20% Junior Redeemable Convertible Preferred StockAdditional Return Agreement
Exhibit 10.3
Capital Ventures International | Linden Capital L.P. | |
c/o Heights Capital Management, Inc. | c/o Linden Advisors | |
101 California Street, Suite 3250 | 450 Park Avenue | |
San Francisco, CA 94111 | New York, NY 10022 | |
Investcorp Silverback Arbitrage Master Fund Limited | Silver Oak Capital, L.L.C. | |
c/o Silverback Asset Management, LLC | 245 Park Avenue, 26th Floor | |
1414 Raleigh Road, Suite 250 | New York, NY 10167 | |
Chapel Hill, NC 27517 | ||
Kenmont Special Opportunities Master Fund, L.P. | Whitebox Convertible Arbitrage Partners, LP | |
Man Mac Miesque 10B Ltd. | Whitebox Hedged High Yield Partners, LP | |
c/o Kenmont Investments Management, L.P. | Pandora Select Partners, LP | |
711 Louisiana, Suite 1750 | Whitebox Intermarket Partners, LP | |
Houston, TX 77002 | GPC LIX, LLC | |
Guggenheim Portfolio Co. XXXI, LLC | ||
3033 Excelsior Boulevard, Suite 300 | ||
Minneapolis, MN 55416 | ||
Fursa Master Global Event Driven Fund, LP | RHP Master Fund, Ltd. | |
444 Merrick Road, Suite 104 | c/o Rock Hill Investment Management, L.P. | |
Lynbrook, NY 11563 | Three Bala Plaza East, Suite 585 | |
Bala Cynwyd, PA 19004 | ||
Basso Fund Ltd. | Basso Holdings Ltd. | |
1266 East Main Street | Basso Multi-Strategy Holding Fund Ltd. | |
Stamford, CT 06902 | c/o Basso Capital Management L.P. | |
1266 East Main Street, 4th Floor | ||
Stamford, CT 06902 | ||
Greenwich Investment Partners | Dr. Wolfgang Rupf | |
546 Fifth Avenue, 14th Floor | AKV Altkönig Verwaltungs GmbH | |
New York, NY 10036 | Altkönigstr 41 | |
61462 Königstein | ||
Germany |
CONFIDENTIAL
June 26, 2007
Transmeridian Exploration Incorporated
397 N. Sam Houston Pkwy. E., Suite 300
Houston, Texas 77060
Attention: Earl W. McNiel, Chief Financial Officer
20% Junior Redeemable Convertible Preferred Stock Additional Return Agreement
Ladies and Gentlemen:
Reference is made to the Regulation D Purchase Agreement, dated the date hereof (the Purchase Agreement), by and among the various investors set forth on the signature pages thereto (collectively, the Investors) and Transmeridian Exploration Incorporated, a Delaware corporation (the Company). Terms used but not defined in this Additional Return Agreement shall have the meanings assigned thereto in the Purchase Agreement.
1. | Additional Returns. |
As consideration for our respective agreements under the Purchase Agreement with respect to the Regulation D Placement, the Company hereby agrees to pay to each Investor a preferred return (collectively, and as the same may be adjusted as provided for below, the Returns) equal to 25% of the aggregate liquidation preference of the Securities to be purchased by such Investor pursuant to the Purchase Agreement, as set forth on Annex A to the Purchase Agreement entitled Registration Information, which preferred return is subject to adjustment as described below.
The Returns are fully vested upon consummation of the Regulation D Placement; provided, however, all Returns are due and payable at the earlier of: (i) the occurrence of a Change of Control (as defined in the Certificate of Designations) and (ii) June 18, 2008.
If the Returns are not paid by December 31, 2007, from and after such date the principal amount of the Companys obligation to pay the Returns shall thereafter be increased, without the need for further act or evidence, at the rate of 10% per annum.
You shall make payment of the Returns when due without the need for any demand or other action by any of us, in each case by wire transfer to the respective accounts that each Investor shall have previously designated to you; provided, however, if the Returns become due other than upon the occurrence of a Change of Control, you may elect to satisfy your payment obligations with respect thereto by delivery of duly authorized, fully paid and non-assessable shares of your Common Stock, valued for such purpose as prescribed by Section (3A)(b) of the Certificate of Designations.
2. | General. |
No Returns, once vested, are assignable without the prior written consent of the Company, which shall not unreasonably be withheld; provided, however, notwithstanding the foregoing, an Investor may assign its vested Returns, or any part thereof, to an affiliate and in such case the assignor must provide written notice thereof to the Company promptly upon completion of such assignment. Notwithstanding any provision of this Additional Return Agreement or the Purchase Agreement to the contrary, an Investor may elect in writing to waive all or any portion of its Returns, whether vested or unvested.
You agree that, once paid, the Returns or any part thereof payable hereunder will not be refundable under any circumstances. All Returns payable hereunder will be paid in immediately available funds and shall not be subject to reduction by way of setoff or counterclaim.
You agree that (i) you will not disclose this Additional Return Agreement or the contents hereof other than as permitted by the Purchase Agreement and (ii) your obligations under this Additional Return Agreement shall survive the expiration or termination of the Purchase Agreement and the purchase of the Securities.
It is understood that this Additional Return Agreement shall not constitute or give rise to any obligation on our part to purchase any Securities; such an obligation will arise only under the Purchase Agreement if accepted in accordance with its terms and executed and delivered. This Additional Return Agreement may not be amended or any provision hereof waived or modified except by an instrument in writing signed by each of the parties hereto. THIS ADDITIONAL RETURN AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK. This Additional Return Agreement may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Additional Return Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart of this Additional Return Agreement. Section headings used herein are for convenience of reference only, are not part of this Additional Return Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Additional Return Agreement.
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If the foregoing correctly sets forth our understanding, please indicate your acceptance of the terms hereof by returning to each of us an executed counterpart hereof, whereupon this Additional Return Agreement shall become a binding agreement between us.
Very truly yours,
CAPITAL VENTURES INTERNATIONAL | ||
BY | HEIGHTS CAPITAL MANAGEMENT, INC., ITS AUTHORIZED AGENT | |
BY | /s/ MARTIN KOBINGER | |
NAME: | MARTIN KOBINGER | |
TITLE: | INVESTMENT MANAGER | |
LINDEN CAPITAL L.P. | ||
BY | /s/ CRAIG JARVIS | |
NAME: | CRAIG JARVIS | |
TITLE: | AUTHORIZED SIGNATORY | |
SILVER OAK CAPITAL, L.L.C. | ||
BY | /s/ MICHAEL L. GORDON | |
NAME: | MICHAEL L. GORDON | |
TITLE: | MANAGING MEMBER | |
INVESTCORP SILVERBACK ARBITRAGE MASTER FUND LIMITED | ||
BY | /s/ ELLIOT BOSSEN | |
NAME: | ELLIOT BOSSEN | |
TITLE: | CIO |
Additional Return Agreement Signature Page
RHP MASTER FUND, LTD. | ||
BY | ROCK HILL INVESTMENT MANAGEMENT, LP | |
BY | RHP GENERAL PARTNER, LLC | |
BY | /s/ WAYNE BLOCH | |
NAME: | WAYNE BLOCH | |
TITLE: | MANAGING PARTNER | |
KENMONT SPECIAL OPPORTUNITIES MASTER FUND, L.P. | ||
BY | KENMONT INVESTMENTS MANAGEMENT, L.P. | |
BY | /s/ JOHN HARKRIDER | |
NAME: | JOHN HARKRIDER | |
TITLE: | MANAGING DIRECTOR & CFO | |
MAN MAC MIESQUE 10B LTD. | ||
BY | KENMONT INVESTMENTS MANAGEMENT, L.P. | |
BY | /s/ JOHN HARKRIDER | |
NAME: | JOHN HARKRIDER | |
TITLE: | MANAGING DIRECTOR & CFO | |
FURSA MASTER GLOBAL EVENT DRIVEN FUND, LP | ||
BY | /s/ MICKEY HARLEY | |
NAME: | MICKEY HARLEY | |
TITLE: | PRESIDENT & CIO | |
WHITEBOX CONVERTIBLE ARBITRAGE PARTNERS, LP | ||
BY | /s/ JONATHAN WOOD | |
NAME: | JONATHAN WOOD | |
TITLE: | COO |
Additional Return Agreement Signature Page
WHITEBOX HEDGED HIGH YIELD PARTNERS, LP | ||
BY | /s/ JONATHAN WOOD | |
NAME: | JONATHAN WOOD | |
TITLE: | COO | |
PANDORA SELECT PARTNERS, LP | ||
BY | /s/ JONATHAN WOOD | |
NAME: | JONATHAN WOOD | |
TITLE: | COO | |
WHITEBOX INTERMARKET PARTNERS, LP | ||
BY | /s/ JONATHAN WOOD | |
NAME: | JONATHAN WOOD | |
TITLE: | COO | |
GUGGENHEIM PORTFOLIO CO. XXXI, LLC | ||
BY | /s/ JONATHAN WOOD | |
NAME: | JONATHAN WOOD | |
TITLE: | COO | |
GPC LIX, LLC | ||
BY | /s/ JONATHAN WOOD | |
NAME: | JONATHAN WOOD | |
TITLE: | COO |
Additional Return Agreement Signature Page
BASSO FUND LTD. | ||
BY | /s/ HOWARD I. FISCHER | |
NAME: | HOWARD I. FISCHER | |
TITLE: | AUTHORIZED SIGNATORY | |
BASSO HOLDINGS LTD. | ||
BY | /s/ HOWARD I. FISCHER | |
NAME: | HOWARD I. FISCHER | |
TITLE: | AUTHORIZED SIGNATORY | |
BASSO MULTI-STRATEGY HOLDING FUND LTD. | ||
BY | /s/ HOWARD I. FISCHER | |
NAME: | HOWARD I. FISCHER | |
TITLE: | AUTHORIZED SIGNATORY | |
GREENWICH INVESTMENT PARTNERS, LP | ||
BY | /s/ MICHAEL C. ESPOSITO | |
NAME: | MICHAEL C. ESPOSITO | |
TITLE: | MEMBER OF GENERAL PARTNER OF GREENWICH INVESTMENT PARTNERS, LP | |
DR. WOLFGANG RUPF | ||
/s/ DR. WOLFGANG RUPF | ||
AKV ALTKÖNIG VERWALTUNGS GMBH | ||
BY | /s/ MATTHIAS RUPF | |
NAME: | MATTHIAS RUPF | |
TITLE: |
Additional Return Agreement Signature Page
Accepted and agreed to as of the date first above written: | ||
TRANSMERIDIAN EXPLORATION INCORPORATED | ||
BY | /s/ NICOLAS J. EVANOFF | |
NAME: | NICOLAS J. EVANOFF | |
Title: | Vice President, General Counsel and Secretary |
Additional Return Agreement Signature Page