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EXHIBIT 10.2
CLOSING AGREEMENT
This Closing Agreement (this "Agreement") among Schlumberger Limited, a
Netherlands Antilles corporation ("Schlumberger"), Schlumberger Oilfield
Holdings Limited, an International Business Company of the British Virgin
Islands wholly owned by Schlumberger ("SOHL"), Schlumberger Plc, a United
Kingdom limited liability company wholly owned by Schlumberger ("SPLC"),
Schlumberger B.V., a Netherlands limited liability company wholly owned by
Schlumberger ("SLBV"), Schlumberger Technology Corporation, a Texas corporation
wholly owned by Schlumberger ("STC"), and Baker Hughes Incorporated, a Delaware
corporation ("Baker Hughes"), is made as of November 30, 2000.
WHEREAS, Schlumberger, SOHL, SPLC, SLBV, STC and Baker Hughes are
parties to that certain Master Formation Agreement dated as of September 6, 2000
(the "Master Formation Agreement"; capitalized terms this Agreement uses, but
does not define, have the respective meanings the Master Formation Agreement
specifies); and
WHEREAS, the parties hereto desire to amend the Master Formation
Agreement in certain respects pursuant to Section 10.3 thereof;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Amendments to the Master Formation Agreement. The parties hereto
agree that, in accordance with Section 10.3 of the Master Formation Agreement,
the Master Formation Agreement shall be amended as follows:
(a) A new definition of "Closing Agreement" shall be added to Section
1.1 of the Master Formation Agreement as follows:
""CLOSING AGREEMENT" means the Closing Agreement dated as of
the Closing Date executed by the parties hereto."
(b) A new definition of "Nominee Agreement" shall be added to Section
1.1 of the Master Formation Agreement as follows:
""NOMINEE AGREEMENT" means the Nominee Agreement dated as of
the Closing Date executed by Baker Hughes, BVI Venture Entity and Dutch
Venture Entity."
(c) A new definition of "Personnel Leasing Agreement" shall be added to
Section 1.1 of the Master Formation Agreement as follows:
""PERSONNEL LEASING AGREEMENT" means the Personnel Leasing
Agreement dated as of the Closing Date executed by GECO Resources, Inc.
and GECO Holdings L.L.C."
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(d) A new definition of "Secondment Agreements" shall be added to
Section 1.1 of the Master Formation Agreement as follows:
""SECONDMENT AGREEMENTS" means the following Secondment
Agreements dated as of the Closing Date:
(i) the US Secondment Agreement between STC and US EmployCo;
(ii) the US Secondment Agreement between Baker Hughes and US
EmployCo;
(iii) the Canada Secondment Agreement between Schlumberger
Canada Limited and Western GECO Canada Limited; and
(iv) the Canada Secondment Agreement between Baker Hughes
Canada Company and Western GECO Canada Limited."
(e) The definition of Top-Up Amount in Section 1.1 of the Master
Formation Agreement shall be amended in its entirety as follows:
""TOP-UP AMOUNT" has the meaning given such term in Section
2.2(b)."
(f) The definition of "Transaction Documents" in Section 1.1 of the
Master Formation Agreement is hereby amended in its entirety as follows:
""TRANSACTION DOCUMENTS" means this Agreement, the Transfer
Documents, the Charter Documents for the Venture Entities, the
Shareholders' Agreement, the Sublease, the Shared Services Agreement,
the Transition Services Agreement, the Employee Matters Agreement, the
Secondment Agreements, the Personnel Leasing Agreement, the Closing
Agreement and the Nominee Agreement."
(g) The definition of "Venture" in Section 1.1 of the Master Formation
Agreement is hereby amended in its entirety as follows:
""VENTURE" means the overall business relationship
constituting a venture contemplated by this Agreement and includes all
of the Venture Entities; provided, however, for purposes of Article 11
of this Agreement, the term "Venture" shall specifically exclude US
EmployCo."
(h) Subpart (i) of Section 2.1(b) of the Master Formation Agreement
shall be amended in its entirety as follows:
"At or prior to the Closing, Baker Hughes or an Affiliate of
Baker Hughes shall contribute to the Dutch Venture Entity in exchange
for shares of the Dutch Venture Entity all the shares of Western Geo
Canada Ltd, such shares having a fair market value of US $8,000,000,
and Schlumberger or an Affiliate of Schlumberger shall contribute to
the Dutch Venture Entity in exchange for shares
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of the Dutch Venture Entity a portion of the net assets of SLBV and its
Affiliates that are primarily related to the Seismic Business in the
Dutch Countries, such portion of the net assets of SLBV and its
Affiliates having a fair market value sufficient to give Schlumberger
or an Affiliate of Schlumberger a 70% interest in the Dutch Venture
Entity.
(i) Section 2.2 of the Master Formation Agreement shall be amended to
read in its entirety as follows:
2.2 Purchases by SLBV and SOHL.
"(a) The parties have arranged for a third-party valuation of the
Schlumberger Transferred Assets and the Baker Hughes Transferred Assets by
PricewaterhouseCoopers LLP. The parties shall cooperate to complete such
valuation on or before December 31, 2000. To the extent that the valuation
materially differs from the amounts paid at Closing pursuant to Sections
2.1(a)(iii), 2.1(b)(iv), and 2.1(c)(iii), the parties shall appropriately adjust
the allocation of the amounts paid pursuant to those sections; provided, that
the allocation of the agreed Percentage Interests in each Venture Entity is not
affected, and Baker Hughes is not adversely impacted by the adjusted allocation.
Schlumberger agrees that the valuation shall not affect the aggregate purchase
price paid for the Baker Hughes Transferred Assets under this Section 2.2.
(b) The parties agree that the aggregate cash purchase price to be paid
for a portion of the Baker Hughes equity ownership interest in US Venture Entity
pursuant to Section 2.1(a) and for the Baker Hughes Transferred Assets
transferred pursuant to Section 2.1(b)(iv) and Section 2.1(c)(iii) shall not
exceed US$493.36 million. The parties further agree that the price to be paid
for the Baker Hughes Transferred Assets transferred pursuant to Section
2.1(b)(iv) and Section 2.1(c)(iii), collectively, shall be in an amount equal to
US$493.36 million less (i) the amount of cash paid for a portion of the Baker
Hughes equity ownership interest in US Venture Entity pursuant to Section 2.1(a)
and (ii) to the extent such a payment for assets would result in an adverse
financial impact on Schlumberger or its Affiliates, an amount not to exceed
US$20 million (the "TOP-UP AMOUNT"). The Top-Up Amount shall be paid to Baker
Hughes or its Affiliates by SOHL or SLBV or their respective Affiliates, as
appropriate, in cash.
(c) The parties agree that the purchase of assets and contribution of
those assets to each of the Venture Entities hereunder shall be allocated among
the Venture Entities in a manner to achieve a 70%/30% split of the net assets
transferred by Schlumberger Transferring Entities and Baker Hughes Transferring
Entities, respectively, to each Venture Entity."
(j) Section 3.4 of the Master Formation Agreement shall be amended in
its entirety as follows:
"Upon the Closing, Schlumberger and Baker Hughes shall cause
their respective subsidiaries listed on Exhibit 2.6 to contribute to
the applicable Venture Entity an amount of cash (or, in the case of
Baker Hughes, accounts
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receivable as described in Section 3.3) as working capital, which
amount shall be agreed upon between the parties at least 30 days prior
to the Closing; provided, however, that Baker Hughes and its Affiliates
collectively shall not be required to contribute more than an aggregate
total of US $8,360,000 and Schlumberger and its Affiliates collectively
shall not be required to contribute more than an aggregate total of US
$35,000,000. The parties agree that the contributions of working
capital under this Section 3.4 shall not effect the 70%/30% ownership
split of the Venture Entities.
(k) Section 3.10(a) of the Master Formation Agreement shall be amended
by deleting "US$500" in the last sentence thereof and replacing it with
"US$493.36."
(l) Subpart (v) of Section 8.1(a) of the Master Formation Agreement
shall be amended in its entirety as follows:
"(v) any payments required in connection with the post-Closing
termination following a formal decision of the Venture to so terminate
of any agency Contract specifically listed in Schedule A to the Closing
Agreement or otherwise primarily related to the Schlumberger Seismic
Business or the Baker Hughes Seismic Business and in each case provided
that such Contract is for valid services and duly documented"
(m) The current subparts (v) and (vi) of Section 8.2(a) of the Master
Formation Agreement shall be redesignated as subparts (vi) and (vii).
(n) A new subpart (v) shall be added to Section 8.2(a) of the Master
Formation Agreement as follows:
"(v) any Claims against, or Loss of, a Venture Entity, US
EmployCo or their respective Affiliates arising out of or relating to
any activity outside the Baker Hughes Seismic Business prior to
Closing;"
(o) The current subparts (v) and (vi) of Section 8.3(a) of the Master
Formation Agreement shall be redesignated as subparts (vi) and (vii).
(p) A new subpart (v) shall be added to Section 8.3(a) of the Master
Formation Agreement as follows:
"(v) any Claims against, or Loss of, a Venture Entity, US
EmployCo or their respective Affiliates arising out of or relating to
any activity outside the Schlumberger Seismic Business prior to
Closing;"
(q) The last sentence of Section 12.9 of the Master Formation Agreement
is hereby amended in its entirety as follows:
"If there is any conflict between this Agreement and any other
Transaction Document, the provisions of this Agreement shall govern;
provided, that if there is any conflict between this Agreement and the
Closing Agreement or the
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Nominee Agreement, the provisions of the Closing Agreement or the
Nominee Agreement, as applicable, shall govern."
(r) Section 6.10 of the Master Formation Agreement is hereby deleted.
2. Technical Liaisons. Pursuant to Section 7.19 of the Master Formation
Agreement, the parties hereby agree as follows:
(a) Schlumberger hereby appoints Philippe Lacour-Gayet and Dominic
Pajot to serve as Technical Liaisons to the Venture Entities.
(b) Baker Hughes hereby appoints Mike Norris and James Jackson to serve
as Technical Liaisons to the Venture Entities.
3. Shareholder Representatives Committee. Pursuant to Section 7.21 of
the Master Formation Agreement, the parties hereby agree as follows:
(a) Schlumberger hereby appoints Andrew Gould and Simon Ayat to serve
as representatives on the Shareholders Representative Committee created by the
Shareholders' Agreement.
(b) Baker Hughes hereby appoints Andrew J. Szescila and G. Steve Finley
to serve as representatives on the Shareholders Representative Committee created
by the Shareholders' Agreement.
4. Temporary Import Status. Baker Hughes, on the one hand, and
Schlumberger, SPLC, SLBV, STC and SOHL, jointly and severally, on the other
hand, each agree to indemnify, defend and hold harmless the appropriate Venture
Entities or their respective appropriate subsidiaries from and against and in
respect of any Claim or Loss arising out of:
(a) fines, penalties or related costs or expenses levied
against or incurred by the Venture Entity or appropriate subsidiary
thereof upon the transfer of Transferred Assets in any way relating to
the temporary importation status of the Transferred Assets; and
(b) customs duties, import or export duties, taxes or related
costs or expenses (whether deferred or not) levied against or incurred
by the Venture Entity or appropriate subsidiary thereof upon the export
from the country where the Transferred Assets were located on the
Closing Date of temporarily imported Transferred Assets located in that
country that are not Marine Assets (defined below).
The foregoing indemnity obligation in this Section 4 shall not apply to:
(x) the costs and expenses of mobilizing or demobilizing the
Transferred Assets, including (without limitation) costs and expenses
of shipping, storing, crating or transporting the Transferred Assets
for export, which costs and
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expenses shall be borne by the appropriate Venture Entity or subsidiary
thereof; and
(y) customs duties, import or export duties, taxes or related
costs or expenses levied against or incurred by the Venture Entity or
appropriate subsidiary thereof upon the nationalization of temporarily
imported Transferred Assets.
The Venture Entities agree to, and agree to cause their respective
subsidiaries to, use their commercially reasonable efforts to cooperate with
Baker Hughes, Schlumberger, SPLC, SLBV, STC, SOHL and their respective
Affiliates to minimize any customs duties, import or export duties, taxes,
fines, penalties or related costs or expenses that are the subject of the
indemnity given in this Section 4. For the purposes of this Section 4, "Marine
Assets" means vessels, barges, boats and other watercraft, and, in each case,
any equipment, consumables, ships stores or other related assets that are
maintained or stored on the watercraft or on land. Baker Hughes' indemnity
obligations pursuant to this Section 4 shall be limited to $3 million with
respect to Transferred Assets in Syria, $7 million with respect to Transferred
Assets in Egypt, and $450,000 with respect to Transferred Assets in Trinidad.
5. Non-Transferred Assets. The parties agree that the following real
property shall be deemed to be Non-Transferred Assets:
(a) Schlumberger facilities in Orpington, UK and Calgary, Canada;
(b) Baker Hughes facilities in Littleton, US and Croydon, UK;
(c) Interest of Western Atlas International, Inc. in Eastern
Geophysical;
(d) Lease at Plots 468, 1, 2, 11, 12 Trans Amad; Industria Layout, Port
Harcourt Nigeria; and
(e) Lease at 17 Mekunwen, Flat 2, Ikoy; Nigeria.
6. Designated Payees. Pursuant to the provisions of Section 3.10 to the
Master Formation Agreement, Schlumberger hereby designates Schlumberger
Technology Corporation (U.S.) and Schlumberger Oilfield Holdings Limited
(non-U.S.) and Baker Hughes hereby designates Baker Hughes Incorporated (U.S.)
and Baker Hughes GmbH (non-U.S.), in each case, to receive as nominee, to the
extent practicable, all payments due to Schlumberger and Baker Hughes, as
applicable under Section 3.10.
7. Venture Entity Directors. As required by the Shareholders'
Agreement, Schlumberger and its affiliates may appoint two members of the board
of directors or other governing board of each Venture Entity and US EmployCo and
Baker Hughes and its affiliates may appoint one member to such governing board.
The parties hereby agree that the following individuals will be appointed as the
initial members of those boards:
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US Venture Entity
Daniel Churay
David Meeh
Duncan Riley
Dutch Venture Entity
Gavin Sinclair
Dirk Van Hilten
Bram Verburg
BVI Venture Entity
Gavin Sinclair
Peter Wilkinson
Michael McGuinty
UK Venture Entity
Gavin Sinclair
Michael Golding
Julian Ceha
US EmployCo
Daniel Churay
David Meeh
Duncan Riley
8. Nominee Agreement. The parties hereto agree that the Nominee
Agreement supplements and amends Section 7.20 of the Master Formation Agreement
with respect to the Assets (as defined in the Nominee Agreement) in all
respects. The parties hereto agree to cause the Dutch Venture Entity and the BVI
Venture Entity to fulfill their obligations under the Nominee Agreement. If
required by Section 7.20(a)(iv) of the Master Formation Agreement, an entity
designated by Schlumberger (other than the Venture Entities or any of their
respective subsidiaries) shall pay to Baker Hughes' designee an amount equal to
the withholding taxes actually incurred by Baker Hughes or its appropriate
Affiliate in transferring any amount from the Nominee to Baker Hughes' designee
pursuant to Section 3(b)(ii) of the Nominee Agreement.
9. Amendments to Delft Charter Documents. The parties hereto agree to
cause certain mutually agreeable amendments to the articles of association of
the Dutch Venture Entity to be effected as soon as practicable after the Closing
to conform the articles of association to the terms provided in the Master
Formation Agreement and the Shareholders' Agreement to the extent allowed by
applicable law.
10. Venture Entity Charter Restrictions. To the extent the charter
documents of the Venture Entities contain restrictions on transfer in addition
to or in contravention of those provided in Article 11 of the Master Formation
Agreement, the parties agree to use good faith efforts to implement to the
greatest extent possible, any proposed transfer in accordance with the
provisions of Article 11.
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11. Waiver of Late Deliveries.
The parties hereby waive any late delivery of any documents that were
to be delivered under the Master Formation Agreement prior to the Closing.
12. Waiver of Conditions.
The parties hereby agree that all conditions to the Closing are hereby
deemed satisfied or waived.
13. Exhibits Deemed in Substantially the Same Form. Each of the
following documents executed as of the Closing Date, which were attached as
exhibits to the Master Formation Agreement, is deemed to be in substantially the
same form as was attached as an exhibit to the Master Formation Agreement and
any changes to any such documents as executed are hereby deemed agreed to and
approved by each of the parties hereto.
(a) Shareholders Agreement;
(b) Sublease;
(c) Venture Entity and US EmployCo supplements;
(d) Shared Services Agreement;
(e) Transition Services Agreement; and
(f) limited liability company agreement of US Venture Entity.
14. Baker Hughes Transferred IP. Notwithstanding the provisions of
Section 9.2 of the Master Formation Agreement, the Baker Hughes Transferred IP
shall be transferred to the Venture as follows:
(a) All Baker Hughes Transferred IP and Schlumberger Transferred IP
primarily related to the Seismic Business in the U.S. will be transferred to the
US Venture Entity;
(b) All Baker Hughes Transferred IP and Schlumberger Transferred IP
primarily related to the Seismic Business in Canada will be transferred to
Western GECO Canada, a subsidiary of the Dutch Venture Entity; and
(c) All Baker Hughes Transferred IP and Schlumberger Transferred IP
primarily related to the Seismic Business anywhere other than the U.S. and
Canada will be transferred to the BVI Venture Entity.
15. Ownership of Venture Entities. The parties agree that as of
immediately after the Closing, the ownership of Venture Entities and US EmployCo
is as follows:
US EmployCo:
70% - STC
30% - Western Atlas International, Inc.
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US Venture Entity:
70% - STC
30% - Western Atlas International, Inc.
UK Venture Entity:
70% - SPLC
30% - Baker Hughes (UK) Limited
Dutch Venture Entity:
70% - SLBV
30% - Baker Hughes International Branches Incorporated
BVI Venture Entity:
70% - SOHL
30% - Western Sea Holdings Limited
The parties agree to cause the Venture Entities and US EmployCo to amend their
charter documents as necessary to reflect this ownership and to provide to each
owner of these entities evidence of that ownership as soon as practicable after
Closing.
16. UK Tax Loss Sharing Agreement. The parties agree to, or to cause
their respective affiliates to, negotiate in good faith and execute a mutually
agreeable UK Tax Loss Sharing Agreement within 21 days after Closing.
17. Syrian Assets. The parties agree that, if, as of the time of the
Second Closing, Baker Hughes is unable to cause the assets located in Syria,
that would otherwise be Baker Hughes Transferred Assets, to be transferred to a
Venture Entity, these assets shall be treated as Non-Transferred Assets for the
purposes of the calculations made as of the Second Closing. If, however, Baker
Hughes transfers, or causes an Affiliate to transfer, those assets to a Venture
Entity thereafter, that Venture Entity shall pay, or cause an Affiliate to pay,
to the transferring entity, an amount equal to the net book value of those
assets.
18. Effect of Amendments. Other than as amended herein, the Master
Formation Agreement shall continue in full force and effect. Pursuant to Section
12.9 of the Master Formation Agreement, this Agreement forms a part of, and
shall be construed in conjunction with, the Master Formation Agreement.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas applicable to contracts made and
to be performed therein, without giving effect to the principles of conflict of
laws thereof.
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20. Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all, of the parties hereto.
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered on its behalf as of the date first set forth
above.
SCHLUMBERGER LIMITED
By: /s/ Robert Villard
-----------------------
Robert Villard
Attorney-in-Fact
SCHLUMBERGER OILFIELD
HOLDINGS LIMITED
By: /s/ Robert Villard
-----------------------
Robert Villard
Attorney-in-Fact
SCHLUMBERGER PLC
By: /s/ Robert Villard
-----------------------
Robert Villard
Attorney-in-Fact
SCHLUMBERGER B.V.
By: /s/ A. R. Verburg
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A. R. Verburg
Director
SCHLUMBERGER TECHNOLOGY
CORPORATION
By: /s/ John Yearwood
-----------------------
John Yearwood
Attorney-in-Fact
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BAKER HUGHES INCORPORATED
By: /s/ John H. Lohman, Jr.
-----------------------
John H. Lohman, Jr.
Vice President
