AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT by and among EXCEL MARITIME CARRIERS LTD., as Seller and LHADA HOLDINGS INC. and TANEW HOLDINGS INC., as Purchasers Dated as of March 30, 2009
EXHIBIT
4.18
AMENDMENT
NO. 1 TO STOCK PURCHASE
AGREEMENT
by and
among
as
Seller
and
LHADA
HOLDINGS INC.
and
TANEW
HOLDINGS INC.,
as
Purchasers
Dated
as of March 30, 2009
AMENDMENT NO. 1 TO STOCK
PURCHASE AGREEMENT
THIS
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT (this "Amendment"), dated as of
March 30, 2009, is entered into by and among EXCEL MARITIME CARRIERS LTD., a
corporation organized under the laws of the Republic of Liberia (the "Company"),
and LHADA HOLDINGS INC., a corporation organized under the laws of the Republic
of Liberia ("Lhada") and TANEW HOLDINGS INC., a corporation organized und under
the laws of the Republic of Liberia ("Tanew" and together with Lhada, the
"Purchasers" and each a "Purchaser").
WHEREAS,
the Company and the Purchasers entered into that certain Stock Purchase
Agreement, dated as of March 2nd,
2009 (the "Agreement"), pursuant to which the Company agreed to issue sell the
Shares to the Purchasers on the terms and subject to the conditions set forth in
the Agreement.
WHEREAS,
the Company, in order raise additional equity capital as required by the
Lenders, desires to issue and sell 25,714,286 of the Company's Class A common
shares, par value $0.01 per share (the "Shares"), also 5,500,000 warrants, each
such warrant exercisable to purchase one Class A common share for Three Dollars
and Fifty Cents ($3.50) during the period commencing on April 1st,
2009 and terminating on March 31, 2010 (the "Warrants" and together with the
Shares, the "Securities") to the Purchasers, and the Purchasers desire by buy
the Securities, subject to the terms and conditions set forth in this
Agreement.
WHEREAS,
the Company and the Purchasers desire to amend the Agreement to reflect, among
other things, the issuance and sale of the Securities.
NOW,
THEREFORE, in
consideration of the foregoing recitals and the mutual premises and covenants
herein set forth, the Company and the Purchasers hereby agree to amend the
Agreement as follows:
1.
Unless otherwise defined herein, capitalized terms when used herein shall have
the meanings ascribed to them in the Agreement.
2.
Article I of the Agreement is hereby amended to read in its entirety as
follows:
ARTICLE
I
PURCHASE
AND SALE OF SECURITIES
Section
1.01 Authorization of Issuance
and Sale of Securities. The Company's board of directors,
acting through a special independent committee, has authorized the issuance and
sale of the Securities to the Purchasers.
Section
1.02 Sale and
Purchase. Upon the terms and subject to the conditions of this
Agreement, the Company hereby agrees to issue and sell to the Purchasers, free
and clear of any lien, pledge, claim, security interest, encumbrance or charge
of any kind (together,
"Liens"), and the Purchasers agrees to purchase from the Company the Securities,
allocable between the Purchasers in the manner set forth on Schedule
A.
Section
1.03 Purchase
Price. The aggregate purchase price for the Securities shall
be in an amount equal to Forty-Five Million Dollars (U.S.$45,000,000) (the
"Purchase Price"), allocable between the Purchasers in the manner set forth on
Schedule
A.
Section
1.04 Time and Place of
Closing. Upon the terms and subject to satisfaction or waiver
of the conditions contained in this Agreement, the closing of the transactions
contemplated by this Agreement (the "Closing") will take place as of the close
of business on March 31, 2009 at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP or at
such other place or time as the parties may agree in writing. The
date on which the Closing occurs is herein referred to as the "Closing Date" and
the Closing shall be deemed to have occurred as of the close of business on the
Closing Date.
Section
1.05 Closing Payments and
Delivery of Securities. Upon the terms and subject to the
satisfaction of the conditions contained in this Agreement, the Purchasers shall
deliver to the Company, pursuant to wire instructions furnished separately, an
amount equal to the Purchase Price in immediately available U.S. funds, and the
Company shall issue and deliver to the Purchasers stock certificates
representing the Shares and the warrant certificates in the form attached hereto
as Exhibit A
representing the Warrants, allocable between the Purchasers in the manner set
forth on Schedule
A.
3.
Schedule A to
the Agreement is hereby amended in the form annexed hereto.
4.
Sections 2.01, 2.02, 2.03 and 4.04 are hereby amended to replace all
references to the "Shares" with the term "Securities".
5.
Section 5.01 of the Agreement is hereby amended to read in its entirety as
follows:
"Section
5.01 Lock-Up and
Legends
(a) Lock-Up. Each
Purchaser hereby agrees that, without the prior written consent of the Company,
it will not, directly or indirectly, offer, sell, agree to offer or sell,
solicit offers to purchase, grant any call option or purchase any put option
with respect to, any of the Shares or any Class A common shares issuable upon
exercise of the Warrants (the "Warrant Shares") for a period ending March 31,
2010. Notwithstanding the foregoing, the
Shares and the Warrant Shares may be pledged in connection with a bona fide
margin account or other loan secured by the Shares and/or the Warrant
Shares.
2
(b) Legend. Each
Purchaser hereby acknowledges and agrees that the share certificates
representing the Shares and the Warrant Shares will bear the following
legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR OFFERED FOR SALE IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AGREEMENT BY THE
REGISTERED HOLDER WITH THE COMPANY NOT TO TRANSFER, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMPANY, SUCH SHARES FOR A PERIOD ENDING ON MARCH 31,
2010. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH
SHARES.
6.
All other terms of the Agreement shall remain in full force and
effect.
7.
This Amendment may be executed in several counterparts, and all counterparts so
executed shall constitute one agreement, binding on all of the parties hereto,
notwithstanding that all of the parties are not signatory to the original or the
same counterpart.
[Signature Page
Follows]
3
IN
WITNESS WHEREOF, the Company and each of the Purchasers have caused this
Amendment to be duly executed as of the date first above written.
| LHADA HOLDINGS INC. | ||||
| Special Independent Committee | ||||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | By: |
/s/
Villy Panayotides
|
|
|
|
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | Name: Villy Panayotides | ||
| Title: Chairman | Title: | |||
|
|
TANEW HOLDINGS INC. | |||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | By: |
/s/
Villy Panayotides
|
|
|
|
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | Name: Villy Panayotides | ||
| Title: Director | Title: | |||
|
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
|
||
|
|
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: Director | ||||
|
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
|
||
|
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: Director | ||||
Schedule
A
SECURITIES
AND PURCHASE PRICE ALLOCATION
|
Purchaser
|
Shares
|
Warrants
|
Purchase Price
|
|
|
LHADA
HOLDINGS INC.
|
12,857,143
|
2,750,000
|
$22,500,000
|
|
|
TANEW
HOLDINGS INC.
|
12,857,143
|
2,750,000
|
$22,500,000
|
|
|
TOTAL:
|
25,714,286
|
5,500,000
|
$45,000,000
|
Exhibit
A
FORM
OF WARRANT
[Attached]
[Exhibit A
- Form of Warrant Certficiate]