1
Exhibit 10(29)
SHARE EXCHANGE AGREEMENT
This Share Exchange Agreement (the " Agreement"] is entered into and
effective as of November l0th, 2000 by and between Georgian British Oil Services
Company, registered address: 00 Xxxxxxx Xxx., Xxxxxxx 000000, Xxxxxxx, a
Georgian corporation ["GBOSC"], CanArgo Energy Corporation, a Delaware
corporation ["CanArgo"].
RECITALS
A. GBOSC is the owner of an undivided 28.75% interest in and to Georgian
American Oil Refinery Company Ltd., a corporation formed and operated
under the laws of the Republic of Georgia ["GAOR"]. Pursuant to the
Foundation Agreement and Charter of GAOR. GBOSC is entitled to receive
shares of stock in GAOR as evidence of its ownership interest in GAOR.
However, to date, GAOR has not issued or delivered such shares to
GBOSC. Nor has GAOR issued or delivered shares of its stock to its
other owners. GBOSC's ownership interest in GAOR, and its right to
receive shares of GAOR stock as evidence of such ownership interest are
referred to collectively below as the "Interest".
B. GBOSC desires to transfer the Interest to CanArgo.(or to CanArgo's
nominee), and CanArgo desires to acquire the Interest from GBOSC,
solely in exchange for shares of the common stock of CanArgo [the
'CanArgo Common Stock']
C. The transfer of the Interest from GBOSC to CanArgo is subject to the
other owners of GAOR consenting to such transfer, which shall be
considered a condition precedent to the execution of this Agreement. A
copy of the consent to such transfer has been exhibited to GBOSC and
CanArgo.
PROVISIONS
In consideration of the foregoing Recitals and the parties' respective
representations, warranties and covenants set forth below, the parties agree as
follows:
1. Exchange. For and in consideration of the issuance and delivery by
CanArgo of three hundred and seventy eight thousand six hundred and sixty nine
(378,669) shares [the "CanArgo Shares"] of CanArgo Common Stock. GBOSC hereby
assigns, transfers and conveys to CanArgo, and CanArgo hereby accepts, the
Interest. The transfer of the interest to CanArgo shall be deemed to occur as of
12:01 a.m., Eastern Standard time, on the date first written above.
CanArgo hereby nominates CanArgo Petroleum Products Limited as its nominee to
receive the Interest.
2. Representations, Warranties and Disclosure(s). The parties
represent, warrant and disclose the following:
2
(a) GBOSC represents and warrants to and for the benefit of CanArgo
that, to the best of GBOSC's current knowledge and without further research or
investigation, immediately prior o the transfer of the Interest to CanArgo (or
its nominee) (i) GBOSC will not be in default, nor after notice or lapse of time
or both would GBOSC have been in default, under the GAOR Charter or Foundation
Agreement; (ii) GBOSC has not previously transferred to any other party or
encumbered, voluntarily or involuntarily, all or any part of the Interest; (iii)
subject to the matters set forth in this Agreement and applicable law, GBOSC
holds title to the Interest, and will transfer the Interest to CanArgo (or its
nominee), free and clear of any mortgages, liens, charges, encumbrances or title
defects of any nature whatsoever; and (iv) subject to the matters set forth in
this Agreement and applicable law, CanArgo (or its nominee) shall receive good
and marketable title to the Interest.
(b) CanArgo represents and warrants to and for the benefit of GBOSC
that (i) the CanArgo Shares are fully paid for, arc not assessable and are not
subject to any resale or transfer restrictions or limitations except as provided
by applicable law; (ii) the CanArgo Shares have been issued to GBOSC from
authorized but unissued CanArgo Common Stock and have not been encumbered,
voluntarily or involuntarily, by CanArgo; (iii) subject to the matters set forth
in this Agreement and applicable law, CanArgo will deliver the CanArgo Shares
free and clear of any mortgages, pledges, liens, charges, encumbrances or title
defects of any nature whatsoever; (iv) subject to the matters set forth in this
Agreement and applicable law GBOSC will receive good and marketable title to
CanArgo Shares.
(c) Each party represents and warrants to and for the benefit of the
other party that, subject to the conditions expressed in Recital C above; (i)
the execution and delivery of this Agreement by such party and the consummation
by such party of the transactions contemplated by this Agreement will not
violate any statute or law or any judgement, decree, order, regulation or rule
of any court or governmental authority by which such party is bound or the
charter, bylaws or other instruments under which such party is formed and its
activities are governed; (ii) this Agreement has been duly authorized, executed
and delivered by such party; and (iii) this Agreement constitutes a valid and
binding agreement of such party and is enforceable against such party in
accordance with the terms hereof (subject to applicable bankruptcy laws and
similar laws grunting relief to debtors or affecting the rights of creditors,
at1d the equitable powers of court with proper jurisdiction).
(d) Subject to tile representations and other matters set forth in this
Agreement, are accepting the CanArgo Shares, and CanArgo is accepting the
Interest, on an AS IS, WHERE IS basis with all faults and defects.
(e) In connection with the proposed issuance of the CanArgo Shares,
hereby acknowledge, represent and Warrant to and covenant and agree with CanArgo
that:
(i) GBOSC are "accredited investors", as defined in Rulc 501 of
Regulation D, promulgated under the United States Securities Act of 1933, as
amended (the Securities Act ). GBOSC are acquiring the CanArgo Shares for their
own account and not for the account or benefit of any other person. The CanArgo
shares "will be acquired by GBOSC in good faith for investment and not with a
view to the distribution thereof. GBOSC do not presently intend to sell or
otherwise dispose or all or any part of the CanArgo Shares and do not now have
in mind the
3
sale or other disposition of all or any part of the CanArgo Shares upon the
occurrence or nonoccurrence of any predetermined event.
(ii) GBOSC are willing and able to bear the economic risk of an
investment in the CanArgo Shares, and GBOSC have adequate means of providing for
current needs and reasonably anticipated contingencies and have no need for
liquidity in such investment. In making these statements, GBOSC have taken into
account that (i) they may have to hold the CanArgo Shares for an indefinite
period and (ii) they could experience a complete loss of their investment in the
CanArgo Shares. By reason of the business and financial experience of GBOSC,
they have such knowledge, sophistication and experience in business and
financial matters to enable them to evaluate the merits and risks of the
investment in the CanArgo Shares.
(iii) GBOSC:
(A) have carefully read and considered CanArgo's Joint Management
Information Circular and Proxy Statement/Prospectus dated 9 June 1998, 10 June
1999, l5 August 2000 and 20 September 2000 (the "Prospectus"), Quarterly Reports
on Form 10-Q for the three month periods ended 1 March 2000 and 30 June 2000,
Current Report on From 8-K dated on or about 20 July 2000, 28 July 2000, 24
August in each case as filed with the Securities and Exchange Commission and,
where appropriate, as xxxxxxx.xx date, and Press Releases dated 9 May 2000, 11
May 2000, 19 May 2000, 5 June 2000, 6 June 2000, 28 June 2000, 20 July 2000, 24
July 2000, 26 July 2000, 1 August 2000, 14 August 2000, 16 August 2000, 18
August 2000, 31 August 2000, 31 August, 2000, 11 September 2000, 22 September
2000, 29 September 2000, 11 October 2000, and 17 October 2000 [ collectively,
the "Disclosure Documents"], receipt of which is hereby acknowledged by GBOSC;
understand and have evaluated the risks of an investment in the CanArgo Shares;
and have relied on no information supplied by or on behalf of CanArgo other than
the information contained in such Disclosure Documents;
(B) have been given the opportunity to ask questions of CanArgo
and its management concerning CanArgo, the CanArgo Shares, and other matters
pertaining to this investment, in order for GBOSC to evaluate the merits and
risks of an investment in the CanArgo Shares, and GBOSC have received
satisfactory written responses to all such questions, if any;
(C) confirm that the CanArgo Shares were not offered to GBOSC by
way of any general solicitation or advertising and at no time was GBOSC
presented with or solicited by means of any leaflet, public promotional meeting,
circular, radio or television advertisement, newspaper or magazine article, or
other written material; and
(D) acknowledge that neither the Securities and Exchange
Commission nor any state securities commission or regulatory authority has
passed upon or endorsed the merits of the CanArgo Shares.
(iv) Since the offer and Sale of the CanArgo Shares have not been
registered under the Securities Act in reliance upon Section 4(2) among other
provisions of the Securities Act and the rules and regulations promulgated under
the Securities Act. GBOSC will only after or resell the CanArgo Shares in
compliance with the provisions or all applicable securities laws
4
and regulations. GBOSC will offer or resell the CanArgo Shared only if the
CanArgo Shares are registered under the Securities Act or an exemption from such
registration is available. Unless such registration has been effected or such an
exemption is available, CanArgo shall not permit the transfer of the CanArgo
Shares.
GBOSC understand and agree that CanArgo may take such reasonable
steps as it deems appropriate to ensure compliance with the offer, resale and
other restrictions on transfer contained in this Agreement or arising under
applicable securities laws, including instituting "stop transfer" instructions
with respect to the CanArgo Shares and endorsing restrictive legends, such as
the following, on certificates representing the CanArgo Shares:
The shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended (the "Securities Act") and
are "restricted securities" as that term is defined in Rule 144 under
the Securities Act. The Shares may not be offered for sale, sold or
otherwise transferred except pursuant to an efl'ective registration
statement under the Securities Act or pursuant to an exemption from
registration under the Securities Act, the availability of which is to
be established to the satisfaction of the Issuer.
GBOSC further agree that they will not transfer CanArgo. Shares to any
person under circumstances in which such CanArgo Shares remain restricted
securities, as defined in Rule 144 issued under the Securities Act, in the hands
of such transferee without first obtaining for the benefit of CanArgo and
transmitting to CanArgo the written undertaking (in form satisfactory to
CanArgo) of such transferee to observe the obligations of GBOSC pursuant to this
subsection (e)(iv) of this Section 2.
(f) In connection with the proposed transfer to it of the Interest,
CanArgo hereby acknowledges, represents and warrants to and covenants and agrees
with GBOSC that:
(i) CanArgo is an "accredited investor", as defined in Rule 501
of Regulation D promulgated under the Securities Act, by reason of CanArgo being
a corporation with total assets in excess of $5,000,000 not formed for the
specific purpose of acquiring the Interest. CanArgo is acquiring the Interest
for CanArgo's own account and not for the account or benefit of any other
person. The Interest will be acquired by CanArgo in good faith for investment
and not with a view to the distribution thereof. CanArgo does not presently
intend to sell or otherwise dispose of all or any part of the Interest upon the
Occurrence or nonoccurrence of any predetermined event.
(ii) CanArgo is willing and able to bear the economic risk of an
investment in the Interest. and CanArgo has adequate means of providing for
current needs and reasonably anticipated contingencies and has no need for
liquidity in such investment. In making these statements, CanArgo has taken into
account that (i) CanArgo may have to hold the Interest for an indefinite period
and (ii) CanArgo could experience a complete loss or CanArgo 's investment in
the Interest. By reason of the business and financial experience of CanArgo and
its officers and directors, CanArgo has such knowledge, sophistication and
experience in business and financial matters to enable CanArgo to evaluate the
merits and risks of the investment in the Interest.
5
(iii) Since the offer and sale of the lnterest has not been
registered under the Securities Act in reliance upon Section 4(2) among other
provisions of the Securities Act and the rules and regulations promulgated under
the Securities Act, CanArgo will only offer or resell the Interest in compliance
with the provisions of all applicable securities laws and regulations. CanArgo
will offer or resell the Interest only if the Interest is registered under the
Securities Act or an exemption from such registration is available.
(iv) CanArgo is already an owner of GAOR, and has ready access to
the management and books and records of GAOR and is familiar with the business
operations and financial condition of GAOR. CanArgo is acquiring the Interest in
exchange for the CanArgo Shares as part of a plan of reorganization.
(v) CanArgo:
(A) understands and has evaluated the risks of
an investment in the Interest; and has
relied on no information supplied by or on
behalf of GBOSC other than the information
set forth in representations and warranties
by GBOSC in this Agreement;
(B) has been given the opportunity to ask
questions of GAOR and.its management
concerning GAOR, the Interest and other
matters pertaining to CanArgo's investment
in the Interest, in order for CanArgo to
evaluate the merits and risks of an
investment in the Interest, and CanArgo has
received satisfactory written responses to
a1l such questions, if any; and
(C) acknowledges that neither the Securities and
Exchange Commission nor any state securities
commission or regulatory authority has
passed upon or endorsed the merits of the
Interest,
3. Indemnification. GBOSC shall indemnify, defend, protect and hold
harmless CanArgo from and against any and all claims, suits, causes of action,
liabilities, losses, damages and related costs and expenses (including
litigation costs and attorney fees) to the extent caused by the breach of this
Agreement by GBOSC or the breach of ally of their respective representations or
warranties set forth in this Agreement. However, GBOSC's aggregate liability
with respect to any claim for indemnification shall never exceed an amount
computed as (i) the fair market value of the CanArgo Shares held by them, on the
date a claim is asserted hereunder, plus (ii) the net proceeds (or the fair
market value of the consideration) received by them, respectively, from the
arms-length sale, exchange or other disposition of CanArgo Shares prior to such
date, plus (iii) the fair market value of CanArgo Shares disposed of by them,
respectively, prior to such date other than in arms-length transactions, with
such value measured on the date or dates of such dispositions, less (iv) all
amounts previously paid by them, receptively, as indemnification hereunder.
CanArgo shall indemnify, defend, protect and hold harmless GBOSC from
and against any and all claims, suits, causes of action, liabilities, losses,
damages and related costs and expenses (including litigation costs and attorney
fees) to the extent caused by the breach of this Agreement by CanArgo or the
breach of any of CanArgo's representations or warranties set forth in this
Agreement. However, CanArgo's aggregate liability with respect to any claim for
indemnification shall never exceed US $408,962.
6
4. Board Approval. Upon the request of any party, each corporate party
shall deliver to the others a certified copy of resolutions adopted by its board
of directors approving the terms and conditions of this Agreement and
authorizing one or more of its executive officers to execute and enter into this
Agreement on behalf of such party.
5. Miscellaneous.
5.1 This Agreement shall be governed by the laws of the State of
Delaware applicable to agreements executed, delivered in and wholly performed in
such state without reference to its choice of laws principles.
5.2 Subject to applicable limitation of actions periods (statutes of
limitations), all representations, warranties and covenants contained in this
Agreement shall survive the execution of this Agreement and shall continue in
full force and effect until two (2) years after the date of this Agreement.
5.3 If any provision of this Agreement is for any reason and to any
extent determined to be invalid or unenforceable, such provision shall, if
possible, be deemed modified to the minimum extent necessary to render it valid
and enforceable, and the remainder of this Agreement will remain in full force
and effect.
5.4 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
5.5 Any terms or provisions of this Agreement may be amended, and
the observance of any term of this Agreement may be waived, only by a writing
signed by the party to be bound thereby. The waiver by any party of any breach
or default hereunder shall not be deemed a waiver of any other default or
breach, whether of a similar or dissimilar nature.
5.6 All notices and other communications under this Agreement shall
be in writing and shall be given by delivery in person, by facsimile, by
registered or certified mail (postage prepaid and return receipt requested), or
by courier or overnight delivery service addressed to the party to which it is
directed at its principal executive offices. Notice shall be deemed given upon
actual receipt.
5.7 Each of the parties shall bear its own expenses incurred in
connection with the negotiation, preparation and consummation of this Agreement.
5.8 This Agreement may not be assigned by any party without the
prior written consent of the other parties, except for assignments by operation
of law. Except as expressly provided otherwise in this Agreement, this Agreement
is not intended to confer any rights or benefits upon any person not a party
hereto. Subject to the foregoing, this Agreement shall be binding on, and shall
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns.
7
5.9 This Agreement constitutes the entire understanding and
agreement of the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings, written
or oral, regarding the Interest and the CanArgo Shares.
5.10 GBOSC agree that any information that they have been furnished
by CanArgo which has not been previously filed with the Securities and Exchange
Commission or which is not freely and publicly available, should be deemed
confidential proprietary information and shall not be disclosed to any third
party without the prior receipt of CanArgo's express written consent.
5.11 GBOSC agree that they will at the request of CanArgo execute
such documents as may be necessary to effect the transfer of the Interest in
accordance with Georgian law. The execution of any such further documents will
be at the cost of CanArgo and without any additional liability on the part of
GBOSC.
5.12 In the event of any litigation between the parties concerning
this Agreement, the prevailing party in such litigation shall be entitled to
recover an of its related and reasonable costs and expenses, including attorney
fees, from the party which does not prevail, regardless of whether or not
recovery of such costs, expenses and/or fees is provided for by statute.
As confirmation of the above, the parties have executed and entered into this
Share Exchange Agreement as of the date first written above.
CanArgo Energy Corporation
By: /s/Xxxxx Xxxxxx Name: Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxx
Title:
Georgian British Oil Services Company
Name: By: /s/Xxxxxx Xxxxxxxxx
Title:
The above Share Exchange Agreement is hereby consented to by the
following owners and founders of Georgian American Oil Refinery Company Ltd.
Argonaut Oil and Gas Limited Georgian Oil
By: /s/Xxxxxx X. Xxxxxxxxx By: /s/Xxx Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx Name: Xxx Xxxxxxxxxx
Title: President Title: General Director
