Exhibit 10.1
DATED NOVEMBER 18,
2008
F3 CAPITAL
and
VANTAGE DEEPWATER
COMPANY
_________________________________________________
SHARE SALE AND PURCHASE
AGREEMENT
relating to
MANDARIN DRILLING
CORPORATION
_________________________________________________
THIS
AGREEMENT is dated
November 18, 2008
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F3
CAPITAL , a company
organised and existing under the laws of the Cayman Islands having
its registered office at c/o Campbell Corporate Services Limited,
Scotia Centre, PO Box 268, Grand Cayman KY1-1104, Cayman Islands
(the “ Seller ”); and
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VANTAGE
DEEPWATER COMPANY , a
company organised and existing under the laws of the Cayman
Islands, having its registered office at PO Box 309, Ugland House,
Grand Cayman KY1-1104, Cayman Islands (the “ Buyer
”)
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(together the
“ Parties ” and each individually a “
Party ”)
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The Company (as
defined below) entered into a shipbuilding contract dated 13
September 2007 (the “ Shipbuilding Contract ”)
with Daewoo Shipbuilding & Marine Engineering Co., Ltd. (the
“ Builder ”) in respect of the construction of
one (1) drillship having hull number 3601 (the “
Vessel ”);
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By a purchase
agreement dated as of 24 March 2008 (the “ Purchase
Agreement ”) the Company has agreed to sell the Vessel to
Offshore Group Investment Limited (“ OGIL ”), a
company organised and existing under the laws of the Cayman Islands
and an affiliate of the Buyer;
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The Seller and
the Buyer have agreed terms which are set out below for the sale
and purchase of the Sale Shares (as defined below) of the Company
and for the termination of the Purchase Agreement.
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NOW IT IS
HEREBY AGREED AS FOLLOWS:
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In this
Agreement, unless the context otherwise requires:
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“
Closing ” means closing of the sale and purchase of
the Sale Shares in accordance with this agreement and the
satisfaction of all conditions contained herein.
“Closing Date ” means the date of the initial Closing
and each subsequent Closing.
“Company ” means Mandarin Drilling Corporation, a
company organised and existing under the laws of the Marshall
Islands, having its registered office at Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
MH96960.
“Construction Supervision
Agreement ” means
the agreement by and between the Company and the Buyer to perform
construction management services for the Vessel.
“Encumbrance ” means any preemptive right, encumbrance,
lien, including any maritime lien, mortgage, deed of trust, pledge,
assignment, security interest, charge, preference, participation
interest, priority or security agreement.
“ Loan
Agreement ” means the loan agreement between the Seller
and the Buyer whereby the Seller will make available to the Buyer
within ten (10) days after the consummation of this Agreement the
sum of US$20,000,000 on the terms set out in the loan agreement,
including, inter-alia, interest at eight percent (8%) per
annum.
“
Management Agreement ” means the management agreement
by and between the Company and the Buyer for the marketing and
operational management of the Vessel.
“ New
Warrants ” means the warrants to purchase ordinary
shares, par value $.001 per share, of Vantage Drilling Company to
be issued to Seller at Closing substantially in the form attached
as Exhibit A hereto.
“
Option Agreement ” means the option agreement to
purchase one deepwater drillship (hull no. 3602) by and between
Valencia Drilling Corporation and the Buyer.
“
Original Warrants ” means the warrants issued by
Vantage Drilling Company to the Seller on June 12, 2008 evidenced
by the warrant certificate number VTG-WS 0008 at an exercise price
of US$6.00 per share.
“ Sale
Shares ” means an aggregate of 4,500 shares in the name
of the Seller of US$1 par value each in the Company, all of which
have been fully paid.
“
Shareholders’ Agreement ” means the agreement
between the Buyer and the Seller governing their shareholdings in
the Company.
“
Termination Agreement ” means the agreement between
the Company and OGIL to terminate the Purchase Agreement with
immediate effect.
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Clause headings
are inserted for convenience of reference only and shall be ignored
in the interpretation of this Agreement.
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In this
Agreement, unless the context otherwise requires, references to
clauses are to be construed as references to clauses of this
Agreement.
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AGREEMENT TO
SALE AND PURCHASE
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On the terms of
this agreement the Seller agrees to sell and the Buyer agrees to
purchase with effect from Closing all of the Sale Shares with full
title guarantee, free of any Encumbrances and together with all
rights that attach (or may in the future attach) to
them.
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The
consideration for the Sale Shares is as follows:
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the payment of
US$40,000,000, payment of which has already been made by the Buyer
to the Company pursuant to the Purchase Agreement, and receipt of
which is hereby acknowledged;
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the payment of
an aggregate of US$149,750,000 in tranches by or on behalf of the
Buyer to TMT Co. Ltd; and
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the issue of an
aggregate of 1,983,471 New Warrants in tranches to the Seller in
the form attached as Exhibit A hereto.
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Exercise the
Original Warrants to acquire 25,000,000 ordinary shares, par value
$.001 per share, of Vantage Drilling Company, which shall rank pari
passu in all respects with the existing ordinary shares of Vantage
Drilling Company (the “Original Warrant
Shares”).
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Seller shall be
entitled to registration rights for the Original Warrant Shares,
the New Warrants and for the ordinary shares, par value $.001 per
share, of Vantage Drilling Company, underlying the New
Warrants.
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On the initial
Closing Date and each subsequent Closing Date, the following shall
have taken place:
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the Seller
shall deliver to the Buyer:
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4.1.1.1
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an original
certificate for at least 630 of the Sale Shares; and
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4.1.1.2
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a transfer
instrument in respect of such Sale Shares, duly signed for the
Seller in favour of the Buyer;
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the Seller
shall procure that any appropriate resolutions of the Board of
Directors of the Company and/or the shareholders of the Company as
may be necessary to give effect to the provisions of this Agreement
are passed.
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the Buyer shall
deliver to the Seller:
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4.1.3.1
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a warrant
instrument in respect of the New Warrants duly executed by the
Buyer in the form attached at Exhibit A for at least 277,686 New
Warrants; and
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4.1.3.2
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the payment of
at least USD$20,965,000 to TMT Co Ltd. by wire transfer to an
account designated by TMT Co Ltd. at least two business days prior
to such Closing Date.
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the Seller and
the Buyer shall (or shall procure that the relevant parties) enter
into:
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4.1.4.1
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the
Shareholders’ Agreement;
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4.1.4.2
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the Loan
Agreement;
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4.1.4.3
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the Termination
Agreement;
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4.1.4.4
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the Management
Agreement;
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4.1.4.5
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the
Construction Supervision Agreement;
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4.1.4.6
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the Option
Agreement; and
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4.1.4.7
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the
Registration Rights Agreement.
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Buyer shall
procure that any appropriate resolutions of the Board of Directors,
or any committee of the Board of Directors, of the Company as may
be necessary to give effect to the provisions of this Agreement are
passed.
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REPRESENTATIONS AND WARRANTIES
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Each of the
Buyer and the Seller represents to the other that:
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it is duly
incorporated and presently validly existing;
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this Agreement
is duly executed by them and is valid, binding and enforceable
against them.
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The Seller also
represents and warrants to the Buyer that the Company has (a) had
no operations other than those related to the Shipbuilding
Contract, (b) no assets other than the Shipbuilding Contract
pursuant to which the Seller has paid various sums to the Builder
to the date of this Agreement and (c) no liabilities or obligations
other than the Shipbuilding Contract.
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The Seller
represents to the Buyer that the authorized capital of the Company
consists of 10,000 ordinary shares, par value USD $1.00 per share,
of which 10,000 shares are issued. The Seller is and
will be on each Closing Date the owner of record and beneficial
owner and holder of the Sale Shares delivered on such Closing Date,
free and clear of all Encumbrances.
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The Buyer
warrants and represents to the Seller that it has obtained all the
necessary corporate authorisations and has all the necessary powers
and authority to issue the Original Warrant Shares and to enter
into the agreements contemplated hereby and that the issue of the
Original Warrant Shares to the Seller will not breach any terms of
the memorandum and articles of association of Vantage Drilling
Company, the Companies Law of the Cayman Islands or any legislation
or regulations governing the American Stock Exchange.
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All warranties,
conditions and other terms implied by statute or common law are, to
the fullest extent permitted by law, excluded from this
Agreement.
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Seller agrees
to exercise the Original Warrants in full within sixty days from
the date hereof. The Seller agrees further to exercise
the Original Warrants in increments of at least 3,500,000 ordinary
shares (each an “Exercise”).
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Buyer agrees
that within seven business days of receipt of the proceeds from
each Exercise to purchase at least 630 Sale Shares.
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The
Buyer’s obligation to purchase the Sale Shares at each
Closing is subject to the fulfillment of or written waiver by Buyer
prior to such Closing of each of the following
conditions:
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The
representations and warranties of the Seller contained in Section 5
shall be true on and as of each Closing with the same effect as
though such representations and warranties had been made on and as
of the date of such Closing.
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All covenants,
agreements and conditions contained in this Agreement to be
performed by Seller on or prior to such Closing shall have been
performed or complied with in all material respects.
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The Seller
shall have delivered on the Closing a certificate signed by an
officer of the Seller certifying that the conditions specified in
Section 7.1.1 and 7.1.2 have been fulfilled.
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The Buyer shall
have received proceeds from the Seller for the exercise of the
Original Warrants of at least USD $21,000,000.
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The Buyer shall
have received the certificates for such Sale Shares as provided for
under Section 4.1.1.
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The Seller
shall have executed and delivered the agreements set forth in
Section 4.1.4 on the initial Closing Date.
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The
Seller’s obligation to sell the Sale Shares at each Closing
is subject to fulfillment of or written waiver by Seller prior to
such Closing of each of the following conditions:
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The
representations and warranties of the Buyer contained in Section 5
shall be true on and as of each Closing with the same effect as
though such representations and warranties had been made on and as
of the date of such Closing.
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All covenants,
agreements and conditions contained in this Agreement to be
performed by Buyer on or prior to such closing shall have been
performed or complied with in all material respects.
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The Buyer shall
have delivered on the Closing a certificate signed by an officer of
the Buyer certifying that the conditions specified in Section 7.2.1
and 7.2.2 have been fulfilled.
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The Buyer shall
have delivered the purchase price for such Sale Shares as provided
for under Section 4.1.3.
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The Buyer shall
have executed and delivered the agreements set forth in Section
4.1.4 on the Initial Closing Date.
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Each party (for
the purposes of this clause), the “indemnifying Party”
hereby agrees to pay promptly or, as the case may be, hold the
other party (the “indemnified Party,” which expression
shall include, its affiliates, and its or their respective
directors, officers, employees and stockholders), harmless (on a
full indemnity basis) and keep the indemnified Party or indemnified
Parties indemnified against any liability, loss, charge, claim,
demand, action, proceeding, damage, judgment, order or other
sanction, enforcement, penalty, fine, fee, commission, interest,
encumbrance, cost and expense of whatsoever nature which arises or
is suffered or incurred by or imposed on the indemnified Party
(each a “Liability”) that arises from (i) any breach of
any representation or warranty given, made or repeated by an
indemnifying Party or in any certificate or other document given or
issued pursuant hereto, and (ii) any breach of any covenant or
undertaking made or given by an indemnifying Party in this
Agreement. Provided that the indemnifying Party shall
not have any liability under this Clause unless the aggregate
amount of the Liabilities for which the indemnifying Party would be
liable under this Clause is greater than $100,000.
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Following
Closing, the Buyer unconditionally and irrevocably undertakes to
the Seller that:
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It will use its
reasonable endeavours to obtain additional sources of funding for
general corporate and business purposes through either:
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9.1.1.1
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third party
investors; and/or
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9.1.1.2
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existing
shareholders of the Buyer; and/or
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9.1.1.3
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the sale of one
or more of the Buyer’s jack up rigs;
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in order to
promote value in its business and its shares and in order to
maintain the value in the Original Warrant Shares and any other
shares in the capital of the Buyer that have been or will be in the
future issued to the Seller; and
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in the event
that the Buyer wishes to issue any further shares in its capital to
any third party other than pursuant to a registered offering, it
shall give no less than seven days prior written notice to the
Seller stating the number of shares to be issued and the price of
the shares. The Seller shall have the option to
subscribe for, at the price stated in the notice, that proportion
of the shares proposed to be issued which the number of shares held
by the Seller in the capital of the Buyer bears to the total number
of shares in the Buyer in issue at the time the Buyer gives its
notice to the Seller. The Seller may exercise the option
by giving notice to the Buyer, at any time within seven days
following the Buyer’s notice, accompanied by a banker’s
draft made payable to the Buyer in respect of full payment for the
shares to be subscribed for;
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it shall
procure that the directors of the Buyer use their powers under the
Buyer’s memorandum and articles of association to appoint one
(1) representative from the Seller as an additional director of
Vantage Drilling Company with effect as of the initial Closing
Date.
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Any and all
notices to be given under the terms of this Agreement shall be
given in writing and shall be delivered personally or by facsimile
or first class post to the following addresses:
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c/o Campbell
Corporate Services Limited
Vantage
Deepwater Company
c/o Vantage
Drilling Company
777 Post Oak
Blvd., Suite 610
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Notice shall be
effective, in the case of a letter, on delivery, and in the case of
a facsimile, on receipt by the sender of a confirmed transmission
report.
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This Agreement
may be executed in any number of counterparts each of which, when
so executed, shall be deemed to be an original but such
counterparts shall together constitute but one and the same
instrument.
A person who is
not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce or to enjoy the
benefit of any term of this Agreement.
Each Party
shall be responsible for its own fees and expenses in
relat
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