Exhibit B
CONFORMED COPY
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SHARE PURCHASE AGREEMENT
BETWEEN
CENTRAL ASIAN INDUSTRIAL HOLDINGS N.V.
AND
NRL ACQUISITION CORP.
May 17, 2004
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TABLE OF CONTENTS
Page
1. DEFINITIONS AND INTERPRETATION..........................................2
2. SALE AND PURCHASE OF THE SHARES; ASSIGNMENT OF AGREEMENTS...............7
3. CONSIDERATION...........................................................7
4. CONDITIONS PRECEDENT....................................................7
5. CLOSING................................................................10
6. ACTIONS BETWEEN SIGNING AND CLOSING....................................10
7. REPRESENTATIONS AND WARRANTIES.........................................11
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.............................14
9. INDEMNIFICATION........................................................14
10. LIMITATIONS ON LIABILITY...............................................15
11. TERMINATION............................................................18
12. NOTICES................................................................19
13. FURTHER ASSURANCES.....................................................20
14. GENERAL................................................................20
SCHEDULE 1 CLOSING ARRANGEMENTS...........................................25
SCHEDULE 2 FORM OF WARRANT ASSIGNMENT.....................................28
SCHEDULE 3 FORM OF ASSIGNMENT AGREEMENT...................................29
SCHEDULE 4 FORM OF NOTE...................................................32
SCHEDULE 5 FORM OF PLEDGE AND SECURITY AGREEMENT..........................40
SCHEDULE 6A FORM OF SELLER'S U.S. LEGAL OPINION .........................47
SCHEDULE 6B FORM OF SELLER'S NETHERLANDS ANTILLES LEGAL OPINION............50
SCHEDULE 7A FORM OF PURCHASER'S U.S. LEGAL OPINION.........................51
SCHEDULE 7B FORM OF XXXXXX'X BERMUDA LEGAL OPINION.........................52
SHARE PURCHASE AGREEMENT dated as of May 17, 2004 (this "AGREEMENT") between
CENTRAL ASIAN INDUSTRIAL HOLDINGS N.V., a company incorporated under the laws of
The Netherlands Antilles (the "SELLER"), and NRL ACQUISITION CORP., a
corporation incorporated under the laws of the State of Delaware (the
"PURCHASER" and, together with the Seller, collectively, the "PARTIES" and each,
a "PARTY").
WITNESSETH
WHEREAS:
(A) As of the date hereof, the authorized capital stock of Chaparral
Resources, Inc., a corporation incorporated under the laws of the State
of Delaware (the "COMPANY"), consists of (a) 100,000,000 shares of
common stock, par value $0.0001 per share, of which 38,209,502 shares of
common stock are issued and outstanding and (b) 1,000,000 shares of
preferred stock, no par value per share, of which 75,000 shares are
designated Series A preferred stock and of which no shares are issued
and outstanding;
(B) As of the date hereof, the Seller owns 22,925,701 shares of common
stock, par value $0.0001 per share (the "SALE SHARES"), representing
59.99% of the issued and outstanding common stock of the Company, and a
Warrant (as hereinafter defined) in respect of an additional 3,076,923
shares of common stock, which, if fully exercised, would represent 7.45%
of the issued and outstanding common stock of the Company (on a
fully-diluted basis after giving effect to such issuance) and, together
with the Sale Shares, would represent an aggregate of 62.98% of the
issued and outstanding common stock of the Company (on a fully-diluted
basis after giving effect to such issuance);
(C) As of the date hereof, the Company owes the Seller $4,000,000.00 (Four
Million US Dollars) of unpaid principal and $61,884.00 (Sixty-One
Thousand Eight Hundred Eighty-Four US Dollars) of accrued and unpaid
interest under the Promissory Note dated May 10, 2002, having an
aggregate face amount of $4,000,000.00 and executed by the Company and
CAP-G (as hereinafter defined) in favor of the Seller (the "CAIH NOTE");
(D) The Warrant and the CAIH Note were issued, executed and delivered under
the Master Agreement dated May 9, 2002 between the Company and the
Seller (the "MASTER AGREEMENT");
(E) The Seller wishes to sell, and the Purchaser wishes to purchase, the
Sale Shares on the terms and conditions set forth in this Agreement; and
(F) The Seller wishes to assign to the Purchaser, and the Purchaser wishes
to accept the assignment of, the Warrant, the CAIH Note, the Master
Agreement and the Registration Agreement (as hereinafter defined).
NOW, THEREFORE, in consideration of the terms and conditions contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
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1. DEFINITIONS AND INTERPRETATION
1.1 The following words and expressions shall, unless otherwise specified in
this Agreement, have the following meanings:
"ACTION" means any action, suit, proceeding or arbitration commenced,
brought, conducted or heard by or before any Governmental Authority.
"AFFILIATE" means in relation to any person, (a) any other person
directly or indirectly Controlling or Controlled by or under common
Control with, such person; or (b) any (i) director, officer, former
director or officer, trustee or beneficiary of such person, (ii) spouse,
parent, sibling or descendant of any person described in (i), and (iii)
any trust (or its equivalent under any applicable Law) for the benefit
of any person described in (i) or (ii).
"AGREEMENT" has the meaning set out in the preamble to this Agreement.
"ASSIGNMENT AGREEMENT" means the Assignment Agreement in the form of
Schedule 3, to be entered into by the Seller and the Purchaser in
respect of the assignment by the Seller to the Purchaser of the CAIH
Note, the Master Agreement and the Registration Agreement.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or any
other day on which banks are required or authorized by law to be closed
in the City of New York, New York or London, England.
"CAIH NOTE" has the meaning set out in Recital (C).
"CAIH NOTE CONSIDERATION" means the aggregate amount of unpaid principal
and accrued and unpaid interest outstanding under the CAIH Note on the
Closing Date.
"CAP-D" means Central Asian Petroleum Inc., a corporation organized
under the laws of the State of Delaware.
"CAP-G" means Central Asian Petroleum (Guernsey) Limited, a company
organized under the laws of Guernsey.
"CLAIM" means a claim by a Party for indemnification pursuant to Clause
9.1 or 9.2 for breach or alleged breach of any of the representations
and warranties made by the Purchaser, the Warranties made by the Seller,
and the covenants, agreements and undertakings of the other Party
contained in this Agreement.
"CLOSING" means the purchase of and payment for the Sale Shares and the
assignment of the Warrant, the CAIH Note, the Master Agreement and the
Registration Agreement in accordance with Clause 2, Clause 3 and Clause
5.
"CLOSING DATE" means the date on which Closing occurs.
"COMPANY" has the meaning set out in Recital (A).
"CONFIDENTIALITY AGREEMENT" has the meaning set out in Clause 6.3.
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"CONTROL" means the right to control or cast a majority of the voting
rights exercisable at a shareholders meeting (or its equivalent) of the
person concerned; or the right to appoint or remove directors having a
majority of the voting rights exercisable at meetings of the board of
directors and/or any supervisory board of the person concerned (or its
equivalent); or the possession directly or indirectly of the ability or
power to direct or procure the direction of the management and policies
of such person, whether through the ownership of shares, by contract or
otherwise; and the terms "CONTROLLED" and "CONTROLLING" shall be
construed accordingly.
"CRI SUBSIDIARIES" means Chaparral Acquisition Corp., CAP-D, CAP-G, KKM,
KMTI and Road Runner Service Company, Inc.
"DAMAGES" means demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, judgments, settlements, costs
and expenses (including, without limitation, reasonable attorneys' fees,
disbursements and other expenses of litigation or other similar
proceedings or of any claim, default or assessment).
"EDP AGREEMENT" means (a) the Agreement for Exploration, Development and
Production of Oil in Karakuduk Oil Field in Mangistau Oblast of the
Republic of Kazakhstan, dated August 30, 1995, between the Ministry of
Oil and Gas Industries of the Republic of Kazakhstan (for and on behalf
of the Government of the Republic of Kazakhstan) and KKM; and (b) the
Addendum No. 4, dated December 11, 2002, to the agreement described in
clause (a).
"ENCUMBRANCE" means any charge or claim, community property interest,
condition, equitable interest, assessment, xxxx, xxxx (statutory or
otherwise), encumbrance, option, proxy, pledge, security interest,
mortgage, right of first refusal, preemptive right, right of first
offer, retention of title agreement, defect of title or restriction of
any kind or nature, including any restriction on use, voting, transfer,
receipt of income or exercise of any other attribute of ownership.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended.
"GOVERNMENTAL AUTHORITY" means any national, supra-national, regional,
local or other governmental body, agency, instrumentality, commission,
department, court, arbitral tribunal, ministry, regulatory,
self-regulatory or similar authority or organisation, including those of
the United States of America, the Republic of Kazakhstan and the State
of Delaware.
"GROUP" means the Company and the CRI Subsidiaries.
"GUARANTEE" means the Guarantee Agreement entered into by Xxxxxx and the
Seller on the date hereof.
"INDEMNIFIED PARTY" has the meaning set out in Clause 10.5(a).
"INDEMNIFYING PARTY" has the meaning set out in Clause 10.5(a).
"KKM" means Closed Joint Stock Company Karakudukmunai, a closed joint
stock company organized under the laws of Kazakhstan.
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"KKM CREDIT FACILITY" means the Agreement for Establishing a Credit
Line, dated May 6, 2002, between KKM and Kazkommertsbank OJSC, as
amended.
"KMTI" means Korporatsiya Mangistau Terra International, a company
organized under the laws of the Republic of Kazakhstan.
"LAW" means any applicable law, statute, rule, regulation, ordinance,
code, order, decree, judgment or ruling of any jurisdiction, including
the United States of America, the Republic of Kazakhstan and the State
of Delaware, or any political subdivision of any of the foregoing.
"LICENSES" means (a) the EDP Agreement; (b) the License for the Right to
Use the Subsurface in the Republic of Kazakhstan, dated June 28, 1995,
issued by the Government of the Republic of Kazakhstan to KKM (the
"SUBSURFACE LICENSE"); (c) the Amendment, dated September 11, 1997, to
the Subsurface License; (d) the Amendment, dated December 31, 1998, to
the Subsurface License; and (e) the Letter dated July 28, 1999 from the
Agency of the Republic of Kazakhstan on Investments addressed to CAP-G.
"MASTER AGREEMENT" has the meaning set out in Recital (D).
"MATERIAL ADVERSE EFFECT" means (x) any change in, or effect on, the
Company or any of the CRI Subsidiaries which individually or in the
aggregate is, or which is reasonably likely to be, materially adverse to
the business or financial condition of the Company and the CRI
Subsidiaries, taken as a whole or (y) any event that prohibits the
consummation of the transactions contemplated hereby.
"XXXXXX" means Xxxxxx Resources Limited, a company organized under the
laws of Bermuda.
"XXXXXX NOTE" means the Note in the form of Schedule 4, duly executed
and delivered by Xxxxxx to the Seller on the Closing Date.
"PARTY" and "PARTIES" have the meaning set out in the preamble to this
Agreement.
"PERMITTED CLAIM" has the meaning set out in Clause 10.3(a).
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security Agreement
in the form of Schedule 5, entered into between the Purchaser and the
Seller on the Closing Date to secure Xxxxxx'x obligations under the
Xxxxxx Note.
"PURCHASE PRICE" means the aggregate amount of (a) US$19,850,000.00
(Nineteen Million Eight Hundred Fifty Thousand US Dollars) and (b) the
CAIH Note Consideration.
"PURCHASER" has the meaning set out in the preamble to this Agreement.
"PURCHASER INDEMNIFIED PARTIES" means the Purchaser and, upon Closing,
the Company and the CRI Subsidiaries, and any of their respective
Affiliates, and "PURCHASER INDEMNIFIED PARTY" means any one of them.
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"REGISTRATION AGREEMENT" means the Registration Agreement dated May 10,
2002 between the Seller and the Company.
"RULES" has the meaning set out in Clause 14.12(b)(i).
"SALE SHARES" has the meaning set out in Recital (B).
"SEC" means the United States Securities and Exchange Commission.
"SEC FILINGS" has the meaning set out in Clause 7.1(f).
"SECURITIES" has the meaning set out in Clause 7.3(d).
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended.
"SELLER" has the meaning set out in the preamble to this Agreement.
"SELLER INDEMNIFIED PARTIES" means the Seller and its Affiliates (other
than any member of the Group), and "SELLER INDEMNIFIED PARTY" means any
one of them.
"SELLER'S COUNSEL" means White & Case, with offices at 0-00 Xxxxxxxx,
Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx.
"SELLER'S GROUP" means the Seller and any Subsidiary of the Seller
(other than any member of the Group).
"SUBSIDIARY" means, with respect to any person, (a) any company more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such company (irrespective of whether or not at the time stock of any
class or classes of such company shall have or might have voting power
by reason of the happening of any contingency) is owned by such person
directly or indirectly through one or more Subsidiaries of such person
and (b) any partnership, association, joint venture or other entity in
which such person directly or indirectly through one or more
Subsidiaries of such person has more than a 50% equity interest.
"TAX AUTHORITY" means any taxing or other authority in the Republic of
Kazakhstan, Guernsey, the United States of America or any other
jurisdiction competent to impose a liability for Taxes on the Purchaser,
the Seller or any member of the Group.
"TAXES" or "TAXATION" means any federal, regional, local, municipal or
other taxes, assessments, charges, duties, fees, levies or other
charges, including, without limitation, all income, franchise, profits,
gross receipts, capital gains, capital stock, transfer, sales, use,
value-added, occupation, property, excise, severance, windfall profits,
stamp, license, payroll, social security, withholding and other taxes,
assessments, charges, duties, fees, levies or other charges of any kind
whatsoever, all estimated taxes, deficiency assessments, additions to
tax, penalties and interest.
"TERMINATION DATE" means the date that is six (6) months after the date
of this Agreement, or such later date as the Seller and the Purchaser
may agree in writing.
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"TRANSACTION DOCUMENTS" means this Agreement, the Assignment Agreement,
the Guarantee, the Xxxxxx Note, the Pledge and Security Agreement and
the Warrant Assignment.
"TRANSFER AGENT" has the meaning set out in Schedule 1, paragraph 1(a).
"WARRANT" means the Stock Purchase Warrant dated as of May 10, 2002,
issued by the Company to the Seller, to purchase 3,076,923 shares of the
Company's common stock at $1.30 per share (subject to adjustment).
"WARRANT ASSIGNMENT" means the Warrant Assignment in the form of
Schedule 2, to be executed by the Seller in respect of the assignment by
the Seller to the Purchaser of the Warrant.
"WARRANTIES" means the Seller's representations and warranties contained
in Clause 7.1.
1.2 In this Agreement:
(a) any reference to a "PERSON" shall be construed as a reference to
any person, firm, company, corporation, limited liability
company, trust, unincorporated organization, government, state
or other department or agency of a state or any association,
joint venture or partnership (whether or not having separate
legal personality) of two or more of the foregoing;
(b) any reference to a statute or statutory provision shall include
any subordinate legislation made pursuant to such statute or
statutory provision and shall be construed as a reference to the
same as it may have been, or may from time to time be, amended,
modified or re-enacted, except to the extent that any amendment
or modification made after the date of this Agreement would
increase or otherwise adversely alter the liability of the
Seller under this Agreement;
(c) any reference to any agreement or document shall be construed as
a reference to that agreement or document, as the same may have
been, or may from time to time be, amended, restated, novated or
supplemented;
(d) any reference to any currency herein shall, unless otherwise
specified, be to US Dollars, and all payments required hereunder
shall be paid in US Dollars. In all cases where it is necessary
to determine the amount of a claim or whether a monetary limit
or threshold set out herein has been reached or exceeded and the
value of the relevant claim or claims or underlying value is
expressed in a currency other than US Dollars, the value of each
such claim or underlying value shall be converted into US
Dollars at the prevailing exchange rate applicable to that
amount of that non-US Dollar currency by reference to the
relevant spot exchange quoted on Bloomberg at 11:00 a.m. London
time on the Closing Date for all matters preceding such date,
and for all other purposes on the date that the amount of the
loss giving rise to such claim can be readily ascertained or, if
such day is not a Business Day, on the Business Day immediately
preceding such day;
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(e) any reference to a Clause or Schedule is a reference to a Clause
or Schedule of this Agreement, and all such Schedules shall be
incorporated by reference herein;
(f) the headings to the Clauses are for convenience only and shall
not affect the construction or interpretation of this Agreement;
(g) the terms "hereof", "hereto", "herein" and "hereunder" and
similar expressions shall mean and refer to this Agreement;
(h) the words "include" and "including" are to be construed without
limitation; and
(i) unless the context otherwise requires, words denoting the
singular shall include the plural and vice versa, and words
denoting any gender shall include all other genders.
2. SALE AND PURCHASE OF THE SHARES; ASSIGNMENT OF AGREEMENTS
2.1 Subject to and in accordance with the terms and conditions of this
Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, the Sale Shares, free and clear of
all Encumbrances (other than those that shall arise under the Pledge and
Security Agreement effective as of the Closing Date) and with all rights
attached or accruing to them, at the Closing.
2.2 The Purchaser shall not be required to complete the purchase of the Sale
Shares unless at Closing the sale of all, and not part only, of the Sale
Shares is completed.
2.3 At the Closing, the Seller shall assign to the Purchaser, and the
Purchaser shall accept the assignment of, the Warrant, the CAIH Note,
the Master Agreement and the Registration Agreement pursuant to the
Warrant Assignment and the Assignment Agreement.
3. CONSIDERATION
Subject to the terms and conditions hereof and of the other Transaction
Documents and in consideration of the sale, assignment and transfer to
the Purchaser by the Seller of the Sale Shares, the Warrant, the CAIH
Note, the Master Agreement and the Registration Agreement at Closing,
the Purchaser shall pay to the Seller the Purchase Price by delivery of
the Xxxxxx Note to the Seller at Closing.
4. CONDITIONS PRECEDENT
4.1 The obligation of the Purchaser to pay the Purchase Price is subject to
the fulfillment, at or before the Closing, of each of the following
conditions precedent, each of which may be waived (in whole or in part)
by the Purchaser in writing in its sole discretion:
(a) the Seller shall have performed and complied in all material
respects with all of its obligations under Clause 6;
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(b) the Warranties (other than the Warranty set forth in Clause
7.1(f)) shall be true and correct in all material respects on
and as of the date hereof and on and as of the Closing Date, and
the Warranty set forth in Clause 7.1(f) shall be true and
correct on and as of the date hereof and on and as of the
Closing Date, except where the failure of such Warranty to be so
true and correct, individually or in the aggregate, has not had
and is not reasonably likely to result in a Material Adverse
Effect;
(c) since the date of this Agreement, there shall not have occurred
any event with respect to the Company or any of the CRI
Subsidiaries which individually or in the aggregate is, or is
reasonably likely to be, materially adverse to the business,
financial condition, assets or results of operation of the
Company and the CRI Subsidiaries, taken as a whole, other than
changes or effects resulting from (i) changes in general
economic conditions or financial market conditions (including
currency rate fluctuations, interest rate changes and oil price
fluctuations), (ii) legal or regulatory changes affecting the
oil industry generally that do not specifically relate to the
Company or any of the CRI Subsidiaries or disproportionately
affect the Company or any of the CRI Subsidiaries or (iii) the
announcement of this Agreement or the consummation of the
transactions contemplated hereby;
(d) such exemption as is required in order for the transactions
contemplated by the Transaction Documents to be carried out
shall have been obtained from the Toronto Stock Exchange and
shall remain in effect;
(e) no statute, rule, regulation, executive order or decree shall
have been enacted, entered, promulgated or enforced by any
Governmental Authority (and there shall not be pending on the
Closing Date any such order or decree) which prohibits or
materially restricts any of the transactions contemplated by the
Transaction Documents; provided that any statute, rule,
regulation, executive order or decree of or brought by any
person at the instigation or request of, or supported by, the
Purchaser or any of its Affiliates, agents or representatives
shall be disregarded for the purposes of this Clause 4.1;
(f) no judgment, decision, injunction, writ, temporary restraining
order or any other order of any nature of any court, arbitration
tribunal or Governmental Authority having jurisdiction over the
Purchaser shall have been issued or be in effect against the
Purchaser which prohibits, alters or restrains in any material
respect any of the transactions contemplated by the Transaction
Documents; provided that, in the case of a judgment, decision,
injunction, writ, temporary restraining order or any other order
of any nature of any such court, arbitration tribunal or
Governmental Authority, the Purchaser shall have used reasonable
best efforts to prevent the entry of any such judgment or other
such order and to appeal as promptly as possible any judgment or
other such order that may be entered; provided further that any
judgment, decision, injunction, writ, temporary restraining
order or other order of or brought by any person at the
instigation or request of, or supported by, the Purchaser or any
of its Affiliates, agents or representatives shall be
disregarded for the purposes of this Clause 4.1;
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(g) a duly constituted special committee of the board of directors
of the Company shall have approved in advance of the execution
of this Agreement the acquisition of the Sale Shares and the
Warrant contemplated by this Agreement and the Warrant
Assignment, pursuant to Section 203 of the Delaware General
Corporation Law; and
(h) the Seller shall have delivered all documents, agreements,
certificates or other instruments and shall have taken all
actions required to be taken by the Seller for Closing as set
forth in Schedule 1.
4.2 The obligation of the Seller to sell and transfer to the Purchaser the
Sale Shares and assign the Warrant, the CAIH Note, the Master Agreement
and the Registration Agreement is subject to the fulfillment, at or
before the Closing, of each of the following conditions precedent, each
of which may be waived (in whole or in part) by the Seller in writing in
its sole discretion:
(a) the Purchaser shall have performed and complied in all material
respects with all of its obligations under Clause 6;
(b) the Purchaser's representations and warranties set forth in
Clause 7.3 shall be true and correct in all material respects on
and as of the date hereof and on and as of the Closing Date;
(c) such exemption as is required in order for the transactions
contemplated by the Transaction Documents to be carried out
shall have been obtained from the Toronto Stock Exchange and
shall remain in effect;
(d) no statute, rule, regulation, executive order or decree shall
have been enacted, entered, promulgated or enforced by any
Governmental Authority (and there shall not be pending on the
Closing Date any such order or decree) which prohibits or
materially restricts any of the transactions contemplated by the
Transaction Documents; provided that any statute, rule,
regulation, executive order or decree of or brought by any
person at the instigation or request of, or supported by, the
Seller or any of its Affiliates, agents or representatives shall
be disregarded for the purposes of this Clause 4.2;
(e) no judgment, decision, injunction, writ, temporary restraining
order or any other order of any nature of any court, arbitration
tribunal or Governmental Authority having jurisdiction over the
Seller shall have been issued or be in effect against the Seller
which prohibits, alters or restrains in any material respect any
of the transactions contemplated by the Transaction Documents;
provided that, in the case of a judgment, decision, injunction,
writ, temporary restraining order or any other order of any
nature of any such court, arbitration tribunal or Governmental
Authority, the Seller shall have used reasonable best efforts to
prevent the entry of any such judgment or other such order and
to appeal as promptly as possible any judgment or other such
order that may be entered; provided further that any judgment,
decision, injunction, writ, temporary restraining order or other
order of or brought by any person at the instigation or request
of, or supported by, the Seller or any of its Affiliates, agents
or representatives shall be disregarded for the purposes of this
Clause 4.2; and
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(f) the Purchaser shall have delivered all documents, agreements,
certificates or other instruments and shall have taken all
actions required to be taken by the Purchaser for Closing as set
forth in Schedule 1.
4.3 Each Party shall give prompt notice to the other Party of (a) the
occurrence of each event or action required as a condition set forth in
this Clause 4 which such Party is responsible for satisfying; and (b)
the occurrence of any event or action of which it becomes aware which
may reasonably be anticipated to result in the non-satisfaction of any
such condition prior to the Termination Date; provided, however, that no
notification under sub-clause (b) shall release any such Party from its
obligations hereunder or be deemed a waiver of any such condition.
5. CLOSING
5.1 The Closing shall take place at the offices of the Seller's Counsel at
10:00 a.m. (London time) on the third (3rd) Business Day following the
date on which the last of the conditions to Closing set forth in Clause
4 (and capable of satisfaction prior to Closing) have been satisfied or
waived (or at such other place and time as the Seller and the Purchaser
may agree).
5.2 At or prior to Closing, each of the Seller and the Purchaser shall take
or cause to be taken such actions listed in relation to each of them as
are set forth in Schedule 1.
6. ACTIONS BETWEEN SIGNING AND CLOSING
6.1 During the period between the date hereof until the Closing, the Seller
agrees not to vote the Sale Shares at a meeting of the shareholders of
the Company in a manner that would immediately or prospectively (a)
prevent or materially restrict the occurrence of the transactions
contemplated by this Agreement and the other Transaction Documents or
(b) result in a dilution of the percentage that the Sale Shares
represents to the entire issued and outstanding common stock of the
Company (without, for the avoidance of doubt, taking into consideration
any exercise of the Warrant).
6.2 During the period between the date hereof until the Closing, the Seller
shall, and shall use commercially reasonable efforts to cause the
Company to, make all such filings as are required under the Exchange Act
and the Securities Act and the rules and regulations promulgated
thereunder. The Purchaser shall make all such filings as are required
under the Exchange Act and the Securities Act and the rules and
regulations promulgated thereunder.
6.3 Information obtained by the Purchaser or its officers, employees,
consultants, agents or advisers from the Seller or its officers,
employees, consultants, agents, advisers or Affiliates between the date
hereof and the Closing Date shall be subject to the provisions of the
Confidentiality Agreement by and between Xxxxxx and the Seller dated
August 13, 2003 (the "CONFIDENTIALITY AGREEMENT").
6.4 As of the date hereof until Closing, the Parties shall consult with each
other before issuing any press release or otherwise making any public
statements with respect to the transactions contemplated by this
Agreement and shall not issue any such press release or make any such
public statement prior to such consultation and review by the other
Party, of such release or statement, or without the prior written
consent of
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the other Party, which shall not be unreasonably withheld; provided,
however, that a Party may, without the prior consent of the other Party,
issue such press release or make such public statement or filings as may
be required by Law or the regulations of any national securities
exchange or automated quotation system to which any member of the
Seller's Group, any member of the Group or the Purchaser is subject, as
applicable, if it has used all commercially reasonable efforts to
consult with the other Party and to obtain such Party's consent, but has
been unable to do so in a timely manner.
7. REPRESENTATIONS AND WARRANTIES
7.1 The Seller represents and warrants to the Purchaser, as of the date of
this Agreement and as of the Closing Date, that:
(a) The Seller is duly organized and validly existing under the laws
of The Netherlands Antilles, with the requisite corporate power
and authority to enter into and perform, and has taken all
necessary corporate action to authorize the execution and
performance of its obligations under, the Transaction Documents
and the transactions contemplated thereunder.
(b) Each Transaction Document will constitute, assuming the due
authorization, execution and delivery by the Purchaser or
Xxxxxx, as applicable, legal, valid and binding obligations of
the Seller, enforceable against the Seller in accordance with
its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent or
voidable transfers, reorganization, moratorium or other similar
Laws affecting creditors' rights generally and by general
equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(c) The execution and delivery by the Seller of the Transaction
Documents and the consummation by the Seller of the transactions
contemplated thereunder will not (i) violate any provision of
the certificate of incorporation or by-laws or other
constitutional documents of the Seller, the Company or any CRI
Subsidiary or by which their respective properties or assets may
be bound; (ii) violate any Law or order of any Governmental
Authority applicable to the Seller, the Company or any CRI
Subsidiary; (iii) except with respect to the filing by the
Seller, the Company or any CRI Subsidiary of any Form 8-Ks, Form
4s or any amendments to the Seller's Schedule 13D with the SEC,
as applicable to such persons, require the Seller, the Company
or any CRI Subsidiary to make or obtain any filing with, or
permit, consent or approval of, or give any notice to, any
Governmental Authority; or (iv) result in a violation or breach
of, conflict with, constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of
termination, cancellation, payment or acceleration) under any of
the terms, conditions or provisions of (A) any agreement or
other instrument or obligation to which the Seller is a party or
by which the properties or assets of the Seller are bound or (B)
any of the Licenses or the KKM Credit Facility, other than in
the case of those violations, conflicts or defaults in
sub-clauses (ii) through (iv) above which, individually or in
the aggregate, would not (x) prevent or materially delay the
consummation of the transactions contemplated by the Transaction
Documents; (y) prevent the Seller from performing in all
material respects its
11
obligations under the Transaction Documents or (z) have a
materially adverse effect on the Company and the CRI
Subsidiaries, taken as a whole.
(d) As of the date of this Agreement, the authorized capital stock
of the Company consists of (a) 100,000,000 shares of common
stock, par value $0.0001 per share, of which 38,209,502 shares
are issued and outstanding and (b) 1,000,000 shares of preferred
stock, no par value per share, of which 75,000 shares are
designated Series A preferred stock and of which no shares are
issued and outstanding. No shares of capital stock are held in
the treasury of the Company.
(e) The Sale Shares have been duly authorized and validly issued and
are fully paid and nonassessable. The Seller is the lawful
owner, beneficially and of record, of the Sale Shares, free and
clear of any Encumbrances (other than those that shall arise
under the Pledge and Security Agreement effective as of the
Closing Date).
(f) To the Seller's knowledge, since May 9, 2002 and as of the date
of this Agreement, the Company has filed all forms, reports,
schedules, prospectuses, statements, registration statements and
documents with the SEC required to be filed by it pursuant to
the Securities Act or the Exchange Act (all such forms, reports,
schedules, prospectuses, statements, registration statements and
documents since May 9, 2002 being referred to collectively
herein as the "SEC FILINGS"). To the Seller's knowledge, the SEC
Filings (a) complied in all material respects with all
applicable requirements of the Securities Act or the Exchange
Act, as the case may be, and the SEC rules and regulations
promulgated thereunder; and (b) did not at the time they were
filed contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(g) There are no Actions pending or, to the knowledge of the Seller,
threatened against, the Seller or any of its assets and
properties which will result in, or would reasonably be expected
to result in, the issuance of an order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any
of the transactions contemplated by the Transaction Documents.
(h) The Seller has not assigned or transferred any of its rights
under the Warrant, the CAIH Note, the Master Agreement and the
Registration Agreement, and has the full right, subject only to
the terms of each such agreement or instrument, to transfer each
such agreement or instrument free of any and all Encumbrances
(other than those that shall arise under the Pledge and Security
Agreement effective as of the Closing Date). As of the Closing
Date, the Seller will have complied with the terms of the
Warrant, the CAIH Note, the Master Agreement and the
Registration Agreement with respect to the transfer and
assignment of each such agreement or instrument.
(i) Except as disclosed in the Company's filing with the SEC on Form
10-K for the fiscal year ended December 31, 2003, the Company's
filing with the SEC on Form 10-Q for the fiscal quarter ended
March 31, 2004, and except for the announcement, the execution
and delivery of the Transaction Documents and
12
the consummation of the transactions contemplated thereby, since
December 31, 2003 there has not occurred any event with respect
to the Company or any of the CRI Subsidiaries which individually
or in the aggregate is, or is reasonably likely to be,
materially adverse to the business, financial condition, assets
or results of operation of the Company and the CRI Subsidiaries,
taken as a whole, other than changes or effects resulting from
(i) changes in general economic conditions or financial market
conditions (including currency rate fluctuations, interest rate
changes and oil price fluctuations), or (ii) legal or regulatory
changes affecting the oil industry generally that do not
specifically relate to the Company or any of the CRI
Subsidiaries or disproportionately affect the Company or any of
the CRI Subsidiaries.
(j) No banker, broker, finder or other intermediary has been
retained to act on behalf of the Seller who is, or will be,
entitled to any fee or commission in connection with the
transactions contemplated by this Agreement.
7.2 Each Warranty is to be construed independently and (except where this
Agreement provides otherwise) is not limited by reference to or
inference from the terms of any other Warranty.
7.3 The Purchaser represents and warrants to the Seller, as of the date of
this Agreement and as of the Closing Date, that:
(a) The Purchaser is a corporation duly organized and validly
existing under the laws of the State of Delaware, with the
requisite corporate power and authority to enter into and
perform, and has taken all necessary corporate action to
authorize the execution and performance of its obligations
under, the Transaction Documents and the transactions
contemplated thereunder.
(b) Each Transaction Document to which the Purchaser is a party will
constitute, assuming the due authorization, execution and
delivery by the Seller, legal, valid and binding obligations of
the Purchaser, enforceable against the Purchaser in accordance
with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent
or voidable transfers, reorganization, moratorium or other
similar Laws affecting creditors' rights generally and by
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(c) The execution and delivery by the Purchaser of the Transaction
Documents to which it is a party and the consummation by the
Purchaser of the transactions contemplated thereunder will not
(i) violate any provision of the certificate of incorporation or
by-laws of the Purchaser; (ii) violate any Law or order of any
Governmental Authority applicable to the Purchaser or by which
its properties or assets may be bound; (iii) except with respect
to the filing by the Purchaser and Xxxxxx of a Schedule 13D and
Form 3s with the SEC, require the Purchaser to make or obtain
any filing with, or permit, consent or approval of, or give any
notice to, any Governmental Authority; or (iv) result in a
violation or breach of, conflict with, constitute (with or
without due notice or lapse of time or both) a default (or give
rise to any right of termination, cancellation, payment or
acceleration) under any of the terms, conditions or provisions
of
13
any agreement or other instrument or obligation to which the
Purchaser is a party or by which the Purchaser or its properties
or assets are bound.
(d) The Purchaser is acquiring the Sale Shares and the Warrant for
its own account for investment purposes only and not with a view
to, or for sale or resale in connection with, any public
distribution thereof or with any present intention of selling,
distributing or otherwise disposing of the Sale Shares, the
Warrant or the shares of common stock issuable upon the exercise
of the Warrant (collectively, the "SECURITIES"), except in
compliance with the Securities Act and all other applicable
securities Laws.
(e) The Purchaser understands that the Securities will be
characterised as "restricted securities" under the Securities
Act inasmuch as they will be acquired from the Seller in a
transaction not involving a public offering and that under the
Securities Act and applicable regulations thereunder such
securities may be resold without registration under the
Securities Act only in certain limited circumstances. In this
connection, the Purchaser represents that it is familiar with
Rule 144 of the SEC, as presently in effect, and understands the
resale limitations imposed thereby and by the Securities Act.
(f) There are no Actions pending or, to the knowledge of the
Purchaser, threatened against, the Purchaser or any of its
assets and properties which will result in, or would reasonably
be expected to result in, the issuance of an order restraining,
enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by the
Transaction Documents.
(g) All negotiations relating to the Transaction Documents and the
transactions contemplated thereby have been carried out by the
Purchaser directly with the Seller without the intervention of
any person on behalf of the Purchaser in such manner as to give
rise to any valid claim by any person against the Seller for any
finder's fee, brokerage commission or similar payment.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All Warranties of the Seller and all representations and warranties of
the Purchaser contained in this Agreement shall survive the Closing and
remain in effect until the date twelve (12) months from the date hereof,
provided that the Seller's Warranty contained in the second sentence of
Clause 7.1(e) shall survive indefinitely and provided further that any
such Warranty, representation, warranty or provision that would
otherwise terminate will continue to survive if a written Claim shall
have been made under Clause 9 on or prior to such termination date,
until such Claim has been satisfied or otherwise resolved.
9. INDEMNIFICATION
9.1 From and after Closing, and subject to Clauses 8 and 10, the Seller
shall indemnify, defend and hold harmless the Purchaser Indemnified
Parties from and against all Damages suffered or incurred by or imposed
upon any Purchaser Indemnified Party which shall arise out of or result
from:
14
(a) the breach of any of the Warranties; or
(b) the breach of any of the covenants, agreements and undertakings
of the Seller contained in this Agreement.
9.2 From and after Closing, and subject to Clauses 8 and 10, the Purchaser
shall indemnify, defend and hold harmless the Seller Indemnified Parties
from and against all Damages suffered or incurred by or imposed upon any
Seller Indemnified Party which shall arise out of or result from:
(a) the breach of any of the representations and warranties made by
the Purchaser contained in this Agreement; or
(b) the breach of any of the covenants, agreements and undertakings
of the Purchaser contained in this Agreement.
10. LIMITATIONS ON LIABILITY
10.1 The Purchaser acknowledges and agrees with the Seller (for itself and
for the benefit of the Seller and its Affiliates and each of their
respective directors, officers, employers, agents and advisers) that the
Warranties are the only representations and warranties given by or on
behalf of the Seller and on which the Purchaser may rely in entering
into and performing this Agreement and that none of the Seller, any of
its Affiliates (including any member of the Group) or any of their
respective directors, officers, employees, agents or advisers are giving
any other representations or warranties of any kind nor may any other
representations or warranties made by or on behalf of the Seller, any of
its Affiliates (including any member of the Group) or any of their
respective directors, officers, employees, agents or advisers be relied
on, or form the basis of, or be pleaded in connection with, any claim by
the Purchaser or any of its Affiliates under or in connection with this
Agreement.
10.2 The Seller acknowledges and agrees with the Purchaser (for itself and
for the benefit of the Purchaser and its Affiliates and each of their
respective directors, officers, employers, agents and advisers) that the
representations and warranties in Clause 7.3 are the only
representations and warranties given by or on behalf of the Purchaser
and on which the Seller may rely in entering into and performing this
Agreement and that none of the Purchaser, any of its Affiliates or any
of their respective directors, officers, employees, agents or advisers
are giving any other representations or warranties of any kind nor may
any other representations or warranties made by or on behalf of the
Purchaser, any of its Affiliates or any of their respective directors,
officers, employees, agents or advisers be relied on, or form the basis
of, or be pleaded in connection with, any claim by the Seller or any of
its Affiliates under or in connection with this Agreement.
10.3 The liability of a Party for any Claim shall be limited as follows:
(a) no Party shall be liable for indemnification in respect of any
Claim unless the amount of the Damages to which the claimant
Party would otherwise be entitled exceeds US$100,000 (or its
equivalent in another currency) (a "PERMITTED CLAIM");
15
(b) no Party shall be entitled to recover any Damages in respect of
any Claim unless and until the amount of Damages in respect of
Permitted Claims under this Agreement exceeds in the aggregate
the sum of US$500,000 (or its equivalent in another currency),
in which event the entire amount of such Claims shall be
recoverable; and
(c) the maximum aggregate liability of a Party in respect of all and
any Claims under this Agreement shall not exceed an amount equal
to the Purchase Price (or its equivalent in another currency).
10.4 No Party shall be entitled to make any Claim (and the other Party shall
have no liability for any Claim hereunder):
(a) to the extent that such Claim would not have arisen but for a
change in any Law or a change in the interpretation of any Law
announced or enacted on or after Closing (whether relating to
Taxes, rates of Taxation or otherwise) or the withdrawal after
Closing of any practice or extra-statutory concession previously
published by a Tax Authority (whether or not the change purports
to be effective retrospectively in whole or in part);
(b) unless such Claim is made in good faith and unless written
particulars of such Claim (giving such details of the specific
matter in respect of which such claim is made as are then in the
possession the claimant Party) shall have been given to such
Party pursuant to Clause 12 and Clause 10.5(a) within the
survival period specified in Clause 8, if applicable;
(c) for any exemplary, punitive, special, indirect, remote,
speculative or consequential damages, including loss of
anticipated profits, damages to reputation and goodwill and loss
of expected future business;
(d) to the extent that such Claim is attributable to any act or
omission of such Party or any of its Affiliates after Closing;
or
(e) to the extent that such Claim is actually recovered under any
policy of insurance;
provided further that:
(i) no Party shall be entitled to be paid more than once in
respect of any Claim arising out of the same subject
matter; and
(ii) if any potential Claim shall arise by reason of a
liability of a Party which is contingent only, then such
Party shall have no obligation to make any payment in
respect of such Claim until such time as the contingent
liability ceases to be contingent and becomes actual
(subject to Clause 8 and the other provisions of this
Clause 10).
10.5 (a) If any Party (an "INDEMNIFIED PARTY") becomes aware of a matter
which could give rise to a Claim, the Indemnified Party shall
give written notice of the relevant facts to the other Party
(the "INDEMNIFYING PARTY") as soon as reasonably practicable and
in any event with ten (10) Business Days of any Indemnified
Party becoming aware of those facts. Subject to Clause 10.4(b),
16
failure of an Indemnified Party to give such notice promptly
shall not relieve the Indemnifying Party of its obligation
hereunder; provided, however, that if such failure to give
notice promptly adversely affects the ability of the
Indemnifying Party to defend such claims or materially increases
the amount of indemnification which the Indemnifying Party is
obligated to pay hereunder, the amount of indemnification to
which the Indemnified Party will be entitled to receive shall be
reduced to an amount which the Indemnified Party would have been
entitled to receive had such notice been timely given.
(b) Unless the Indemnifying Party shall notify the Indemnified Party
that the Indemnifying Party elects to assume the defense of an
Action that is the subject of a Claim made by the Indemnified
Party or the settlement thereof (such notice to be given as
promptly as reasonably possible in view of the necessity to
arrange for such defense and to be accompanied by an
acknowledgment of the Indemnifying Party's obligation to
indemnify the Indemnified Party in respect of such matter), the
Indemnified Party shall assume the defense of any such Action or
settlement thereof. Such defense shall be conducted
expeditiously (but with due regard for obtaining the most
favorable outcome reasonably likely under the circumstances,
taking into account costs and expenditures) and the Indemnifying
Party or Indemnified Party, as the case may be, shall be advised
promptly of all developments.
(c) If the Indemnifying Party assumes the defense, the Indemnified
Party will have the right to participate fully in any such
Action and to retain its own counsel, but the fees and expenses
of such counsel will be at its own expense unless (i) the
Indemnifying Party shall have agreed to the retention of such
counsel or (ii) the named parties to any such Action (including
any impleaded parties) include both the Indemnifying Party and
the Indemnified Party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. If the Indemnifying Party
assumes the defense (and without regard to whether or not the
Indemnified Party participates in such Action), the Indemnifying
Party shall have the right to settle such Action in its sole
discretion, to the extent that the remedy is only monetary but,
to the extent that the remedy is non-monetary, shall not settle
such Action without the prior written consent of the Indemnified
Party, which consent shall not be unreasonably withheld or
delayed.
(d) Notwithstanding the foregoing, the Indemnifying Party shall not
be entitled to assume the defense of any part of such Action
(and shall be liable for the fees and expenses of counsel
incurred by the Indemnified Party in defending such matter) to
the extent that the Action seeks an order, injunction or other
equitable relief or relief for other than money damages against
the Indemnified Party subject to the same requirements referred
to above for the Indemnifying Party when it is entitled to
assume such defense; provided that the Indemnified Party shall
not have the right to settle such matter without the prior
written consent of the Indemnifying Party, which consent shall
not be unreasonably withheld or delayed. The Indemnifying Party
and the Indemnified Party shall each cause their respective
counsel to cooperate in the above defense.
17
10.6 After the Closing, the indemnification provided in Clause 9 and this
Clause 10 shall be the exclusive remedy for breach of this Agreement,
and each Party hereby expressly waives any other remedy whatsoever to
which it might otherwise be entitled as against the other Party.
11. TERMINATION
11.1 Notwithstanding anything contained in this Agreement to the contrary,
the Parties may terminate this Agreement as follows:
(a) prior to Closing, the Purchaser and the Seller may terminate
this Agreement by mutual written agreement as of the date
provided for therein;
(b) either the Purchaser or the Seller may terminate this Agreement
upon written notice to the other if Closing shall not have
occurred on or before the Termination Date; provided that the
right to terminate this Agreement pursuant to this Clause
11.1(b) shall not be available:
(i) to the Purchaser, if all remaining unfulfilled or
unwaived conditions precedent set forth in Clause 4.1
are fulfilled or waived prior to the Termination Date;
or
(ii) to the Seller, if all remaining unfulfilled or unwaived
conditions precedent set forth in Clause 4.2 are
fulfilled or waived prior to the Termination Date; or
(iii) to either the Purchaser or the Seller, if its or its
Affiliates' failure to fulfill any of its obligations
under this Agreement has been the cause of or resulted
in the failure of Closing to occur on or before the
Termination Date;
(c) prior to Closing, the Seller may terminate this Agreement if the
Purchaser shall breach this Agreement in any material respect
and, if such breach is capable of being cured, shall fail to
cure such breach within thirty (30) days after written notice
thereof, with effect as from the date of delivery of such notice
to the Purchaser; or
(d) prior to Closing, the Purchaser may terminate this Agreement if
the Seller shall breach this Agreement in any material respect
and, if such breach is capable of being cured, shall fail to
cure such breach within thirty (30) days after written notice
thereof, with effect as from the date of delivery of such notice
to the Seller.
11.2 If this Agreement is terminated pursuant to Clause 11.1, all rights and
obligations of the Parties hereunder shall terminate without any
liability of one Party to the other Party, except that (a) nothing shall
relieve either Party of any liability for any breach of this Agreement
that occurred prior to the termination of this Agreement, and (b) the
provisions of this Clause 11 and Clauses 8, 9, 10 (to the extent
applicable), 12 and 14 shall survive any termination of this Agreement.
For the avoidance of doubt, notwithstanding any termination of this
Agreement, the Confidentiality Agreement shall remain in full force and
effect for the duration of its term.
18
12. NOTICES
12.1 Any notice, demand, request, statement, certificate, waiver or other
communication given, delivered or made by one Party to another under or
in connection with this Agreement shall be in English or accompanied by
a certified English translation, and any such English translation shall
prevail unless the document is a statutory or other official document.
The receiving Party shall be entitled to assume the accuracy of, and to
rely upon, any such English translation so provided.
12.2 All notices, demands, requests, statements, certificates, waivers and
other communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly
given if delivered in person or mailed, certified or registered mail
with postage prepaid, or sent by facsimile (upon confirmation of
receipt), as follows:
(a) if to the Seller, to it at:
Central Asian Industrial Holdings N.V.
x/x 0xx Xxxxx, Xxxxxxxxx House
0-0 Xxxxxxxxx Xxxxxx
Xxxxxx X0 0XX
Xxxxxx Xxxxxxx
Attention: Xxx Xxxxxx
Fax: +44-20-7494 6070
with a copy (which shall not constitute notice) to:
White & Case
0-00 Xxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxx Xxxxxx
Fax: +44-20-7600 7030
(a) if to the Purchaser, to it at:
NRL Acquisition Corp.
c/o Commonwealth and British Services Limited
0xx Xxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
Attention: R. Xxxxxxxxx Xxxxxx
Fax: +44-20-7495 8908
with a copy (which shall not constitute notice) to:
19
Coudert Brothers LLP
00 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxx X'Xxxxxxxx
Fax: x00 00 0000 0000
or to such other person or address as either Party shall specify
by notice in writing to the other Party. All such notices,
demands, requests, statements, certificates, waivers and
communications shall be deemed to have been received upon
receipt thereof.
13. FURTHER ASSURANCES
Subject to the terms and conditions of this Agreement, each Party shall
use its reasonable best efforts to cause the Closing to occur. Without
further consideration, within a reasonable period of time after the
Closing, as and when requested by any Party, each Party shall execute
and deliver, or cause to be executed and delivered, to the other Party
all such documents and instruments, and shall take, or cause to be
taken, all such other actions, as the first Party may reasonably deem
necessary or desirable to evidence the consummation of the transactions
contemplated by this Agreement and carry out any post-closing matters
provided for hereunder.
14. GENERAL
14.1 None of the rights or obligations under this Agreement may be assigned
or transferred by a Party without the prior written consent of the other
Party, except for an assignment or transfer to an Affiliate of a Party,
in which case the other Party shall not unreasonably withhold or delay
such consent. For the avoidance of doubt, the Xxxxxx Note and the Pledge
and Security Agreement can only be assigned pursuant to the terms
thereof.
14.2 Except as otherwise stated herein, each Party shall pay all costs,
expenses and Taxes (subject to the provisions in the second sentence of
this Clause 14.2) incurred by it in connection with the entering into of
the Transaction Documents and the transactions contemplated thereby. All
stamp, transfer, documentary, sales and use, value added, registration
and other such taxes and fees (including any penalties and interest)
(but excluding, for the avoidance of doubt, any income or capital gains
taxes) incurred in connection with the transactions contemplated by the
Transaction Documents shall be borne by the Purchaser if the Purchaser
is the person subject to such tax or fee under applicable Law.
14.3 This Agreement may be executed in any number of counterparts, and any
Party may enter into this Agreement by executing a counterpart, but this
Agreement shall not be effective until each Party has executed at least
one counterpart. Each counterpart shall constitute an original of this
Agreement but all counterparts taken together shall constitute one and
the same instrument.
14.4 The Purchaser agrees to provide the Seller, any member of the Seller's
Group and their respective advisers on not less than two (2) Business
Days' notice and during normal business hours with full and free access
(including the right to take copies) to
20
the books of accounts and other financial records of the Group (subject
to the Seller keeping such books and records confidential) which relate
to the period up to and including the Closing Date as the Seller or a
member of the Seller's Group may reasonably request from time to time
for the purpose of preparing its statutory accounts or any computation
or return relating to Tax or as may be required by any Tax Authority.
The Purchaser further agrees for the same purposes to give the Seller
and any member of the Seller's Group reasonable access to its employees
(including the employees of the Company and the CRI Subsidiaries) and to
respond to reasonable requests from the Seller or any member of the
Seller's Group for information.
14.5 (a) Except as otherwise provided in this Agreement, no delay or
omission by any Party in exercising any right, power or remedy
provided by applicable Law or under this Agreement shall affect
that right, power or remedy or operate as a waiver of it.
(b) The single or partial exercise of any right, power or remedy
provided by applicable Law or under this Agreement shall not
preclude any other or further exercise of it or, except as
otherwise provided in this Agreement, the exercise of any other
right, power or remedy.
(c) No waiver of any right, power or remedy provided by applicable
Law or under this Agreement shall take effect unless it is in
writing and signed by authorized representatives of the Party
giving the waiver.
14.6 This Agreement shall be binding upon and shall inure to the benefit of
the Parties and their respective successors and permitted assigns.
14.7 Nothing in this Agreement will be construed as giving any person, other
than the Parties hereto and, as provided in Clause 9.1 and Clause 9.2,
the Purchaser Indemnified Parties and the Seller Indemnified Parties,
their respective successors and permitted assigns, any right, remedy or
claim under or in respect of this Agreement or any provision hereof.
14.8 This Agreement may not be amended or modified unless it is in writing
executed by each of the Parties hereto.
14.9 If any term, provision, covenant or restriction contained in this
Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and
restrictions contained in this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and
this Agreement shall be construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable term, provision, covenant or
restriction or any portion thereof had never been contained herein.
14.10 Nothing in this Agreement and no action taken by either of the Parties
hereunder shall be deemed to constitute a partnership, association or
other co-operative entity between the Parties or constitute either Party
as the agent of the other Party for any purpose or entitle either Party
to commit or bind the other Party in any manner.
21
14.11 Each Party acknowledges and agrees with the other Party that this
Agreement and the other Transaction Documents constitute the entire and
only agreement between the Parties relating to the subject matter hereof
and thereof.
14.12 (a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, United States of
America, without giving effect to any conflicts of laws
principles thereof which would result in the application of the
laws of another jurisdiction.
(b) (i) Any dispute, controversy or claim (whether in contract,
tort or otherwise) arising out of or relating to this
Agreement, or the breach, termination or invalidity
hereof, shall be finally and exclusively settled by
arbitration by three arbitrators in London under the
UNCITRAL Arbitration Rules then in force (the "RULES").
Each Party shall appoint one arbitrator in accordance
with the Rules, and the two arbitrators so appointed
shall appoint the third (and presiding) arbitrator in
accordance with the Rules within thirty (30) days from
the date of appointment of the second arbitrator. In the
event of an inability to agree on a third arbitrator,
the appointing authority shall be the London Court of
International Arbitration, acting in accordance with
such rules as it may adopt for this purpose. The
language of the arbitration shall be English.
(ii) In the event of any conflict between the Rules and the
provisions of this Agreement, the provisions of this
Agreement shall prevail.
(iii) The arbitrators shall have the power to grant any remedy
or relief that they deem just and equitable and that is
in accordance with the terms of this Agreement,
including specific performance, and including, but not
limited to, injunctive relief, whether interim or final,
and any such relief and any interim, provisional or
conservatory measure ordered by the arbitrators may be
specifically enforced by any court of competent
jurisdiction.
(iv) The award of the arbitrators shall be final and binding
on the Parties.
(v) The award of the arbitrators may be enforced by any
court of competent jurisdiction and may be executed
against the person and assets of the losing Party in any
competent jurisdiction.
(c) Except for arbitration proceedings pursuant to Clause 14.12(b),
no action, lawsuit or other proceeding (other than in connection
with the enforcement of an arbitration decision or an action to
compel arbitration) shall be brought by or between the Parties
in connection with any matter arising out of or in connection
with this Agreement.
(d) Each Party hereby represents and acknowledges that it is acting
solely in its commercial capacity in executing and delivering
this Agreement and each of the other Transaction Documents and
in performing its obligations hereunder and thereunder, and each
Party hereby irrevocably waives with respect to all disputes,
claims, controversies and all other matters of any nature
whatsoever that may arise under or in connection with this
Agreement or any of the other
22
Transaction Documents and any other document or instrument
contemplated hereby or thereby, all immunity it may otherwise
have as a sovereign, quasi-sovereign or state-owned entity (or
similar entity) from any and all proceedings (whether legal,
equitable, arbitral, administrative or otherwise), attachment of
assets, and enforceability of judicial or arbitral awards.
23
IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized
representatives of the Parties as of the date first written above.
Seller
------
CENTRAL ASIAN INDUSTRIAL HOLDINGS N.V.
By /s/ Askar Alshinbaev
--------------------------------------
Askar Alshinbaev
Managing Director
Purchaser
---------
NRL ACQUISITION CORP.
By /s/ R. Xxxxxxxxx Xxxxxx
--------------------------------------
R. Xxxxxxxxx Xxxxxx
President
24
