Exhibit 2.1
STOCK PURCHASE AGREEMENT
AMONG
POGO PRODUCING COMPANY
AND
POGO OVERSEAS PRODUCTION B.V.,
AS SELLERS,
AND
PTTEP OFFSHORE INVESTMENT COMPANY
LIMITED,
AND
MITSUI OIL EXPLORATION CO., LTD.
AS PURCHASERS,
AND
PTT EXPLORATION AND PRODUCTION PUBLIC COMPANY
LIMITED,
AS GUARANTOR FOR
PTTEP OFFSHORE INVESTMENT COMPANY
LIMITED
Dated as of June 17, 2005.
TABLE OF CONTENTS
i
ii
iii
Index of Defined
Terms
|
Defined Term
|
Section
|
|
|
|
|
9A Concession
|
1.2(i)
|
|
AAA
|
11.9
|
|
Accounting Principles
|
1.2(a)
|
|
Affiliate
|
1.2(b)
|
|
Agreement
|
Preamble
|
|
Assets
|
1.2(c)
|
|
Balance Sheet Date
|
1.2(d)
|
|
Balance Sheets
|
1.2(e)
|
|
B8/32 Concession
|
1.2(i)
|
|
B8/32 Partners
|
Recitals
|
|
B8/32 Partners Balance Sheet
|
3.4(g)
|
|
B8/32 Partners Interests
|
Recitals
|
|
B8/32 Shareholders Agreement
|
3.4(d)
|
|
Business Day
|
1.2(f)
|
|
Chevron’s Operator Rights
|
1.2(g)
|
|
Claim
|
10.2(b)
|
|
Claim Notice
|
10.2(b)
|
|
Closing
|
7.1
|
|
Closing Date
|
7.1
|
|
Code
|
1.2(h)
|
|
Concession
|
1.2(i)
|
|
Confidentiality Agreement
|
1.2(j)
|
|
Contract Area
|
1.2(k)
|
|
Contracts
|
1.2(c)(ii)
|
|
Damages
|
10.1(d)
|
|
Employees
|
5.10
|
|
Encumbrance
|
1.2(l)
|
|
Environmental Law
|
1.2(m)
|
|
Equipment
|
1.2(c)(iv)
|
|
Escrow Account
|
2.2(b)
|
|
Excluded Records
|
1.2(s)
|
|
Governmental Authority
|
1.2(n)
|
|
Hydrocarbons
|
1.2(c)(ii)
|
|
Indemnified Person
|
10.2(a)
|
|
Indemnifying Person
|
10.2(a)
|
|
Laws
|
1.2(o)
|
|
Material Adverse Effect
|
3.1(d)
|
|
MOECO
|
Preamble
|
|
Operating Agreement
|
1.2(p)
|
|
Party
|
Preamble
|
|
Performance Deposit
|
2.2(a)
|
iv
|
Permitted Encumbrances
|
1.2(q)
|
|
Person
|
1.2(r)
|
|
Pogo
|
Preamble
|
|
Pogo Overseas
|
Preamble
|
|
Post-Effective Time Period
|
8.1(b)
|
|
Pre-Effective Time Period
|
8.1(a)
|
|
PTTEP
|
Preamble
|
|
PTTEP Offshore
|
Preamble
|
|
Purchase Price
|
2.1
|
|
Purchaser(s)
|
Preamble
|
|
Records
|
1.2(s)
|
|
Seller(s)
|
Preamble
|
|
Shares
|
Recitals
|
|
Tantawan Field
|
1.2(t)
|
|
Tax
|
1.2(u)
|
|
Tax Items
|
8.2(a)
|
|
Tax Returns
|
1.2(v)
|
|
Thai Governmental Authority
|
1.2(w)
|
|
Thai Laws
|
1.2(x)
|
|
Thai Permits
|
1.2(y)
|
|
Thai Taxes
|
1.2(z)
|
|
Thaipo
|
Recitals
|
|
Thaipo Balance Sheet
|
3.3(g)
|
List of
Schedules
|
Sellers’ Schedules
|
|
|
|
|
|
Schedule 3.1(c)
|
Persons of Knowledge for Sellers
|
|
Schedule 3.3(a)
|
Nominee Shareholders of Thaipo
|
|
Schedule 3.3(g)
|
Thaipo Balance Sheet
|
|
Schedule 3.3(i)
|
Thaipo Employees
|
|
Schedule 3.4(a)(i)
|
Nominee Shareholders of B8/32
Partners
|
|
Schedule 3.4(a)(ii)
|
B8/32 Partners Agreements
|
|
Schedule 3.4(g)
|
B8/32 Partners Balance Sheet
|
|
Schedule 3.5(b)
|
Taxes and Assessments
|
|
Schedule 3.5(d)
|
Outstanding Capital Commitments
|
|
Schedule 3.5(f)
|
Material Contracts
|
|
Schedule 3.5(g)
|
Payment for Production
|
|
Schedule 3.5(h)
|
Consents, Approvals and Preferential Purchase
Rights
|
|
Schedule 3.5(i)
|
No Material Changes
|
|
Schedule 3.5(k)
|
Liabilities
|
|
Schedule 3.5(l)
|
Insurance
|
|
Schedule 3.5(n)
|
Concession and Operating Agreement
|
|
Schedule 11.6
|
Bonds, Letters of Credit and
Guarantees
|
v
|
Purchasers’ Schedules
|
|
|
|
|
|
Schedule 4.6
|
Consents, Approvals or Waivers
|
|
|
|
|
Other Schedules
|
|
|
|
|
|
Schedule 5.4
|
Interim Operations
|
vi
STOCK PURCHASE
AGREEMENT
This Stock Purchase Agreement (this
“Agreement”), is dated as of June 17, 2005, by and
among Pogo Producing Company, a Delaware corporation
(“Pogo”), Pogo Overseas Production B.V., a company
organized under the laws of the Netherlands (“Pogo
Overseas”) (Pogo and Pogo Overseas are sometimes referred
collectively as the “Sellers” and individually as a
“Seller”), and PTTEP Offshore Investment Company
Limited, a company organized under the laws of the Cayman Islands
(“PTTEP Offshore”), and Mitsui Oil Exploration Co.,
Ltd, a company organized under the laws of Japan
(“MOECO”) (PTTEP Offshore and MOECO are sometimes
referred to collectively as the “Purchasers” and
individually as a “Purchaser”), and PTT Exploration and
Production Public Company Limited, a company organized under the
laws of Thailand (“PTTEP”), as guarantor for PTTEP
Offshore. Sellers and Purchasers are sometimes referred to
collectively as the “Parties” and individually as a
“Party”.
RECITALS:
Pogo Overseas, a wholly-owned
subsidiary of Pogo, owns or controls all of the issued and
outstanding shares (the “Shares”) of Thaipo Limited, a
limited company organized under the laws of the Kingdom of Thailand
(“Thaipo”);
Pogo owns or controls 50,976 shares
(the “B8/32 Partners Interests”) of B8/32 Partners
Limited, a limited company organized under the laws of the Kingdom
of Thailand (“B8/32 Partners”) representing 46.34% of
all of issued and outstanding share of B8/32 Partners;
Thaipo and B8/32 Partners own
various oil and gas and related interests in Block 9A and Block
B8/32, offshore Thailand; and
Sellers desire to sell and
Purchasers desire to purchase all of the Shares of Thaipo and the
B8/32 Partners Interests owned/or controlled by Sellers.
NOW, THEREFORE, in consideration of
the premises and of the mutual promises, representations,
warranties, covenants, conditions and agreements contained herein,
and for other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties agree as
follows:
ARTICLE 1. PURCHASE AND SALE
Section
1.1
Purchase and Sale . On the terms and conditions contained in
this Agreement, Sellers agree to sell to Purchasers and Purchasers
agree to purchase, accept and pay for the Shares and the B8/32
Partners Interests.
Section
1.2
Certain Definitions . As used herein:
(a)
“Accounting Principles” means the United States of
America generally accepted accounting principles as published by
the Financial Accounting Standards Board from time to
time.
1
(b)
“Affiliate” means: 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 ownership of voting
shares or other securities, pursuant to a written agreement, or
otherwise and in respect of MOECO, “Affiliate” shall
include Mitsui & Co., Ltd.
(c)
“Assets” means, collectively,:
(i)
all of Thaipo’s undivided 46.34147% interest, right and title
in the 9A Concession and all of Thaipo’s undivided 46.34147%
interest, right and title in the B8/32 Concession within the
Tantawan Field and all of Thaipo’s undivided 31.66667%
interest, right and title in the B8/32 Concession outside the
Tantawan Field and all of B8/32 Partners’ (to the extent
attributable to the B8/32 Partners Interests) undivided 31.66667%
interest, right and title in the B8/32 Concession outside the
Tantawan Field;
(ii)
all of Thaipo’s right, title and interest, and B8/32
Partners’ (to the extent attributable to the B8/32 Partners
Interests) right, title and interest in and to all presently
existing contracts, agreements and instruments to the extent
applicable to and used or held for use in connection with
Thaipo’s or B8/32 Partners’ interests in the
Concession, including without limitation operating agreements,
unitization, pooling and communitization agreements, joint venture
agreements, farmin and farmout agreements, costs sharing
agreements, areas of mutual interest agreements, abandonment
agreements, allocation agreements, exchange agreements,
transportation agreements, processing agreements, agreements for
the sale and purchase and/or marketing of oil, gas and/or other
liquid or gaseous hydrocarbons or any combination thereof
(“Hydrocarbons”), all of which are hereinafter
collectively referred to as “Contracts”;
(iii)
all of Thaipo’s right, title and interest, and B8/32
Partners’ (to the extent attributable to the B8/32 Partners
Interests) right, title and interest in and to all Thai Permits,
easements, permits, licenses, servitudes, rights-of-way, surface
leases and other rights appurtenant to, and used or held for use
solely in connection with, the use, ownership, operation or
maintenance of the Concession or other assets;
(iv)
all of Thaipo’s right, title and interest, and B8/32
Partners’ (to the extent attributable to the B8/32 Partners
Interests) right, title and interest in and to all equipment,
machinery, fixtures and other tangible personal property and
improvements located on the Contract Area or used or held for use
solely in connection with the use, ownership, operation or
maintenance of the Concession or other assets (the
“Equipment”);
(v)
all of Thaipo’s right, title and interest, and B8/32
Partners’ (to the extent attributable to the B8/32 Partners
Interests) right, title and interest in and to all vehicles and
vessels, and leases or charters of vehicles and vessels,
specifically used or held for use in connection with the use,
ownership, operation or maintenance of the Concession or other
assets;
2
(vi)
all of Thaipo’s right, title and interest, and B8/32
Partners’ (to the extent attributable to the B8/32 Partners
Interests) right, title and interest in and to all rights, claims
and causes of action, and all prepaid expenses, attributable to or
arising out of the Concession or other assets or the business of
Thaipo or B8/32 Partners;
(vii)
all of Thaipo’s right, title and interest, and B8/32
Partners’ (to the extent attributable to the B8/32 Partners
Interests) right, title and interest in and to all historic
expenditures with respect to the Concession or other assets
available to offset revenues for purposes of Thai Taxes and the
Thai Returns; and
(viii)
all of Thaipo’s right, title and interest, and B8/32
Partners’ (to the extent attributable to the B8/32 Partners
Interests) right, title and interest in and to all
Records.
(d)
“Balance Sheet Date” means April 30, 2005.
(e)
“Balance Sheets” means collectively the Thaipo Balance
Sheet and the B8/32 Partners Balance Sheet.
(f)
“Business Day” means any day other than a Saturday, a
Sunday, or a day on which banks are closed for business in Houston,
Texas, United States of America, the Kingdom of Thailand and
Japan.
(g)
“Chevron’s Operator Rights” means the rights,
obligations and authority of Chevron Offshore (Thailand) Limited as
Operator of the Assets under the Operating Agreement, including,
without limitation, Chevron Offshore (Thailand) Limited’s
right, obligation and authority to take action and make decisions
as Operator as to operations and other matters pertaining to the
Assets without the consent of, or notice or prior disclosure to,
the non-operator parties under the Operating Agreement.
(h)
“Code” means the Internal Revenue Code of 1986, as
amended.
(i)
“Concession” means, collectively, Petroleum Concession
No. 1/2534/36 covering Block B8/32 in the gulf of
Thailand (the “B8/32 Concession”), and those portions
of Petroleum Concession No. 4/2515/8 covering Block 9A in
the gulf of Thailand (the “9A Concession”), together in
each case with any production and, or any exploration licenses and
authorizations issued in connection therewith, each as amended,
modified, supplemented or extended by the relevant authorities
and/or ministers of the Kingdom of Thailand from time to
time.
(j)
“Confidentiality Agreements” means certain
confidentiality and standstill agreements both dated 8 March 2005
and entered into between Pogo and PTTEP and between Pogo and MOECO
(and as supplemented).
(k)
“Contract Area” means the area subject to the
Concession, as such area may be amended or relinquished from time
to time.
3
(l)
“Encumbrance” means any lien, charge, claim,
encumbrance, obligation, security interest, option or restriction
of any kind.
(m)
“Environmental Laws” means all applicable Laws
(including, without limitation, relevant international treaties and
conventions in effect in any applicable jurisdictions) relating to
(a) harm or damage to or protection of air (including, without
limitation, the air within buildings and the air within any other
natural or man-made structures above or below ground or above or
below water), water (including, without limitation, seawater inside
or outside any territorial limits, freshwater and water under or
within land or in pipes or sewerage systems), soil and land
(including, without limitation, the seabed and land under water)
and any ecological systems and living organisms supported by those
media including man, (b) the protection of natural, cultural or
biological resources, or (c) the generation, storage,
transportation, release or disposal of any pollutants contaminants,
waste, or other discharged natural or artificial substances
(whether or not toxic) whether in the form of a solid, liquid, gas
or vapor, and whether alone or in combination).
(n)
“Governmental Authority” means any government and/or
any political subdivision thereof, including, without limitation,
departments, courts, commissions, boards, bureaus, ministries,
agencies or other instrumentalities.
(o)
“Laws” means all laws, statutes, common law, rules,
regulations, ordinances, orders, awards, directives, subordinate
legislations, decrees, requirements, judgments and codes of
Governmental Authorities and codes of practice and industry
agreements which have the force of law.
(p)
“Operating Agreement” means that certain Third Amended
and Restated Operating Agreement, dated effective April 1, 2004, by
and among Thaipo, B8/32 Partners, Chevron Offshore (Thailand)
Limited, Palang Sophon Limited, and Palang Sophon Two Limited, as
may be amended or supplemented from time to time.
(q)
“Permitted Encumbrances” shall mean:
(i)
The terms and conditions of the Concession;
(ii)
The terms and conditions of the Contracts set forth on
Schedule 3.5(f);
(iii)
Statutory liens for Thai Taxes that have been expressly stated as
accrued liabilities of Thaipo or B8/32 Partners on the Balance
Sheets;
(iv)
Materialman’s, mechanic’s, contractor’s or other
similar liens or charges for amounts arising in the ordinary course
of business under applicable Law for amounts not yet delinquent;
and
(v)
Rights reserved to or vested in any Thai Governmental Authority to
control or regulate any of the Assets in any manner under all
applicable Thai Laws.
4
(r)
“Person” means any individual, corporation,
partnership, limited liability company, trust, estate, Governmental
Authority or any other entity.
(s)
“Records” means all books, records, data, files, maps
and accounting records (including, without limitation,
geoscientific, seismic and engineering data and logs) related to
the Concession or other Assets or used or held for use in
connection with the use, ownership, operation or maintenance
thereof, or which otherwise relate to Thaipo or B8/32 Partners or
their respective businesses, but excluding (i) corporate,
financial and Tax records of Thaipo’s or B8/32
Partners’ Affiliates that relate to such Affiliates’
business generally, even if they contain incidental references to
Thaipo or B8/32 Partners or their respective businesses,
(ii) any computer software that is proprietary to any
Affiliate of Thaipo or B8/32 Partners, (iii) work product of
legal counsel for Thaipo, B8/32 Partners or any Affiliate of either
with respect to matters for which Sellers retain full
responsibility under Article 10; and (iv) records
relating to the sale of the Shares, the B8/32 Partners Interests or
the Assets, including, without limitation, any bids received from
and records of negotiations with third Persons (the “Excluded
Records”).
(t)
“Tantawan Field” means that part of the Contract Area
(i) designated as a production area pursuant to the letter dated 23
August 1995 (Ref OrKor 0306/10332) from the Department of Mineral
Resources and (ii) governed by Supplementary Petroleum Concession
No.10 to Petroleum Concession No.4/2515/8 covering the 9A
Concession that was awarded by the Ministry of Energy on 17 July
2003.
(u)
“Tax” means all taxes, including, without limitation,
income 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-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.
(v)
“Tax Returns” means all returns, reports, declarations,
claims for refund, statements, forms or other filings with respect
to Taxes, including, without limitation, any schedules, attachments
or amendments thereto.
(w)
“Thai Governmental Authority” means any Governmental
Authority in or of the Kingdom of Thailand.
(x)
“Thai Laws” means any Laws of Thai Governmental
Authorities, including, without limitation, relevant international
treaties and conventions in effect in or offshore of
Thailand.
5
(y)
“Thai Permits” means all permits, licenses, variances,
approvals and other authorizations of Thai Governmental Authorities
required to use, own, operate or maintain the Assets.
(z)
“Thai Taxes” mean all Taxes imposed by any Thai
Governmental Authority.
ARTICLE 2. PURCHASE PRICE
Section 2.1
Purchase Price . The purchase price to be paid
by Purchasers in consideration for the sale and transfer of the
Shares and the B8/32 Partners Interests (the “Purchase
Price”) shall be US$820,000,000.00, less that part of the
Performance Deposit in the Escrow Account, plus any interest earned
thereon, set forth in Section 2.2.
Section
2.2
Performance Deposit
(a)
In accordance with the terms and conditions of Section 2.2(b),
Purchasers shall be required to pay or otherwise provide for a
performance deposit in an amount equal to four percent (4%) of the
Purchase Price, being US$32,800,000.00 (the “Performance
Deposit”).
(b)
Simultaneously with the execution hereof, each Purchaser has either
(i) deposited its proportionate share of the Performance Deposit
into an escrow account (the “Escrow Account”) with the
Bank of New York, N.A. acting as escrow agent on terms and
conditions mutually satisfactory to the relevant Parties, or (ii)
delivered to Sellers a standby letter of credit with a financial
institution reasonably acceptable to Sellers on terms and
conditions mutually satisfactory to the relevant Parties
representing its proportionate share of the Performance
Deposit.
(c)
The fees of any escrow agent will be borne as to 50% by the Sellers
and as to 50% by the Purchasers.
(d)
The rights to draw upon by the Sellers and return to the Purchasers
of the Performance Deposit shall be as set out in this
Agreement.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
OF SELLERS
Section
3.1
Disclaimers .
(a)
Except as and to the extent expressly set forth in this Article 3
or in the certificates of Sellers to be delivered pursuant to
Section 7.2(d), (i) Sellers make no representations or
warranties, express or implied, and (ii) Sellers expressly
disclaim all liability and responsibility for any representation,
warranty, statement or information made or communicated (orally or
in writing) to Purchasers or any of their Affiliates, employees,
agents, consultants or representatives (including, without
limitation, any opinion, information, projection or advice that may
have been provided to Purchasers by any officer, director,
employee, agent, consultant, representative or advisor of Sellers
or any of their Affiliates).
6
(b)
EXCEPT AS EXPRESSLY REPRESENTED OTHERWISE IN THIS ARTICLE 3 OR IN
THE CERTIFICATES OF SELLERS TO BE DELIVERED AT CLOSING PURSUANT TO
SECTION 7.2(d), WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
SELLERS EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, AS TO (I) TITLE TO ANY OF THE ASSETS,
(II) THE CONTENTS, CHARACTER OR NATURE OF ANY DESCRIPTIVE
MEMORANDUM, OR ANY REPORT OF ANY PETROLEUM ENGINEERING CONSULTANT,
OR ANY GEOLOGICAL OR SEISMIC DATA OR INTERPRETATION, RELATING TO
THE ASSETS, (III) THE QUANTITY, QUALITY OR RECOVERABILITY OF
PETROLEUM SUBSTANCES IN OR FROM THE ASSETS, (IV) ANY ESTIMATES
OF THE VALUE OF THE ASSETS OR FUTURE REVENUES GENERATED BY THE
ASSETS, (V) THE PRODUCTION OF PETROLEUM SUBSTANCES FROM THE
ASSETS, OR WHETHER PRODUCTION HAS BEEN CONTINUOUS, OR IN PAYING
QUANTITIES, (VI) THE MAINTENANCE, REPAIR, CONDITION, QUALITY,
SUITABILITY, DESIGN OR MARKETABILITY OF THE ASSETS, OR
(VII) ANY OTHER MATERIALS OR INFORMATION THAT MAY HAVE BEEN
MADE AVAILABLE OR COMMUNICATED TO PURCHASERS OR THEIR AFFILIATES OR
THEIR EMPLOYEES, AGENTS, CONSULTANTS, REPRESENTATIVES OR ADVISORS
IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
OR ANY DISCUSSION OR PRESENTATION RELATING THERETO, AND EXCEPT AS
AFORESAID FURTHER DISCLAIM ANY REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OF ANY EQUIPMENT, IT
BEING EXPRESSLY UNDERSTOOD AND AGREED BY THE PARTIES HERETO THAT
PURCHASERS HAVE MADE, CAUSED TO BE MADE OR SHALL CAUSE TO BE MADE
SUCH INSPECTIONS AS PURCHASERS DEEM APPROPRIATE.
(c)
Any representation “to the knowledge of the Sellers” or
“to each Seller’s knowledge” or any variant
thereof is limited to matters within the actual conscious awareness
of the officers, directors and management personnel of Sellers
whose names are set forth in Schedule 3.1(c), subject to such
officer, director or management personnel seeking in good faith to
exercise contractual rights, comply with all applicable Laws and
practices and exercise that degree of skill and diligence which
would reasonably and ordinarily be expected from a skilled and
experienced person engaged in owning the Shares and the B8/32
Partners Interests as an investor with the expertise and knowledge
of the Sellers in the oil and gas industry in the same type of
undertaking and under the same or similar circumstances and
conditions.
(d)
Inclusion of a matter on a schedule attached hereto with respect to
a representation or warranty that addresses matters having a
Material Adverse Effect shall not be deemed an indication that such
matter does, or may, have a Material Adverse Effect. Matters
may be disclosed on a schedule for purposes of information
only. As used herein, “Material Adverse Effect”
means a material adverse effect on the ownership, operation or
value of Thaipo or B8/32 Partners (to the extent attributable to
the B8/32 Partners Interests) or the Assets taken as a whole,
provided, however, that “Material Adverse Effect” shall
disregard effects resulting from general changes in Hydrocarbon
prices; general changes in industry, capital markets, economic,
regulatory or political conditions; general changes resulting from
civil unrest, natural disasters (subject to Section 7.4),
insurrection or similar disorders; or changes in Laws.
7
(e)
The Purchasers have entered into this Agreement in reliance on the
representations and warranties made by the Sellers as set out in
this Agreement, subject to the limitations and qualifications
contained therein.
Section
3.2
Sellers .
Subject to Section 3.1, and the other terms and conditions of this
Agreement, the Sellers jointly and severally represent and warrant
to each of the Purchasers the following:
(a)
Existence and Qualification . Each Seller is a company
duly organized and validly existing under the laws of the
jurisdiction of its incorporation or organization and is duly
qualified to do business as a foreign company in each jurisdiction
in which it is required to qualify in order to conduct its
business, except where the failure to so qualify would not,
individually or in the aggregate, have a Material Adverse
Effect.
(b)
Power . Each Seller has the corporate power to enter
into and perform this Agreement (and all documents required to be
executed and delivered by each Seller at Closing) and to consummate
the transactions contemplated by this Agreement (and such
documents).
(c)
Authorization and Enforceability . The execution,
delivery and performance of this Agreement (and all documents
required to be executed and delivered by each Seller at Closing),
and the consummation of the transactions contemplated hereby and
thereby, have been duly and validly authorized by all necessary
corporate action on the part of each Seller. This Agreement
has been duly executed and delivered by each Seller (and all
documents required to be executed and delivered by the Sellers at
Closing shall be duly executed and delivered by each Seller) and
this Agreement constitutes, and at the Closing such documents shall
constitute, valid and binding obligations of the Sellers,
enforceable in accordance with their terms except as such
enforceability may be limited by applicable bankruptcy or other
similar Laws affecting the rights and remedies of creditors
generally as well as to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law).
(d)
No Conflicts . The execution, delivery and performance
of this Agreement by the Sellers, and the consummation by the
Sellers of the transactions contemplated by this Agreement shall
not (i) violate any provision of the organizational or
formation documents of each Seller, (ii) result in default
(with due notice or lapse of time or both) or the creation of any
Encumbrance or give rise to any right of termination, cancellation
or acceleration under any material note, bond, mortgage, indenture,
license or agreement to which each Seller is a party or by which it
is bound, (iii) violate any judgment, order, ruling, or decree
applicable to each Seller as a party in interest or
(iv) violate any Laws applicable to each Seller, except any
matters described in clauses (ii), (iii), or (iv) above which would
not have a Material Adverse Effect.
Section
3.3
Thaipo .
Subject to Section 3.1, and the other terms and conditions of this
Agreement, the Sellers jointly and severally represent and warrant
to each of the Purchasers the following:
(a)
Title to Shares . Pogo Overseas has good and valid
title to the Shares, and is the sole beneficial owner of all of the
Shares, including those held by individual nominees on
8
behalf of Pogo Overseas,
which are set forth in Schedule 3.3(a), free and clear of any
Encumbrances, except for Permitted Encumbrances. The Shares
are not subject to any voting agreement or other contract,
agreement, arrangement, commitment or understanding, including,
without limitation, any such agreement, arrangement, commitment or
understanding restricting or otherwise relating to the voting,
dividend rights or disposition of the Shares.
(b)
Existence and Qualification . Thaipo is a limited
company duly organized and validly existing under the Laws of the
Kingdom of Thailand and is duly qualified to do business in each
jurisdiction where it does business, except where the failure to so
qualify would not, individually or in the aggregate, have a
Material Adverse Effect.
(c)
Power . Thaipo has the corporate power and authority
to own, lease or otherwise hold the Assets owned by Thaipo and
conduct its business in the manner presently conducted.
(d)
No Conflicts . The consummation by the Sellers of
transactions contemplated by this Agreement shall not
(i) violate any provision of the organizational or formation
documents of Thaipo, (ii) result in default (with due notice
or lapse of time or both) or the creation of any Encumbrance or
give rise to any right of termination, cancellation or acceleration
under any material note, bond, mortgage, indenture, license or
agreement to which Thaipo is a party or by which it is bound,
(iii) violate any judgment, order, ruling, or decree
applicable to Thaipo as a party in interest, or (iv) violate
any Laws applicable to Thaipo, except any matters described in
clauses (ii), (iii), or (iv) above which would not have a Material
Adverse Effect.
(e)
Organizational Documents . Pogo Overseas has delivered
to Purchasers true and complete copies of the organizational and
formation documents, as amended to the Closing Date, of
Thaipo. The share certificates and transfer books, and the
minute books of Thaipo (which have been made available for
inspection by Purchasers prior to the date hereof) are true,
complete and current in all material respects.
(f)
The Shares . The entire authorized capital stock of
Thaipo is the Shares, consisting of 1,000,000 shares of common
stock, par value 100 Thai Baht, and all the Shares are duly
authorized and validly issued and outstanding, fully paid,
non-assessable and not issued in violation of any preemptive
rights. Except for the Shares, there are no outstanding shares of
capital stock or other equity securities of Thaipo, or any
contractual arrangements giving any Person a right to receive any
benefits or rights similar to the rights enjoyed by or accruing to
the holders of the Shares. Other than this Agreement, there
are no outstanding warrants, options, rights, convertible or
exchangeable securities or other commitments pursuant to which Pogo
Overseas or Thaipo is or may become obligated to issue or sell any
shares of capital stock or other equity securities of
Thaipo.
(g)
Balance Sheet . The unaudited balance sheet of Thaipo
as of the Balance Sheet Date attached hereto as Schedule 3.3(g)
(the “Thaipo Balance Sheet”) has been prepared from the
books and records of Thaipo in conformity with the accounting
policies and practices adopted by Thaipo in the preparation of
Thaipo’s 2004 year-end unaudited balance sheet, both
as
9
prepared in accordance with
the Accounting Principles, and truly and fairly presents in all
material respects the financial position of Thaipo as of the date
thereof.
(h)
Subsidiaries . Thaipo does not directly or indirectly
own or hold any capital stock or other equity interest in any
Person.
(i)
Employees . Schedule 3.3(i) sets forth a list of
(i) all employees of Thaipo as of the date hereof, and
(ii) all material terms of the employment agreements,
collective bargaining agreements, labor awards and employee benefit
plans, whether or not in writing, applicable to such employees as
of the date hereof. Thaipo has delivered to Purchasers true
and complete copies of any written agreements, awards and plans set
forth on such schedule. Except as set forth in Schedule
3.3(i), there are no other material terms and conditions of
employment, whether or not in writing, binding on Thaipo with
respect to the employees of Thaipo.
(j)
No Winding Up .
(i)
Thaipo is not unable to pay its debts nor is bankrupt and has not
stopped paying its debts as and when they fall due.
(ii)
No order has been made and no resolution has been passed for the
winding up of Thaipo or for a provisional liquidator to be
appointed in respect of it and no petition has been presented and
no meeting has been convened for the purposes of winding up
Thaipo.
(iii)
No administration order has been made and no petition for such an
order has been presented in respect of Thaipo.
(iv)
No receiver or administrative receiver has been appointed in
respect of Thaipo.
(v)
No event analogous to any of the events specified in Section
3.3(j)(i) to (iv) (inclusive) has occurred in respect of
Thaipo.
Section
3.4 B8/32
Partners .
Subject to Section 3.1, and the other terms and conditions of this
Agreement, the Sellers jointly and severally represent and warrant
to each of the Purchasers the following:
(a)
Title to B8/32 Partners Interests . Pogo has good and
valid title to the B8/32 Partners Interests, and is the sole
beneficial owner of all of the B8/32 Partners Interests, including
those held by individual nominees on behalf of Pogo Overseas, which
are set forth in Schedule 3.4(a)(i), free and clear of any
Encumbrances, except for Permitted Encumbrances. Other than
as set forth in Schedule 3.4(a)(ii), the B8/32 Partners Interests
are not subject to any voting agreement or other contract,
agreement, arrangement, commitment or understanding, including,
without limitation, any such agreement, arrangement, commitment or
understanding restricting or otherwise relating to the voting,
dividend rights or disposition of the B8/32 Partners
Interests.
10
(b)
Existence and Qualification . B8/32 Partners is a
limited company duly organized and validly existing under the Laws
of the Kingdom of Thailand and is duly qualified to do business in
each jurisdiction where it does business, except where the failure
to so qualify would not, individually or in the aggregate, have a
Material Adverse Effect.
(c)
Power . B8/32 Partners has the corporate power and
authority to own, lease or otherwise hold the Assets owned by B8/32
Partners and conduct its business in the manner presently
conducted.
(d)
No Conflicts . The consummation by the Sellers of
transactions contemplated by this Agreement shall not
(i) violate any provision of the shareholders agreement dated
17 February 1999 for B8/32 Partners (the “B8/32 Shareholders
Agreement”) or other organizational or formation documents of
B8/32 Partners, (ii) result in default (with due notice or
lapse of time or both) or the creation of any Encumbrance or give
rise to any right of termination, cancellation or acceleration
under any material note, bond, mortgage, indenture, license or
agreement to which B8/32 Partners is a party or by which it is
bound, (iii) violate any judgment, order, ruling, or decree
applicable to B8/32 Partners as a party in interest, or
(iv) violate any Laws applicable to B8/32 Partners, except any
matters described in clauses (ii), (iii), or (iv) above which would
not have a Material Adverse Effect.
(e)
Organizational Documents . Pogo has delivered to
Purchasers true and complete copies of the B8/32 Shareholders
Agreement and other organizational and formation documents, as
amended to the Closing Date, of B8/32 Partners. The share
certificates and transfer books, and the minute books of B8/32
Partners (which have been made available for inspection by
Purchasers prior to the date hereof) are true, complete and current
in all material respects.
(f)
The B8/32 Partners Interests . The entire authorized
capital stock of B8/32 Partners consists of 110,000 shares of
common stock, par value 1000 Thai Baht, of which Pogo owns 50,976
shares representing 46.34% of all outstanding shares and, to the
knowledge of Sellers, Chevron Thailand, Inc owns 50,976 shares
representing 46.34% of all outstanding shares and Palang Sophon
Limited owns 8,048 shares representing 7.32% of all outstanding
shares. The B8/32 Partners Interests are duly authorized and
validly issued and outstanding, fully paid, non-assessable and not
issued in violation of any preemptive rights. Other than as
set forth in this Agreement, there are no outstanding warrants,
options, rights, convertible or exchangeable securities or other
commitments pursuant to which Pogo or B8/32 Partners is or may
become obligated to issue or sell any shares of capital stock or
other equity securities of B8/32 Partners.
(g)
Balance Sheet . The unaudited balance sheet of B8/32
Partners as of the Balance Sheet Date attached hereto as Schedule
3.4(g) (the “B8/32 Partners Balance Sheet”) has been
prepared from the books and records of B8/32 Partners in conformity
with the accounting policies and practices adopted by B8/32
Partners in the preparation of B8/32 Partners’ 2004 year-end
unaudited balance sheet, both as prepared in accordance with the
Accounting Principles, and truly and fairly presents the financial
position of B8/32 Partners (to the extent attributable to the B8/32
Partners Interests) as of the date thereof.
11
(h)
Subsidiaries . B8/32 Partners does not directly or
indirectly own or hold any capital stock or other equity interest
in any Person.
(i)
Employees . B8/32 Partners has no
employees.
(j)
No Winding Up . To the knowledge of
Sellers,
(i)
B8/32 Partners is not unable to pay its debts nor is bankrupt and
has not stopped paying its debts as and when they fall
due;
(ii)
No order has been made and no resolution has been passed for the
winding up of B8/32 Partners or for a provisional liquidator to be
appointed in respect of it and no petition has been presented and
no meeting has been convened for the purposes of winding up B8/32
Partners;
(iii)
No administration order has been made and no petition for such an
order has been presented in respect of B8/32 Partners;
(iv)
No receiver or administrative receiver has been appointed in
respect of B8/32 Partners; and
(v)
No event analogous to any of the events specified in Section
3.4(j)(i) to (iv) (inclusive) has occurred in respect of B8/32
Partners.
Section
3.5 Other
Representations . Subject to Section 3.1 and the other
terms and conditions of this Agreement, Sellers, jointly and
severally, represent and warrant to each of the Purchasers the
following:
(a)
Litigation . There are no claims, actions, suits or
proceedings pending, or to the knowledge of Sellers, threatened,
before any Governmental Authority, or arbitrator, and, to the
knowledge of Sellers, there are no other claims (irrespective of
whether proceedings have been commenced), (i) with respect to
Thaipo, B8/32 Partners, the Assets or the employees of Thaipo, or
(ii) which would effect Sellers’ ability to consummate the
transactions contemplated by this Agreement.
(b)
Taxes and Assessments .
(i)
Except as disclosed on Schedule 3.5(b), Thaipo and B8/32 Partners
have filed all Tax Returns required to be filed by Thaipo or B8/32
Partners within the requisite periods. Except as disclosed on
Schedule 3.5(b), Thaipo and B8/32 Partners have paid all Taxes
shown on such Tax Returns. Except as disclosed on Schedule
3.5(b), neither Thaipo nor, to the knowledge of Sellers, B8/32
Partners have written notice of any pending claim or of potential
investigation or audit against Thaipo or B8/32 Partners from any
applicable taxing authority for assessment of Taxes with respect to
the Assets. Except as disclosed on Schedule 3.5(b), neither
Thaipo nor, to the knowledge of Sellers, B8/32 Partners is involved
in any current dispute with any tax authority and, to the knowledge
of Sellers, there are no circumstances which are likely to give
rise to a dispute with such authority.
12
(ii)
To the knowledge of Sellers, no other person has failed to pay Tax
that is due and payable in any existing circumstances such that
Thaipo and, or B8/32 Partners may become liable or assessable
(whether as agent or otherwise) for any payment of such Tax which
remains outstanding and the primary liability for which falls upon
any other person.
(c)
Environmental Laws . Thaipo and, to the knowledge of
Sellers, B8/32 Partners have complied with, and, to the knowledge
of Sellers, the operation of the Concession has been in compliance
with, all applicable Environmental Laws, and to Sellers’
knowledge, no event or incident has occurred in respect of the
Contract Area which has given rise to any claim, cost, liability or
obligation under applicable Environmental Law. To Sellers’
knowledge, there has been no pollution or contamination of the
natural and man-made environment and all or any of the following
media namely air (including, without limitation, air within
buildings and air within other natural or man-made structures above
or below ground), water (including, without limitation, seawater
inside or outside the territorial limits, water under or within
land or in drains or sewers and inland waters), land (including,
without limitation, the seabed and land under water) and any living
organisms or systems supported by those media (including humans) in
the Contract Area resulting from activities under the Concession
which requires remediation under applicable Environmental
Laws.
(d)
Outstanding Capital Commitments . Except as provided
in the current approved work program and budget under the Operating
Agreement, or as otherwise disclosed on Schedule 3.5(d), as of the
date hereof, there are no outstanding authorizations for
expenditures or other binding commitments to make capital
expenditures which are binding on Thaipo and, or B8/32 Partners and
which the Sellers reasonably anticipate will individually require
expenditures by any of Thaipo or B8/32 Partners (to the extent
attributable to the B8/32 Partners Interest) within the first three
(3) months after the date hereof in excess of
US$300,000.
(e)
Compliance with Laws . Except with respect to the
Environmental Laws, which are addressed in Section 3.5(c), to such
Seller’s knowledge, Thaipo and B8/32 Partners have complied
with, and the Concession has been operated and maintained in
compliance with, all applicable Thai Laws.
(f)
Contracts . All material Contracts to which either
Thaipo or B8/32 Partners is a party or by which Thaipo or B8/32
Partners or the Assets are bound are set forth on
Schedule 3.5(f). Sellers have provided Purchasers with
complete and correct copies of all such Contracts, including all
amendments thereto. All material Contracts to which either
Thaipo or B8/32 Partners is a party (as agent or principal) are
valid and binding and currently in force. To the knowledge of
Sellers, all material Contracts by which Thaipo or B8/32 Partners
or the Assets are bound are valid and binding and currently in
force. Neither Thaipo, nor to the knowledge of Sellers, B8/32
Partners or any other Person, is in default under any such Contract
referred to in the two (2) preceding sentences, except as disclosed
on Schedule 3.5(f). Except as disclosed on Schedule 3.5(f),
there are no Contracts with Affiliates of Sellers nor, to the
knowledge of Sellers, Contracts which have been entered into
outside the ordinary course of business or not on arm’s
length terms that will be binding on Thaipo, B8/32 Partners or the
Assets after Closing. Neither Thaipo nor B8/32 Partners is
under any legally binding obligation to enter into any further
material agreement in relation to the Concession.
13
(g)
Payments for Production . Neither Thaipo nor B8/32
Partners is obligated by virtue of an advance payment, overriding
royalty interests, royalties, deferred payments, carried interests,
production payments, or other similar payment (other than
royalties, overriding royalties and similar arrangements
established in the Concession or under applicable law or as
reflected on Schedule 3.5(g)), to deliver Hydrocarbons, or proceeds
from the sale thereof, attributable to Thaipo’s or B8/32
Partners’ interests in the Concession at some future time
without receiving payment therefor at or after the time of
delivery.
(h)
Consents, Approvals and Preferential Purchase Rights .
Except as set forth in Schedule 3.5(h), there are no preferential
rights to purchase the Shares, the B8/32 Partners Interests or any
of the Assets held by third Persons which would become exercisable,
nor are there any material approvals or consents necessary to be
obtained from third Persons (including any Governmental Authority),
in each case as a result of the execution of this Agreement or the
consummation of the transactions contemplated by this
Agreement.
(i)
Absence of Certain Changes . Except as set forth on
Schedule 3.5(i), since the Balance Sheet Date, Thaipo and, to the
knowledge of Sellers, B8/32 Partners have conducted their
respective businesses and, to the knowledge of Sellers, the Assets
have been operated in the ordinary course of business consistent
with past practices, no dividend or other distribution has been
declared paid or made by Thaipo or B8/32 Partners, and no
resolution of the members of Thaipo or B8/32 Partners has been
passed in general meeting.
(j)
Title to Assets . To the knowledge of Sellers (except
as to the Concession for which this representation is made by
Sellers with no qualification as to knowledge), Thaipo and B8/32
Partners have good title to the Assets, free and clear of all
Encumbrances, except for Permitted Encumbrances.
(k)
No Undisclosed Liabilities . Neither Thaipo nor, to
the knowledge of Sellers, B8/32 Partners has any debts, liabilities
or obligations, whether accrued, fixed, absolute or contingent and
whether due or to become due, except (i) as set forth on Schedule
3.5(k) or expressly set out in the Balance Sheets, (ii) those which
may arise pursuant to any Permitted Encumbrance, (iii) those which
may arise after the Balance Sheet Date in the ordinary course of
business, and (iv) those which would not, individually or in the
aggregate, have a Material Adverse Effect.
(l)
Insurance . Schedule 3.5(l) sets forth a description
of all material insurance policies maintained on behalf of Thaipo
and B8/32 Partners, other than directors’ and officers’
liability policies, by which Thaipo or B8/32 Partners or any of
their respective Assets are covered, all of which are now in full
force and effect. To the extent that any such policy is owned
or held by Sellers or any of their Affiliates (other than Thaipo or
B8/32 Partners), it may be terminated as of the close of business
on the Closing Date; provided, however, that Sellers agree to use
reasonable efforts to maintain such policies (or policies of
substantially the same nature) in full force and effect at all
times until the close of business on the Closing Date.
(m)
Liability for Brokers’ Fees . Purchasers nor any
of their respective Affiliates shall not directly or indirectly
have any responsibility, liability or expense, as a result of
undertakings or agreements of each Seller, Thaipo or B8/32
Partners, for brokerage fees,
14
finder’s fees,
agent’s commissions or other similar forms of compensation to
an intermediary in connection with the negotiation, execution or
delivery of this Agreement or any agreement or transaction
contemplated hereby.
(n)
Concession and Operating Agreement .
(i)
The Concession (or any part thereof) is in full force and effect
and neither Thaipo nor B8/32 has committed any material breach of
the Concession.
(ii)
No act or omission of Thaipo or B8/32 Partners and (to
Sellers’ knowledge) of any other concessionaire has occurred
which entitle the Concession (or any part thereof) to be revoked,
repudiated, rescinded, avoided or terminated.
(iii)
No notice has been given to Thaipo or B8/32 Partners or (to
Sellers’ knowledge) any other concessionaire notifying or
indicating an intention to revoke, repudiate, rescind, avoid or
terminate the Concession (or any part thereof).
(iv)
The Concession (or any part thereof) is not in the process of, or
being, surrendered in whole or in part, except as required by the
Thai Petroleum Act and disclosed in the documents set forth in
Schedule 3.5(n), all as may be amended or supplemented from time to
time.
(v)
Neither Thaipo nor B8/32 Partners is a party to any bidding
agreement or area of mutual interest agreement, which applies to
any future license or concession applications or
acquisitions.
(vi)
Thaipo and B8/32 Partners are not delinquent or in default with
respect to any cash calls due and payable by them under the
Operating Agreement.
(vii)
There are no outstanding proposals for, or no actual, exclusive
operations to be carried out or are being carried out (as the case
may be) under the Operating Agreement (and as defined
therein).
(o)
Permits . To the knowledge of Sellers, Thaipo and
B8/32 Partners have all Thai Permits and all other relevant permits
that are necessary to own and operate the Assets and such Thai
Permits and other permits are in full force and effect and no
material violation exists in respect of the same.
(p)
Records . Thaipo and, to the knowledge of Sellers,
B8/32 Partners have kept proper and consistent accounts, books and
records of the activities and operations relating to Thaipo, B8/32
Partners and, to the knowledge of Sellers, the Assets,
respectively, and, to the knowledge of Sellers, such accounts,
books and records are up-to-date and there has been no change in
any practice and policy insofar as such change might affect the
valuation of Assets or recording of expenditure or receipts in
relation to the Assets.
(q)
No Other Interests . Each of Thaipo and, to the
knowledge of Sellers, B8/32 Partners hold no other assets and is
not involved in any other business or undertaking, other than those
relating to Sellers’ interests in the Concession.
15
(r)
Abandonment. Neither Thaipo nor, to the knowledge of
Sellers, B8/32 Partners is a party to any
abandonment/decommissioning security agreement, save as forming
part of the Operating Agreement.
(s)
Operator .
(i)
The operator under the Operating Agreement has not given a notice
of resignation as operator which is still current;
(ii)
To Sellers’ knowledge, the non-operators under the Operating
Agreement have given no formal notice and no vote has been passed
by the non-operators requiring the removal of the operator under
the Operating Agreement.
(iii)
To Sellers’ knowledge, the operator under the Operating
Agreement has obtained and complied with in all material respects
all licenses, consents, permissions and approvals which are
necessary for the lawful conduct of operations carried out or
proposed to be carried out in respect of the
Concession.
(iv)
To Sellers’ knowledge, the operator under the Operating
Agreement has not received any notice given pursuant to any Laws
prohibiting or suspending their respective activities in respect of
the Concession.
(t)
Actions Prior to Signing . During the period beginning
on the Balance Sheet Date and ending on (and including) the date of
signing of this Agreement:
(i)
neither Thaipo nor B8/32 Partners declared or paid any dividend
(whether in cash, stock, property, or any combination
thereof);
(ii)
neither Thaipo nor B8/32 Partners incurred or assumed any
liabilities, obligations or indebtedness for borrowed money, or
guaranteed any such liabilities, obligations or indebtedness, other
than accounts payable incurred in the ordinary course of
business;
(iii)
neither Thaipo nor B8/32 Partners made any loan (other than
(A) accounts receivable in the ordinary course of business, or
(B) advances or cash call payments to the operator as required
under the Operating Agreement, but only to the extent to which the
advances or cash call payments have been included in the current
approved work program and budget under the Operating Agreement) to
any Person; and
(iv)
neither Thaipo nor B8/32 Partners entered into, or approved the
entry into any contract or arrangement with the Sellers or an
Affiliate of the Sellers.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
OF PURCHASERS
Each Purchaser severally represents
and warrants in respect of itself only to Sellers the
following:
16
Section
4.1
Disclaimers . Except as and to the extent expressly
set forth in this Article 4 or in the certificates of Purchaser to
be delivered pursuant to Section 7.3(b), (i) it makes no
representations or warranties, express or implied, and (ii) it
expressly disclaims all liability and responsibility for any
representation, warranty, statement or information made or
communicated (orally or in writing) to Sellers or any of their
Affiliates, employees, agents, consultants or representatives
(including, without limitation, any opinion, information,
projection or advice that may have been provided to Sellers by any
officer, director, employee, agent, consultant, representative or
advisor of it or any of their Affiliates).
Section
4.2
Existence and Qualification . Each of PTTEP Offshore, MOECO and PTTEP
is a company duly organized and validly existing under the
laws of the jurisdiction of its respective place of incorporation
or organization; and it is duly qualified to do business in every
jurisdiction in which it is required to qualify in order to conduct
its business except where the failure to so qualify would not have
a material adverse effect on it or its properties.
Section
4.3
Power . It
has the corporate power to enter into and perform this Agreement
(and all documents required to be executed and delivered by
Purchaser at Closing) and to consummate the transactions
contemplated by this Agreement (and such documents).
Section
4.4
Authorization and Enforceability . The execution, delivery and performance
by it of this Agreement (and all documents required to be executed
and delivered by Purchaser at Closing), and the consummation by it
of the transactions contemplated hereby and thereby, have been duly
and validly authorized by all necessary corporate action on the
part of it. This Agreement has been duly executed and
delivered by it (and all documents required to be executed and
delivered by it at Closing will be duly executed and delivered by
it) and this Agreement constitutes, and at the Closing such
documents will constitute, valid and binding obligations of it,
enforceable in accordance with their terms except as such
enforceability may be limited by applicable bankruptcy or other
similar laws affecting the rights and remedies of creditors
generally as well as to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law).
Section
4.5 No
Conflicts . The
execution, delivery and performance of this Agreement by it, and
the consummation of the transactions contemplated by this
Agreement, will not (i) violate any provision of the
certificate of incorporation or bylaws of it, (ii) result in a
material default (with due notice or lapse of time or both) or the
creation of any Encumbrance or give rise to any right of
termination, cancellation or acceleration under any material note,
bond, mortgage, indenture, license or agreement to which it is a
party or by which it is bound, (iii) violate any judgment,
order, ruling, or decree applicable to it as a party in interest or
(iv) violate any Law applicable to it, except any matters
described in clauses (ii), (iii) or (iv) above which would not have
a material adverse effect on it or its properties.
Section
4.6
Consents, Approvals or Waivers . The execution, delivery and performance
of this Agreement by it will not be subject to any consent,
approval or waiver from any Governmental Authority or other third
Person except as set forth on Schedule 4.6.
17
Section
4.7
Litigation .
There are no actions, suits or proceedings pending, or to its
knowledge, threatened in writing before any Governmental Authority
or arbitrator against it which are reasonably likely to impair
materially its ability to perform its obligations under this
Agreement.
Section
4.8
Financing .
It has sufficient cash, available lines of credit or other sources
of immediately available funds and, at the Closing, will have such
funds in United States dollars to enable it to pay the Purchase
Price to Sellers at the Closing.
Section
4.9
Liability for Brokers’ Fees . Sellers nor any of their respective
Affiliates shall not directly or indirectly have any
responsibility, liability or expense, as a result of undertakings
or agreements of it, for brokerage fees, finder’s fees,
agent’s commissions or other similar forms of compensation to
an intermediary in connection with the negotiation, execution or
delivery of this Agreement or any agreement or transaction
contemplated hereby.
ARTICLE 5. COVENANTS OF THE
PARTIES
Section
5.1
Access .
Sellers will, upon reasonable notice, give Pur
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