UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 | |||||
FORM 8-K |
CURRENT REPORT | ||
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
Date of report (Date of earliest event reported): April 11, 2012 |
FOREST OIL CORPORATION (Exact name of registrant as specified in its charter) |
New York | ||
(State or other jurisdiction of incorporation) |
1-13515 | 25-0484900 | |
(Commission File Number) | (IRS Employer Identification No.) | |
707 17th Street, Suite 3600, Denver, Colorado | 80202 | |
(Address of principal executive offices) | (Zip Code) | |
303.812.1400 | ||
(Registrant’s telephone number, including area code) | ||
(Former name or former address, if changed since last report) |
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. | Entry into a Material Definitive Agreement. |
Exhibit Number | Description |
10.1 | Share Purchase and Sale Agreement, effective as of March 31, 2012, by and among African International Energy PLC, Forest Oil Corporation, Anschutz South Africa Corporation, Forest Exploration International (South Africa) (Proprietary) Ltd, and Anschutz Overseas (South Africa (Proprietary) Ltd. |
10.2 | Share Purchase and Sale Agreement, effective as of March 31, 2012, by and among African International Energy PLC and Forest Oil Netherlands B.V. |
FOREST OIL CORPORATION (Registrant) | ||
April 13, 2012 | By: | /s/ CYRUS D. MARTER IV |
Cyrus D. Marter IV Senior Vice President, General Counsel and Secretary | ||
Exhibit Number | Description |
10.1 | Share Purchase and Sale Agreement, effective as of March 31, 2012, by and among African International Energy PLC, Forest Oil Corporation, Anschutz South Africa Corporation, Forest Exploration International (South Africa) (Proprietary) Ltd, and Anschutz Overseas (South Africa (Proprietary) Ltd. |
10.2 | Share Purchase and Sale Agreement, effective as of March 31, 2012, by and among African International Energy PLC and Forest Oil Netherlands B.V. |
(a) | Upward by the amount of actual expenditures of such Company paid after 1 January, 2011 but before Closing; and |
(b) | Downward by the amount of any Intercompany Debt owed by such Company as of Closing, |
(a) | any material disposal or acquisitions of assets in excess of what is required in the ordinary course of business; |
(b) | the payment or declaration of any dividends or other distributions in respect of the capital of either |
(c) | the granting of any mortgage, charge, encumbrance or lien over the assets of either Company in excess of what is requested in the ordinary course of business or is customarily required by local law or regulation; |
(d) | the entering into, terminating or materially amending any material or long term contract affecting the business of either Company; |
(e) | any authorization of additional or modification of existing capital of either Company; |
(f) | any individual expenditure, whether or not in the ordinary course of business, that is reasonably anticipated to equal or exceed US$100,000.00 (one hundred thousand US Dollars); or |
(g) | the payment by either Company of any salaries, consulting fees or any other payments to employees, directors or consultants materially in excess of those paid historically in the ordinary course. |
(a) | The Seller owns shares constituting 100% of the outstanding capital of its respective Company. |
(b) | The Seller has full corporate right, capacity, power and authority to execute, deliver and perform this Agreement, and this Agreement has been duly executed and delivered by the Seller and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except where such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity (the “Remedies Exception”). |
(c) | There are no suits, actions, administrative, arbitration or other proceedings or governmental investigations ongoing, pending or, to the Seller’s knowledge, threatened against it or its respective Company which would interfere in any material way with the transactions contemplated herein, and the Seller is aware of no valid basis for any such action, suit, proceeding, arbitration or investigation. Its respective Company is not subject to any judgment, order or decree entered in any lawsuit or proceeding, which would interfere in any material way with the transactions contemplated herein. |
(d) | Neither the execution and delivery by the Seller of this Agreement, nor the performance by the Seller of its obligations hereunder, will, nor with the giving of notice or the lapse of time or both, would: |
(1) | conflict with or result in a breach of, or constitute a default under, any provision of any material contract, indenture, lease, sublease, loan agreement, restriction, lien, encumbrance or other material obligation or liability to which the Seller or its respective Company is a party or by which either may be bound; |
(2) | violate any material order, writ, injunction, decree, law, statute, rule or regulation applicable to the Seller or its respective Company; or |
(3) | result in the creation or imposition of any material lien, claim, liability, restriction, charge or encumbrance upon its respective proportion of the Purchased Shares. |
(e) | Neither the Seller nor its respective Company is subject to, or a party to, any law, claim, contract or instrument, encumbrance or any other restriction of any kind or character which would prevent the consummation of the transactions contemplated by this Agreement or compliance by the Seller with the terms, conditions and provisions hereof or the continued operation by its respective Company of its business after either the date hereof or the Closing Date on substantially the same basis as heretofore operated or which would restrict the ability of the Purchaser to acquire any of the Purchased Shares. |
(f) | The Purchased Shares to be sold by the Seller to the Purchaser hereunder (i) are, and will be at the time of the transfer thereof to the Purchaser, fully paid, free and clear of all liens, pledges, charges, liabilities, claims, encumbrances, or rights, title and interest of others (other than restrictions under applicable law and other than as contemplated by this Agreement) and (ii) will be transferred with good and valid title. There are and will be no rights of first refusal, options, warrants or similar rights which affect the Purchased Shares, (other than as contemplated by this Agreement or which will be waived before Closing) and no restrictions on transfer of such Purchased Shares will be breached by the consummation of the transactions contemplated herein. |
(g) | Its respective Company is validly existing and in good standing under the laws of the Republic of South Africa and is not winding up, dissolving, nor subject to bankruptcy, extraordinary administration, or any other insolvency proceedings. |
(h) | Its respective Company does not own, or have any interest in, any securities of any other company or entity nor does it have any agreements of any nature to acquire any such securities or to acquire or lease any business operations. |
(i) | Its respective Company has all necessary corporate power, authority and capacity to own its property and assets which are listed on Schedule E and Schedule F, as appropriate (such property and assets owned by its respective Company hereinafter jointly referred to as the “Assets” of such Company) and to carry on its business in the manner it is presently being conducted. |
(j) | Its respective Company is duly qualified, licensed, authorized or registered to carry on its business |
(k) | The corporate books and records of its respective Company are complete and accurate in all material respects and all corporate proceedings and actions reflected therein have been conducted or taken in compliance with all applicable laws and with its constituent documents. Without limiting the generality of the foregoing, (i) the minute books contain complete and accurate minutes of all meetings of its respective Company’s Board and shareholders, and all such meetings were duly called and held; (ii) the minute books contain all written resolutions passed by its respective Company’s directors and/or shareholders, and all such resolutions were duly passed; (iii) the register of shareholders of its respective Company is complete and accurate, and all transfers of shares of its respective Company have been duly completed and approved and any eligible tax payable in connection with the transfer of such shares has been duly paid; and (iv) the registers of directors and officers are complete and accurate and all former and current directors and officers of its respective Company were duly elected or appointed, as the case may be. |
(l) | Its Company’s Assets and Material Documents include all rights and property necessary for its respective Company to conduct its business immediately following the Closing in the manner presently conducted. |
(m) | Its respective Company is conducting its business in compliance with all applicable laws, except for acts of non-compliance which in the aggregate are not material. |
(n) | Its respective Company has good, valid and marketable title to its Assets, in each case free and clear of any encumbrance other than ordinary course regulatory requirements, including the approval requirement hereinafter referred to in Sections 6 and 7. No person has any written or oral agreement, option, understanding or commitment, or any right or privilege capable of becoming such for the purchase from its respective Company of such Assets. |
(o) | Except for those contracts and other instruments on Schedule C or Schedule D, as appropriate, (respectively, a Company’s “Material Document”) its respective Company is not a party to or bound by: (i) any agreement or commitment relating to capital expenditures; (ii) any bonds, debentures, mortgages, notes or other similar indebtedness or liabilities whatsoever or any agreement to create or issue any bonds, debentures, mortgages, notes or other similar indebtedness; (iii) any guarantee or other contingent liability in respect of any indebtedness or obligation of any person (other than the endorsement of negotiable instruments for collection in the ordinary course of the business); (iv) any management, consulting or any other similar agreement or commitment; (v) any agreement or commitment limiting the freedom of its respective Company to engage in any line of business or to compete with any other person; or (vi) any forward purchase, hedging or derivatives type of agreement. |
(p) | All books and records of its respective Company have been fully, properly and accurately kept and |
(q) | Its respective Company has filed or will caused to be filed, all national, provincial, local and foreign tax returns and tax reports which are required (subject to extensions) to be filed by or with respect to it on or prior to the Closing. Except as disclosed to the Purchaser, all national, provincial, local and foreign income, profits, franchise, withholding sales, use, occupancy, excise and other taxes and assessments (including interest and penalties) that are required to be paid its respective Company on or prior to the Closing have been fully paid or fully disclosed and fully provided for in its respective Company’s books and records. |
(r) | The Seller has not paid or become obligated to pay any fee or commission to any broker, finder or intermediary in connection with the transactions contemplated hereby for which the Purchaser or Seller’s respective Company shall have any liability following the Closing. |
(a) | The Purchaser is a company duly organized, validly existing and in good standing under the laws of England and Wales, with all requisite corporate power and authority to own, lease and operate its properties, to carry on its business as presently conducted, and to consummate the transactions contemplated hereby and is not winding up, dissolving, nor subject to bankruptcy, extraordinary administration, or any other insolvency proceedings. |
(b) | The execution and delivery by the Purchaser of this Agreement and the performance by it of its obligations hereunder have been duly and validly authorized by all necessary corporate action on its part, and this Agreement is its valid and binding obligation, enforceable against it in accordance with its terms, subject to the Remedies Exception. |
(c) | There are no actions, suits, administrative, arbitration or other proceedings or governmental investigations ongoing, pending or, to the knowledge of the Purchaser, threatened against it which would interfere in any material way with the transactions contemplated herein and the Purchaser does not know of any valid basis for any such action, suit, proceeding, arbitration or investigation. The Purchaser is not subject to any judgment, order or decree entered in any lawsuit or proceeding, which would interfere in any material way with the transactions contemplated herein. |
(d) | Neither the execution and delivery by the Purchaser of this Agreement, nor the performance by it of its obligations hereunder, will, nor with the giving of notice or the lapse of time or both would (i) conflict with or result in a breach of or constitute a default under any provision of the charter or |
(e) | The Purchaser is acquiring the Purchased Shares for its own account and not with a view towards resale or distribution thereof within the meaning of Section 2(11) of the US Securities Act of 1933, as amended. |
(f) | The Purchaser represents that it has had a full opportunity to ask questions of and receive answers from the Companies and Seller regarding the Companies and their respective business, assets, results of operation, and financial condition. |
(g) | Purchaser is an experienced investor in financial transactions in the property and natural resources sectors. Purchaser has been advised by and has relied solely upon its own expertise in legal, tax, and other professional counsel concerning the transactions contemplated by this Agreement, the Purchased Shares and the Assets and the value thereof. Purchaser (i) is familiar with investments of the nature of the Purchased Shares and the Assets; (ii) understands that this investment involves substantial risks; (iii) has adequately investigated the Purchased Shares and the Assets; (iv) has substantial knowledge and experience in financial and business matters such that it is capable of evaluating, and has evaluated, the merits and risks inherent in an investment in the Purchased Shares and the Assets; and (v) is able to bear the economic risks of such investment. To the extent Purchaser has deemed necessary, advisable, or appropriate, Purchaser has had the opportunity to visit the Sellers and the Companies and meet with their respective officers and representatives to discuss the Purchased Shares and the Assets, and has made its own independent examination, investigation, analysis, and evaluation of an investment in the Purchased Shares and the Assets. Purchaser has undertaken such due diligence as Purchaser deems adequate. |
(h) | The Purchaser has in place, or will have in place prior to exercising the Option created under Section 1.1 above, such financing commitments as are necessary to pay the Adjusted Purchase Price at or prior to Closing. |
(i) | The Purchaser has not paid or become obligated to pay any fee or commission to any broker, finder or intermediary in connection with the transactions contemplated hereby for which the Seller shall have any liability following the Closing. |
(j) | The Purchaser is qualified to own indirectly the Purchased Shares, and to obtain the approval of the South African Department of Mineral Resources, including under Section 11 of the Mineral and Petroleum Resources Development Act (2002) and under the production and exploration licenses set forth on Schedules E and F (the “Licenses”), to acquire the Purchased Shares, control the Licenses, |
(a) | All of the representations and warranties made by each Seller in this Agreement or in any certificate or document submitted or to be submitted to the Purchaser hereunder shall be true and accurate in all material respects on and as of the Closing Date. |
(b) | Effective as of the Closing Date, the executive officers and the members of the Board of the Directors of each Company shall each have resigned from their offices and shall have waived any right and claim to compensation or damages from their respective Company. |
(c) | As of the Closing Date, there will be no legal proceedings pending or threatened in front of any judicial, administrative or fiscal authority against either Company, instituted by the latter against third parties or affecting in any way, directly or indirectly, either Company, in any such case which are reasonably likely to have a material adverse effect on either Company’s financial condition or results of operations. |
(d) | The Purchaser and the Companies shall have received all necessary exchange control approvals, if any, from the South African Reserve Bank. |
(e) | The Purchaser shall have received all necessary approvals under the Competition Act (South Africa), if any, from the South African Competition Commission. |
(f) | The acquisition of the Purchased Shares by the Purchaser shall have received the necessary approval of the South African Department of Mineral Resources as required pursuant to the Licenses and Section 11 of the Mineral and Petroleum Resources Development Act (2002). |
(g) | No applicable law or judgment enacted, entered, promulgated, enforced or issued by any governmental authority having jurisdiction over the Purchased Shares or the Parties or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement shall be in effect. |
(h) | The Purchaser shall have duly exercised the Option created under Section 1.1 prior to its termination. |
(a) | All of the representations and warranties made by the Purchaser in this Agreement or in any certificate or document furnished or to be furnished by the Purchaser to each Seller hereunder shall be true and correct in all material respects on and as of the Closing Date. |
(b) | The Purchaser and the Companies shall have received all necessary exchange control approvals, if any, from the South African Reserve Bank. |
(c) | The Parties shall have received all necessary approvals under the Competition Act (South Africa), if any, from the South African Competition Commission. |
(d) | The acquisition of the Purchased Shares by Purchaser shall have received the necessary approval of the South African Department of Mineral Resources as required pursuant to the Licenses and Section 11 of the Mineral and Petroleum Resources Development Act (2002), including the release of all guarantees of the Companies by Forest, Anschutz or their respective affiliates, as the case may be. |
(e) | No applicable law or judgment enacted, entered, promulgated, enforced or issued by any governmental authority having jurisdiction over the Purchased Shares or the Parties or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement shall be in effect. |
(f) | The cession and pledge of Purchased Shares provided for in Section 1.4(c) shall have been agreed between the Parties, perfected under applicable law and constitute a first and prior lien, subject only to the liens granted in the Material Contracts. |
To the Purchaser: | Attn: The Chief Executive Officer of the Purchaser: Aldworth Mbalati | |
Same address provided in the preamble | ||
Phone: +27 (0)11 881-5695 | ||
Facsimile: +27 (0)11 881-5611 |
To Forest: | Attn: Scott Laverde | |
Vice President, Acquisitions & Divestitures | ||
Forest Oil Corporation | ||
707 Seventeenth Street, Suite 3600 | ||
Denver, Colorado 80202 | ||
Phone: +1(303) 812-1637 | ||
Facsimile: +1(303) 812-1632 |
To Forest SA: | Attn: John Langhus | |
Commercial Director | ||
Forest Exploration International (SA) (Pty) Ltd | ||
Suite 1B, Nautica | ||
The Water Club, Beach Rd | ||
Granger Bay, Cape Town | ||
8005 | ||
South Africa | ||
Phone: +27 (0)21 401-4140 | ||
Facsimile: +27 (0)21 401-4198 |
To Anschutz: | Attn: Bill Miller | |
Vice President | ||
Anschutz South Africa Corporation | ||
555 Seventeenth Street, Suite 2400 | ||
Denver, Colorado 80202 | ||
United States of America | ||
Phone: +1(303) 299-1330 | ||
Facsimile: +1(303) 299-1518 | ||
With a copy to: | Attn: Lynn Hendrix | |
Holme Roberts & Owen LLP | ||
1700 Lincoln St. | ||
Suite 4100 | ||
Denver, Colorado 80203 | ||
United States of America | ||
Phone: +1(303) 866-0460 | ||
Facsimile: +1(303) 866-0400 |
To Anschutz SA: | Attn: Noel Tunbridge | |
Anschutz Overseas (SA) (Pty) Limited | ||
c/o Bowman Gilfillan Attorneys | ||
SA Reserve Bank Building 60 | ||
St George's Mall | ||
Cape Town, South Africa | ||
8001 | ||
Phone: +27 (0)21 480-7932 | ||
Facsimile: +27 (0)21 424-1688 |
PURCHASER: | ||
AFRICAN INTERNATIONAL ENERGY PLC | ||
By: | /s/ Aldworth Mbalati | |
Aldworth Mbalati | ||
Chief Executive Officer | ||
Date: | ||
THE SELLERS: | |||
FOREST OIL CORPORATION | |||
By: | /s/ JC Ridens | ||
JC Ridens | |||
Executive Vice President and Chief Operating Officer | |||
Date: |
ANSCHUTZ SOUTH AFRICA CORPORATION | |||
By: | /s/ William J. Miller | ||
William J. Miller | |||
Executive Vice President and Chief Operating Officer | |||
President | |||
Date: |
THE COMPANIES: | |||
FOREST EXPLORATION INTERNATIONAL (SA) (PTY) LIMITED | |||
By: | /s/ John L. Langhus | ||
John L. Langhus | |||
Commercial Director | |||
Date: |
ANSCHUTZ OVERSEAS (SA) (PTY) LIMITED | |||
By: | /s/ William J. Miller | ||
William J. Miller | |||
Director | |||
President | |||
Date: |
1. | Block 2A Production Right (together with associated rights and obligations attendant thereto). |
2. | Block 2C Exploration Right (together with associated rights and obligations attendant thereto). |
3. | Settlement Agreement dated November 3, 2008 in respect of past drilling obligations in Block 2C among Forest SA, Anschutz SA, PetroSA, and the South African Agency for Promotion of Petroleum Exploration and Exploitation (Pty) Ltd. |
4. | Participation Agreement dated February 15, 2005 among Forest SA, Anschutz SA and PetroSA in respect of Block 2C. |
5. | Joint Operating Agreement dated March 13, 2003, among Forest SA, Anschutz SA and PetroSA in respect of Block 2A. |
6. | Joint Operating Agreement dated February 15, 2005, among Forest SA, Anschutz SA and PetroSA in respect of Block 2C. |
7. | Office Lease in respect of the premises located at Suite 1B, Nautica House, The Water Club, Beach Road, Granger Bay, 8005 Cape Town, South Africa. |
8. | Advisory Mandate Agreement dated 28 January 2011 between Forest SA and The Standard Bank of South Africa Limited in regard to financial advisory services pertaining to the development of the Ibhubesi Gas to Power Project. |
9. | Contract of Employment dated March 28, 2011 between Forest SA and Mr. John L Langhus. |
10. | That certain Agreement (South Africa/Tunisia Concessions), made and entered into February 10, 2000 (effective October 1, 1999) by and between Forest SA and Anschutz SA, and others, insofar as such agreement relates to Blocks 2A and 2C; and the assignments of overriding royalties to certain employees and affiliates of Anschutz referred to therein, including the various instruments entitled "Agreement of Overriding Royalty Interest." executed September 29, 1999 (effective June 18, 1998), from Forest Exploration International (South Africa), a Colorado company [sic], to each of Miles A Williams, Edward C. Weller, William J. Miller, Duglas D. Lindsey, Richard M. Jones, Scott L. Hajicek and Kevin P. Corbett, which overriding royalties were transferred to, and now owned by, other parties. The Parties acknowledge that such assignment incorrectly referred to Forest SA as Forest Exploration International (South Africa), a Colorado company, and that Sellers can correct such assignments. |
1. | Block 2A Production Right (together with associated rights and obligations attendant thereto). |
2. | Block 2C Exploration Right (together with associated rights and obligations attendant thereto). |
3. | Settlement Agreement dated November 3, 2008 in respect of past drilling obligations in Block 2C among Forest SA, Anschutz SA, PetroSA, and the South African Agency for Promotion of Petroleum Exploration and Exploitation (Pty) Ltd. |
4. | Participation Agreement dated February 15, 2005 among Forest SA, Anschutz SA and PetroSA in respect of Block 2C. |
5. | Joint Operating Agreement dated March 13, 2003, among Forest SA, Anschutz SA and PetroSA in respect of Block 2A. |
6. | Joint Operating Agreement dated February 15, 2005, among Forest SA, Anschutz SA and PetroSA in respect of Block 2C. |
7. | That certain Agreement (South Africa/Tunisia Concessions), made and entered into February 10, 2000 (effective October 1, 1999) by and between Forest SA and Anschutz SA, and others, insofar as such agreement relates to Blocks 2A and 2C; and the assignments of overriding royalties to certain employees and affiliates of Anschutz referred to therein, including the various instruments entitled "Agreement of Overriding Royalty Interest." executed September 29, 1999 (effective June 18, 1998), from Forest Exploration International (South Africa), a Colorado company [sic], to each of Miles A Williams, Edward C. Weller, William J. Miller, Duglas D. Lindsey, Richard M. Jones, Scott L. Hajicek and Kevin P. Corbett, which overriding royalties were transferred to, and now owned by, other parties. The Parties acknowledge that such assignment incorrectly referred to Forest SA as Forest Exploration International (South Africa), a Colorado company, and that Sellers can correct such assignments. |
1. | Undivided 53.2% interest in Block 2A Production Right and all rights and privileges appertaining thereto. |
2. | Undivided 53.2% interest in Block 2C Exploration Right and all rights and privileges appertaining thereto. |
1. | Undivided 22.8% interest in Block 2A Production License and all rights and privileges appertaining thereto. |
2. | Undivided 22.8% interest in Block 2C Exploration License and all rights and privileges appertaining thereto. |
a. | Purchaser pays Forest US$ 7,000,000.00 Acct Name: Forest Oil Corporation Bank: JPMorgan Chase Account No.: XXXXXXXXX SWIFT Code: XXXXXXXXX Reference: XXXXXXXXX |
b. | Purchaser pays Anschutz US$ 3,000,000.00 Acct Name: The Anschutz Corporation – Non CLTRL Bank: JPMorgan Chase Account No.: XXXXXXXXX SWIFT Code: XXXXXXXXX Reference: XXXXXXXXX |
a. | Purchaser pays Forest US$ 34,147,489.84* Acct Name: Forest Oil Corporation Bank: JPMorgan Chase Account No.: XXXXXXXXX SWIFT Code: XXXXXXXXX Reference: XXXXXXXXX |
b. | Purchaser pays Anschutz US$ 27,000,000, less the US$ equivalent of R232,284,261** Acct Name: The Anschutz Corporation – Non CLTRL Bank: JPMorgan Chase Account No.: XXXXXXXXX SWIFT Code: XXXXXXXXX Reference: XXXXXXXXX |
c. | Purchaser pays Forest SA US$ 28,852,510.16* Acct Name: Forest Exploration International (SA) (Pty) Ltd Bank: Standard Bank Account No.: XXXXXXXXX Branch Code: XXXXXXXXX SWIFT Code: XXXXXXXXX |
d. | Purchaser pays Anschutz SA US$ equivalent of R232,284,261** TO BE PROVIDED AT CLOSING |
a. | Purchaser causes Forest SA to pay Forest US$ 28,852,510.16* Acct Name: Forest Oil Corporation Bank: JPMorgan Chase Account No.: XXXXXXXXX SWIFT Code: XXXXXXXXX Reference: XXXXXXXXX |
b. | Purchaser causes Anschutz SA to pay Anschutz US$ equivalent of R232,284,261** Acct Name: The Anschutz Corporation – Non CLTRL Bank: JPMorgan Chase |
a. | Forest at |
b. | Anschutz at |
(a) | any material disposal or acquisitions of assets in excess of what is required in the ordinary course of business; |
(b) | the payment or declaration of any dividends or other distributions in respect of the capital of the Company; |
(c) | the granting of any mortgage, charge, encumbrance or lien over the assets of the Company in excess of what is requested in the ordinary course of business or is customarily required by local law or regulation; |
(d) | the entering into, terminating or materially amending any material or long term contract affecting the business of the Company; or |
(e) | any authorization of additional or modification of existing capital of the Company. |
(a) | The Seller owns shares constituting 100% of the outstanding capital of the Company. |
(b) | The Seller has full right, capacity, power and authority to execute, deliver and perform this Agreement, and this Agreement has been duly executed and delivered by the Seller and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except where such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity (the “Remedies Exception”). |
(c) | There are no suits, actions, administrative, arbitration or other proceedings or governmental investigations ongoing, pending or, to the Seller’s knowledge, threatened against it or the Company which would interfere in any material way with the transactions contemplated herein, and the Seller is aware of no valid basis for any such action, suit, proceeding, arbitration or investigation. The Company is not subject to any judgment, order or decree entered in any lawsuit or proceeding, which would interfere in any material way with the transactions contemplated herein. |
(d) | Neither the execution and delivery by the Seller of this Agreement, nor the performance by the Seller of its obligations hereunder, will, nor with the giving of notice or the lapse of time or both, would: |
(1) | conflict with or result in a breach of, or constitute a default under, any provision of any material contract, indenture, lease, sublease, loan agreement, restriction, lien, encumbrance or other material obligation or liability to which the Seller or the Company is a party or by which either may be bound; |
(2) | violate any material order, writ, injunction, decree, law, statute, rule or regulation applicable to the Seller or the Company; or |
(3) | result in the creation or imposition of any material lien, claim, liability, restriction, charge or encumbrance upon its respective proportion of the Purchased Shares. |
(e) | Neither the Seller nor the Company is subject to, or a party to, any law, claim, contract or instrument, encumbrance or any other restriction of any kind or character which would prevent the consummation of the transactions contemplated by this Agreement or compliance by the Seller with the terms, conditions and provisions hereof or the continued operation by the Company of its business after either the date hereof or the Closing Date on substantially the same basis as heretofore operated or which would restrict the ability of the Purchaser to acquire any of the Purchased Shares. |
(f) | The Purchased Shares to be sold by the Seller to the Purchaser hereunder (i) are, and will be at the time of the transfer thereof to the Purchaser, fully paid, free and clear of all liens, pledges, charges, liabilities, claims, encumbrances, or rights, title and interest of others and (ii) will be transferred with good and marketable title. There are and will be no rights of first refusal, options, warrants or similar rights which affect the Purchased Shares, and no restrictions on transfer of such Purchased Shares will be breached by the consummation of the transactions contemplated herein. |
(g) | The Company is validly existing and in good standing under the laws of the Republic of South Africa and is not winding up, dissolving, nor subject to bankruptcy, extraordinary administration, or any other insolvency proceedings. |
(h) | The Company does not own, or have any interest in, any securities of any other company or entity nor does it have any agreements of any nature to acquire any such securities or to acquire or lease any business operations. |
(i) | The Company has all necessary corporate power, authority and capacity to own its property and assets which are listed on Schedule D (such property and assets referred to as the “Assets”, whether or not included in Schedule D) and to carry on its business in the manner it is presently being conducted. |
(j) | The Company is duly qualified, licensed, authorized or registered to carry on its business in accordance with applicable law. |
(k) | The corporate books and records of the Company are complete and accurate and all corporate proceedings and actions reflected therein have been conducted or taken in compliance with all applicable laws and with its constituent documents. Without limiting the generality of the foregoing, (i) the minute books contain complete and accurate minutes of all meetings of the Company’s Board and shareholders, and all such meetings were duly called and held; (ii) the minute books contain all written resolutions passed by the Company’s directors and/or shareholders, and all such resolutions were duly passed; (iii) the register of shareholders of the Company is complete and accurate, and all transfers of shares of the Company have been duly completed and approved and any eligible tax payable in connection with the transfer of such shares has been duly paid; and (iv) the registers of directors and officers are complete and accurate and all former and current directors and officers of the Company were duly elected or appointed, as the case may be. |
(l) | The Company’s Assets and Material Documents include all rights and property necessary for its respective Company to conduct its business immediately following the Closing in the manner presently conducted. |
(m) | The Company is conducting its business in compliance with all applicable laws, except for acts of non-compliance which in the aggregate are not material. |
(n) | The Company has good, valid and marketable title to its Assets, in each case free and clear of any encumbrance other than ordinary course regulatory requirements, including the approval requirement hereinafter referred to in Sections 6 and 7. No person has any written or oral agreement, option, understanding or commitment, or any right or privilege capable of becoming such for the purchase from the Company of any of the Assets. |
(o) | Except for those contracts and other instruments on Schedule C (each, a “Material Document”) the Company is not a party to or bound by: (i) any agreement or commitment relating to capital expenditures; (ii) any bonds, debentures, mortgages, notes or other similar indebtedness or liabilities whatsoever or any agreement to create or issue any bonds, debentures, mortgages, notes or other similar indebtedness; (iii) any guarantee or other contingent liability in respect of any indebtedness or obligation of any person (other than the endorsement of negotiable instruments for collection in the ordinary course of the business); (iv) any management, consulting or any other similar agreement or commitment; (v) any agreement or commitment limiting the freedom of the Company to engage in any line of business or to compete with any other person; or (vi) any forward purchase, hedging or derivatives type of agreement. |
(p) | All books and records of the Company have been fully, properly and accurately kept and completed in accordance with generally accepted accounting principles (GAAP) as applied in Republic of South Africa. |
(q) | The Company has filed or will caused to be filed, all national, provincial, local and foreign tax returns and tax reports which are required to be filed by or with respect to it. Except as disclosed to the Purchaser, all national, provincial, local and foreign income, profits, franchise, withholding sales, use, occupancy, excise and other taxes and assessments (including interest and penalties) that are or may become payable by or due from the Company have been fully paid or fully disclosed and fully provided for in the Company’s books and records. |
(r) | The Seller has not paid or become obligated to pay any fee or commission to any broker, finder or intermediary in connection with the transactions contemplated hereby for which the Purchaser or the Company shall have any liability following the Closing. |
(a) | The Purchaser is a company duly organized, validly existing and in good standing under the laws of the Republic of South Africa, with all requisite corporate power and authority to own, lease and operate its properties, to carry on its business as presently conducted, and to consummate the transactions contemplated hereby and is not winding up, dissolving, nor subject to bankruptcy, extraordinary administration, or any other insolvency proceedings. |
(b) | The execution and delivery by the Purchaser of this Agreement and the performance by it of its obligations hereunder have been duly and validly authorized by all necessary corporate action on its part, and this Agreement is its valid and binding obligation, enforceable against it in accordance with its terms, subject to the Remedies Exception. |
(c) | There are no actions, suits, administrative, arbitration or other proceedings or governmental investigations ongoing, pending or, to the knowledge of the Purchaser, threatened against it which would interfere in any material way with the transactions contemplated herein and the Purchaser does not know of any valid basis for any such action, suit, proceeding, arbitration or investigation. The Purchaser is not subject to any judgment, order or decree entered in any lawsuit or proceeding, which would interfere in any material way with the transactions contemplated herein. |
(d) | Neither the execution and delivery by the Purchaser of this Agreement, nor the performance by it of its obligations hereunder, will, nor with the giving of notice or the lapse of time or both would (i) conflict with or result in a breach of or constitute a default under any provision of the charter or Bylaws of it, or any material contract, indenture, lease, sublease, loan agreement, restriction, lien, encumbrance or other material obligation or liability to which it is a party or by which it is bound or (ii) violate any material order, writ, injunction, decree, law, statute, rule or regulation applicable to it. |
(e) | The Purchaser is acquiring the Purchased Shares for its own account and not with a view towards distribution thereof within the meaning of Section 2(11) of the US Securities Act of 1933, as amended. |
(f) | The Purchaser represents that it has had a full opportunity to ask questions of and receive answers from the Company and Seller regarding the Company and its respective business, assets, results of operation, and financial condition. |
(g) | Purchaser is an experienced investor in financial transactions in the property and natural resources sectors. Purchaser has been advised by and has relied solely upon its own expertise in legal, tax, and other professional counsel concerning the transactions contemplated by this Agreement, the |
(h) | The Purchaser has in place such financing commitments as are necessary to pay the Purchase Price at or prior to Closing. |
(i) | The Purchaser has not paid or become obligated to pay any fee or commission to any broker, finder or intermediary in connection with the transactions contemplated hereby for which the Seller shall have any liability following the Closing. |
(a) | All of the representations and warranties made by Seller in this Agreement or in any certificate or document submitted or to be submitted to the Purchaser hereunder shall be true and accurate in all material respects on and as of the Closing Date. |
(b) | Effective as of the Closing Date, the executive officers and the members of the Board of the Directors of the Company shall each have resigned from their offices and shall have waived any right and claim to compensation or damages from the Company. |
(c) | As of the Closing Date, there will be no legal proceedings pending or threatened in front of any judicial, administrative or fiscal authority against the Company, instituted by the latter against third parties or affecting in any way, directly or indirectly, the Company, in any such case which are reasonably likely to have a material adverse effect on the Company’s financial condition or results of operations. |
(a) | All of the representations and warranties made by the Purchaser in this Agreement or in any certificate or document furnished or to be furnished by the Purchaser to Seller hereunder shall be true and correct in all material respects on and as of the Closing Date. |
(b) | The closing of the transactions contemplated by the Forest-Anschutz Agreement shall have occurred. |
(a) | any liability or deficiency resulting from the Purchaser’s (i) breach of warranty, (ii) breach of representation, (iii) misrepresentation, (iv) nonfulfillment of any of the Purchaser’s obligations under this Agreement or (v) misrepresentation in any certificate or instrument furnished by the Purchaser to the Seller pursuant to this Agreement; |
(b) | any liability arising from any operation carried out by the Company and/or the Purchaser whenever and wherever it may have occurred; |
(c) | any environmental liability, whenever and however it may have arisen; and |
(d) | any and all actions, suits, proceedings, assessments, judgments, reasonable costs and legal and other expenses and fees incident to the foregoing. |
To the Purchaser: | Attn: The Chief Executive Officer of the Purchaser: Aldworth Mbalati | |
Same address provided in the preamble | ||
Phone: +27 (0)11 881-5695 | ||
Facsimile: +27 (0)11 881-5611 |
To Forest: | Attn: Scott Laverde | |
Vice President, Acquisitions & Divestitures | ||
Forest Oil Corporation | ||
707 Seventeenth Street, Suite 3600 | ||
Denver, Colorado 80202 | ||
Phone: +1(303) 812-1637 | ||
Facsimile: +1(303) 812-1632 |
To Forest Netherlands: | Attn: John P. Klein | |
c/o Forest Oil Netherlands | ||
707 Seventeenth Street | ||
Suite 3600 | ||
Denver, Colorado | ||
80202 USA | ||
Phone: +1(303) 812-1741 | ||
Facsimile: +1(303) 812-1729 |
With a copy to: | Attn: Scott Laverde | |
Vice President, Acquisitions & Divestitures | ||
Forest Oil Corporation | ||
707 Seventeenth Street, Suite 3600 | ||
Denver, Colorado 80202 | ||
Phone: +1(303) 812-1637 | ||
Facsimile: +1(303) 812-1632 |
And a copy to: | Siti Strijobosch | |
Senior Relationship Manager | ||
Intertrust Netherlands | ||
Prins Bernhardplein 200 | ||
1097 JB Amsterdam, The Netherlands |
PURCHASER: | ||
AFRICAN INTERNATIONAL ENERGY PLC | ||
By: | /s/ Aldworth Mbalati | |
Aldworth Mbalati | ||
Chief Executive Officer | ||
Date: | ||
THE SELLER: | |||
FOREST OIL NETHERLANDS B.V. | |||
By: | /s/ T. Huisman, /s/ N.J.J.M. Wolthius-Geereardts | ||
Name: | Intertrust (Netherlands) B.V. | ||
Title: | Managing Director | ||
Date: | |||
By: | /s/ John P. Klein | ||
Name: | John P. Klein | ||
Title: | |||
Date: | |||