SHAREHOLDERS AGREEMENT
by and among
GLOBEX ENERGY, INC., a Cayman Islands corporation,
XXXXXXXX GLOBAL ENERGY (CAYMAN) LIMITED, a Cayman Islands
corporation,
AND
THE OTHER SHAREHOLDERS NAMED HEREIN
Dated as of ___________, 2001
TABLE OF CONTENTS
1. Certain Definitions....................................................1
2. Board of Directors; Management.........................................3
3. Shelf Registration.....................................................5
4. Demand Registrations...................................................7
(a) Right to Request Registration.................................7
(b) Number of Demand Registrations................................7
(c) Priority on Demand Registrations..............................7
(d) Restrictions on Demand Registrations..........................8
(e) Selection of Underwriters.....................................8
(f) Other Registration Rights.....................................8
(g) Effective Period of Demand Registrations......................8
5. Piggyback Registrations................................................9
(a) Right to Piggyback............................................9
(b) Priority on Primary Registrations.............................9
(c) Priority on Secondary Registrations...........................9
6. Holdback Agreements...................................................10
7. Registration Procedures...............................................10
8. Suspension of Offerings in Certain Circumstances......................14
9. Registration Expenses.................................................16
10. Indemnification......................................................16
11. Participation in Underwritten Registrations..........................18
12. The G-CO Representative..............................................19
13. Certain Covenants of the Shareholders................................19
(a) Lockup.......................................................19
(b) Notification of Dispositions, etc............................20
14. Termination..........................................................20
15. Miscellaneous........................................................21
(a) Notices......................................................21
(b) No Waivers...................................................22
(c) Expenses.....................................................22
(d) Successors and Assigns.......................................22
(e) Governing Law................................................22
(f) Jurisdiction.................................................22
(g) Waiver of Jury Trial.........................................23
(h) Counterparts; Effectiveness..................................23
(i) Entire Agreement.............................................23
(j) Captions.....................................................23
(k) Severability.................................................23
(l) Amendments...................................................23
SHAREHOLDERS AGREEMENT, dated as of __________ __, 2001, among
Globex Energy, Inc., a Cayman Islands corporation and formerly known as
Apco Argentina, Inc. (the "Company"), Xxxxxxxx Global Energy (Cayman)
Limited, a Cayman Islands corporation ("W-CO"), and certain other
shareholders of the Company listed on the signature pages of this Agreement
(such other shareholders along with W-CO, a "Shareholder" and collectively,
the "Shareholders").
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of
April 5, 2001 (the "Merger Agreement") by and among the Company, a
wholly-owned subsidiary of the Company ("Merger Sub"), and Globex Energy,
Inc., a Delaware corporation ("G-CO"), Merger Sub merged (the "Merger"),
on the date hereof, with and into G-CO, with G-CO as the surviving
corporation in the Merger.
WHEREAS, pursuant to the Merger Agreement, the former shareholders
of G-CO received in the Merger ordinary shares, par value $0.01 per share,
of the Company (the "Ordinary Shares");
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties to this Agreement hereby agree as
follows:
1. CERTAIN DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the following meanings:
"Agreement" means this Shareholders Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to
any of the foregoing.
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3
or any successor rule or regulation promulgated under the Exchange Act.
"Business Day" means any day on which commercial banks are open for
business in the City of New York, New York.
"Closing Date" means the date hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expiration Date" means the date upon which all Registrable
Securities have been sold or can be sold without restriction, including
volume and manner of sale restrictions, under the Securities Act.
"G-CO Group" means collectively the shareholders of the Company
listed on the signature pages hereto under G-CO Group.
"G-CO Representative" shall mean ___________, and any replacement
for such Person which the G-CO Group designates in writing to the Company
and W-CO, provided that there will be no more than one G-CO Representative
at any time.
"Holder" means any holder of record of Registrable Securities. For
purposes of this Agreement, the Company may deem and treat the registered
holder of Registrable Securities as the Holder and absolute owner thereof,
and the Company shall not be affected by any notice to the contrary.
"Person" means an individual, partnership, corporation, trust,
limited liability company, or unincorporated organization, or a government
or agency or political subdivision thereof.
"Prospectus" means the prospectus or prospectuses included in any
Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement and by all
other amendments and supplements to the prospectus, including
post-effective amendments and all material incorporated by reference in
such prospectus or prospectuses.
"Registrable Securities" means any Ordinary Shares owned by W-CO on
the date hereof or issued to members of the G-CO Group in the Merger and
any securities issued or issuable in respect of such Ordinary Shares by way
of stock dividend or stock split or in connection with a combination of
shares, recapitalization, reclassification, merger or consolidation, and
any other securities issued pursuant to any other pro rata distribution
with respect to such Ordinary Shares. For purposes of this Agreement, a
Registrable Security ceases to be a Registrable Security when (x) it has
been effectively registered under the Securities Act and sold or
distributed to the public in accordance with an effective registration
statement covering it, or (y) it is sold or distributed to the public
pursuant to Rule 144 (or any successor or similar provision) under the
Securities Act.
"Registration Period" means the period from and after expiration of
the Lockup Period (as defined in Section 13) until the Expiration Date.
"Registration Statement" means any registration statement,
including a Demand Registration Statement or a Shelf Registration
Statement, filed by the Company with the SEC under the Securities Act that
covers some or all Registrable Securities, and any amendments or
supplements thereto, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
documents and other materials incorporated by reference therein.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Statement" means a "shelf" registration
statement on Form S-3 filed by the Company pursuant to the provisions of
Section 3 hereof with the SEC under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the SEC, that covers some or all of
the Registrable Securities, and any amendments and supplements to such
Registration Statement, including post-effective amendments, and including
the Prospectus contained therein, all exhibits thereto and all documents
and other materials incorporated by reference therein and any additional
such Registration Statements filed as contemplated by Section 3.
"underwritten registration or underwritten offering" means a
registration in which securities of the Company are sold to underwriters
for reoffering to the public.
2. BOARD OF DIRECTORS; MANAGEMENT.
(a) Each party hereto shall take all such necessary or desirable
action within its control to cause the Articles of Association of the
Company to provide that the board of directors of the Company (the "Board
of Directors") shall be divided into three classes, designated Class I,
Class II and Class III and that the term of office of Class I, Class II and
Class III directors shall be as follows: (i) at the first annual general
meeting of shareholders following the Closing Date, the term of office of
the Class I directors shall expire and the Class I directors nominated for
election at such annual general meeting shall be elected for a full term of
three years, (ii) at the second annual general meeting of shareholders
following the Closing Date, the term of office of the Class II directors
shall expire and the Class II directors nominated for election at such
annual general meeting shall be elected for a full term of three years and
(iii) at the third annual general meeting of shareholders following the
Closing Date, the term of office of the Class III directors shall expire
and the Class III directors nominated for election at such annual general
meeting shall be elected for a full term of three years. None of the
parties hereto shall, from the date hereof until the first Business Day
following the Company's 2003 Annual General Meeting of Shareholders (the
"Governance Period"), take any action to amend or otherwise modify the
Company's Articles of Association in a manner inconsistent with the
previous sentence.
(b) Until expiration of the Governance Period, each Shareholder
shall vote all of its Ordinary Shares and other voting equity interests of
the Company, and shall take all other necessary or desirable actions within
its control, and the Company shall take all necessary or desirable action
within its control, in order to cause (i) the number of directors on the
Board of Directors to be nine, (ii) four directors to be nominated by W-CO
(each a "W-CO Director"), (iii) three directors to be nominated by the G-CO
Group (each a "G-CO Group Director"), (iv) two independent directors to be
nominated by W-CO and the G-CO Group collectively (each an "Independent
Director"), (v) Class I of the Board of Directors to be comprised of one
W-CO Director, one G-CO Group Director and one Independent Director, (vi)
Class II of the Board of Directors to be comprised of one W-CO Director,
one G-CO Group Director and one Independent Director and (vi) Class III of
the Board of Directors to be comprised of two W-CO Directors and one G-CO
Group Director (who shall be C. Xxxx Xxxxxx). In the event that during the
Governance Period a W-CO Director shall for any reason cease to serve as a
member of the Board of Directors during such directors term in office, the
resulting vacancy on the Board of Directors shall be filled by an
individual designated by W-CO. In the event that during the Governance
Period a G-CO Group Director shall for any reason cease to serve as a
member of the Board of Directors during such directors term in office, the
resulting vacancy on the Board of Directors shall be filled by an
individual designated by the G-CO Group. In the event that during the
Governance Period an Independent Director shall for any reason cease to
serve as a member of the Board of Directors during such directors term in
office, the resulting vacancy on the Board of Directors shall be filled by
an individual designated by W-CO and the G-CO Group collectively.
(c) Each of the parties hereto shall take all such necessary or
desirable actions within its control to cause the Board of Directors to
establish, as soon as practicable after the date hereof, a committee of the
Board of Directors (the "Search Committee") to conduct a search for
potential candidates for filling the position of Chief Executive Officer
("CEO") of the Company. The number of directors on the Search Committee
shall be two, one of whom shall be a person designated by W-CO and the
other of whom shall be C. Xxxx Xxxxxx. As soon as practicable after the
date hereof, the Search Committee shall recommend to the entire Board of
Directors potential qualified candidates for CEO of the Company. The Board
of Directors shall appoint, by a vote of a majority of the entire Board of
Directors, a new CEO of the Company (the "New CEO") from among the
candidates recommended by the Search Committee. The New CEO shall report
directly to the Board of Directors.
(d) Each of the parties hereto shall take such reasonable actions
within its control to cause the Board of Directors to elect C. Xxxx Xxxxxx
as non-executive Chairman of the Board of Directors of the Company. In the
event that C. Xxxx Xxxxxx shall for any reason cease to serve as
non-executive Chairman of the Board of Directors, the Board of Directors
shall nominate and elect a new Chairman of the Board of Directors to
replace him.
(e) Until the New CEO is appointed by the Board of Directors C.
Xxxx Xxxxxx and a person designated by W-CO shall act as interim co-CEO's
of the Company reporting directly to the entire Board of Directors. In the
event that C. Xxxx Xxxxxx shall for any reason cease to serve as interim
co-CEO, the resulting vacancy shall be filled by an individual designated
by the G-CO Group. In the event that the person designated by W-CO shall
for any reason cease to serve as interim co-CEO, the resulting vacancy
shall be filled by an individual designated by W-CO.
(f) As promptly as practicable after being appointed by the Board
of Directors, the New CEO, C. Xxxx Xxxxxx and a person designated by W-CO
shall conduct a search for a qualified Chief Financial Officer (the "CFO")
of the Company and shall recommend to the entire Board of Directors
potential qualified candidates for CFO of the Company. The Board of
Directors shall appoint, by a vote of a majority of the entire Board of
Directors, a new CFO of the Company from among the candidates recommended
by the New CEO, C. Xxxx Xxxxxx and the person designated by W-CO.
3. SHELF REGISTRATION.
If the Company at any time during the Registration Period is
eligible to use Form S-3 and then for so long as the Company is so
eligible, the Company shall be subject to the provisions of this Section 3
as follows:
(a) The Company shall prepare and, not later than 60 days prior to
expiration of the Lockup Period, shall file with the SEC, and thereafter
shall use its commercially reasonable efforts to cause to be declared
effective under the Securities Act on or prior to expiration of the Lockup
Period, a Shelf Registration Statement relating to the offer and sale by
W-CO and the Shareholders comprising the G-CO Group of all Registrable
Securities permitted to be registered on Form S-3 as part of such Shelf
Registration Statement in a manner selected by W-CO and the G-CO
Representative and set forth in such Shelf Registration Statement. No
securities other than Registrable Securities shall be included in any such
initial Shelf Registration Statement or any additional Shelf Registration
Statement with respect thereto without the consent of W-CO and the G-CO
Representative, which consent shall not be unreasonably withheld.
(b) The Company shall use commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective during the
Registration Period.
(c) Subject to Section 8 hereof, if the Shelf Registration
Statement ceases to be effective for any reason at any time during the
Registration Period, the Company shall use its commercially reasonable
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and shall (i) within 60 days of such cessation of
effectiveness, amend the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or (ii) file an additional Shelf Registration
Statement subsequent to the expired or ineffective Shelf Registration
Statement covering the Registrable Securities. If any additional Shelf
Registration Statement is filed, the Company shall use its commercially
reasonable efforts to cause such Shelf Registration Statement to be
declared effective as soon as practicable after such filing and to keep
such Shelf Registration Statement continuously effective for the remainder
of the Registration Period.
(d) Subject to Section 8 hereof, the Company shall supplement and
amend any Shelf Registration Statement if (i) required by the SEC or the
rules, regulations or instructions applicable to such Shelf Registration
Statement, (ii) otherwise required by the Securities Act or (iii)
reasonably requested by W-CO, the G-CO Representative (on behalf of
Shareholders comprising the G-CO Group) or by the managing underwriters
with respect to an underwritten offering of such Registrable Securities.
(e) As soon as practicable after determining that Registrable
Securities permitted to be included on Form S-3 in a Shelf Registration
Statement have not been so included, the Company shall file a subsequent
Shelf Registration Statement covering all such unregistered Registrable
Securities that includes a combined Prospectus permitting the inclusion in
such Prospectus of all Registrable Securities eligible to be sold
thereunder, including Registrable Securities included in a previously filed
Registration Statement, provided that no such subsequent Shelf Registration
Statement need be filed for Registrable Securities representing less than
5% of the then outstanding Ordinary Shares unless W-CO or the G-CO
Representative inform the Company that W-CO or the Shareholders comprising
the G-CO Group currently intend to sell such Registrable Securities.
(f) If at any time or from time to time W-CO or the Shareholders
comprising the G-CO Group desire to sell Registrable Securities in an
underwritten offering pursuant to a Shelf Registration Statement, the
managing underwriters shall be selected by W-CO and the G-CO
Representative; provided that such managing underwriters shall be
nationally recognized investment banking firms and shall be reasonably
satisfactory to the Company.
4. DEMAND REGISTRATIONS.
If at any time during the Registration Period the Company is not
eligible to use Form S-3 then so long as the Company is not so eligible the
Company shall be subject to the provisions of this Section 4 as follows:
(a) Right to Request Registration. Any time after the expiration of
the Lockup Period (as defined in Section 13), W-CO or the G-CO
Representative (on behalf of the Shareholders comprising the G-CO Group)
(each an "Initiating Holder") may request registration under the Securities
Act of all or part of a number of shares of Registrable Securities
representing at least 1,500,000 (such number to be appropriately adjusted
to reflect stock splits, reverse stock splits, stock dividends,
reclassifications, recapitalizations and similar transactions) shares of
Registrable Securities (any such registration pursuant to this Section 4(a)
referred to herein as a "Demand Registration").
Within 10 days after receipt of any such request for Demand
Registration, the Company shall give written notice of such request to all
other Holders of Registrable Securities and shall, subject to the
provisions of Section 4(c) hereof, include in such registration all such
Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 15 days after the receipt of
the Company's notice.
(b) Number of Demand Registrations. Subject to the provisions of
Section 4(a), W-CO and the G-CO Group shall each be entitled to request two
(2) Demand Registrations. A registration shall not count as one of the
permitted Demand Registrations (i) until it has become effective, (ii) if
the Initiating Holder requesting such registration is not able to register
and sell at least 50% of the Registrable Securities requested by such
Initiating Holder to be included in such registration or (iii) in the case
of a Demand Registration that would be the last permitted Demand
Registration requested hereunder, if the Initiating Holder requesting such
registration is not able to register and sell all of the Registrable
Securities requested to be included by such Initiating Holder in such
registration.
(c) Priority on Demand Registrations. The Company shall not include
in any Demand Registration any securities which are not Registrable
Securities without the written consent of the Holders of a majority of the
shares of Registrable Securities to be included in such registration, and,
if such Demand Registration is an underwritten offering, without the
written consent of the managing underwriters, such consents not to be
unreasonably withheld. If the managing underwriters of the requested Demand
Registration advise the Company in writing that in their opinion the number
of shares of Registrable Securities proposed to be included in any such
registration exceeds the number of securities which can be sold in such
offering, the Company shall include in such registration only the number of
shares of Registrable Securities which in the opinion of such managing
underwriters can be sold. If the number of shares which can be sold is less
than the number of shares of Registrable Securities proposed to be
registered, the amount of Registrable Securities to be so sold shall be
allocated first, to the shares of Registrable Securities requested to be
registered by the Initiating Holder and then pro rata among the other
Holders of Registrable Securities desiring to participate in such
registration on the basis of the amount of such Registrable Securities
initially proposed to be registered by such other Holders. If the number of
shares which can be sold exceeds the number of shares of Registrable
Securities proposed to be sold, such excess shall be allocated pro rata
among the other holders of securities, if any, desiring to participate in
such registration based on the amount of such securities initially
requested to be registered by such holders or as such holders may otherwise
agree.
(d) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any G-CO Demand Registration within twelve months after
the effective date of a previous G-CO Demand Registration. The Company
shall not be obligated to effect any W-CO Demand Registration within twelve
months after the effective date of a previous W-CO Demand Registration.
(e) Selection of Underwriters. If any of the Registrable Securities
covered by a Demand Registration is to be sold in an underwritten offering,
the Initiating Holder shall have the right to select the managing
underwriters; provided that such managing underwriters shall be reasonably
satisfactory to the Company.
(f) Other Registration Rights. The Company shall not grant to any
Person the right, other than as set forth herein and except to employees of
the Company with respect to registrations on Form S-8 (or any successor
forms thereto), to request the Company to register any securities of the
Company except such rights as are not more favorable than or inconsistent
with the rights granted to the Shareholders herein, without the written
consent of W-CO and the G-CO Representative.
(g) Effective Period of Demand Registrations. After any Demand
Registration filed pursuant to this Agreement has become effective, the
Company shall use its commercially reasonable efforts to keep such Demand
Registration effective for a period equal to 180 days from the date on
which the SEC declares such Demand Registration effective (or if such
Demand Registration is not effective during any period within such 180
days, such 180-day period shall be extended by the number of days during
such period when such Demand Registration is not effective), or such
shorter period which shall terminate when all of the Registrable Securities
covered by such Demand Registration have been sold pursuant to such Demand
Registration.
5. PIGGYBACK REGISTRATIONS.
If at any time during the Registration Period the Company is not
eligible to use Form S-3 then so long as the Company is not so eligible the
Company shall be subject to the provisions of this Section 5 as follows:
(a) Right to Piggyback. Whenever the Company proposes to register
any of its common equity securities (other than Registrable Securities)
under the Securities Act (other than a registration statement on Form S-8
or on Form S-4 or any similar successor forms thereto), whether for its own
account or for the account of one or more securityholders of the Company,
and the registration form to be used may be used for any registration of
Registrable Securities (a "Piggyback Registration"), the Company shall give
prompt written notice to all Holders of its intention to effect such a
registration and, subject to Section 5(b), shall include in such
registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 15 days after
the receipt of the Company's notice. The Company may postpone or withdraw
the filing or the effectiveness of a Piggyback Registration at any time in
its sole discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering, the Company shall
include in such registration (i) first, the securities the Company proposes
to sell, (ii) second, the Registrable Securities requested to be included
therein by the Holders thereof, pro rata among the Holders of such
Registrable Securities on the basis of the number of shares requested to be
registered by such Holders, and (iii) third, other securities requested to
be included in such registration pro rata among the holders of such
securities on the basis of the number of shares requested to be registered
by such holders or as such holders may otherwise agree.
(c) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of a
holder of the Company's securities other than Registrable Securities, and
the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering, the
Company shall include in such registration (i) first, the securities
requested to be included therein by the holders requesting such
registration, (ii) second, the Registrable Securities requested to be
included in such registration, pro rata among the holders of such
securities on the basis of the number of shares requested to be registered
by such holders, and (iii) third, other securities requested to be included
in such registration pro rata among the holders of such securities on the
basis of the number of shares requested to be registered by such holders or
as such holders may otherwise agree.
6. HOLDBACK AGREEMENTS.
Each Shareholder agrees, if so required by a managing underwriter,
not to sell, make any short sale of, loan, grant any option for the
purchase of, effect any public sale or distribution of, make any sale or
distribution pursuant to Rule 144 (or any successor provision) under the
Securities Act of or otherwise dispose of any securities of the Company,
for a period not to exceed 180 days after any underwritten registration
pursuant to this Agreement has become effective, except as part of such
underwritten registration, whether or not such Shareholder participates in
such registration. Each Shareholder agrees that the Company may instruct
its transfer agent to place stop transfer notations in its records to
enforce this Section 6.
7. REGISTRATION PROCEDURES.
In connection with any Registration Statement the following
provisions shall apply:
(a) The Company shall furnish to W-CO and the G-CO Representative,
prior to the filing thereof with the SEC, copies of any Registration
Statement (including any preliminary prospectus contained therein), and
each amendment thereto and each amendment or supplement, if any, to the
Prospectus included therein and shall reflect in each such document, when
so filed with the SEC, such comments as W-CO and the G-CO Representative
reasonably may propose.
(b) The Company shall ensure that (i) any Registration Statement
and any amendment thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies as to form in all material
respects with the Securities Act (ii) any Registration Statement and any
amendment thereto does not, when it becomes effective, 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 not
misleading and (iii) any Prospectus forming part of any Registration
Statement, and any amendment or supplement to such Prospectus, does not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading other than, in the
case of clauses (ii) and (iii), any such untrue statement or omission made
therein in reliance upon and conformity with written information furnished
to the Company or its representatives or advisors by or on behalf of W-CO,
any Shareholder in the G-CO Group or the G-CO Representative specifically
for inclusion therein.
(c) the Company shall promptly advise W-CO and the G-CO
Representative, and, if requested, promptly confirm such advice in writing:
(i) when a Registration Statement and any amendment or
supplement thereto has been filed with the SEC and when a
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the SEC for amendments or supplements
to any Registration Statement or the Prospectus included therein or
for additional information in connection therewith;
(iii) of the issuance by the SEC of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any actions or proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities included therein for sale in any jurisdiction or the
initiation or threatening of any action or proceeding for such
purpose; and
(v) to the extent known to the Company, of the happening of
any event that requires the making of any changes in any
Registration Statement or Prospectus so that, as of the date of
such event, the statements therein are not misleading and do not
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(d) Subject to Section 8 hereof, the Company shall use its
commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of any Registration Statement at the earliest
possible time.
(e) The Company shall furnish to W-CO and the G-CO Representative,
without charge, three copies of each Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if W-CO or the G-CO Representative so requests in writing,
all exhibits thereto (including those incorporated therein by reference).
(f) The Company shall furnish W-CO and the G-CO Representative,
without charge, copies of any and all transmittal letters or other
correspondence with the SEC or any other governmental entity relating to a
Registration Statement or the public offering of the Company's securities
thereunder.
(g) The Company shall, during the Registration Period, deliver to
W-CO and the G-CO Representative, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Registration Statement and any amendment or supplement thereto as such
Person may reasonably request; and subject to Section 8 below and W-CO's
and the G-CO Group's compliance with its obligations under Section 7(l),
the Company consents to the use of the Prospectus or any amendment or
supplement thereto by each such Person in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities pursuant to any
Registration Statement, the Company shall use its commercially reasonable
efforts to register or qualify or cooperate with W-CO and the G-CO Group
and their counsel in connection with the registration or qualification of
such Registrable Securities for offer and sale under the securities, blue
sky or similar laws of such jurisdictions as W-CO or the G-CO
Representative reasonably requests in writing and the Company shall use its
commercially reasonable efforts to do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions
of the Registrable Securities covered by such Registration Statement;
provided, however, that the Company shall not be required to qualify
generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service
of process or to taxation in any such jurisdiction where it is not then so
subject.
(i) The Company shall cooperate with W-CO and the G-CO
Representative to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as requested prior to such
sales.
(j) Subject to Section 8 hereof, upon the occurrence of any event
contemplated by paragraph (c)(v) above, the Company shall use its
commercially reasonable efforts to promptly prepare a post-effective
amendment to any Registration Statement or an amendment or supplement to
the related Prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Securities included therein, the
Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading, it being understood that the provisions of Section 10 shall
apply to any such statement or omission.
(k) The Company shall comply in all material respects with all
applicable rules and regulations of the SEC.
(l) Each holder of Registrable Securities that plans to participate
in a distribution pursuant to a Registration Statement (a "Participating
Holder") shall furnish to the Company such information regarding such
Person and its affiliates and the distribution of such Registrable
Securities as the Company may from time to time reasonably require for
inclusion in such Registration Statement. Each Participating Holder shall
ensure that such information at the time any Registration Statement and any
amendment thereto becomes effective, and at the time any Prospectus or
supplement thereto forming a part of any Registration Statement is
delivered in any offering of Registrable Securities, shall not contain any
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
not misleading. Each Participating Holder shall advise the Company and, if
requested by the Company, confirm such advice in writing in the event that
such Participating Holder becomes aware of the happening of any event that
requires the making of any changes in a Registration Statement or
Prospectus so that as of the date of such event the statements therein
provided by a Participating Holder specifically for inclusion therein are
not misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(m) Subject to Section 8 below, the Company shall, if requested,
promptly incorporate in a Prospectus supplement or post-effective amendment
to a Registration Statement, such information, if any, as the managing
underwriters, W-CO, the G-CO Representative and the Company reasonably
agree should be included therein and shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable following notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment.
(n) If requested by W-CO or the G-CO Representative in connection
with the offering and sale of Registrable Securities pursuant to a
Registration Statement, the Company shall enter into one or more
underwriting agreements with the managing underwriters selected in
accordance with the provisions of this Agreement. Any such underwriting
agreement shall contain such indemnities and other terms and agreements as
are then customarily included in underwriting agreements relating to
secondary public offerings; provided that in no event shall the
indemnification provisions and procedures in such underwriting agreements
be less favorable to the managing underwriters than those contained in
Section 10 hereof.
(o) The Company shall (i) make, during normal business hours,
reasonably available for inspection by Participating Holder, and any
underwriter participating in any disposition pursuant to a Registration
Statement, and any attorney, accountant or other agent or representative
retained by any Participating Holder or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries; (ii) cause the Company's officers,
directors and employees to supply all relevant information reasonably
requested by any Participating Holder or any such underwriter, attorney,
accountant, agent or representative in connection with any such
Registration Statement as is customary for similar due diligence
examinations; provided, however, that all such information that is
designated in writing by the Company as confidential at the time of
delivery of such information shall be kept confidential by such
Participating Holder and any such underwriter, attorney, accountant, agent
or representative, unless and to the extent that (x) disclosure is, in the
opinion of counsel to the disclosing party, required to be made in
connection with a court proceeding or required by law or (y) such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality and other than
as a result of a breach of this confidentiality provision; (iii) make such
representations and warranties to the Participating Holders and the
underwriters, if any, in form, substance and scope as are then customarily
made by issuers to underwriters in underwritten secondary public offerings;
(iv) use its commercially reasonable efforts to obtain opinions of counsel
to the Company and updates thereof addressed to each Participating Holder
and the underwriters in customary form and covering such matters as are
then customarily covered in opinions requested in underwritten secondary
public offerings and such other matters as may be reasonably requested by
the underwriters; (v) use its commercially reasonable efforts to obtain
"cold comfort" letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in a Registration
Statement), addressed to each Participating Holder and the underwriters, if
any, in customary form and covering matters of the type then customarily
covered in "cold comfort" letters in connection with underwritten secondary
public offerings; and (vi) deliver such documents and certificates as may
be reasonably requested by any Participating Holder and the managing
underwriters, if any. The foregoing actions set forth in clauses (iii),
(iv), (v) and (vi) of this Section 7(o) shall to the extent applicable be
performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto and (B) each closing under any
underwriting agreement as and to the extent required thereunder.
8. SUSPENSION OF OFFERINGS IN CERTAIN CIRCUMSTANCES.
The Company shall be entitled for the period referred to below to
postpone the filing of any Registration Statement or the taking of any
other action otherwise required to be prepared, filed or taken by it
pursuant to Sections 3, 4 or 7 hereof and to direct the suspension of any
public offering, sale or distribution of Registrable Securities pursuant to
this Agreement if a majority of the Board of Directors determines in good
faith that any disclosure that would be required in connection therewith
would have a material adverse effect on the Company and its subsidiaries
taken as a whole or any financing, acquisition, disposition, merger,
business combination, corporate reorganization, or other transaction or
development involving the Company or any subsidiary of the Company (a
"Suspension Determination"). Such postponement or direction shall continue
until such time as a majority of the Board of Directors determines that the
preparation or filing of such Registration Statement or the taking of any
such action or such public offering, sale or distribution would no longer
have such a material adverse effect (a "Suspension Period"). During the
pendency of any Suspension Period, W-CO and the G-CO Representative (upon
behalf of the Shareholders comprising the G-CO Group) shall provide prompt
written notice to the Company whenever either has a present bona fide
intention to offer Registrable Securities hereunder (a "Bona Fide Notice").
During the pendency of any Suspension Period and during any period
thereafter during which the Company is prevented from making a Suspension
Determination, W-CO and the G-CO Representative (upon behalf of the
Shareholders comprising the G-CO Group) shall provide prompt written notice
to the Company whenever the applicable party ceases to have a present bona
fide intention to offer Registrable Securities (a "Cessation Notice"). Each
day commencing with the day on which a Bona Fide Notice is delivered and
ending on the day on which a Cessation Notice is delivered shall be
referred to as a "Blackout Day". Any particular Suspension Period shall not
continue for more than 90 Blackout Days and there shall not be more than
150 Blackout Days in any 365-day period. If a Shelf Registration Statement
is not in effect at and after the end of a Suspension Period and W-CO or
the Shareholders comprising the G-CO Group, having delivered a Bona Fide
Notice, was prevented from offering Registrable Securities hereunder
because of the pendency of such Suspension Period, the Company shall not
make another Suspension Determination until the earlier of the consummation
of the offering that was previously postponed because of such Suspension
Period or the delivery of a Cessation Notice. If a Shelf Registration
Statement is in effect at and after the end of a Suspension Period that
includes a Blackout Day, the Company shall not make another Suspension
Determination within 45 days of the expiration of such Suspension Period
unless W-CO and the G-CO Representative (upon behalf of the Shareholders
comprising the G-CO Group), as applicable, earlier delivers a Cessation
Notice. The Company shall, as promptly as practicable, give W-CO and the
G-CO Representative written notice of any Suspension Determination. W-CO
and the Shareholders comprising the G-CO Group shall be obligated to
suspend any public offering, sale or distribution of Registrable Securities
in accordance with the Company's directions and for the period provided in
this Section 8. If the Company shall suspend or otherwise withdraw any
Demand Registration pursuant to this Section 8 (a "Withdrawn Demand
Registration"), the Initiating Holder of the Registrable Securities
remaining unsold and originally covered by such Withdrawn Demand
Registration shall be entitled to a replacement Demand Registration which
(subject to the provisions of Section 4 hereof) the Company shall use its
commercially reasonable efforts to keep effective for a period commencing
on the effective date of such Demand Registration and ending on the earlier
to occur of the date (i) which is 180 days from the effective date of such
Demand Registration and (ii) on which all of the Registrable Securities
covered by such Demand Registration have been sold. Such additional Demand
Registration otherwise shall be subject to all of the provisions of this
Agreement.
9. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with provisions of this Agreement relating to the registration
of Registrable Securities, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue
sky laws, listing application fees, printing expenses, transfer agent's and
registrar's fees, cost of distributing prospectuses in preliminary and
final form as well as any supplements thereto, and fees and disbursements
of counsel for the Company and all independent certified public accountants
and other Persons retained by the Company (all such expenses being herein
called "Registration Expenses") (but not including any underwriting
discounts or commissions attributable to the sale of Registrable Securities
or fees and expenses of more than one counsel representing the Holders of
Registrable Securities), shall be borne by the Company. In addition, the
Company shall pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees (and any agents,
consultants or other Persons acting in a similar capacity on behalf of the
Company) performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each
securities exchange on which they are to be listed.
(b) In connection with each registration initiated hereunder
(whether a Shelf Registration, Demand Registration or a Piggyback
Registration), the Company shall reimburse the Holders covered by such
registration or sale for the reasonable fees and disbursements of one law
firm chosen by the Holders of a majority of the number of shares of
Registrable Securities included in such registration or sale.
(c) The obligation of the Company to bear the expenses described in
Section 9(a) and to reimburse the Holders for the expenses described in
Section 9(b) shall apply irrespective of whether a registration becomes
effective, is withdrawn or suspended and irrespective of when any of the
foregoing shall occur; provided, however, that Registration Expenses for
any registration statement withdrawn solely at the request of a Holder of
Registrable Securities (unless withdrawn following postponement of filing
by the Company in accordance with Section 8) or any supplements or
amendments to a registration statement or prospectus resulting from a
misstatement furnished to the Company by a Holder shall be borne by such
Holder.
10. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the fullest extent
permitted by law, each Holder, its officers, directors and affiliates and
each Person who controls such Holder (within the meaning of the Securities
Act) against all losses, claims, damages, liabilities and expenses arising
out of or based upon any untrue or alleged untrue statement of material
fact contained in any Registration Statement, Prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
the same are made in reliance on and in conformity with information
relating to such Holder furnished in writing to the Company by such Holder
expressly for use therein or caused by such Holder's failure to deliver to
such Holder's immediate purchaser a copy of the Registration Statement or
Prospectus or any amendments or supplements thereto (if the same was
required by applicable law to be so delivered) after the Company has
furnished such Holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company shall indemnify such
underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same
extent as provided above with respect to the indemnification of the
Holders.
(b) In connection with any Registration Statement in which a Holder
of Registrable Securities is participating, each such Holder shall furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such Registration
Statement or Prospectus and, to the fullest extent permitted by law, shall
indemnify the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses arising out of or based
upon any untrue or alleged untrue statement of material fact contained in
the Registration Statement, Prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is made in reliance on and in conformity with
information or affidavit so furnished in writing by such Holder expressly
for use in the Registration Statement; provided, however, that the
obligation to indemnify shall be several, not joint and several, among such
Holders and the liability of each such Holder shall be in proportion to and
limited to the net amount received by such Holder from the sale of
Registrable Securities pursuant to such Registration Statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any liability for
any settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim shall not
be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party there may be one
or more legal or equitable defenses available to such indemnified party
which are in addition to or may conflict with those available to another
indemnified party with respect to such claim. Failure to give prompt
written notice shall not release the indemnifying party from its
obligations hereunder.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and shall survive the transfer of
securities.
(e) If the indemnification provided for in or pursuant to this
Section 10 is due in accordance with the terms hereof, but is held by a
court to be unavailable or unenforceable in respect of any losses, claims,
damages, liabilities or expenses referred to herein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified person as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the
other in connection with the statements or omissions which result in such
losses, claims, damages, liabilities or expenses as well as any other
relevant equitable considerations. The relative fault of the indemnifying
party on the one hand and of the indemnified person on the other shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party, and by such party's
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. In no event shall the
liability of any selling Holder be greater in amount than the amount of net
proceeds received by such Holder upon such sale or the amount for which
such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under Section 10(a) or
10(b) hereof had been available under the circumstances.
11. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any registration hereunder which is
underwritten unless such Person (a) agrees to sell such Person's securities
on the basis provided in any underwriting arrangements approved by the
Person or Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of
such underwriting arrangements.
12. THE G-CO REPRESENTATIVE.
(a) Each Shareholder in the G-CO Group, by its acceptance of the
benefits under this Agreement, authorizes, directs and appoints the G-CO
Representative to act as its sole and exclusive agent, attorney-in-fact and
representative, and authorizes and directs the G-CO Representative to (i)
take any and all actions (including, without limitation, executing and
delivering any documents, incurring any costs and expenses for the account
of the G-CO Group and making any and all determinations) which may be
required or permitted by this Agreement to be taken by the G-CO
Representative or the G-CO Group, (ii) exercise such other rights, powers
and authority as are authorized, delegated or granted to the G-CO
Representative hereunder and (iii) exercise such rights, powers and
authority as are incidental to the foregoing. Any such actions taken,
exercises of rights, powers or authority, and any decision or determination
made by the G-CO Representative consistent therewith, shall be absolutely
and irrevocably binding on each Shareholder in the G-CO Group as if such
Shareholder personally had taken such action, exercised such rights, powers
or authority or made such decision or determination in such Shareholder's
individual capacity. Notwithstanding any other provision of this Agreement,
each Shareholder in the G-CO Group irrevocably relinquishes its right to
act independently and other than through the G-CO Representative, except as
expressly provided for under this Agreement. The G-CO Representative hereby
accepts the foregoing authorization and appointment and agrees to serve as
the G-CO Representative in accordance with this Agreement. In the event
that a G-CO Representative resigns or otherwise ceases to be a G-CO
Representative, the G-CO Group shall appoint a new G-CO Representative
within 15 Business Days of such Person ceasing to be a G-CO Representative.
(b) The provisions of this Section 12 shall in no way impose any
obligations on the Company or W-CO. In particular, notwithstanding any
notice received by the Company or W-CO to the contrary, the Company and
W-CO (i) shall be fully protected in relying upon and shall be entitled to
rely upon, shall have no liability to any Shareholder in the G-CO Group
with respect to, any and all damages and losses arising out of actions,
decisions and determinations of the G-CO Representative and (ii) shall be
entitled to assume that all actions, decisions and determinations of the
G-CO Representative are fully authorized by the Shareholders in the G-CO
Group.
13. CERTAIN COVENANTS OF THE SHAREHOLDERS.
(a) Lockup. Each Shareholder agrees not to, directly or indirectly,
transfer, sell, assign, exchange, pledge, hypothecate, grant a security
interest in, or otherwise dispose of or offer to transfer, sell, assign,
exchange, encumber or otherwise dispose of any Ordinary Shares until one
hundred and eighty (180) days after the date hereof (the "Lockup Period").
(b) Notification of Dispositions, etc. Each Shareholder agrees to
notify in writing, the Company, W-CO and the G-CO Representative upon the
transfer, sale, assignment, exchange, pledge, hypothecation, granting of a
security interest in, or other disposition of any Ordinary Shares. Such
notification shall identify the number of Ordinary Shares involved in such
transaction and the number of Ordinary Shares Beneficially Owned by such
Shareholder immediately prior to and immediately following such
transaction. Upon the written request of W-CO or the Company, the G-CO
Representative will certify in writing the number of Ordinary Shares
Beneficially Owned by the G-CO Group as of the date of such written
request. Upon the written request of the G-CO Representative or the
Company, W-CO will certify in writing the number of Ordinary Shares
Beneficially Owned by W-CO as of the date of such written request.
14. TERMINATION.
(a) This Agreement shall continue in full force and effect from the
date hereof through the earliest of the following dates, upon which this
Agreement will terminate in its entirety:
(i) The first Business Day following the Company's 2003
Annual General Meeting of Shareholders.
(ii) The day upon which the G-CO Group collectively ceases
to be the Beneficial Owners of at least 25% of the Ordinary Shares of the
Company Beneficially Owned by the G-CO Group on the Closing Date.
(iii) The day upon which W-CO ceases to be a Beneficial
Owner of at least 25% of the Ordinary Shares of the Company Beneficially
Owned by W-CO on the Closing Date.
(b) In determining whether or not this Agreement terminates under
Section 14(a)(ii) or Section 14(a)(iii), the calculation used to make such
a determination shall take into account and appropriately adjust for any
stock splits, reverse stock splits, stock dividends, reclassifications,
recapitalizations and similar transactions after the date hereof.
(c) If at any time during the term of this Agreement a Shareholder
no longer Beneficially Owns any Ordinary Shares, this Agreement shall
terminate as to such Shareholder only (and not as to any other Shareholder)
and thereafter such Shareholder shall cease to have any rights or
obligations under this Agreement (other than such rights and obligations
under Section 10 above which shall survive such a termination).
15. MISCELLANEOUS.
(a) Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile or similar
writing) and shall be given,
If to the Company:
[TO COME]
with a copy to:
Xxxxx & XxXxxxxx
One Prudential Plaza
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to W-CO:
Xxxxxxxx Global Energy (Cayman) Limited
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to the G-CO Representative:
[TO COME]
with a copy to:
[TO COME]
or if to another Shareholder, to the address(es) set forth
on the counterpart signature pages of this Agreement signed by such
Shareholders.
or such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the other parties. Each such notice,
request or other communication shall be effective (a) if given by
facsimile, when such facsimile is transmitted to the facsimile number
specified in this Section and the appropriate facsimile confirmation is
received or (b) if given by any other means, when delivered at the address
specified in this Section.
(b) No Waivers. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
(c) Expenses. Except as otherwise provided for herein or otherwise
agreed to in writing by the parties, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such costs and expenses, provided,
however, that the cost and expenses of W-CO's counsel in preparation of
this Agreement shall be paid by the Company.
(d) Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. None of the parties hereto may
assign any of its rights or obligations hereunder without the prior written
consent of the Company, W-CO and the G-CO Representative (upon behalf of
the Shareholders comprising the G-CO Group). This Agreement shall not inure
to the benefit of or be enforceable by any Person other than the parties
hereto and their respective successors and permitted assigns.
(e) Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of Delaware, without regard to
principles of conflicts of law, except for such matters governed by or
affected by the securities laws of the United States or the laws of the
Cayman Islands.
(f) Jurisdiction. Any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought
in any federal or state court located in the State of Delaware, and each of
the parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such
suit, action or proceeding which is brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within
or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as
provided in Section 15(a) shall be deemed effective service of process on
such party.
(g) Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(h) Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
(i) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral
and written, between the parties with respect to the transactions
contemplated herein. No provision of this Agreement or any other agreement
contemplated hereby is intended to confer on any Person other than the
parties hereto any rights or remedies.
(j) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(k) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such a determination, the parties shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties
as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated
to the fullest extent possible.
(l) Amendments. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given without the prior written consent of the Company, W-CO and the G-CO
Representative (upon behalf of the Shareholders comprising the G-CO Group).
In the event of a merger, business combination, corporate reorganization or
other similar transaction approved by a majority of the Board of Directors,
the parties to this Agreement shall work in good faith to enter into such
amendments to this Agreement as may be necessary or otherwise desirable to
permit completion of such merger, business combination, corporate
reorganization or other similar transaction.
IN WITNESS WHEREOF, this Agreement has been duly executed by
each of the parties hereto as of the date first written above.
GLOBEX ENERGY, INC., a Cayman Islands
corporation,
By:
----------------------------------
Name:
Title:
XXXXXXXX GLOBAL ENERGY (CAYMAN)
LIMITED
By:
-----------------------------------
Name:
Title:
G-CO GROUP:
[ ]
By:
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Name:
Title:
Address:
[ ]
By:
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Name:
Title:
Address:
[Additional Signature Blocks To Come, Once
Shareholders Are Identified]
