STOCK PURCHASE AGREEMENT by and between GOLDMAN SACHS & CO and ASHMORE MANAGEMENT COMPANY LIMITED June 11, 2010
by and between
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO
and
▇▇▇▇▇▇▇ MANAGEMENT COMPANY LIMITED
June 11, 2010
STOCK PURCHASE AGREEMENT (this “Agreement”), dated June 11, 2010, by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co (“Goldman”) and ▇▇▇▇▇▇▇ Management Company Limited (“▇▇▇▇▇▇▇”). Capitalized terms used herein shall have the meanings set forth in Section 1.
RECITALS
WHEREAS, Goldman holds certain ordinary shares of the capital stock, par value US$0.002 per share, of AEI, a Cayman Islands exempted company (“AEI”); and
WHEREAS, in accordance with the terms and subject to the conditions set forth herein, Goldman desires to sell, assign and transfer, or cause to be sold, assigned and transferred, 2,286,920 being all of its shares of AEI (the “AEI Shares”) to ▇▇▇▇▇▇▇ (or its nominee or assignee), and ▇▇▇▇▇▇▇ desires to purchase such AEI Shares from Goldman.
NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
SECTION 1
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the respective meanings set forth below:
“AEI” shall have the meaning set forth in the Recitals.
“AEI Shares” shall have the meaning set forth in the Recitals.
“Affiliate” means, with respect to a given Person (in this definition, the “Relevant Person”), any Person who (a) directly or indirectly, Controls, or is Controlled by, or is under a common Control with, the Relevant Person or (b) from time to time, is managed by (i) the same investment manager as the Relevant Person is managed by, or (ii) an investment manager that is Controlled by the same Person that Controls the Relevant Person; provided, that for the avoidance of doubt, neither Goldman nor ▇▇▇▇▇▇▇ shall be deemed to be an Affiliate of AEI for purposes of this Agreement solely as a result of any board seat or other contractual “protection rights,” each as provided in the Shareholders Agreement. As used in this definition, “Control,” “Controlling” and “Controlled” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
“Agreement” shall have the meaning set forth in the Preamble.
“Anti-Money Laundering Laws” means, collectively, (i) the USA Patriot Act of 2001 (Pub. L. No. 107-56) and (ii) any other Law of any relevant jurisdiction having the force of law and relating to anti-money laundering.
“Approval” means any approval, authorization, consent, qualification, permit, license, franchise, clearance, Order or registration, or any extension, modification, amendment or waiver of any of the foregoing, required to be obtained from, or notice required to be given to, any Governmental Entity.
“▇▇▇▇▇▇▇” shall have the meaning set forth in the Preamble.
“Business Day” means a day (other than Saturday or Sunday) on which commercial banks are open for business in London, England.
“Closing” shall have the meaning set forth in Section 2.1(b).
“Contract” means any binding written agreement, bond, commitment, indenture, lease, instrument or obligation.
“Control” shall have the meaning set forth in the definition of Affiliate.
“Goldman” shall have the meaning set forth in the Preamble.
“Governmental Entity” means any government or any agency, bureau, board, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government, whether federal, state or local, multinational or supranational, domestic or foreign, or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority that has, in each case, jurisdiction over the matter in question.
“Law/Laws” means any constitutional provision, statute, law, rule, ordinance, regulation, treaty, code, executive order or interpretation of any Governmental Entity and any Order.
“Lien” means any lien, pledge, charge, mortgage, hypothecation, deed of trust, security interest or other encumbrance or restriction on title.
“OFAC List” means the Specially Designated Nationals and Blocked Persons List, as published by the United States Department of the Treasury Office of Foreign Asset Control from time to time, and available on the Internet at the following website: ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇/ sdn/index.html or any official successor website.
“Order” means any binding and enforceable decree, injunction, judgment, order, ruling, assessment, stipulation, determination or writ issued by or agreement entered into with a Governmental Entity (whether preliminary or final).
“Organizational Documents” means, with respect to any Party, as applicable, the certificate of incorporation, articles of incorporation, memorandum and articles of association, certificate of formation, by-laws, articles of organization, limited liability company agreement, limited partnership agreement, formation agreement, joint venture agreement, general partnership agreement or other similar organizational documents of such Person, together with any shareholder agreement, voting agreement or similar agreement among two or more of the equity owners of any such entity.
“Parties” means Goldman and ▇▇▇▇▇▇▇.
“Person” means any natural person, association, corporation, general partnership, limited partnership, limited liability company, limited liability partnership, proprietorship, joint venture, trust or any other entity, organization or Governmental Entity.
“Purchase Price” means US$25,956,542 (equivalent to US$11.35 per AEI Share).
“Purchaser Excluded Information” shall have the meaning set forth in Section 4.6.
2
“Registration Rights Agreement” shall mean the Amended and Restated Registration Rights Agreement, dated as of December 29, 2006, by and among AEI and the shareholders of AEI party thereto, as the same may be amended, supplemented, replaced or restated from time to time.
“Relevant Person” shall have the meaning set forth in the definition of Affiliate.
“Regulation S” means Regulation S adopted by the Securities and Exchange Commission under the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Goldman Excluded Information” shall have the meaning set forth in Section 3.6.
“Shareholders Agreement” shall mean the Amended and Restated Shareholders Agreement, dated as of December 29, 2006, by and among AEI and the shareholders of AEI party thereto, as the same may be amended, supplemented, replaced or restated from time to time.
SECTION 2
SALE AND PURCHASE; CLOSING
2.1. Sale and Purchase.
(a) Subject to the terms and conditions of this Agreement, Goldman agrees to sell, assign, transfer, convey and deliver, or cause to be sold, assigned, transferred, conveyed and delivered, to ▇▇▇▇▇▇▇ (or its nominee or assignee) at Closing, free and clear of all Liens (but subject to any applicable limitations and restrictions under the Shareholders Agreement), all of ▇▇▇▇▇▇▇’▇ right, benefit, title and interest in, to and under the AEI Shares. In consideration therefor, ▇▇▇▇▇▇▇ agrees to pay the Purchase Price to Goldman (or its nominee or assignee) at Closing in immediately available funds, in Dollars, by wire transfer to the account(s) specified in writing by Goldman to ▇▇▇▇▇▇▇ (which notification shall be provided by Goldman at least one Business Day prior to the Closing).
(b) Closing. Subject to the satisfaction or waiver of all conditions to closing set forth in Section 5, the closing of the transactions contemplated hereby shall take place, on June 29, 2010, or such date as the Parties may mutually agree (which time and place is designated as the “Closing”).
2.2. Closing Deliveries.
(a) At the Closing, subject to the satisfaction or waiver of all of the conditions to the Closing set forth herein, (i) Goldman shall take all actions necessary to transfer, or cause to be transferred, title to the AEI Shares, free and clear of all Liens (but subject to any applicable limitations and restrictions under the Shareholders Agreement), to ▇▇▇▇▇▇▇ (or its nominee or assignee), including, without limitation, notifying AEI of the transfer of the AEI Shares to ▇▇▇▇▇▇▇ in accordance with the terms hereof and delivering to AEI the Share Transfer Certificate (substantially in the form of Exhibit A) executed by it, and (ii) ▇▇▇▇▇▇▇ shall pay the Purchase Price to Goldman (or its nominee or assignee) to the account(s) designated by Goldman in accordance with Section 2.1 and deliver to AEI the Addendum to the Shareholders Agreement (substantially in the form of Exhibit B) and the Joinder to the Registration Rights Agreement (substantially in the form of Exhibit C), in each case duly executed by it. In the event that either (x) the AEI Shares shall be delivered to a nominee or assignee of ▇▇▇▇▇▇▇ at Closing and/or (y) the Purchase Price shall be paid to a nominee or assignee of Goldman at Closing, the respective Party shall provide the other Party with the name and relevant account information for such nominee or assignee at least two Business Days prior to the Closing.
3
SECTION 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Goldman hereby represents and warrants to ▇▇▇▇▇▇▇ that as of the date of this Agreement and (unless otherwise indicated below) as of the Closing:
3.1. Organization and Related Matters.
(a) Goldman is duly organized and validly existing under the Laws of its jurisdiction of organization and has all requisite power and authority to own, license, use, lease and operate its assets and properties and to carry on its business.
(b) Goldman is duly qualified to do business in all jurisdictions in which such qualification is necessary due to the nature of the property owned, leased or operated by it or the nature of the business conducted by it except where the failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of Goldman to perform its obligations under this Agreement (including any Exhibit hereto) or to consummate the transactions contemplated hereby.
3.2. Authorization; No Conflicts.
(a) Goldman has the necessary power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by Goldman and the consummation of the transaction contemplated hereby have been, or will be as of the Closing, duly and validly authorized by all necessary corporate action. This Agreement has been duly executed and delivered by Goldman and constitutes a legally valid and binding obligation of Goldman enforceable against Goldman in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws relating to creditors’ rights generally and by general equitable principles.
(b) The execution, delivery and performance by Goldman of this Agreement and the consummation of the transaction contemplated hereby do not and will not (i) conflict with, or constitute a breach or default under, its Organizational Documents, (ii) violate, or constitute a breach or default under, or result in the termination, acceleration or cancellation of, or the loss of benefit under, any Contract to which it is a party or by which its assets may be bound or affected (whether upon lapse of time and/or the occurrence of any act or event or otherwise) or (iii) violate any Law or Order applicable to it or by which its assets may be bound, other than, in the case of clauses (ii) and (iii) above as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on its ability to perform its obligations under this Agreement (including any Exhibit hereto) or to consummate the transactions contemplated hereby.
(c) Assuming the truth and accuracy of the representations and warranties of ▇▇▇▇▇▇▇ in Section 4 hereof and except for the delivery to AEI of the Share Transfer Certificate, the Addendum to the Shareholders Agreement and the Joinder to the Registration Rights Agreement, no Approval or third party consent or approval under any Contract to
4
which Goldman is a party is necessary to be obtained or made by Goldman in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.
3.3. Title.
(a) Goldman is the sole legal and beneficial owner of and has good and valid title to the AEI Shares, free and clear of any Lien (except for any applicable limitations and restrictions under the Shareholders Agreement).
(b) There is no funding obligation of any kind (whether fixed, contingent, conditional, or otherwise) in respect of the AEI Shares that Goldman or ▇▇▇▇▇▇▇ is or shall be required to pay or otherwise perform that Goldman has not paid or otherwise performed in full.
3.4. Non-U.S. Person. Goldman is not a U.S. Person as such term is defined in Regulation S under the Securities Act.
3.5. Inspections. Goldman is an informed and sophisticated seller (particularly in respect to transactions of the sort contemplated pursuant to this Agreement) and has engaged expert advisors, experienced in the evaluation and sale of securities and investments such as the AEI Shares as contemplated hereunder. Goldman has undertaken such investigation and has been provided with and has evaluated such documents and information it has deemed necessary to enable it to make an informed investment decision with respect to the execution, delivery and performance of this Agreement.
3.6. Possession of Information. Goldman acknowledges that (i) ▇▇▇▇▇▇▇ currently may have, and later may come into possession of, information with respect to the AEI Shares, other ordinary shares in the capital of AEI, AEI’s future plans and the present or future valuation of the AEI Shares that is not known to Goldman and that may be material to a decision to sell the AEI Shares (“Goldman Excluded Information”), (ii) Goldman has determined to sell the AEI Shares notwithstanding its lack of knowledge of the Goldman Excluded Information and (iii) ▇▇▇▇▇▇▇ shall have no liability to ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ waives and releases any claims that it might have against ▇▇▇▇▇▇▇ whether under applicable securities laws or otherwise, with respect to the nondisclosure of Goldman Excluded Information in connection with the transactions contemplated under this Agreement.
3.7. Compliance. Goldman and its Affiliates are in compliance in all material respects with the applicable requirements of the Anti-Money Laundering Laws. Neither Goldman nor any of ▇▇▇▇▇▇▇’▇ directors or executive officers is a Person included on the OFAC List.
3.8. Litigation. There is no action, suit, investigation (including any governmental or regulatory investigation or inquiry) or proceedings pending against, or to the knowledge of Goldman threatened against or affecting, Goldman, its Affiliates or any of their respective properties (including the AEI Shares) by or before any arbitrator or any Governmental Entity in connection with the transfer of the AEI Shares pursuant thereto which challenges or seeks to, or would otherwise reasonably be expected to prevent, enjoin or materially impair ▇▇▇▇▇▇▇’▇ ability to consummate the transactions contemplated by this Agreement or ▇▇▇▇▇▇▇’▇ performance of its obligations under this Agreement
3.9. No Other Representations. Except as expressly provided above, or elsewhere in this Agreement, Goldman does not make, and Goldman hereby expressly disclaims, any representation or warranty to ▇▇▇▇▇▇▇ of any kind or nature, written or oral, statutory, express or implied. Without limiting the generality of the foregoing, except as expressly provided above or elsewhere in this Agreement, Goldman does not make, and hereby expressly disclaims, any representation or warranty to ▇▇▇▇▇▇▇ of any kind or nature, written or oral, statutory, express or implied, as to (i) the condition, value or quality of AEI’s
5
assets, (ii) the prospects (financial and otherwise), risks and other incidents of AEI’s assets or business or (iii) any other matters of any nature whatsoever arising out of or relating to this Agreement and the transactions contemplated hereby.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ hereby represents and warrants to Goldman that as of the date of this Agreement and (unless otherwise indicated below) as of the Closing:
4.1. Organization and Related Matters.
(a) ▇▇▇▇▇▇▇ is duly organized and validly existing under the Laws of its jurisdiction of organization, and has all requisite power and authority to own, license, use, lease and operate its assets and properties and to carry on its business.
(b) ▇▇▇▇▇▇▇ is duly qualified to do business in all jurisdictions in which such qualification is necessary due to the nature of the property owned, leased or operated by it or the nature of the business conducted by it except where the failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of ▇▇▇▇▇▇▇ to perform its obligations under this Agreement (including any Exhibit hereto) or to consummate the transactions contemplated hereby.
4.2. Authorization; No Conflicts.
(a) ▇▇▇▇▇▇▇ has the necessary power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by ▇▇▇▇▇▇▇ and the consummation of the transactions contemplated hereby have been, or will be as of the Closing, duly and validly authorized by all necessary partnership action. This Agreement has been duly executed and delivered by ▇▇▇▇▇▇▇ and constitutes a legally valid and binding obligation of ▇▇▇▇▇▇▇ enforceable against ▇▇▇▇▇▇▇ in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws relating to creditors’ rights generally and by general equitable principles.
(b) The execution, delivery and performance by ▇▇▇▇▇▇▇ of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) conflict with, or constitute a breach or default under, its Organizational Documents, (ii) violate, or constitute a breach or default under, or result in the termination, acceleration or cancellation of, or the loss of benefit under, any Contract to which it is a party or by which its assets may be bound or affected (whether upon lapse of time and/or the occurrence of any act or event or otherwise) or (iii) violate any Law or Order applicable to it or by which its assets may be bound, other than, in the case of clauses (ii) and (iii) above as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on its ability to perform its obligations under this Agreement (including any Exhibit hereto) or to consummate the transactions contemplated hereby.
(c) Assuming the truth and accuracy of the representations and warranties of Goldman in Section 3 hereof and except for the delivery to AEI of the Share Transfer Certificate, the Addendum to the Shareholders Agreement and the Joinder to the Registration Rights Agreement, no Approval or third party consent or approval under any Contract to which ▇▇▇▇▇▇▇ is a party is necessary to be obtained or made by
6
▇▇▇▇▇▇▇ in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.
4.3. Compliance. ▇▇▇▇▇▇▇ and its Affiliates are in compliance in all material respects with the applicable requirements of the Anti-Money Laundering Laws. Neither ▇▇▇▇▇▇▇ nor any of ▇▇▇▇▇▇▇’▇ partners is a Person included on the OFAC List.
4.4. Non-U.S. Person. ▇▇▇▇▇▇▇ is not a U.S. Person as such term is defined in Regulation S under the Securities Act.
4.5. Inspections. ▇▇▇▇▇▇▇ is an informed and sophisticated purchaser (particularly in respect to transactions of the sort contemplated pursuant to this Agreement) and has engaged expert advisors, experienced in the evaluation and purchase of securities and investments such as the AEI Shares as contemplated hereunder. ▇▇▇▇▇▇▇ has undertaken such investigation and has been provided with and has evaluated such documents and information it has deemed necessary to enable it to make an informed investment decision with respect to the execution, delivery and performance of this Agreement.
4.6. Restricted Securities. ▇▇▇▇▇▇▇ understands that the AEI Shares have not been registered under the Securities Act or the securities or blue sky Laws of any State of the United States or any other jurisdiction. ▇▇▇▇▇▇▇ has such knowledge and experience in financial and business matters so that it is capable of evaluating the merits and risks of holding the AEI Shares and has the capacity to protect its own interests. ▇▇▇▇▇▇▇ is able to bear the economic risk of its investment in the AEI Shares indefinitely. ▇▇▇▇▇▇▇ is acquiring the AEI Shares for its own account for investment only, and not with a view towards a distribution thereof in violation of the Securities Act. ▇▇▇▇▇▇▇ is an accredited investor within the meaning of Regulation D under the Securities Act.
4.7. No Public Market. ▇▇▇▇▇▇▇ understands that no public market now exists for any of the shares in AEI’s capital, and that Goldman has made no assurances that a public market will ever exist for such shares.
4.8. No Other Representations. Except as expressly provided above, or elsewhere in this Agreement, ▇▇▇▇▇▇▇ does not make, and ▇▇▇▇▇▇▇ hereby expressly disclaims, any representation or warranty to Goldman of any kind or nature, written or oral, statutory, express or implied. Without limiting the generality of the foregoing, except as expressly provided above or elsewhere in this Agreement, ▇▇▇▇▇▇▇ does not make, and hereby expressly disclaims, any representation or warranty to Goldman of any kind or nature, written or oral, statutory, express or implied, as to any other matters of any nature whatsoever arising out of or relating to this Agreement and the transactions contemplated hereby.
SECTION 5
CONDITIONS TO OBLIGATIONS OF PARTIES
5.1. Conditions Precedent to Obligations of All Parties. The obligations of Goldman and ▇▇▇▇▇▇▇ to consummate the Closing are subject to there not being in effect, on or prior to the Closing, any applicable Law or Order issued by any court or other Governmental Entity of competent jurisdiction with valid enforcement authority restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement. The foregoing condition may be waived, in whole or in part, by mutual agreement of Goldman and ▇▇▇▇▇▇▇, to the extent permitted by Law.
7
5.2. Conditions to Obligations of ▇▇▇▇▇▇▇. Goldman’s obligation to consummate the Closing is subject to the fulfillment on or prior to the Closing of the following conditions, which conditions may be waived, in whole or in part, at the option of Goldman to the extent permitted by Law:
(a) Representations and Warranties Correct. The representations and warranties made by ▇▇▇▇▇▇▇ in Section 4 hereof shall be true and correct when made, and shall be true and correct on and as of the Closing, except those representations and warranties that speak as of a certain date or time, provided such representations and warranties shall have been true and correct as of such date.
(b) Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by ▇▇▇▇▇▇▇ on or prior to the Closing shall have been performed or complied with in all material respects.
(c) Deliveries. ▇▇▇▇▇▇▇ shall have duly executed and delivered each of the agreements, documents and instruments contemplated under Section 2.2 of this Agreement to be executed and delivered by it.
5.3. Conditions to Obligations of ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇’▇ obligation to consummate the Closing is subject to the fulfillment on or prior to the Closing of the following conditions, which conditions may be waived, in whole or in part, at the option of ▇▇▇▇▇▇▇ to the extent permitted by Law:
(a) Representations and Warranties Correct. The representations and warranties made by Goldman in Section 3 hereof shall be true and correct when made, and shall be true and correct on and as of the Closing, except those representations and warranties of Goldman that speak as of a certain date or time, provided such representations and warranties shall have been true and correct as of such date.
(b) Covenants. All covenants, agreements and conditions contained in this Agreement to be performed by Goldman on or prior to the Closing shall have been performed or complied with in all material respects.
(c) Deliveries. Goldman shall have duly executed and delivered each of the agreements, documents and instruments contemplated under Section 2.2 of this Agreement to be executed and delivered by it.
SECTION 6
MISCELLANEOUS
6.1. Survival. All of the representations and warranties contained in Sections 3 and 4 of this Agreement shall survive the execution and delivery hereof and the consummation of the transactions contemplated hereby.
6.2. Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when two or more counterparts have been signed by each of the Parties and delivered (including by facsimile) to the other Party.
6.3. Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY ENGLISH LAW. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF THE COURTS OF ENGLAND.
8
(b) To the extent that any Party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each Party hereby irrevocably waives such immunity in respect of its obligations with respect to this Agreement.
6.4. Entire Agreement. This Agreement, and the Exhibits hereto, contain the entire agreement among the Parties with respect to the subject matter hereof and there are no agreements, understandings, representations or warranties between the Parties other than those set forth or referred to herein.
6.5. Notices. All notices and other communications to be given to any Party shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service or three days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or when received in the form of a telegram or facsimile and shall be directed to the address or facsimile number set forth below (or at such other address or facsimile number as such Party shall designate by like notice):
|
(a)If to Goldman:
|
attention:
email:
tel:
fax:
address:
|
|
(b) If to ▇▇▇▇▇▇▇:
|
attention:▇▇▇▇▇ ▇▇▇▇▇▇▇
email:▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
tel: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
fax: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
address: c/▇ ▇▇▇▇▇▇▇ Investment Management
Limited, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
|
6.6. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person not a party to this Agreement. Except as expressly contemplated hereby, no Party may delegate any or all of its obligations under this Agreement without the express prior written consent of each other Party; for the avoidance of doubt, nothing in this Section or elsewhere in this Agreement shall be construed to restrict in any way or otherwise affect each Party’s right to assign such Party’s rights, benefits and privileges (but not its obligations) under this Agreement or, in the case of ▇▇▇▇▇▇▇, to freely transfer the AEI Shares in accordance with any applicable securities Laws and the terms of the Shareholders Agreement.
6.7. Headings. The Section headings contained in this Agreement are inserted for convenience of reference only and will not affect the meaning or interpretation of this Agreement. All references to Sections contained herein mean Sections of this Agreement unless otherwise stated.
6.8. Amendments and Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the Parties. Any Party may, only by an instrument in writing, waive, only as to itself, compliance by the other Party with any term or provision of this Agreement on the part of such other Party to be performed or complied with. The waiver by any Party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach. Except as otherwise expressly provided herein, no failure to exercise, delay in exercising or single or partial exercise of any right, power or remedy by any party, and no course of dealing between the Parties, shall constitute a waiver of any such right, power or remedy.
9
6.9. Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions of this Agreement shall not be affected thereby, and there shall be deemed substituted for the provision at issue a valid, legal and enforceable provision as similar as possible to the provision at issue.
6.10. Interpretation. The phrase “including” shall be deemed to be followed by “without limitation.” The words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular Section in which such words appear. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement. Except as otherwise expressly provided in this Agreement, all references to “US$” or “Dollars”, if any, shall be to the lawful currency of the United States. All capitalized terms defined herein are equally applicable to both the singular and plural forms of such terms.
6.11. Further Assurances. From time to time after the date hereof, without additional consideration, each of the Parties will (or, if appropriate, cause their subsidiaries or Affiliates to) execute and deliver such further instruments and take such other action as may be necessary to make effective the transactions contemplated by this Agreement.
6.12. Public Announcements. Except as otherwise required by applicable Law, no Party nor any of its respective Affiliates, agents or representatives, shall issue any press release or public statement concerning this Agreement or the transactions contemplated hereby, without obtaining the prior written approval of the other Party; provided, that if a press release or other public statement is required by applicable Law, the Party intending to make such release or statement shall give the other Party prior notice and shall use its best efforts to consult with the other Party with respect to the text therein.
6.13. Termination.
(a) This Agreement may be terminated, and the transactions contemplated by this Agreement may be abandoned at any time prior to the Closing by:
(i) the mutual written agreement of Goldman and ▇▇▇▇▇▇▇;
(ii) either Goldman or ▇▇▇▇▇▇▇ if any court of competent jurisdiction or other competent Governmental Entity shall have issued a statute, rule, regulation, order, decree or injunction or taken any other action permanently restraining, enjoining or otherwise prohibiting all or any portion of the transactions contemplated by this Agreement and such statute, rule, regulation, order, decree or injunction or other action shall have become final and nonappealable;
(iii) Goldman, in the event of a material breach of this Agreement by ▇▇▇▇▇▇▇ if ▇▇▇▇▇▇▇ fails to cure such breach within five Business Days following notification thereof by Goldman;
(iv) ▇▇▇▇▇▇▇, in the event of a material breach of this Agreement by Goldman if Goldman fails to cure such breach within five Business Days following notification thereof by ▇▇▇▇▇▇▇; or
(v) either Goldman or ▇▇▇▇▇▇▇ if the Closing shall not have occurred on or before July 30, 2010 , unless the failure to consummate the Closing is due to the failure to act by the terminating party or its Affiliates.
10
(b) If this Agreement is validly terminated pursuant to Section 6.13(a), this Agreement will forthwith become null and void and have no further effect, without any liability on the part of any party hereto or its Affiliates, directors, officers or stockholders, other than the provisions of Section 6 hereof. Nothing contained in this Section 6.13(b) shall relieve any party from liability for any breach of this Agreement occurring prior to termination.
6.14. Expenses. Each Party shall be responsible for all fees and expenses incurred by it with respect to this Agreement and the transactions contemplated hereby.
6.15. No Third-Party Beneficiary. This Agreement is solely for the benefit of the Parties and their respective permitted successors and assigns and no other Person shall have any rights or remedies hereunder.
6.16. Limitation Of Liability Goldman hereby acknowledges that Northern Trust (Guernsey) Limited is executing this Agreement in its capacity as custodian to ▇▇▇▇▇▇▇ and further agrees that all liabilities contemplated by this Agreement are limited to ▇▇▇▇▇▇▇ and its assets.
[signature page follows]
11
IN WITNESS WHEREOF, each of the undersigned, intending to be legally bound, has caused this Agreement to be duly executed and delivered on the date first set forth above.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
|
|
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Authorized Signatory
|
▇▇▇▇▇▇▇ MANAGEMENT COMPANY LIMITED
|
|
By:
|
/s/ ▇▇▇ ▇▇▇▇▇▇ |
|
|
Name: ▇▇▇ ▇▇▇▇▇▇
|
|
|
Title: Director
|
EXHIBIT A
FORM OF SHARE TRANSFER CERTIFICATE
SHARE TRANSFER CERTIFICATE
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co (the "Transferor"), for good and valuable consideration received by it from ▇▇▇▇▇▇▇ Management Company Limited (the "Transferee"), does hereby:
|
|
1.
|
transfer to the Transferee 2,286,920 ordinary shares, par value US$0.002 per share, of the Company (the "Shares") with such transfer to be effective and recorded on the register of members of such Company as of ______________, 2010; and
|
|
|
2.
|
consent that its name of Transferor remain on the register of members of the Company until such time as the Company enters the Transferee's name in the register of members of the Company.
|
|
Signed by the Transferor on _____________, 2010
|
|
_______________________________________
Transferor
By:
|
|
Signature Guaranteed: Signature must be
guaranteed by a participant in the Securities Transfer Agent Medallion Program, the Stock Exchange Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program. _______________________________________
|
EXHIBIT B
ADDENDUM TO SHAREHOLDERS AGREEMENT
This Addendum To Shareholders Agreement, is made as of the_______________, 2010 (this “Addendum”), by ▇▇▇▇▇▇▇ Management Company Limited (the “Purchaser”), pursuant to Section 3.1 of the Second Amended and Restated Shareholders Agreement (the “Shareholders Agreement”), dated as of October 29, 2009, by and among AEI (formerly known as ▇▇▇▇▇▇▇ Energy International) (the “Company”) and the parties listed on Schedule A attached thereto and such other shareholders of the Company who become a party to such agreement in accordance with the terms therein. Capitalized terms used herein without definition shall have the meanings given to them in the Shareholders Agreement.
In consideration of the Sale of Capital Securities to the Purchaser and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Purchaser hereby agrees as follows:
1. The Purchaser hereby joins in and agrees to be bound by each and all of the provisions of the Shareholders Agreement as a Shareholder thereunder. The Purchaser further agrees to execute and deliver all other documents and instruments and take all other actions required under or pursuant to the Shareholder Agreement or as reasonably required by the Company in connection herewith.
2. The Purchaser hereby represents and warrants that (i) each representation and warranty contained in Article VI of the Shareholders Agreement is true and correct with respect to the Purchaser as of the date of this Addendum, as if such representations and warranties were incorporated herein; and (ii) it is purchasing the Capital Securities for investment for its own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof.
IN WITNESS WHEREOF, the Purchaser has caused this Addendum to be executed and delivered to each of the Company and the Shareholders as of the date first above written.
▇▇▇▇▇▇▇ MANAGEMENT COMPANY LIMITED
|
|
By:
|
___________________________________ |
|
|
Name:
|
|
|
Title:
|
EXHIBIT C
JOINDER AGREEMENT
This Joinder Agreement, is made as of the___________________, 20010 (this “Joinder Agreement”), by ▇▇▇▇▇▇▇ Management Company Limited (the “Purchaser”), pursuant to Section 13(d) of the Amended and Restated Registration Rights Agreement (the “Registration Rights Agreement”), dated as of December 29, 2006, by and among AEI (formerly known as ▇▇▇▇▇▇▇ Energy International) (the “Company”) and the parties listed on Appendix A attached thereto and such other shareholders of the Company who become a party to such agreement in accordance with the terms therein. Capitalized terms used herein without definition shall have the meanings given to them in the Registration Rights Agreement.
In consideration of the Sale of Capital Securities to the Purchaser and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Purchaser hereby agrees as follows:
The Purchaser hereby joins in and agrees to be bound by each and all of the provisions of the Registration Rights Agreement as an Investor thereunder. The Purchaser further agrees to execute and deliver all other documents and instruments and take all other actions required under or pursuant to the Registration Rights Agreement or as reasonably required by the Company in connection herewith.
IN WITNESS WHEREOF, the Purchaser has caused this Joinder Agreement to be executed and delivered to each of the Company and the Investors as of the date first above written.
▇▇▇▇▇▇▇ MANAGEMENT COMPANY LIMITED
|
|
By:
|
___________________________________ |
|
|
Name:
|
|
|
Title:
|