Exhibit 10.10
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MASTER AGREEMENT
dated as of January 12, 2007
by and among
TMT CO., LTD.,
STAR BULK CARRIERS CORP.
and
STAR MARITIME ACQUISITION CORP.
relating to the purchase of
eight drybulk carriers
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MASTER AGREEMENT
THIS MASTER AGREEMENT, dated as of January 12, 2007 (this
"Agreement"), is made by and among TMT CO., LTD., a Taiwan corporation (the
"Seller"), STAR BULK CARRIERS CORP., a ▇▇▇▇▇▇▇▇ Islands corporation (the
"Buyer"), and STAR MARITIME ACQUISITION CORP., a Delaware corporation ("Star
Maritime").
W I T N E S S E T H:
WHEREAS, the Seller and the Buyer desire to effect the transfer by the
Seller's Vessel Owning Subsidiaries to the Buyer or its nominees of all of the
Vessel Owning Subsidiaries' right, title and interest in and to the Vessels in
accordance with the terms of the MOAs and the Supplemental Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and the
mutual covenants and agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions.
(a) Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
"Aggregate Purchase Price" means $345,237,520.
"Buyer Common Stock" means the common stock, par value $0.01 per
share, of the Buyer.
"Cash Consideration" means $ 224,499.998.65.
"Effective Date of Merger" has the meaning set forth in the
Supplemental Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Forecasted Annual Consolidated Revenue" means the forecasted annual
Revenue of the Buyer, as shall be agreed between the Buyer and the Seller with
reference to the Vessels' employment once arranged, in writing at or prior to
the Effective Date of Merger.
"Memoranda of Agreement" or "MOAs" means the separate memoranda of
agreement relating to the Vessels, each dated the date hereof, between the Buyer
or its nominees and the Vessel Owning Subsidiaries, each of which are attached
hereto as Exhibit A.
"Memorandum of Understanding" means the letter agreement dated
November 23, 2006 by and between the Seller and Star Maritime.
"Merger" means the business combination of Star Maritime with the
Buyer effected by way of a merger in which the Buyer is the surviving
corporation and where the merger consideration consists of one share of Buyer
Common Stock for each share of common stock of Star Maritime.
"NASD" shall mean the National Association of Securities Dealers,
Inc., or any successor self regulatory organization.
"Registrable Securities" shall mean the Buyer Common Stock issued to
and owned by the Seller, the Vessel Owning Subsidiaries or any Seller Affiliates
(i) as the Stock Consideration and (ii) under Section 2(b) hereof.
"Registrable Securities Holder" shall mean any of the Seller, the
Vessel Owning Subsidiaries or a Seller Affiliate holding the Registrable
Securities.
"Revenue" means gross revenue of the Buyer and its consolidated
subsidiaries which own and operate the Vessels, as determined under United
States generally accepted accounting principles.
"SEC" or "Commission" means the United States Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Seller Affiliates" shall mean any entity which is an "affiliate" of
the Seller, as that term is defined under Rule 144 (in effect as of the date
hereof) promulgated under the Securities Act.
"Stock Consideration" means 12,537,645 shares of Buyer Common Stock.
"Supplemental Agreement" means the agreement by and among Star
Maritime, the Buyer and the Seller, dated the date hereof, relating to the
purchase of the Vessels and attached hereto as Exhibit B.
"USD" or "$" means legal tender of the United States of America.
"Vessel" or "Vessels" means each of the vessels, and collectively, all
of the vessels being sold pursuant to the MOAs listed in Schedule 3 of the
Supplemental Agreement.
"Vessel Owning Subsidiaries" means the subsidiaries of the Seller that
are party to the Memoranda of Agreement.
SECTION 2. Purchase Price; Earn-out.
(a) The Buyer or its subsidiary nominees shall purchase the Vessels
for the Aggregate Purchase Price, which consists of two components: (1) the
Stock Consideration and (2) the Cash Consideration. The Aggregate Purchase Price
shall be paid in accordance with the terms and provisions of the Memoranda of
Agreement and the Supplemental Agreement.
(b) In addition to the Aggregate Purchase Price:
(1) With respect to the short fiscal year of the Buyer commencing as
of the Effective Date of Merger and ending on December 31, 2007, in
the event that the Buyer achieves Revenue for such short fiscal year
equal to or in excess of 80% of the Forecasted Annual Consolidated
Revenue for such short fiscal year, then the Seller shall be entitled
to receive, promptly following the Buyer's filing of its Annual Report
on Form 20-F for such fiscal year, an additional 803,481 shares of
Buyer Common Stock (which shall be issued no later than ten (10)
business days following the filing of such Annual Report to the
Seller, the Vessel Owning Subsidiaries and/or a Seller Affiliate, as
directed by the Seller); plus
(2) With respect to the first full fiscal year of the Buyer following
the Merger commencing on January 1, 2008 and ending on December 31,
2008, in the event that the Buyer achieves Revenue for such first full
fiscal year equal to or in excess of 80% of the Forecasted Annual
Consolidated Revenue for such first full fiscal year, then the Seller
shall be entitled to receive, promptly following the Buyer's filing of
its Annual Report on Form 20-F for such fiscal year, an additional
803,481 shares of Buyer Common Stock (which shall be issued no later
than ten (10) business days following the filing of such Annual Report
to the Seller, the Vessel Owning Subsidiaries or a Seller Affiliate,
as directed by the Seller).
(c) In addition to the terms and provisions of the MOAs and the
Supplemental Agreement, the Buyer's obligations hereunder shall also be subject
to the Buyer obtaining debt financing in such amount as necessary in order for
the Buyer to fund a portion of the Cash Consideration in excess of its
cash-on-hand immediately following the Merger.
SECTION 3. Covenants of the Seller. Until the delivery of each of the Vessels,
the Seller shall (and shall cause the Vessel Owning Subsidiaries, as applicable,
to): (a) use its commercially reasonable efforts to: (i) prevent the Vessel
Owning Subsidiaries from becoming insolvent (within the meaning of the U.S.
Bankruptcy Code), (ii) continue to operate its business as it is currently
conducted, (iii) retain ownership and possession of the Vessels (subject to any
charters in respect of the Vessels) and (iv) forbear from creating any new
liens, claims or encumbrances of any kind upon the Vessels or any other material
assets of the Vessel Owning Subsidiaries (except, in each case, other than in
the ordinary course of business and subject to any charters in respect of the
Vessels) and (b) forbear from selling any interest in any Vessel Owning
Subsidiary and cause each Vessel Owning Subsidiary to forbear from issuing any
capital stock or other securities to, or making loans (other than in the
ordinary course of its business) to, any person other than the Seller.
SECTION 4. Covenants of Star Maritime. Star Maritime shall use its commercially
reasonable efforts to: (a) as soon as is reasonably practicable following the
date hereof, file a registration/proxy statement on Form F-4 or S-4 with the
SEC: (i) soliciting the vote of Star Maritime's stockholders in favor of the
Merger and the purchase of the Vessels as contemplated hereby and (ii) subject
to provisions of Section 5(a) below, registering the Registrable Securities with
the SEC, (b) comply, and cause the Buyer and its Vessel purchasing nominees to
comply with all other applicable rules and regulations of the SEC, (c) obtain,
on behalf of itself, the Buyer and its Vessel purchasing nominees, all
approvals, consents, exemptions or authorizations from such governmental
agencies or authorities, and take all other actions, as may be necessary or
reasonably appropriate in order to effect the Merger and transactions
contemplated by this Agreement, the Supplemental Agreement and the MOAs.
SECTION 5. Registration Rights; Lock Up.
(a) Registration on Form F-4. Buyer shall include the Registrable
Securities on Buyer's Registration Statement on Form F-4 or S-4 contemplated in
Section 4(a) above to the extent that such inclusion would not, in Buyer's
reasonable judgment after receiving written comments from the SEC that address
the registration of the Registrable Securities, materially hinder or delay the
Commission's declaration of effectiveness thereof.
(b) Required Shelf Registration. After receipt of a written request
from the Seller, on behalf of itself or any Registrable Securities Holder,
requesting that the Buyer effect a registration under the Securities Act
covering all of the shares of the Registrable Securities then unregistered and
outstanding, and specifying the holders and intended method or methods of
disposition thereof, the Buyer shall promptly file with the SEC a registration
statement covering the Registrable Securities and, as expeditiously as is
possible, use its commercially reasonable efforts to effect the registration
under the Securities Act of such shares for sale, all to the extent required to
permit the disposition (in accordance with the intended method or methods
thereof, as aforesaid) of the Registrable Securities so registered; provided,
however, that the Buyer shall not be required to effect any such registrations
pursuant to this Section 5(b) unless the Buyer shall be eligible at any time to
file a registration statement on Form F-3 or S-3 (or other comparable short
form) under the Securities Act. If, at any time after giving the written notice
under this Section 5(b), the Seller shall notify the Buyer in writing that the
Seller has determined for any reason not to proceed with the proposed offering,
then the Buyer shall terminate such offering.
(c) Incidental Registration. (i) If, from and after the date that is
one hundred and eighty (180) days following the Effective Date of Merger, the
Buyer at any time proposes to file on its behalf and/or on behalf of any of its
security holders other than any Registrable Securities Holder (the "demanding
security holders") a registration statement under the Securities Act on any form
(other than a registration statement on Form ▇-▇, ▇-▇ or S-8 or any successor
form for securities to be offered in a transaction of the type referred to in
Rule 145 under the Securities Act or to employees of the Buyer pursuant to any
employee benefit plan, respectively) for the general registration of securities,
it will give written notice to all the Registrable Securities Holders at least
thirty (30) days before the initial filing with the Commission of such
Registration Statement, which notice shall set forth the intended method of
disposition of the securities proposed to be registered by the Buyer or the
demanding security holders. The notice shall offer to include in such filing the
aggregate number of shares of Registrable Securities as the Seller may request.
The Seller shall be entitled to withdraw its request at any time before the time
that the Registration Statement is declared effective and the offering has
commenced. (ii) The Seller shall advise Buyer in writing within ten (10)
business days after the date of receipt of such offer from Buyer, setting forth
the amount of such Registrable Securities for which registration is requested
and the holders thereof. The Buyer shall thereupon include in such filing the
number of shares of Registrable Securities for which registration is so
requested, subject to the next sentence, and shall use its commercially
reasonable efforts to effect registration under the Securities Act of such
shares. If a proposed public offering pursuant to this Section 5(c) is an
underwritten offering, and if the managing underwriter thereof shall advise the
Buyer in writing that, in its opinion, the distribution of the Registrable
Securities requested to be included in the registration concurrently with the
securities being registered by the Buyer or such demanding security holder would
materially and adversely affect the distribution of such securities by the Buyer
or such demanding security holder, then all selling security holders (including
the demanding security holder who initially requested such registration) shall
reduce the amount of securities each intended to distribute through such
offering on a pro rata basis, it being understood that the number of securities
offered by the Buyer shall not be subject to any such pro rata reduction. Except
as otherwise provided in Section 5(e), all expenses of such registration shall
be borne by the Buyer.
(d) Registration Procedures. If the Buyer is required by the
provisions of Section 5(b) or (c) to effect the registration of any of its
securities under the Securities Act, the Buyer will, as expeditiously as
possible:
(i) prepare and file with the Commission a registration statement
with respect to such securities and use its commercially reasonable efforts to
cause such registration statement to become and remain effective for a period of
time required for the disposition of such securities by the holders thereof
(which period of time shall be no later than the period that the Registrable
Securities Holders could sell or dispose the Registrable Securities without
restrictions pursuant to Rule 144(k) promulgated under the Securities Act);
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration statement until
the such time as all of such securities have been fully disposed of;
(iii) furnish to all selling security holders (including the
Registrable Securities Holders) such number of copies of a prospectus, including
a preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents, as such selling security holders may reasonably
request;
(iv) use its commercially reasonable efforts to register or
qualify the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions within the United States and
Puerto Rico as each holder of such securities shall request (provided, however,
that the Buyer shall not be obligated to qualify as a foreign corporation to do
business under the laws of any jurisdiction in which it is not then qualified or
to file any general consent to service or process), and do such other reasonable
acts and things as may be required of it to enable such holder to consummate the
disposition in such jurisdiction of the securities covered by such registration
statement;
(v) furnish, at the request of the selling Registrable Securities
Holder(s), on the date that such shares of Registrable Securities are delivered
to the underwriters for sale pursuant to a registration that is underwritten or,
if such Registrable Securities are not being sold through underwriters, on the
date that the registration statement with respect to such shares of Registrable
Securities becomes effective, (A) an opinion, dated such date, of the counsel
representing the Buyer for the purposes of such registration, addressed to the
underwriters, if any, and if such Registrable Securities are not being sold
through underwriters, then to the selling Registrable Securities Holder(s), in
customary form and covering matters of the type customarily covered in such
legal opinions; and (B) a comfort letter dated such date, from the independent
certified public accountants of the Buyer, addressed to the underwriters, if
any, and the selling Registrable Securities Holder(s), in a customary form and
covering matters of the type customarily covered by such comfort letters and as
the they shall reasonably request;
(vi) enter into customary agreements (including an underwriting
agreement in customary form, it being understood that any underwriting agreement
entered into by the selling Registrable Securities Holder(s) with respect to an
underwritten offering of Registrable Securities will impose customary
indemnification obligations on the underwriter(s)) and take such other actions
as are reasonably required in order to expedite or facilitate the disposition of
such Registrable Securities;
(vii) cooperate reasonably with any managing underwriter to
effect the sale of Registrable Securities, including but not limited to
attendance of the Buyer's executive officers at any planned "road show"
presentations to the extent that such attendance does not unduly or unreasonably
impact the performance of such officer's duties;
(viii) notify the selling Registrable Securities Holder(s) and
the underwriter(s), if any, in writing at any time when the Buyer is aware that
offering documents include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and at the request of any selling Registrable Securities Holder or underwriter,
prepare and furnish to such person(s) such reasonable number of copies of any
amendment or supplement to the offering documents as may be necessary so that,
as thereafter delivered to the purchasers of such shares, such offering
documents would not include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and to deliver to purchasers of any other securities of the Buyer included in
the offering copies of such offering documents as so amended or supplemented;
(ix) promptly notify the selling Registrable Securities Holder(s)
of (A) the effectiveness of such offering documents, (B) the issuance by the
Commission of an order suspending the effectiveness of the offering documents,
or of the threat of any proceeding for that purpose, and (C) the suspension of
the qualification of any securities to be included in the offering documents for
sale in any jurisdiction or the initiation or threat of any proceeding for that
purpose; and
(x) cause all Registrable Securities registered hereunder to be
listed on each securities exchange on which similar securities issued by the
Buyer are then listed.
It shall be a condition precedent to the obligation of the Buyer to
take any action pursuant to this Section 5 in respect of the securities which
are to be registered at the request of the Registrable Securities Holder(s) that
the Registrable Securities Holder(s) shall furnish to the Buyer such information
regarding the securities held by the Registrable Securities Holder(s) and the
intended method of disposition thereof as the Buyer shall reasonably request and
as shall be required in connection with the action taken by the Buyer.
(e) Expenses. All expenses incurred in complying with this Section 5,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), all "road show" expenses incurred by
the Buyer or the Registrable Securities Holder(s) and all applicable selling
security holders, printing expenses, fees and disbursements of counsel for the
Buyer, the reasonable fees and expenses of one counsel for the selling security
holders (selected by those holding a majority of the shares being registered),
expenses of any special audits incident to or required by any such registration
and expenses of complying with the securities or blue sky laws of any
jurisdiction pursuant to Section 5(d)(iv), shall be paid by the Buyer, except
that the Buyer shall not be liable for any fees, discounts or commissions to any
underwriter or any fees or disbursements of counsel for any underwriter in
respect of the securities sold by any applicable selling security holders,
including the Registrable Securities Holders.
(f) Indemnification and Contribution.
(i) In the event of any registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the Buyer shall
indemnify and hold harmless the Registrable Securities Holders, their respective
directors and officers, and each other person (including each underwriter) who
participated in the offering of such Registrable Securities and each other
person, if any, who controls the Registrable Securities Holders or such
participating person within the meaning of the Securities Act (collectively, the
"Seller Indemnitees") from and against any losses, claims, damages or
liabilities, joint or several, to which a Seller Indemnitee may become subject
under the Securities Act or any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon: (i) any untrue statement or any alleged untrue statement
of any material fact contained or incorporated by reference, on the effective
date thereof, in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, any free writing prospectus or any amendment or
supplement thereto, (ii) any omission or any alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any other violation of any applicable
securities laws, and in each of the foregoing circumstances shall pay for or
reimburse the Seller Indemnitees for any legal or any other expenses reasonably
incurred by all or any one of the Seller Indemnitees in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that, with respect to any Seller Indemnitee, the Buyer shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability has been found by a court of competent jurisdiction to have been
based upon any actual untrue statement or actual omission made or incorporated
by reference in such registration statement, preliminary prospectus, prospectus,
free writing prospectus or any amendment or supplement thereto solely in
reliance upon and in conformity with written information furnished to the Buyer
by such Seller Indemnitee specifically for use therein. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of a Seller Indemnitee, and shall survive the transfer of such securities
by a Seller Indemnitee.
(ii) In the event of any registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the Registrable
Securities Holders, by acceptance hereof, agrees to indemnify and hold harmless
the Buyer, its directors and officers and each other person, if any, who
controls the Buyer within the meaning of the Securities Act and any other person
(including each underwriter) who participated in the offering of such
Registrable Securities (collectively, the "Buyer Indemnitees") against any
losses, claims, damages or liabilities, joint or several, to which the Buyer
Indemnitees may become subject under the Securities Act or any other statute or
at common law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon: (i) any untrue
statement or any alleged untrue statement of any material fact contained or
incorporated by reference, on the effective date thereof, in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, any free
writing prospectus, or any amendment or supplement thereto, or (ii) any omission
or any alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in
either case only to the extent that such untrue statement or omission is (A)
made in reliance on and in conformity with any information furnished in writing
by the Seller to the Buyer concerning the Seller specifically for inclusion in
the registration statement, preliminary prospectus, prospectus, free writing
prospectus or any amendment or supplement thereto relating to such offering, and
(B) is not corrected by the Seller and distributed to the purchasers of shares
within a reasonable period of time.
(iii) If the indemnification provided for in this Section 5 from
an indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
(iv) The parties hereto agree that it would not be just and
equitable if contribution pursuant to Section 5(f)(iii) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(g) Certain Limitations on Registration Rights. Notwithstanding the
other provisions of this Section 5, the Buyer shall have the right to delay the
filing or effectiveness of a registration statement required pursuant to Section
5(b) hereof during one or more periods aggregating not more than one hundred and
twenty (120) days in any twelve-month period in the event that: (i) if counsel
to the Buyer is of the opinion that the filing of such a registration statement
would require the disclosure of material non-public information about the Buyer,
the disclosure of which the Buyer believes, in good faith, could have a material
adverse effect on the business or financial condition of the Buyer or (ii) the
Buyer furnishes to the Seller or other holders requesting the filing of a
registration statement, a certificate signed by the President or Chief Executive
Officer of the Buyer stating that, in the good faith judgment of the Board of
the Buyer, it would be seriously detrimental to the Buyer and its shareholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement.
(h) "Market Stand-Off" Agreement. The Seller (on behalf of itself and
each Registrable Securities Holder) hereby agrees, in connection with any firm
commitment, underwritten public offering by the Buyer of its securities, that it
shall not, to the extent requested by the Buyer or an underwriter of such
securities, sell or otherwise transfer or dispose of or engage in any other
transaction regarding any Registrable Securities or other shares of the Buyer
then owned by the Seller or any Registrable Securities Holder for a period not
to exceed one hundred and eighty (180) days following the effective date of a
registration statement of the Buyer filed under the Securities Act in connection
with such firm commitment, underwritten public offering by the Buyer; provided,
however, that the foregoing shall only be applicable if all executive officers
and directors of the Buyer and holders of 5% or greater of the shares of the
Buyer are required to enter into similar agreements, it being agreed that the
"lock-up" period for Seller or any Registrable Securities Holder shall not to
exceed the period applicable to such officers and directors and shareholders and
shall in no event exceed one hundred and eighty (180) days following the
effective date of such registration statement.
(i) Resale Exemptions; Reports Under Exchange Act. In order to permit
the Seller to sell the Registrable Securities, if it so desires, pursuant to any
applicable resale exemption under applicable securities laws and regulations,
the Buyer will:
(i) comply with all rules and regulations of the Commission in
connection with use of any such resale exemption;
(ii) make and keep available adequate and current public
information regarding the Buyer;
(iii) file with the Commission in a timely manner, all reports
and other documents required to be filed under the Securities Act, the Exchange
Act, or other applicable securities laws and regulations;
(iv) furnish to the Registrable Securities Holders, upon written
request, copies of annual reports required to be filed under the Exchange Act
and other applicable securities laws and regulations; and
(v) furnish to the Registrable Securities Holders, upon written
request (A) a copy of the most recent quarterly report of the Buyer and such
other reports and documents filed by the Buyer with the Commission and (ii) such
other information as may be reasonably required to permit the Registrable
Securities Holders to sell pursuant to any applicable resale exemption under the
Securities Act or other applicable securities law and regulations, if any.
(j) Lock-up. The Seller (on behalf of itself and each Registrable
Securities Holder) hereby agrees that, without the prior written consent of the
Buyer, it (a) will not, directly or indirectly, offer, sell, agree to offer or
sell, solicit offers to purchase, grant any call option or purchase any put
option with respect to, pledge, borrow or otherwise dispose of any of the
Registrable Securities representing the Stock Consideration and (b) will not
establish or increase any "put equivalent position" or liquidate or decrease any
"call equivalent position" with respect to any of the Registrable Securities
representing the Stock Consideration (in each case within the meaning of Section
16 of the Exchange Act), or otherwise enter into any swap, derivative or other
transaction or arrangement that transfers to another, in whole or in part, any
economic consequence of ownership of any of the Registrable Securities
representing the Stock Consideration, whether or not such transaction is to be
settled by delivery of Registrable Securities representing the Stock
Consideration, other securities, cash or other consideration for a period of one
hundred and eighty (180) days commencing on the date of issuance of Registrable
Securities representing the Stock Consideration; provided, however, that,
notwithstanding the foregoing, the Seller and the Vessel Owning Subsidiaries
shall be permitted to transfer all or any portion of the Registrable Securities
representing the Stock Consideration among themselves or to any Seller
Affiliate; provided, further, that prior to any such transfer the transferor at
its expense shall provide to the Buyer an opinion of counsel reasonably
acceptable to the Buyer to the effect that that such transfer would not require
registration under the Securities Act. The Seller hereby further agrees to cause
each Registrable Securities Holder to enter into a lock-up agreement giving
effect to the provisions of this Section 5(j) immediately upon such Registrable
Securities Holder's acquisition of Registrable Securities representing the Stock
Consideration.
(k) Termination. The rights granted under this Section 5 shall expire
at such time as the Registrable Securities Holders collectively (i) hold less
than five (5%) percent of the outstanding Buyer Common Stock, or (ii) are
eligible to sell their Registrable Securities without restriction under Rule
144(k) promulgated under the Securities Act (it being agreed, for purposes of
this Section 5(k)(ii), that the Buyer, upon the request of a Registrable
Securities Holder and at its expense, shall provide to Buyer's transfer agent a
legal opinion of its counsel regarding the ability of such holder to sell its
Registrable Securities under Rule 144(k) and any appropriate legend removal
instructions).
(l) Legends. The Seller hereby acknowledges and agrees that the Buyer
shall legend the share certificates representing the Registrable Securities to
reflect the restrictions on transfer contained in this Agreement and may issue
to its transfer agent a stop transfer instruction in relation thereto. Such
legend shall state:
THE SHARES OF COMMON STOCK REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY HAS RECEIVED
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL
THAT SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
AGREEMENT BY THE REGISTERED HOLDER WITH THE COMPANY NOT TO SELL
SUCH SHARES FOR A PERIOD OF 180 DAYS FOLLOWING THE DATE OF
ISSUANCE OF THE SHARES.
SECTION 6. Director Nominees. Subject to satisfactory due diligence, including
but not limited to, completion of Directors' & Officers' questionnaires, the
Seller shall have the right to nominate and the Buyer and Star Maritime hereby
agree to cause the appointment and election of two (2) members of the board of
directors of the Buyer, it being understood and agreed that the initial nominees
and directors (to be listed in the registration/proxy statement referred to in
Section 4(a) hereof) shall be Mr. Nobu Su and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, each of whom
shall serve upon the Effective Date of Merger for one (1) year therefrom in the
case of Mr. Nobu Su and for two (2) years therefrom in the case of ▇▇. ▇▇▇▇▇
▇▇▇▇▇ or until their successors have been duly elected and qualified. For so
long as Mr. Nobu Su serves on the board of directors of the Buyer, he shall
receive the title of non-executive Co-Chairman of the Buyer.
SECTION 7. Third Party Agreements. The Buyer or any of its subsidiaries or
affiliates may enter into agreements to purchase vessels and other assets other
than the Vessels. This Master Agreement shall in no way restrict or prohibit the
Buyer or its subsidiaries or affiliates from negotiating or completing such
transactions. The Seller or any of its subsidiaries or affiliates may enter into
agreements relating to vessels or other assets other than the Vessels; provided
that, in no event shall the Seller or any of its subsidiaries enter into any
agreements, negotiations or transactions that would materially adversely affect
the obligations of the Seller or any of its Vessel Owning Subsidiaries
hereunder.
SECTION 8. Representations and Warranties of the Seller. The Seller (on behalf
of itself and, with respect to the representations and warranties contained in
subsections (e) through (h), each Registrable Securities Holder) hereby makes
the following representations and warranties to the Buyer and Star Maritime:
(a) it is duly organized and existing under the laws of the
jurisdiction of its organization with full power and authority to execute and
deliver this Agreement and to perform all of the duties and obligations to be
performed by it under this Agreement;
(b) this Agreement has been duly authorized, executed and delivered by
it, and constitutes its valid, legal and binding obligation enforceable against
it in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application relating to
or affecting the enforcement of creditors' rights in general or by general
principles of equity whether considered in a proceeding at law or equity;
(c) its execution and delivery of, the performance and incurrence by
it of its obligations and liabilities under, and the consummation by it of the
other transactions contemplated by, this Agreement do not and will not (i)
violate any provision of its organizational documents, (ii) violate any
applicable law, rule or regulation, (iii) violate any order, writ, injunction or
decree of any court or governmental or regulatory authority or agency or any
arbitral award applicable to it or its affiliates or (iv) subject to the consent
of applicable charterers of the Vessels, result in a breach of, constitute a
default under, require any consent under, or result in the acceleration or
required prepayment of any indebtedness pursuant to the terms of, any agreement
or instrument of which it is a party or by which it is bound or to which it is
subject, or result in the creation or imposition of any lien upon any property
of it pursuant to the terms of any such agreement or instrument, in the case of
(i), (ii), (iii) or (iv) which could have a material adverse effect on the
transactions contemplated hereby;
(d) there are no legal or governmental actions, suits or proceedings
pending or, to its knowledge, threatened against it before any court,
administrative agency or tribunal which, if determined adversely to it, could
reasonably be expected to adversely affect the ability of it to perform its
obligations under this Agreement;
(e) it is an "accredited investor" within the meaning of Rule 501 of
Regulation D under the Securities Act;
(f) it has received or has had full access to all the information it
considers necessary or appropriate to make an informed decision with respect to
the acquisition of Buyer Common Stock;
(g) the Buyer Common Stock being acquired by it are being acquired for
its own account for the purpose of investment and not with a view to, or for
resale in connection with, any distribution thereof within the meaning of the
Securities Act; and
(h) it understands that (i) the shares of Buyer Common Stock have not
been registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration requirements of the Securities Act,
(ii) the shares of Buyer Common Stock must be held indefinitely (subject,
however, to the Buyer's obligation to effect the registration of registrable
securities in accordance with Section 5 hereof) unless a subsequent disposition
thereof is registered under the Securities Act or is exempt from such
registration, and (iii) the shares of Buyer Common Stock will bear the legend to
such effect set forth in Section 5(l) hereof.
SECTION 9. Representations and Warranties of the Buyer. The Buyer makes the
following representations and warranties to the Seller and Star Maritime:
(a) it is duly organized and existing under the laws of the
jurisdiction of its organization with full power and authority to execute and
deliver this Agreement and to perform all of the duties and obligations to be
performed by it under this Agreement;
(b) this Agreement has been duly authorized, executed and delivered by
it, and constitutes its valid, legal and binding obligation enforceable against
it in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application relating to
or affecting the enforcement of creditors' rights in general or by general
principles of equity whether considered in a proceeding at law or equity;
(c) its execution and delivery of, the performance and incurrence by
it of its obligations and liabilities under, and the consummation by it of the
other transactions contemplated by, this Agreement do not and will not (i)
violate any provision of its organizational documents, (ii) violate any
applicable law, rule or regulation, (iii) violate any order, writ, injunction or
decree of any court or governmental or regulatory authority or agency or any
arbitral award applicable to it or its affiliates or (iv) result in a breach of,
constitute a default under, require any consent under, or result in the
acceleration or required prepayment of any indebtedness pursuant to the terms
of, any agreement or instrument of which it is a party or by which it is bound
or to which it is subject, or result in the creation or imposition of any lien
upon any property of it pursuant to the terms of any such agreement or
instrument, in the case of (i), (ii), (iii) or (iv) which could have a material
adverse effect on the transactions contemplated hereby; and
(d) there are no legal or governmental actions, suits or proceedings
pending or, to its actual knowledge, threatened against it before any court,
administrative agency or tribunal which, if determined adversely to it, could
reasonably be expected to adversely affect the ability of it to perform its
obligations under this Agreement.
SECTION 10. Representations and Warranties of Star Maritime. Star Maritime makes
the following representations and warranties to the Seller and the Buyer:
(a) it is duly organized and existing under the laws of the
jurisdiction of its organization with full power and authority to execute and
deliver this Agreement and to perform all of the duties and obligations to be
performed by it under this Agreement;
(b) this Agreement has been duly authorized, executed and delivered by
it, and constitutes its valid, legal and binding obligation enforceable against
it in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application relating to
or affecting the enforcement of creditors' rights in general or by general
principles of equity whether considered in a proceeding at law or equity;
(c) its execution and delivery of, the performance and incurrence by
it of its obligations and liabilities under, and the consummation by it of the
other transactions contemplated by, this Agreement do not and will not (i)
violate any provision of its organizational documents, (ii) violate any
applicable law, rule or regulation, (iii) violate any order, writ, injunction or
decree of any court or governmental or regulatory authority or agency or any
arbitral award applicable to it or its affiliates or (iv) result in a breach of,
constitute a default under, require any consent under, or result in the
acceleration or required prepayment of any indebtedness pursuant to the terms
of, any agreement or instrument of which it is a party or by which it is bound
or to which it is subject, or result in the creation or imposition of any lien
upon any property of it pursuant to the terms of any such agreement or
instrument, in the case of (i), (ii), (iii) or (iv) which could have a material
adverse effect on the transactions contemplated hereby; and
(d) there are no legal or governmental actions, suits or proceedings
pending or, to its actual knowledge, threatened against it before any court,
administrative agency or tribunal which, if determined adversely to it, could
reasonably be expected to adversely affect the ability of it to perform its
obligations under this Agreement.
SECTION 11. Conditions Precedent to the Obligations of the Seller. The
obligation of the Seller and the Vessel Owning Subsidiaries to sell and deliver
the Vessels to the Buyer is subject to the satisfaction or waiver of the
following conditions, which conditions are intended wholly for the benefit of
the Seller and the applicable Vessel Owning Subsidiary (with respect to each
Vessel):
(a) Due Authorization, Execution and Delivery. This Agreement shall
have been duly authorized, executed and delivered by the Buyer and Star
Maritime, shall be in full force and effect and executed counterparts thereof
shall have been delivered to the Seller;
(b) Representations and Warranties. The representations and warranties
of the Buyer and Star Maritime contained in this Agreement shall be true and
correct;
(c) Illegality. The performance of the transactions contemplated
hereby upon the terms and subject to the conditions set forth in this Agreement
shall not, in the reasonable judgment of the Seller, violate, and shall not
subject the Seller, any Vessel Owning Subsidiary or any Seller Affiliate to any
material penalty or liability under, any law, rule or regulation binding upon
any of them;
(d) No Proceedings. No legal or governmental action, suit or
proceeding shall have been instituted or threatened before any court,
administrative agency or tribunal, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court, administrative agency or
tribunal, to set aside, restrain, enjoin or prevent the consummation of this
Agreement or the transactions contemplated hereby.
(e) Performance of Obligations. Star Maritime, the Buyer and Buyer's
Vessel purchasing nominees shall have performed all obligations required of them
under this Agreement, the Supplemental Agreement and the MOAs in all material
respects.
SECTION 12. Conditions Precedent to the Obligations of the Buyer. The obligation
of the Buyer to purchase the Vessels from the Seller or the Vessel Owning
Subsidiaries is subject to the satisfaction or waiver of the following
conditions, which conditions are intended wholly for the benefit of the Buyer:
(a) Due Authorization, Execution and Delivery. This Agreement shall
have been duly authorized, executed and delivered by the Seller, shall be in
full force and effect and executed counterparts thereof shall have been
delivered to the Buyer;
(b) Representations and Warranties. The representations and warranties
of the Seller contained in this Agreement shall be true and correct;
(c) Illegality. The performance of the transactions contemplated
hereby upon the terms and subject to the conditions set forth in this Agreement
shall not, in the reasonable judgment of the Buyer, violate, and shall not
subject the Buyer to any material penalty or liability under, any law, rule or
regulation binding upon the Buyer;
(d) No Proceedings. No legal or governmental action, suit or
proceeding shall have been instituted or threatened before any court,
administrative agency or tribunal, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court, administrative agency or
tribunal, to set aside, restrain, enjoin or prevent the consummation of this
Agreement or the transactions contemplated hereby.
(e) Performance of Obligations. The Seller and each Vessel Owning
Subsidiary shall have performed all obligations required of them under this
Agreement, the Supplemental Agreement and the MOAs in all material respects.
SECTION 13. Further Assurances and Other Matters. Each of the Seller, the Buyer
and Star Maritime agrees, upon the request of the other party, at any time and
from time to time, promptly to execute and deliver all such further documents,
promptly to take and forbear from all such action, and obtain all approvals,
consents, exemptions or authorizations from such governmental agencies or
authorities as may be necessary or reasonably appropriate in order to effect the
Merger and more effectively confirm or carry out the provisions of this
Agreement and the other documents entered into in connection herewith.
SECTION 14. Term and Termination. This Agreement shall terminate and be of no
further force and effect: (i) upon satisfaction or waiver of all obligations of
all parties arising under this Agreement, the Supplemental Agreement and the
MOAs or (ii) in the event that the stockholders of Star Maritime do not approve
the Merger or the sale and purchase of the Vessels as contemplated by this
Agreement, the Supplemental Agreement and the MOAs, provided, however that
Sections 6, 7 and 15 hereof shall survive the termination of this Agreement and
remain in full force and effect if such termination is as a result of
satisfaction or waiver of all obligations of all parties arising under the MOAs.
SECTION 15. Miscellaneous.
(a) Termination of Memorandum of Understanding. The Memorandum of
Understanding is hereby terminated and of no force and effect.
(b) Notices. All notices provided hereunder shall be given in writing
and either delivered personally or by overnight courier service or sent by
certified mail, return receipt requested, or by facsimile transmission,
if to the Buyer, to:
Star Bulk Carriers Corp.
c/o Seward & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax No: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
if to Star Maritime, to:
Star Bulk Carriers Corp.
c/o Seward & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax No: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
if to the Seller to:
TMT Co., Ltd.
8F., ▇▇. ▇▇▇, ▇▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇. ▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ 104
Taiwan, R.O.C.
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇▇-▇-▇▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the parties shall from time to time designate in
writing. Any notice delivered personally or by fax shall be deemed given upon
receipt (with confirmation of receipt required in the case of fax
transmissions); any notice given by overnight courier shall be deemed given on
the next business day after delivery to the overnight courier; and any notice
given by certified mail shall be deemed given upon the second business day after
certification thereof.
(c) Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New York without regard to conflicts of laws
principles. Any action or proceeding (other than with respect to disputes under
the MOAs and the Supplemental Agreement, which shall be subject to the dispute
resolution provisions thereof) seeking to enforce any provision of, or based on
any right arising out of, this Agreement shall be brought against the parties
hereto or thereto in the courts of the State of New York, County of New York,
or, if it has or can acquire jurisdiction, in the United States District Court
for the Southern District of New York, and each of the parties consents to the
exclusive jurisdiction of such courts (and of the appropriate appellate courts)
in any such action or proceeding and waives any objection to venue laid therein.
The parties hereby expressly waive all rights to trial by jury in any suit,
action or proceeding arising under this Agreement.
(d) Survival of Representations and Warranties. All representations
and warranties contained herein shall survive any termination of this Agreement
for a period of two (2) years.
(e) Headings. Headings used herein are for convenience only and shall
not in any way affect the construction of, or be taken into consideration in
interpreting, this Agreement.
(f) Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
(g) Amendments in Writing. No amendment, modification, waiver,
termination or discharge of any provision of this Agreement, or any consent to
any departure by each of the Seller, the Buyer or Star Maritime from any
provision hereof, shall in any event be effective unless the same shall be in
writing and signed by the parties hereto, and each such amendment, modification,
waiver, termination or discharge shall be effective only in the specific
instance and for the specific purpose for which given. No provision of this
Agreement shall be varied, contradicted or explained by any oral agreement,
course of dealing or performance or any other matter not set forth in an
agreement in writing and signed by the parties hereto.
(h) Expenses. Each party shall be responsible for its own expenses in
connection with the preparation, negotiation, execution and delivery of the
MOAs, the Supplemental Agreement and this Agreement; provided, however, that
regardless of whether this Agreement or the transactions contemplated hereby are
terminated, Star Maritime shall pay for or reimburse the Seller for all
reasonable fees and expenses of its legal counsel in connection with the
preparation, negotiation, execution and delivery of the MOAs, the Supplemental
Agreement and this Agreement up to $25,000. The Buyer shall also be responsible
for all the reasonable expenses of the Seller in connection with soliciting the
stockholders vote in favor of, and the approval of, the Merger and transactions
contemplated in this Agreement, the MOAs and the Supplemental Agreement,
including all "road show," travel and lodging expenses, all reasonable fees and
expenses of legal counsel, accountants and other advisors and consultants of the
Seller.
(i) Execution in Counterparts. This Agreement and any amendment,
waiver or consent hereto may be executed by the parties hereto in separate
counterparts (or upon separate signature pages bound together into one or more
counterparts), each of which, when so executed and delivered, shall be an
original, but all such counterparts shall together constitute one and the same
instrument. All such counterparts may be delivered among the parties hereto by
facsimile or other electronic transmission, which shall not affect the validity
thereof.
(j) Entire Agreement. This Agreement and the other documents referred
to herein or therein, on and as of the date hereof, constitute the entire
agreement of the parties hereto with respect to the subject matter hereof or
thereof, and all prior or contemporaneous understandings or agreements, whether
written or oral between the parties hereto with respect to such subject matter
(including, without limitation, the Memorandum of Understanding) are hereby
superseded in their entirety.
(k) Exhibits and Schedules. The exhibits attached hereto or any
schedules referenced in this Agreement are incorporated by reference herein and
shall have the same force and effect with respect to the provisions set forth
therein as though fully set forth in this Agreement.
(l) Successors and Assigns. This Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the parties hereto and
their respective successors and assigns; provided, that, except for permitted
transferees of Registrable Securities, who shall be entitled to the benefits of
Section 5 hereof, none of the Buyer, the Seller or Star Maritime may assign any
of its obligations hereunder without the prior written consent of the other
party.
(m) Third-Party Beneficiaries. The Buyer and Star Maritime hereby
acknowledge and agree that each Vessel Owning Subsidiary shall be a third party
beneficiary of the obligations of the Buyer and Star Maritime under this
Agreement and each Registrable Security Holder, other than the Seller and each
Vessel Owning Subsidiary, shall be a third party beneficiary only with respect
to Section 5 of this Agreement and all such entities shall be entitled to
enforce such obligations directly against the Buyer and Star Maritime as if they
were a party hereto.
(n) Non Waiver. Any failure at any time of either party to enforce any
provision of this Agreement shall neither constitute a waiver of such provision
nor prejudice the right of any party hereto to enforce such provision at any
subsequent time.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and date first above written.
TMT CO., LTD.
for itself individually and for/on behalf
of each of the Vessel Owning Subsidiaries
and the Registrable Security Holders
By: /s/ Nobu Su
--------------------------
Name:
Title:
STAR BULK CARRIERS CORP.,
for itself individually and for/on behalf
of each of its nominees
By: /s/ Prokopios Tsirigakis
--------------------------
Name:
Title:
STAR MARITIME ACQUISITION CORP.
By: /s/ Prokopios Tsirigakis
--------------------------
Name:
Title:
SK 25767 0001 737829 v6