EQUITY CONTRIBUTION AGREEMENT
THIS
EQUITY CONTRIBUTION AGREEMENT (this “Agreement”) is made
and entered into as of April 23, 2009, by and among III to I Maritime Partners
Cayman I, L.P., a Cayman Islands exempted limited partnership (the “Partnership”), I-A
Suresh Capital Maritime Partners Limited, a Cyprus company limited by shares
(“I-A Suresh”),
III to I International Maritime Solutions Cayman, Inc., a Cayman Islands
exempted limited liability company (the “Class C
Shareholder”), Suresh Capital Maritime Holdings, LLC, a Delaware limited
liability company (the “Class B Shareholder”
and together with the Class C Shareholder, the “Shareholders”),
Suresh Capital Partners, LLC, a Delaware limited liability company (“SCP”), and The
Maritime Funding Group, Inc. Irrevocable Trust (“MFG,” and together
with SCP, the “Members”).
Recitals
A.
The Partnership holds fifty (50) Class A
Shares of I-A Suresh.
B.
The Class B Shareholder holds one (1)
Class B Share (the “Class B Share”) of
I-A Suresh.
C.
The Class C Shareholder holds one (1) Class C
Share (the “Class C
Share”) of I-A Suresh.
D. The
Members own 100% of the Class B Shareholder.
E. The
Shareholders desire to contribute (the “Contribution”),
pursuant to this Agreement and Sections 12.1(b) and 12.1(c) of that certain
Amended and Restated Shareholders Agreement
of I-A Suresh, dated effective as of January 1, 2009, by and among the
Partnership, as the Managing Shareholder, the Class B Shareholder and the Class
C Shareholder, as the Co-Managing Shareholder, (the “I-A Suresh Shareholder
Agreement”), their respective Class B Share and Class C Share to the
Partnership (together, the “Contributed
Shares”).
F.
As consideration for the Contribution of the Contributed Shares to
the Partnership: (i) at the direction of the Class B Shareholder, the
Partnership will admit such Members as limited partners to the Partnership and
will issue one thousand (1,000) Class D Units to each of the two (2) Members,
issuable in connection with the Second Amended and Restated Agreement of Limited
Partnership, to be entered into at a future date subject to the approval of a
Majority in Interest (as defined in the Partnership’s current Amended and
Restated Agreement of Limited Partnership, dated as of November 15, 2006 (the
“Current Partnership
Agreement”)) of the Partnership’s Limited Partners (as defined in the
Current Partnership Agreement), by and among the Class C Shareholder, as the
general partner (the “General Partner”) and
the other parties from time to time party thereto (the “Second Amended and Restated
Partnership Agreement”), in substantially the same form as the draft
attached hereto as Exhibit A
(collectively, the “Received Class D
Units”), and (ii) the Class C Shareholder shall receive the
additional rights given to the General Partner under the Second Amended and
Restated Partnership Agreement.
G.
In connection with the Contribution, the Shareholders
desire and agree to become a party to, and be bound by the terms and conditions
of, the Second Amended and Restated Partnership Agreement provided that in the
case of the Class C Holder, it has in its capacity as General Partner, received
approval of a Majority in Interest.
Agreement
In
consideration of the premises, mutual promises, representations, warranties,
covenants and conditions set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledge, the parties hereto hereby agree as follows:
ARTICLE
I
CONTRIBUTION OF THE
SECURITIES
1.1
Contribution. On
the terms and subject to the conditions of this Agreement:
(a) Immediately
upon the execution of the Second Amended and Restated Partnership Agreement by
the General Partner on its own behalf and on behalf of the Partnership’s Limited
Partners, the Contribution shall be deemed to be consummated and effective (the
“Effective
Time”). Immediately thereafter, the Shareholders shall
surrender to the Partnership the following documents:
(i) the
cancelled share certificates of the Contributed Shares in the name of the Class
B Shareholder and Class C Shareholder, respectively;
(ii) instruments
of transfer of the Class B Share and the Class C Share, duly executed by the
Class B Shareholder and the Class C Shareholder, respectively;
(iii) a
resolution of the board of directors of I-A Suresh approving the transfer of
shares;
(iv) a
resolution of the shareholders of I-A Suresh approving the transfer of
shares;
(v)
an extract of the register of members of I-A Suresh
evidencing the Partnership as the new registered shareholder of the Contributed
Shares; and
(vi) the
new share certificates in the name of the Partnership.
(b) Within
five business days after receipt of the share certificates of the Contributed
Shares pursuant to Section 1.1(a) of this Agreement and executed copies of an
agreement to be bound by the terms of the Second Amended and Restated
Partnership Agreement signed by each of the Members pursuant to Section 1.3 of
this Agreement, the Partnership will admit such Members to the Partnership as
limited partners and shall issue to each of the Members a certificate evidencing
one thousand (1,000) Class D Units of the Partnership, in exchange for the
Contributed Share, duly registered in the name of each such Member.
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(c) Each
of the parties to this Agreement acknowledges that, for the purposes of Cayman
Islands law, this Agreement is binding on the date hereof and the Contribution
will take effect on the Effective Time. However, notwithstanding the
foregoing, each of the parties to this Agreement hereby agree that, upon the
adoption of the Second Amended and Restated Partnership Agreement and the
consummation of the Contribution, their respective rights, duties and
obligations pursuant to this Agreement and their ownership in I-A Suresh shall
have retrospective effect as between the parties to this Agreement from the
Effective Time of the Second Amended and Restated Partnership Agreement (as
defined therein).
(d) Together,
the Members own 100% of the Class B Shareholder. The Class B
Shareholder hereby directs the Partnership to issue the Class D Units that it
would have received directly to its Members, SCP and MFG. As a
result, SCP and MFG shall each receive one thousand (1,000) Class D Units of the
Partnership or, with the consent of the Class C Shareholder (as General Partner
of the Partnership), any assignee of either such Member provided such assignee
enters into an agreement (in form and substance satisfactory to the Class C
Shareholder) to be bound by this Agreement. Each of the Members has
executed this Agreement and agrees to be bound by its terms.
1.2 Effects of
Contribution. Immediately
upon the Effective Time, title to each of the Contributed Shares shall be deemed
to be transferred to the Partnership, any and all rights of the Shareholders to
receive accrued but unpaid dividends or other distributions on the Contributed
Shares shall be deemed waived, and the Shareholders shall have no further rights
as holder of the Contributed Shares contributed hereunder or otherwise with
respect to any of the Contributed Shares.
1.3 Execution of the Second
Amended and Restated Partnership Agreement. Each of the
Members, as the new Class D Limited Partners (as defined in the Second Amended
and Restated Partnership Agreement), agrees to return to the Partnership signed
copies of a subscription agreement or other agreement to be bound by the terms
of the Second Amended and Restated Partnership Agreement immediately after the
Effective Time.
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES OF SHAREHOLDERS AND MEMBERS
As a
material inducement to the Partnership to enter into this Agreement, each of the
Shareholders and the Members hereby severally represent and warrant to the
Partnership that:
2.1 Authorization. Such
Shareholder or Member has full power and authority to enter into this Agreement
and this Agreement constitutes its valid and legally binding obligation,
enforceable in accordance with its terms.
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2.2 Ownership of Shares; Title;
Consent of the Members. Such
Shareholder is the sole record and beneficial owners of their respective
Contributed Shares, which have been duly authorized, validly issued and are
fully paid. The Contributed Shares are free and clear of all liens,
claims, security interests, encumbrances and transfer restrictions, other than
transfer restrictions under any agreement between such Shareholder and I-A
Suresh imposing restrictions on transfer. Such Shareholder will
transfer and deliver to the Partnership good and valid title to their respective
Contributed Shares, free and clear of all liens, claims, security interests and
rights of third parties. Each Member hereby (a) consents to the
Contribution by the Class B Shareholder and agrees to be bound by the terms of
this Agreement and the Second Amended and Restated Partnership Agreement, (b)
confirms that they are the only Members of the Class B Shareholder, and (c)
acknowledges that all necessary action by the Class B Shareholder and/or the
Members to approve the Contribution has been taken.
2.3 Purchase Entirely for Own
Account. The
Received Class D Units will be acquired for investment by each of the Members
for such Member’s own accounts, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof. Each of the
Members has no present intention of selling, granting any participation in, or
otherwise distributing the same. Neither of the Members has any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Received Class D Units.
ARTICLE
III
MISCELLANEOUS
3.1 The Shareholders’
Waivers. The
Shareholders and the Members hereby irrevocably waive (i) any preemptive, first
refusal right or other similar rights under the I-A Suresh Shareholder Agreement
or any other agreement between I-A Suresh and the Shareholders in connection
with the Contribution of the Contributed Shares, and (ii) any restriction on the
Partnership under the I-A Suresh Shareholder Agreement in connection with the
Partnership’s consummation of the transactions contemplated hereby.
3.2 Amendment and
Waiver. This
Agreement may be amended and any provision of this Agreement may be waived only
if such amendment or waiver is set forth in writing and executed by each of the
Partnership, the Shareholders and the Members. No course of dealing
between or among any persons having any interest in this Agreement will be
deemed effective to modify, amend or discharge any part of this Agreement or any
rights or obligations of any party under or by reason of this
Agreement.
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3.3 Consent. The
Partnership, acting in its capacity as the Managing Shareholder of I-A Suresh
and pursuant to Section 12.1(c) of the I-A Suresh Shareholder Agreement, hereby
(i) consents to the Contribution and (ii) waives any notice requirements of
such Contribution as required in the I-A Suresh Shareholder Agreement and all
other restrictions or conditions precedent contained therein. The
Class B Shareholder, as Co-Managing Shareholder of I-A Suresh, hereby consents
to the transactions described herein and waives any rights it may have pursuant
to the I-A Suresh Shareholder Agreement or otherwise.
3.4 Termination of Shareholders
Agreement. The parties agree that, as sole shareholder of I-A
Suresh upon the Effective Time, the I-A Suresh Shareholders Agreement shall be
terminated effective immediately upon the Effective Time.
3.5 Terms of Second Amended and
Restated Partnership Agreement’s Transfer Restrictions. Each
of the Members has received and reviewed the form, terms and provisions of the
draft Second Amended and Restated Partnership Agreement attached hereto as Exhibit
A. Each of the Members agrees to be subject to the provisions
of the final Second Amended and Restated Partnership Agreement, including any
changes from the draft attached hereto that are deemed necessary or advisable by
the General Partner so long as such changes do not materially adversely affect
the economic rights of the Class D Limited Partners as set forth in the draft,
as Class D Limited Partners upon consummation of the
Contribution. Each of the Members acknowledges the transfer and other
restrictions as set forth in the Second Amended and Restated Partnership
Agreement. Each of the Members hereby represents that it is an
“accredited investor” as that term is defined under Rule 501 of Regulation D as
promulgated under the Securities Act of 1933. Each Member further
agrees to execute a subscription agreement or other agreement in form and
substance satisfactory to the General Partner and to take other actions as
required by the General Partner to become a party to the Second Amended and
Restated Partnership Agreement.
3.6 Further
Acts. The parties hereto agree, at the request of Partnership,
at or after the execution of this Agreement, that they will, without further
consideration, promptly execute and deliver to the Partnership, or cause to be
executed and delivered to the Partnership, such assignments, consents, share
transfer instruments and other instruments to consummate the Contribution and
the other transactions contemplated by this Agreement, including, without
limitation, the instruments listed in Section 1.1(a) hereof, in form and
substance satisfactory to the Partnership, as the Partnership may reasonably
deem necessary to implement any provision of this Agreement.
3.7 Binding Agreement;
Assignment. The provisions of this Agreement shall inure to the
benefit of and be binding upon the Partnership, the Shareholders and the
Members; provided, however, that neither party may assign its rights or delegate
its duties hereunder without the prior written consent of the other parties
hereto except as set forth in Section 1.1(d) hereof. Any purported
assignment in violation of this Section 3.7 shall be void and of no force or
effect.
3.8 Severability. Whenever
possible, each provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions or the
remaining provisions of this Agreement.
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3.9 No Strict
Construction. The
language used in this Agreement will be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict
construction will be applied against any person.
3.10 Headings;
Interpretation. The
headings used in this Agreement are for convenience of reference only and do not
constitute a part of this Agreement and will not be deemed to limit,
characterize or in any way affect any provision of this Agreement, and all
provisions of this Agreement will be enforced and construed as if no caption had
been used in this Agreement. Whenever the term “including” is used in
this Agreement (whether or not that term is followed by the phrase “but not
limited to” or “without limitation” or words of similar effect) in connection
with a listing of one or more items or matters, that listing will be interpreted
to be illustrative only and will not be interpreted as a limitation on, or an
exclusive listing of, such items or matters.
3.11 Entire
Agreement. This
Agreement and the documents referred to herein contain the entire agreement
between the parties and supersede any prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related to the subject matter hereof in any way.
3.12 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which taken together will constitute one and the
same instrument.
3.13 Governing
Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
CAYMAN ISLANDS.
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
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EXECUTED
AS A DEED BY
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THE
PARTNERSHIP:
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III
TO I MARITIME PARTNERS CAYMAN I, L.P.
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By:
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III
to I International Maritime Solutions
Cayman,
Inc., its General
Partner
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By:
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/s/
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Xxxxxxx
Xxxx, Director
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In
the presence of:
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/s/
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Witness
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[Signature
Page S-1 to Equity Contribution Agreement]
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EXECUTED
AS A DEED BY
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THE
CLASS C SHAREHOLDER:
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III
TO I INTERNATIONAL MARITIME
SOLUTIONS
CAYMAN, INC.
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By:
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/s/
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Xxxxxxx
Xxxx, Director
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In
the presence of:
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/s/
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Witness
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[Signature Page S-2 to Equity Contribution
Agreement]
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EXECUTED
AS A DEED BY
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THE
CLASS B SHAREHOLDER:
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SURESH
CAPITAL MARITIME HOLDINGS, LLC
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By:
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/s/
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Siva
Suresh,
President
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In
the presence of:
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/s/
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Witness
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[Signature Page S-3 to Equity Contribution
Agreement]
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EXECUTED
AS A DEED BY
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The
MEMBERS:
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SURESH
CAPITAL PARTNERS, LLC
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By:
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/s/
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Name:
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Siva
Suresh
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Title:
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Chief
Executive
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In
the presence of:
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/s/
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Witness
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THE
MARITIME FUNDING GROUP, INC. IRREVOCABLE TRUST
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By:
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/s/
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Kalman
M Carmel, Trustee
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By:
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/s/
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Xxxxxxx
X. Xxxxxx, Trustee
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In
the presence of:
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/s/
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Witness
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[Signature Page S-4 to Equity Contribution
Agreement]
AGREED
AND ACKNOWLEDGED AND EXECUTED AS A DEED BY
I-A
SURESH:
I-A
SURESH CAPITAL MARITIME PARTNERS LIMITED
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By:
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III to I Maritime Partners Cayman I, L.P., as Managing Shareholder | |
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By:
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III
to I International Maritime Solutions Cayman, Inc., its general
partner
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By:
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/s/
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Xxxxxxx
Xxxx,
Director
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In
the presence of:
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/s/
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Witness
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EXECUTED
AS A DEED BY
SURESH
CAPITAL MARITIME HOLDINGS, LLC, as Co-Managing Shareholder
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By:
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/s/
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Siva
Suresh, President
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Witness
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[Signature Page S-5 to Equity Contribution
Agreement]
