Exhibit 2.8
CONTRIBUTION AGREEMENT
by and among
GENERAL MARITIME SHIP HOLDINGS LTD.
PACIFIC TANKSHIP, L.P.
THE LIMITED PARTNERS OF PACIFIC TANKSHIP, L.P.
GENMAR PACIFIC LTD.
as the sole stockholder of GENMAR PACIFIC CORPORATION
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
as the sole stockholder of GMC ADMINISTRATION LTD.
GENMAR PACIFIC CORPORATION
as Managing General Partner of PACIFIC TANKSHIP, L.P.
and
GMC ADMINISTRATION LTD.
as Administrative General Partner of PACIFIC TANKSHIP, L.P.
Dated as of May 25, 2001
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement"), is made as a Deed,
is dated as of May 25, 2001 and is by and among General Maritime Ship Holdings
Ltd., a ▇▇▇▇▇▇▇▇ Islands corporation (to be renamed General Maritime Corporation
on or about the Closing Date, "Purchaser"), Pacific Tankship, L.P., a Cayman
Islands limited partnership (the "Partnership") by its Managing General Partner,
the parties listed under the heading "LP Sellers" on the signature pages hereto
(the "LP Sellers"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, an individual with a business
address of ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇▇▇▇"), Genmar
Pacific Ltd., a New York corporation ("MGP Stockholder") and together with
▇▇▇▇▇▇▇▇▇▇▇▇▇ and the LP Sellers, the "Sellers"), Genmar Pacific Corporation, a
▇▇▇▇▇▇▇▇ Islands corporation, in its capacity as Managing General Partner of the
Partnership (the "Managing General Partner"), and GMC Administration Ltd., a
Cayman Islands exempted company, in its capacity as Administrative General
Partner of the Partnership (the "Administrative General Partner" and, together
with the Managing General Partner, the "General Partners"). Purchaser, the
Sellers, and the General Partners are sometimes individually referred to herein
as a "Party" and together as the "Parties."
RECITALS
A. The LP Sellers are all of the limited partners of the Partnership and owners
of all of the Interests (as hereinafter defined).
▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ owns, directly, all shares of the issued share capital (the
"AGP Shares") of the Administrative General Partner and all shares of the
outstanding capital stock of MGP Stockholder.
C. MGP Stockholder owns, directly, all shares of the outstanding capital stock
(the "MGP Shares", and together with the AGP Shares, the "General Partner
Shares") of the Managing General Partner.
D. The Partnership owns all of the issued and outstanding share capital of each
entity listed in Schedule 1, (each an "SPV" and, together with the Partnership,
the "Company") each of which owns a Vessel (as hereinafter defined).
E. Purchaser contemplates entering into a Recapitalization (as defined in the
Plan of Recapitalization attached as Annex A (the "Plan of Recapitalization"))
intended to create a company owning and operating a number of motor tankers, as
further described in the Plan of Recapitalization.
F. As part of the Recapitalization, Purchaser desires to exchange shares
("Purchaser Shares") of the common stock of Purchaser, par value $.01 per share
(the "Purchaser Stock") for all of the Interests and General Partner Shares on
the terms and conditions set forth herein and therein (the "Exchange").
G. The Parties intend that the Exchange will be treated either as an "exchange"
pursuant to Section 351 of the Internal Revenue Code of 1986, as amended (the
"Code") or as part of a "reorganization" within the meaning of Section 368(a) of
the Code.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Parties, intending to be
legally bound, hereby agree as follows:
ARTICLE 1
Definitions
1.1 "AGP Shares" shall have the meaning set forth in Recital B.
1.2 "Balance Sheet" means the adjusted unaudited consolidated balance
sheet of the Company as of March 31, 2001 previously delivered to Purchaser.
1.3 "Closing" means the closing of the transactions contemplated hereby.
1.4 "Closing Date" means the date on which the Closing occurs.
1.5 "Closing Opinion" has the meaning set forth in Section 3.9.
1.6 "Company" has the meaning set forth in Recital D.
1.7 "Contracts" has the meaning set forth in Section 4.10.
1.8 "Deed of Assignment and Adherence" means the Deed of Assignment and
Adherence to be executed by each LP Seller, the Purchaser, the Administrative
General Partner, and the Managing General Partner in substantially the form of
Exhibit F.
1.9 "Disclosure Schedule" means the disclosure schedules accompanying this
Agreement which the Sellers have prepared.
1.10 "Encumbrance" means any lien, pledge, mortgage, security interest,
charge, restriction, adverse claim or other encumbrance of any kind or nature
whatsoever.
1.11 "Environmental Claim" means any claim, allegation, action, cause of
action, investigation, removal, remedial activity, or notice by any person or
entity alleging potential liability (including potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from the presence, or release into the
environment, of any Material of Environmental Concern at any location, whether
or not owned or operated by the Company or the violation or alleged violation of
any Environmental Law.
1.12 "Environmental Law" means any Law or legally binding and enforceable
treaty or convention concerning the environment or human health, or activities
that might threaten or result in damage to the environment or human health, or
any Law that is concerned in whole or in part with the environment or human
health and with protecting or improving the quality of the environment or human
health and includes, but is not limited to, the Resource Conservation and
Recovery Act, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Clean Water Act, the Clean Air Act, the Toxic
Substances Control Act, the Oil Pollution Act of 1990, each of the foregoing as
amended or supplemented from time to time.
- 2 -
1.13 "Escrow Agent" has the meaning assigned to such term in the Plan of
Recapitalization.
1.14 "Escrow Agreement" means the Escrow Agreement by and among Purchaser,
the Sellers, and the other parties thereto, in substantially the form of Exhibit
E with such changes thereto as may reasonably be required by the Escrow Agent.
1.15 "Financial Statements" means the audited consolidated balance sheet
and statements of earnings, partners' equity and cash flows of the Company as
of, and for each of the fiscal years ended December 31, 2000, 1999, and 1998.
1.16 "GAAP" means United States generally accepted accounting principles,
as in effect on the date of this Agreement, consistently applied.
1.17 "General Partnership Shares" has the meaning set forth in Recital C.
1.18 "Governmental Body" means any U.S. or foreign federal or national,
state or provincial, municipal or local government, governmental authority,
regulatory or administrative agency, governmental commission, department, board,
bureau, agency or instrumentality, political subdivision, court, tribunal,
official arbitrator or arbitral body, in each case whether domestic or foreign.
1.19 "HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
1.20 "Indemnity Shares" means the Purchaser Shares to be held in the
Indemnity Account as defined in Section 9(A)(iii) of the Plan of
Recapitalization, the number of which are subject to adjustment pursuant to the
remainder of Section 9 of the Plan of Recapitalization.
1.21 "Interests" mean the limited partnership interests in the Partnership
held by Limited Partners.
1.22 "Interim Financial Statements" means the unaudited consolidated
financial statements of the Company as of, and for the period ended March 31, ,
2001 previously delivered to Purchaser.
1.23 "IPO Price" means the price per share of Purchaser Stock fixed in the
initial public offering of the Purchaser Stock.
1.24 "Law" means any federal, state, local or foreign law (including
common law), statute, code, ordinance, rule, regulation or other legally
enforceable requirement.
1.25 "Licenses" has the meaning set forth in Section 4.14(b).
1.26 "Limited Partner" means a limited partner of the Partnership.
1.27 "Lockup Agreement" means the Lockup Agreement executed by the Sellers
regarding the Purchaser Shares in the form of Exhibit A.
- 3 -
1.28 "Loss," in respect of any matter, means any loss, liability, cost,
expense, judgment, settlement or damage arising, directly or indirectly, as a
result of or in connection with such matter, including reasonable attorneys',
consultants' and other advisors' fees and expenses, reasonable costs of
investigating or defending any claim, action, suit or proceeding or of avoiding
the same or the imposition of any judgment or settlement.
1.29 "Majority in Interest" means LP Sellers holding a majority of the
Interests.
1.30 "MGP Shares" has the meaning set forth in Recital C.
1.31 "MGP Stockholder" has the meaning set forth in the preamble.
1.32 "Material Adverse Effect" means any material adverse effect on the
Company's business, operations, assets, financial condition, liabilities, or
results of operations or on the ability of any Seller to perform its obligations
hereunder.
1.33 "Materials of Environmental Concern" means chemicals, pollutants,
contaminants, hazardous materials, hazardous substances and hazardous wastes,
medical waste, toxic substances, petroleum and petroleum products,
asbestos-containing materials, polychlorinated biphenyls, and any other
chemicals, pollutants or substances regulated under any Environmental Law.
1.34 "Partner" means a General Partner or a Limited Partner.
1.35 "Partnership Agreement" means the Limited Partnership Agreement of
the Partnership dated as of October 27, 1997, as amended to date.
1.36 "Partnerships" means Ajax Limited Partnership, Ajax II, L.P., Boss,
L.P., General Maritime I, L.P., General Maritime II, L.P., Harriet, L.P., and
Pacific Tankship, L.P.
1.37 "Person" means an individual, partnership, venture, unincorporated
association, organization, syndicate, corporation, limited liability company, or
other entity, trust and trustee, executor, administrator or other legal or
personal representative or any government or any agency or political subdivision
thereof.
1.38 "Pre-Closing Period" means all taxable periods ending on or before
the Closing Date and the portion ending on or before the Closing Date of any
taxable period that includes (but does not end on) the Closing Date.
1.39 "Purchaser Share" has the meaning set forth in Recital F.
1.40 "Purchaser Stock" has the meaning set forth in Recital F.
1.41 "Registration Rights Agreement" means the Registration Rights
Agreement by and among the Sellers, Purchaser, and certain other parties
regarding the Purchaser Shares in the form of Exhibit B.
- 4 -
1.42 "Returns" means returns, reports, and information statements with
respect to Taxes required to be filed with any taxing authority, including
consolidated, combined and unitary tax returns.
1.43 "SPV" has the meaning set forth in Recital D.
1.44 "Tax" or "Taxes" shall mean taxes, fees, levies, duties, tariffs,
imposts and governmental impositions or charges of any kind in the nature of (or
similar to) taxes, payable to any U.S. federal, state, local or non-U.S. taxing
authority, including (a) income, franchise, profits, gross receipts, ad valorem,
net worth, value added, sales, use, service, real or personal property, special
assessments, capital stock, license, payroll, withholding, employment, social
security, workers' compensation, unemployment compensation, utility, severance,
production, excise, stamp, occupation, premiums, windfall profits, transfer and
gains taxes, and (b) interest, penalties, additional taxes and additions to tax
imposed with respect thereto.
1.45 "Underwriting Agreement" means the Underwriting Agreement with
respect to Purchaser Stock by and among Purchaser, ▇▇▇▇▇▇ Brothers Inc., ABN
AMRO Rothschild, LLC and ▇▇▇▇▇▇▇▇▇ & Company, Inc.
1.46 "Vessel" means a motor tanker described in Schedule 2.
1.47 "Waiver and Contribution Agreement" means the Waiver and Contribution
Agreement to be executed by each Seller, substantially in the form of Exhibit C.
1.48 Commonly Used Terms. Unless the context clearly indicates otherwise,
the terms below mean the following:
(a) "Hereof," "herein," and "hereinafter" refer to this Agreement.
(b) "Including" means including, without limitation (whether or not
so expressed).
(c) References to Articles, Sections, Recitals, Exhibits, Annexes,
and Schedules mean, respectively, Articles, Sections, Recitals, Exhibits,
Annexes, and Schedules of this Agreement.
(d) Words denoting the singular include the plural and vice versa.
(e) "It" or "its" or words denoting any gender include all genders.
ARTICLE 2
Exchange of Securities
2.1 Generally. Subject to and upon the terms and conditions hereinafter
set forth, at the Closing, and in reliance upon the representations and
warranties contained in this Agreement or made pursuant hereto, (a) each LP
Seller with full title guarantee shall sell, assign, transfer and deliver
absolutely by the execution and delivery of the Deed of Assignment and Adherence
to Purchaser, and Purchaser shall purchase and accept from each LP Seller, all
of such LP Seller's Interests and all of such LP Seller's rights, title, and
interest in the Interests free and
- 5 -
clear of all Encumbrances, (b) ▇▇▇▇▇▇▇▇▇▇▇▇▇ with full title guarantee shall
sell, assign, transfer and deliver absolutely to Purchaser, and Purchaser shall
purchase and accept from ▇▇▇▇▇▇▇▇▇▇▇▇▇ all of the AGP Shares and all of
▇▇▇▇▇▇▇▇▇▇▇▇▇' rights, title, and interest in the AGP Shares free and clear of
all Encumbrances, and (c) MGP Stockholder with full title guarantee shall sell,
assign, transfer and deliver absolutely to Purchaser, and Purchaser shall
purchase and accept from MGP Stockholder all of the MGP Shares and all of MGP
Stockholder's rights, title, and interest in the MGP Shares free and clear of
all Encumbrances in each case in exchange for the number of Purchaser Shares
specified pursuant to Section 2.2. The obligations of the Sellers in this
Section 2.1 are several, not joint.
2.2 Plan of Recapitalization. The number of Purchaser Shares, timing of
issuance, and all other aspects of the issuance of Purchaser Shares to each
Seller in consideration of the sale, assignment, transfer, and delivery of all
Interests and General Partner Shares to Purchaser shall be according to the
terms and conditions specified in the Plan of Recapitalization, which is
incorporated herein by reference and made a part hereof. Purchaser shall deposit
10% of the Purchaser Shares to which the Sellers are entitled in escrow in the
Purchase Price Calculation Account as defined in Section 9(A)(iii) of the Plan
of Recapitalization, which Purchaser Shares shall be distributed in accordance
with the remainder of Section 9 of the Plan of Recapitalization. Purchaser shall
deposit an additional 10% of the total number of Purchaser Shares to which each
Seller is entitled under the Plan of Recapitalization in escrow in the Indemnity
Account as defined in Section 9(A)(iii) of the Plan of Recapitalization. To the
extent any Indemnity Shares are not subject to an indemnification claim against
a Seller under Section 14.2 within six months after the Closing, Purchaser shall
instruct the Escrow Agent to release such Indemnity Shares to the Sellers
entitled to them in accordance with the Plan of Recapitalization. Purchaser
shall instruct the Escrow Agent to release any Indemnity Shares that are subject
to such an indemnification claim to the relevant Seller to the extent Purchaser
and such Seller or a court of competent jurisdiction finally resolves such claim
in favor of such Seller without the possibility of appeal. Purchaser shall
deposit an additional number of Purchaser Shares equal to the number of Collar
Shares specified in Section 9(C)(vi)(a) of the Plan of Recapitalization in
escrow in the Collar Account as defined in Section 9(A)(iii) of the Plan of
Recapitalization, which Purchaser Shares shall be distributed in accordance with
the remainder of Section 9 of the Plan of Recapitalization.
2.3 Substituted Partner. Each LP Seller in its capacity as a Limited
Partner of the Partnership hereby (a) confirms and acknowledges its intention
that the Purchaser or its assignees be admitted to the Partnership as a
substituted Limited Partner of the Partnership, (b) gives its consent to the
sale and transfer of the Interests to Purchaser and such admission, and (c)
waives any right of first refusal it may have under the Partnership Agreement or
otherwise to acquire any of the Interests being sold and transferred hereunder.
Each LP Seller acknowledges and agrees that it will cease to be a partner of the
Partnership as of the Closing. The Purchaser and its assignees agree that so
long as any of them is a partner of the Partnership, such partner shall be bound
by all of the terms and provisions of the Partnership Agreement as it shall be
amended from time to time to the same extent and in the same manner as if the
Purchaser or its assignees had been an original party to the Partnership
Agreement in place of each LP Seller.
2.4 Administrative General Partner Consents. The Administrative General
Partner, in its capacity as such, hereby (a) gives its consent to the sale and
transfer of the Interests to Purchaser and to Purchaser's admission as a
substituted limited partner of the Partnership, (b)
- 6 -
waives any right of first refusal it may have under the Partnership Agreement or
otherwise to acquire any of the Interests being sold and transferred under this
Agreement, (c) waives any requirement under the Partnership Agreement that an
opinion of counsel be delivered in connection with the sale and transfer of the
Interests under this Agreement, and (d) other than execution of the Deed of
Assignment and Adherence, agrees that no representations or other instruments of
assignment are required by the Administrative General Partner for the sale and
transfer of the Interests to Purchaser and Purchaser's admission as a limited
partner of the Partnership other than as set forth in this Agreement, including
the Exhibits hereto.
2.5 Fees and Expenses. Purchaser shall pay all reasonable legal fees and
other expenses incurred by the Partnership in connection with Purchaser's
substitution as a limited partner.
ARTICLE 3
Closing
The Closing shall be held at the Recapitalization Closing Time (as
defined in the Plan of Recapitalization) at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. The following shall take
place at the Closing:
3.1 Transfer of Interests and Admission of Purchaser as Limited Partner.
The transfer of all Interests to Purchaser and the admission of Purchaser as a
Limited Partner shall be reflected in the Register of Partnership Interests on
the books and records of the Partnership.
3.2 Delivery of Stock and Share Certificates. ▇▇▇▇▇▇▇▇▇▇▇▇▇ shall deliver
or cause to be delivered to Purchaser share certificates representing all the
equity interests of the Administrative General Partner (including all issued and
outstanding AGP Shares), and MGP Stockholder shall deliver or cause to be
delivered to Purchaser stock certificates representing all the equity interests
of the Managing General Partner (including all issued and outstanding MGP
Shares) accompanied by stock powers duly endorsed in blank or accompanied by
duly executed instruments of transfer.
3.3 Delivery of Purchaser Shares. Purchaser shall deliver to the Escrow
Agent certificates representing all of the Purchaser Shares to be issued
hereunder.
3.4 Delivery of Schedule of Purchaser Shares. Purchaser shall deliver to
the Partners a schedule reflecting issued and outstanding capital stock of
Purchaser as of the Closing including the number of Purchaser Shares to be
delivered to the Sellers and the number of Purchaser Shares delivered to the
various escrow accounts for the benefit of each Seller as more particularly
described in the Plan of Recapitalization.
3.5 Resignation of Directors and Officers of General Partners. The
directors and officers of the General Partners shall resign as of the Closing,
and Purchaser shall be entitled to designate their replacements.
3.6 Lockup Agreement. The Sellers shall execute and deliver to Purchaser
the Lockup Agreement.
- 7 -
3.7 Registration Rights Agreement. The Sellers and Purchaser shall execute
and deliver the Registration Rights Agreement.
3.8 Legal Opinion. ▇▇▇▇▇▇▇▇ Islands counsel for the Purchaser shall
deliver to the Sellers an opinion containing substantially the items set forth
in Exhibit D in a form reasonably acceptable to counsel to the Liquidating
Seller Stockholder (the "Closing Opinion").
3.9 Deed of Assignment and Adherence. Each LP Seller and Purchaser shall
execute and deliver the Deed of Assignment and Adherence.
3.10 Transfer Taxes. The Purchaser shall be liable for and shall pay all
transfer or similar taxes, direct or indirect, if any, attributable to the
transfer of the Interests (but not any taxes based on income or receipts) and,
in connection therewith, shall affix any necessary transfer stamps to any
certificates evidencing the Interests.
ARTICLE 4
Representations and Warranties of the Partnership
The Partnership hereby represents and warrants to Purchaser as
follows:
4.1 Organization and Good Standing of Partnership. The Partnership is a
partnership duly organized, validly existing, and in good standing under the
laws of the Cayman Islands. The Partnership has all requisite power and
authority to own its properties and to carry on its business as it is now being
conducted. The Partnership is duly qualified to transact business and is in good
standing in each jurisdiction wherein the nature of its contracts, the business
done, or the property owned, leased, or operated by it requires such
qualification, except where the failure to be so qualified would not have a
Material Adverse Effect. Copies of the certificate of registration of exempted
limited partnership, each annual return and declaration of the Partnership since
its formation, and the Partnership Agreement and all amendments thereto have
been delivered to Purchaser and are true, complete, and accurate in all
respects. The minutes of all meetings of the Partners of the Partnership and all
other records regarding the governance or ownership of the Partnership have been
made available to Purchaser and are true, complete and accurate in all material
respects. Other than the SPVs listed in Schedule 1, the Partnership has no
subsidiaries and does not own any equity interest in any Person whatsoever.
4.2 Organization and Good Standing of SPVs. Each SPV is a company with
limited liability duly organized, validly existing, and in good standing under
the laws of the Cayman Islands. Each SPV has all requisite power and authority
to own its properties and to carry on its business as it is now being conducted.
Each SPV is duly qualified to transact business and is in good standing in each
jurisdiction wherein the nature of its contracts, the business done, or the
property owned, leased, or operated by it requires such qualification, except
where the failure to be so qualified would not be reasonably likely to have a
Material Adverse Effect. Copies of the Memorandum of Association and Articles of
Association of each SPV and all amendments to each of the foregoing have been
delivered to Purchaser and are true, complete, and accurate in all respects. The
minutes of all meetings of the directors and members of each SPV and all other
records regarding the governance or ownership of each SPV have been made
available to Purchaser and are true, complete and accurate in all material
respects. No SPV has any subsidiaries or owns any equity interest in any Person
whatsoever.
- 8 -
4.3 Capitalization, Title.
(a) The total issued and outstanding equity of the Partnership
consists of the Interests plus the interests of the Managing General Partner and
the Administrative General Partner as set forth in Section 4.3(a) of the
Disclosure Schedule. The aggregate capital contribution amount set forth in
Section 4.3(a) of the Disclosure Schedule is the true and correct amount of
aggregate capital contributions made by such LP Seller to the Partnership.
(b) The authorized capital and number of outstanding shares of
capital of each SPV (the "SPV Shares") are as set forth in Section 4.3(b) of the
Disclosure Schedule. All SPV Shares are validly issued and outstanding, fully
paid, and non-assessable. The Partnership owns, beneficially and of record, and
has good, valid, and marketable title to all of the SPV Shares, free and clear
of any and all Encumbrances. No Person has any written or oral agreement,
arrangement or understanding or option to or any right or privilege (whether by
law, preemption, or contract) that is an agreement, arrangement, understanding,
or option for the purchase or acquisition from the Partnership of any SPV
shares.
(c) Except as set forth in the Partnership Agreement, there are no
outstanding or authorized options, warrants, purchase agreements, participation
agreements, subscription rights, conversion rights, exchange rights or other
securities, contracts, arrangements, understanding or commitments that could
require the Company to issue, sell or otherwise cause to become outstanding any
equity of the Company or any securities convertible into, exchangeable for or
carrying a right or option to purchase any equity of the Company or to create,
authorize, issue, sell or otherwise cause to become outstanding any new class of
equity of the Company. Except as set forth in the Partnership Agreement, there
are no outstanding agreements among partners or members, registration rights
agreements, or rights of first refusal pertaining to the Company's equity
interests. None of the outstanding equity securities of the Company has been
issued in violation of any rights of any Person or in violation of any Law.
4.4 Authorization; Enforceability. The execution and delivery of this
Agreement by the Partnership has been duly authorized by all necessary
partnership action required on the part of the Partnership. This Agreement has
been duly executed and delivered by the Managing General Partner on behalf of
the Partnership and constitutes the legal, valid, and binding obligation of the
Partnership, enforceable against the Partnership in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium or other laws affecting the rights of creditors generally
and by general principles of equity.
4.5 No Conflicts. Neither the execution and delivery by the Partnership of
this Agreement nor the consummation of the transactions contemplated hereby will
(a) conflict with or violate the certificate of registration of exempted limited
partnership of the Partnership or the Partnership Agreement, any resolutions of
the Partners of the Partnership, the memorandum of association or articles of
association of any SPV, any resolutions of the directors or members of any SPV,
or any governing documents of the Partnership or any SPV analogous to the
foregoing, or (b) except as would not be reasonably likely to have a Material
Adverse Effect, conflict with, violate, result in the breach of any term of,
result in the acceleration of performance of any obligation under, constitute a
default under, require the consent or approval of or any notice to or filing
with any third party or Governmental Body (other than pursuant to the HSR Act),
or create an Encumbrance on any of the properties or assets of the Partnership
or any SPV under (x) any
- 9 -
note, mortgage, deed of trust, lease or other agreement or instrument to which
the Partnership or any SPV is a party or by which any of their respective
properties or assets is bound, or (y) any law, order, rule, regulation, decree,
writ, injunction, or License of any Governmental Body having jurisdiction over
the Partnership, any SPV, or their respective properties.
4.6 Financial Statements; Undisclosed Liabilities.
(a) The Financial Statements and the Interim Financial Statements
(true, complete and accurate copies of which have been previously delivered to
Purchaser) have been prepared from the books and records of the Company on a
consistent basis (and, in the case of the Financial Statements, in accordance
with GAAP applied on a consistent basis) throughout the periods covered thereby
and fairly present in all material respects the financial condition of the
Company as at their respective dates and the results of operations (and, in the
case of the Financial Statements, the cash flows) of the Company for the periods
covered thereby.
(b) As of the date of the Balance Sheet, other than those set forth
in Section 4.6(b) of the Disclosure Schedule, the Company had no material
liabilities, debts, or obligations of the type required to be reported on a
balance sheet (including the footnotes thereto) prepared in accordance with GAAP
(whether absolute, accrued, contingent or otherwise and, in the case of any such
liabilities, debts, or obligations in respect of any Taxes, as determined on the
basis of Tax Law as in effect as of the date of the Balance Sheet), except for
liabilities, debts, or obligations reflected or reserved against in the Balance
Sheet or the Financial Statements (including the footnotes thereto). Since the
date of the Balance Sheet, the Company has conducted its businesses in the
ordinary course consistent with past practice and has not incurred any
liabilities, debts, or obligations of the type required to be reported on a
balance sheet (including the footnotes thereto) prepared in accordance with GAAP
(whether absolute, accrued, contingent or otherwise), except for liabilities
incurred in the ordinary course of business and not reasonably likely to have a
Material Adverse Effect. Since the date of the Balance Sheet, there has been no
material adverse change in the business, operations, assets, condition
(financial or otherwise), liabilities or results of operations of the Company
(other than general economic or industry conditions), and, to the actual
knowledge of the General Partners and the Sellers, no event has occurred or
facts or circumstances exist which would be reasonably likely to result in a
Material Adverse Effect.
4.7 Receivables and Payables. All of the accounts and notes receivable and
trade notes and trade accounts owing to the Company constitute valid and
enforceable claims arising from bona fide transactions in the ordinary course of
business. All accounts payable and notes payable by the Company arose in bona
fide transactions in the ordinary course of business.
4.8 Taxes.
(a) Except as set forth in Section 4.8(a) of the Disclosure
Schedule, the Company has timely filed with the appropriate taxing authorities
all material Returns required to be filed by it (taking into account any
extension of time to file). The information on such Returns is complete and
accurate in all material respects. The Company has paid on a timely basis all
Taxes (whether or not shown on any Return) due and payable as determined on the
basis of Tax Law as in effect as of the date hereof, except for Taxes (i) which
the Company believes in good faith are not due and payable because they are
being diligently contested by appropriate
- 10 -
proceedings, (ii) for which the Company has set aside on its books reserves to
the extent required by GAAP, or (iii) for which the failure to pay would not be
reasonably likely to have a Material Adverse Effect. There are no liens for any
material Taxes (other than for current Taxes not yet due and payable) upon the
assets of the Company.
(b) Except as set forth in Section 4.8(b) of the Disclosure
Schedule, no unpaid (or unreserved in accordance with GAAP) deficiencies for
Taxes have been claimed, proposed or assessed in writing by any taxing authority
or other Governmental Body with respect to the Company for any Pre-Closing
Period, and there are no pending or, to the Seller Parties' knowledge,
threatened, audits, investigations or claims or issued and outstanding
assessments for or relating to any liability in respect of Taxes of the Company.
No extension of a statute of limitations relating to any Taxes is in effect with
respect to the Company.
(c) The Company has made provision on the Balance Sheet in
accordance with GAAP for all Taxes payable by it with respect to any Pre-Closing
Period as determined on the basis of Tax Law in effect as of the date hereof,
which will not have been paid prior to the Closing Date; (ii) except as set
forth in Section 4.8(c) (ii) of the Disclosure Schedule, the Company is not
liable for Taxes of any other Person, and is neither currently under any
contractual obligation to or a party to any tax sharing agreement or any other
agreement providing for payments by the Company with respect to Taxes; (iii) no
written claim has ever been made by a taxing authority in a jurisdiction where
the Company does not currently file Returns that the Company is or may be
subject to taxation by that jurisdiction; and (iv) the Company has not filed or
been included in a combined, consolidated or unitary return (or substantial
equivalent thereof) of any Person (except that the Partnership and the SPVs are
treated as a single entity for U.S. federal income tax purposes).
4.9 Title to Properties; Absence of Encumbrances.
(a) The Company does not own or lease any real property.
(b) Except as set forth in Section 4.9(b) of the Disclosure
Schedule, each SPV has good title to the Vessel listed as owned by such SPV in
Schedule 2, and has either good title to or a valid leasehold, license or
similar interest in all other properties and assets, real and personal, tangible
and intangible, that it owns, purports to own, or are necessary in the operation
of its business, and all those other properties and assets reflected on its
books and records and on the Balance Sheet (except those sold or disposed of
subsequent to the date thereof in the ordinary course of business consistent
with past practice), free and clear of all Encumbrances. None of such properties
or assets leased by the Company is subject to any sublease, sublicense or other
agreement granting to any other Person any right to the use, occupancy or
enjoyment of such property or any portion thereof.
4.10 Contracts. Each oral or written agreement to which the Partnership or
any SPV is a party and which is material to the business of the Company as it is
currently conducted (a "Contract") is legal, valid, binding and in full force
and effect and is enforceable by the Partnership or such SPV, as applicable, in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium and other similar laws affecting creditors'
rights generally and by general principles of equity. Except as set forth in
Section 4.10 of the Disclosure Schedule, the Partnership and each SPV are in
compliance and are
- 11 -
not (with or without the lapse of time or the giving of notice, or both) in
breach of or in default under any of the Contracts to which either of them is a
party except where any such breaches or defaults would not in the aggregate be
reasonably likely to have a Material Adverse Effect, and, to the actual
knowledge of the General Partners and the Sellers, no other party to any of the
Contracts is (with or without the lapse of time or the giving of notice, or
both) in material breach of or in material default under any of the Contracts.
Except as set forth in Section 4.10 of the Disclosure Schedule, to the General
Partner's knowledge, there is no pending dispute under any of the Contracts, nor
has any other party thereto notified the Partnership or any SPV of any
unresolved complaint regarding the performance of the Partnership or any SPV
thereunder, except where any such disputes or complaints would not in the
aggregate be reasonably likely to have a Material Adverse Effect. Except as set
forth in Section 4.10 of the Disclosure Schedule, neither the Partnership nor
any SPV has received any notice of any termination or non-renewal of any
Contract and, to the actual knowledge of the General Partners and the Sellers,
no other party to any Contract intends to terminate or not renew any such
Contract.
4.11 Insurance. Each insurance policy currently maintained by the
Partnership or an SPV is in full force and effect (free from any presently
exercisable right of termination on the part of the insurance company issuing
such policy prior to the expiration of the term of such policy) and all premiums
due and payable in respect thereof have been paid except where the failure to
pay would not be reasonably likely to have a Material Adverse Effect. Neither
the Partnership nor any SPV has received notice of cancellation or non-renewal
of any such policy. The transactions contemplated by this Agreement will not
give rise to a right of termination of any such policy by the insurance company
issuing the same prior to the expiration of the term of such policy.
4.12 Litigation. Except as set forth in Section 4.12 of the Disclosure
Schedule, there is no lawsuit, governmental investigation or legal,
administrative or arbitration action or proceeding (excluding any Environmental
Claims, which are governed exclusively by Section 4.13 of this Agreement) or
notice thereof pending or, to the actual knowledge of the General Partners and
the Sellers, threatened against the Partnership or any SPV or any of their
respective properties or assets, or any director, officer, or employee of the
Company, in his or her capacity as such, which would be reasonably likely to
have a Material Adverse Effect. Neither the Partnership nor any SPV is
identified as a party subject to any restrictions or limitations under any
judgment, order or decree of any Governmental Body which, either singularly or
in the aggregate, would be reasonably likely to have a Material Adverse Effect.
4.13 Environmental Matters. Except as would not be reasonably likely to
have a Material Adverse Effect:
(a) except as set forth in Section 4.13(a) of the Disclosure
Schedule, the operations and properties of the Company are in compliance with
applicable Environmental Laws which compliance includes the possession by the
Company of all permits and governmental authorizations required under applicable
Environmental Laws, and compliance with the terms and conditions thereof and the
Company has not received any written notice of any violation of any
Environmental Law;
(b) except as set forth in Section 4.13(b) of the Disclosure
Schedule, there are no Environmental Claims pending or, to the Seller Parties'
knowledge, threatened against the
- 12 -
Partnership, any SPV, or any of their respective properties or assets, or any
director, officer, or employee of the Company, in his or her capacity as such,
or any person or entity whose liability for any Environmental Claim that the
Partnership or any SPV has retained or assumed; and
(c) except as set forth on Section 4.13(c) of the Disclosure
Schedule, to the actual knowledge of the General Partners and Sellers, there are
no past or present actions, circumstances, conditions, events or incidents,
including the release, emission, discharge, presence or disposal of any
Materials of Environmental Concern, that are reasonably likely to form the basis
of any Environmental Claim against the Partnership, any SPV, or any person or
entity whose liability for any Environmental Claim that the Partnership or any
SPV has retained or assumed.
4.14 Compliance with Law.
(a) Except as would not be reasonably likely to have a Material
Adverse Effect, the Company is and has been in compliance in all material
respects with all applicable laws, statutes, rules, ordinances, regulations,
orders and decrees governing the conduct or operation of its business (excluding
Environmental Laws which are governed exclusively by Section 4.13 of this
Agreement), and all of its Licenses. The Company has not received any notice of
any violation of any such law, statute, rule, ordinance, regulation, order,
decree or License.
(b) Except as would not be reasonably likely to have a Material
Adverse Effect, (i) the Company has all governmental licenses, approvals,
authorizations, registrations, consents, orders, certificates, decrees,
franchises and permits (collectively, "Licenses") necessary to conduct its
business as currently conducted and such Licenses are in full force and effect;
and (ii) no proceeding is pending or, to the actual knowledge of the General
Partners and the Sellers, threatened seeking the revocation or limitation of any
such License.
4.15 Employees. The Company does not now have, nor has it since the date
of its formation had, any employees.
4.16 Books and Records. The books and records of the Company with respect
to the Company, its operations, employees and properties have been maintained in
the usual, regular and ordinary manner, all entries with respect thereto have
been accurately made and all transactions have been accurately accounted for in
all material respects.
ARTICLE 5
Representations and Warranties of each Seller
Each Seller, severally and not jointly hereby represents and
warrants to Purchaser as follows:
5.1 Authorization; Enforceability. If such Seller is an individual, he or
she has full legal capacity to enter into and carry out his or her obligations
under this Agreement. If such Seller is not an individual, such Seller is duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its formation, and the execution and delivery of this Agreement
by such Seller have been duly authorized by all necessary corporate or analogous
action. This Agreement has been duly executed and delivered by such Seller and
constitutes the
- 13 -
legal, valid, and binding obligation of such Seller, enforceable against such
Seller in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium or other laws affecting
the rights of creditors generally and by general principles of equity.
5.2 No Conflicts. Neither the execution and delivery by such Seller of
this Agreement nor the consummation of the transactions contemplated hereby will
(a) conflict with or violate such Seller's certificate of incorporation,
by-laws, or analogous constitutive or governing documents, or any resolutions of
the board of directors of such Seller or person(s) exercising analogous powers,
or (b) except as would not be reasonably likely to have a material adverse
effect on such Seller's ability to consummate the transactions contemplated
hereby, conflict with, violate, result in the breach of any term of, result in
the acceleration of performance of any obligation under, constitute a default
under, require the consent or approval of or any notice to or filing with any
third party or Governmental Body (other than pursuant to the HSR Act), or create
an Encumbrance on any of the properties or assets of such Seller under (x) any
note, mortgage, deed of trust, lease or other agreement or instrument to which
such Seller is a party or by which any of its properties or assets is bound, or
(y) any law, order, rule, regulation, decree, writ, injunction, or License of
any Governmental Body having jurisdiction over such Seller or its properties.
5.3 Investment Purpose; Private Placement.
(a) Such Seller is acquiring the Purchaser Shares solely for the
purpose of investment for its own account and not with a view to, or for offer
or sale in connection with, any distribution thereof in violation of applicable
law. In addition, except (i) as otherwise previously disclosed to the Purchaser
in writing before the date of this Agreement or (ii) with respect to the
potential sale by the Sellers in the overallotment option in connection with
Purchaser's initial public offering, the Sellers are not under a binding
commitment or obligation to sell, transfer, or otherwise dispose of the
Purchaser Shares to be acquired by such Sellers pursuant to this Agreement.
Notwithstanding the foregoing, each Seller has, subject to the Lockup Agreement,
the right at all times to sell or otherwise dispose of all or any part of the
Purchaser Shares pursuant to a registration statement under the Securities Act
or pursuant to an exemption from the registration requirements of the Securities
Act, and the right to dispose of its Purchaser Shares is within his, her or its
control.
(b) Such Seller acknowledges that the issuance of the Purchaser
Shares has not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities laws, and are being offered and sold
in reliance on federal and state exemptions for transactions not involving any
public offering. Such Seller acknowledges that the Purchaser Shares may not be
transferred or sold except pursuant to the registration provisions of the
Securities Act or pursuant to an applicable exemption therefrom and subject to
applicable state securities laws and regulations.
(c) Such Seller is an "accredited investor" within the meaning of
Rule 501(a) of Regulation D, promulgated under the Securities Act, and was not
organized for the specific purpose of acquiring the Purchaser Shares.
- 14 -
(d) Such Seller, by reason of its business and financial experience,
has such knowledge, sophistication and experience in business and financial
matters as to be capable of evaluating the merits and risks of an investment in
the Purchaser Shares and is able to bear the economic risk of such investment.
(e) Such Seller has had a full opportunity to ask questions of and
receive answers from representatives of Purchaser concerning an acquisition of
the Purchaser Shares, including financial information concerning Purchaser. Such
Seller was previously informed that all documents, records and books pertaining
to such an acquisition were at all times available at the offices of Purchaser
located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and that all documents,
records and books pertaining to such an acquisition requested by such Seller
have been made available to such Seller and the persons that such Seller has
retained to advise it with respect to such an acquisition, and that such Seller
and such persons have been supplied with such additional information concerning
such an acquisition as they have requested.
(f) Such Seller is not relying on Purchaser or any of its officers,
directors, employees, founders or agents with respect to the tax considerations
of an investment in the Purchaser Shares. Such Seller has consulted its own
financial, legal, and tax advisors with respect to the economic, legal, and tax
consequences of an investment in the Purchaser Shares. Such Seller is not
relying on any representations or warranties of Purchaser with respect to the
transactions contemplated hereunder other than those contained in Article 8 or
on any representations of any officer, director, employee, founder or agent of
Purchaser.
ARTICLE 6
Representations and Warranties of each LP Seller
Each LP Seller, severally and not jointly, hereby represents and
warrants to Purchaser as follows:
6.1 Title. The aggregate capital contribution amount set forth opposite
such LP Seller's name in Section 4.3(a) of the Disclosure Schedule is the true
and correct amount of aggregate capital contributions made by such LP Seller to
the Partnership. Such LP Seller has good, valid, and marketable title to and,
subject to the terms of the Partnership Agreement, the right to transfer to
Purchaser, all of the Interests corresponding to such capital contributions,
free and clear of any and all Encumbrances. At the Closing, such LP Seller will
convey ownership of the Interests corresponding to such capital contributions,
free and clear of any and all Encumbrances. Subject to the terms of the
Partnership Agreement, no Person other than Purchaser has any written or oral
agreement, arrangement or understanding or option to or any right or privilege
(whether by law, preemption, or contract) that is an agreement, arrangement,
understanding, or option for the purchase or acquisition from such LP Seller of
any Interests.
ARTICLE 7
Representations and Warranties of ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ hereby represents and warrants to Purchaser as
follows:
7.1 Capitalization; Title. The authorized capital of the Administrative
General Partner consists of 50,000 shares, par value $1.00 per share, of which
1,000 shares are outstanding. All AGP Shares are validly issued and outstanding,
fully paid, and non-assessable.
- 15 -
The Administrative General Partner has good, valid, and marketable title to all
of the Interests the Administrative General Partner owns, free and clear of any
and all Encumbrances. ▇▇▇▇▇▇▇▇▇▇▇▇▇ owns, beneficially and of record, and has
good, valid, and marketable title to and the right to transfer to Purchaser, all
of the AGP Shares, free and clear of any and all Encumbrances. At the Closing,
▇▇▇▇▇▇▇▇▇▇▇▇▇ will convey ownership of the AGP Shares, free and clear of any and
all Encumbrances. No Person other than Purchaser has any written or oral
agreement, arrangement or understanding or option to or any right or privilege
(whether by law, preemption, or contract) that is an agreement, arrangement,
understanding, or option for the purchase or acquisition from ▇▇▇▇▇▇▇▇▇▇▇▇▇ of
any AGP Shares.
7.2 No Conflicts. Neither the execution and delivery by the Partnership of
this Agreement nor the consummation of the transactions contemplated hereby will
(a) conflict with or violate the memorandum of association or articles of
association of the Administrative General Partner or any resolutions of the
directors or members of the Administrative General Partner, or (b) except as
would not be reasonably likely to have a Material Adverse Effect, conflict with,
violate, result in the breach of any term of, result in the acceleration of
performance of any obligation under, constitute a default under, require the
consent or approval of or any notice to or filing with any third party or
Governmental Body (other than pursuant to the HSR Act), or create an Encumbrance
on any of the properties or assets of the Administrative General Partner under,
(x) any note, mortgage, deed of trust, lease or other agreement or instrument to
which the Administrative General Partner is a party or by which any of its
assets is bound, or (y) any law, order, rule, regulation, decree, writ,
injunction, or License of any Governmental Body having jurisdiction over the
Administrative General Partner or its properties.
7.3 Financial Condition. The Administrative General Partner has conducted
no business other than serving as administrative general partner of Ajax Limited
Partnership, Ajax II, L.P., Boss, L.P., General Maritime I, L.P., General
Maritime II, L.P., Harriet, L.P., and Pacific Tankship, L.P. and has no
indebtedness for borrowed money or material liabilities, debts, or obligations
of the type required to be reported on a balance sheet in accordance with GAAP
(whether absolute, accrued, contingent or otherwise) other than in connection
with its service as administrative general partner for the benefit of the
Partnership in the Administrative General Partner's good faith judgment.
ARTICLE 8
Representations and Warranties of MGP Stockholder
MGP Stockholder hereby represents and warrants to Purchaser as
follows:
8.1 Capitalization; Title. (a) The authorized capital of the Managing
General Partner consists of 500 shares of stock, without par value, of which 100
shares are outstanding. All MGP Shares are validly issued and outstanding, fully
paid, and non-assessable. The Managing General Partner has good, valid, and
marketable title to all of the Interests the Managing General Partner owns, free
and clear of any and all Encumbrances. MGP Stockholder owns, beneficially and of
record, and has good, valid, and marketable title to and the right to transfer
to Purchaser, all of the MGP Shares, free and clear of any and all Encumbrances.
At the Closing, MGP Stockholder will convey ownership of the MGP Shares, free
and clear of any and all Encumbrances. No Person other than Purchaser has any
written or oral agreement, arrangement or understanding or option to or any
right or privilege (whether by law, preemption, or contract)
- 16 -
that is an agreement, arrangement, understanding, or option for the purchase or
acquisition from MGP Stockholder of any MGP Shares.
8.2 No Conflicts. Neither the execution and delivery by the Partnership of
this Agreement nor the consummation of the transactions contemplated hereby will
(a) conflict with or violate the articles of incorporation or by-laws of the
Managing General Partner or any resolutions of the directors or members of the
Managing General Partner, or (b) except as would not be reasonably likely to
have a Material Adverse Effect, conflict with, violate, result in the breach of
any term of, result in the acceleration of performance of any obligation under,
constitute a default under, require the consent or approval of or any notice to
or filing with any third party or Governmental Body (other than pursuant to the
HSR Act), or create an Encumbrance on any of the properties or assets of the
Managing General Partner under, (x) any note, mortgage, deed of trust, lease or
other agreement or instrument to which the Managing General Partner is a party
or by which any of its assets is bound, or (y) any law, order, rule, regulation,
decree, writ, injunction, or License of any Governmental Body having
jurisdiction over Managing General Partner or its properties.
8.3 Financial Condition. The Managing General Partner has conducted no
business other than serving as managing general partner of the Partnership and
has no indebtedness for borrowed money or material liabilities, debts, or
obligations of the type required to be reported on a balance sheet in accordance
with GAAP (whether absolute, accrued, contingent or otherwise) other than in
connection with its service as managing general partner for the benefit of the
Partnership in the Managing General Partner's good faith judgment.
ARTICLE 9
Representations and Warranties of Purchaser
Purchaser represents and warrants to the Sellers as follows:
9.1 Organization and Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the Republic
of the ▇▇▇▇▇▇▇▇ Islands and has all requisite corporate power and authority to
enter into and carry out its obligations under this Agreement.
9.2 Capitalization. The authorized capital of the Purchaser consists of
75,000,000 shares of common stock, par value $.01 per share, and 5,000,000
shares of preferred stock, par value $.01 per share, of which none are
outstanding as of the date hereof. Immediately following the Closing the
outstanding capital stock of the Purchaser shall be as set forth in the schedule
delivered pursuant to Section 3.4.
9.3 Authorization. The execution and delivery of this Agreement by
Purchaser have been duly authorized by all necessary corporate action required
on the part of Purchaser. This Agreement has been duly executed and delivered by
Purchaser and constitutes the legal, valid, and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
or other laws affecting the rights of creditors generally and by general
principles of equity.
9.4 No Conflicts. Neither the execution and delivery by Purchaser of this
Agreement nor the consummation by Purchaser of the transactions contemplated
hereby will (a) conflict
- 17 -
with or violate the Certificate of Incorporation or By-Laws of Purchaser, or (b)
conflict with, violate, result in the breach of any term of, constitute a
default under or require the consent or approval of or any notice to or filing
with any Person under, (x) any note, mortgage, deed of trust or other agreement
or instrument to which Purchaser is a party or by which Purchaser is bound, or
(y) any law, order, rule, regulation, decree, writ or injunction of any
Governmental Body having jurisdiction over Purchaser (except where such
conflict, violation, breach or default, or the failure to obtain such consent or
approval, give such notice or make such filing, would not be reasonably likely
to have a Material Adverse Effect on the business, operations, assets,
conditions, liabilities or results of operations or materially adversely impair
the ability of Purchaser to consummate the transactions contemplated hereby).
9.5 Litigation. No lawsuit, governmental investigation or legal,
administrative or arbitration action or proceeding is pending or, to the
knowledge of Purchaser, threatened against Purchaser or any of its properties or
assets, or any director, officer or employee of Purchaser in his or her capacity
as such, which questions the validity of this Agreement or seeks to prohibit,
enjoin or otherwise challenge the consummation of the transactions contemplated
hereby.
9.6 Purchaser Shares. The issuance, transfer, and delivery of the
Purchaser Shares hereunder have been duly authorized by all required corporate
action on the part of Purchaser, and when issued, transferred, and delivered in
accordance with the terms hereof for the consideration expressed herein, will be
duly and validly issued, fully paid and non-assessable, free and clear of all
Encumbrances.
9.7 Private Placement Purchaser is acquiring the Interests and the GP
Shares solely for the purpose of ownership (directly or indirectly) of the
Partnership as a whole for its own account and not with a view to, or for offer
or sale in connection with, any distribution thereof in violation of applicable
law. Purchaser acknowledges that the Interests and the GP Shares have not been
registered under the Securities Act, or any state securities laws, and are being
offered and sold in reliance on federal and state exemptions for transactions
not involving any public offering. Purchaser acknowledges that the Interests and
the GP Shares may not be transferred or sold except pursuant to the registration
provisions of the Securities Act or pursuant to an applicable exemption
therefrom and subject to applicable state securities laws and regulations.
9.8 Contribution Agreements. Each Contribution Agreement that Purchaser is
entering into pursuant to the Plan of Recapitalization with partners of the
Exchanging Partnerships (as defined in the Plan of Recapitalization) is
substantially similar to this Agreement and contains substantially the same
economic and legal terms.
ARTICLE 10
Covenants
The Parties hereby covenant and agree as follows:
10.1 Conduct of Business. From the date hereof until the Closing, each of
the Company and the General Partners will conduct its business in the ordinary
course, and without limiting the generality of the foregoing, not do any of the
following, without the prior written consent of Purchaser:
- 18 -
(a) amend or otherwise modify its constituting documents or by-laws
(or similar organizational documents);
(b) issue or sell or authorize for issuance or sale, or grant any
options or make other agreements, arrangements or understandings of the type
referred to in Section 4.3(b) with respect to, any Interests or any other of its
securities, or alter any term of any of its outstanding securities or make any
change in its outstanding shares or other ownership interests or its
capitalization, whether by reason of a reclassification, recapitalization, split
or combination, exchange or readjustment of shares, dividend or otherwise;
(c) mortgage, pledge or grant any security interest in any of its
assets;
(d) declare, set aside, make or pay any dividend or other
distribution to any Seller or general partner of the Partnership;
(e) redeem, purchase or otherwise acquire, directly or indirectly,
any Interest; or
(f) enter into any commitment to do any of the foregoing.
10.2 No Solicitation of Alternative Transaction. For a period of one
hundred and eighty (180) days following the date hereof, the Sellers shall not,
directly or indirectly, solicit or entertain offers from, negotiate with,
provide any nonpublic information to, enter into any agreement with, or in any
manner encourage, discuss, accept, or consider any proposal of, any third party
relating to the acquisition of the Partnership, any general partner of the
Partnership, any SPV, or their assets or business, in whole or in part, whether
through a tender offer (including a self tender offer), exchange offer, merger,
consolidation, sale of substantial assets or a significant amount of assets,
sale of securities, liquidation, dissolution, or similar transactions involving
the Partnership or any SPV (collectively, "Acquisition Proposals"). The Sellers
shall promptly inform the Purchaser of any inquiry (including the terms thereof
and the identity of the third party making such inquiry) which it may receive in
respect of an Acquisition Proposal and furnish to the Purchaser a copy of any
such written inquiry. Notwithstanding the foregoing, any Seller who is in
material breach of any representation warranty, covenant, or agreement hereunder
shall be bound by this Section 10.2 regardless of the expiration of such one
hundred eighty (180) day period.
10.3 Taxes and Cooperation on Tax Matters.
(a) Tax Returns; Liability for Taxes.
(1) At the Managing General Partner's election, the Managing General Partner
shall be responsible for and shall have the ultimate discretion with
respect to, all Returns required or permitted by applicable law to be
filed by the Managing General Partner with respect to the Company for all
taxable periods that end on or before the Closing Date; provided, however,
that the preparation and filing of such Returns shall be subject to review
and approval of the Purchaser (which approval shall not be unreasonably
withheld). If the Managing General Partner does not elect to prepare and
file such Returns, the Purchaser shall be responsible for, and shall have
the ultimate discretion with respect to, such Returns; provided, however,
that the preparation and filing of such Returns shall be
- 19 -
subject to review and approval of the Managing General Partner (which
approval shall no be unreasonably withheld).
(2) The Purchaser shall be responsible for, and shall have the ultimate
discretion with respect to, all Returns required to be filed by the
Company for all taxable periods that begin before and end after the
Closing Date; provided, however, that the preparation and filing of such
Returns shall be subject to review and approval of the Managing General
Partner (which approval shall not be unreasonably withheld).
(3) The Purchaser shall be responsible for, and shall have ultimate discretion
with respect to, all Returns required to be filed by the Company for
taxable periods that begin on or after the Closing Date.
(4) All reasonable, out-of-pocket costs, fees, and expenses relating to the
preparation and filing of Returns of the Company (whether filed and
prepared by the Managing General Partner or the Purchaser) shall be the
responsibility of the Company.
(5) Purchaser shall be liable and shall indemnify the Sellers for any and all
Taxes imposed on the Company (but not the Sellers) for which the Sellers
are liable relating to or apportioned to any taxable year or portion
thereof beginning and ending after the Closing Date (except to the extent
no provision was properly made for such Tax on the Balance Sheet in
accordance with GAAP as set forth in Section 4.8(c)(i) of this Agreement).
Indemnity payments made pursuant to this Section 10.3(a)(5) shall be
increased by any Tax cost incurred as a result of the receipt of such
payment and shall be decreased by any tax benefit (e.g., increased basis
of an asset or a deduction available in a future year) received as a
result of such payment (taking into account the time value of money).
(6) The value of any cash or securities paid, transferred, or withheld in
satisfaction of the indemnification obligations of Purchaser, the Company,
or the Sellers under this Agreement will be treated for tax purposes as an
adjustment to the purchase price for the Interests.
(7) The Sellers shall notify Purchaser in writing of, and keep Purchaser fully
informed as to the status of, any pending or threatened Tax audits or
assessments that may result in a liability for which the Purchaser has
indemnified the Sellers pursuant to this Section 9.03(a). Purchaser may
control the audits and any proceedings relating to any such Tax claim, on
condition that (a) it keeps the Sellers informed on a current basis of the
status of any such proceedings and (b) the Sellers and their counsel have
the right to participate, at the Sellers' expense, in any such proceeding.
The Sellers shall not settle, either administratively or after the
commencement of litigation, any such Tax claim without the prior written
consent of Purchaser, which consent may not be unreasonably withheld.
(b) New Elections. No new elections with respect to Taxes, or any
changes in current elections with respect to Taxes, of the Company which may
have an effect on the Company for periods ending after the Closing Date shall be
made after the date of this Agreement without the prior written consent of
Purchaser.
(c) Cooperation.
- 20 -
(1) Purchaser and the Sellers shall cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the filing of
Returns pursuant to this Section 10.3 and any audit, litigation or other
proceeding with respect to Taxes. Such cooperation shall include the
retention and (upon the other party's request) the provision of records
and information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on a
mutually convenient basis to provide additional information and
explanation of any material provided hereunder. The Sellers (before the
Closing) and Purchaser (after the Closing) shall each cause the Company
(A) to retain all books and records with respect to Tax matters pertinent
to the Company relating to any taxable period beginning before the Closing
Date until the expiration of the statute of limitations of the respective
taxable periods, and to abide by all record retention agreements entered
into with any taxing authority, and (B) to give the other party reasonable
written notice prior to transferring, destroying or discarding any such
books and records and, if the other party so requests, the Company or the
Sellers, as the case may be, shall allow the other party to take
possession of such books and records.
(2) Purchaser and the Sellers further agree, upon request, to use good faith
efforts to obtain any certificate or other document from any Governmental
Body or any other Person as may be necessary to mitigate, reduce or
eliminate any Tax that could be imposed (including, but not limited to,
with respect to the transactions contemplated hereby); provided that such
certificate or other document does not increase the Tax of Purchaser or
the Sellers.
10.4 Execution of Documents. Each Seller shall execute and deliver to
Purchaser the Registration Rights Agreement and the Lockup Agreement. The
Purchaser shall execute and deliver to each Seller the Registration Rights
Agreement.
10.5 HSR Act. The Sellers and Purchaser shall make all filings, cooperate
fully with respect to all filings required by Sellers and Purchaser, and shall
take any other actions required under the HSR Act with respect to the
transactions contemplated hereunder.
10.6 Further Assurances. The Partnership and the Sellers agree to execute
and deliver, and to cause the Company to execute and deliver, such additional
documents and instruments, and to perform such additional acts, as Purchaser may
reasonably request to effectuate or carry out and perform all the terms,
provisions and conditions of this Agreement and the transactions contemplated
hereby and to effectuate the intent and purposes hereof. Purchaser agrees to
execute and deliver such additional documents and instruments, and to perform
such additional acts, as the Partnership and the Sellers may reasonably request
to effectuate or carry out and perform all the terms, provisions and conditions
of this Agreement and the transactions contemplated hereby and to effectuate the
intent and purposes hereof
10.7 Restrictions on Securities Each Seller acknowledges and agrees that
any certificates representing Purchaser Shares shall bear the following legend
and that the transfer agent of Purchaser will be instructed to place a stop
transfer order prohibiting transfers of Purchaser Shares except in conformity
with such legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
- 21 -
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND SUCH LAWS."
10.8 Continuance of Business of the Partnerships. The Purchaser shall
continue the historic business of the Partnerships or use a significant portion
of the Partnerships' historic business assets in a business.
10.9 Overallotment Sales. If the LP Sellers have the opportunity to sell
Purchaser Shares in the underwriters' overallotment option in the Purchaser's
initial public offering, then at the closing of the issuance of any Purchaser
Shares pursuant to such overallotment option, Purchaser shall make substantially
similar representations and warranties to such selling LP Sellers as Purchaser
makes to the underwriters and obtain for such selling LP Sellers an accountant's
comfort letter and legal opinions substantially similar to those provided to the
underwriters solely for such selling LP Sellers' use in their diligence review
for sale under such overallotment option; provided, however, that such selling
LP Sellers shall provide any information or materials reasonably requested by
such accountants and counsel.
10.10 Failure to Close Initial Public Offering. After the Closing Date, in
the event that the sale of Purchaser's Common Stock pursuant to the Underwriting
Agreement does not close, (a) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ will be the Chief Executive
Officer of Purchaser pursuant to a previously negotiated employment agreement,
(b) Purchaser will promptly call a meeting of stockholders for the purpose of
electing a board of directors, and (c) the Sellers will negotiate in good faith
to create appropriate corporate governance and stockholder arrangements that (x)
will include tag-along rights and drag-along rights, (y) may include rights of
first refusal, preemptive rights, and registration rights, and (z) will include
limitations on affiliate transactions, in each case, the terms of which will be
negotiated among the parties.
ARTICLE 11
Conditions Precedent to Obligations of Purchaser
The obligations of Purchaser under Article 2 and Article 3 and the
Plan of Recapitalization shall be subject to the satisfaction at or prior to the
Closing of the following conditions, any one or more of which may be waived by
Purchaser:
11.1 Representations and Warranties. Each and every representation and
warranty of the Sellers and the Partnership contained in this Agreement, any
Schedule or any certificate delivered pursuant hereto shall have been true and
correct when made and shall be repeated at the Closing and (a) if qualified by
materiality (or any variation of such term), shall be true and correct as of the
Closing Date, except that any such representations and warranties that are made
as of a specified date shall only be required to be true and correct as of that
date, and (b) if not qualified by materiality (or any variation of such term),
shall be true and correct in all material respects as of the Closing Date,
except that any such representations and warranties that are made as of a
specified date shall only be required to be true and correct in all material
respects as of that date.
- 22 -
11.2 Compliance with Covenants. The Sellers and the Company shall have
performed and observed in all material respects all covenants and agreements to
be performed or observed by such parties, as applicable, under this Agreement at
or before the Closing.
11.3 Lack of Adverse Change. Since the date of the Balance Sheet, there
has not occurred any circumstance or event which, individually or in the
aggregate, has had or is reasonably likely to result in a Material Adverse
Effect.
11.4 Regulatory Approvals. All material approvals and consents of
regulatory authorities required to carry out the transactions contemplated by
this Agreement, including expiration of any applicable waiting period or
approval under the HSR Act, shall have been obtained.
11.5 Consents of Third Parties. All material consents from third parties
necessary for the execution and delivery of this Agreement by the Sellers and
the consummation of the transactions contemplated hereby shall have been
obtained in writing.
11.6 No Violation of Orders. No preliminary or permanent injunction or
other order issued by any court or governmental or regulatory authority, nor any
statute, rule, regulation, decree or executive order promulgated or enacted by
any Governmental Body, that declares this Agreement invalid or unenforceable in
any material respect or that prevents the consummation of the transactions
contemplated hereby or which imposes restrictions on Purchaser's right or
ability to operate the businesses of the Company shall be in effect; and no
action or proceeding before any Governmental Body shall have been instituted or,
to the knowledge of Purchaser, threatened by any Governmental Body, or by any
other Person, which seeks to prevent or delay the consummation of the
transactions contemplated by this Agreement or which challenges the validity or
enforceability of this Agreement or which seeks to impose restrictions on
Purchaser's right or ability to operate the businesses of the Company, or seeks
to require Purchaser to dispose of any of its businesses, operations, properties
or assets or any claim relating to the equity of the Company and which in any
such case has a reasonable likelihood of success in the reasonable opinion of
counsel to Purchaser.
11.7 Lockup Agreement. The Sellers shall have executed and delivered to
Purchaser the Lockup Agreement.
11.8 Registration Rights Agreement. The Sellers shall have executed and
delivered to Purchaser the Registration Rights Agreement.
11.9 Underwriting Agreement. Purchaser, ABN AMRO Rothschild, LLC, ▇▇▇▇▇▇
Brothers Inc., and ▇▇▇▇▇▇▇▇▇ & Company, Inc. shall have entered into the
Underwriting Agreement.
11.10 Waiver and Contribution Agreement. Each Seller shall have executed
and delivered to Purchaser a Waiver and Contribution Agreement.
11.11 Deed of Assignment and Adherence. Each LP Seller shall have executed
and delivered to Purchaser the Deed of Assignment and Adherence.
- 23 -
11.12 Escrow Agreement. Each Seller and the Escrow Agent shall have
executed and delivered the Escrow Agreement.
11.13 Customary Closing Documents. Purchaser shall have received such
other customary closing documents as Purchaser or its counsel may reasonably
request (other than legal opinions).
ARTICLE 12
Conditions Precedent to Obligations of the Sellers
The obligations of the Sellers under Article 2 and Article 3 shall
be subject to the satisfaction at or prior to the Closing of the following
conditions, any one or more of which may be waived by the Sellers:
12.1 Representations and Warranties. Each and every representation and
warranty of Purchaser contained in this Agreement, any Schedule or any
certificate delivered pursuant hereto shall have been true and correct when made
and shall be repeated at the Closing and (a) if qualified by materiality (or any
variation of such term), shall be true and correct as of the Closing Date,
except that any such representations and warranties that are made as of a
specified date shall only be required to be true and correct as of that date,
and (b) if not qualified by materiality (or any variation of such term), shall
be true and correct in all material respects as of the Closing Date, except that
any such representations and warranties that are made as of a specified date
shall only be required to be true and correct in all material respects as of
that date.
12.2 Compliance with Covenants. Purchaser shall have performed and
observed in all material respects all covenants and agreements to be performed
or observed by it under this Agreement at or before the Closing.
12.3 Regulatory Approvals. All material approvals and consents of
regulatory authorities required to carry out the transactions contemplated by
this Agreement, including expiration of any applicable waiting period or
approval under the HSR Act, shall have been obtained.
12.4 Consents of Third Parties. All consents from third parties necessary
for the execution and delivery of this Agreement by the Sellers and the
consummation of the transactions contemplated hereby shall have been obtained in
writing.
12.5 No Violation of Orders. No preliminary or permanent injunction or
other order issued by any court or governmental or regulatory authority, nor any
statute, rule, regulation, decree or executive order promulgated or enacted by
any Governmental Body, that declares this Agreement invalid or unenforceable in
any material respect or that prevents the consummation of the transactions
contemplated hereby; and no action or proceeding before any Governmental Body
shall have been instituted or, to the knowledge of the Sellers, threatened by
any Governmental Body, or by any other Person, which seeks to prevent or delay
the consummation of the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement and which in any
such case has a reasonable likelihood of success in the reasonable opinion of
counsel to the Sellers.
- 24 -
12.6 Registration Rights Agreement. Purchaser shall have executed and
delivered to the Sellers the Registration Rights Agreement.
12.7 Underwriting Agreement. Purchaser, ABN AMRO Rothschild, LLC, ▇▇▇▇▇▇
Brothers Inc., and ▇▇▇▇▇▇▇▇▇ & Company, Inc. shall have entered into the
Underwriting Agreement.
12.8 Deed of Assignment and Adherence. Purchaser shall have executed and
delivered to each LP Seller the Deed of Assignment and Adherence.
12.9 Escrow Agreement. Purchaser and the Escrow Agent shall have executed
and delivered the Escrow Agreement.
12.10 Closing Opinion. The Sellers shall have received the Closing
Opinion.
12.11 Management Rights Agreement. Purchaser and the Liquidating Seller
Stockholder shall have entered into the Management Rights Agreement.
12.12 Customary Closing Documents. Sellers shall have received such other
customary closing documents as Sellers or their counsel may reasonably request
(other than legal opinions in addition to the Closing Opinion).
ARTICLE 13
Termination of Agreement
13.1 Conditions for Termination. This Agreement may be terminated:
(a) at any time prior to the Closing, by mutual consent of Purchaser
and a Majority in Interest;
(b) by Purchaser or a Majority in Interest, if the Closing shall not
have been consummated by 180 days after the date hereof, unless such failure of
consummation shall be due to a material breach of any representation or
warranty, or the nonfulfillment in a material respect, and failure to cure such
nonfulfillment, of any covenant or agreement contained herein on the part of the
Party or Parties seeking to terminate this Agreement; or
(c) by Purchaser on the one hand, or a Majority in Interest or
▇▇▇▇▇▇▇▇▇▇▇▇▇ on the other hand, if any Seller or Purchaser, respectively, fails
to cure a material breach of any provision of this Agreement within fifteen days
after its receipt of written notice of such breach from the non-breaching Party,
provided, however, that no Party shall be entitled to terminate this Agreement
pursuant to this Section 13.1(c) if it is also in material breach of any
provision of this Agreement.
13.2 Effect of Termination. Upon the termination of this Agreement for any
reason, Purchaser and the Sellers shall have no liability or further obligations
arising out of this Agreement except for any liability resulting from a breach
of a representation, warranty or covenant contained in this Agreement prior to
termination. Furthermore, the provisions of Article 14 and Article 15 shall
survive any termination of this Agreement.
- 25 -
ARTICLE 14
Remedies
14.1 Survival. The representations and warranties of each Seller in
Sections 5.1, 6.1, 7.1, and Section 8.1 and Purchaser in Sections 9.1 through
9.3 shall survive the Closing for a period of eighteen months thereafter plus,
with respect to any such representation or warranty of which notice is given in
writing during such initial eighteen-month period alleging breach thereof, such
additional amount of time required for the final resolution of any claim under
Section 14.2. All other representations and warranties of the Parties hereunder
shall survive the Closing for a period of six months thereafter plus, with
respect to any such representation or warranty of which notice is given in
writing during such initial six-month period alleging breach hereof, such
additional amount of time required for the final resolution of any claim under
Section 14.2. The covenants of the Parties contained herein, or in any signed
writing delivered pursuant hereto or in connection herewith, shall survive the
Closing indefinitely, except that the covenant set forth in Section 10.8 shall
survive for only one year.
14.2 Indemnification by Sellers.
(a) Each Seller shall, severally and not jointly, indemnify and hold
harmless Purchaser, the Company, and each of their respective directors,
officers, employees, agents, and representatives, and their respective
successors and assigns from and against any Loss incurred or suffered by such
Person as a result of, arising from or in connection with (i) a breach by such
Seller of any representation, warranty, or covenant made by such Seller in this
Agreement or (ii) a breach by the Partnership of any representation, warranty,
or covenant made by the Partnership in this Agreement in favor of Purchaser, in
each case solely to the extent provided in Section 14.2(b) but subject to the
exceptions in Section 14.2(d).
(b) Except for a breach by a Seller of any representation or
warranty contained in Section 5.1, 6.1, 7.1 or 8.1, each Seller's sole
obligation and Purchaser's sole remedy with respect to indemnification by such
Seller for a breach of a representation, warranty or covenant under Section
14.2(a)(i) shall be for Purchaser to instruct the Escrow Agent to return to
Purchaser a number of Indemnity Shares allocable to such Seller equal to the
amount of the applicable Loss divided by the IPO Price until the number of
Indemnity Shares allocable to such Seller equals zero. Each Seller's sole
obligation and Purchaser's sole remedy with respect to indemnification by such
Seller for a breach of a representation, warranty or covenant under Section
14.2(a)(ii) shall be for Purchaser to instruct the Escrow Agent to return to
Purchaser a number of Indemnity Shares equal to the amount of the applicable
Loss divided by the IPO Price (in accordance with Section 9(D) of the Plan of
Recapitalization) until the total number of Indemnity Shares equals zero. If any
Indemnity Shares remain after the return thereof pursuant to the preceding
sentences, such Indemnity Shares shall be re-allocated among the Sellers in
accordance with the Plan of Recapitalization. Any fractional shares among such
Indemnity Shares subject to release from escrow under this Section 14.2(b) shall
be subject to Section 7 of the Plan of Recapitalization.
(c) With respect to indemnification for a breach by a Seller of any
representation or warranty contained in Section 5.1, 6.1, 7.1 or 8.1, Purchaser
shall first instruct the Escrow Agent to return to it Indemnity Shares allocable
to such Seller in accordance with the first sentence of this Section 14.2(b). To
the extent such return in Indemnity Shares does not
- 26 -
fully offset the Loss, such Seller shall satisfy the remainder of the Loss by
returning to Purchaser a number of Purchaser Shares equal to the remainder of
the Loss divided by the IPO Price until Seller has returned a number of shares
equal to the number of Purchaser Shares issued to such Seller. To the extent
such Seller and its affiliate transferees no longer owns Purchaser Shares
sufficient to satisfy its obligations under the preceding sentence, such Seller
shall pay to Purchaser the remainder of the Loss in cash, subject to the limit
expressed in the preceding sentence. For greater certainty, in no event shall
any Seller be required to return to Purchaser more than such Seller's Purchaser
Shares (or the cash equivalent of such Purchaser Shares based on the IPO Price
if such Seller no longer owns such Purchaser Shares).
(d) The remedies provided in this Section 14.2 are the exclusive
remedy of the Purchaser with respect to the representations, warranties, and
covenants, and any other matters covered by this Agreement; provided, however,
that nothing in this Section 14.2 shall prohibit Purchaser from seeking specific
performance or injunctive relief against any Seller or the Partnership in
respect of a breach by such Seller or the Partnership of any covenant hereunder;
and further provided, that nothing in this Section 14.2 shall limit Purchaser's
remedies for a breach of covenant occurring prior to the Closing.
14.3 Indemnification by Purchaser.
(a) Purchaser shall indemnify and hold harmless each Seller and each
of their respective directors, officers, employees, agents, and representatives,
and their respective successors and assigns from and against any Loss incurred
or suffered by such Person as a result of, arising from or in connection with a
breach by Purchaser of any representation, warranty, or covenant made by
Purchaser in this Agreement, in each case solely to the extent provided in
Section 14.3(b).
(b) Purchaser's sole obligation and each Seller's sole remedy for a
breach by Purchaser of a representation, warranty, or covenant hereunder shall
be for Purchaser to pay such Seller the amount of such Seller's Loss in cash;
provided that Purchaser's total obligations under this Section 14.3 shall in no
event exceed the aggregate value of the Interests and the General Partner
Shares; provided, however, that nothing in this Section 14.3(b) shall prohibit
such Seller from seeking specific performance or injunctive relief against
Purchaser in respect of a breach by Purchaser of any covenant hereunder; and
further provided, that nothing in this Section 14.3(b) shall limit such Seller's
remedies for a breach of covenant occurring prior to the Closing.
ARTICLE 15
Miscellaneous
15.1 Limited Partners. The Parties acknowledge and agree that the LP
Sellers are acting in all matters with respect to the Partnership hereunder as
limited partners.
15.2 Expenses. Except as set forth in Section 15.3, each Party shall pay
all costs and expenses incurred by such Party in respect of the transactions
contemplated hereby, including fees of brokers, finders, advisers, attorneys,
and accountants; provided that Purchaser shall pay the fees of U.S., Cayman
Islands and ▇▇▇▇▇▇▇▇ Islands counsel to OCM Ajax Investments, Inc.
- 27 -
15.3 HSR Expenses. The Partnerships shall bear all expenses pro rata
relating to filings in compliance with the HSR Act to be made in respect of the
transactions contemplated hereunder; provided that Purchaser shall bear all such
expenses if Purchaser completes the IPO (as defined in the Plan of
Recapitalization).
15.4 Entirety of Agreement. This Agreement (including the Disclosure
Schedule and all other Schedules, Annexes and Exhibits hereto), states the
entire agreement of the Parties, merges all prior negotiations, agreements and
understandings, if any, and states in full all representations, warranties,
covenants, and agreements which have induced this Agreement.
15.5 Notices. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
if and when delivered personally or by overnight courier to the Parties at the
following addresses or sent by electronic transmission, with confirmation
received, to the telecopy numbers specified below (or at such other address or
telecopy number for a Party as shall be specified by like notice):
(a) If to Purchaser:
General Maritime Ship Holdings Ltd.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to an LP Seller, to such LP Seller and its legal
representative using the contact information set forth below such LP Seller's
signature on the signature pages hereto.
(c) If to ▇▇▇▇▇▇▇▇▇▇▇▇▇ or MGP Stockholder:
c/o General Maritime Ship Holdings Ltd.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Confirm: (▇▇▇) ▇▇▇-▇▇▇▇
15.6 No Exclusion of Vessels. If this Agreement relates to a Partnership
that owns more than one Vessel, Purchaser shall have no right hereunder to close
as to one or more such Vessels and exclude one or more other Vessels from the
Partnership in connection with the transactions contemplated hereunder without
amendment to the Agreement pursuant to Section 15.7. In addition, this Agreement
may not be terminated except in accordance with Section 13.1.
- 28 -
15.7 Amendment. This Agreement may be modified or amended only by an
instrument in writing, duly executed by Purchaser, the Partnership, a Majority
in Interest, and ▇▇▇▇▇▇▇▇▇▇▇▇▇.
15.8 Waiver. No waiver by any Party of any term, provision, condition,
covenant, agreement, representation, or warranty contained in this Agreement (or
any breach thereof) shall be effective unless it is in writing executed by the
Party against which such waiver is to be enforced. No waiver shall be deemed or
construed as a further or continuing waiver of any such term, provision,
condition, covenant, agreement, representation or warranty (or breach) on any
other occasion or as a waiver of any other term, provision, condition, covenant,
agreement, representation or warranty (or of the breach of any other term,
provision, condition, covenant, agreement, representation or warranty) contained
in this Agreement on the same or any other occasion.
15.9 Assignment; Binding Nature; No Beneficiaries. This Agreement may not
be assigned by any Party without the prior written consent of Purchaser, a
Majority in Interest, and ▇▇▇▇▇▇▇▇▇▇▇▇▇; provided, however, that Purchaser may
assign its rights hereunder to any direct or indirect wholly-owned subsidiary of
Purchaser which assumes the obligations of Purchaser hereunder, but no such
assignment shall relieve Purchaser of any such obligations, and further
provided, that consideration provided for by Article 2 shall in any event be
issued in shares of the original Purchaser hereunder which shall be the entity
that sells shares to the underwriters pursuant to the Underwriting Agreement.
Subject to the preceding sentence, this Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the parties hereto and their respective
heirs, personal representatives, legatees, successors and permitted assigns.
This Agreement shall not confer any rights or remedies upon any Person other
than the parties hereto and their respective heirs, personal representatives,
legatees, successors and permitted assigns.
15.10 Severability. If any provision of this Agreement is found
unenforceable by a court of competent jurisdiction, such unenforceable provision
shall not affect the other provisions but shall be deemed modified to the extent
necessary to render it enforceable, preserving to the fullest extent permissible
the intent of the Parties.
15.11 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15.12 Governing Law; Jurisdiction; Service of Process.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, including, without limitation, Sections
5-1401 and 5-1402 of the New York General Obligations Law and New York Civil
Practice Laws and Rules 327(b).
(b) Each Party submits to the non-exclusive jurisdiction of the
state and federal courts of the United States located in the City of New York,
Borough of Manhattan with respect to any claim or cause of action arising out of
this Agreement or the transactions contemplated hereby.
15.13 Negotiated Agreement. Purchaser and the Sellers acknowledge that
they have been advised to seek advice of their own counsel, the language chosen
by the Parties hereto expresses their mutual intent, and they accordingly agree
that if an ambiguity exists with respect
- 29 -
to any provision of this Agreement, such provision shall not be construed
against any Party because such Party or its representatives drafted such
provision.
15.14 Remedies Cumulative. The remedies provided for or permitted by this
Agreement shall be cumulative and the exercise by any Party of any remedy
provided for herein shall not preclude the assertion or exercise by such Party
of any other right or remedy provided for herein.
15.15 WAIVER OF JURY TRIAL. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
15.16 Execution and Delivery. This Agreement may be executed in two or
more counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
15.17 Consent and Waiver to Certain Assignments of Partnership Interests.
If the Partnership is named on Schedule 3, each LP Seller and each General
Partner hereby (i) consents to the assignments of partnership interests
contemplated by the assignments of partnership interests under any of the
agreements listed in Schedule 3 (the "Assignments") and (ii) waives all its
rights and interests under Section 9.01 of the limited partnership agreements of
the Partnerships with respect to such assignments of partnership interests.
[The remainder of this page has intentionally been left blank.]
- 30 -
IN WITNESS WHEREOF, all of the Parties hereto have duly executed and
delivered this Agreement as a Deed as of the date first set forth above.
GENERAL MARITIME SHIP HOLDINGS LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
PACIFIC TANKSHIP, L.P.
By GENMAR Pacific Corporation, its Managing General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title:
[SIGNATURES OF LIMITED PARTNERS]
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
in his individual capacity Witness:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- --------------------------------------
Printed Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
- ▇▇ -
▇▇▇▇▇▇ PACIFIC LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title:
GENMAR PACIFIC CORPORATION
in its capacity as Managing General Partner of the Partnership
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title:
GMC ADMINISTRATION LTD.
in its capacity as Administrative General Partner of the Partnership
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title:
- 32 -
LIST OF SCHEDULES AND EXHIBITS*
EXHIBITS:
Exhibit A -- Lockup Agreement
Exhibit B -- Registration Rights Agreement
Exhibit C -- Waiver and Contribution Agreement
Exhibit D -- Closing Opinion
DISCLOSURE SCHEDULE:
Schedule 4.3(a) -- Capitalization; Title
Schedule 4.3(b) -- Capitalization; Title (cont'd)
Schedule 4.6(b) -- Financial Statements; Undisclosed Liabilities
Schedule 4.8(a) -- Taxes
Schedule 4.8(b) -- Taxes (cont'd)
Schedule 4.8(c) -- Taxes (cont'd)
Schedule 4.9(b) -- Title to Properties; Absence of Encumbrances
Schedule 4.10 -- Contracts
Schedule 4.12 -- Litigation
Schedule 4.13(a) -- Environmental Matters
Schedule 4.13(b) -- Environmental Matters (cont'd)
Schedule 4.13(c) -- Environmental Matters (cont'd)
SCHEDULES:
Schedule 1 -- SPVs
Schedule 2 -- Vessels
Schedule 3 -- Certain Assignments of Partnership Interests
---------------
* Omitted Schedules and Exhibits will be furnished supplementally to the
Commission upon request.