SHARE PURCHASE AGREEMENT
WILLBROS GROUP, INC.
ASCOT OFFSHORE NIGERIA LIMITED
February 7, 2007
TABLE OF CONTENTS
A - Intellectual Property License Agreement
B - Transition Services Agreement
Schedule 4.2 - Purchaser’s Consents
*Omitted. The Company agrees to furnish supplementally a copy of any omitted exhibit, schedule or similar attachment to the Securities and Exchange Commission upon its request.
SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (this " Agreement ") is made and entered into as of the 7th day of February, 2007, by and between Willbros Group, Inc., a corporation organized under the laws of the Republic of Panama (" Seller "); and Ascot Offshore Nigeria Limited, a company organized under the laws of the Federal Republic of Nigeria (" Purchaser ").
WHEREAS , Seller owns all of the issued and outstanding share capital of WG Nigeria Holdings Limited, a company organized under the laws of the Cayman Islands (the " Company "), which is engaged in the Business as defined below; and
WHEREAS , Purchaser desires to acquire, and Seller desires to sell, said share capital of the Company; and
WHEREAS , Purchaser and Seller (the " Parties ") desire to evidence their agreement to the terms and conditions of the purchase and sale of said share capital of the Company as set forth in this Agreement;
NOW , THEREFORE , in consideration of the premises and the representations, warranties, and mutual covenants hereinafter set forth, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1.1 Defined Terms. For purposes of this Agreement and any Exhibit or Schedule to this Agreement, each of the following terms shall have the following meanings:
" Affiliate " means, with respect to any Person, each other Person that directly or indirectly (through one or more intermediaries or otherwise) controls, is controlled by, or is under common control with such Person. The term " control " (including the terms " controlled by " and " under common control with ") means the possession, directly or indirectly, of the actual power to direct or cause the direction of the management policies of a Person, whether through the ownership of stock, by contract, credit arrangement or otherwise.
" Agreement " means this Share Purchase Agreement, as amended, supplemented or modified from time to time in accordance with the express terms hereof.
" Balance Sheet Date " means September 30, 2006.
" Basket " has the meaning specified in Section 6.3(b).
" Business " means the engineering, procurement, construction and other support services for onshore, coastal and offshore locations provided by the Subsidiaries in relation to Nigeria primarily, but also temporarily now in Togo, Benin and Ghana; the Business being described with more particularity in the SEC Filings.
" Claim " means a claim for indemnification under Section 6.1.
" Closing " means the consummation of the purchase and sale of the Shares contemplated by this Agreement.
" Closing Balance Sheet " means the combined balance sheet of the Company and the Subsidiaries as of the Closing Date, prepared in accordance with GAAP.
" Closing Date " has the meaning specified in Section 3.1.
" Closing Purchase Price " means U.S.$155,250,000
" Company " has the meaning specified in the first preamble to this Agreement.
" Company Contracts " means all of the following to which the Company or any of the Subsidiaries is a party, or by which the Company or any of the Subsidiaries is bound, or by which any property or assets owned, used or held for use by the Company or any of the Subsidiaries may be bound: (i) any lease of tangible personal property having rentals in excess of U.S.$500,000, in the aggregate, due over the remaining term of the lease; (ii) any construction, engineering, EPC or similar contract pursuant to which the Company or any of the Subsidiaries provides services, intellectual property, materials or other goods under which a client is expected to pay to the Company or any of the Subsidiaries an aggregate amount in excess of U.S.$500,000, during any six-month period following the Closing Date; (iii) any procurement contract or other similar contract or agreement pursuant to which the Company or any of the Subsidiaries is obligated to purchase in excess of U.S.$500,000, in the aggregate, in products or services; (iv) any contract, agreement, arrangement or commitment which materially restricts the conduct of any line of business of the Company or any of the Subsidiaries; (v) any contract or agreement with or benefiting any director or officer of the Company or any of the Subsidiaries, exclusive of salary and payments under a Company Employee Benefit Plan; (vi) any agreement, indenture or other instrument relating to the borrowing of money by the Company or any of the Subsidiaries; (vii) any agreement pursuant to which the Company or any of the Subsidiaries is obligated to lend money or make advances to any person (other than routine employee advances in the ordinary course of business); (viii) any agreement, arrangement or commitment of the Company or any of the Subsidiaries to guarantee the obligations of or to indemnify or exonerate from liability any Person, including any director or officer of the Company or any of the Subsidiaries (other than pursuant to applicable law or the Organizational Documents of the Company or any of the Subsidiaries); (ix) any agreement or arrangement relating to the voting or disposition of any securities of the Company or any of the Subsidiaries; (x) any other contract, commitment or agreement which involves more than U.S.$500,000, in aggregate consideration; (xi) any partnership, joint venture or other agreement pursuant to which the Company or any of the Subsidiaries holds an equity interest in any Person; and (xii) any amendment, supplement and
modification, oral or written, of any of the foregoing; provided, however, that the foregoing definition of " Company Contracts " shall not include any Company Employee Benefit Plan.
" Company Employee Benefit Plans " means any pension, gratuity schemes, provident fund schemes, the Nigerian National Housing Fund Scheme and the Nigerian National Social Insurance Trust Fund Scheme, profit sharing, severance pay, sick leave, vacation pay, salary continuation for disability, retirement, deferred compensation, bonus, long-term incentive, hospitalization, medical insurance or life insurance program or plan maintained by the Company or any of the Subsidiaries or to which the Company or any of the Subsidiaries has contributed or is obligated to contribute or in which any employee of the Company or any of the Subsidiaries participates.
" Company Financial Statements " has the meaning specified in Section 4.1(j).
" Company Permits " means the permits, licenses, orders, franchises, approvals and authorizations of all Governmental Authorities necessary for the lawful conduct of the Business or the lawful ownership, use and operation of the assets of the Company or any of the Subsidiaries.
" Confidentiality Agreement " means the letter agreement dated September 13, 2006, between Purchaser and Seller relating to the furnishing of information to Purchaser in connection with Purchaser’s evaluation of the possibility of the transaction contemplated in this Agreement.
" Current Assets " means the current assets reflected on the combined balance sheet of the Company and the Subsidiaries at any given date, determined in accordance with GAAP.
" Current Liabilities " means the current liabilities reflected on the combined balance sheet of the Company and the Subsidiaries at any given date, determined in accordance with GAAP.
" Damages " has the meaning specified in Section 6.1.
" Data Room Documentation " means all documents, information and matters referred to and posted on Seller’s secure website at https://services.intralinks.com as of the Closing Date. Purchaser acknowledges that it has received permission from Seller to access the secure website and all such documents and matters.
" Deposit " has the meaning specified in Section 2.2(a).
" Disclosure Schedule " means: (i) the Disclosure Schedule attached hereto, (ii) any documents referred to on such Disclosure Schedule , (iii) any document or matter referred to in the SEC Filings, (iv) any Data Room Documentation, and (v) any Due Diligence Documentation, all of which shall be deemed to be incorporated by reference in the Disclosure Schedule and thereby disclosed to Purchaser. A disclosure made under any Section of the Disclosure Schedule shall be deemed to be a disclosure under all Sections of the Disclosure Schedule .
" Dispute " has the meaning specified in Section 7.10(a).
" Due Diligence Documentation " means all documents, information and matters provided by Seller to Purchaser and its advisors during meetings between the Parties, whether such meetings took place in the Federal Republic of Nigeria, Ghana, the United Kingdom, the United States of America or any other location.
" Effective Time " means the opening of business on the Closing Date.
" Environmental Law " means any applicable statute, code, ordinance, rule, regulation, policy, license, judgment, order, writ, decree, injunction or other authorization in effect on the date hereof or at a previous time in any of the Relevant Countries relating to (a) emissions, discharges or releases of Hazardous Materials into the natural environment, including into ambient air, soil, sediments, land surface or subsurface, buildings or facilities, surface water, groundwater or land; or (b) otherwise relating to the pollution of, or damage to, the environment.
" EPC " means engineering, procurement and construction.
" FCPA " has the meaning specified in Section 5.5.
" Frontier " has the meaning specified in Section 4.3.
" GAAP " means generally accepted accounting principles, as recognized by the U.S. Financial Accounting Standards Board (or any generally recognized successor), as practiced by Seller, consistently applied.
" Governmental Action " means any authorization, application, approval, consent, exemption, filing, license, notice, registration, permit or other requirement of, to or with any Governmental Authority.
" Governmental Authority " means any national, state, county or municipal government or any agency, board, bureau, commission, court, department or other instrumentality of any such government in any of the Relevant Countries.
" Guaranty " has the meaning specified in Section 2.2(b).
" Hazardous Material " means (a) any hazardous substance, hazardous waste or solid waste, in each case as defined by applicable Environmental Law; or (b) any solid, hazardous, dangerous or toxic chemical, material, waste or substance, within the meaning of and regulated by any applicable Environmental Law.
" Hebert " has the meaning specified in Section 4.3.
" Indemnified Person " has the meaning specified in Section 6.1.
" Indemnifying Party " has the meaning specified in Section 6.1.
" Independent Accounting Firm " means Deloitte Touche Tohmatsu or another mutually agreed independent accounting firm.
"Intellectual Property License Agreement " means an agreement to be entered into at the Closing between Purchaser and Seller, substantially in the form set forth as Exhibit A, providing for the Seller’s license to Purchaser of Purchaser’s use of the "Willbros" name and trademark in certain territory.
" Investigations " means the ongoing investigations by the U.S. Department of Justice, the SEC and the Office of Foreign Assets Control of the U.S. Department of the Treasury into the actions of certain former employees of subsidiaries of Seller in connection with the Business, being described with more particularity in the SEC Filings.
" JPMorgan " has the meaning specified in Section 4.3.
" Knowledge " (whether or not capitalized) means (a) with respect to a natural Person, the actual knowledge of that Person, and (b) with respect to a Person which is a business entity, the actual knowledge of each of the current senior management employees (rank of Senior Vice President or General Manager and above) of such entity.
" LCIA " has the meaning specified in Section 7.10(c).
" LIBOR " means
at 11:00 a.m. (London time) on the day which is two business days before the first day of the relevant period.
" Lien " means any lien, mortgage, security interest, pledge, deposit, restriction, burden, encumbrance or other arrangement substantially equivalent thereto.
" Material Adverse Effect " means (a) when used with respect to the Company, a result or consequence that would materially adversely affect the financial condition, results of operations or business of the Company and the Subsidiaries (taken as a whole) or the aggregate value of their assets, or would materially impair the ability of the Company and the Subsidiaries (taken as a whole) to own, hold, develop and operate their assets; (b) when used with respect to Purchaser, a result or consequence that would materially adversely affect the condition (financial or otherwise), results of operations or business of Purchaser and its subsidiaries (taken as a whole) or the aggregate value of their assets, would materially impair the ability of Purchaser to own, hold, develop and operate its assets, or would impair Purchaser’s ability to perform its
obligations hereunder or consummate the transaction contemplated hereby; and (c) when used with respect to Seller, a result or consequence that would materially adversely affect the condition (financial or otherwise), results of operations or business of Seller and its subsidiaries (taken as a whole) or the aggregate value of their assets, would materially impair the ability of Seller to own, hold, develop and operate its assets, or would impair Seller’s ability to perform its obligations hereunder or consummate the transaction contemplated hereby. An impact equivalent in value to 10 percent of the Purchase Price shall be deemed sufficient (but not necessary) to be materially adverse for the purposes hereof.
" Note " has the meaning specified in Section 2.2(b).
" Organizational Documents " means, as applicable, the Certificate or Articles of Incorporation, Bylaws, Memorandum and Articles of Association and similar documents that govern the organization of any entity.
" Parties " has the meaning specified in the third preamble to this Agreement.
" Permitted Liens " means (a) Liens for Taxes, assessments or other governmental charges or levies if the same are not at the particular time in question due and delinquent or are being contested in good faith by appropriate proceedings; (b) Liens of carriers, warehousemen, mechanics, laborers, materialmen, landlords, vendors, workmen and operators arising by operation of law in the ordinary course of business or by a written agreement existing as of the date hereof for sums not yet due or being contested in good faith by appropriate proceedings; (c) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation which would not, individually or in the aggregate, result in a Material Adverse Effect on the Company; (d) Liens incurred in the ordinary course of business to secure the performance of bids, tenders, trade contracts, leases, statutory obligations, surety and appeal bonds, performance and repayment bonds and other obligations of a like nature; (e) Liens, easements, rights-of-way, restrictions, servitudes, permits, conditions, covenants, exceptions, reservations and other similar encumbrances incurred in the ordinary course of business or existing on property and not materially impairing the value of the assets of the Company and the Subsidiaries (taken as a whole) or interfering with the ordinary conduct of the Business; and (f) any defects, irregularities or deficiencies in title to real estate interests that are of record and do not materially adversely affect either the operations or the value of the assets of the Company and the Subsidiaries (taken as a whole).
" Person " (whether or not capitalized) means any natural person, corporation, company, limited or general partnership, joint stock company, joint venture, association, limited liability company, trust, bank, trust company, business trust or other entity or organization, whether or not a Governmental Authority.
" Pledge Agreement " has the meaning specified in Section 2.2(b).
" Purchase Price " means the Closing Purchase Price as adjusted pursuant to Section 2.3.
" Purchaser " has the meaning specified in the introductory paragraph of this Agreement.
" Purchaser Claims " has the meaning specified in Section 6.3(b).
" Purchaser Representative " means any director, officer, employee, agent, advisor (including legal, accounting and financial advisors), Affiliate or other representative or agent authorized to act on behalf of Purchaser.
" Reference Banks " means HSBC Plc, Barclays Bank Plc and the Royal Bank of Scotland Plc.
" Reference Rate " means LIBOR.
" Related Persons " (whether or not capitalized) has the meaning specified in Section 6.1.
" Relevant Countries " means the U.S.A., the Cayman Islands, Panama, Nigeria, Ghana, Togo and Benin.
" Resolution Period " has the meaning specified in Section 2.3(b).
" Responsible Officer " means, with respect to either Party, the Chairman, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer or any Vice President of such Party.
" Screen Rate " means the British Bankers’ Association Interest Settlement Rate for U.S. Dollars for the relevant period, displayed on page 3750 of the Telerate screen, or the equivalent page of the Reuters service if the Telerate system is no longer available. If the agreed page is replaced or service ceases to be available, the average of alternative pages or services, one chosen by each Party, displaying the appropriate rate shall apply.
" SEC " means the Securities and Exchange Commission of the United States of America.
" SEC Filings " means Seller’s 2004 Annual Report on Form 10-K and 2005 Annual Report on Form 10-K and Seller’s Quarterly Reports on Form 10-Q for the periods ended March 31, 2006, June 30, 2006, and September 30, 2006, filed with the SEC and available for review on Seller’s website at http://www.willbros.com.
" Seller " has the meaning specified in the introductory paragraph of this Agreement.
" Seller Representative " means any director, officer, employee, agent, advisor (including legal, accounting and financial advisors), Affiliate or other representative or agent authorized to act on behalf of Seller.
" Shares " means 93,771,000 shares of the ordinary share capital, par value U.S.$1.00 per share, of the Company.
" Subsidiaries " means WG Nigeria Equipment Limited, a company organized under the laws of the Cayman Islands (" WGNEL "), Willbros West Africa, Inc., a corporation organized under the laws of the Republic of Panama (" WWAI "), Willbros (Nigeria) Limited, a company organized under the laws of the Federal Republic of Nigeria (" WNL "), and Willbros (Offshore) Nigeria Limited, a company organized under the laws of the Federal Republic of Nigeria (" WONL ").
" Subsidiary " means any of the Subsidiaries, individually.
" Suffix " has the meaning specified in Section 4.3.
" Target Working Capital " means U.S.$53.7 million.
" Tax(es) " means taxes of any kind, levies or other like assessments, customs, duties, tariffs, imposts, charges or fees, including income, gross receipts, ad valorem, value added, excise, real or personal property, asset, sales, use, federal royalty, license, payroll, transaction, capital, net worth and franchise taxes, estimated taxes, withholding, employment, social security, workers compensation, utility, severance, production, unemployment compensation, occupation, premium, windfall profits, transfer and gains taxes or other governmental taxes imposed or payable to any Governmental Authority, and in each instance such term shall include any interest, penalties or additions to tax attributable to any such Tax, including penalties for the failure to file any Tax Return or report.
" Tax Return " means any return, report, declaration, claim for refund, estimate, election, or information statement or bill relating to any non-Nigerian Tax, including any schedule or attachment thereto and any amendment thereof.
" Third-Party Consent " means the consent or approval of any Person other than Seller, the Company, Purchaser or any "Governmental Authority.
" Tominco " means Tominco Investments, Ltd., the Nigerian company that is not an Affiliate of Seller, that is a 40 percent shareholder of two of the Subsidiaries – WNL and WONL – and has the entitlement to appoint two directors to the Board of Directors of each of WNL and WONL, said directors being currently Mr. Peter Thomas and Mr. Jacob Tomisin, the principal shareholders of Tominco.
" Transition Services Agreement " means an agreement to be entered into at the Closing between Purchaser and Seller, substantially in the form set forth as Exhibit B , providing for the provision of services to the Company and the Subsidiaries by Seller and/or one or more of its Affiliates for a transitional period of time.
" UNCITRAL Rules " has the meaning specified in Section 7.10(c).
"U.S.$ " or "U.S. Dollars " refers to lawful currency of the United States of America or an equivalent amount in another currency.
" Working Capital " means Current Assets minus Current Liabilities at any given date.
" Working Capital Statement " means a statement showing Current Assets, Current Liabilities and Working Capital as of the Closing Date.
1.2 Other Definitional Provisions.
PURCHASE AND SALE OF SHARES
2.1 Purchase and Sale. At the Closing, Purchaser shall purchase from Seller, and Seller shall sell to Purchaser, the Shares on the terms and subject to the conditions set forth in this Agreement.
2.2 Closing Purchase Price.
2.3 Adjustment to Purchase Price. The Closing Purchase Price was determined based on the assumption that the Working Capital at the Closing Date will be equal to the Target Working Capital. The Closing Purchase Price is subject to adjustment as follows:
3.1 Closing. The Closing will take place at the offices of Ince & Co., International House, 1 St. Katharine’s Way, London E1W 1UN, United Kingdom, on the date of this Agreement, or at such other time and place as the Parties may mutually agree (the " Closing Date ").
3.2 Closing Obligations. At the Closing:
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Seller. Seller hereby represents and warrants to Purchaser that the following statements are true and correct as of the Closing Date: