Exhibit 1.2
CANARGO ENERGY CORPORATION
25,000,000 SHARES OF COMMON STOCK
PLACEMENT AGENT AGREEMENT
(International Version)
September __, 2004
ABG Sundal Xxxxxxx Norge ASA
As Representative of the several
Agents named in
Schedule I attached hereto
X.X. Xxx 0000
0000 Xxxx
Xxxxxx
Ladies and Gentlemen:
The undersigned, CanArgo Energy Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell up to 25,000,000 shares (the
"Securities") of common stock, par value $0.10 per share, of the Company
("Common Stock"), in Norway, Switzerland and Sweden (subject to adjustment by
the International Representative as described below). The Securities are more
fully described in the Prospectus referred to below. The Securities will be sold
by two separate groups of placement agents, the "International Syndicate"
consisting of you as lead International placement agent Orion Securities Inc.
(the "Canadian Agent") and the other agents set forth on Schedule I hereto (you,
the Canadian Agent, and these agents are collectively referred to as the
"Agents") and the "U.S. Syndicate" consisting of ABG Sundal Xxxxxxx Inc. as lead
U.S. placement agent (the "U.S. Representative"), Orion Securities (USA) Inc.
and Aton Securities, Inc.
It is understood by all the parties that the Company is concurrently
entering into this agreement (the "Agreement") and a substantially identical
agreement (the "U.S. Placement Agent Agreement") providing for the sale by the
Company of up to 57,500,000 shares of Common Stock through arrangements with the
U.S. Syndicate (the "U.S. Agents"), for which the U.S. Representative is acting
as representative; provided, however, that the aggregate amount of Common Stock
sold by the International Syndicate outside the United States under this
Agreement and the U.S. Syndicate in the United States under the U.S. Placement
Agent Agreement shall not exceed 75,000,000 shares. Anything herein or therein
to the contrary notwithstanding, the respective closings under this Agreement
and the U.S. Placement Agent Agreement are hereby made conditional on one
another.
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The International Syndicate will offer shares solely in Norway,
Canada, Switzerland and Sweden , and the U.S. Syndicate will offer shares solely
in the United States, provided that the Securities offered and sold by the
International Agents shall be offered and sold on the same economic terms as set
forth herein. The total amount of Securities available for sale in Norway,
Switzerland and Sweden by the International Agents will be up to 25,000,000
(subject to adjustment by the International Representative as set forth in the
Agreement between Syndicates (as defined below)). The U.S. Syndicate and the
International Syndicate are simultaneously herewith entering into an Agreement
between them (the "Agreement between Syndicates"), which provides, among other
things, that the International Representative shall act as global arranger and
coordinator for the offering of Securities, and the procedures to be followed by
the International Representative in connection therewith.
One U.S. form and several international forms of prospectuses are to
be used in connection with the offering and sale of the Securities contemplated
by the foregoing, the former relating to the Securities to be offered and sold
by the U.S. Agents in the United States and the Securities sold by the
International Syndicate in Canada (when used in connection with Securities
offered and sold in Canada, such prospectus shall include such annexes,
additional cover pages and substitute pages as required by local law (the
"Canadian Offering Memorandum")), and the latter relating to the Securities to
be offered and sold by the International Syndicate other than in Canada. The
international forms of prospectus will be substantially identical to the U.S.
prospectus, except for certain annexes, additional cover pages and substitute
pages as included or referred to in the registration statement and amendments
thereto mentioned below and required by local law. Except as used in Sections 1,
4, 5 and 11 herein, and except as the context may otherwise require, reference
herein to the Securities shall include all of the Securities which may be
offered and sold pursuant to either this Agreement or the U.S. Placement Agent
Agreement. References herein to any prospectus, whether in preliminary or final
form, and whether as amended or supplemented, shall include the International
and U.S. versions thereof.
The Company hereby confirms its agreement with each of you and the
other Agents as follows:
1. Introductory. Subject to the terms and conditions contained in
this Agreement, the Company hereby appoints each of the Agents as its agent for
the purpose of soliciting offers to purchase, and each of the Agents agrees to
use its reasonable best efforts to solicit, offers to purchase the Securities
upon terms acceptable to the Company and in compliance with all applicable laws,
rules and regulations. You will be acting, and have been appointed by the
Agents, as selling agent for the Agents in connection with this Agreement and
the transactions contemplated thereby. The Securities shall be sold on a best
efforts basis, any and all, in accordance with the provisions of Section 4
hereof, with you placing such Securities with purchasers or permitting other
Agents to sell on behalf of the Company such Securities to their customers.
2. Definitions. As used herein:
"ACT" shall mean the United States Securities Act of 1933, as
amended.
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"EFFECTIVE PROSPECTUS" shall mean the prospectus and any prospectus
supplement included as part of the Registration Statement on the date when the
Registration Statement became effective if the procedure in Rule 430A is
followed.
"EXCHANGE ACT" shall mean the United States Securities Exchange Act
of 1934.
"FINAL PROSPECTUS" shall mean the prospectus and any prospectus
supplement included as part of the Registration Statement on file with the SEC
when it shall become effective or, if the procedure in Rule 430A of the Rules
and Regulations is followed, the prospectus and any prospectus supplement that
discloses all the information that was omitted from the prospectus and any
prospectus supplement on the effective date pursuant to such Rule 430A, and in
either case, together with any changes contained in any prospectus and
prospectus supplement filed with the SEC by the Company after the effective date
of the Registration Statement.
"INTERNATIONAL PROSPECTUS" shall mean the Canadian Offering
Memorandum and any other prospectus to be used by the International Syndicate
(by way of clarification, including the Norwegian Prospectus).
"NORWEGIAN PROSPECTUS" shall mean the prospectus dated June 28, 2004
and any annexes and exhibits thereto as filed with and approved by the Oslo
Stock Exchange, and any supplements, amendments or addenda to that prospectus
that have been filed with Oslo Stock Exchange after June 28, 2004.
"PRE-EFFECTIVE PROSPECTUS" shall mean any prospectus and prospectus
supplement included in the Registration Statement and in any amendments thereto
prior to the effective date of the Registration Statement.
"REGISTRATION STATEMENT" shall mean a registration statement on Form
S-3 (Registration No. 333-115645) in respect of the Securities, prepared and
filed with the SEC by the Company, including the prospectus, prospectus
supplement, Part II, any documents incorporated by reference therein and all
financial schedules and exhibits thereto, as amended at the time when it shall
become effective and including any Rule 462 Registration Statement filed by the
Company and any documents filed after the date of the Pre-Effective Prospectus,
Effective Prospectus or the Final Prospectus , as the case may be, and
incorporated by reference under the Exchange Act.
"RULE 462 REGISTRATION STATEMENT" shall mean an abbreviated
registration statement to register additional Securities pursuant to Rule 462(b)
under the Act (including the exhibits thereto).
"RULES AND REGULATIONS" shall mean the rules and regulations adopted
by the SEC under either the Act or the Exchange Act, as applicable.
"SEC" shall mean the United States Securities and Exchange
Commission.
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"SUBSIDIARY" and collectively, "SUBSIDIARIES" shall mean each
subsidiary listed on Schedule II hereto.
3. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Agents that:
(a) A registration statement on Form S-3 (Registration No.
333-115645) in respect of the Securities has been prepared by the Company
in conformity with the requirements of the Act and the Rules and
Regulations and filed with the SEC; such registration statement and any
amendment(s) thereto, excluding exhibits to such registration statement,
but including all documents incorporated by reference in the prospectus
and prospectus supplement contained therein, have been declared effective
by the SEC in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the SEC. The
Norwegian Prospectus has been filed with the Oslo Stock Exchange in
conformity with Norwegian law and applicable rules and regulations and has
been approved by the Oslo Stock Exchange in such form.
(b) The Company is not aware of any order issued by the SEC
preventing or suspending the use of any Pre-Effective Prospectus and to
the Company's knowledge no proceeding for that purpose has been initiated
or threatened by the SEC. The Company is not aware of any order issued by
the Oslo Stock Exchange preventing or suspending the use of the Norwegian
Prospectus, and to the Company's knowledge no proceeding for that purpose
has been initiated or threatened by the Oslo Stock Exchange.
(c) The documents which are incorporated by reference in the
Effective Prospectus and Final Prospectus, when they became effective or
were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and the Rules and Regulations, and none of such documents when
they were filed (or, if amendments with respect to such documents were
filed, when such amendments were filed) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Agent expressly for
use in the Effective Prospectus as amended or supplemented to relate to a
particular issuance of Securities.
(d) The Registration Statement and the Effective Prospectus
and Final Prospectus conform, and at any time that the Pre-Effective
Prospectus was required to be delivered in connection with the
solicitation of offers by the Agents or the U.S. Agents or a dealer
conformed, in all material respects to the requirements of the Act, and
the Rules and Regulations thereunder and do not, as of the applicable
effective date as to the Norwegian Prospectus and any amendment thereto
and as of the applicable filing date as to the Norwegian Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
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therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Agent expressly for
use in the Registration Statement, Effective Prospectus, Final Prospectus
or the Norwegian Prospectus as amended or supplemented to relate to a
particular issuance of Securities. The Norwegian Prospectus conforms, and
at any time that it was required to be delivered in connection with the
solicitation of offers by the Agents conformed, in all material respects
with Norwegian law and applicable rules and regulations and do not, as of
the applicable effective date as to the Norwegian Prospectus and any
amendment thereto and as of the applicable filing date as to the Norwegian
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Agent expressly for
use in the Norwegian Prospectus as amended or supplemented to relate to a
particular issuance of Securities.
(e) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Effective Prospectus and
Final Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Effective Prospectus, the Final Prospectus and any International
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Effective Prospectus the Final
Prospectus and any International Prospectus, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations or, to
the Company's knowledge, future prospects of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Effective Prospectus, the Final Prospectus and any
International Prospectus.
(f) The Company and each of its consolidated subsidiaries has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, with
full power and authority (corporate and other) to own its properties and
conduct its business as described in the Effective Prospectus, the Final
Prospectus and any International Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business so as to require such
qualification (except where the failure so to qualify will not subject it
to material liability or disability).
(g) The Company has an authorized capitalization as set forth
in the Effective Prospectus, the Final Prospectus and any International
Prospectus and such authorized capital stock conforms in all material
respects as to legal matters to the
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description thereof set forth in the Effective Prospectus, the Final
Prospectus and any International Prospectus, and all of the issued shares
of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; all of the issued shares of
capital stock of each consolidated subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, and except as disclosed in the Effective
Prospectus, the Final Prospectus and any International Prospectus there
are no outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire, or instruments convertible into
or exchangeable for, any shares of capital stock or other equity interest
in the Company or any of its consolidated subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind relating
to the issuance of any capital stock of the Company or any such
consolidated subsidiary, any such convertible or exchangeable securities
or any such rights, warrants or options and there are no restrictions on
subsequent transfers of the Securities.
(h) The Securities have been duly and validly authorized by
all necessary corporate action; other than as set forth on Schedule III
hereto, no consent, authorization, order, license or approval of any
governmental authority is required by the Company to execute, issue, sell
or deliver the Securities, except for any consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or "blue sky" laws in connection with the distribution of
the Securities in the manner contemplated hereby; and, when issued and
delivered against payment therefor pursuant to this Agreement and the U.S.
Placement Agent Agreement, will be duly and validly issued and fully paid
and non-assessable, and will be substantially in the form filed as an
exhibit to the Registration Statement and any International Prospectus and
will conform in all respects to the descriptions thereof contained in the
Effective Prospectus, the Final Prospectus and any International
Prospectus as amended or supplemented; and the Securities are duly listed
for trading on the Oslo Stock Exchange.
(i) Other than as disclosed in the Effective Prospectus and
the Final Prospectus, the Company and each of its subsidiaries have
conducted their businesses and are in compliance in all material respects
with all applicable laws and regulations, including, without limitation,
all requirements under the Exchange Act and all Rules and Regulations,
except such laws and regulations the noncompliance of which would not have
a material adverse effect on the Company and its subsidiaries considered
as a whole.
(j) Neither the Company nor any subsidiary is in breach or
violation of, and the issue and sale of the Securities, the compliance by
the Company with this Agreement and the U.S. Placement Agent Agreement,
and the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, (A) any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to
which any of the material property or assets of the Company or any of its
subsidiaries is subject (each, a "Material Contract"); (B) any provisions
of the certificate or articles of incorporation or the by-laws or other
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similar organizational documents of the Company or any subsidiary or (C)
any applicable statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its material properties, in each case (other than in a case under clause B
of this subsection (j)) the conflict, breach, violation or default of
which would have a material adverse effect on the Company and its
subsidiaries considered as a whole, and no consent, approval,
authorization, order, registration or qualification of or with any court
or governmental agency or body or party to any Material Contract is
required for the execution, delivery and performance by the Company of
this Agreement and the U.S. Placement Agent Agreement, for the
solicitation of offers to purchase Securities, the issue and sale of the
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement and the U.S. Placement Agent Agreement,
except such as have been, or will have been prior to the commencement date
of the offering of the Securities, obtained under the Act and the Rules
and Regulations thereunder and such consents, approvals, authorizations,
registrations or qualifications as may be required under the laws of the
applicable jurisdiction in connection with the distribution of the
Securities in the manner contemplated hereby. Each Material Contract is in
full force and is the legal, valid, and binding obligation of the Company
or its subsidiaries and to the Company's knowledge, the other parties
thereto and is enforceable as to them in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors' rights
and to general principles of equity and such unenforceability of Material
Contracts which would not have a material adverse effect on the Company
and its subsidiaries considered as a whole.
(k) Other than as set forth in the Effective Prospectus, the
Final Prospectus and any International Prospectus, the Company is not
aware of any legal, governmental or other proceedings, formal or informal,
pending to which the Company or any of its subsidiaries is a party or to
which any material property of the Company or any of its subsidiaries is
subject, which are of a character which are required to be disclosed in
the Effective Prospectus, the Final Prospectus and any International
Prospectus or the existence of which has a material adverse effect on the
Company and its subsidiaries considered as a whole which have not been
properly disclosed therein; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(l) Immediately after any sale of Securities by the Company
hereunder, the aggregate amount of Securities which shall have been issued
and sold by the Company hereunder and of any securities of the Company
(other than such Securities) that shall have been issued and sold pursuant
to the Registration Statement and any International Prospectus will not
exceed the amount of securities registered under the Registration
Statement and any International Prospectus.
(m) The consolidated financial statements of the Company and
its consolidated subsidiaries included in the Registration Statement and
the Effective Prospectus, the Final Prospectus and any International
Prospectus fairly present in all material respects with respect to the
Company and its consolidated subsidiaries the consolidated financial
position and the consolidated results of operations and cash flows
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at the respective dates and for the respective periods to which they apply
in accordance with generally accepted accounting principles (except to the
extent that certain footnote disclosures regarding any stub period may
have been omitted in accordance with applicable Rules and Regulations
under the Exchange Act) consistently applied (except as stated therein)
throughout the periods involved. The accountants whose report on the
audited financial statements is filed with the SEC as a part of the
Registration Statement are, and during the periods covered by their
report(s) included in the Registration Statement and the Effective
Prospectus, the Final Prospectus and any International Prospectus were,
independent certified public accountants with respect to the Company and
its consolidated subsidiaries within the meaning of the Act and the Rules
and Regulations. No other financial statements are required by Form S-3 or
otherwise to be included in the Registration Statement or the Effective
Prospectus, the Final Prospectus and any International Prospectus. The
above-referenced accountants are registered with the Public Company
Accounting Oversight Board.
(n) Neither the Company nor any subsidiary has, to the
Company's knowledge, infringed, is infringing, or has received notice of
infringement with respect to asserted intangibles of others which in each
case is reasonably likely to have a material adverse effect on the Company
and its subsidiaries considered as a whole. To the knowledge of the
Company or any subsidiary, there is no infringement of others which has
had or is reasonably likely to have a material adverse effect on the
financial condition, results of operations, business, properties, assets,
liabilities, or future prospects of the Company and the subsidiaries taken
as a whole.
(o) The Company has all requisite power and authority to
execute, deliver, and perform this Agreement and the U.S. Placement Agent
Agreement and any agreement entered into and executed in connection
therewith, and to issue, sell and deliver the Securities in accordance
with and upon the terms and conditions set forth in this Agreement and the
U.S. Placement Agent Agreement. All necessary corporate proceedings of the
Company or any subsidiary have been duly taken to authorize the execution,
delivery, and performance by the Company of this Agreement and the U.S.
Placement Agent Agreement, and the issuance, sale, and delivery of the
Securities in accordance herewith. This Agreement and the U.S. Placement
Agent Agreement has been duly authorized, executed, and delivered by the
Company, is the legal, valid, and binding obligation of the Company, and
is enforceable as to the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general principles of equity.
(p) In addition to and not in limitation of Section 3(aa),
neither the Company nor any of its officers, directors, or affiliates (as
defined in the Rules and Regulations) has taken or will take, directly or
indirectly, prior to the termination of the selling group contemplated by
this Agreement, any action in violation of any applicable law or
regulation designed to stabilize or manipulate the price of any security
of the Company, or which has caused or resulted in, or which might in the
future reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company, to facilitate
the sale or resale of any of the Securities.
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(q) The conditions for use of Form S-3 have been satisfied
with respect to the Registration Statement.
(r) No stamp or other issuance or transfer taxes and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Agents or the International Agents to any government or any
political subdivision or taxing authority in connection with the sale and
delivery by the Company and the Agents and the U.S. Agents of the
Securities to the purchasers thereof.
(s) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment company"
or an entity controlled by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
(t) The Company and its consolidated subsidiaries have good
and marketable title in fee simple to all items of real property and good
and marketable title to all personal property owned by them, in either
case that is material to the Company and its consolidated subsidiaries
taken as a whole, in each case free and clear of all liens, encumbrances
and defects except such as are described or referred to in the Effective
Prospectus and Final Prospectus or such as do not materially interfere
with the use made or proposed to be made of such property by the Company
and its consolidated subsidiaries.
(u) No relationship, direct or indirect, exists between or
among the Company or any of its consolidated subsidiaries on the one hand,
and the directors, officers, stockholders, customers or suppliers of the
Company or any of its consolidated subsidiaries on the other hand, which
is required by the Securities Act to be described in the Registration
Statement and the Effective Prospectus, the Final Prospectus and any
International Prospectus which is not so described.
(v) Except as described in the Effective Prospectus and Final
Prospectus and as described in Schedule IV hereto, no person has the right
to require the Company to register any securities for offering and sale
under the Act by reason of the filing of the Registration Statement with
the SEC, the filing of the Norwegian Prospectus with the Oslo Stock
Exchange or the issue and sale of the Securities.
(w) Other than as previously disclosed through a filing with
the SEC or in the Effective Prospectus and Final Prospectus, the Company
and its consolidated subsidiaries have filed all federal, state, local and
foreign tax returns which have been required to be filed and have paid all
taxes shown thereon and all assessments received by them or any of them to
the extent that such taxes have become due and are not being contested in
good faith; and, except as disclosed in the Registration Statement and the
Effective Prospectus and Final Prospectus, there is no tax deficiency
which has been or might reasonably be expected to be asserted or
threatened against the Company or any subsidiary.
(x) There are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the Company or
any of its subsidiaries
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which are likely to have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(y) The Company and its consolidated subsidiaries (i) are in
compliance in all material respects with any and all applicable foreign,
federal, provincial, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not,
individually or in the aggregate, have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole. In the
ordinary course of its business, the Company conducts a periodic review of
the effect of Environmental Laws on the business, operations and
properties of the Company and its consolidated subsidiaries, in the course
of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and
any potential liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, have a material
adverse effect on the Company and its consolidated subsidiaries, taken as
a whole.
(z) The Company and its consolidated subsidiaries (i) are in
compliance in all material respects with any and all applicable foreign,
federal, provincial, state and local laws and regulations relating to the
underground and ground surface extraction of minerals (including but not
limited to oil and gas) ("Mineral Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable Mineral Laws
to conduct their respective businesses as they are currently conducted,
(iii) have entered into valid and legally binding contracts with the
appropriate government agencies and other third parties to conduct their
mineral extraction activities as they are currently conducted, and (iv)
are in compliance with all terms and conditions of any such contract,
permit, license or approval, except where such noncompliance with Mineral
Laws, failure to receive required permits, licenses or other approvals,
failure to enter into appropriate contracts, or failure to comply with the
terms and conditions of such contracts, permits, licenses or approvals
would not, individually or in the aggregate, have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a whole.
(aa) There is and has been no failure on the part of the
Company or any of the Company's directors or officers, in their capacities
as such, to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith, including, without limitation, Section 402 related
to loans and other extensions of credit and Sections 302 and 906 related
to certifications.
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4. Offering, Sale and Delivery of the Securities. On the basis of
the representations, warranties, covenants, and agreements of the Company herein
contained, but subject to the terms and conditions herein set forth, the Company
agrees to permit (i) you as the Representative of the several Agents and (ii)
the several Agents, and you and the Agents agree, severally and not jointly, to
solicit offers on a best efforts basis, any and all, (provided that the minimum
amount of each offer shall not be less than the equivalent of USD $60,000 (in
any case more than the equivalent in US$ of Euro 40,000) to purchase Securities
up to an aggregate amount set forth opposite the name(s) of the Agents on
Schedule I hereto or as determined by the International Representative upon the
terms and conditions set forth herein and in the Final Prospectus at a purchase
price per share of $_______ (net of commissions payable to the Agents of 6% or
$______ per share); provided that subject to the sale of the aggregate amount of
the Securities listed in Schedule I the aggregate amount of commissions to be
earned under this Agreement by you and the Agents shall be $_______.
Each sale of Securities shall be made by you or the other Agents as
agent for the Company and shall be made in accordance with the terms of this
Agreement. The offering of the Securities by the Company hereunder and your and
the other Agents' agreement to solicit offers for the purchase and sale of the
Securities shall be deemed to have been made on the basis of the
representations, warranties and agreements of the Company herein and shall be
subject to the terms and conditions herein.
Payment for the Securities sold by the Agents on behalf of the
Company shall be made by wire transfer in immediately available funds to the
account specified by the Company to you on _____, 2004, or at such other time on
the same or such other date, not later than the third Business Day thereafter,
as you and the Company may agree upon in writing. The time and date of such
payment for the Securities sold by you on behalf of the Company is referred to
herein as the "Closing Date". As used herein, the term "Business Day" means any
day other than a day on which banks are permitted or required to be closed in
Xxx Xxxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx and Oslo, Norway.
Payment for the Securities to be purchased on the Closing Date shall
be made against delivery to you for the account of the Agents of the Securities
to be purchased on such date registered in such names and in such denominations
as you shall request in writing not later than two full Business Days prior to
the Closing Date with any transfer taxes payable in connection with the transfer
to you and the Agents of the Securities sold by the Agents duly paid by the
Company.
5. Offering. The Agents are to solicit offers for the Securities
outside the United States utilizing the applicable International Prospectus as
then amended or supplemented which has been most recently delivered to the
Agents by the Company, and the Agents will solicit offers to purchase only as
permitted under applicable laws and rules and regulations and permitted or
contemplated in the applicable International Prospectus as then amended or
supplemented and herein. The Agents are not authorized to give any information
or to make any representation not contained in the applicable International
Prospectus or, in the case of the Canadian Offering Memorandum, the documents
incorporated by reference or specifically referred to therein and upon the
Registration Statement becoming effective, the Effective Prospectus and the
Final Prospectus, in connection with the offer and sale of the Securities. The
11
Agents will not use and distribute any additional marketing materials in
connection with any offer or sale of the Securities other than materials
expressly approved by the Company for such use and distribution.
The Agents are not authorized to appoint subagents or to engage the
services of any other broker or dealer in connection with the offer or sale of
the Securities without your and our prior written consent. Unless otherwise
instructed by the Company, you shall communicate to the Company, orally or in
writing, each offer to purchase Securities. The Company shall have the sole
right to accept offers to purchase Securities and may reject any proposed offers
to purchase Securities in whole or in part, and any such rejection shall not be
deemed a breach of its agreement contained herein. The Company agrees to pay to
you for soliciting offers to purchase Securities, a commission in the amount of
6% or $_____ per share sold (a "Commission"). The actual aggregate amount of
Commissions with respect to which the offering of Securities may entail will be
set forth in the Prospectus Supplement included in the Final Prospectus. You and
the other Agents will share in the above-mentioned Commissions in such
proportions and upon such terms as you and they may agree.
6. Covenants of the Company. The Company covenants that it will:
(a) File the Final Prospectus within the time periods
specified by the Act and to furnish copies of the Final Prospectus and any
applicable International Prospectus to you in Oslo prior to 10:00 A.M.,
Oslo time (except in the case of the Canadian Offering Memorandum, which
shall be delivered to the Canadian Agent prior to 10:00 A.M., New York
time at the office of Fasken Xxxxxxxxx DuMoulin LLP) on the Business Day
next succeeding the date that the Final Prospectus is duly filed with the
SEC in such quantities as you may reasonably request and notify you or
your counsel immediately (i) of the effectiveness of any post-effective
amendment to the Registration Statement or the Norwegian Prospectus, (ii)
of the transmittal to the SEC for filing of any supplement to the Final
Prospectus or the Oslo Stock Exchange for filing any supplement to the
Norwegian Prospectus, (iii) of the receipt of any comments from the SEC
with respect to the Registration Statement or each Pre-Effective
Prospectus (other than with respect to documents which were incorporated
by reference therein) or the Oslo Stock Exchange with respect to the
Norwegian Prospectus, (iv) of any request by the SEC for any amendment to
the Registration Statement or any amendment or supplement to the
Pre-Effective Prospectus (other than with respect to documents which were
incorporated by reference therein) or the Oslo Stock Exchange with respect
to the Norwegian Prospectus and (v) of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or the
Oslo Stock Exchange with respect to the Norwegian Prospectus or the
initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof as soon as
practicable.
(b) During the time when a prospectus relating to the
Securities is required to be delivered hereunder or under the Act or the
Rules and Regulations, comply so far as it is able with all requirements
imposed upon it by the Act and the Exchange Act, as now existing and as
hereafter amended, and by the Rules and Regulations, as from time to time
in force, so far as necessary to permit the continuance of sales of or
dealings in the
12
Securities in accordance with the provisions hereof and the Final
Prospectus. If, at any time when a prospectus relating to the Securities
is required to be delivered hereunder or under the Act or the Rules and
Regulations, any event shall have occurred as a result of which, in the
reasonable opinion of counsel for the Company or counsel for the Agents,
the Registration Statement or the Effective Prospectus or Final Prospectus
as then amended or supplemented contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which made, not misleading, or if, in the opinion of
either of such counsel, it is necessary at any time to amend or supplement
the Registration Statement or the Effective Prospectus or Final Prospectus
to comply with the Act or the Rules and Regulations, the Company will
immediately notify you and promptly prepare and file with the SEC an
appropriate amendment or supplement (in form and substance reasonably
satisfactory to you) which will correct such statement or omission or
which will effect such compliance and will use its best efforts to have
any such amendment declared effective as soon as possible.
(c) The documents which are incorporated by reference in the
Effective Prospectus or Final Prospectus, when they become effective or
will be filed with the SEC, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and the Rules and Regulations, and none of such documents when
they will be filed (or, if amendments with respect to such documents will
be filed, when such amendments will be filed) will contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Final
Prospectus, or any further amendment or supplement thereto, when such
documents become effective or are filed with the SEC, as the case may be,
will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, Rules and Regulations and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that this covenant shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Agent expressly for
use in the Effective Prospectus or Final Prospectus as amended or
supplemented to relate to a particular issuance of Securities.
(d) The Registration Statement and the Effective Prospectus
and Final Prospectus will conform, in all material respects to the
requirements of the Act, and the Rules and Regulations and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Effective
Prospectus and Final Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
13
any Agent expressly for use in the Effective Prospectus and Final
Prospectus as amended or supplemented to relate to a particular issuance
of Securities.
(e) Deliver without charge to you one signed copy of any
post-effective amendment to the Registration Statement (including exhibits
and documents which are incorporated by reference therein filed with such
post-effective amendment, which exhibits and documents which are
incorporated by reference therein need not be signed) other than
post-effective amendments effected through the filing of documents which
are incorporated by reference therein, and one signed copy of any
supplement to the Effective Prospectus and Final Prospectus when such
post-effective amendment or supplement is filed with the SEC, and deliver
without charge to each of the several Agents such number of copies of the
Effective Prospectus and Final Prospectus, the Registration Statement,
amendments and supplements thereto, if any (without exhibits or documents
which are incorporated by reference therein).
(f) Use its best efforts to maintain the qualification of, and
to further qualify, the Securities for offering and sale under the "blue
sky" or securities laws of such jurisdictions as you may designate. In
each jurisdiction where such qualification shall be effected, the Company
will, unless you agree in writing that such action is not at the time
necessary or advisable, file and make such statements or reports at such
times as are or may be required by the laws of such jurisdiction.
(g) Make generally available (within the meaning of Section
11(a) of the Act and the Rules and Regulations) to its security holders or
provide them with access (including, without limitation, through the XXXXX
system) as soon as practicable but in any event no later than the date
upon which the Company's first annual report on Form 10-K or quarterly
report on Form 10-Q containing the information required by Rule 158 under
the Act is due to be filed with the SEC (including any extension of such
date after having properly filed a Form 12b-25 under the Exchange Act in
respect thereof) an earnings statement (which need not be certified by
independent certified public accountants unless required by the Act or the
Rules and Regulations, but which shall satisfy the provisions of Section
11(a) of the Act and the Rules and Regulations) covering a period of at
least twelve months ending on the last day of the period covered thereby.
(h) During a period of three years from the effective date of
the Registration Statement, to furnish to you or provide you access
(including, without limitation, through the XXXXX system) copies of all
reports or other communications (financial or other) furnished or required
to be furnished to holders of the Securities, and copies of any reports
and financial statements furnished to or filed with the SEC or any
national securities exchange.
(i) Apply the net proceeds received by it from the offering in
the manner set forth under "Use of Proceeds" in the Final Prospectus.
(j) File no amendment or supplement to the Registration
Statement or the Effective Prospectus or Final Prospectus at any time,
unless such filing shall in all respects comply with the Act and the Rules
and Regulations and unless you shall
14
previously have been advised of such filing and furnished with a copy
thereof, and you and counsel for the Agents shall have approved such
filing in writing (which approval shall not be unreasonably withheld or
delayed); provided however, that the provisions of this Section 6(j) shall
not apply to the filing of documents which are incorporated by reference
therein or pricing supplements to the Effective Prospectus or Final
Prospectus or any other document relating to an offering of securities
that are not Securities.
(k) For so long as a prospectus relating to the Securities is
required to be delivered, comply in all respects with all registration,
filing, and reporting requirements of the Exchange Act and applicable
Norwegian securities legislation, which may from time to time be
applicable to the Company, and maintain the Company's eligibility for use
of Form S-3.
(l) Comply in all respects with all provisions of all
undertakings contained in the Registration Statement.
(m) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Effective Prospectus or Final Prospectus, not to offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder and under the
U.S. Placement Agent Agreement, any securities of the Company that are
substantially similar to the Securities, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Securities or any such substantially
similar securities, the offer and sale of which, in your reasonable
opinion, may be integrated with the offering of the Securities hereunder,
without your prior written consent which shall not be unreasonably
withheld or delayed (other than pursuant to stock option plans,
pre-existing contractual obligations, or the conversion or exchange of
convertible or exchangeable securities outstanding as of the date of this
Agreement, or subject to the Company informing you of the details prior to
any such offering, an offering pursuant to Regulation S or of any
Securities or any such substantially similar securities the offer and sale
of which is not subject to integration under the Act or the Rules and
Regulations with the offering of Securities hereunder).
7. Payment of Expenses. The Company hereby agrees to pay all
expenses in connection with (a) the preparation, printing, producing, filing,
distribution, and mailing of each International Prospectus and any amendments or
supplements thereto and the printing, filing, distribution, and mailing of this
Agreement and the U.S. Placement Agent Agreement and related documents,
including the cost of all copies thereof and of each International Prospectus
and any amendments or supplements thereto and this Agreement, the U.S. Placement
Agent Agreement, the Agreement between Syndicates and any other agreement among
agents supplied to the Agents or the U.S. Agents in quantities as herein above
stated, (b) the issuance, sale, and delivery of the Securities, including any
transfer or other taxes payable thereon (other than any transfer or other taxes
payable thereon in connection with any transfers thereof by the subscribers
therefor), and (c) the qualification of the Securities under applicable non-U.S.
securities laws, if any, including the fees of counsel for the Agents and the
U.S. Agents and the disbursements in connection therewith. The Company also
hereby agrees to pay (d) the fees and expenses of your firms of counsel,
Advokatfirmaet Selmer DA, Holland & Knight LLP, Fasken Xxxxxxxxx
00
XxXxxxxx XXX, Xxxxx & Young Legal LLC, Ozannes and Koushos & Korfiotis, (e) the
filing fees payable to the Oslo Stock Exchange, if any, and the jurisdictions in
which such qualification is sought, (f) the cost of preparing stock
certificates, (g) the cost and charges of any transfer agent or registrar, (h)
all fees and expenses in connection with listing the Securities and making them
eligible for trading on the Oslo Stock Exchange and the fees and expenses of any
specialist firm therefor, (i) all reasonable out-of-pocket expenses incurred by
you in connection with marketing of the Company (such as travel accommodations
and other expenses) and marketing materials for the Securities upon production
of appropriate invoices, and (j) all other costs and expenses incident to the
performance of the Company's obligations hereunder which are not otherwise
specifically provided for in this Section upon production of appropriate
invoices.
8. Conditions of Agents' Obligations. The obligations of the several
Agents to solicit offers for the Securities, as provided herein, shall be
subject, in their discretion, to the continuing accuracy of the representations
and warranties of the Company contained herein and in each certificate and
document contemplated under this Agreement and the U.S. Placement Agent
Agreement to be delivered to you, as of the date hereof, to the performance by
the Company of its obligations hereunder, and to the following conditions:
(a) As of the date hereof, you shall have received the
favorable opinion of Xxxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP, special U.S.
securities counsel for the Company, dated the date of delivery, addressed
to you as representative of the Agents, and in form and scope satisfactory
to counsel for the Agents, with reproduced copies or signed counterparts
thereof for each of the Agents, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Final Prospectus;
(iii) To the knowledge of such counsel, the Company has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business so as to require such qualification or where the failure so
to qualify in such jurisdiction would subject the Company to
material liability or disability;
(iv) To the knowledge of such counsel, other than as set forth
in the Final Prospectus, there is no legal, governmental or other
proceeding, formal or informal, pending or threatened to which the
Company or any of its Subsidiaries is a party or to which any
property of the Company or any of its Subsidiaries is subject which
is reasonably likely to have a material adverse effect on the
consolidated financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries, taken as a whole;
16
(v) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, and is enforceable against the
Company in accordance with its terms;
(vi) The Securities have been duly authorized and, when duly
and executed, issued and delivered by the Company, and the Company
receives payment therefor, as contemplated in the Final Prospectus
and this Agreement, will be duly and validly issued and fully paid
and non-assessable and the Securities will conform in all respects
to the descriptions of common stock in the Final Prospectus as
amended or supplemented; and the Securities to be sold by the
Company will be listed and eligible for trading on the American
Stock Exchange, subject to notification of issuance delivered to
such Exchange by the Company;
(vii) Except for violations that would not have a material
adverse effect on the Company and its subsidiaries considered as a
whole, the issue and sale of the Securities, the compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not result
in any violation of (1) the provisions of the Certificate of
Incorporation or the By-Laws of the Company, as amended, or (2) any
United States federal law or State of Delaware corporate statute or
(3) to the knowledge of such counsel, any order of any United States
federal or State of Delaware court or governmental agency or body;
(viii) Except such as have been obtained under the Act and the
Rules and Regulations thereunder or such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or "blue sky" laws in connection with the
distribution of the Securities in the manner contemplated in the
Final Prospectus and the Agreement, no consent, approval,
authorization, order, registration or qualification of or with any
United States federal or State of Delaware court or governmental
agency or body is required for the solicitation of offers to
purchase Securities, the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated
by this Agreement;
(ix) To the knowledge of such counsel, none of the employee
stock option benefit plans set forth in Schedule V hereto contains
any terms or provisions that prohibit, conflict with, trigger a
default thereunder, or entitle any party thereto to terminate the
agreement as a result of the issue and sale of the Securities and
the granting and performance by the Company of its indemnification
obligations hereunder;
(x) The documents incorporated by reference in the Final
Prospectus (other than the financial statements, schedule, and other
financial, engineering and statistical data therein or excluded
therefrom, as to which such counsel need express no opinion), when
they became effective or were filed with the SEC (or, if amendments
with respect to such documents were filed, such documents as so
amended when such amendments were filed), as the case may be,
complied as to
17
form in all material respects with the requirements of the Act or
the Securities Exchange Act, as applicable, and the Rules and
Regulations thereunder; and nothing has come to their attention that
would lead them to believe that any of such documents, when they
became effective or were so filed (or, if amendments with respect to
such documents were filed, such documents as so amended when such
amendments were filed), as the case may be, contained, in the case
of the Final Prospectus, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under which
they were made, not misleading;
(xi) Such counsel has been advised by the staff of the SEC
that the Registration Statement has been declared effective under
the Act, and, to the knowledge of such counsel, no stop order has
been issued and no proceeding for that purpose has been instituted
or threatened. The Registration Statement and the Final Prospectus
as amended and supplemented and any further amendments and
supplements thereto made by the Company prior to the date of such
opinion comply as to form in all material respects with the
requirements of the Act and the Rules and Regulations promulgated
thereunder; and
(xii) Nothing has come to their attention that would lead them
to believe that, as of the effective date, the Registration
Statement or any further amendment or supplement thereto made by the
Company prior to the date of such opinion contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading or that, as
of the date of such opinion, the Final Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to the date of such opinion contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading.
In rendering such opinion, (A) as to matters of fact, such counsel
may rely, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials and representations and warranties
of the Company set forth herein, (B) with respect to any matters which involve
compliance with Norwegian law of (i) the offer and sale of Securities and (ii)
the Norwegian Prospectus, such counsel may rely on the opinion of Advokatfirmaet
Selmer DA, (C)with respect to its opinion set forth in (x) above, such counsel
may rely on the opinion of McGrigors Solicitors and (D), with respect to its
opinion set forth in (xii) above, such counsel may rely on the opinions of
McGrigors Solicitors and Advokatfirmaet Selmer DA.
(b) As of the date hereof, you shall have received the
favorable opinion of McGrigors Solicitors, counsel to the Company, dated
the date of delivery, addressed to you as representative of the Agents,
and in form and scope satisfactory to counsel for the Agents, with
reproduced copies or signed counterparts thereof for each of the Agents,
to the effect that:
18
(i) To the knowledge of such counsel, other than as set forth
in the Final Prospectus, there is no legal, governmental or other
proceeding, formal or informal, pending or, to such counsel's
knowledge, threatened to which the Company or any of its
Subsidiaries is a party or to which any property of the Company or
any of its Subsidiaries is subject which is reasonably likely to
have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the
Company and its Subsidiaries, taken as a whole.
(ii) To the knowledge of such counsel, none of the agreements
set forth in Schedule VI hereto contains any terms or provisions
that prohibit, conflict with, trigger a default thereunder, or
entitle any party thereto to terminate the agreement as a result of
the issue and sale of the Securities and the granting and
performance by the Company of its indemnification obligations
hereunder.
(iii) To the knowledge of such counsel, as a matter of fact
the written descriptions contained in the Registration Statement or
the Final Prospectus (such descriptions being identified by page
number in Schedule VII) of the agreements set out in Schedule VII
are accurate in all material respects.
In rendering such opinion, (A) as to matters of fact, such counsel
may rely, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials and the representations and
warranties on the Company set forth herein and (B), with respect to its opinion
set forth in (iii) above, on the opinion of Ernst & Young (Georgia) with respect
to the agreements addressed in the opinion of Ernst & Young (Georgia).
(c) On or prior to the date hereof, the Agents shall have been
furnished such information, documents, certificates, and opinions as they
may reasonably require for the purpose of enabling them to review the
matters referred to in Section 8(a), and in order to evidence the
accuracy, completeness, or satisfaction of any of the representations,
warranties, covenants, agreements, or conditions herein contained, or as
you may reasonably request.
(d) On the date hereof, you shall have received a certificate
of the President, any Vice President or Treasurer or Assistant Treasurer
or any other authorized officer of the Company, dated as of the date
hereof, to the effect that the signer of such certificate has examined the
Registration Statement, the Final Prospectus and this Agreement and the
U.S. Placement Agent Agreement and that to the best of his or her
knowledge (i) since the respective dates as of which information is given
in the Registration Statement and the Final Prospectus, there has not been
any material adverse change in the financial condition, earnings or cash
flow of the Company and its subsidiaries considered as one enterprise or
any development reasonably likely to have a material adverse effect on the
financial condition of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
except as set forth or contemplated in the Final Prospectus, as
supplemented or amended, (ii) the other representations and warranties of
the Company contained in this Agreement and the U.S. Placement Agent
Agreement are true and correct in all material respects with the same
force and effect as though expressly made at and as of the date of such
19
certificate (except for those representations and warranties which are
given as of a certain date, in which case they were true and correct in
all material respects as of such date), (iii) the Company has performed or
complied with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the date of such
certificate in all material respects, (iv) there is no legal or
governmental proceeding pending or, to the best of such officer's
knowledge, threatened, which is required to be disclosed in the
Registration Statement other than any disclosed therein and (v) no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened by the SEC.
(e) On the effective date of the Registration Statement and as
of the date hereof, you shall have received a letter, addressed to the
Agents, and in form and substance reasonably satisfactory to you, with
reproduced copies or signed counterparts thereof for each of the Agents,
from XX Xxxxxxxxx Associates LLC, dated the date of delivery:
(i) confirming that they are independent certified public
accountants with respect to the Company and its subsidiaries within
the meaning of the Act and the applicable rules and regulations
thereunder adopted by the SEC;
(ii) stating that, in their opinion, the audited financial
statements included or incorporated by reference in each Prospectus
Supplement which shall be filed as a supplement to the Final
Prospectus and reported on by them (including but not limited to the
audited financial statements contained in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 2003)
comply in form in all respects with the accounting requirements of
the Exchange Act and the related published rules and regulations of
the SEC thereunder that apply to a prospectus filed in connection
with a registration statement on Form S-3 under the Act (except that
certain supporting schedules are omitted);
(iii) based upon a reading of the latest unaudited financial
statements made available by the Company, the procedures of the
AICPA for a review of interim financial information as described in
Statement of Auditing Standards No. 71, reading of minutes and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters and certain
other limited procedures requested by you and described in detail in
such letter, nothing has come to their attention that causes them to
believe that the information included under the headings "Prospectus
Supplement Summary," "Ratio of Earnings to Fixed Charges" and
"Description of Capital Stock" is not in conformity with the
disclosure requirements of Regulation S-K that apply to a prospectus
as filed in connection with a registration statement on Form S-3
under the Securities Act;
(iv) based upon the procedures detailed in such letter with
respect to the period subsequent to the date of the last available
balance sheet, including reading of minutes and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters, nothing has come to their
20
attention that causes them to believe that (A) at a specified date
not more than three business days prior to the date of such letter,
there was any change in capital stock, increase in long-term debt or
decrease in net current assets as compared with the amounts shown in
the latest balance sheet included or incorporated by reference in
the Prospectus Supplement; (B) for the period from December 31, 2003
to a specified date not more than three business days prior to the
date of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in net sales, income
from operations, except in all instances for changes, increases or
decreases that the Prospectus Supplement discloses have occurred or
which are set forth in such letter, in which case the letter shall
be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary
by the Agents; and
(v) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the
Prospectus Supplement agrees with the accounting records of the
Company, excluding any questions of legal interpretation.
(f) All proceedings taken in connection with the issuance,
sale, transfer, and delivery of the Securities shall be reasonably
satisfactory in form and substance to you and to counsel for the Agents,
and the Agents shall have received from such counsel for the Agents a
favorable opinion, dated as of the date hereof, with respect to such of
the matters set forth under Section 8(a), and with respect to such other
related matters, as you may reasonably request, provided that counsel to
the Agents shall be expressly permitted to rely on the opinions from
counsel to the Company delivered hereunder or any other counsel that the
counsel to the Agents deems necessary to render its opinion if required by
the Agents.
Any certificate or other document signed by any officer of the
Company and delivered to you or to counsel for the Agents or the U.S. Agents
shall be deemed a representation and warranty by the Company hereunder to the
Agents and the U.S. Agents as to the statements made therein. If any condition
to the Agents' or the U.S. Agents' obligations hereunder or under the U.S.
Placement Agent Agreement to be fulfilled prior to or at the date hereof is not
so fulfilled, you may on behalf of the several Agents terminate this Agreement
or, if you so elect, in writing waive any such conditions which have not been
fulfilled or extend the time for their fulfillment.
9. Indemnification and Contribution.
(a) Subject to the conditions set forth below, and
notwithstanding any information, facts or circumstances that have, or
reasonably should have, come into the possession of any of the indemnified
parties (as defined below) as a result of their due diligence or other
investigations or inquiries in connection with the offering and sale of
the Securities and the preparation and/or distribution of the Registration
Statement, the Pre-Effective Prospectus, the Effective Prospectus or the
Final Prospectus, the Company
21
agrees to indemnify and hold harmless each Agent, its officers, directors,
partners, employees, counsel and agents, and each person, if any, who
controls any Agent against any and all loss, liability, claim, damage, and
expense whatsoever (which shall include, for all purposes of this Section
9, but not be limited to, counsel fees and any and all expense whatsoever
incurred in investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever and any and all amounts
paid in settlement of any claim or litigation) as and when incurred
arising out of, based upon, or in connection with (i) any untrue statement
or alleged untrue statement of a material fact contained (A) any
International Prospectus (as from time to time amended and supplemented),
or any amendment or supplement thereto or (B) in any application or other
document or communication (collectively called an "application") executed
by or on behalf of the Company or based upon written information furnished
by or on behalf of the Company filed in any jurisdiction in order to
qualify the Securities under the securities laws thereof or filed with any
securities exchange; or any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made, unless such statement or omission was made in
reliance upon and in conformity with written information furnished to the
Company as stated in Section 9(b) with respect to any Agent by or on
behalf of such Agent expressly for inclusion in any International
Prospectus, or any amendment or supplement thereto, or in any application,
as the case may be, or (ii) any actual or alleged breach of any
representation, warranty, covenant, or agreement of the Company contained
in this Agreement or the U.S. Placement Agent Agreement. The foregoing
agreement to indemnify shall be in addition to any liability the Company
may otherwise have, including liabilities arising under this Agreement or
the U.S. Placement Agent Agreement.
If any action is brought against an Agent or any of its
officers, directors, partners, employees, agents, or counsel, or any
controlling persons of an Agent (an "indemnified party") in respect of
which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such indemnified party or parties shall promptly
notify the Company in writing of the institution of such action (but the
failure so to notify shall not relieve the Company from any liability it
may have other than pursuant to this Section 9(a) unless the Company'
defense of any such action is actually prejudiced) and the Company shall
promptly assume the defense of such action, including the employment of
counsel (reasonably satisfactory to such indemnified party or parties) and
payment of expenses. Such indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified
party or parties unless (i) the employment of such counsel shall have been
authorized in writing by the Company, (ii) the Company shall not have
promptly employed counsel satisfactory to such indemnified party or
parties to have charge of the defense of such action or (iii) such
indemnified party or parties shall have reasonably concluded that there
may be one or more legal defenses available to it or them or to other
indemnified parties which are different from or additional to those
available to the Company and the representation of the indemnified party
by counsel chosen by the Company would be inappropriate due to actual or
potential differing interests among the parties represented by such
counsel, in any of which events such fees and expenses shall be borne by
the Company (provided, however, that in connection with any claim by one
22
or more indemnified parties relating to the same action or proceeding, the
Company shall be liable only for the fees and expenses of one separate
firm of attorneys in each jurisdiction in which such action or proceeding
shall be brought or is pending, in each case selected by you in your sole
discretion and representing all similarly affected indemnified parties)
and the Company shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties. Anything in this
paragraph to the contrary notwithstanding, the Company shall not be liable
for any settlement of any such claim or action effected without its
written consent. The Company agrees promptly to notify the Agents of the
commencement of any litigation or proceedings against the Company or any
of its officers or directors in connection with the sale of the
Securities, any International Prospectus, or any amendment or supplement
thereto, or any application. With respect to any untrue statement or
alleged untrue statement made in, or omission or alleged omission from,
any International Prospectus, the indemnity agreement contained in this
Section 9(a) with respect to such prospectus shall not inure to the
benefit of such Agent (or to the benefit of any of its officers,
directors, partners, employees and agents, or any person controlling such
Agent) if such prospectus (or such prospectus as amended or supplemented
if the Company shall have filed with any amendment or supplement thereto)
which shall have been furnished to such Agent prior to the time it sent
written confirmation of such sale to such person does not contain such
statement, alleged statement, omission, or alleged omission and a copy of
any International Prospectus (or such prospectus as amended or
supplemented if the Company shall have filed with any amendment or
supplement thereto) shall not have been sent or given to such person and
such person shall not otherwise have received a copy thereof at or prior
to the written confirmation of such sale to such person.
(b) Each Agent severally agrees to indemnify and hold harmless
the Company, each director of the Company, each officer of the Company who
shall have signed any International Prospectus, and each other person, if
any, who controls the Company, to the same extent as the foregoing
indemnity from the Company to the several Agents in Section 9(a), but only
with respect to statements or omissions, if any, made in any International
Prospectus, or any amendment or supplement thereto, or in any application
in reliance upon and in conformity with written information furnished to
the Company as stated in this Section 9(b) with respect to any Agent by or
on behalf of such Agent expressly for inclusion in any International
Prospectus, or any amendment or supplement thereto, or in any application,
as the case may be. For all purposes of this Agreement, (i) the amounts of
the Commissions set forth in any International Prospectus and (ii)
information contained in any International Prospectus included therein
that the Agents have agreed to sell on behalf of the Company the
Securities constitute the only information furnished in writing by or on
behalf of any Agent expressly for inclusion in any International
Prospectus (as from time to time amended or supplemented), or any
amendment or supplement thereto, or in any application, as the case may
be. If any action shall be brought against the Company or any other person
so indemnified based on any International Prospectus, or any amendment or
supplement thereto, or in any application, and in respect of which
indemnity may be sought against any Agent pursuant to this Section 9(b),
such Agent shall have the rights and duties given to the Company, and the
Company and each other person so indemnified shall have the rights and
duties given to the indemnified parties, by the provisions of Section
9(a).
23
(c) To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to Section
9(a) or 9(b) (subject to the limitations thereof) but it is found in a
final judicial determination, not subject to further appeal, that such
indemnification may not be enforced in such case, even though this
Agreement expressly provides for indemnification in such case or (ii) any
indemnified or indemnifying party seeks contribution, then the Company
(including for this purpose any contribution made by or on behalf of any
director of the Company, any officer of the Company who signed any
International Prospectus, and any controlling person of the Company) as
one entity and the Agents, in the aggregate (including for this purpose
any contribution by or on behalf of an indemnified party) as a second
entity, shall contribute to the losses, liabilities, claims, damages, and
expenses whatsoever to which any of them may be subject, so that the
Agents are responsible for the proportion thereof equal to the percentage
which the total Commissions received by such Agents bears to the total
sales price for the sale of Securities sold to or through the Agents to
the date of such liability and the Company is responsible for the
remaining portion; provided, however, that if applicable law does not
permit such allocation, then other relevant equitable considerations such
as the relative fault of the Company and the Agents in the aggregate in
connection with the facts which resulted in such losses, liabilities,
claims, damages, and expenses shall also be considered. The relative
fault, in the case of an untrue statement, alleged untrue statement,
omission, or alleged omission, shall be determined by, among other things,
whether such statement, alleged statement, omission, or alleged omission
relates to information supplied by the Company or by the Agents, and the
parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement, alleged statement,
omission, or alleged omission. The Company and the Agents agree that it
would be unjust and inequitable if the respective obligations of the
Company and the Agents for contribution were determined by pro rata or per
capita allocation of the aggregate losses, liabilities, claims, damages,
and expenses (even if the Agents and the other indemnified parties were
treated as one entity for such purpose) or by any other method of
allocation that does not reflect the equitable considerations referred to
in this Section 9(c). Notwithstanding the provisions of this Section 9(c),
in no case shall any Agent be responsible for a portion of the
contribution obligation imposed on all Agents in excess of the Commissions
received by such Agent in connection with the Securities from which such
losses, liabilities, claims, damages and expenses arise. No person guilty
of a fraudulent misrepresentation within the meaning of Section 11(f) of
the Act shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. For purposes of this Section
9(c), each person, if any, who controls an Agent within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and each
officer, director, partner, employee, agent, and counsel of an Agent shall
have the same rights to contribution as such Agent and each person, if
any, who controls the Company, each officer of the Company who shall have
signed any International Prospectus, and each director of the Company
shall have the same rights to contribution as the Company, subject in each
case to the provisions of this Section 9(c). This Section 9(c) is intended
to supersede any other right to contribution. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
Section
24
9(c), notify such party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the
party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this
Section 9(c).
10. Representations and Agreements to Survive Delivery. All
representations, warranties, covenants, and agreements contained in this
Agreement shall be deemed to be representations, warranties, covenants, and
agreements at the date hereof, and such representations, warranties, covenants,
and agreements of the Agents and the Company, including the indemnity and
contribution agreements contained in Section 9, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Agent or any indemnified person, or by or on behalf of the Company or any
person or entity which is entitled to be indemnified under Section 9(b), and
shall survive termination of this Agreement.
11. Effective Date of This Agreement and Termination Thereof.
(a) This Agreement shall become effective upon execution and
delivery hereof by the parties hereto.
(b) If you elect to terminate this Agreement, you shall notify
the Company promptly by telephone, telex, or telegram, confirmed by
letter. If, as so provided, the Company elects to terminate this
Agreement, the Company shall notify you promptly by telephone, telex, or
telegram, confirmed by letter.
(c) The Company may elect to suspend or terminate the offering
of Securities under this Agreement at any time; the Company also (as to
any one or more of the Agents, including you) or any Agent (as to itself)
may terminate the appointment and arrangements described in this
Agreement. Such actions may be taken, in the case of the Company, by
giving prompt written notice of suspension to all of the Agents and by
giving not less than five days' written notice of termination to the
affected party and the other parties to this Agreement, or in the case of
an Agent, by giving not less than five days' written notice of termination
to the Company and except that, if at the time of termination an offer for
the purchase of Securities shall have been accepted by the Company but the
time of delivery to the purchaser or his agent of the Securities relating
thereto shall not yet have occurred, the Company shall have the
obligations provided herein with respect to such Securities. The Company
shall promptly notify the other parties in writing of any such
termination.
(d) You may, and, upon the request of an Agent with respect to
any Securities sold by such Agent shall, terminate any agreement hereunder
by you to sell such Securities, immediately upon notice to the Company at
any time at or prior to the settlement date relating thereto, (i) if there
has been, since the date of such agreement or since the respective dates
as of which information is given in the Registration Statement, any
material adverse change in the financial condition, earnings or cash flow
of the Company and its Subsidiaries, considered as one enterprise, or any
development reasonably likely to have a material adverse effect on the
financial condition of the
25
Company and its Subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred
any outbreak or escalation of hostilities or other calamity or crisis or
any change in financial, political or economic conditions in the United
States or elsewhere, the effect of which on the financial markets of the
United States or the international financial markets is such as to make
it, in the reasonable judgment of you or such Agent or Agents,
impracticable or inadvisable to market the Securities or enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of
the Company has been suspended by the SEC or a national securities
exchange, or if trading generally on either the American Stock Exchange or
the Oslo Stock Exchange has been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by order of the SEC or
any other governmental authority, or if a banking moratorium has been
declared by either U.S. federal or New York or Norwegian authorities, or
if a material disruption in commercial banking or securities settlement or
clearance services in the United States or Norway has occurred, or (iv) if
there shall have come to the attention of you or such Agent or Agents any
facts that would cause them to believe that the Pre-Effective Prospectus,
the Effective Prospectus, the Final Prospectus or any International
Prospectus, at the time it was required to be delivered to a purchaser of
Securities, included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein,
in light of the circumstances existing at the time of such delivery, not
misleading.
(e) The termination of this Agreement or the U.S. Placement
Agent Agreement shall not require termination of any agreement by you, and
the termination of any such agreement shall not require termination of
this Agreement or the U.S. Placement Agent Agreement.
(f) Anything in this Agreement to the contrary notwithstanding
other than Section 11(g), if this Agreement shall terminate or shall
otherwise not be carried out within the time specified herein by reason of
any failure on the part of the Company to perform any covenant or
agreement or satisfy any condition of this Agreement by it to be performed
or satisfied, the sole liability of the Company to the several Agents, in
addition to the obligations the Company assumed pursuant to Section 7,
will be to reimburse the several Agents for such reasonable out-of-pocket
expenses (including the reasonable fees and disbursements of their
counsel) as shall have been incurred by them in connection with this
Agreement or the proposed issuance, sale and delivery of the Securities
and upon demand the Company agrees to pay promptly the full amount thereof
to you for the respective accounts of the Agents.
(g) Notwithstanding any termination of this Agreement, and
whether or not this Agreement is otherwise carried out, the provisions of
Sections 6(a), 7, 9, 10, 12, 13 and 14 shall not be in any way affected by
such election or termination or failure to carry out the terms of this
Agreement or any part hereof and shall survive termination of this
Agreement.
12. Notices. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and, if sent to any
Agent, shall be mailed,
26
delivered, or telexed or telecopied and confirmed by letter, to such Agent at
the address set forth below, or if sent to the Company, shall be mailed,
delivered, or telexed or telegraphed and confirmed by letter, to the Company,
X.X. Xxx 000, Xx. Xxxxx Xxxx, Xxxxxxxx, X00 0XX, British Isles, Attention:
_______________. All notices hereunder shall be effective upon receipt by the
party to which it is addressed.
If to you:
ABG Sundal Xxxxxxx Norge ASA
X.X. Xxx 0000
0000 Xxxx
Xxxxxx
Attn:
If to Aton Financial Holdings
If to Orion Securities Inc.
If to Terra Securities ASA
13. Parties. You represent that you are authorized to act on behalf
of the several Agents named in Schedule I hereto, and the Company shall be
entitled to act and rely on any request, notice, consent, waiver, or agreement
purportedly given on behalf of the Agents when the same shall have been given by
you on such behalf. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the several Agents (and any affiliate of an Agent that
assists the Agent in the placement of Securities) and the Company and the
persons and entities referred to in Section 9 who are entitled to
indemnification or contribution, and their respective successors, legal
representatives, and assigns (which shall not include any purchaser, as such, of
the Securities), and no other person shall have or be construed to have any
legal or equitable right, remedy, or claim under or in respect of or by virtue
of this Agreement or any provision herein contained. Notwithstanding anything
contained in this Agreement to the contrary, all of the obligations of the
Agents hereunder are several and not joint.
14. Construction. This Agreement shall be construed in accordance
with the laws of the State of New York, without giving effect to conflict of
laws. Time is of the essence in this Agreement.
15. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and the same
instrument.
27
If the foregoing correctly sets forth the understanding between you
and the Company, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
CanArgo Energy Corporation
By______________________________
Accepted as of the date first above written.
ABG Sundal Xxxxxxx Norge ASA
By______________________________
On behalf of itself and the other several
Agents named in Schedule I hereto.
28
SCHEDULE I
AGENTS
Lead Placement Agent:
ABG Sundal Xxxxxxx Norge ASA [___ million shares]
Agents:
Aton Financial Holdings [___ million shares]
Orion Securities Inc. [___ million shares]
Terra Securities ASA [___ million shares]
29
SCHEDULE II
MATERIAL SUBSIDIARIES
30
SCHEDULE III
CONSENTS
31
SCHEDULE IV
REGISTRATION RIGHTS
32
SCHEDULE V
EMPLOYEE STOCK OPTION BENEFIT PLANS
Amended and Restated 1995 Long-Term Incentive Plan (Incorporated to the
Company's Form 10-K filed with the SEC on April 29, 2004 by reference 32 from
Post-Effective Amendment No. 1 to Form S-1 Registration Statement, File No.
333-72295 filed on July 29, 1999).
Amended and Restated CanArgo Energy Inc. Stock Option Plan (Incorporated to the
Company's Form 10-K filed with the SEC on April 29, 2004 by reference from
September 30, 1998 Form 10-Q).
33
SCHEDULE VI
MATERIAL AGREEMENTS
1. Standby Equity Distribution Agreement between Cornell Capital Partners,
L.P. and CanArgo Energy Corporation dated February 11, 2004 (Incorporated
to the Company's Form 10-Q filed with the SEC on May 17, 2004 by reference
from Form S-3 filed May 6, 2003 (Reg. No. 333-115261)).
2. Placement Agent Agreement between CanArgo Energy Corporation, Newbridge
Securities Corporation and Cornell Capital Partners, L.P. dated February
11, 2004 (Incorporated to the Company's Form 10-Q filed with the SEC on
May 17, 2004 by reference from Form S-3 filed May 6, 2003 (Reg. No.
333-115261)).
3. DELETED
4. DELETED
5. DELETED
6. Production Sharing Contract between (1) Georgia and (2) Georgian Oil and
JKX Ninotsminda Ltd. dated February 12, 1996 (Incorporated to the
Company's Form 10-Q filed with the SEC on May 17, 2004 by reference from
Form S-1 Registration Statement, File No. 333-72295 filed on September 7,
1999).
7. Management Services Agreement between CanArgo Energy Corporation and Vazon
Energy Limited relating to the provisions of the services of Dr. Xxxxx
Xxxxxx dated June 29, 2000 (Incorporated to the Company's Form 10-Q filed
with the SEC on May 17, 2004 by reference from September 30, 2000 Form
10-Q).
8. Tenancy Agreement between CanArgo Energy Corporation and Grosvenor West
End Properties dated September 8, 2000 (Incorporated to the Company's Form
10-Q filed with the SEC on May 17, 2004 by reference from September 30,
2000 Form 10-Q).
9. Production Sharing Contract between (1) Georgia and (2) Georgian Oil and
CanArgo Norio Limited dated December 12, 2000 (Incorporated to the
Company's Form 10-Q filed with the SEC on May 17, 2004 by reference from
December 31, 2000 Form 10-K).
10. Employment Agreements between CanArgo Energy Corporation and Xxxxxxx
XxXxxxxxx dated December 1, 2000 (Incorporated to the Company's Form 10-Q
filed with the SEC on May 17, 2004 by reference from December 31, 2001
Form 10-K).
11. DELETED
34
12. DELETED
13. DELETED
14. DELETED
15. DELETED
16. DELETED
17. DELETED
18. Sale agreement of CanArgo Petroleum Products Limited between CanArgo
Limited and Westrade Alliance LLC dated October 14, 2002. (Incorporated to
the Company's Form 10-Q filed with the SEC on May 17, 2004 by reference
from September 30, 2002 Form 10-Q)
19. Farm-in Agreement dated September 4, 2003 relating to the Norio (Block
XI(C)) and North Kumisi Production Sharing Agreement in the Republic of
Georgia with a wholly owned subsidiary of Georgian Oil, the Georgian State
Oil Company (Incorporated to the Company's Form 10-Q filed with the SEC on
May 17, 2004 by reference from September 30, 2003 Form 10-Q).
20. Farm-in Agreement dated September 7, 2003 relating to the M11 well on the
Xxxxxx Cretaceous prospect within the Ninotsminda PSC area between
Ninotsminda Oil Company Limited and Georgian British Oil Services Company
Limited (Incorporated to the Company's Form 10-Q filed with the SEC on May
17, 2004 by reference from September 30, 2003 Form 10-Q).
21. Stock Purchase Agreement dated September 24, 2003 regarding the sale of
all of the issued and outstanding stock of Fountain Oil Boryslaw
(Incorporated to the Company's Form 10-Q filed with the SEC on May 17,
2004 by reference from September 30, 2003 Form 10-Q).
22. Xxxxxx Termination Agreement dated December 5, 2003 (Incorporated to the
Company's Form 10-Q filed with the SEC on May 17, 2004 by reference from
December 31, 2003 Form 10-K).
23. Registration Rights Agreement between CanArgo Energy Corporation and
Cornell Capital Partners, L.P. dated February 11, 2004 (Incorporated to
the Company's Form 10-Q filed with the SEC on May 17, 2004 by reference
from Form S-3 filed May 6, 2003 (Reg. No. 333-115261).
24. Escrow Agreement among CanArgo Energy Corporation, Cornell Capital
Partners, L.P. and Xxxxxx Xxxxxxxx LLP dated February 11, 2004
(Incorporated to the Company's Form 10-Q
35
filed with the SEC on May 17, 2004 by reference from Form S-3 filed May 6,
2003 (Reg. No. 333-115261)).
25. Termination Agreement between CanArgo Energy Corporation and Cornell
Capital Partners, L.P. dated February 11, 2004 (Incorporated to the
Company's Form 10-Q filed with the SEC on May 17, 2004 by reference from
Form S-3 filed May 6, 2003 (Reg. No. 333-115261)).
26. Agreement between CanArgo Samgori Limited and Georgian Oil Samgori Limited
dated January 8, 2004 (Incorporated to the Company's Form 10-Q filed with
the SEC on May 17, 2004 by reference from Form S-3 filed May 6, 2003 (Reg.
No. 333-115261)).
27. Consultancy Agreement between CanArgo Energy Corporation and Europa Oil
Services Limited dated January 8, 2004 (Incorporated to the Company's Form
10-Q filed with the SEC on May 17, 2004 by reference from Form S-3 filed
May 6, 2003 (Reg. No. 333-115261)).
28. Loan Agreement between CanArgo Energy Corporation and Salahi Ozturk dated
April 26, 2004 (Filed with the Company's Form 10-Q filed with the SEC on
May 17, 2004).
29. Loan Agreement between CanArgo Energy Corporation and C A Fiduciary
Services Limited AS dated April 29, 2004 (Filed with the Company's Form
10-Q filed with the SEC on May 17, 2004).
30. Oil Sales Agreement between CanArgo Energy Corporation and Primrose
Financial Group dated May 05, 2004 (Filed with the Company's Form 10-Q
filed with the SEC on May 17, 2004).
31. Oil Sales Agreement between CanArgo Energy Corporation and Sveti Limited
dated April 01, 2004 (Filed with the Company's Form 10-Q filed with the
SEC on May 17, 2004).
32. Agreement dated April 25, 2004 between Ninotsminda Oil Company Limited,
Sveti Limited and Primrose Financial Group on the termination of the Crude
Oil Sales Agreement dated April 1, 2004 between Ninotsminda oil Company
Limited and Sveti Limited and the terms for the conclusion of a new crude
oil sales agreement between Ninotsminda Oil Company Limited and Primrose
Financial Group (Filed with the Company's Form 10-Q filed with the SEC on
May 17, 2004).
33. DELETED
36
SCHEDULE VII
AGREEMENTS DESCRIBED IN REGISTRATION STATEMENT
1. Form 8-K dated May 19, 2004
1.1. May 28, 2004 - CanArgo Acquisition Corporations sells its interests
in the Bugruvativske Field to Stanhope Solutions Ltd. for $2 million
(same as Recent Developments Section in Prospectus Supplement)
1.2. May 19, 2004 - CanArgo signed Promissory Note with Cornell whereby
Cornell agreed to advance CanArgo $1.5K (same as Recent Developments
Section in Prospectus Supplement)
2. Form 8-K dated June 1, 2004
2.1. June 2, 2004 - WEUS Holding, Inc. agreed to supply Under Balanced
Coiled Tubing Drilling (same as Recent Developments Section in
Prospectus Supplement)
3. Form 10-Q for Quarterly Period Ending March 31, 2004
3.1. February 2004 - Standby Equity Distribution Agreement and Facility
Agreement with Cornell up to $20 million (same as Recent
Developments Section in Prospectus Supplement)
3.2. September 2003 - Norio Production Sharing Agreement (Norio PSA) farm
- in agreement - obligates Georgian Oil to pay up to $2,000,000 to
complete the MK-72 well in return for a 15% interest in the
contractor share of Norio PSA
3.3. DELETED
3.4. September 2003 - deal to purchase some of the minority interests in
CanArgo Norio by a share swap for shares in CanArgo
3.5. Production Sharing Contract for Blocks XI(G) and XI(H) - the
"Tbilisi PSC"
3.6. 2002 - Letter of Agreement entitling AES to 15% of future gas sales
from the Sub Middle Eocene
3.7. May 2004 - Ninotsminda Oil Company agrees to pay $2,300,000 arising
from security deposit payments under oil sales agreements signed in
May 2004
37
3.8. April 2004 - completed acquisition of 50% interest in Samgori (Block
XI(B)) Production Sharing Contract (Samgori PSC) (same as Recent
Developments Section in Prospectus Supplement)
3.9. April 16, 2004 - Europa Oil Services was issued 4M restricted shares
of CanArgo Common Stock in arms length transaction
3.10. DELETED
3.11. October 2002 - agreement to sell 50% holdings to unaffiliated
company for $4M in arms-length transaction
3.12. April 26, 2004 - loan and warrant agreement with Sahali Ozturk in an
arms-length transaction ($1M) (same as Recent Developments Section
in Prospectus Supplement)
3.13. April 29, 2004 - loan and warrant agreement with CA Fiduciary
Services Limited ($300,900) (same as Recent Developments Section in
Prospectus Supplement)
3.14. May 5, 2004 - Ninotsminda Oil Company Limited (NOC) entered into
12-month crude oil sales agreement with Primrose Financial Group
(same as Recent Developments Section in Prospectus Supplement)
3.15. DELETED
3.16. May 2004 - NOC entered 10-month crude oil sales agreement to sell
its monthly share of oil produced under the Ninotsminda PSC
4. Form 10-K for FY ended 12/31/03
4.1. Ninotsminda, Xxxxxx and West Rustavi Production Sharing Contract
4.2. Nazvrevi and Block XIII Production Sharing Contract
4.3. Norio Block and North Kumisi Production Sharing Agreement
4.4. Block XI(G) and XI(H) Production Sharing Agreement (same as 3.5)
4.5. Letter agreement with AES (same as 3.6)
4.6. Farm-in agreement with Georgian Oil relating to Norio PSA (same as
3.2)
4.7. February 2004 - Standby Equity Distribution Agreement to issue
shares to Cornell Capital Partners LP (same as 3.1 and Recent
Developments Section in Prospectus Supplement)
4.8. DELETED
38
4.9. Xx. Xxxxxx Management Services Agreement
4.10. May 2003 - NOC entered into a new 12-month crude oil sales agreement
(same as 3.14)
4.11. DELETED
4.12. DELETED
4.13. Block XI(B) PSC (Samgori) (same as 3.8)
5. Registration Statement
5.1. Recent Development Section
5.2. Ninotsminda Production Sharing Contract in Georgia (100% interest in
Contractor's share) (same as 4.1)
39
