds or
controls either:
(a)
a majority of the
voting rights exercisable at shareholder meetings of the company;
or
(b)
the right to
appoint or remove directors having a majority of the voting rights
exercisable at meetings of the board of directors of the
company;
6
and any company which is a
Subsidiary of another company is also a Subsidiary of that
company’s holding company.
Unless the context otherwise
requires, the application of the definition of Subsidiary to any
company at any time shall apply to the company as it is at that
time.
Szolnok Block:
the Contract Area covered by
resolution number 1828/99 dated April 20th, 1999 and extended by
resolution number 4432/2005/1 dated April 25th, 2005 in each case
by the Hungarian Mining Authority and with the following EOV
co-ordinates:
|
|
|
Y
|
|
X
|
|
|
1.
|
|
722000
|
|
220000
|
|
|
2.
|
|
782000
|
|
220000
|
|
|
3.
|
|
782000
|
|
200000
|
|
|
4.
|
|
752000
|
|
200000
|
|
|
5.
|
|
752000
|
|
180000
|
|
|
6.
|
|
782000
|
|
180000
|
|
|
7.
|
|
782000
|
|
170000
|
|
|
8.
|
|
772000
|
|
170000
|
|
|
9.
|
|
772000
|
|
160000
|
|
|
10.
|
|
722000
|
|
160000
|
|
Szolnok Farmees’
Loans : the aggregate
amount outstanding due to the farmees under the Szolnok JOA which
is approximately HUF 1,792 million (one thousand seven hundred and
ninety two million Hungarian forints).
Szolnok JOA:
the joint operating agreement in
respect of the Szolnok Area dated 17 December 2007 and made by and
between (1) the Company, (2) Ascent Resources plc, (3) Contact
International Exploration Limited (“ Contact ”),
(4) Oil and Gas Solutions Limited, and (5) PetroVentures Europe
B.V. as such agreement was amended by the replacement of Contact
with the Buyer pursuant to two agreements both dated 20 March 2008
between (1) Contact and (2) the Buyer and a further agreement dated
20 March 2008 made between (1) the Buyer and (2) the
Company.
Taxation: all taxes, including income tax, corporate
income tax, solidarity tax and local business tax, surtax,
remittance tax, presumptive tax, net worth tax, special
contribution, production tax, pipeline transportation tax, value
added tax, withholding tax, gross receipts tax, windfall profits
tax, profits tax, severance tax, personal property tax, real
property tax, sales tax, service tax, transfer tax, use tax, excise
tax, premium tax, customs duties, stamp tax, motor vehicle tax,
entertainment tax, insurance tax, capital stock tax, franchise tax,
occupation tax, payroll tax, employment tax, social security,
unemployment tax, disability tax, alternative or add-
7
on minimum tax, estimated tax,
special remuneratory benefit, and any other assessments, duties,
fees, levies or other charges imposed by a Governmental Authority
together with any interest, fine or penalty thereon, or addition
thereto, including any taxes arising from transfer pricing issues
and Tax or Taxes shall have the same meaning.
Tax Returns:
all returns, reports, declarations,
claims for refund, statements, forms or other filings with respect
to Taxation, including any schedules, attachments or amendments
thereto.
Tied - Up Capital: the supplementary payment
received by the Company and shown in the Accounts.
Third Party Claim
: has the meaning ascribed to it in
Section 7.1.
Third Party Claim Review
Period: has the meaning
ascribed to it in Section 7.
TK Articles of
Association: the articles
of association of TK Services, a copy of which has been Disclosed
to the Buyer.
TK Services:
the Minority Subsidiary.
Tompa Block:
the Contract Area covered by
resolution no. 1828/99 dated April 20th, 1999 and, extended by
resolution no. 4432/2005/1 dated April 25 th , 2005
in each case issued by the Hungarian Mining Authority and with the
following EOV co-ordinates:
|
|
|
Y
|
|
X
|
|
|
1.
|
|
685000
|
|
120000
|
|
|
2.
|
|
702000
|
|
120000
|
|
|
3.
|
|
702000
|
|
100000
|
|
|
4.
|
|
710000
|
|
100000
|
|
|
5.
|
|
710000
|
|
national border
|
|
|
6.
|
|
685000
|
|
national border
|
|
Tompa FIA:
the agreement made between (1) the
Company and (2) Delta Hydrocarbons B.V. (“ Delta
”) dated 28 March 2008, a copy of which has been Disclosed to
the Buyer.
Tompa SFA:
the agreement made between (1) the
Company; (2) Delta; and (3) Delta Hydrocarbons KFT dated 26 June
2008, a copy of which has been Disclosed to the Buyer.
Toreador
International: Toreador
International Holding Limited, a company incorporated and
registered in Hungary with Company Registration Number: Cg.
01-09-868606 and having its registered office at H-1113 Budapest,
Bocskai út 134-146, Dorottya Udvar Building D, 3
rd floor.
8
Total Debt
: the Company’s aggregate
amount of liabilities to the Seller, its Affiliates and any third
parties but which for the avoidance of doubt excludes any amount of
Agreed Provisions and further which excludes the aggregate of the
(a) OTP Merkantil Loan; (b) TK Services Loan; and (c) Szolnok
Farmees’ Loans.
Transaction:
the transaction contemplated by this
Agreement or any part of that transaction.
TK Services Loan:
the loan due to TK Services from the
Company as shown in the Accounts being approximately HUF 55.5
million (fifty five million five hundred thousand Hungarian
forints) together with all interest thereon.
Value Added Tax
or VAT: means value added tax
(in Hungary known as ÁFA) and defined in Act No CXXVII of
2007 on Value Added Tax.
Vizvar: the area for exploration contained in Resolution
Number 365/12/2008 of the Pécs Mining Authority.
Vizvar Application:
the application for a hydrocarbon
exploration license dated 19 March 2007 and finally rescinded on 5
August 2009.
Vizvar Litigation:
the judicial proceedings affecting
the Vizvar Application including the right to launch a supervisory
request to the Supreme Court of Hungary in relation to the judgment
of the Somogy County Court affecting the Vizvar Application dated
30 June 2009 and received on 27 July 2009.
Warranties:
the representations and warranties
of the Seller in Clause 6 and Schedule 5.
Well : means each of the wells shown in the
Accounts.
Well Structure
: means that part of the well which
is non-removable and permanently installed including the well
casing.
Well Sketches and End of Well
Reports : mean those
diagrams and those reports written by the Company delivered to the
Buyer prior to the Closing.
1.2
Clause and
schedule headings do not affect the interpretation of this
Agreement.
1.3
A
person includes a corporate or
unincorporated body.
1.4
Words in the
singular include the plural and in the plural include the
singular.
1.5
A reference to
one gender includes a reference to the other gender.
1.6
A reference to a
particular statute, statutory provision or subordinate legislation
is a reference to it as it is in force at the date of this
Agreement, taking account
9
of any amendment
or re-enactment and includes any statute, statutory provision or
subordinate legislation which it amends or re-enacts and
subordinate legislation for the time being in force made under
it.
1.7
Writing or written includes faxes but not
e-mail.
1.8
Documents
in agreed form
are documents in
the form agreed by the Parties to this Agreement and initialled by
them for identification.
1.9
A reference in
this Agreement to other documents referred to in the Agreement is a
reference to the following documents:
(a)
Escrow Agreement; and
(b)
Disclosure Letter.
1.10
References to
times of day are, unless the context otherwise requires, to
Budapest time and references to a day are to a period of twenty
four hours running from midnight on the previous day.
1.11
Any amount
expressed to be in Euros shall, to the extent that it requires, in
whole or in part, to be expressed in any other currency in order to
give full effect to this Agreement, be deemed for that purpose to
have been converted into the relevant currency on the last Business
Day immediately preceding Closing. Subject to any applicable legal
requirements governing conversions into that currency, the rate of
exchange shall be the Hungarian National Bank’s published mid
rate for the purchase of that currency with Euros at the time of
the deemed conversion.
1.12
Without prejudice
to the application of Hungarian law to this Agreement, any
reference to a legal term in the English language for any action,
remedy, method of judicial proceeding, legal document, legal
status, court, official or any legal concept or thing in respect of
the jurisdiction of Hungary shall be deemed to include a reference
to what most nearly approximates the Hungarian legal
term.
2.
CONDITIONS
2.1
The Seller and
the Buyer shall use all reasonable endeavours so far as lies within
their respective powers to procure that the Conditions as defined
in Schedule 2 are satisfied as soon as practicable and in any event
no later than:
(a)
Close of Business
on Wednesday 30 September 2009; or
(b)
such later time
and date as may be agreed in writing by the Seller and
Buyer.
10
2.2
The Buyer and the
Seller shall co-operate fully and in good faith in all and any
actions necessary, or deemed desirable, to procure the satisfaction
of the Conditions.
2.3
The Buyer may, at
any time and to such extent as it thinks fit, waive in whole or in
part any of the Conditions by written notice to the
Seller.
2.4
If any of the
Conditions have not been satisfied or waived by the date and time
provided in Clause 2.1, this Agreement shall cease to have effect
immediately after that time on that date except for:
(a)
the provisions
mentioned in Clause 2.5; and
(b)
any rights or
liabilities that have accrued under this Agreement.
2.5
The following
provisions shall continue to have effect, notwithstanding failure
to waive or satisfy the Conditions:
(a)
Clause 1;
(b)
Clause 2;
(c)
Clause 10;
(d)
Clause 13;
(e)
Clause 14;
(f)
Clause 15;
(g)
Clause 16 ;
(h)
Clause 19; and
(i)
Clause 22.
3.
SALE AND PURCHASE
3.1
On the terms of
this Agreement and subject to the satisfaction of the Conditions,
at the Closing, the Seller shall sell, and the Buyer shall buy, the
Quota free from all Encumbrances.
3.2
The Quota is sold
with all rights that attach, or may in the future attach, to it
(including, in particular, the right to be repaid the amount of the
Tied-up Capital, the right to receive all dividends and
distributions declared, made or paid on or after the Closing
Date).
3.3
The Buyer is not
obliged to complete the purchase of the Quota unless the purchase
of the entire amount of the Quota is completed
simultaneously.
11
3.4
The Seller
acknowledges that the Buyer enters into this Agreement on the basis
of, and in reliance on the Warranties, but at all times subject to
all matters Disclosed, and the Seller enters into this Agreement on
the basis of, and in reliance on, the Buyer’s
Warranties.
3.5
If at any time
before or at Closing it becomes apparent that:
(a)
a Warranty has
been materially and adversely breached, is materially and adversely
untrue or incorrect or that the Seller has breached any other term
of this Agreement that in either case is materially adverse to the
sale and purchase of the Quota, the Buyer may (without prejudice to
any other rights it may have in relation to the
breach):
(i)
rescind this
Agreement by notice to the Seller; or
(ii)
proceed to
Closing;
(b)
a Buyer’s
Warranty has been materially and adversely breached, is materially
and adversely untrue or incorrect or that the Buyer has breached
any other term of this Agreement that in either case is materially
adverse to the sale and purchase of the Quota, the Seller may
(without prejudice to any other rights it may have in relation to
the breach):
(i)
rescind this
Agreement by notice to the Buyer; or
(ii)
proceed to
Closing.
4.
PURCHASE PRICE
4.1
Subject to the
following amounts becoming due and owing under the terms of this
Agreement, the Purchase Price to be paid for the Quota is EUR
6,000,000 (six million Euros) comprising of (i) the Closing
Payment; and (ii) the Closing Payment Holdback, to the extent that
the same becomes payable pursuant to the provisions set out in
Clauses 5.5 to 5.20 (inclusive), and any CP Excess (as defined in
Clause 5.10) or Remaining CP Holdback Amount (as defined in Clause
5.10), if any; and (iii) the Additional Payment, to the extent that
the Additional Payment Condition has been triggered and in
accordance with the provisions of Schedule 4. For the avoidance of
doubt the Parties agree and acknowledge that independent of whether
or not the Closing Payment Holdback, CP Excess (as defined in
Clause 5.10), CP Deficit (as defined in Clause 5.10), Remaining CP
Holdback Amount (as defined in Clause 5.10) and/or Additional
Payment becomes due and owing to the Seller, the payment of the
Closing Payment at Closing shall result in the transfer of the
Quota to the Buyer.
12
5.
CLOSING
5.1
Provided that the
Conditions shall have been satisfied or waived in accordance with
Clause 2, Closing shall take place at the offices of the Company at
10 a.m. on Wednesday 30 September 2009 or at such other location,
time or date as the Seller and the Buyer may agree in writing. The
date on which Closing shall take place is referred to herein as the
“ Closing Date
”.
5.2
At Closing the
Seller shall:
(a)
transfer the
Quota in such manner as is necessary for the Buyer to establish
legal ownership in accordance with Hungarian law pursuant to the
documentation as set out in the Closing Agenda;
(b)
deliver a
certified copy of the resolution adopted by the board of directors
of the Seller authorising the Transaction and the execution and
delivery by the officers specified in the resolution of this
Agreement, any documents necessary to transfer the Quota in
accordance with Clause 5.2(a) and any other documents referred to
in this Agreement;
(c)
deliver all other
documents identified in the Closing Agenda as documents to be
delivered by the Seller at Closing;
(d)
deliver letters
of withdrawal of the managing directors of the Company effective as
of Closing;
(e)
deliver new bank
mandate (signatory card) instructions to be completed and signed in
accordance with the Buyer’s instructions to replace the bank
mandate instructions existing immediately prior to Closing;
and
(f)
deliver an
original bank statement from the Specified Bank Account evidencing
the EUR 600,000 (six hundred thousand) as being readily available
to the Company and a letter from K & H Bank confirming that
Travis Wetzlaugk and Ernst Burgschwaiger are jointly authorised to
dispose over the funds in the Specified Bank Account.
5.3
At Closing the
Buyer shall:
(a)
deliver all other
documents identified in the Closing Agenda as documents to be
delivered by the Buyer at Closing;
(b)
deliver
declarations of acceptance of each of the managing directors and
the members of the supervisory board which it wishes to appoint in
the Company;
(c)
pay the Closing
Payment by bank transfer to the Seller or the Seller’s
appointee (who shall have been irrevocably authorised by the Seller
to receive it). The Seller’s bank account details are Natixis
Paris. IBAN number FR76 3000 7999 9927 4344 4100 006. SWIFT Code
CCBPFRPPFMP; and
13
(d)
pay an amount
equal to the Additional Payment by bank transfer to the Escrow
Account, to be held in accordance with the terms of the Escrow
Agreement.
All matters at
Closing will be considered to take place simultaneously, and no
delivery of any document will be deemed complete until all
transactions and deliveries of documents required by this Agreement
are completed, and title to the Quota shall not be transferred and
the Buyer shall have no property rights or interest in the Quota
unless and until the Closing actually takes place and the payments
referenced in subsection (c) and (d) above have been effectively
received by the intended payees. Prior to signing the Closing
Agenda, the Parties agree that the last step to be taken as part of
the Closing procedure consists of the receipt of the amounts set
forth in subsections (c) and (d) above by the specified
recipient.
5.4
At Closing, but
in no way later than 5 (five) Business Days after Closing, the
Seller shall make available to the Buyer all Records that are not
in possession of the Company and not otherwise required to be
delivered at Closing under this Agreement.
5.5
The Buyer shall
procure that the Company prepares, on behalf of the Seller, and
delivers to the Buyer the Draft Closing Balance Sheet as soon as
reasonably practicable after the Closing Date and in any event not
later than 15 (fifteen) Business Days thereafter.
5.6
The Buyer shall
ensure that, within 10 (ten) Business Days starting on the Business
Day immediately following its receipt of the Draft Closing Balance
Sheet, it submits to the Seller a report stating whether or not it
agrees with the Draft Closing Balance Sheet (and in the case of
disagreement, the areas of dispute in reasonable detail to enable
the Seller to understand the matters in dispute) (“
Buyer’s Report
”).
5.7
If the Buyer
agrees the Draft Closing Balance Sheet, the Buyer’s Report
will confirm this and the Draft Closing Balance Sheet shall become
the Closing Balance Sheet and it shall become final and binding on
the Parties for the purpose of this Agreement.
5.8
If the Buyer
disagrees with the Draft Closing Balancing Sheet, the Parties shall
use their respective best endeavours to agree any matter in
dispute. If the matter in dispute is resolved by agreement between
the Parties, the Buyer and the Seller shall certify the Draft
Closing Balance Sheet (subject to any amendment agreed between the
Parties) as being the Closing Balance Sheet and it shall become
final and binding on the Parties for the purpose of this
Agreement.
14
5.9
If the Parties
are unable to resolve any disagreement within 20 (twenty) Business
Days of the Seller’s receipt of the Buyer’s Report,
either Party shall have the right to refer the disagreement to the
Audit Expert.
5.10
Within 5 (five)
Business Days, starting on the day after the Closing Balance Sheet
is in final and agreed form whether by agreement between the
Parties or determination by the Audit Expert:
(a)
if the Closing
Net Assets is equal to zero or not greater than EUR 50,000 (fifty
thousand Euros), then the Buyer shall pay to the Seller the Closing
Payment Holdback in the same manner as payment of the Closing
Payment; or
(b)
if the Closing
Net Assets exceed EUR 50,000 (fifty thousand Euros) (“
CP Excess ”), then the Buyer
shall pay to the Seller an amount equal to the aggregate of the
Closing Payment Holdback and the CP Excess in the same manner as
payment of the Closing Payment; or
(c)
if the Closing
Net Assets is shown to be in deficit by more than EUR 50,000 (fifty
thousand Euros) (“ CP Deficit ”), then the Seller
shall pay to the Buyer the amount of the CP Deficit. Payment of the
CP Deficit up to and including the amount of the Closing Payment
Holdback shall be made by the Seller to the Buyer by way of set off
from the Closing Payment Holdback. If the Closing Payment Holdback
is insufficient to meet the CP Deficit then the Seller shall be
obliged to pay the difference to the Buyer by bank transfer to the
Buyer’s account notified in writing to the Seller. If the
amount of the CP Deficit is less than the Closing Payment Holdback
(“ Remaining CP
Holdback Amount ”), the Buyer shall pay
the Remaining CP Holdback Amount to the Seller.
5.11
The Audit Expert
shall be appointed by the President of the Hungarian Chamber for
Auditors within five (5) Business Days of a request of either Party
and shall be duly qualified as an auditor in Hungary, fluent in
English and appropriately experienced in dealing with the matters
in dispute.
5.12
Each of the
Parties shall promptly, but in any event within five (5) Business
Days of the confirmed appointment of the Audit Expert, prepare a
written statement on the matters in dispute which (together with
the relevant documents) shall be submitted to the Audit Expert for
determination.
5.13
The Audit Expert
shall prepare a written decision, including what adjustments (if
any) are necessary to the Draft Closing Balance Sheet in respect of
the matters in dispute in order to comply with the requirements of
this Agreement and his reasons therefor, and he shall give notice
(including a copy) of the
15
decision to the
Parties within a maximum of 20 (twenty) Business Days of the matter
being referred to him.
5.14
If the Expert
dies or becomes unwilling or incapable of acting, or does not
deliver the decision within the time required by Clause 5.14
then
(a)
either Party may
apply to the President of the Hungarian Chamber for Auditors to
discharge the Audit Expert and to appoint a replacement Audit
Expert; and
(b)
this Clause 5.14
applies in relation to the new Audit Expert as if he were the first
Audit Expert appointed.
5.15
All matters under
Clauses 5.11 to 5.20 (inclusive) shall be conducted, and the Audit
Expert’s decision shall be written, in the English
language.
5.16
The Parties are
entitled to make written submissions to the Audit Expert and shall
provide (or procure that others provide) the Audit Expert with such
assistance and documents as the Audit Expert reasonably requires
for the purpose of reaching a decision.
5.17
Unless agreed by
the Parties, the Audit Expert may not instruct professional
advisers to assist him in reaching his decision.
5.18
Each Party shall,
with reasonable promptness, supply each other with all information
and give each other access to all documentation and personnel as
each other reasonably requires to make a submission under Clauses
5.12 and/or 5.16.
5.19
The Audit Expert
shall act as an expert and not as an arbitrator. The Audit Expert
shall determine any dispute, which may include any issue involving
the interpretation of any provision of this Agreement, his
jurisdiction to determine the matters and issues referred to him or
his terms of reference. The Audit Expert’s written decision
on the matters referred to him shall be final and binding in the
absence of manifest error or fraud.
5.20
The Audit
Expert’s fees and any costs properly incurred by him in
arriving at his determination shall be borne by the Parties in such
proportion as the Audit Expert in his sole discretion
directs.
6.
WARRANTIES AND
INDEMNITIES
6.1
Except as and
exclusively to the extent explicitly set forth in this Clause 6 and
in Schedule 5, the Seller makes no representations or warranties,
whether
16
expressly or
implied by the Laws or otherwise and the Buyer expressly
acknowledges and accepts such limitation.
6.2
The Warranties
(except to the extent expressly stated to be made as of a specified
date) and the matters Disclosed are each deemed to be repeated at
Closing and any reference made to the date of this Agreement
(whether express or implied) in relation to any Warranty or
Disclosure shall be construed, in relation to any such repetition,
as a reference to the Closing Date.
6.3
From and after
the Closing, and subject to the provisions of this Clause 6 and
Clause 7, including the agreed limitation on the liability of the
Seller, the Seller shall indemnify, defend and hold harmless the
Buyer against any and all Damages suffered or sustained by the
Buyer or the Company as a result of any breach of any Warranty by
the Seller. This is without prejudice to the rights of the Buyer to
bring an action against the Seller for any other breaches of this
Agreement. If recovering under a claim, the claiming party shall
not be required to demonstrate that the indemnifying party was at
fault (in Hungarian: “felróhato”) and the
indemnifying party shall have no defence to liability on the basis
of the absence of fault.
6.4
The Buyer is not
entitled to recover damages or otherwise obtain restitution more
than once in respect of the same loss.
6.5
Warranties given
so far as the Seller is aware are deemed to be given in relation to
the actual knowledge, information and belief of the Seller’s
current officers and directors after having made due inquiry of the
Company’s Managing Directors based on their respective actual
knowledge, information and belief at the time of the
enquiry.
6.6
Each of the
Warranties is separate and, unless specifically provided, is not
limited by reference to any other Warranty or anything in this
Agreement. Each of the defend, hold harmless and indemnification
obligations of the Seller shall be construed as a separate defend,
hold harmless and indemnification obligation and shall not be
limited or restricted by reference to or inference from the terms
of any other defend, hold harmless and indemnification
obligation.
6.7
The Seller agrees
that any information supplied by the Company or by or on behalf of
any of the employees, directors, agents or officers of the Company
( Officers
) to the Seller
or its advisers in connection with the Warranties, the information
Disclosed in the Disclosure Letter or otherwise shall not
constitute a warranty, representation or guarantee as to the
accuracy of such information in favour of the Seller, and the
Seller hereby undertakes to the Buyer and to the
17
Co
