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WARRANT PURCHASE AGREEMENT

Warrant Agreement

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North Sound Capital LLC | North Sound Legacy Institutional Fund LLC | Omnibus Transmeridian Exploration Incorporated

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Title: WARRANT PURCHASE AGREEMENT
Governing Law: New York     Date: 5/10/2007
Industry: OILPRD     Law Firm: Wiggin Dana;Akin Gump     Sector: ENERGY

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Exhibit 10.1

 


WARRANT PURCHASE AGREEMENT

by and among

Transmeridian Exploration Incorporated, as Issuer and Seller

and

the parties named herein, as Purchasers

with respect to Seller’s

Warrants to Purchase Common Stock

March 15, 2007

 



Table of Exhibits and Schedules

 

 

 

 

Exhibit A

  

Form of Warrant

 

 

Exhibit B

  

Form of Investor Rights Agreement

 

 

Exhibit C

  

Form of Opinion of Seller’s Counsel

 

 

Schedule 1

  

Purchasers, Amount of Securities Purchased and Purchase Price


WARRANT PURCHASE AGREEMENT

This Warrant Purchase Agreement (the “ Agreement ”) is made and entered into as of March 15, 2007, by and among Transmeridian Exploration Incorporated, a Delaware corporation (the “ Seller ”), and each of the persons listed on Schedule 1 hereto (each is individually referred to as a “ Purchaser ” and collectively, as the “ Purchasers ”).

WHEREAS, each of the Purchasers is willing to purchase from the Seller, and the Seller desires to sell to the Purchasers, Common Stock Purchase Warrants (the “ Warrants ”) entitling the holders thereof to purchase up to 8,500,000 shares of the Seller’s common stock, $0.0006 par value (the “ Common Stock ”), as more fully set forth herein.

NOW THEREFORE, in consideration of the mutual promises and representations, warranties, covenants and agreements set forth herein, the parties hereto, intending to be legally bound, hereby agree as follows:

ARTICLE I—PURCHASE AND SALE

1.1 Purchase and Sale .

On the terms and subject to the conditions set forth in this Agreement, at the Closing (as defined in Section 2.2), the Seller will sell and each of the Purchasers will purchase Warrants to purchase a number of shares of Common Stock as set forth on Schedule 1 . The shares of Common Stock issuable upon exercise of the Warrants are referred to herein as the “ Warrant Shares .” The Warrants and Warrant Shares are sometimes collectively referred to herein as the “ Securities ”.

1.2 Terms of the Warrants . The terms and provisions of the Warrants are more fully set forth in the form of Common Stock Purchase Warrant, attached hereto as Exhibit A .

1.3 Transfers; Legends .

(a)(i) Except as restricted by federal securities laws and the securities law of any state or other jurisdictions, the Warrants and Warrant Shares may be transferred, in whole or in part, by any of the Purchasers at any time. Any such transfer shall be made by a Purchaser in accordance with applicable law. Any transferee shall agree in writing to be bound by the terms of the Investor Rights Agreement and this Agreement. The Seller shall reissue certificates evidencing the applicable Securities upon surrender of certificates evidencing the Securities being transferred in accordance with this Section 1.3(a).

(ii) In connection with any transfer of Securities other than pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “ Securities Act ”), or to the Seller, the Seller may require the transferor thereof to furnish to the Seller an opinion of counsel selected by the transferor, such counsel and the form and substance of which opinion shall be reasonably satisfactory to the Seller and Seller’s counsel, to the effect that such transfer does not require registration under the Securities Act; provided, however , that in the case of a transfer pursuant to Rule 144 under the Securities Act, no opinion shall be required if the transferor provides the Company with a customary seller’s representation letter, and, if such sale


is not pursuant to subsection (k) of Rule 144, a customary broker’s representation letter and Form 144. Notwithstanding the foregoing, the Seller hereby consents to and agrees to register on the books of the Seller and with any transfer agent for the securities of the Seller, without any such legal opinion, any transfer of Securities by a Purchaser to an Affiliate of such Purchaser, provided that the transferee certifies to the Seller that it is an “accredited investor” as defined in Rule 501(a) under the Securities Act and that it is acquiring the Securities solely for investment purposes (subject to the qualifications hereof) and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part in violation of the Securities Act.

(iii) An “ Affiliate ” means any Person (as such term is defined below) that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 144 under the Securities Act. With respect to a Purchaser, any investment fund or managed account that is managed on a discretionary basis by the same investment manager as such Purchaser will be deemed to be an Affiliate of such Purchaser. A “ Person ” means any individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision of any thereof) or other entity of any kind.

(b) The certificates representing the Securities, unless, with respect to the Warrant Shares, such shares are eligible for resale without registration pursuant to Rule 144(k) under the Securities Act or have been sold pursuant to an effective registration statement under the Securities Act (in which case any such legend shall be removed), shall bear the following legend:

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT UNLESS, IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.”

ARTICLE II—PURCHASE PRICE AND CLOSING

2.1 Purchase Price . The purchase price (the “ Purchase Price ”) to be paid by each of the Purchasers to the Seller to acquire the Warrants shall be as set forth beside the name of such Purchaser on Schedule 1 hereto.

2.2 The Closing . The closing of the transactions contemplated under this Agreement (the “ Closing ”) will take place as promptly as practicable, but no later than two (2) business days following satisfaction or waiver of the conditions set forth in Article 5.1(a) and 5.2(a) (other than those conditions which by their terms are not to be satisfied or waived until the Closing), at the offices of Wiggin and Dana LLP, 400 Atlantic Street, Stamford, Connecticut 06901. The date on which the Closing occurs is the “ Closing Date .”

ARTICLE III—REPRESENTATIONS AND WARRANTIES OF THE SELLER

The Seller represents and warrants to the Purchasers as follows, as of the date hereof:

 

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3.1 Corporate Existence and Power; Subsidiaries . The Seller and its Subsidiaries are corporations or other organizations duly incorporated or organized (as the case may be) and validly existing, and the Seller is in good standing, in each case under the laws of the jurisdiction in which they are incorporated or organized. The Seller and its Subsidiaries have all corporate powers required to carry on their business as now conducted and are duly qualified to do business as a foreign corporation in each jurisdiction where the character of the property owned or leased by them or the nature of their activities makes such qualification necessary, except for those jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Seller. For purposes of this Agreement, the term “ Material Adverse Effect ” means, with respect to any person or entity, a material adverse effect on its and its Subsidiaries’ condition (financial or otherwise), business, properties, assets, liabilities (including contingent liabilities), results of operations or current prospects, taken as a whole. True and complete copies of the Seller’s Certificate of Incorporation, as amended, and Bylaws, as amended, as currently in effect and as will be in effect on the Closing Date (collectively, the “ Certificate and Bylaws ”), have previously been provided or made available to the Purchasers. For purposes of this Agreement, the term “ Subsidiary” or “Subsidiaries ” means, with respect to any entity, any corporation or other organization of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are directly or indirectly owned by such entity or of which such entity is a partner or is, directly or indirectly, the beneficial owner of 50% or more of any class of equity securities or equivalent profit participation interests.

3.2 Corporate Authorization; Enforceability . The execution, delivery and performance by the Seller of this Agreement, the Warrants, the Investor Rights Agreement (as defined below), and each of the other documents executed pursuant to and in connection with this Agreement (collectively, the “ Related Documents ”), and the consummation of the transactions contemplated hereby and thereby (including, but not limited to, (i) the sale and delivery of the Warrants and (ii) the subsequent issuance of the Warrant Shares upon exercise of the Warrants) have been duly authorized, and, other than the preparation, filing and approval of an additional listing application with the American Stock Exchange (“ AMEX ”) with respect to the issuance of the Warrant Shares upon exercise of the Warrants, no additional corporate or stockholder action is required pursuant to the rules of any stock exchange, market or bulletin board on which the Common Stock is traded or otherwise for the approval of this Agreement, the Related Documents or the consummation of the transactions contemplated hereby or thereby. The Warrant Shares have been duly reserved for issuance by the Seller. This Agreement and the Related Documents have been or, to the extent contemplated hereby or by the Related Documents, will be duly executed and delivered and constitute the legal, valid and binding agreement of the Seller, enforceable against the Seller in accordance with their terms, except as may be limited by bankruptcy, reorganization, insolvency, moratorium and similar laws of general application relating to or affecting the enforcement of rights of creditors, and except as enforceability of its obligations hereunder are subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

3.3 Regulatory Authorization . Except as otherwise specifically contemplated in this Agreement and the Related Documents, and except for: (i) the approval by AMEX of an additional listing application with respect to the issuance of the Warrant Shares upon exercise of the Warrants; (ii) the filing of the Registration Statement (as defined in the Investor Rights

 

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Agreement) with the Securities and Exchange Commission (the “SEC ” or the “ Commission ”); and (iii) any filings required under state or provincial securities laws that are permitted to be made after the date hereof, the execution, delivery and performance by the Seller of this Agreement and the Related Documents, and the consummation of the transactions contemplated hereby and thereby (including, but not limited to, (i) the sale and delivery of the Warrants and (ii) the subsequent issuance of the Warrant Shares upon exercise of the Warrants) by the Seller require no action by or in respect of, or filing with, any governmental or regulatory body, agency, official or authority.

3.4 Non-Contravention . The execution, delivery and performance by the Seller of this Agreement and the Related Documents, and the consummation by the Seller of the transactions contemplated hereby and thereby (including the issuance of the Warrant Shares) do not and will not (a) contravene or conflict with the Certificate and Bylaws of the Seller and its Subsidiaries or any material agreement to which the Seller is a party or by which it is bound; (b) contravene or conflict with or constitute a violation of any provision of any law, regulation, judgment, injunction, order or decree binding upon or applicable to the Seller or its Subsidiaries; (c) constitute a default (or would constitute a default with notice or lapse of time or both) under or give rise to a right of termination, cancellation or acceleration or loss of any benefit under any material agreement, contract or other instrument binding upon the Seller or its Subsidiaries or under any material license, franchise, permit or other similar authorization held by the Seller or its Subsidiaries; or (d) result in the creation or imposition of any Lien (as defined below) on any asset of the Seller or its Subsidiaries. For purposes of this Agreement, the term “ Lien ” means, with respect to any material asset, any mortgage, lien, pledge, charge, security interest, claim or encumbrance of any kind in respect of such asset.

3.5 SEC Documents . The Seller is obligated under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), to file reports pursuant to Sections 13 or 15(d) thereof (all such reports filed or required to be filed by the Seller, including all exhibits thereto or incorporated therein by reference, and all documents filed by the Seller under the Securities Act hereinafter called the “ SEC Documents ”). The Seller has filed all reports or other documents required to be filed under the Exchange Act. All SEC Documents filed by the Seller (i) were prepared in all material respects in accordance with the requirements of the Exchange Act and (ii) did not at the time they were filed (or, if amended or superseded by a filing prior to the date hereof, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Seller has previously delivered or made available to the Purchasers a correct and complete copy of each report which the Seller filed with the Commission under the Exchange Act for any period ending on or after December 31, 2005 (the “ Recent Reports ”). None of the information about the Seller or any of its Subsidiaries which has been disclosed to the Purchasers herein or in the course of discussions and negotiations with respect hereto which is not disclosed in the Recent Reports is or was required to be so disclosed, and no material non-public information has been disclosed to the Purchasers, except as contemplated by the letter agreement, dated as of March 14, 2007, by and among the Seller and the Purchasers (the “ Letter Agreement ”).

3.6 Financial Statements . Each of (i) Seller’s audited consolidated balance sheet and related consolidated statements of income, cash flows and changes in stockholders’ equity

 

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(including the related notes) as of and for the years ended December 31, 2005 and December 31, 2004, as contained in the Recent Reports for such periods and (ii) the Seller’s unaudited consolidated balance sheet and related consolidated statements of income and cash flows as of and for the nine months ended September 30, 2006 as contained in the Recent Reports (both of (i) and (ii), collectively, the “ Seller’s Financial Statements ” or the “ Financial Statements ”) (x) present fairly in all material respects the financial position of the Seller and its Subsidiaries on a consolidated basis as of the dates thereof and the results of operations, cash flows and stockholders’ equity as of and for each of the periods then ended, except that the unaudited financial statements are subject to normal year-end adjustments, and (y) were prepared in accordance with United States generally accepted accounting principals (“ GAAP ”) applied on a consistent basis throughout the periods involved, in each case, except as otherwise indicated in the notes thereto.

3.7 Compliance with Law . The Seller and its Subsidiaries are in compliance and have conducted their business so as to comply with all laws, rules and regulations, judgments, decrees or orders of any court, administrative agency, commission, regulatory authority or other governmental authority or instrumentality, domestic or foreign, applicable to their operations, except where the failure to so be in compliance would not have a Material Adverse Effect on the Seller. There are no judgments or orders, injunctions, decrees, stipulations or awards (whether rendered by a court or administrative agency or by arbitration), against the Seller or its Subsidiaries or against any of their properties or businesses, the impact of which would have a Material Adverse Effect on the Seller.

3.8 No Undisclosed Liabilities . Except as set forth in the Recent Reports or in the disclosures provided to the Purchasers pursuant to the Letter Agreement, and except for liabilities and obligations incurred since December 31, 2005 in the ordinary course of business, consistent with past practice, as of the date hereof, (i) the Seller and its Subsidiaries do not have any material liabilities or obligations (absolute, accrued, contingent or otherwise), and (ii) there has not been any aspect of the prior or current conduct of the business of the Seller or its Subsidiaries which may form the basis for any material claim by any third party which if asserted could result in any such material liabilities or obligations.

3.9 Preemptive Rights . No Person possesses any right of first refusal, preemptive rights or similar rights in respect of (i) the Warrants or (ii) the Warrant Shares to be issued upon exercise of the Warrants.

3.10 Brokers . 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 any arrangement made by or on behalf of the Seller, which would make any Purchaser liable for any fees or commissions.

3.11 Securities Laws . Neither the Seller nor its Subsidiaries, nor any agent acting on behalf of the Seller or its Subsidiaries, has taken or will take any action which might cause this Agreement or the Warrants to violate the Securities Act or the Exchange Act or any rules or regulations promulgated thereunder, as in effect on the Closing Date. Assuming that all of the representations and warranties of the Purchasers set forth in Article IV are true, all offers and sales of the Warrants were conducted and completed in compliance with the Securities Act. All

 

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shares of capital stock and other securities issued by the Seller and its Subsidiaries prior to the date hereof have been issued in transactions that were either registered offerings or were exempt from the registration requirements under the Securities Act and all applicable state securities or “blue sky” laws and in compliance with all applicable corporate laws.

3.12 Poison Pill . Except as otherwise provided for in Section 203 of the Delaware General Corporation Law, the Seller and its Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poi


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