SHARE PURCHASE AGREEMENT by and between MARITIME CAPITAL SHIPPING (HOLDINGS) LIMITED, as Seller and SEANERGY MARITIME HOLDINGS CORP., as Buyer
EXHIBIT 10.1
Seanergy MCS SPA – execution version
by and between
MARITIME CAPITAL SHIPPING
(HOLDINGS) LIMITED,
as Seller
and
as Buyer
This SHARE PURCHASE AGREEMENT (this "Agreement") is entered into as of this 27th day of May, 2010 by and between Maritime Capital Shipping (Holdings) Limited, a corporation organized under the laws of the British Virgin Islands (the "Seller"), and Seanergy Maritime Holdings Corp., a corporation organized under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands (the "Buyer"). The Seller and the Buyer are sometimes referred to herein individually as a "Party" and collectively as the "Parties".
WITNESSETH:
WHEREAS, the Seller owns One Hundred Per Cent (100%) of the issued share capital, i.e. 999,784,860 shares of par value US$0.0005 (the "Shares") of Maritime Capital Shipping Limited, a corporation organized under the laws of Bermuda (the "Company"); and;
WHEREAS, the Seller desires to sell the fifty one percent (51%) of the Shares of the Company (the "Sale Shares") and the Buyer desires to purchase the Sale Shares of the Company.
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITION
Defined Terms: As used in this Agreement, the following terms shall have the meaning set out below:
"Action" means any action, suit, investigation, proceeding, condemnation or audit by or before any court or other governmental or regulatory authority or any arbitration proceeding.
"Affiliate" means with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person.
"Agreement" has the meaning set out in the initial paragraph of this Agreement.
"Business Day" means any day other than Saturday and Sunday, or a legal holiday on which banks are closed in Bermuda, Greece, in New York, New York, USA and Hong Kong.
"Closing Date" or "Closing" has the meaning set out in Section 3.1.
"Company" has the meaning set out in the recitals.
"Company’s Lenders" means each of DVB Group Merchant Bank (Asia) Ltd., DVB Group Merchant Bank (Asia) Ltd., Credit Suisse, United Overseas Bank Limited and HSBC
"Information" means any existing information and data connected with the past, present and future activities of the Company;
"Liens" means any lien, security interest, charge, claim, mortgage, deed of trust, option, warrant, purchase right, lease or other encumbrance.
"Buyer’s Lender" means Marfin Egnatia Bank Societe Anonyme.
"Material Adverse Effect" means a material adverse effect on the business, assets, liabilities or financial condition of the specified Person.
"Party" and "Parties" have the meaning set out in the initial paragraph of this Agreement.
"Person" means any individual, firm, partnership, corporation, limited liability company, joint venture, trust, unincorporated organization, governmental authority or instrumentality, or other entity or organization.
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"Purchase Price" means the purchase price as defined in Section 2.2.
"Sale Shares" means 51% of all the issued shares of the Company, as set out in Section 4.3.
"Seller" has the meaning set out in the initial paragraph of this Agreement.
"Subsidiaries" means all the subsidiaries of the Company listed in Appendix 1.
"Tax" means all income, gross receipts, profits, franchise, sales, use, occupation, property, capital, wealth, environmental, license, employment, severance, production, excise, stamp, transfer, workers' compensation, social security, value added, withholding, payroll, disability or similar taxes, motor vehicle registration fees, customs or import duties, and all other taxes or all other governmental fees, duties, imposts, assessments or charges of any nature whatsoever and however denominated, imposed by any country or political subdivision thereof, together with any interest, additions, or penalties with respect thereto.
ARTICLE II
PURCHASE AND SALE OF SHARES
Section 2.1. Purchase and Sale. On the terms set out in this Agreement the Seller hereby sells to the Buyer and the Buyer hereby purchases from the Seller all rights, title and interest in and to the Sale Shares.
Section 2.2. Purchase Price. As consideration for the Sale Shares, Buyer shall pay to Seller the sum of USD 33,000,000 (United States Dollars Thirty Three Million).
Section 2.3. The Seller has obtained all necessary approvals with respect entering into this Agreement and the transaction contemplated hereby.
Section 2.4. The Purchase Price shall be paid by the Buyer to the Seller on Closing Date to an account in the name of the Seller to be notified by the Seller to the Buyer two (2) business days prior to the Closing.
Section 2.5. The Buyer’s obligation to purchase the Sale Shares is conditional upon:
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(a)
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The Seller’s representations and warranties as set forth in Article 4 remaining true and accurate and not misleading in any material respect at Closing as if repeated at Closing and at all times between the date of this Agreement and Closing Date.
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(b)
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All consents and approvals given by any third parties, which are necessary to effect the transaction contemplated in this Agreement, and of which the Buyer has been advised by the Seller, being granted and there being no statute, regulation or decision which would prohibit, restrict or materially delay the sale and purchase of the Sale Shares after Closing.
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(c)
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The satisfactory fulfillment by the Seller of its obligation to deliver to the Buyer the documents specified in Section 3.2.
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(d)
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Approval of the purchase of the Sale Shares by the Buyer being granted by the Bermuda Monetary Authority.
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(e)
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A consent to the purchase of the Sale Shares pursuant to this Agreement having been received from the Buyer’s Lender under the relevant facility agreement of the Buyer.
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(f)
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Completion by the Buyer of its due diligence investigation of the Company to the Buyer’s satisfaction.
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(g)
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Final Buyer’s Board of Directors approval.
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Section 2.6. The Buyer may waive at its sole discretion all or any of the above-listed conditions at any time, by notifying it in writing to the Seller.
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Section 2.7. The Parties shall use their respective commercially reasonable endeavors to procure the fulfillment of the conditions set out in Section 2.5 on or before the Closing Date.
Section 2.8. In the event where any of the conditions set forth in Section 2.5 shall not have been fulfilled or waived prior to Closing Date, then the Buyer may terminate this Agreement.
ARTICLE III
CLOSING
Section 3.1. The closing of the transaction contemplated by this Agreement (the "Closing") shall occur on or before June 1, 2010 during normal business hours or such later date mutually agreed to by the Parties or as may be determined in accordance with this Agreement (the "Closing Date").
Section 3.2. At Closing Date, the Seller shall have delivered to the Buyer the following:
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(a)
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Certified true copies of the Memorandum of Association and the Bye-Laws or any other applicable constitutional documents of the Company;
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(b)
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Certified true copy of the Certificate of Incorporation and Certificate of Incorporation on Change of Name (if applicable) of the Company;
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(c)
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Certified copy of the Certificate of Compliance of the Company;
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(d)
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Original Certificates of Incumbency of the Company setting out the members and directors of the Company;
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(e)
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Original Sale Shares Certificate(s) of the Company issued in the name of Seller, such certificate(s) to be marked as "Cancelled" at the time of the Closing;
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(f)
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Proper documentation/evidence to the Buyer’s reasonable satisfaction that the Buyer shall have the power to nominate its own authorized signatories to any bank accounts currently maintained by and in the name of the Company or any of the Subsidiaries. The Parties shall procure that (immediately after the Closing) the Company shall notify each relevant bank as to the Buyer’s nominees being new signatories for the operation of such accounts;
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(g)
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Written confirmation that all existing statutory books and records of the Company and the Subsidiaries shall remain with the respective company’s agent in Bermuda and Hong Kong;
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(h)
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Duly executed but un-dated (in order to be duly dated at the time of the Closing):
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Instrument of transfer in the form attached hereto as "Appendix 2;"
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Draft Register of Members of the Company, with respect to the transfer of the Sale Shares in favour and in the name of Buyer as a new shareholder of the Company (51% shareholding) accompanied by a written confirmation to be provided by the Company confirming that a certified true copy of the Register of Members of the Company will be delivered to the Buyers as soon as possible after the Closing Date and in any event not later than three (3) business days after the Closing Date;
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Resignation letters in the form attached as Appendix 5 duly signed by the current Directors and Officers of the Company and each of the Subsidiaries other than ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇, with effect as from the date of the Closing;
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Original Share Certificate in certificated form evidencing Buyer’s ownership of all the Sale Shares, such Share Certificate to be dated at the Closing Date or as soon as possible thereafter;
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Collectively, the "Documents", all of which will be delivered to the Buyer as provided by this Agreement on the Closing Date.
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Section 3.3. The Parties hereby agree that if the Closing does not occur by the Closing Date due to Seller’s failure to properly perform any of its material obligations under this Agreement, the Buyer may, at its own discretion, elect to do any of the following:
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(a)
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Defer the Closing to a date not later than 15 (Fifteen) days after the date when the Closing should have occurred, which new date shall be the Closing Date for the purposes of this Agreement; or
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(b)
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Unilaterally terminate this Agreement without any further liability on its part.
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Section 3.4. The Parties hereby agree that if the Closing does not occur by the Closing Date due to Buyer’s failure to perform its obligations under this Agreement, Seller may, at its own discretion, elect to do any of the following:
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(a)
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Defer the Closing to a date not further than 15 (Fifteen) days after the date when the Closing should have occurred, which new date shall be the Closing Date for the purposes of this Agreement; or
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(b)
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Unilaterally terminate this Agreement without any further liability on its part.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
On the date and by the time of the Closing, the Seller represents and warrants to the Buyer that (other than has been previously disclosed to the Buyer):
Section 4.1. Organization. The Seller is organized, validly existing and in good standing under the laws of the country of its incorporation, and that this Agreement and all other agreements herein contemplated to be executed in connection herewith by the Seller have been (or upon execution will have been) duly executed and delivered by Seller and constitute (or upon execution will constitute) legal, valid and binding obligations of Seller.
Section 4.2. The Seller has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution, delivery, and performance of this Agreement and the transaction contemplated hereby have been duly and validly authorized by all requisite corporate action on the part of the Seller and represent valid and binding obligations of Seller.
Section 4.3. The Sale Shares consist of 509,890,279 shares of par value US$0.0005 each, represented and worded within Share Certificate (No. 158 amounting to 603,112,860 Shares), all issued and outstanding registered in the name of Seller. The Sale Shares are free and clear of any Lien, charge, option, right of pre-emption or other encumbrance or third party right whatsoever.
Section 4.4. The Seller is the sole legal and beneficial owner of the Sale Shares.
Section 4.5. No right has been granted to any person to require the Company or any of the Subsidiaries to issue any shares capital under any option or other agreement (including conversion rights or pre emption rights).
Section 4.6. There are no options, warrants or other rights or entitlements outstanding which entitle any entity to be issued any shares or other securities of the Company.
Section 4.7. The Seller has instructed the Company to make available to the Buyer for inspection and reproduction all documents, records or information in its possession or control with respect to the Company in accordance with a due diligence list and, so far as the Seller is aware, the Company has not withheld any documents, records or information reasonably required in order for the Buyer to complete its due diligence investigation.
Section 4.8. Enforceability. This Agreement has been duly and validly executed and delivered by the Seller and (assuming the due authorization, execution and delivery hereof by Buyer) constitutes a valid and binding agreement of the Seller enforceable against it in accordance with its terms, subject to:
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(a)
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Applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws of general application from time to time in effect that affect creditors' rights generally,
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(b)
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General principles of equity,
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(c)
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The power of a court to deny enforcement of remedies generally based upon public policy.
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Section 4.9. No Violation or Breach. Neither the execution and delivery of this Agreement nor the consummation of the transaction and performance of the terms and conditions hereof by Seller will:
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(a)
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Result in a violation or breach of or default under any provision of the organizational documents of Seller or any agreement, indenture or other instrument under which Seller is bound, or
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(b)
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So far as the Seller is aware, violate any law applicable to Seller.
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Section 4.10. Consent and Approvals. So far as the Seller is aware, no consent, approval, authorization or permit of, or filing with or notification to, any Person is required for or in connection with the execution and delivery of this Agreement by the Seller for or in connection with the consummation of the transactions and performance of the terms and conditions contemplated hereby by the Seller.
Section 4.11. Brokerage Fees and Commissions. The Seller has not incurred any obligation or entered into any agreement for any investment banking, brokerage, or finder's fee or commission in respect of the transactions contemplated by this Agreement for which Buyer or the Company will incur any liability.
Section 4.12. Bankruptcy. There are no bankruptcy, reorganization, or arrangement proceedings pending against, being contemplated by, or, to the knowledge of the Seller, threatened against Seller.
Section 4.13. Actions. There are no actions, claims, suits, investigations or proceedings to which the Seller is a party pending or, to the knowledge of the Seller, threatened in any court or before or by any governmental department, commission, agency or other instrumentality (excluding any rulemaking, investigation or similar proceeding of general applicability and any appeal or petition for review relating thereto), or before any arbitrator, that may, individually or in the aggregate, have a Material Adverse Effect or which seeks to prohibit, restrict or delay consummation of the transactions contemplated hereby. Seller is not in default with respect to any judgment, order, writ, injunction, decree or award applicable to it of any court or other governmental instrumentality or arbitrator having jurisdiction over it. Seller has all permits, certificates, licenses, approvals, and other authorizations that are required in connection with the operation of its businesses, all such permits, certificates, licenses, approvals and other authorizations are in full force and effect and there is no basis for any breach thereof to be threatened. Seller is exercising reasonable efforts, to the extent customary in its businesses, to comply with all statutes, rules and regulations applicable to it of governmental authorities having jurisdiction over it, and is not in violation of or in default with respect to any statute, or any rule or regulation applicable to it of any governmental authority having jurisdiction over it, which violation or default individually or in the aggregate may have a Material Adverse Effect.
Section 4.14. The Seller has not engaged in any acts or transactions, in violation of or inconsistent with the anti-bribery, anti-terrorism, economic sanction or anti-money laundering legislation or regulation measure or regulatory procedures of any government.
Section 4.15. The Seller is not prohibited by any order, writ, injunction or decree of any body of competent jurisdiction from consummating the transactions contemplated by this Agreement and no such action or proceeding is pending or, to the best of their knowledge and belief, threatened against the Seller which questions the validity of this Agreement, any of the transactions contemplated hereby or any action which has been taken by any of the parties in connection herewith or in connection with any of the transactions contemplated hereby.
Section 4.16. The Seller has the full right, power and authority to enter into this Agreement and to transfer, convey and sell to the Buyer the Sale Shares and upon consummation of the purchase contemplated hereby, Buyer will acquire from Seller good and marketable title to the Shares, free and clear of all covenants, conditions, restrictions, voting trust arrangements, liens, charges, encumbrances, options and adverse claims or rights whatsoever.
In case any restriction whatsoever exists with respect to the sale of the Sale Shares by the Seller to the Buyer, the Seller will obtain all necessary consents/agreements with respect to selling the Sale Shares to the Buyer in the manner contemplated hereby.
Section 4.17. Limitation. The Seller has not made and the Buyer has not relied upon any representations and/or warranties other than those expressly set out in this Agreement.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer represents and warrants to the Seller that:
Section 5.1. Organization of Buyer. The Buyer is a company, duly organized under the laws of Republic of the ▇▇▇▇▇▇▇▇ Islands. The Company is an entity duly formed, in good standing and validly existing under the laws of the ▇▇▇▇▇▇▇▇ Islands.
Section 5.2. Authority. It has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder, however the transaction contemplated hereby is subject to the final approval of the Buyers’ Board of Directors.
Section 5.3. Enforceability. This Agreement has been duly and validly executed and delivered by the Buyer and (assuming the due authorization, execution and delivery hereof by Seller) constitutes a valid and binding agreement of Buyer enforceable against it in accordance with its terms, subject to
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(a)
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Applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws of general application from time to time in effect that affect creditors' rights generally,
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(b)
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General principles of equity,
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(c)
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The power of a court to deny enforcement of remedies generally based upon public policy.
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Section 5.4. No Violation. Neither the execution and delivery of this Agreement nor the consummation of the transaction and performance of the terms and conditions hereof by Buyer will
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(a)
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Result in a violation or breach of or default under any provision of any agreement, indenture or other instrument under which Buyer is bound,
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(b)
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Violate any law applicable to Buyer.
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Section 5.5. Brokerage Fees and Commissions. Buyer has not incurred any obligation or entered into any agreement for any investment banking, brokerage, or finder's fee or commission in respect of the transactions contemplated by this Agreement for which Seller or the Company shall incur any liability.
Section 5.6. Bankruptcy. There are no bankruptcy, reorganization, or arrangement proceedings pending against, being contemplated by, or, to the knowledge of the Buyer, threatened against the Buyer.
Section 5.7. The Buyer has not engaged in any acts or transactions, in violation of or inconsistent with the anti-bribery, anti-terrorism, economic sanction or anti-money laundering legislation or regulation measure or regulatory procedures of any government.
Section 5.8. Limitation. The Buyer has not made and the Seller has not relied upon any representations and/or warranties other than those expressly set out in this Agreement.
Section 5.9. Consent and Approvals. The Buyer requires no consent, approval, authorization or permit from any Person, other than any filings that the Buyer is required to do by the US Securities and Exchange Commission ("SEC"), the Nasdaq Stock Market and any other applicable regulatory authority including any press releases with respect to the Agreement and any other agreement that may be entered into with the Seller for the sale of the Sale Shares of the Company, and is not required to make any filing with or notification to, any Person, as a result of its execution and delivery of, and performance of its obligations under this Agreement, except as described herein.
ARTICLE VI
TAXES
Section 6.1. Taxes. The Buyer and the Seller shall cooperate in good faith to supply the other and to supply the appropriate taxing authorities, as necessary, with all relevant tax accounting worksheets, reports, forms, statements, communications and all other information that may be required in order to comply with the relevant Tax jurisdictions of the Seller or the Buyer.
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ARTICLE VII
MISCELLANEOUS
Section 7.1. Confidentiality. Neither Party shall disclose to any third Parties information that it has relating to the businesses, properties, financial condition, results of operations or prospects of the Company, except (i) to the extent such information is publicly available or is obtainable from independent sources who did not receive the information from the other Party, (ii) as requested or required by any law or statutory body, the rules of the SEC or any applicable stock exchange (including but not limited to the Nasdaq Global Market), any applicable accounting standards, ordered by any court, regulation, court order, judicial process or arbitral award (including by oral questions, interrogatories, requests for information or other documents in legal proceedings, subpoena, civil investigative demand or any other similar legal process), or (iii) as authorized in writing by the other Party.
Section 7.2. Arbitration. Any dispute (a "Dispute") arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or the consequences of its nullity) shall be referred to and finally resolved by arbitration under the Arbitration Rules (the "Rules") of the London Court of International Arbitration ("LCIA"). The tribunal shall consist of three arbitrators, one to be appointed by the Seller, one to be appointed by the Buyer and the third to be appointed by the two arbitrators so appointed. If the arbitrators appointed by the parties cannot agree on the identity of the third arbitrator within 14 days, the third arbitrator shall be appointed by the President for the time being of the LCIA. The language of the arbitration shall be English and the seat of the arbitration shall be in London.
Section 7.3. Fees and Expenses. All fees and expenses, including fees and expenses of counsel, financial advisors and accountants, incurred in connection with this Agreement, the negotiation hereof and the transactions contemplated hereby shall be paid by the Party incurring such fees or expenses.
Section 7.4. Amendments. This Agreement may not be modified or amended except by an instrument or instruments in writing mutually agreed between the Seller and the Buyer.
Section 7.5. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be one and the same agreement and shall become effective when one or more counterparts have been signed by each Party and delivered to the other Party.
Section 7.6. Rights of Third Parties. Nothing in this Agreement, whether express or implied is intended to confer any rights or remedies under or by reason of this Agreement on any Person other than the Parties hereto, their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third party to any Party to this Agreement, nor shall any provision herein give any third party any right of subrogation or action over or against any Party to this Agreement.
Section 7.7. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof and there are no agreements, representations, or warranties between the Parties other than those set out or referred to herein.
Section 7.8. Notices. Any notices or other communications required or permitted under this Agreement shall be sufficiently given if personally delivered or sent by commercial overnight delivery or facsimile or e-mail, addressed as follows:
Seller:
Maritime Capital Shipping (Holdings) Limited
▇/▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
For the Attention of ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
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Buyer:
▇/▇ ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
For the attention of ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
E-mail: ▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇
Fax: + ▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇
or to such other address as shall be furnished in writing by either Party. If personally delivered, such communication shall be deemed delivered upon actual receipt; if delivered by facsimile or e-mail as described above, such communication shall be deemed delivered the next Business Day after transmission (and sender shall bear the burden of proof of delivery); if sent by overnight courier as described above, such communication shall be deemed delivered as of the date of delivery indicated on the receipt issued by the relevant courier service.
Section 7.9. Further Assurances. At any time and from time to time after the date hereof, each Party, without further consideration, shall execute such additional documents as may be reasonably requested by the other Party to carry out the purposes and intent of this Agreement and to fulfill its obligations hereunder.
Section 7.10. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of England without giving effect to its conflicts of law principles.
Section 7.11. Successors and Assigns. The rights and obligations of either Party shall not be assigned or delegated by such Party without the written consent of the other Party, which may be withheld in that Party's sole discretion. Any assignment or obligation in violation of this Section 7.11 shall be void and of no effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
Section 7.12. Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner to the end that the economic effects of the transaction contemplated hereby are preserved to the extent possible.
Section 7.13. Waivers. Either Party may, only by an instrument in writing, waive 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 a Party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.
Section 7.14. Meanings of Pronouns, Singular and Plural Words. All pronouns used in this Agreement shall be deemed to refer to the masculine, feminine, neuter, singular and plural, as the identity of the person to which or to whom reference is made may require. Unless the context in which it is used shall clearly indicate to the contrary, words used in the singular shall include the plural, and words used in the plural shall include the singular.
Section 7.15. Headings. The headings in this Agreement are inserted for convenience only and shall not constitute a part hereof.
Section 7.16. Publicity. Any public announcement by either Party relating to the transaction contemplated by this Agreement will be subject to the prior written approval of the other Party (such approval not be unreasonably withheld), except as such may be required by law or statutory body, the rules of the SEC or any applicable stock exchange (including but not limited to Nasdaq Global Market) and any applicable accounting standards.
Section 7.17. Not to be Construed Against Drafter. The Parties acknowledge that they have had an adequate opportunity to review each and every provision contained in this Agreement and to submit the same to legal counsel for review and comment. Based on said review and consultation, the Parties agree with each and every term contained in this agreement. Based on the foregoing, the Parties agree that the rule of construction that a contract be construed against the drafter, if any, will not be applied in the interpretation and construction of this Agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date hereof.
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SELLER:
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BUYER:
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MARITIME CAPITAL SHIPPING (HOLDINGS) LIMITED
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By:
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By:
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Name:
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Name:
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Title:
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APPENDIX 1
List of Vessels
Clipper Grace
Clipper Glory
African Joy
African Glory
Asian Grace
Pacific Fighter
Pacific Fantasy
Fiesta
Clipper Fantasy
List of the Company’s Subsidiaries (100%)
Maritime Capital Shipping (HK) Limited (HK)
African Glory Shipping Limited (mv African Glory) (BVI)
African Joy Shipping Limited (mv African Joy) (BVI)
Asian Grace Shipping Limited (mv Asian Grace) (BVI)
Maritime Grace Shipping Limited (mv Clipper Grace) (BVI)
Maritime Freeway Shipping Limited (mv Clipper Freeway) (LIB)
Maritime Fantasy Shipping Limited (mv Pacific Fantasy) (LIB)
Maritime Fiesta Shipping Limited (mv Fiesta) (LIB)
Maritime Fighter Shipping Limited (mv Pacific Fighter) (LIB)
African Grace Shipping Limited (BVI)
Eastern Grace Shipping Limited (BVI)
Maritime Glory Shipping Limited (BVI)
Atlantic Grace Shipping Limited (BVI)
Western Grace Shipping Limited (BVI)
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APPENDIX 2
INSTRUMENT OF TRANSFER
MARITIME CAPITAL SHIPPING LIMITED
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I/We, (hereinafter "the said Transferor")
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Maritime Capital Shipping (Holdings) Limited
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in consideration of the sum of
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US$33,000,000.00
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paid to me/us by (name)
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(hereinafter "the said Transferee")
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do hereby transfer to the said Transferee the
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509,890,279
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share(s)
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numbered
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standing in my/our name in the register of:
MARITIME CAPITAL SHIPPING LIMITED
The Transferor hereby transfers to the Transferee the shares described above free of all liens, charges and encumbrances and together with all rights now or hereafter attaching thereto, but subject to the Memorandum of Association and Bye-Laws of the Company.
Duly signed this day of
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Witness to the signature(s) of the Transferor -
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For and on behalf of
MARITIME CAPITAL SHIPPING (HOLDINGS) LIMITED
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Witness's name and address:
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Authorized Signature(s)
Maritime Capital Shipping (Holdings) Limited
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Witness to the signature(s) of the Transferee -
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For and on behalf
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Witness's name and address:
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Authorized Signature(s)
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APPENDIX 3
DIRECTOR’S RESIGNATION AND RELEASE
[NOTE: to be signed in respect of each subsidiary also, with necessary changes]
[ ] May 2010
RESIGNATION
I, ……………, hereby resign as a director of [Maritime Capital Shipping Limited] (the "Company") with immediate effect. I acknowledge that I have no claim whatsoever against the Company.
Signed, sealed and delivered )
By in the )
Presence of: )
RELEASE
We accept the above resignation of as a director of the Company and acknowledge that we have no claim whatsoever, including, without limitation, in contract, tort or breach of duty statutory or otherwise, against .
Executed as a deed by )
[MARITIME CAPITAL SHIPPING LIMITED] )
SK 26979 0001 1111870
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