CONTRIBUTION AGREEMENT
EXHIBIT
99.(D)
THIS
CONTRIBUTION AGREEMENT is made as of this 1st day of December 2008, by and among
CIOC Acquisition Inc., a newly formed Delaware corporation (the “Company”), Nurlan
Janseitov and Timur Bergaliyev.
Recitals
A. Mr.
Janseitov and Mr. Bergaliyev, who collectively hold an approximately 92.6%
ownership interest in Caspian International Oil Corporation, a Delaware
corporation (“Caspian”), expect to
file a Schedule 13E-3 with the Securities and Exchange Commission announcing
their intention to cause the Company to effect a “short-form” merger (the “Merger”) with and
into Caspian under Section 253 of the Delaware General Corporation Law (the
“DGCL”), with
Caspian as the surviving corporation (the “Surviving
Corporation”), pursuant to which (i) the stockholders of Caspian
(other than the Company) will receive cash in exchange for their shares of
Caspian common stock, par value $0.001 per share (the “Caspian Common
Stock”), (ii) Mr. Janseitov and Mr. Bergaliyev will receive shares
of common stock of the Surviving Corporation, and (iii) immediately
following the Merger, Mr. Janseitov and Mr. Bergaliyev will own all equity
interests in the Surviving Corporation.
B. To
effect the Merger, pursuant to the terms and conditions set forth herein, Mr.
Janseitov and Mr. Bergaliyev desire to contribute to the Company, immediately
prior to the consummation of the Merger, all of their respective shares of
Caspian Common Stock, as of such time (the “Effective
Time”).
C.
Following the contribution by Mr. Janseitov and Mr. Bergaliyev of their shares
of Caspian Common Stock pursuant to this Agreement, the Company will hold
approximately 92.6% of the outstanding shares of Caspian Common
Stock.
D. Each
of Mr. Janseitov and Mr. Bergaliyev desire to evidence herein their unanimous
consent to, and approval of, the Merger.
Agreement
NOW
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
the parties hereto agree as follows:
1. Interpretation of this
Agreement.
(a) Terms Defined. As
used in this Agreement, the following terms when used in this Agreement have the
meanings set forth below:
“Agreement” means this
Contribution Agreement and all exhibits and schedules hereto, as amended,
modified or supplemented from time to time.
“Caspian” shall have
the meaning given to it in the preamble of this Agreement.
“Caspian Common Stock”
shall have the meaning given to it in the recitals of this
Agreement.
“Company Common Stock”
means the Company’s common stock, par value $0.01 per share.
“Company” shall have
the meaning given to it in the preamble of this Agreement.
“Contributed Shares”
shall have the meaning given to it in Section 2(a) of
this Agreement.
“DGCL” shall have the
meaning given to it in the recitals of this Agreement.
“Effective Time” shall
have the meaning given to it in the recitals of this Agreement.
“Merger” shall have
the meaning given to it in the recitals to this Agreement.
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“Person” means an
individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
“Securities Act” means
the Securities Act of 1933, as amended.
“Shares” shall have
the meaning given to it in Section 2(b) of
this Agreement.
“Subsidiary” when used
with respect to any Person means any other Person, whether incorporated or
unincorporated, of which (a) more than 50% of the securities or other
ownership interests or (b) securities or other interests having by their
terms ordinary voting power to elect more than 50% of the board of directors or
others performing similar functions with respect to such corporation or other
organization, is directly owned or controlled by such Person or by any one or
more of its Subsidiaries.
“Surviving
Corporation” shall have the meaning given to it in the recitals to this
Agreement.
(b) Interpretation.
Wherever from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and the plural, and pronouns
stated in masculine, feminine or neuter gender shall include the masculine,
feminine and the neuter.
2. Contribution of Caspian
Common Stock; Issuance of Shares; Consent to Merger.
(a) Contribution of Caspian
Common Stock. At the Effective Time, Mr. Janseitov and Mr. Bergaliyev
shall contribute, assign and transfer to the Company, and the Company shall
accept, all of the shares of Caspian Common Stock held by Mr. Janseitov and Mr.
Bergaliyev, as set forth opposite Mr. Janseitov and Mr. Bergaliyev’s name on
Exhibit A
hereto (the “Contributed Shares”),
free and clear of all liens, claims, encumbrances and restrictions of any kind
whatsoever plus an amount of cash as set forth opposite Mr. Janseitov and Mr.
Bergaliyev’s name in Exhibit A.
(b) Issuance of Shares.
In consideration for each Mr. Janseitov and Mr. Bergaliyev’s contribution of the
Contributed Shares to the Company pursuant to Section 2(a),
the Company shall issue to each Mr. Janseitov and Mr. Bergaliyev the shares of
Company Common Stock as set forth opposite such Mr. Janseitov and Mr.
Bergaliyev’s name on Exhibit A hereto (the
“Shares”), free
and clear of any liens, claims, encumbrances and restrictions of any kind
whatsoever. Upon the issuance of the Shares, all other outstanding shares of
Company Common Stock will be cancelled.
(c) Consent to the
Merger. Each of Mr. Janseitov and Mr. Bergaliyev, as evidenced by their
signature hereto, in lieu of a special meeting of the stockholders of the
Company, does hereby consent to and approve (i) the Merger, (ii) the
execution, delivery and performance by the Company of a Certificate of Ownership
and Merger, in substantially the form attached hereto as Exhibit B, and
(iii) the other transactions contemplated herein and therein.
(d) Representations and
Warranties of the Company. The Company hereby represents and warrants to
Mr. Janseitov and Mr. Bergaliyev as follows:
(i) Organization; Power and
Authority. The Company is a corporation duly organized, validly existing,
and in good standing under the laws of State of Delaware. The Company has full
corporate power and authority to carry on the business in which it is engaged
and to own and use the properties owned and used by it. Before giving effect to
the transactions contemplated herein, the Company does not have any
Subsidiaries, and does not own, directly or indirectly, any capital stock or
other equity interests in any other Person.
(ii)
Authorization of
Transaction; Agreement Binding. The Company has full corporate power and
authority to execute and deliver, and to perform its obligations under, this
Agreement. This Agreement constitutes the valid and legally binding obligation
of the Company, enforceable in accordance with its terms, except as such
enforcement may be limited by general equitable principles or by applicable
bankruptcy, insolvency or similar laws which affect creditors’ rights
generally.
(iii)
No Conflict.
The execution, delivery and performance of this Agreement by the Company does
not and will not violate, conflict with, or result in a breach of or default
under (A) the Company’s
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Certificate
of Incorporation or Bylaws; (B) any applicable law, order, judgment or
decree; or (C) any agreement, contract, understanding, mortgage, indenture
or other obligation to which the Company is a party or by which any of its
assets or properties are bound.
(e) Representations and
Warranties of Mr. Janseitov and Mr. Bergaliyev. Each Mr. Janseitov and
Mr. Bergaliyev hereby represents and warrants to the Company as
follows:
(i) Capacity. Such Mr.
Janseitov and Mr. Bergaliyev has full capacity to execute and deliver, and to
perform such Mr. Janseitov and Mr. Bergaliyev’s obligations under, this
Agreement.
(ii)
Agreement
Binding. This Agreement constitutes the valid and legally binding
obligation of such Mr. Janseitov and Mr. Bergaliyev, enforceable in accordance
with its terms.
(iii)
Acquisition for
Investment. Such Mr. Janseitov and Mr. Bergaliyev is acquiring the Shares
for investment solely for such Mr. Janseitov and Mr. Bergaliyev’s account and
not with a view to or for sale in connection with any distribution thereof in
violation of the federal securities laws, applicable state securities laws or
this Agreement.
(iv)
Accredited
Investor. Such Mr. Janseitov and Mr. Bergaliyev is an “accredited
investor” within the meaning of Rule 501 promulgated under the Securities
Act.
(v) Title to Contributed
Shares. Such Mr. Janseitov and Mr. Bergaliyev owns the Contributed Shares
set forth opposite such Mr. Janseitov and Mr. Bergaliyev’s name on Exhibit A hereto,
free and clear of any liens, claims, encumbrances and restrictions of any kind
whatsoever.
3. Termination. This
Agreement and the obligation of Mr. Janseitov and Mr. Bergaliyev to contribute
the Contributed Shares and any cash will terminate automatically and immediately
upon the earliest to occur of (a) the full discharge of the obligations
herein in connection with the Merger and (b) the Merger not being
consummated by July 1, 2009.
4. Severability.
Whenever possible, each provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained in this Agreement.
5. Complete Agreement.
This Agreement embodies the complete agreement and understanding among the
parties and supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter of this Agreement in any way.
6. Counterparts. This
Agreement may be executed on separate counterparts, each of which is deemed to
be an original and all of which taken together constitute one and the same
agreement. Any telecopied signature shall be deemed a manually executed and
delivered original.
7. Successors and
Assigns. This Agreement is intended to bind and inure to the benefit of
and be enforceable by Mr. Janseitov and Mr. Bergaliyev, the Company, and their
respective successors and assigns and, where applicable, heirs and personal
representatives.
8. Choice of Law;
Jurisdiction. This Agreement shall be deemed to be made in and in all
respects shall be interpreted, construed and governed by and in accordance with
the laws of the State of New York without regard to conflicts of law principles
thereof. The parties hereby irrevocably submit to the personal jurisdiction of
the courts of the State of New York located in the Borough of Manhattan, and the
Federal courts of the United States of America located in the State of New York,
Borough of Manhattan, solely in respect of the interpretation and enforcement of
the provisions of this Agreement and of the documents referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof
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may not
be appropriate or that this Agreement or any such document may not be enforced
in or by such courts, and the parties hereto irrevocably agree that all claims
with respect to such action or proceeding shall be heard and determined in such
a New York State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and, to the extent
permitted by law, over the subject matter of such dispute and agree that mailing
of process or other papers in connection with any such action or proceeding in
the manner provided in herein or in such other manner as may be permitted by law
shall be valid and sufficient service thereof.
9. Waiver of Jury Trial.
Each party acknowledges and agrees that any controversy which may arise under
this Agreement is likely to involve complicated and difficult issues, and
therefore each such party hereby irrevocably and unconditionally waives any
right such party may have to a trial by jury in respect of any litigation
directly or indirectly arising out of, under or relating to this Agreement, or
any of the transactions contemplated by this Agreement. Each party certifies and
acknowledges that (i) no representative, agent or attorney of any other
party has represented, expressly or otherwise, that such other party would not,
in the event of litigation, seek to enforce the foregoing waiver, (ii) each
party understands and has considered the implications of this waiver,
(iii) each party makes this waiver voluntarily and (iv) each party has
been induced to enter into this Agreement by, among other things, the mutual
waivers and certifications expressed above.
10. Remedies. Each of the
parties to this Agreement will be entitled to enforce its rights under this
Agreement specifically, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief in
order to enforce or prevent any violations of the provisions of this
Agreement.
11. Amendments and
Waivers. No provision of this Agreement may be amended or waived without
the prior written consent or agreement of Mr. Janseitov, Mr. Bergaliyev and the
Company.
12. Business Days.
Whenever the terms of this Agreement call for the performance of a specific act
on a specified date, which date falls on a Saturday, Sunday or legal holiday,
the date for the performance of such act shall be postponed to the next
succeeding regular business day following such Saturday, Sunday or legal
holiday.
13. No Third Party
Beneficiary. Except for the parties to this Agreement and their
respective successors and assigns, nothing expressed or implied in this
Agreement is intended, or will be construed, to confer upon or give any person
other than the parties hereto and their respective successors and assigns any
rights or remedies under or by reason of this Agreement.
[SIGNATURES
BEGIN ON THE FOLLOWING PAGE]
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IN
WITNESS WHEREOF, intending to be legally bound hereby, each of the undersigned
has duly executed and delivered this Contribution Agreement as of the day and
year first above written.
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By:
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/s/
Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Secretary
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Address:
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℅Xxxxxxxxx
& Xxxx LLP
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000
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
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NURLAN
JANSEITOV
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By:
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/s/
Nurlan Janseitov
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Name:
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Nurlan
Janseitov
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Address:
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Xxxxx
0, Xxxxxx Xxxxxx, Xxxxxxxx-0
Xxxxxx,
000000 Xxxxxxxxxx
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TIMUR
BERGALIYEV
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By:
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/s/
Timur Bergaliyev
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Name:
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Timur
Bergaliyev
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Address:
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00X
Xxxx Xxxxxx, Xxx. 0
Almaty,
050000 Kazakhstan
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5
Exhibit A
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Contributed Shares
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Cash
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Shares
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Nurlan
Janseitov
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28,990,000 | $ | 0.00 | 49.987 | ||||||||
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Timur
Bergaliyev
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29,136,847 | $ | 0.00 | 50.126 | ||||||||
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