UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January
15, 2015
MNP PETROLEUM CORPORATION
(Exact name of registrant as specified in its charter)
Nevada |
333-107002 |
91-1918324 |
(State or Other Jurisdiction |
(Commission |
(I.R.S. Employer |
of Incorporation) |
File Number) |
Identification No.) |
Bahnhofstrasse 9, 6341 Baar, Switzerland
(Address of principal executive offices) (Zip Code)
+41 (44) 718 10 30
(Registrants
telephone number, including area code)
N/A
(Former name or former address, if
changed since last report)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
[ ] Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
[ ] Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
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Item 2.01 Completion of Acquisition or
Disposition of Assets.
On January 15, 2015, pursuant to the Supplement Agreement dated
September 11, 2014 and the Notary Act dated November 21, 2014, DWM Petroleum AG,
a 100% subsidiary of MNP Petroleum Corporation, through its 100% subsidiary TF
Petroleum AG has completed the acquisition of a 65% interest in EPA.at, an
Austria registered company, for total consideration of US$12 million to the
seller, Kavsar General Trading FZE. EPA.at holds 57.42% of the equity interest
in the Tajik company Petroleum Sugd; the remaining 42.58% equity interest in
Petroleum Sugd is held by the Tajik state oil company Sugdneftugas. Petroleum
Sugd owns eight producing oil fields.
Item 9.01 Financial Statements and
Exhibits.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
MNP PETROLEUM CORPORATION
By:
/s/ Peter-Mark
Vogel
Peter-Mark Vogel
Chief Financial Officer, Treasurer and
Secretary
Date: January 15, 2015
DATED 31 December, 2012
KAVSAR GENERAL TRADING FZE
and
DWM PETROLEUM AG
Relating to the sale and purchase of
80% of the
issued share capital
of TF Petroleum AG
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Table of Contents
SCHEDULE 1 CORPORATE DETAILS AND INTERESTS
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SCHEDULE 2 MAP OF AREAS FOR WHICH SELLER WILL OBTAIN NEW
PETROLEUM EXPLORATION RIGHT |
SCHEDULE 3 SELLER'S WARRANTIES |
SCHEDULE 4 LIMITS ON WARRANTY CLAIMS |
SCHEDULE 5 SELLERS OBLIGATIONS AND
PURCHASERS OBLIGATIONS AT COMPLETION |
SCHEDULE 6 INSURANCE POLICIES |
SCHEDULE 7 DEAL STRUCTURE |
SCHEDULE 8 INTERPRETATION |
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ANNEXURE 1 OPTION AGREEMENT |
ANNEXURE 2 AUDIT REPORT |
ANNEXURE 3 PURCHASERS NOTICE FOR EXERCISE OF OPTION
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THIS AGREEMENT is made on 31 December, 2012
BY AND BETWEEN:
KAVSAR GENERAL TRADING FZE a company organised under the
laws of The UAE whose registered office is at Hamriyah Free Zone, P.O. Box No
51393, Sharjah, UAE (hereinafter Seller); and
DWM PETROLEUM AG, a company registered in Switzerland,
having its registered office at Bahnhofstrasse 9, Baar, Switzerland (hereinafter
Purchaser).
RECITALS:
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A. |
That Energy Partners Austria GmbH, a company registered
in Austria, which is wholly-owned subsidiary of the Seller (hereinafter
EPA) is the legal and beneficial owner of 57.42% shares in
Petroleum Sugd, a joint venture with limited liability incorporated under
the laws of Tajikistan (hereinafter PS), and the remaining 42.58%
shares in PS are held by Sugdneftugas, state oil company of Tajikistan
(hereinafter SNG). |
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B. |
That PS is the 100% owner of rights in petroleum licences
for the fields in Tajikistan identified in the Schedule 1 (hereinafter
LICENSING AGREEMENTS). LICENSING AGREEMENTS are new licences
covering areas of certain old licences pursuant to which PS has had been
operating since 2006, as successor in interest of another Tajik joint
venture with limited liability also known as Petroleum Sugd, which was
liquidated in 2006 (hereinafter Liquidated PS), and which was
also partly owned by Petroleum & Gas Vivalo International Company
Limited (hereinafter Vivalo) in addition to EPA and
SNG. |
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C. |
That the Seller and the Purchaser are party to an Option
Agreement effective 5 May 2012 (hereinafter Option Agreement),
which is attached hereto as Annexure 1 of this Agreement. Under the
Article 1(b) of the Option Agreement, Seller gave an option (hereinafter
Option) to the Purchaser to purchase 80% shares in a new company
incorporated in Switzerland which would own 100% shares of PS (hereinafter
Shares) upon payment of a security deposit of USD 10 million
(Security Deposit). |
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D. |
That pursuant to the Option Agreement, Seller has already
incorporated TF Petroleum AG (hereinafter TF) in Switzerland as
per details in Schedule 1 hereof. On request of Purchaser, Seller has
appointed a nominee of Purchaser, as a director of TF at the time of
incorporation. Further, Purchaser has spent approx. USD 100,000 to assist
Seller in incorporation of TF by paying CHF 100,000 share capital on
behalf of Seller. Such costs shall hereinafter be referred to as
Purchasers Advance in respect of TF. |
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E. |
That pursuant to Article 1(d) of the Option Agreement,
Purchaser has conducted legal due diligence (hereinafter Due
Diligence) regarding EPA, PS and Liquidated PS, and thereafter also
completed an independent audit (hereinafter Audit) of all books
and accounts of EPA, PS and Liquidated PS to follow-up on the concerns
raised in the Due Diligence. Audit report is attached hereto as Annexure 2
of this Agreement. |
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F. |
That On October 23, 2012, pursuant to Article 1(e) of the
Option Agreement, Purchaser has exercised the Option, subject to Seller
taking certain actions (hereinafter Actions) as described in
Schedule A of its notice to exercise Option, attached hereto as Annexure 3
of this Agreement, to bring LICENSING AGREEMENTS and related agreements in
order. |
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G. |
That pursuant to Article 1(f) of the Option Agreement,
Seller and Purchaser have agreed on a purchase price based on the findings
of the Audit (hereinafter Consideration), and pursuant to the
Option Agreement, the Security Deposit shall be construed as part payment
towards the Consideration. Further, Purchasers Advance in respect of TF
shall also be construed as part payment towards the
Consideration. |
NOW THEREFORE, IT IS AGREED as
follows:
ARTICLE 1 Interpretation
1.1 |
In addition to terms defined elsewhere in this Agreement,
the definitions and other provisions in the Schedule 8 apply throughout
this Agreement, unless the contrary intention appears. |
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1.2 |
In this Agreement, unless the contrary intention appears,
a reference to a clause, Article or Schedule is a reference to a clause,
Article or Schedule to this Agreement. The Schedules, Annexures and the
Disclosure Letter accompanying this Agreement shall form integral part of
this Agreement. |
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1.3 |
The headings in this Agreement do not affect its
interpretation. |
ARTICLE 2 Sale and Purchase of the
Shares
2.1 |
Subject to the terms and conditions of this Agreement,
Seller shall sell and procure the sale of and the Purchaser shall purchase
and procure the purchase of the Shares at the Completion Date, but with
effect from the Economic Date. |
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2.2 |
The consideration for the sale of the Shares shall be USD
21 million (the Consideration). |
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2.3 |
As recited in Recital G above, it is acknowledged that
USD 10,100,000 of the Consideration is already paid. |
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2.4 |
Purchaser shall advance to Seller, USD 7 million
(hereinafter Next Advance) within thirty (30) days of the date
conditions mentioned in Article 3.1 below are satisfied. |
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2.5 |
Purchaser shall make remaining payment of USD 3,900,000
subject to any necessary downward adjustment in accordance with this
Agreement, to Seller on the Completion Date once conditions mentioned in
Article 3.2 are satisfied. |
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2.6 |
All payments hereunder shall be paid by the Purchaser via
wire transfer to the Sellers bank account with following details under
the name of Kavsar General Trading FZE: |
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IBAN: AE580260001022581327701
Bank: EMIRATES NBD PJSC
Swift: EBILAEAD
ARTICLE 3 Conditions for Completion
and Earlier Steps
3.1 |
Conditions for the Next Advance |
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3.1.1 |
Purchaser has obtained the requisite approval of TSX-V
(TSX Venture Exchange) for the transaction envisaged by this
Agreement. |
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3.1.2 |
PS has completed Actions other than Actions related to
re-issuance of Certificate of land usage under the name of PS. i.e.
following documents are re-issued under the name of PS: |
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Allotments (mining lease); Ecological expertise;
and |
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Contract (for subsoil use) with the Government setting
bonuses rates. |
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3.1.3 |
Seller has provided to Purchaser, a list of all lands
owned or leased by PS (hereinafter Real Estate
Properties). |
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3.1.4 |
Seller has provided to Purchaser, Accounts as of the
Accounts Date. |
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3.1.5 |
Seller has provided to Purchaser, tax book value of
assets and liabilities of TF and PS as of the Economic Date. |
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3.1.6 |
Seller shall place its 65% shares of EPA in an escrow
acceptable to Purchaser (hereinafter Escrow), for the benefit of
the Purchaser. |
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3.1.7 |
Seller has entered into a share purchase arrangement with
the Government to purchase remaining shares in PS of SNG from the
Government. In this regard, Seller shall provide to the Purchaser an
official letter issued by responsible Government authority confirming that
remaining shares in PS of SNG are subject to sale. |
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3.2 |
Conditions Precedent for Completion - Completion
is conditional upon, and subject to, the fulfilment or waiver pursuant to
Clause 3.3 of the following conditions (hereinafter Conditions
Precedent): |
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3.2.1 |
Seller has purchased remaining shares in PS of SNG from
the Government, and subsequently transferred 100% interests in PS to TF,
in the manner described as Step 2 and 3 in the contemplated deal structure
described in Schedule 7 of this Agreement. |
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3.2.2 |
Transfer of 100% shares in PS to TF has been registered
in all official registers in Tajikistan. |
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3.2.3 |
Seller has provided an affidavit certifying that Vivalo
has no claim against Seller, in respect of section 4.1.2 of the Audit
Report, and if in future a claim arises from Vivalo in respect of
Liquidated PS or PS, Seller shall settle it at its own cost and
expense. |
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3.2.4 |
Purchasers accountants BDO Tajikistan, at PSs expense,
have audited all books and accounts of PS in line with international
standards and issued an unqualified opinion. |
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3.2.5 |
PS has downsized its employee force and Seller has
provided to Purchaser, a list of employees of PS that it expects as of
Completion Date. |
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3.2.6 |
the receipt of the requisite Government Approval to the
sale and purchase of the Shares in so far as required; and |
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3.2.7 |
the receipt of the Economic Date Accounts by the
Purchaser. |
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3.2.8 |
Seller has obtained a letter from the Government which
states that the Government recognizes the rights of investors and
guarantees stability of terms of concluded agreements concerning
investment activity of investors in Tajikistan as stipulated in Chapter 2
Guarantee for Protection of Investment and Investors rights of the Law
of Republic of Tajikistan on investment - to allow TF to obtain
financing from international sources. In this regard, Purchaser shall
provide to TF, a draft letter addressed to the Government, which it will
prepare in consultation with ABG.LA, its local counsel in Republic of
Tajikistan. |
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3.2.9 |
Scope of the LICENSING AGREEMENTS has been extended to
cover exploration in open areas around the areas covered by the LICENSING
AGREEMENTS, which is more fully described in the map attached hereto as
Schedule 2 of this Agreement. |
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3.2.10 |
PS has completed Actions related to re-issuance of
Certificate of land usage under the name of PS. |
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3.2.11 |
Seller and Purchaser have agreed on the Environmental
Baseline pursuant to Schedule 3, clause 1.12(b). |
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3.3 |
The Seller and the Purchaser shall use all reasonable
endeavours to procure or seek waiver regarding the fulfilment of the
Conditions for the Next Advance and the Conditions Precedent as soon as
reasonably practicable after the signing of this Agreement. Purchaser
shall also notify Seller regarding the process and current status of
obtaining the requisite approval of TSX-V (TSX Venture
Exchange). |
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3.4 |
Refund |
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3.4.1 |
If the Conditions Precedent are not fulfilled or, to the
extent applicable, waived on or before the date falling 120 days after the
date of this Agreement, this Agreement shall cease to have effect, except
for the obligations in Articles 12, 18 and 19 and neither of the Parties
(provided it shall have used reasonable endeavours as aforesaid) will,
save in relation to any accrued rights or obligations as at such date,
have any rights or liabilities under this Agreement. In such case, Seller
shall refund to Purchaser, USD 17,100,000 (being Security Deposit,
Purchasers Advance in respect of TF and Next Advance, all of which is
already paid by such time) less a penalty of USD2 million as a
compensation of the Sellers expenses within 365 days of the date of
signing of this Agreement. |
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3.4.2 |
If Purchaser fails to advance Next Advance to Seller,
within the time period stipulated in Article 2.4 above, where Seller duly
performed all actions stipulated in the Articles 3.1.2-3.1.7 of this
Agreement, the Seller must refund to Purchaser, USD10,100,000 (being
Security Deposit and Purchasers Advance in respect of TF, (all of which
is already paid by such time) by delivering within reasonable period to
Purchaser, 65% shares of EPA (which is owner of 57.42% shares of PS, which
are placed in Escrow for the benefit of Purchaser, as specified in clause
3.1.6 of this Agreement. In the above case, on account of transfer of
65% shares of EPA (which is owner of 57.42% shares of PS at that time)
Purchaser shall also pay to Seller, additional amount of USD2 million (as
a compensation of the Sellers expenses) within 365 days from the date of
signing of this Agreement. If at the time of the aforementioned delivery
of 65% shares of EPA to Purchaser, EPA owns more than 57.42% shares of PS,
then Purchaser shall pay to Seller, additional amount corresponding to
shares more than 57.42% shares of PS (calculated on the assumption that
80% shares of EPA, if EPA owns 100% shares of PS, are worth USD 21
million), within 365 days from the date of signing of this Agreement or
accept pro-rata reduction in the number of deliverable shares of EPA in
order to re-establish status quo. |
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3.4.3 |
If Conditions for Next Advance are not satisfied to the
satisfaction of Purchaser, within 90 days of the signing of this
Agreement, and consequently transaction envisaged by this Agreement is not
Completed, then Seller shall refund to Purchaser, USD10,100,000 (being
Security Deposit and Purchasers Advance in respect of TF, all of which is
already paid by such time) less a penalty of USD2 million as a
compensation of Sellers expenses, within 365 days of the date of signing
of this Agreement. |
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3.5 |
Seller shall send a copy of the Government Approvals to
the Purchaser promptly following receipt thereof and notify the Purchaser
of the Completion Date once the Conditions Precedent have been fulfilled
or waived. |
ARTICLE 4 Interim Period
4.1 |
The Seller shall procure that, between the date of this
Agreement and Completion, the Companies shall: |
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4.1.1 |
carry on business in the ordinary course and meet their
obligations under the LICENSING AGREEMENTs; |
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4.1.2 |
conduct their affairs in relation to the Interest in
accordance with applicable laws, the LICENSING AGREEMENTs and good
industry practice; |
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4.1.3 |
continue to meet all expenditures and receive all income
relating to the Interest; |
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4.1.4 |
maintain or cause to be maintained in force any insurance
which the Companies hold or which is held on their behalf as at the date
of this Agreement as described in Schedule 6 of this Agreement and make
and diligently pursue claims which can be made under such
policies; |
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4.1.5 |
keep proper accounting records and in them make true and
complete entries of all dealings and transactions in relation to their
business and afford to the Purchaser full access thereto; |
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4.1.6 |
engage an independent accounting firm to audit annual
financial statements or review interim period financial statements, given
year end or period end fall into the Interim Period; |
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4.1.7 |
promptly notify the Purchaser of any law suits, claims,
legal proceedings or governmental investigations which may occur, be
threatened, brought, asserted or commenced against the Companies or the
Operator involving or affecting the Interest. |
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4.1.8 |
keep the Purchaser informed and consult with the
Purchaser in respect of all material facts, matters and things relating to
the Companies and the Interest and all material operations carried out
there under; |
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4.1.9 |
not exercise any rights in respect of material matters
under the relevant LICENSING AGREEMENTs or relating to the Interest,
except in a case of emergency, without first obtaining the Purchasers
consent, |
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4.1.10 |
as soon as possible following any material decision made
under the LICENSING AGREEMENTs, or relating to any of the Interest ,
notify the Purchaser of that decision; and |
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4.1.11 |
not without the Purchasers prior written approval amend
or terminate any of the LICENSING AGREEMENTs. |
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Without prejudice to the generality of the foregoing
provisions of this Clause 4, the Seller shall, between the date of this
Agreement and Completion, procure that the Companies shall keep the
Purchaser informed of the making of any payments for amounts greater than
the equivalent of USD10,000 (or its equivalent in foreign
currency). |
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4.2 |
Between the date of this Agreement and Completion the
Seller shall procure that, unless consented to by the Purchaser, the
Companies shall not nor shall they agree to: |
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4.2.1 |
allot or issue (whether by way of option over shares or
the issue of any rights convertible into shares or otherwise) any shares
in their capital; |
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4.2.2 |
create, or agree to create, any Encumbrance over any
shares, |
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4.2.3 |
make any alteration to their deed of incorporation
including the articles of association; |
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4.2.4 |
dispose, or agree to dispose or grant any option or right
in respect of the Interest; |
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4.2.5 |
discontinue or cease to operate all or a material part of
their business; |
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4.2.6 |
make any change in the nature of their
business; |
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4.2.7 |
enter into, amend or terminate any Major
Contract; |
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4.2.8 |
approve any work programs or budgets; or |
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4.2.9 |
sell or transfer any assets of the Companies other than
those which would normally be made in the usual conduct of its
business; |
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4.2.10 |
give notice of or otherwise institute any sole risk
operations or agree to surrender any area covered by the LICENSING
AGREEMENTs; |
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4.2.11 |
declare or pay any dividend or other distribution or
repay any share premiums. These provisions do not include restriction on
distribution of retained profit of PS for paying dividends which were
accumulated before Economic Date; |
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4.2.12 |
perform or omit any act which would cause a breach of any
Major Contract of the Companies; |
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4.2.13 |
make any capital commitment, borrowing or expenditure
other than those which would normally be made in the usual conduct of its
business; |
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4.2.14 |
execute any document amending, waiving or cancelling any
provision of the LICENSING AGREEMENTs. |
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For purposes of this Clause 4, a matter is material if
it is entailing financial impacts exceeding USD 10,000 (or its equivalent
in foreign currency). |
ARTICLE 5 Completion
Completion shall occur at the office of Seller, not later than
the seventh Business Day after the notification by the Seller pursuant to
Article 3.5 above that the Conditions Precedent have been fulfilled.
5.1 |
At Completion: |
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5.1.1 |
the Seller shall do or procure to be done those things
set out in Part 1of the Schedule 5, provided that the Seller shall be the
custodian of all closing documentation; |
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5.1.2 |
the Purchaser shall do or procure to be done those things
set out in Part 2 of Schedule 5; and |
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5.2 |
As soon as reasonably practicable, but in any case within
twenty (20) Business Days after Completion, the Purchaser undertakes to
the Seller that it shall (a) record the transfer of the Shares in the
share register book of TF, (b) register or file all matters in connection
with Completion which are required or necessary to register or to file
with the Ministry of Energy and Industry, Republic of Tajikistan,
including but not limited to the change of directors of the Companies, and
the filing of the new shareholders list of the Companies, and (c) notify
the relevant banks and effect the change of authorised signatories in
connection with the banking facilities of the Companies. Upon completion
of all the registrations and notifications described above, the Purchaser
shall as soon as reasonably practicable notify the Seller, and provide the
Seller with reasonably satisfactory evidence of such registration, filing,
and notification, as the case may. |
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5.3 |
Within twenty (20) Business Days of the Completion Date,
Parties shall with mutual agreement, make following appointments in
respect of TF: |
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Management team. |
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Legal advisors. |
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Auditor. |
5.4 |
Within twenty (20) days of the Completion Date, Parties
shall enter into a fully-termed Shareholders Agreement (SHA),
containing inter alia following provisions: |
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Number of Directors: 4 Purchaser,
1 Seller. |
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Chairperson shall be nominee of
Purchaser. |
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Governing law shall be laws of
England, UK. |
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ARTICLE 6 Independent Accountants
6.1 |
If any matters are reserved for determination by
Independent Accountants: |
6.1.1 |
the Independent Accountants shall be instructed
to: |
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(a) |
make its determination within the shortest practicable
time following referral of the matter to the Independent
Accountant; |
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(b) |
prescribe the procedure to be followed by the parties in
order to facilitate determination; and |
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(c) |
submit the determination in writing to the Seller and the
Purchaser. |
6.1.2 |
the Seller and the Purchaser shall: |
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(a) |
notify the Independent Accountants in writing of the
matters reserved for determination and each provide (and to the extent
they are reasonably able procure that their respective accountants, and
the Purchaser shall procure that TF, provide) the Independent Accountants
promptly, and in any event within ten (10) Business Days of the
Appointment Day, with all information which they may reasonably require
and the Independent Accountants shall be entitled (to the extent they
consider it appropriate) to base their opinion on such information and on
the accounting and other records of TF; and |
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(b) |
accept the determination of the Independent Accountants
(in the absence of manifest error) as final and binding; |
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(c) |
the Independent Accountants shall act as experts and not
as arbitrators; and |
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(d) |
the costs of the determination, including fees and
expenses of the Independent Accountants, shall be borne equally by the
Seller and the Purchaser. |
ARTICLE 7 Loans and Guarantees
7.1 |
The parties acknowledge that the Consideration has been
agreed on the basis that no indebtedness of any kind (regardless of
whether presently payable) is owed by any member of the Sellers Group to
the Companies or from the Companies to the Sellers Group, other
than: |
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(a) |
any amounts which may be due or become due by way of
trade credit in the ordinary course of trading as a result of goods or
services supplied on normal arm's length terms; |
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(b) |
any amounts which may fall to be paid pursuant to any
express provision of this Agreement or any of the documents required to be
executed or delivered pursuant to the provisions of this
Agreement; |
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(d) |
any amounts provided for in connection with service
agreements with Affiliates of the Seller during the Interim Period;
and |
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(e) |
any amounts provided for in the Economic Date
Accounts. |
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7.2 |
The Seller shall procure that on Completion, Companies
are released from all guarantees and indemnities given by it in respect of
any liability or obligation of any member of the Sellers Group, or
alternatively if such releases are not granted, Seller shall defend,
indemnify and hold harmless Purchasers Group against any and all claims
arising out of such guarantees and indemnities. Purchaser shall ensure
after the Completion Date that Sellers Group is released from all
guarantees and indemnities given by it in respect of any liability or
obligation of the Companies; or, alternatively, if such releases are not
granted, Purchaser shall defend, indemnify, and hold harmless Sellers
Group against any and all claims arising out of such guarantees and
indemnities. |
ARTICLE 8 the Seller's Warranties
8.1 |
The Seller represents and warrants to the Purchaser that,
except as disclosed to the Purchaser in the Disclosure Letter, as of the
date of this Agreement and such representations shall be deemed to be
repeated immediately prior to Completion, each of the statements set out
in the Schedule 3 is true and accurate. |
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8.2 |
The liability of the Seller in connection either with the
Warranties, and any Warranty Claim, shall be subject to the limitations
contained in, and to the other provisions ofSchedule4 of this
Agreement. |
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8.3 |
Any payment made by the Seller in respect of a Warranty
Claim brought by the Purchaser shall: be reduced by the amount of any
savings in Taxation enjoyed by the Purchaser, and/or its Affiliates, or TF
in connection with the circumstances which gave rise to the
claim. |
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8.4 |
If the Purchaser becomes aware of a matter which is
likely to give rise to a Warranty Claim, the Purchaser shall give notice
of the relevant facts to the Seller as soon as reasonably practicable
after becoming aware of those facts and in any event within thirty (30)
days of becoming aware of those facts. |
ARTICLE 9 Purchaser's Warranties
The Purchaser warrants to the Seller that each of the
statements set out below is true and accurate in all material respects:
9.1 |
Purchaser is a corporation validly existing under the
laws of Switzerland, with the requisite power and authority to enter into
and perform, and has taken all necessary corporate action to authorise the
execution and performance of, its obligations under this
Agreement; |
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9.2 |
this Agreement constitutes valid and binding obligations
of the Purchaser; |
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9.3 |
other than as contemplated by this Agreement, no notices,
reports or filings are required to be made by the Purchaser in connection
with the transactions contemplated by this Agreement, nor are any
consents, approvals, registrations, authorisations or permits required to
be obtained by the Purchaser in connection with the execution and
performance of this Agreement; and |
ARTICLE 10 Protective Covenants
10.1 |
The Seller covenants with the Purchaser that it shall not
and shall procure that no member of the Sellers Group shall without the
Purchasers consent (except as required by law or any
competent regulatory body, including the applicable rules of any
stock exchange) disclose or divulge to any third party any material
information of a secret or confidential nature relating exclusively to the
business or affairs of Companies, except to the extent the information has
entered the public domain other than by reason of an unauthorised act or
default of the Seller. |
11
10.2 |
The Purchaser covenants with the Seller that it shall not
and shall procure that no member of the Purchasers Group shall without
the Sellers consent (except as required by law or any competent
regulatory body, including the applicable rules of any stock exchange)
disclose or divulge to any third party any material information of a
secret or confidential nature relating exclusively to the business or
affairs of the Companies that has been disclosed to it pursuant to this
Agreement, except to the extent the information has entered the public
domain other than by reason of an unauthorised act or default of the
Purchaser. |
ARTICLE 11 Tax
11.1 |
The Seller shall be liable for any Taxation liabilities
of the Companies and/ or the Interest for periods up to the Economic Date
and shall indemnify and hold harmless the entity of the Purchasers Group
against which any such Taxation liability is levied. |
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11.2 |
It is agreed that the Seller and the Purchaser shall each
be responsible for the payment of its own taxes, duties or other charges
deriving from the transfer under this Agreement in accordance with the
laws, rules and regulations of Tajikistan or other applicable laws,
provided that any stamp duty related to the registration process of the
transaction or transfer of shares envisaged by this Agreement owing under
the laws, rules and regulations of Tajikistan shall be the responsibility
of and paid by the Purchaser. |
ARTICLE 12 Confidentiality
12.1 |
Subject to Article 12.4, neither the Seller nor the
Purchaser shall make (or permit any other member of the Sellers Group or
the Purchaser's Group to make) any announcement concerning this sale and
purchase or any ancillary matter before Completion, and on and thereafter
without the prior written consent of the other parties, the same not to be
unreasonably withheld. |
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12.2 |
The Purchaser, each member of the Purchasers Group, its
lawyers and other professional consultants
shall: |
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(a) |
keep confidential all information provided to it by or on
behalf of the Seller or otherwise obtained by or in connection with this
Agreement which relates to any member of the Sellers Group; |
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(b) |
if after Completion, Purchaser holds confidential
information relating to the Sellers Group, it shall keep that information
confidential and, to the extent reasonably practicable, other than
information as may be reasonably required by the Purchaser to retain for
legal, tax or financial/accounting purposes, shall return that information
to the Seller or destroy it, in each case without retaining copies;
and |
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(c) |
in respect of any Excluded Records which the Purchaser
may receive or be in possession of, the Purchaser agrees to hold the same
in strict confidence, not to disclose them to any third party and not to
use them for any purpose whatsoever. To the extent that the Purchaser
becomes aware that it is possession of Excluded Records in written or
other tangible form (including information
stored electronically), the Purchaser agrees as soon as reasonably practicable
to return to the Seller or destroy such information, or cause such information
to be returned to the Seller, in each case at the Seller's sole discretion. |
12
12.3 |
The Seller, each member of the Seller Group, its lawyers
and other professional consultant shall: |
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(a) |
keep confidential all information provided to it by or on
behalf of the Purchaser or otherwise obtained by or in connection with
this Agreement which relates to any member of the Purchaser's Group;
and |
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(b) |
if after Completion, the Seller, each member of the
Seller Group, its lawyers and other professional consultants hold
confidential information relating to the Companies, they shall keep that
information confidential and, other than the Excluded Records or as may be
required by Seller to retain for legal, tax, or financial/accounting
purposes, shall return that information to the Purchaser or destroy it, in
each case without retaining copies. |
12.4 |
Nothing in this clause prevents any announcement being
made or any confidential information being disclosed: |
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(a) |
with the written approval of the other parties, which in
the case of any announcement shall not be unreasonably withheld or
delayed; or |
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(b) |
to the extent required by law, stock exchange regulations
or any competent regulatory body, but a party required to disclose any
confidential information shall promptly notify the other party, so far as
practicable and lawful with regard to timing, content and other
requirements of such law, stock exchange regulations or regulatory body,
before disclosure occurs and co-operate with the other party regarding the
timing and content of such disclosure. |
12.5 |
Nothing in this clause prevents disclosure of
confidential information by any party: |
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(a) |
to the extent that the information is in or comes into
the public domain other than as a result of a breach of any undertaking or
duty of confidentiality by that party; or |
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(b) |
to that party's professional advisers, lawyers, auditors
or bankers, but before any disclosure to any such person the relevant
party shall procure that he is made aware of the terms of this clause and
shall use its best endeavours to procure that such person adheres to those
terms as if he were bound by the provisions of this
clause. |
ARTICLE 13 Notices
13.1 |
Any notice given in connection with this Agreement must
be in English. Any other document provided in connection with this
Agreement must be in English or accompanied by a certified English
translation; in this case, the English translation prevails unless the
document is a statutory or other official document. |
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13.2 |
Any notice or other formal communication given under this
Agreement must be in writing (which includes fax, but not email) and may
be delivered or sent by courier or fax to the party to be served as
follows: |
13
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(a) |
to the Seller at: |
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(b) |
to the Purchaser at: |
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Building 3, Apartment 5 |
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Bahnhofstr. 9 |
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Street Academic Rajabovs, 1 lane |
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6341 Baar, Switzerland |
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Dushanbe Zip Code 734025 |
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E-Mail: |
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TajikistanE-Mail: |
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Wladwein@Manaspetroleum.Com |
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Khurshed.Nozimov@mail.ru |
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Attention: Dr. Werner Ladwein |
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Attention: Mr. Khurshed Nozimov |
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or at such other address or fax number
as it may have notified to the other party in accordance with this clause.
13.3 |
Any notice or other formal communication shall be deemed
to have been given: |
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(a) |
if delivered personally, at the time of delivery;
or |
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(b) |
if sent via courier, at 10.00 a.m. on the fourth Business
Day after it was accepted by the courier company for delivery;
or |
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(c) |
if sent by fax, provided the fax is in readable form, on
the date of transmission, if transmitted before 3.00 p.m. on any Business
Day, and in any other case on the Business Day following the date of
transmission, with a copy of the notice or other communication also sent
by post. |
13.4 |
In proving service of a notice or other formal
communication, it shall be sufficient to prove that delivery was made or
that the envelope containing the communication was properly addressed and
despatched via courier, as the case may be or that the fax was properly
addressed and successful transmission electronically confirmed, as the
case may be. |
ARTICLE 14 Further Assurances
14.1 |
In relation to TF, the Seller shall procure the convening
of all meetings, the giving of all waivers and consents and the passing of
all resolutions as are necessary under the applicable laws dealing with
private limited companies, its articles of association, or any agreement
or obligation affecting it to give effect to this Agreement. |
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14.2 |
On or after Completion, the parties shall, at their own
cost and expense, execute and do (or procure to be executed and done by
any other necessary party) all such deeds, documents, acts and items as
may from time to time be reasonably required in order to give full effect
to all the transactions or activities contemplated under this
Agreement. |
ARTICLE 15 Assignments
15.1 |
Each Party may assign the benefit of this Agreement to
any member of its Group and if it does so: |
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|
(a) |
the assignee may enforce the obligations of the other
Party (including the Warranties given by the Seller) under this Agreement
as if it had been named in this Agreement as a Party
; |
14
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(b) |
each Party may nevertheless enforce this Agreement
against the other Party, as if that assignment had not occurred; |
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(c) |
the assignment shall not in any way operate so as to
increase or reduce the respective rights and obligations on the part of
the assigning Party or its assignee on the one hand and the other Party on
the other hand; and |
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(d) |
where applicable, if the assignee ceases to be a member
of the Sellers Group or the Purchaser's Group, the Seller or the
Purchaser as the case may be shall procure that the benefit of this
Agreement is re-assigned to the Seller or the Purchaser as the case may be
or another member of the Sellers Group or the Purchaser's
Group. |
15.2 |
Except as permitted by this clause, none of the rights or
obligations under this Agreement may be assigned or transferred by a Party
without prior approval of the other Party. |
ARTICLE 16 General
16.1 |
Each of the obligations, warranties and undertakings set
out in this Agreement (excluding any obligation which is fully performed
at Completion) shall continue in force after Completion. |
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16.2 |
Unless otherwise agreed between Purchaser and Seller, if
the Purchaser or Seller defaults in the payment when due of any sum
payable under this Agreement, (howsoever determined) its liability shall
be increased to include interest on such sum from the date when such
payment is due until the date of actual payment (as well as before
judgment) at a rate per annum of LIBOR plus one percent. Such interest
shall accrue from day to day. |
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16.3 |
Each party shall pay the costs and expenses incurred by
it in connection with the entering into and completion of this
Agreement. |
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16.4 |
In addition to the provisions of Schedule 4, the
Purchaser shall make available to the Seller any books or records of
Companies (or, if practicable, the relevant parts of those books or
records) which are required by the Seller for the purpose of dealing with
its corporate, tax, or reporting obligations or affairs and, accordingly,
the Purchaser shall, upon being given reasonable notice by the Seller and
subject to the Seller giving such undertaking as to confidentiality as the
Purchaser shall reasonably require, procure that such books and records
are made available to the Seller for inspection during working hours and
copying at the Sellers expense for and only to the extent necessary for
such purpose and for a period of six years from Completion. |
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16.5 |
This Agreement may be executed in any number of
counterparts. This has the same effect as if the signatures on the
counterparts were on a single copy of this Agreement. |
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16.6 |
The rights of each party under this
Agreement: |
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(a) |
may be exercised as often as necessary; |
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(b) |
are cumulative and not exclusive of rights and remedies
provided by law; and |
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(c) |
may be waived only in writing and
specifically. |
15
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Delay in exercising or non-exercise of any such right is
not a waiver of that right. |
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16.7 |
Except as expressly stated in this Agreement, a person
who is not a party to this agreement may not enforce any of its terms
under the Contracts (Rights of Third Parties) Act 1999. |
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16.8 |
This Agreement will only be signed in English. However,
an unofficial translation of this Agreement in Russian shall be initialled
by the Seller. In case of any conflict, this official English version of
the Agreement shall prevail. |
ARTICLE 17 Whole Agreement
17.1 |
This Agreement and the documents referred to in it
contain the whole agreement between the parties relating to the
transactions contemplated by this Agreement and supersede all previous
agreements between the parties relating to these transactions. |
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17.2 |
Each party acknowledges that in agreeing to enter into
this Agreement it has not relied on any representation, warranty,
collateral contract or other assurance (except those set out in this
agreement) made by or on behalf of any other party before the signature of
this Agreement. Each party waives all rights and remedies which, but for
this Article, might otherwise be available to it in respect of any such
representation, warranty, collateral contract or other
assurance. |
ARTICLE 18 Governing Law
This Agreement is governed by and shall be construed in
accordance with laws of England and Wales without giving effect to any choice of
law principles thereof which would result in the application of the laws of
another jurisdiction.
ARTICLE 19 Arbitration
All disputes arising out of or in connection with this
Agreement shall be finally settled under the UNCITRAL arbitration rules by three
(3) arbitrators appointed in accordance with the said rules. The place of
arbitration shall be London, UK. The language of the arbitration shall be
English.
THIS AGREEMENT HAS BEEN SIGNED BY THE PARTIES (OR THEIR DULY
AUTHORISED REPRESENTATIVES) ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
16
SCHEDULE 1
PART 1 TF Corporate Details
Registered number: CH-170.3.037.214 -4
Registered office: TF Petroleum AG, Bahnhofstrasse
9, 6341 Baar, ZG, Switzerland
Date and place of incorporation: September 24,
2012,
6341 Baar, ZG, Switzerland
Directors:
Khurshed Nozimov
Werner
Ladwein
Shareholders: Kavsar General Trading
FZE
Paid-in capital stock: CHF 100,000 (i.e. 100%)
1
SCHEDULE 1
PART 2 TFs Interests
A. |
TF holds 100% interests in Petroleum Sugd, a joint
venture company incorporated under the laws of Tajikistan PS. |
B. |
PS owns 100% interests in several producing oilfields and
acreage under application onshore Tajikistan and related assets, including
following existing oil fields: |
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Airitan Field |
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Kanibadam and North Kanibadam
Fields |
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Niazbek and North Karachicum
Field |
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- |
Obi Shifo and North Karatau
Fields |
|
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Ravat Field |
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- |
SelRoho Field |
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- |
Mahram Field |
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Madaniyat Field |
C. |
On 17 July 2012, Ministry of Energy and Industry has
issued following new licences in respect of above listed oil and gas
fields, essentially re-issuing Licences (i.e. LICENSING AGREEMENTS) and
also valid until 20 December 2022: |
Licence No 0003804 for Prospection and Exploration of oil and
gas.
Licence No 0003805 for Operation of oil and gas fields.
Licence No
0003807 for Production (extraction) of oil and gas.
2
SCHEDULE 2
Map of Areas for which Seller will obtain New Petroleum
Exploration Rights
3
SCHEDULE 3
Sellers Warranties
1.1 |
Due Incorporation and Capacity |
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|
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The Seller is a corporation validly existing under the
laws of the UAE with the requisite power and authority to enter into and
perform, and has taken all necessary corporate action to authorise the
execution and performance of, its obligations under this
agreement. |
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1.2 |
Valid Obligations |
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|
This Agreement constitutes valid and binding obligations
of the Seller. |
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1.3 |
Filings and Consents |
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Other than as contemplated by this Agreement, no material
notices, reports or filings are required to be made by the seller in
connection with the transactions contemplated by this Agreement, nor are
any consents, approvals, registrations, authorisations or permits required
to be obtained by the seller in connection with the execution and
performance of this Agreement. |
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1.4 |
Recitals |
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The particulars relating to TF set out in the recitals
and the Schedules to this Agreement are true and accurate. |
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1.5 |
Incorporation |
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a) |
TF is a corporation validly existing under the laws of
Switzerland with full power and authority to conduct its business as
presently conducted. |
|
b) |
PS is a corporation validly existing under the laws of
Tajikistan with full power and authority to conduct its business as
presently conducted. |
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c) |
The books (including all registers and minute books) of
TF and PS are up to date and have been properly kept and no notice or
allegation that any of them is incorrect or should be rectified has been
received. |
|
a) |
The shares described in the Schedule 1 constitute 100% of
the issued and allotted share capital of TF and are fully paid up and TF
has not exercised or purported to exercise or claimed any lien over
them. |
|
d) |
There is no option, right to acquire, conversion right,
mortgage, charge, pledge, lien or other form of security or encumbrance
on, over or affecting any of the Shares and there is no agreement or
commitment to give or create any of the foregoing. |
|
e) |
The Seller is entitled to transfer or procure the
transfer of the full legal and beneficial ownership in the Shares to the
Purchaser on the terms set out in this Agreement. |
|
f) |
TF has not issued or agreed to issue any loan
capital. |
4
1.7 |
Subsidiaries and associates |
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|
|
As of the Completion Date: TF will be the beneficial
owner of 100% of the issued share capital of PS; Other than PS, TF will
not have any interests and will not hold or beneficially own, control, nor
agree to acquire, any shares of any other corporation. |
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|
|
PS will not have any subsidiary and will not hold or
beneficially own, control, nor agree to acquire, any shares of any other
corporation. |
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1.8 |
Assets |
|
a) |
Particulars of each fixed asset with a value in excess of
USD 10,000.00 acquired or agreed to be acquired by TF or PS since the
Accounts Date are set out in the Disclosure Letter. |
|
b) |
Except for assets offered for sale or sold in the
ordinary course of business, neither EPA, PS nor TF has since the Accounts
Date disposed or agreed to dispose of any of the assets included in the
Accounts or any asset acquired or agreed to be acquired since the Accounts
Date, in each case with a book value in excess of USD 10,000.00. |
|
c) |
All material records and information belonging to TF,
EPA, Liquidated PS and PS (whether or not held in written form) are in its
exclusive possession and/or under its control, and all such records and
information are subject to access by it; provided, however, that all
Excluded Records shall become the property, and be in the sole possession,
of the Seller. |
|
d) |
The assets included in the Accounts or acquired by TF or
PS since the Accounts Date (other than trading stock disposed of since
that date in the ordinary course of business) are the property of TF or,
as the case may be, PS, free from any Encumbrance and are not the subject
of any leasing, hiring or hire-purchase agreement, and all such assets are
in the possession or under the control of TF or, as the case may be,
PS. |
|
e) |
Seller warrant validity of LICENSING AGREEMENTS, land
entitlements, royalty agreements, tax rates, etc as of the date of signing
this Agreement as well as the Completion Date. |
|
f) |
Seller warrants to be responsible for any claim arising
from its past relationship with Vivalo in the Liquidated PS. |
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g) |
Seller warrants that it does not have knowledge of any
liabilities and contingent liabilities other than those identified during
Audit and Due Diligence and disclosed in the Disclosure Letter and
Annexure 2. Seller further warrants that any liability not disclosed in
the aforementioned Annexure, including environment and tax liabilities
will be handled by Seller at Sellers expense (via downward adjustment of
Seller`s shareholding in TF. |
1.9 |
Economic Date Accounts |
|
a) |
The Economic Date Accounts will be prepared in accordance
with applicable laws and GAAP. |
|
b) |
fairly present the state of affairs, the assets and the
liabilities of TF and PS as at the Economic Date and of the profit or loss
of TF and PS for the period ended on said date; |
|
c) |
will be prepared on a proper and consistent basis in
accordance with the basis employed in TF's and PS audited accounts for
each of the three preceding financial periods and all accounts required by
law to be delivered or made to any authority have been duly and correctly
delivered or made; |
|
d) |
will be audited or reviewed as outlined in Article 4.1.6
of this Agreement. |
|
e) |
contain such provisions and deferred tax assets as are
required by GAAP to cover all taxation and other liabilities of TF and PS
as at the Economics Date; |
5
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f) |
The tax book value of the assets and liabilities of TF
under Swiss law and the tax book value of the assets and liabilities of PS
under Tajikistani law provided by Seller pursuant to Article 3.1.5 of this
Agreement is accurate. |
1.10 |
Position since Accounts
Date |
|
a) |
TF, EPA and PS have carried on their business in the
normal course and there has been no material and adverse change in the
financial position of TF, EPA or PS; |
|
b) |
except for any dividends provided for in the Accounts and
Article 4.2.11 of this Agreement, no dividend, repayment of share premium,
or other distribution or repayment has been declared, paid or made by TF,
EPA or PS; |
|
c) |
no share or loan capital has been issued or agreed to be
issued by TF, EPA or PS; |
|
d) |
no capital commitment has been entered into by TF, EPA or
PS to spend monies other than in accordance with the capital expenditure
budget set out in the Disclosure Letter; and |
|
e) |
TF, EPA or PS have not entered into any Major
Contract. |
1.11 |
Licences and
Compliance |
|
a) |
TF, EPA and PS have conducted their businesses in
accordance with all applicable laws, regulations and other requirements of
authorities having jurisdiction over the Companies or the Interest and TF,
EPA, and PS directly or through the Operator have obtained all material
licences, permissions, authorisations and consents required for the
carrying on of the business now carried on by them in the places and in
the manner in which that business is now carried on and such licences,
permissions, authorisations and consents are in full force and
effect. |
|
b) |
Neither PS or Liquidated PS nor to the knowledge of the
Seller, the Operator has received notice that it is in default under any
material licence, permission, authorisation or consent. |
|
c) |
Neither PS nor Liquidated PS has received notice that it
is in violation of, or in default with respect to, any statute,
regulation, order, decree or judgment of any court or any governmental
agency of the jurisdiction in which it is
incorporated. |
|
a) |
Notwithstanding any other term of this Agreement, the
only Warranties that are given in relation to the environment are those
contained in this paragraph. |
|
b) |
In view of section 4.1.4 of the Audit Report, Seller and
Purchaser shall agree on an Environment baseline in respect of all PS
sites and wells and Seller shall take responsibility for status of sites
and wells as of the Completion Date. In this Environment baseline, all
abandoned wells are to be identified. |
|
c) |
Liquidated PS and PS, to the Sellers knowledge, have
complied with all Environmental Law or Environmental Licence and neither
PS nor Liquidated PS has received any written notice or communication from
which it appears that it is or may be in violation of any Environmental
Law or Environmental Licence. |
|
d) |
Neither EPA, PS, Liquidated PS nor TF, to the Sellers
knowledge, is engaged in any disputes, proceedings, litigation or
arbitration proceedings concerning Environmental Laws or Dangerous
Substances nor have the Companies nor to the Sellers knowledge the
Operator received any communication that there has been a material
incident of pollution in relation to the Interest. |
|
e) |
No payments have been made, are currently to be made, by
PS or Liquidated PS in respect of the Interest for any future abandonment
or decommissioning obligations. |
6
1.13 |
Intellectual Property
Rights |
|
a) |
No notice has been received by EPA, PS, Liquidated PS or
TF claiming that it infringes any right in confidential information or
other intellectual property right of any third party. |
|
b) |
So far as the Seller is aware, there is no outstanding
infringement of any intellectual property rights referred to in sub-para
(a) above by EPA, PS, Liquidated PS or TF. |
|
a) |
Neither EPA, PS, Liquidated PS nor TF has received notice
that it is in default under any agreement, mortgage, charge, lien or
pledge, nor has it received notice that it is in breach or default of the
LICENSING AGREEMENTs. |
|
b) |
PS is the legal and beneficial owner of the Interest,
free from Encumbrances. The LICENSING AGREEMENTs are in full force and
effect, and no act or omission of EPA, PS, Liquidated PS or TF has
occurred which would or might reasonably entitle any competent authority
to revoke, vary or terminate the LICENSING AGREEMENTs. The LICENSING
AGREEMENTs are not in the course of being surrendered. No sole risk or
non-consent proposals are proposed or existent under the LICENSING
AGREEMENTs. All compulsory work obligations have been fulfilled and no
notice have been given by the Government of any intention to require any
further work of a material nature to be performed under the LICENSING
AGREEMENTs. |
|
c) |
There are no subsisting contracts to which PS or TF is a
party and in which any member of the Sellers Group has an interest (other
than, in the case of the Seller, its interest in the Shares). |
|
d) |
Other than in relation to the LICENSING AGREEMENTs,
neither PS nor TF are a party to any other Major Contract, nor have they
agreed to become, a member of any partnership or other unincorporated
association, joint venture or consortium (other than recognised trade
associations). |
|
a) |
Neither EPA, PS, Liquidated PS nor TF has received any
notice to repay any borrowings or indebtedness under any agreements
relating to any borrowing (or indebtedness in the nature of borrowing)
which are repayable on demand; and no event of default has occurred and is
outstanding under any agreement relating to any other borrowing or
indebtedness in the nature of borrowing or other credit facility of EPA,
PS, Liquidated PS or TF. |
|
b) |
Neither EPA, PS, Liquidated PS nor TF has any outstanding
Group Loans, borrowings, debts loan capital or any money borrowed or
raised (other than under its bank facilities or normal trade
credits). |
|
c) |
Neither EPA, PS, Liquidated PS nor TF has lent any money
which is due to be repaid and, as at the date of this Agreement, has not
been repaid or owns the benefit of any debt other than debts accrued in
the ordinary course of its business. |
7
1.16 Litigation
Except as set out in the disclosure letter, neither EPA, PS,
Liquidated PS nor TF is a party to any litigation, arbitration or administrative
proceedings. Disclosure letter includes mention of an arbitration proceeding by
owner of Vivalo against government of Tajikistan concerning liquidated PS which
appears to be closed matter.
1.17 Insurances
PS has taken out insurances on the basis and in respect of the
risks referred to in the list of insurance cover contained in Schedule 6 hereto
and:
|
(a) |
no policies shall be in force and effect at and after
Completion; |
|
(b) |
such policies will be in full force and effect up to (but
not including) Completion in accordance with their respective
terms. |
|
(c) |
All the assets and undertakings of TF and PS of an
insurable nature are and have at all times been insured in amounts
representing their full replacement or reinstatement value against all
risks normally insured by companies on the same classes of businesses as
TFs or PSs business. |
1.18 Employees
List of employees of PS and TF provided pursuant to Article
3.2.5 of this Agreement shall be accurate as of the Completion Date.
1.19 Liquidation
|
a) |
No administrator, receiver or administrative receiver or
local equivalent has been appointed in respect of the whole or any part of
the assets of PS or TF. |
|
b) |
No petition has been presented, no order has been made
and no resolution has been passed for the winding-up of TF or
PS. |
|
c) |
Neither PS nor TF is insolvent or unable to pay its debts
and neither PS nor TF has stopped paying its debts as they fall
due. |
|
d) |
No voluntary arrangement or compromise or other
arrangement with creditors has been proposed, agreed or sanctioned under
any applicable law in respect of TF or PS. |
2. |
Tax Warranties |
|
|
2.1 |
General |
|
a) |
All Taxation of any nature whatsoever for which TF, EPA
and PS is liable until the Completion Date has within the time limits
prescribed by the relevant legislation been or will be duly and correctly
paid or provided for. |
|
b) |
To Sellers knowledge, all notices, computations and
returns which ought to have been given or made, have been properly and
duly submitted by TF, EPA and/or PS to the relevant Taxation authorities
and all information, notices, computations and returns submitted to such
authorities are true, accurate and complete and are not the subject of any
dispute nor, to the knowledge of EPA, PS or TF, are they likely to become
the subject of any dispute with such authorities. All records which EPA,
TF and/or PS are required to keep for Taxation purposes or which would be
needed to substantiate any claim made or position taken in relation to
Taxation by EPA, TF and/or PS, have been properly and duly kept and are
available for inspection at the premises of TF and/or PS
respectively. |
8
|
c) |
All claims or other requests for any particular treatment
relating to Taxation that have been taken into account in computing any
amount in the Economic Date Accounts have been duly made. All tax
liabilities which are not already paid are duly provided for. |
|
d) |
The amount of Taxation chargeable on EPA, TF or PS during
any accounting period ending on or within ten years before the Economic
Date has not been affected to any material extent by any concession,
arrangements, agreement or other formal or informal arrangement with any
Taxation authority (other than such LICENSING AGREEMENTs, agreements or
arrangements available to companies generally). |
|
e) |
Neither EPA, Liquidated PS, PS nor TF are liable to pay,
nor to their knowledge are there any circumstances by reason of which
either is likely to become liable to pay any interest, penalty, surcharge
or fine relating to Taxation. |
|
f) |
Neither EPA, Liquidated PS, PS nor TF have been subject
to or is currently subject to any investigation, audit or visit by any
Taxation or excise authority, and neither the Seller, TF nor PS are aware
of any such investigation, audit or visit planned for the next twelve
months. |
|
g) |
Neither EPA, Liquidated PS, PS nor TF have any liability
in respect of Taxation arising in any part of the world in respect of
income, profits or gains arising or deemed to arise before the Economic
Accounts Date or in respect of any event occurring or deemed to occur
before the Economic Accounts Date that is not provided for in full in the
Accounts. |
|
h) |
EPA, Liquidated PS, PS and TF have not been involved in
any transaction outside the ordinary course of business which has given or
may give rise to a liability to Taxation on TF or PS. |
|
i) |
It has complied with Tajik tax requirements with respect
to the contemplated transaction, and that any taxes imposed on PS as a
result of EPA transferring shares of PS into Seller, and Seller
transferring shares of PS into TF, are to be paid by
Seller. |
2.2 |
Deductions and Withholdings |
|
|
|
|
a) |
EPA, Liquidated PS, PS and TF have made all deductions in
respect, or in account, of any Taxation from any payments made by it which
it is obliged or entitled to make and has accounted in full to the
appropriate authority for all amounts so deducted. |
|
b) |
Neither EPA, Liquidated PS, PS nor TF have received any
notice from any Taxation authority which required or will require any of
them to withhold Taxation from any payment made since the Economic Date
(in respect of which such withheld Taxation has not been accounted for in
full to the appropriate authority). |
|
A) |
TF is not treated for any taxation purpose as resident in
a country other than the country of its incorporation and TF does not
have, nor has had a branch, agency or permanent establishment in a country
other than the country of its incorporation. |
|
b) |
PS is resident in Tajikista.n, the country of its
incorporation and does not have, nor has had a branch, agency or permanent
establishment in a country other than Tajikistan. |
9
2.4 Transfer Pricing
No transactions or arrangements involving EPA, PS nor TF have
taken place within the past two years or are in existence which are such that
any provision relating to transfer pricing might be invoked by a taxation or
excise authority.
2.5 Deemed Income and Profits
Except as provided in the accounts, TF and PS do not have a
liability to taxation on income or profits except in respect of and to the
extent of income and profits actually received, nor do any arrangements exist
which might give rise to such a liability.
2.6 Value Added Tax
|
a) |
For the purposes of this paragraph, VAT means
value added tax. |
|
b) |
TF is duly registered for the purposes of VAT in its
country of incorporation. |
|
c) |
TF has complied with all statutory provisions, rules,
regulations, orders and directions concerning VAT, including the making on
time of accurate returns and payments and the maintenance of
records. |
2.1 Stamp Duty
All stamp duty and similar taxes or duties have been correctly
and duly paid in respect of all transactions executed prior to the date of
completion.
3 ACCURACY AND COMPELETENESS OF INFORMATION
All facts material to the condition of the Interest, the
business, TF and PS have been disclosed to the Purchaser in writing and the
information contained in this Agreement or made available to the purchaser is
true, correct and complete in all material aspects. The Seller is not aware of
any fact or matter, including any omission, which would render any such
information incorrect or misleading in any material aspect.
10
SCHEDULE 4
Limits on Warranty Claims
1. |
Acknowledgement |
|
|
|
|
The Purchaser acknowledges and agrees that: |
|
|
|
|
(a) |
the Warranties are the only representations, warranties
or other assurances of any kind given by or on behalf of the Seller or any
member of the Sellers Group and on which the Purchaser may rely in
entering into this Agreement; |
|
|
|
|
(b) |
no other statement, promise or forecast made by or on
behalf of the Seller or any member of the Sellers Group may form the
basis of, or be pleaded in connection with, any claim by the Purchaser
under or in connection with this Agreement; and |
|
|
|
|
(c) |
at the time of entering into this Agreement the Purchaser
is not aware of a breach of the Warranties. |
2. |
Conduct of third party claims |
|
|
2.1 |
Subject to paragraph 2.2 below, if a Warranty Claim
arises as a result of, or in connection with, a liability or alleged
liability to a third party (a Third Party Claim), then the Seller
may elect to assume the conduct of any appeal, dispute, compromise or
defence of the Third Party Claim and of any incidental negotiations using
legal counsel of the Sellers choice and on the following
terms: |
|
(a) |
the Seller shall first agree to indemnify the Purchaser,
TF and PS against all liabilities, charges, costs and expenses which they
may incur in taking any such action as the Seller may reasonably
require; |
|
|
|
|
(b) |
the Purchaser shall procure TF and PS to make available
to the Seller such persons and all such information as the Seller may
reasonably require for assessing, contesting, appealing or compromising
the Third Party Claim; |
|
|
|
|
(c) |
the Purchaser shall procure that TF and PS take such
action to contest, appeal or compromise the Third Party Claim as may
reasonably be requested by the Seller and does not make any admission of
liability, agreement, settlement or compromise in relation to the Third
Party Claim without the approval of the Seller; and |
|
|
|
|
(d) |
the Seller shall on an ongoing basis consult with and
keep the Purchaser fully and promptly informed of the progress of the
Third Party Claim and promptly provide the Purchaser with copies of all
relevant documents and such other information in its possession as may be
requested by the Purchaser. |
2.2 |
If a Warranty Claim arises as a result of, or in
connection with a Third Party Claim in respect of which the Purchaser
wishes to retain conduct of any appeal, dispute, compromise or defence and
of any incidental negotiations, then the Purchaser shall notify the Seller
of its intention to do so and paragraph 2.1 above shall not apply,
provided in all such cases that the Seller shall not be liable to
Purchaser or the third party under any circumstances whatsoever in respect
of such Warranty Claim. |
11
3. Mitigation
Nothing in this Agreement shall be deemed to relieve the
Purchaser from any duty to mitigate any loss or damage incurred by it as a
result of any breach of the Warranties.
4. Recovery from third parties
This paragraph applies if:
|
(a) |
the Seller makes a payment (excluding any interest on a
late payment) in respect of a Warranty Claim (the Damages Payment);
and |
|
|
|
|
(b) |
TF, PS or the Purchaser receives any sum which would not
have been received but for the circumstance which gave rise to that
Warranty Claim (the Third Party Sum); and |
|
|
|
|
(c) |
the receipt of the Third Party Sum was not taken into
account in calculating the Damages Payment; and |
|
|
|
|
(d) |
the aggregate of the Third Party Sum and the Damages
Payment exceeds the amount required to compensate the Purchaser in full
for the loss or liability which gave rise to the Warranty Claim in
question, such excess being the Excess Recovery. |
|
|
|
|
(e) |
If this paragraph applies, the Purchaser shall, promptly
on receipt of the Third Party Sum by it, PS, or TF, repay to the Seller an
amount equal to the lower of (i) the Excess Recovery and (ii) the Damages
Payment, after deducting (in either case) all costs incurred by the
Purchaser, PS, or TF in recovering the Third Party Sum and any taxation
payable by the Purchaser, PS, or TF by virtue of its
receipt. |
5 Insurance
Without prejudice to the Purchaser's duty to mitigate any loss
in respect of any breach of the Warranties, if in respect of any matter which
would otherwise give rise to a breach of the Warranties TF or PS are entitled to
claim under any policy of insurance, the amount of insurance monies to which TF
or PS are entitled (after deduction of any costs) shall reduce pro tanto or extinguish the claim for breach of the Warranties.
6 Basis of
damages
No party hereunder shall be liable to another under any
circumstances for punitive, indirect, or consequential damages, or for loss of
profit or opportunity.
12
SCHEDULE 5
Completion
PART 1 - SELLER'S OBLIGATIONS
At Completion the Seller shall procure, with regard to TF, the
delivery to the Purchaser of:
(a) |
Notarized English translation of an official document
showing that 100% of shares in PS is owned by TF. |
|
|
(b) |
a duly executed deed of transfer in favour of the
Purchaser or its nominee(s) of all the Shares; |
|
|
(c) |
the articles of association, certificate confirming the
tax registration, the board minutes and the shareholders register
relating to the Shares; |
|
|
(d) |
a board resolution of TF and Seller in which (i) the
transfer referred to in paragraph (a) above is approved, and (ii) the
amendment of all mandates to bankers terminating the authority of current
TF/PS authorised persons and giving authority to operate the bank accounts
of TF/PS to persons nominated by the Purchaser. |
PART 2 - PURCHASER'S OBLIGATIONS
|
AT COMPLETION THE PURCHASER SHALL: |
|
|
(a) |
pay USD 3,900,000, subject to any necessary downward
adjustment in accordance with this Agreement, being remaining part of
Consideration together with interest on such amount pursuant to the
Agreement to the Seller; and |
|
|
(b) |
deliver to the Seller a certified copy of an extract of
the resolutions of the board of directors (or a duly constituted committee
of the board) of the Purchaser authorising the execution of this Agreement
and any other agreements to be executed by the Purchaser at
Completion. |
13
SCHEDULE 6
Insurance Policies
Insurance policies are attached:
14
SCHEDULE 7
DEAL STRUCTURE
15
16
SCHEDULE 8
Interpretation
1. |
In this Agreement: |
|
|
|
Accounts means the audited financial statements
for the period ending 30.09.2012; |
|
|
|
Accounts Date means 30.09.2012; |
|
|
|
Actions shall have meaning ascribed thereto in
Recital F of this Agreement. |
|
|
|
Affiliate means any company(ies) or legal
entity(ies) that (i) controls either directly or indirectly a party; or
(ii) is controlled directly or indirectly by a party; or (iii) is directly
or indirectly controlled by a company or entity that directly or
indirectly control a party. Control means the ownership directly or
indirectly of more than fifty percent (50%) of the voting rights in a
company or legal entity; |
|
|
|
Appointment Day means the date on which the
Independent Accountants confirms in writing to the Purchaser and the
Seller that it has accepted the instructions to act pursuant to clause 6
of this Agreement; |
|
|
|
Audit shall have meaning ascribed thereto in
Recital C of this Agreement. |
|
|
|
Business Day means a day (other than a Saturday or
Sunday) on which banks are generally open in Dushanbe for normal
business; |
|
|
|
Companies means TF and PS; |
|
|
|
Completion means completion of the sale and
purchase of the Shares in accordance with this Agreement; |
|
|
|
Completion Date means the date set forth in
Article 3.2 of the Agreement; |
|
|
|
Conditions Precedent means the conditions
precedent to Completion set out in Article 3.2; |
|
|
|
Dangerous Substance means any natural or
artificial substance likely to cause harm to persons or any other living
organism, or likely to cause damage to the environment or public health or
welfare. |
|
|
|
Disclosure Letter means the letter of the same
date as this Agreement from the Seller to the Purchaser essentially
confirming results of legal due diligence and Audit arranged by the
Purchaser; |
|
|
|
Due Diligence shall have meaning ascribed thereto
in Recital E of this Agreement. |
|
|
|
Economic Date means 31.12.2012; |
|
|
|
Economic Date Accounts means the audited balance
sheets as at the Economic Date and audited profit and loss accounts of
both TF and PS for the year ended on that date; |
17
Encumbrance means any mortgage,
charge (fixed or floating), pledge, lien, option, right to acquire, assignment
by way of security, trust arrangement for the purpose of providing security or
any other security interest of any kind, including retention arrangements and
any agreement to create any of the foregoing;
Environmental Laws means all
statutes, notifications, regulations, Guidelines and binding court decisions
applicable in Tajikistan concerning the protection of human health or the
environment or the generation, transportation, storage, control of Waste and
Pollutants, treatment or disposal of a Hazardous Waste, Dangerous Substance and
capable of enforcement by legal process in the jurisdiction of operation of TF
or PS;
Environmental Licence means any
permit, licence, authorisation, consent or other approval required under or in
relation to any Environmental Law;
EPA shall have the meaning
ascribed thereto in Recital A of this Agreement.
ESCROW shall have the meaning
ascribed thereto in Article 3.1.6 of this Agreement.
Excluded Records means all
originals and copies of agreements, documents, books, records, files, computer
software and data reasonably considered by the Seller to be proprietary to the
Seller or a member of the Sellers Group (other than EPA-AT and TF) and accepted
as such by the Purchaser.
GAAP means generally accepted
accounting principles and practices of each respective country;
Government means the Government
of Tajikistan;
Group Loans means the
outstanding loan capital or monies borrowed by TF or PS from the Seller or a
member of the Sellers Group, by way of unsecured loans, repayable on demand
including, without limitation, any advances described in Article 7.1(b);
Independent Accountants means
such firm of chartered accountants as may be appointed under the clause headed
"Independent Accountants";
Interest means the working
interest of PS in and under the LICENSING AGREEMENTs;
Interim Period means the period
of time from the Economic Date to but excluding Completion;
LIBOR means in relation to the
amount and the currency of the sum in question, the rate per annum at which a
deposit for one month would have been offered by the National Westminster Bank
plc to prime banks in the London Interbank Market at such banks request at or
about 11.00 am (London time) on the first Business Day of the period specified
hereunder in respect of which interest is to be calculated.
LICENSING AGREEMENTs shall have
the meaning ascribed thereto in Recital B of this Agreement.
Liquidated PS shall have the
meaning ascribed thereto in Recital B of this Agreement.
18
Major Contract means a written
contract to which TF, EPA, Liquidated PS or PS is or was a party, including
without limitation, service agreements with a member of the Sellers Group, in
each case with a value in excess of USD 10,000 (or its equivalent in foreign
currency);
NEXT ADVANCE shall have the
meaning ascribed thereto in Article 2.4 of this Agreement.
Operator means the party
designated as the Operator under the Licensing Agreements;
OPTION shall have the meaning
ascribed thereto in Recital C of this Agreement.
OPTION AGREEMENT shall have the
meaning ascribed thereto in Recital C of this Agreement.
Parties means the Seller or the
Purchaser.
Purchasers Advance in respect of TF shall have the meaning ascribed thereto in Recital D of this
Agreement.
Purchaser's Group means the
Purchaser and its Affiliates (other than TF or PS) from time to time;
PS shall have the meaning
ascribed thereto in Recital A of this Agreement.
Real Estate Properties shall
have the meaning ascribed thereto in Article 3.1.3 of this Agreement.
"Properties" and Property means any of them and includes every part of each of
them;
Sellers Group means Seller, or
EPA and any undertaking or company other than the Companies that is, at the
relevant time, directly or indirectly affiliated with the two first mentioned
companies or either of them;
For the purpose of this definition a
particular company or undertaking is:
|
(i) |
directly affiliated with another company or companies if
the latter beneficially hold/holds shares carrying 50% (fifty percent) or
more of the votes exercisable at a general meeting of shareholders (or its
equivalent) of the particular company; and |
|
|
|
|
(ii) |
indirectly affiliated with a company or companies (in
this definition referred to as "the parent company or companies") if a
series of companies can be specified, beginning with the parent company or
companies and ending with the particular company, so related that each
company of the series, except the parent company or companies, is directly
affiliated with one or more companies earlier in the
series. |
Security Deposit shall have the
meaning ascribed thereto in Recital C of this Agreement.
Shares shall have the meaning
ascribed thereto in Recital C of this Agreement;
SHA shall have the meaning
ascribed thereto in clause 5.4 of this Agreement;
SNG shall have the meaning
ascribed thereto in Recital A of this Agreement;
19
Taxation means all forms of
taxes, duties, imposts, octrois and levies, whether of Tajikistan, the UAE,
Switzerland or elsewhere, including income tax (including income tax or amounts
equivalent to or in respect of income tax required to be deducted or withheld
from or accounted for in respect of any payment), corporation tax, advance
corporation tax, sales tax, petroleum income tax, value added tax, specific
business tax, royalties, house and land tax, local development tax, customs and
other import or export duties, excise duties, stamp duty, social security or
other similar contributions, and any interest, penalty, surcharge or fine
relating thereto, including a payment which TF or PS is liable to make as a
result of having claimed a credit in relation to any Taxation in excess of the
amount properly claimable, and, in a case where Taxation for which TF or PS is
liable is discharged by another person, the amount corresponding to that
Taxation for which TF or PS is, after that discharge, liable;
TF shall have the meaning
ascribed thereto in Recital D of this Agreement;
Third Party Claim shall have the
meaning ascribed thereto in Schedule 4, clause 2.1 of this Agreement;
USD or $ means United
States Dollars;
Vivalo shall have the meaning
ascribed thereto in Recital B of this Agreement;
Warranties means the warranties
on the part of the Seller contained in the clause headed "The Seller's
Warranties";
Warranty Claim means any claim
by the Purchaser arising out of or in connection with this Agreement, including
for any breach or alleged breach of any of the Warranties; and
Where any statement in the Schedule 3
or in the Disclosure Letter is qualified by the expression "so far as the Seller
is aware" or "to the best of the Seller's knowledge, information and belief" or
any similar expression, that statement shall be deemed to be made only on the
actual knowledge of the Seller after due diligent and careful enquiry of the
following individuals: Khurshed Nozimov
In this Agreement any reference,
express or implied, to an enactment (which includes any legislation in any
jurisdiction) includes references to:
that enactment as amended, extended or
applied by or under any other enactment (before or after signature of this
agreement);
In this Agreement:
|
(a) |
words denoting persons shall include bodies corporate and
unincorporated associations of persons; |
|
|
|
|
(b) |
references to an individual/a natural person include his
estate and personal representatives; |
|
|
|
|
(c) |
subject to the Article headed "Assignments", references
to a party are to a party to this Agreement and include references to the
successors or assigns (immediate or otherwise) of that party;
and |
|
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|
|
(d) |
references to time are to London
time. |
20
SIGNATORIES
Seller |
|
|
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|
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Signed by |
) |
|
KAVSAR GENERAL TRADING FZE |
) |
/s/
Nozimov K.H. |
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DWM PETROLEUM AG |
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|
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Signed by |
) |
|
for |
) |
/s/
Dr. Werner Ladwein |
18
ANNEXURE 1 OPTION AGREEMENT
1
Effective May 5, 2012
OPTION AGREEMENT
BETWEEN
KAVSAR GENERAL TRADING FZE
and
DWM PETROLEUM AG
Relating to the Option for the sale and purchase
of
80% of the issued share capital
of a Company that would
hold 100% shares in Petroleum Sugd
2
THIS OPTION AGREEMENT(Option
Agreement) is made effective as of May 5, 2012
BETWEEN:
(1) |
KAVSAR GENERAL TRADING FZE a company organised
under the laws of The UAE whose registered office is at Hamriyah Free
Zone, P.O. Box No 51393, Sharjah, UAE (the Kavsar);
and |
|
|
(2) |
DWM PETROLEUM AG, a company registered in
Switzerland, having its registered office at Bahnofstrasse 9, Baar,
Switzerland (referred to herein as the DWM). |
|
|
|
BACKGROUND: |
|
A. |
Kavsar owns 100% of the issued share capital of Energy
Partners Austria GmbH, a company registered in Austria (hereinafter
EPA-AT). |
|
|
|
|
B. |
EPA-AT is the legal and beneficial owner of 57.42% shares
in Petroleum Sugd, a joint venture with limited liability incorporated
under the laws of Tajikistan (hereinafter PS-2), and the
remaining 42.58% shares in PS-2 are held by Sugdneftugas, state oil
company of Tajikistan (hereinafter SNG). |
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|
|
|
C. |
A Tajik joint venture with limited liability also known
as Petroleum Sugd which is already liquidated (hereinafter PS-1),
is legal owner of rights in production licences for the fields identified
in the Schedule A hereof (hereinafter Licenses), and, Seller,
EP-AT and PS-2 are taking necessary steps to ensure that Licences are
formally registered under the name of PS-2. |
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|
D. |
DWM desires to purchase 80% shares in a Swiss company
that owns 100% shares in PS-2, and has therefore requested Kavsar to
purchase remaining shares of SNG in such a manner that PS-2 is owned 100%
by a new company. |
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|
|
E. |
Kavsar is willing to incorporate a new company in
Switzerland (hereinafter Newco) and take actions necessary for
transferring 100% shares of PS-2 in NewCo. |
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|
F. |
Kavsar is also willing to give DWM an option to purchase
80% shares in NewCo which would own 100% shares in PS-2. |
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|
G. |
Kavsar is also willing to allow DWM to conduct legal due
diligence and audit of EPA-AT, PS-1 and PS-2, respectively, to facilitate
DWMs decision regarding exercise of such option. |
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|
|
NOW THEREFORE, KAVSAR AND DWM AGREE as
follows: |
|
1. |
Kavsar and DWM shall take following actions: |
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|
a. |
Kavsar shall incorporate NewCo in Switzerland. |
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|
b. |
DWM shall pay to Kavsar, a refundable security deposit of
USD 10 million (Security Deposit), via wire transfer in Kavsars
bank account, in three (3) instalments on or before following dates, for
an option to purchase 80% shares in Newco
(Option): |
|
i. |
US$ 5 million on or before May 31, 2012 |
|
|
|
|
ii. |
US$ 2 million on or before July 15,
2012. |
3
|
iii. |
US$ 3 million on or before August 24,
2012 |
|
c. |
DWM shall engage a reputable local law firm to conduct
legal due diligence (hereinafter Due Diligence) regarding EPA-AT,
PS-1 and PS-2. |
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|
d. |
Once Due Diligence is completed, DWM shall engage
reputable international accounting firm to conduct an independent audit
(hereinafter Audit) of all books and accounts of EPA-AT, PS-1 and
PS-2 to follow-up on the concerns raised in the Due Diligence. |
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|
e. |
DWM may exercise the Option, within one (1) month of the
completion of Audit. |
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f. |
If DWM exercises the Option, Kavsar and DWM shall
negotiate a Share Purchase Agreement (hereinafter SPA) pursuant
to which Kavsar shall sell and DWM shall purchase 80% shares in NewCo, for
a purchase price to be agreed between Kavsar and DWM based on the findings
of the Audit (hereinafter Purchase Price). Once the SPA is signed,
Security Deposit shall be construed as the first payment made under the
SPA, and the remaining payment shall be due within thirty (30) days
thereafter. |
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g. |
In case, DWM does not exercise the Option following
completion of the Audit, DWM shall request Kavsar in writing within one
(1) month of the completion of the Audit, to return Security Deposit to
DWM, and Kavsar shall refund Security Deposit via wire transfer in DWMs
bank account on or before December 31, 2012. |
|
2. |
Once SPA is signed, in accordance with the SPA, Kavsar
and DWM shall take following actions: |
|
a. |
Kavsar shall seek requisite approvals of the Government
for following actions: |
|
i. |
To transfer EPAs entire shares in PS-2 (i.e. 57.42%), to
NewCo. |
|
|
|
|
ii. |
To purchase remaining 42.58% shares in PS-2 from SNG and
thereafter transfer such shares to NewCo. |
|
b. |
Kavsar shall notify DWM as soon as the requisite
approvals of the Government stipulated in para 2 a i are
obtained. |
|
|
|
|
c. |
Kavsar shall transfer EPAs entire shares in PS-2
(i.e.57.42%), to NewCo. |
|
|
|
|
d. |
Within ten (10) days of Kavsars transfer of EPAs entire
shares in PS-2 (i.e. 57.42%), to NewCo, Kavsar and DWM shall take
following simultaneous actions: |
|
i. |
DWM shall make a payment of Purchase Price minus Security
Deposit minus US$ 1 million |
|
|
|
|
ii. |
Kavsar shall place 80% shares of NewCo in escrow with an
escrow agent to be mutually agreed. |
|
e. |
Kavsar shall purchase remaining 42.58% shares in PS-2
from SNG and thereafter transfer such shares to
NewCo. |
4
|
f. |
Kavsar and DWM shall close the transaction envisaged
under the SPA, which shall inter alia include following simultaneous
actions: |
|
i. |
payment by DWM to Kavsar of Purchase Price minus payments
already made i.e. US$ 1 million, and |
|
|
|
|
ii. |
transfer by the escrow agent to DWM of 80% of shares in
NewCo. |
|
3. |
Unless required by applicable laws or securities
regulations, neither Kavsar nor DWM shall make the existence or contents
of this Option Agreement public. |
|
|
|
|
4. |
This Option Agreement shall be governed by the laws of
England & Wales, and any dispute if not resolved amicably shall be
resolved via international arbitration under the arbitration rules of the
International Chamber of Commerce. Venue of arbitration shall be Vienna,
Austria. |
IN WITNESS WHEREOF this Option Agreement has been signed by the
parties (or their duly authorised representatives) effective as of May 5, 2012
KAVSAR GENERAL TRADING FZE |
DWM PETROLEUM AG |
|
|
/s/ K.h. Nozimov |
/s/ Dr. Werner Ladwein |
Name: K.h. Nozimov |
Name: Dr Werner Ladwein |
Title: |
Title: President |
5
SCHEDULE A
PS-2 owns 100% interests in several producing oilfields and
acreage under application onshore Tajikistan and related assets, including
following existing oil fields:
|
1. |
Ayritan; |
|
2. |
KanibadamandNorthernKanibadam; |
|
3. |
Makhram; |
|
4. |
Ravat; |
|
5. |
Madaniyat |
|
6. |
Niyazbek; |
|
7. |
Sel-rokhi; |
|
8. |
Obi-Shifo. |
6
ANNEXURE 3 PURCHASERS NOTICE FOR EXERCISE OF OPTION
1
(printed on DWM letterhead)
Kavsar General Trading FZE |
|
Hamriyah Free Trade Zone |
|
P.O. Box No 51393 |
Baar, October 23, 2012 |
Sharjah, UAE |
|
Attention: |
Mr. Khurshed Nozimov, General
Manager |
|
|
Subject: |
Notice for exercise of Option under the Option
Agreement effective May 5, 2012 relating to the option for the sale
and purchase of 80% of the issued share capital of a Swiss company
that would hold 100% shares in Petroleum Sugd, a Tajik company (hereinafter Option Agreement). |
Dear Mr. Kh.Nozimov,
Pursuant to Article 1 e of the Option Agreement, DWM Petroleum
AG (DWM) is pleased to exercise the Option (as defined in the Option
Agreement), subject to Kavsar taking certain actions as described in detail in
Schedule A hereof (hereinafter Actions), to bring Licences (as defined in the
Option Agreement) and related agreements in order.
Kindly let us know if you have any questions regarding the
above notice.
Sincerely yours,
Dr. Werner Ladwein
President
2
SCHEDULE A
Actions to be taken by Kavsar to re-issue all documents related
to Licences under the name of existing Petroleum Sugd (PS) from the name of the
liquidated company with the same name)
Now that all Licences have been re-issued under the name
of Petroleum Sugd (PS), Kavsar must also ensure that all
documents related to the Licences are re-issued under the name of PS.
In particular following documents have to be re-issued under the name of PS:
1) |
Allotments (mining lease); |
2) |
Certificate of land usage; |
3) |
Ecological expertise; and |
4) |
Contract (for subsoil use) with the Government setting
royalty and bonuses rates. |
These requirements are also stipulated in Appendix to the
new Licenses (Section Content of Licenses).
3
(on DWM letterhead)
Kavsar General Trading FZE
Hamriyah Free Trade Zone
P.O. Box No 51393
Sharjah, UAE
Attention: |
Mr. Khurshed Nozimov, General
Manager |
|
|
Subject: |
Amendment to Share Purchase Agreement dated December
31, 2012 relating to the sale and purchase of 80% of the issued
share capital of TF Petroleum (hereinafter SPA).
|
Dear Mr. Kh.Nozimov,
With reference to our recent discussions, DWM Petroleum AG
(DWM) proposes to amend Articles 3.4.1 and 3.4.3 of SPA, as follows:
|
1. |
In Article 3.4.1 of the SPA, time period required for
satisfaction of Conditions Precedents (as defined in the SPA) is
increased from 120 days to 180 days. |
|
|
|
|
2. |
In Article 3.4.3 of the SPA, time period required for
satisfaction of Conditions for Next Advance (as defined in the SPA)
is increased from 90 days to 150 days. |
Except for the amendments proposed above, all other terms and
conditions of the SPA shall remain unaffected.
If you agree with the above proposal, kindly indicate such
agreement by signing in the space provided below, and thereafter returning to
us, one scanned version of signed copy of this document via e-mail.
Sincerely yours,
/s/ Dr. Werner Ladwein
Dr. Werner Ladwein
President
/s/ Mr. Khurshed Nozimov
Agreed for and on behalf of Kavsar General Trading FZE
Mr.
Khurshed Nozimov
1
Effective April 30, 2012
AMENDMENT NO 2 TO THE AGREEMENT
BETWEEN
KAVSAR GENERAL TRADING FZE
and
DWM PETROLEUM AG
Relating to the sale and purchase of
80% of the
issued share capital
of TF Petroleum AG
1
|
THIS AMENDMENT (Amendment) is made effective as
of April 30, 2012 |
|
|
|
BETWEEN: |
|
|
(1) |
KAVSAR GENERAL TRADING FZE a company organised
under the laws of The UAE whose registered office is at Hamriyah Free
Zone, P.O. Box No 51393, Sharjah, UAE (hereinafter referred to as
Kavsar); and |
|
|
(2) |
DWM PETROLEUM AG, a company registered in
Switzerland, having its registered office at Bahnofstrasse 9, Baar,
Switzerland (hereinafter referred to as DWM). |
|
|
|
BACKGROUND: |
|
A. |
Effective December 31, 2012, Kavsar and DWM entered into
a share purchase agreement relating to the sale and purchase of 80% the
issued share capital of TF Petroleum AG, a Swiss company that would hold
100% shares in Petroleum Sugd, a Tajik company (hereinafter
SPA). |
|
|
|
|
B. |
Effective December 31, 2013 Articles 3.4.1 and 3.4.3 of
the SPA has been amended. |
|
|
|
|
C. |
DWM now desires and Kavsar is willing to amend the
provisions in the SPA in respect of the Contract (for subsoil use) with
the Government setting royalty and bonus rates, as follows. |
|
|
|
|
|
NOW THEREFORE, KAVSAR AND DWM AGREE as
follows: |
|
1. |
Last line in Article 3.1.2 of the SPA which reads as
below is deleted: |
|
|
|
|
|
Contract (for subsoil use) with the Government setting
royalty and bonus rates. |
|
|
|
|
2. |
Following new Article 3.1.8 is added in SPA: |
|
|
|
|
|
Seller shall confirm to the Purchaser in writing that PS
has agreed with the responsible Government authority, the terms for the
Contract (for subsoil use) with the Government setting royalty and bonus
rates, along with a summary of terms so agreed. |
|
|
|
|
3. |
Following new Article 3.2.12 is added in SPA: |
|
|
|
|
|
Seller shall confirm to the Purchaser in writing that PS
has executed the Contract (for subsoil use) with the Government setting
royalty and bonus rates. |
|
|
|
|
4. |
Except for the amendments in Articles 1 - 3 above, all
other terms and conditions of the SPA shall remain in full force and
effect. |
IN WITNESS WHEREOF this Amendment has been signed by the
parties (or their duly authorised representatives) effective as of April 30,
2012
KAVSAR GENERAL TRADING FZE |
DWM PETROLEUM AG |
|
|
/s/ Mr. Khurshed Nozimov |
/s/ Dr. Werner Ladwein |
General Manager |
President |
2
Effective April 30, 2013
AMENDMENT NO 3 TO THE AGREEMENT
BETWEEN
KAVSAR GENERAL TRADING FZE
and
DWM PETROLEUM AG
Relating to the sale and purchase of
80% of the
issued share capital
of TF Petroleum AG
1
|
THIS AMENDMENT (Amendment) is made effective as
of April 30, 2012 |
|
|
|
BETWEEN: |
|
|
(1) |
KAVSAR GENERAL TRADING FZE a company organised
under the laws of The UAE whose registered office is at Hamriyah Free
Zone, P.O. Box No 51393, Sharjah, UAE (hereinafter referred to as
Kavsar); and |
|
|
(2) |
DWM PETROLEUM AG, a company registered in
Switzerland, having its registered office at Bahnofstrasse 9, Baar,
Switzerland (hereinafter referred to as DWM). |
|
|
|
BACKGROUND: |
|
A. |
Effective December 31, 2012, Kavsar and DWM entered into
a share purchase agreement relating to the sale and purchase of 80% the
issued share capital of TF Petroleum AG, a Swiss company that would hold
100% shares in Petroleum Sugd, a Tajik company (hereinafter
SPA). |
|
|
|
|
B. |
SPA has been subsequently amended effective as of
December 31, 2012 and April 30, 2013, respectively. |
|
|
|
|
C. |
DWM now desires and Kavsar is willing to further amend
the provisions in the SPA as follows. |
|
|
|
|
|
NOW THEREFORE, KAVSAR AND DWM AGREE as
follows: |
|
1. |
In Article 3.4.1 of the SPA, time period required for
satisfaction of Conditions Precedents (as defined in the SPA) is increased
from 180 days to 270 days. |
|
|
|
|
2. |
In Article 3.4.3 of the SPA, time period required for
satisfaction of Conditions for Next Advance (as defined in the SPA) is
increased from 150 days to 180 days. |
|
|
|
|
3. |
Except for the amendments above, all other terms and
conditions of the SPA shall remain in full force and
effect. |
IN WITNESS WHEREOF this Amendment has been signed by the
parties (or their duly authorised representatives) effective as of April 30,
2013.
KAVSAR GENERAL TRADING FZE |
DWM PETROLEUM AG |
|
|
/s/ Kh Nozimov |
/s/ Werner Ladwein |
Name: Kh Nozimov |
Name: W. Ladwein |
Title: CEO |
Title: CEO & President |
2
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