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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE TO
TENDER OFFER STATEMENT
UNDER SECTION 14(D)(1) OR 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
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TRITON ENERGY LIMITED
(NAME OF SUBJECT COMPANY)
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AMERADA HESS CORPORATION
AMERADA HESS (CAYMAN) LIMITED
(NAMES OF FILING PERSONS)
ORDINARY SHARES, PAR VALUE $0.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
G90751101: ORDINARY SHARES
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(CUSIP NUMBER OF CLASS OF SECURITIES)
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J. BARCLAY COLLINS II, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
AMERADA HESS CORPORATION
1185 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 997-8500
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF FILING PERSONS)
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COPIES TO:
TIMOTHY B. GOODELL, ESQ.
GREGORY PRYOR, ESQ.
WHITE & CASE LLP
1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 819-8200
CALCULATION OF FILING FEE
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TRANSACTION VALUATION* AMOUNT OF FILING FEE
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$2,891,688,585 $578,337.78
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* Based on the product of (i) $45.00 per ordinary share and (ii) 64,259,753, the
estimated maximum number of Triton Energy Limited ordinary shares to be
received by the Offeror in the Offer.
[ ] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[X] third-party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [ ]
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This Tender Offer Statement on Schedule TO ("Schedule TO") relates to the
offer by Amerada Hess (Cayman) Limited (the "Purchaser"), a company limited by
shares organized under the laws of the Cayman Islands and a wholly owned
subsidiary of Amerada Hess Corporation ("Amerada Hess"), a Delaware corporation,
to purchase all unconditionally allotted or issued and fully paid ordinary
shares, par value $0.01 per share, of Triton Energy Limited ("Triton") and any
further ordinary shares which are unconditionally allotted or issued and fully
paid before the date and time on which the Offer (as defined below) expires,
(including the associated Series A junior participating preferred share purchase
rights issued pursuant to the Rights Agreement, dated as of March 25, 1996, by
and between Triton and Mellon Investor Services LLC, as amended) (the "Ordinary
Shares"), at a price of U.S.$45.00 per Ordinary Share, on the terms and subject
to the conditions set forth in the Offer to Purchase, dated July 17, 2001 (the
"Offer to Purchase"), a copy of which is attached hereto as Exhibit (a)(1), and
in the related Letter of Transmittal, a copy of which is attached hereto as
Exhibit (a)(2) (which, as they may be amended and supplemented from time to
time, together constitute the "Offer"). This Schedule TO is being filed on
behalf of the Purchaser and Amerada Hess.
The information in the Offer to Purchase, including all schedules and
annexes thereto, is incorporated herein by reference in response to all the
items of this Schedule TO, except as otherwise set forth below.
ITEM 10. FINANCIAL STATEMENTS.
(a) Financial information. Not applicable.
(b) Pro forma information. Not applicable.
ITEM 11. ADDITIONAL INFORMATION.
(b) Other material information. The information set forth in the Letter of
Transmittal attached hereto as Exhibit (a)(2) is incorporated herein by
reference.
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ITEM 12. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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Exhibit (a)(1) Offer to Purchase.
Exhibit (a)(2) Letter of Transmittal.
Exhibit (a)(3) Notice of Guaranteed Delivery.
Exhibit (a)(4) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
Exhibit (a)(5) Form of letter to brokers, dealers, commercial banks, trust
companies and other nominees.
Exhibit (a)(6) Form of letter to be used by brokers, dealers, commercial
banks, trust companies and other nominees to their clients.
Exhibit (a)(7) Press Release issued by the Purchaser dated July 10, 2001
announcing the tender offer.(1)
Exhibit (a)(8) Summary newspaper advertisement dated July 17, 2001
published in The Wall Street Journal.
Exhibit (b)(1) Third Amended and Restated Credit Agreement dated as of
January 23, 2001 among Amerada Hess Corporation, the lenders
party thereto and Goldman Sachs Credit Partners L.P. as
joint book runner, joint lead arranger and sole syndication
agent, Chase Securities, Inc. as joint book runner and joint
lead arranger and The Chase Manhattan Bank, N.A., as
administrative agent ("Facility A").(2)
Exhibit (b)(2) Third Amended and Restated Credit Agreement dated as of
January 23, 2001 among Amerada Hess Corporation, the Lenders
Party thereto and Goldman Sachs Credit Partners L.P. as
joint book runner, joint lead arranger and sole syndication
agent, Chase Securities, Inc. as joint book runner and joint
lead arranger and The Chase Manhattan Bank, N.A., as
administrative agent ("Facility B").(3)
Exhibit (d)(1) Acquisition Agreement dated as of July 9, 2001 by and among
Amerada Hess Corporation, Amerada Hess (Cayman) Limited and
Triton Energy Limited.
Exhibit (d)(2) Principal Shareholders Agreement dated as of July 9, 2001 by
and among Amerada Hess Corporation, Amerada Hess (Cayman)
Limited, Triton Energy Limited, HM4 Triton, L.P. and the
other shareholders of Triton Energy Limited listed on Annex
A thereto.
Exhibit (d)(3) Confidentiality Agreement dated as of June 4, 2001 between
Amerada Hess Corporation and Triton Energy Limited.
Exhibit (d)(4) Amendment No. 1 to Acquisition Agreement, dated as of July
17, 2001, by and among Amerada Hess Corporation, Amerada
Hess (Cayman) Limited and Triton Energy Limited.
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(1) Incorporated by reference to Exhibit 99.1 to the Form 8-K/A filed on July
10, 2001 by Amerada Hess Corporation.
(2) Incorporated by reference to Exhibit 4(4) to the Form 10-K filed by Amerada
Hess Corporation on March 15, 2001, Commission File No. 333-50358.
(3) Incorporated by reference to Exhibit 4(5) to the Form 10-K filed by Amerada
Hess Corporation on March 15, 2001, Commission File No. 333-50358.
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
Not applicable.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: July 17, 2001
AMERADA HESS CORPORATION
By: /s/ J. Barclay Collins II
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Name: J. Barclay Collins II
Title: Executive Vice President and
General Counsel
AMERADA HESS (CAYMAN) LIMITED
By: /s/ J. Barclay Collins II
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Name: J. Barclay Collins II
Title: Director
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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Exhibit (a)(1) Offer to Purchase.
Exhibit (a)(2) Letter of Transmittal.
Exhibit (a)(3) Notice of Guaranteed Delivery.
Exhibit (a)(4) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
Exhibit (a)(5) Form of letter to brokers, dealers, commercial banks, trust
companies and other nominees.
Exhibit (a)(6) Form of letter to be used by brokers, dealers, commercial
banks, trust companies and other nominees to their clients.
Exhibit (a)(7) Press Release issued by the Purchaser dated July 10, 2001
announcing the tender offer.(1)
Exhibit (a)(8) Summary newspaper advertisement dated July 17, 2001
published in The Wall Street Journal.
Exhibit (b)(1) Third Amended and Restated Credit Agreement dated as of
January 23, 2001 among Amerada Hess Corporation, the lenders
party thereto and Goldman Sachs Credit Partners L.P. as
joint book runner, joint lead arranger and sole syndication
agent, Chase Securities, Inc. as joint book runner and joint
lead arranger and The Chase Manhattan Bank, N.A., as
administrative agent ("Facility A").(2)
Exhibit (b)(2) Third Amended and Restated Credit Agreement dated as of
January 23, 2001 among Amerada Hess Corporation, the Lenders
Party thereto and Goldman Sachs Credit Partners L.P. as
joint book runner, joint lead arranger and sole syndication
agent, Chase Securities, Inc. as joint book runner and joint
lead arranger and The Chase Manhattan Bank, N.A., as
administrative agent ("Facility B").(3)
Exhibit (d)(1) Acquisition Agreement dated as of July 9, 2001 by and among
Amerada Hess Corporation, Amerada Hess (Cayman) Limited and
Triton Energy Limited.
Exhibit (d)(2) Principal Shareholders Agreement dated as of July 9, 2001 by
and among Amerada Hess Corporation, Amerada Hess (Cayman)
Limited, Triton Energy Limited, HM4 Triton, L.P. and the
other shareholders of Triton Energy Limited listed on Annex
A thereto.
Exhibit (d)(3) Confidentiality Agreement dated as of June 4, 2001 between
Amerada Hess Corporation and Triton Energy Limited.
Exhibit (d)(4) Amendment No. 1 to Acquisition Agreement, dated as of July
17, 2001, by and among Amerada Hess Corporation, Amerada
Hess (Cayman) Limited and Triton Energy Limited.
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(1) Incorporated by reference to Exhibit 99.1 to the Form 8-K/A filed on July
10, 2001 by Amerada Hess Corporation.
(2) Incorporated by reference to Exhibit 4(4) to the Form 10-K filed by Amerada
Hess Corporation on March 15, 2001, Commission File No. 333-50358.
(3) Incorporated by reference to Exhibit 4(5) to the Form 10-K filed by Amerada
Hess Corporation on March 15, 2001, Commission File No. 333-50358.
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OFFER TO PURCHASE FOR CASH
ALL OF THE UNCONDITIONALLY ALLOTTED OR ISSUED AND FULLY PAID ORDINARY SHARES
(INCLUDING THE ASSOCIATED SERIES A JUNIOR PARTICIPATING PREFERRED
SHARE PURCHASE RIGHTS)
OF
TRITON ENERGY LIMITED
AT
$45.00 NET PER ORDINARY SHARE
BY
AMERADA HESS (CAYMAN) LIMITED
A WHOLLY OWNED SUBSIDIARY OF
AMERADA HESS CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON MONDAY, AUGUST 13, 2001, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED ON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A
NUMBER OF EXISTING UNCONDITIONALLY ALLOTTED OR ISSUED AND FULLY PAID ORDINARY
SHARES, PAR VALUE $0.01 PER SHARE, OF TRITON ENERGY LIMITED (THE "COMPANY"), AND
ANY FURTHER ORDINARY SHARES WHICH ARE UNCONDITIONALLY ALLOTTED OR ISSUED AND
FULLY PAID BEFORE THE DATE AND TIME ON WHICH THE OFFER EXPIRES, INCLUDING THE
ASSOCIATED RIGHTS (THE "ORDINARY SHARES"), WHICH REPRESENT AT LEAST 90% IN VALUE
OF THE ORDINARY SHARES (THE "MINIMUM CONDITION"). AMERADA HESS (CAYMAN) LIMITED
(THE "PURCHASER") MAY AMEND THE MINIMUM CONDITION TO EQUAL THE NUMBER OF
ORDINARY SHARES REPRESENTING A MAJORITY OF THE TOTAL NUMBER OF VOTES OF THE
OUTSTANDING ORDINARY SHARES ON A FULLY DILUTED BASIS. THE OFFER IS ALSO
CONDITIONED ON THE EXPIRATION OR TERMINATION OF ANY APPLICABLE WAITING PERIOD
UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, AS
DESCRIBED IN SECTION 15 -- "CERTAIN LEGAL MATTERS; REGULATORY APPROVALS," AND
THE SATISFACTION OF CERTAIN OTHER TERMS AND CONDITIONS DESCRIBED IN SECTION
14 -- "CONDITIONS OF THE OFFER."
THE OFFER IS AN INTEGRAL PART OF THE TRANSACTIONS CONTEMPLATED BY, AND IS
BEING MADE PURSUANT TO, THE ACQUISITION AGREEMENT (THE "ACQUISITION AGREEMENT")
DATED AS OF JULY 9, 2001, AS AMENDED, BY AND AMONG AMERADA HESS CORPORATION
("AMERADA HESS"), THE PURCHASER AND THE COMPANY.
AMERADA HESS AND THE PURCHASER HAVE ALSO ENTERED INTO AN AGREEMENT (THE
"PRINCIPAL SHAREHOLDERS AGREEMENT") DATED AS OF JULY 9, 2001 WITH CERTAIN
SHAREHOLDERS OF THE COMPANY (THE "PRINCIPAL SHAREHOLDERS") WHO BENEFICIALLY OWN,
IN THE AGGREGATE, ORDINARY SHARES AND 8% CONVERTIBLE PREFERENCE SHARES, PAR
VALUE $0.01 PER SHARE, OF THE COMPANY (THE "PREFERRED SHARES") REPRESENTING
APPROXIMATELY 37.7% OF THE ALLOTTED AND ISSUED ORDINARY SHARES, ASSUMING
CONVERSION OF THE PREFERRED SHARES (34.2% ON A FULLY DILUTED BASIS). PURSUANT TO
THE PRINCIPAL SHAREHOLDERS AGREEMENT, AMERADA HESS HAS AGREED TO PURCHASE, AND
THE PRINCIPAL SHAREHOLDERS HAVE AGREED TO SELL TO AMERADA HESS, ALL OF THE
ORDINARY SHARES AND PREFERRED SHARES (IF THEY ARE NOT CONVERTED INTO ORDINARY
SHARES) OWNED BY THE PRINCIPAL SHAREHOLDERS ON THE TERMS AND SUBJECT TO THE
CONDITIONS OF THE PRINCIPAL SHAREHOLDERS AGREEMENT. SEE SECTION 11 -- "PURPOSE
OF THE OFFER; PLANS FOR THE COMPANY; CERTAIN AGREEMENTS."
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY (I) DETERMINED THAT
THE ACQUISITION AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING
THE OFFER, ARE FAIR TO AND IN THE BEST INTERESTS OF THE COMPANY AND THE HOLDERS
OF ORDINARY SHARES (THE "HOLDERS") (OTHER THAN, IN THE CASE OF THE TRANSACTIONS
CONTEMPLATED BY THE PRINCIPAL SHAREHOLDERS AGREEMENT, THE PRINCIPAL
SHAREHOLDERS) AND (II) RESOLVED TO RECOMMEND THAT THE HOLDERS OF ORDINARY SHARES
ACCEPT THE OFFER AND TENDER THEIR ORDINARY SHARES PURSUANT TO THE OFFER.
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The Dealer Managers for the Offer are:
GOLDMAN, SACHS & CO.
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The date of this Offer to Purchase is July 17, 2001.
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IMPORTANT
Any Holder desiring to tender all or any portion of the Ordinary Shares
owned by such Holder should either (i) complete and sign the Letter of
Transmittal or a copy thereof in accordance with the instructions in the Letter
of Transmittal and mail or deliver it together with the certificate(s)
evidencing tendered Ordinary Shares, and any other required documents, to The
Bank of New York, as Depositary, (ii) tender such Ordinary Shares pursuant to
the procedures for book-entry transfer set forth in Section 3 -- "Procedures for
Tendering Ordinary Shares" or (iii) request such Holder's broker, dealer,
commercial bank, trust company or other nominee to effect the transaction for
such Holder. Any Holder whose Ordinary Shares are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee must contact
such broker, dealer, commercial bank, trust company or other nominee if such
Holder desires to tender such Ordinary Shares.
UNLESS THE CONTEXT INDICATES OTHERWISE, REFERENCES TO ORDINARY SHARES
INCLUDE THE ASSOCIATED SERIES A JUNIOR PARTICIPATING PREFERRED SHARE PURCHASE
RIGHTS (THE "RIGHTS") ISSUED PURSUANT TO THE RIGHTS AGREEMENT (THE "RIGHTS
AGREEMENT"), DATED AS OF MARCH 25, 1996, AS AMENDED, BY AND BETWEEN THE COMPANY
AND MELLON INVESTOR SERVICES LLC (AS SUCCESSOR TO CHEMICAL BANK), AS RIGHTS
AGENT. IN ORDER TO TENDER VALIDLY ORDINARY SHARES, A HOLDER MUST TENDER THE
ASSOCIATED RIGHTS. UNLESS A DISTRIBUTION DATE (AS DEFINED IN THE RIGHTS
AGREEMENT), HAS OCCURRED, THE TENDER OF AN ORDINARY SHARE WILL CONSTITUTE THE
TENDER OF THE ASSOCIATED RIGHT. SEE SECTION 3 -- "PROCEDURES FOR TENDERING
ORDINARY SHARES."
Any Holder who desires to tender Ordinary Shares and whose certificate(s)
evidencing such Ordinary Shares are not immediately available, or who cannot
comply with the procedures for book-entry transfer described in this Offer to
Purchase on a timely basis, may tender such Ordinary Shares by following the
procedures for guaranteed delivery set forth in Section 3 -- "Procedures for
Tendering Ordinary Shares."
Copies of this Offer to Purchase, the Letter of Transmittal or any related
documents must not be mailed to or otherwise distributed or sent in, into or
from any country where such distribution or offering would require any
additional measures to be taken or would be in conflict with any law or
regulation of such a country or any political subdivision thereof. Persons into
whose possession this document comes are required to inform themselves about and
to observe any such laws or regulations. This Offer to Purchase may not be used
for, or in connection with, any offer to, or solicitation by, anyone in any
jurisdiction or under any circumstances in which such offer or solicitation is
not authorized or is unlawful.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Managers at their respective addresses and telephone numbers
set forth on the back cover of this Offer to Purchase. Additional copies of this
Offer to Purchase, the Letter of Transmittal or other related tender offer
materials may be obtained at no cost from the Information Agent or from brokers,
dealers, commercial banks or trust companies.
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TABLE OF CONTENTS
PAGE
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SUMMARY TERM SHEET.......................................... 1
INTRODUCTION................................................ 6
THE TENDER OFFER............................................ 9
1. Terms of the Offer................................... 9
2. Acceptance for Payment and Payment for Ordinary
Shares................................................. 11
3. Procedures for Tendering Ordinary Shares............. 13
4. Withdrawal Rights.................................... 16
5. Certain United States Federal Income Tax
Consequences........................................... 17
6. Price Range of Ordinary Shares; Dividends............ 18
7. Certain Information Concerning the Company........... 18
8. Certain Information Concerning the Purchaser and
Amerada Hess........................................... 26
9. Source and Amount of Funds........................... 27
10. Background of the Offer.............................. 29
11. Purpose of the Offer; Plans for the Company; Certain
Agreements............................................. 31
12. Dividends and Distributions.......................... 54
13. Effect of the Offer on the Market for the Shares;
Exchange Act Registration.............................. 54
14. Conditions of the Offer.............................. 55
15. Certain Legal Matters; Regulatory Approvals.......... 57
16. Fees and Expenses.................................... 59
17. Miscellaneous........................................ 59
SCHEDULE I Information Concerning the Directors and Executive
Officers of Amerada Hess Corporation and Amerada Hess
(Cayman) Limited
SCHEDULE II Cayman Islands Companies Law (2001 Second
Revision) -- Extract of Relevant Provisions
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SUMMARY TERM SHEET
Amerada Hess (Cayman) Limited is offering to purchase all of the existing
unconditionally allotted or issued and fully paid ordinary shares and any
further ordinary shares which are unconditionally allotted or issued and fully
paid before the date on which the offer (including any subsequent offering
period) expires (including the associated series A junior participating
preferred share purchase rights) of Triton Energy Limited at a price of $45.00
per ordinary share, net to the seller in cash. The following are some of the
questions you, as a shareholder of Triton, may have and answers to those
questions.
WE URGE YOU TO READ CAREFULLY THE REMAINDER OF THIS OFFER TO PURCHASE AND
THE LETTER OF TRANSMITTAL BECAUSE THE INFORMATION IN THIS SUMMARY TERM SHEET
DOES NOT CONTAIN ALL OF THE INFORMATION YOU SHOULD CONSIDER BEFORE TENDERING
YOUR ORDINARY SHARES. ADDITIONAL IMPORTANT INFORMATION IS CONTAINED IN THE
REMAINDER OF THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL.
- - WHO IS OFFERING TO BUY MY SECURITIES?
Our name is Amerada Hess (Cayman) Limited. We are a Cayman Islands company
formed for the purpose of making this offer. We are a wholly owned subsidiary of
Amerada Hess Corporation, a public company incorporated under the laws of
Delaware. See the "Introduction" to this Offer to Purchase. We are making the
offer pursuant to an acquisition agreement dated as of July 9, 2001 among us,
Amerada Hess and Triton.
- - HAVE TRITON'S PRINCIPAL SHAREHOLDERS AGREED TO SELL THEIR SHARES?
HM4 Triton, L.P., an affiliate of Hicks, Muse, Tate & Furst Incorporated,
and certain other shareholders of Triton have agreed to sell to us, and we have
agreed to purchase from them, all of their ordinary shares and 8% convertible
preference shares, representing approximately 37.7% of the outstanding ordinary
shares assuming the conversion of such preference shares (34.2% on a fully
diluted basis). When we acquire the ordinary shares and preference shares owned
by the shareholders who are party to the principal shareholders agreement, it
will not be possible under Cayman Islands law for another person to purchase
Triton's entire share capital without our agreement. See Section 11 -- "Purpose
of the Offer; Plans for the Company; Certain Agreements" in this Offer to
Purchase.
- - WHAT ARE THE CLASSES AND AMOUNTS OF SECURITIES SOUGHT IN THE OFFER?
We are seeking to purchase all of the existing unconditionally allotted or
issued and fully paid ordinary shares and any further ordinary shares which are
unconditionally allotted or issued and fully paid before the date on which the
offer expires (including the associated series A junior participating preferred
share purchase rights) of Triton. We are not making an offer for preference
shares or options to purchase ordinary shares (although procedures will be
established to permit the conditional tender of ordinary shares for which
options can be exercised or into which preference shares may be converted). See
the "Introduction" to this Offer to Purchase.
- - HOW MUCH ARE YOU OFFERING TO PAY, WHAT IS THE FORM OF PAYMENT AND WILL I HAVE
TO PAY ANY FEES OR COMMISSIONS?
We are offering to pay $45.00 per ordinary share, net to you, in cash,
without any interest, for each ordinary share. If you are the record owner of
your ordinary shares and you tender your ordinary shares to us in the offer, you
will not have to pay brokerage fees or similar expenses. If you own your
ordinary shares through a broker or other nominee, and your broker tenders your
ordinary shares on your behalf, your broker or nominee may charge you a fee for
doing so. You should consult your broker or nominee to determine whether any
charges will apply. See the "Introduction" to this Offer to Purchase.
- - DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
We will be provided with approximately $2.9 billion by our parent company,
Amerada Hess and/or its affiliates, which will be used to purchase all ordinary
shares validly tendered and not withdrawn in the offer and to provide funding
for payment for all ordinary shares transferred to us pursuant to a compulsory
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acquisition under Section 88 of the Companies Law (2001 Second Revision) of the
Cayman Islands or pursuant to a scheme of arrangement in accordance with Section
86 of the Companies Law. This transfer of ordinary shares pursuant to a
compulsory acquisition or a scheme of arrangement will be conducted in
accordance with the terms and conditions of the acquisition agreement among us,
Amerada Hess and Triton. The offer is not conditioned on any financing
arrangements. Amerada Hess and/or its affiliates currently intend to provide us
with the funds necessary to purchase the ordinary shares through a combination
of loans and/or capital contributions. Amerada Hess and/or its affiliates intend
to obtain such funds through an existing credit facility and a new credit
facility for which it has received a financing commitment from Citibank, N.A.
and Salomon Smith Barney, Inc. See Section 9 -- "Source and Amount of Funds" in
this Offer to Purchase.
- - IS YOUR FINANCIAL CONDITION RELEVANT TO MY DECISION TO TENDER IN THE OFFER?
We do not believe that our financial condition is relevant to your decision
whether to tender shares and accept the offer because:
- the offer is being made for all ordinary shares, solely for cash,
- the offer is not subject to any financing condition,
- the form of payment that you will receive consists solely of cash and if
you tender into the offer and receive payment in full for your ordinary
shares, you will have no continuing equity interest in Triton, and
- we may acquire all remaining ordinary shares for the same cash price
pursuant to the compulsory acquisition or the scheme of arrangement, in
each case in accordance with the Companies Law (2001 Second Revision) of
the Cayman Islands and in the manner provided for in the acquisition
agreement. See Section 11 -- "Purpose of the Offer; Plans for the
Company; Certain Agreements" for a discussion of the requirements for
effecting a compulsory acquisition or a scheme of arrangement in
accordance with the Companies Law of the Cayman Islands.
- - HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
You will have until 12:00 midnight, New York City time, on Monday, August
13, 2001, to tender your ordinary shares in the offer, unless the offer is
extended pursuant to the terms of the acquisition agreement. Further, if you
cannot deliver everything that is required to make a valid tender by that time,
you may be able to use a guaranteed delivery procedure, which is described later
in this Offer to Purchase. See Section 1 -- "Terms of the Offer" and Section
3 -- "Procedures for Tendering Ordinary Shares" in this Offer to Purchase.
- - CAN THE OFFER BE EXTENDED AND UNDER WHAT CIRCUMSTANCES?
Yes. Subject to the terms of the acquisition agreement, we have agreed with
Triton that we may extend the offer as required by any rule, regulation or
interpretation of the Securities and Exchange Commission or, if at the time the
offer is scheduled to expire, including at the end of an earlier extension, any
of the offer conditions is not satisfied or waived by us. We may extend the
offer for successive periods of up to ten business days at a time, or longer
periods as approved by Triton, until the earlier of the acceptance for payment
of any ordinary shares pursuant to the offer or September 15, 2001. In addition,
Triton may require us to extend the initial offering period on one occasion for
up to ten calendar days if the tender offer conditions have not been satisfied
or, even if the tender offer conditions have been satisfied, less than 90% of
the ordinary shares have been tendered into and not withdrawn from the offer.
We may, or as described below, Triton may require us to, extend the
offering period on one occasion through a subsequent offering period for up to a
maximum of 20 business days as described below or if required by applicable law.
See Section 1 -- "Terms of the Offer" in this Offer to Purchase.
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- - WILL THERE BE A SUBSEQUENT OFFERING PERIOD?
A subsequent offering period, if one is included, will be an additional
period of time beginning after we have purchased ordinary shares tendered during
the initial offering period, during which holders of ordinary shares may tender
their ordinary shares and receive the offer consideration.
We can make a subsequent offering period available for up to a maximum of
20 business days. Additionally, if we amend the minimum condition to a number of
ordinary shares representing at least a majority of the votes of the ordinary
shares on a fully diluted basis and accept any ordinary shares tendered and not
withdrawn for payment pursuant to the offer, then Triton can require us to make
a subsequent offering period available to the holders of ordinary shares by
extending the offer on one occasion, for up to a maximum of 20 business days.
To comply with the applicable laws of the United States, during any
subsequent offering period we will immediately accept for payment all tenders of
ordinary shares and pay promptly for all ordinary shares tendered in any
subsequent offering period. No holders will have any withdrawal rights with
respect to ordinary shares tendered during any subsequent offering period. For
more information, see Section 1 -- "Terms of the Offer" in this Offer to
Purchase.
- - HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
If we extend the offer, we will inform The Bank of New York, which is the
depositary for the offer, of that fact. We also will make a public announcement
of the extension, not later than 9:00 a.m., New York City time, on the next
business day after the day on which the offer was scheduled to expire. See
Section 1 -- "Terms of the Offer" in this Offer to Purchase.
- - WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER?
- We are not obligated to purchase any ordinary shares which are validly
tendered if the number of ordinary shares validly tendered and not
properly withdrawn prior to the expiration of the offer represents less
than 90% in value of the ordinary shares. We may, at any time, amend this
minimum condition to equal the number of ordinary shares representing a
majority of the total number of votes of the outstanding ordinary shares
on a fully diluted basis. The amendment of the minimum condition as
described above would require that we make adequate notice of such
amendment and might require the extension of the offer.
- We are not obligated to purchase any ordinary shares which are validly
tendered if, among other things, the applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, has not
expired or been waived before we accept the shares which have been
validly tendered.
See the "Introduction" and Section 14 -- "Conditions of the Offer" in this
Offer to Purchase.
- - HOW DO I TENDER MY SHARES?
To tender ordinary shares, you must deliver the certificate(s) representing
your ordinary shares, together with a completed Letter of Transmittal, to The
Bank of New York, the depositary for the offer, not later than the time the
tender offer expires. If your ordinary shares are held in "street name," the
ordinary shares can be tendered by your nominee through The Depository Trust
Company. If you cannot obtain any document or instrument that is required to be
delivered to the depositary by the expiration of the tender offer, you may
obtain a little extra time to do so by having a broker, a bank or other
fiduciary which is a member of the Securities Transfer Agents Medallion Program
or other eligible institution guarantee that the missing items will be received
by the depositary within three New York Stock Exchange trading days. For the
tender to be
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valid, however, the depositary must receive the missing items within that three
trading day period. See Section 3 -- "Procedures for Tendering Ordinary Shares"
in this Offer to Purchase.
- - UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
You can withdraw ordinary shares at any time until the offer (excluding any
subsequent offering period) has expired and, if we have not by September 14,
2001 agreed to accept your ordinary shares for payment, you can withdraw them at
any time after such time until we accept ordinary shares for payment. You may
not withdraw any ordinary shares tendered in a subsequent offering period. See
Section 1 -- "Terms of the Offer" and Section 4 -- "Withdrawal Rights" in this
Offer to Purchase.
- - HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
To withdraw ordinary shares, you must deliver a written notice of
withdrawal, or a copy of one, with the required information to The Bank of New
York, the depositary for the offer, while you still have the right to withdraw
the ordinary shares. See Section 4 -- "Withdrawal Rights" in this Offer to
Purchase.
- - WHAT DOES THE TRITON BOARD OF DIRECTORS THINK OF THE OFFER?
We are making the offer pursuant to an acquisition agreement among us,
Amerada Hess and Triton. The board of directors of Triton by unanimous vote has
determined that the acquisition agreement, the principal shareholders agreement
and the offer are fair to and in the best interests of the company and the
holders of the ordinary shares (other than, in the case of the transactions
contemplated by the principal shareholders agreement, the shareholders party
thereto). The board of directors of Triton by unanimous vote has approved the
execution, delivery and performance by Triton of the acquisition agreement and
the principal shareholders agreement by Triton and the consummation of the
transactions contemplated thereby, including the offer. The board of directors
of Triton has unanimously resolved to recommend that the holders of ordinary
shares accept the offer and tender their ordinary shares pursuant to the offer.
See the "Introduction" to this Offer to Purchase.
- - WILL WE SEEK TO ACQUIRE TRITON'S ENTIRE SHARE CAPITAL IF ALL OF TRITON'S
ORDINARY SHARES ARE NOT TENDERED IN THE OFFER?
Yes. If we accept for payment and pay for ordinary shares representing at
least 90% in value of the ordinary shares, both we and Triton will take all
necessary action to effect a compulsory acquisition of those ordinary shares not
owned by us and that are outstanding at the expiration of the offer, in
accordance with Section 88 of the Companies Law (2001 Second Revision) of the
Cayman Islands.
If we are not required to take all necessary action to effect a compulsory
acquisition as described above, we may request that Triton take the actions
necessary to effectuate a scheme of arrangement pursuant to Sections 86 and 87
of the Companies Law of the Cayman Islands promptly following either (i) the
date we accept for payment ordinary shares of Triton and any subsequent offering
period expires or (ii) the date that the offer expires without the purchase of
any ordinary shares of Triton. We may only require Triton to take this action if
the offer has remained open for a minimum of 20 business days plus any extension
of the expiration date of the offer (up to ten days) required by Triton.
If a compulsory acquisition takes place, we would acquire all remaining
ordinary shares of Triton (other than ordinary shares held by Amerada Hess or
its subsidiaries, including us) that are outstanding at the expiration of the
offer for $45.00 per ordinary share in cash and we will evaluate the best way in
which to acquire all preference shares that were not converted into ordinary
shares and tendered into the offer, which may include redeeming the preference
shares in accordance with their terms. If a scheme of arrangement is effected
pursuant to Sections 86 and 87 of the Companies Law, we will acquire all
remaining ordinary shares and, in the event that there are preference shares
outstanding on the commencement of the scheme of arrangement, preference shares
of Triton (other than shares held by Amerada Hess or its subsidiaries, including
us) for $45.00 per ordinary share in cash and $180.00, plus any accumulated and
unpaid dividends thereon, per preference share in cash. See the "Introduction"
to this Offer to Purchase.
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- - IF A COMPULSORY ACQUISITION OR SCHEME OF ARRANGEMENT BECOMES EFFECTIVE, WILL
TRITON CONTINUE AS A PUBLIC COMPANY?
No. If we acquire Triton's entire share capital through the offer, a
compulsory acquisition or scheme of arrangement, Triton will no longer be
publicly owned. Even if neither a compulsory acquisition nor a scheme of
arrangement becomes effective, if we purchase all of the tendered ordinary
shares, there may be so few remaining holders of publicly held ordinary shares
that (a) Triton ordinary shares will no longer meet the published guidelines of
the New York Stock Exchange for continued listing and may be delisted from the
New York Stock Exchange, (b) there may not be a public trading market for Triton
ordinary shares, and (c) Triton may cease making filings with the Securities and
Exchange Commission or may not be required to comply with the Securities and
Exchange Commission rules relating to publicly held companies. See Section
13 -- "Effect of the Offer on the Market for the Shares; Exchange Act
Registration" in this Offer to Purchase.
- - IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES?
If the compulsory acquisition takes place or the scheme of arrangement is
approved and becomes effective, shareholders not tendering in the offer will
receive the same amount of cash per ordinary share that they would have received
had they tendered their ordinary shares in the offer. Therefore, if the
compulsory acquisition takes place or the scheme of arrangement is approved and
becomes effective, the only difference to you between tendering your ordinary
shares and not tendering your ordinary shares is that you will be paid earlier
if you tender your ordinary shares. However, if a compulsory acquisition does
not take place and a scheme of arrangement does not become effective, there may
be so few remaining holders of ordinary shares that there may not be any active
public trading market for the ordinary shares and the delisting or
deregistration described above may occur. See the "Introduction" and Section
13 -- "Effect of the Offer on the Market for the Shares; Exchange Act
Registration" of this Offer to Purchase.
- - WHAT IS THE MARKET VALUE OF MY ORDINARY SHARES AS OF A RECENT DATE?
The $45.00 per ordinary share offer price represents a 50% premium over the
last sale price of $29.90 per share for Triton ordinary shares reported on the
New York Stock Exchange on July 9, 2001, the last trading day before we
announced the transaction. We advise you to obtain historical and recent
quotations for ordinary shares of Triton in deciding whether to tender your
ordinary shares. See Section 6 -- "Price Range of Ordinary Shares; Dividends" in
this Offer to Purchase.
- - WHAT IF I ALSO OWN PREFERENCE SHARES TO PURCHASE ORDINARY SHARES?
The offer is only being made for the ordinary shares of Triton. If you own
preference shares and would like to participate in the offer you will first need
to arrange for the conversion of your preference shares into ordinary shares
before tendering them into the offer. Alternatively, we have been informed that
the Company intends to make available to holders of preference shares the
opportunity to surrender their preference shares for conversion into ordinary
shares conditional on our acceptance of ordinary shares for payment pursuant to
the offer. Holders of preferred shares will be contacted separately regarding
the procedures to be followed to conditionally convert their preference shares
and tender the ordinary shares issued upon such conversion.
- - WHO CAN I TALK TO IF I HAVE QUESTIONS ABOUT THE TENDER OFFER?
You can call D.F. King & Co., Inc. at (800) 758-5880 (toll free) or
Goldman, Sachs & Co. at (212) 902-1000 (call collect) or (800) 323-5678 (toll
free). D.F. King & Co., Inc. is acting as the information agent and Goldman,
Sachs & Co. are acting as the dealer managers for our tender offer. See the back
cover of this Offer to Purchase.
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To the Holders of Ordinary Shares of Triton Energy Limited:
INTRODUCTION
Amerada Hess (Cayman) Limited (the "Purchaser"), a company limited by
shares, organized under the laws of the Cayman Islands and a wholly owned
subsidiary of Amerada Hess Corporation ("Amerada Hess"), a Delaware corporation,
hereby offers to purchase all of the existing unconditionally allotted or issued
and fully paid ordinary shares, par value $0.01 per share, of Triton Energy
Limited (the "Company"), a company limited by shares organized under the laws of
the Cayman Islands, and any further ordinary shares which are unconditionally
allotted or issued and fully paid before the date and time on which the Offer
(as defined below) expires, including the associated Rights (as defined below)
(the "Ordinary Shares"), at a price of $45.00 per Ordinary Share, net to the
seller in cash, without interest thereon (the "Ordinary Share Offer Price"), on
the terms and subject to the conditions set forth in this Offer to Purchase and
in the related Letter of Transmittal (which, as they may be amended and
supplemented from time to time, together constitute the "Offer").
Unless the context indicates otherwise, all references to Ordinary Shares
shall include the associated Series A junior participating preferred share
purchase rights (the "Rights") issued pursuant to the Rights Agreement (the
"Rights Agreement"), dated as of March 25, 1996, as amended, by and between the
Company and Mellon Investor Services LLC ("Mellon") (as successor to Chemical
Bank), as Rights Agent (the "Rights Agent"). To validly tender Ordinary Shares,
a holder must tender the Rights. Unless a Distribution Date (as defined below)
has occurred, the tender of Ordinary Shares will constitute the tender of the
associated Rights.
Holders of Ordinary Shares ("Holders") whose Ordinary Shares are registered
in their own name and who tender directly to The Bank of New York, as Depositary
(the "Depositary") will not be obligated to pay brokerage fees or commissions
or, except as set forth in Instruction 6 of the Letter of Transmittal, transfer
taxes on the purchase of Ordinary Shares pursuant to the Offer. The Purchaser
will pay all charges and expenses of Goldman, Sachs & Co., as Dealer Managers
(the "Dealer Managers"), the Depositary and D.F. King & Co., Inc., as
Information Agent (the "Information Agent"), in each case incurred in connection
with the Offer. See Section 16 -- "Fees and Expenses."
THE OFFER IS CONDITIONED ON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A
NUMBER OF ORDINARY SHARES WHICH REPRESENT AT LEAST 90% IN VALUE OF THE ORDINARY
SHARES (THE "MINIMUM CONDITION"). FOR PURPOSES OF DETERMINING WHETHER SUCH
MINIMUM CONDITION IS SATISFIED, ALL ORDINARY SHARES HELD BY THE PRINCIPAL
SHAREHOLDERS (AS DEFINED BELOW) THAT ARE TENDERED AND NOT WITHDRAWN (BUT
CONTINUING TO INCLUDE FOR SUCH PURPOSE ALL ORDINARY SHARES WITHDRAWN AT THE
INSTRUCTION OF AMERADA HESS) AND ALL ORDINARY SHARES ISSUABLE UPON CONVERSION OF
PREFERRED SHARES THAT ARE SURRENDERED FOR CONVERSION BY THE PRINCIPAL
SHAREHOLDERS WITH APPROPRIATE TENDER INSTRUCTIONS PURSUANT TO THE PRINCIPAL
SHAREHOLDERS AGREEMENT (AS DEFINED BELOW) (BUT CONTINUING TO INCLUDE FOR SUCH
PURPOSE ALL ORDINARY SHARES ISSUABLE UPON CONVERSION OF PREFERRED SHARES WITH
RESPECT TO WHICH TENDER AND CONVERSION INSTRUCTIONS ARE REVOKED AT THE
INSTRUCTION OF AMERADA HESS) SHALL BE INCLUDED IN SUCH CALCULATION. AMERADA HESS
OR THE PURCHASER MAY, AT ANY TIME, AMEND THE MINIMUM CONDITION TO EQUAL THE
NUMBER OF ORDINARY SHARES REPRESENTING AT LEAST A MAJORITY OF THE TOTAL NUMBER
OF VOTES OF THE ORDINARY SHARES DETERMINED ON A FULLY DILUTED BASIS ("ON A FULLY
DILUTED BASIS" MEANING, AT ANY TIME, THE NUMBER OF ORDINARY SHARES ALLOTTED AND
ISSUED, TOGETHER WITH THE ORDINARY SHARES WHICH THE COMPANY MAY BE REQUIRED TO
ISSUE, NOW OR IN THE FUTURE, INCLUDING, WITHOUT LIMITATION, ORDINARY SHARES
ISSUABLE PURSUANT TO WARRANTS, OPTIONS OR OTHER RIGHTS OR OTHER OBLIGATIONS
OUTSTANDING AT SUCH TIME UNDER EMPLOYEE STOCK OR SIMILAR BENEFIT PLANS OR
OTHERWISE, WHETHER OR NOT VESTED OR THEN EXERCISABLE, BUT EXCLUDING THE EFFECT
OF THE RIGHTS). THE AMENDMENT OF THE MINIMUM CONDITION AS DESCRIBED ABOVE WOULD
REQUIRE ADEQUATE NOTICE OF SUCH AMENDMENT TO HOLDERS AND MIGHT REQUIRE AN
EXTENSION OF THE OFFER. THE OFFER IS ALSO CONDITIONED ON THE SATISFACTION OF THE
HSR CONDITION (AS DEFINED BELOW) AND THE SATISFACTION OF CERTAIN OTHER TERMS AND
CONDITIONS DESCRIBED IN SECTION 14 -- "CONDITIONS OF THE OFFER."
"HSR CONDITION" MEANS THE EXPIRATION OR TERMINATION OF ANY APPLICABLE
WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976,
AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER
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(THE "HSR ACT"). SEE SECTION 14 -- "CONDITIONS OF THE OFFER" FOR A COMPLETE
DESCRIPTION OF THE CONDITIONS OF THE OFFER.
AMERADA HESS AND THE PURCHASER HAVE ENTERED INTO A PRINCIPAL SHAREHOLDERS
AGREEMENT (THE "PRINCIPAL SHAREHOLDERS AGREEMENT") DATED AS OF JULY 9, 2001 WITH
THE COMPANY, HM4 TRITON, L.P., AN AFFILIATE OF HICKS, MUSE, TATE & FURST
INCORPORATED ("HICKS MUSE"), AND CERTAIN OTHER SHAREHOLDERS OF THE COMPANY (THE
"PRINCIPAL SHAREHOLDERS"). THE PRINCIPAL SHAREHOLDERS BENEFICIALLY OWN, IN THE
AGGREGATE, 1,733,573 ORDINARY SHARES AND 5,058,685 PREFERRED SHARES. EACH
PREFERRED SHARE IS CONVERTIBLE INTO FOUR ORDINARY SHARES. THE ORDINARY SHARES
AND THE PREFERRED SHARES BENEFICIALLY OWNED BY THE PRINCIPAL SHAREHOLDERS
REPRESENT APPROXIMATELY 37.7% OF THE ALLOTTED AND ISSUED ORDINARY SHARES,
ASSUMING CONVERSION OF SUCH PREFERRED SHARES (34.2% ON A FULLY DILUTED BASIS).
THE PRINCIPAL SHAREHOLDERS HAVE AGREED TO TENDER PURSUANT TO THE OFFER THEIR
ORDINARY SHARES AND TO CONDITIONALLY CONVERT THEIR PREFERRED SHARES AND
CONDITIONALLY TENDER PURSUANT TO THE OFFER THE ORDINARY SHARES INTO WHICH THE
PREFERRED SHARES ARE CONVERTIBLE. THE ACQUISITION AGREEMENT REQUIRES THE
PURCHASER TO ACCEPT FOR PAYMENT AND PAY FOR ALL ORDINARY SHARES OWNED BY THE
PRINCIPAL SHAREHOLDERS AND ALL ORDINARY SHARES ISSUABLE UPON CONVERSION OF THE
PREFERRED SHARES OWNED BY THE PRINCIPAL SHAREHOLDERS IF THE PURCHASER ACCEPTS
FOR PAYMENT ANY ORDINARY SHARES PURSUANT TO THE OFFER. IF THE ORDINARY SHARES
BENEFICIALLY OWNED BY THE PRINCIPAL SHAREHOLDERS (INCLUDING ORDINARY SHARES
ISSUABLE UPON THE CONDITIONAL CONVERSION AND TENDER OF THE PREFERRED SHARES) ARE
NOT PURCHASED PURSUANT TO THE OFFER (EXCLUDING FOR THIS PURPOSE ANY SUBSEQUENT
OFFERING PERIOD (AS DEFINED BELOW)), THE PURCHASER WILL PURCHASE THE ORDINARY
SHARES AND THE PREFERRED SHARES BENEFICIALLY OWNED BY THE PRINCIPAL SHAREHOLDERS
FOLLOWING THE EXPIRATION OF THE INITIAL OFFERING PERIOD (INCLUDING ANY EXTENSION
THEREOF). THE PURCHASE PRICE FOR THE ORDINARY SHARES WOULD BE $45.00 PER SHARE
IN CASH AND THE PURCHASE PRICE FOR THE PREFERRED SHARES WOULD BE $180.00 PER
SHARE, PLUS ANY ACCUMULATED AND UNPAID DIVIDENDS THEREON, IN CASH.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY (I) DETERMINED THAT
THE ACQUISITION AGREEMENT (AS DEFINED BELOW), THE PRINCIPAL SHAREHOLDERS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER, THE
SCHEME OF ARRANGEMENT (AS DEFINED BELOW) AND THE COMPULSORY ACQUISITION (AS
DEFINED BELOW) ARE FAIR TO AND IN THE BEST INTERESTS OF THE COMPANY AND THE
HOLDERS OF ORDINARY SHARES AND PREFERRED SHARES (OTHER THAN, IN THE CASE OF
TRANSACTIONS CONTEMPLATED BY THE PRINCIPAL SHAREHOLDERS AGREEMENT, THE PRINCIPAL
SHAREHOLDERS), (II) APPROVED THE EXECUTION, DELIVERY AND PERFORMANCE BY THE
COMPANY OF THE ACQUISITION AGREEMENT AND THE PRINCIPAL SHAREHOLDERS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER, THE SCHEME OF
ARRANGEMENT AND THE COMPULSORY ACQUISITION, AND (III) RESOLVED TO RECOMMEND THAT
THE HOLDERS ACCEPT THE OFFER AND TENDER THEIR ORDINARY SHARES (INCLUDING THE
RIGHTS) PURSUANT TO THE OFFER AND THAT THE HOLDERS OF ORDINARY SHARES AND
PREFERRED SHARES APPROVE THE SCHEME OF ARRANGEMENT, IF SUCH APPROVAL IS SOUGHT.
THE COMPANY HAS ADVISED AMERADA HESS THAT J.P. MORGAN SECURITIES INC., THE
FINANCIAL ADVISOR TO THE COMPANY, HAS DELIVERED TO THE BOARD OF DIRECTORS OF THE
COMPANY ITS OPINION DATED JULY 9, 2001, THAT, AS OF THE DATE OF THE ACQUISITION
AGREEMENT, THE CONSIDERATION TO BE RECEIVED IN THE OFFER AND EITHER THE PROPOSED
COMPULSORY ACQUISITION OR THE PROPOSED SCHEME OF ARRANGEMENT, AS APPLICABLE, BY
THE HOLDERS OF ORDINARY SHARES AND THE HOLDERS OF THE PREFERRED SHARES (OTHER
THAN AMERADA HESS OR ANY DIRECT OR INDIRECT SUBSIDIARY THEREOF) IS FAIR, FROM A
FINANCIAL POINT OF VIEW, TO SUCH HOLDERS (OTHER THAN, IN THE CASE OF THE
TRANSACTIONS CONTEMPLATED BY THE PRINCIPAL SHAREHOLDERS AGREEMENT, THE PRINCIPAL
SHAREHOLDERS), SUBJECT TO THE ASSUMPTIONS AND QUALIFICATIONS SET FORTH THEREIN.
A COPY OF THE OPINION OF J.P. MORGAN SECURITIES INC., WHICH SETS FORTH THE
ASSUMPTIONS MADE, FACTORS CONSIDERED AND SCOPE OF REVIEW UNDERTAKEN BY J.P.
MORGAN SECURITIES INC., IS CONTAINED IN THE COMPANY'S
SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 (THE "SCHEDULE 14D-9"),
WHICH IS BEING MAILED TO THE HOLDERS CONCURRENTLY HEREWITH. HOLDERS ARE URGED TO
READ THE FULL TEXT OF THAT OPINION.
The Offer is being made pursuant to an Acquisition Agreement (the
"Acquisition Agreement"), dated as of July 9, 2001, as amended, by and among
Amerada Hess, the Purchaser and the Company. The Acquisition Agreement provides
that, in the event that, following the purchase of Ordinary Shares pursuant to
the Offer (including any Subsequent Offering Period), Amerada Hess, the
Purchaser and any other subsidiary of Amerada Hess shall own Ordinary Shares
which represent at least 90% in value of the Ordinary Shares, the Company,
Amerada Hess and the Purchaser agree to take all necessary and appropriate
action for the
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Purchaser to effect the compulsory acquisition (the "Compulsory Acquisition") of
those Ordinary Shares that are not owned by Amerada Hess, the Purchaser or any
other subsidiary of Amerada Hess in accordance with Section 88 of the Companies
Law (2001 Second Revision) of the Cayman Islands (the "Companies Law") as
promptly as practicable after the acceptance for payment of Ordinary Shares
pursuant to the Offer. See Section 11 -- "Purpose of the Offer; Plans for the
Company; Certain Agreements."
Promptly following the acceptance for payment of Ordinary Shares pursuant
to the Offer and, if applicable, the Subsequent Offering Period which results in
Amerada Hess, the Purchaser and any other subsidiary of Amerada Hess owning
Ordinary Shares which represent less than 90% in value of the Ordinary Shares,
or the expiration of the Offer without the purchase of any Ordinary Shares
thereunder, (A) if the Offer has remained open for a minimum of 20 business
days, plus any extension of the Expiration Date (as defined below) (up to an
additional ten days) that has been required by the Company, and (B) if requested
by Amerada Hess or the Purchaser, in their sole discretion and in accordance
with applicable law, the Company shall (i) cause an application to be made to
the Grand Court of the Cayman Islands (the "Court") requesting the Court to
summon such class meetings of shareholders of the Company as the Court may
direct ("Shareholders' Meetings"), (ii) if directed by the Court, convene such
Shareholders' Meetings seeking the approval required under Section 86(2) of the
Companies Law and (iii) subject to such approvals being obtained, cause a
petition to be presented to the Court seeking the sanctioning of a scheme of
arrangement pursuant to Section 86 of the Companies Law (the "Scheme of
Arrangement") and file such other documents as are required to be duly filed
with the Court to effect the Scheme of Arrangement. Upon the Company having
caused a copy of the order of the Court sanctioning the Scheme of Arrangement to
be duly delivered to the Registrar of Companies of the Cayman Islands (the
"Registrar") and the registration of such order by the Registrar (the "Scheme
Effective Time"), by virtue of the Scheme of Arrangement: (i) each Ordinary
Share (and the associated Rights) issued and outstanding immediately prior to
the Scheme Effective Time (other than Ordinary Shares (and the associated
Rights) which are held by any wholly owned subsidiary of the Company, or which
are held, directly or indirectly, by Amerada Hess or any subsidiary of Amerada
Hess (including the Purchaser)) shall be, by virtue of the Scheme of Arrangement
and without any action required by the Holder thereof, transferred to the
Purchaser in consideration for $45.00 in cash per Ordinary Share transferred;
and (ii) in the event that there are Preferred Shares outstanding on the
commencement of the Scheme of Arrangement, each Preferred Share issued and
outstanding immediately prior to the Scheme Effective Time (other than Preferred
Shares which are held by any wholly owned subsidiary of the Company, or which
are held, directly or indirectly, by Amerada Hess or any subsidiary of Amerada
Hess (including the Purchaser)) shall be, by virtue of the Scheme of Arrangement
and without any action required by the holder thereof, transferred to the
Purchaser in consideration for $180.00, plus any accumulated and unpaid
dividends thereon through the Scheme Effective Date, in cash per Preferred
Share. See Section 11 -- "Purpose of the Offer; Plans for the Company; Certain
Agreements."
The Company has informed the Purchaser that, as of July 5, 2001, there were
(i) 37,500,375 Ordinary Shares outstanding, (ii) 5,180,265 Preferred Shares
outstanding, (iii) no Series A junior participating preference shares
outstanding, (iv) no Ordinary Shares and no Preferred Shares held in the
Company's treasury and (v) stock options and other rights issued and
outstanding, representing in the aggregate the right to purchase 6,013,818
Ordinary Shares. Based on the foregoing numbers and assuming the conversion of
all of the Preferred Shares and the tender of all of the Ordinary Shares
resulting from such conversion and the exercise of all options and the tender of
all of the Ordinary Shares resulting from the exercise of such options, the
Minimum Condition would be satisfied if 57,811,728 Ordinary Shares are validly
tendered and not properly withdrawn prior to the Expiration Date. As the
Principal Shareholders beneficially own 21,968,313 Ordinary Shares (assuming
full conversion of Preferred Shares beneficially owned by the Principal
Shareholders), based on the same information and assumptions, the Minimum
Condition would be satisfied if 35,843,415 Ordinary Shares are validly tendered
and not properly withdrawn by Holders other than the Principal Shareholders
prior to the Expiration Date.
The Company has been advised, and has informed Amerada Hess, that each of
its directors and executive officers intends to tender pursuant to the Offer all
Ordinary Shares owned of record and beneficially by him or
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her, except to the extent that such tender would violate applicable securities
laws or require disgorgement of profits from any such tender offer under Section
16 of the Exchange Act (as defined below).
THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
THE TENDER OFFER
1. TERMS OF THE OFFER. On the terms and subject to the conditions of the
Offer (including, if the Offer is extended or amended, the terms and conditions
of any extension or amendment), the Purchaser will accept for payment and pay
for all Ordinary Shares validly tendered prior to the Expiration Date and not
properly withdrawn in accordance with Section 4 -- "Withdrawal Rights." The term
"Expiration Date" means 12:00 midnight, New York City time, on Monday, August
13, 2001, unless and until the Purchaser, in its sole discretion or at the
direction of the Company (subject to the terms of the Acquisition Agreement),
shall have extended the period of time during which the Offer is open, in which
event the term "Expiration Date" shall mean the latest time and date at which
the Offer, as so extended by the Purchaser, shall expire.
The Offer is conditioned on, among other things, satisfaction of the
Minimum Condition and the HSR Condition. The Offer is also subject to certain
other conditions set forth in Section 14 -- "Conditions of the Offer." If these
or any of the other conditions referred to in Section 14 -- "Conditions of the
Offer" are not satisfied or any of the events specified in Section
14 -- "Conditions of the Offer" have occurred or are determined by the Purchaser
to have occurred prior to the Expiration Date, the Purchaser, subject to the
terms of the Acquisition Agreement and the limitations described below,
expressly reserves the right (but is not obligated) to (i) decline to purchase
any of the Ordinary Shares tendered in the Offer and terminate the Offer, and
return all tendered Ordinary Shares to the tendering Holders, (ii) waive or
amend any or all conditions to the Offer and, to the extent permitted by the
Acquisition Agreement or applicable law and applicable rules and regulations of
the Securities and Exchange Commission (the "Commission"), purchase all Ordinary
Shares validly tendered or (iii) extend the Offer and, subject to the right of a
tendering Holder to withdraw its Ordinary Shares until the Expiration Date,
retain the Ordinary Shares which have been tendered during the period or periods
for which the Offer is extended.
The Rights are currently evidenced by the certificates for the Ordinary
Shares and the tender by a Holder of such Holder's Ordinary Shares will also
constitute a tender of the associated Rights. Pursuant to the Offer, no separate
payment will be made by the Purchaser for the Rights.
Subject to the terms of the Acquisition Agreement described below, the
applicable rules and regulations of the Commission and applicable law, the
Purchaser expressly reserves the right, in its sole discretion, at any time and
from time to time, to extend for any reason the period of time during which the
Offer is open, including upon the occurrence of any of the events specified in
Section 14 -- "Conditions of the Offer," by giving notice of such extension to
the Depositary and by making a public announcement thereof not later than 9:00
a.m. New York City time, on the next business day after the day on which the
Offer was scheduled to expire. The Company also may require the Purchaser to
extend the initial offering period on one occasion for up to ten calendar days
if, at the scheduled expiration date of the Offer, the tender offer conditions
have not been satisfied or, even if the tender offer conditions have been
satisfied, less than 90% in value of the Ordinary Shares have been tendered into
and not withdrawn from the Offer. Except as may be required pursuant to the
Acquisition Agreement, there can be no assurance that the Purchaser or the
Company will exercise its right to extend the Offer. During any such extension,
all Ordinary Shares previously tendered and not withdrawn will remain subject to
the Offer, subject to the rights of a tendering Holder to withdraw its Ordinary
Shares. See Section 4 -- "Withdrawal Rights."
Subject to the terms of the Acquisition Agreement described below, the
applicable rules and regulations of the Commission and to applicable law, the
Purchaser also expressly reserves the right, in its sole discretion, at any time
and from time to time (i) to delay acceptance for payment of, or, regardless of
whether such Ordinary Shares were theretofore accepted for payment, payment for,
any Ordinary Shares if any applicable waiting period under the HSR Act has not
expired or been terminated, (ii) to terminate the Offer on any
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scheduled Expiration Date and not accept for payment any Ordinary Shares if any
of the conditions referred to in Section 14 -- "Conditions of the Offer" are not
satisfied or any of the events specified in Section 14 -- "Conditions of the
Offer" have occurred and (iii) to waive any condition or otherwise amend the
Offer in any respect (subject to the limitations described below) by giving oral
or written notice of such delay, termination, waiver or amendment to the
Depositary and by making a public announcement thereof.
The Purchaser expressly reserves the right to modify the terms of the
Offer, provided, however, that the Purchaser shall not (and Amerada Hess shall
cause the Purchaser not to), without the prior written consent of the Company,
(i) reduce the number of Ordinary Shares to be purchased pursuant to the Offer,
(ii) reduce the Ordinary Share Offer Price, (iii) impose any additional
conditions to the Offer, (iv) change the form of consideration payable in the
Offer, (v) make any change to the terms of the Offer, including without
limitation the tender offer conditions, which is materially adverse in any
manner to the Holders, (vi) amend or waive the Minimum Condition, except that
the Purchaser may, at any time, amend the Minimum Condition to equal the number
of Ordinary Shares representing a majority of the total number of votes of the
outstanding Ordinary Shares determined on a fully diluted basis or (vii) extend
the Expiration Date, provided, however, that Amerada Hess or the Purchaser may
extend the Expiration Date: (A) as required by any rule, regulation or
interpretation of the Commission; or (B) in the event that any condition to the
Offer is not satisfied and, to the extent permitted in the Acquisition
Agreement, is not waived as of the scheduled Expiration Date, for such
successive periods for up to ten business days at a time (or such longer period
as shall be approved by the Company) until the earlier of the acceptance for
payment of any Ordinary Shares pursuant to the Offer or September 15, 2001.
Notwithstanding anything in the foregoing to the contrary, the Company may
require the Purchaser to extend the offer on one occasion for a maximum period
of ten days if at the scheduled Expiration Date, the tender offer conditions
(assuming for this purpose that the Minimum Condition has not been amended as
contemplated in clause (vi) of the preceding sentence) have not been satisfied.
The Purchaser acknowledges that (i) Rule 14e-1(c) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), requires the Purchaser to
pay the consideration offered or return the Ordinary Shares tendered promptly
after the termination or withdrawal of the Offer and (ii) the Purchaser may not
delay acceptance for payment of, or payment for (except as provided in clause
(i) of the second preceding paragraph), any Ordinary Shares upon the occurrence
of any of the conditions specified in Section 14 -- "Conditions of the Offer"
without extending the period of time during which the Offer is open. During any
such extension, all Ordinary Shares previously tendered and not properly
withdrawn will remain subject to the Offer, subject to the right of a tendering
Holder to withdraw its Ordinary Shares.
Pursuant to Rule 14d-11 under the Exchange Act, the Purchaser, subject to
certain conditions, may make available a subsequent offering period (the
"Subsequent Offering Period") by extending the Offer on one occasion for a
period of not less than three business days and not to exceed 20 business days.
Additionally, Amerada Hess, the Purchaser and the Company have agreed that (i)
the Purchaser may include a Subsequent Offering Period for up to a maximum of 20
business days and (ii) the Company may require the Purchaser to make a
Subsequent Offering Period available to the Holders by extending the offer on
one occasion for up to a maximum of 20 business days, if the Purchaser amends
the Minimum Condition as contemplated in clause (vi) of the first sentence of
the second preceding paragraph and accepts Ordinary Shares tendered and not
withdrawn for payment pursuant to the terms of the Offer.
If the Purchaser commences a Subsequent Offering Period, U.S. federal
securities laws require the Purchaser to accept immediately for payment all
tenders of Ordinary Shares during a Subsequent Offering Period and to pay
promptly for all Ordinary Shares tendered in any Subsequent Offering Period.
During a Subsequent Offering Period, tendering Holders will not have
withdrawal rights and the Purchaser will promptly accept and pay for all
Ordinary Shares tendered at the same price paid in the Offer. Rule 14d-11
provides that the Purchaser may provide a Subsequent Offering Period so long as,
among other things, (i) the initial 20 business day period of the Offer has
expired, (ii) the offer is for all outstanding securities of the class that is
the subject of the Offer, (iii) the Purchaser accepts and promptly pays for all
Ordinary Shares tendered during the Offer prior to its expiration, (iv) the
Purchaser announces the results of the Offer, including the approximate number
and percentage of Ordinary Shares deposited in the Offer, no
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later than 9:00 a.m. New York City time on the next business day after the
Expiration Date and immediately begins the Subsequent Offering Period, (v) the
Purchaser immediately accepts and promptly pays for Ordinary Shares as they are
tendered during the Subsequent Offering Period and (vi) the Purchaser offers the
same form and amount of consideration for Ordinary Shares in the Subsequent
Offering Period as in the Offer. The staff of the Commission has expressed the
view that a bidder can decide to provide for a Subsequent Offering Period after
the initial offering period has expired if such a Subsequent Offering Period is
announced at the same time that the bidder announces the results of the initial
offering period. In the event the Purchaser elects to include a Subsequent
Offering Period, it will notify Holders consistent with the requirements of the
Commission.
THE PURCHASER MAY INCLUDE A SUBSEQUENT OFFERING PERIOD IN THE OFFER IN THE
CIRCUMSTANCES SET FORTH ABOVE. PURSUANT TO RULE 14d-7 UNDER THE EXCHANGE ACT, NO
WITHDRAWAL RIGHTS APPLY TO ORDINARY SHARES TENDERED DURING A SUBSEQUENT OFFERING
PERIOD WITH RESPECT TO ORDINARY SHARES TENDERED IN THE OFFER AND ACCEPTED FOR
PAYMENT. THE SAME CONSIDERATION, THE ORDINARY SHARE OFFER PRICE, WILL BE PAID TO
HOLDERS TENDERING ORDINARY SHARES IN THE OFFER OR IN A SUBSEQUENT OFFERING
PERIOD, IF ONE IS INCLUDED.
Any extension, delay, termination, waiver or amendment described below will
be followed, as promptly as practicable, by public announcement thereof, with
such announcement in the case of an extension to be made no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date. Subject to applicable law (including Rules 14d-4(c),
14d-6(c) and 14e-1 under the Exchange Act, which require that material changes
be promptly disseminated to Holders in a manner reasonably designed to inform
them of such changes) and without limiting the manner in which the Purchaser may
choose to make any public announcement, the Purchaser will have no obligation to
publish, advertise or otherwise communicate any such public announcement other
than by issuing a press release to the Dow Jones News Service or as otherwise
may be required by applicable law.
If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer, the Purchaser will extend the Offer to the extent required by Rules
14d-4(d), 14d-6(c) and 14e-1 under the Exchange Act. The minimum period during
which the Offer must remain open following material changes in the terms of the
Offer or information concerning the Offer, other than a change in price or a
change in the percentage of Ordinary Shares sought, will depend upon the facts
and circumstances then existing, including the relative materiality of the
changed terms or information. With respect to a change in price or a change in
the percentage of Ordinary Shares sought, a minimum period of ten business days
is generally required to allow for adequate dissemination to Holders and
investor response. The amendment of the Minimum Condition, as described above,
would require that adequate notice of such amendment be provided to Holders and
might require an extension of the Offer.
The Company has provided the Purchaser with the Company's shareholder lists
and security position listings in respect of the Ordinary Shares for the purpose
of disseminating the Offer to Purchase, the Letter of Transmittal and other
relevant materials to Holders. This Offer to Purchase, the Letter of Transmittal
and other relevant materials will be mailed to record Holders whose names appear
on the Company's list of Holders and will be furnished, for subsequent
transmittal to beneficial owners of Ordinary Shares, to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the names
of whose nominees, appear on the Company's list of Holders or, where applicable,
who are listed as participants in the security position listing of The
Depository Trust Company ("DTC").
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR ORDINARY SHARES. On the terms
and subject to the conditions of the Offer (including, if the Offer is extended
or amended, the terms and conditions of any such extension or amendment), the
Acquisition Agreement and applicable law (including Rule 14e-1(c) under the
Exchange Act), the Purchaser will purchase, by accepting for payment, and will
pay for, all Ordinary Shares validly tendered prior to the Expiration Date (and
not properly withdrawn in accordance with Section 4 -- "Withdrawal Rights")
promptly after the later to occur of (i) the Expiration Date and (ii) the
satisfaction or waiver of the conditions set forth in Section 14 -- "Conditions
of the Offer," including, but not limited to, the regulatory conditions
specified in Section 15 -- "Certain Legal Matters; Regulatory Approvals."
Subject to applicable rules of the Commission and the terms of the Acquisition
Agreement, the Purchaser expressly
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reserves the right, in its sole discretion, to delay acceptance for payment of,
or payment for, Ordinary Shares in order to comply, in whole or in part, with
any applicable law. If, following acceptance for payment of Ordinary Shares, the
Purchaser asserts such regulatory approvals as a condition and does not promptly
pay for Ordinary Shares tendered, the Purchaser will promptly return such
Ordinary Shares.
In all cases, payment for Ordinary Shares purchased pursuant to the Offer
will be made only after timely receipt by the Depositary of (i) the certificates
evidencing such Ordinary Shares (the "Certificates") or timely confirmation of a
book-entry transfer (a "Book-Entry Confirmation") of such Ordinary Shares into
the Depositary's account at DTC (the "Book-Entry Transfer Facility"), pursuant
to the procedures set forth in Section 3 -- "Procedures for Tendering Ordinary
Shares," (ii) the Letter of Transmittal (or a copy thereof), properly completed
and duly executed with any required signature guarantees, or an Agent's Message
(as defined below) in connection with a book-entry transfer and (iii) any other
documents required to be included with the Letter of Transmittal under the terms
and subject to the conditions thereof and to this Offer to Purchase.
The term "Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary forming a part of a
Book-Entry Confirmation system, which states that the Book-Entry Transfer
Facility has received an express acknowledgment from a participant in the
Book-Entry Transfer Facility tendering the Ordinary Shares that such participant
has received and agrees to be bound by the terms of the Letter of Transmittal
and that the Purchaser may enforce such agreement against such participant.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment (and thereby purchased) Ordinary Shares validly tendered and not
properly withdrawn if, as and when the Purchaser gives oral or written notice to
the Depositary of the Purchaser's acceptance for payment of such Ordinary
Shares. On the terms and subject to the conditions of the Offer, payment for
Ordinary Shares accepted pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary within three business days after
acceptance for payment of Ordinary Shares tendered pursuant to the Offer, which
will act as agent for tendering Holders for the purpose of receiving payments
from the Purchaser and transmitting payments to such tendering Holders whose
Ordinary Shares have been accepted for payment. UNDER NO CIRCUMSTANCES WILL
INTEREST ON THE ORDINARY SHARE OFFER PRICE BE PAID BY THE PURCHASER, REGARDLESS
OF ANY DELAY IN MAKING SUCH PAYMENT OR EXTENSION OF THE EXPIRATION DATE. Upon
the deposit of funds with the Depositary for the purpose of making payments to
tendering Holders, the Purchaser's obligation to make such payment shall be
satisfied, and tendering Holders must thereafter look solely to the Depositary
for payment of amounts owed to them by reason of the acceptance for payment of
Ordinary Shares pursuant to the Offer.
If any tendered Ordinary Shares are not accepted for payment for any reason
pursuant to the terms and conditions of the Offer, or if Certificates are
submitted evidencing more Ordinary Shares than are tendered, Certificates
evidencing Ordinary Shares not purchased will be returned, without expense to
the tendering Holder (or, in the case of Ordinary Shares tendered by book-entry
transfer into the Depositary's account at the Book-Entry Transfer Facility
pursuant to the procedure set forth in Section 3 -- "Procedures for Tendering
Ordinary Shares," such Ordinary Shares will be credited to an account maintained
at the Book-Entry Transfer Facility), as promptly as practicable following the
expiration or termination of the Offer.
If, prior to the Expiration Date, the Purchaser increases the consideration
to be paid per Ordinary Share pursuant to the Offer, the Purchaser will pay such
increased consideration for all such Ordinary Shares purchased pursuant to the
Offer, whether or not such Ordinary Shares were tendered prior to such increase
in consideration.
The Purchaser reserves the right to assign to Amerada Hess, or to any other
direct or indirect wholly owned subsidiary of Amerada Hess, the right to
purchase all or any portion of the Ordinary Shares tendered pursuant to the
Offer, but any such assignment will not relieve the Purchaser of its obligations
under the Offer and the Acquisition Agreement and will in no way prejudice the
rights of tendering Holders to receive payment for Ordinary Shares validly
tendered and accepted for payment pursuant to the Offer.
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3. PROCEDURES FOR TENDERING ORDINARY SHARES.
VALID TENDER OF ORDINARY SHARES. In order for Ordinary Shares to be
validly tendered pursuant to the Offer, a Holder must, prior to the Expiration
Date, either (i) deliver to the Depositary at one of its addresses set forth on
the back cover of this Offer to Purchase (a) a properly completed and duly
executed Letter of Transmittal (or a copy thereof) with any required signature
guarantees, (b) the Certificates to be tendered and (c) any other documents
required to be included with the Letter of Transmittal under the terms and
subject to the conditions thereof and of this Offer to Purchase, (ii) cause such
Holder's broker, dealer, commercial bank, trust company or custodian to tender
applicable Ordinary Shares pursuant to the procedures for book-entry transfer
described below or (iii) comply with the guaranteed delivery procedures
described below.
The Offer is not being made to holders of Preferred Shares. If holders of
Preferred Shares wish to participate in the Offer, they can convert their
Preferred Shares into Ordinary Shares and then tender the resulting Ordinary
Shares pursuant to the Offer. Alternatively, the Purchaser has been informed by
the Company that the Company intends to make available to holders of Preferred
Shares the opportunity to surrender their Preferred Shares for conversion into
Ordinary Shares conditional upon the Purchaser's acceptance for payment of
Ordinary Shares pursuant to the Offer. Holders of Preferred Shares will be
contacted separately regarding the procedures to be followed to conditionally
convert their Preferred Shares and tender the Ordinary Shares to be issued upon
such conversion. If a holder of Preferred Shares chooses to convert such
Preferred Shares into Ordinary Shares other than pursuant to the conditional
conversion referred to above, and tender the Ordinary Shares issued upon such
conversion, such holder must allow sufficient time to both follow the procedures
for converting the Preferred Shares and tendering the Ordinary Shares issued
upon such conversion prior to the Expiration Date of the Offer.
Pursuant to the Rights Agreement, until the close of business on the
Distribution Date, the Rights will be transferred with and only with the
Certificates for Ordinary Shares and the surrender for transfer of any
Certificates will also constitute the transfer of the Rights associated with the
Ordinary Shares represented by such Certificates. Pursuant to an amendment to
the Rights Agreement dated as of July 9, 2001, no Distribution Date will occur
by reason of the commencement of the Offer, the acceptance for payment of, or
the payment for, Ordinary Shares pursuant to the Offer or the consummation of a
Compulsory Acquisition, a Scheme of Arrangement or the other transactions
contemplated by the Acquisition Agreement.
If separate certificates representing the Rights are issued to Holders
prior to the time a Holder's Ordinary Shares are tendered pursuant to the Offer,
certificates representing a number of Rights equal to the number of Ordinary
Shares tendered must be delivered to the Depositary, or, if available, a
Book-Entry Confirmation received by the Depositary with respect thereto, in
order for such Ordinary Shares to be validly tendered. If the Distribution Date
occurs and separate certificates representing the Rights are not distributed
prior to the time Ordinary Shares are tendered pursuant to the Offer, Rights may
be tendered prior to a Holder receiving the certificates for Rights by use of
the guaranteed delivery procedures described below. A tender of Ordinary Shares
constitutes an agreement by the tendering Holder to deliver certificates
representing all Rights formerly associated with the number of Ordinary Shares
tendered pursuant to the Offer to the Depositary prior to expiration of the
period permitted by such guaranteed delivery procedures for delivery of
certificates for, or a Book-Entry Confirmation with respect to, Rights (the
"Rights Delivery Period"). However, after expiration of the Rights Delivery
Period, the Purchaser may elect to reject as invalid a tender of Ordinary Shares
with respect to which certificates for, or a Book-Entry Confirmation with
respect to, the number of Rights required to be tendered with such Ordinary
Shares have not been received by the Depositary. Nevertheless, the Purchaser
will be entitled to accept for payment Ordinary Shares tendered by a Holder
prior to receipt of the certificates for the Rights required to be tendered with
such Ordinary Shares, or a Book-Entry Confirmation with respect to such Rights,
and either (i) subject to complying with applicable rules and regulations of the
Commission, withhold payment for such Ordinary Shares pending receipt of the
certificates for, or a Book-Entry Confirmation with respect to, such Rights or
(ii) make payment for Ordinary Shares accepted for payment pending receipt of
the certificates for, or a Book-Entry Confirmation with respect to, such Rights
in
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reliance upon the agreement of a tendering Holder to deliver Rights and such
guaranteed delivery procedures. Any determination by the Purchaser to make
payment for Ordinary Shares in reliance upon such agreement and such guaranteed
delivery procedures or, after expiration of the Rights Delivery Period, to
reject a tender as invalid will be made in the sole and absolute discretion of
the Purchaser.
THE METHOD OF DELIVERY OF THE ORDINARY SHARES, CERTIFICATES, THE LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE
BOOK-ENTRY TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING HOLDER,
AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
DEPOSITARY (INCLUDING IN THE CASE OF BOOK-ENTRY TRANSFER, BY BOOK-ENTRY
CONFIRMATION). IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
BOOK-ENTRY TRANSFER. The Depositary will establish an account with respect
to the Ordinary Shares at the Book-Entry Transfer Facility for purposes of the
Offer within two business days after the date of this Offer to Purchase. Any
financial institution that is a participant in the Book-Entry Transfer
Facility's system may make book-entry delivery of Ordinary Shares by (i) causing
such securities to be transferred in accordance with the Book-Entry Transfer
Facility's procedures into the Depositary's account and (ii) causing the Letter
of Transmittal to be delivered to the Depositary by means of an Agent's Message.
Although delivery of Ordinary Shares may be effected through book-entry
transfer, either the Letter of Transmittal (or manually signed copy thereof),
properly completed and duly executed, together with any required signature
guarantees, or any Agent's Message in lieu of the Letter of Transmittal, and any
other required documents, must, in any case, be transmitted to and received by
the Depositary prior to the Expiration Date at its address set forth on the back
cover of this Offer to Purchase, or the tendering Holder must comply with the
guaranteed delivery procedures described below. DELIVERY OF THE LETTER OF
TRANSMITTAL AND OTHER REQUIRED DOCUMENTS OR INSTRUCTIONS TO THE BOOK-ENTRY
TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
SIGNATURE GUARANTEE. All signatures on a Letter of Transmittal must be
guaranteed by a financial institution (including most banks, savings and loan
associations and brokerage houses) that is a participant in the Security
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Signature Guarantee Program or the Stock Exchange Medallion Program (each an
"Eligible Institution"), unless the Ordinary Shares tendered thereby are
tendered (i) by the registered holder(s) (which term, for purposes of this
document, shall include any participant in the Book-Entry Transfer Facility
whose name appears on a security position listing as the owner of Ordinary
Shares) of Ordinary Shares who has not completed the box entitled "Special
Delivery Instructions" or the box entitled "Special Payment Instructions" on the
Letter of Transmittal or (ii) for the account of an Eligible Institution. See
Instruction 1 to the Letter of Transmittal.
If a Certificate is registered in the name of a person other than the
signer of the Letter of Transmittal, or if payment is to be made, or a
Certificate not accepted for payment or not tendered is to be returned to a
person other than the registered holder(s), then the Certificate must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear(s) on the Certificate,
with the signature(s) on such Certificate or stock powers guaranteed as
described above. See Instructions 1, 5 and 7 to the Letter of Transmittal.
GUARANTEED DELIVERY. If a Holder desires to tender Ordinary Shares
pursuant to the Offer and such Holder's Certificates are not immediately
available (including because certificates for Rights have not yet been
distributed by the Rights Agent) or time will not permit all required documents
to reach the Depositary prior to the Expiration Date or the procedure for
book-entry transfer cannot be completed on a timely basis, such Ordinary Shares
may nevertheless be tendered if all the following conditions are satisfied:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by the Depositary as provided below prior to the Expiration Date; and
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(iii) the Certificates for all tendered Ordinary Shares in proper form
for transfer, together with a properly completed and duly executed Letter
of Transmittal (or a copy thereof) with any required signature guarantee
(or, in the case of a book-entry transfer, a Book-Entry Confirmation along
with an Agent's Message) and any other documents required by such Letter of
Transmittal, are received by the Depositary within three New York Stock
Exchange, Inc. ("NYSE") trading days after the date of execution of the
Notice of Guaranteed Delivery, or in the case rights certificates have been
issued, three NYSE trading days after the date certificates for Rights are
distributed to Holders by the Rights Agent. A trading day is a day on which
the NYSE is open for business.
Any Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by facsimile transmission, or by mail to the
Depositary and must include a guarantee by an Eligible Institution in the form
set forth in the Notice of Guaranteed Delivery. In the case of Ordinary Shares
held through the Book-Entry Transfer Facility, the Notice of Guaranteed Delivery
must be delivered to the Depositary by a participant by means of the
confirmation system of the Book-Entry Transfer Facility.
OTHER REQUIREMENTS. Notwithstanding any other provision hereof, payment
for Ordinary Shares accepted for payment pursuant to the Offer will, in all
cases, be made only after timely receipt by the Depositary of (i) Certificates
or a Book-Entry Confirmation of the delivery of such Ordinary Shares, and if
certificates evidencing Rights have been issued, such certificates or a
Book-Entry Confirmation, if available, with respect to such certificates (unless
the Purchaser elects, in its sole discretion, to make payment for the Ordinary
Shares pending receipt of such certificates or a Book-Entry Confirmation, if
available, with respect to such certificates), (ii) a properly completed and
duly executed Letter of Transmittal (or a copy thereof) with any required
signature guarantees (or, in the case of a book-entry transfer, an Agent's
Message) and (iii) any other documents required by the Letter of Transmittal.
Accordingly, tendering Holders may be paid at different times depending upon
when Certificates (or certificates for Rights) or Book-Entry Confirmations with
respect to Ordinary Shares (or Rights, if applicable) are actually received by
the Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE ORDINARY
SHARE OFFER PRICE TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF
THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including, but not limited to, time of receipt) and acceptance for
payment of any tendered Ordinary Shares pursuant to any of the procedures
described above will be determined by the Purchaser, in its sole discretion,
whose determination will be final and binding on all parties. The Purchaser
reserves the absolute right to reject any or all tenders of any Ordinary Shares
determined by it not to be in proper form or if the acceptance for payment of,
or payment for, such Ordinary Shares may, in the opinion of the Purchaser's
counsel, be unlawful. The Purchaser also reserves the absolute right, in its
sole discretion (subject to the terms of the Acquisition Agreement) to waive any
of the conditions of the Offer or any defect or irregularity in any tender with
respect to Ordinary Shares of any particular Holder, whether or not similar
defects or irregularities are waived in the case of other Holders. No tender of
Ordinary Shares will be deemed to have been validly made until all defects and
irregularities have been cured or waived.
Subject to the terms of the Acquisition Agreement, the Purchaser's
interpretation of the terms and conditions of the Offer (including the Letter of
Transmittal and the instructions thereto) will be final and binding.
APPOINTMENT AS PROXY. By executing a Letter of Transmittal (or delivering
an Agent's Message) as set forth above, a tendering Holder irrevocably appoints
each designee of the Purchaser as such Holder's attorney-in-fact and proxy, with
full power of substitution, to vote the Ordinary Shares as described below in
such manner as such attorney-in-fact and proxy (or any substitute thereof) shall
deem proper in its sole discretion, and to otherwise act (including pursuant to
written consent) to the full extent of such Holder's rights with respect to the
Ordinary Shares (and any and all dividends, distributions, rights or other
securities issued or issuable in respect of such Ordinary Shares on or after
July 17, 2001 (collectively, the "Distributions")) tendered by such Holder and
accepted for payment by the Purchaser prior to the time of such vote or action.
All such proxies and powers of attorney shall be considered coupled with an
interest in the tendered Ordinary Shares and shall be irrevocable and are
granted in consideration of, and are effective upon, the acceptance for
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payment of such Ordinary Shares and all Distributions in accordance with the
terms of the Offer. Such acceptance for payment by the Purchaser shall revoke,
without further action, any other proxy or power of attorney granted by such
Holder at any time with respect to such Ordinary Shares and all Distributions,
and no subsequent proxies or powers of attorney will be given or written
consents executed (or, if given or executed, will not be deemed effective) with
respect thereto by such Holder. The designees of the Purchaser will, with
respect to the Ordinary Shares for which the appointment is effective, be
empowered to exercise all voting and other rights as they in their sole
discretion may deem proper at any annual, special, adjourned or postponed
meeting of the Company's shareholders, by written consent or otherwise, and the
Purchaser reserves the right to require that, in order for Ordinary Shares or
any Distributions to be deemed validly tendered, immediately upon the
Purchaser's acceptance for payment of such Ordinary Shares, the Purchaser must
be able to exercise all rights (including, without limitation, all voting rights
and rights of conversion) with respect to such Ordinary Shares and receive all
Distributions.
BACKUP WITHHOLDING. UNDER UNITED STATES FEDERAL INCOME TAX LAW, THE AMOUNT
OF ANY PAYMENTS MADE BY THE DEPOSITARY TO HOLDERS (OTHER THAN CORPORATE AND
CERTAIN OTHER EXEMPT HOLDERS) PURSUANT TO THE OFFER MAY BE SUBJECT TO BACKUP
WITHHOLDING TAX AT A RATE OF 31%. TO AVOID SUCH BACKUP WITHHOLDING TAX WITH
RESPECT TO PAYMENTS PURSUANT TO THE OFFER, A NON-EXEMPT, TENDERING "U.S. HOLDER"
(AS DEFINED BELOW) MUST PROVIDE THE DEPOSITARY WITH SUCH HOLDER'S CORRECT
TAXPAYER IDENTIFICATION NUMBER ("TIN") AND CERTIFY UNDER PENALTY OF PERJURY THAT
(I) THE TIN PROVIDED IS CORRECT (OR THAT SUCH HOLDER IS AWAITING A TIN) AND (II)
SUCH HOLDER IS NOT SUBJECT TO BACKUP WITHHOLDING TAX BY COMPLETING THE
SUBSTITUTE FORM W-9 INCLUDED AS PART OF THE LETTER OF TRANSMITTAL. IF BACKUP
WITHHOLDING APPLIES WITH RESPECT TO A HOLDER OR IF A HOLDER FAILS TO DELIVER A
COMPLETED SUBSTITUTE FORM W-9 TO THE DEPOSITARY OR OTHERWISE ESTABLISH AN
EXEMPTION, THE DEPOSITARY IS REQUIRED TO WITHHOLD 31% OF ANY PAYMENTS MADE TO
SUCH HOLDER. SEE SECTION 5 -- "CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES" OF THIS OFFER TO PURCHASE AND THE INFORMATION SET FORTH UNDER THE
HEADING "IMPORTANT TAX INFORMATION" CONTAINED IN THE LETTER OF TRANSMITTAL.
UNDER RECENTLY ENACTED LEGISLATION, THE BACKUP WITHHOLDING TAX RATE OF 31% WILL
BE REDUCED AS OF AUGUST 7, 2001 TO 30.5%. THIS RATE WILL BE FURTHER REDUCED TO
30% FOR YEARS 2002 AND 2003, 29% FOR YEARS 2004 AND 2005, AND 28% FOR 2006 AND
THEREAFTER.
The Purchaser's acceptance for payment of Ordinary Shares tendered pursuant
to the Offer will constitute a binding agreement between the tendering Holder
and the Purchaser on the terms and subject to the conditions of the Offer.
4. WITHDRAWAL RIGHTS. Tenders of Ordinary Shares made pursuant to the
Offer are irrevocable other than as provided by applicable law and the
Acquisition Agreement except that such Ordinary Shares may be withdrawn at any
time prior to the Expiration Date and, unless theretofore accepted for payment
by the Purchaser pursuant to the Offer, may also be withdrawn at any time after
September 14, 2001, or at such later time as may apply if the Offer is extended
beyond that date (excluding any Subsequent Offering Period). In the event the
Purchaser provides a Subsequent Offering Period following the Offer, no
withdrawal rights will apply to Ordinary Shares tendered during such Subsequent
Offering Period or to Ordinary Shares previously tendered in the Offer and
accepted for payment.
If the Purchaser extends the Offer (excluding any Subsequent Offering
Period), is delayed in its acceptance for payment of Ordinary Shares or is
unable to accept Ordinary Shares for payment pursuant to the Offer for any
reason, then, without prejudice to the Purchaser's rights under the Offer but
subject to the Purchaser's obligations under the Exchange Act, the Depositary
may, nevertheless, on behalf of the Purchaser, retain tendered Ordinary Shares,
and such Ordinary Shares may not be withdrawn except to the extent that
tendering Holders are entitled to withdrawal rights as described in this Section
4 -- "Withdrawal Rights." Any such delay will be an extension of the Offer to
the extent required by law.
For a withdrawal to be effective, a written or facsimile transmission
notice of withdrawal must be timely received by the Depositary at its address
set forth on the back cover of this Offer to Purchase. Any such notice of
withdrawal must specify the name of the person who tendered the Ordinary Shares
to be withdrawn, the number of Ordinary Shares to be withdrawn and the name of
the registered holder of the Ordinary Shares, if different from that of the
person who tendered such Ordinary Shares. If Certificates to be withdrawn have
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been delivered or otherwise identified to the Depositary, then, prior to the
physical release of such Certificates, the serial numbers shown on such
Certificates must be submitted to the Depositary and the signature(s) on the
notice of withdrawal must be guaranteed by an Eligible Institution, unless such
Ordinary Shares have been tendered for the account of an Eligible Institution.
Ordinary Shares tendered pursuant to the procedure for book-entry transfer as
set forth in Section 3 -- "Procedures for Tendering Ordinary Shares" may be
withdrawn only by means of the withdrawal procedures made available by the
Book-Entry Transfer Facility, must specify the name and number of the account at
the Book-Entry Transfer Facility to be credited with the withdrawn Ordinary
Shares and must otherwise comply with the Book-Entry Transfer Facility's
procedures.
Withdrawals of tendered Ordinary Shares may not be rescinded without the
Purchaser's consent and any Ordinary Shares properly withdrawn will thereafter
be deemed not validly tendered for purposes of the Offer. All questions as to
the form and validity (including time of receipt) of notices of withdrawal will
be determined by the Purchaser, in its sole discretion, which determination will
be final and binding. None of Amerada Hess, the Purchaser, the Depositary, the
Information Agent, the Dealer Managers or any other person will be under any
duty to give notification of any defects or irregularities in any notice of
withdrawal or incur any liability for failure to give any such notification.
However, any Ordinary Shares properly withdrawn may be re-tendered at any
time prior to the Expiration Date by following any of the procedures described
in Section 3 -- "Procedures for Tendering Ordinary Shares."
5. CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES. The receipt of
cash for Ordinary Shares pursuant to the Offer, the Compulsory Acquisition or
the Scheme of Arrangement by a U.S. Holder will be a taxable transaction for
United States federal income tax purposes and may also be a taxable transaction
under applicable state, local or foreign tax laws. For purposes of this
discussion, a "U.S. Holder" is a beneficial owner of Ordinary Shares who for
United States federal income tax purposes is (i) a citizen or resident of the
United States, (ii) a corporation or partnership organized in or under the laws
of the United States or any State thereof (including the District of Columbia),
(iii) an estate the income of which is subject to United States federal income
taxation regardless of its source or (iv) a trust if such trust has validly
elected to be treated as a United States person for United States federal income
tax purposes or a trust (a) the administration over which a United States court
can exercise primary supervision and (b) all of the substantial decisions of
which one or more United States persons have the authority to control.
In general, a U.S. Holder will recognize gain or loss for United States
federal income tax purposes equal to the difference, if any, between the amount
realized from the sale of Ordinary Shares and such U.S. Holder's adjusted tax
basis in such Ordinary Shares. Assuming that the Ordinary Shares constitute a
capital asset in the hands of the U.S. Holder, such gain or loss will be capital
gain or loss. In the case of a noncorporate U.S. Holder, the maximum marginal
United States federal income tax rate applicable to such gain will be lower than
the maximum marginal United States federal income tax rate applicable to income
if such U.S. Holder's holding period for such Ordinary Shares exceeds one year.
The foregoing discussion may not be applicable to certain types of Holders,
including Holders who acquired Ordinary Shares pursuant to the exercise of stock
options or otherwise as compensation, Holders that are not U.S. Holders and
Holders that are otherwise subject to special tax rules, such as financial
institutions, insurance companies, dealers or traders in securities or
currencies, tax-exempt entities, persons that hold Ordinary Shares as a position
in a "straddle" or as part of a "hedging" or "conversion" transaction for tax
purposes and persons that have a "functional currency" other than the United
States dollar.
BACKUP WITHHOLDING TAX. As noted in Section 3 -- "Procedures for Tendering
Ordinary Shares," a Holder (other than an "exempt recipient" (including a
corporation), a non-U.S. Holder that provides appropriate certification (if the
payor does not have actual knowledge that such certificate is false) and certain
other persons) that receives cash in exchange for Ordinary Shares may be subject
to United States federal backup withholding tax at a rate equal to 31%, unless
such Holder provides its TIN and certifies that such Holder is not subject to
backup withholding tax by submitting a completed Substitute Form W-9 to the
Depositary. Accordingly, each U.S. Holder should complete, sign and submit the
Substitute Form W-9 included as part of the Letter of Transmittal in order to
avoid the imposition of such backup withholding tax.
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Under recently enacted legislation, the backup withholding tax rate of 31% will
be reduced as of August 7, 2001 to 30.5%. This rate will be further reduced to
30% for years 2002 and 2003, 29% for years 2004 and 2005, and 28% for 2006 and
thereafter.
The United States federal income tax discussion set forth above is included
for general information and is based on income tax laws, regulations, rulings
and decisions now in effect, all of which are subject to change (possibly
retroactively). HOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS WITH RESPECT TO
THE SPECIFIC TAX CONSEQUENCES OF THE OFFER TO THEM, INCLUDING THE APPLICATION
AND EFFECT OF THE ALTERNATIVE MINIMUM TAX AND STATE, LOCAL AND FOREIGN TAX LAWS.
6. PRICE RANGE OF ORDINARY SHARES; DIVIDENDS.
ORDINARY SHARES. The Ordinary Shares are listed and traded on the NYSE
under the symbol "OIL." The table below sets forth, for the periods indicated,
the quarterly high and low daily sale prices of the Ordinary Shares on the NYSE:
HIGH LOW
-------- ------
FISCAL YEAR ENDED DECEMBER 31, 1999
First Quarter............................................ $ 8.88 $ 5.19
Second Quarter........................................... 16.00 6.94
Third Quarter............................................ 14.69 10.00
Fourth Quarter........................................... 27.50 13.50
FISCAL YEAR ENDED DECEMBER 31, 2000
First Quarter............................................ $ 38.06 $19.19
Second Quarter........................................... 41.00 29.06
Third Quarter............................................ 50.88 34.13
Fourth Quarter........................................... 39.75 22.81
FISCAL YEAR ENDING DECEMBER 31, 2001
First Quarter............................................ $ 30.75 $17.77
Second Quarter........................................... 32.99 16.75
Third Quarter (through July 9, 2001)..................... 33.42 29.56
- ---------------
Source: Other than fiscal year 2001, data is from the Company's Annual Report on
Form 10-K filed with the Commission on March 15, 2001; fiscal year 2001
data is from Bloomberg.
On July 9, 2001, the last full trading day prior to the public announcement
of the Offer, the reported closing sales price of the Ordinary Shares on the
NYSE was $29.90 per Ordinary Share. On July 16, 2001, the last full trading day
prior to the date of this Offer to Purchase, the last reported closing sales
price of the Ordinary Shares was $44.51 per Ordinary Share. HOLDERS ARE URGED TO
OBTAIN CURRENT AND HISTORICAL MARKET QUOTATIONS FOR THE ORDINARY SHARES.
No cash dividends have been paid on the Ordinary Shares since fiscal 1990.
The Acquisition Agreement prohibits the Company from declaring or paying any
dividends without the prior written consent of Amerada Hess until the earliest
to occur of (i) the acceptance for payment of any Ordinary Shares pursuant to
the Offer, (ii) the date of completion of the Compulsory Acquisition, (iii) the
effective date of the Scheme of Arrangement and (iv) the termination of the
Acquisition Agreement; provided, that the Company may pay regularly scheduled
dividends on the Preferred Shares or upon any redemption of Preferred Shares.
7. CERTAIN INFORMATION CONCERNING THE COMPANY.
THE COMPANY. Except as otherwise stated in this Offer to Purchase, the
information concerning the Company contained in this Offer to Purchase,
including financial information, has been taken from or is based on publicly
available documents and records on file with the Commission and other public
sources. Neither
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Amerada Hess nor the Purchaser assumes any responsibility for the accuracy or
completeness of the information concerning the Company contained in such
documents and records or for any failure by the Company to disclose events which
may have occurred or may affect the significance or accuracy of any such
information but which are unknown to Amerada Hess or the Purchaser.
The Company is an international oil and gas exploration and production
company. Its principal properties, operations, and oil and gas reserves are
located in Colombia, Equatorial Guinea and Malaysia-Thailand. The Company
explores for oil and gas in these areas, as well as in southern Europe, Africa
and the Middle East. The Company is a company limited by shares organized under
the laws of the Cayman Islands. The address of the Company's principal executive
offices is Caledonian House, Jennett Street, P.O. Box 1043, George Town, Grand
Cayman, Cayman Islands. The telephone number of the Company at such offices is
(345) 949-0050.
CAPITAL STRUCTURE. The authorized capital of the Company consists of (a)
200,000,000 Ordinary Shares and (b) 20,000,000 other shares, par value $0.01 per
share, of which 11,000,000 have been authorized as Preferred Shares and 200,000
have been authorized as Series A junior participating preferred shares (the
"Junior Preferred Stock").
(a) SHARES
As of July 5, 2001, the Company had 37,500,375 Ordinary Shares outstanding
and 5,180,265 Preferred Shares outstanding. As of July 5, 2001, no other shares
of any class of the share capital of the Company were outstanding.
(b) RIGHTS
On March 25, 1996, the Board of Directors of the Company authorized and
declared a dividend distribution of one Right for each Ordinary Share
outstanding at the close of business on March 25, 1996, and has authorized the
issuance of one Right for each Ordinary Share of the Company issued between
March 25, 1996 and the Distribution Date. Each Right entitles the holder to
purchase from the Company one one-thousandth of a share of the Junior Preferred
Stock at a price of $120 per one one-thousandth of a share of Junior Preferred
Stock, subject to adjustment.
Currently, the Rights are evidenced by the Certificates for Ordinary Shares
registered in the names of the Holders (which Certificates shall be deemed also
to be certificates for Rights) and not by separate Right certificates, and the
Rights are transferable only in connection with the transfer of the underlying
Ordinary Shares (including a transfer to the Company).
Generally, the Rights become exercisable after the earlier to occur of (i)
the tenth day following the first date of a public announcement by the Company
or an Acquiring Person (as defined below) that an Acquiring Person has become
such or such earlier date as a majority of the Company's Board of Directors
shall become aware of the existence of an Acquiring Person (such first date, the
"Share Acquisition Date") or (ii) the tenth business day after the commencement
by any person (other than the Company, any subsidiary of the Company, any
employee benefit plan of the Company or of any subsidiary of the Company, or any
entity or trustee holding Ordinary Shares for or pursuant to the terms of any
such plan or for the purpose of funding any such plan or funding other employee
benefits for employees of the Company or of any subsidiary of the Company,
hereinafter collectively referred to as the "Exempt Persons") of, or the first
public announcement of the intention of such person (other than an Exempt
Person) to commence, a tender or exchange offer, the consummation of which would
result in any person becoming the beneficial owner of 15% or more of the
Ordinary Shares then outstanding (each such person, an "Acquiring Person") (the
earlier of such dates being hereinafter referred to as the "Distribution Date").
The Purchaser has been advised by the Company that the Company and its Board of
Directors have taken all necessary action to render the Rights Agreement
inapplicable with respect to the Offer pursuant to the terms of the Acquisition
Agreement. The Rights Agreement and the rights conveyed thereby shall be
inapplicable to the transactions contemplated by the Acquisition Agreement and
the Principal Shareholders Agreement or any announcement thereof and any
acquisition by Amerada Hess, the Purchaser or any affiliates or associates of
each of beneficial ownership of
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Ordinary Shares or Preferred Shares following the acquisition by Amerada Hess or
the Purchaser of any Ordinary Shares or Preferred Shares pursuant to the
Principal Shareholders Agreement or the Acquisition Agreement, until after such
time as the ownership of Ordinary Shares held by Amerada Hess, the Purchaser and
their respective affiliates and associates is reduced below certain levels.
Notwithstanding the foregoing, (i) HM4 Triton, L.P. and its affiliates and
associates are deemed not to be an Acquiring Person for purposes of the Rights
Agreement as a result of any acquisition of Ordinary Shares by HM4 Triton, L.P.
or its affiliates and associates unless and until HM4 Triton, L.P.'s ownership
of Ordinary Shares is reduced below certain levels and (ii) Amerada Hess and the
Purchaser or the affiliates and associates of each are deemed not to be an
Acquiring Person for purposes of the Rights Agreement (x) unless and until the
Acquisition Agreement and Principal Shareholders Agreement shall terminate and
neither Amerada Hess nor the Purchaser purchases any Ordinary Shares or
Preferred Shares pursuant thereto or (y) if Amerada Hess or the Purchaser has
purchased any Ordinary Shares or Preferred Shares pursuant thereto, until after
such time as the ownership of Ordinary Shares held by Amerada Hess, the
Purchaser and their respective affiliates and associates is reduced below
certain levels. Notwithstanding anything in the Acquisition Agreement to the
contrary, neither a Share Acquisition Date nor a Distribution Date will be
deemed to have occurred as a result of the execution of the Acquisition
Agreement or the Principal Shareholders Agreement, or the public announcement or
consummation of the transactions contemplated thereby, or any other acquisition
by Amerada Hess, the Purchaser or any affiliates or associates of Ordinary
Shares or Preferred Shares, or any public announcement thereof after the
purchase by Amerada Hess, the Purchaser or any affiliates or associates of
Ordinary Shares or Preferred Shares pursuant to the Principal Shareholders
Agreement or the Acquisition Agreement, until after such time as the ownership
of Ordinary Shares held by Amerada Hess, the Purchaser and their respective
affiliates and associates is reduced below certain levels.
If, among other events, any person becomes an Acquiring Person, each Right
not owned by the Acquiring Person, or an affiliate or associate of that
Acquiring Person, generally becomes the right to purchase a number of Ordinary
Shares equal to the number obtained by (x) multiplying the then current purchase
price (currently $120) by the number of one one-thousandths of a share of Junior
Preferred Stock for which a Right is then exercisable and (y) dividing that
product by 50% of the then current per share market price of the Ordinary Shares
on the date of the occurrence of such event. In addition, at any time after any
person becomes an Acquiring Person, if the Company is subsequently merged or
certain other extraordinary business transactions are consummated, each Right
generally becomes a right to purchase a number of Ordinary Shares of the person
with whom the Company has engaged in the foregoing transaction (the "Principal
Party") equal to the number obtained by (x) multiplying the then current
purchase price (currently $120) by the number of one one-thousandths of a share
of Junior Preferred Stock for which a Right was exercisable immediately prior to
the time any person first became an Acquiring Person and (y) dividing that
product by 50% of the then current per share market price of the ordinary shares
of such Principal Party on the date of the consummation of such merger or other
extraordinary business transaction.
At any time prior to such time as any person becomes an Acquiring Person,
the Company may redeem the Rights, in whole but not in part, for $0.01 per
Right, payable in cash, Ordinary Shares or any other form of consideration
deemed appropriate by the Company's Board of Directors. At any time after any
person becomes an Acquiring Person and prior to the acquisition by such person
of beneficial ownership of a number of Ordinary Shares equal to 50% or more of
the number of outstanding Ordinary Shares, the Board of Directors of the Company
may exchange the Rights (other than Rights owned by such person which will have
become void), in whole or in part, at an exchange ratio of one Ordinary Share,
or one one-thousandth of a Preferred Share (or of a share of a class or series
of the Company's preference shares having equivalent rights, preferences and
privileges), per Right (subject to adjustment). The Rights will expire at the
close of business on May 22, 2005, if not redeemed or exchanged by the Company
at an earlier date. The Rights will terminate upon the effective time of the
Scheme of Arrangement or Compulsory Acquisition, as applicable.
No holder, as such, of any Right certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the number of
shares of Junior Preferred Stock or any other securities of the Company which
may at any time be issuable on the exercise of the Rights represented thereby,
nor shall
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anything contained in the Rights Agreement or in any Right certificate be
construed to confer upon the holder of any Right certificate, as such, any of
the rights of a shareholder of the Company or any right to vote for the election
of directors or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting shareholders (except as provided
in the Rights Agreement), or to receive dividends or subscription rights, or
otherwise, until the Rights evidenced by such Right certificate shall have been
exercised in accordance with the provisions of the Rights Agreement.
(c) OPTIONS
The Company has issued options or other rights to acquire Ordinary Shares
pursuant to a number of different stock option plans and other plans for the
benefit of non-management directors, executives and other employees. As of July
5, 2001, these options and other rights were exercisable into 6,013,818 Ordinary
Shares. See Section 11 -- "Purpose of the Offer; Plans for the Company; Certain
Agreements."
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TRITON ENERGY LIMITED
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA
Set forth below is certain selected consolidated financial information
relating to the Company and its subsidiaries which has been excerpted or derived
from the financial statements contained in the Company's Annual Reports on Form
10-K for the fiscal years ended December 31, 2000, 1999 and 1998 and its
Quarterly Report on Form 10-Q for the quarterly periods ended March 31, 2001 and
2000. The selected consolidated financial information shown below is presented
on the full cost method of accounting. More comprehensive financial information
is included in these reports and other documents filed by the Company with the
Commission. The financial information that follows is qualified in its entirety
by reference to these reports and other documents, including the financial
statements and related notes contained therein. These reports and other
documents may be inspected at, and copies may be obtained from, the same places
and in the manner set forth under "Available Information."
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
--------------------------- -------------------
2000 1999 1998 2001 2000
------- ------- ------- -------- --------
(IN MILLIONS, EXCEPT SHARE AND
PER SHARE AMOUNTS)
STATEMENTS OF OPERATIONS
Revenues:
Oil and gas sales.......................... $ 328.5 $ 247.9 $ 160.9 $ 143.9 $ 74.3
Gain on sale of oil and gas assets......... -- -- 67.7 -- --
------- ------- ------- ------- -------
328.5 247.9 228.6 143.9 74.3
------- ------- ------- ------- -------
Costs and expenses:
Operating.................................. 55.2 68.1 73.5 33.7 15.7
General and administrative................. 24.1 23.6 26.7 6.4 4.6
Depreciation, depletion and amortization... 55.1 61.4 58.8 33.0 14.0
Writedown of assets........................ 55.4 -- 328.6 -- --
Special charges............................ -- 2.9 18.3 -- --
------- ------- ------- ------- -------
189.8 156.0 505.9 73.1 34.3
------- ------- ------- ------- -------
Operating income (loss)................. 138.7 91.9 (277.3) 70.8 40.0
------- ------- ------- ------- -------
Gain on sale of Triton Pipeline Colombia... -- -- 50.2 -- --
Interest income.............................. 9.7 10.6 3.2 1.5 2.8
Interest expense, net........................ (16.9) (22.7) (23.2) (7.4) (4.8)
Other income (expense), net.................. 5.2 (3.6) 8.5 (2.1) (1.0)
------- ------- ------- ------- -------
(2.0) (15.7) 38.7 (8.0) (3.0)
------- ------- ------- ------- -------
Earnings (loss) before income taxes,
extraordinary item and cumulative
effect of
accounting change..................... 136.7 76.2 (238.6) 62.8 37.0
Income tax expense (benefit)................. 61.0 28.6 (51.1) 25.8 10.7
------- ------- ------- ------- -------
Earnings (loss) before extraordinary
item and cumulative effect of
accounting change..................... 75.7 47.6 (187.5) 37.0 26.3
Extraordinary item -- extinguishment of
debt....................................... (7.0) -- -- -- --
Cumulative effect of accounting change....... (1.4) -- -- 1.2 (1.3)
------- ------- ------- ------- -------
Net earnings (loss)..................... 67.3 47.6 (187.5) 38.2 25.0
Accumulated dividends on Preferred Shares.... 29.2 28.7 3.1 7.2 7.3
------- ------- ------- ------- -------
Earnings (loss) applicable to Ordinary
Shares................................ $ 38.1 $ 18.9 $(190.6) $ 31.0 $ 17.7
======= ======= ======= ======= =======
Average Ordinary Shares outstanding
(thousands)................................ 36,551 36,135 36,609 37,451 35,895
======= ======= ======= ======= =======
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THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
--------------------------- -------------------
2000 1999 1998 2001 2000
------- ------- ------- -------- --------
(IN MILLIONS, EXCEPT SHARE AND
PER SHARE AMOUNTS)
PER SHARE DATA
Earnings (loss) per Ordinary Share:
Basic:
Before extraordinary item and cumulative
effect of accounting change........... $ 1.27 $ 0.52 $ (5.21) $ 0.80 $ 0.53
Extraordinary item -- extinguishment of
debt.................................. (0.19) -- -- -- --
Cumulative effect of accounting
change................................ (0.04) -- -- 0.03 (0.04)
------- ------- ------- ------- -------
Basic earnings (loss)................... $ 1.04 $ 0.52 $ (5.21) $ 0.83 $ 0.49
======= ======= ======= ======= =======
Diluted:
Before extraordinary item and cumulative
effect of accounting change........... $ 1.20 $ 0.52 $ (5.21) $ 0.62 $ 0.45
Extraordinary item -- extinguishment of
debt.................................. (0.18) -- -- -- --
Cumulative effect of accounting
change................................ (0.03) -- -- 0.02 (0.02)
------- ------- ------- ------- -------
Diluted earnings (loss)................. $ 0.99 $ 0.52 $ (5.21) $ 0.64 $ 0.43
======= ======= ======= ======= =======
STATEMENT OF CASH FLOWS DATA
Cash flows from operating activities, net.... $ 187.2 $ 116.5 $ 1.5 $ 31.0 $ 40.3
Cash flows from investing activities, net.... (321.7) (118.5) 84.2 (70.9) (24.6)
Cash flows from financing activities, net.... 84.7 170.1 (80.1) (18.4) (0.9)
BALANCE SHEET DATA (AT END OF PERIOD)
Working capital (deficit).................... $ 63.3 $ 161.3 $ (21.6) $ 77.4 $ 163.9
Property, plant and equipment, net........... 687.5 524.2 470.9 717.9 546.2
Total assets................................. 1,194.3 974.5 754.3 1,245.4 1,019.8
Long-term debt, including current
maturities(1).............................. 504.7 413.5 427.5 500.2 409.1
Shareholders' equity......................... 525.0 463.1 223.8 564.6 494.9
- ---------------
(1) Includes current maturities totaling $0.1 million and $9.1 million at March
31, 2001 and 2000, respectively, and $4.6 million, $9.0 million and $14.0
million at December 31, 2000, 1999 and 1998, respectively.
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CERTAIN PROJECTED FINANCIAL DATA FOR THE COMPANY
Prior to entering into the Acquisition Agreement, Amerada Hess received
from the Company certain information concerning the Company which Amerada Hess
and the Purchaser believe was not and is not publicly available, including
certain projected financial data (the "Projections") for the fiscal years 2001
through 2007. The Company does not publicly disclose projections, and the
Projections were not prepared with a view to public disclosure. Such information
is set forth below in this Offer to Purchase for the limited purpose of giving
the Holders access to financial projections that were made available to Amerada
Hess and the Purchaser in connection with the Acquisition Agreement and the
Offer.
FISCAL YEAR
----------------------------------------------------------------------
2001 2002 2003 2004 2005 2006 2007
------ ------ -------- -------- -------- -------- --------
(IN MILLIONS, EXCEPT PRODUCTION AMOUNTS)
COMPANY PROJECTIONS
Production Mboepd(1)...................... 58 100 175 194 204 225 196
EBITDAX(2)................................ $393.6 $653.4 $1,105.0 $1,143.0 $1,251.7 $1,365.3 $1,144.5
Total revenues............................ 506.9 851.8 1,350.2 1,497.0 1,646.3 1,731.9 1,477.8
Total expenses............................ 113.3 198.5 245.2 354.0 394.6 366.6 333.2
Net cash flow after local taxes and
expenditures............................ (22.4) 171.4 154.7 618.2 829.0 939.2 840.3
- ---------------
(1) One Mboepd means one thousand barrels of oil equivalent per day. One barrel
of oil equivalent means one barrel of crude oil or six Mcf of natural gas.
One Mcf means one thousand cubic feet.
(2) EBITDAX consists of net earnings (loss) before exploration and development
expenditures, interest expense, income taxes, depreciation expense,
amortization of intangibles, exploration and abandonment expense, general
and administrative expenses and other non-cash charges reducing consolidated
net earnings to the extent deducted in calculating consolidated net earnings
(loss). EBITDAX is not a measure determined pursuant to generally accepted
accounting principles, or GAAP, nor is it an alternative to GAAP income.
BASIS OF PROJECTIONS. Amerada Hess and the Purchaser have been advised
that the Projections were prepared to present certain production and financial
data on an operating basis, based on various assumptions. The Projections were
prepared without regard to financing requirements and are not presented on a
company-wide consolidated basis. The basis of accounting of the Projections is
consistent with the accounting policies normally adopted by the Company. The
Projections take account of the results reported by the Company's unaudited
interim consolidated financial statements for the three months ended March 31,
2001.
ASSUMPTIONS. Amerada Hess and the Purchaser have been advised by the
Company that the Projections are based on several assumptions, the principal
ones of which are the following:
(a) a Nymex WTI crude oil price of $27.91 per barrel in 2001 and $25
per barrel in each of the years 2002 through 2007;
(b) a Colombian natural gas price of $1.18, $0.89, and $1.00 per Mcf
in years 2001, 2002 and 2003, respectively, and of $1.80 per Mcf in each of
the years 2004 through 2007;
(c) a realized natural gas price of $3.15, $3.01, $2.90, $2.94 and
$2.83 per MMbtu (million British thermal units) in years 2003, 2004, 2005,
2006 and 2007, respectively, for the Company's Joint Development Area
("JDA") project in Malaysia-Thailand;
(d) completion of production facilities of the Company's JDA project
in accordance with the current schedule, commencement of production at the
beginning of 2003 and increasing the production in 2005;
(e) significant exploitation of existing discovered fields and
exploitation of future exploration discoveries;
(f) costs of floating production, storage and offloading vessels for
development of the Company's fields in Equatorial Guinea remaining
consistent with current estimates;
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(g) no asset impairment provisions;
(h) no significant change in interest rates from those currently
prevailing;
(i) no material change in the rates or basis of taxation affecting the
Company from those currently prevailing;
(j) no material changes in general trading and economic conditions in
the countries in which the Company operates or trades; and
(k) no major disruptions to the business of the Company for reasons
such as blow outs, pollution, fire and other hazards which may interrupt or
terminate production.
CAUTIONARY STATEMENTS CONCERNING THE PROJECTIONS
The Projections were prepared by the Company's management for internal
purposes and not with a view to public disclosure or compliance with published
guidelines of the Commission, the guidelines established by the American
Institute of Certified Public Accountants for Prospective Financial Information
or generally accepted accounting principles. Neither Amerada Hess's nor the
Company's certified public accountants nor their financial advisors have
examined or compiled any of the Projections or expressed any conclusion or
provided any form of assurance with respect to the Projections and, accordingly,
assume no responsibility for the Projections. The Projections are included
herein to give the Holders access to information which was provided to Amerada
Hess and which is believed by Amerada Hess and the Purchaser to be not publicly
available and should not be deemed to establish or expand liability under
applicable law.
Certain matters discussed herein (including, but not limited to, the
Projections) are forward-looking statements that are subject to certain risks
and uncertainties that could cause actual results to differ materially from the
statements included herein (including the Projections) and should be read with
caution. The Company has advised Amerada Hess and the Purchaser that the
Projections are subjective in many respects and thus susceptible to
interpretations and periodic revisions based on actual experience and recent
developments. While presented with numerical specificity, the Projections were
not prepared by the Company in the ordinary course of business and are based on
a variety of estimates and hypothetical assumptions made by management of the
Company with respect to, among other things, industry performance, political,
general economic, market, interest rate and financial conditions, reserve
estimates, production volumes, oil and natural gas prices, sales, cost of goods
sold, operating and other revenues and expenses, operating and capital
expenditures and working capital of the Company, and other matters which may not
be accurate, may not be realized and are inherently subject to significant
business, economic and competitive uncertainties and contingencies, all of which
are difficult to predict and many of which are beyond the Company's control.
Accordingly, there can be no assurance that the assumptions made in preparing
the Projections will prove accurate, and actual results may be materially
greater or less than those contained in the Projections. In addition, the
Projections do not take into account any of the transactions contemplated by the
Acquisition Agreement, including the Offer.
For these reasons, as well as the bases and assumptions on which the
Projections were compiled, the inclusion of such Projections herein should not
be regarded as an indication that the Company, Amerada Hess, the Purchaser or
any of their respective affiliates or representatives considers such information
to be an accurate prediction of future events, and the Projections should not be
relied on as such. None of such persons assumes any responsibility for the
reasonableness, completeness, accuracy or reliability of such Projections. No
party nor any of their respective affiliates or representatives has made, or
makes, any representation to any person regarding the information contained in
the Projections and, except to the extent required by applicable law, none of
them intends to update or otherwise revise the Projections to reflect
circumstances existing after the date when made or to reflect the occurrence of
future events even in the event that any or all of the assumptions are shown to
be in error.
AVAILABLE INFORMATION. The Company is subject to the information and
reporting requirements of the Exchange Act and is required to file reports and
other information with the Commission relating to its
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business, financial condition and other matters. Information, as of particular
dates, concerning the Company's directors and officers, their remuneration,
stock options granted to them, the principal holders of the Company's
securities, any material interests of such persons in transactions with the
Company and other matters is required to be disclosed in proxy statements filed
with the Commission. These reports, proxy statements and other information
should be available for inspection at the public reference facilities of the
Commission located at 450 Fifth Street, N.W., Washington, D.C. 20549, and also
should be available for inspection and copying at prescribed rates at regional
offices of the Commission located at Seven World Trade Center, New York, New
York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of this material may also be obtained by mail, upon payment of the
Commission's customary fees, from the Commission's principal office at 450 Fifth
Street, N.W., Washington, D.C. 20549. Electronic filings filed through the
Commission's Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"),
including those made by or in respect of the Company, are publicly available
through the Commission's home page on the Internet at http://www.sec.gov.
8. CERTAIN INFORMATION CONCERNING THE PURCHASER AND AMERADA HESS.
THE PURCHASER. The Purchaser, a newly incorporated company limited by
shares organized under the laws of the Cayman Islands, has not conducted any
business other than in connection with the Offer and the Acquisition Agreement.
All of the issued and outstanding shares of the Purchaser are beneficially owned
by Amerada Hess. The address of the Purchaser is c/o Amerada Hess Corporation,
1185 Avenue of the Americas, New York, New York 10036. The telephone number of
the Purchaser at such offices is (212) 997-8500.
AMERADA HESS. Amerada Hess is a Delaware corporation. Amerada Hess,
headquartered in New York, is a global integrated energy company engaged in the
exploration for and the production, purchase, transportation and sale of crude
oil and natural gas, as well as the production and sale of refined petroleum
products. Exploration and production activities take place primarily in the
United States, the United Kingdom, Norway, Denmark, Brazil, Algeria, Gabon,
Indonesia, Azerbaijan, Thailand and Malaysia. Amerada Hess produces
approximately 425,000 barrels of oil equivalent per day, two-thirds of which is
oil and one-third natural gas. Amerada Hess' total proved oil and gas reserves
at December 31, 2000 were over 1.1 billion barrels of oil equivalent. Amerada
Hess' refined petroleum products are manufactured at the HOVENSA refinery in St.
Croix, United States Virgin Islands, which is owned jointly with Petroleos de
Venezuela S.A. The refinery is one of the largest in the world with a capacity
of 500,000 barrels per day. Amerada Hess markets refined petroleum products on
the East Coast of the United States through its terminal network and
approximately 1,180 HESS brand retail outlets. Amerada Hess' common stock is
traded on the NYSE under the symbol "AHC." The principal executive offices of
Amerada Hess are located at 1185 Avenue of the Americas, New York, New York
10036. The telephone number of Amerada Hess at such offices is (212) 997-8500.
Amerada Hess is subject to the informational and reporting requirements of
the Exchange Act and is required to file reports and other information with the
Commission relating to its business, financial condition and other matters.
Information, as of particular dates, concerning Amerada Hess' directors and
officers, their remuneration, stock options granted to them, the principal
holders of Amerada Hess' securities, any material interests of such persons in
transactions with Amerada Hess and other matters is required to be disclosed in
proxy statements filed with the Commission. These reports, proxy statements and
other information should be available for inspection at the public reference
facilities of the Commission located at 450 Fifth Street, N.W., Washington, D.C.
20549, and also should be available for inspection and copying at prescribed
rates at regional offices of the Commission located at Seven World Trade Center,
New York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of this material may also be obtained by mail, upon
payment of the Commission's customary fees, from the Commission's principal
office at 450 Fifth Street, N.W., Washington, D.C. 20549. Electronic filings
filed through EDGAR, including those made by or in respect of Amerada Hess, are
publicly available through the Commission's home page on the Internet at
http://www.sec.gov.
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During the last five years, none of Amerada Hess, the Purchaser or, to the
best of their knowledge, any of the persons listed in Schedule I hereto (i) has
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) was a party to any judicial or administrative proceeding
(except for matters that were dismissed without sanction or settlement) that
resulted in a judgment, decree or final order enjoining future violations of, or
prohibiting activities subject to, federal or state securities laws, or a
finding of any violation of such laws.
Except as described in this Offer to Purchase (i) none of Amerada Hess, the
Purchaser or, to the best of their knowledge, any of the persons listed in
Schedule I to this Offer to Purchase, or any associate or majority-owned
subsidiary of Amerada Hess or the Purchaser or, to the best of their knowledge,
any associate or majority-owned subsidiary of any of the persons listed in
Schedule I to this Offer to Purchase, beneficially owns or has any right to
acquire, directly or indirectly, any equity securities of the Company and (ii)
none of Amerada Hess, the Purchaser, or to the best of their knowledge, any of
the persons listed in Schedule I to this Offer to Purchase has effected any
transaction in such equity securities during the past 60 days. The Purchaser and
Amerada Hess disclaim beneficial ownership of any Ordinary Shares owned by any
pension plans of Amerada Hess or the Purchaser or any pension plans of any
associate or majority-owned subsidiary of Amerada Hess or the Purchaser.
Except as described in this Offer to Purchase, none of Amerada Hess, the
Purchaser or, to the best of their knowledge, any of the persons listed in
Schedule I to this Offer to Purchase has any contract, arrangement,
understanding or relationship with any other person with respect to any
securities of the Company, including, but not limited to, any contract,
arrangement, understanding or relationship concerning the transfer or voting of
such securities, joint ventures, loan or option arrangements, puts or calls,
guarantees of loans, guarantees against loss or the giving or withholding of
proxies. Except as set forth in this Offer to Purchase, during the past two
years, none of Amerada Hess, the Purchaser or, to the best of their knowledge,
any of the persons listed on Schedule I hereto has had any business relationship
or transaction with the Company or any of its executive officers, directors or
affiliates that is required to be reported under the rules and regulations of
the Commission applicable to the Offer. Except as set forth in this Offer to
Purchase, during the past two years, there have been no contacts, negotiations
or transactions between any of Amerada Hess, the Purchaser or any of their
subsidiaries or, to the best knowledge of Amerada Hess, or the Purchaser, any of
the persons listed in Schedule I to this Offer to Purchase, on the one hand, and
the Company or its affiliates, on the other hand, concerning an amalgamation,
scheme of arrangement, consolidation or acquisition, tender offer for or other
acquisition of securities, an election of directors or a sale or other transfer
of a material amount of assets.
9. SOURCE AND AMOUNT OF FUNDS. The Offer is not conditioned on any
financing arrangements. The amount of funds required by the Purchaser to
purchase all of the outstanding Ordinary Shares pursuant to the Offer and to pay
related fees and expenses is expected to be approximately $2.8 billion. The
Purchaser currently intends to obtain all such funds through a combination of
loans from and/or capital contributions by Amerada Hess or other affiliates.
Amerada Hess currently intends to obtain such funds primarily through a new loan
facility and two existing loan facilities.
Amerada Hess has received a commitment letter from Citibank, N.A.
("Citibank"), as administrative agent and lender, and Salomon Smith Barney,
Inc., as arranger, collectively the "Arrangers"), pursuant to which Citibank has
agreed to lend to Amerada Hess up to $1 billion under a two-year unsecured
revolving credit facility (the "Revolving Facility").
Borrowings under the Revolving Facility will bear interest at a rate per
annum equal to (at Amerada Hess' election) (i) the administrative agent's base
rate or (ii) the London Interbank Offered Rate (LIBOR) plus a margin of 42.5 to
115.0 basis points on Eurodollar borrowings. There is also a facility fee on the
Revolving Facility at a rate of 7.5 to 35.0 basis points per annum, payable
quarterly in arrears, and a utilization fee of 5.0 to 25.0 basis points on the
facility to the extent more than one-third utilized. The margins and such fees
will be based on Amerada Hess' long-term senior unsecured non-credit-enhanced
debt ratings.
This commitment is subject to, among other things, the negotiation and
execution of definitive financing agreements on terms satisfactory to Amerada
Hess and the Arrangers. The definitive documentation relating
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to the Revolving Facility will contain representations and warranties,
covenants, events of default and conditions substantially identical to the
Credit Agreements described below. Amerada Hess has agreed to pay certain
expenses of, and provide customary indemnities for, the Arrangers. The foregoing
summary of the Revolving Facility is subject to preparation and completion of a
definitive credit agreement for the Revolving Facility. If and when definitive
agreements relating to the Revolving Facility are executed, copies will be filed
as exhibits to an amendment to the Tender Offer Statement on Schedule TO (the
"Schedule TO") relating to the Offer which the Purchaser has filed with the
Commission.
Amerada Hess entered into two credit agreements, which were amended and
restated as of January 23, 2001 (the "Credit Agreements") to obtain funds
through two unsecured revolving loan facilities ("Credit Facility A" and "Credit
Facility B," collectively referred to as the "Credit Facilities"), to be
provided by the lenders party to the Credit Agreements and Goldman Sachs Credit
Partners L.P., as joint book runner, joint lead arranger and sole syndication
agent, Chase Securities, Inc. as joint book runner and joint lead arranger, Bank
of America, N.A., as co-documentation agent and arranger, Citibank, N.A., as
co-documentation agent and arranger, Barclays Bank PLC, as co-documentation
agent and arranger, and The Chase Manhattan Bank, N.A., as administrative agent.
The total committed funds made available under the Credit Facilities is $3.0
billion. Credit Facility A provides for $1.5 billion of short-term revolving
credit through January 2002 and bears interest and is subject to a facility fee
and utilization fee on the same basis as the Revolving Facility. Credit Facility
B provides for $1.5 billion five-year revolving credit, which expires in January
2006 and bears interest at a rate per annum equal to (at Amerada Hess' election)
(i) the administrative agent's base rate or (ii) LIBOR plus a margin of 40.0 to
112.5 basis points and is subject to a facility fee of 10.0 to 37.5 basis points
and (to the extent at least one-third utilized) a utilization fee of 5.0 to 25.0
basis points, with such margin and fees to be based on Amerada Hess' long-term
senior unsecured non-credit-enhanced debt ratings. Amerada Hess has the option
to extend up to $500 million of outstanding debt under Credit Facility A for an
additional 364-day period. The Credit Agreements may be used by Amerada Hess for
liquidity support of Amerada Hess' commercial paper program and general
corporate purposes, including working capital and the refinancing of certain
other facilities. The Credit Agreements contain certain restrictions on, among
other things, the creation of liens. The Credit Agreements also contain certain
events of default, including the liquidation or bankruptcy of Amerada Hess or
any of its significant subsidiaries. In addition, Amerada Hess has agreed to pay
certain fees and to reimburse each of the agents and arrangers for certain
expenses and to provide certain indemnities, as is customary for commitments of
the type described therein. The foregoing summary of the Credit Agreements is
qualified in its entirety by reference to the text of the Credit Agreements,
copies of which have been filed as exhibits to the Schedule TO. The Credit
Agreements may be inspected at, and copies may be obtained from, the same places
and in the manner set forth in Section 7-- "Certain Information Concerning the
Company."
There are currently no alternative financing arrangements in place. Amerada
Hess is also considering alternative financing arrangements such as the issuance
of additional debt pursuant to either a public offering or private placement.
The margin regulations promulgated by the Federal Reserve Board place
restrictions on the amount of credit that may be extended for the purposes of
purchasing margin stock (including the Ordinary Shares) if such credit is
secured directly or indirectly by margin stock. The Purchaser believes that the
financing of the acquisition of the Ordinary Shares will not be subject to the
margin regulations.
Based on publicly available information, Amerada Hess estimates that there
is approximately $500 million in existing long-term debt of the Company. Amerada
Hess expects that this debt will continue to remain outstanding. The indenture
governing $300 million of debt is subject to a "change of control" provision
that provides that upon a "change of control" the notes evidencing such
indebtedness become redeemable at an amount equal to 101% of the principal
amount at the option of the holder. Amerada Hess does not expect that such
holders will elect to redeem this indebtedness because the redemption price is
less than the current market price of such indebtedness.
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10. BACKGROUND OF THE OFFER. In early 2001, as part of its ordinary
course strategic planning, Amerada Hess identified the Company as a possible
acquisition candidate. In a telephone call on March 12, 2001 that was initiated
by John B. Hess, Chairman of the Board and Chief Executive Officer of Amerada
Hess, Mr. Hess proposed to Thomas O. Hicks, Chairman of the Company and Chairman
and Chief Executive Officer of Hicks Muse, a possible sale of the Company to
Amerada Hess. Mr. Hess stressed that Amerada Hess would only be willing to
proceed if the Company agreed to deal with Amerada Hess exclusively for a
limited period of time. Mr. Hicks indicated his interest in exploring a
potential sale of the Company to Amerada Hess. Mr. Hess and Mr. Hicks agreed
that they would each instruct their management to engage in a more detailed
analysis of a possible sale transaction to determine whether or not to pursue
such a transaction.
On May 9, 2001, the Company's financial advisors met with representatives
of Amerada Hess and discussed Amerada Hess' interest in pursuing an acquisition
of the Company and certain business and operational information about the
Company as part of Amerada Hess' preliminary due diligence. In mid-May, Amerada
Hess and the Company began negotiating a confidentiality agreement and Amerada
Hess indicated that it would require a due diligence review of certain
non-public business and legal information regarding the Company for the purpose
of determining if further exploration of a possible acquisition of the Company
was warranted. While the parties were negotiating the principal terms of the
confidentiality agreement, including provisions relating to exclusive dealing
with Amerada Hess, Amerada Hess furnished the Company with a request for
information for due diligence purposes. On June 4, 2001, Amerada Hess and the
Company signed the confidentiality agreement. In the confidentiality agreement,
Amerada Hess agreed not to pursue an unsolicited bid to acquire the Company
through June 4, 2002 and the Company agreed, as was required by Amerada Hess,
that the Company would deal exclusively with Amerada Hess regarding a potential
acquisition of the Company until July 15, 2001.
On June 6, 2001, Mr. Hess and a senior executive of Amerada Hess met with
James C. Musselman, President and Chief Executive Officer of the Company at the
Amerada Hess office in New York to discuss further a possible acquisition of the
Company. Mr. Hess and Mr. Musselman primarily discussed the Company's business,
strategy and operations. They did not discuss possible acquisition prices or a
structure for the transaction. Representatives of the Company's financial
advisors were present at this meeting. This meeting was followed by further
discussions on June 6, 2001 about the Company's business and operations between
Mr. Musselman and W.S.H. Laidlaw, the President and Chief Operating Officer of
Amerada Hess.
After the confidentiality agreement was signed, Amerada Hess received
information responsive to its earlier due diligence request. Amerada Hess made
several subsequent written requests for information and each time the Company
forwarded this information promptly.
As part of Amerada Hess' due diligence, the Company's financial advisors
had suggested that senior management of Amerada Hess should meet with the
Company's senior management in Dallas and conduct further business and legal due
diligence of the Company to enable Amerada Hess to further develop a proposal to
acquire the Company. On June 25 and 26, 2001 Messrs. Hess and Laidlaw, together
with other senior executives of Amerada Hess, met with Mr. Musselman, A.E.
Turner, III, Senior Vice President and Chief Operating Officer and other senior
executives of the Company, together with representatives of the Company's
financial advisors, to conduct additional legal and business due diligence of
the Company and to discuss further a possible acquisition of the Company by
Amerada Hess.
On July 2, 2001, Mr. Hess, on behalf of Amerada Hess, sent a letter to Mr.
Hicks proposing to acquire 100% of the share capital of the Company at a price
of $44.00 per Ordinary Share in cash and $176.00, plus accrued dividends, per
Preferred Share in cash. The proposal stated that Amerada Hess would rely solely
on its own cash resources, including available lines of credit, to finance the
acquisition. The proposal was conditioned on entering into a definitive
agreement with the Company's Principal Shareholders pursuant to which the
Principal Shareholders would grant to Amerada Hess an irrevocable option to
purchase their shares of the Company. The letter also stated that Amerada Hess
would require the Company to agree not to solicit, initiate, negotiate,
encourage or enter into an alternative acquisition proposal. The letter stated
that the proposal would only be available to the Company until July 10, 2001.
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On July 3, 2001, Mr. Hicks telephoned Mr. Hess and stated that Mr. Hicks
had discussed Amerada Hess' proposal with certain members of the Company's Board
of Directors and that they had indicated their interest in pursuing the
proposal. Messrs. Hess and Hicks agreed that representatives of the Company and
Amerada Hess and their respective legal and financial advisors should meet as
soon as possible to conclude Amerada Hess' business and legal due diligence and
to negotiate the definitive terms of the acquisition.
On July 4, 2001, Amerada Hess' legal advisors delivered to the Company and
its legal advisors and to Hicks Muse and its legal advisors a draft acquisition
agreement and a draft option agreement for the purchase of the Company shares
held by the Principal Shareholders.
On the morning of July 5, 2001, the Company's Board of Directors met to
discuss, together with its legal and financial advisors, the structure of the
acquisition of the Company as reflected in the draft acquisition agreement
delivered to the Company on July 4th.
On July 5, 2001, representatives of Amerada Hess and its financial advisors
met in Dallas with representatives of the Company and its financial advisors to
conduct additional confirmatory due diligence regarding the Company's business
and operations. Additionally, following the Company's Board of Directors
meeting, in the afternoon of July 5th, representatives of Amerada Hess and its
legal advisors met in Dallas with the Company's legal advisors to discuss the
structure of and significant issues related to the proposal to acquire the
Company as reflected in the draft acquisition agreement. In particular, the
Company's legal advisors negotiated for the ability of the Company to accept a
superior acquisition proposal if one were to be made prior to the completion of
the Offer. Amerada Hess' representatives and legal advisors insisted, however,
that Amerada Hess would not be willing to proceed if the Company could terminate
the acquisition agreement with Amerada Hess if a superior proposal was made to
acquire the Company. The representatives also discussed structural matters
related to the acquisition in connection with the requirements of Cayman Islands
law. In particular, they discussed the minimum amount of shares that Amerada
Hess would need to purchase in a tender offer to ensure that Amerada Hess could
effect an acquisition of any shares not tendered into the tender offer.
Additionally, the Company's legal advisors insisted that Amerada Hess would have
to narrow the scope of the conditions to its tender offer.
Following these discussions, Amerada Hess' representatives and legal
advisors met with the legal advisor for Hicks Muse during the afternoon of July
5th to negotiate the terms of Amerada Hess' proposed option to purchase the
Ordinary Shares and Preferred Shares owned by the Principal Shareholders. Hicks
Muse's legal advisor insisted that the Principal Shareholders would not grant to
Amerada Hess an option to purchase such shares unless the Principal Shareholders
had the ability to terminate the option if the Company terminated its
acquisition agreement with Amerada Hess to pursue a superior acquisition
proposal. Hicks Muse's legal advisor indicated that the Principal Shareholders
would, however, be willing to commit to sell their Ordinary Shares and Preferred
Shares to Amerada Hess if Amerada Hess was committed to purchase such shares
regardless of whether or not Amerada Hess purchased any Ordinary Shares in the
Offer.
On July 6, 2001, Mr. Hess telephoned Mr. Hicks to discuss the progress of
the negotiations. Mr. Hess and Mr. Hicks discussed the outstanding issues. Mr.
Hess agreed to increase Amerada Hess' proposal to $45.00 per Ordinary Share in
cash and to limit Amerada Hess' conditions to its offer if the Company's Board
of Directors would agree to withdraw its request for the ability to terminate
the agreement in the event a superior proposal were received. He also agreed
that Amerada Hess would irrevocably commit to the purchase of the Ordinary
Shares and Preferred Shares owned by the Principal Shareholders whether or not
Amerada Hess completed the Offer, if the Principal Shareholders would
irrevocably commit to sell such shares to Amerada Hess. The Company's Board of
Directors then met and discussed, together with the Company's legal and
financial advisors, the status of the negotiations.
Thereafter, from Friday, July 6th through Monday, July 9th, representatives
of Amerada Hess and the Company and their respective legal advisors negotiated
the terms of the acquisition and finalized the definitive Acquisition Agreement
and related documents. Additionally, Amerada Hess' representatives and legal
advisors negotiated with the Company's and Hicks Muse's legal advisors and
finalized the definitive Principal Shareholders Agreement.
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The Company's Board of Directors met on July 9, 2001 to consider, with the
advice and assistance of its legal and financial advisors, the proposed
acquisition of the Company by Amerada Hess and the Acquisition Agreement and
related documentation to effect the acquisition. The Company's Board of
Directors unanimously approved the Offer and the Acquisition Agreement and the
related documents. Amerada Hess' Board of Directors met later that day and
unanimously approved the acquisition of the Company. The Acquisition Agreement
and the Principal Shareholders Agreement and related documents were then
executed and delivered by the Company, Amerada Hess and the Principal
Shareholders. On the morning of July 10, 2001, Amerada Hess and the Company
issued a joint press release announcing the transaction.
11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY; CERTAIN AGREEMENTS.
PURPOSE OF THE OFFER. The purpose of the Offer is to enable Amerada Hess
to acquire as many outstanding Ordinary Shares as possible as a first step in
acquiring the entire equity interest in the Company. The purpose of the
Compulsory Acquisition or the Scheme of Arrangement following the purchase of
Ordinary Shares in the Offer is for Amerada Hess to acquire all remaining
Ordinary Shares not purchased pursuant to the Offer. Upon consummation of the
Compulsory Acquisition or the Scheme of Arrangement, the Company will become a
wholly owned subsidiary of Amerada Hess. The Offer is being made pursuant to the
Acquisition Agreement.
COMPULSORY ACQUISITION. If, following the consummation of the Offer, the
Purchaser has accepted for payment at least 90% in value of the Ordinary Shares
then, subject to and in accordance with the Companies Law, the Purchaser
currently intends, promptly following the expiration of four months from the
commencement of the Offer and in no event later than two months following the
expiration of such four month period, to give notice in the prescribed manner to
each shareholder that has not tendered his or her Ordinary Shares to the
Purchaser pursuant to the Offer (a "Dissenting Shareholder") that it desires to
acquire such Dissenting Shareholder's Ordinary Shares pursuant to the procedure
set out in Section 88 of the Companies Law relating to a Compulsory Acquisition.
A Compulsory Acquisition will not require any shareholder approval. The
Purchaser is making the Offer because the Purchaser believes that it is the
means by which it will most likely be able to effect the acquisition, while at
the same time affording all other shareholders an equal opportunity to sell
their Ordinary Shares at the applicable cash price per Ordinary Share offered in
the Offer. Schedule II sets forth, in its entirety, Section 88 of the Companies
Law and the prescribed manner of notice to Dissenting Shareholders.
SCHEME OF ARRANGEMENT. If Amerada Hess and the Purchaser are not able to
effect a Compulsory Acquisition or the Offer expires without the purchase of any
Ordinary Shares thereunder and has remained open for the times referred to in
the Acquisition Agreement, Amerada Hess or the Purchaser may request that the
Company proceed with a Scheme of Arrangement under Sections 86 and 87 of the
Companies Law. If Amerada Hess or the Purchaser do not purchase any Ordinary
Shares in the Offer and fail to request that the Company pursue a Scheme of
Arrangement within ten business days after the expiration date of the Offer, the
Company will have the right to terminate the Acquisition Agreement and, if the
Acquisition Agreement is terminated, the Company will no longer have any
obligation to take any actions to effect a Scheme of Arrangement. In the event
that the Scheme of Arrangement becomes effective pursuant to Sections 86 and 87
of the Companies Law, each Ordinary Share would be acquired by the Purchaser at
the same Ordinary Share Offer Price in cash as paid in the Offer and if there
are Preferred Shares outstanding on the commencement of the Scheme of
Arrangement each Preferred Share would be converted into the right to receive an
amount in cash, without interest thereon, equal to $180, plus any accumulated
and unpaid dividends thereon. Under Section 86 of the Companies Law and upon an
application to the Court by the Company, the Court may order a meeting of the
shareholders of the Company or a class of shareholders of the Company, as the
case may be, to be summoned to consider and vote upon the Scheme of Arrangement.
At such meeting(s), the affirmative vote of a majority in number representing
75% in value of each class of the shares present in person or by proxy at the
meeting thereon is required to approve and adopt the Scheme of Arrangement. For
the purposes of approval of the Scheme of Arrangement, it should be noted that
any Ordinary Shares owned by Amerada Hess, the Purchaser or any affiliate
thereof would not, on the basis of existing case law (which would be persuasive
but not binding on the Court), be included in the class of holders of Ordinary
Shares who have not, at the time of the meeting, sold their Ordinary Shares
pursuant to the Offer. Schedule II sets forth, in their
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entirety, Sections 86 and 87 of the Companies Law. BECAUSE A SCHEME OF
ARRANGEMENT INVOLVES A COURT PROCEEDING AND SHAREHOLDER APPROVAL, THE PURCHASE
OF ORDINARY SHARES AND THEREFORE THE RECEIPT OF FUNDS THROUGH A SCHEME OF
ARRANGEMENT CANNOT BE ASSURED AND THE RECEIPT OF FUNDS COULD BE SUBSTANTIALLY
DELAYED.
OTHER. If the Purchaser (a) is not able to acquire all remaining Ordinary
Shares pursuant to a Compulsory Acquisition or Scheme of Arrangement following
the purchase of Ordinary Shares pursuant to the Offer, or (b) is not able to
effect the Scheme of Arrangement if the Offer expires without the purchase of
any Ordinary Shares thereunder, the Purchaser will explore other alternatives to
acquire the entire equity interest in the Company. More particularly, the
Purchaser may seek to acquire either additional Ordinary Shares or the entire
remaining equity interest in the Company, and the Purchaser may seek to pursue
other transactions with the Company and/or its subsidiaries, which may include
extraordinary corporate transactions such as a reorganization, liquidation,
reincorporation to a jurisdiction that permits mergers or amalgamations, reverse
stock split, or sale or transfer of some or all of the Company's assets.
Although the Purchaser currently has no plans or proposals with respect to such
other means, future Ordinary Share acquisitions may be by means of open market
or privately negotiated purchases, or otherwise. Such transactions might involve
the exchange of cash or securities of the Purchaser and/or Amerada Hess, or some
combination of cash and securities, and may be on terms and at prices more or
less favorable than those of the Offer. Additionally, to the extent that any
Preferred Shares are outstanding following the expiration of the Offer, the
Purchaser may seek to cause the Company to redeem the Preferred Shares in
accordance with their terms.
The decision to enter into such future transactions and the forms they
might take will depend upon whether such transactions are in the best interests
of Amerada Hess and the Purchaser and relevant legal considerations and
circumstances then existing, including the financial resources of the Purchaser
and Amerada Hess and the business, tax and accounting objectives of the
Purchaser and Amerada Hess, the performance of the Ordinary Shares in the
market, if any, the availability and alternative uses of funds, money market and
stock market conditions and general economic conditions. The Purchaser and/or
Amerada Hess also may engage in certain of such transactions during the period
following the expiration or termination of the offer and prior to any Compulsory
Acquisition or Scheme of Arrangement.
APPRAISAL RIGHTS. None of the Companies Law, the Company's Articles of
Association, the Company's Memorandum of Association, nor the Offer provides for
appraisal rights or other similar rights. Appraisal rights will not be
voluntarily provided by the Company or the Purchaser.
However, under Section 88(1) of the Companies Law, if the Purchaser
acquires (or receives unconditional acceptances of the Offer in respect of) at
least 90% in value of the Ordinary Shares within four months after the
commencement of the Offer, then it may give notice (the "Notice") at any time
within two months following the expiration of the four-month period to any
Dissenting Shareholder that it desires to acquire the Ordinary Shares held by
such Dissenting Shareholder, on the same terms as the Offer. Each Dissenting
Shareholder will then have one month from the date the Notice has been given to
make an application to the Court for an order (an "Order") preventing the
Purchaser from so acquiring his or her Ordinary Shares. If such application is
not timely made or if an Order is not obtained by such Dissenting Shareholder,
then the Purchaser shall, on the expiration of one month from the date the
Notice has been given or after any appeal to the Court has been disposed with,
upon transmission of a copy of the Notice to the Company and payment of the
applicable per Ordinary Share price to the Company, the Company will be required
to register the Purchaser as the holder of those Ordinary Shares. Any sums paid
to the Company in respect of Ordinary Shares to be acquired from Dissenting
Shareholders pursuant to a Compulsory Acquisition under Section 88 of the
Companies Law are required to be held by the Company in trust for such
Dissenting Shareholders.
The Purchaser has been advised by its Cayman Islands counsel that, although
there are no Cayman Islands cases that have considered when a dissenting
shareholder can prevent an acquirer from purchasing such dissenting
shareholder's shares, English case law, which would be persuasive although not
binding before the Court, has established that such an application by a
shareholder would require allegations of unfairness to be established and that
the burden is on the applicant to establish such allegation. In addition, the
English
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courts have traditionally attached considerable weight to the fact that a large
body of shareholders has accepted the relevant offer. The Purchaser has also
been advised by its Cayman Islands counsel that there is case law to suggest
that a recommendation by the Board of Directors upon independent advice, such as
a fairness opinion, is regarded as significant in the determination of any
unfairness.
THE FOREGOING SUMMARY OF THE RIGHTS OF OBJECTING HOLDERS DOES NOT PURPORT
TO BE A COMPLETE STATEMENT OF THE PROCEDURES TO BE FOLLOWED BY HOLDERS DESIRING
TO EXERCISE ANY AVAILABLE DISSENSION RIGHTS.
The provisions of the Companies Law are complex and technical in nature.
Holders desiring to exercise their dissension rights may wish to consult
counsel, since the failure to comply strictly with these provisions will result
in the loss of their dissension rights.
COMPOSITION OF THE BOARD OF DIRECTORS. The Acquisition Agreement provides
that promptly upon the acceptance for payment of, and payment for, Ordinary
Shares pursuant to the Offer, the Purchaser will be entitled to designate
representatives to serve on the Board of Directors of the Company in proportion
to the voting power of the Ordinary Shares owned by the Purchaser following such
purchase (determined on an as-converted basis assuming that all then outstanding
Preferred Shares are converted into Ordinary Shares); provided, that under
certain circumstances at least two members of the Board of Directors shall be
persons who were directors as of the time of signing of the Acquisition
Agreement. The Purchaser expects that such representation would permit the
Purchaser to exert substantial influence over the Company's conduct of its
business and operations.
PLANS FOR THE COMPANY. Subject to certain matters described below, it is
currently expected that, initially following the completion of the Offer, the
Compulsory Acquisition or the Scheme of Arrangement, the business and operations
of the Company will generally continue as they are currently being conducted.
Amerada Hess currently intends to cause the Company's operations to continue to
be run and managed by, among others, certain of the Company's existing executive
officers. Amerada Hess will continue to evaluate all aspects of the business,
operations, capitalization and management of the Company during the pendency of
the Offer and after the consummation of the Offer, the Compulsory Acquisition or
the Scheme of Arrangement and will take such further actions as it deems
appropriate under the circumstances then existing. Amerada Hess intends to seek
additional information about the Company during this period. Thereafter, Amerada
Hess intends to review such information as part of a comprehensive review of the
Company's business, operations, capitalization and management.
As a result of the completion of the Offer, the interest of Amerada Hess in
the Company's net book value and net earnings will be in proportion to the
number of Ordinary Shares owned directly or indirectly by Amerada Hess. If the
Compulsory Acquisition is consummated or the Scheme of Arrangement becomes
effective, Amerada Hess' interest in such items and in the Company's equity
generally will equal 100% and Amerada Hess and its subsidiaries will be entitled
to all benefits resulting from such interest, including all income generated by
the Company's operations and any future increase in the Company's value.
Similarly, after completion of the Offer, the Compulsory Acquisition or the
Scheme of Arrangement becomes effective, Amerada Hess will also bear its
proportionate share of the risk of losses generated by the Company's operations
and any future decrease in the value of the Company. Subsequent to the
consummation of the Compulsory Acquisition or upon the Scheme of Arrangement
becoming effective, current shareholders of the Company will cease to have any
equity interest in the Company, will not have the opportunity to participate in
the earnings and growth of the Company and will not have any right to vote on
corporate matters. Similarly, shareholders will not face the risk of losses
generated by the Company's operations or decline in the value of the Company
after the consummation of the Compulsory Acquisition or upon the Scheme of
Arrangement becoming effective. If the Offer is completed but a Compulsory
Acquisition or Scheme of Arrangement is not completed, the current shareholders
of the Company whose Ordinary Shares are not purchased in the Offer will have a
proportionate share of the equity interests in the Company and a proportionate
opportunity to participate in the earnings and growth of the Company and to
share in its losses or declines in value.
The Ordinary Shares are currently traded on the NYSE. Following the
consummation of the Compulsory Acquisition or upon the Scheme of Arrangement
becoming effective, the Ordinary Shares will no longer be listed on the NYSE and
the registration of the Ordinary Shares under the Exchange Act will be
terminated.
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Accordingly, there will be no publicly traded equity securities of the Company
outstanding and the Company will no longer be required to file periodic reports
with the Commission. If the Offer is completed but there is either no Compulsory
Acquisition or the Scheme of Arrangement is not effective, there may still be so
few Holders that the Ordinary Shares will no longer meet the requirements for
listing on the NYSE or registration under the Exchange Act. See Section
13 -- "Effect of the Offer on the Market for the Shares; Exchange Act
Registration."
The Purchaser may seek to cause the Company to redeem the Preferred Shares
in accordance with their terms.
Except as otherwise discussed in this Offer to Purchase, Amerada Hess has
no present plans or proposals that would result in any extraordinary corporate
transaction, such as an amalgamation, reorganization, liquidation involving the
Company or any of its subsidiaries, or purchase, sale or transfer of a material
amount of assets of the Company or any of its subsidiaries or in any other
material changes to the Company's capitalization, dividend policy, indebtedness
corporate structure, business or composition of the Board of Directors of the
Company or the management of the Company, except that Amerada Hess intends to
review the composition of the boards of directors (or similar governing bodies)
of the Company and its subsidiaries and to cause the election to such boards of
directors (or similar governing bodies) of certain of its representatives.
ACQUISITION AGREEMENT. THE FOLLOWING IS A SUMMARY OF THE MATERIAL TERMS OF
THE ACQUISITION AGREEMENT. THE SUMMARY IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO THE ACQUISITION AGREEMENT, A COPY OF WHICH HAS BEEN FILED WITH THE COMMISSION
AS AN EXHIBIT TO THE SCHEDULE TO. THE ACQUISITION AGREEMENT MAY BE INSPECTED AT,
AND COPIES MAY BE OBTAINED FROM, THE SAME PLACES AND IN THE MANNER SET FORTH IN
SECTION 7 -- "CERTAIN INFORMATION CONCERNING THE COMPANY."
THE OFFER. The Acquisition Agreement provides that so long as the
Acquisition Agreement has not been terminated and so long as none of the events
described in Section 14 -- "Conditions of the Offer" (the "Tender Offer
Conditions") has occurred and is continuing, as promptly as practicable after
the date of the Acquisition Agreement (but in any event not later than seven
business days after the first public announcement of its execution and
delivery), the Purchaser will commence the Offer. The obligation of the
Purchaser to accept for payment and to pay for any Ordinary Shares tendered in
the Offer and not withdrawn is subject only to the Tender Offer Conditions, any
of which, subject to the proviso below, may be waived by Amerada Hess or the
Purchaser in whole or in part in their sole discretion. The Tender Offer
Conditions are for the sole benefit of Amerada Hess and the Purchaser and may be
asserted by Amerada Hess and the Purchaser regardless of the circumstances
giving rise to any such Tender Offer Conditions. Amerada Hess and the Purchaser
have expressly reserved the right to modify the terms of the Offer; provided,
however, that neither Amerada Hess nor the Purchaser may (and Amerada Hess has
agreed to cause the Purchaser not to), without the prior written consent of the
Company, (i) reduce the number of Ordinary Shares to be purchased pursuant to
the Offer, (ii) reduce the Ordinary Share Offer Price, (iii) impose any
additional conditions to the Offer, (iv) change the form of consideration
payable in the Offer, (v) make any change to the terms of the Offer, including
without limitation the Tender Offer Conditions, that is materially adverse in
any manner to the Holders, (vi) amend or waive the Minimum Condition, except
that Amerada Hess or the Purchaser may, at any time, amend the Minimum Condition
to equal the number of Ordinary Shares representing a majority of the total
number of votes of the outstanding Ordinary Shares on a fully diluted basis, or
(vii) extend the Expiration Date; provided, however, that Amerada Hess or the
Purchaser may extend the Expiration Date (x) as required by any rule, regulation
or interpretation of the Commission or (y) in the event that any condition to
the Offer is not satisfied or waived as of the scheduled Expiration Date, for
such successive periods of up to ten business days at a time (or such longer
period as may be approved by the Company) until the earlier of the acceptance
for payment of any Ordinary Shares pursuant to the Offer or the date that is 60
days from the commencement of the Offer. Notwithstanding anything in the
foregoing to the contrary, the Company may require the Purchaser to extend the
Offer on one occasion for a maximum period of ten days if at the scheduled
Expiration Date, the Tender Offer Conditions (assuming for this purpose that the
Minimum Condition has not been amended in accordance with clause (vi) above)
have not been satisfied. In addition, notwithstanding anything in the
Acquisition Agreement to the contrary, if not already disclosed in the Offer to
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Purchase, Amerada Hess and the Purchaser may amend the Schedule TO to permit the
announcement of a Subsequent Offering Period, and the Purchaser may include a
Subsequent Offering Period for up to a maximum of 20 business days.
Notwithstanding the foregoing, if the Purchaser amends the Minimum Condition as
permitted by clause (vi) above and accepts Ordinary Shares tendered and not
withdrawn for payment pursuant to the terms of the Offer, then (i) the Purchaser
may make available a Subsequent Offering Period by extending the Offer on one
occasion for up to a maximum of twenty (20) business days and (ii) the Company
may require the Purchaser to make a Subsequent Offering Period available to the
Holders by extending the Offer on one occasion, for up to a maximum of twenty
(20) business days. If at any Expiration Date, the number of Ordinary Shares
validly tendered into and not withdrawn from the Offer, including all Ordinary
Shares validly tendered and not withdrawn from the Offer by the Principal
Shareholders (including, for this purpose, the conditional surrender for
conversion of, and tender of Ordinary Shares issuable upon conversion of,
Preferred Shares in accordance with the Principal Shareholders Agreement) will
result in the Minimum Condition being satisfied and all other Tender Offer
Conditions have been satisfied or waived, the Purchaser will be obligated to
accept for payment and pay for all such Ordinary Shares so tendered. If the
Purchaser accepts for payment any Ordinary Shares in the Offer, Amerada Hess or
the Purchaser must pay for all of the Ordinary Shares tendered and not withdrawn
in the Offer as soon as practicable after the scheduled Expiration Date, as it
may be extended pursuant to the Acquisition Agreement, but in any event no later
than the third business day after the date Amerada Hess or the Purchaser accepts
them and must pay for all Ordinary Shares tendered in the Subsequent Offering
Period, if applicable, promptly after such Ordinary Shares are tendered.
The Company has consented to the Offer and the Scheme of Arrangement and
has represented that (a) the Board of Directors of the Company has (i)
determined by unanimous vote that each of the Offer, the Scheme of Arrangement
and the Compulsory Acquisition is fair to, and in the best interests of the
Company and the holders of Shares (the Preferred Shares and the Ordinary Shares
together, the "Shares") (other than, in the case of the transactions
contemplated by the Principal Shareholders Agreement, the Principal
Shareholders), (ii) approved the Offer, the Scheme of Arrangement and the
Compulsory Acquisition, (iii) resolved, subject to the terms of the Acquisition
Agreement, to recommend that the Holders accept the Offer and tender their
Ordinary Shares pursuant to the Offer and that the holders of Shares approve the
Scheme of Arrangement, if such approval is sought and (iv) taken all other
action necessary to render any applicable takeover statutes and the Rights
Agreement and the Rights inapplicable to the Offer, the Scheme of Arrangement
and the Compulsory Acquisition; (b) J.P. Morgan Securities Inc. has delivered to
the Board of Directors of the Company its opinion that the consideration to be
received pursuant to the Offer and either the Scheme of Arrangement or the
Compulsory Acquisition, as applicable, by the holders of Shares (other than
Amerada Hess or any direct or indirect subsidiary thereof), is fair, from a
financial point of view, to such holders (other than, in the case of the
transactions contemplated by the Principal Shareholders Agreement, the Principal
Shareholders), subject to the assumptions and qualifications contained in that
opinion; and (c) it has been advised that each of its directors and executive
officers intends to tender pursuant to the Offer all Ordinary Shares owned of
record and beneficially by him or her except to the extent such tender would
violate applicable securities laws.
COMPULSORY ACQUISITION. In the event that, following the purchase of
Ordinary Shares pursuant to the Offer (including any Subsequent Offering
Period), Amerada Hess, the Purchaser and any other subsidiary of Amerada Hess
shall own Ordinary Shares which represent at least ninety percent (90%) in value
of the Ordinary Shares affected, the Company, Amerada Hess and the Purchaser
agree to take all necessary and appropriate action for the Purchaser to effect
the Compulsory Acquisition.
SCHEME OF ARRANGEMENT. Subject to the obligation of Amerada Hess and the
Purchaser to effect the Compulsory Acquisition, promptly following the
Acceptance Date (as defined below) and, if applicable, the Subsequent Offering
Period, or the expiration of the Offer without the purchaser of any Ordinary
Shares thereunder, (A) if the Offer has remained open for a minimum of twenty
business days, plus any extension of the Expiration Date (up to an additional
(10) days) that has been required by the Company in accordance with the
Acquisition Agreement, and (B) if requested by Amerada Hess or the Purchaser, in
its sole discretion and in accordance with applicable law, the Company shall
cause an application to be made to the
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Court requesting the Court to summon the Shareholders' Meetings, if directed by
the Court, convene such Shareholders' Meetings seeking the approval required
under Section 86(2) of the Companies Law and subject to such approval being
obtained, cause a petition to be presented to the Court seeking the sanctioning
of the Scheme of Arrangement and file such other documents as are required to be
duly filed with the Court to effect the Scheme of Arrangement. The Company
shall, if necessary, hold an extraordinary general meeting of its shareholders,
subject to the Scheme of Arrangement taking full force and effect, to approve
and adopt new Articles of Association of the Company that shall be substantially
identical to the Purchaser's articles of association, except as otherwise
required by the Acquisition Agreement. In furtherance of the foregoing, the
Company shall take all action necessary to solicit from its shareholders
proxies, and shall take all other action necessary and advisable to secure the
vote of shareholders required by the Companies Law and by the Memorandum of
Association of the Company or the Articles of Association of the Company to
obtain approval of the Scheme of Arrangement. Except as summarized below under
the heading -- "No Solicitation," the Board of Directors of the Company shall
recommend that the holders of Ordinary Shares and Preferred Shares vote in favor
of the approval of the Scheme of Arrangement at the Shareholders' Meetings, and,
except as summarized below under the heading -- "No Solicitation," the Company
agrees that it shall include in the Proxy Statement the recommendation of its
Board of Directors that the shareholders of the Company adopt the Acquisition
Agreement and approve the Scheme of Arrangement. Amerada Hess shall cause all
Shares owned by Amerada Hess and its direct and indirect subsidiaries (including
the Purchaser) to be voted in favor of approval of such Scheme of Arrangement.
As promptly as practicable following Amerada Hess' request, the Company
shall promptly prepare and file with the Commission a preliminary proxy
statement or information statement (together with any amendment or supplement
thereto, the "Proxy Statement") and shall promptly use its commercially
reasonable efforts to respond to the comments of the Commission, if any, in
connection therewith and to furnish all information regarding the Company that
is required in the definitive Proxy Statement (including, without limitation,
financial statements and supporting schedules and certificates and reports of
independent public accountants). Amerada Hess, the Purchaser and the Company
shall cooperate with each other in the preparation of the Proxy Statement.
Without limiting the generality of the foregoing, each of Amerada Hess and the
Purchaser shall furnish to the Company for inclusion in the Proxy Statement the
information relating to it required by the Exchange Act to be set forth in the
Proxy Statement. The Company shall cause the definitive Proxy Statement to be
mailed to the shareholders of the Company and, if necessary, after the
definitive Proxy Statement shall have been so mailed, promptly circulate
amended, supplemental or supplemented proxy material and, if required in
connection therewith, resolicit proxies. The Company shall not use any proxy
material in connection with the meeting of its shareholders without Amerada
Hess' prior approval, except as required by law or the Commission.
If deemed necessary or advisable by Amerada Hess, for purposes of the
hearing by the Court of the petition to sanction the Scheme of Arrangement, the
parties shall hold a pre-closing on the business day prior to the day of such
hearing (or such earlier time as reasonably requested by Amerada Hess if
necessary to prepare and file any affidavit in connection with such hearing) for
the purpose of determining which of the conditions to the Scheme of Arrangement
described below are satisfied as of such date.
As soon as practicable after receipt of an order from the Court sanctioning
the Scheme of Arrangement, the parties shall convene at a location designated by
Amerada Hess for the purpose of confirming the satisfaction of the following
conditions: (i) no temporary restraining order, preliminary or permanent
injunction or other order shall have been issued by any federal, state or
foreign court or by any federal, state or foreign governmental entity, and no
other legal restraint or prohibition preventing the consummation of the Scheme
of Arrangement shall be in effect; (ii) no federal, state or non-United States
statute, rule, regulation, executive order, decree or order of any kind shall
have been enacted, entered, promulgated or enforced by any court or governmental
entity which prohibits, restrains, restricts or enjoins the consummation of the
Scheme of Arrangement or has the effect of making the Scheme of Arrangement
illegal; and (iii) the waiting period (and any extension thereof) applicable to
the consummation of the transactions contemplated by the Acquisition Agreement
under the HSR Act, if any, shall have expired or been terminated (the "Scheme
Closing Date"). The closing of the Scheme of Arrangement (the "Scheme Closing")
shall be deemed to
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occur when all conditions set forth above are satisfied (other than any such
condition which has been waived) and all of the actions that are necessary to
consummate a Scheme of Arrangement have occurred.
As soon as practicable following the Scheme Closing, the Company shall
cause a copy of the Court order sanctioning the Scheme of Arrangement to be duly
delivered to the Registrar and the Scheme of Arrangement shall become effective
as soon as a copy of the Court order sanctioning the Scheme of Arrangement has
been duly delivered to the Registrar for registration and the order and minutes
have been registered by him (the date of such registration being the "Scheme
Effective Date" and the time of such registration being the "Scheme Effective
Time").
Notwithstanding the foregoing, if the Company and Amerada Hess so agree in
writing, and the same is consistent with any order of the Court sanctioning the
Scheme of Arrangement, the Company shall cause a copy of the order to be
delivered to the Registrar prior to the Scheme Closing, and the Scheme Closing
shall be held as soon as practicable thereafter, in which case the Scheme of
Arrangement shall become effective only after both a copy of the Court order
sanctioning the Scheme of Arrangement is delivered to the Registrar for
registration and the order and minutes have been registered by the Registrar and
the Scheme Closing shall have occurred. In such case, for all purposes, the
Scheme Effective Date shall be the date on which the Scheme Closing shall have
occurred and the Scheme Effective Time shall be the time at which the Scheme
Closing is deemed by the parties to be completed. As of the Scheme Effective
Time, the Company shall be a direct wholly owned subsidiary of the Purchaser.
At the Scheme Effective Time, by virtue of the Scheme of Arrangement: (i)
each Ordinary Share issued and outstanding immediately prior to the Scheme
Effective Time (other than Ordinary Shares (and the associated Rights) which are
held by any wholly owned subsidiary of the Company or in the treasury of the
Company, or which are held, directly or indirectly, by Amerada Hess or any
subsidiary of Amerada Hess (including the Purchaser)) (the "Scheme Ordinary
Shares") shall be, by virtue of the Scheme of Arrangement and without any action
required by the holder thereof, transferred to the Purchaser in consideration
for $45.00 in cash per Scheme Ordinary Share transferred ("Ordinary Cash
Consideration") and (ii) in the event that there are Preferred Shares
outstanding on the commencement of the Scheme of Arrangement, each Preferred
Share issued and outstanding immediately prior to the Scheme Effective Time
(other than Preferred Shares which are held by any wholly owned subsidiary of
the Company or in the treasury of the Company, or which are held, directly or
indirectly, by Amerada Hess or any subsidiary of Amerada Hess (including the
Purchaser)) (the "Scheme Preferred Shares" and together with the Scheme Ordinary
Shares, the "Scheme Shares") shall be, by virtue of the Scheme of Arrangement
and without any action required by the holder thereof, transferred to the
Purchaser in consideration for $180.00 in cash per Scheme Preferred Share, plus
any accumulated and unpaid dividends thereon through the Scheme Effective Date
(the "Preferred Cash Consideration" and together with the Ordinary Cash
Consideration, the "Cash Consideration").
At the Scheme Effective Time, regardless of whether a certificate for
Scheme Shares shall be surrendered for exchange, all certificates for Scheme
Shares shall be deemed canceled and the holders thereof shall cease to have any
rights by virtue thereof, other than to receive the Cash Consideration set forth
herein. All Cash Consideration paid upon the deemed cancellation of certificates
for Scheme Shares shall be deemed to have been paid in full satisfaction of all
rights pertaining to such Scheme Shares.
Subject to and by virtue of the orders of the Court under Sections 86 and
87 of the Companies Law sanctioning the Scheme of Arrangement, the terms of the
Scheme of Arrangement and the provisions for cancellation or surrender of the
certificates representing the Scheme Shares shall be as set forth in the Scheme
of Arrangement.
Prior to the Scheme Effective Time, Amerada Hess or the Purchaser shall
designate a bank or trust company reasonably satisfactory to the Company to act
as exchange agent in connection with the transactions contemplated hereby (the
"Exchange Agent"). At the Scheme Effective Time, Amerada Hess or the Purchaser
shall provide the Exchange Agent in immediately available funds in U.S. dollars
all funds necessary to pay the Cash Consideration (the "Payment Fund"). As soon
as possible after the Scheme Effective Time, and in no event later than five (5)
business days after the Scheme Effective Date, Amerada Hess or the
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Purchaser shall, or shall cause the Exchange Agent, to send to each holder of
the Scheme Shares at the address appearing in the register of members of the
Company on the date immediately preceding the Scheme Effective Date a bank
cheque in immediately available funds in U.S. dollars representing each such
shareholder's Cash Consideration. The payment required to be sent by Amerada
Hess or the Purchaser, or the Exchange Agent on their behalf, to the
shareholders pursuant to the Scheme of Arrangement shall be sent by mail with
postage prepaid, addressed to the shareholders entitled thereto at their
respective registered address, and Amerada Hess and the Purchaser shall not be
responsible for any loss or delay in transmission posted. No interest shall be
paid or accrued on the Cash Consideration. Until monies held in the Payment Fund
are paid to the shareholders, Amerada Hess and the Purchaser shall cause the
Exchange Agent to invest the Payment Fund as directed by them. All earnings on
investments made with the Payment Fund shall be paid to Amerada Hess or, at its
direction, to the Purchaser. If for any reason the Payment Fund is inadequate to
pay the amounts to which shareholders are entitled, the Purchaser shall, and
Amerada Hess shall cause the Purchaser to, promptly restore such amount of
inadequacy to the Payment Fund, and in any event shall be fully liable for
payment thereof. Any portion of the Payment Fund that remains undistributed to
the shareholders for nine months after the Scheme Effective Time shall be
delivered to the Purchaser, upon demand, and any shareholder who has not
theretofor complied with the procedures to receive payment shall thereafter look
only to Amerada Hess for payment of its claim for Cash Consideration. The
Exchange Agent shall be entitled to deduct and withhold from the Cash
Consideration otherwise payable to any shareholder pursuant to this Agreement
such amounts as may be required to be deducted and withheld with respect to the
making of such payment under any law.
COMPOSITION OF THE BOARD OF DIRECTORS. The Acquisition Agreement provides
that, promptly upon the acceptance for payment of, and payment by the Purchaser
for, Ordinary Shares pursuant to the Offer, the Purchaser will be entitled to
designate up to such number of directors ("Amerada Hess Designees") on the Board
of Directors of the Company, rounded up to the next whole number, as will give
the Purchaser representation on the Board of Directors of the Company equal to
at least that number of directors that equals the product of the total number of
directors on the Board of Directors of the Company (giving effect to the
directors elected pursuant to this sentence) multiplied by a fraction, the
numerator of which shall be the number of votes represented by the Ordinary
Shares (determined on an as-converted basis assuming that all then-outstanding
Preferred Shares owned by Amerada Hess and the Purchaser are converted into
Ordinary Shares) beneficially owned by the Purchaser and Amerada Hess and the
denominator of which shall be the aggregate number of votes represented by the
Ordinary Shares (determined on an as-converted basis assuming that all
then-outstanding Preferred Shares are converted into Ordinary Shares) then
issued and outstanding, and the Company and its Board of Directors will, at such
time, take any and all such action necessary to cause Amerada Hess Designees to
be appointed to the Board of Directors of the Company in such class of directors
(if any) as will ensure the longest possible term for such Amerada Hess
Designees (including using commercially reasonable efforts to cause relevant
directors to resign and/or increasing the size of the Board of Directors of the
Company (subject to the limitations set forth in the Company's Memorandum of
Association and Articles of Association)). The Company has agreed to take all
action required to effect the election of such Amerada Hess Designees. Upon
acceptance for payment of Ordinary Shares pursuant to the Offer (the date
Ordinary Shares are first accepted for payment, the "Acceptance Date"), the
Company, if so requested, has agreed to use its commercially reasonable efforts
to cause persons designated by Amerada Hess to constitute the same percentage of
each committee of its Board of Directors, each Board of Directors of each
subsidiary and each committee of each such Board of Directors (in each case to
the extent of the Company's ability to elect such persons) as the percentage of
the full Board of Directors of the Company that the Amerada Hess Designees
constitutes. Notwithstanding the other provisions of the Acquisition Agreement,
the Company, Amerada Hess and the Purchaser have agreed to use their respective
commercially reasonable efforts to ensure that at least two of the members of
the Board of Directors will, at all times prior to: (i) if Amerada Hess or the
Purchaser requests a Scheme of Arrangement pursuant to the Acquisition
Agreement, the earlier to occur of (A) the Scheme Effective Time and (B) the
date on which (x) the Court declines to sanction the Scheme of Arrangement, (y)
the Company's shareholders do not approve the Scheme of Arrangement at any
meeting duly called for such purpose or (z) Amerada Hess and the Purchaser
abandon the Scheme of Arrangement; (ii) if Amerada Hess and the Purchaser are
required to effect a Compulsory
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Acquisition pursuant to the Acquisition Agreement, the earlier to occur of (A)
the date of completion of the Compulsory Acquisition (the "Compulsory Completion
Date") and (B) the date on which (x) the Court, pursuant to an application made
by a dissenting shareholder, grants an order preventing the acquisition of the
applicant's shares pursuant to Section 88 of the Companies Law or (y) Amerada
Hess and the Purchaser abandon the Compulsory Acquisition; and (iii) the date
which is 30 business days after the Acceptance Date if Amerada Hess and the
Purchaser are not required to effect a Compulsory Acquisition pursuant to the
Acquisition Agreement and Amerada Hess or the Purchaser does not request a
Scheme of Arrangement pursuant to the Acquisition Agreement on or before such
date (the applicable date being referred to herein as the "Discontinuance
Date"); be persons who are directors of the Company on the date of the
Acquisition Agreement (the "Continuing Directors"); provided, that if there are
in office less than two Continuing Directors, the Board of Directors may cause
the person designated by the remaining Continuing Director or Continuing
Directors to fill such vacancy, and such person will be deemed to be a
Continuing Director for all purposes of the Acquisition Agreement, or if no
Continuing Directors then remain, the other directors of the Company then in
office will designate two persons to fill such vacancies who will not be
officers, employees or affiliates of the Company or Amerada Hess, and such
persons will be deemed to be Continuing Directors for all purposes of the
Acquisition Agreement. Following the election or appointment of the Amerada Hess
Designees pursuant to the Acquisition Agreement and prior to the Discontinuance
Date, any amendment of the Acquisition Agreement, any proposal to shareholders
to amend the Company's Memorandum of Association or Articles of Association, any
termination of the Acquisition Agreement by the Company, any extension by the
Company of the time for the performance of any of the obligations or other acts
of Amerada Hess and the Purchaser or waiver of any of the Company's rights
thereunder, and any other consent or action by the Company thereunder, requires
the concurrence of a majority of the Continuing Directors, if there are more
than two Continuing Directors, or the concurrence of one Continuing Director, if
there are two Continuing Directors. In connection therewith, the Acquisition
Agreement provides that the Continuing Directors may, on behalf and at the
expense of the Company, retain financial and legal advisors.
INTERIM OPERATIONS. The Acquisition Agreement provides that, except as
expressly permitted or required thereby or otherwise consented to in writing by
Amerada Hess, during the period commencing on the date of the Acquisition
Agreement and continuing until the earliest to occur of (w) the Acceptance Date,
(x) the Compulsory Completion Date, (y) the Scheme Effective Date and (z)
termination of the Acquisition Agreement pursuant to its termination provisions:
(a) except as set forth in the disclosure letter delivered by the Company to
Amerada Hess and the Purchaser upon or prior to entering into the Acquisition
Agreement, the Company and each of its subsidiaries will conduct their
respective operations only according to their ordinary and usual course of
business and will use their commercially reasonable efforts to preserve intact
their respective business organization, keep available the services of their
respective officers and employees and maintain satisfactory relationships with
licensors, suppliers, distributors, clients, customers and others having
significant business relationships with them and (b) the Company has agreed not
to, and to cause each of its subsidiaries not to, subject always to the
fiduciary duties of the Board of Directors and their obligation to comply with
the Companies Laws: (i) make any change in or amendment to its memorandum of
association or its articles of association (or comparable governing documents);
(ii) issue or sell, or authorize to issue or sell, any Shares of its share
capital or any other securities, or issue or sell, or authorize to issue or
sell, any securities convertible into or exchangeable for, or options, warrants
or rights to purchase or subscribe for, or enter into any arrangement or
contract with respect to the issuance or sale of, any Shares of its share
capital or any other securities, or make any other changes in its capital
structure, except for (A) the possible issuance by the Company of (x) Ordinary
Shares upon the conversion of Preferred Shares or (y) Ordinary Shares pursuant
to the terms of any vested Options (as defined below) or (B) the redemption of
the Preferred Shares in accordance with their terms; (iii) sell, pledge or
dispose of or agree to sell, pledge or dispose of any Shares or other equity
interest owned by it in any other person in excess of $10,000,000 in the
aggregate; (iv) declare, pay or set aside any dividend or other distribution or
payment with respect to, or split, combine, redeem or reclassify, or purchase or
otherwise acquire, any Shares of its share capital or its other securities,
except for the redemption of the Preferred Shares in accordance with their
terms; (v) enter into any contract or commitment with respect to capital
expenditures with a value in excess of, or requiring expenditures by the Company
and its subsidiaries in excess of, $10,000,000, individually, or enter into
contracts or commitments with respect to
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capital expenditures with a value in excess of, or requiring expenditures by the
Company and its subsidiaries in excess of, $30,000,000, in the aggregate; (vi)
acquire, by merging, amalgamating or consolidating with, by purchasing an equity
interest in or a portion of the assets of, or by any other manner, any business
or any person, or otherwise acquire any assets of any person (other than the
purchase of assets in the ordinary course of business); (vii) except to the
extent required under existing employee and director benefit plans, agreements
or arrangements as in effect on the date of the Acquisition Agreement, increase
the compensation or fringe benefits of any of its directors, officers or
employees or grant any severance or termination pay not currently required to be
paid under existing severance plans or enter into any employment, consulting or
severance agreement or arrangement with any present or former director, officer
or other employee of the Company or any of its subsidiaries, or establish,
adopt, enter into, amend or terminate any collective bargaining, bonus, profit
sharing, thrift, compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment, termination, severance or other
plan, agreement, trust, fund, policy or arrangement for the benefit of any
directors, officers or employees; (viii) transfer, lease, license, guarantee,
sell, mortgage, pledge, dispose of, subject to any Lien (as defined below)
(other than a Permitted Lien) or otherwise encumber any material assets or incur
or modify any indebtedness or other material liability other than in the
ordinary course of business or issue any debt securities or assume, guarantee or
endorse or otherwise as an accommodation become responsible for the obligations
of any person; (ix) agree to the settlement of or waive any material claim or
litigation; (x) make or rescind any material tax election or settle or
compromise any material tax liability; (xi) except as required by applicable law
or generally accepted accounting principles, make any material change in its
method of accounting; (xii) adopt or enter into a plan of complete or partial
liquidation, dissolution, merger, amalgamation, scheme of arrangement,
consolidation, restructuring, recapitalization or other reorganization of the
Company or any of its subsidiaries (other than the Scheme of Arrangement) or any
agreement relating to an Acquisition Proposal (as defined below) except as
permitted in the circumstances summarized below under the heading -- "No
Solicitation"; (xiii) (A) incur, assume or prepay any indebtedness for borrowed
money or guarantee any such indebtedness of another person, other than
indebtedness owing to or guarantees of indebtedness owing to the Company or any
direct or indirect wholly owned subsidiary of the Company or (B) make any loans,
extensions of credit or advances to any other person, other than to the Company
or to any direct or indirect wholly owned subsidiary of the Company except, in
the case of clause (A), for borrowings under existing credit facilities
described in the Completed Commission Filings (as defined below) in the ordinary
course of business for working capital purposes and in the case of clause (B)
for loans, extensions of credit or advances constituting trade payables in the
ordinary course of business; (xiv) except as permitted by the Acquisition
Agreement or required under any employee benefit plan or other agreement or
contract to which the Company is a party as of the date of the Acquisition
Agreement, accelerate the payment, right to payment or vesting of any bonus,
severance, profit sharing, retirement, deferred compensation, stock option,
insurance or other compensation or benefits; (xv) pay, discharge or satisfy any
claims, liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or satisfaction (A)
of any such claims, liabilities or obligations in the ordinary course of
business or (B) of claims, liabilities or obligations reflected or reserved
against in the most recent consolidated financial statements (or the notes
thereto) contained in the Completed Commission Filings; (xvi) enter into any
Material Contract (as defined below) except in the ordinary course of business;
(xvii) other than as disclosed in the Completed Commission Filings, plan,
announce, implement or effect any reduction in force, lay-off, early retirement
program, severance program or other program or effort concerning the termination
of employment of employees of the Company or its subsidiaries; provided,
however, that routine employee terminations for cause shall not be considered
subject to this clause (xvii); (xviii) (A) take any action, engage in any
transaction or enter into any agreement, except as required by any order,
judgment or decree of any Governmental Entity (as defined below), that would
cause any of the representations or warranties set forth in the Acquisition
Agreement that are subject to, or qualified by, a "Material Adverse Effect" (as
defined below), "material adverse change" or other materiality qualification to
be untrue as of the earliest to occur of the Acceptance Date, the Compulsory
Completion Date or the Scheme Effective Date, or any such representations and
warranties that are not so qualified to be untrue in any manner that could
reasonably be expected to result in a Material Adverse Effect on the Company, or
any of the Tender Offer Conditions not being satisfied, or (B) purchase or
acquire, or offer to purchase or acquire, any Shares; (xix) take any action,
including, without limitation, the adoption of any shareholder rights plan or
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amendments to its Memorandum of Association or Articles of Association (or
comparable governing documents), which would, directly or indirectly, restrict
or impair the ability of Amerada Hess to vote or otherwise to exercise the
rights and receive the benefits of a shareholder with respect to securities of
the Company that may be acquired or controlled by Amerada Hess or the Purchaser,
or that would permit any shareholder to acquire securities of the Company on a
basis not available to Amerada Hess or the Purchaser in the event that Amerada
Hess or the Purchaser were to acquire any Shares; (xx) materially modify, amend
or terminate any material contract or waive any of its material rights or claims
except in the ordinary course of business; (xxi) (A) prepare any return in a
manner which is materially inconsistent with the past practices of the Company
or a subsidiary, as the case may be, with respect to the treatment of items on
such returns, (B) incur any material liability for taxes other than in the
ordinary course of business or (C) enter into any settlement or closing
agreement with a taxing authority that materially affects or could reasonably be
expected to affect materially the tax liability of the Company or a subsidiary,
as the case may be, for any period ending after the Closing Date; (xxii) fail to
maintain with financially responsible insurance companies insurance on its
tangible assets and its businesses in such amounts and against such risks and
losses; or (xxiii) agree, in writing or otherwise, to take any of the foregoing
actions.
As used in this summary and the Acquisition Agreement, the term, (i)
"Commission Filings" means all forms, reports, schedules, statements,
registration statements and other documents required to be filed pursuant to the
federal securities laws and the Commission rules and regulations; (ii)
"Completed Commission Filings" means the Commission Filings filed prior to July
9, 2001; (iii) "Contracts," as used in this summary and the Acquisition
Agreement, means any contracts, agreements, instruments or understandings; (iv)
"Lien," as used in this summary and the Acquisition Agreement, means any liens,
security interest, charge or encumbrance of any kind or nature; and (v)
"Material Contracts" means: (a) Contracts with any current or former employee,
director or officer of the Company or any of its subsidiaries (other than any
such person who receives or received (during his or her last year of employment
with the Company or any of its subsidiaries) less than $200,000 in total annual
cash compensation from the Company or any of its subsidiaries); (b) Contracts
other than contracts entered into in the ordinary course of business (x) for the
sale of any material amount of the assets of the Company or any of its
subsidiaries, or (y) for the grant to any person of any preferential rights to
purchase any material amount of its assets; (c) Contracts which materially
restrict the Company or any of its affiliates from competing in any material
line of business or with any person in any geographical area, or which
materially restrict any other person from competing with the Company or any of
its affiliates in any material line of business or in any geographical area; (d)
Contracts which are material to the Company and which restrict the Company or
any of its subsidiaries from disclosing any information concerning or obtained
from any other person, or which restrict any other person from disclosing any
information concerning or obtained from the Company or any of its subsidiaries
(other than contracts entered into in the ordinary course of business); (e)
Contracts involving (i) the acquisition, merger or purchase of all or
substantially all of the assets or business of a third party, involving
aggregate consideration of $10,000,000 or more, or (ii) other than the purchase
or sale of assets in the ordinary course of business and other than contracts
relating to the sale of oil, gas or other petroleum products in the ordinary
course of business, the purchase or sale of assets, or a series of purchases and
sales of assets, involving aggregate consideration of $10,000,000 or more; (f)
Contracts with any affiliate that would be required to be disclosed under Item
404 of Regulation S-K under the Securities Act of 1933, as amended; (g)
Contracts which are material to the Company and contain a "change in control" or
similar provision; (h) Contracts, including mortgages or other grants of
security interests, guarantees and notes, relating to the borrowing of money in
an aggregate amount in excess of $10,000,000 in the aggregate; (i) Contracts
relating to any material joint venture, partnership, strategic alliance or
similar arrangement; and (j) Contracts existing on the date hereof involving
revenues or payments in excess of $10,000,000 per year.
NO SOLICITATION. Pursuant to the Acquisition Agreement, the Company has
agreed, and has agreed to use its reasonable best efforts to cause its
affiliates and each of its and their respective officers, directors, employees,
representatives, consultants, investment bankers, attorneys, accountants and
other agents ("Representatives") immediately to, cease any discussions or
negotiations with any other person or persons that may be ongoing with respect
to any Acquisition Proposal. The Company has agreed not to take, and has agreed
to use its reasonable best efforts to cause its affiliates and its and their
respective Representatives not to take, any
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action (i) to encourage, solicit, initiate or facilitate, directly or
indirectly, the making or submission of any Acquisition Proposal (including,
without limitation, by taking any action that would make the Rights Agreement
inapplicable to an Acquisition Proposal), (ii) to enter into any agreement,
arrangement or understanding with respect to any Acquisition Proposal, or to
agree to approve or endorse any Acquisition Proposal or enter into any
agreement, arrangement or understanding that would require the Company to
abandon, terminate or fail to consummate the Offer or the Scheme of Arrangement
or any other transactions contemplated by the Acquisition Agreement or the
Principal Shareholder Agreement (the "Transaction Documents"), (iii) to initiate
or participate in any way in any discussions or negotiations with, or furnish or
disclose any information to, any Person (other than Amerada Hess or the
Purchaser) in connection with any Acquisition Proposal, (iv) to facilitate or
further in any other manner any inquiries or the making or submission of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal, or (v) to grant any waiver or release under any
standstill, confidentiality or similar agreement entered into by the Company or
any of its affiliates or representatives.
The Acquisition Agreement provides that the Company, in response to an
unsolicited Acquisition Proposal that did not result from a breach in any
material respect of clauses (i) through (v) of the second sentence of the
immediately preceding paragraph and if otherwise in compliance with its
obligations under the requirements set forth in the immediately following
paragraph, may (1) request clarifications from, or furnish information to (but
not enter into discussions with), any person (other than Amerada Hess or the
Purchaser) which makes such unsolicited Acquisition Proposal, in each case if
(x) such action is taken subject to a confidentiality agreement with terms not
more favorable to such person than the terms of the Confidentiality Agreement
(as defined below) (as in effect on the date of the Acquisition Agreement), (y)
such action is taken solely for the purpose of obtaining information reasonably
necessary to ascertain whether such Acquisition Proposal is, or could reasonably
likely lead to, a Superior Proposal (as defined below) and (z) a majority of the
members of the entire Board of Directors of the Company reasonably determines in
good faith, after receiving advice from Cayman Islands counsel to the Company,
that it is necessary to take such actions in order to comply with the fiduciary
duties of the Board of Directors of the Company under applicable law; or (2)
participate in discussions with, request clarifications from, or furnish
information to, any person (other than Amerada Hess or the Purchaser) who makes
such unsolicited Acquisition Proposal if (x) such action is taken subject to a
confidentiality agreement with terms not more favorable to such third party than
the terms of the Confidentiality Agreement (as in effect on the date of the
Acquisition Agreement), (y) after consultation with an independent, nationally
recognized investment bank, a majority of the members of the entire Board of
Directors of the Company reasonably determines in good faith that such
Acquisition Proposal is a Superior Proposal, and (z) a majority of the members
of the entire Board of Directors of the Company reasonably determines in good
faith, after receiving advice from Cayman Islands counsel to the Company, that
it is necessary to take such actions in order to comply with the fiduciary
duties of the Board of Directors under applicable law.
The Acquisition Agreement provides that neither the Board of Directors of
the Company nor any committee thereof may withdraw, modify or amend, or propose
to withdraw, modify or amend, in a manner adverse to Amerada Hess or the
Purchaser, the approval, adoption or, as the case may be, recommendation of the
Offer, the Scheme of Arrangement, the transactions contemplated by the
Transaction Documents, or approve or recommend, or propose to approve or
recommend, any Acquisition Proposal or resolve to do any of the foregoing;
provided, that prior to the Acceptance Date the Company may recommend to its
shareholders an Acquisition Proposal and, in connection therewith, withdraw or
modify its approval or recommendation of the Offer or the other transactions
contemplated by the Transaction Documents, if (x) the Company has complied with
its obligations under the Acquisition Agreement summarized in the preceding and
following paragraphs, (y) the Acquisition Proposal is a Superior Proposal, and
(z) (A) the Board of Directors has determined, in good faith, that it is
necessary to take such action in order to comply with the fiduciary duties of
the Board of Directors under applicable law, (B) five business days have elapsed
following delivery to Amerada Hess of a written notice of the determination of
the Board of Directors, (C) during such period the Company has fully cooperated
with Amerada Hess including, without limitation, informing Amerada Hess of the
terms and conditions of such Superior Proposal and the identity of the person
making such Superior Proposal, with the intent of enabling Amerada Hess and the
Company to agree to a modification of the terms
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and conditions of the Acquisition Agreement and (D) at the end of such five
business day period the Acquisition Proposal continues to constitute a Superior
Proposal. Nothing in the "no solicitation" provisions shall prohibit the Company
or its Board of Directors from taking and disclosing to the Company's
shareholders a position with respect to an Acquisition Proposal by a third party
to the extent required under Rule 14e-2 of the Exchange Act.
"Acquisition Proposal," as used in this summary and the Acquisition
Agreement, means (i) any inquiry, proposal or offer (including, without
limitation, any proposal to shareholders of the Company) from any person or
group relating to any direct or indirect acquisition or purchase of 15% or more
of the consolidated assets of the Company and its subsidiaries or 15% or more of
any class of equity securities of the Company or any of its subsidiaries, (ii)
any tender offer or exchange offer that, if consummated, would result in any
person beneficially owning 15% or more of any class of equity securities of the
Company or any of its subsidiaries, (iii) any merger, amalgamation,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company or any of its subsidiaries, or (iv)
any other transaction the consummation of which could reasonably be expected to
impede, interfere with, prevent or materially delay the Offer or the Scheme of
Arrangement or the other transactions contemplated by the Transaction Documents
or which could reasonably be expected to dilute materially the benefits to
Amerada Hess of the transactions contemplated by the Acquisition Agreement or
the Principal Shareholders Agreement.
"Superior Proposal," as used in this summary and the Acquisition Agreement,
means a bona fide binding written offer not solicited by or on behalf of the
Company made by a third party to acquire all of the Shares pursuant to a tender
offer, a merger, an amalgamation, a scheme of arrangement or to acquire all or
substantially all of the assets of the Company (i) on terms which a majority of
the members of the entire Board of Directors of the Company (based on the
written advice of an independent nationally recognized investment bank)
reasonably determines in good faith to have a higher value than the
consideration to be received by the shareholders of the Company (in their
capacity as such) than the transactions contemplated by the Acquisition
Agreement to the extent proposed to be modified by Amerada Hess, (ii) that is
reasonably capable of being consummated (taking into account, among other
things, all legal, financial, regulatory and other aspects of such proposal and
the identity of the person making such proposal) and (iii) that is not
conditioned on obtaining any financing.
The Acquisition Agreement provides that, in addition to the obligations of
the Company set forth above, on the date of receipt or occurrence thereof, the
Company is obligated to advise Amerada Hess of any request for information with
respect to any Acquisition Proposal or of any Acquisition Proposal, or any
inquiry, proposal, discussions or negotiation with respect to any Acquisition
Proposal, the terms and conditions of such request, Acquisition Proposal,
inquiry, proposal, discussion or negotiation and the Company has agreed, within
one day of the receipt thereof, promptly to provide to Amerada Hess copies of
any written materials received by the Company in connection with the foregoing,
and the identity of the Person making such Acquisition Proposal or such request,
inquiry or proposal or with whom such discussions or negotiations are taking
place. The Company has agreed to keep Amerada Hess fully informed of the status
and material details (including amendments or proposed amendments) of any such
request or Acquisition Proposal and keep Amerada Hess fully informed as to the
material details of any information requested of or provided by the Company and
as to the details of all discussions or negotiations with respect to any such
request, Acquisition Proposal, inquiry or proposal, and to provide to Amerada
Hess within one day of receipt thereof all written materials received by the
Company with respect thereto. The Company has also agreed to provide promptly to
Amerada Hess any non-public information concerning the Company provided to any
other person in connection with any Acquisition Proposal that was not previously
provided to Amerada Hess.
The Acquisition Agreement provides that the Company will immediately
request each person who had, prior to the date thereof, executed a
confidentiality agreement in connection with its consideration of acquiring the
Company or any portion thereof, to return all confidential information furnished
to such person by or on behalf of the Company, and the Company has agreed to use
its commercially reasonable efforts to have such information returned.
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DIRECTORS' AND OFFICERS' INSURANCE AND INDEMNIFICATION. The Acquisition
Agreement provides that the provisions with respect to indemnification and
exculpation from liability set forth in the Company's Memorandum of Association
and Articles of Association, as in effect on the date of the Acquisition
Agreement, shall not be amended, repealed or otherwise modified for a period of
six years from the earliest of the Acceptance Date, the Compulsory Completion
Date, the Scheme Effective Time and the expiration of the Acquisition Agreement
in any manner that would adversely affect the rights thereunder of individuals
who on or prior to such date were directors or officers of the Company, unless
such modification is required by law. The Company shall honor to the fullest
extent permitted by applicable law indemnity agreements with certain directors
and officers. Notwithstanding the foregoing, in respect of any Continuing
Director, the provisions with respect to indemnification and exculpation from
liability set forth in the Company's Memorandum of Association and Articles of
Association, as in effect on the date of the Acquisition Agreement, shall not be
amended, repealed or otherwise modified for a period of six years from the
Discontinuance Date in any manner that would adversely affect the rights
thereunder of any Continuing Director, unless such modification is required by
law. In addition, pursuant to the Acquisition Agreement, for a period of six
years from the earliest of the Acceptance Date, the Compulsory Completion Date,
the Scheme Effective Time and the expiration of the Acquisition Agreement, (i)
the Company will maintain in effect the Company's current directors' and
officers' liability insurance as in effect on the date of the Acquisition
Agreement covering those persons who were covered on the date of the Acquisition
Agreement by the Company's directors' and officers' liability insurance policy
(the "Indemnified Parties"); provided, however, that the Company shall not be
required to expend in any one year an amount in excess of 150% of the annual
premiums currently paid by the Company for such insurance and provided, further,
that the Company may substitute other policies with at least the same coverage
containing terms and conditions that are no less advantageous, so long as the
substitution does not result in any gaps or lapses in coverage with respect to
matters occurring prior to the earliest of the Acceptance Date, the Compulsory
Completion Date, the Scheme Effective Date and the expiration of the Acquisition
Agreement, or (ii) at such time as Amerada Hess, directly or indirectly through
the Purchaser, owns the entire share capital of the Company, the Company or
Amerada Hess may cause Amerada Hess' directors' and officers' liability
insurance then in effect to cover the Indemnified Parties with respect to those
matters covered by the Company's directors' and officers' liability insurance
policy so long as the terms thereof are no less advantageous to the intended
beneficiaries thereof than the Company's current directors' and officers'
liability insurance covering the Indemnified Parties. The Acquisition Agreement
provides that, if the Company elects clause (i) of the previous sentence and
such directors' and officers' liability insurance is terminated or canceled
during such six-year period, then, at such time as Amerada Hess, directly or
indirectly through the Purchaser, owns the entire share capital of the Company,
will use all reasonable efforts to cause to be obtained as much directors' and
officers' insurance as can be obtained for the remainder of such period for an
annualized premium not in excess of the maximum premium specified above, on
terms and conditions no less advantageous to the Indemnified Parties than such
insurance that has expired.
The Acquisition Agreement provides that the Company and, at any time that
Amerada Hess owns directly or indirectly the entire share capital of the
Company, Amerada Hess must indemnify all Indemnified Parties to the fullest
extent permitted by applicable law with respect to all acts and omissions
arising out of such individuals' services as officers, directors, employees or
agents of the Company or any of its subsidiaries or as trustees or fiduciaries
of any plan for the benefit of employees of the Company or any of its
subsidiaries, and occurring at or prior to the earliest of the Acceptance Date,
the Compulsory Completion Date, the Scheme Effective Date and the expiration of
the Acquisition Agreement, including, without limitation, the transactions
contemplated by the Acquisition Agreement. In the event any such Indemnified
Party is or becomes involved, in any capacity, in any action, proceeding or
investigation in connection with any matter, including, without limitation, the
transactions contemplated by the Acquisition Agreement, occurring prior to and
including the earliest of the Acceptance Date, the Compulsory Completion Date,
the Scheme Effective Date and the expiration of the Acquisition Agreement, the
Company, and at such time as Amerada Hess owns the entire share capital of the
Company, Amerada Hess from and after such date will pay, as incurred, such
Indemnified Party's reasonable legal and other expenses (including the cost of
any investigation and preparation) incurred in connection therewith.
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CERTAIN EMPLOYEE BENEFITS. Pursuant to the Acquisition Agreement, Amerada
Hess will take such action as may be necessary so that on and after the earlier
of the Compulsory Completion Date and the Scheme Effective Date and for one year
thereafter, officers and employees of the Company and its subsidiaries shall be
provided employee benefits, plans and programs which are no less favorable in
the aggregate than those generally available to similarly situated officers and
employees of Amerada Hess and its subsidiaries, except with respect to the
benefits available under a specified severance policy (the "Severance Policy").
For purposes of eligibility to participate and vesting in all benefits provided
to officers and employees, the officers and employees of the Company and its
subsidiaries will be credited with the same years of service as they were
credited with the Company and its subsidiaries. The Acquisition Agreement
provides that, upon termination of any health plan of the Company or any of its
subsidiaries, individuals who were officers or employees of the Company or its
subsidiaries at the earlier to occur of the Compulsory Completion Date or the
Scheme Effective Date will, if employed by the Company and its subsidiaries,
become eligible to participate in such health plans established by Amerada Hess
(or existing plans maintained by the Company that satisfy the terms of the
Acquisition Agreement). The Acquisition Agreement further provides that amounts
paid before the earlier to occur of the Compulsory Completion Date and the
Scheme Effective Date by officers and employees of the Company and its
subsidiaries under any health plans of the Company shall after such date be
taken into account in applying deductible and out-of-pocket limits applicable
under the health plans of Amerada Hess provided as of such date to the same
extent as if such amounts had been paid under such health plans of Amerada Hess.
Pursuant to the Acquisition Agreement, following the earlier to occur of the
Compulsory Completion Date and the Scheme Effective Date, Amerada Hess will
permit and will cause the Company to permit all individuals who are employees of
the Company and its subsidiaries immediately prior to such date to retain and
take any paid vacation days accrued but not taken or lost under the Company's
and its subsidiaries' vacation policies prior to such date, provided that such
vacation days are taken or paid in lieu of being taken within one year after
such date. The Company, Amerada Hess and the Purchaser also agree that, upon the
Acceptance Date, a "change in control," "change of control" or "consolidation"
as applicable, shall be deemed to have occurred in respect of certain employment
agreements, change in control agreements and severance agreements and other
employee benefit plans and agreements (collectively, the "Severance Protection
Plans") and each of the Company and Amerada Hess has agreed to administer and
perform its obligations under the Severance Protection Plans as if a "change in
control" or "change of control" has occurred as of the Acceptance Date,
notwithstanding any terms contained therein to the contrary. Pursuant to the
Acquisition Agreement, from and after the date on which the Purchaser becomes
the beneficial owner of securities of the Company representing 90% or more of
the votes entitled to vote in the election of directors of the Company, Amerada
Hess shall, jointly and severally with the Company, (i) be liable to pay and
perform the obligations of the Company under the Severance Protection Plans and
(ii) take such action as may be necessary to promptly pay any severance payments
or other amounts from time to time due thereunder. The Acquisition Agreement
also provides that from and after the Acceptance Date, the Company will, and
Amerada Hess will cause the Company to, maintain the Severance Policy in full
force and effect at least until the first anniversary of the Acceptance Date in
respect of all persons covered by the Severance Policy as of the Offer Closing.
Notwithstanding the foregoing, no current or former employee of the Company or
any of its affiliates has any right to employment or continued employment with
the Company or any affiliate following the Acceptance Date except as provided by
Amerada Hess.
OPTIONS. Pursuant to the Acquisition Agreement, the Company may provide
and, if requested by Amerada Hess, shall provide to the extent permitted by
applicable law and the applicable options and stock plans, that all outstanding
stock options and other rights to purchase Ordinary Shares (the "Options")
previously granted under any stock option or similar plan of the Company (the
"Stock Plans") or otherwise shall vest and be fully exercisable, effective
immediately prior to expiration of the Offer which results in an Acceptance Date
if the Option holder (i) tenders all Options held by such holder for exercise
(conditioned only upon occurrence of the Acceptance Date) and tenders and does
not withdraw all Ordinary Shares issued upon exercise of such Options in the
Offer or (ii) irrevocably surrenders all Options held by such holder to the
Company between the final expiration date (including any Subsequent Offering
Period) if an Acceptance Date occurs with respect to the Offer and the earlier
of the Compulsory Completion Date and the Scheme Effective Time for cancellation
in exchange for a cash option payment as provided in the Acquisition
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Agreement. The Acquisition Agreement also provides that the Company may make
arrangements and, if requested by Amerada Hess, must make arrangements to permit
holders of Options to exercise conditionally their Options and tender all
Ordinary Shares issued upon exercise thereof in the Offer. The Company, Amerada
Hess and the Purchaser have agreed that the Purchaser will accept as validly
tendered pursuant to the Offer all Ordinary Shares which are to be issued
pursuant to the Conditional Option Exercise (as defined below). "Conditional
Option Exercise" means the exercise of all Options that are duly surrendered to
the Company for exercise, conditional only on the occurrence of the Acceptance
Date, and accompanied by appropriate irrevocable instructions that the Ordinary
Shares issuable upon such exercise shall be deemed to be exercised immediately
prior to the expiration of the Offer and properly tendered to the Purchaser
pursuant to the terms of the Offer and not withdrawn. From and after the
Acceptance Date until the earlier of the Compulsory Completion Date and the
Scheme Effective Time, the Company may permit, with Amerada Hess' prior
approval, and, if requested by Amerada Hess, shall permit, each holder of an
outstanding Option, in cancellation and settlement therefor, to receive payments
from the Company in cash equal to the product of (x) the total number of
Ordinary Shares subject to such Option, whether or not then vested or
exercisable, and (y) the amount by which the Ordinary Share Offer Price exceeds
the exercise price per Ordinary Share subject to such Option, to be paid upon
surrender to the Company of the Option and an appropriate surrender and release
agreement. The Exchange Agent shall be entitled to deduct and withhold from the
Cash Consideration otherwise payable such amounts as may be required to be
deducted and withheld with respect to the making of such payment under any law.
Pursuant to the Acquisition Agreement and subject to the rights of holders of
Options, the Board of Directors of the Company (or, if appropriate, any
committee thereof) will use its best efforts to obtain all necessary consents
and releases from all of the holders of all the outstanding Options, and will
use its best efforts, to the extent permitted without resulting in a breach or
violation thereof, to take all actions to (i) terminate, at the earlier of the
Compulsory Completion Date or the Scheme Effective Time, the Stock Plans and
Options and any other plan, program or arrangement providing for the issuance or
grant of any other interest in respect of the share capital of the Company or
any affiliate thereof and (ii) amend, as of the earlier of the Compulsory
Completion Date or the Scheme Effective Time and to the extent therein allowed,
the provisions of any other employee benefit plan providing for the issuance,
transfer or grant of any share capital of the Company or any such affiliate, or
any interest in respect of any share capital of the Company or any such
affiliate, to provide no continuing rights to acquire, hold, transfer or grant
any share capital of the Company or any such affiliate or any interest in the
share capital of the Company or any such affiliate.
AGREEMENT TO USE COMMERCIALLY REASONABLE EFFORTS; FURTHER
ASSURANCES. Pursuant to the Acquisition Agreement and subject to the terms and
conditions thereof, each of the Company, Amerada Hess and the Purchaser will,
and the Company will cause each of its subsidiaries to, cooperate and use their
commercially reasonable efforts to take, or cause to be taken, all appropriate
action, and do, or cause to be done, and assist and cooperate with the other
parties in doing, all things necessary, proper or advisable to consummate and
make effective, in the most expeditious manner practicable, the Offer and the
other transactions contemplated by the Acquisition Agreement, including the
satisfaction of the respective conditions summarized in the second paragraph
under the heading "Scheme of Arrangement" above, and to make, or cause to be
made, all filings necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
the Acquisition Agreement including their commercially reasonable efforts to
obtain all licenses, permits, consents, approvals, authorizations,
qualifications and orders of governmental entities and parties to contracts with
the Company and its subsidiaries as are necessary for consummation of the
transactions contemplated by the Acquisition Agreement and to fulfill the
conditions to the Offer and the Scheme of Arrangement, as the case may be.
HSR ACT. In addition, the Acquisition Agreement provides that the Company,
Amerada Hess and the Purchaser will (i) take promptly all actions necessary to
make the filings required of it or any of its affiliates under any applicable
antitrust laws in connection with the Acquisition Agreement and the transactions
contemplated thereby, including but not limited to filing pursuant to the HSR
Act no later than the tenth day following the date of the Acquisition Agreement
a Notification and Report Form with respect to the transactions contemplated by
the Acquisition Agreement, (ii) comply at the earliest practicable date with any
formal or informal request for additional information or documentary material
received by it or any of its
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affiliates from any antitrust authority and (iii) cooperate with one another in
connection with any filing under applicable antitrust laws and in connection
with resolving any investigation or other inquiry concerning the transactions
contemplated by the Acquisition Agreement initiated by any antitrust authority.
Each party to the Acquisition Agreement has also agreed to use its commercially
reasonable efforts to resolve any objections that may be asserted with respect
to the transactions contemplated by the Acquisition Agreement under any
antitrust law. Finally, each party also agreed promptly to inform the other
parties of any material communication made to, or received by it from, any
antitrust authority or any other governmental entity regarding any of the
transactions contemplated by the Acquisition Agreement.
REPRESENTATIONS AND WARRANTIES. In the Acquisition Agreement, the Company
has made customary representations and warranties to Amerada Hess and the
Purchaser with respect to, among other things, its due organization, good
standing and corporate power, authorization and validity of the Acquisition
Agreement, capitalization, consents and approvals, company reports and financial
statements, absence of material adverse changes, title to properties, compliance
with laws, litigation, employee benefit plans, employment relations and
agreements, taxes, liabilities, intellectual property, proxy statement, broker's
or finder's fee, certain contracts and arrangements, environmental laws and
regulations, takeover statutes, voting requirements, the Rights Agreement,
opinion of financial adviser, insurance, permitted transfer, impact on
conversion rights, prepayments, gas imbalances and non-consent operations.
Amerada Hess and the Purchaser have made customary representations and
warranties to the Company with respect to, among other things, their due
organization, good standing and corporate power, authorization and validity of
the Acquisition Agreement, consents and approvals, offer documents, broker's or
finder's fees, the Purchaser's operations, funds and litigation.
RIGHTS AGREEMENT. The Acquisition Agreement provides that, other than in
connection with the transactions contemplated thereby or concurrently with the
termination of the Acquisition Agreement, the Company shall not (i) redeem the
Rights, (ii) amend (other than to delay the Distribution Date) or to render the
Rights inapplicable to the Offer and the transactions contemplated by the
Transaction Documents or terminate the Rights Agreement prior to the Effective
Time, unless required to do so by a court of competent jurisdiction or (iii)
take any action which would allow any person other than Amerada Hess or the
Purchaser to be the beneficial owner of 15% or more of the Ordinary Shares
without causing a Distribution Date or a Share Acquisition Date.
TERMINATION. The Acquisition Agreement may be terminated at any time prior
to the earlier of the Compulsory Completion Date and the Scheme Effective Time,
whether before or after approval of the Scheme of Arrangement by the Company's
shareholders: (a) by mutual consent of the Company, on the one hand, and of
Amerada Hess and the Purchaser, on the other hand; (b) by either Amerada Hess,
on the one hand, or the Company, on the other hand, if, (i) any court of
competent jurisdiction or any governmental entity shall have issued an order,
decree or ruling or taken any other action permanently restricting, enjoining,
restraining or otherwise prohibiting the acceptance for payment of, or payment
for, Shares pursuant to the Offer, the Scheme of Arrangement or a Compulsory
Acquisition, and such order, decree or ruling or other action shall have become
final and nonappealable, or (ii) the Scheme of Arrangement or a Compulsory
Acquisition has not occurred by June 30, 2002; provided, that this termination
right may not be asserted by any party whose breach of its representations,
warranties or agreements under the Acquisition Agreement, shall have resulted in
the failure of the Compulsory Completion Date or Scheme Effective Date to have
occurred; (c) by the Company at any time prior to the purchase of Shares
pursuant to the Offer, if: (i) (x) there shall be a breach of any representation
or warranty of Amerada Hess or the Purchaser in the Acquisition Agreement that
is qualified as to Material Adverse Effect, (y) there shall be a breach of any
representation or warranty of Amerada Hess or the Purchaser in the Acquisition
Agreement that is not so qualified, other than any such breaches which, in the
aggregate, have not had, do not have, or could not reasonably be expected to
have, a Material Adverse Effect on Amerada Hess, or (z) there shall be a
material breach by Amerada Hess or the Purchaser of any of their respective
covenants or agreements contained in the Acquisition Agreement, which breach, in
the case of clause (x), (y) or (z), either is not reasonably capable of being
cured or, if it is reasonably capable of being cured, has not been cured by the
earlier of 10 days after the giving of notice to Amerada Hess of such breach and
one business day prior to the expiration of the Offer; provided, that the
Company may not terminate the Acquisition Agreement pursuant to this clause if
the
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Company is in material breach of the Acquisition Agreement, or (ii) (x) if the
Offer has not been timely commenced or (y) the Offer has expired without the
Purchaser purchasing any Ordinary Shares pursuant thereto and Amerada Hess or
the Purchaser has not requested the Company pursue a Scheme of Arrangement
within 10 business days of such expiration date, unless such failure or
expiration shall have been caused by the failure of the conditions set forth in
clause (iii)(c) or (d) of the Tender Offer Conditions; (d) by Amerada Hess at
any time prior to the purchase of Ordinary Shares pursuant to the Offer, if, (i)
the Offer is terminated or expires in accordance with its terms without the
Purchaser having purchased any Ordinary Shares pursuant thereto due to an
occurrence that would result in a failure to satisfy any one or more of the
Tender Offer Conditions, unless any such failure was caused by or resulted from
the failure of Amerada Hess or the Purchaser to perform in any material respect
any covenant or agreement of either of them contained in the Acquisition
Agreement or from the material breach by Amerada Hess or the Purchaser of any
representation or warranty of either of them contained in the Acquisition
Agreement, (ii) (x) there shall be a breach of any representation or warranty of
the Company in the Acquisition Agreement that is qualified as to Material
Adverse Effect, (y) there shall be a breach of any representation or warranty of
the Company in the Acquisition Agreement that is not so qualified, other than
any such breaches which, in the aggregate, have not had, do not have or could
not reasonably be expected to have a Material Adverse Effect on the Company, or
(z) there shall be a material breach by the Company of any of its covenants or
agreements contained in the Acquisition Agreement, which breach, in the case of
any of the clauses (x), (y) or (z), either is not reasonably capable of being
cured or, if it is reasonably capable of being cured, has not been cured by the
earlier of 10 days after the giving of written notice to the Company of such
breach and one business day prior to the expiration of the Offer; provided, that
Amerada Hess may not terminate the Acquisition Agreement pursuant to this clause
(d)(ii) if Amerada Hess or the Purchaser is in material breach of the
Acquisition Agreement, (iii) (x) the Company has (A) withdrawn, modified or
amended, in a manner adverse to Amerada Hess or the Purchaser, the approval,
adoption or recommendation, as the case may be, of the Offer, the Scheme of
Arrangement or any transaction contemplated by the Transaction Documents, (B)
approved or recommended, or proposed to approve or recommend, any Acquisition
Proposal or (C) announced a neutral position with respect to any Acquisition
Proposal, and does not reject such Acquisition Proposal within three business
days of the announcement of such neutral position, or (y) the Company's Board of
Directors or any committee thereof shall have resolved to do any of the
foregoing, (iv) if there has been a breach by the Company of any provision
summarized under the heading -- "No Solicitation" hereof, or (v) the purchase
pursuant to the Offer of all Ordinary Shares tendered and not withdrawn (and at
least a number of Ordinary Shares equal to the minimum number of Ordinary Shares
required to be tendered to satisfy the Minimum Condition) has not occurred on or
before the final expiration date of the Offer, unless the purchase of Ordinary
Shares pursuant to the Offer has not occurred because of a material breach of
any representation, warranty, obligation, covenant, agreement or condition set
forth in the Acquisition Agreement on the part of Amerada Hess or the Purchaser;
or (e) by either Amerada Hess or the Company if (i) the Scheme of Arrangement is
not approved by the requisite vote of shareholders of the Company at a meeting
duly called for the purpose of voting on the Scheme of Arrangement, (ii) the
Court declines to sanction the Scheme of Arrangement, or (iii) Amerada Hess and
the Purchaser abandon the Scheme of Arrangement upon written notice to such
effect to the Company.
The Acquisition Agreement provides that, in the event of termination of the
Acquisition Agreement by either Amerada Hess or the Purchaser, on the one hand,
or the Company, on the other hand, pursuant to the provisions described above,
written notice thereof will be given to the other party or parties specifying
the provision of the Acquisition Agreement pursuant to which such termination is
made, and the Acquisition Agreement will become void and have no effect and
there shall be no liability thereunder on the part of the Company, Amerada Hess
or the Purchaser (except for breach of the Acquisition Agreement and the
survival of certain provisions, including, without limitation, confidentiality,
directors' and officers' indemnification and insurance, benefit plans and
employment agreements, fees and expenses, applicable law, specific enforcement,
waiver of jury trial and effect of termination). Nothing in the termination
provisions of the Acquisition Agreement shall relieve any party to the
Acquisition Agreement of liability for breach of the Acquisition Agreement.
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PAYMENT OF CERTAIN FEES AND EXPENSES UPON TERMINATION. Pursuant to the
Acquisition Agreement, except as provided in the next sentence, all costs and
expenses incurred in connection with the Acquisition Agreement and the
consummation of the transactions contemplated thereby shall be paid by the party
incurring such costs and expenses. If the Acquisition Agreement is terminated by
(i) Amerada Hess in accordance with (x) paragraph (d)(i) or (d)(v) under the
heading -- "Termination" hereof, solely due to the Minimum Condition not having
been met at the time of such termination, and an Acquisition Proposal had become
publicly known prior to the date of such termination and, within twelve months
of such termination, the Company enters into an agreement with respect to or
consummates any Acquisition Proposal or (y) paragraph (d)(ii), (d)(iii) or
(d)(iv) under the heading -- "Termination" hereof, or (ii) the Company in
accordance with paragraph (c)(ii)(y) under the heading -- "Termination" hereof,
unless resulting from a material breach by Amerada Hess or the Purchaser of any
covenant or agreement contained in the Acquisition Agreement, and an Acquisition
Proposal had become publicly known prior to the date of such termination, and,
within twelve months of such termination, the Company enters into an agreement
with respect to or consummates any Acquisition Proposal, or (iii) either the
Company or Amerada Hess pursuant to paragraphs (b)(ii) or (e) under the heading
- -- "Termination," unless resulting from a material breach by Amerada Hess or the
Purchaser of any covenant or agreement contained in the Acquisition Agreement,
and an Acquisition Proposal had become publicly known prior to the date of such
termination and, within twelve months of such termination, the Company enters
into an agreement with respect to or consummates any Acquisition Proposal, then
the Company shall (I) reimburse Amerada Hess in immediately available funds for
the out-of-pocket expenses of Amerada Hess and the Purchaser (including, without
limitation, printing fees, filing fees and fees and expenses of its legal and
financial advisors and all fees and expenses payable to any financing sources)
related to the Offer, the Acquisition Agreement, the Principal Shareholders
Agreement, the transactions contemplated thereby and any related financing in
the amount of $10,000,000 and (II) pay to Amerada Hess in immediately available
funds an amount equal to $130,000,000. The payments required to be made in the
preceding sentence shall be paid as follows: (A) in the case of clause (i)(y),
on the day next succeeding the date of such termination or (B) in the case of
clause (i)(x), clause (ii) or clause (iii), 50% of the amount shall be paid on
the date that the Company enters into an agreement with respect to such
Acquisition Proposal and the remaining 50% (or 100% if there is no such
agreement) shall be paid on the date of consummation of such Acquisition
Proposal.
PRINCIPAL SHAREHOLDERS AGREEMENT. THE FOLLOWING IS A SUMMARY OF THE
PRINCIPAL SHAREHOLDERS AGREEMENT. THE SUMMARY IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO THE PRINCIPAL SHAREHOLDERS AGREEMENT, (A COPY OF WHICH HAS BEEN
FILED WITH THE COMMISSION AS AN EXHIBIT TO THE SCHEDULE TO.) THE PRINCIPAL
SHAREHOLDERS AGREEMENT CAN BE INSPECTED AT, AND COPIES MAY BE OBTAINED FROM, THE
SAME PLACES AND IN THE MANNER SET FORTH IN SECTION 7 -- "CERTAIN INFORMATION
CONCERNING THE COMPANY."
In connection with the execution of the Acquisition Agreement, the
Principal Shareholders, who beneficially own, in the aggregate, 1,733,573
Ordinary Shares and 5,058,685 Preferred Shares, have entered into the Principal
Shareholders Agreement with Amerada Hess, the Purchaser and the Company.
TENDER OF SHARES. The Principal Shareholders have agreed (a) in the case
of Ordinary Shares, tender validly (and not to withdraw unless instructed by the
Purchaser), or to cause to be tendered validly (and not withdrawn unless
instructed by the Purchaser) and (b) in the case of Preferred Shares, surrender
duly for conversion, conditional upon the Offer not being terminated, not
expiring, and the Purchaser accepting for payment Ordinary Shares in the Offer
and with appropriate instructions (which instructions shall be revoked only upon
the direction of the Purchaser) that the Ordinary Shares issuable upon such
conversion are to be tendered pursuant to the Offer immediately prior to the
expiration of the initial offering period of the Offer (including any extensions
thereof), in each case pursuant to and in accordance with the terms of the Offer
and Rule 14d-2 under the Exchange Act, not later than the third business day
after commencement of the Offer, all of the Ordinary Shares and Preferred Shares
owned by the Principal Shareholders and their affiliates (the Ordinary Shares
and the Preferred Shares, together with any other shares the beneficial
ownership of which is acquired by such Principal Shareholder or such Principal
Shareholder's affiliates during the period from and including the date of the
Principal Shareholders Agreement through and including the date on which the
Principal Shareholders Agreement is terminated, are collectively referred to as
the "Subject Shares") and, in
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the case of Subject Shares acquired after the date of the Principal Shareholders
Agreement, the next succeeding business day after the acquisition of such
Subject Shares.
The Principal Shareholders have also agreed to cause their Ordinary Shares
to remain validly tendered and not withdrawn and their Preferred Shares to
remain validly surrendered for conversion with appropriate tender instructions
until the earlier of (x) the Offer being terminated or expiring and the
Purchaser not accepting for payment all Ordinary Shares validly tendered in the
Offer and (y) Amerada Hess, in the case of Ordinary Shares, instructing such
Principal Shareholder to withdraw such Principal Shareholder's Ordinary Shares
or, in the case of Preferred Shares, instructing such Principal Shareholder to
revoke such Principal Shareholder's tender and conversion instructions, in which
case such Principal Shareholder shall immediately withdraw all Ordinary Shares
and revoke tender and conversion instructions with respect to the Preferred
Shares. The Principal Shareholders Agreement provides that, in the event that
any Ordinary Shares are for any reason withdrawn from the Offer or the tender
and conversion instructions relating to Preferred Shares are revoked, in either
case other than upon the instruction of the Purchaser, such Ordinary Shares and
Preferred Shares shall remain subject to the terms of the Principal Shareholders
Agreement, so long as the Principal Shareholders Agreement remains effective.
The obligation of the Purchaser to accept for payment and pay for the Ordinary
Shares in the Offer, including the Subject Shares, is subject to certain
conditions; provided, that the only conditions of Amerada Hess and the Purchaser
to purchase Subject Shares pursuant to the Principal Shareholders Agreement are
described in -- "Conditions to Sale" below. Pursuant to the Principal
Shareholders Agreement, the surrender for conversion of Preferred Shares on a
conditional basis shall not constitute a conversion until the conditions
relating thereto are satisfied or waived and the Company has agreed to waive any
and all notice or waiting period requirement with respect to a conversion of
such Preferred Shares.
VOTING OF SHARES. Each Principal Shareholder has agreed, until the
termination of the Principal Shareholders Agreement, to vote (or cause to be
voted) all of its, his or her Subject Shares at any meeting (or any adjournment
or postponement thereof) of the holders of any class or classes of the share
capital of the Company, however called, or in connection with any written
consent of the holders of any class or classes of the share capital of the
Company, (x) in favor of approval of the terms of the Acquisition Agreement and
each of the other transactions contemplated by the Acquisition Agreement and the
Principal Shareholders Agreement and any actions required in furtherance
thereof, (y) against any action, transaction or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company or any of its subsidiaries under the
Acquisition Agreement or of such Principal Shareholder under the Principal
Shareholders Agreement and (z) except as otherwise agreed to in writing in
advance by Amerada Hess, against the following actions (other than the
transactions contemplated by the Acquisition Agreement): (i) any extraordinary
corporate transaction, such as an amalgamation, merger, scheme of arrangement,
consolidation or other business combination involving the Company or any of its
subsidiaries and any Acquisition Proposal; (ii) a sale, lease or transfer of a
significant part of the assets of the Company or any of its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
any of its subsidiaries; and (iii) (A) any change in the persons who constitute
the Board of Directors of the Company; (B) any change in the capitalization of
the Company or any amendment of the Company's Memorandum of Association or the
Company's Articles of Association; (C) any other material change in the
Company's corporate structure or business; or (D) any other action involving the
Company or any of its subsidiaries that is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or adversely affect the
transactions contemplated by the Principal Shareholders Agreement or the
Acquisition Agreement (the foregoing matters are referred to as the "Voting
Matters"). The Principal Shareholders have further agreed not to enter into any
agreement that violates or conflicts with the provisions of the Acquisition
Agreement or the Principal Shareholders Agreement.
GRANT OF PROXY. Each Principal Shareholder has also agreed to revoke all
prior proxies and have appointed Amerada Hess and the Purchaser and any designee
of Amerada Hess and the Purchaser, and each of them individually, with full
power of substitution and resubstitution, the Principal Shareholders' proxy and
attorney-in-fact during the term of the Principal Shareholders Agreement, to
vote all of the Principal Shareholders' Subject Shares on the Voting Matters.
The proxy is coupled with an interest sufficient in law to support an
irrevocable proxy and is irrevocable during the term of the Principal
Shareholders Agreement. The
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power of attorney is durable and survives the dissolution, bankruptcy, death or
incapacity of the Principal Shareholder who granted it.
PURCHASE AND SALE. If the initial offering period (including any extension
thereof) has terminated or expired without the acceptance for purchase of each
Principal Shareholder's Ordinary Shares tendered in the Offer, each Principal
Shareholder has agreed to sell, and Amerada Hess has agreed to cause the
Purchaser, and the Purchaser has agreed to purchase, all of each Principal
Shareholder's Subject Shares. Pursuant to the Principal Shareholders Agreement,
the Purchaser has the right to purchase either the Preferred Shares or to cause
any Principal Shareholder to convert its, his or her Preferred Shares into
Ordinary Shares and purchase the Ordinary Shares so converted. The Principal
Shareholders Agreement provides that the purchase price shall be the greater of
(a) in the case of Ordinary Shares, $45.00 per Ordinary Share net to the
Principal Shareholder in cash and in the case of Preferred Shares, $180.00 per
Preferred Share, plus accumulated and unpaid dividends to the date of purchase,
net to the Principal Shareholder in cash and (b) in the case of Ordinary Shares,
the highest price paid per Ordinary Share in the Offer and, in the case of
Preferred Shares, the as-converted equivalent amount per Preferred Share as such
highest price paid per Ordinary Share in the Offer, plus accumulated and unpaid
dividends through the date of purchase. If the purchase of the Subject Shares
would take place during any Subsequent Offering Period being conducted pursuant
to the Offer, upon the request of Amerada Hess, each Principal Shareholder has
agreed immediately to tender such Principal Shareholder's Ordinary Shares
(including Ordinary Shares issuable upon conversion of Preferred Shares) into
the Offer.
CONDITIONS TO SALE. The Principal Shareholders Agreement provides that the
Purchaser is not required to purchase any Subject Shares if the Subject Shares
shall have been purchased pursuant to the Offer, any applicable waiting period
(and any extension thereof) under the antitrust laws shall not have expired or
been terminated, or if, at any time on or after the date of the Principal
Shareholders Agreement and at or before the time of payment for any Subject
Shares, any of the following shall exist: (a) there shall be threatened,
instituted or pending any action or proceeding by any governmental entity, (i)
challenging or seeking to, or which could reasonably be expected to, make
illegal, impede, delay or otherwise directly or indirectly restrain, prohibit or
make materially more costly the transactions contemplated by the Principal
Shareholders Agreement, (ii) seeking to prohibit or materially limit the
ownership or operation by Amerada Hess or the Purchaser of all or any material
portion of the business or assets of the Company and its subsidiaries taken as a
whole or to compel Amerada Hess or the Purchaser to dispose of or hold
separately all or any material portion of the business or assets of Amerada Hess
and its subsidiaries taken as a whole, or the Company and its subsidiaries taken
as a whole, or seeking to impose any limitation on the ability of Amerada Hess
or the Purchaser to conduct its business or own such assets, (iii) seeking to
impose limitations on the ability of Amerada Hess or the Purchaser effectively
to exercise full rights of ownership of the Subject Shares, including, without
limitation, the right to vote any Subject Shares acquired or owned by the
Purchaser or Amerada Hess on all matters properly presented to the Company's
shareholders (other than voting restrictions under applicable law in effect on
the date of the Principal Shareholders Agreement), (iv) seeking to require
divestiture by Amerada Hess or the Purchaser of any Subject Shares or (v)
otherwise directly or indirectly relating to the transactions contemplated by
the Principal Shareholders Agreement and that could reasonably be expected to
have a Material Adverse Effect on the Company and its subsidiaries taken as a
whole or on Amerada Hess and its subsidiaries taken as a whole; (b) there shall
be any action taken, or any statute, rule, regulation, legislation,
interpretation, judgment, order or injunction proposed, enacted, enforced,
promulgated, amended or issued after the date of the Principal Shareholders
Agreement and applicable to or deemed applicable to (i) Amerada Hess, the
Purchaser, the Company or any subsidiary of the Company or (ii) the transactions
contemplated by the Principal Shareholders Agreement, by any governmental
entity, other than the routine application of the waiting period provisions of
the HSR Act to the transactions contemplated by the Principal Shareholders
Agreement, that could reasonably be expected to result directly or indirectly in
any of the consequences referred to in the preceding paragraph; (c) except for
inaccuracies in any representations or warranties of the Principal Shareholders
that result from actions or inactions required by the Principal Shareholders
Agreement, any representation or warranty of the Principal Shareholders and the
Company contained in the Principal Shareholders Agreement shall not be
materially true and correct as of the closing of the purchase of the Subject
Shares; or (d) any Principal Shareholder or the Company shall have failed to
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perform in any material respect any obligation or to comply in any material
respect with any agreement or covenant under the Principal Shareholders
Agreement.
COVENANTS. The Principal Shareholders have agreed not to (i) sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other agreement with respect to, or consent to, the
sale, transfer, tender, pledge, encumbrance, assignment or other disposition of
their Subject Shares, except in accordance with the Acquisition Agreement and
the Principal Shareholders Agreement, (ii) grant any proxies or powers of
attorney with respect to their Subject Shares, or deposit their Subject Shares
into a voting trust or enter into a voting agreement with respect to their
Subject Shares, deposit any Subject Shares into any voting trust or enter into
any voting agreement with respect to any Subject Shares or (iii) take any action
that would have the effect of preventing or disabling such Principal Shareholder
from performing its obligations under the Principal Shareholders Agreement. The
Principal Shareholders have agreed not to convert or cause their affiliates to
convert any Preferred Shares, conditionally or otherwise, other than as
described under -- "Tender of Shares" or -- "Purchase and Sale" above, and have
agreed to convert their Preferred Shares upon the request of Parent. The
Principal Shareholders have agreed to convert immediately any or all of their
Subject Shares upon the request of Amerada Hess; provided, that all of the
conditions under -- "Conditions to Sale" have been satisfied or waived and
Amerada Hess or the Purchaser purchases such Ordinary Shares within three
business days thereafter.
COVENANT AGAINST SOLICITATION OF OTHER OFFERS. Pursuant to the Principal
Shareholders Agreement each Principal Shareholder has agreed, and has agreed to
use its commercially reasonable efforts to cause its affiliates and each of its
and their respective officers, directors, employees, representatives,
consultants, investment bankers, attorneys, accountants and other agents,
immediately to, cease any discussions or negotiations with any other person or
persons that may be ongoing with respect to any Acquisition Proposal. Each has
also agreed not to take and to use its commercially reasonable efforts to cause
its affiliates and their respective officers, directors, employees,
representatives, consultants, investment bankers, attorneys, accountants or
other agents or affiliates not to take any action (i) to encourage, solicit,
initiate or facilitate, directly or indirectly, the making or submission of any
Acquisition Proposal (including, without limitation, by taking any action that
would make the Rights Agreement inapplicable to an Acquisition Proposal), (ii)
to enter into any agreement, arrangement or understanding with respect to any
Acquisition Proposal, or to agree to approve or endorse any Acquisition Proposal
or enter into any agreement, arrangement or understanding that would require the
Company to abandon, terminate or fail to consummate any transaction contemplated
by the Principal Shareholders Agreement or the Acquisition Agreement, (iii) to
initiate or participate in any way in any discussions or negotiations with, or
furnish or disclose any information to, any person (other than Amerada Hess or
the Purchaser) in connection with any Acquisition Proposal, (iv) to facilitate
or further in any other manner any inquiries or the making or submission of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal or (v) to grant any waiver or release under any standstill,
confidentiality or similar agreement entered into by the Company or any of its
affiliates or representatives. Each Principal Shareholder has agreed to use its
commercially reasonable efforts to enforce, to the fullest extent permitted
under applicable law, the provisions of any standstill, confidentiality or
similar agreement entered into by such Principal Shareholder or any of its
affiliates or representatives including, but not limited to, where necessary
obtaining injunctions to prevent any breaches of such agreements and to enforce
specifically the terms and provisions thereof in any court having jurisdiction.
INVESTOR RIGHTS AGREEMENT. HM4 Triton, L.P. has agreed to take all actions
necessary under the Shareholders Agreement dated as of September 30, 1998 by and
between the Company and HM4 Triton, L.P., as amended on January 20, 1999 and
July 9, 2001 (the "Investor Rights Agreement") to effectuate the consummation of
the transactions contemplated by the Principal Shareholders Agreement and the
Acquisition Agreement and to refrain from taking any action, granting any
consent or otherwise exercising any rights under the Investor Rights Agreement
and to refrain from amending, or agreeing to amend, any provision of the
Investor Rights Agreement without the prior written consent of Amerada Hess. The
Company has also waived any right of first offer, right to purchase Shares,
right to notice or other right it may be provided under the Investor Rights
Agreement that may be triggered as a consequence of the Principal Shareholders
Agreement or the Acquisition Agreement or the consummation of the transactions
contemplated by the Principal
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Shareholders Agreement or the Acquisition Agreement and to refrain from
amending, or agreeing to amend, any provision of the Investor Rights Agreement
without the prior written consent of Amerada Hess.
COMPLIANCE WITH LAW. The Principal Shareholders, Amerada Hess and the
Purchaser have agreed to comply with all applicable laws, including without
limitations, to prepare and promptly (but in no event later than ten business
days following the date of the Principal Shareholders Agreement) file all
necessary applications under HSR Act with respect to the purchase of the Subject
Shares pursuant to the Principal Shareholders Agreement.
REPRESENTATIONS AND WARRANTIES. The Principal Shareholders have made
customary representations and warranties in the Principal Shareholders Agreement
relating to due organization, ownership of shares, no conflicts, no finder's
fees, no encumbrances, reliance by Amerada Hess and the Investor Rights
Agreement. The Company has also made customary representations and warranties
relating to no adjustment to the conversion price of the Preferred Shares and
the Investor Rights Agreement. Amerada Hess and the Purchaser have made
customary representations and warranties relating to due organization, no
conflicts, investment intent, no finder's fees, litigation, ownership of the
Purchaser and reliance by Principal Shareholders.
FIDUCIARY DUTIES. The Principal Shareholders Agreement provides that
nothing therein shall limit or affect any actions taken by any Principal
Shareholder in his or her capacity as an officer or director of the Company.
TERMINATION. The Principal Shareholders Agreement may be terminated by (a)
the mutual written consent of Amerada Hess, the Purchaser and HM4 Triton, L.P.,
(b) any of Amerada Hess, the Purchaser or HM4 Triton, L.P. if the Subject Shares
have not been acquired by the Purchaser on or prior to December 31, 2001 or (c)
by HM4 Triton, L.P. if the Purchaser is in material breach of its obligations
under -- "Purchase and Sale" above; provided, that no party that is in material
breach of the Principal Shareholders Agreement may terminate the Principal
Shareholders Agreement.
NO RECOURSE. The partners, members, officers, directors, shareholders and
affiliates of a Principal Shareholder shall not have any personal liability or
obligation or to any person arising under the Principal Shareholder Agreement in
such capacities. Each Principal Shareholder's liability under the Principal
Shareholders Agreement shall be several and not joint and in all events shall be
limited with respect to each Principal Shareholder to the amount of cash
consideration actually received by such Principal Shareholder in the Offer or
pursuant to the Principal Shareholders Agreement in respect of such Principal
Shareholder's Ordinary Shares and Preferred Shares.
CONFIDENTIALITY AGREEMENT. THE FOLLOWING IS A SUMMARY OF THE
CONFIDENTIALITY AGREEMENT, DATED AS OF JUNE 4, 2001, BETWEEN AMERADA HESS AND
THE COMPANY (THE "CONFIDENTIALITY AGREEMENT"). THE SUMMARY IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO THE CONFIDENTIALITY AGREEMENT, A COPY OF WHICH HAS BEEN
FILED WITH THE COMMISSION AS AN EXHIBIT TO THE SCHEDULE TO. THE CONFIDENTIALITY
AGREEMENT CAN BE INSPECTED AT, AND COPIES MAY BE OBTAINED FROM, THE SAME PLACES
AND IN THE MANNER SET FORTH IN SECTION 7 -- "CERTAIN INFORMATION CONCERNING THE
COMPANY."
Pursuant to the Confidentiality Agreement, Amerada Hess and the Company
have agreed that certain information disclosed by the parties to each other will
be used solely for the purpose of the transactions contemplated by the
Acquisition Agreement, and that such information will be kept strictly
confidential by the recipient and those of its directors, officers, employees,
counsel, affiliates, agents, auditors, accountants or other advisors to whom
disclosure is necessary for the purpose of such an evaluation. Amerada Hess and
the Company have agreed that, for a period of one year from the date of the
Confidentiality Agreement, neither of them will, directly or indirectly, without
the prior written consent of the other: (a) in any manner acquire, agree to
acquire or make any proposal to acquire, directly or indirectly, any securities,
assets or property of the other party, other than purchases of the common shares
of the other party through employee pension plans, savings plans and similar
purchases in the ordinary course of business totaling less than 5% of the issued
and outstanding common shares of the other party and not for the purpose of
attempting to gain control of or influence the management, board of directors or
policies of the other party; (b) propose to enter into, directly
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or indirectly, any merger or other business combination involving the other
party; (c) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are used in the proxy rules of the
Commission) to vote, or seek to advise or influence any person with respect to
the voting of, any voting securities of the other party; (d) form, join or in
any way participate in a "group" (within the meaning of Section 13(d)(3) of the
Exchange Act) with respect to any voting securities of the other party; (e)
otherwise act, alone or in concert with others, to seek to control or influence
the management, board of directors or policies of the other party; (f) disclose
any intention, plan or arrangement inconsistent with the foregoing; or (g)
advise, encourage, provide assistance (including financial assistance) to or
hold discussions with any other persons in connection with any of the foregoing.
Amerada Hess and the Company have agreed that they will not knowingly, as a
result of information or knowledge obtained from the other party pursuant to the
Confidentiality Agreement, solicit, entice or induce any employees of the other
party or its affiliates to become employed by such party or any affiliate, for a
period of two years from the date of the Confidentiality Agreement.
12. DIVIDENDS AND DISTRIBUTIONS. As described above, the Acquisition
Agreement provides that, subject to certain exceptions, the Company shall not,
and shall not permit any of its subsidiaries to, without the prior written
consent of Amerada Hess, (i) declare, set aside or pay any dividends on, or make
any other actual, constructive or deemed distributions in respect of, any of its
capital stock, or otherwise make any payments to shareholders of the Company in
their capacity as such, other than (a) dividends payable to the Company declared
by any of the Company's wholly owned subsidiaries and (b) payments of regularly
scheduled dividends on the Preferred Shares, payment of dividends upon the
redemption of the Preferred Shares and the redemption of the Preferred Shares,
all in accordance with the terms of the Preferred Shares, (ii) split, combine or
reclassify any of its capital stock or issue or authorize the issuance of any
other securities in respect of, in lieu of or in substitution for shares of its
capital stock or (iii) except for the redemption of the Preferred Shares in
accordance with their terms purchase, redeem or otherwise acquire any shares of
capital of the Company or any of its subsidiaries or any other securities
thereof or any rights, warrants or options to acquire any such shares or other
securities.
13. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; EXCHANGE ACT
REGISTRATION.
MARKET FOR ORDINARY SHARES. The purchase of Ordinary Shares pursuant to
the Offer will reduce the number of Ordinary Shares that might otherwise trade
publicly and could adversely affect the liquidity and market value of the
remaining Ordinary Shares held by the public.
STOCK QUOTATION. The Ordinary Shares are listed on the NYSE. Depending on
the number of Ordinary Shares purchased pursuant to the Offer, the Ordinary
Shares may no longer meet the published requirements for continued listing on
the NYSE and may therefore be delisted from the NYSE. According to the NYSE's
published guidelines, the NYSE would consider delisting the Ordinary Shares if,
among other things, (i) the number of Holders (including beneficial holders of
Ordinary Shares held in the names of NYSE member organizations in addition to
holders of record) should fall below 1,200 and the average monthly trading value
of Ordinary Shares for the most recent 12 months should be less than 100,000
Ordinary Shares, (ii) the number of publicly held Ordinary Shares should fall
below 600,000 (exclusive of the holdings of officers, directors or their
immediate families and other concentrated holdings of 10% or more), (iii) the
aggregate market value of publicly held Ordinary Shares should drop below
$8,000,000 (exclusive of the holdings of officers, directors or their immediate
families and other concentrated holdings of 10% or more), (iv) the Ordinary
Shares are no longer registered under the Exchange Act, as described below or
(v) the number of Holders (including beneficial holders of Ordinary Shares held
in the names of NYSE members organizations in addition to holders of record)
should fall below 400.
If the NYSE were to delist the Ordinary Shares, it is possible that the
Ordinary Shares would continue to trade on other securities exchanges or in the
over-the-counter market and that price quotations would be reported by such
exchanges or through the Nasdaq Stock Market, Inc.'s National Market System
("Nasdaq") or other sources. However, the extent of the public market for the
Ordinary Shares and the availability of such quotations would depend upon such
factors as the number of shareholders and/or the aggregate market value of the
Ordinary Shares remaining at such time, the interest in maintaining a market in
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the Ordinary Shares on the part of securities firms, the possible termination of
registration under the Exchange Act (as described below) and other factors.
EXCHANGE ACT REGISTRATION. The Ordinary Shares are currently registered
under the Exchange Act. Such registration under the Exchange Act may be
terminated upon application of the Company to the Commission if the Ordinary
Shares are neither listed on a national securities exchange nor held by 300 or
more holders of record. Termination of registration under the Exchange Act would
substantially reduce the information required to be furnished by the Company to
its shareholders and to the Commission and would make certain provisions of the
Exchange Act no longer applicable to the Company, such as the short-swing profit
recovery provisions of Section 16(b) of the Exchange Act, the requirement of
furnishing a proxy statement pursuant to Section 14(a) of the Exchange Act in
connection with shareholders' meetings, the related requirement of furnishing an
annual report to shareholders and the requirements of Rule 13e-3 under the
Exchange Act with respect to "going private" transactions. Furthermore, the
ability of "affiliates" of the Company and persons holding "restricted
securities" of the Company to dispose of such securities pursuant to Rule 144
promulgated under the Securities Act of 1933, as amended, may be impaired or
eliminated. The Purchaser intends to seek to cause the Company to apply for
termination of registration of the Ordinary Shares under the Exchange Act as
soon after the completion of the Offer as the requirements for such termination
are met.
If registration of the Ordinary Shares is not terminated prior to the
consummation of the Compulsory Acquisition or the Scheme of Arrangement, then
the Ordinary Shares will be delisted from all stock exchanges and the
registration of the Ordinary Shares under the Exchange Act will be terminated
following the consummation of the Compulsory Acquisition or the Scheme of
Arrangement.
MARGIN REGULATIONS. The Ordinary Shares are currently "margin securities,"
as such term is defined under the regulations of the Federal Reserve Board,
which has the effect, among other things, of allowing brokers to extend credit
on the collateral of the Ordinary Shares. Depending upon factors similar to
those described above regarding listing and market quotations, it is possible
that, following the Offer, the Ordinary Shares would no longer constitute
"margin securities" for the purposes of the margin regulations of the Federal
Reserve Board and therefore could no longer be used as collateral for loans made
by brokers. In any event, the Ordinary Shares will cease to be "margin
securities" if registration of the Ordinary Shares under the Exchange Act is
terminated.
14. CONDITIONS OF THE OFFER. Notwithstanding any other provision of the
Offer or the Acquisition Agreement, the Purchaser shall not be required to
accept for payment or, subject to any applicable rules and regulations of the
Commission, including Rule 14e-1(c) under the Exchange Act (relating to the
Purchaser's obligation to pay for or return tendered Ordinary Shares promptly
after termination or withdrawal of the Offer), to pay for any Ordinary Shares
tendered pursuant to the Offer and may terminate or amend the Offer and may
postpone the acceptance of, and payment for, any Ordinary Shares, if (i) the
Minimum Condition shall not have been satisfied, (ii) any applicable waiting
period (and any extension thereof) under the HSR Act shall not have expired or
been terminated or (iii) if, at any time on or after the date of the Acquisition
Agreement and at or before the time of payment for any Ordinary Shares (whether
or not any Ordinary Shares have theretofore been accepted for payment, or paid
for, pursuant to the Offer) any of the following shall exist:
(a) there shall be threatened, instituted or pending any action or
proceeding by any Governmental Entity, (i) challenging or seeking to, or
which could reasonably be expected to, make illegal, impede, delay or
otherwise directly or indirectly restrain, prohibit or make materially more
costly the Offer, the Compulsory Acquisition or the Scheme of Arrangement
or any other transaction contemplated by the Acquisition Agreement or the
Principal Shareholders Agreement (each, a "Transaction"), (ii) seeking to
prohibit or materially limit the ownership or operation by Amerada Hess or
the Purchaser of all or any material portion of the business or assets of
the Company and its subsidiaries taken as a whole or to compel Amerada Hess
or the Purchaser to dispose of or hold separately all or any material
portion of the business or assets of Amerada Hess and its subsidiaries
taken as a whole or the Company and its subsidiaries taken as a whole, or
seeking to impose any limitation on the ability of Amerada Hess or the
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Purchaser to conduct its business or own such assets, (iii) seeking to
impose limitations on the ability of Amerada Hess or the Purchaser
effectively to exercise full rights of ownership of the Shares, including,
without limitation, the right to vote any Shares acquired or owned by the
Purchaser or Amerada Hess on all matters properly presented to the
Company's shareholders, (iv) seeking to require divestiture by Amerada Hess
or the Purchaser of any Shares, (v) seeking any material diminution in the
benefits expected to be derived by Amerada Hess or the Purchaser as a
result of the transactions contemplated by the Acquisition Agreement or the
Principal Shareholders Agreement, or (vi) otherwise directly or indirectly
relating to any Transaction and which could reasonably be expected to have
a Material Adverse Effect on the Company and its subsidiaries taken as a
whole or on Amerada Hess and its subsidiaries as a whole;
(b) there shall be any action taken, or any statute, rule, regulation,
legislation, interpretation, judgment, order or injunction proposed,
enacted, enforced, promulgated, amended or issued after July 9, 2001 and
applicable to or deemed applicable to (i) Amerada Hess, the Purchaser, the
Company or any subsidiary of the Company or (ii) the Offer or the Scheme of
Arrangement or any Transaction, by any Governmental Entity other than the
routine application of the waiting period provisions of the HSR Act to the
Offer, any Transaction or to the Scheme of Arrangement, that could
reasonably be expected to result directly or indirectly in any of the
consequences referred to in paragraph (a) above;
(c) except for inaccuracies in any representations or warranties of
the Company that result from actions or inactions required by the
Acquisition Agreement, (i) any representation or warranty of the Company
contained in the Acquisition Agreement that is qualified as to Material
Adverse Effect shall not be true and correct as though made on or as of
such date (other than representations and warranties which, by their terms,
address matters only as of another specified date, which shall be true and
correct only as of such other specified date), and (ii) any representations
or warranties of the Company contained in the Acquisition Agreement that is
not qualified as to Material Adverse Effect shall not be true and correct
(except where the failure of any such representations or warranties
referred to in this clause (ii) to be so true and correct in the aggregate
has not had, does not have, and could not reasonably be expected to have, a
Material Adverse Effect on the Company), as of the date of consummation of
the Offer as though made on or as of such date (other than representations
and warranties which, by their terms, address matters only as of another
specified date, which shall be true and correct only as of such other
specified date);
(d) the Company shall have failed to perform in any material respect
any obligation or to comply in any material respect with any agreement or
covenant of the Company to be performed or complied with by the Company
under the Acquisition Agreement;
(e) the Board of Directors of the Company or any committee thereof
shall (i) have withdrawn, modified or amended, or proposed to withdraw,
modify or amend, in a manner adverse to Amerada Hess or the Purchaser, the
approval, adoption or recommendation, as the case may be, of the Offer, any
Transaction, the Scheme of Arrangement or the Acquisition Agreement, or
(ii) shall have approved or recommended, or proposed to approve or
recommend, any Acquisition Proposal, or (iii) shall have announced a
neutral position with respect to any Acquisition Proposal and has not
rejected such Acquisition Proposal within three business days of the
announcement of such neutral position, or (iv) shall have resolved to do
any of the foregoing; or
(f) the Acquisition Agreement shall have been terminated in accordance
with its terms;
which, in the sole judgment of the Purchaser, in any such case and regardless of
the circumstances (including any action or inaction by Amerada Hess or the
Purchaser) giving rise to any such condition, makes it inadvisable to proceed
with the Offer and/or with such acceptance for payment of, or payment for,
Ordinary Shares.
"Governmental Entity" shall mean any domestic or foreign court, arbitral
tribunal, administrative agency or commission or other governmental or
regulatory agency or authority or any securities exchange.
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"Material Adverse Effect," with respect to any person, shall mean any
event, change, occurrence, effect, fact, violation or circumstance having a
material adverse effect on (i) the ability of such person to perform its
obligations under the Acquisition Agreement or to consummate the transactions
contemplated thereby on a timely basis or (ii) the business, assets,
liabilities, results of operations or condition (financial or otherwise) of such
person and its subsidiaries, taken as a whole; provided, however, that effects
relating to (x) the economy in general, (y) changes in oil, gas or other
hydrocarbon commodity prices or other changes affecting the oil and gas industry
generally or (z) the announcement of the transactions contemplated by the
Acquisition Agreement shall be deemed to not constitute a "Material Adverse
Effect" or be considered in determining whether a "Material Adverse Effect" has
occurred.
The foregoing conditions are for the sole benefit of Amerada Hess and the
Purchaser and may be asserted by Amerada Hess or the Purchaser, or may be waived
by Amerada Hess or the Purchaser, in whole or in part at any time and from time
to time in their respective sole discretion, except as otherwise provided in the
Acquisition Agreement. The failure by Amerada Hess or the Purchaser at any time
to exercise any of the foregoing rights shall not be deemed a waiver of any such
right and each such right shall be deemed an ongoing right which may be asserted
at any time and from time to time.
15. CERTAIN LEGAL MATTERS; REGULATORY APPROVALS.
GENERAL. Except as otherwise disclosed herein, neither Amerada Hess nor
the Purchaser is aware of (i) any license or regulatory permit that appears to
be material to the business of the Company and its subsidiaries, taken as a
whole, that might be adversely affected by the acquisition of Ordinary Shares by
the Purchaser pursuant to the Offer, the Compulsory Acquisition, the Scheme of
Arrangement or otherwise or (ii) any approval or other action by any
governmental, administrative or regulatory agency or authority, domestic or
foreign, that would be required for the acquisition or ownership of Ordinary
Shares by the Purchaser as contemplated herein. Should any such approval or
other action be required, the Purchaser currently contemplates that it would
seek such approval or action. The Purchaser's obligation under the Offer to
accept for payment and pay for Ordinary Shares is subject to certain conditions.
See Section 14 -- "Conditions of the Offer." While, except as described in this
Offer to Purchase, the Purchaser does not currently intend to delay the
acceptance for payment of Ordinary Shares tendered pursuant to the Offer pending
the outcome of any such matter, there can be no assurance that any such approval
or action, if needed, would be obtained or would be obtained without substantial
conditions or that adverse consequences might not result to the business of the
Company, Amerada Hess or the Purchaser or that certain parts of the businesses
of the Company, Amerada Hess or the Purchaser might not have to be disposed of
in the event that such approvals were not obtained or any other actions were not
taken.
TAKEOVER LAWS. The Company is incorporated under the laws of the Cayman
Islands. For a discussion of the Companies Law provisions applicable to the
Compulsory Acquisition or the Scheme of Arrangement, see Section 11 -- "Purpose
of the Offer; Plans for the Company; Certain Agreements." Based on
representations made by the Company in the Acquisition Agreement, the Purchaser
does not believe that any takeover statutes apply to the Offer, the Compulsory
Acquisition or the Scheme of Arrangement. Neither Amerada Hess nor the Purchaser
has currently complied with any takeover statute or regulation. The Purchaser
reserves the right to challenge the applicability or validity of any law
purportedly applicable to the Offer, the Compulsory Acquisition or the Scheme of
Arrangement and nothing in this Offer to Purchase or any action taken in
connection with the Offer, the Compulsory Acquisition or the Scheme of
Arrangement is intended as a waiver of such right. In the event it is asserted
that one or more takeover laws is applicable to the Offer, the Compulsory
Acquisition or the Scheme of Arrangement, and an appropriate court does not
determine that it is inapplicable or invalid as applied to the Offer, the
Compulsory Acquisition or the Scheme of Arrangement, as applicable, the
Purchaser might be required to file certain information with, or receive
approvals from, the relevant governmental authorities. In addition, if enjoined,
the Purchaser might be unable to accept for payment any Ordinary Shares tendered
pursuant to the Offer, or be delayed in continuing or consummating the Offer and
the Compulsory Acquisition or the Scheme of Arrangement. In such case, the
Purchaser may not be obligated to accept for payment any Ordinary Shares
tendered. See Section 14 -- "Conditions of the Offer."
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APPRAISAL RIGHTS. No appraisal rights are available to Holders in
connection with the Offer. Dissenting Shareholders may have certain rights in
connection with a Compulsory Acquisition. See Section 11 -- "Purpose of the
Offer; Plans for the Company; Certain Agreements."
GOING PRIVATE TRANSACTIONS. Rule 13e-3 under the Exchange Act is
applicable to certain "going private" transactions. The Purchaser does not
believe that Rule 13e-3 will be applicable to the Compulsory Acquisition or the
Scheme of Arrangement, unless, among other things, the Compulsory Acquisition or
the Scheme of Arrangement is completed more than one year after termination of
the Offer. If applicable, Rule 13e-3 would require, among other things, that
certain financial information regarding the Company and certain information
regarding the fairness of the Compulsory Acquisition or the Scheme of
Arrangement and the consideration offered to shareholders of the Company therein
be filed with the Commission and disclosed to shareholders of the Company prior
to consummation of the Compulsory Acquisition or the Scheme of Arrangement.
REGULATORY APPROVALS. Under the HSR Act and the rules that have been
promulgated thereunder by the Federal Trade Commission ("FTC"), certain
acquisitions may not be consummated unless certain information has been
furnished to the Antitrust Division of the Department of Justice (the "Antitrust
Division") and the FTC and certain waiting period requirements have been
satisfied. The acquisition of Ordinary Shares by the Purchaser pursuant to the
Offer is subject to the HSR Act requirements.
Under the provisions of the HSR Act applicable to the purchase of Ordinary
Shares pursuant to the Offer, such purchase may not be made until the expiration
of a fifteen calendar day waiting period following the required filing of a
Notification and Report Form under the HSR Act by Amerada Hess which Amerada
Hess expects to submit on or about July 19, 2001. Accordingly, the waiting
period under the HSR Act would then expire at 11:59 P.M., New York City time, on
or about August 3, 2001, which is the fifteenth calendar day following filing of
the Notification and Report Form by Amerada Hess, unless early termination of
the waiting period is granted or Amerada Hess or the Company receives a request
for additional information or documentary material prior thereto. If either the
FTC or the Antitrust Division were to request additional information or
documentary material from Amerada Hess or the Company prior to the expiration of
the fifteen day waiting period, the waiting period would be extended and would
expire at 11:59 P.M., New York City time, on the tenth calendar day after the
date of substantial compliance by Amerada Hess and the Company with such
request. If the acquisition of Ordinary Shares is delayed pursuant to a request
by the FTC or the Antitrust Division for additional information or documentary
material pursuant to the HSR Act, the purchase of and payment for Ordinary
Shares pursuant to the Offer will be deferred until ten days after the request
is substantially complied with unless the waiting period is terminated sooner by
the FTC or the Antitrust Division (and assuming all of the other Offer
conditions have been satisfied or waived). See Section 2 -- "Acceptance for
Payment and Payment for Ordinary Shares." Only one extension of such waiting
period pursuant to a request for additional information or documentary material
is authorized by the rules promulgated under the HSR Act. However, the closing
of the transaction may be extended or delayed by court order or by agreement of
the parties in order to give the FTC or the Antitrust Division the opportunity
to further evaluate the transaction. Although the Company is required to file
certain information and documentary material with the Antitrust Division and the
FTC in connection with the Offer, neither the Company's failure to make such
filings nor a request to the Company from the Antitrust Division or the FTC for
additional information or documentary material will extend the waiting period.
However, if the Antitrust Division or the FTC raises substantive issues in
connection with a proposed transaction, the parties frequently engage in
negotiations with the relevant governmental agency concerning possible means of
addressing these issues and may agree to delay consummation of the transaction
while such negotiations continue. If any waiting period would expire on a
Saturday, Sunday or legal public holiday, then such period will be extended to
the next day that is not a Saturday, Sunday or legal public holiday.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed acquisition of Ordinary
Shares by the Purchaser pursuant to the Offer. At any time before or after the
Purchaser's purchase of Ordinary Shares, either the Antitrust Division or the
FTC could take such action under the antitrust laws as it deems necessary or
desirable in the public interest,
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including seeking to enjoin the acquisition of Ordinary Shares pursuant to the
Offer or seeking divestiture of Ordinary Shares acquired by the Purchaser or
divestiture of substantial assets of Amerada Hess, the Company or any of their
respective subsidiaries. State attorneys general may also bring legal action
under the antitrust laws, and private parties may bring such action under
certain circumstances. Amerada Hess and the Purchaser believe that the
acquisition of Ordinary Shares by the Purchaser will not violate the antitrust
laws. Nevertheless, there can be no assurance that a challenge to the Offer on
antitrust grounds will not be made or, if a challenge is made, what the result
will be. See Section 14 -- "Conditions of the Offer" for certain conditions to
the Offer, including conditions with respect to litigation and certain
governmental actions.
16. FEES AND EXPENSES. Except as set forth below, neither Amerada Hess
nor the Purchaser will pay any fees or commissions to any broker, dealer or
other person for soliciting tenders of Ordinary Shares pursuant to the Offer.
Amerada Hess and the Purchaser have engaged Goldman, Sachs & Co. as the
Dealer Managers in connection with the Offer and as financial advisors to
Amerada Hess in connection with its proposed acquisition of the Company.
Goldman, Sachs & Co. will receive reasonable and customary compensation for
their services as Dealer Managers and financial advisors, as the case may be,
will be reimbursed for certain reasonable out-of-pocket expenses and will be
indemnified against certain liabilities and expenses in connection therewith,
including certain liabilities under the United States federal securities laws.
Goldman, Sachs & Co. have rendered various investment banking and other advisory
services to Amerada Hess and its affiliates and are expected to render such
services in the future, for which they have received and they will continue to
receive customary compensation from Amerada Hess and its affiliates. In the
ordinary course of business, Goldman, Sachs & Co. and their affiliates may
actively trade or hold the securities of the Company for their own account or
for the account of customers, and, accordingly, may at any time hold a long or
short position in such securities.
The Purchaser and Amerada Hess have also retained The Bank of New York as
the Depositary. The Depositary has not been retained to make solicitations or
recommendations in its role as Depositary. The Depositary will receive
reasonable and customary compensation for its services, will be reimbursed for
certain reasonable out-of-pocket expenses and will be indemnified against
certain liabilities and expenses in connection therewith, including certain
liabilities under the United States federal securities laws.
In addition, the Purchaser and Amerada Hess have retained D.F. King & Co.,
Inc. to act as the Information Agent in connection with the Offer. The
Information Agent will receive reasonable and customary compensation for its
services, will be reimbursed for certain reasonable out-of-pocket expenses and
will be indemnified against certain liabilities and expenses in connection
therewith, including certain liabilities under the United States federal
securities laws.
Brokers, dealers, commercial banks and trust companies will be reimbursed
by the Purchaser for customary mailing and handling expenses incurred by them in
forwarding offering material to their customers.
17. MISCELLANEOUS. The Purchaser is not aware of any jurisdiction where
the making of the Offer is prohibited by any administrative or judicial action
pursuant to any valid state statute. If the Purchaser becomes aware of any valid
state statute prohibiting the making of the Offer or the acceptance of the
Ordinary Shares pursuant thereto, the Purchaser will make a good faith effort to
comply with such state statute or seek to have such statute declared
inapplicable to the Offer. If, after such good faith effort, the Purchaser
cannot comply with any such state statute, the Offer will not be made to (and
tenders will not be accepted from or on behalf of) Holders in such state. In any
jurisdiction where the securities, blue sky or other laws require the Offer to
be made by a licensed broker or dealer, the Offer shall be deemed to be made on
behalf of the Purchaser by the Dealer Managers or one or more registered brokers
or dealers which are licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF AMERADA HESS OR THE PURCHASER NOT CONTAINED IN THIS
OFFER TO PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
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Amerada Hess and the Purchaser have filed with the Commission the Schedule
TO, together with exhibits, pursuant to Section 14(d)(1) of the Exchange Act and
Rule 14d-3 promulgated thereunder, furnishing certain additional information
with respect to the Offer, and may file amendments thereto. The Schedule TO and
any amendments thereto, including exhibits, may be inspected at, and copies may
be obtained from, the same places and in the manner set forth in Section
7 -- "Certain Information Concerning the Company" (except that they will not be
available at the regional offices of the Commission).
AMERADA HESS (CAYMAN) LIMITED
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SCHEDULE I
INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE OFFICERS OF
AMERADA HESS CORPORATION AND AMERADA HESS (CAYMAN) LIMITED
1. DIRECTORS AND EXECUTIVE OFFICERS OF AMERADA HESS CORPORATION. Set
forth below is the name, present principal occupation or employment and material
occupations, positions, offices or employments for the past five years of each
director and each executive officer of Amerada Hess Corporation. The principal
address of Amerada Hess Corporation and, unless indicated below, the current
business address for each individual listed below is 1185 Avenue of the
Americas, New York, New York, Telephone: (212) 997-8500. Each such person is a
citizen of the United States except Mr. Laidlaw, who is a citizen of the United
Kingdom. Directors are identified by an asterisk.
NAME, AGE AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- --------------------- -----------------------------------------------------
John B. Hess*....................... Chairman of the Board and Chief Executive Officer of
(age 47) Amerada Hess Corporation (1995 to present); Director
of Amerada Hess Corporation (1978 to present).
Nicholas F. Brady*.................. Director of Amerada Hess Corporation (1994 to
Darby Overseas Investments, Ltd. present); Chairman of Darby Overseas Investments,
1133 Connecticut Avenue, N.W. Ltd. (1994 to present); Former Secretary of the
Suite 400 United States Department of the Treasury; Former
Washington, DC 20036 Chairman of the Board of Dillon, Read & Co. Inc.;
(age 71) Director of C2, Inc.; Director of H.J. Heinz Company;
Director or Trustee of various Templeton mutual
funds.
J. Barclay Collins II*.............. Executive Vice President and General Counsel of
(age 56) Amerada Hess Corporation (1990 to present); Director
of Amerada Hess Corporation (1986 to present);
Director of Dime Bancorp, Inc.
Peter S. Hadley*.................... Director of Amerada Hess Corporation (1991 to
(age 73) present); Former Senior Vice President of
Metropolitan Life Insurance Company.
Edith E. Holiday*................... Director of Amerada Hess Corporation (1993 to
3239 38th Street, N.W. present); Attorney; Former Assistant to the President
Washington, D.C. 20016 of the United States and Secretary of the Cabinet;
(age 49) Former General Counsel, United States Department of
the Treasury; Director of Beverly Enterprises, Inc.;
Director of Canadian National Railway; Director of
Hercules, Incorporated; Director of H.J. Heinz
Company; Director of RTI International Metals, Inc.;
Director or trustee of various Franklin Templeton
mutual funds.
William R. Johnson*................. Director of Amerada Hess Corporation (1996 to
H.J. Heinz Company present); Chairman (2000 to present) and President
World Headquarters and Chief Executive Officer (1998 to present) of H.J.
USX Tower Heinz Company, after serving in various senior
P.O. Box 57 executive positions (1992 to 1998); Director of PNC
Pittsburgh, PA 15230-0057 Bank; Director of The Clorox Company.
(age 52)
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NAME, AGE AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- --------------------- -----------------------------------------------------
Thomas H. Kean*..................... Director of Amerada Hess Corporation (1990 to
Drew University present); President, Drew University; Former Governor
President's House of the State of New Jersey; Director of ARAMARK
36 Madison Avenue Corporation; Director of the CIT Group, Inc.;
Mean Hall Director of United HealthGroup Incorporated; Director
Madison, NJ 07940-4005 of Fiduciary Trust Company International; Director of
(age 66) The Pepsi Bottling Group.
W.S.H. Laidlaw*..................... President, Chief Operating Officer of Amerada Hess
(age 45) Corporation (1995 to present); Director of Amerada
Hess Corporation (1994 to present); Director of
Premier Oil plc.
Frank A. Olson*..................... Director of Amerada Hess Corporation (1998 to
The Hertz Corporation present); Chairman, and Chief Executive Officer
One Maynard Drive (since at least 1996 to 1999), of The Hertz
Suite 100 Corporation; Director of Becton Dickinson and
Park Ridge, NJ 07656 Company; Director of White Mountains Insurance Group
(age 68) Ltd.
Roger B. Oresman.................... Director of Amerada Hess Corporation (1969 to
Milbank, Tweed, Hadley & McCloy LLP present); Consulting Partner of Milbank, Tweed,
One Chase Manhattan Plaza Hadley & McCloy LLP.
New York, NY 10005
(age 80)
John Y. Schreyer*................... Executive Vice President and Chief Financial Officer
(age 62) of Amerada Hess Corporation; Director of Amerada Hess
Corporation (1990 to present).
William I. Spencer*................. Director of Amerada Hess Corporation (1982 to
(age 83) present); Former President and Chief Administrative
Officer of Citicorp and Citibank, N.A.
Robert N. Wilson*................... Director of Amerada Hess Corporation (1996 to
Johnson & Johnson present); Vice Chairman of the Board of Directors of
One Johnson & Johnson Plaza Johnson & Johnson (1996 to present); Director of
New Brunswick, NJ 08933 United States Trust Corporation.
(age 60)
Robert F. Wright*................... Director of Amerada Hess Corporation (1981 to
29 Stoney Brook Rd. present); Former President and Chief Operating
Holmdel, NJ 07733 Officer of Amerada Hess Corporation.
(age 76)
Alan A. Bernstein................... Senior Vice President of Amerada Hess Corporation
(age 57) (1987 to present).
F. Lamar Clark...................... Senior Vice President of Amerada Hess Corporation
One Hess Plaza (1990 to present).
Woodbridge, NJ 07095
(age 68)
John A. Gartman..................... Senior Vice President of Amerada Hess Corporation
(age 53) (1997 to present); Vice President of Public Service
Electric and Gas Company in the area of energy
marketing (1996 to 1997).
Neal Gelfand........................ Senior Vice President of Human Resources of Amerada
(age 56) Hess Corporation (1980 to present).
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NAME, AGE AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- --------------------- -----------------------------------------------------
Gerald A. Jamin..................... Senior Vice President and Treasurer of Amerada Hess
(age 59) Corporation (1996 to present).
Lawrence H. Ornstein................ Senior Vice President of Amerada Hess Corporation
(age 50) (1995 to present).
Robert P. Strode.................... Senior Vice President of Amerada Hess Corporation
One Allen Center (May 2000 to present); Senior Vice President in the
500 Dallas Street area of exploration at Vastar Resources, Inc. (1997
Houston, TX 77002 to 2000); held executive positions with Atlantic
(age 44) Richfield Company and affiliates (1993 to 1997); Vice
President of ARCO British Limited, ARCO Pipe Line Co.
and ARCO Alaska, Inc. (1979 to 1997).
F. Borden Walker.................... Senior Vice President of Refining & Marketing of
One Hess Plaza Amerada Hess Corporation (August 1996 to present);
Woodbridge, NJ 07095 prior to 1996, General Manager in the areas of
(age 47) gasoline marketing, convenience store development and
advertising at Mobil Corporation.
2. DIRECTORS AND EXECUTIVE OFFICERS OF AMERADA HESS (CAYMAN) LIMITED. Set
forth below is the name, present principal occupation or employment and material
occupations, positions, offices or employments for the past five years of each
director and executive officer of Amerada Hess (Cayman) Limited. Each person
identified below has held his position since the formation of Amerada Hess
(Cayman) Limited on July 4, 2001. The principal address of Amerada Hess (Cayman)
Limited and, unless indicated below, the current business address for each
individual listed below is 1185 Avenue of the Americas, New York, New York
10036, Telephone: (212) 997-8500. Each such person is a citizen of the United
States. Directors are identified by an asterisk.
NAME, AGE AND CURRENT PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- --------------------- --------------------------------------------------
John B. Hess*....................... Director of Amerada Hess (Cayman) Limited; Chairman
(age 47) of the Board and Chief Executive Officer of Amerada
Hess Corporation (1995 to present); Director of
Amerada Hess Corporation (1978 to present).
J. Barclay Collins II*.............. Director, Secretary and General Counsel of Amerada
(age 56) Hess (Cayman) Limited; Executive Vice President and
General Counsel of Amerada Hess Corporation (1990 to
present); Director of Amerada Hess Corporation (1986
to present); Director of Dime Bancorp, Inc.
John Y. Schreyer*................... Director of Amerada Hess (Cayman) Limited; Executive
(age 62) Vice President and Chief Financial Officer of Amerada
Hess Corporation; Director of Amerada Hess
Corporation (1990 to present).
3. OWNERSHIP OF ORDINARY SHARES BY DIRECTORS AND EXECUTIVE OFFICERS. To
the best knowledge of Amerada Hess Corporation and Amerada Hess (Cayman)
Limited, none of the persons listed on this Schedule I nor any associate or
majority-owned subsidiary of any such person beneficially owns or has a right to
acquire directly or indirectly any Ordinary Shares, and none of the persons
listed on this Schedule I has effected any transactions in the Ordinary Shares
during the past 60 days.
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SCHEDULE II
CAYMAN ISLANDS COMPANIES LAW (2001 SECOND REVISION)
EXTRACT OF RELEVANT PROVISIONS APPLICABLE TO THE SCHEME OF ARRANGEMENT
SECTION 86.
(1) Where a compromise or arrangement is proposed between a company and its
creditors or any class of them, or between the company and its members or any
class of them, the Court may, on the application of the company or of any
creditor or member of the company, or where a company is being wound up, of the
liquidator, order a meeting of the creditors or class of creditors, or of the
members of the company or class of members, as the case may be, to be summoned
in such manner as the Court directs.
(2) If a majority in number representing seventy-five per cent in value of
the creditors or class of creditors, or members or class of members, as the case
may be, present and voting either in person or by proxy at the meeting, agree to
any compromise or arrangement, the compromise or arrangement shall, if
sanctioned by the Court, be binding on all the creditors or the class of
creditors, or on the members or class of members, as the case may be, and also
on the company or, where a company is in the course of being wound up, on the
liquidator and contributories of the company.
(3) An order made under subsection (2) shall have no effect until a copy of
the order has been delivered to the Registrar for registration, and a copy of
every such order shall be annexed to every copy of the memorandum of association
of the company issued after the order has been made, or, in the case of a
company not having a memorandum, of every copy so issued of the instrument
constituting or defining the constitution of the company.
(4) If a company makes default in complying with subsection (3), the
company and every officer of the company who is in default shall be liable to a
fine of two dollars for each copy in respect of which default is made.
(5) In this section the expression "company" means any company liable to be
wound up under this Law and the expression "arrangement" includes a
reorganisation of the share capital of the company by the consolidation of
shares of different classes or by the division of shares into shares of
different classes or by both those methods.
SECTION 87.
(1) Where an application is made to the Court under section 86 for the
sanctioning of a compromise or arrangement proposed between a company and any
such persons as are specified in that section, and it is shown to the Court that
the compromise or arrangement has been proposed for the purpose of or in
connection with a scheme for the reconstruction of any company or companies or
the amalgamation of any two or more companies, and that under the scheme the
whole or any part of the undertaking or the property of any company concerned in
the scheme (in this section referred to as "a transferor company") is to be
transferred to another company (in this section referred to as "the transferee
company") the Court, may either by the order sanctioning the compromise or
arrangement or by any subsequent order make provision for --
(a) the transfer to the transferee company of the whole or any part of
the undertaking and of the property or liabilities of any transferor
company;
(b) the allotting or appropriation by the transferee company of any
shares, debentures, policies, or other like interests in that company which
under the compromise or arrangement are to be allotted or appropriated by
that company to or for any person;
(c) the continuation by or against the transferee company of any legal
proceedings pending by or against any transferor company;
(d) the dissolution, without winding up, of any transferor company;
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(e) the provisions to be made for any person who within such time and
in such manner as the Court directs dissent from the compromise or
arrangement; and
(f) such incidental, consequential and supplemental matters as are
necessary to secure that the reconstruction or amalgamation is fully and
effectively carried out.
(2) Where an order under this section provides for the transfer of property
or liabilities, that property shall, by virtue of the order, be transferred to
and vest in, and those liabilities shall, by virtue of the order, be transferred
to and become the liabilities of, the transferee company, and any such property
shall, if the order so directs, be freed from any charge which is, by virtue of
the compromise or arrangement, to cease to have effect.
(3) Where an order is made under this section, every company in relation to
which the order is made shall cause a copy thereof to be delivered to the
Registrar for registration within seven days after the making of the order, and
if default is made in complying with this subsection, the company and every
officer of the company who is in default shall be liable to a default fine.
(4) In this section --
"property" includes property, rights and powers of every description;
"liabilities" includes duties; and
"transferee company" means any company or body corporate established in
the Islands or in any other jurisdiction.
EXTRACT OF RELEVANT PROVISIONS APPLICABLE TO THE COMPULSORY ACQUISITION
SECTION 88.
(1) Where a scheme or contract involving the transfer of shares or any
class of shares in a company (in this section referred to as "the transferor
company") to another company, whether a company within the meaning of this Law
or not (in this section referred to as "the transferee company") has, within
four months after the making of the offer in that behalf by the transferee
company, been approved by the holders of not less than ninety per cent in value
of the shares affected, the transferee company may, at any time within two
months after the expiration of the said four months, give notice in the
prescribed manner to any dissenting shareholder that it desires to acquire his
shares, and where such notice is given the transferee company shall, unless on
an application made by the dissenting shareholder within one month from the date
on which the notice was given, the Court thinks fit to order otherwise, be
entitled and bound to acquire those shares on the terms on which under the
scheme or contract the shares of the approving shareholders are to be
transferred to the transferee company.
(2) Where a notice has been given by the transferee company under this
section and the Court has not, on an application made by the dissenting
shareholder, ordered to the contrary, the transferee company shall, on the
expiration of one month from the date on which the notice has been given or, if
an application to the Court by the dissenting shareholder is then pending, after
that application has been disposed of, transmit a copy of the notice to the
transferor company and pay or transfer to the transferor company the amount or
other consideration representing the price payable by the transferee company for
the shares which by virtue of this section that company is entitled to acquire,
and the transferor company shall thereupon register the transferee company as
the holder of those shares.
(3) Any sums received by the transferor company under this section shall be
paid into a separate bank account, and any such sums and any other consideration
so received shall be held by that company on trust for the several persons
entitled to the shares in respect of which the said sum or other consideration
were respectively received.
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(4) In this section --
"dissenting shareholder" includes a shareholder who has not assented to
the scheme or contract and any shareholder who has failed or refused to
transfer his shares to the transferee company, in accordance with the
scheme or contract.
SPECIMEN NOTICE TO DISSENTING SHAREHOLDERS
(pursuant to section 88 (1) of the Companies Law (2001 Second Revision))
In the matter of Triton Energy Limited (hereinafter called "the transferor
company")
Notice by Amerada Hess (Cayman) Limited (hereinafter called "the transferee
company")
To..................................(name and address of dissenting shareholder)
WHEREAS on the .... day of .......... , 2001, the transferee company made
an offer to all the holders of the Ordinary Shares in the transferor company on
the terms and subject to the conditions set forth in an Offer to Purchase for
Cash dated 17 July, 2001 (as amended and/or extended pursuant to the provisions
thereof) at $45.00 NET PER ORDINARY SHARE AND WHEREAS up to the .... day of
.......... 2001, being a date within four months after the making thereof, such
offer was approved by the holders of not less than ninety per cent in value of
the said Ordinary Shares.
NOW THEREFORE the transferee company in pursuance of section 88(1) of the
Companies Law (2001 Second Revision), hereby give you notice that it desires to
acquire the Ordinary Shares held by you in the transferor company AND further
take notice that, unless on an application made by you within one month from the
date on which this notice is given, the Court thinks fit to order otherwise, the
transferee company will be entitled and bound to acquire the Ordinary Shares
held by you in the transferor company on the terms on which under the scheme or
contract the shares of the approving shareholders are to be transferred to the
transferee company.
Signed by
- --------------------------------------
Director
For and on behalf of
Amerada Hess (Cayman) Limited
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Copies of the Letter of Transmittal, properly completed and duly signed,
will be accepted. The Letter of Transmittal, certificates and any other required
documents should be sent by each Holder or such Holder's broker, dealer,
commercial bank, trust company or other nominee to the Depositary at one of the
addresses set forth below:
The Depositary for the Offer is:
THE BANK OF NEW YORK
By Mail: By Facsimile: By Hand/Overnight Courier:
Tender & Exchange Department (for Eligible Institutions Tender & Exchange Department
P.O. Box 11248 only) 101 Barclay Street
Church Street Station (212) 815-6213 Receive and Deliver Window
New York, New York 10286-1248 For Confirmation Only New York, New York 10286
Telephone:
(212) 815-6156
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Managers at their respective addresses and telephone numbers
as set forth below. Additional copies of this Offer to Purchase, the Letter of
Transmittal, or other related tender offer materials may be obtained from the
Information Agent or from brokers, dealers, commercial banks or trust companies.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokerage Firms, Please Call: (212) 269-5550
All others, Please Call: (800) 758-5880
The Dealer Managers for the Offer are:
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Call Collect: (212) 902-1000
Toll Free: (800) 323-5678
1
LETTER OF TRANSMITTAL
TO TENDER
ALL OF THE UNCONDITIONALLY ALLOTTED OR ISSUED AND FULLY PAID ORDINARY SHARES
(INCLUDING THE ASSOCIATED SERIES A JUNIOR PARTICIPATING PREFERRED
SHARE PURCHASE RIGHTS)
OF
TRITON ENERGY LIMITED
PURSUANT TO THE OFFER TO PURCHASE
DATED JULY 17, 2001
BY
AMERADA HESS (CAYMAN) LIMITED
A WHOLLY OWNED SUBSIDIARY OF
AMERADA HESS CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, AUGUST 13, 2001, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
THE BANK OF NEW YORK
By Mail: By Facsimile: By Hand or Overnight Courier:
THE BANK OF NEW YORK (for Eligible Institutions only) THE BANK OF NEW YORK
Tender & Exchange Department (212) 815-6213 Tender & Exchange Department
P.O. Box 11248 101 Barclay Street
Church Street Station For Confirmation Only Receive and Deliver Window
Receive and Deliver Window Telephone: New York, New York 10286
New York, New York 10286-1248
(212) 815-6156
- -----------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF ORDINARY SHARES BEING TENDERED
- -----------------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) APPEAR(S)
ON THE CERTIFICATE(S))
ORDINARY SHARES TENDERED
(ATTACH ADDITIONAL LIST IF NECESSARY)
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL NUMBER
OF ORDINARY SHARES NUMBER OF
CERTIFICATE EVIDENCED BY ORDINARY SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
TOTAL ORDINARY SHARES TENDERED
- -----------------------------------------------------------------------------------------------------------------------------------
* Need not be completed by Book-Entry Holders.
** Unless otherwise indicated, it will be assumed that all Ordinary Shares evidenced by any Certificate(s) delivered to the
Depositary are being tendered. See Instruction 4.
- -----------------------------------------------------------------------------------------------------------------------------------
2
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE COPY NUMBER OTHER
THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by holders of certificates
representing Ordinary Shares (as such term is defined in the Offer to Purchase)
(such holders of Ordinary Shares, collectively, the "Holders"), either if
certificates for Ordinary Shares are to be forwarded herewith or, unless an
Agent's Message (as defined in the Offer to Purchase) is utilized, if tenders of
Ordinary Shares are to be made by book-entry transfer into the account of The
Bank of New York, as Depositary (the "Depositary"), at The Depository Trust
Company (the "Book-Entry Transfer Facility" or "DTC") pursuant to the procedures
set forth in Section 3 -- "Procedures for Tendering Ordinary Shares" of the
Offer to Purchase. Holders who tender Ordinary Shares by book-entry transfer are
referred to herein as "Book-Entry Holders" and other Holders are referred to
herein as "Certificate Holders."
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
[ ] CHECK HERE IF ORDINARY SHARES ARE BEING TENDERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE
BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name(s) of Tendering Institution
----------------------------------------------------------------------------
DTC Account Number
-------------------------------- Transaction Code Number
--------------------------------
Any Holders who desire to tender Ordinary Shares and whose certificate(s)
evidencing such Ordinary Shares (the "Certificates") are not immediately
available, or who cannot comply with the procedures for book-entry transfer
described in the Offer to Purchase on a timely basis, may nevertheless tender
such Ordinary Shares by following the procedures for guaranteed delivery set
forth in Section 3 -- "Procedures for Tendering Ordinary Shares" of the Offer to
Purchase. See Instruction 2 of this Letter of Transmittal.
[ ] CHECK HERE IF ORDINARY SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Holder(s)
----------------------------------------------------------------------------
Window Ticket Number (if any)
----------------------------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
--------------------------------------------------------------------
Name of Institution which Guaranteed Delivery
-------------------------------------------------------------------------
Account Number (if delivered by Book-Entry Transfer)
----------------------------------------------------------------
Transaction Code Number
----------------------------------------------------------------------------
[ ] CHECK HERE IF TENDER IS BEING MADE IN RESPECT OF LOST, MUTILATED OR
DESTROYED CERTIFICATES. SEE INSTRUCTION 9.
2
3
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE
READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Amerada Hess (Cayman) Limited (the
"Purchaser"), a company limited by shares organized under the laws of the Cayman
Islands and a wholly owned subsidiary of Amerada Hess Corporation ("Amerada
Hess"), a Delaware corporation, the above-described Ordinary Shares, par value
$0.01 per share, including the associated Series A junior participating
preferred share purchase rights, of Triton Energy Limited (the "Company"), a
company limited by shares organized under the laws of the Cayman Islands, on the
terms and subject to the conditions set forth in the Offer to Purchase, dated
July 17, 2001 (the "Offer to Purchase"), receipt of which is hereby
acknowledged, and in this Letter of Transmittal (which, as they may be amended
and supplemented from time to time, together constitute the "Offer"). The
undersigned understands that the Purchaser reserves the right to assign to
Amerada Hess, or to any other direct or indirect wholly owned subsidiary of
Amerada Hess, the right to purchase all or any portion of the Ordinary Shares
tendered pursuant to the Offer, but the undersigned further understands that any
such assignment will not relieve the Purchaser of its obligations under the
Offer and the Acquisition Agreement (as defined below) and that any such
assignment will in no way prejudice the rights of tendering Holders to receive
payment for the Ordinary Shares validly tendered and accepted for payment
pursuant to the Offer. This Offer is being made pursuant to the Acquisition
Agreement, dated as of July 9, 2001 (as amended from time to time, the
"Acquisition Agreement"), by and among Amerada Hess, the Purchaser and the
Company.
Subject to, and effective upon, acceptance for payment of, and payment for,
the Ordinary Shares tendered herewith in accordance with the terms of the Offer
(including, if the Offer is extended or amended, the terms and conditions of
such extension or amendment), the undersigned hereby sells, assigns and
transfers to, or upon the order of, the Purchaser, all right, title and interest
in and to all of the Ordinary Shares that are being tendered hereby and any and
all dividends, distributions, rights, or other securities issued or issuable in
respect of such Ordinary Shares on or after July 17, 2001 (collectively,
"Distributions"), and irrevocably appoints the Depositary the true and lawful
agent and attorney-in-fact of the undersigned with respect to such Ordinary
Shares and all Distributions with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest) to
(a) deliver Certificates and all Distributions, or transfer ownership of such
Ordinary Shares and all Distributions, on the account books maintained by the
Book-Entry Transfer Facility, together in either such case with all accompanying
evidence of transfers and authenticity to, or upon the order of, the Purchaser,
(b) present such Ordinary Shares and all Distributions for transfer on the books
of the Company and (c) receive all benefits and otherwise exercise all rights of
beneficial ownership of such Ordinary Shares and all Distributions, all in
accordance with the terms and subject to the conditions of the Offer as set
forth in the Offer to Purchase.
The undersigned hereby irrevocably appoints each designee of the Purchaser
as such attorney-in-fact and proxy of the undersigned, with full power of
substitution, to vote the Ordinary Shares as described below in such manner as
each such attorney-in-fact and proxy (or any substitute thereof) shall deem
proper in its sole discretion, and to otherwise act (including pursuant to
written consent) to the full extent of the undersigned's rights with respect to
the Ordinary Shares and all Distributions tendered hereby and accepted for
payment and paid by the Purchaser prior to the time of such vote or action. All
such proxies and powers of attorney shall be considered coupled with an interest
in the tendered Ordinary Shares and shall be irrevocable and are granted in
consideration of, and are effective upon, the acceptance for payment and
delivery of such Ordinary Shares and all Distributions in accordance with the
terms of the Offer. Such acceptance for payment by the Purchaser shall revoke,
without further action, any other proxy or power of attorney granted by the
undersigned at any time with respect to such Ordinary Shares and all
Distributions and no subsequent proxies or powers of attorney will be given or
written consent executed (or, if given or executed, will not be deemed
effective) with respect thereto by the undersigned. The designees of the
Purchaser will, with respect to the Ordinary Shares for which the appointment is
effective, be empowered to exercise all voting and other rights as they in their
sole discretion may deem proper at any annual, special, adjourned or postponed
meeting of the Company's shareholders, by written consent or otherwise, and the
Purchaser reserves the right to require that, in order for Ordinary Shares or
any Distributions to be deemed validly tendered, immediately upon the
Purchaser's acceptance for payment and delivery of such Ordinary Shares, the
Purchaser must be able to exercise all rights (including, without limitation,
all voting rights and rights of conversion) with respect to such Ordinary Shares
and receive all Distributions.
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4
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Ordinary
Shares and all Distributions tendered hereby and that, when the same are
accepted for payment by the Purchaser, the Purchaser will acquire good,
marketable and unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances, and the same will not be subject to any
adverse claim. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Depositary or the Purchaser to be necessary
or desirable to complete the sale, assignment, and transfer of the Ordinary
Shares and all Distributions tendered hereby. In addition, the undersigned shall
promptly remit and transfer to the Depositary for the account of the Purchaser
any and all Distributions in respect of the Ordinary Shares tendered hereby,
accompanied by appropriate documentation of transfer and, pending such
remittance or appropriate assurance thereof, the Purchaser shall be, subject to
applicable law, entitled to all rights and privileges as owner of any such
Distributions and may withhold the entire purchase price or deduct from the
purchase price the amount or value thereof, as determined by the Purchaser in
its sole discretion.
No authority herein conferred or agreed to be conferred shall be affected
by, and all such authority shall survive, the death or incapacity of the
undersigned. All obligations of the undersigned hereunder shall be binding upon
the heirs, executors, administrators, legal representatives, successors and
assigns of the undersigned. Subject to the withdrawal rights set forth in
Section 4 -- "Withdrawal Rights" of the Offer to Purchase, the tender of the
Ordinary Shares and related Distributions hereby made is irrevocable.
The undersigned understands that tenders of the Ordinary Shares pursuant to
any of the procedures described in Section 3 -- "Procedures for Tendering
Ordinary Shares" of the Offer to Purchase and in the instructions hereto will
constitute a binding agreement between the undersigned and the Purchaser on the
terms and subject to the conditions set forth in the Offer. Without limiting the
generality of the foregoing, if the price to be paid in the Offer is amended in
accordance with the terms of the Acquisition Agreement, the price to be paid to
the undersigned will be amended. The undersigned recognizes that under certain
circumstances set forth in the Offer to Purchase, the Purchaser may not be
required to accept for payment any of the Ordinary Shares tendered hereby.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any Certificates not
tendered or not accepted for payment in the name(s) of the registered holder(s)
appearing under "Description of Ordinary Shares Being Tendered." Similarly,
unless otherwise indicated under "Special Delivery Instructions," please mail
the check for the purchase price and/or return any Certificates not tendered or
not accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing above under "Description of
Ordinary Shares Being Tendered." In the event that both the "Special Delivery
Instructions" and the "Special Payment Instructions" are completed, please issue
the check for the purchase price and/or return any Certificates not so tendered
or not accepted for payment in the name(s) of, and deliver said check and/or
return such Certificates to, the person or persons so indicated. Unless
otherwise indicated under "Special Payment Instructions," please credit any
Ordinary Shares tendered herewith by book-entry transfer that are not accepted
for payment by crediting the account at the Book-Entry Transfer Facility. The
undersigned recognizes that the Purchaser has no obligation, pursuant to the
"Special Payment Instructions," to transfer any Ordinary Shares from the name(s)
of the registered holder(s) thereof if the Purchaser does not accept for payment
any of the Ordinary Shares so tendered. The undersigned agrees that tendering
the Ordinary Shares pursuant to any of the procedures discussed in Section 3 --
"Procedures for Tendering Ordinary Shares" of the Offer to Purchase and in the
instructions hereto will constitute approval of the Offer by the undersigned in
accordance with and for the purposes of Section 88 of the Companies Law (2001
Second Revision) of the Cayman Islands.
4
5
- ------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Certificate(s) that are not tendered or that
are not purchased and/or the check for the purchase price of Ordinary
Shares purchased are to be issued in the name of someone other than the
undersigned or if Ordinary Shares tendered by book-entry transfer which
are not accepted for payment are to be returned by credit to an account
maintained at the Book-Entry Transfer Facility other than that designated
above.
Issue check and Certificate(s) to:
Name:
----------------------------------------------------
(PLEASE TYPE OR PRINT)
Address:
--------------------------------------------------
------------------------------------------------------------
(INCLUDE ZIP CODE)
------------------------------------------------------------ *
(TAX IDENTIFICATION OR SOCIAL SECURITY NO.)
(SEE SUBSTITUTE FORM W-9 INCLUDED HEREWITH)
---------------------
* Signature Guarantee required
------------------------------------------------------------
- ------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Certificate(s) that are not tendered or that
are not purchased and/or the check for the purchase price of Ordinary
Shares purchased are to be sent to someone other than the undersigned, or
to the undersigned at an address other than that shown under "Description
of the Ordinary Shares Being Tendered."
Mail check and Certificate(s) to:
Name:
----------------------------------------------------
(PLEASE TYPE OR PRINT)
Address:
--------------------------------------------------
------------------------------------------------------------
(INCLUDE ZIP CODE)
------------------------------------------------------------
5
6
IMPORTANT
HOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 1 AND 5)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 CONTAINED HEREIN)
Signature(s) of Holders(s):
- --------------------------------------------------------------------------------
Date:
- --------------------------- , 2001
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificate(s) or on a security position listing or by person(s) authorized to
become registered holder(s) by Certificate(s) and documents transmitted with
this Letter of Transmittal. If signature is by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or other
person acting in a fiduciary or representative capacity, please provide the
following information and see Instruction 5.)
Name(s):
- --------------------------------------------------------------------------------
(PLEASE TYPE OR PRINT)
Capacity (Full Title):
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
- ---------------------------------------------------------
- ---------------------------------------------------------
(DAYTIME AREA CODE AND TELEPHONE NO.) (TAX IDENTIFICATION OR SOCIAL
SECURITY NO.)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature:
- --------------------------------------------------------------------------------
Name:
- --------------------------------------------------------------------------------
(PLEASE TYPE OR PRINT)
Title:
- --------------------------------------------------------------------------------
Name of Firm:
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
- --------------------------------------------------------------------------------
Date:
- --------------------------- , 2001
6
7
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a financial
institution (including most banks, savings and loan associations and brokerage
houses) that is a participant in the Security Transfer Agents Medallion Program,
The New York Stock Exchange Medallion Signature Guarantee Program or the Stock
Exchange Medallion Program (each, an "Eligible Institution"). Signatures on this
Letter of Transmittal need not be guaranteed (a) if this Letter of Transmittal
is signed by the registered holder(s) (which term, for purposes of this
document, shall include any participant in the Book-Entry Transfer Facility
whose name appears on a security position listing as the owner of Ordinary
Shares) of the Ordinary Shares tendered herewith and such Holder(s) have not
completed the box entitled either "Special Payment Instructions" or "Special
Delivery Instructions" on this Letter of Transmittal or (b) if such Ordinary
Shares are tendered for the account of an Eligible Institution. See Instruction
5 of this Letter of Transmittal.
2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES OR BOOK-ENTRY
CONFIRMATIONS. This Letter of Transmittal is to be used either if Certificates
are to be forwarded herewith or, unless an Agent's Message (as defined in the
Offer to Purchase) is utilized, if tenders are to be made pursuant to the
procedures for tender by book-entry transfer set forth in Section
3 -- "Procedures for Tendering Ordinary Shares" of the Offer to Purchase.
Certificates evidencing all physically tendered Ordinary Shares, or timely
confirmation of a book-entry transfer (a "Book-Entry Confirmation") of such
Ordinary Shares into the Depositary's account at DTC, as well as this Letter of
Transmittal (or copy thereof), properly completed and duly executed with any
required signature guarantees (or, in the case of a book-entry delivery, an
Agent's Message), and all other documents required by this Letter of Transmittal
must be received by the Depositary at one of its addresses set forth herein
prior to the Expiration Date (as defined in Section 1 -- "Terms of the Offer" of
the Offer to Purchase). If Certificates are forwarded to the Depositary in
multiple deliveries, a properly completed and duly executed Letter of
Transmittal (or copy thereof) must accompany each such delivery.
Holders whose Certificates are not immediately available or who cannot
deliver their Certificates and all other required documents to the Depositary
prior to the Expiration Date or who cannot complete the procedures for
book-entry transfer on a timely basis may nevertheless tender their Ordinary
Shares by properly completing and duly executing a Notice of Guaranteed Delivery
pursuant to the guaranteed delivery procedure set forth in Section
3 -- "Procedures for Tendering Ordinary Shares" of the Offer to Purchase.
Pursuant to such procedure: (i) such tender must be made by or through an
Eligible Institution; (ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form provided by the Purchaser, must
be received by the Depositary prior to the Expiration Date; and (iii)
Certificates, as well as a Letter of Transmittal (or copy thereof), properly
completed and duly executed with any required signature guarantees (or, in the
case of a book-entry delivery, a Book-Entry Confirmation along with an Agent's
Message), and all other documents required by this Letter of Transmittal must be
received by the Depositary within three New York Stock Exchange trading days
after the date of execution of such Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE ORDINARY SHARES,
CERTIFICATES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE
BOOK-ENTRY TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING HOLDER,
AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
DEPOSITARY (INCLUDING, IN THE CASE OF BOOK-ENTRY TRANSFER, BY BOOK-ENTRY
CONFIRMATION (AS DEFINED IN THE OFFER TO PURCHASE)). IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Other than as may be expressly permitted by the Purchaser, no alternative,
conditional or contingent tenders will be accepted and no fractional Ordinary
Shares will be purchased. All tendering Holders, by execution of this Letter of
Transmittal (or a copy hereof), waive any right to receive any notice of the
acceptance of their Ordinary Shares for payment.
3. INADEQUATE SPACE. If the space provided under "Description of Ordinary
Shares Being Tendered" is inadequate, the share Certificate numbers and/or the
number of Ordinary Shares should be listed on a separate signed schedule and
attached hereto.
4. PARTIAL TENDERS (APPLICABLE TO CERTIFICATE HOLDERS ONLY; NOT APPLICABLE
TO SHAREHOLDERS WHO TENDER BY BOOK-ENTRY TRANSFER). If fewer than all the
Ordinary Shares evidenced by any Certificate submitted are to be tendered, fill
in the number of Ordinary Shares which are to be tendered in the box entitled
"Number of Ordinary Shares
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Tendered." In such cases, new Certificate(s) evidencing the remainder of the
Ordinary Shares that were evidenced by Certificate(s) delivered to the
Depositary will be sent to the person signing this Letter of Transmittal, unless
otherwise provided in the box entitled "Special Delivery Instructions" on this
Letter of Transmittal, as soon as practicable after the Expiration Date. All
Ordinary Shares represented by Certificate(s) delivered to the Depositary will
be deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Ordinary
Shares tendered hereby, the signature(s) must correspond with the name(s) as
written on the face of the Certificate(s) without alteration, enlargement or any
change whatsoever.
If any of the Ordinary Shares tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Ordinary Shares are registered in different names on
several Certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of such
Ordinary Shares.
If this Letter of Transmittal or any Certificate or stock power is signed
by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and proper evidence satisfactory to
the Purchaser of such person's authority so to act must be submitted.
If this Letter of Transmittal is signed by the registered holder(s)
transmitted hereby, no endorsements of Certificate(s) or separate stock powers
are required unless payment is to be made to, or Certificate(s) evidencing the
Ordinary Shares not tendered or purchased are to be issued in the name of, a
person other than the registered holder(s). Signatures on such Certificate(s) or
stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) tendered hereby, the Certificate(s) must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name or names of the registered holder(s) appear(s) on such Certificate(s).
Signatures on such Certificate(s) or stock powers must be guaranteed by an
Eligible Institution.
6. TRANSFER TAXES. Except as otherwise provided in this Instruction 6,
the Purchaser will pay or cause to be paid any transfer taxes with respect to
the transfer and sale of purchased Ordinary Shares to it or its order pursuant
to the Offer. If, however, payment of the purchase price of any Ordinary Shares
purchased is to be made to or, in the circumstances permitted hereby, if
Certificate(s) for the Ordinary Shares not tendered or purchased are to be
registered in the name of, any person other than the registered holder, or if
tendered Certificate(s) are registered in the name of any person other than the
person(s) signing this Letter of Transmittal, the amount of any transfer taxes
(whether imposed on the registered holder or such person) payable on account of
the transfer to such person will be deducted from the purchase price for such
Ordinary Shares if satisfactory evidence of the payment of such taxes, or
exemption therefrom, is not submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATE(S) LISTED IN THIS LETTER OF
TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the purchase
price of any Ordinary Shares tendered hereby is to be issued in the name of,
and/or Certificates for the Ordinary Shares not tendered or not accepted for
payment are to be issued in the name of and/or returned to, a person other than
the person(s) signing this Letter of Transmittal or if such check and/or such
Certificates for Ordinary Shares are to be mailed to a person other than the
signer of this Letter of Transmittal or to an address other than that shown in
the box entitled "Description of Ordinary Shares Being Tendered," the
appropriate boxes on this Letter of Transmittal should be completed. A
Book-Entry Holder may request that Ordinary Shares not accepted for payment be
credited to such account maintained at the Book-Entry Transfer Facility as such
Book-Entry Holder may designate under "Special Payment Instructions." If no such
instructions are given, such Ordinary Shares not accepted for payment will be
returned by crediting the account at the Book-Entry Transfer Facility designated
above.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions or requests
for assistance may be directed to, or additional copies of the Offer to
Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and
other tender
8
9
offer materials may be obtained from, the Information Agent or the Dealer
Managers at their respective addresses set forth on the back cover of the Offer
to Purchase or from your broker, dealer, commercial bank or trust company.
9. LOST, MUTILATED OR DESTROYED CERTIFICATES. If any Certificates have
been lost, mutilated or destroyed, the Holder should promptly notify the
Depositary by checking the box immediately preceding the special payment/special
delivery instructions and indicating the number of Ordinary Shares lost. The
Holder will then be instructed as to the procedure to be followed in order to
replace the relevant Certificates. This Letter of Transmittal and related
documents cannot be processed until the procedures for replacing lost, mutilated
or destroyed Certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A COPY HEREOF, TOGETHER WITH
CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER
REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY MUST BE
RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under United States federal income tax law, a tendering Holder may be
subject to backup withholding tax at a rate of 31% with respect to payments by
the Depositary pursuant to the Offer unless such Holder: (i) is a corporation or
other exempt recipient and, if required, establishes its exemption from backup
withholding; (ii) provides its correct taxpayer identification number ("TIN")
and certifies that the TIN provided is correct (or that such Holder is awaiting
a TIN) and it certifies that it is not currently subject to backup withholding;
or (iii) certifies as to its non-United States status. If such Holder is an
individual, the TIN is his or her social security number. Completion of a
Substitute Form W-9, in the case of a U.S. Holder, provided in this Letter of
Transmittal, should be used for this purpose. Failure to provide such Holder's
TIN on the Substitute Form W-9, if applicable, may subject the tendering Holder
(or other payee) to a $50 penalty imposed by the Internal Revenue Service
("IRS"). More serious penalties may be imposed for providing false information
which, if willfully done, may result in fines and/or imprisonment. If the
tendering Holder (or other payee) is required to submit a Substitute Form W-9
and has not been issued a TIN and has applied for a TIN or intends to apply for
a TIN in the near future if such tendering Holder (or other payee) should check
the box in Part 3 and complete the "Certificate of Awaiting Taxpayer
Identification Number" on the "Substitute Form W-9." If the box in Part 3 is
checked and the Depositary is not provided with a TIN by the time of payment,
the Depositary will withhold 31% on all such payments of the Offer Price until a
TIN is provided to the Depositary. In order for a foreign Holder to qualify as
an exempt recipient, that Holder should submit an IRS Form W-8, or an acceptable
substitute form, signed under penalties of perjury, attesting to that Holder's
exempt status. Such forms can be obtained from the Depositary. Failure to
provide the information on the form may subject tendering Holders to 31% United
States federal income tax withholding on the payment of the purchase price of
cash pursuant to the Offer. Backup withholding is not an additional tax. Rather,
the tax liability of persons subject to backup withholding will be reduced by
the amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained by filing a tax return with the IRS. The Depositary
cannot refund amounts withheld by reason of backup withholding. Under recently
enacted legislation, the backup withholding tax rate of 31% will be reduced as
of August 7, 2001 to 30.5%. This rate will be further reduced to 30% for years
2002 and 2003, 29% for years 2004 and 2005, and 28% for 2006 and thereafter.
9
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TO BE COMPLETED BY ALL TENDERING HOLDERS
- -------------------------------------------------------------------------------------------------------------------------
PAYER'S NAME: THE BANK OF NEW YORK
- -------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT Social Security Number or
FORM W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW Employer Identification Number
----------------------------------
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
--------------------------------------------------------------------------------------
PAYER'S REQUEST FOR TAXPAYER PART 2 -- If you are exempt from backup PART 3 -- If you are awaiting
IDENTIFICATION NUMBER ("TIN") AND withholding, please check the box: [ ] TIN, check box: [ ]
CERTIFICATION
--------------------------------------------------------------------------------------
PART 4 -- CERTIFICATION -- Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number (or I
am waiting for a number to be issued to me),
(2) I am not subject to backup withholding because (i) I am exempt from backup
withholding, (ii) I have not been notified by the Internal Revenue Service (the
"IRS") that I am subject to backup withholding as a result of a failure to report
all interest or dividends, or (iii) the IRS has notified me that I am no longer
subject to backup withholding, and
(3) I am a U.S. person (including a U.S. resident alien).
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above if you have been
notified by the IRS that you are subject to backup withholding because of under-
reporting interest or dividends on your tax return. However, if after being notified
by the IRS that you were subject to backup withholding, you received another
notification from the IRS that you are no longer subject to backup withholding, do
not cross out such item (2).
--------------------------------------------------------------------------------------
SIGNATURE --------------------------------------------------------------------------
DATED
---------------------------------------------------------------------------------
NAME (Please Print)------------------------------------------------------------------
ADDRESS------------------------------------------------------------------------------
CITY, STATE AND ZIP CODE
- -------------------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
NOTE: YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration office or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all reportable cash payments made to me thereafter will be withheld until I
provide a taxpayer identification number.
Signature -------------------- Dated ----------, 2001
10
11
Questions and requests for assistance may be directed to the Information
Agent or Dealer Managers at their respective addresses and telephone numbers set
forth below. Additional copies of the Offer to Purchase, this Letter of
Transmittal or other related tender offer materials may be obtained from the
Information Agent or from brokers, dealers, commercial banks or trust companies.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokerage Firms, Please Call: (212) 269-5550
All others, Please Call: (800) 758-5880
The Dealer Managers for the Offer are:
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Call Collect: (212) 902-1000
Toll Free: (800) 323-5678
1
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. IF YOU ARE IN
ANY DOUBT AS TO THE ACTION TO BE TAKEN, YOU SHOULD SEEK YOUR OWN FINANCIAL
ADVICE IMMEDIATELY FROM YOUR OWN APPROPRIATELY AUTHORIZED INDEPENDENT FINANCIAL
ADVISOR. IF YOU HAVE SOLD OR TRANSFERRED ALL OF YOUR REGISTERED HOLDINGS OF
ORDINARY SHARES (AS DEFINED BELOW), PLEASE FORWARD THIS DOCUMENT AND ALL
ACCOMPANYING DOCUMENTS TO THE STOCKBROKER, BANK OR OTHER AGENT THROUGH WHOM THE
SALE OR TRANSFER WAS EFFECTED, FOR TRANSMISSION TO THE PURCHASER OR TRANSFEREE.
NOTICE OF GUARANTEED DELIVERY
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
TO TENDER
ALL OF THE UNCONDITIONALLY ALLOTTED OR ISSUED
AND FULLY PAID ORDINARY SHARES
(INCLUDING THE ASSOCIATED SERIES A JUNIOR PARTICIPATING PREFERRED SHARE PURCHASE
RIGHTS)
OF
TRITON ENERGY LIMITED
PURSUANT TO THE OFFER TO PURCHASE
DATED JULY 17, 2001
BY
AMERADA HESS (CAYMAN) LIMITED
A WHOLLY OWNED SUBSIDIARY OF
AMERADA HESS CORPORATION
As set forth under Section 3 -- "Procedures for Tendering Ordinary Shares"
in the Offer to Purchase, dated July 17, 2001, and any supplements or amendments
thereto (the "Offer to Purchase"), this form (or a copy hereof) must be used to
accept the Offer (as defined in the Offer to Purchase) if (i) certificates (the
"Certificates") representing Ordinary Shares of Triton Energy Limited (as
defined in the Offer to Purchase), par value $0.01 per share, together with the
associated Series A junior participating preferred share purchase rights (the
"Rights"), are not immediately available (including because certificates for
Rights have not yet been distributed by the Rights Agent (as defined in the
Offer to Purchase)), (ii) time will not permit all required documents to reach
The Bank of New York (the "Depositary") prior to the Expiration Date (as defined
in Section 1 -- "Terms of the Offer" of the Offer to Purchase) or (iii) the
procedure for book-entry transfer cannot be completed on a timely basis. This
Notice of Guaranteed Delivery may be delivered by hand to the Depositary, or
transmitted by facsimile transmission, or by mail to the Depositary and must
include a guarantee by an Eligible Institution (as defined in Section 3 --
"Procedures for Tendering Ordinary Shares") in the form set forth herein. See
the guaranteed delivery procedures described in the Offer to Purchase under
Section 3 -- "Procedures for Tendering Ordinary Shares."
The Depositary for the Offer is:
THE BANK OF NEW YORK
By Mail: By Facsimile: By Hand/Overnight Courier:
THE BANK OF NEW YORK (for Eligible THE BANK OF NEW YORK
TENDER & EXCHANGE DEPARTMENT Institutions only) TENDER & EXCHANGE DEPARTMENT
P.O. Box 11248 (212) 815-6213 101 Barclay Street
Church Street Station Receive and Deliver Window
Receive and Deliver Window For Confirmation Only Telephone: New York, New York 10286
New York, New York 10286-1248
(212) 815-6156
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTION VIA FACSIMILE TRANSMISSION OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee a
signature. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution (as defined in Section 3 -- "Procedures
for Tendering Ordinary Shares" of the Offer to Purchase) under the instructions
thereto, such signature guarantee must appear in the applicable space provided
in the signature box on the Letter of Transmittal.
2
LADIES AND GENTLEMEN:
THE UNDERSIGNED HEREBY TENDERS TO AMERADA HESS (CAYMAN) LIMITED, A COMPANY
LIMITED BY SHARES ORGANIZED UNDER THE LAWS OF THE CAYMAN ISLANDS AND A WHOLLY
OWNED SUBSIDIARY OF AMERADA HESS CORPORATION, A DELAWARE CORPORATION, ON THE
TERMS AND SUBJECT TO THE CONDITIONS SET FORTH IN THE OFFER TO PURCHASE AND THE
RELATED LETTER OF TRANSMITTAL, RECEIPT OF EACH OF WHICH IS HEREBY ACKNOWLEDGED,
THE NUMBER OF ORDINARY SHARES INDICATED BELOW PURSUANT TO THE GUARANTEED
DELIVERY PROCEDURES DESCRIBED IN THE OFFER TO PURCHASE UNDER SECTION 3 --
"PROCEDURES FOR TENDERING ORDINARY SHARES."
NO AUTHORITY HEREIN CONFERRED OR AGREED TO BE CONFERRED SHALL BE AFFECTED
BY, AND ALL SUCH AUTHORITY SHALL SURVIVE, THE DEATH OR INCAPACITY OF THE
UNDERSIGNED. ALL OBLIGATIONS OF THE UNDERSIGNED HEREUNDER SHALL BE BINDING UPON
THE HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL REPRESENTATIVES, SUCCESSORS AND
ASSIGNS OF THE UNDERSIGNED.
NAME OF RECORD HOLDER(S):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ADDRESS(ES):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AREA CODE(S) AND TEL. NO(S).:
- -------------------------------------------------------------------------------
SIGNATURE(S):
- --------------------------------------------------------------------------------
DATE:
- --------------------------------------------------------------------------------
NUMBER OF ORDINARY SHARES:
- --------------------------------------------------------------------------------
CERTIFICATE NUMBER(S) IF AVAILABLE:
- ---------------------------------------------------------------------------
IF ORDINARY SHARES WILL BE TENDERED BY BOOK-ENTRY TRANSFER CHECK BOX:
[ ] The Depository Trust Company
Account Number:
-----------------------------------------------------------------------------
2
3
THE GUARANTEE BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, an Eligible Institution (as defined in Section
3 -- "Procedures for Tendering Ordinary Shares" of the Offer to Purchase),
hereby guarantees that the undersigned will deliver to the Depositary, at one of
its addresses set forth above, either the Certificates representing the Ordinary
Shares, together with the associated Series A junior participating preferred
share purchase rights, tendered hereby, in proper form for transfer, or Book-
Entry Confirmation (as defined in the Offer to Purchase), together with a
properly completed and duly executed Letter of Transmittal, including any
required signature guarantees, or, in the case of book-entry delivery of
Ordinary Shares, an Agent's Message (as defined in the Offer to Purchase), and
any other documents required by the Letter of Transmittal, all within three New
York Stock Exchange trading days (as defined in Section 3 -- "Procedures for
Tendering Ordinary Shares" of the Offer to Purchase) after the date hereof.
NAME OF FIRM:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
Address:
---------------------------------------------
(ZIP CODE)
Area Code and Tel. No.:
---------------------------
AUTHORIZED SIGNATURE:
--------------------------------------------------------
Name:
------------------------------------------------
(PLEASE PRINT)
Title:
-------------------------------------------------
Date:
-------------------------------------------------
NOTE: DO NOT SEND CERTIFICATES WITH THIS NOTICE OF GUARANTEED DELIVERY;
CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
3
1
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.--Social Security numbers have nine digits separated by two hyphens: i.e.,
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payer.
- ------------------------------------------------------------
GIVE THE NAME AND
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- ------------------------------------------------------------
1. An individual's account The individual
2. Two or more individuals (joint The actual owner of
account) the account or, if
combined funds, the
first individual on
the account(1)
3. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
4. a. The usual revocable savings The grantor-
trust account (grantor is also trustee(1)
trustee)
4. b. So-called trust account that is The actual owner(1)
not a legal or valid trust
under State law
5. Sole proprietorship account The owner(3)
- ------------------------------------------------------------
- ------------------------------------------------------------
GIVE THE NAME
AND EMPLOYER
IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- ------------------------------------------------------------
6. A valid trust, estate, or pension The legal entity
trust (Do not furnish the
identifying number
of the
representative or
trustee unless the
legal entity itself
is not designated
in the account
title.)(4)
7. Corporate account The corporation
8. Partnership account held in the The partnership
name of the business
9. Association, club, religious, The organization
charitable, educational, or other
tax-exempt organization
10. A broker or registered nominee The broker or
nominee
11. Account with the Department of The public entity
Agriculture in the name of the
public entity (such as a State or
local government, school district,
or prison) that receives
agricultural program payments
- ------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a Social Security number, that
person's number must be furnished.
(2) Circle the minor's name and furnish the minor's Social Security number.
(3) Show the name of the owner. The name of the business or the "doing business
as" name may also be entered. Either the Social Security number or the
employer identification number (if you have one) may be used.
(4) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER
If you don't have a taxpayer identification number ("TIN") or you don't know
your number, obtain Form SS-5, Application for a Social Security Card, Form W-7,
Application for I.R.S. Individual Taxpayer Identification Number, or Form SS-4,
Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP
WITHHOLDING
Payees specifically exempted from backup withholding on all dividend and
interest payments and on broker transactions include the following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a), or an individual
retirement account, or a custodial account under section 403(b)(7), if the
account satisfies the requirements of section 401(1)(2).
- The United States or any agency or instrumentality thereof.
- A state, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
- An international organization, or any agency or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S. the
District of Columbia, or a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a).
- An entity registered at all times during the tax year under the Investment
Company Act of 1940.
- A foreign central bank of issue.
- The United States or any of its agencies of instru-
mentalities.
Further, an exempt charitable remainder trust, or a non-exempt trust described
in section 4947(a)(1) is exempted on broker transactions.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- Payments to nonresident aliens subject to withholding under section 1441.
- Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident alien partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
- Payments made by an Employee Stock Ownership Plan pursuant to Section
404(k).
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. NOTE: You may be
subject to backup withholding if this interest is $600 or more and is paid
in the course of the payer's trade or business and you have not provided
your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
- Payments described in section 6049(b)(5) to nonresident aliens.
- Payments on tax-free covenant bonds under section 1451.
- Payments made by certain foreign organizations.
EXEMPT PAYEES DESCRIBED ABOVE SHOULD FILE THE SUBSTITUTE FORM W-9 TO AVOID
POSSIBLE ERRONEOUS BACKUP WITHHOLDING. COMPLETE THE SUBSTITUTE FORM W-9 AS
FOLLOWS:
ENTER YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ACROSS THE FACE OF
THE FORM, SIGN, DATE, AND RETURN THE FORM TO THE PAYER.
IF YOU ARE A NONRESIDENT ALIEN OR A FOREIGN ENTITY NOT SUBJECT TO BACKUP
WITHHOLDINGS, GIVE THE PAYER THE APPROPRIATE COMPLETED FORM W-8.
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the sections 6041, 6041A, 6042, 6044, 6045, 6049,
6050A and 6050N of the Internal Revenue Code and the regulations thereunder.
PRIVACY ACT NOTICE.--Section 6109 of the Internal Revenue Code requires most
recipients of dividend, interest, or other payments to give taxpayer
identification numbers to payers who must report the payments to IRS. The IRS
uses the numbers for identification purposes and to help verify the accuracy of
tax returns. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers must generally withhold 31% (or such
reduced rate as applicable) of taxable interest, dividend, and certain other
payments to a payee who does not furnish a taxpayer identification number to a
payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your correct taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
(4) MISUSE OF TAXPAYER IDENTIFICATION NUMBERS.--If the payer discloses or uses
taxpayer identification numbers in violation of Federal law, the payer may be
subject to civil and criminal penalties.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE.
1
OFFER TO PURCHASE FOR CASH
ALL OF THE UNCONDITIONALLY ALLOTTED OR ISSUED AND FULLY PAID ORDINARY SHARES
(INCLUDING THE ASSOCIATED SERIES A JUNIOR PARTICIPATING PREFERRED
SHARE PURCHASE RIGHTS)
OF
TRITON ENERGY LIMITED
AT
$45.00 NET PER ORDINARY SHARE
BY
AMERADA HESS (CAYMAN) LIMITED
A WHOLLY OWNED SUBSIDIARY OF
AMERADA HESS CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, AUGUST 13, 2001, UNLESS THE OFFER IS EXTENDED.
July 17, 2001
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by Amerada Hess (Cayman) Limited (the "Purchaser"),
a company limited by shares organized under the laws of the Cayman Islands and a
wholly owned subsidiary of Amerada Hess Corporation ("Amerada Hess"), a Delaware
corporation, to act as Dealer Managers in connection with the Purchaser's offer
to purchase all of the existing unconditionally allotted or issued and fully
paid ordinary shares, par value $0.01 per share, of Triton Energy Limited (the
"Company"), a company limited by shares organized under the laws of the Cayman
Islands, and any further ordinary shares which are unconditionally allotted or
issued and fully paid before the date and time on which the offer (as defined
below) expires, including the associated Series A junior participating preferred
share purchase rights (the "Ordinary Shares") at a price of $45.00 per Ordinary
Share, net to the seller in cash, without interest thereon, on the terms and
subject to the conditions set forth in the Offer to Purchase, dated July 17,
2001 (the "Offer to Purchase"), and in the related Letter of Transmittal (which,
as they may be amended and supplemented from time to time, together constitute
the "Offer"), copies of which are enclosed herewith. Please furnish copies of
the enclosed materials to those of your clients for whose accounts you hold
Ordinary Shares in your name or in the name of your nominee.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase, dated July 17, 2000.
2. The Letter of Transmittal to tender Ordinary Shares for your use
and for the information of your clients. Copies of the Letter of
Transmittal may be used to tender Ordinary Shares.
3. A letter to shareholders of the Company from James C. Musselman,
President and Chief Executive Officer of the Company, together with a
Solicitation/Recommendation Statement on Schedule 14D-9 filed with the
Securities and Exchange Commission by the Company and mailed to
shareholders of the Company.
2
4. The Notice of Guaranteed Delivery for Ordinary Shares to be used to
accept the Offer if the procedures for tendering Ordinary Shares set forth
in the Offer to Purchase cannot be completed prior to the Expiration Date
(as defined in the Offer to Purchase).
5. A printed form of letter which may be sent to your clients for
whose accounts you hold Ordinary Shares registered in your name or in the
name of your nominee, with space provided for obtaining such clients'
instructions with regard to the Offer.
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. THE OFFER AND
WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY,
AUGUST 13, 2001, UNLESS THE OFFER IS EXTENDED.
Please note the following:
1. The offer price is $45.00 per Ordinary Share, net to the seller in
cash, without interest thereon, as set forth in the Introduction to the
Offer to Purchase.
2. The Offer is conditioned on, among other things, there being
validly tendered and not properly withdrawn prior to the expiration of the
Offer a number of Ordinary Shares, which represent at least 90% in value of
the Ordinary Shares (the "Minimum Condition"). Amerada Hess or the
Purchaser may, at any time, amend the Minimum Condition to equal the number
of Ordinary Shares representing at least a majority of the total number of
votes of the Ordinary Shares determined on a fully diluted basis. The Offer
is also conditioned on the satisfaction of the HSR Condition (as defined in
the Offer to Purchase) and the satisfaction of certain other terms and
conditions. See the Introduction and Sections 14 -- "Conditions of the
Offer" and 15 -- "Certain Legal Matters; Regulatory Approvals" of the Offer
to Purchase.
3. The Offer is being made for all of the unconditionally allotted or
issued and fully paid Ordinary Shares.
4. Holders of Ordinary Shares ("Holders") who tender Ordinary Shares
pursuant to the Offer whose Ordinary Shares are registered in their own
name and who tender directly to The Bank of New York, as Depositary (the
"Depositary"), will not be obligated to pay brokerage fees or commissions
or, except as set forth in Instruction 6 of the Letter of Transmittal,
transfer taxes on the purchase of Ordinary Shares by the Purchaser pursuant
to the Offer. However, federal income tax backup withholding at a rate of
31% may be required, unless an exemption is available or unless the
required tax identification information is provided. See the section
entitled "Important Tax Information" in the Letter of Transmittal.
5. The Offer and the withdrawal rights will expire at 12:00 midnight,
New York City time, on Monday, August 13, 2001, unless the Offer is
extended.
6. The Board of Directors of the Company has unanimously (i)
determined that the Acquisition Agreement (as defined in the Offer to
Purchase), the Principal Shareholders Agreement (as defined in the Offer to
Purchase) and the transactions contemplated thereby, including the Offer,
the Scheme of Arrangement (as defined in the Offer to Purchase) and the
Compulsory Acquisition (as defined in the Offer to Purchase) are fair to
and in the best interests of the Company and the holders of Ordinary Shares
and Preferred Shares(as defined in the Offer to Purchase) (other than, in
the case of transactions contemplated by the Principal Shareholders
Agreement, the Principal Shareholders (as defined in the Offer to
Purchase)), (ii) approved the execution, delivery and performance by the
Company of the Acquisition Agreement and the Principal Shareholders
Agreement and the transactions contemplated thereby, including the Offer,
the Scheme of Arrangement and the Compulsory Acquisition, and (iii)
resolved to recommend that the Holders accept the Offer and tender their
Ordinary Shares (including the Rights) pursuant to the Offer and that the
holders of Ordinary Shares and Preferred Shares approve the Scheme of
Arrangement, if such approval is sought.
2
3
7. Notwithstanding any other provision of the Offer, payment for
Ordinary Shares accepted for payment pursuant to the Offer will be made
only after timely receipt by the Depositary of (i) Certificates or, if such
Ordinary Shares are held in book-entry form, timely confirmation of a
book-entry transfer (a "Book-Entry Confirmation") of such Ordinary Shares
into the Depositary's account at The Depository Trust Company, and if
certificates evidencing the associated Rights have been issued, such
certificates or a Book-Entry Confirmation, if available, with respect to
such certificates (unless the Purchaser elects, in its sole discretion, to
make payment for the Ordinary Shares pending receipt of such certificates
or a Book-Entry Confirmation, if available, with respect to such
certificates), (ii) a properly completed and duly executed Letter of
Transmittal or a copy thereof with any required signature guarantees (or,
in the case of a book-entry transfer, an Agent's Message (as defined in the
Offer to Purchase)) and (iii) any other documents required by the Letter of
Transmittal. Accordingly, tendering Holders may be paid at different times
depending upon when Certificates for Ordinary Shares (or certificates for
Rights) or Book-Entry Confirmations with respect to Ordinary Shares (or
Rights, if applicable) are actually received by the Depositary. UNDER NO
CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE ORDINARY
SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE
OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
In order to take advantage of the Offer, Certificates, as well as a Letter
of Transmittal (or copy thereof), properly completed and duly executed with any
required signature guarantees (or, in the case of a book-entry delivery, an
Agent's Message), and all other documents required by the Letter of Transmittal
must be received by the Depositary, all in accordance with the instructions set
forth in the Letter of Transmittal and the Offer to Purchase.
Any Holder who desires to tender Ordinary Shares and whose Certificate(s)
evidencing such Ordinary Shares are not immediately available, or who cannot
comply with the procedures for book-entry transfer described in the Offer to
Purchase on a timely basis, may tender such Ordinary Shares by following the
procedures for guaranteed delivery set forth in Section 3 -- "Procedures for
Tendering Ordinary Shares" of the Offer to Purchase.
Neither Amerada Hess nor the Purchaser will pay any fees or commissions to
any broker, dealer or other person for soliciting tenders of Ordinary Shares
pursuant to the Offer (other than the Dealer Managers, the Depositary and the
Information Agent as described in the Offer to Purchase). The Purchaser will,
however, upon request, reimburse you for customary mailing and handling expenses
incurred by you in forwarding any of the enclosed materials to your clients. The
Purchaser will pay or cause to be paid any transfer taxes with respect to the
transfer and sale of purchased Ordinary Shares to it or its order pursuant to
the Offer, except as otherwise provided in Instruction 6 of the Letter of
Transmittal.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Managers at their respective addresses and telephone numbers
as set forth below. Additional copies of this Offer to Purchase, the Letter of
Transmittal, or other related tender offer materials may be obtained from the
Information Agent or from brokers, dealers, commercial banks or trust companies.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokerage Firms, Please Call: (212) 269-5550
All others, Please Call: (800) 758-5880
3
4
The Dealer Managers for the Offer are:
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Call Collect: (212) 902-1000
Toll Free: (800) 323-5678
Requests for copies of the enclosed materials may also be directed to the
Dealer Managers or to the Information Agent at the above addresses and telephone
numbers.
Very truly yours,
GOLDMAN, SACHS & CO.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF THE PURCHASER, AMERADA HESS, THE COMPANY, THE
DEALER MANAGERS, THE DEPOSITARY, THE INFORMATION AGENT OR ANY AFFILIATE OF ANY
OF THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY
DOCUMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE
ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
4
1
OFFER TO PURCHASE FOR CASH
ALL OF THE UNCONDITIONALLY ALLOTTED OR ISSUED AND FULLY PAID ORDINARY SHARES
(INCLUDING THE ASSOCIATED SERIES A JUNIOR PARTICIPATING PREFERRED
SHARE PURCHASE RIGHTS)
OF
TRITON ENERGY LIMITED
AT
$45.00 NET PER ORDINARY SHARE
BY
AMERADA HESS (CAYMAN) LIMITED
A WHOLLY OWNED SUBSIDIARY OF
AMERADA HESS CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, AUGUST 13, 2001, UNLESS THE OFFER IS EXTENDED.
July 17, 2001
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated July 17,
2001 (the "Offer to Purchase"), and the related Letter of Transmittal (which, as
they may be amended and supplemented from time to time, together constitute the
"Offer") relating to the offer by Amerada Hess (Cayman) Limited (the
"Purchaser"), a company limited by shares organized under the laws of the Cayman
Islands and a wholly owned subsidiary of Amerada Hess Corporation ("Amerada
Hess"), a Delaware corporation, to purchase all of the existing unconditionally
allotted or issued and fully paid ordinary shares, par value $0.01 per share,
and any further ordinary shares which are unconditionally allotted or issued and
fully paid before the date and time on which the Offer expires, including the
associated Series A junior participating preferred share purchase rights (the
"Rights") (the "Ordinary Shares"), of Triton Energy Limited (the "Company"), a
company limited by shares organized under the laws of the Cayman Islands, at a
price of $45.00 per Ordinary Share, net to the seller in cash, without interest
thereon (the "Ordinary Share Offer Price"), on the terms and subject to the
conditions set forth in the Offer to Purchase and in the related Letter of
Transmittal. Any Holders who desire to tender Ordinary Shares and whose
certificates evidencing such Ordinary Shares (the "Certificates") are not
immediately available, or who cannot comply with the procedures for book-entry
transfer described in the Offer to Purchase on a timely basis, may tender such
Ordinary Shares by following the procedures for guaranteed delivery set forth in
Section 3 -- "Procedures for Tendering Ordinary Shares" of the Offer to
Purchase.
WE ARE (OR OUR NOMINEE IS) THE HOLDER OF RECORD OF ORDINARY SHARES HELD FOR
YOUR ACCOUNT. A TENDER OF SUCH ORDINARY SHARES CAN BE MADE ONLY BY US AS THE
HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS
FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER
ORDINARY SHARES HELD BY US FOR YOUR ACCOUNT.
Accordingly, we request instructions as to whether you wish to have us
tender on your behalf any or all Ordinary Shares held by us for your account
pursuant to the terms and conditions set forth in the Offer.
Please note the following:
1. The Ordinary Share Offer Price is $45.00 per Ordinary Share, net to
the seller in cash, without interest thereon, as set forth in the
Introduction to the Offer to Purchase.
2
2. The Offer is conditioned on, among other things, there being
validly tendered and not properly withdrawn prior to the expiration of the
Offer a number of Ordinary Shares which represent at least 90% in value of
the Ordinary Shares (the "Minimum Condition"). Amerada Hess or the
Purchaser may, at any time, amend the Minimum Condition to equal the number
of Ordinary Shares representing at least a majority of the total number of
votes of the Ordinary Shares on a fully diluted basis. The Offer is also
conditioned on the satisfaction of the HSR Condition (as defined in the
Offer to Purchase) and the satisfaction of certain other terms and
conditions. See the Introduction and Sections 14 -- "Conditions of the
Offer" and 15 -- "Certain Legal Matters; Regulatory Approvals" of the Offer
to Purchase.
3. The Offer is being made for all of the Ordinary Shares.
4. Holders of Ordinary Shares ("Holders") who tender Ordinary Shares
pursuant to the Offer whose Ordinary Shares are registered in their own
name and who tender directly to The Bank of New York, as Depositary (the
"Depositary"), will not be obligated to pay brokerage fees or commissions
or, except as set forth in Instruction 6 of the Letter of Transmittal,
transfer taxes on the purchase of Ordinary Shares pursuant to the Offer.
However, federal income tax backup withholding at a rate of 31% may be
required, unless an exemption is available or unless the required tax
identification information is provided. See the section entitled "Important
Tax Information" in the Letter of Transmittal.
5. The Offer and withdrawal rights will expire at 12:00 midnight, New
York City time, on Monday, August 13, 2001, unless the Offer is extended.
6. The Board of Directors of the Company has unanimously (i)
determined that the Acquisition Agreement (as defined in the Offer to
Purchase), the Principal Shareholders Agreement (as defined in the Offer to
Purchase) and the transactions contemplated thereby, including the Offer,
the Scheme of Arrangement (as defined in the Offer to Purchase) and the
Compulsory Acquisition (as defined in the Offer to Purchase) are fair to
and in the best interests of the Company and the holders of Ordinary Shares
and Preferred Shares(as defined in the Offer to Purchase) (other than, in
the case of transactions contemplated by the Principal Shareholders
Agreement, the Principal Shareholders (as defined in the Offer to
Purchase)), (ii) approved the execution, delivery and performance by the
Company of the Acquisition Agreement and the Principal Shareholders
Agreement and the transactions contemplated thereby, including the Offer,
the Scheme of Arrangement and the Compulsory Acquisition, and (iii)
resolved to recommend that the Holders accept the Offer and tender their
Ordinary Shares (including the Rights) pursuant to the Offer and that the
holders of Ordinary Shares and Preferred Shares approve the Scheme of
Arrangement, if such approval is sought.
7. Notwithstanding any other provision of the Offer, payment for
Ordinary Shares accepted for payment pursuant to the Offer will be made
only after timely receipt by the Depositary of (i) Certificates or, if such
Ordinary Shares are held in book-entry form, timely confirmation of a
book-entry transfer (a "Book-Entry Confirmation") of such Ordinary Shares
into the Depositary's account at The Depository Trust Company, and if
certificates evidencing the associated Rights have been issued, such
certificates or a Book-Entry Confirmation, if available, with respect to
such certificates (unless the Purchaser elects, in its sole discretion, to
make payment for the Ordinary Shares pending receipt of such certificates
or a Book-Entry Confirmation, if available, with respect to such
certificates), (ii) a properly completed and duly executed Letter of
Transmittal or a copy thereof with any required signature guarantees (or,
in the case of a book-entry transfer, an Agent's Message (as defined in the
Offer to Purchase)) and (iii) any other documents required by the Letter of
Transmittal. Accordingly, tendering Holders may be paid at different times
depending upon when Certificates for Ordinary Shares (or certificates for
Rights) or Book-Entry Confirmations with respect to Ordinary Shares (or
Rights, if applicable) are actually received by the Depositary. UNDER NO
CIRCUMSTANCES WILL INTEREST BE PAID ON THE ORDINARY SHARE OFFER PRICE TO BE
PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY
DELAY IN MAKING SUCH PAYMENT.
If you wish to have us tender any or all of the Ordinary Shares held by us
for your account, please so instruct us by completing, executing, detaching and
returning to us the instruction form set forth herein. If you authorize the
tender of your Ordinary Shares, all such Ordinary Shares will be tendered unless
otherwise
2
3
specified below. An envelope to return your instructions to us is enclosed. YOUR
INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO SUBMIT A
TENDER ON YOUR BEHALF PRIOR TO THE EXPIRATION DATE.
The Purchaser is not aware of any jurisdiction where the making of the
Offer is prohibited by administrative or judicial action pursuant to any valid
state statute. If the Purchaser becomes aware of any valid state statute
prohibiting the making of the Offer or the acceptance of Ordinary Shares
pursuant thereto, the Purchaser will make a good faith effort to comply with
such state statute or seek to have such statute declared inapplicable to the
Offer. If, after such good faith effort, the Purchaser cannot comply with any
such state statute, the Offer will not be made to (and tenders will not be
accepted from or on behalf of) Holders in such state. In any jurisdiction where
the securities, blue sky or other laws require the Offer to be made by a
licensed broker or dealer, the Offer shall be deemed to be made on behalf of the
Purchaser by Goldman, Sachs & Co. or one or more registered brokers or dealers
which are licensed under the laws of such jurisdiction.
3
4
INSTRUCTIONS WITH RESPECT TO THE
OFFER TO PURCHASE FOR CASH
ALL OF THE UNCONDITIONALLY ALLOTTED OR ISSUED
AND FULLY PAID ORDINARY SHARES
(INCLUDING THE ASSOCIATED SERIES A JUNIOR PARTICIPATING
PREFERRED SHARE PURCHASE RIGHTS)
OF
TRITON ENERGY LIMITED
The undersigned acknowledge(s) receipt of your letter, the Offer to
Purchase, dated July 17, 2001, and the related Letter of Transmittal (which, as
they may be amended and supplemented from time to time, together constitute the
"Offer") in connection with the offer by Amerada Hess (Cayman) Limited (the
"Purchaser"), a company limited by shares organized under the laws of the Cayman
Islands and a wholly owned subsidiary of Amerada Hess Corporation ("Amerada
Hess"), a Delaware corporation, to purchase all of the existing unconditionally
allotted or issued and fully paid ordinary shares, par value $0.01 per share,
and any further ordinary shares which are unconditionally allotted or issued and
fully paid before the date and time on which the Offer expires, including the
associated Series A junior participating preferred share purchase rights (the
"Ordinary Shares"), of Triton Energy Limited (the "Company"), a company limited
by shares organized under the laws of the Cayman Islands, at a price of $45.00
per Ordinary Share, on the terms and subject to the conditions set forth in the
Offer to Purchase and the related Letter of Transmittal.
This will instruct you to tender to the Purchaser the number of Ordinary
Shares indicated below (or if no number is indicated below, all Ordinary Shares)
which are held by you for the account of the undersigned, upon the terms and
subject to the conditions set forth in the Offer.
Number of Ordinary Shares to be Tendered*:
- -----------------------------------------------------------
* Unless otherwise indicated, it will be assumed that all of your Ordinary
Shares held by us for your account are to be tendered.
Date:
- --------------------------------------------------------------------------------
SIGN HERE
Signature(s):
- --------------------------------------------------------------------------------
Print Name(s):
- --------------------------------------------------------------------------------
Print Address(es):
- --------------------------------------------------------------------------------
Area Code and Telephone Number(s):
- -----------------------------------------------------------------
Taxpayer Identification or Social Security Number(s):
- -------------------------------------------------
1
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Ordinary Shares. The Offer is made solely by the Offer to Purchase dated
July 17, 2001 and the related Letter of Transmittal and any amendments or
supplements thereto and is being made to all holders of Ordinary Shares. The
Purchaser is not aware of any state or jurisdiction where the making of the
Offer or the acceptance of Ordinary Shares is prohibited by any applicable law.
If the Purchaser becomes aware of any state or jurisdiction where the making of
the Offer or the acceptance of Ordinary Shares is not in compliance with any
applicable law, the Purchaser will make a good faith effort to comply with such
law. If, after such good faith effort, the Purchaser cannot comply with such
law, the Offer will not be made to (nor will tenders be accepted from or on
behalf of) the holders of Ordinary Shares in such state or jurisdiction. In any
state or jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be
made on behalf of the Purchaser by Goldman, Sachs & Co. or one or more
registered brokers or dealers licensed under the laws of such state or
jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OF THE UNCONDITIONALLY ALLOTTED OR ISSUED AND FULLY PAID ORDINARY SHARES
(INCLUDING THE ASSOCIATED SERIES A JUNIOR PARTICIPATING PREFERRED SHARE
PURCHASE RIGHTS)
OF
TRITON ENERGY LIMITED
AT
$45.00 NET PER ORDINARY SHARE
BY
AMERADA HESS (CAYMAN) LIMITED
A WHOLLY OWNED SUBSIDIARY OF
AMERADA HESS CORPORATION
Amerada Hess (Cayman) Limited, a company limited by shares organized
under the laws of the Cayman Islands (the "Purchaser"), and a wholly owned
subsidiary of Amerada Hess Corporation, a Delaware corporation ("Amerada Hess"),
is offering to purchase all of the existing unconditionally allotted or issued
and fully paid ordinary shares, par value $0.01 per share, of Triton Energy
Limited (the "Company"), a company limited by shares organized under the laws of
the Cayman Islands, and any further Ordinary Shares which are unconditionally
allotted or issued and fully paid before the date and time on which the Offer
(as defined below) expires, including the associated Rights (as defined below)
(the "Ordinary Shares"), at a price of $45.00 per Ordinary Share, net to the
seller in cash, without interest thereon (the "Ordinary Share Offer Price"), on
the terms and subject to the conditions set forth in the Offer to Purchase dated
July 17, 2001 (the "Offer to Purchase") and in the related Letter of Transmittal
(which, as they may be amended and supplemented from time to time, together
constitute the "Offer"). Unless the context indicates otherwise, all references
to Ordinary Shares include references to the associated Series A junior
participating preferred share purchase rights (the "Rights") issued pursuant to
the Rights Agreement (the "Rights Agreement") dated as of March 25, 1996, as
amended, by and between the Company and Mellon Investor Services LLC (as
successor to Chemical Bank), as Rights Agent. In order to tender validly
Ordinary Shares, a holder of Ordinary Shares ("Holder") must tender the Rights.
Unless a Distribution Date (as defined in the Rights Agreement) has occurred,
the tender of an Ordinary Share will constitute the tender of the Rights.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, AUGUST 13, 2001, UNLESS THE
OFFER IS EXTENDED.
THE OFFER IS CONDITIONED ON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A
NUMBER OF ORDINARY SHARES WHICH REPRESENT AT LEAST 90% IN VALUE OF THE ORDINARY
SHARES (THE "MINIMUM CONDITION"). THE PURCHASER MAY AMEND THE MINIMUM CONDITION
TO EQUAL THE NUMBER OF ORDINARY SHARES REPRESENTING A MAJORITY OF THE TOTAL
NUMBER OF VOTES OF THE OUTSTANDING ORDINARY SHARES ON A FULLY DILUTED BASIS. THE
OFFER IS ALSO CONDITIONED ON THE EXPIRATION OR TERMINATION OF ANY APPLICABLE
WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976,
AS AMENDED (THE "HSR ACT"), AND THE SATISFACTION OF CERTAIN OTHER TERMS AND
CONDITIONS DESCRIBED IN SECTION 14 OF THE OFFER TO PURCHASE.
The Offer is being made pursuant to the Acquisition Agreement dated as
of July 9, 2001, by and among Amerada Hess, the Purchaser and the Company (the
"Acquisition Agreement"). The Acquisition Agreement provides that, in the event
that, following the purchase of Ordinary Shares pursuant to the Offer (including
any Subsequent Offering Period (as defined below)), Amerada Hess, the Purchaser
and any other subsidiary of Amerada Hess shall own Ordinary Shares which
represent at least 90% in value of the Ordinary Shares, the Company, Amerada
Hess and the Purchaser agree to take all necessary and appropriate action for
the Purchaser to effect a compulsory acquisition (the "Compulsory Acquisition")
of those outstanding Ordinary Shares not owned by Amerada Hess, the Purchaser or
any other subsidiary of Amerada Hess in accordance with Section 88 of the
Companies Law (2001 Second Revision), of the Cayman Islands (the "Companies
Law"), as promptly as practicable after the acceptance for payment of Ordinary
Shares pursuant to the Offer.
Promptly following the acceptance for payment of Ordinary Shares
pursuant to the initial offering period of the Offer and, if applicable, the
Subsequent Offering Period, of a number which represents less than 90% in value
of the Ordinary Shares, or the expiration of the Offer without the purchase of
any Ordinary Shares thereunder, (A) if the Offer has remained open for a minimum
of 20 business days, plus any extension of the Expiration Date (as defined
below) (up to an additional ten days) that has been required by the Company, and
(B) if requested by Amerada Hess or the Purchaser, in their sole discretion and
in accordance with applicable law, the Company shall (i) cause an application to
be made to the Grand Court of the Cayman Islands (the "Court") requesting the
Court to summon such class meetings of shareholders of the Company as the Court
may direct ("Shareholders' Meetings"), (ii) if directed by the Court, convene
such Shareholders' Meetings seeking the approval required under Section 86(2) of
the Companies Law and (iii) subject to such approvals being obtained, cause a
petition to be presented to the Court seeking the sanctioning of a scheme of
arrangement pursuant to Section 86 of the Companies Law (the "Scheme of
Arrangement") and file such other documents as are required to be duly filed
with the Court to effect the Scheme of Arrangement. Upon the Scheme of
Arrangement having been sanctioned by the Court and the Company having caused a
copy of the order of the Court sanctioning the Scheme of Arrangement to be duly
delivered to the Registrar of Companies of the Cayman Islands (the "Scheme
Effective Time"), by virtue of the Scheme of Arrangement: (i) each Ordinary
Share (and the Rights) issued and outstanding immediately prior to the Scheme
Effective Time (other than Ordinary Shares (and the Rights) which are held by
any wholly owned subsidiary of the Company, or which are held, directly or
indirectly, by Amerada Hess or any subsidiary of Amerada Hess (including the
Purchaser)) shall be, by virtue of the Scheme of Arrangement and without any
action required by the Holder thereof, transferred to the Purchaser in
consideration for $45.00 in cash per Ordinary Share transferred; and (ii) if
there are Preferred Shares outstanding on the commencement of the Scheme of
Arrangement, each 8% Convertible Preference Share, par value $0.01 per share, of
the Company (the "Preferred Shares") issued and outstanding immediately prior to
the Scheme Effective Time (other than Preferred Shares which are held by any
wholly owned subsidiary of the Company, or which are held, directly or
indirectly, by Amerada Hess or any subsidiary of Amerada Hess (including the
Purchaser)) shall be, by virtue of
2
the Scheme of Arrangement and without any action required by the Holder thereof,
transferred to the Purchaser in consideration for $180.00 in cash per Preferred
Share, plus any accumulated and unpaid dividends thereon through the Scheme
Effective Date.
Amerada Hess and the Purchaser have also entered into an Agreement (the
"Principal Shareholders Agreement") dated as of July 9, 2001 with certain
shareholders of the Company (the "Principal Shareholders") who beneficially own,
in the aggregate, Ordinary Shares and Preferred Shares representing
approximately 37.7% of the allotted and issued Ordinary Shares (34.2% on a fully
diluted basis). Each Preferred Share is convertible into four Ordinary Shares.
The Principal Shareholders have agreed, unless otherwise instructed by Amerada
Hess, to tender pursuant to the Offer their Ordinary Shares and to conditionally
convert their Preferred Shares and tender pursuant to the Offer the Ordinary
Shares into which the Preferred Shares are convertible. If the Ordinary Shares
beneficially owned by the Principal Shareholders are not purchased during the
initial offering period of the Offer (as it may be extended) and the Preferred
Shares are not converted and the resulting Ordinary Shares purchased in the
initial offering period of the Offer (as it may be extended), the Purchaser
shall purchase the Ordinary Shares and the Preferred Shares beneficially owned
by the Principal Shareholders following the expiration of the initial offering
period.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY (I) DETERMINED
THAT THE ACQUISITION AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY,
INCLUDING THE OFFER, ARE FAIR TO AND IN THE BEST INTERESTS OF THE COMPANY, THE
HOLDERS AND THE HOLDERS OF PREFERRED SHARES (OTHER THAN, IN THE CASE OF THE
TRANSACTIONS CONTEMPLATED BY THE PRINCIPAL SHAREHOLDERS AGREEMENT, THE PRINCIPAL
SHAREHOLDERS) AND (II) RESOLVED TO RECOMMEND THAT HOLDERS ACCEPT THE OFFER AND
TENDER THEIR ORDINARY SHARES, PURSUANT TO THE OFFER.
Tendering Holders whose Ordinary Shares are registered in their own
name and who tender directly to The Bank of New York, as Depositary (the
"Depositary"), will not be obligated to pay brokerage fees or commissions or,
except as set forth in Instruction 6 of the Letter of Transmittal, stock
transfer taxes on the purchase of Ordinary Shares pursuant to the Offer.
For purposes of the Offer, the Purchaser will be deemed to have
accepted for payment (and thereby purchased) Ordinary Shares validly tendered
and not properly withdrawn if and when the Purchaser gives oral or written
notice to the Depositary of the Purchaser's acceptance for payment of such
Ordinary Shares. On the terms and subject to the conditions of the Offer,
payment for Ordinary Shares accepted pursuant to the Offer will be made by
deposit of the purchase price therefor with the Depositary, which will act as
agent for tendering Holders for the purpose of receiving payments from the
Purchaser and transmitting payments to such tendering Holders whose Ordinary
Shares have been accepted for payment. In all cases, payment for Ordinary Shares
purchased pursuant to the Offer will be made only after timely receipt by the
Depositary of (i) the certificates evidencing such Ordinary Shares (the
"Certificates") or timely confirmation of a book-entry transfer of such Ordinary
Shares into the Depositary's account at the Book-Entry Transfer Facility (as
defined in Section 2 of the Offer to Purchase), pursuant to the procedures set
forth in Section 3 of the Offer to Purchase, (ii) the Letter of Transmittal (or
a copy thereof), properly completed and duly executed with any required
signature guarantees, or an Agent's Message (as defined in Section 2 of the
Offer to Purchase) in connection with a book-entry transfer and (iii) any other
documents required to be included with the Letter of Transmittal under the terms
and subject to the conditions of the Letter of Transmittal and the Offer to
Purchase. Under no circumstances will interest on the Ordinary Shares Offer
Price be paid by the Purchaser, regardless of any delay in making such payment
or extension of the Expiration Date.
The Rights are currently evidenced by the certificates for the Ordinary
Shares, and the tender by a Holder of such Holder's Ordinary Shares will also
constitute a tender of the Rights. Pursuant to the Offer, no separate payment
will be made by the Purchaser for the Rights. If separate certificates
representing the Rights are issued to Holders prior to the time a Holder's
Ordinary Shares are tendered pursuant to the Offer, certificates representing a
number of Rights equal to the number of Ordinary Shares tendered must be
delivered to the Depositary, or, if available, a Book-Entry Confirmation (as
defined in Section 2 of the Offer to Purchase) received by the Depositary with
respect thereto, in order for such Ordinary Shares to be validly tendered. If a
Distribution Date (as defined in Section 7 of the Offer to Purchase) occurs and
separate certificates representing the Rights are not distributed prior to the
time Ordinary Shares are tendered pursuant to the Offer, Rights may be tendered
prior to a Holder's receiving the certificates representing the Rights by use of
the guaranteed delivery procedures described in Section 3 of the Offer to
Purchase.
The term "Expiration Date" means 12:00 midnight, New York City time, on
Monday, August 13, 2001, unless and until the Purchaser, in its sole discretion
(but subject to the terms of the Acquisition Agreement and the applicable rules
and regulations of the Securities and Exchange Commission (the "Commission")),
shall have extended the period of time during which the Offer is open, in which
event the term "Expiration Date" shall mean the latest time and date at which
the Offer, as so extended by the Purchaser, shall expire. Subject to the terms
of the Acquisition Agreement and to the applicable rules and regulations of the
Commission and to applicable law, the Purchaser expressly reserves the right, in
its sole discretion, at any time or from time to time, to extend for any reason
the period of time during which the Offer is open, including upon the occurrence
of any of the events specified in Section 14 of the Offer to Purchase, by giving
notice of such extension to the Depositary and by making a public announcement
thereof not later than 9:00 a.m. New York City time, on the next business day
after the day on which the Offer was scheduled to expire.
Subject to the terms of the Acquisition Agreement, the applicable rules
and regulations of the Commission and to applicable law, the Purchaser also
expressly reserves the right, in its sole discretion, at any time and from time
to time, (i) to delay acceptance for payment of or, regardless of whether such
Ordinary Shares have theretofore been accepted for payment, payment for any
Ordinary Shares if any applicable waiting period under the HSR Act has not
expired or been terminated, (ii) to terminate the Offer on any scheduled
expiration date and not accept for payment any Ordinary Shares if any of the
conditions referred to or events specified in Section 14 of the Offer to
Purchase are not satisfied or any of the events have occurred, as applicable,
and (iii) to waive any condition or otherwise amend the Offer in any respect by
giving oral or written notice of such delay, termination, waiver or amendment to
the Depositary and by making a public announcement thereof.
The acquisition of Ordinary Shares by the Purchaser pursuant to the
Offer is subject to the HSR Act requirements. Under the provisions of the HSR
Act applicable to the purchase of Ordinary Shares pursuant to the Offer, such
purchase may not be made until the expiration of a fifteen calendar day waiting
period following the required filing of a Notification and Report Form under the
HSR Act by Amerada Hess, which Amerada Hess expects to submit on or about July
19, 2001. Accordingly, the waiting period under the HSR Act would then expire at
11:59 P.M., New York City time, on or about August 3, 2001, which is the
fifteenth calendar day following the scheduled filing of the Notification and
Report Form by Amerada Hess, unless early termination of the waiting period is
granted or Amerada Hess or the Company receives a request for additional
information or documentary material prior thereto. If either the Federal Trade
Division (the "FTC") or the Antitrust Division of the Department of Justice (the
"Antitrust Division") were to request additional information or documentary
material from Amerada Hess or the Company prior to the expiration of the fifteen
day waiting period, the waiting period would be extended and would expire at
11:59 P.M., New York City time, on the tenth calendar day after the date of
substantial compliance by Amerada Hess with such request. Thereafter, the
waiting period could be extended only by court order or by consent of Amerada
Hess. If the acquisition of Ordinary Shares is delayed pursuant to a request by
the FTC or the Antitrust Division for additional information or documentary
material pursuant to the HSR Act, the purchase of and payment for Ordinary
Shares pursuant to the Offer will be deferred until ten days after the request
is substantially complied with unless the waiting period is terminated sooner by
the FTC or the Antitrust Division (and assuming all of the other Offer
conditions have been satisfied or waived).
The Purchaser expressly reserves the right to modify the terms of the
Offer, provided, however, that the Purchaser shall not (and Amerada Hess shall
cause the Purchaser not to), without the prior written consent of the Company,
(i) reduce the number of Ordinary Shares to be purchased pursuant to the Offer,
(ii) reduce the Ordinary Share Offer Price, (iii) impose any additional
conditions to the Offer, (iv) change the form of consideration payable in the
Offer, (v) make any change to the terms of the Offer, including without
limitation the tender offer conditions, which is materially adverse in any
manner to the Holders, (vi) amend or waive the Minimum Condition, except that
Amerada Hess or the Purchaser may, at any time, amend the Minimum Condition to
equal the number of Ordinary Shares representing a majority of the total number
of votes of the outstanding Ordinary Shares representing a majority of the total
number of votes of the outstanding Ordinary Shares on a fully diluted basis or
(vii) extend the expiration date of the Offer, provided, however, that Amerada
Hess or the Purchaser may extend the expiration date: (A) as required by any
rule, regulation or interpretation of the Commission; or (B) in the event that
any condition to the Offer is not satisfied and, to the extent permitted in the
Acquisition Agreement, is not waived as of the scheduled Expiration Date, for
such successive periods up to ten business days at a time (or such longer period
as may be approved by the Company) until the earlier of the acceptance for
payment of any Ordinary Shares pursuant to the Offer or September 15, 2001.
Notwithstanding anything in the foregoing to the contrary, the Company may
require the Purchaser to extend the offer on one occasion for a maximum period
of ten days if at the scheduled expiration date, the tender offer conditions
(assuming for this purpose that the Minimum Condition has not been amended as
contemplated in clause (vi) of the preceding sentence) have not been satisfied.
Pursuant to Rule 14d-11 under the Securities Exchange Act of 1934, the
Purchaser, subject to certain conditions, may make available a subsequent
offering period, (the "Subsequent Offering Period") by extending the Offer on
one occasion for a period of not less than three business days and not to exceed
20 business days. The Purchaser may also make available a Subsequent Offering
Period by extending the Offer on one occasion for a period of up to a maximum of
20 business days if the Purchaser has amended the Minimum Condition and if, on
the Expiration Date of the initial period of the Offer, the number of Ordinary
Shares validly tendered and not properly withdrawn prior to the expiration of
the Offer represent less than 90% in value of the Ordinary Shares even if all
other Offer conditions have been satisfied. In addition, if the Purchaser amends
the Minimum Condition, the Company may require the Purchaser to make a
Subsequent Offering Period available to the Holders by extending the Offer on
one occasion, for up to a maximum of 20 business days.
If the Purchaser commences a Subsequent Offering Period, U.S. federal
securities laws require the Purchaser to accept immediately for payment all
tenders of Ordinary Shares during a Subsequent Offering Period and to pay
promptly for all Ordinary Shares tendered in any Subsequent Offering Period.
Any such extension, delay, termination, waiver or amendment will be
followed, as promptly as practicable, by public announcement thereof, with such
announcement in the case of an extension to be made no later than 9:00 a.m., New
York City time, on the next business day after the previously scheduled
Expiration Date. Subject to applicable law (including Rules 14d-4(c), 14d-6(c)
and 14e-1 under the Exchange Act, which require that material changes be
promptly disseminated to Holders in a manner reasonably designed to inform them
of such
3
changes) and without limiting the manner in which the Purchaser may choose to
make any public announcement, the Purchaser will have no obligation to publish,
advertise or otherwise communicate any such public announcement other than by
issuing a press release to the Dow Jones News Service or as otherwise may be
required by applicable law.
Except as otherwise provided below, tenders of Ordinary Shares made
pursuant to the Offer are irrevocable. Ordinary Shares tendered pursuant to the
Offer may be withdrawn at any time prior to the Expiration Date and, unless
theretofore accepted for payment by the Purchaser pursuant to the Offer, may
also be withdrawn at any time after September 14, 2001, or at such later time as
may apply if the Offer is extended (excluding any Subsequent Offering Period).
In the event the Purchaser provides a Subsequent Offering Period following the
Offer, no withdrawal rights will apply to Ordinary Shares tendered during such
Subsequent Offering Period or to Ordinary Shares previously tendered in the
Offer and accepted for payment, and the Purchaser will promptly purchase and pay
for any Ordinary Shares tendered at the same price paid in the Offer. For a
withdrawal to be effective, a written or facsimile notice of withdrawal must be
timely received by the Depositary at its address set forth on the back cover of
the Offer to Purchase. Any such notice of withdrawal must specify the name of
the person who tendered the Ordinary Shares to be withdrawn, the number of
Ordinary Shares to be withdrawn and the name of the registered holder of the
Ordinary Shares, if different from that of the person who tendered such Ordinary
Shares. If the Certificates to be withdrawn have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such
certificates, the serial numbers shown on such certificates must be submitted to
the Depositary and the signature(s) on the notice of withdrawal must be
guaranteed by an Eligible Institution (as defined in Section 3 of the Offer to
Purchase), unless such Ordinary Shares have been tendered for the account of an
Eligible Institution. Ordinary Shares tendered pursuant to the procedure for
book-entry transfer as set forth in Section 3 of the Offer to Purchase may be
withdrawn only by means of the withdrawal procedures made available by the
Book-Entry Transfer Facility, must specify the name and number of the account at
the Book-Entry Transfer Facility to be credited with the withdrawn Ordinary
Shares and must otherwise comply with the Book-Entry Transfer Facility's
procedures.
Withdrawals of tendered Ordinary Shares may not be rescinded without
the Purchaser's consent and any Ordinary Shares properly withdrawn will
thereafter be deemed not validly tendered for purposes of the Offer. All
questions as to the form and validity (including time of receipt) of notices of
withdrawal will be determined by the Purchaser, in its sole discretion, which
determination will be final and binding. None of Amerada Hess, the Purchaser,
the Depositary, the Information Agent, the Dealer Managers or any other person
will be under any duty to give notification of any defects or irregularities in
any notice of withdrawal or incur any liability for failure to give any such
notification. Any Ordinary Shares properly withdrawn may be re-tendered at any
time prior to the Expiration Date by following any of the procedures described
in Section 3 of the Offer to Purchase.
The receipt of cash for Ordinary Shares pursuant to the Offer, the
Compulsory Acquisition or the Scheme of Arrangement by a shareholder will be a
taxable transaction for U.S. federal income tax purposes and may also be a
taxable transaction under applicable state, local or foreign tax laws.
Generally, a shareholder who receives cash for Ordinary Shares will recognize
gain or loss for U.S. federal income tax purposes equal to the difference, if
any, between the amount of cash received and such shareholder's adjusted tax
basis in the Ordinary Shares exchanged therefor. Assuming that such Ordinary
Shares constitute capital assets in the hands of the shareholder, such gain or
loss will be capital gain or loss. All shareholders should consult with their
own tax advisors as to the particular tax consequences of the Offer to them,
including the applicability and effect of the alternative minimum tax and any
state, local and foreign income tax laws and of changes in such tax laws. For a
more complete description of certain U.S. federal income tax consequences of the
Offer see Section 5 of the Offer to Purchase.
The information required to be disclosed by paragraph (d)(1) of Rule
14d-6 under the Exchange Act, is contained in the Offer to Purchase and is
incorporated herein by reference.
No appraisal rights are available to Holders in connection with the
Offer. In the event of a Compulsory Acquisition, a Dissenting Shareholder (as
defined in Section 11 of the Offer to Purchase) may make an application to the
Court for an order to prevent the Ordinary Shares from being compulsorily
acquired pursuant to Section 88 of the Companies Law as described in Section 11
of the Offer to Purchase. The Purchaser has been advised that, although there
are no Cayman Islands cases that have considered the point, English case law
which would be persuasive, although not of binding effect before the Court, has
established that an application by a shareholder requires allegations of
unfairness to be established and that the burden is on the applicant to
establish the allegation. The English courts have traditionally attached
considerable weight to the fact that a large body of shareholders have accepted
the Offer. The Purchaser has also been advised by its Cayman Islands counsel
that there is case law to suggest that a recommendation by the Company's board
of directors based upon independent advice, such as a fairness opinion, is
regarded as significant in the determination of any unfairness.
The Company has provided the Purchaser with the Company's shareholder
lists and security position listings in respect of the Ordinary Shares for the
purpose of disseminating the Offer to Purchase, the Letter of Transmittal and
other relevant materials to Holders. The Offer to Purchase, the Letter of
Transmittal and any other relevant materials will be mailed to record holders
and will be furnished, for subsequent transmittal to beneficial owners of
Ordinary Shares, to brokers, dealers, commercial banks, trust companies and
similar persons whose names, or the names of whose nominees, appear on the
Company's list of Holders, or, where applicable, who are listed as participants
in a clearing agency's security position listing.
THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
Requests for copies of the Offer to Purchase, the related Letter of
Transmittal and other tender offer materials may be directed to the Information
Agent as set forth below, and copies will be furnished promptly at the
Purchaser's expense. Questions or requests for assistance may be directed to the
Information Agent or the Dealer Managers as set forth below.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokerage Firms, Please Call: (212) 269-5550
Shareholders, Please Call: (800) 758-5880
The Dealer Managers for the Offer are:
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Call Collect: (212) 902-1000
TOLL-FREE: (800) 323-5678
July 17, 2001
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EXHIBIT (d)(1)
================================================================================
ACQUISITION AGREEMENT
BY AND AMONG
AMERADA HESS CORPORATION,
AMERADA HESS (CAYMAN) LIMITED
AND
TRITON ENERGY LIMITED
DATED AS OF JULY 9, 2001
================================================================================
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TABLE OF CONTENTS
ACQUISITION AGREEMENT.........................................................................1
ARTICLE I DEFINITIONS.........................................................................2
Section 1.1 Definitions...................................................................2
ARTICLE II THE OFFER..........................................................................8
Section 2.1 The Offer.....................................................................8
Section 2.2 Company Actions..............................................................10
Section 2.3 Composition of the Board of Directors........................................12
ARTICLE III THE SCHEME OF ARRANGEMENT........................................................13
Section 3.1 The Scheme of Arrangement....................................................13
Section 3.2 Application to the Court; Effective Time of the Scheme of Arrangement;
Scheme of Arrangement Closing................................................14
Section 3.3 Terms of the Scheme: Transfer of Share Capital...............................16
Section 3.4 Terms of the Scheme of Arrangement; Payment..................................16
Section 3.5 Stock Option and Other Plans.................................................17
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................................19
Section 4 Representations and Warranties of the Company................................19
Section 4.1 Due Organization, Good Standing and Corporate Power..........................19
Section 4.2 Authorization and Validity of this Agreement.................................19
Section 4.3 Capitalization...............................................................19
Section 4.4 Consents and Approvals; No Violations........................................20
Section 4.5 Company Reports and Financial Statements.....................................21
Section 4.6 Absence of Certain Changes...................................................22
Section 4.7 Title to Properties; Encumbrances...........................................22
Section 4.8 Compliance with Laws.........................................................23
Section 4.9 Litigation...................................................................23
Section 4.10 Employee Benefit Plans.......................................................23
Section 4.11 Employment Relations and Agreements..........................................26
Section 4.12 Taxes........................................................................27
Section 4.13 Liabilities..................................................................29
Section 4.14 Intellectual Property........................................................29
Section 4.15 Proxy Statement; Offer Documents and Schedule 14D-9..........................30
Section 4.16 Broker's or Finder's Fee.....................................................30
Section 4.17 Certain Contracts and Arrangements...........................................30
Section 4.18 Environmental Laws and Regulations...........................................32
Section 4.19 Takeover Statutes............................................................33
Section 4.20 Voting Requirements..........................................................33
Section 4.21 Rights Agreement.............................................................33
Section 4.22 Opinion of Financial Advisor.................................................34
Section 4.23 Insurance....................................................................34
Section 4.24 Permitted Transfer...........................................................34
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Section 4.25 Impact on Conversion Rights..................................................34
Section 4.26 Prepayments..................................................................34
Section 4.27 Gas Imbalances...............................................................34
Section 4.28 Non-consent Operations.......................................................35
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB...................................35
Section 5 Representations and Warranties of Parent and Sub.............................35
Section 5.1 Due Organization, Good Standing and Corporate Power..........................35
Section 5.2 Authorization and Validity of Agreement......................................35
Section 5.3 Consents and Approvals; No Violations.......................................35
Section 5.4 Offer Documents, Schedule 14D-9 and Proxy Statement..........................36
Section 5.5 Broker's or Finder's Fee.....................................................36
Section 5.6 Sub's Operations.............................................................37
Section 5.7 Funds........................................................................37
Section 5.8 Litigation...................................................................37
ARTICLE VI CERTAIN COVENANTS.................................................................37
Section 6.1 Access to Information Concerning Properties and Records......................37
Section 6.2 Confidentiality..............................................................38
Section 6.3 Conduct of the Business of the Company.......................................38
Section 6.4 Compulsory Acquisition.......................................................41
Section 6.5 Commercially Reasonable Efforts; Further Assurances..........................41
Section 6.6 No Solicitation of Other Offers..............................................42
Section 6.7 Notification of Certain Matters..............................................44
Section 6.8 HSR Act......................................................................45
Section 6.9 Directors' and Officers' Indemnification and Insurance.......................45
Section 6.10 Rights Agreement.............................................................48
Section 6.11 Public Announcements.........................................................48
Section 6.12 Benefit Plans; Vacation; Employment Agreements...............................48
Section 6.13 Agreements Relating to Preferred Shares......................................49
ARTICLE VII CONDITIONS PRECEDENT.............................................................50
Section 7.1 Conditions Precedent to Each Party's Obligation to
Effect the Scheme of Arrangement.............................................50
ARTICLE VIII TERMINATION AND ABANDONMENT.....................................................50
Section 8.1 Termination..................................................................50
Section 8.2 Effect of Termination........................................................52
ARTICLE IX MISCELLANEOUS.....................................................................53
Section 9.1 Fees and Expenses............................................................53
Section 9.2 Investigation and Agreement by the Parties;
No other Representations or Warranties.......................................54
Section 9.3 Extension; Waiver............................................................55
Section 9.4 Notices......................................................................55
Section 9.5 Entire Agreement.............................................................56
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Section 9.6 Binding Effect; Benefit; Assignment..........................................57
Section 9.7 Amendment and Modification...................................................57
Section 9.8 Further Actions..............................................................57
Section 9.9 Headings.....................................................................57
Section 9.10 Counterparts.................................................................57
Section 9.11 APPLICABLE LAW...............................................................57
Section 9.12 Severability.................................................................58
Section 9.13 Interpretation...............................................................58
Section 9.14 Specific Enforcement.........................................................58
Section 9.15 Waiver of Jury Trial.........................................................58
Section 9.16 No Recourse Against Others...................................................58
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ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 9, 2001 (this "Agreement"), by
and among AMERADA HESS CORPORATION, a corporation organized under the laws of
Delaware ("Parent"), AMERADA HESS (CAYMAN) LIMITED, a company limited by shares
organized under the laws of the Cayman Islands and a wholly-owned subsidiary of
Parent ("Sub"), and TRITON ENERGY LIMITED, a company limited by shares organized
under the laws of the Cayman Islands (the "Company").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Parent, Sub and the
Company have approved this Agreement pursuant to which Parent intends to acquire
through Sub the Company by means of the Offer (as defined below) which may be
followed by either (i) a Compulsory Acquisition (as defined below) pursuant to
Section 88 of the Companies Law or (ii) a Scheme of Arrangement (as defined
below) in accordance with Section 86 of the Companies Law on the terms and
subject to the conditions set forth in this Agreement;
WHEREAS, in contemplation of the acquisition of the Company by Parent,
it is proposed that Sub commence a cash tender offer (the "Offer") to purchase,
on the terms and subject to the conditions set forth in this Agreement, any and
all of the existing unconditionally allotted or issued and fully paid ordinary
shares, par value $0.01 per share of the Company, and any further ordinary
shares which are unconditionally allotted or issued and fully paid (upon
conversion of the Preferred Shares (as defined below) or otherwise) before the
Acceptance Date (including the associated Series A Junior Participating
Preferred Share Purchase Rights (the "Rights") issued pursuant to the Rights
Agreement, dated as of March 25, 1996, by and between the Company and Chemical
Bank, as Rights Agent, as amended pursuant to amendments dated August 2, 1996,
August 30, 1998 and January 5, 1999 (the "Rights Agreement")) (the "Ordinary
Shares"), at a price of U.S. $45.00 per Ordinary Share net to the seller in cash
(the "Ordinary Share Offer Price");
WHEREAS, the Board of Directors of the Company (i) has unanimously
determined that this Agreement and the Principal Shareholders Agreement (as
defined below) and the transactions contemplated hereby or thereby, including
the Offer, the Scheme of Arrangement and the Compulsory Acquisition provided for
by this Agreement, are fair to and in the best interests of the Company and the
holders of the Ordinary Shares and Preferred Shares (other than, in the case of
the transactions contemplated by the Principal Shareholders Agreement, the
Principal Shareholders), (ii) has unanimously approved the execution, delivery
and performance of the Transaction Documents by the Company and the consummation
of the transactions contemplated thereby, including the Offer, the Scheme of
Arrangement and the Compulsory Acquisition provided for by this Agreement and
(iii) has unanimously resolved, subject to Section 6.6 hereof, to recommend that
the holders of Ordinary Shares accept the Offer and tender their Ordinary Shares
pursuant to the Offer and that the holders of Ordinary Shares and Preferred
Shares approve the Scheme of Arrangement, if such approval is sought; and
WHEREAS, Parent and Sub are unwilling to enter into this Agreement
unless HM4 Triton L.P. and the other shareholders listed on Annex A to the
Principal Shareholders
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Agreement (the "Principal Shareholders"), concurrently with the execution and
delivery of this Agreement, enter into an agreement (the "Principal Shareholders
Agreement" and together with this Agreement, the "Transaction Documents") by and
among Parent, Sub, the Company and the Principal Shareholders providing for,
among other things, the agreement of the Principal Shareholders to sell their
Shares to Sub and for Sub to purchase such Shares.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. When used in this Agreement, the following
terms shall have the respective meanings specified therefor below (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined).
"Acceptance Date" shall have the meaning set forth in Section 2.3(a).
"Acquisition Proposal" shall have the meaning set forth in Section
6.6(b).
"Affiliate" of any Person shall mean any Person directly or indirectly
controlling, controlled by, or under common control with, such Person; provided,
that, for the purposes of this definition, "control" (including with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or partnership
interests, by contract or otherwise.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Antitrust Authorities" shall mean the Federal Trade Commission, the
Antitrust Division of the United States Department of Justice, the attorneys
general of the several states of the United States and any other Governmental
Entity having jurisdiction with respect to the transactions contemplated hereby
pursuant to applicable Antitrust Laws.
"Antitrust Laws" shall mean the Sherman Act, as amended, the Clayton
Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and
all other federal, state and foreign statutes, rules, regulations, orders,
decrees, administrative and judicial doctrines, and other laws that are designed
or intended to prohibit, restrict or regulate actions that may have the purpose
or effect of monopolization or restraint of trade.
"Business Day" shall mean any day except a Saturday, a Sunday or any
other day on which commercial banks are required or authorized to close in New
York, New York, and shall consist of the time period from 12:01 a.m. through
12:00 midnight, New York time.
"Cash Consideration" shall have the meaning set forth in Section
3.3(a)(ii).
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"Cash Option Payment" shall have the meaning set forth in Section
3.5(c).
"Claims" shall have the meaning set forth in Section 4.18(b).
"COBRA" shall have the meaning set forth in Section 4.10(b).
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended, and the regulations promulgated, and the rulings issued, thereunder.
"Commission" shall mean the U.S. Securities and Exchange Commission.
"Commission Filings" shall have the meaning set forth in Section 4.5.
"Companies Law" shall have the meaning set forth in Section 3.1(b).
"Company" shall have the meaning set forth in the preamble hereto.
"Company Disclosure Letter" shall mean the disclosure letter delivered
by the Company to Parent and Sub upon or prior to entering into this Agreement.
"Company Property" shall have the meaning set forth in Section 4.18(b).
"Completed Commission Filings" shall mean the Commission Filings filed
prior to the date hereof.
"Compulsory Acquisition" shall have the meaning set forth in Section
6.4.
"Compulsory Completion Date" shall have the meaning set forth in Section
2.3(c).
"Conditional Option Exercise" shall have the meaning set forth in
Section 3.5(b).
"Confidentiality Agreement" shall have the meaning set forth in Section
6.2.
"Continuing Directors" shall have the meaning set forth in Section
2.3(c).
"Contracts" shall have the meaning set forth in Section 4.17.
"Court" shall have the meaning set forth in Section 3.1(b).
"Discontinuance Date" shall have the meaning set forth in Section
2.3(c).
"Employee Benefit Plans" shall have the meaning set forth in Section
4.10(a).
"Environmental Claims" shall have the meaning set forth in Section
4.18(b).
"Environmental Law" shall have the meaning set forth in Section 4.18(b).
"ERISA" shall have the meaning set forth in Section 4.10(a).
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Exchange Agent" shall have the meaning set forth in Section 3.4(b).
"fully-diluted basis" or "on a fully-diluted basis" shall have the
meaning set forth in Annex A hereto.
"GAAP" shall mean generally accepted accounting principles in the United
States of America consistently applied, as in effect from time to time.
"Governmental Entity" shall mean any domestic or foreign court, arbitral
tribunal, administrative agency or commission or other governmental or
regulatory agency or authority or any securities exchange.
"Hazardous Materials" shall have the meaning set forth in Section
4.18(b).
"Holder" shall have the meaning set forth in Section 3.3(a)(i).
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"Immigration Laws" shall have the meaning set forth in Section 4.11.
"Indemnified Parties" shall have the meaning set forth in Section
6.9(b).
"Intellectual Property" shall mean any of the following: (i) U.S. and
non-U.S. patents, and applications for either; (ii) registered and unregistered
trademarks, service marks and other indicia of origin, pending trademark and
service mark registration applications, and intent-to-use registrations or
similar reservations of marks; (iii) registered and unregistered copyrights and
mask works, and applications for registration of either; (iv) internet domain
names, applications and reservations therefor, uniform resource locators and the
corresponding Internet sites; (v) trade secrets and proprietary information not
otherwise listed in (i) through (iv) above, including, without limitation,
unpatented inventions, invention disclosures, moral and economic rights of
authors and inventors (however denominated), confidential information, technical
data, customer lists, corporate and business names, trade names, trade dress,
brand names, know-how, show-how, mask works, formulae, methods (whether or not
patentable), designs, processes, procedures, technology, source codes, object
codes, computer software programs, databases, data collections and other
proprietary information or material of any type, and all derivatives,
improvements and refinements thereof, howsoever recorded, or unrecorded; and
(vi) any good will associated with any of the foregoing.
"Investor Rights Agreement" shall mean the Shareholders Agreement dated
as of September 30, 1998 by and between the Company and HM4 Triton, L.P., as
amended on January 20, 1999 and July 9, 2001.
"knowledge of the Company" shall mean the actual knowledge of James C.
Musselman, President and Chief Executive Officer of the Company; A. E. Turner,
III, Chief Operating
4
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Officer of the Company; W. Greg Dunlevy, Chief Financial Officer of the Company;
Marvin Garrett, Vice President, Production of the Company; Brian Maxted, Senior
Vice President, Exploration, of the Company; and Thomas Murphy, General Counsel
of the Company. Solely for the limited purpose of Section 4.12(c)(xiv),
"knowledge of the Company" shall also include the actual knowledge of John
Abernethy, Vice President, Tax of the Company.
"Letter of Transmittal" shall have the meaning set forth in Section
2.1(c).
"Lien" shall have the meaning set forth in Section 4.3.
"Material Adverse Effect", with respect to any Person, shall mean any
event, change, occurrence, effect, fact, violation or circumstance having a
material adverse effect on (i) the ability of such Person to perform its
obligations under this Agreement or to consummate the transactions contemplated
hereby on a timely basis or (ii) the business, assets, liabilities, results of
operations or condition (financial or otherwise) of such Person and its
Subsidiaries, taken as a whole; provided, however that effects relating to (a)
the economy in general, (b) changes in oil, gas or other hydrocarbon commodity
prices or other changes affecting the oil and gas industry generally or (c) the
announcement of the transactions contemplated hereby shall be deemed to not
constitute a "Material Adverse Effect" or be considered in determining whether a
"Material Adverse Effect" has occurred.
"Material Contracts" shall have the meaning set forth in Section 4.17.
"Minimum Condition" shall have the meaning set forth in Annex A.
"Multiemployer Plan" shall have the meaning set forth in Section
4.10(b).
"NLRB" shall have the meaning set forth in Section 4.11.
"Offer" shall have the meaning set forth in the second recital hereto.
"Offer Documents" shall have the meaning set forth in Section 2.1(c).
"Offer to Purchase" shall have the meaning set forth in Section 2.1(c).
"Offer Termination Date" shall have the meaning set forth in Section
2.1(a).
"Oil and Gas Properties" means leasehold and other interests in oil, gas
and other material properties owned or otherwise held in the name of the Company
or any of its Subsidiaries.
"Options" shall have the meaning set forth in Section 3.5(a).
"Ordinary Cash Consideration" shall have the meaning set forth in
Section 3.3(a)(i).
"Ordinary Shares" shall have the meaning set forth in the second recital
hereto.
"Ordinary Share Offer Price" shall have the meaning set forth in the
second recital hereto.
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"issued and outstanding" or "outstanding" shall mean, in respect of
Ordinary Shares or Preferred Shares, that such shares are issued, unless the
context otherwise requires.
"Parent" shall have the meaning set forth in the preamble hereto.
"Parent Designees" shall have the meaning set forth in Section 2.3(a).
"Payment Fund" shall have the meaning set forth in Section 3.4(c).
"Permits" shall have the meaning set forth in Section 4.8(b).
"Person" shall mean and include an individual, a partnership, a limited
liability partnership, a joint venture, a corporation, a limited liability
company, a trust, an unincorporated organization, a group and a government or
other department or agency thereof.
"Preferred Cash Consideration" shall have the meaning set forth in
Section 3.3(a)(ii).
"Preferred Shares" shall mean the 8% Convertible Preference Shares, par
value $0.01 per share, of the Company.
"Principal Shareholders" shall have the meaning set forth in the fourth
recital hereto.
"Principal Shareholders Agreement" shall have the meaning set forth in
the fourth recital hereto.
"Proxy Statement" shall have the meaning set forth in Section 3.2(b).
"Record Date" shall have the meaning set forth in Section 3.4(c).
"Registered Address" shall have the meaning set forth in section 3.4(c).
"Registrar" shall have the meaning set forth in section 3.2(d).
"Release" or "Released" shall have the meaning set forth in Section
4.18(b).
"Returns" shall have the meaning set forth in Section 4.12(a).
"Rights" shall have the meaning set forth in the second recital hereto.
"Rights Agreement" shall have the meaning set forth in the second
recital hereto.
"Schedule 14D-9" shall have the meaning set forth in Section 2.2(c).
"Schedule TO" shall have the meaning set forth in Section 2.1(c).
"Scheme Closing" shall have the meaning set forth in Section 3.2(c).
"Scheme Closing Date" shall have the meaning set forth in section
3.2(c).
6
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"Scheme Effective Date" shall have the meaning set forth in Section
3.2(d).
"Scheme Effective Time" shall have the meaning set forth in section
3.2(d).
"Scheme Pre-Closing" shall have the meaning set forth in section 3.2(b).
"Scheme of Arrangement" shall have the meaning set forth in Section
3.1(b).
"Scheme Ordinary Shares" shall have the meaning set forth in Section
3.3(a)(i).
"Scheme Preferred Shares" shall have the meaning set forth in Section
3.3(a)(ii).
"Scheme Shares" shall have the meaning set forth in section 3.3(a)(ii).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Severance Policy" shall mean the Company's severance policy as
disclosed on Schedule 4.10(a) of the Company Disclosure Letter.
"Severance Protection Plans" shall have the meaning set forth in Section
6.12(c).
"Shares" shall mean the Ordinary Shares and the Preferred Shares.
"Shareholders' Meetings" shall have the meaning set forth in Section
3.2(a).
"Stock Incentive Plans" shall have the meaning set forth in Section
3.5(d).
"Stock Plans" shall have the meaning set forth in Section 3.5(a).
"Sub" shall have the meaning set forth in the preamble hereto.
"Subsequent Offer Period" shall have the meaning set forth in Section
2.1(a).
"Subsidiary", with respect to any Person, shall mean and include (i) any
partnership of which such Person or any of its Subsidiaries is a general partner
and (ii) any other entity in which such Person or any of its Subsidiaries owns
or has the power to vote fifty percent (50%) or more of the equity interests in
such entity having general voting power to participate in the election of the
governing body of such entity.
"Succession Date" shall have the meaning set forth in Section 6.12(d).
"Superior Proposal" shall have the meaning set forth in Section 6.6(b).
"Taxes" shall have the meaning set forth in Section 4.12(a).
"Tender Offer Conditions" shall have the meaning set forth in Section
2.1(a).
"Transaction" shall have the meaning set forth in Annex A.
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"Transaction Documents" shall have the meaning set forth in the fourth
recital hereto.
"WARN" shall have the meaning set forth in Section 4.11.
ARTICLE II
THE OFFER
Section 2.1 The Offer. Provided that this Agreement shall not have
been terminated in accordance with Article VIII hereof and so long as none of
the events set forth on Annex A hereto (the "Tender Offer Conditions") shall
have occurred and are continuing, as promptly as practicable after the date of
this Agreement (but in any event not later than seven (7) Business Days after
the first public announcement of the execution and delivery of this Agreement),
Sub shall commence (within the meaning of Rule 14d-2 promulgated under the
Exchange Act) the Offer. The initial expiration date of the Offer shall be the
twentieth (20th) Business Day following the date the Offer is commenced within
the meaning of Rule 14d-2 under the Exchange Act. The obligation of Sub to
accept for payment and to pay for any Ordinary Shares tendered in the Offer and
not withdrawn shall be subject only to the Tender Offer Conditions, any of
which, subject to the proviso below, may be waived by Parent or Sub in whole or
in part in their sole discretion. The Tender Offer Conditions are for the sole
benefit of Parent and Sub and may be asserted by Parent and Sub regardless of
the circumstances giving rise to any such Tender Offer Conditions. Parent and
Sub expressly reserve the right to modify the terms of the Offer, provided,
however, that neither Parent nor Sub shall (and Parent shall cause Sub not to),
without the prior written consent of the Company, (i) reduce the number of
Ordinary Shares to be purchased pursuant to the Offer, (ii) reduce the Ordinary
Share Offer Price, (iii) impose any additional conditions to the Offer, (iv)
change the form of consideration payable in the Offer, (v) make any change to
the terms of the Offer, including without limitation the Tender Offer
Conditions, which is materially adverse in any manner to the holders of the
Ordinary Shares, (vi) amend or waive the Minimum Condition, except that Parent
or Sub may, at any time, amend the Minimum Condition to equal the number of
Ordinary Shares representing a majority of the total number of votes of the
outstanding Ordinary Shares on a fully-diluted basis or (vii) extend the
expiration date of the Offer, provided, however, that Parent or Sub may extend
the expiration date of the Offer: (A) as required by any rule, regulation or
interpretation of the Commission; or (B) in the event that any condition to the
Offer is not satisfied and, to the extent permitted herein, is not waived as of
the scheduled expiration date of the Offer, for such successive periods for up
to ten (10) Business Days at a time (or such longer period as shall be approved
by the Company) until the earlier of the acceptance for payment of any Ordinary
Shares pursuant to the Offer or the date (the "Offer Termination Date") that is
sixty (60) days from the date of commencement of the Offer. Notwithstanding
anything in the foregoing to the contrary, the Company may require Sub to extend
the Offer on one occasion for a maximum period of ten (10) days if at the
scheduled expiration date of the Offer, the Tender Offer Conditions (assuming
for this purpose that the Minimum Condition has not been amended in accordance
with clause (vi) of the proviso contained above in this Section 2.1(a)) have not
been satisfied. In addition, notwithstanding anything in this Section 2.1(a) to
the contrary, if not already disclosed in the Offer to Purchase (as defined
below), Parent and Sub may amend the Schedule TO (as defined below) to permit
the announcement of a subsequent offering period (as such term is defined in
Rule 14d-1 promulgated under the Exchange Act (the "Subsequent Offer Period"))
to the Offer, and Sub
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may include a Subsequent Offer Period to the Offer for up to a maximum of twenty
(20) Business Days.
(a) Notwithstanding the foregoing, if Sub amends the Minimum
Condition as permitted by Section 2.1(a) of this Agreement and accepts Ordinary
Shares tendered and not withdrawn for payment pursuant to the terms of the
Offer, then (i) Sub may make available a Subsequent Offer Period by extending
the Offer on one occasion for up to a maximum of twenty (20) Business Days if,
on the expiration date of the initial period of the Offer, the number of
Ordinary Shares validly tendered and not withdrawn pursuant to the Offer
represent less than the amount of Ordinary Shares necessary to satisfy the
Minimum Condition (assuming for this purpose it has not been amended in
accordance with clause (vi) of the proviso contained in Section 2.1(a)),
notwithstanding that all other Tender Offer Conditions have been satisfied and
(ii) the Company may require Sub to make a Subsequent Offer Period available to
the holders of Ordinary Shares by extending the Offer on one occasion, for up to
a maximum of twenty (20) Business Days. If at any expiration date of the Offer,
(i) the number of Ordinary Shares validly tendered into and not withdrawn from
the Offer, including all Ordinary Shares validly tendered and not withdrawn from
the Offer by the Principal Shareholders (including, for this purpose the
conditional surrender for conversion of, and tender of Ordinary Shares issuable
upon conversion of, Preferred Shares in accordance with the Principal
Shareholders Agreement) will result in the Minimum Condition being satisfied and
(ii) all other Tender Offer Conditions have been satisfied or waived, Sub shall
be obligated to accept for payment and pay for all such Ordinary Shares so
tendered. If Sub accepts for payment any Ordinary Shares in the Offer, Parent or
Sub shall pay for all of the Ordinary Shares tendered and not withdrawn in the
Offer as soon as practicable after the scheduled expiration date of the Offer,
as it may be extended pursuant to this Agreement, but in any event no later than
the third (3rd) Business Day after the date Parent or Sub accept for payment
such Ordinary Shares and shall pay for all Ordinary Shares tendered in the
Subsequent Offer Period, if applicable, promptly after such Ordinary Shares are
tendered.
(b) As soon as reasonably practicable on the date the Offer
is commenced, Parent and Sub shall file with the Commission a Tender Offer
Statement on Schedule TO (together with all amendments and supplements thereto,
the "Schedule TO") with respect to the Offer. The Schedule TO shall contain
(included as an exhibit) or shall incorporate by reference an offer to purchase
(the "Offer to Purchase") and the related letter of transmittal (the "Letter of
Transmittal") and summary advertisement, as well as all other information and
exhibits required by law or pursuant to which the Offer will be made (which
Schedule TO, Offer to Purchase, Letter of Transmittal, summary advertisement and
such other information and exhibits, together with any supplements or amendments
thereto, are referred to herein collectively as the "Offer Documents"). The
Company and its counsel shall be given reasonable opportunity to review and
comment upon the Offer Documents prior to their filing with the Commission or
dissemination to the holders of the Ordinary Shares, as the case may be. The
Offer Documents (x) shall comply in all material respects with the provisions of
applicable federal securities laws and (y) on the date filed with the Commission
and the date first published, sent or given to the holders of the Ordinary
Shares, shall not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading in light of the circumstances under
which they are made, except that no representation is made by Parent or Sub with
respect to any information supplied by the Company expressly for inclusion in
the Offer Documents. Each of Parent and Sub, on the one
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hand, and the Company, on the other hand, agrees to promptly correct any
information provided by it for use in the Offer Documents if and to the extent
that the Offer Documents shall be, or shall have become, false or misleading in
any material respect, and Parent and Sub further agree to take all steps
necessary to cause the Schedule TO as so corrected, to be filed promptly with
the Commission and the other Offer Documents as so corrected to be disseminated
to holders of the Ordinary Shares, in each case as and to the extent required by
applicable federal securities laws. Each of Parent and Sub agrees to provide the
Company and its counsel with information with respect to any oral comments and
with copies of any written comments Parent and Sub or their counsel may receive
from the Commission or its staff with respect to the Offer Documents promptly
after the receipt of such comments and shall provide the Company and its counsel
a reasonable opportunity to participate in the response of Parent or Sub to such
comments prior to delivery thereof to the Commission, including the opportunity
to participate with Parent and Sub or their counsel in any discussions with the
Commission or its staff. In conducting the Offer, Parent and Sub shall comply in
all material respects with applicable federal securities laws, including,
without limitation, the Exchange Act.
Section 2.2 Company Actions. The Company hereby consents to the
Offer and the Scheme of Arrangement and represents and warrants that:
(a) Subject to Section 6.6, the Board of Directors of the
Company (at a meeting duly called and held) by unanimous vote has (i) determined
that the Transaction Documents and the transactions contemplated thereby,
including the Offer, the Scheme of Arrangement and the Compulsory Acquisition
provided for by this Agreement, are fair to and in the best interests of the
Company and the holders of the Shares (other than, in the case of the
transactions contemplated by the Principal Shareholders Agreement, the Principal
Shareholders), (ii) approved the execution, delivery and performance of the
Transaction Documents by the Company and the consummation of the transactions
contemplated thereby, including the Offer, the Scheme of Arrangement and the
Compulsory Acquisition provided for by this Agreement, (iii) resolved, subject
to Section 6.6 hereof, to recommend that the holders of Ordinary Shares accept
the Offer and tender their Ordinary Shares pursuant to the Offer and that the
holders of Shares approve the Scheme of Arrangement, if such approval is sought;
and (iv) taken all other action necessary to render (and has refrained from
taking any action which would not render) inapplicable to the Offer, the Scheme
of Arrangement and the Compulsory Acquisition, and to the transactions
contemplated by the Transaction Documents, (x) any applicable takeover statutes
and (y) the Rights Agreement and the Rights.
(b) J.P. Morgan Securities Inc. has delivered to the Board
of Directors of the Company its opinion that the consideration to be received
pursuant to the Offer and either the proposed Scheme of Arrangement or the
proposed Compulsory Acquisition, as applicable, by the holders of Shares (other
than Parent or any direct or indirect Subsidiary thereof) is fair, from a
financial point of view, to such holders (other than, in the case of the
transactions contemplated by the Principal Shareholders Agreement, the Principal
Shareholders), subject to the assumptions and qualifications contained in such
opinion (a complete and correct executed copy of such opinion has been, or
promptly upon receipt thereof shall be, delivered to Parent for information
purposes only, but such opinion shall not be addressed to Parent, nor shall
Parent be entitled to rely thereon).
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(c) The Company shall file with the Commission, as soon as
reasonably practicable on the date of the commencement of the Offer, a
Solicitation/Recommendation Statement on Schedule 14D-9 (together with all
amendments and supplements thereto, the "Schedule l4D-9"), containing the
recommendations referred to in clause (a) of this Section 2.2 and shall
disseminate the Schedule 14D-9 as required by the Exchange Act. Parent and Sub
and their counsel shall be given reasonable opportunity to review and comment
upon the Schedule l4D-9 prior to its filing with the Commission or dissemination
to holders of the Ordinary Shares, as the case may be. The Schedule 14D-9 (x)
shall comply in all material respects with the provisions of applicable federal
securities laws on the date filed with the Commission and (y) on the date first
published, sent or given to the holders of the Ordinary Shares, shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading in light of the circumstances under which they are made,
except that no representation is made by the Company with respect to information
supplied by Parent or Sub expressly for inclusion in the Schedule 14D-9. The
Company, on the one hand, and each of Parent and Sub, on the other hand, agrees
promptly to correct any information provided by it for use in the Schedule 14D-9
if and to the extent that the Schedule 14D-9 shall be, or shall have become,
false or misleading in any material respect and the Company further agrees to
take all steps necessary to cause the Schedule 14D-9, as so corrected, to be
filed promptly with the Commission and to be disseminated to holders of Ordinary
Shares, in each case as and to the extent required by applicable federal
securities laws. The Company agrees to provide Parent and its counsel with
information with respect to any oral comments and with copies of any written
comments the Company or its counsel may receive from the Commission or its staff
with respect to the Schedule 14D-9 promptly after the receipt of such comments
and shall provide Parent and its counsel a reasonable opportunity to participate
in the response of the Company to such comments prior to delivery thereof to the
Commission, including the opportunity to participate with the Company or its
counsel in any discussions with the Commission or its staff.
(d) In connection with the Offer, the Company shall promptly
furnish, or cause its transfer agent to furnish, Sub with mailing labels,
security position listings and any available listing or computer list
containing, as of the most recent practicable date, the names and addresses of
the record holders of Shares and shall furnish Sub with such additional
information (including, but not limited to, updated lists of holders of Shares
and their addresses, mailing labels and lists of security positions) and such
other assistance as Sub or its agents may reasonably request in communicating
the Offer to the holders of Shares. Subject to the requirements of applicable
law, and except for such steps as are necessary to disseminate the Offer
Documents and any other documents necessary to consummate the Offer, the
Compulsory Acquisition and the Scheme of Arrangement, Sub shall hold in
confidence the information contained in any such labels, listings and files,
shall use such information only in connection with the Offer, the Compulsory
Acquisition and the Scheme of Arrangement and, if this Agreement is terminated,
shall deliver to the Company all copies of such information in its possession.
(e) The Company represents and warrants that it has been
advised that each of its directors and executive officers intends to tender
pursuant to the Offer all Ordinary Shares owned of record and beneficially by
him or her except to the extent such tender would violate applicable securities
laws.
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Section 2.3 Composition of the Board of Directors. Promptly upon
the acceptance for payment of, and payment by Sub for, Ordinary Shares pursuant
to the Offer, Sub shall be entitled to designate, subject to Section 2.3(c) of
this Agreement, up to such number of directors ("Parent Designees") on the Board
of Directors of the Company, rounded up to the next whole number, as shall give
Sub, subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1
promulgated thereunder, representation on the Board of Directors of the Company
equal to at least that number of directors which equals the product of the total
number of directors on the Board of Directors of the Company (giving effect to
the directors elected pursuant to this sentence) multiplied by a fraction, the
numerator of which shall be the number of votes represented by the Ordinary
Shares (determined on an as-converted basis assuming that all then-outstanding
Preferred Shares owned by Parent and Sub are converted into Ordinary Shares)
beneficially owned by Sub and Parent and the denominator of which shall be the
aggregate number of votes represented by the Ordinary Shares (determined on an
as-converted basis assuming that all then-outstanding Preferred Shares are
converted into Ordinary Shares) then issued and outstanding, and the Company and
its Board of Directors shall, at such time, take any and all such action
necessary to cause Parent Designees to be appointed to the Board of Directors of
the Company in such class of directors (if any) as shall ensure the longest
possible term for such Parent Designees (including using commercially reasonable
efforts to cause relevant directors to resign and/or increasing the size of the
Board of Directors of the Company (subject to the limitations set forth in the
Company's Memorandum of Association and the Company's Articles of Association)).
The Company shall take all action required pursuant to Section 14(f) of the
Exchange Act and Rule 14f-1, promulgated thereunder, to effect the election of
such Parent Designees, including (i) mailing to its shareholders the information
required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
thereunder or (ii) including such information in the Schedule 14D-9 filed with
the Commission and distributed to the shareholders of the Company, and the
Company agrees to make such mailing so long as Sub shall have provided to the
Company, on a timely basis, all information required by Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder with respect to the Parent
Designees. Parent and Sub shall be solely responsible for any information with
respect to either of them and their nominees, officers, directors and Affiliates
required by Section 14(f) and Rule 14f-1. Upon acceptance for payment of
Ordinary Shares pursuant to the Offer (the date Ordinary Shares are first
accepted for payment, the "Acceptance Date"), the Company, if so requested,
shall use its commercially reasonable efforts to cause Persons designated by
Parent to constitute the same percentage of each committee of its Board of
Directors, each Board of Directors of each Subsidiary and each committee of each
such Board of Directors (in each case to the extent of the Company's ability to
elect such Persons) as the percentage of the full Board of Directors of the
Company that the Parent Designees constitutes.
(a) The provisions of Section 2.3(a) are in addition to, and
shall not limit any, rights which Parent, Sub or any of their respective
Affiliates may have as holders or beneficial owners of Shares as a matter of
applicable law with respect to the election of directors or otherwise.
(b) Notwithstanding the other provisions of this Section
2.3, the parties hereto shall use their respective commercially reasonable
efforts to ensure that at least two (2) of the members of the Board of Directors
shall, at all times prior to: (i) if Parent or Sub requests a Scheme of
Arrangement pursuant to Section 3.1(a) hereof, the earlier to occur of (A) the
Scheme
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Effective Time or (B) the date on which either (x) the Court declines to
sanction the Scheme of Arrangement, (y) the Company's shareholders do not
approve the Scheme of Arrangement at any meeting duly called for such purpose or
(z) Parent and Sub abandon the Scheme of Arrangement; (ii) if Parent and Sub are
required to effect a Compulsory Acquisition pursuant to Section 6.4, the earlier
to occur of (A) the date of completion of the Compulsory Acquisition (the
"Compulsory Completion Date") or (B) the date on which either (x) the Court,
pursuant to an application made by a dissenting shareholder, grants an order
preventing the acquisition of the applicant's shares pursuant to Section 88 of
the Companies Law or (y) Parent and Sub abandon the Compulsory Acquisition; and
(iii) the date which is thirty (30) Business Days after the Acceptance Date if
Parent and Sub are not required to effect a Compulsory Acquisition pursuant to
Section 6.4 and Parent or Sub does not request a Scheme of Arrangement pursuant
to Section 3.1 on or before such date, (the applicable date being referred to
herein as the "Discontinuance Date"), be Persons who are directors of the
Company on the date hereof (the "Continuing Directors"), provided that, if there
shall be in office less than two (2) Continuing Directors, the Board of
Directors may cause the Person designated by the remaining Continuing Director
or Continuing Directors to fill such vacancy, and such Person shall be deemed to
be a Continuing Director for all purposes of this Agreement, or if no Continuing
Directors then remain, the other directors of the Company then in office shall
designate two (2) Persons to fill such vacancies who will not be officers,
employees or Affiliates of the Company or Parent, and such Persons shall be
deemed to be Continuing Directors for all purposes of this Agreement. Following
the election or appointment of the Parent Designees pursuant to this Section 2.3
and prior to the Discontinuance Date, any amendment of this Agreement, any
proposal to shareholders to amend the Company's Memorandum of Association or the
Company's Articles of Association, any termination of this Agreement by the
Company, any extension by the Company of the time for the performance of any of
the obligations or other acts of Parent and Sub or waiver of any of the
Company's rights hereunder, and any other consent or action by the Company
hereunder, shall require the concurrence of a majority of the Continuing
Directors, if there are more than two (2) Continuing Directors, or the
concurrence of one (1) Continuing Director, if there are two (2) Continuing
Directors. In connection therewith, the Continuing Directors shall be
authorized, on behalf and at the expense of the Company, to retain financial and
legal advisors.
ARTICLE III
THE SCHEME OF ARRANGEMENT
Section 3.1 The Scheme of Arrangement. Subject to Section 6.4,
promptly following the Acceptance Date and, if applicable, the Subsequent Offer
Period, or the expiration of the Offer without the purchase of any Ordinary
Shares thereunder, (A) if the Offer has remained open for a minimum of twenty
(20) Business Days, plus any extension of the expiration date of the Offer (up
to an additional ten (10) days) that has been required by the Company in
accordance with Section 2.1, and (B) if requested by Parent or Sub, in its sole
discretion, the Company shall, unless precluded from doing so by any applicable
law, or otherwise agreed to in writing by Sub, take the respective actions set
forth in this Article III to effectuate the Scheme of Arrangement, subject to
the terms and conditions herein.
(a) On the Scheme Effective Date at the Scheme Effective
Time, and upon the terms and subject to the conditions hereof, and subject to
the Grand Court of the Cayman Islands
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(the "Court") exercising its discretion and sanctioning the Scheme of
Arrangement (the "Scheme of Arrangement") pursuant to Section 86(2) of the
Companies Law (2001 Second Revision), as amended, of the Cayman Islands (the
"Companies Law") and making such facilitating orders as are appropriate pursuant
to Section 87 of the Companies Law, all of the issued share capital of the
Company shall be transferred to Sub.
Section 3.2 Application to the Court; Effective Time of the Scheme
of Arrangement; Scheme of Arrangement Closing. Subject to Section 6.4,
promptly following the Acceptance Date and, if applicable, the Subsequent Offer
Period, or the expiration of the Offer without the purchase of any Ordinary
Shares thereunder, (A) if the Offer has remained open for a minimum of twenty
(20) Business Days, plus any extension of the expiration date (up to an
additional ten (10) days) that has been required by the Company in accordance
with Section 2.1, and (B) if requested by Parent or Sub, in its sole discretion
and in accordance with applicable law, the Company shall (i) cause an
application to be made to the Court requesting the Court to summon such class
meetings of shareholders of the Company as the Court may direct ("Shareholders'
Meetings"), (ii) if directed by the Court, convene such Shareholders' Meetings
seeking the approval required under Section 86(2) of the Companies Law and (iii)
subject to such approvals being obtained, cause a petition to be presented to
the Court seeking the sanctioning of a Scheme of Arrangement pursuant to Section
86 of the Companies Law and file such other documents as are required to be duly
filed with the Court to effect the Scheme of Arrangement. The Company shall, if
necessary, hold an extraordinary general meeting of its shareholders, subject to
the Scheme of Arrangement taking full force and effect, to approve and adopt new
Articles of Association of the Company that shall be substantially identical to
Sub's articles of association, except as otherwise required by Section 6.9
hereof. In furtherance of the foregoing, the Company shall take all action
necessary to solicit from its shareholders proxies, and shall take all other
action necessary and advisable to secure the vote of shareholders required by
the Companies Law and by the Memorandum of Association of the Company or the
Articles of Association of the Company to obtain approval of the Scheme of
Arrangement. Except as provided in Section 6.6 of this Agreement, the Board of
Directors of the Company shall recommend that the holders of Shares vote in
favor of the approval of the Scheme of Arrangement at the Shareholders'
Meetings, and, except as provided in Section 6.6, the Company agrees that it
shall include in the Proxy Statement the recommendation of its Board of
Directors that the shareholders of the Company adopt this Agreement and approve
the Scheme of Arrangement. Parent shall cause all Shares owned by Parent and its
direct and indirect Subsidiaries (including Sub) to be voted in favor of
approval of such Scheme of Arrangement.
(a) As promptly as practicable following Parent's request,
the Company shall promptly prepare and file with the Commission a preliminary
proxy statement or information statement (together with any amendment or
supplement thereto, the "Proxy Statement") and shall promptly use its
commercially reasonable efforts to respond to the comments of the Commission, if
any, in connection therewith and to furnish all information regarding the
Company that is required in the definitive Proxy Statement (including, without
limitation, financial statements and supporting schedules and certificates and
reports of independent public accountants). Parent, Sub and the Company shall
cooperate with each other in the preparation of the Proxy Statement. Without
limiting the generality of the foregoing, each of Parent and Sub shall furnish
to the Company for inclusion in the Proxy Statement the information relating to
it required by the Exchange Act to be set forth in the Proxy Statement. The
Company shall cause the definitive
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Proxy Statement to be mailed to the shareholders of the Company and, if
necessary, after the definitive Proxy Statement shall have been so mailed,
promptly circulate amended, supplemental or supplemented proxy material and, if
required in connection therewith, resolicit proxies. The Company shall not use
any proxy material in connection with the meeting of its shareholders without
Parent's prior approval, except as required by law or the Commission.
If deemed necessary or advisable by Parent, for purposes of the
hearing by the Court of the petition to sanction the Scheme of Arrangement, the
parties shall hold a pre-closing (the "Scheme Pre-Closing") on the Business Day
prior to the day of such hearing (or such earlier time as reasonably requested
by Parent if necessary to prepare and file any affidavit in connection with such
hearing) for the purpose of determining which of the conditions set forth in
Article VII are satisfied as of such date, it being understood that the
determination that any such condition is satisfied as of such date shall not
constitute a determination or agreement by any party that such condition is
satisfied as of the Scheme Closing Date. The Scheme Pre-Closing shall be held at
a location designated by Parent.
(b) As soon as practicable after receipt of an order from
the Court sanctioning the Scheme of Arrangement, the parties shall convene at a
location designated by Parent for the purpose of confirming the satisfaction of
the conditions set forth in Article VII (the "Scheme Closing Date"). The closing
of the Scheme of Arrangement (the "Scheme Closing") shall be deemed to occur if
all conditions set forth in Article VII are satisfied (other than any such
condition which has been waived) and all of the actions described in this
Article III that are necessary to consummate a Scheme of Arrangement have
occurred. The Company, Parent and Sub acknowledge and agree that all the
conditions set forth in Article VII must be satisfied (or waived) as of such
time, and all of the actions described in this Article III that are necessary to
consummate a Scheme of Arrangement shall have occurred as of such time, whether
or not any such condition was determined to be satisfied or occurred as of the
Scheme Pre-Closing, if held.
(c) As soon as practicable following the Scheme Closing, the
Company shall cause a copy of the Court order sanctioning the Scheme of
Arrangement to be duly delivered to the Registrar of Companies of the Cayman
Islands (the "Registrar") and the Scheme of Arrangement shall become effective
as soon as a copy of the Court order sanctioning the Scheme of Arrangement has
been duly delivered to the Registrar for registration and the order and minutes
have been registered by him (the date of such registration being the "Scheme
Effective Date" and the time of such registration being the "Scheme Effective
Time").
(d) Notwithstanding paragraph (d), if the Company and Parent
so agree in writing, and the same is consistent with any order of the Court
sanctioning the Scheme of Arrangement, the Company shall cause a copy of the
order to be delivered to the Registrar prior to the Scheme Closing, and the
Scheme Closing shall be held as soon as practicable thereafter, in which case
the Scheme of Arrangement shall become effective only after both (i) a copy of
the Court order sanctioning the Scheme of Arrangement is delivered to the
Registrar for registration and the order and minutes have been registered by the
Registrar and (ii) the Scheme Closing shall have occurred. In such case,
notwithstanding paragraph (d), for all purposes hereunder, the Scheme Effective
Date shall be the date on which the Scheme Closing shall have occurred and the
Scheme Effective Time shall be the time at which the Scheme Closing is deemed by
the parties to be completed.
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(e) As of the Scheme Effective Time, the Company shall be a
directly wholly owned Subsidiary of Sub.
Section 3.3 Terms of the Scheme: Transfer of Share Capital. At the
Scheme Effective Time, by virtue of the Scheme of Arrangement:
(i) Each Ordinary Share (and the associated Rights)
issued and outstanding immediately prior to the Scheme Effective Time
(other than Ordinary Shares (and the associated Right) which are held by
any wholly-owned Subsidiary of the Company or in the treasury of the
Company, or which are held, directly or indirectly, by Parent or any
Subsidiary of Parent (including Sub) (the "Scheme Ordinary Shares")
shall be, by virtue of the Scheme of Arrangement and without any action
required by the holder thereof (the "Holder"), transferred to Sub in
consideration for U.S.$45.00 in cash per Scheme Ordinary Share
transferred ("Ordinary Cash Consideration").
(ii) Each Preferred Share issued and outstanding
immediately prior to the Effective Time (other than Preferred Shares
which are held by any wholly-owned Subsidiary of the Company or in the
treasury of the Company, or which are held, directly or indirectly, by
Parent or any Subsidiary of Parent (including Sub)) (the "Scheme
Preferred Shares" and together with the Scheme Ordinary Shares, the
"Scheme Shares") shall be, by virtue of the Scheme of Arrangement and
without any action required by the Holder thereof, transferred to Sub in
consideration for U.S.$180.00 in cash per Scheme Preferred Share, plus
any accumulated and unpaid dividends thereon through the Scheme
Effective Date (the "Preferred Cash Consideration" and together with the
Ordinary Cash Consideration, the "Cash Consideration").
(b) At the Scheme Effective Time, regardless of whether a
certificate for Scheme Shares shall be surrendered for exchange, all
certificates for Scheme Shares shall be deemed cancelled and the holders thereof
shall cease to have any rights by virtue thereof, other than to receive the Cash
Consideration set forth herein. All Cash Consideration paid upon the deemed
cancellation of certificates for Scheme Shares shall be deemed to have been paid
in full satisfaction of all rights pertaining to such Scheme Shares.
Section 3.4 Terms of the Scheme of Arrangement; Payment. Subject to
and by virtue of the order of the Court under Section 86(2) of the Companies Law
sanctioning the Scheme of Arrangement, the terms of the Scheme of Arrangement
and the provisions for cancellation or surrender of the certificates
representing the Scheme Shares shall be as set forth in the Scheme of
Arrangement.
(a) Prior to the Scheme Effective Time, Parent or Sub shall
designate a bank or trust company reasonably satisfactory to the Company to act
as exchange agent in connection with the transactions contemplated hereby (the
"Exchange Agent").
(b) At the Scheme Effective Time, Parent or Sub shall
provide the Exchange Agent in immediately available funds in U.S. dollars all
funds necessary to pay the Cash Consideration (the "Payment Fund"). As soon as
possible after the Scheme Effective Time, and in no event later than five (5)
Business Days after the Scheme Effective Date, Parent or Sub
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shall, or shall cause the Exchange Agent, to send to each Holder at the address
appearing in the register of members of the Company (the "Registered Address")
on the date immediately preceding the Scheme Effective Date (the "Record Date")
a bank cheque in immediately available funds in U.S. dollars representing each
such Holder's Cash Consideration. The payment required to be sent by Parent or
Sub, or the Exchange Agent on their behalf, to the Holders pursuant to the
Scheme of Arrangement shall be sent by mail with postage prepaid, addressed to
the Holders entitled thereto at their respective Registered Address, and Parent
and Sub shall not be responsible for any loss or delay in transmission posted in
accordance with this Section 3.4(c). No interest shall be paid or accrued on the
Cash Consideration. Until the monies held in the Payment Fund are paid to the
Holders in accordance with this Section 3.4(c), Parent and Sub shall cause the
Exchange Agent to invest the Payment Fund as directed by them. All earnings on
investments made with the Payment Fund shall be paid to Parent or, at its
direction, to Sub. If for any reason the Payment Fund is inadequate to pay the
amounts to which Holders are entitled under this Section 3.4(c), Sub shall, and
Parent shall cause Sub to, promptly restore such amount of inadequacy to the
Payment Fund, and in any event shall be fully liable for payment thereof. Any
portion of the Payment Fund that remains undistributed to the Holders for nine
months after the Scheme Effective Time shall be delivered to Sub, upon demand,
and any Holder who has not theretofore complied with this Article III shall
thereafter look only to the Parent for payment of its claim for Cash
Consideration.
(c) The Exchange Agent shall be entitled to deduct and
withhold from the Cash Consideration otherwise payable to any Holder pursuant to
this Agreement such amounts as may be required to be deducted and withheld with
respect to the making of such payment under any law.
Section 3.5 Stock Option and Other Plans. The Company may provide
and, if requested by Parent, shall provide to the extent permitted by applicable
law and the provisions of the applicable Options and Stock Plans, that all
outstanding stock options and other rights to purchase Ordinary Shares (the
"Options") heretofore granted under any stock option or similar plan of the
Company (the "Stock Plans") or otherwise shall vest and be fully exercisable,
effective immediately prior to expiration of the Offer which results in an
Acceptance Date if the Option holder (i) tenders all Options held by such holder
for exercise (conditioned only upon occurrence of the Acceptance Date) and
tenders and does not withdraw all Ordinary Shares issued upon exercise of such
Options in the Offer or (ii) irrevocably surrenders all Options held by such
holder to the Company between the final expiration date of the Offer (including
any Subsequent Offer Period) if an Acceptance Date occurs with respect to the
Offer and the earlier of the Compulsory Completion Date and the Scheme Effective
Time for cancellation in exchange for a Cash Option Payment as provided in
Section 3.5(c) hereof.
(a) The Company may make arrangements and, if requested by
Parent, shall make such arrangements to the extent permitted by applicable law
and the provisions of the applicable Options and Stock Plans, to permit holders
of Options to conditionally exercise their Options and tender all Ordinary
Shares issued upon exercise thereof in the Offer. The Company, Parent and Sub
agree that Sub shall accept as validly tendered pursuant to the Offer all
Ordinary Shares which are to be issued pursuant to the Conditional Option
Exercise (as defined below). "Conditional Option Exercise" shall mean the
exercise of all Options that are duly surrendered to the Company for exercise,
conditional only on the occurrence of the Acceptance Date, and
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accompanied by appropriate irrevocable instructions that the Ordinary Shares
issuable upon such exercise shall be deemed to be exercised immediately prior to
the expiration of the Offer and properly tendered to Sub pursuant to the terms
of the Offer and not withdrawn.
(b) From and after the Acceptance Date until the earlier of
the Compulsory Completion Date and the Scheme Effective Time, the Company may
permit, with Parent's prior approval, and, if requested by Parent, shall permit,
to the extent permitted by applicable law and the provisions of the applicable
Options and Stock Plans, each holder of an outstanding Option, in cancellation
and settlement therefor, to receive payments from the Company in cash (the "Cash
Option Payment") equal to the product of (x) the total number of Ordinary Shares
subject to such Option, whether or not then vested or exercisable, and (y) the
amount by which the Ordinary Share Offer Price exceeds the exercise price per
Ordinary Share subject to such Option, each such Cash Option Payment to be paid
to each holder of an outstanding Option upon (i) surrender to the Company of the
Option and (ii) an appropriate surrender and release agreement providing that
such surrender and payment of the Cash Option Payment shall be deemed a release
of any and all rights the holder had or may have had in respect of such Option.
Notwithstanding any other provision of this Section 3.5 to the contrary, payment
of the Cash Option Payment may be withheld with respect to any Option until
necessary consents and releases are obtained.
(c) Upon the earlier of the Scheme Effective Time or the
Compulsory Completion Date, to the extent permitted by applicable law and the
provisions of the applicable Options and Stock Plans, the Company shall permit
each holder of an outstanding Option, in cancellation and settlement therefor,
to receive Cash Option Payments equal to the product of (x) the total number of
Ordinary Shares subject to such Option, whether or not then vested or
exercisable, and (y) the amount by which the Ordinary Share Offer Price exceeds
the exercise price per Ordinary Share subject to such Option, each such Cash
Option Payment to be paid to each holder of an outstanding Option upon (i)
surrender to the Company of the Option and (ii) an appropriate surrender and
release agreement providing that such surrender and payment of the Cash Option
Payment shall be deemed a release of any and all rights the holder had or may
have had in respect of such Option. Notwithstanding any other provision of this
Section 3.5 to the contrary, payment of the Cash Option Payment may be withheld
with respect to any Option until necessary consents and releases are obtained.
(d) Subject to the rights of holders of Options under
Section 3.5(d), the Board of Directors of the Company (or, if appropriate, any
committee thereof) shall use its best efforts to obtain all necessary consents
and releases from all of the holders of all the outstanding Options, and shall
use its best efforts, to the extent permitted without resulting in a breach or
violation thereof, to take all actions to (i) terminate, at the earlier of the
Compulsory Completion Date or the Scheme Effective Time, the Stock Plans and
Options and any other plan, program or arrangement providing for the issuance or
grant of any other interest in respect of the share capital of the Company or
any Affiliate thereof (collectively with the Stock Plans, referred to as the
"Stock Incentive Plans") and (ii) amend, as of the earlier of the Compulsory
Completion Date or the Scheme Effective Time and to the extent therein allowed,
the provisions of any other Employee Benefit Plan providing for the issuance,
transfer or grant of any share capital of the Company or any such Affiliate, or
any interest in respect of any share capital of the Company or any such
Affiliate, to provide no continuing rights to acquire, hold, transfer or grant
any share
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capital of the Company or any such Affiliate or any interest in the share
capital of the Company or any such Affiliate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 4 Representations and Warranties of the Company. The
Company hereby represents and warrants to Parent and Sub as follows:
Section 4.1 Due Organization, Good Standing and Corporate Power.
Each of the Company and its Subsidiaries is a corporation duly incorporated (or,
if not a corporation, duly organized), validly existing and in good standing
under the laws of the jurisdiction of its incorporation (or, if not a
corporation, organization) and each such Person has all requisite corporate,
partnership or other power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. The Company and
each of its Subsidiaries is duly qualified or licensed to do business and is in
good standing in each jurisdiction in which the property owned, leased or
operated by it, or the nature of the business conducted by it makes such
qualification necessary, except in such jurisdictions where the failure to be so
qualified or licensed and in good standing has not had, does not have, and could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company. The Company has, prior to the date of this
Agreement, made available to Parent complete and correct copies of the Company's
current Memorandum of Association, as amended, and current Articles of
Association and the comparable governing documents of each of its material
Subsidiaries, in each case as amended and in full force and effect as of the
date of this Agreement.
Section 4.2 Authorization and Validity of this Agreement. The
Company has the requisite corporate power and authority to execute and deliver
this Agreement and the Principal Shareholders Agreement, to perform its
obligations hereunder, and thereunder and (subject to the approval of the
shareholders of the Company if required by the Companies Law) to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement and the Principal Shareholders Agreement by the Company, and the
consummation by it of the transactions contemplated hereby and thereby, have
been duly authorized and approved by its Board of Directors, and no other
corporate action on the part of the Company is necessary to authorize the
execution, delivery and performance of this Agreement and the Principal
Shareholders Agreement by the Company and the consummation of the transactions
contemplated hereby and thereby (subject to the approval of the shareholders of
the Company if required by the Companies Law). This Agreement and the Principal
Shareholders Agreement have been duly executed and delivered by the Company and,
assuming that this Agreement and the Principal Shareholders Agreement constitute
valid and binding obligations of Parent and Sub, constitute valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms, except to the extent that enforceability may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles.
Section 4.3 Capitalization. The authorized share capital of the
Company consists of (a) 200,000,000 Ordinary Shares and (b) 20,000,000 other
Shares, par value $0.01 per share, of
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which 11,000,000 have been authorized as Preferred Shares and 200,000 have been
authorized as Series A Junior Participating Preference Shares. At the close of
business on July 5, 2001, (i) 37,500,375 Ordinary Shares were outstanding, (ii)
5,180,265 Preferred Shares were outstanding, (iii) no Series A Junior
Participating Preference Shares were outstanding, (iv) no Shares were held by
the Company in its treasury and (v) 6,013,818 Ordinary Shares were subject to
issuance upon exercise of outstanding Options. At the close of business on July
5, 2001, 5,180,265 Preferred Shares were convertible into 20,721,060 Ordinary
Shares. All issued and outstanding shares of the capital of the Company and each
of its Subsidiaries have been duly authorized and validly issued and are fully
paid and nonassessable, and are not subject to, nor were issued in violation of,
any preemptive rights. Except as set forth above or on Schedule 4.3(b) of the
Company Disclosure Letter, there are no outstanding or authorized options,
warrants, rights, subscriptions, agreements, obligations, convertible or
exchangeable securities, or other commitments or claims of any character,
contingent or otherwise, relating to Shares of capital of the Company or any of
its Subsidiaries or pursuant to which the Company or any of its Subsidiaries is
or may become obligated to issue Shares of its capital or any securities
convertible into, exchangeable for, or evidencing the right to subscribe for,
any Shares of the capital of the Company or any of its Subsidiaries. Neither the
Company nor any of its Subsidiaries has authorized or outstanding bonds,
debentures, notes or other indebtedness which entitle the holders to vote (or
convertible or exercisable for or exchangeable into securities which entitle the
holders to vote) with the shareholders of such Person on any matter. Except as
set forth on Schedule 4.3(c) of the Company Disclosure Letter, neither the
Company nor any of its Subsidiaries owns, directly or indirectly, any Shares of
capital or other equity, ownership or proprietary interest in any Person (other
than any Subsidiary of the Company). Except as set forth on Schedule 4.3(d) of
the Company Disclosure Letter, all of the outstanding shares of capital of each
of the Subsidiaries of the Company are owned, of record and beneficially, by the
Company or one or more of its Subsidiaries free and clear of any liens, security
interest, charge or encumbrance of any kind or nature (each, a "Lien"). Except
as set forth on Schedule 4.3(e) of the Company Disclosure Letter, there are no
restrictions of any kind which prevent or restrict the payment of dividends by
the Company or any of its Subsidiaries. At the close of business on June 30,
2001, the consolidated long-term debt (including current maturities) of the
Company and its Subsidiaries was $500,017,000. As of July 5, 2001, the aggregate
amount of accumulated and unpaid dividends with respect to the Preferred Shares
was $402,909.50.
Section 4.4 Consents and Approvals; No Violations. Assuming (i) the
filings required under the Antitrust Laws are made and the applicable waiting
periods thereunder have been terminated or have expired, (ii) the requirements
of the Exchange Act relating to the Proxy Statement, if any, and the Offer are
met, (iii) the filing of the documents relating to the Scheme of Arrangement, if
any, as required by the Companies Law, are made, (iv) approval of the Scheme of
Arrangement by the shareholders of the Company is received, (v) all approvals or
sanctions by the Court in accordance with the Companies Law in connection with
the transactions contemplated by the Transaction Documents have been obtained
and (vi) all filings and notices with the New York Stock Exchange have been
made, the execution and delivery of this Agreement and the Principal
Shareholders Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby shall not: (w) violate or conflict
with any provision of the Company's Memorandum of Association or the Company's
Articles of Association or the comparable governing documents of any of its
Subsidiaries; (x) violate or conflict with any statute, ordinance, rule,
regulation, order or decree of any court or of any
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Governmental Entity applicable to the Company or any of its Subsidiaries or by
which any of their respective properties or assets may be bound; (y) except as
set forth on Schedule 4.4 of the Company Disclosure Letter, require any filing
with, or Permit, consent or approval of, or the giving of any notice to, any
Governmental Entity; or (z) except as set forth on Schedule 4.4 of the Company
Disclosure Letter, result in a violation or breach of, conflict with, constitute
(with or without due notice or lapse of time or both) a default under (or give
rise to any right of termination, cancellation, payment or acceleration or any
right which becomes effective upon the occurrence of a merger, amalgamation,
scheme of arrangement, consolidation or change of control under), result in the
creation of any Lien upon any of the properties or assets of the Company or any
of its Subsidiaries under, or give rise to any obligation, right of termination,
cancellation, acceleration or increase of any obligation or a loss of a material
benefit or any right which becomes effective upon the occurrence of a merger,
amalgamation, scheme of arrangement, consolidation or change of control under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, franchise, Permit, agreement, contract, arrangement, lease,
franchise agreement or other instrument or obligation to which the Company or
any of its Subsidiaries is a party, or by which any such Person or any of its
properties or assets are bound, other than in the case of clauses (x), (y) and
(z), any such violation, breach, conflict, default, right of termination,
cancellation, payment, acceleration, other right or failure to make any filing
or obtain any Permit, consent or approval of, or give notice to, any
Governmental Entity that has not had, does not have, and could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
the Company.
Section 4.5 Company Reports and Financial Statements. Since December
31, 1998, the Company (including any predecessor entity) and its Subsidiaries
have filed all forms, reports, schedules, statements, registration statements
and other documents with the Commission relating to periods commencing on or
after such date required to be filed by it pursuant to the federal securities
laws and the Commission rules and regulations thereunder (such forms, reports,
schedules, statements, registration statements and other documents being
hereinafter referred to as the "Commission Filings"), and, as of their
respective dates, the Commission Filings complied in all material respects with
all applicable requirements of the federal securities laws and the Commission
rules and regulations promulgated thereunder. The Company has, prior to the date
of this Agreement, made available to Parent true and complete copies of all
portions of any Commission Filings not publicly available. As of their
respective dates, the Commission Filings did not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made. Except as set forth on Schedule 4.5 of
the Company Disclosure Letter, each of the consolidated financial statements of
the Company and its consolidated Subsidiaries contained in the Commission
Filings have been prepared in accordance with GAAP (except (i) as may be
indicated therein or in the notes or schedules thereto and (ii) in the case of
unaudited quarterly financial statements, as permitted by Form 10-Q of the
Commission) and present fairly, in all material respects, the consolidated
financial position of the Company and its consolidated Subsidiaries as of the
dates thereof and the consolidated results of their operations and changes in
cash flows for the periods then ended (subject, in the case of unaudited
quarterly statements, to normal year end audit adjustments and any other
adjustments described therein). The Company has heretofore provided Parent with
true and correct copies of any amendments and/or modifications to any Commission
Filings which have not yet been filed with the Commission but that are, to the
knowledge of the Company, required to be filed with the
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Commission in accordance with applicable federal securities laws and the
Commission rules and regulations promulgated thereunder.
Section 4.6 Absence of Certain Changes. Except as set forth on
Schedule 4.6 of the Company Disclosure Letter or in the Completed Commission
Filings or as required or permitted by the Transaction Documents, since December
31, 2000 to the date of this Agreement, (i) there has been no Material Adverse
Effect on the Company or, to the knowledge of the Company, any event, change,
occurrence, effect, fact, violation or circumstances that could reasonably be
expected to have a Material Adverse Effect on the Company, (ii) the businesses
of the Company and each of its Subsidiaries have been conducted only in the
ordinary course, (iii) neither the Company nor any of its Subsidiaries has
incurred any material liabilities (direct, contingent or otherwise) or engaged
in any material transaction or entered into any material agreement outside the
ordinary course of business, (iv) neither the Company nor any of its
Subsidiaries have increased the compensation of any officer or granted any
general salary or benefits increase to their respective employees, other than in
the ordinary course of business, (v) neither the Company nor any of its
Subsidiaries has taken any action referred to in Section 6.3 hereof, (vi) there
has been no declaration, setting aside or payment of any dividend or other
distribution with respect to any class of Shares or any repurchase, redemption
or other acquisition by the Company or any of its Subsidiaries of any Shares or
other securities of the Company or any of its Subsidiaries and (vii) there has
been no change by the Company in accounting principles, practices or methods.
Section 4.7 Title to Properties; Encumbrances. Except as set forth
in Schedule 4.7 of the Company Disclosure Letter, the Company and each of its
Subsidiaries has (i) in the case of properties that are not Oil and Gas
Properties, good, valid and marketable title to, (ii) in the case of Oil and Gas
Properties, good title to, or (iii) in the case of leased properties and assets,
valid leasehold interests in, (A) all of its material tangible properties and
assets (real and personal), including, without limitation, all the properties
and assets reflected in the consolidated balance sheet as of December 31, 2000,
contained in the Commission Filings, except as indicated in the notes thereto
and except for properties and assets reflected in the consolidated balance sheet
as of December 31, 2000, contained in the Commission Filings, which have been
sold or otherwise disposed of in the ordinary course of business after such
date, and except where the failure to have such (i) good, valid and marketable
title; (ii) good title or (iii) valid leasehold interest (as the case may be)
has not had, does not have, and could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on the Company; and
(B) all the tangible properties and assets purchased by the Company and any of
its Subsidiaries since December 31, 2000, except for such properties and assets
which have been sold or otherwise disposed of in the ordinary course of business
and except where the failure to have such (i) good, valid and marketable title,
(ii) good title or (iii) valid leasehold interest (as the case may be) has not
had, does not have, and could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect on the Company; in each case
subject to no Liens, except for (x) Liens reflected or reserved against in the
Completed Commission Filings, (y) such Liens which have not had, do not have,
and could not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect on the Company and (z) customary oil and gas
arrangements.
Section 4.8 Compliance with Laws. Except as set forth on
Schedule 4.8 of the Company Disclosure Letter or in the Completed Commission
Filings or except where the failure
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to so comply has not had, does not have, and could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect on the
Company, the Company and its Subsidiaries have complied with all applicable
federal, state, local and foreign statutes, laws, regulations, orders, judgments
and decrees, and as of the date of this Agreement have not received notification
of any asserted present failure to so comply.
(a) The Company and its Subsidiaries hold all federal,
state, local and foreign permits, approvals, licenses, authorizations,
certificates, rights, exemptions and orders from Governmental Entities (the
"Permits") that are necessary for the operation of the business of the Company
and/or its Subsidiaries as now conducted, and there has not occurred any default
under any such Permit, except as set forth on Schedule 4.8 of the Company
Disclosure Letter or except to the extent that any such failure to hold Permits
and any such default has not had, does not have, and could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
the Company.
Section 4.9 Litigation. Except as set forth in Schedule 4.9 of the
Company Disclosure Letter or in the Completed Commission Filings, as of the date
of this Agreement
(a) there is no action, suit, proceeding at law or in
equity, or any arbitration or any administrative or other proceeding by or
before (or to the knowledge of the Company any investigation by) any
Governmental Entity, pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its Subsidiaries, or any of their
respective properties or rights which has had, has, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
the Company;
(b) there are no such suits, actions, claims, proceedings or
investigations pending or, to the knowledge of the Company, threatened, seeking
to prevent or challenging the transactions contemplated by this Agreement; and
(c) neither the Company nor any of its Subsidiaries is
subject to any judgment, order or decree entered in any lawsuit or proceeding
which has had, has, or could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect on the Company.
Section 4.10 Employee Benefit Plans. Set forth on Schedule 4.10(a)
of the Company Disclosure Letter is an accurate and complete list of each
domestic employee benefit plan, within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended, and the rules and
regulations thereunder ("ERISA"), whether or not subject to ERISA, and each
stock option, stock appreciation right, restricted stock, stock purchase, stock
unit, performance share, incentive, bonus, profit-sharing, savings, deferred
compensation, health, medical, dental, life insurance, disability, accident,
supplemental unemployment or retirement, employment, severance or salary or
benefits continuation, change in control, "parachute payment," or fringe benefit
plan, program, arrangement, agreement or commitment maintained by the Company or
any Affiliate thereof (including, for this purpose and for the purpose of all of
the representations in this Section 4.10, any predecessors to the Company or its
Affiliates and all employers (whether or not incorporated) that would, as of the
Acceptance Date, Compulsory Completion Date, Scheme Closing, or termination of
this Agreement pursuant to Section 8.1, be
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treated together with the Company, any such Affiliate and/or the shareholder as
a single employer within the meaning of Section 414 of the Code) or to which the
Company or any Affiliate thereof contributes (or has any obligation to
contribute), has any liability or is a party (collectively, the "Employee
Benefit Plans").
(a) except as set forth in Schedule 4.10(b) of the Company
Disclosure Letter, (i) each Employee Benefit Plan is in substantial compliance
with all applicable laws (including, without limitation, ERISA and the Code) and
has been administered and operated in all material respects in accordance with
its terms; (ii) each Employee Benefit Plan which is intended to be "qualified"
within the meaning of Section 401(a) of the Code has received, on or after
December 31, 1993, a favorable determination letter from the Internal Revenue
Service or the remedial amendment period for applying for such a favorable
determination letter is open and, to the knowledge of the Company, no event has
occurred and no condition exists which could reasonably be expected to result in
the revocation of any such determination; (iii) no Employee Benefit Plan covered
by Title IV of ERISA has been terminated and no proceedings have been instituted
to terminate or appoint a trustee under Title IV of ERISA to administer any such
plan; (iv) no "reportable event" (as defined in Section 4043 of ERISA) has
occurred with respect to any Employee Benefit Plan covered by Title IV of ERISA;
(v) no Employee Benefit Plan (other than any Employee Benefit Plan which is a
"multiemployer plan" (as defined in Section 4001(a)(3) of ERISA (a
"Multiemployer Plan")) subject to Section 412 of the Code or Section 302 of
ERISA has incurred any accumulated funding deficiency within the meaning of
Section 412 of the Code or Section 302 of ERISA, or obtained a waiver of any
minimum funding standard or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA; (vi) neither the Company
nor any of its Affiliates has during the past six years maintained or
contributed to or had any obligation to contribute to or borne liability with
respect to a Multiemployer Plan except where such maintenance, contribution,
obligation, or liability has not had, has not, or could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
the Company; (vii) no Employee Benefit Plan is a "multiple employer plan"
(within the meaning of the Code or ERISA); (viii) the Company and each such
Affiliate have made adequate provisions in accordance with GAAP in their
financial statements for all obligations and liabilities which have accrued
under any Employee Benefit Plans, but which have not been paid because they are
not yet due under the terms of any such Employee Benefit Plan or any related
agreement or applicable law, and, to the knowledge of the Company, no event has
occurred or condition exists that would reasonably be expected to result in a
material increase in the level of such amounts paid or accrued for the most
recently ended fiscal year; (ix) neither the Company nor any of its Affiliates
has incurred or expects to incur any material liability (including, without
limitation, additional contributions, fines, taxes or penalties) as a result of
a failure to administer or operate any Employee Benefit Plan that is a "group
health plan" (as such term is defined in Section 607(1) of ERISA or Section
5000(b)(1) of the Code) in compliance with the applicable requirements of Part 6
of Subtitle B of Title I of ERISA or Section 4980B of the Code ("COBRA"); (x) no
Employee Benefit Plan provides for post-employment or retiree health, life
insurance or other welfare benefits (except to the extent required by COBRA);
(xi) except with regard to any payment made pursuant to any Employee Benefit
Plan, employment agreement or change in control agreement set forth on Schedule
6.12 of the Company Disclosure Letter, the execution of this Agreement and the
consummation of the transactions contemplated hereby do not constitute a
triggering event under any Employee Benefit Plan, policy, arrangement,
statement, commitment or agreement, which (either alone or
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upon the occurrence of any additional or subsequent event) shall or may result
in any payment, "parachute payment" (as such term is defined in Section 280G of
the Code), severance, bonus, retirement or job security or similar-type benefit,
or increase any benefits or accelerate the payment or vesting of any benefits to
any employee or former employee or director of the Company or any of its
Affiliates; (xii) except with regard to any Employee Benefit Plan, employment
agreement or change in control agreement set forth on Schedule 6.12 of the
Company Disclosure Letter, no Employee Benefit Plan provides for the payment of
severance, termination, change in control or similar-type payments or benefits;
(xiii) as of the date of this Agreement, no liability, claim, action,
litigation, audit, examination, investigation or administrative proceeding has
been made, commenced or, to the knowledge of the Company, threatened with
respect to any Employee Benefit Plan (other than routine claims for benefits
payable in the ordinary course) which could result in a material liability of
the Company or any Affiliate thereof; (xiv) except as required to maintain the
tax-qualified status of any Employee Benefit Plan intended to qualify under
Section 401(a) of the Code, no condition or circumstance exists that would
prevent the amendment or termination of any Employee Benefit Plan; (xv) neither
the Company nor any of its Affiliates maintains any stock appreciation rights
plan or has any outstanding stock appreciation rights or has issued any other
rights or interests in respect of the Company or any Affiliate other than
interests in the Company's 401(k) Savings Plan, any Options and any outstanding
Ordinary Shares; (xvi) each "Foreign Pension Plan," meaning any plan, fund
(including, without limitation, any superannuation fund) or other similar
program established or maintained outside the United States of America by the
Company or any one or more of its Subsidiaries primarily for the benefit of
employees of the Company or such Subsidiaries residing outside the United States
of America, which plan, fund or other similar program provides, or results in,
retirement income, a deferral of income in contemplation of retirement or
payments to be made upon termination of employment, and which plan is not
subject to ERISA or the Code, (A) has been maintained in compliance with its
terms and with the requirements of any and all applicable laws, statutes, rules,
regulations and orders and has been maintained, where required, in good standing
with applicable regulatory authorities, (B) has been operated such that all
contributions required to be made with respect to such plan have been timely
made, (C) has not been operated such that the Company or any of its Subsidiaries
has incurred any obligation in connection with the termination of or withdrawal
from such plan, and (D) had accrued benefit liabilities the present value of
which (whether or not vested) determined as of the end of the Company's most
recently ended fiscal year on the basis of actuarial assumptions, each of which
is reasonable, did not exceed the current value of the assets of such plan
allocable to such benefit liabilities, except to the extent (x) a failure to
comply, to maintain, or to make a contribution, (y) a termination or a
withdrawal, or (z) any underfunding has not had, has not, or could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company; (xvii) the actuarial present value of the
accumulated plan benefits (whether or not vested) under each Employee Benefit
Plan covered by Title IV of ERISA (other than any Employee Benefit Plan which is
a Multiemployee Plan) as of the close of its most recent plan year did not
exceed the market value of the assets allocable thereto; and (xviii) neither the
company nor any of its Affiliates has any unfunded liabilities pursuant to any
Employee Benefit Plan which is an "employee pension benefit plan" (within the
meaning of Section 3(2) of ERISA) that is not intended to be qualified under
section 401(a) of the Code..
(b) The Company has delivered or caused to be delivered or
made available to Parent or its counsel true and complete copies of each
Employee Benefit Plan, together with all
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amendments thereto, and, to the extent applicable, (i) all current summary plan
descriptions; (ii) the annual report on Internal Revenue Service Form
5500-series, including any attachments thereto, for each of the last three plan
years; and (iii) the most recent determination letter, if any, for any Employee
Benefit Plan maintained pursuant to Section 401(a) of the Code.
Section 4.11 Employment Relations and Agreements. Except as set forth
on Schedule 4.11 of the Company Disclosure Letter or in the Completed Commission
Filings and except for those matters which have not had, do not have and could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company, as of the date of this Agreement, (i) each of the
Company and its Subsidiaries is in substantial compliance with all federal,
foreign, state or other applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and hours, and is not
engaged in any unfair labor practice as determined by the National Labor
Relations Board ("NLRB"); (ii) as of the date of this Agreement, no material
unfair labor practice charge or complaint against the Company or any of its
Subsidiaries is pending before the NLRB or an equivalent tribunal under
applicable foreign law; (iii) as of the date of this Agreement, there is no
labor strike, slowdown, stoppage or material dispute pending or, to the
knowledge of the Company, threatened against or involving the Company or any of
its Subsidiaries; (iv) as of the date of this Agreement, no representation
question exists respecting the employees of the Company or any of its
Subsidiaries; (v) as of the date of this Agreement, no collective bargaining
agreement is currently being negotiated by the Company or any of its
Subsidiaries and neither the Company nor any of its Subsidiaries is or has been
a party to a collective bargaining agreement; (vi) as of the date of this
Agreement, no grievance or arbitration proceeding arising out of or under a
collective bargaining agreement is pending and no claim thereunder exists or, to
the Company's knowledge, is threatened with respect to the Company's or its
Subsidiaries' operations; (vii)) as of the date of this Agreement, neither the
Company nor any of its Subsidiaries has any Equal Employment Opportunity
Commission charges or other claims of employment discrimination pending or, to
the Company's knowledge, currently threatened against the Company or any such
Subsidiary; (viii) as of the date of this Agreement, no wage and hour department
investigation of the Company or any of its Subsidiaries is pending; (ix) no
occupational health and safety claims against the Company or any of its
Subsidiaries is pending; (x) the Company and each of its Subsidiaries is in
compliance in all material respects with the terms and provisions of the
Immigration Reform and Control Act of 1986, as amended, and all related
regulations promulgated thereunder (the "Immigration Laws"); and (xi) there has
been no "mass layoff" or "plant closing" by the Company as defined in the
Federal Workers Adjustment Retraining and Notification Act ("WARN") or state law
equivalent, or any other mass layoff or plant closing that would trigger notice
pursuant to WARN or state law equivalent, within ninety (90) days prior to
earliest of the Acceptance Date, Compulsory Completion Date, Scheme Effective
Date and the termination of this Agreement pursuant to Section 8.1. As of the
date of this Agreement, the Company and its Subsidiaries is not the subject of
any inspection or investigation relating to its compliance with or violation of
the Immigration Laws, nor, as of the date of this Agreement, have they been
warned, fined or otherwise penalized by reason of any such failure to comply
with the Immigration Laws, nor is any such proceeding pending or, to the
Company's knowledge, threatened. Except as set forth on Schedule 4.11 of the
Company Disclosure Letter or the Completed Commission Filings, as of the date of
this Agreement, there exist no employment, consulting, severance,
indemnification agreements or deferred compensation agreements between the
Company and any director, officer or employee of the Company or any agreement
that would give any Person the right to receive
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any payment from the Company as a result of the Offer, the Scheme of Arrangement
or a Compulsory Acquisition.
Section 4.12 Taxes. Except as set forth on Schedule 4.12 of the
Company Disclosure Letter:
(a) Tax Returns. The Company and each of its Subsidiaries
has timely filed or caused to be timely filed or shall file or cause to be
timely filed with the appropriate taxing authorities all returns, statements,
forms and reports for Taxes (as hereinafter defined) (the "Returns") that are
required to be filed by, or with respect to, the Company and its Subsidiaries on
or prior to the earliest of the Acceptance Date, Compulsory Completion Date,
Scheme Effective Date and the termination of this Agreement pursuant to Section
8.1 or requests for extensions to file such returns, statements, forms or
reports have been timely filed or granted and have not expired, except to the
extent that such failures to file or to have extensions granted that remain in
effect have not had, do not have, and could not reasonably be expected to have ,
individually or in the aggregate, a Material Adverse Effect on the Company. The
Returns reflect accurately and shall reflect accurately all liability for Taxes
of the Company and each of its Subsidiaries for the periods covered thereby and
all other information presented on such Returns is true, correct and complete in
all material respects. "Taxes" shall mean all taxes, assessments, charges,
duties, fees, levies or other governmental charges including, without
limitation, all United States federal, state, local, foreign and, other income,
franchise, profits, capital gains, capital stock, transfer, sales, use,
occupation, property, excise, severance, windfall profits, stamp, license,
payroll, withholding and other taxes, assessments, charges, duties, fees, levies
or other governmental charges of any kind whatsoever (whether payable directly
or by withholding and whether or not requiring the filing of a Return), all
estimated taxes, deficiency assessments, additions to tax, penalties and
interest, and shall include any liability for such amounts which may be incurred
as a result either of being a member of a combined, consolidated, unitary or
affiliated group, or of a contractual obligation to indemnify any Person or
other entity.
(b) Payment of Taxes. All Taxes and Tax liabilities of the
Company and its Subsidiaries for all taxable years or periods that end on or
prior to the earliest of the Acceptance Date, the Compulsory Completion Date,
Scheme Effective Date and the termination of this Agreement pursuant to Section
8.1 and, with respect to any taxable year or period beginning prior to and
ending after the such date, the portion of such taxable year or period ending on
and including the such date, have been timely paid or shall be timely paid in
full on or prior to the such date or accrued and adequately disclosed and fully
provided for on the financial statements of the Company and its Subsidiaries in
accordance with GAAP.
(c) Other Tax Matters. (i) As of the date of this Agreement,
neither the Company nor any of its Subsidiaries has been the subject of any
material audit or other examination of Taxes by the tax authorities of any
nation, state or locality and, to the knowledge of the Company or any of its
Subsidiaries, no such audit or other examination is contemplated or pending, nor
has the Company or any of its Subsidiaries received any written notices from any
taxing authority relating to any issue which could materially affect the Tax
liability of the Company or any of its Subsidiaries;
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(i) Neither the Company nor any of its Subsidiaries
has been included in any "consolidated," "unitary" or "combined" Return
(other than Returns which include only the Company or any Subsidiaries
of the Company) provided for under the laws of any jurisdiction with
respect to Taxes, for any taxable period for which the statute of
limitations has not expired;
(ii) All Taxes which the Company or any of its
Subsidiaries is (or was) required by law to withhold or collect in
connection with amounts paid or owing to any employee, independent
contractor, creditor, shareholder, or other third party have been duly
withheld or collected, and have been timely paid over to the proper
authorities to the extent due and payable;
(iii) There are no tax sharing, allocation,
indemnification or similar agreements or arrangements in effect as
between the Company, any Subsidiary, or any predecessor or Affiliate of
any of them and any other party under which Parent, Sub, the Company or
any of its Subsidiaries could be liable for any Taxes or other claims of
any such party;
(iv) No indebtedness of the Company or any of its
Subsidiaries consists of "corporate acquisition indebtedness" within the
meaning of Section 279 of the Code or bears interest that is otherwise
nondeductible pursuant to Section 163 of the Code;
(v) Neither the Company nor any of its Subsidiaries
has applied for, been granted, or agreed to any accounting method change
for which it shall be required to take into account any adjustment
pursuant to Section 481 of the Code or any similar provision of the Code
or the corresponding tax laws of any nation, state or locality;
(vi) Neither the Company nor any of its Subsidiaries,
as of the Closing Date, (w) has entered into an agreement or waiver or
been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of Taxes of
the Company or any of its Subsidiaries, (x) as of the date of this
Agreement, is presently contesting the Tax liability of the Company or
any of its Subsidiaries before any Governmental Entity, (y) has granted
a power-of-attorney related to Tax matters to any Person, or (z) has
applied for and/or received a ruling or determination from a taxing
authority regarding a past or prospective transaction of the Company or
any of its Subsidiaries;
(vii) Neither the Company nor any of its Subsidiaries
is a "United States real property holding corporation" within the
meaning of Section 897(c)(2) of the Code;
(viii) No election under 341(f) of the Code has been
made or shall be made prior to the earliest of the Acceptance Date,
Compulsory Completion Date, Scheme Effective Date and the termination of
this Agreement pursuant to Section 8.1 to treat the Company or any of
its Subsidiaries as a consenting corporation, as defined in Section 341
of the Code;
(ix) As of the date of this Agreement, no claim has
ever been made by any taxing authority in a jurisdiction where the
Company or any of its Subsidiaries does
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not file Tax Returns that the Company or any of its Subsidiaries is, or
may be, subject to taxation by that jurisdiction;
(x) (y) There are no amounts from intercompany
transactions between the Company and any of its Subsidiaries or between
its Subsidiaries that have been recognized but not yet taken into
account under Treasury Regulation Section 1.1502-13 (or its predecessor
provisions) and there is no excess loss account (within the meaning of
Treasury Regulations Section 1.1502-19) with respect to the stock of the
Company or any of its Subsidiaries which will, or may, result in the
recognition of income upon the consummation of the transaction
contemplated by this Agreement, and (z) there are no other transactions
or facts existing with respect to the Company and/or its Subsidiaries,
which by reason of the consummation of the transaction contemplated by
this Agreement, will result in the Company and/or its Subsidiaries
recognizing income;
(xi) There are no material security interests on any
of the assets of the Company or of any Subsidiary that arose in
connection with any failure (or alleged failure) to pay Taxes;
(xii) To the knowledge of the Company, during the
period beginning on January 1, 2001 and ending on the date hereof (A)
the Company was neither (x) a foreign personal holding company within
the meaning of Section 552 of the Code, nor (y) a passive foreign
investment company within the meaning of Section 1297 of the Code, and
(B) no Shares of the Company were held by a "United States shareholder"
of the Company (within the meaning of Section 951(b) of the Code) other
than the Subject Shares (as defined in the Principal Shareholders
Agreement); and
(xiii) To the knowledge of the Company, the Company is
not engaged in the conduct of a trade or business in the United States
within the meaning of Section 864(b) of the Code.
Section 4.13 Liabilities. As of the date of this Agreement, neither
the Company nor any of its Subsidiaries has outstanding any claims, liabilities
or indebtedness, contingent or otherwise, of any kind whatsoever (whether
accrued, absolute, contingent or otherwise, and whether or not required to be
reflected in the Company's financial statements in accordance with GAAP), except
(i) as set forth in Schedule 4.13 of the Company Disclosure Letter, (ii) as set
forth in the Completed Commission Filings, (iii) for liabilities incurred since
the date of the most recent financial statements included in the Completed
Commission Filings in the ordinary course of business, and (iv) such other
claims, liabilities or indebtedness which have not had, do not have, and could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company.
Section 4.14 Intellectual Property. Except as disclosed in
Schedule 4.14(a) of the Company Disclosure Letter and except where the failure
to so own or have such right to use has not had, does not have, and could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company, the Company or its Subsidiaries owns or has a
valid and enforceable right to use, free and clear of all Liens, all
Intellectual Property
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necessary or material to conduct the businesses of the Company and its
Subsidiaries as presently conducted.
(a) Except as disclosed in Schedule 4.14(b) of the Company
Disclosure Letter and except for such infringement, violation, misappropriation
or misuse that has not had, does not have, and could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect on the
Company, the conduct of the Company's and its Subsidiaries' businesses or the
use of the Intellectual Property does not infringe, violate, misappropriate or
misuse any Intellectual Property rights or any other proprietary right of any
Person or give rise to any obligations to any Person as a result of
co-authorship.
Section 4.15 Proxy Statement; Offer Documents and Schedule 14D-9.
Neither the Schedule 14D-9 nor any of the information supplied or to be supplied
by the Company in writing for inclusion in the Offer Documents will, at the
times the Schedule 14D-9, the Offer Documents or any amendments or supplements
thereto are filed with the Commission or are first published, sent or given to
shareholders of the Company, as the case may be, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. In the event a Shareholders' Meeting
is held, the Proxy Statement to be sent to the shareholders of the Company in
connection with such Shareholders' Meeting will not, on the date the Proxy
Statement (or any amendment or supplement thereto) is first mailed to
shareholders of the Company or at the time of the Shareholders' Meeting, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the Company makes no representation
or warranty with respect to any information supplied or to be supplied by
Parent, Sub or any of their respective representatives expressly for inclusion
in the foregoing documents. The Schedule 14D-9 and the Proxy Statement, if
applicable, will comply in all material respects with the requirements of the
Exchange Act.
Section 4.16 Broker's or Finder's Fee. Except for the fees of Hicks,
Muse & Co. Partners, L.P. and J.P. Morgan Securities Inc. (whose fees and
expenses shall be paid by the Company in accordance with the Company's
agreements with such firms, true and correct copies of which have been
previously delivered or made available to Parent by the Company), no agent,
broker, Person or firm acting on behalf of the Company is, or shall be, entitled
to any fee, commission or broker's or finder's fees in connection with this
Agreement or any of the transactions contemplated hereby from any of the parties
hereto or from any Affiliate of any of the parties hereto. The fees and expenses
referred to above shall not be in excess of $30,000,000, assuming the
consolidated indebtedness for borrowed money of the Company and its Subsidiaries
is $500,017,000.
Section 4.17 Certain Contracts and Arrangements. As of the date
hereof, except as set forth on Schedule 4.17 of the Company Disclosure Letter or
as set forth as exhibits to the Completed Commission Filings, neither the
Company nor any of its Subsidiaries is a party to or bound by any contracts,
agreements, instruments or understandings ("Contracts") of the following nature
(collectively, the "Material Contracts"):
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35
(a) Contracts with any current or former employee, director
or officer of the Company or any of its Subsidiaries (other than any such person
who receives or received (during his or her last year of employment with the
Company or any of its Subsidiaries) less than $200,000 in total annual cash
compensation from the Company or any of its Subsidiaries);
(b) Contracts other than contracts entered into in the
ordinary course of business (x) for the sale of any material amount of the
assets of the Company or any of its Subsidiaries, or (y) for the grant to any
Person of any preferential rights to purchase any material amount of its assets;
(c) Contracts which materially restrict the Company or any
of its Affiliates from competing in any material line of business or with any
Person in any geographical area, or which materially restrict any other Person
from competing with the Company or any of its Affiliates in any material line of
business or in any geographical area;
(d) Contracts which are material to the Company and which
restrict the Company or any of its Subsidiaries from disclosing any information
concerning or obtained from any other Person, or which restrict any other Person
from disclosing any information concerning or obtained from the Company or any
of its Subsidiaries (other than contracts entered into in the ordinary course of
business);
(e) Contracts involving (i) the acquisition, merger or
purchase of all or substantially all of the assets or business of a third party,
involving aggregate consideration of $10,000,000 or more, or (ii) other than the
purchase or sale of assets in the ordinary course of business and other than
contracts relating to the sale of oil, gas or other petroleum products in the
ordinary course of business, the purchase or sale of assets, or a series of
purchases and sales of assets, involving aggregate consideration of $10,000,000
or more;
(f) Contracts with any Affiliate that would be required to
be disclosed under Item 404 of Regulation S-K under the Securities Act;
(g) Contracts which are material to the Company and contain
a "change in control" or similar provision;
(h) Contracts, including mortgages or other grants of
security interests, guarantees and notes, relating to the borrowing of money in
an aggregate amount in excess of $10,000,000 in the aggregate;
(i) Contracts relating to any material joint venture,
partnership, strategic alliance or similar arrangement; and
(j) Contracts existing on the date hereof involving revenues
or payments in excess of $10,000,000 per year.
Except as set forth on Schedule 4.17 of the Company Disclosure
Letter and except as has not had, does not have, and could not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect on the Company, each of the Material Contracts is in full force and
effect and neither the Company nor any of its Subsidiaries is in breach or
default
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under any Material Contract nor, to the knowledge of the Company, as of the date
of this Agreement, is any other party to any Material Contract in breach or
default thereunder.
Section 4.18 Environmental Laws and Regulations. Except as set
forth on Schedule 4.18 of the Company Disclosure Letter or in the Completed
Commission Filings and except for those matters that have not had, do not have,
and could not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect on the Company, (i) as of the date of this Agreement,
Hazardous Materials have not at any time been generated, used, treated or
stored, transported to or from, or Released or disposed of, on any Company
Property except in compliance with applicable Environmental Laws, (ii) the
Company and each of its Subsidiaries are in compliance with all Environmental
Laws and the requirements of any permits issued under such Environmental Laws
with respect to any Company Property, (iii) as of the date of this Agreement,
there are no past, pending or, to the knowledge of the Company, any threatened
Environmental Claims against the Company or any of its Subsidiaries or any
Company Property, (iv) as of the date of this Agreement, there are no facts or
circumstances, conditions or occurrences regarding any Company Property that
could reasonably be anticipated (x) to form the basis of an Environmental Claim
against the Company or any of its Subsidiaries or any Company Property for which
the Company or any of its Subsidiaries could reasonably be expected to be
liable, or (y) to cause such Company Property to be subject to any restrictions
on its ownership, occupancy, use or transferability under any Environmental Law,
and (v) there are not now any underground storage tanks located on any Company
Property.
(a) For purposes of this Agreement, the following terms
shall have the following meanings: (vi) "Company Property" means any real
property and improvements at any time owned, leased or operated by the Company
or any of its Subsidiaries; (vii) "Hazardous Materials" means (x) any petroleum
or petroleum products, radioactive materials, asbestos in any form that has
become friable, urea formaldehyde foam insulation, dielectric fluid containing
levels of polychlorinated biphenyls, and radon gas, (y) any chemicals, materials
or substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
wastes," "extremely hazardous substances," "restricted hazardous wastes," "toxic
substances," "toxic pollutants," or words of similar import, under any
applicable Environmental Law, and (z) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Governmental
Entity; (viii) "Environmental Law" means any federal, state, foreign or local
statute, law, rule, regulation, ordinance, guideline, policy, code or rule of
common law in effect and in each case, as amended, as of the date hereof and the
earliest of the Acceptance Date, the Compulsory Completion Date, the Scheme
Effective Date, and the termination of this Agreement pursuant to Section 8.1
and any judicial interpretation thereof, or order applicable to the Company or
its operations or property as of the date hereof and the earliest of the
Acceptance Date, the Compulsory Completion Date, the Scheme Effective Date, and
the termination of this Agreement pursuant to Section 8.1, including any
judicial or administrative order, consent decree or judgment, relating to the
indoor or outdoor environment, health, safety or Hazardous Materials, including
without limitation the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq.; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq.; the
Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq.;
the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Air
Act, 42 U.S.C. Section 7401 et seq.; Oil Pollution Act of 1990, 33 U.S.C.
Section 2701 et seq.; and the Safe
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Drinking Water Act, 42 U.S.C. Section 300f et seq., and their state and local
counterparts and equivalents; (ix) "Environmental Claims" means any and all
administrative, regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigations or
proceedings under any Environmental Law or any permit issued under any such
Environmental Law (for purposes of this subclause (iv), "Claims"), including
without limitation (x) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law, and (y) any and
all Claims by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the indoor or outdoor environment; and (x) "Release" or "Released" means
disposing, discharging, injecting, spilling, leaking, leaching, dumping,
emitting, escaping, emptying or seeping into or upon any land or water or air,
or otherwise entering into the indoor or outdoor environment.
Section 4.19 Takeover Statutes. No "business combination",
"moratorium", "control share" or other anti-takeover statute or similar statute
or regulation is applicable to the Offer, the Scheme of Arrangement, the
Compulsory Acquisition, the Principal Shareholders Agreement or this Agreement
(including all of the transactions contemplated hereby).
Section 4.20 Voting Requirements. The affirmative vote of a majority
in number representing seventy-five percent (75%) in value of the members or
class of members, as the case may be, present and voting either in person or by
proxy at the Shareholders' Meetings is necessary to approve the Scheme of
Arrangement pursuant to Sections 86 and 87 of the Companies Law. Where the Offer
has, within four (4) months after making the Offer, been approved by the holders
of not less than ninety percent (90%) in value of the Ordinary Shares, Sub may
at any time within two (2) months after the expiration of the said four (4)
months give notice in the prescribed manner to any dissenting shareholder that
it desires to acquire such dissenting shareholder's shares, and where such
notice is given, the Company shall, unless on an application made by the
dissenting shareholder within one (1) month from the date on which the notice
was given, the Court thinks fit to order otherwise, be entitled and bound to
acquire those Shares on the terms of the Offer.
Section 4.21 Rights Agreement. The Company and the Board of Directors
of the Company have taken all necessary action to amend the Rights Agreement
(without redeeming the Rights), and shall maintain in effect all necessary
action (i) to render the Rights Agreement inapplicable with respect to the
Offer, the Scheme of Arrangement, the Compulsory Acquisition, the Principal
Shareholders Agreement, and the other transactions contemplated hereby and
thereby, and (ii) to ensure that (x) neither Parent nor Sub nor any of their
"Affiliates" (as defined in the Rights Agreement) or "Associates" (as defined in
the Rights Agreement) is considered to be an "Acquiring Person" (as defined in
the Rights Agreement), and (y) the provisions of the Rights Agreement, including
the occurrence of a "Distribution Date" (as defined in the Rights Agreement),
are not and shall not be triggered by reason of the announcement or consummation
of the Offer, the Scheme of Arrangement, the Compulsory Acquisition, the
Principal Shareholders Agreement or the consummation of any of the other
transactions contemplated hereby and thereby. The Company has delivered or made
available to Parent a complete and correct copy of the Rights Agreement, as
amended, and the Rights Agreement has not been further modified or amended.
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Section 4.22 Opinion of Financial Advisor. The Company has received
the opinion of J.P. Morgan Securities Inc. (a complete and correct signed copy
of which has been, or promptly upon receipt thereof shall be, delivered to
Parent for information purposes only, but such opinion shall not be addressed to
Parent, nor shall Parent be entitled to rely thereon) to the effect that, as of
the date of this Agreement, the consideration to be received pursuant to the
Offer and either the proposed Scheme of Arrangement or the proposed Compulsory
Acquisition, as applicable, by the holders of Shares (other than Parent or any
direct or indirect Subsidiary thereof) is fair, from a financial point of view,
to such holders (other than, in the case of the transactions contemplated by the
Principal Shareholders Agreement, the Principal Shareholders), subject to the
qualifications and assumptions contained therein, and such opinion has not been
withdrawn or modified.
Section 4.23 Insurance. Except as set forth on Schedule 4.23 of the
Company Disclosure Letter, all insurance policies which are owned by the Company
or its Subsidiaries or which name the Company or any of its Subsidiaries as an
insured, additional insured, or loss payee, including without limitation those
which pertain to the Company's or any of its Subsidiaries' assets, employees or
operations are in full force and effect, are valid and enforceable, and all
premiums due thereunder have been paid and cover against the risks of the nature
normally insured against by entities in the same or similar lines of business,
in coverage amounts typically and reasonably carried by such entities. As of
date of this Agreement, neither the Company nor any of its Subsidiaries has
received any notice of cancellation or modification in coverage amounts of any
such insurance policies.
Section 4.24 Permitted Transfer. The execution and delivery of the
Principal Shareholders Agreement by the Principal Shareholders and the
performance of their obligations thereunder is not prohibited by, or subject to,
any prior approval or consent under, the Investor Rights Agreement that has not
been obtained. Article 3 of the Investor Rights Agreement (entitled
"Restrictions On Transfer") is inapplicable to any transfer or disposition by a
holder of Shares, including by tender into the Offer or otherwise pursuant to
the Principal Shareholders Agreement.
Section 4.25 Impact on Conversion Rights. This Agreement is
consistent with, and contains the provisions for the benefit of the holders of
the Preferred Shares required by, subsection 5(d) of the Unanimous Written
Consent of the Board of Directors of the Company dated September 30, 1998
authorizing the issuance of the Preferred Shares.
Section 4.26 Prepayments. As of the date of this Agreement, neither
the Company nor any Subsidiary is obligated, by virtue of a prepayment
arrangement, make-up right under a production sales Contract containing a "take
or pay" or similar provision, production payment or any other arrangement, to
deliver hydrocarbons, or proceeds from the sale thereof, attributable to any of
its properties at some future time without then or thereafter being entitled to
receive payment of the contract price thereof.
Section 4.27 Gas Imbalances. As of the date of this Agreement, except
as set forth on Schedule 4.27 of the Company Disclosure Letter, neither the
Company nor any Subsidiary has (i) any obligation to deliver gas from the Oil
and Gas Properties (or cash in lieu thereof) to other owners of interests in
those properties as a result of past production by the Company, any
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Subsidiary or any of their predecessors in excess of the share to which they
were entitled or (ii) any right to receive deliveries of gas from the Oil and
Gas Properties (or cash in lieu thereof) from other owners of interests in those
properties as a result of past production by the company, any Subsidiary or any
of their predecessors of less than the share to which they were entitled.
Section 4.28 Non-consent Operations. As of the date of this
Agreement, except as set forth on Schedule 4.28 of the Company Disclosure
Letter, there are no operations on the Oil and Gas Properties in which the
Company's or any Subsidiary's commitment would have exceeded $5,000,000, being
conducted as of January 1, 1999, or any time thereafter, in which the Company or
any Subsidiary was entitled to participate and did not participate.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Section 5 Representations and Warranties of Parent and Sub. Each
of Parent and Sub hereby represents and warrants to the Company as follows:
Section 5.1 Due Organization, Good Standing and Corporate Power.
Parent is a corporation duly organized and validly existing under the laws of
Delaware. Sub is a company limited by shares duly organized, validly existing
and in good standing under the laws of the Cayman Islands.
Section 5.2 Authorization and Validity of Agreement. Each of Parent
and Sub has the requisite corporate power and authority to execute and deliver
this Agreement and the Principal Shareholders Agreement, to perform its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance of this
Agreement and the Principal Shareholders Agreement by Parent and Sub and the
consummation by each of them of the transactions contemplated hereby and thereby
have been duly authorized by the Board of Directors of each of Parent and Sub.
No other corporate action on the part of either of Parent or Sub is necessary to
authorize the execution, delivery and performance of this Agreement and the
Principal Shareholders Agreement by each of Parent and Sub and the consummation
of the transactions contemplated hereby and thereby. This Agreement and the
Principal Shareholders Agreement have been duly executed and delivered by each
of Parent and Sub and, assuming that this Agreement and the Principal
Shareholders Agreement constitute valid and binding obligations of the Company,
constitute valid and binding obligations of each of Parent and Sub, enforceable
against each of Parent and Sub in accordance with their terms, except that such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally, and
general equitable principles.
Section 5.3 Consents and Approvals; No Violations. Assuming (i) the
filings required under the Antitrust Laws are made and the applicable waiting
periods thereunder have been terminated or have expired, (ii) the requirements
of the Exchange Act relating to the Proxy Statement, if any, and the Offer are
met, (iii) the filing of the documents relating to the Scheme of Arrangement, if
any, as required by the Companies Law, are made, and (iv) approval of the Scheme
of Arrangement and this Agreement by the shareholders of the Company, if
required by the
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Companies Law, is received, (v) all approvals and sanctions by the Court in
accordance with the Companies Law in connection with the transactions
contemplated by the Transaction Documents have been obtained, and (vi) all
filings with the New York Stock Exchange have been made, the execution and
delivery of this Agreement by Parent and Sub and the consummation by Parent and
Sub of the transactions contemplated hereby and thereby shall not: (vii) violate
or conflict with any provision of the Certificate of Incorporation or by-laws of
Parent or the Articles of Association or Memorandum of Association of Sub; (x)
violate or conflict with any statute, ordinance, rule, regulation, order or
decree of any Governmental Entity applicable to Parent or Sub or by which either
of their respective properties or assets may be bound; (y) require any filing
with, or Permit consent or approval of, or the giving of any notice to, any
Governmental Entity; or (z) result in a violation or breach of, conflict with,
constitute (with or without due notice or lapse of time or both) a default under
(or give rise to any right of termination, cancellation or acceleration or any
right which becomes effective upon the occurrence of a merger, amalgamation,
scheme of arrangement, consolidation or change of control under), or result in
the creation of any Lien upon any of the properties or assets of the Parent or
Sub under, or give rise to any obligation, right of termination, cancellation,
acceleration or increase of any obligation or a loss of a material benefit or
any right which becomes effective upon the occurrence of a merger, amalgamation,
scheme of arrangement, consolidation or change of control under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, license,
franchise, Permit, agreement, contract, arrangement, lease or other instrument
or obligation to which Parent or Sub or any of their Subsidiaries is a party, or
by which any such Person or any of its properties or assets may be bound, other
than in the case of clauses (x), (y) and (z), any such violation, breach,
conflict, default, right of termination, cancellation, payment, acceleration,
other right or failure to make any filing or obtain any Permit, consent or
approval of, or give notice to, any Governmental Entity that has not had, does
not have, and could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Parent or Sub.
Section 5.4 Offer Documents, Schedule 14D-9 and Proxy Statement.
None of the information supplied or to be supplied by Parent or Sub for
inclusion in the Offer Documents will, at the time the Offer Documents or any
amendments or supplements thereto are filed with the Commission or are first
published, sent or given to shareholders of the Company, as the case may be,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not
misleading. None of the information supplied or to be supplied by Parent and Sub
expressly for inclusion in the Proxy Statement and the Schedule 14D-9 (or any
amendment or supplement thereto) will, on the date mailed to shareholders of the
Company or at the time of the Shareholders' Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. Notwithstanding
the foregoing, Parent and Sub make no representation or warranty with respect to
any information supplied or to be supplied by the Company for inclusion in any
of the foregoing documents or the Offer Documents. The Offer Documents will
comply in all material respects with the requirements of the Exchange Act.
Section 5.5 Broker's or Finder's Fee. Except for Goldman Sachs &
Co., Inc. (whose fees and expenses as financial advisor to Parent and Sub shall
be paid by Parent or Sub), no
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agent, broker, Person or firm acting on behalf of Parent or Sub is or shall be
entitled to any fee, commission or broker's or finder's fees in connection with
this Agreement or any of the transactions contemplated hereby from any of the
parties hereto, or from any Affiliate of the parties hereto.
Section 5.6 Sub's Operations. Sub was formed solely for the purpose
of engaging in the transactions contemplated by this Agreement and has not
engaged in any business activities or conducted any operations other than in
connection with such transactions.
Section 5.7 Funds. Parent or Sub has, and shall have at the
expiration of the Offer and at the Compulsory Completion Date or the Scheme
Effective Date, as the case may be, sufficient funds available to satisfy the
obligation to pay for Ordinary Shares tendered (and not withdrawn) in the Offer,
for Ordinary Shares purchased in the Compulsory Acquisition and to pay the Cash
Consideration in the Scheme of Arrangement and all fees and expenses incurred by
Parent or Sub in connection with the Offer, the Compulsory Acquisition and the
Scheme of Arrangement. Parent's and Sub's obligations hereunder are not subject
to any conditions regarding their ability to obtain financing for the
consummation of the transactions contemplated by the Transaction Documents.
Section 5.8 Litigation. As of the date of this Agreement, there is
no suit, action, proceeding or indemnification claim pending or, to the
knowledge of Parent, threatened against or affecting Parent or any of its
Subsidiaries that individually or in the aggregate reasonably could be expected
to (i) impair the ability of Parent or Sub to perform its obligations under the
Transaction Documents in any material respect or (ii) delay in any material
respect or prevent the consummation of any of the transactions contemplated by
the Transaction Documents, nor is there any judgment, decree, injunction, rule
or order of any Governmental Entity or arbitrator outstanding against Parent or
any of its Subsidiaries having, or which reasonably could be expected to have,
any effect referred to in clause (i) or (ii) above.
ARTICLE VI
CERTAIN COVENANTS
Section 6.1 Access to Information Concerning Properties and Records.
During the period commencing on the date hereof and ending on the earlier of (i)
the Compulsory Completion Date, (ii) the Scheme Effective Date and (iii) the
date on which this Agreement is terminated pursuant to Section 8.1 hereof, the
Company shall, and shall cause each of its Subsidiaries to, upon reasonable
notice, afford Parent and Sub and their respective employees, counsel,
accountants, consultants and other authorized representatives, reasonable access
during normal business hours to the officers, directors, employees, accountants,
properties, books and records of the Company and its Subsidiaries in order that
they may have the opportunity to make such investigations as they shall desire
of the affairs of the Company and its Subsidiaries; provided, however, that such
investigation shall not affect the representations and warranties made by the
Company in this Agreement. The Company shall furnish promptly to Parent and Sub
(x) a copy of each form, report, schedule, statement, registration statement and
other document filed by it or its Subsidiaries during such period pursuant to
the requirements of United States federal or state securities laws and (y) all
other information concerning its or its Subsidiaries' business,
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properties and personnel as Parent and Sub may request. The Company agrees to
cause its officers and employees to furnish such additional financial and
operating data and other information and respond to such inquiries as Parent and
Sub shall from time to time reasonably request.
Section 6.2 Confidentiality. Information obtained by Parent, Sub and
their respective counsel, accountants, consultants and other authorized
representatives pursuant to Section 6.1 shall be subject to the provisions of
the Confidentiality Agreement by and between the Company and Parent, dated June
4, 2001 (the "Confidentiality Agreement").
Section 6.3 Conduct of the Business of the Company. The Company
agrees that, except as expressly permitted or required by this Agreement or the
other Transaction Documents or otherwise consented to in writing by Parent,
during the period commencing on the date hereof and continuing until the
earliest to occur of (w) the Acceptance Date, (x) the Compulsory Completion
Date, (y) the Scheme Effective Date and (z) the termination of this Agreement
pursuant to Section 8.1:
(a) Except as set forth on Schedule 6.3 of the Company
Disclosure Letter, the Company and each of its Subsidiaries shall conduct their
respective operations only according to their ordinary and usual course of
business and shall use their commercially reasonable efforts to preserve intact
their respective business organization, keep available the services of their
officers and employees and maintain satisfactory relationships with licensors,
suppliers, distributors, clients, customers and others having business
relationships with them;
(b) Except as set forth on Schedule 6.3 of the Company
Disclosure Letter, neither the Company nor any of its Subsidiaries shall,
subject always to the fiduciary duties of the Board of Directors and their
obligation to comply with the Companies Laws:
(i) make any change in or amendment to its
memorandum of association or its articles of association (or comparable
governing documents);
(ii) issue or sell, or authorize to issue or sell,
any Shares of its share capital or any other securities, or issue or
sell, or authorize to issue or sell, any securities convertible into or
exchangeable for, or options, warrants or rights to purchase or
subscribe for, or enter into any arrangement or contract with respect to
the issuance or sale of, any Shares of its share capital or any other
securities, or make any other changes in its capital structure, except
for (A) the possible issuance by the Company of (x) Ordinary Shares upon
the conversion of Preferred Shares or (y) Ordinary Shares pursuant to
the terms of any vested Options or (B) the redemption of the Preferred
Shares in accordance with their terms;
(iii) sell, pledge or dispose of or agree to sell,
pledge or dispose of any Shares or other equity interest owned by it in
any other Person in excess of $10,000,000 in the aggregate;
(iv) declare, pay or set aside any dividend or other
distribution or payment with respect to, or split, combine, redeem or
reclassify, or purchase or otherwise
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acquire, any Shares of its share capital or its other securities, except
for the redemption of the Preferred Shares in accordance with their
terms;
(v) enter into any contract or commitment with
respect to capital expenditures with a value in excess of, or requiring
expenditures by the Company and its Subsidiaries in excess of,
$10,000,000, individually, or enter into contracts or commitments with
respect to capital expenditures with a value in excess of, or requiring
expenditures by the Company and its Subsidiaries in excess of,
$30,000,000, in the aggregate;
(vi) acquire, by merging, amalgamating or
consolidating with, by purchasing an equity interest in or a portion of
the assets of, or by any other manner, any business or any Person, or
otherwise acquire any assets of any Person (other than the purchase of
assets in the ordinary course of business);
(vii) except to the extent required under existing
employee and director benefit plans, agreements or arrangements in
effect on the date of this Agreement, increase the compensation or
fringe benefits of any of its directors, officers or employees, or grant
any severance or termination pay not currently required to be paid under
existing severance plans, or enter into any employment, consulting or
severance agreement or arrangement with any present or former director,
officer or other employee of the Company or any of its Subsidiaries, or
establish, adopt, enter into or amend or terminate any collective
bargaining, bonus, profit sharing, thrift, compensation, stock option,
restricted stock, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement, trust,
fund, policy or arrangement for the benefit of any directors, officers
or employees;
(viii) transfer, lease, license, guarantee, sell,
mortgage, pledge, dispose of, subject to any Lien (other than a
Permitted Lien) or otherwise encumber any material assets, or incur or
modify any indebtedness or other material liability other than in the
ordinary course of business, or issue any debt securities or assume,
guarantee or endorse or otherwise as an accommodation become responsible
for the obligations of any Person;
(ix) agree to the settlement of or waive any material
claim or litigation;
(x) make or rescind any material tax election or
settle or compromise any material tax liability;
(xi) except as required by applicable law or GAAP,
make any material change in its method of accounting;
(xii) adopt or enter into a plan of complete or
partial liquidation, dissolution, merger, amalgamation, scheme of
arrangement, consolidation, restructuring, recapitalization or other
reorganization of the Company or any of its Subsidiaries (other than the
Scheme of Arrangement) or any agreement relating to an Acquisition
Proposal, except as expressly permitted in Section 6.6;
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(xiii) incur, assume or prepay any indebtedness for
borrowed money or guarantee any such indebtedness of another Person,
other than indebtedness owing to or guarantees of indebtedness owing to
the Company or any direct or indirect wholly-owned Subsidiary of the
Company, or (y) make any loans, extensions of credit or advances to any
other Person, other than to the Company, or to any direct or indirect
wholly-owned Subsidiary of the Company, except, in the case of clause
(x), for borrowings under existing credit facilities described in the
Completed Commission Filings in the ordinary course of business for
working capital purposes and in the case of clause (y) for loans,
extensions of credit or advances constituting trade payables in the
ordinary course of business;
(xiv) except as permitted by Section 3.5, occurring as
a result of the Transactions contemplated by this Agreement or as
required under any employee benefit plan or other agreement or contract
to which the Company is a party as of the date of this Agreement,
accelerate the payment, right to payment or vesting of any bonus,
severance, profit sharing, retirement, deferred compensation, stock
option, insurance or other compensation or benefits;
(xv) pay, discharge or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or
satisfaction (x) of any such claims, liabilities or obligations in the
ordinary course of business or (y) of claims, liabilities or obligations
reflected or reserved against in the most recent consolidated financial
statements (or the notes thereto) contained in the Completed Commission
Filings;
(xvi) enter into any Material Contract except in the
ordinary course of business;
(xvii) other than as disclosed in the Completed
Commission Filings, plan, announce, implement or effect any reduction in
force, lay-off, early retirement program, severance program or other
program or effort concerning the termination of employment of employees
of the Company or its Subsidiaries, provided, however, that routine
employee terminations for cause shall not be considered subject to this
clause (xvii);
(xviii) take any action, engage in any transaction or
enter into any agreement, except as required by any order, judgment or
decree of any Governmental Entity, which would cause (A) any of the
representations or warranties set forth in Article IV that are subject
to, or qualified by, a "Material Adverse Effect", "material adverse
change" or other materiality qualification to be untrue as of the
earliest to occur of the Acceptance Date, the Compulsory Completion Date
or the Scheme Effective Date, or any such representations and warranties
that are not so qualified to be untrue in any manner that could
reasonably be expected to result in a Material Adverse Effect on the
Company, or (B) any of the Tender Offer Conditions not being satisfied;
or (y) purchase or acquire, or offer to purchase or acquire, any Shares;
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(xix) take any action, including, without limitation,
the adoption of any shareholder-rights plan or amendments to its
Memorandum of Association and Articles of Association (or comparable
governing documents), which would, directly or indirectly, restrict or
impair the ability of Parent to vote or otherwise to exercise the rights
and receive the benefits of a shareholder with respect to securities of
the Company that may be acquired or controlled by Parent or Sub, or
which would permit any shareholder to acquire securities of the Company
on a basis not available to Parent or Sub in the event that Parent or
Sub were to acquire any Shares;
(xx) materially modify, amend or terminate any
Material Contract or waive any of its material rights or claims except
in the ordinary course of business;
(xxi) (A) prepare any Return in a manner which is
materially inconsistent with the past practices of the Company or a
Subsidiary, as the case may be, with respect to the treatment of items
on such Returns; (B) incur any material liability for Taxes other than
in the ordinary course of business; or (C) enter into any settlement or
closing agreement with a taxing authority that materially affects or
could reasonably be expected to materially affect the Tax liability of
the Company or a Subsidiary, as the case may be, for any period ending
after the Closing Date;
(xxii) fail to maintain with financially responsible
insurance companies insurance on its tangible assets and its businesses
in such amounts and against such risks and losses; or
(xxiii) agree, in writing or otherwise, to take any of
the foregoing actions.
Section 6.4 Compulsory Acquisition. In the event that, following the
purchase of Ordinary Shares pursuant to the Offer (including any Subsequent
Offer Period), Parent, Sub and any other Subsidiary of Parent shall own Ordinary
Shares which represent at least ninety percent (90%) in value of the Ordinary
Shares affected, the Company, Parent and Sub agree to take all necessary and
appropriate action for Sub to effect the compulsory acquisition (the "Compulsory
Acquisition") of those outstanding Ordinary Shares not owned by Parent, Sub or
any other Subsidiary of Parent in accordance with Section 88 of the Companies
Law as promptly as practicable after the Acceptance Date.
Section 6.5 Commercially Reasonable Efforts; Further Assurances.
Subject to the terms and conditions provided herein, each of the Company, Parent
and Sub shall, and the Company shall cause each of its Subsidiaries to,
cooperate and use their commercially reasonable efforts to take, or cause to be
taken, all appropriate action, and do, or cause to be done, and assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Offer, and the other transactions contemplated hereby,
including the satisfaction of the respective conditions set forth in the Article
VII, and to make, or cause to be made, all filings necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement, including their commercially
reasonable efforts to obtain, all licenses, Permits, consents, approvals,
authorizations, qualifications and orders of Governmental Entities and parties
to contracts with the Company and its Subsidiaries as are
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necessary for consummation of the transactions contemplated by this Agreement
and to fulfill the conditions to the Offer and the Scheme of Arrangement, as the
case may be; provided, however, that no loan agreement or contract for borrowed
money shall be repaid, in whole or in part, except as currently required by its
terms, and no contract shall be amended to increase the amount payable
thereunder or otherwise to be more burdensome to the Company or any of its
Subsidiaries in order to obtain any such consent, approval or authorization
without first obtaining the written approval of Parent and Sub.
Section 6.6 No Solicitation of Other Offers. The Company shall, and
shall use its reasonable best efforts to cause its Affiliates and each of its
and their respective officers, directors, employees, representatives,
consultants, investment bankers, attorneys, accountants and other agents
immediately to, cease any discussions or negotiations with any other Person or
Persons that may be ongoing with respect to any Acquisition Proposal. The
Company shall not take, and shall use its reasonable best efforts to cause its
Affiliates and its and their respective officers, directors, employees,
representatives, consultants, investment bankers, attorneys, accountants or
other agents or Affiliates not to take, any action (i) to encourage, solicit,
initiate or facilitate, directly or indirectly, the making or submission of any
Acquisition Proposal (including, without limitation, by taking any action that
would make the Rights Agreement inapplicable to an Acquisition Proposal), (ii)
to enter into any agreement, arrangement or understanding with respect to any
Acquisition Proposal, or to agree to approve or endorse any Acquisition Proposal
or enter into any agreement, arrangement or understanding that would require the
Company to abandon, terminate or fail to consummate the Offer or the Scheme of
Arrangement or any other transaction contemplated by the Transaction Documents,
(iii) to initiate or participate in any way in any discussions or negotiations
with, or furnish or disclose any information to, any Person (other than Parent
or Sub) in connection with any Acquisition Proposal, (iv) to facilitate or
further in any other manner any inquiries or the making or submission of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal, or (v) to grant any waiver or release under any
standstill, confidentiality or similar agreement entered into by the Company or
any of its Affiliates or representatives; provided, however, that the Company,
in response to an unsolicited Acquisition Proposal that did not result from a
breach of this Section 6.6(a) and otherwise in compliance with its obligations
under Section 6.6(c) hereof, may (x) request clarifications from, or furnish
information to, (but not enter into discussions with) any Person (other than
Parent or Sub) which makes such unsolicited Acquisition Proposal if (A) such
action is taken subject to a confidentiality agreement with terms not more
favorable to such Person than the terms of the Confidentiality Agreement (as in
effect on the date hereof), (B) such action is taken solely for the purpose of
obtaining information reasonably necessary to ascertain whether such Acquisition
Proposal is, or could reasonably likely lead to, a Superior Proposal, and (C) a
majority of the members of the entire Board of Directors of the Company
reasonably determines in good faith, after receiving advice from Cayman Islands
counsel to the Company, that it is necessary to take such actions in order to
comply with the fiduciary duties of the Board of Directors of the Company under
applicable law; or (y) participate in discussions with, request clarifications
from, or furnish information to, any Person (other than Parent or Sub) which
makes such unsolicited Acquisition Proposal if (A) such action is taken subject
to a confidentiality agreement with terms not more favorable to such third party
than the terms of the Confidentiality Agreement (as in effect on the date
hereof), (B) after consultation with an independent, nationally recognized
investment bank, a majority of the members of the entire Board of Directors of
the Company reasonably determines in good faith
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that such Acquisition Proposal is a Superior Proposal, and (C) a majority of the
members of the entire Board of Directors of the Company reasonably determines in
good faith, after receiving advice from Cayman Islands counsel to the Company,
that it is necessary to take such actions in order to comply with the fiduciary
duties of the Board of Directors under applicable law. Without limiting the
foregoing, Parent, Sub and the Company agree that any violation of the
restrictions set forth in this Section 6.6(a) by any Affiliate, officer,
director, employee, representative, consultant, investment banker, attorney,
accountant or other agent of the Company or any of its Affiliates, whether or
not such Person is purporting to act on behalf of the Company or any of its
Affiliates, shall constitute a breach by the Company of this Section 6.6(a). The
Company shall enforce, to the fullest extent permitted under applicable law, the
provisions of any standstill, confidentiality or similar agreement entered into
by the Company or any of its Affiliates or representatives including, but not
limited to, where necessary, obtaining injunctions to prevent any breaches of
such agreements and to enforce specifically the terms and provisions thereof in
any court having jurisdiction.
(a) Neither the Board of Directors of the Company nor any
committee thereof shall (i) withdraw, modify or amend, or propose to withdraw,
modify or amend, in a manner adverse to Parent or Sub, the approval, adoption
or, as the case may be, recommendation of the Offer, the Scheme of Arrangement,
the transactions contemplated by the Transaction Documents or this Agreement, or
(ii) approve or recommend, or propose to approve or recommend, any Acquisition
Proposal or (iii) resolve to do any of the foregoing; provided that prior to the
Acceptance Date the Company may recommend to its shareholders an Acquisition
Proposal and, in connection therewith, withdraw or modify its approval or
recommendation of the Offer or the Amalgamation if (x) the Company has complied
with its obligations under Section 6.6(a) and (c), (y) the Acquisition Proposal
is a Superior Proposal, and (z) (A) the Board of Directors has determined, in
good faith, that it is necessary to take such action in order to comply with the
fiduciary duties of the Board of Directors under applicable law, (B) five (5)
Business Days have elapsed following delivery to Parent of a written notice of
the determination of the Board of Directors, (C) during such period the Company
has fully cooperated with Parent including, without limitation, informing Parent
of the terms and conditions of such Superior Proposal and the identity of the
Person making such Superior Proposal, with the intent of enabling Parent and the
Company to agree to a modification of the terms and conditions of this Agreement
and (D) at the end of such five (5) Business Day period the Acquisition Proposal
continues to constitute a Superior Proposal. Nothing in this Section 6.6 shall
prohibit the Company or its Board of Directors from taking and disclosing to the
Company's shareholders a position with respect to an Acquisition Proposal by a
third party to the extent required under Rule 14e-2 of the Exchange Act.
"Acquisition Proposal" shall mean (i) any inquiry, proposal or
offer (including, without limitation, any proposal to shareholders of the
Company) from any Person or group relating to any direct or indirect acquisition
or purchase of fifteen percent (15%) or more of the consolidated assets of the
Company and its Subsidiaries or fifteen percent (15%) or more of any class of
equity securities of the Company or any of its Subsidiaries, (ii) any tender
offer or exchange offer that, if consummated, would result in any Person
beneficially owning fifteen percent (15%) or more of any class of equity
securities of the Company or any of its Subsidiaries, (iii) any merger,
amalgamation, scheme of arrangement, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving the
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Company or any of its Subsidiaries, or (iv) any other transaction the
consummation of which could reasonably be expected to impede, interfere with,
prevent or materially delay the Offer or the Scheme of Arrangement or the other
transactions contemplated by the Transaction Documents or which could reasonably
be expected to dilute materially the benefits to Parent of the transactions
contemplated the Transaction Documents.
"Superior Proposal" shall mean a bona fide binding written offer
not solicited by or on behalf of the Company made by a third party to acquire
all of the Shares pursuant to a tender offer, a merger, an amalgamation, a
scheme of arrangement, or to acquire all or substantially all of the assets of
the Company (i) on terms which a majority of the members of the entire Board of
Directors of the Company based on the written advice of an independent
nationally recognized investment bank) reasonably determines in good faith to
have a higher value than the consideration to be received by the shareholders of
the Company (in their capacity as such) than the transactions contemplated
hereby (to the extent the transactions contemplated hereby are proposed to be
modified by Parent in accordance with this Section 6.6(b)), (ii) which is
reasonably capable of being consummated (taking into account, among other
things, all legal, financial, regulatory and other aspects of such proposal and
the identity of the Person making such proposal) and (iii) that is not
conditioned on obtaining any financing.
(b) In addition to the obligations of the Company set forth
in paragraph (a), on the date of receipt or occurrence thereof, the Company
shall advise Parent of any request for information with respect to any
Acquisition Proposal or of any Acquisition Proposal, or any inquiry, proposal,
discussions or negotiation with respect to any Acquisition Proposal, the terms
and conditions of such request, Acquisition Proposal, inquiry, proposal,
discussion or negotiation and the Company shall, within one (1) day of the
receipt thereof, promptly provide to Parent copies of any written materials
received by the Company in connection with any of the foregoing, and the
identity of the Person making any such Acquisition Proposal or such request,
inquiry or proposal or with whom any discussion or negotiation are taking place.
The Company shall keep Parent fully informed of the status and material details
(including amendments or proposed amendments) of any such request or Acquisition
Proposal and keep Parent fully informed as to the material details of any
information requested of or provided by the Company and as to the details of all
discussions or negotiations with respect to any such request, Acquisition
Proposal, inquiry or proposal, and shall provide to Parent within one (1) day of
receipt thereof all written materials received by the Company with respect
thereto. The Company shall promptly provide to Parent any non-public information
concerning the Company provided to any other Person in connection with any
Acquisition Proposal which was not previously provided to Parent.
(c) The Company shall immediately request each Person which
has heretofore executed a confidentiality agreement in connection with its
consideration of acquiring the Company or any portion thereof to return all
confidential information heretofore furnished to such Person by or on behalf of
the Company, and the Company shall use its commercially reasonable efforts to
have such information returned.
Section 6.7 Notification of Certain Matters. Parent and the Company
shall promptly notify each other of the occurrence or non-occurrence of any fact
or event which has caused or could reasonably likely cause (a) any
representation or warranty made by it (including, in the
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case of Parent, Sub) in this Agreement to be untrue or inaccurate in any
material respect at any time from the date hereof to the earlier of the
Compulsory Completion Date and the Scheme Effective Time, or (b) any covenant,
condition or agreement under this Agreement not to be complied with or satisfied
by it (including, in the case of Parent, Sub) in any material respect; provided,
however, that no such notification shall modify the representations or
warranties of any party or the conditions to the obligations of any party
hereunder. Each of the Company, Parent and Sub shall give prompt notice to the
other parties hereof of any notice or other communication from any third party
alleging that the consent of such third party is or may be required in
connection with the transactions contemplated by this Agreement.
Section 6.8 HSR Act. Each party hereto shall (i) take promptly all
actions necessary to make the filings required of it or any of its Affiliates
under any applicable Antitrust Laws in connection with this Agreement and the
transactions contemplated hereby, including but not limited to filing pursuant
to the HSR Act no later than the tenth (10th) day following the date hereof a
Notification and Report Form with respect to the transactions contemplated by
this Agreement, (ii) comply at the earliest practicable date with any formal or
informal request for additional information or documentary material received by
it or any of its Affiliates from any Antitrust Authority, and (iii) cooperate
with one another in connection with any filing under applicable Antitrust Laws
and in connection with resolving any investigation or other inquiry concerning
the transactions contemplated by this Agreement initiated by any Antitrust
Authority.
(a) Each party hereto shall use its commercially reasonable
efforts to resolve such objections, if any, as may be asserted with respect to
the transactions contemplated by this Agreement under any Antitrust Law. Without
limiting the generality of the foregoing, "commercially reasonable efforts"
shall include:
(i) in the case of each of Parent and the Company,
if Parent or the Company receives a formal request for additional
information or documentary material from an Antitrust Authority,
substantially complying with such formal request within sixty (60) days
following the date of its receipt thereof or such; and
(ii) in the case of the Company only, subject to
Parent's compliance with clause (i) above, not frustrating or impeding
Parent's strategy or negotiating positions with any Antitrust Authority.
(b) Each party hereto shall promptly inform the other
parties of any material communication made to, or received by such party from,
any Antitrust Authority or any other Governmental Entity regarding any of the
transactions contemplated hereby.
Section 6.9 Directors' and Officers' Indemnification and Insurance.
The provisions with respect to indemnification and exculpation from liability
set forth in the Company's Memorandum of Association, as amended, and Articles
of Association, as in effect on the date of this Agreement, shall not be
amended, repealed or otherwise modified for a period of six years from the
earliest of the Acceptance Date, the Compulsory Completion Date, the Scheme
Effective Time and the expiration of this Agreement pursuant to Section 8.1 in
any manner that would adversely affect the rights thereunder of individuals who
on or prior to such date were directors or officers of the Company, unless such
modification is required by law. The Company
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shall honor in accordance with their terms, to the fullest extent permitted by
applicable law, all indemnity agreements set forth in Schedule 6.9 of the
Company Disclosure Letter. Notwithstanding the foregoing, in respect of any
Continuing Director, the provisions with respect to indemnification and
exculpation from liability set forth in the Company's Memorandum of Association,
as amended, and Articles of Association, as in effect on the date of this
Agreement, shall not be amended, repealed or otherwise modified for a period of
six years from the Discontinuance Date in any manner that would adversely affect
the rights thereunder of any Continuing Director, unless such modification is
required by law.
(a) For a period of six (6) years from the earliest of the
Acceptance Date, the Compulsory Completion Date, the Scheme Effective Time and
the expiration of this Agreement pursuant to Section 8.1, (i) the Company shall
maintain in effect the Company's current directors' and officers' liability
insurance covering those Persons who are currently covered on the date of this
Agreement by the Company's directors' and officers' liability insurance policy
(the "Indemnified Parties"); provided, however, that in no event shall the
Company be required to expend in any one year an amount in excess of one hundred
and fifty percent (150%), of the annual premiums currently paid by the Company
for such insurance which the Company represents to be $581,800 for the twelve
month period ending on June 30, 2002; provided, further, that if the annual
premiums of such insurance coverage exceed such amount, the Company shall be
obligated to obtain a policy with the greatest coverage available for a cost not
exceeding such amount; and provided, further, that the Company may substitute
for such Company policies other policies with at least the same coverage
containing terms and conditions which are no less advantageous, and provided
that said substitution does not result in any gaps or lapses in coverage with
respect to matters occurring prior to the earliest of the Acceptance Date, the
Compulsory Completion Date, the Scheme Effective Date and the expiration of this
Agreement pursuant to Section 8.1, or (ii) at such time as Parent directly or
indirectly through Sub, owns the entire share capital of the Company, the
Company or Parent may cause Parent's, directors' and officers' liability
insurance then in effect to cover the Indemnified Parties with respect to those
matters covered by the Company's directors' and officers' liability insurance
policy so long as the terms thereof are no less advantageous to the intended
beneficiaries thereof than the Company's current directors' and officers'
liability insurance covering the Indemnified Parties. If the Company elects
clause (i) of the previous sentence and such directors' and officers' liability
insurance is terminated or canceled during such six-year period, then Parent at
such time as Parent directly or indirectly through Sub, owns the entire share
capital of the Company, will use all reasonable efforts to cause to be obtained
as much directors' and officers' insurance as can be obtained for the remainder
of such period for an annualized premium not in excess of the maximum premium
specified above, on terms and conditions no less advantageous to the Indemnified
Parties than such insurance that shall have expired.
(b) Company shall and, at any time that Parent owns directly
or indirectly the entire share capital of the Company, Parent shall indemnify
all Indemnified Parties to the fullest extent permitted by applicable law with
respect to all acts and omissions arising out of such individuals' services as
officers, directors, employees, or agents of the Company or any of its
Subsidiaries or as trustees or fiduciaries of any plan for the benefit of
employees of the Company or any of its Subsidiaries, and occurring at or prior
to the earliest of the Acceptance Date, the Compulsory Completion Date, the
Scheme Effective Date and the expiration of this Agreement pursuant to Section
8.1, including, without limitation, the transactions contemplated by the
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Transaction Documents. Without limitation of the foregoing, in the event any
such Indemnified Party is or becomes involved, in any capacity, in any action,
proceeding or investigation in connection with any matter, including, without
limitation, the transactions contemplated by the Transaction Documents,
occurring prior to and including the earliest of the Acceptance Date, the
Compulsory Completion Date, the Scheme Effective Time and the expiration of this
Agreement pursuant to Section 8.1, the Company, and at such time as Parent owns
the entire share capital of the Company, Parent from and after such date, shall
pay, as incurred, such Indemnified Party's reasonable legal and other expenses
(including the cost of any investigation and preparation) incurred in connection
therewith. Subject to Section 6.9(d) below, Parent and the Company shall pay all
reasonable expenses, including attorneys' fees, that may be incurred by any
Indemnified Party in enforcing this Section 6.9 or any action involving an
Indemnified Party resulting from the transactions contemplated by this
Agreement.
(c) Any Indemnified Party wishing to claim indemnification
under paragraph (a) or (c) of this Section 6.9, upon learning of any such claim,
action, suit, proceeding or investigation, shall promptly notify Parent and the
Company thereof. In the event of any such claim, action, suit, proceeding or
investigation (whether arising before or after the earliest of the Acceptance
Date, the Compulsory Completion Date, the Scheme Effective Date and the
expiration of this Agreement pursuant to Section 8.1), (i) the Company shall
have the right, from and after such date, and Parent shall have the right at any
time that it owns the entire share capital of the Company, to assume the defense
thereof (with counsel engaged by Parent or the Company, as the case may be, to
be reasonably acceptable to the relevant Indemnified Party and Parent, if
applicable, and the Company shall not be liable to such Indemnified Party for
any legal expenses of other counsel or any other expenses subsequently incurred
by such Indemnified Party in connection with the defense thereof, (ii) such
Indemnified Party shall cooperate in the defense of any such matter, and (iii)
Parent, if applicable, and the Company shall not be liable for any settlement
effected without their prior written consent, which consent shall not be
unreasonably withheld; provided that Parent, if applicable and the Company shall
not have any obligation hereunder to any Indemnified Party when and if a court
of competent jurisdiction shall ultimately determine, and such determination
shall have become final, that the indemnification of such Indemnified Party in
the manner contemplated hereby is prohibited by applicable law. Parent, if
applicable, and the Company shall not enter into any settlement that does not
include as an unconditional term thereof the giving by each claimant or
plaintiff to each Indemnified Party of a release from all liability in respect
of such matter.
(d) Notwithstanding any other provisions hereof, the
obligations of the Company and Parent contained in this Section 6.9 shall be
binding upon the successors and assigns of Parent and the Company. In the event
Parent or the Company or any of their respective successors or assigns (i)
consolidates with or merges into any other Person or (ii) transfers all or
substantially all of its properties or assets to any Person, then, and in each
case, proper provision shall be made so that successors and assigns of Parent or
the Company, as the case may be, honor the indemnification obligations set forth
in this Section 6.9.
(e) IT IS EXPRESSLY AGREED THAT THE INDEMNIFIED PARTIES TO
WHOM THIS SECTION 6.9 APPLIES SHALL BE THIRD PARTY BENEFICIARIES OF THIS SECTION
6.9, EACH OF WHOM MAY ENFORCE THE PROVISIONS OF THIS SECTION 6.9.
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Section 6.10 Rights Agreement. Other than in connection with the
transactions contemplated hereby or concurrently with the termination of this
Agreement, the Company shall not (i) redeem the Rights, (ii) amend (other than
to delay the "Distribution Date" (as defined therein) or to render the Rights
inapplicable to the Offer and the transactions contemplated by the Transaction
Documents) or terminate the Rights Agreement prior to the Effective Time, unless
required to do so by a court of competent jurisdiction, or (iii) take any action
which would allow any "Person" (as such term is defined in the Rights Agreement)
other than Parent or Sub to be the "Beneficial Owner" (as such term is defined
in the Rights Agreement) of fifteen percent (15%) or more of the Ordinary Shares
without causing a "Distribution Date" (as such term is defined in the Rights
Agreement) or a "Share Acquisition Date" (as such term is defined in the Rights
Agreement) to occur.
Section 6.11 Public Announcements. Parent and the Company shall
consult with each other before issuing any press release or otherwise making any
public statements with respect to the transactions contemplated by this
Agreement and shall not issue any such press release or make any such public
statement prior to such consultation and review by the other party of such
release or statement, or without the prior consent of the other party, which
shall not be unreasonably withheld; provided, however, that a party may, without
the prior consent of the other party, issue such press release or make such
public statement as may be required by law or by any listing agreement with a
national securities exchange or automated quotation system to which Parent or
any Affiliate of Parent or, as the case may be, the Company is a party, if it
has used all commercially reasonable efforts to consult with the other party and
to obtain such party's consent, but has been unable to do so in a timely manner.
Section 6.12 Benefit Plans; Vacation; Employment Agreements. Parent
shall take such action as may be necessary so that on and after the earlier of
the Compulsory Completion Date and the Scheme Effective Date (it being
understood that Parent shall have no obligation under this Section 6.12(a) if
neither of such dates occurs) and for one year thereafter, officers and
employees of the Company and its Subsidiaries shall be provided employee
benefits, plans and programs (including but not limited to incentive
compensation, deferred compensation, pension, life insurance, medical (which
eligibility shall not be subject to any exclusions for any pre-existing
conditions if such individual has met the participation requirements of such
benefits, plans or programs of the Company or its Subsidiaries), profit sharing
(including 401(k), severance, salary continuation and fringe benefits)) which
are no less favorable in the aggregate than those generally available to
similarly situated officers and employees of Parent and its Subsidiaries, except
with respect to the benefits available under the Severance Policy. For purposes
of eligibility to participate and vesting in all benefits provided to officers
and employees, the officers and employees of the Company and its Subsidiaries
will be credited with their years of service with the Company and its
Subsidiaries and prior employers to the extent service with the Company and its
Subsidiaries and prior employers is taken into account under plans of the
Company and its Subsidiaries. Upon termination of any health plan of the Company
or any of its Subsidiaries, individuals who were officers or employees of the
Company or its Subsidiaries at the earliest to occur of the Compulsory
Completion Date or the Scheme Effective Date (it being understood that Parent
shall have no obligation hereunder if it does not own the entire share capital
of the Company) shall, if employed by the Company and its Subsidiaries, become
eligible to participate in such health plans established by Parent (or existing
plans maintained by the Company which satisfy the first sentence of this Section
6.12(a)). Amounts
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paid before the earliest to occur of the Compulsory Completion Date and the
Scheme Effective Date by officers and employees of the Company and its
Subsidiaries under any health plans of the Company shall after such date be
taken into account in applying deductible and out-of-pocket limits applicable
under the health plans of Parent provided as of such date to the same extent as
if such amounts had been paid under such health plans of Parent.
(a) Following the earlier to occur of the Compulsory
Completion Date and the Scheme Effective Date, Parent shall permit and shall
cause the Company to permit all individuals who are employees of the Company and
its Subsidiaries immediately prior to such date to retain and take any paid
vacation days accrued but not taken or lost under the Company's and its
Subsidiaries' vacation policies prior to such date, provided that such vacation
days are taken or paid in lieu of being taken within one year after such date.
(b) The parties hereto agree that, upon the Acceptance Date,
a "change in control, " "change of control" or "consolidation" as applicable,
shall be deemed to have occurred in respect of each of the employment
agreements, change in control agreements and severance agreements and other
employee benefit plans and agreements set forth on Schedule 6.12 (c) of the
Company Disclosure Letter (collectively, the "Severance Protection Plans") and
each of the Company and Parent shall administer and perform its obligations
under each Severance Protection Plan as if a "change in control" or "change of
control" shall have occurred as of the Acceptance Date, notwithstanding any
terms contained therein to the contrary. This Section 6.12(c) shall not affect
any terms of, or otherwise imply that the Acceptance Date shall not constitute a
"change in control" or "change of control" under, any employment agreement,
change in control agreement, severance agreement or other employee benefit plan
or agreement that is not listed on such Schedule 6.12.
(c) From and after the date on which Sub becomes the
beneficial owner (as determined under Rule 13d-3 under the Exchange Act) of
securities of the Company representing 90% or more of the votes entitled to vote
in the election of directors of the Company (the "Succession Date"), Parent
shall, jointly and severally with the Company, (i) be liable to pay and perform
the obligations of the Company under the Severance Protection Plans and (ii)
take such action as may be necessary to promptly pay any severance payments or
other amounts from time to time due thereunder.
(d) From and after the Acceptance Date, the Company shall,
and Parent shall cause the Company to, maintain the Severance Policy in full
force and effect (without modification or amendment thereof, except to the
extent that any such modification or amendment does not adversely affect any
Person covered by the Severance Policy) at least until the first anniversary of
the Acceptance Date in respect of all Persons covered by the Severance Policy as
of the Offer Closing.
(e) Notwithstanding the foregoing provisions of this Section
6.12, no current or former employee of the Company or any of its Affiliates
shall have any right to employment or continued employment with the Company or
any Affiliate following the Acceptance Date.
Section 6.13 Agreements Relating to Preferred Shares Parent and Sub
agree that if an Acceptance Date occurs, then Sub shall, and Parent shall take
such action (including without
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limitation exercising any rights under the Principal Shareholders Agreement) as
necessary to cause Sub to, accept for payment and pay for pursuant to the Offer
(i) all Ordinary Shares held by the Principal Shareholders and (ii) all Ordinary
Shares that immediately prior to the expiration of the Offer are issuable upon
conversion of the Preferred Shares held by the Principal Shareholders.
(b) Parent and Sub agree that if Sub purchases any Preferred
Shares from any Principal Shareholder, then Parent and Sub shall not take any
action, and shall take all such actions as are commercially reasonable to cause
any Parent Designees to act accordingly, to prevent the Company from exercising
its right to redeem the Preferred Shares in accordance with the terms thereof.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions Precedent to Each Party's Obligation to
Effect the Scheme of Arrangement. The respective obligations of each party to
effect the Scheme of Arrangement are subject to the satisfaction or waiver
(subject to applicable law), at or prior to the Scheme Effective Time, of each
of the following conditions:
(a) Injunction. No temporary restraining order, preliminary
or permanent injunction or other order shall have been issued by any federal,
state or foreign court or by any federal, state or foreign Governmental Entity,
and no other legal restraint or prohibition preventing the consummation of the
Scheme of Arrangement shall be in effect;
(b) Statutes. No federal, state or non-United States
statute, rule, regulation, executive order, decree or order of any kind shall
have been enacted, entered, promulgated or enforced by any court or Governmental
Entity which prohibits, restrains, restricts or enjoins the consummation of the
Scheme of Arrangement or has the effect of making the Scheme of Arrangement
illegal; and
(c) HSR Act. The waiting period (and any extension thereof)
applicable to the consummation of the transactions contemplated by this
Agreement under the HSR Act, if any, shall have expired or been terminated.
ARTICLE VIII
TERMINATION AND ABANDONMENT
Section 8.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned, at any time prior to the
earlier of the Compulsory Completion Date and the Scheme Effective Time, whether
before or after approval of the Scheme of Arrangement by the Company's
shareholders:
(a) by mutual consent of the Company, on the one hand, and
of Parent and Sub, on the other hand;
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(b) by either Parent, on the one hand, or the Company, on
the other hand, if:
(i) any court of competent jurisdiction or any
Governmental Entity shall have issued an order, decree or ruling or
taken any other action permanently restricting, enjoining, restraining
or otherwise prohibiting the acceptance for payment of, or payment for,
Shares pursuant to the Offer, the Scheme of Arrangement or a Compulsory
Acquisition, and such order, decree or ruling or other action shall have
become final and nonappealable; or
(ii) the Scheme of Arrangement or a Compulsory
Acquisition has not occurred by June 30, 2002; provided, that this
termination right may not be asserted by any party whose breach of its
representations, warranties or agreements hereunder, shall have resulted
in the failure of the Compulsory Completion Date or Scheme Effective
Date to have occurred;
(c) by the Company at any time prior to the purchase of
Shares pursuant to the Offer, if:
(i) (x) there shall be a breach of any
representation or warranty of Parent or Sub in this Agreement that is
qualified as to Material Adverse Effect, (y) there shall be a breach of
any representation or warranty of Parent or Sub in this Agreement that
is not so qualified, other than any such breaches which, in the
aggregate, have not had, do not have, or could not reasonably be
expected to have, a Material Adverse Effect on Parent, or (z) there
shall be a material breach by Parent or Sub of any of their respective
covenants or agreements contained in this Agreement, which breach, in
the case of any of clauses (x), (y) or (z), either is not reasonably
capable of being cured, or if it is reasonably capable of being cured,
has not been cured by the earlier of (A) ten (10) days after the giving
of notice to Parent of such breach and (B) one (1) business day prior to
the expiration of the Offer, provided that the Company may not terminate
this Agreement pursuant to this Section 8.1(c)(i) if the Company is in
material breach of this Agreement; or
(ii) (x) Parent or Sub shall have failed to commence
the Offer in accordance with the first sentence of Section 2.1(a) or (y)
(A) the Offer has expired without Sub purchasing any Ordinary Shares
pursuant thereto and (B) Sub or Parent has not requested the Company to
pursue a Scheme of Arrangement within ten (10) Business Days of such
expiration date, unless such failure or expiration shall have been
caused by the failure of the conditions set forth in clauses (iii)(c) or
(d) of Annex A to be satisfied.
(d) by Parent at any time prior to the purchase of Ordinary
Shares pursuant to the Offer, if:
(i) the Offer is terminated or expires in accordance
with its terms without Sub having purchased any Ordinary Shares
thereunder due to an occurrence which would result in a failure to
satisfy any one or more of the conditions set forth on Annex A hereto,
unless any such failure shall have been caused by or resulted from the
failure of Parent or Sub to perform in any material respect any covenant
or agreement of
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either of them contained in this Agreement or from the material breach
by Parent or Sub of any representation or warranty of either of them
contained in this Agreement;
(ii) (x) there shall be a breach of any
representation or warranty of the Company in this Agreement that is
qualified as to Material Adverse Effect, (y) there shall be a breach of
any representation or warranty of the Company in this Agreement that is
not so qualified, other than any such breaches which, in the aggregate,
have not had, do not have, or could not reasonably be expected to have,
a Material Adverse Effect on the Company, or (z) there shall be a
material breach by the Company of any of its covenants or agreements
contained in this Agreement, which breach, in the case of any of clauses
(x), (y) or (z), either is not reasonably capable of being cured or, if
it is reasonably capable of being cured, has not been cured by the
earlier of (A) ten (10) days after giving written notice to the Company
of such breach and (B) one (1) business day prior to the expiration of
the Offer, provided, that Parent may not terminate this Agreement
pursuant to this Section 8.1(d)(ii) if the Parent or Sub is in material
breach of this Agreement;
(iii) (x) the Company shall have (A) withdrawn,
modified or amended, in a manner adverse to Parent or Sub, the approval,
adoption or recommendation, as the case may be, of the Offer, the Scheme
of Arrangement, any transaction contemplated by a Transaction Document
or this Agreement, (B) approved or recommended, or proposed to approve
or recommend, any Acquisition Proposal or (C) announced a neutral
position with respect to any Acquisition Proposal, and does not reject
such Acquisition Proposal within three (3) Business Days of the
announcement of such neutral position, or (y) the Company's Board of
Directors or any committee thereof shall have resolved to take any of
the actions set forth in the foregoing;
(iv) if there shall have been a breach by the Company
of any provision of Section 6.6;
(v) the purchase pursuant to the Offer of all
Ordinary Shares tendered and not withdrawn (and at least a number of
Ordinary Shares equal to the minimum number of Ordinary Shares required
to be tendered to satisfy the Minimum Condition) shall not have occurred
on or before the final expiration date of the Offer, unless the purchase
of Ordinary Shares pursuant to the Offer shall not have occurred because
of a material breach of any representation, warranty, obligation,
covenant, agreement or condition set forth in this Agreement on the part
of Parent or Sub; or
(e) by either Parent or the Company if (i) the Scheme of
Arrangement is not approved by the requisite vote of shareholders of the Company
at a meeting duly called for the purpose of voting on the Scheme of Arrangement,
(ii) the Court declines to sanction the Scheme of Arrangement or (iii) Parent
and Sub abandon the Scheme of Arrangement upon written notice to such effect to
the Company.
Section 8.2 Effect of Termination. In the event of the termination
of this Agreement pursuant to Section 8.1 by Parent or Sub, on the one hand, or
the Company, on the other hand, written notice thereof shall forthwith be given
to the other party or parties specifying the provision hereof pursuant to which
such termination is made, and this Agreement shall become
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void and have no effect, and there shall be no liability hereunder on the part
of Parent, Sub or the Company, except that Sections 6.2, 6.9 and 6.12, Article
IX and this Section 8.2 shall survive any termination of this Agreement. Nothing
in this Section 8.2 shall relieve any party to this Agreement of liability for
breach of this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Fees and Expenses. Except as provided in paragraph (b)
below, all costs and expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
(a) If this Agreement is terminated:
(i) at a time when Parent is entitled to terminate
this Agreement in accordance with (x) Section 8.1(d)(i) or 8.1(d)(v)
hereof, solely due to the Minimum Condition not having been met at the
time of such termination, and an Acquisition Proposal had become
publicly known prior to the date of such termination and, within twelve
(12) months of such termination, the Company enters into an agreement
with respect to or consummates any Acquisition Proposal or (y) Section
8.1(d)(ii), (iii) or (iv);
(ii) by the Company pursuant to Section
8.1(c)(ii)(y), unless resulting from a material breach by Parent or Sub
of any covenant or agreement contained in this Agreement, and an
Acquisition Proposal had become publicly known prior to the date of such
termination, and, within twelve (12) months of such termination, the
Company enters into an agreement with respect to or consummates any
Acquisition Proposal; or
(iii) by either the Company or Parent pursuant to
Section 8.1(b)(ii) or 8.1(e), unless resulting from a material breach by
Parent or Sub of any covenant or agreement contained in this Agreement,
and an Acquisition Proposal had become publicly known prior to the date
of such termination and, within twelve (12) months of such termination,
the Company enters into an agreement with respect to or consummates any
Acquisition Proposal.
then the Company shall (I) reimburse Parent in immediately available funds for
the out-of-pocket expenses of Parent and Sub (including, without limitation,
printing fees, filing fees and fees and expenses of its legal and financial
advisors and all fees and expenses payable to any financing sources) related to
the Offer, this Agreement, the Principal Shareholders Agreement, the
transactions contemplated hereby and thereby and any related financing in the
amount of $10,000,000 and (II) pay to Parent in immediately available funds an
amount equal to $130,000,000.
(b) The payments required to be made in the preceding
paragraph shall be paid as follows: (A) in the case of clause (b)(i)(y), on the
day next succeeding the date of such termination or (B) in the case of clause
(b)(i)(x), clause (b)(ii) or clause (b)(iii), 50% of the amount shall be paid on
the date that the Company enters into an agreement with respect to such
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Acquisition Proposal and the remaining 50% (or 100% if there is no such
agreement) shall be paid on the date of consummation of such Acquisition
Proposal.
Section 9.2 Investigation and Agreement by the Parties; No other
Representations or Warranties.
(a) Parent and Sub, on the one hand, and the Company, on the
other, each acknowledges and agrees that it has made its own inquiry and
investigation into, and, based thereon, has formed an independent judgment
concerning, the other party and its Subsidiaries and their businesses and
operations, and such party has requested such documents and information from the
other party as such party considers material in determining whether to enter
into this Agreement and to consummate the transactions contemplated in this
Agreement. Each of Parent and Sub, on the one hand, and the Company, on the
other hand, acknowledge and agree that it has had an opportunity to ask
questions of and receive answers from the other party with respect to matters
such party considers material in determining whether to enter into this
Agreement and to consummate the transactions contemplated in this Agreement.
(b) The respective representations and warranties of the
Company, on the one hand, and each of Parent and Sub, on the other hand,
contained herein or in any certificates or other documents delivered prior to or
at the Closing shall not be deemed waived or otherwise affected by any
investigation made by any party. Each and every such representation and warranty
shall expire with, and be terminated and extinguished by, the earlier of the
Compulsory Completion Date or the Scheme Effective Date, and thereafter none of
the Company, Parent or Sub shall be under any liability whatsoever with respect
to any such representation or warranty. This Section 9.2(b) shall have no effect
upon any other obligation of the parties hereto.
(c) In connection with each party's investigation of the
other party and its Subsidiaries and their businesses and operations, each party
and its representatives have received from the other party or its
representatives certain projections and other forecasts for the other party and
its Subsidiaries and certain estimates, plans and budget information. Each party
acknowledges and agrees that there are uncertainties inherent in attempting to
make such projections, forecasts, estimates, plans and budgets; that such party
is familiar with such uncertainties; that such party is taking full
responsibility for making its own evaluation of the adequacy and accuracy of all
estimates, projections, forecasts, plans and budgets so furnished to it or its
representatives; and that such party will not (and will cause all of its
respective Subsidiaries or other Affiliates or any other person acting on its
behalf to not) assert any claim or cause of action against any of the other
party's direct or indirect partners, directors, officers, employees,
stockholders, Affiliates, with respect thereto, or hold any such person liable
with respect thereto.
(d) Each of Parent and Sub, on the one hand, and the
Company, on the other, agrees that, except for the representations and
warranties made by the other party that are expressly set forth in the
Transaction Documents, Disclosure Letter and any other document, certificate,
exhibit or schedule delivered pursuant to the Transaction Documents, as
applicable, neither the other party nor any of its representatives or Affiliates
has made and shall not be deemed to have made to such party or to any of its
representatives or Affiliates any representation or warranty of any kind.
Without limiting the generality of the foregoing, each
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party agrees that neither the other party nor any of its Affiliates makes or has
made any representation or warranty to such party or to any of its
representatives or Affiliates with respect to:
(i) any projections, forecasts, estimates, plans or
budgets of future revenues, expenses or expenditures, future results of
operations (or any component thereof), future cash flows (or any
component thereof) or future financial condition (or any component
thereof) of the other party or any of its Subsidiaries or the future
business, operations or affairs of the other party or any of its
Subsidiaries heretofore or hereafter delivered to or made available to
such party or its counsel, accountants, advisors, lenders,
representatives or Affiliates; and
(ii) any other information, statement or documents
heretofore or hereafter delivered to or made available to such party or
its counsel, accountants, advisors, lenders, representatives or
Affiliates with respect to the other party or any of its Subsidiaries or
the business, operations or affairs of the other party or any of its
Subsidiaries, except to the extent and as expressly covered by a
representation and warranty made by the other party and contained in the
Transaction Documents, Company Disclosure Letter and any other document,
certificate, exhibit or schedule delivered pursuant to the Transaction
Documents.
(e) Notwithstanding anything in this Agreement to the
contrary, after such time as Parent Designees are appointed to the Board of
Directors of the Company pursuant to Section 2.3 of this Agreement, any action
or inaction approved by the Company's Board of Directors that would otherwise
cause a breach of any representation, warranty, covenant or obligation of the
Company pursuant to this Agreement shall not be considered a breach of this
Agreement by the Company for any reason whatsoever.
Section 9.3 Extension; Waiver. Subject to Section 2.3, at any time
prior to the earlier to occur of the Compulsory Completion Date and the Scheme
Effective Time, the parties hereto, by action taken by or on behalf of the
respective Boards of Directors of the Company, Parent or Sub, may (i) extend the
time for the performance of any of the obligations or other acts of the other
parties hereto, (ii) waive any inaccuracies in the representations and
warranties contained herein by any other applicable party or in any document,
certificate or writing delivered pursuant hereto by any other applicable party,
or (iii) waive compliance with any of the agreements or conditions contained
herein. Any agreement on the part of any party to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of
such party.
Section 9.4 Notices. All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if delivered in
person or mailed, certified or registered mail with postage prepaid, or sent by
facsimile (upon confirmation of receipt), as follows:
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(a) if to the Company, to it at:
Triton Energy Limited
6688 N. Central Expressway., Suite 1400
Dallas, Texas 75206
Attention: General Counsel
Telephone: (214) 696-7368
Fax: (214) 691-0198
with a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
3700 Trammell Crow Center
Suite 3700
Dallas, Texas 75201
Attention: Michael D. Wortley
Rodney L. Moore
Telephone: (214) 220-7700
Fax: (214) 999-7716
(b) if to either Parent or Sub, to it at:
Amerada Hess Corporation
1185 Avenue of the Americas
New York, NY 10036
Attention: General Counsel
Telephone: (212) 536-8577
Fax: (212) 536-8241
with a copy (which shall not constitute notice) to:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: Timothy B. Goodell, Esq.
Gregory P. Pryor, Esq.
Telephone: (212) 819-8200
Fax: (212) 354-8113
or to such other Person or address as any party shall specify by notice in
writing to each of the other parties. All such notices, requests, demands,
waivers and communications shall be deemed to have been received on the date of
delivery unless if mailed, in which case on the third (3rd) Business Day after
the mailing thereof, except for a notice of a change of address, which shall be
effective only upon receipt thereof.
Section 9.5 Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and supersedes all prior
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agreements and understandings, oral and written, with respect thereto, other
than the Confidentiality Agreement.
Section 9.6 Binding Effect; Benefit; Assignment. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and, with
respect to the provisions of Sections 6.9 and 6.12, shall inure to the benefit
of the Persons or entities benefiting from the provisions thereof who are
intended to be third-party beneficiaries thereof. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of each of the other
parties, except that Sub may assign and transfer its right and obligations
hereunder to any of its Affiliates. Except as provided in the first sentence of
this Section 9.6, nothing in this Agreement, expressed or implied, is intended
to confer on any Person (including, without limitation, any current or former
employees of the Company), other than the parties hereto, any rights or
remedies.
Section 9.7 Amendment and Modification. Subject to applicable law
and Section 2.3 of this Agreement, this Agreement may be amended, modified and
supplemented in writing by the parties hereto in any and all respects before the
earlier to occur of the Compulsory Completion Date and the Scheme Effective Time
(notwithstanding any shareholder approval), by action authorized by the
respective Boards of Directors of Parent, Sub and the Company or, in the case of
Parent or Sub, by the respective officers authorized by their respective Board
of Directors, provided, however, that after any such shareholder approval, no
amendment shall be made which by law requires further approval by such
shareholders without such further approval.
Section 9.8 Further Actions. Each of the parties hereto agrees that,
subject to its legal obligations, it shall use its commercially reasonable
efforts to fulfill all conditions precedent specified herein, to the extent that
such conditions are within its control, and to do all things reasonably
necessary to consummate the transactions contemplated hereby.
Section 9.9 Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only, do
not constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 9.10 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
Section 9.11 APPLICABLE LAW. THIS AGREEMENT AND THE LEGAL RELATIONS
BETWEEN THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAWS RULES
THEREOF, EXCEPT THAT THE LAWS OF THE CAYMAN ISLANDS SHALL APPLY TO THE EXTENT
REQUIRED IN CONNECTION WITH THE SHAREHOLDERS' MEETINGS, IF ANY, THE SCHEME OF
ARRANGEMENT AND TO THE FIDUCIARY DUTIES OF THE BOARD OF DIRECTORS IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE STATE OR FEDERAL
COURTS LOCATED WITHIN THE STATE OF DELAWARE SHALL HAVE JURISDICTION OVER ANY AND
ALL DISPUTES BETWEEN THE PARTIES HERETO, WHETHER IN LAW OR EQUITY, ARISING OUT
OF
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OR RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS
CONTEMPLATED HEREBY AND THE PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE
JURISDICTION OF SUCH COURTS. EACH OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO
ASSERT IN ANY SUCH DISPUTE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY CLAIM THAT (I) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURTS, (II) SUCH PARTY AND SUCH PARTY'S PROPERTY IS IMMUNE FROM ANY LEGAL
PROCESS ISSUED BY SUCH COURTS OR (III) ANY LITIGATION OR OTHER PROCEEDING
COMMENCED IN SUCH COURTS IS BROUGHT IN AN INCONVENIENT FORUM. THE PARTIES HEREBY
AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION
OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 9.4, OR IN SUCH OTHER MANNER AS
MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND
HEREBY WAIVE ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN
PROVIDED.
Section 9.12 Severability. If any term, provision, covenant or
restriction contained in this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void, unenforceable or against
its regulatory policy, the remainder of the terms, provisions, covenants and
restrictions contained in this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated, and this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable term, provision, covenant or restriction or
any portion thereof had never been contained herein.
Section 9.13 Interpretation. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents and headings contained in this
Agreement are for convenience of reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
Section 9.14 Specific Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity.
Section 9.15 Waiver of Jury Trial. Each of the parties to this
Agreement hereby irrevocably waives all right to a trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement or the
transactions contemplated hereby.
Section 9.16 No Recourse Against Others. Other than as a party to any
of the Transaction Documents, neither any direct or indirect holder of equity
interests in the Company (whether limited or general partners, members,
stockholders, or otherwise), nor any past or present director, officer, employee
or Affiliate of the Company or of any such holder, shall have any liability or
obligation of any nature whatsoever in connection with or under the Transaction
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Documents or in connection with the transactions contemplated thereby except to
the extent specifically set forth in the Transaction Documents, and Parent and
Sub hereby waive and release all claims of any such liability and obligation.
* * * * *
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of Parent, Sub and the Company have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
all as of the date first above written.
AMERADA HESS CORPORATION
By: /s/ JOHN B. HESS
--------------------------------------
Name: John B. Hess
Title: Chairman of the Board
and Chief Executive Officer
AMERADA HESS (CAYMAN) LIMITED
By: /s/ J. BARCLAY COLLINS
--------------------------------------
Name: J. Barclay Collins
Title: Director
TRITON ENERGY LIMITED
By: /s/ A.E. TURNER, III
--------------------------------------
Name: A.E. Turner, III
Title: Senior Vice President
60
65
ANNEX A
The capitalized terms used in this Annex A shall have the meanings set
forth in the Agreement to which it is annexed, except that the term "Acquisition
Agreement" shall be deemed to refer to the Agreement to which this Annex A is
annexed and "Purchaser" shall be deemed to refer to Sub.
Notwithstanding any other provision of the Offer or the Acquisition
Agreement, Purchaser shall not be required to accept for payment or, subject to
any applicable rules and regulations of the Commission, including Rule 14e-1(c)
under the Exchange Act (relating to Purchaser's obligation to pay for or return
tendered Ordinary Shares promptly after termination or withdrawal of the Offer),
to pay for any Ordinary Shares tendered pursuant to the Offer and may terminate
or amend the Offer and may postpone the acceptance of, and payment for, any
Ordinary Shares, if (i) there shall not have been validly tendered and not
properly withdrawn prior to the expiration of the Offer a number of Ordinary
Shares which represent at least ninety percent (90%) in value of the allotted
and issued Ordinary Shares determined on a fully-diluted basis ("on a
fully-diluted basis" meaning, at any time, the number of Shares allotted and
issued, together with the Ordinary Shares which the Company may be required to
issue, now or in the future, including, without limitation, Ordinary Shares
issuable pursuant to warrants, options (including, without limitation, the
Options) or other rights or other obligations outstanding at such time under
employee stock or similar benefit plans or otherwise, whether or not vested or
then exercisable, but excluding the effect of the Rights), on the date of
purchase (the "Minimum Condition") (provided that, for purposes of determining
whether such Minimum Condition is satisfied, all Ordinary Shares held by the
Principal Shareholders that are tendered and not withdrawn (but continuing to
include for this purpose all Ordinary Shares withdrawn at the instruction of
Parent) and all Ordinary Shares issuable upon conversion of Preferred Shares
that are surrendered for conversion by the Principal Shareholders with
appropriate tender instructions pursuant to the Principal Shareholders Agreement
(but continuing to include for this purpose all Ordinary Shares issuable upon
conversion of Preferred Shares with respect to which tender and conversion
instructions are revoked at the instruction of Parent) shall be included in such
calculation), (ii) any applicable waiting period (and any extension thereof)
under the HSR Act shall not have expired or been terminated, or (iii) if, at any
time on or after the date of the Acquisition Agreement and at or before the time
of payment for any Ordinary Shares (whether or not any Ordinary Shares have
theretofore been accepted for payment, or paid for, pursuant to the Offer), any
of the following shall exist:
(a) there shall be threatened, instituted or pending any
action or proceeding by any Governmental Entity, (i) challenging or
seeking to, or which could reasonably be expected to, make illegal,
impede, delay or otherwise directly or indirectly restrain, prohibit or
make materially more costly the Offer, the Compulsory Acquisition or the
Scheme of Arrangement or any other transaction contemplated by the
Acquisition Agreement or the Principal Shareholders Agreement (each, a
"Transaction"), (ii) seeking to prohibit or materially limit the
ownership or operation by Parent or Purchaser of all or any material
portion of the business or assets of the Company and its Subsidiaries
taken as a whole or to compel Parent or Purchaser to dispose of or hold
separately all or any material portion of the business or assets of
Parent and its Subsidiaries taken as a whole or the Company and its
Subsidiaries taken as a whole, or seeking to impose any limitation on
the ability of Parent or Purchaser to conduct its business or own such
assets, (iii) seeking to impose limitations on the ability of Parent or
Purchaser effectively to exercise
66
ANNEX A
Page 2
full rights of ownership of the Shares, including, without limitation,
the right to vote any Shares acquired or owned by Purchaser or Parent on
all matters properly presented to the Company's shareholders, (iv)
seeking to require divestiture by Parent or Purchaser of any Shares, (v)
seeking any material diminution in the benefits expected to be derived
by Parent or Purchaser as a result of the transactions contemplated by
the Transaction Documents, or (vi) otherwise directly or indirectly
relating to any Transaction and which could reasonably be expected to
have a Material Adverse Effect on the Company and its Subsidiaries taken
as a whole or on Parent and its Subsidiaries taken as a whole;
(b) there shall be any action taken, or any statute, rule,
regulation, legislation, interpretation, judgment, order or injunction
proposed, enacted, enforced, promulgated, amended or issued after the
date of this Agreement and applicable to or deemed applicable to (i)
Parent, Purchaser, the Company or any Subsidiary of the Company or (ii)
the Offer or the Scheme of Arrangement or any Transaction, by any
Governmental Entity other than the routine application of the waiting
period provisions of the HSR Act to the Offer, any Transaction or to the
Scheme of Arrangement, that could reasonably be expected to result
directly or indirectly in any of the consequences referred to in
paragraph (a) above;
(c) except for inaccuracies in any representations or
warranties of the Company that result from actions or inactions required
by the Acquisition Agreement, (i) any representation or warranty of the
Company contained in the Acquisition Agreement that is qualified as to
Material Adverse Effect shall not be true and correct as though made on
or as of such date (other than representations and warranties which, by
their terms, address matters only as of another specified date, which
shall be true and correct only as of such other specified date), and
(ii) any representation or warranties of the Company contained in the
Acquisition Agreement that is not qualified as to Material Adverse
Effect shall not be true and correct (except where the failure of any
such representations or warranties referred to in this clause (ii) to be
so true and correct in the aggregate has not had, does not have, and
could not reasonably be expected to have, a Material Adverse Effect on
the Company) as of the date of consummation of the Offer as though made
on or as of such date (other than representations and warranties which,
by their terms, address matters only as of another specified date, which
shall be true and correct only as of such other specified date);
(d) the Company shall have failed to perform in any material
respect any obligation or to comply in any material respect with any
agreement or covenant of the Company to be performed or complied with by
the Company under the Acquisition Agreement;
(e) the Board of Directors of the Company or any committee
thereof shall (i) have withdrawn, modified or amended, or proposed to
withdraw, modify or amend, in a manner adverse to Parent or Purchaser,
the approval, adoption or recommendation, as the case may be, of the
Offer, any Transaction, the Scheme of Arrangement or the Acquisition
Agreement, or (ii) shall have approved or recommended, or proposed to
approve or recommend, any Acquisition Proposal, or (iii) shall have
announced a neutral position with respect to any Acquisition Proposal
and has not rejected such Acquisition
2
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ANNEX A
Page 3
Proposal within three (3) Business Days of the announcement of such
neutral position, or (iv) shall have resolved to do any of the
foregoing;
(f) the Acquisition Agreement shall have been terminated in
accordance with its terms;
which, in the sole judgment of Purchaser, in any such case and regardless of the
circumstances (including any action or inaction by Parent or Purchaser) giving
rise to any such condition, makes it inadvisable to proceed with the Offer
and/or with such acceptance for payment of, or payment for, Ordinary Shares.
The foregoing conditions are for the sole benefit of Parent and
Purchaser and may be asserted by Parent or Purchaser, or may be waived by Parent
or Purchaser, in whole or in part at any time and from time to time in their
respective sole discretion, except as otherwise provided in the Acquisition
Agreement. The failure by Parent or Purchaser at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right and each such
right shall be deemed an ongoing right which may be asserted at any time and
from time to time.
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1
Exhibit (d)(2)
PRINCIPAL SHAREHOLDERS AGREEMENT
BY AND AMONG
AMERADA HESS CORPORATION,
AMERADA HESS (CAYMAN) LIMITED,
TRITON ENERGY LIMITED
AND
THE SHAREHOLDERS OF TRITON ENERGY LIMITED LISTED ON ANNEX A HERETO
Dated as of July 9, 2001
2
PRINCIPAL SHAREHOLDERS AGREEMENT
PRINCIPAL SHAREHOLDERS AGREEMENT (this "Agreement") dated as of July 9,
2001, by and among AMERADA HESS CORPORATION ("Parent"), a corporation organized
under the laws of Delaware, AMERADA HESS (CAYMAN) LIMITED ("Sub"), a company
limited by shares organized under the laws of the Cayman Islands and a wholly
owned subsidiary of Parent, each of the shareholders of the Company set forth on
Annex A hereto (each, a "Shareholder") and, solely for purposes of the last
sentence of Section 2.1, Section 5.3(b) and Article VIII, TRITON ENERGY LIMITED
(the "Company"), a company limited by shares organized under the laws of the
Cayman Islands.
W I T N E S S E T H:
WHEREAS, Parent, Sub and the Company propose to enter into an Acquisition
Agreement, dated as of the date hereof (the "Acquisition Agreement"), pursuant
to which Sub is to make a tender offer to purchase, subject to the terms and
conditions of the Acquisition Agreement, any and all of the Ordinary Shares
(including the associated Rights) of the Company (the "Offer");
WHEREAS, as of the date hereof, each Shareholder or such Shareholder's
Affiliates "beneficially own" (as such term is defined in Rule 13d-3 promulgated
under the Exchange Act) and each Shareholder or such Shareholder's Affiliates
are entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of Ordinary Shares and/or Preferred Shares set
forth opposite such Shareholder's name on Annex A hereto, as such shares may be
adjusted by stock dividend, stock split, recapitalization, combination, merger,
amalgamation, scheme of arrangement, consolidation, reorganization or other
change in the capital structure of the Company affecting the Ordinary Shares or
Preferred Shares (such shares, together with any other shares the beneficial
ownership of which is acquired by such Shareholder or such Shareholder's
Affiliates during the period from and including the date hereof through and
including the date on which this Agreement is terminated in accordance with its
terms, are collectively referred to herein as such Shareholder's "Subject
Shares"); and
WHEREAS, as a condition to the willingness of Parent and Sub to enter into
the Acquisition Agreement, and as an inducement and in consideration therefor,
Parent has required that each Shareholder agrees, and each Shareholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them
in the Acquisition Agreement.
ARTICLE II
TENDER OF SHARES
Section 2.1 Tender of Shares. Each Shareholder hereby agrees to (A) in the
case of Ordinary Shares, tender validly (and not to withdraw unless instructed
by Purchaser), or to cause to be tendered validly (and not withdrawn unless
instructed by Purchaser), and (B) in the case of Preferred Shares, duly
surrender for conversion, conditional upon the Offer not being terminated, not
expiring and Sub accepting for payment Ordinary Shares in the Offer and with
appropriate instructions (which instructions shall be revoked only upon the
direction of Purchaser) that the Ordinary Shares issuable upon such conversion
are to be tendered pursuant to the Offer immediately prior to the expiration of
the initial offering period of the Offer (including any extensions thereof), in
each case pursuant to and in accordance with the terms of the Offer and Rule
14d-2 under the Exchange Act, all of such Shareholder's Subject Shares, in each
case not later than (i) the third (3rd) Business Day after commencement of the
Offer and (ii) in the case of any Subject Shares acquired after the date hereof,
whether upon the exercise of options, warrants or rights, the conversion or
exchange of convertible or exchangeable securities, or otherwise, the next
succeeding Business Day after acquisition thereof, and will cause such
Shareholder's Subject Shares to remain, in the case of Ordinary Shares, validly
tendered and not withdrawn and, in the case of Preferred Shares, surrendered for
conversion with appropriate tender instructions until the earlier of (x) the
Offer being terminated or expiring and Sub not accepting for payment all
Ordinary Shares validly tendered in the Offer and (y) Parent, in the case of
Ordinary Shares, instructing such Shareholder to withdraw such Shareholder's
Shares or, in the case of Preferred Shares, instructing such Shareholder to
revoke such Shareholder's tender and conversion instructions, in which case such
Shareholder shall immediately withdraw all Ordinary Shares and revoke tender and
conversion instructions with respect to Preferred Shares. Notwithstanding the
provisions of the preceding sentence, in the event that any Ordinary Shares are
for any reason withdrawn from the Offer or the tender and conversion
instructions relating to Preferred Shares are revoked, in either case other than
upon the instruction of Purchaser, such Ordinary Shares and Preferred Shares
shall remain subject to the terms of this Agreement so long as this Agreement
remains effective. The parties hereby acknowledge and agree that the obligation
of Sub to accept for payment and pay for the Ordinary Shares in the Offer,
including the Subject Shares, is subject to the conditions set forth in Annex A
to the Acquisition Agreement; provided, that the only conditions of Parent and
Sub to purchase Subject Shares pursuant to Section 4.1 of this Agreement are set
forth on Annex B hereto. The Company hereby acknowledges and agrees that the
surrender for conversion of Preferred Shares on a conditional basis shall not
constitute a conversion until the conditions relating thereto are satisfied or
waived
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and the Company hereby waives any and all notice or waiting period requirement
with respect to a conversion of such Preferred Shares.
ARTICLE III
VOTING AND PROXY
Section 3.1 Agreement to Vote the Subject Shares. Each Shareholder, in its
capacity as such, hereby agrees that during the period commencing on the date
hereof and continuing until the termination of this Agreement (such period, the
"Voting Period"), at any meeting (or any adjournment or postponement thereof) of
the holders of any class or classes of the share capital of the Company, however
called, or in connection with any written consent of the holders of any class or
classes of the share capital of the Company, such Shareholder shall vote (or
cause to be voted) the Subject Shares (x) in favor of the approval of the terms
of the Acquisition Agreement and each of the other transactions contemplated by
the Acquisition Agreement and this Agreement and any actions required in
furtherance thereof, (y) against any action, transaction or agreement that would
result in a breach in any respect of any covenant, representation or warranty or
any other obligation or agreement of the Company or any of its Subsidiaries
under the Acquisition Agreement or of such Shareholder under this Agreement, and
(z) except as otherwise agreed to in writing in advance by Parent, against the
following actions (other than the transactions contemplated by the Acquisition
Agreement): (i) any extraordinary corporate transaction, such as an
amalgamation, merger, scheme of arrangement, consolidation or other business
combination involving the Company or any of its Subsidiaries and any Acquisition
Proposal; (ii) a sale, lease or transfer of a significant part of the assets of
the Company or any of its Subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or any of its Subsidiaries (each of
the actions in (i) or (ii), a "Business Combination"); (iii) (A) any change in
the Persons who constitute the board of directors of the Company; (B) any change
in the present capitalization of the Company or any amendment of the Company's
Memorandum of Association or the Company's Articles of Association; (C) any
other material change in the Company's corporate structure or business; or (D)
any other action involving the Company or any of its Subsidiaries that is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, or adversely affect the transactions contemplated by this Agreement or
the Acquisition Agreement. Each Shareholder hereby agrees that such Shareholder
shall not, and shall use commercially reasonable efforts to cause its Affiliates
not to, enter into any agreement, letter of intent, agreement in principle or
understanding with any Person that violates or conflicts with or could
reasonably be expected to violate or conflict with the provisions and agreements
contained in this Agreement or the Acquisition Agreement.
Section 3.2 Grant of Proxy. Each Shareholder hereby appoints Parent, Sub
and any designee of Parent or Sub, and each of them individually, such
Shareholder's proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent during the Voting Period with
respect to such Shareholder's Subject Shares in accordance with Section 3.1.
This proxy is given to secure the performance of the duties of each Shareholder
under this Agreement. Each Shareholder shall take such further action or execute
such other instruments as may be necessary to effectuate the intent of this
proxy.
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Section 3.3 Nature of Proxy. The proxy and power of attorney granted
pursuant to Section 3.2 by each Shareholder shall be irrevocable during the term
of this Agreement, shall be deemed to be coupled with an interest sufficient in
law to support an irrevocable proxy and shall revoke all prior proxies granted
by such Shareholder. The power of attorney granted herein is a durable power of
attorney and shall survive the dissolution, bankruptcy, death or incapacity of
such Shareholder.
ARTICLE IV
PURCHASE AND SALE
Section 4.1 Purchase and Sale. Subject to the terms and conditions herein
set forth, if the initial offering period of the Offer (including any extension
thereof) has terminated or expired without the acceptance for purchase of each
Shareholder's Ordinary Shares tendered pursuant to Section 2.1 (the "Purchase
Date"), each Shareholder hereby severally agrees to sell, and Parent hereby
agrees to cause Sub, and Sub hereby agrees to purchase, all of each
Shareholder's Subject Shares. Sub shall have the right to purchase either the
Preferred Shares or to cause any Shareholder to convert such Preferred Shares
into Ordinary Shares and purchase such Ordinary Shares. The purchase price shall
be the greater of (a) in the case of Ordinary Shares, U.S. $45.00 per Ordinary
Share net to the Shareholder in cash and in the case of Preferred Shares,
$180.00 per Preferred Share, plus accumulated and unpaid dividends through the
date of purchase, net to the Shareholder in cash and (b) in the case of Ordinary
Shares, the highest price paid per Ordinary Share in the Offer and, in the case
of Preferred Shares, the as-converted equivalent amount per Preferred Share as
such highest price paid per Ordinary Share in the Offer, plus accumulated and
unpaid dividends through the date of purchase. The obligation of Sub to purchase
the Subject Shares is subject to the satisfaction or waiver of each of the
conditions set forth on Annex B.
Section 4.2 Closing. Subject to Section 4.3, the Closing (the "Closing")
of the purchase of each Shareholder's Subject Shares referred to in Section 4.1
shall take place on the third (3rd) Business Day after the Purchase Date (the
"Share Purchase Closing Date"); provided, that each of the conditions set forth
on Annex B shall have been satisfied or waived on such Share Purchase Closing
Date. If the conditions set forth on Annex B have not been satisfied or waived
on such Share Purchase Closing Date, the Share Purchase Closing Date shall be
the third (3rd) Business Day following the satisfaction or waiver of such
conditions. The Closing shall take place at the offices of White & Case LLP,
1155 Avenue of the Americas, New York, New York. At the Closing, Parent or Sub
will deliver to each Shareholder, by wire transfer of immediately available
funds to the account designated by such Shareholder to Parent or Sub prior to
the Closing, the aggregate purchase price payable in respect of the Subject
Shares to be purchased from such Shareholder at the Closing and each Shareholder
will deliver to Parent or Sub such Subject Shares, free and clear of all Liens,
with the certificate or certificates evidencing such Subject Shares being duly
endorsed for transfer by such Shareholder and accompanied by all powers of
attorney and/or other instruments necessary to convey valid and unencumbered
title thereto to Sub. Each Shareholder will pay all United States federal, state
and local transfer taxes that may be payable in connection with the sale of the
Subject Shares to Sub.
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Section 4.3 Subsequent Offering Period. Notwithstanding Section 4.2, in
the event that the Share Purchase Closing Date occurs during a subsequent
offering period being conducted pursuant to the Offer, upon the request of
Parent each Shareholder shall immediately tender such Shareholder's Ordinary
Shares (including Ordinary Shares issuable upon conversion of Preferred Shares)
into the Offer and, provided that the Shareholder's Ordinary Shares are accepted
and paid for in the subsequent offering period in accordance with applicable
law, the Closing pursuant to Section 4.2 shall not take place.
ARTICLE V
COVENANTS
Section 5.1 Generally. Each Shareholder agrees that, except as
contemplated by the terms of this Agreement, such Shareholder shall not and
shall cause its Affiliates not to (i) sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
agreement with respect to, or consent to, the sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of such
Shareholder's Subject Shares; (ii) grant any proxies or powers of attorney in
respect of the Subject Shares, deposit any of such Shareholder's Subject Shares
into a voting trust or enter into a voting agreement with respect to any of such
Shareholder's Subject Shares; and (iii) such Shareholder shall not take any
action that would have the effect of preventing or disabling such Shareholder
from performing its obligations under this Agreement.
Section 5.2 No Solicitation of Other Offers. Each Shareholder shall
(solely in his or its capacity as a Shareholder), and shall use its commercially
reasonable efforts to cause its Affiliates and each of its and their respective
officers, directors, employees, representatives, consultants, investment
bankers, attorneys, accountants and other agents immediately to, cease any
discussions or negotiations with any other Person or Persons that may be ongoing
with respect to any Acquisition Proposal. No Shareholder shall take, and shall
use its commercially reasonable efforts to cause its Affiliates and its and
their respective officers, directors, employees, representatives, consultants,
investment bankers, attorneys, accountants or other agents or Affiliates not to
take, any action (i) to encourage, solicit, initiate or facilitate, directly or
indirectly, the making or submission of any Acquisition Proposal (including,
without limitation, by taking any action that would make the Rights Agreement
inapplicable to an Acquisition Proposal), (ii) to enter into any agreement,
arrangement or understanding with respect to any Acquisition Proposal, or to
agree to approve or endorse any Acquisition Proposal or enter into any
agreement, arrangement or understanding that would require the Company to
abandon, terminate or fail to consummate the Amalgamation or any other
transaction contemplated by this Agreement, (iii) to initiate or participate in
any way in any discussions or negotiations with, or furnish or disclose any
information to, any Person (other than Parent or Sub) in connection with any
Acquisition Proposal, (iv) to facilitate or further in any other manner any
inquiries or the making or submission of any proposal that constitutes, or may
reasonably be expected to lead to, any Acquisition Proposal, or (v) to grant any
waiver or release under any standstill, confidentiality or similar agreement
entered into by the Company or any of its Affiliates or representatives. Each
Shareholder shall use its commercially reasonable efforts to enforce, to the
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7
fullest extent permitted under applicable law, the provisions of any standstill,
confidentiality or similar agreement entered into by such Shareholder or any of
its Affiliates or representatives including, but not limited to, where necessary
obtaining injunctions to prevent any breaches of such agreements and to enforce
specifically the terms and provisions thereof in any court having jurisdiction.
Section 5.3 Investor Rights Agreement. HM4 Triton L.P. ("HM4 Triton"), a
Cayman Islands exempted limited partnership and a Shareholder, hereby gives its
consent for purposes of Article IV of the Investor Rights Agreement, to the
consummation of the transactions contemplated by this Agreement and the
Acquisition Agreement and the taking of any actions by the Company and its
Subsidiaries in furtherance thereof. HM4 Triton agrees that it shall not take
any action, grant any consent, or otherwise exercise any of such Shareholder's
rights (including by way of failing or declining to grant any approval or
consent) under the Investor Rights Agreement (including Section 4.3 or
otherwise) without the prior written consent of Parent. Without limiting the
foregoing, HM4 Triton agrees that it shall not amend, or agree to amend, any
provision of the Investors Rights Agreement without the prior written consent of
Parent.
(a) The Company hereby waives any right of first offer, right to purchase
Shares, right to notice or other right it may be provided in Section 3.3 of the
Investor Rights Agreement that may be triggered as a consequence of this
Agreement or the Acquisition Agreement or the consummation of the transactions
contemplated hereby or thereby. The Company agrees that it shall not amend, or
agree to amend, any provision of the Investor Rights Agreement without the prior
written consent of Parent.
Section 5.4 Conversion of Preferred Shares. Each Shareholder agrees not to
convert, and to cause its Affiliates not to convert, any Preferred Shares,
conditionally or otherwise, other than as required by Section 2.1, Section 4.1
or Section 4.3 of this Agreement or with the prior written consent of Parent.
Each Shareholder hereby agrees to convert immediately any or all of the
Preferred Shares beneficially owned by such Shareholder upon the request of
Parent; provided, that all of the conditions in Annex B to this Agreement have
been satisfied or waived and Purchaser or Sub purchases such Ordinary Shares
within three (3) Business days thereafter.
Section 5.5 Compliance with Law; Acquisition Agreement. Each Shareholder
agrees and Parent and Sub agree to comply with all applicable law, including
without limitation, the Exchange Act in connection with the transactions
contemplated by this Agreement. The Shareholders and Parent and Sub agree to
prepare and promptly (but in no event later than ten (10) Business Days
following the date of this Agreement) file all necessary applications under HSR
Act with respect to the purchase of the Subject Shares pursuant to this
Agreement. Each of Parent and Sub agree to materially perform all of their
respective agreements and materially satisfy all of their respective obligations
under the Acquisition Agreement.
Section 5.6 Extension of Initial Offering Period. Parent and Sub agree not
to extend the initial offering period of the Offer beyond the date which is
sixty (60) days after the date of
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8
commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the
Offer without the prior consent of HM4 Triton.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each Shareholder hereby represents and warrants to Parent and Sub as
follows:
Section 6.1 Due Organization, etc. Such Shareholder (if it is a company or
partnership) is duly organized and validly existing under the laws of the
jurisdiction of its incorporation or organization. Such Shareholder (i) if it is
a company or partnership, has all necessary power and authority and/or (ii) if
it is an individual, has the capacity, in each case to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby by such Shareholder (if it is a company or partnership) have
been duly authorized by all necessary action on the part of such Shareholder.
Section 6.2 Ownership of Shares. Such Shareholder or its Affiliate legally
or beneficially owns the number of Ordinary Shares and/or Preferred Shares set
forth opposite such Shareholder's name on Annex A hereto. The number of Ordinary
Shares and/or Preferred Shares set forth opposite such Shareholder's name on
Annex A hereto are all of the Ordinary Shares and/or Preferred Shares legally or
beneficially owned by such Shareholder. Such Shareholder has sole voting power
and sole power of disposition, in each case with respect to all of the Shares
set forth opposite such Shareholder's name on Annex A hereto, with no
limitations, qualifications or restrictions on such rights, subject only to
applicable securities laws and the terms of this Agreement.
Section 6.3 No Conflicts. (i) Except for compliance with Antitrust Laws,
no filing with any Governmental Entity, no Permit and no authorization, consent
or approval of any other Person is necessary for the execution of this Agreement
by such Shareholder and the consummation by such Shareholder of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by such Shareholder, the consummation by such Shareholder of the
transactions contemplated hereby or compliance by such Shareholder with any of
the provisions hereof shall (A) conflict with or result in any breach of any
applicable organizational documents applicable to such Shareholder, (B) result
in, or give rise to, a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default under any of the terms, conditions or
provisions of any material note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Shareholder is a party or by which such
Shareholder or any of such Shareholder's Subject Shares, properties or assets
may be bound, or (C) assuming compliance with Antitrust Laws, violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to such Shareholder or any of such Shareholder's properties or
assets, which could reasonably be expected to adversely affect such
Shareholder's ability to perform its obligations under this Agreement.
- 7 -
9
Section 6.4 No Finder's Fees. Except as disclosed pursuant to the
Acquisition Agreement, no broker, investment banker, financial advisor or other
Person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Shareholder.
Section 6.5 No Encumbrances. Such Shareholder's Subject Shares and the
certificates representing such Shareholder's Subject Shares are now, and at all
times during the term hereof will be, held by such Shareholder, or by a nominee
or custodian for the benefit of such Shareholder, free and clear of all Liens
except for any such encumbrances or proxies arising hereunder. The transfer by
such Shareholder of such Shareholder's Subject Shares to Sub shall pass to and
unconditionally vest in Sub good and valid title to all of such Shareholder's
Shares, free and clear of all claims, Liens, restrictions, limitations and
encumbrances whatsoever, other than any such encumbrances created by Sub.
Section 6.6 Reliance by Parent. Such Shareholder understands and
acknowledges that Parent is entering into, and causing Sub to enter into, the
Acquisition Agreement in reliance upon the execution and delivery of this
Agreement by such Shareholder.
Section 6.7 Investor Rights Agreement. The Investor Rights Agreement has
been duly executed and delivered by HM4 Triton and constitutes a valid and
binding obligation of HM4 Triton enforceable against HM4 Triton in accordance
with its terms, except to the extent that its enforceability may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles. Upon the purchase by Parent or Sub of the Preferred Shares
beneficially owned by HM4 Triton, Parent and Sub shall constitute "the
Purchaser" as such term is defined in the Investor Rights Agreement and shall be
entitled to all of the benefits of "the Purchaser" thereunder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Parent and Sub hereby jointly and severally represent and warrant to each
Shareholder as follows:
Section 7.1 Due Organization, etc. Each of Parent and Sub is a company
duly organized and validly existing under the laws of the jurisdiction of its
incorporation or organization. Each of Parent and Sub has all necessary power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by Parent and Sub
have been duly authorized by all necessary action on the part of Parent and Sub
and, assuming its due authorization, execution and delivery by each Shareholder
constitutes a valid and binding obligation of each of Parent and Sub,
enforceable against each of Parent and Sub in accordance with its terms, except
to the extent that its enforceability may be subject to
- 8 -
10
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles.
Section 7.2 No Conflicts. (i) Except for compliance with Antitrust Laws
and federal securities laws, no filing with any Governmental Entity, no Permit
and no authorization, consent or approval of any other Person is necessary for
the execution of this Agreement by Parent or Sub and the consummation by Parent
and Sub of the transactions contemplated hereby and (ii) none of the execution
and delivery of this Agreement by Parent or Sub, the consummation by Parent or
Sub of the transactions contemplated hereby shall (A) conflict with or result in
any breach of the organizational documents of Parent or Sub, (B) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any material note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Parent or Sub is a party or by
which Parent or Sub or any of their respective properties or assets may be
bound, or (C) assuming compliance with Antitrust Laws, violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable to
Parent or Sub or any of their respective properties or assets which could
reasonably be expected to adversely affect Parent's or Sub's ability to perform
its obligations under this Agreement.
Section 7.3 Investment Intent. The purchase of the Subject Shares from
such Shareholder pursuant to this Agreement is for the account of Parent or Sub
for the purpose of investment and not with a view to or for sale in connection
with any distribution thereof in violation of any applicable provisions of the
Securities Act.
Section 7.4 No Finder's Fees. Except for Goldman Sachs & Co., Inc. (whose
fees and expenses as financial advisor to Parent and Sub shall be paid by Parent
or Sub), no broker, investment banker, financial advisor or other Person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of Parent or Sub.
Section 7.5 Litigation. As of the date of this Agreement, there is no
suit, action, proceeding or indemnification claim pending or, to the knowledge
of Parent, threatened against or affecting Parent or any of its Subsidiaries
that individually or in the aggregate reasonably could be expected to (i) impair
the ability of Parent or Sub to perform its obligations under this Agreement in
any material respect or (ii) delay in any material respect or prevent the
consummation of any of the transactions contemplated by this Agreement, nor is
there any judgment, decree, injunction, rule or order of any Governmental Entity
or arbitrator outstanding against Parent or any of its Subsidiaries having, or
which reasonably could be expected to have, any effect referred to in clause (i)
or (ii) above.
Section 7.6 Ownership of Sub. Parent owns, directly or indirectly, all of
the issued and outstanding share capital of Sub, and there are no outstanding
options, warrants or other securities convertible into, or rights to acquire,
any share capital of Sub.
- 9 -
11
Section 7.7 Reliance by Shareholder. Parent and Sub understand and
acknowledge that each Shareholder is entering into this Agreement in reliance
upon the execution and delivery of the Acquisition Agreement by Parent and Sub.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Shareholder and each of
Parent and Sub as follows:
Section 8.1 No Adjustment. There has been no adjustment to the conversion
price of the Preferred Shares pursuant to Section 5(c) of the Share Designation
resolutions of the Board of Directors of the Company relating to the Preferred
Shares.
Section 8.2 Investor Rights Agreement. The Investor Rights Agreement has
been duly executed and delivered by the Company and constitutes a valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except to the extent that its enforceability may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles. Upon the purchase by Parent or Sub of the Preferred Shares
beneficially owned by HM4 Triton, Parent and Sub shall constitute "the
Purchaser" as such term is defined in the Investor Rights Agreement and shall be
entitled to all of the benefits of "the Purchaser" thereunder.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Shareholder Capacity. No Shareholder executing this Agreement
who is or becomes during the term hereof a director or officer of the Company
makes any agreement or understanding herein in his, her or its capacity as such
director or officer. Each Shareholder executes this Agreement solely in his or
her capacity as the record holder or beneficial owner of such Shareholder's
Subject Shares and nothing herein shall limit or affect any actions taken by a
Shareholder or any officer, director, partner or Affiliate of such Shareholder
in his, her or its capacity as an officer or director of the Company.
Section 9.2 Publication. Each Shareholder hereby permits Parent and Sub to
publish and disclose in the Offer Documents and, if approval of the shareholders
of the Company is required under applicable law, in the Proxy Statement
(including all documents and schedules filed with the Commission) its identity
and ownership of Ordinary Shares and/or Preferred Shares and the nature of its
commitments, arrangements, and understandings pursuant to this Agreement.
- 10 -
12
Section 9.3 Further Actions. Each of the parties hereto agrees that it
will use its commercially reasonable efforts to do all things necessary to
convey the Subject Shares pursuant to, and in accordance with, this Agreement.
Section 9.4 Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and supersedes all prior agreements and understandings, oral and written,
with respect thereto.
Section 9.5 Binding Effect; Benefit; Assignment. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
permitted assigns. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto, except by
will or by the laws of descent and distribution, without the prior written
consent of each of the other parties, except that each of Parent and Sub may
assign and transfer its rights and obligations hereunder to any direct or
indirect wholly owned Subsidiary of Parent; provided, however, that such
Subsidiary is directly or indirectly wholly owned by Parent on the Share
Purchase Closing Date. Nothing in this Agreement, expressed or implied, is
intended to confer on any Person, other than the parties hereto, any rights or
remedies.
Section 9.6 Amendments, Waivers, etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by all of the
relevant parties hereto.
Section 9.7 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered in person or
mailed, certified or registered mail with postage prepaid, or sent by facsimile
(upon confirmation of receipt), as follows:
(i) If to any Shareholder, to such Shareholder at the address set forth
immediately beneath such Shareholder's name on Annex A:
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
100 Crescent Court, Suite 1300
Dallas, TX 75201
Attention: Glenn D. West
Fax: 214-746-7777
(ii) If to Parent or Sub, to it at:
Amerada Hess Corporation
1185 Avenue of the Americas
New York, NY 10036
Attention: J. Barclay Collins, II
Fax: 212-536-8390
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13
with a copy (which shall not constitute notice) to:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: Timothy B. Goodell, Esq.
Gregory P. Pryor, Esq.
Fax: 212-354-8113
or to such other Person or address as any party shall specify by notice in
writing to each of the other parties. All such notices, requests, demands,
waivers and communications shall be deemed to have been received on the date of
delivery, except for a notice of a change of address, which shall be effective
only upon receipt thereof.
Section 9.8 Specific Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity.
Section 9.9 Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
Section 9.10 No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
Section 9.11 Applicable Law. THIS AGREEMENT AND THE LEGAL RELATIONS
BETWEEN THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAWS RULES
THEREOF. THE COMPETENT STATE OR FEDERAL COURTS LOCATED WITHIN THE STATE OF
DELAWARE WILL HAVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES
HERETO, WHETHER IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT
AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY, AND THE
PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS. EACH
OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO
THE FULLEST EXTENT
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14
PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (I) SUCH PARTY IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF SUCH COURTS, (II) SUCH PARTY AND SUCH PARTY'S
PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY SUCH COURTS OR (III) ANY
LITIGATION OR OTHER PROCEEDING COMMENCED IN SUCH COURTS IS BROUGHT IN AN
INCONVENIENT FORUM. THE PARTIES HEREBY AGREE THAT DELIVERY OR SENDING OF PROCESS
OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER
PROVIDED IN SECTION 9.7, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW,
SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY OBJECTIONS TO
SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.12 Headings. The descriptive headings of this Agreement are
inserted for convenience only, do not constitute a part of this Agreement and
shall not affect in any way the meaning or interpretation of this Agreement.
Section 9.13 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
Section 9.14 Termination. This Agreement shall terminate, and none of
Parent, Sub or any Shareholder shall have any rights or obligations hereunder
and this Agreement shall become null and void and have no effect upon the
earliest to occur of (a) the mutual consent of Parent, Sub and HM4 Triton and
(b) by any of Parent, Sub or HM4 Triton if the Subject Shares have not been
acquired by Sub on or prior to December 31, 2001; or (c) by HM4 Triton if Sub is
in material breach of its obligations under Section 4.2; provided, that no party
that is in material breach of this Agreement may terminate this Agreement;
provided, further, that termination of this Agreement shall not prevent any
party hereunder from seeking any remedies (at law or in equity) against any
other party hereto for such party's breach of any of the terms of this
Agreement. Notwithstanding the foregoing, Sections 9.4, 9.5, 9.7, 9.9, 9.11 and
this Section 9.14 shall survive the termination of this Agreement.
Section 9.15 Affiliates. As used in this Agreement, an "Affiliate" of any
Person shall mean any Person directly or indirectly controlling, controlled by,
or under common control with, such Person; provided, however, that for the
purposes of this Agreement, the Company shall not be deemed to be an "Affiliate"
of any Shareholder.
Section 9.16 No Recourse. The partners, members, officers, directors,
shareholders and Affiliates of a Shareholder shall not have any personal
liability or obligation to any Person arising under this Agreement in such
capacities. Each Shareholder's liability under this Agreement shall be several
and not joint and in all events shall be limited with respect to each
Shareholder to the amount of cash consideration actually received by such
Shareholder in the
- 13 -
15
Offer or pursuant to this Agreement in respect of such Shareholder's Ordinary
Shares and Preferred Shares set forth on Annex A.
* * *
- 14 -
16
IN WITNESS WHEREOF, Parent, Sub and each Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
AMERADA HESS CORPORATION
By: /s/ JOHN B. HESS
_________________________________
Name: John B. Hess
Title: Chairman of the Board and Chief Executive Officer
AMERADA HESS (CAYMAN) LIMITED
By: /s/ J. BARCLAY COLLINS
_________________________________
Name: J. Barclay Collins
Title: Director
TRITON ENERGY LIMITED
By: /s/ A.E. TURNER, III
_________________________________
Name: A.E. Turner, III
Title: Senior Vice President
HM4 Triton, L.P.
By: HM4/GP Partners Cayman, L.P., its general partner
By: HM GP Partners IV Cayman, L.P., its general partner
By: HM Fund IV Cayman, LLC, its general partner
By /s/ THOMAS O. HICKS
______________________________________
Name:
Title:
/s/ THOMAS O. HICKS
____________________________________
Thomas O. Hicks
- 15 -
17
TOH Investors, L.P.
By: TOH Management Company, LLC, its general partner
By: /s/ THOMAS O. HICKS
______________________________________
Name: Thomas O. Hicks
Title:
TOH, Jr. Ventures, Ltd.
By: TOH Management Company, LLC, its general partner
By: /s/ THOMAS O. HICKS
______________________________________
Name: Thomas O. Hicks
Title:
Catherine Forgrave Hicks 1993 Trust
By: /s/ THOMAS O. HICKS
_________________________________
Thomas O. Hicks,
Trustee
John Alexander Hicks 1984 Trust
By: /s/ THOMAS O. HICKS
_________________________________
Thomas O. Hicks,
Trustee
Mack Hardin Hicks 1984 Trust
By: /s/ THOMAS O. HICKS
_________________________________
Thomas O. Hicks,
Trustee
Robert Bradley Hicks 1984 Trust
By: /s/ THOMAS O. HICKS
_________________________________
Thomas O. Hicks,
Trustee
- 16 -
18
William Cree Hicks 1992 Trust
By: /s/ THOMAS O. HICKS
_________________________________
Thomas O. Hicks,
Trustee
- 17 -
19
ANNEX A
LIST OF SHAREHOLDERS AND OWNERSHIP OF ORDINARY SHARES, $0.01 PAR
VALUE AND 8% CONVERTIBLE PREFERENCE SHARES, $0.01 PAR VALUE OF
TRITON ENERGY LIMITED
8%
ORDINARY PREFERENCE
SHAREHOLDER ADDRESS SHARES SHARES
----------- ------- ------ ------
HM4 Triton, L.P. c/o Hicks, Muse, Tate & Furst Incorporated 1,434,252 5,030,835
200 Crescent Court
Suite 1600
Dallas, TX 75201
Thomas O. Hicks c/o Hicks, Muse, Tate & Furst Incorporated 295,515 14,507
200 Crescent Court
Suite 1600
Dallas, TX 75201
TOH Investors, L.P. c/o Hicks, Muse, Tate & Furst Incorporated 3,007 10,548
200 Crescent Court
Suite 1600
Dallas, TX 75201
TOH, Jr. Ventures, Ltd. c/o Hicks, Muse, Tate & Furst Incorporated 434 470
200 Crescent Court
Suite 1600
Dallas, TX 75201
Catherine Forgrave Hicks 1993 Trust c/o Hicks, Muse, Tate & Furst Incorporated 133 465
200 Crescent Court
Suite 1600
Dallas, TX 75201
John Alexander Hicks 1984 Trust c/o Hicks, Muse, Tate & Furst Incorporated 133 465
200 Crescent Court
Suite 1600
Dallas, TX 75201
Mack Hardin Hicks 1984 Trust c/o Hicks, Muse, Tate & Furst Incorporated 133 465
200 Crescent Court
Suite 1600
Dallas, TX 75201
Robert Bradley Hicks 1984 Trust c/o Hicks, Muse, Tate & Furst Incorporated 133 465
200 Crescent Court
Suite 1600
Dallas, TX 75201
William Cree Hicks 1992 Trust c/o Hicks, Muse, Tate & Furst Incorporated 133 465
200 Crescent Court
Suite 1600
Dallas, TX 75201
- 18 -
20
ANNEX B
Sub shall not be required to purchase any Subject Shares if (i) the
Subject Shares shall have been purchased pursuant to the Offer, (ii) any
applicable waiting period (and any extension thereof) under the Antitrust Laws
shall not have expired or been terminated, or (iii) if, at any time on or after
the date of this Agreement and at or before the time of payment for any Subject
Shares, any of the following shall exist:
(a) there shall be threatened, instituted or pending any action or
proceeding by any Governmental Entity, (i) challenging or seeking to, or which
could reasonably be expected to, make illegal, impede, delay or otherwise
directly or indirectly restrain, prohibit or make materially more costly the
transactions contemplated by this Agreement, (ii) seeking to prohibit or
materially limit the ownership or operation by Parent or Sub of all or any
material portion of the business or assets of the Company and its Subsidiaries
taken as a whole or to compel Parent or Sub to dispose of or hold separately all
or any material portion of the business or assets of Parent and its Subsidiaries
taken as a whole or the Company and its Subsidiaries taken as a whole, or
seeking to impose any limitation on the ability of Parent or Sub to conduct its
business or own such assets, (iii) seeking to impose limitations on the ability
of Parent or Sub effectively to exercise full rights of ownership of the Subject
Shares, including, without limitation, the right to vote any Subject Shares
acquired or owned by Sub or Parent on all matters properly presented to the
Company's shareholders (other than voting restrictions under applicable law in
effect on the date of this Agreement), (iv) seeking to require divestiture by
Parent or Sub of any Subject Shares, or (v) otherwise directly or indirectly
relating to the transactions contemplated by this Agreement and which could
reasonably be expected to have a Material Adverse Effect on the Company and its
Subsidiaries taken as a whole or on Parent and its Subsidiaries taken as a
whole;
(b) there shall be any action taken, or any statute, rule, regulation,
legislation, interpretation, judgment, order or injunction proposed, enacted,
enforced, promulgated, amended or issued after the date of this Agreement and
applicable to or deemed applicable to (i) Parent, Sub, the Company or any
Subsidiary of the Company or (ii) the transactions contemplated by this
Agreement by any Governmental Entity other than the routine application of the
waiting period provisions of the HSR Act to the transactions contemplated by
this Agreement, that could reasonably be expected to result directly or
indirectly in any of the consequences referred to in paragraph (a) above;
(c) except for inaccuracies in any representations or warranties of the
Shareholders that result from actions or inactions required by this Agreement,
any representation or warranty of the Shareholders and the Company contained in
this Agreement shall not be materially true and correct as of the Closing; or
(d) any Shareholder or the Company shall have failed to perform in any
material respect any obligation or to comply in any material respect with any
agreement or covenant under this Agreement.
The foregoing conditions are for the sole benefit of Parent and Sub and
may be asserted by Parent or Sub, or may be waived by Parent or Sub, in whole or
in part, at any time and from
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21
time to time in their respective sole discretion. The failure by Parent or Sub
at any time to exercise any of the foregoing rights shall not be deemed a waiver
of any such right and each such right shall be deemed an ongoing right which may
be asserted at any time and from time to time.
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22
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS .......................................................... 2
Section 1.1 Definitions ........................................ 2
ARTICLE II
TENDER OF SHARES ..................................................... 2
Section 2.1 Tender of Shares ................................... 2
ARTICLE III
VOTING AND PROXY ..................................................... 3
Section 3.1 Agreement to Vote the Subject Shares ............... 3
Section 3.2 Grant of Proxy ..................................... 3
Section 3.3 Nature of Proxy .................................... 4
ARTICLE IV
PURCHASE AND SALE .................................................... 4
Section 4.1 Purchase and Sale .................................. 4
Section 4.2 Closing ............................................ 4
Section 4.3 Subsequent Offering Period ......................... 5
ARTICLE V
COVENANTS ............................................................ 5
Section 5.1 Generally .......................................... 5
Section 5.2 No Solicitation of Other Offers .................... 5
Section 5.3 Investor Rights Agreement .......................... 6
Section 5.4 Conversion of Preferred Shares ..................... 6
Section 5.5 Compliance with Law; Acquisition Agreement ......... 6
Section 5.6 Extension of Initial Offering Period ............... 6
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS ....................... 7
Section 6.1 Due Organization, etc. ............................. 7
Section 6.2 Ownership of Shares ................................ 7
Section 6.3 No Conflicts ....................................... 7
Section 6.4 No Finder's Fees ................................... 8
(i)
23
Page
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Section 6.5 No Encumbrances .................................... 8
Section 6.6 Reliance by Parent ................................. 8
Section 6.7 Investor Rights Agreement .......................... 8
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB ..................... 8
Section 7.1 Due Organization, etc. ............................. 8
Section 7.2 No Conflicts ....................................... 9
Section 7.3 Investment Intent .................................. 9
Section 7.4 No Finder's Fees ................................... 9
Section 7.5 Litigation ......................................... 9
Section 7.6 Ownership of Sub. .................................. 9
Section 7.7 Reliance by Shareholder ............................ 10
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF THE COMPANY ........................ 10
Section 8.1 No Adjustment ...................................... 10
Section 8.2 Investor Rights Agreement .......................... 10
ARTICLE IX
MISCELLANEOUS ........................................................ 10
Section 9.1 Shareholder Capacity ............................... 10
Section 9.2 Publication ........................................ 10
Section 9.3 Further Actions .................................... 11
Section 9.4 Entire Agreement ................................... 11
Section 9.5 Binding Effect; Benefit; Assignment ................ 11
Section 9.6 Amendments, Waivers, etc. .......................... 11
Section 9.7 Notices ............................................ 11
Section 9.8 Specific Enforcement ............................... 12
Section 9.9 Remedies Cumulative ................................ 12
Section 9.10 No Waiver ......................................... 12
Section 9.11 Applicable Law .................................... 12
Section 9.12 Headings .......................................... 13
Section 9.13 Counterparts ...................................... 13
Section 9.14 Termination ....................................... 13
Section 9.15 Affiliates ........................................ 13
Section 9.16 No Recourse ....................................... 13
ANNEX A .............................................................. 18
ANNEX B .............................................................. 19
(ii)
1
Exhibit (d)(3)
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this "Agreement") is dated effective as
of the 4th day of June, 2001, between Amerada Hess Corporation, a Delaware
corporation ("AHC"), and Triton Energy Limited, a Cayman Islands company (the
"Company").
1. AHC and the Company intend to engage in discussions and possibly
in negotiations concerning a possible transaction between them (the "Proposed
Transaction"). In the course of such discussions and negotiations, it is
anticipated that either party may disclose or deliver to the other party and
their respective Representatives (as defined below) certain information which is
non-public, confidential and/or proprietary in nature for the purpose of
enabling the other party to evaluate the feasibility of such a Proposed
Transaction. The parties have entered into this Agreement, among other reasons,
in order to assure the confidentiality of such non-public, confidential or
proprietary information in accordance with the terms of this Agreement. As used
in this Agreement, the party disclosing "Evaluation Material" (as defined below)
is referred to as the "Disclosing Party" and the party receiving such Evaluation
Material is referred to as the "Recipient".
2. For the purpose of this Agreement, the term "Evaluation
Material" shall mean any information, data and knowledge concerning the
Disclosing Party, regardless of form, which is delivered or disclosed by or on
behalf of the Disclosing Party to the Recipient in writing, orally or through
visual means, or which the Recipient learns or obtains orally, through
observation, or through analysis of such information, data or knowledge in
connection with the Recipient's consideration of the Proposed Transaction. The
term "Evaluation Material" does not include any information which (a) was
already known to the Recipient on a non-confidential basis prior to its being
furnished by or on behalf of the Disclosing Party, provided that the source of
such information was not bound by a written confidentiality agreement with or
other contractual, legal or fiduciary obligation to, the Disclosing Party; (b)
is now or hereafter becomes generally available to the public other than as a
result of a disclosure in breach of this Agreement (or another written
confidentiality agreement between the Company or any of its subsidiaries and AHC
or any of its subsidiaries) by the Recipient or its Representatives (as defined
below); (c) was or becomes available to the Recipient on a non-confidential
basis from a source other than the Disclosing Party, or its Representatives,
provided that such source is not bound by a confidentiality agreement with the
Disclosing Party; or (d) is independently developed by the Recipient without
violating any of its obligations under this Agreement (or another written
confidentiality agreement between the Company or any of its subsidiaries and AHC
or any of its subsidiaries ).
3. All Evaluation Material will be used solely for the purpose of
evaluating the Proposed Transaction. Such Evaluation Material will be kept
strictly confidential by the Recipient and those of its directors, officers,
employees, counsel, affiliates, agents, auditors, accountants or other advisors
to whom disclosure is necessary for the purpose of such an evaluation
(collectively referred to as the "Representatives"), it being understood that
these Representatives will be informed of the confidential nature of the
Evaluation Material and will agree to be bound by this Agreement and not to
disclose the Evaluation Material to any other individual or person. Furthermore,
each party and its Representatives will exercise the same
2
standard of care (which standard shall in any event be reasonable) to prevent
the unauthorized disclosure or unauthorized use of the Evaluation Material and
information referenced in paragraph 6 below as such party exercises to prevent
the unauthorized disclosure or unauthorized use of its own proprietary
information (the "Standard of Care"); provided that neither party nor its
Representatives shall be liable to the other party for any unauthorized use or
unauthorized disclosure of the Evaluation Material or such information to the
extent that the Standard of Care is exercised with respect thereto.
4. In the event that the Recipient or any of its Representatives
becomes legally compelled (by deposition, interrogatory, request for documents,
subpoena, civil investigative demand, other demand or request by governmental
agency or if a party determines the application of statutes, rules and
regulations under the federal securities laws or similar process requires
disclosure) to disclose any of the Evaluation Material, the Recipient or such
Representative shall provide the Disclosing Party with prompt prior written
notice of such requirement prior to such disclosure and will cooperate fully
with the Disclosing Party should the Disclosing Party seek a protective order or
other relief. In the event that a protective order or other remedy (including a
waiver from the Disclosing Party) is not obtained, or that the Disclosing Party
waives in writing compliance with the provisions hereof, the Recipient or
Representative, as applicable, may furnish only that portion of the Evaluation
Material that the Recipient or Representative is advised by written opinion of
counsel is legally required to furnish and the Recipient or Representative, as
applicable, will exercise all reasonable efforts to obtain assurance that
confidential treatment will be accorded to such Evaluation Material.
5. If the Proposed Transaction is not consummated or if the
Disclosing Party so requests, the Recipient will promptly (i) return to the
Disclosing Party all copies of the Evaluation Material in its possession or in
the possession of its Representatives, (ii) unless specifically prohibited by
applicable law or court order, destroy all copies of those portions of any
documents prepared by the Recipient or its Representatives which contain any
Evaluation Material, and (iii) if so requested by the Disclosing Party deliver
to the Disclosing Party a certificate executed by one of its duly authorized
officers confirming that the requirements of clauses (i) and (ii) have been
satisfied. Notwithstanding the return or destruction of any such information,
the Recipient will continue to be bound by this Agreement in accordance with its
terms.
6. Without the prior written consent of both AHC and the Company,
neither AHC nor the Company will, and each of AHC and the Company will direct
its Representatives not to, disclose to any person either the fact that any
investigations, discussions or negotiations are taking place regarding the
Proposed Transaction (or any other transaction) or that the Recipient has
requested or received Evaluation Material from the Disclosing Party, or any of
the terms, conditions or other facts with respect to the Proposed Transaction,
including the status thereof, unless and except to the extent required pursuant
to paragraph 4 above.
7. The Recipient acknowledges that neither the Disclosing Party nor
its Representatives makes any express or implied representation or warranty as
to the accuracy or completeness of the Evaluation Material, and each of the
Disclosing Party, its Representatives and its and their respective affiliates
expressly disclaims and shall not have any liability under
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this Agreement based on use of the Evaluation Material, errors therein or
omissions therefrom. The Recipient agrees that it is not entitled to rely on the
accuracy or completeness of the Evaluation Material and that it shall be
entitled to rely solely on the representations and warranties made to it in any
final agreement regarding any eventual transaction. If either party is granted
physical access to any of the properties or data rooms of the other party, such
party agrees to indemnify, defend and hold harmless the other party from and
against any and all liabilities, claims and causes of action for personal
injury, death or property damage occurring on or to such property as a result of
such party's entry onto the premises. Each party agrees to comply fully with all
rules, regulations and instructions issued by the other party regarding such
party's actions while upon, entering or leaving the property of the other party.
8. (a) For a period of one (1) year from the date of this
Agreement, neither party will, directly or indirectly, without the prior written
consent of the other party, (a) in any manner acquire, agree to acquire or make
any proposal to acquire, directly or indirectly, any securities, assets or
property of the other party, other than purchases of the common shares of the
other party through employee pension plans, savings plans and similar purchases
in the ordinary course of business totaling less than 5% of the issued and
outstanding common shares of the other party and not for the purpose of
attempting to gain control of or influence the management, Board of Directors or
policies of the other party; (b) propose to enter into, directly or indirectly,
any merger or other business combination involving the other party; (c) make, or
in any way participate, directly or indirectly, in any "solicitation" of
"proxies" (as such terms are used in the proxy rules of the U. S. Securities and
Exchange Commission) to vote, or seek to advise or influence any person with
respect to the voting of, any voting securities of the other party; (d) form,
join or in any way participate in a "group" (within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934) with respect to any voting
securities of the other party; (e) otherwise act, alone or in concert with
others, to seek to control or influence the management, Board of Directors or
policies of the other party; (f) disclose any intention, plan or arrangement
inconsistent with the foregoing; or (g) advise, encourage, provide assistance
(including financial assistance) to or hold discussions with any other persons
in connection with any of the foregoing.
(b) Prior to July 15, 2001, the Company shall not, and shall
cause its directors, officers, employees, agents and representatives not to (i)
solicit or encourage, directly or indirectly, any inquiries, discussions or
proposals for, (ii) continue, propose or enter into negotiations looking toward,
or (iii) enter into any agreement or understanding providing for, any
acquisition of the capital stock, assets or business of the Company; nor shall
any of such persons provide any information to any person for the purpose of
evaluating or determining whether to make or pursue any inquiries or proposals
with respect to any such transaction; provided that this paragraph (b) shall not
prohibit such persons from soliciting inquiries, discussions or proposals for,
entering into negotiations looking toward and/or entering into agreements
providing for (i) an acquisition of certain assets of the Company in the
ordinary course of the oil and gas exploration and production business or (ii)
the public offering of securities of the Company.
9. Each party agrees that it will not knowingly, as a result of
information or knowledge obtained from the Evaluation Material of the other
party, solicit, entice or induce any employees of the other party or its
affiliate to become employed by such party or any affiliate, for a period of two
(2) years from the date of this Agreement.
Page 3
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10. The agreements entered into hereunder shall, in addition to
being on behalf of the parties hereto, be on behalf of the affiliates and direct
and indirect subsidiaries of the parties and their respective Representatives.
11. The parties acknowledge that they have been advised, and that
they will advise their Representatives who are informed as to the matters which
are the subject of this Agreement, that the United States securities laws
prohibit any person who has material, non-public information concerning a
company, such as may be contained in the Evaluation Material, from purchasing or
selling securities of such company, or from communicating such information to
any other person under circumstances in which it is reasonably foreseeable that
such person is likely to purchase or sell such securities.
12. Miscellaneous.
(a) This Agreement supersedes all prior agreements, written
or oral, between the Company and AHC relating to the subject matter of this
Agreement. This Agreement may not be modified, changed or discharged in whole or
in part, except by an agreement in writing signed by the Company and AHC.
(b) This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns, including without limitation, any person acquiring a majority of the
outstanding of equity securities of any such party.
(c) This Agreement shall be construed and interpreted in
accordance with the substantive laws (but not the rules governing conflicts of
laws) of the State of New York. Each party, on its behalf and on behalf of its
Representatives, irrevocably and unconditionally consents to submit to the
jurisdiction of the courts of the United States of America located in the State
of Texas for any actions, suits or proceedings arising out of or relating to
this Agreement (and each party agrees not to commence any action, suit or
proceeding relating thereto except in such courts), and further agrees that
service of any process, summons, notice or document by U.S. registered mail to
the address set forth below shall be effective service of process for any
action, suit or proceeding brought in any such court. Each party hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement, in the courts of
the United States of America located in the State of Texas, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
(d) The provisions of this Agreement are necessary for the
protection of the business and goodwill of the parties and are considered by the
parties to be reasonable for such purpose. The Recipient agrees that any breach
of this Agreement will cause the Disclosing Party substantial and irreparable
damages and, therefore, in the event of any such breach, in addition to other
remedies which may be available, the Disclosing Party shall have the right to
specific performance, injunctive and other equitable relief and in connection
therewith, the Recipient and its Representatives shall waive any requirement for
the securing or posting of any bond. In
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addition, the Recipient hereby consents to any preliminary or ex parte
applications for such relief to any court of competent jurisdiction. The
prevailing party shall be reimbursed for all costs and expenses, including
reasonable legal fees, incurred in enforcing the other party's obligations
hereunder.
(e) All obligations under this Agreement, if not sooner
terminated, shall terminate on the third anniversary of the date of this
Agreement.
This Confidentiality Agreement is executed as of the date and year first
above written.
ADDRESS: TRITON ENERGY LIMITED
c/o Triton Exploration Services, Inc.
6688 North Central Expressway, Ste 1400 By: /s/ W. Greg Dunlevy
Dallas, TX 75206 -------------------------
Fax No. (214) 691-0198 Title: Senior Vice President
-------------------------
ADDRESS: AMERADA HESS CORPORATION
1185 Avenue of the Americas By: /s/ J. Barclay Collins II
New York, New York 10036 -------------------------
Fax No. (212) 536-8241 Title: Executive Vice President
----------------- and General Counsel
-------------------------
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1
Exhibit (d)(4)
AMENDMENT NO. 1
TO
ACQUISITION AGREEMENT
This Amendment No. 1 to Acquisition Agreement (this "Amendment") is
made as of the 17th day of July, 2001, by and among Amerada Hess Corporation,
a corporation organized under the laws of Delaware ("Parent"), Amerada Hess
(Cayman) Limited, a company limited by shares organized under the laws of the
Cayman Islands and a wholly-owned subsidiary of Parent ("Sub"), and Triton
Energy Limited, a company limited by shares organized under the laws of the
Cayman Islands (the "Company"), to amend that certain Acquisition Agreement,
dated as of July 9, 2001 (the "Acquisition Agreement"), by and among Parent, Sub
and the Company. Unless the context indicates otherwise, capitalized terms used
but not defined in this Amendment and defined in the Acquisition Agreement shall
have the meanings ascribed to them in the Acquisition Agreement.
1. Recitals. The second recital of the Acquisition Agreement shall be
amended and restated in its entirety to read as follows:
"WHEREAS, in contemplation of the acquisition of the Company
by Parent, it is proposed that Sub commence a cash tender offer (the
"Offer") to purchase, on the terms and subject to the conditions set
forth in this Agreement, any and all of the existing unconditionally
allotted or issued and fully paid ordinary shares, par value $0.01 per
share of the Company, and any further ordinary shares which are
unconditionally allotted or issued and fully paid (upon conversion of
the Preferred Shares (as defined below) or otherwise) as of the date
and time of the expiration of the Offer, including any Subsequent Offer
Period (including the associated Series A Junior Participating
Preferred Share Purchase Rights (the "Rights") issued pursuant to the
Rights Agreement, dated as of March 25, 1996, by and between the
Company and Chemical Bank, as Rights Agent, as amended pursuant to
amendments dated August 2, 1996, August 30, 1998 and January 5, 1999
(the "Rights Agreement")) (the "Ordinary Shares"), at a price of U.S.
$45.00 per Ordinary Share net to the seller in cash (the "Ordinary
Share Offer Price");"
2. Definitions. The definition of the term "fully-diluted basis" or "on
a fully-diluted basis" shall be amended and restated in its entirety to read as
follows:
"shall mean, at any time, the number of Ordinary Shares
allotted and issued, together with the Ordinary Shares which the
Company may be required to issue, now or in the future, including,
without limitation, Ordinary Shares issuable pursuant to warrants,
options (including, without limitation, the Options) or other rights or
other obligations outstanding at such time under employee stock or
similar benefit plans or otherwise, whether or not vested or then
exercisable, but excluding the effect of the Rights)."
2
3. Section 6.6. Section 6.6(b) is hereby amended by deleting the word
"Amalgamation" contained therein and replacing it with "transactions
contemplated by the Agreement."
4. Annex A. The second paragraph of Annex A to the Acquisition
Agreement is hereby amended and restated in its entirety to read as follows:
"Notwithstanding any other provision of the Offer or the
Acquisition Agreement, Purchaser shall not be required to accept for
payment or, subject to any applicable rules and regulations of the
Commission, including Rule 14e-1(c) under the Exchange Act (relating to
Purchaser's obligation to pay for or return tendered Ordinary Shares
promptly after termination or withdrawal of the Offer), to pay for any
Ordinary Shares tendered pursuant to the Offer and may terminate or
amend the Offer and may postpone the acceptance of, and payment for,
any Ordinary Shares, if (i) there shall not have been validly tendered
and not properly withdrawn prior to the expiration of the Offer a
number of Ordinary Shares which represent at least ninety percent (90%)
in value of all the Ordinary Shares (the "Minimum Condition") (provided
that, for purposes of determining whether such Minimum Condition is
satisfied, all Ordinary Shares held by the Principal Shareholders that
are tendered and not withdrawn (but continuing to include for this
purpose all Ordinary Shares withdrawn at the instruction of Parent) and
all Ordinary Shares issuable upon conversion of Preferred Shares that
are surrendered for conversion by the Principal Shareholders with
appropriate tender instructions pursuant to the Principal Shareholders
Agreement (but continuing to include for this purpose all Ordinary
Shares issuable upon conversion of Preferred Shares with respect to
which tender and conversion instructions are revoked at the instruction
of Parent) shall be included in such calculation), (ii) any applicable
waiting period (and any extension thereof) under the HSR Act shall not
have expired or been terminated, or (iii) if, at any time on or after
the date of the Acquisition Agreement and at or before the time of
payment for any Ordinary Shares (whether or not any Ordinary Shares
have theretofore been accepted for payment, or paid for, pursuant to
the Offer), any of the following shall exist:"
5. Acquisition Agreement Otherwise Unchanged. Except as set forth in
this Amendment, the Acquisition Agreement shall remain in full force and effect
in accordance with its terms. In the event of any conflict between the
provisions of this Amendment and the Acquisition Agreement, the provisions of
this Amendment shall control.
6. Incorporation by Reference. Sections 9.6, 9.7, 9.9, 9.10, 9.11, 9.12
9.13, 9.15 and 9.16 of the Acquisition Agreement are incorporated herein by
reference.
[The remainder of this page is intentionally left blank.]
3
IN WITNESS WHEREOF, each of Parent, Sub and the Company have caused
this Amendment to be executed by their respective officers thereunto duly
authorized, all as of the date first above written.
AMERADA HESS CORPORATION
By: /s/ J. Barclay Collins II
-----------------------------------
Name: J. Barclay Collins II
Title: Executive Vice President
and General Counsel
AMERADA HESS (CAYMAN) LIMITED
By: /s/ J. Barclay Collins II
-----------------------------------
Name: J. Barclay Collins II
Title: Director
TRITON ENERGY LIMITED
By: /s/ A.E. Turner, III
-----------------------------------
Name: A.E. Turner, III
Title: Senior Vice President
