Contract
ROLLOVER
AGREEMENT, dated as of June 11, 2008 (this “Agreement”), among
United Energy Group Limited, an exempted company with limited liability existing
under the Laws of Bermuda (“United”) and Citadel
Equity Fund Ltd, a Cayman Islands company (“Senior Preferred
Stockholder”).
WHEREAS,
United and Transmeridian Exploration Incorporated, a Delaware corporation (the
“Company”), are
parties to that certain Investment Agreement, dated as of the date hereof (the
“Investment
Agreement”);
WHEREAS,
the Senior Preferred Stockholder owns approximately 31.3% of all of the issued
and outstanding shares of 15% senior redeemable convertible preferred stock, par
value US$0.0006 per share, of the Company (“Senior Preferred
Stock”);
WHEREAS,
the Senior Preferred Stockholder executed the Waiver, dated June 11, 2008,
whereby it waived compliance by the Company with the covenants set forth in
Sections 17, 18, and 19 of the Company’s Certificate of Designations of the
Senior Preferred Stock, to the extent any of those covenants would otherwise be
implicated by the transactions contemplated by the Investment Agreement;
and
WHEREAS,
the Senior Preferred Stockholder desires to exchange its shares of Senior
Preferred Stock for United Convertible Bonds (as defined below), on the terms
and conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
herein contained, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Except
as otherwise defined herein, terms defined in the Investment Agreement are used
herein as therein defined and, except as otherwise specified or as the context
may otherwise require, the following terms shall have the respective meanings
set forth below whenever used in this Agreement and shall include the singular
as well as the plural:
“Action” means any
claim, action, suit, arbitration, inquiry, proceeding or investigation by or
before any Governmental Authority.
“Deed Poll” means the
instrument to be executed by United by way of a deed poll constituting the
United Convertible Bonds in a form to be agreed by United and the Senior
Preferred Stockholder prior to the dispatch of the circular or listing document
of United in Hong Kong in relation to the transactions contemplated hereunder
and under the Investment Agreement, together with the schedules thereto (as from
time to time altered in accordance with the instrument) and any other document
executed in accordance with the instrument (as from time to time so altered) and
expressed to be supplemental to the instrument.
“Conversion Shares”
means the ordinary shares, par value HK$0.01 per share, of United to be issued
by United upon exercise of the conversion rights attaching to the United
Convertible Bonds.
“Encumbrance” means,
with respect to any shares, any security interest, pledge, mortgage, lien,
charge, encumbrance, adverse claim or restriction of any kind, including,
without limitation, any restrictions on the voting or transfer
thereof.
“United Convertible
Bonds” means such number of convertible bonds to be issued by United
which are convertible into Conversion Shares in registered form to be created by
the Deed Poll and for the time being outstanding (as defined therein) or, as the
context may require, any number of them; principal commercial terms of the
United Convertible Bonds are set out in the term sheet as set forth in Annex B.
“Warrant Agreements”
means the Convertible Promissory Note and Warrant Purchase Agreement, dated as
of August 30, 2005, by and among the Company, North Sound Legacy Institutional
Fund LLC, North Sound Legacy International, Ltd., and Royal Bank of Canada; the
Common Stock Purchase Warrant, dated December 1, 2006, by and between the
Company and Xxxxxxxxx & Company, Inc.; Common Stock Purchase Warrant dated
as of July 9, 2007, by and between the Company and Xxxxxxxxx & Company,
Inc.; the Allonge to Common Stock Purchase Warrant, in favor of North Sound
Legacy Institutional Fund LLC, dated May 30, 2007; the Allonge to Common Stock
Purchase Warrant, in favor of North Sound Legacy International Ltd, dated May
30, 2007; the Warrant Purchase Agreement, dated as of March 15, 2007, by and
among the Company, North Sound Legacy International Ltd and North Sound Legacy
Institutional Fund LLC; and the Preferred Stock and Warrant Purchase Agreement,
dated November 12, 2004, by and between the Company and each of the purchasers
party thereto.
2. Exchange of Senior Preferred
Stock. Subject to the terms and conditions contained herein,
following the closing of the Tender Offer and immediately prior to the Swap
Closing, the Senior Preferred Stockholder and United shall exchange that number
of shares of Senior Preferred Stock for that number of United Convertible Bonds
in the principal amounts set forth next to the Senior Preferred Stockholder’s
name in Annex
A; [omitted pursuant to a
request for confidential treatment and filed separately with the Securities and
Exchange Commission]. It is a condition to United’s obligation to
exchange such shares of Senior Preferred Stock for such number of United
Convertible Bonds that (a) such shares of Senior Preferred Stock be free and
clear of any Encumbrances at the time of the exchange, and (b) all (but not less
than all) of such shares of Senior Preferred Stock be exchanged
contemporaneously. The Senior Preferred Stockholder acknowledges that
consideration for the exchange of its shares of the Senior Preferred Stock
pursuant to this Section 2 includes any accrued and unpaid dividends, whether or
not declared by the Company’s Board of Directors, and the Senior Preferred
Stockholder hereby
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revokes
any right it might have to seek any further payment of any accrued and unpaid
dividends. The United Convertible Bonds being issued in the exchange
contemplated by this Section 2 are being so issued as part of a private
placement of the United Convertible Bonds of at least $150,000,000, computed by
adding the cash price paid for such bonds with the amounts with respect to such
bonds specified in Annex A hereto, with such bonds, other than those being
issued in such exchange, being purchased for cash. [Omitted pursuant
to a request for confidential treatment and filed separately with the Securities
and Exchange Commission]. Concurrently with the exchange of Senior
Preferred Stock for United Convertible Bonds contemplated by Section 2 above,
the Senior Preferred Stockholder shall agree to purchase, in accordance with
applicable U.S. Securities Laws, US$5,000,000 in cash of the New Preferred Stock
at par value.
3. Representations and
Warranties of the Senior Preferred Stockholder. The Senior
Preferred Stockholder represents and warrants to United that:
(a) The
Senior Preferred Stockholder is duly organized, validly existing and in good
standing under the Laws of its jurisdiction of organization and has all
necessary power and authority to enter into this Agreement, and to carry out its
obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by the Senior
Preferred Stockholder, the performance by the Senior Preferred Stockholder of
its obligations hereunder and the consummation by the Senior Preferred
Stockholder of the transactions contemplated hereby have been duly authorized by
all requisite action on the part of the Senior Preferred
Stockholder. This Agreement has been duly executed and delivered by
the Senior Preferred Stockholder, and (assuming due authorization, execution and
delivery by United) this Agreement constitutes a legal, valid and binding
obligation of the Senior Preferred Stockholder enforceable against
the Senior Preferred Stockholder in accordance with its terms, except
as may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent
transfer, reorganization, moratorium or other similar Laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles (whether considered in a proceeding in equity or at
law).
(b) The
Senior Preferred Stockholder acknowledges that the United Convertible Bonds it
will receive pursuant to this Agreement will not have been registered under the
Securities Act and, therefore, will not be able to be resold unless such United
Convertible Bonds are registered or unless an exemption from registration is
available. The Senior Preferred Stockholder is acquiring United
Convertible Bonds for its own account, for investment and not with a view to, or
for resale in connection with, the distribution thereof.
(c) The
Senior Preferred Stockholder is an “accredited investor” as defined in Rule 501
of Regulation D promulgated under the Securities Act, a sophisticated investor
and, by virtue of its business or financial experience, is capable of evaluating
the merits and risks of the investment in the United Convertible
Bonds. The Senior Preferred Stockholder has been
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(d) The
execution, delivery and performance of this Agreement by the Senior
Preferred Stockholder does not and will not (i) to the extent
applicable, violate, conflict with or result in the breach of any provision of
the organizational documents of the Senior Preferred Stockholder,
(ii) conflict with or violate any Law applicable to the Senior
Preferred Stockholder, (iii) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under, require any consent under, or give to
others any right of termination, amendment, acceleration, suspension, revocation
or cancellation of any contract to which the Senior
Preferred Stockholder is a party, or (iv) result in the creation of
any Encumbrance on any of the shares of Senior Preferred Stock, except, in the
case of clauses (ii) and (iii), for such conflicts, violations, breaches or
defaults as would not, individually or in the aggregate, prevent or materially
delay the Senior Preferred Stockholder from performing its
obligations under this Agreement.
(e) The
execution, delivery and performance of this Agreement does not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to, any Governmental Authority on the part of the
Senior Preferred Stockholder.
(f) Each
share of Senior Preferred Stock set forth next to the Senior
Preferred Stockholder’s name in Annex A hereto is
owned of record and beneficially by the Senior Preferred Stockholder
free and clear of all Encumbrances (except restrictions under applicable
Securities Laws). Such shares are all of the shares of Senior
Preferred Stock owned, either of record or beneficially, by the Senior Preferred
Stockholder. Upon consummation of the transactions contemplated by
Section 2 of this Agreement, each such share of Senior Preferred Stock shall be
owned of record and beneficially by United free and clear of all Encumbrances
(except restrictions under applicable Securities Laws). Other than as
set forth herein, there are no voting trusts, agreements, proxies or other
agreements or understandings in effect with respect to the Senior Preferred
Stock held by the Senior Preferred Stockholder. Other than this
Agreement, the Senior Preferred Stockholder is not bound by any contract
restricting its right to transfer the Senior Preferred Stock.
(g) There
is no Action pending or, to the knowledge of the Senior
Preferred Stockholder, threatened before any Governmental Authority
by or against the Senior Preferred Stockholder relating to (a) the
Senior Preferred Stockholder’s shares of Senior Preferred Stock, or (b) any
actual or potential bankruptcy or insolvency of the Senior Preferred
Stockholder.
(h) No
broker, finder or investment banker is entitled to any brokerage, finder’s or
other fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of the Senior Preferred
Stockholder.
4. Representations and
Warranties of United. United represents and warrants to the
Senior Preferred Stockholder that:
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(a) United
is duly organized, validly existing and in good standing under the Laws of its
jurisdiction of organization and has all necessary power and authority to enter
into this Agreement, and (assuming that all consents, approvals and other
authorizations described in Section 6.03 of the Investment Agreement have been
obtained and that all filings and other actions described in Section 6.03 of the
Investment Agreement have been made or taken) to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by United, and (assuming that all
consents, approvals and other authorizations described in Section 6.03 of the
Investment Agreement have been obtained and that all filings and other actions
described in Section 6.03 of the Investment Agreement have been made or taken)
the performance by United of its obligations hereunder and the consummation by
United of the transactions contemplated hereby, have been duly authorized by all
requisite action on the part of United. This Agreement has been duly
executed and delivered by United, and (assuming due authorization, execution and
delivery by the Senior Preferred Stockholder) this Agreement constitutes a
legal, valid and binding obligation of United enforceable against United in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other
similar Laws relating to or affecting the rights and remedies of creditors or by
general equitable principles (whether considered in a proceeding in equity or at
law).
(b) Neither
United nor anyone acting on its behalf has offered or sold any securities or
other interests in United, or has taken any other action, which would reasonably
be expected to subject the offer, issuance or sale of United Convertible Bonds,
as contemplated hereby, to a requirement that it be registered under the
Securities Act.
(c) The
execution, delivery and performance by United of this Agreement do not and will
not (a) violate, conflict with or result in the breach of any provision of the
organizational documents of United, (b) conflict with or violate any Law
applicable to United, or (c) conflict with, or result in any breach of,
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under, require any consent under, or give to
others any rights of termination, amendment, acceleration, suspension,
revocation or cancellation of any contract to which United is a party, which
would adversely affect the ability of United to carry out its obligations under,
and to consummate the transactions contemplated by, this Agreement.
(d) The
execution, delivery and performance by United of this Agreement does not and
will not require any consent, approval, authorization or other order of, action
by, filing with, or notification to any Governmental Authority, except as
described in Section 6.03 of the Investment Agreement.
(e) Assuming
that all consents, approvals and other authorizations described in Section 6.03
of the Investment Agreement have been obtained and that all filings and other
actions described in Section 6.03 of the Investment Agreement have been made or
taken, United has all requisite power and authority to offer, sell and issue
United Convertible Bonds as contemplated by Section 2
hereof. Assuming that all consents, approvals and other
authorizations described in Section 6.03 of the Investment Agreement have been
obtained and that all filings and other actions described in Section 6.03 of the
Investment Agreement have been made or taken, the United Convertible Bonds will
have been duly authorized for issuance
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and sale
pursuant to this Agreement and, when issued, will have been duly executed by
United and, assuming the due authorization and execution of the Deed Poll by
United, when delivered in exchange for shares of Senior Preferred Stock in
accordance with the terms of this Agreement, will constitute valid and binding
agreements of United, enforceable in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or other similar
Laws relating to or affecting the rights and remedies of creditors or by general
equitable principles (whether considered in a proceeding in equity or at law)
and will be entitled to the benefits of the Deed Poll. At the time of
the exchange of the Senior Preferred Stock for United Convertible Bonds
contemplated by Section 2 of this Agreement, all of the Conversion Shares shall
have been duly authorized for issuance pursuant to the conversion of the United
Convertible Bonds and reserved for such issuance and any Conversion Shares
issued upon conversion of the United Convertible Bonds shall be validly issued,
fully paid and nonassessable.
(f) No
Action by or against United is pending or, to the knowledge of United
threatened, which could affect adversely the legality, validity or
enforceability of this Agreement or the consummation of the transactions
contemplated hereby.
(g) As
of 31 March 2007 (the “Last Accounts Date”)
and in respect of the period then ended, the audited consolidated accounts of
United made up to the Last Accounts Date (the “Audited Accounts”)
complied in all material respects with the requirements of all relevant laws and
accounting practice in Hong Kong and disclose a true and fair view of the state
of affairs of United and its subsidiaries (the “United
Group”). The Audited Accounts have been prepared in accordance
with Hong Kong Financial Reporting Standards issued by the Hong Kong Institute
of Certified Public Accountants and applied on a consistent basis during the
periods involved, except as may be otherwise indicated in such financial
statements or the notes thereto, and fairly present in all material respects the
financial position of the United Group as of and for the date thereof and the
results of their operations and cash flows for the period ended on the Last
Accounts Date, subject to normal recurring year-end adjustments and any other
adjustments described therein. The internal controls over financial
reporting utilized by United are designed to provide reasonable assurance
regarding the reliability of United’s financial reporting and the preparation of
United’s financial statements. To the knowledge of United, there are
no material weaknesses or significant deficiencies in the design or operations
of the internal controls over financial reporting utilized by
United. United has implemented disclosure controls and procedures
designed to ensure that material information relating to United is made known to
United’s management by others within United. All information with
respect to the United Group contained in the announcements and circulars
published by United on the website of the Hong Kong Stock Exchange during the
period of 6 months prior to the date of this Agreement was true and accurate in
all material respects as at the time of publication. United has
complied with the disclosure obligations imposed on it under the Rules Governing
the Listing of Securities on the Hong Kong Stock Exchange in all material
respects.
(h) Except
as described in Section 6.03 of the Investment Agreement, no vote of any holders
of any class or series of capital stock of or other equity interests in United
is necessary to approve the issuance of United Convertible Bonds as contemplated
hereby.
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(i) Except
for Citigroup Global Markets Inc., no broker, finder or investment banker is
entitled to any brokerage, finder’s or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of United.
5. Grant of Irrevocable
Proxy. The Senior Preferred Stockholder, by this Agreement,
with respect to its shares of Senior Preferred Stock, now owned or hereinafter
acquired, hereby grants an irrevocable proxy and power of attorney to United
with full power of substitution and resubstitution (and agrees to execute such
additional documents or certificates evidencing such proxy as United or its
designees may reasonably request) to vote, at any meeting of the shareholders of
the Company or any adjournment or postponement thereof, and take action by
written consent, (a) in favor of the approval and adoption of (i) any amendments
to the Company’s Amended and Restated Certificate of Incorporation, including
any Certificate of Designations relating to any series of the Company’s
preferred stock, required to consummate the transactions contemplated
by the Investment Agreement, (ii) the issuance of the new convertible
preferred stock of the Company required to consummate the transactions
contemplated by the Investment Agreement and (iii) any other matters, if any,
required by applicable Law or otherwise to approve and adopt the Investment
Agreement and approve of the transactions contemplated thereby and this
Agreement; (b) against any action, agreement or transaction (other than the
transactions contemplated by the Investment Agreement and this Agreement) or
proposal that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the
Investment Agreement or that could result in any of the conditions to the
Company’s obligations under the Investment Agreement not being fulfilled; and
(c) in favor of any other matter necessary to the consummation of the
transactions contemplated by the Investment Agreement and considered and voted
upon (or consented to) by the shareholders of the Company. THIS PROXY
IS IRREVOCABLE AND COUPLED WITH AN INTEREST SUFFICIENT IN LAW TO SUPPORT AN
IRREVOCABLE POWER. The Senior Preferred Stockholder hereby revokes
each proxy and power of attorney it may have heretofore granted with respect to
its shares of Senior Preferred Stock. Notwithstanding any of the
foregoing, this proxy shall be limited to matters reasonably required in order
to consummate the transactions contemplated by the Investment Agreement; the
Senior Preferred Stockholder shall retain its proxy rights with respect to all
other matters.
6. Waiver of Notice under
Warrant Agreements. The Senior Preferred Stockholder hereby
irrevocably waives any right it or any of its Affiliates might have, with
respect to any warrants issued pursuant to the Warrant Agreements and held by
the Senior Preferred Stockholder or any of its Affiliates, to receive from the
Company 20-day prior written notice of the transactions contemplated by the
Investment Agreement as may be required pursuant to Section 5.2 of the
applicable Warrant Agreement. For the avoidance of doubt, the Company
shall have no obligation to provide such prior written notice and the lack of
notice given by the Company pursuant to Section 5.2 of the applicable Warrant
Agreement shall not constitute a failure to comply with the provisions of such
Warrant Agreement for the purposes of Section 16.1 thereof.
7. Restrictions on
Transfer. Except as contemplated hereby, the Senior Preferred
Stockholder shall not transfer, sell, tender, assign, option, pledge,
hypothecate, put,
7
convert
or redeem or otherwise directly, indirectly or by operation of Law or otherwise
(including without limitation by merger or sale of equity in any direct or
indirect holding company), dispose of or subject to any Encumbrance any of the
shares of Senior Preferred Stock; provided, however, that, with
the prior consent of United (which consent shall not be unreasonably withheld),
the Senior Preferred Stockholder may make a transfer of shares of Senior
Preferred Stock to its Affiliate that agrees to be bound by the terms of this
Agreement. Subject to the foregoing, the Senior Preferred Stockholder
shall retain its full rights as a shareholder of the Company for all purposes
unless and until the exchange of shares of Senior Preferred Stock for United
Convertible Bonds in accordance with this Agreement.
8. No Solicitation of
Transactions. The Senior Preferred Stockholder shall not,
directly or indirectly, through any officer, director, employee, agent,
representative or otherwise, (a) solicit, initiate or encourage (including
by way of furnishing nonpublic information), or take any other action to
facilitate, any inquiries or the making of any proposal of offer (including,
without limitation, any proposal or offer to its shareholders) that constitutes,
or may reasonably be expected to lead to, any Competing Transaction, or (b)
enter into or maintain or continue discussions or negotiations with any person
or entity in furtherance of such inquiries or to obtain a proposal or offer for
a Competing Transaction, or (c) agree to or approve any Competing Transaction or
enter into any contract, agreement or commitment contemplating or otherwise
relating to any Competing Transaction or (d) take any action that would make any
representation or warranty of the Senior Preferred Stockholder herein untrue or
incorrect in any material respect or have the effect of preventing or adversely
affecting the Senior Preferred Stockholder from performing its obligations
hereunder. The Senior Preferred Stockholder shall, and shall direct
or cause his, her or its directors, officers, employees, representatives and
agents to, immediately cease and cause to be terminated any discussions or
negotiations with any parties that may be ongoing with respect to any Competing
Transaction. If any proposal or offer, or any inquiry or contact with
any person with respect thereto, regarding a Competing Transaction is made, the
Senior Preferred Stockholder shall promptly advise United orally and in writing
of (i) any offer or proposal or any request for information with respect to any
offer or proposal, the material terms and conditions of such offer or proposal
or request and the identity of the person making such offer or proposal or
request and (ii) any changes in any such offer or proposal or
request.
9. Conditions to Obligations of
the Senior Preferred Stockholder and United.
(a) The
obligations of the Senior Preferred Stockholder and United to consummate the
transactions contemplated by Section 2 of this Agreement shall be subject to (i)
the fulfillment or waiver by United (to the extent permitted under the
Investment Agreement) of the conditions set forth in Sections 8.02(b), (c), (d)
and (e) of the Investment Agreement; (ii) the Listing Committee of the Hong Kong
Stock Exchange having granted or having agreed to grant the listing of, and
permission to deal in, the Conversion Shares; (iii) the Investment Agreement
having become and remaining unconditional under its own terms; and (iv) the
shareholders of United having approved the issue of the United Convertible
Bonds.
(b) The
obligations of the Senior Preferred Stockholder to consummate the transactions
contemplated by Section 2 of this Agreement shall be subject to the fulfillment
or waiver (to the extent permitted) of the following conditions: (i) the
representations and
8
warranties
of United contained in this Agreement (A) that are not qualified as to
materiality shall be true and correct in all material respects as of the Closing
Date and (B) that are qualified as to materiality shall be true and correct as
of the Closing Date, except in each case to the extent such representations and
warranties are made as of another date, in which case such representations and
warranties shall be true and correct in all material respects or true and
correct, as the case may be, as of such other date, and (ii) any covenants or
agreements contained in this Agreement to be complied with by United on or
before the Swap Closing shall have been complied with in all material
respects.
(c) The
obligations of United to consummate the transactions contemplated by Section 2
of this Agreement shall be subject to the fulfillment or waiver (to the extent
permitted) of the following conditions: (i) the representations and warranties
of the Senior Preferred Stockholder contained in this Agreement (A) that are not
qualified as to materiality shall be true and correct in all material respects
as of the Closing Date and (B) that are qualified as to materiality shall be
true and correct as of the Closing Date, except in each case to the extent such
representations and warranties are made as of another date, in which case such
representations and warranties shall be true and correct in all material
respects or true and correct, as the case may be, as of such other date, and
(ii) any covenants or agreements contained in this Agreement to be complied with
by the Senior Preferred Stockholder on or before the Swap Closing shall have
been complied with in all material respects.
10. Termination. This
Agreement shall be terminated and the transactions contemplated hereby shall be
abandoned solely in the event that the Investment Agreement is terminated
pursuant to Article X thereof or if the exchange of Senior Preferred Stock for
United Convertible Bonds shall not have occurred on or before December 31,
2008.
11. Further Action; Reasonable
Best Efforts. (a) Upon the terms and subject to the
conditions hereof, the Senior Preferred Stockholder and United shall use its
reasonable best efforts to take, or cause to be taken, all appropriate action,
and to do, or cause to be done, all things necessary, proper or advisable under
applicable Laws to consummate and make effective this Agreement, including,
without limitation, using its reasonable best efforts to obtain any consents,
approvals, authorizations, qualifications and orders of Governmental Authorities
or third parties as are necessary for the consummation of this
Agreement.
(b) The
Senior Preferred Stockholder and United will negotiate in good faith, acting
reasonably, to agree on the form and contents of the Deed Poll, which shall
incorporate the commercial terms set forth in the term sheet attached hereto as
Annex B, as
promptly as practicable and in any event prior to the deadline for the dispatch
of the circular or listing document of United in Hong Kong in relation to the
transactions contemplated hereunder and under the Investment Agreement in
accordance with the HKSE Listing Rules.
12. Disclosure. The
Senior Preferred Stockholder hereby agrees to permit United to publish and
disclose the Senior Preferred Stockholder’s identity and ownership of the Senior
Preferred Stock and the nature of the Senior Preferred Stockholder’s
commitments, arrangements and understandings under this Agreement in any press
release or other disclosure document in which United reasonably determines in
its good faith judgment that such disclosure
9
is
required by Law, including the Securities Laws, in connection with the
transactions contemplated by the Investment Agreement and this
Agreement.
13. Assignment. Except
as contemplated by the proviso to Section 7 of this Agreement, neither this
Agreement, nor any right, obligation or interest hereunder may be assigned or
otherwise transferred or disposed of, whether by operation of Law, security or
otherwise, by the Senior Preferred Stockholder or United without the prior
written consent of each of the other parties hereto and any attempted assignment
without the required consent shall be void; provided, however, that
United may assign all or any of its rights and obligations hereunder to any
Affiliate of United, provided that no such
assignment shall relieve the assigning party of its obligations hereunder if
such assignee does not perform such obligations. For the avoidance of
doubt, United shall be entitled to conduct the transactions contemplated by this
Agreement through a wholly owned subsidiary of United; provided, however, that United shall
guarantee the obligations of such subsidiary in connection
therewith.
14. Notices. All
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by courier service, by
facsimile upon written confirmation of delivery or by registered or certified
mail (postage prepaid, return receipt requested) to the respective parties at
the following addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 14):
| (a) | if to Citadel Equity Fund Ltd: | |
|
Citadel
Equity Fund Ltd
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Facsimile
No.: (000) 000-0000
|
||
|
with
copy to:
|
||
|
Sidley
Austin LLP
Xxx
Xxxxx Xxxxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxx X. Xxxx
Fax:
(000) 000-0000
|
||
| (b) | if to United Energy Group Limited: | |
|
United
Energy Group Limited
Xxxx
0000, Xxx Xxxxxxx Xxxxx
00
Xxxxxxxxx
Xxxxxxx,
Xxxx Xxxx
Attention:
Xxxxxx Xxxxx, Executive Director
Facsimile
No.: x000 0000 0000
|
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| with copy to: | ||
|
Shearman
& Sterling LLP
12th
Floor Gloucester Tower
The
Landmark, 00 Xxxxxx Xxxxxx
Xxxxxxx,
Xxxx Xxxx
Attention:
Xxxx Xxxxxxxx
Facsimile
No.: x000 0000 0000
|
15. Waiver. The
waiver by a party of compliance with any provision of this Agreement by another
party shall not operate or be construed as a waiver of any other provision of
this Agreement, or of any subsequent breach by such party of a provision of this
Agreement.
16. No Third Party
Beneficiaries. This Agreement shall be binding upon and inure
solely to the benefit of the parties hereto and their respective successors and
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other Person, including any union or any employee or
former employee of United, any legal or equitable right, benefit or remedy of
any nature whatsoever, including any right of employment for any specified
period, under or by reason of this Agreement.
17. Entire
Agreement. This Agreement, the Deed Poll, the Investment
Agreement and the Ancillary Agreements set forth the entire agreement and
understanding among the parties hereto and supersede all prior agreements and
understandings relating to the subject matter hereof. This Agreement
may be executed in one or more counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together constitute one and the
same agreement. The headings of sections and subsections herein are
included solely for convenience of reference and shall not affect the meaning of
any of the provisions of this Agreement.
18. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of New York applicable to contracts
executed in and to be performed in that State. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined exclusively in any New York state or federal court sitting in The
City of New York. The parties hereto hereby (a) submit to the
exclusive jurisdiction of any state or federal court sitting in The City of New
York for the purpose of any Action arising out of or relating to this Agreement
brought by any party hereto, and (b) irrevocably waive, and agree not to assert
by way of motion, defense, or otherwise, in any such Action, any claim that it
is not subject personally to the jurisdiction of the above-named courts, that
its property is exempt or immune from attachment or execution, that the Action
is brought in an inconvenient forum, that the venue of the Action is improper,
or that this Agreement or the transactions contemplated hereby may not be
enforced in or by any of the above-named courts.
19. Waiver of Jury
Trial. Each of the parties hereto hereby waives to the fullest
extent permitted by applicable Law any right it may have to a trial by jury with
respect to any litigation directly or indirectly arising out of, under or in
connection with this Agreement or the transactions contemplated
hereby. Each of the parties hereto (a) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that
11
20. Expenses. Except
as otherwise specified in this Agreement, all costs and expenses, including fees
and disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Swap
Closing shall have occurred.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first written above.
| UNITED ENERGY GROUP LIMITED | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | |||
| Title: Chairman and Executive Director | |||
| CITADEL EQUITY FUND LTD | |||
|
|
By:
|
CITADEL
LIMITED PARTNERSHIP, its
Portfolio
Manager
|
|
|
|
By:
|
/s/ Xxxxxxxxxxx Xxxxxx | |
| Name: Xxxxxxxxxxx Xxxxxx | |||
| Title: Authorized Signatory | |||
