-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GiCZ0cTykbtzU2As2Z0WPtp4BjOhpiI1DDOM41u9749p+8M+El875tBeyp4Fcr9f 6EdsnAxUjlCJTXA7yobWaQ== 0001011438-06-000670.txt : 20061204 0001011438-06-000670.hdr.sgml : 20061204 20061201175720 ACCESSION NUMBER: 0001011438-06-000670 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20061204 DATE AS OF CHANGE: 20061201 GROUP MEMBERS: RICHARD C. PERRY SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: North American Energy Partners Inc. CENTRAL INDEX KEY: 0001368519 STANDARD INDUSTRIAL CLASSIFICATION: OIL, GAS FIELD SERVICES, NBC [1389] IRS NUMBER: 000000000 STATE OF INCORPORATION: A0 FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-82223 FILM NUMBER: 061252265 BUSINESS ADDRESS: STREET 1: ZONE 3, ACHESON INDUSTRIAL AREA STREET 2: 2-53016 HIGHWAY 60 CITY: ACHESON STATE: A0 ZIP: T7X 5A7 BUSINESS PHONE: 780-960-7171 MAIL ADDRESS: STREET 1: ZONE 3, ACHESON INDUSTRIAL AREA STREET 2: 2-53016 HIGHWAY 60 CITY: ACHESON STATE: A0 ZIP: T7X 5A7 FORMER COMPANY: FORMER CONFORMED NAME: NORTH AMERICAN ENERGY PARTNERS INC. DATE OF NAME CHANGE: 20061129 FORMER COMPANY: FORMER CONFORMED NAME: NACG Holdings Inc. DATE OF NAME CHANGE: 20060707 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PERRY CORP CENTRAL INDEX KEY: 0000919085 IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 599 LEXINGTON AVE STREET 2: 36TH FL CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2125834100 MAIL ADDRESS: STREET 1: 599 LEXINGTON STREET 2: 36TH FL CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D 1 form_sc13d-noamericanenergy.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D (AMENDMENT NO. ___)* UNDER THE SECURITIES EXCHANGE ACT OF 1934 NORTH AMERICAN ENERGY PARTNERS INC. (Name of Issuer) COMMON SHARES, NO PAR VALUE (Title of Class of Securities) 656844107 (CUSIP Number) Michael C. Neus Perry Corp. 767 Fifth Avenue, 19th Floor New York, New York 10153 (212) 583-4000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) NOVEMBER 28, 2006 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule ss.240.13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP NO. 656844107 PAGE 2 of 13 1 Names of Reporting Persons I.R.S. Identification Nos. of above persons (entities only) Perry Corp. 2 Check the Appropriate Box If a Member of a Group (See Instructions) a. [ ] b. [ ] 3 SEC Use Only 4 Source of Funds (See Instructions) WC 5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] 6 Citizenship or Place of Organization New York 7 Sole Voting Power Number of 4,753,839 Shares Beneficially 8 Shared Voting Power Owned By 0 Each Reporting 9 Sole Dispositive Power Person 4,753,839 With 10 Shared Dispositive Power 0 11 Aggregate Amount Beneficially Owned by Each Reporting Person 4,753,839 12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] 13 Percent of Class Represented By Amount in Row (11) 13.78% 14 Type of Reporting Person (See Instructions) IA, CO CUSIP NO. 656844107 PAGE 3 of 13 1 Names of Reporting Persons I.R.S. Identification Nos. of above persons (entities only) Richard C. Perry 2 Check the Appropriate Box If a Member of a Group (See Instructions) a. [ ] b. [ ] 3 SEC Use Only 4 Source of Funds (See Instructions) WC 6 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] 6 Citizenship or Place of Organization United States of America
7 Sole Voting Power Number of 4,753,839 (all shares beneficially owned by Perry Corp.) Shares Beneficially 8 Shared Voting Power Owned By 0 Each Reporting 9 Sole Dispositive Power Person 4,753,839 (all shares beneficially owned by Perry Corp.) With 10 Shared Dispositive Power 0
11 Aggregate Amount Beneficially Owned by Each Reporting Person 4,753,839 12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] 13 Percent of Class Represented By Amount in Row (11) 13.78% 14 Type of Reporting Person (See Instructions) IN, HC CUSIP NO. 656844107 PAGE 4 of 13 ITEM 1. SECURITY AND ISSUER. This Statement on Schedule 13D relates to common shares, no par value (the "Shares"), of North American Energy Partners Inc., a Canadian federal corporation (the "Issuer"), acquired by private investment funds for which Perry Corp. acts as a general partner and/or investment advisor. The address of the principal executive office of the Issuer is Zone 3, Acheson Industrial Area, 2-53016 Highway 60, Acheson, Alberta, T7X 5A7. ITEM 2. IDENTITY AND BACKGROUND. This statement on Schedule 13D is filed on behalf of Perry Corp., a New York corporation, and Richard C. Perry, an American citizen (together, the "Reporting Persons"). Perry Corp. is a registered investment adviser that provides asset management services to private investment funds. Richard C. Perry is the President, sole director, and sole stockholder of Perry Corp. The principal business address of Perry Corp. and Richard C. Perry is 767 Fifth Avenue, 19th Floor, New York, NY 10153. A joint filing agreement of Perry Corp. and Richard C. Perry is attached hereto as Exhibit 1. The name, citizenship, business address and principal occupation of each of the directors and executive officers of Perry Corp. (other than Richard C. Perry) are set forth in Schedule I attached hereto, which is incorporated herein by reference. During the last five years, neither Perry Corp., Richard C. Perry, nor, to the knowledge of the Reporting Persons, any of the persons listed in Schedule I has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws of finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. The Shares were acquired directly or indirectly on behalf of two or more private investment funds for which Perry Corp. acts as a general partner and/or investment adviser (the "Perry Funds"). The Shares may be held in margin accounts established with various brokers by the Perry Funds. In connection with the initial public offering of the Shares ("IPO"), Perry Corp. acquired 1,650,000 common shares of NACG Holdings Inc. in exchange for 16,500 series B preferred shares of pre-amalgamated North American Energy Partners Inc. owned by the Perry Funds. Subsequent to the exchange and immediately prior to the closing of the IPO, NACG Holdings Inc., NACG Preferred Corp. and North American Energy Partners Inc. amalgamated into one entity, North American Energy Partners Inc., the Issuer. An amalgamation under Canadian law is similar to a merger under U.S. law in that it involves combining two or more corporations together. As a result of the amalgamation, the Perry Funds acquired 5,594,980 common shares of the Issuer in exchange for 5,594,980 common shares of NACG Holdings, Inc. held by the Perry Funds immediately prior to the amalgamation. The Perry Funds sold 841,141 common shares as a selling shareholder in the IPO, at a per share price of US$16.00, pursuant to the Underwriting Agreement (as described below). CUSIP NO. 656844107 PAGE 5 of 13 ITEM 4. PURPOSE OF TRANSACTION. The Shares were acquired in the ordinary course of business by the Perry Funds. The Reporting Persons expect to evaluate on an ongoing basis the Issuer's financial condition, business, operations and prospects, the market price of the common shares, conditions in the securities markets generally, general economic and industry conditions and other factors. Depending on such review, and subject to the conditions below, the Reporting Persons may make additional purchases or may sell or transfer common shares beneficially owned by them from time to time in public or private transactions and/or may enter into privately negotiated derivative transactions with institutional counterparties to hedge the market risk of some or all of their positions in the common shares or other securities and/or may cause any of the Perry Funds to distribute in kind to their respective partners or shareholders, as the case may be, common shares or other securities. Any such transactions may be effected at any time or from time to time subject to (i) the restrictions contained in the Lock-Up Agreements (described in Item 6 below) and (ii) any applicable limitations imposed on the sale of the Shares by the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act") or other applicable law. Except as otherwise described herein, none of Perry Corp., Richard C. Perry or, to the knowledge of the Reporting Persons, the persons listed in Schedule I have any current plans or proposals which relate to or would result in any of the transactions or changes contemplated in Items 4(a) through 4(j) of Schedule 13D. George Brokaw, a managing director of Perry Capital LLC, an affiliate of Perry Corp., serves as a director of the Issuer. As a result, Mr. Brokaw may have the ability to propose or implement some or all of the events listed in Item 4(a) - (j) of Schedule 13D. Each Reporting Person may, at any time and from time to time, review or reconsider their position and formulate such plans or proposals. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) - (b) Perry Corp. is the indirect beneficial owner of 4,753,839 Shares, which constitutes 13.78% of the Issuer's outstanding Shares, based upon 34,504,760 Shares outstanding as of November 28, 2006. Perry Corp. has sole power to vote and sole power to dispose of the 4,753,839 Shares. By virtue of his position as President, sole director and sole stockholder of Perry Corp., Richard C. Perry may be considered to indirectly beneficially own such Shares. (c) Except for the transactions described in Item 3 above, there have been no transactions with respect to the Shares during the sixty days prior to the date of this Statement on Schedule 13D by either Perry Corp. or Richard C. Perry. (d) The limited partners of (or investors in) each of the Perry Funds have the right to participate in the receipt of dividends from, or proceeds from the sale of, the Shares held for the accounts of their respective funds in accordance with their respective limited partnership interests (or investment percentages) in their respective funds. (e) Not applicable. CUSIP NO. 656844107 PAGE 6 of 12 ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. UNDERWRITING AGREEMENT In connection with the IPO, an Underwriting Agreement, dated November 21, 2006 (the "Underwriting Agreement"), was entered into by and among the Issuer, Credit Suisse Securities (USA) LLC and UBS Securities LLC, as representatives (the "Representatives") of the several underwriters listed in Schedule B thereto (the "Underwriters") and the selling shareholders named in Schedule A thereto (the "selling stockholders"). The Perry Funds were selling stockholders in the IPO. The Underwriting Agreement provides for the Underwriters' purchase of 8,750,000 common shares from the Issuer, 3,750,000 common shares from the selling stockholders and the Underwriters' option to purchase up to an additional 1,875,000 common shares from the Issuer and the selling stockholders within 30 days from the date of the Underwriting Agreement at the same purchase price for the purpose of covering over-allotments. As of the date of this Schedule 13D, the Reporting Persons have been notified by the Underwriters that the Underwriters have elected to exercise at least a portion of the over-allotment option, however the Reporting Persons have not yet been informed of the number of Shares held by the Perry Funds that the Underwriters will purchase from the Perry Funds. The initial public offering price in the IPO was US$16.00 per share. Under the Underwriting Agreement, the Underwriters purchased the Shares net of an underwriting discount of US$1.04 per share. The Underwriting Agreement contains standard terms and conditions for a public offering including customary representations and warranties and indemnity provisions. REGISTRATION RIGHTS AGREEMENT The Perry Funds are party to a registration rights agreement dated as of November 26, 2003, among NACG Holdings Inc. and the shareholders party thereto. After the IPO, the shareholders party to the agreement and their permitted transferees are entitled, subject to certain limitations, to include their common shares in a registration of common shares initiated by the Issuer under the Securities Act. In addition, after the 120th day following the IPO, any one or more shareholders party to the agreement has the right to require the Issuer to effect the registration of all or any part of such shareholders' common shares under the Securities Act, referred to as a "demand registration," so long as the amount of common shares to be registered has an aggregate fair market value of at least US$5.0 million and, at such time, the Securities and Exchange Commission has ordered or declared effective fewer than four demand registrations initiated by the Issuer pursuant to the registration rights agreement. In the event the aggregate number of common shares which the shareholders party to the agreement request the Issuer to include in any registration, together, in the case of a registration initiated by the Issuer, with the common shares to be included in such registration, exceeds the number which, in the opinion of the managing underwriter, can be sold in such offering without materially affecting the offering price of such shares, the number of shares of each shareholder to be included in such registration will be reduced pro rata based on the aggregate number of shares for which registration was requested. The shareholders party to the agreement have the right to require, after four demand registrations, one registration in which their common shares will not be subject to pro rata reduction with others entitled to registration rights. The Issuer has the option to delay the filing of a registration statement pursuant to any demand registration for a limited period of time under certain limited circumstances. The registration rights agreement contains customary provisions whereby the Issuer and the shareholders party to the agreement indemnify and agree to contribute to each other with regard to losses caused by the misstatement of any information or the omission of any information required to be provided in a registration statement filed under the Securities Act. The registration rights agreement requires the Issuer to pay the expenses associated with any registration other than sales discounts, commissions, transfer taxes and amounts to be borne by underwriters or as otherwise required by law. CUSIP NO. 656844107 PAGE 7 of 13 LOCK-UP AGREEMENTS In connection with the IPO, the Perry Funds have agreed that, during the period beginning on November 21, 2006 and continuing to and including the date 180 days after such date, they will not, without prior written consent of the Representatives, (i) offer, pledge, sell, contract to sell, or otherwise dispose of, directly or indirectly, any common shares or any securities convertible into or exercisable or exchangeable for common shares, (ii) enter into any swap, hedge or other arrangement that transfers to another in whole or in part, any of the economic consequences of ownership of the common shares, or (iii) publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such transaction, swap, hedge or other arrangement. LETTER AGREEMENT In connection with the IPO, the Issuer, Perry Partners International Inc., and Perry Partners L.P., private investment funds for which Perry Corp. serves as a general partner and/or investment manager ("Perry"), entered into a letter agreement pursuant to which the Issuer engaged Perry to provide its expertise and advice to the Issuer for no fee. In order for Perry to provide such advice, the Issuer will: o provide copies of all documents, reports, financial data and other information regarding the Issuer, o permit Perry to consult with and advise management on matters relating to the Issuer's operations, o permit Perry to discuss the Issuer's affairs, finances and accounts with its officers, directors and outside accountants, o permit Perry to visit and inspect any of the Issuer's properties and facilities, including but not limited to books of account, o permit Perry to attend, and to the extent that a director of the Issuer is not related to Perry, to designate and send a representative to attend, all meetings of the Issuer's board of directors in a non-voting observer capacity, o provide Perry copies of certain of the Issuer's financial statements and reports, and o provide Perry copies of all materials sent by the Issuer to its board of directors, other than materials relating to transactions in which Perry Strategic has an interest. The Issuer may terminate Perry's letter agreement in certain circumstances. All the foregoing rights are subject to customary confidentiality requirements and subject to security clearance requirements imposed by applicable government authorities. The foregoing descriptions of the Underwriting Agreement, Registration Rights Agreement, Lock-Up Agreements and Letter Agreement are qualified in their entirety by reference to the Form of Underwriting Agreement, Registration Rights Agreement, and Letter Agreement, which are filed as exhibits hereto, each of which is incorporated by reference in their entirety into this Item 6. Except as described herein, none of the Reporting Persons or, to the knowledge of each of the Reporting Persons, any of the persons listed in Schedule I hereto, is a party to any contract, arrangement, understanding or relationship with respect to any securities of the Company. CUSIP NO. 656844107 PAGE 8 of 12 ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT DESCRIPTION - ------------ ------------------------------------------------------------------------------------------------------- 1 Joint Filing Agreement, dated as of November 30, 2006, by and among Perry Corp. and Richard C. Perry. 2 Form of Underwriting Agreement, by and among North American Energy Partners Inc., Credit Suisse Securities (USA) LLC and UBS Securities LLC, as representatives of the several underwriters listed in Schedule B thereto and the selling shareholders named in Schedule A thereto. (incorporated by reference to Exhibit 1.1 to Amendment No. 2 to Form F-1, Registration No. 333-135943, filed by NACG Holdings Inc. on October 12, 2006). 3 Registration Rights Agreement, dated as of November 26, 2003 among NACG Holdings Inc. and the shareholders party thereto (incorporated by reference to Exhibit 4.1 to Form F-1, Registration No. 333-135943, filed by NACG Holdings Inc. on July 21, 2006). 4 Letter Agreement dated November 28, 2006 among North American Energy Partners Inc., Perry Partners L.P., and Perry Partners International Inc.
CUSIP NO. 656844107 PAGE 9 of 12 SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: December 1, 2006 PERRY CORP. By: /s/ Richard C. Perry --------------------------- Name: Richard C. Perry Title: President Date: December 1, 2006 /s/ Richard C. Perry ------------------------------------ RICHARD C. PERRY CUSIP NO. 656844107 PAGE 10 of 12
SCHEDULE I EXECUTIVE OFFICERS AND DIRECTORS OF PERRY CORP. (OTHER THAN RICHARD C. PERRY) Name Title Citizenship - ---------------------------------- ------------------------------------------------------------ ---------------- Randall Borkenstein Chief Financial Officer and Treasurer USA Michael C. Neus General Counsel and Secretary USA Paul Leff Managing Director and Chief Investment Officer USA Carl Berg Managing Director USA Lance Rosen Managing Director USA Elizabeth Haase Managing Director USA Daniel Goldring Managing Director USA Alp Ercil Managing Director USA Ori Uziel Managing Director USA The business address for each of the persons listed above is: c/o Perry Corp., 767 Fifth Avenue, 19th Floor, New York, NY 10153. To the knowledge of the Reporting Persons, no person listed above owns any Shares of the Issuer.
CUSIP NO. 656844107 PAGE 11 of 12
EXHIBIT INDEX EXHIBIT DESCRIPTION - ------------ ------------------------------------------------------------------------------------------------------- 1 Joint Filing Agreement, dated as of December 1, 2006, by and among Perry Corp. and Richard C. Perry. 2 Form of Underwriting Agreement, by and among North American Energy Partners Inc., Credit Suisse Securities (USA) LLC and UBS Securities LLC, as representatives of the several underwriters listed in Schedule B thereto and the selling shareholders named in Schedule A thereto. (incorporated by reference to Exhibit 1.1 to Amendment No. 2 to Form F-1, Registration No. 333-135943, filed by NACG Holdings Inc. on October 12, 2006). 3 Registration Rights Agreement, dated as of November 26, 2003 among NACG Holdings Inc. and the shareholders party thereto (incorporated by reference to Exhibit 4.1 to Form F-1, Registration No. 333-135943, filed by NACG Holdings Inc. on July 21, 2006). 4 Letter Agreement dated November 28, 2006 among North American Energy Partners Inc., Perry Partners L.P., and Perry Partners International Inc.
CUSIP NO. 656844107 PAGE 12 of 12 EXHIBIT 1 JOINT FILING AGREEMENT The undersigned hereby agree to jointly prepare and file with regulatory authorities a Schedule 13D and any future amendments thereto reporting each of the undersigned's ownership of securities of North American Energy Partners Inc., and hereby affirm that such Schedule 13D is being filed on behalf of each of the undersigned pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him or it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the other, except to the extent that he or it knows or has reason to believe that such information is inaccurate. Date: December 1, 2006 PERRY CORP. By: /s/ Richard C. Perry --------------------------- Name: Richard C. Perry Title: President Date: December 1, 2006 /s/ Richard C. Perry ------------------------------------ RICHARD C. PERRY EX-99 2 exhibit_4.txt NORTH AMERICAN ENERGY PARTNERS INC. November 28, 2006 Perry Partners, L.P. Perry Partners International, Inc. (the "Advisors") c/o Perry Strategic Capital Inc. 767 Fifth Avenue 19th Floor New York, New York 10153 Ladies and Gentlemen: The Advisor has extensive experience in strategic planning, which experience would be of assistance to the Company. The Advisor is party to a Voting and Corporate Governance Agreement with the Company which provided the Advisor with certain board representation rights in the Company. The Voting and Corporate Governance Agreement will be terminated on the completion of the initial public offering of the Company's shares (the "IPO"). In order to assist the Company in strategic planning, the Company would like to avail itself of the Advisor's expertise and advice. The Advisor is willing to provide such expertise and experience at no cost to the Company, as it is in their interest to do so in light of the Advisor's investment in the Company. In order to be able to obtain this assistance in a meaningful way, the Company will: (a) provide copies of all documents, reports, financial data and other information regarding the Company and its subsidiaries as may be reasonably requested by the Advisor; (b) permit the Advisor to consult with and advise the management of the Company and its subsidiaries at such reasonable times on all matters relating to the operation of the Company and its subsidiaries; (c) permit the Advisor to discuss the Company's and its subsidiaries' affairs, finances and accounts with the Company's and its subsidiaries' officers, directors and outside accountants at such reasonable times as may be requested by the Advisor; (d) permit the Advisor to visit and inspect any of the Company's and its subsidiaries' properties and facilities, at such reasonable times as may be requested by the Advisor; (e) permit the Advisor, to the extent that a director of the Company is not related to the Advisor, to designate and send a representative to attend all meetings of the Company's board of directors in a nonvoting observer capacity, provided that such right is subject to security clearance requirements imposed by applicable governmental authorities and to the ability of the Company to exclude such representative during discussions relating to transactions or matters in which the Advisor has an interest; (f) provide as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of the Company, consolidated balance sheets of the Company and its subsidiaries as of the end of such period and consolidated statements of income and cash flows of the Company and its subsidiaries for the period then ended prepared in conformity with generally accepted accounting principles in Canada applied on a consistent basis, except as otherwise noted therein, and subject to the absence of footnote disclosures and to year-end adjustments; provided that the filing of the Company's quarterly and annual financial statements with the Securities and Exchange Commission (the "SEC") or the securities regulatory authorities in the provinces and territories of Canada (the "CSA") within the time periods required by the rules and regulations of the SEC and the CSA, as applicable, shall be deemed to satisfy such delivery requirements; (g) provide as soon as available and in any event within 120 days after the end of each fiscal year of the Company, a consolidated balance sheet of the Company and its subsidiaries as of the end of such year and consolidated statements of income and cash flows of the Company and its subsidiaries for the year then ended prepared in conformity with generally accepted accounting principles in Canada applied on a consistent basis, except as otherwise noted therein, together with an auditor's report thereon of a firm of established national reputation; provided that the filing of the Company's quarterly and annual financial statements with the SEC or the CSA within the time periods required by the rules and regulations of the SEC and the CSA, as applicable, shall be deemed to satisfy such delivery requirements; (h) provide, to the extent the Company is required by law or pursuant to the terms of any outstanding indebtedness of the Company to prepare such reports, any annual reports, quarterly reports and other periodic reports pursuant to Section 13 or 15(d) of the Securities Act of 1933 actually prepared by the Company as soon as available; provided that the filing of the Company's quarterly and annual financial statements with the SEC or the CSA within the time periods required by the rules and regulations of the SEC and the CSA, as applicable, shall be deemed to satisfy such delivery requirements; and (i) provide all materials sent by the Company to its board of directors, other than materials dealing with transactions in which the Advisor has an interest. The Advisor acknowledges that the provision by the Company of the material and access provided for above may include the provision of or access to certain non-public information with respect to the Company. As a condition to furnishing the Advisor with such information and any other information (whether in oral or written form, electronically stored or otherwise) delivered to the Advisor by the Company or any of its affiliates, directors, officers, employees, advisors, agents or representatives (such persons for the Company or the Advisor being herein referred to collectively as "Representatives") in connection with the provision of such expertise and advice (such information, including any and all copies and other reproductions thereof, being herein referred to as "Confidential Information"), the Advisor hereby agrees as follows: (a) The Advisor: (i) will use the Confidential Information solely for the purpose of providing the Company with its expertise and advice to the Company; (ii) will keep the Confidential Information strictly confidential and will not (except as required by applicable law, regulation or legal process, and only after compliance with paragraph (c) below), without the Company's prior written consent, disclose in any manner whatsoever any information contained in the Confidential Information or derived therefrom. The Advisor agrees to be liable to the Company for any breach of this Agreement by the Advisor or its Representatives, and the Advisor hereby agrees to indemnify and hold harmless the Company from and against any and all loss, damage, cost, expense and liability incurred or suffered from or as a result of any such breach. (b) The term "Confidential Information" does not include any information which (i) at the time of disclosure or thereafter is generally known by the public (other than as a direct or indirect result of its disclosure by the Advisor in breach of this Agreement); or (ii) was or becomes available to the Advisor on a non-confidential basis from a person to the Advisor's knowledge not otherwise bound by a confidentiality agreement with the Company or its Representatives or is not otherwise prohibited from transmitting the information to the Advisor. As used in this Agreement, the term "person" shall be broadly interpreted to include, without limitation, any corporation, company, joint venture, partnership or individual. (c) In the event that the Advisor receives a request or is required to disclose all or any part of the information contained in the Confidential Information pursuant to the terms of a subpoena or order issued by a court of competent jurisdiction or a federal, state, provincial, territorial, municipal or local governmental or regulatory body or pursuant to a civil investigative demand or similar judicial process, the Advisor agrees to (i) immediately notify the Company of the existence, terms and circumstances surrounding such a request or requirement, (ii) consult with the Company on the advisability of taking legally available steps to resist or narrow such request or requirement, and (iii) if disclosure of such information is required, disclose any such information which the Advisor is advised in writing by legal counsel is legally required to be disclosed and will exercise the Advisor's reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to all such information. (d) The Advisor acknowledges the prohibition under applicable securities and criminal law against trading in securities of the Company with knowledge of material undisclosed information. (e) The Advisor agrees to be bound by the Company's policy on trading in securities. If at any time the Advisor holds less than 10% of the common shares of the Company that it originally acquired in November, 2003 (as such shares may be adjusted for share splits and consolidations), the Company may terminate this letter agreement in its sole discretion. The Company acknowledges and agrees that the Advisor shall not incur any liability to the Company as a result of providing or failing to provide any advice under this letter agreement. The Advisor's signature below indicates our assent to the terms of this letter agreement as of the date set forth above. Very truly yours, North American Energy Partners Inc. By: \s\ Vincent Gallant ---------------------------------------------- Name: Vincent Gallant Title: Vice President, Corporate and Secretary Agreed to and accepted by: Perry Partners, L.P. By: Perry Corp., its Managing General Partner By: \s\ Michael C. Neus ------------------------------ Name: Michael C. Neus Title: General Counsel Perry Partners International, Inc. By: Perry Corp., its Investment Manager By: \s\ Michael C. Neus ------------------------------- Name: Michael C. Neus Title: General Counsel -----END PRIVACY-ENHANCED MESSAGE-----