Attached files
file | filename |
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8-K - FORM 8-K - CONOCOPHILLIPS | h74813e8vk.htm |
EX-99.2 - EX-99.2 - CONOCOPHILLIPS | h74813exv99w2.htm |
Exhibit 99.1
EXECUTION COPY
STOCK PURCHASE AND OPTION AGREEMENT
THIS STOCK PURCHASE AND OPTION AGREEMENT (this Agreement) is dated as of July 28, 2010, and is by
and between Springtime Holdings Limited, a Cayman Islands company having its registered office at
P.O. Box 309 GT, Ugland House, South Church Street, Grand Cayman, Cayman Islands (Seller), and
Lukoil Finance Limited, a Gibraltar limited liability company located at Suite 1, 2nd Floor,
International House, 16 Bell Lane, PO Box 872, Gibraltar (Purchaser). Terms not otherwise
defined herein shall have the meaning ascribed to them in the shareholder agreement of September
29, 2004 by and between ConocoPhillips (ConocoPhillips), a Delaware corporation, and Open Joint
Stock Company Oil Company LUKOIL, an open joint stock company organised and existing under the
laws of the Russian Federation (the Company), as amended through the date hereof (the
Shareholder Agreement).
RECITAL
WHEREAS, Seller, which is a Wholly Owned Subsidiary of ConocoPhillips, desires to sell 64,638,729
Lukoil Ordinary Shares, par value 0.025 Roubles per share (the Shares) and 98,728,900 Lukoil DRs
owned by Seller as of the date of this Agreement;
WHEREAS, Purchaser, which is a Wholly Owned Subsidiary of the Company, desires to purchase the
Shares and receive an option to purchase Lukoil DRs upon the terms and subject to the conditions
set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises, the respective representations, warranties,
covenants and agreements contained in this Agreement, and other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Purchase and Sale of the Shares.
(a) Upon the terms and subject to the conditions set forth in this Agreement, and in reliance
upon the representations and warranties herein made by each party to the other, Seller agrees to
sell, and Purchaser agrees to purchase from Seller, the Shares at Completion (as hereinafter
defined).
(b) The Shares shall be sold free of any Encumbrances (as hereinafter defined) with all the
rights attached to them as of the Completion.
2. Purchase Price.
(a) The purchase price for the Shares (the Purchase Price) shall be US$3,442,012,319.25
(three billion four hundred forty two million twelve thousand three
hundred nineteen and one quarter US Dollars), based on the per share price of US$53.25 (fifty
three and one quarter US Dollars) for each Share.
(b) Purchaser will pay, or cause to be paid, to Seller the Purchase Price (the Payment) at
the Completion in immediately available funds to the following bank account of Seller (the
Sellers Bank Account) :
[Bank Account Information]
3. Completion.
The completion of the transfer and sale of the Shares provided for in this Agreement (the
Completion) will take place at the offices of Registrar NIKoil Company (JSC) being the local
registrar for the Shares (the Registrar) located at 28, 3-rd Yamskogo Polya street, Moscow on
August 16, 2010 (the Completion Date).
4. Representations and Warranties.
(a) Representations and Warranties of Seller. Seller hereby represents and warrants
to Purchaser as follows:
(i) Seller has obtained all corporate and other authorizations required to empower it
to enter into and to perform its obligations under this Agreement;
(ii) Seller is validly organised, in existence and duly registered under the laws of
the jurisdiction of its formation and has the requisite power and authority to enter into,
execute, deliver and perform this Agreement;
(iii) this Agreement, when executed, constitutes binding obligations of Seller
enforceable against it in accordance with its terms;
(iv) the execution and delivery of, and the performance by Seller of its obligations
under, this Agreement and the transactions contemplated hereby will not:
a) result in a breach of any provision of the foundational or governing
documents of Seller;
b) result in a breach of any law or regulation or any order, judgment or
decree of any court or governmental agency to which Seller is a party or by
which Seller, or any of its property, is bound; or
c) conflict with any document which is binding on Seller or any of its
property;
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(v) Seller has, and upon transfer by Seller of the Shares and, if applicable, the
Lukoil DRs pursuant to Section 7(b), Purchaser will have good and marketable legal and
beneficial title to the Shares and, if applicable, the Lukoil DRs, free and clear of any
claims, liens, encumbrances, security interests, restrictions and adverse claims of any kind
or nature whatsoever (Encumbrances). There are no outstanding subscriptions, options,
warrants, rights, contracts, understandings or agreements to purchase or otherwise acquire
the Shares or the Lukoil DRs.
(b) Representations and Warranties of Purchaser. Purchaser hereby represents and
warrants to Seller as follows:
(i) Purchaser has obtained all corporate and other authorizations required to empower
it to enter into and to perform its obligations under this Agreement;
(ii) Purchaser is validly organised, in existence and duly registered under the laws of
the jurisdiction of its formation and has the requisite power and authority to enter into,
execute, deliver and perform this Agreement;
(iii) this Agreement, when executed, constitutes binding obligations of Purchaser
enforceable against it in accordance with its terms;
(iv) the execution and delivery of, and the performance by Purchaser of its obligations
under, this Agreement and the transactions contemplated hereby will not:
a) result in a breach of any provision of the foundational or governing
documents of Purchaser;
b) result in a breach of any law or regulation or any order, judgment or
decree of any court or governmental agency to which Purchaser is a party or
by which Purchaser, or any of its property, is bound; or
c) conflict with any document which is binding on Purchaser or any of its
property.
5. Closing Conditions to the Transfer and Sale of the Shares.
(a) Conditions to Each Partys Obligations. The obligation of Purchaser to purchase
the Shares in accordance with the provisions of Section 3 and the obligation of Seller to sell the
Shares in accordance with the provisions of Section 3 are subject to the fulfillment at or prior to
the Completion Date of the following conditions:
(i) no preliminary or permanent injunction or other order shall have been issued by any
court of competent jurisdiction or by any governmental or regulatory body, nor shall any
statute, rule, regulation or executive order have been promulgated or enacted by any
governmental authority, which prevents the consummation of the sale and purchase transaction
in respect of the Shares contemplated by this Agreement; and
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(ii) no action or proceeding before any court or any governmental or regulatory
authority shall have been commenced by any governmental or regulatory body and shall be
pending against any of the parties hereto or any of their respective Affiliates, associates,
officers or directors seeking to prevent or delay the sale and purchase transaction in
respect of the Shares contemplated by this Agreement.
(b) Conditions to Obligation of Purchaser. The obligation of Purchaser to purchase
the Shares in accordance with the provisions of Section 3 is subject to the fulfillment at or prior
to the Completion Date of the following conditions, any of which may be waived by Purchaser in its
sole discretion:
(i) the representations and warranties of Seller contained in this Agreement shall have
been true and complete when made and shall be true and complete at and as of the Completion
Date with the same force and effect as though such representations and warranties were made
at and as of the Completion Date;
(ii) Seller shall have performed and complied with all agreements, obligations and
conditions required by this Agreement to be performed or complied with by Seller at or prior
to the Completion Date.
(c) Conditions to Obligation of Seller. The obligation of Seller to sell the Shares
in accordance with the provisions of Section 3 is subject to the fulfillment at or prior to the
Completion Date of the following conditions, any of which may be waived by Seller in its sole
discretion:
(i) the representations and warranties of Purchaser contained in this Agreement shall
have been true and complete when made and shall be true and complete at and as of the
Completion Date with the same force and effect as though such representations and warranties
were made at and as of the Completion Date;
(ii) Purchaser shall have performed and complied with all agreements, obligations and
conditions required by this Agreement to be performed or complied with by Purchaser at or
prior to the Completion Date.
6. Actions in Respect to Completion.
(a) Actions prior to Completion:
(i) Seller undertakes to fulfill or cause fulfillment of the following actions prior to
Completion:
a) making available all the Shares for transfer in accordance with this
Agreement in a securities account kept with ZAO Citibank being the local
custodian for the Shares (the Custodian);
b) delivery to Purchaser of a certified copy of all necessary corporate
approvals and permissions for execution and fulfillment hereof by Seller.
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(ii) Purchaser undertakes to fulfill or cause fulfillment of the following actions
prior to Completion:
a) opening by Purchaser of a securities account with the Registrar (the
Account) in respect of the Shares;
b) delivery to Seller of a certified copy of all necessary corporate
approvals and permissions for execution and fulfillment hereof by Purchaser.
(b) Actions at Completion:
On the Completion Date:
(i) Contemporaneously with the actions undertaken pursuant to Section 6(b)(ii), Seller
shall procure the transfer of the Shares to the Account by causing the issue by the
Custodian of a duly signed transfer order and the submission of such transfer order to the
Registrar. Purchaser shall use commercially reasonable efforts to assist Seller in
complying with any requirements of the Registrar in connection with the foregoing;
(ii) Purchaser shall procure that the Payment is made in immediately available funds to
Sellers Bank Account.
7. Option to Purchase the Lukoil DRs.
(a) Option Period. From July 28, 2010 until 5:00 p.m. British Summer Time on
September 26, 2010 (the Option Period), Purchaser may make a one-time election to purchase up to
98,728,900 Lukoil DRs or such lesser number of Lukoil DRs as may then be owned by Seller as the
result of the sale of a portion of Lukoil DRs in accordance with provisions of Section 2.7 of the
Shareholder Agreement (the Purchase DRs), subject to the following conditions:
(i) prior to the expiration of the Option Period, Purchaser shall provide written
notice to Seller of its intention to purchase all or part of the Purchase DRs, indicating
the number of the Purchase DRs that it will acquire;
(ii) the purchase price of the Purchase DRs to be acquired (the DR Purchase Price)
shall represent the product of the number of the Purchase DRs in respect of which Purchaser
has exercised the option and the per share price of US$56 (fifty six US Dollars) for each
Lukoil DR.
(b) Completion. Completion of the transfer and sale of the Purchase DRs provided for
in Section 7(a) (the DR Purchase Completion) will take place at the offices of Wachtell, Lipton,
Rosen & Katz, 51 West 52nd Street, New York, New York 10019, unless another place is agreed upon in
writing by the parties, on the date that is three (3) Business Days after receipt by Seller of the
notice provided for in Section 7(a)(i) (the DR Purchase Completion Date), upon which:
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(i) Contemporaneously with the actions undertaken pursuant to Section 7(b)(ii), Seller
shall procure the transfer of the number of Purchase DRs, in respect of which Purchaser has
exercised its option by delivering the notice provided for in Section 7(a)(i), to a
securities account indicated by Purchaser in respect of the Purchase DRs;
(ii) Purchaser shall procure that payment equaling the DR Purchase Price is made in
immediately available funds to Sellers Bank Account.
(c) Covenant. During the Option Period Seller will not sell or otherwise create an
Encumbrance with respect to the Lukoil DRs that it owns as of the date hereof other than in
compliance with Section 2.7 of the Shareholder Agreement.
8. Miscellaneous.
(a) No Brokers. Seller and Purchaser each represent to the other that neither it nor
any of its respective Affiliates have employed any broker or finder or incurred any liability for
any brokerage or finders fees or commissions or expenses related thereto in connection with the
negotiation, execution or consummation of this Agreement or any of the transactions contemplated
hereby and respectively agree to indemnify and hold the other harmless from and against any and all
claims, liabilities or obligations with respect to any such fees, commissions or expenses asserted
by any Person on the basis of any act or statement alleged to have been made by such party or any
of its Affiliates. All costs and expenses charged or imposed by Registrar in connection with the
Completion shall be borne by Purchaser.
(b) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties in respect of the subject matter hereof and supersedes all prior
understandings, agreements or representations by or between the parties, written or oral, to the
extent they relate in any way to the subject matter hereof.
(c) Assignment; Binding Effect; Third Party Beneficiaries. No party may assign either
this Agreement or any of its rights, interests or obligations hereunder without the prior written
approval of the other party. All of the terms, agreements, covenants, representations, warranties
and conditions of this Agreement are binding upon and inure to the benefit of, and are enforceable
by, the parties and their respective successors and permitted assigns. There are no third party
beneficiaries having rights under or with respect to this Agreement.
(d) Further Assurances. If any further action is necessary or reasonably desirable to
carry out this Agreements purposes, each party will take such further action (including executing
and delivering any further instruments and documents and providing any reasonably requested
information) as the other party reasonably may request.
(e) Survival of Representations, Warranties and Covenants. Each representation,
warranty, covenant and obligation in this Agreement will survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated by this Agreement, and will not be
affected by any investigation by or on behalf of the other party to this Agreement.
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(f) Indemnification. Seller, on the one hand, and Purchaser, on the other hand,
respectively, will each indemnify and hold harmless the other from and against any and all losses,
claims, damages, liabilities and expenses (including, without limitation, legal fees and expenses)
suffered or incurred by any such indemnified party to the extent arising from any breach of any
representation or warranty of the indemnifying party contained in this Agreement or any breach by
the indemnifying party, or failure by the indemnifying party to fulfill, any covenant or agreement
contained herein.
(g) Notices. All notices, requests and other communications provided for or permitted
to be given under this Agreement must be in writing and given by personal delivery, by an
internationally recognized overnight delivery service for next day delivery, or by facsimile
transmission, as follows (or to such other address as any party may give in a notice given in
accordance with the provisions hereof):
If to Seller
c/o ConocoPhillips
600 North Dairy Ashford (77079-1175) Houston, Texas
Attention: Janet Langford Kelly
Facsimile: (1.281) 293.1054
600 North Dairy Ashford (77079-1175) Houston, Texas
Attention: Janet Langford Kelly
Facsimile: (1.281) 293.1054
with a copy (which will not constitute notice) to:
Wachtell Lipton Rosen & Katz LLP
51 West 52nd Street, New York, New York 10019
Attention: Andrew R. Brownstein
Facsimile: (1.212) 403.2233
51 West 52nd Street, New York, New York 10019
Attention: Andrew R. Brownstein
Facsimile: (1.212) 403.2233
If to Purchaser
Lukoil Finance Limited
Suite 835, Europort, Europort Road
P.O. Box 179, Gibraltar
Attention: Mr. Sergei Portnyagin
Facsimile: (350) 200 47162 / 76919
Suite 835, Europort, Europort Road
P.O. Box 179, Gibraltar
Attention: Mr. Sergei Portnyagin
Facsimile: (350) 200 47162 / 76919
with a copy (which will not constitute notice) to:
OAO LUKOIL
11 Sretensky Blvd., Moscow, 101000 Russia
Attention: Mr. Leonid Fedun
Facsimile: (+7 495) 627-4562
11 Sretensky Blvd., Moscow, 101000 Russia
Attention: Mr. Leonid Fedun
Facsimile: (+7 495) 627-4562
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with a copy (which will not constitute notice) to:
Akin Gump Strauss Hauer & Feld LLP
7 Gasheka Street, Moscow, 123056 Russia
Attention: Mrs. Natalia Baratiants
Facsimile: (+7 495) 783-7701
7 Gasheka Street, Moscow, 123056 Russia
Attention: Mrs. Natalia Baratiants
Facsimile: (+7 495) 783-7701
All notices, requests or other communications will be effective and deemed given only as
follows: (i) if given by personal delivery, upon such personal delivery, (ii) if sent by an
internationally recognized courier, upon delivery, and (iii) if sent by facsimile, upon the
transmitters confirmation of receipt of such facsimile transmission, except that if such
confirmation is received after 5:00 p.m. (in the recipients time zone) on a Business Day, or is
received on a day that is not a Business Day, then such notice, request or communication will not
be deemed effective or given until the next succeeding Business Day. Notices, requests and other
communications sent in any other manner, including by electronic mail, will not be effective.
(h) Specific Performance; Remedies. Each party acknowledges and agrees that the other
party would be damaged irreparably if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. Accordingly, the parties will be
entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement
and to enforce specifically this Agreement and its provisions, in addition to any other remedy to
which they may be entitled, at law or in equity. Except as expressly provided herein, the rights,
obligations and remedies created by this Agreement are cumulative and in addition to any other
rights, obligations or remedies otherwise available at law or in equity. Except as expressly
provided herein, nothing herein will be considered an election of remedies.
(i) Dispute Resolution. Each party agrees that the provisions of Section 9.9(e) of
the Shareholder Agreement (Fast-Track Arbitration) shall apply with full force and effect to any
claim or dispute arising out of or related to this Agreement.
(j) Headings. The article, clause and section headings contained in this Agreement
are inserted for convenience only and will not affect in any way the meaning or interpretation of
this Agreement.
(k) Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York, without giving effect to any choice of law principles.
(l) Amendment. This Agreement may not be amended or modified except by a writing
signed by both of the parties.
(m) Extensions; Waivers. Any party may, for itself only, (a) extend the time for the
performance of any of the obligations of any other party under this Agreement, (b) waive any
inaccuracies in the representations and warranties of any other party contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any such extension or waiver will be
valid only if set forth in a writing signed by the party to be bound thereby. No waiver by any
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party of any default, misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation
or breach of warranty or covenant hereunder or affect in any way any rights arising because of any
prior or subsequent such occurrence. Neither the failure nor any delay on the part of any party to
exercise any right or remedy under this Agreement will operate as a waiver thereof, nor will any
single or partial exercise of any right or remedy preclude any other or further exercise of the
same or of any other right or remedy.
(n) Expenses. Subject to the last sentence of Section 8(a) above, each party will
bear its own costs and expenses incurred in connection with the preparation, execution and
performance of this Agreement and the transactions contemplated hereby, including all fees and
expenses of agents, representatives, financial advisors, legal counsel and accountants.
(o) Counterparts; Effectiveness. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which together will constitute
one and the same instrument. This Agreement will become effective when one or more counterparts
have been signed by each of the parties and delivered to the other party, which delivery may be
made by exchange of copies of the signature page by facsimile transmission. For purposes of
determining whether a party has signed this Agreement or any documents contemplated hereby or any
amendment or waiver hereof, only a handwritten signature on a paper document or a facsimile
transmission of a handwritten original signature will constitute a signature, notwithstanding any
law relating to or enabling the creation, execution or delivery of any contract or signature by
electronic means.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
date first above written.
Springtime Holdings Limited | ||||||||||
By | /s/ Janet Langford Kelly | |||||||||
Name: | Janet Langford Kelly | |||||||||
Title: | Vice President | |||||||||
Lukoil Finance Limited | ||||||||||
By | /s/ Vadim Gluzman | |||||||||
Name: | Vadim Gluzman | |||||||||
Title: | ||||||||||
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