Exhibit 2
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is entered into
as of July 30, 2007, by and among each of the parties listed on Schedule I
annexed hereto (each, a "Seller" and collectively, the "Sellers"), and Mast
Acquisition Ltd., a Bermuda exempted limited company (the "Purchaser").
WHEREAS, contemporaneously herewith, Purchaser is entering into an
Agreement and Plan of Merger among MC Shipping Inc., a corporation organized
under the laws of the Republic of Liberia (the "Company"), Purchaser and an
affiliate of Purchaser (the "Merger Agreement");
WHEREAS, the Sellers own an aggregate of 5,075,718 shares of common
stock, par value $.01 per share, of the Company ("Common Stock");
WHEREAS, each Seller desires to sell to Purchaser, and Purchaser
desires to purchase from each Seller, all of such Seller's shares of Common
Stock (the "Purchased Shares") on the terms set forth herein; and
WHEREAS, prior to the execution and delivery hereof, Messrs. Xxxxxx
Xxxxxxx and Xxxxx Xxxxxx-Wedellsborg have each resigned their positions as
directors of the Company (and, to the extent applicable, its subsidiaries) and
did not participate in the negotiation of the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
representations, warranties, covenants, and agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto intending to be legally bound, agree as
follows:
ARTICLE 1
SALE AND PURCHASE OF PURCHASED SHARES
1.1 Sale and Purchase of Purchased Shares. At the Closing (as
defined below) and on the terms set forth herein, (a) each Seller
shall sell and deliver to Purchaser all of its right, title, and
interest in and to the amount of Purchased Shares set forth opposite
such Seller's name on Schedule I hereto, and (b) Purchaser shall
purchase and accept from each such Seller, all right, title, and
interest of such Seller in and to such Purchased Shares, free and
clear of all mortgages, liens, claims, pledges, security interests,
transfer restrictions and other encumbrances ("Liens"), in each case
in the amount as set forth opposite each Seller's name on Schedule I
hereto. The closing (the "Closing") with respect to any Purchased
Shares will take place upon the completion of the deliveries required
by Section 1.3(a) and (b) hereof with respect to such Purchased
Shares, it being understood and agreed that the Closing of the
Purchased Shares owned by the Sellers in book-entry form (the
"Electronic Shares") shall take place on the date hereof, concurrently
with the execution and delivery of this Agreement.
1.2 Purchase Price. The purchase price for the Purchased Shares
shall be U.S. $14.25 per each such share. Purchaser shall pay to each
Seller the amount in cash set forth opposite such Seller's name on
Schedule I hereto (collectively, the "Aggregate Purchase Price") as
consideration for the purchase of the Purchased Shares by wire
transfer of immediately available funds to the accounts set forth on
Schedule II hereto. The consideration payable by Purchaser for the
Electronic Shares is set forth on Schedule I hereto.
1.3 Deliveries.
(a) At the Closing, (i) in respect of Purchased Shares that are
not Electronic Shares (the "Certificated Shares"), if any, each Seller shall
deliver to the Company's transfer agent one or more share certificates
representing the relevant Purchased Shares (in such amounts as set forth
opposite each such Seller's name on Schedule I hereto), accompanied by (A) a
duly endorsed stock power in blank or other appropriate instrument of transfer
as may be required by the transfer agent (duly endorsed or otherwise in form
sufficient for transfer), and (B) written instructions to the transfer agent to
issue a new share certificate to Purchaser and (ii) in respect of the Electronic
Shares, if any, each Seller shall cause to be issued to Purchaser confirmation
of book entry transfer of such shares into Depository Trust Company accounts of
Purchaser as may be designated by Purchaser.
(b) At the Closing, Purchaser shall deliver to each Seller the
portion of the Aggregate Purchase Price payable to such Seller in accordance
with Section 1.2 above.
(c) After the date hereof, each Seller shall, with respect to
such Seller's Purchased Shares (i) use its commercially reasonable efforts to
take, or cause to be taken, all actions necessary or appropriate to consummate
the transactions contemplated by this Agreement and (ii) cooperate with
Purchaser to take such further action as may be required to cause appropriate
share certificates or book entries representing the relevant Purchased Shares
sold by it to Purchaser hereunder to be recorded in the name of Purchaser, as
Purchaser shall reasonably request (including, with respect to the Certificated
Shares, making the deliveries contemplated by Section 1.3(a)(i) as promptly as
practicable after the date hereof if such delivery are not made concurrently
with the execution and delivery of this Agreement), it being understood and
agreed, however, that nothing herein shall require such Seller to cooperate with
Purchaser with respect to any action, proceeding, lawsuit or litigation relating
to the execution, delivery or performance of this Agreement or the Merger
Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller, individually for itself and not jointly, hereby represents
and warrants to Purchaser as of the date hereof, and as of the date of the
Closing of such Seller's Purchased Shares, as follows:
2.1 Authorization. Such Seller has the requisite power and
authority to execute and deliver this Agreement and to perform the
transactions contemplated hereby to be performed by it. The execution
and delivery by such Seller of this Agreement and the performance by
it of the transactions contemplated hereby to be performed by it have
been duly authorized on the part of such Seller. This Agreement has
been duly executed and delivered by such Seller and, assuming the due
execution and delivery of this Agreement by Purchaser and the other
Seller, constitutes a valid and binding obligation of such Seller
enforceable against such Seller in accordance with its terms , except
(i) as limited by applicable bankruptcy insolvency, reorganization,
moratorium, fraudulent conveyance and other laws of general
application affecting creditor rights generally, and (ii) as limited
by laws relating to specific performance, injunctive relief or other
equitable remedies.
2.2 Consents and Approvals. No consent, approval, waiver, order,
or authorization of, or registration, declaration, or filing with, or
notice to, the Company, any holder or third party, any governmental
agency, authority, or body or any instrumentality or political
subdivision thereof (in each case, whether U.S. or non-U.S.) is
required to be obtained or made
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by such Seller in connection with the execution and delivery of this
Agreement by such Seller, the performance by such Seller of the
transactions contemplated hereby to be performed by it, or the
consummation by such Seller of the transactions contemplated hereby
other than (i) compliance with any applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934, as amended, and any other applicable
securities or "blue sky" laws, whether state or foreign, (ii)
compliance with the requirements of any antitrust, competition or
trade laws, rules or regulations of any domestic or foreign government
or governmental entity and (iii) any consent, approval, waiver, order,
authorization, registration, declaration, filing or notice the absence
of which would not have a material adverse effect on the power or
ability of such Seller to perform its obligations under this
Agreement.
2.3 Title to Purchased Shares. Such Seller is the sole record and
beneficial owner of, and has good and marketable title to, the
Purchased Shares set forth opposite such Seller's name on Schedule I,
free and clear of all Liens, other than Liens resulting from the
actions or omissions of Purchaser and restrictions on transfer imposed
by applicable U.S. federal or state or foreign securities laws. Except
for 909 shares of Common Stock owned by each of Xxxxxx Xxxxxxx and
Xxxxx Xxxxxx-Wedellsborg, in their capacity as directors, such
Purchased Shares constitute 100% of the shares of Common Stock of the
Company owned by such Seller or any of its subsidiaries or affiliates.
Upon the consummation of the transactions contemplated hereby, such
Seller will transfer to Purchaser good and valid title to such
Purchased Shares, free and clear of all Liens, other than Liens
resulting from the actions or omissions of Purchaser and restrictions
on transfer imposed by applicable U.S. federal or state or foreign
securities laws. There are no written agreements, rights or
understandings of any kind affecting such Purchased Shares to which
such Seller or any of its subsidiaries or affiliates is a party.
2.4 No Conflicts; Litigation. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby
and the performance of such Seller's obligations hereunder will not
conflict with, or result in any violation of or default under (a) any
provision of any governing instrument applicable to such Seller, (b)
any material agreement or other instrument to which such Seller is a
party or by which such Seller or any of its properties is bound, or
(c) to such Seller's knowledge and except to the extent described in
clauses (i), (ii) or (iii) of Section 2.2 hereof, any material foreign
or domestic permit, franchise, judgment, decree, statute, rule or
regulation applicable to such Seller or such Seller's business or
properties. There are no legal or governmental proceedings pending or,
to the knowledge of such Seller, threatened to which such Seller is a
party that would have a material adverse effect on the power or
ability of such Seller to perform its obligations under this
Agreement.
2.5 No Reliance. Such Seller understands and acknowledges that
Purchaser, together with its affiliates, has received material
non-public information regarding the Company and/or the Purchased
Shares, including historical financial information and certain
projections relating to the Company's business. Such Seller hereby
represents and warrants that it is financially sophisticated with
respect to the Purchased Shares and the Company; it is capable of
obtaining all information that it deems material to the transactions
contemplated hereby; it is capable of evaluating the risks associated
with a transaction involving the Purchased Shares, including the risk
of transacting on the basis of information that may be materially
different from the information available to Purchaser, and that it is
capable of sustaining any loss that may result from engaging in such a
transaction on such basis without material injury; and it acknowledges
that, except as expressly set forth in this Agreement, no
representations have been made by Purchaser in respect of this
transaction or the Company. In light of the foregoing, each Seller
hereby waives any and all claims (including any and all
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claims under any applicable securities law) it may have or may
hereafter acquire against Purchaser relating to any failure by
Purchaser to disclose to such Seller any information which may be
considered to be material non-public information in respect of the
Company.
2.6 Value. Such Seller understands and acknowledges that the
value of the Purchased Shares may be worth more or less than the
Aggregate Purchase Price.
2.7 No Intermediary. There is no investment banker, broker,
finder or other intermediary who might be entitled to any fee or
commission upon consummation of the transactions contemplated hereby
based upon arrangements made by or on behalf of such Seller.
2.8 No Other Representations or Warranties. Except as set forth
in this Article 2, neither Seller, its affiliates nor any of their
respective officers, directors, employees or representatives make or
have made any other representation or warranty, express or implied, at
law or in equity, in respect of such Seller, the Purchased Shares, the
Company, its subsidiaries, business or assets, or the negotiation,
execution, delivery or performance of this Agreement. Any such other
representation or warranty is hereby expressly disclaimed,
notwithstanding the delivery or disclosure to Purchaser or its
affiliates, employees, agents or representatives of any documentation
or other information with respect to any one or more of the foregoing.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to each of the Sellers as of
the date hereof, and as of the Closing of such Seller's Purchased Shares, as
follows:
3.1 Authorization. Purchaser has the requisite power and
authority to execute and deliver this Agreement and to perform the
transactions contemplated hereby to be performed by it. The execution
and delivery by Purchaser of this Agreement and the performance by it
of the transactions contemplated hereby to be performed by it have
been duly authorized by all necessary action on the part of Purchaser.
This Agreement has been duly executed and delivered by Purchaser and,
assuming the due execution and delivery of this Agreement by each of
the Sellers, constitutes a valid and binding obligation of Purchaser
enforceable against Purchaser in accordance with its terms, except (i)
as limited by applicable bankruptcy insolvency, reorganization,
moratorium, fraudulent conveyance and other laws of general
application affecting creditor rights generally, and (ii) as limited
by laws relating to specific performance, injunctive relief or other
equitable remedies.
3.2 Consents and Approvals. No consent, approval, waiver, order,
or authorization of, or registration, declaration, or filing with, or
notice to, any governmental agency, authority, or body or any
instrumentality or political subdivision thereof (in each case whether
U.S. or non-U.S.) is required to be obtained or made by Purchaser in
connection with the execution and delivery of this Agreement by
Purchaser, the performance by Purchaser of the transactions
contemplated hereby to be performed by it, or the consummation of the
transactions contemplated hereby other than as may be required by
applicable securities laws or the requirements of any antitrust,
competition or trade laws, rules or regulations or any domestic or
foreign government or governmental entity.
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3.3 No Conflicts; Litigation. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby
and the performance of Purchaser's obligations hereunder will not
conflict with, or result in any violation of or default under (a) any
provision of any governing instrument applicable to Purchaser, (b) any
material agreement or other instrument to which Purchaser is a party
or by which Purchaser or any of its properties is bound, or (c) to
Purchaser's knowledge except as required by applicable securities laws
or the requirements of any antitrust, competition or trade laws, rules
or regulations or any domestic or foreign government or governmental
entity, any material foreign or domestic permit, franchise, judgment,
decree, statute, rule or regulation applicable to Purchaser or its
business or properties. There are no legal or governmental proceedings
pending or, to the knowledge of Purchaser, threatened to which
Purchaser is a party that would have a material adverse effect on the
power or ability of Purchaser to perform its obligations under this
Agreement.
3.4 Certain Securities Law Matters. Purchaser is an "accredited
investor" as defined in Rule 501(a) of Regulation D under the
Securities Act, and has sufficient knowledge and experience in
financial and business matters so as to be capable of evaluating the
merits and risks of its investment in the Purchased Shares. Purchaser
acknowledges that the Purchased Shares have not been and are not being
registered under the Securities Act or any state securities laws, and
may not be offered, sold, pledged or otherwise transferred other than
in compliance with the Securities Act and applicable state securities
laws, as then in effect, or pursuant to an exemption therefrom.
Purchaser is acquiring the Purchased Shares for investment for
Purchaser's own account, not as a nominee or agent, and not with the
view towards, or for resale in connection with, any public sale or
distribution thereof.
3.5 Sufficiency of Funds. Purchaser has sufficient funds to pay
the Aggregate Purchase Price and any expenses incurred by it or its
affiliates or agents in connection with the transactions contemplated
by this Agreement, and to otherwise perform its obligations hereunder.
3.6 No Intermediary. Except for HSBC Securities (USA) Inc. and
Poten Capital Services, LLC, there is no investment banker, broker,
finder or other intermediary who might be entitled to any fee or
commission upon consummation of the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of Purchaser.
ARTICLE 4
COVENANTS
4.1 Merger Transaction. Except as otherwise expressly set forth
in this Agreement, each Seller agrees that it will not, and shall
cause its directors, officers, employees, advisors, controlled
affiliates and any other agents or representatives (to the extent
permissible under applicable law) not to, knowingly take any action,
or knowingly agree to take any action, which would adversely affect
the consummation of any of the transactions contemplated by the Merger
Agreement including participating in or supporting (directly or
indirectly) any litigation challenging the Merger Agreement or the
transactions contemplated thereby. Notwithstanding the foregoing,
nothing herein shall affect the rights of each Seller to enforce the
rights and benefits of such Seller under this Agreement.
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ARTICLE 5
MISCELLANEOUS
5.1 Survival. All the representations and warranties made herein
shall survive the execution and delivery of this Agreement and the
sale and delivery of the Purchased Shares pursuant hereto for a period
of one (1) year from the Closing, except for the representations and
warranties made in any of Sections 2.1, 2.3, 2.7, 3.1, 3.4 and 3.6
which shall survive for the duration of the applicable statute of
limitation.
5.2 Expenses. Each party hereto shall pay its own expenses in
connection with the transactions contemplated hereby.
5.3 Counterparts. This Agreement may be executed in multiple
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same instrument.
5.4 Entire Agreement. This Agreement (including the Schedules
attached hereto) constitutes the entire agreement of the parties
hereto in respect of the subject matter hereof, and supersedes all
prior agreements or understandings among the parties hereto in respect
of the subject matter hereof.
5.5 Further Assurances. Each party hereto shall, and shall cause
its subsidiaries and controlled affiliates (to the extent permissible
under applicable law), execute and deliver all such further and
additional instruments and agreements and shall take such further and
additional actions, as may be reasonably requested by any other party
in order to evidence or carry out the provisions of this Agreement or
to consummate the transactions contemplated hereby it being understood
and agreed, however, that nothing herein shall require either Seller
to cooperate with Purchaser with respect to any action, proceeding,
lawsuit or litigation relating to the execution, delivery or
performance of this Agreement or the Merger Agreement.
5.6 Governing Law; Jurisdiction; Venue. This Agreement shall be
enforced, governed, and construed in all respects (whether in contract
or in tort) in accordance with the laws of the State of New York
applicable to contracts made and performed in such State, without
regard to its conflicts of law provisions. Any action, suit, or
proceeding seeking to enforce any provision of, or based on any matter
arising out of or relating to, this Agreement or the transactions
contemplated hereby can be brought exclusively in federal court
sitting in the Southern District of New York or, if such court does
not have jurisdiction, any district court sitting in the Borough of
Manhattan, the County of New York, New York, and each of the parties
hereto hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such action, suit, or
proceeding and irrevocably waives, to the fullest extent permitted by
applicable law, any objection that it may now or hereafter have to the
laying of the venue of any such action, suit, or proceeding in any
such court or that any such action, suit, or proceeding that is
brought in any such court has been brought in an inconvenient forum.
5.7 Notices. Any notice, request, demand, or other communication
required or permitted to be given hereunder shall be in writing and
shall be deemed to have been duly given if sent by hand delivery, mail
(first class, certified mail, postage prepaid), facsimile, or
overnight courier if to any party hereto, at the address or facsimile
number set forth below such party's name on the signature pages hereto
or to such other address or facsimile number as such
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party shall have last designated by notice to the other parties hereto
in accordance with this Section 5.7. Notices sent by hand delivery
shall be deemed to have been given when received or delivery is
refused; notices mailed in accordance with this Section 5.7 shall be
deemed to have been given three (3) days after the date so mailed;
notices sent by facsimile shall be deemed to have been given when
electronically confirmed; and notices sent by overnight courier shall
be deemed to have been given on the next business day after the date
so sent.
5.8 Public Statements. Except as attached as Schedule III hereto,
neither the Sellers, on the one hand, nor Purchaser, on the other hand
shall issue any press release or make any public statement in respect
of this Agreement or the transactions contemplated hereby without
obtaining the prior written consent of the other party; provided,
however, that each such party may make any public disclosure it
believes is required by applicable law or the rules of any stock
exchange (in which case the disclosing party will use its reasonable
best efforts to advise the other parties prior to making the
disclosure).
5.9 Severability. If any provision of this Agreement or the
application of such provision to any person or circumstance shall be
held by a court of competent jurisdiction to be invalid, illegal, or
unenforceable under the applicable law of any jurisdiction, (a) the
remainder of this Agreement or the application of such provision to
other persons or circumstances or in other jurisdictions shall not be
affected thereby, and (b) such invalid, illegal, or unenforceable
provision shall not affect the validity or enforceability of any other
provision of this Agreement.
5.10 Successors and Assigns. This Agreement (and the parties'
rights or obligations hereunder) may not be assigned without the prior
written consent of the non-assigning parties hereto. Except as
otherwise expressly provided herein, (a) this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, and (b) nothing express
or implied in this Agreement is intended or shall be construed to
confer upon or give any person other than the parties hereto and their
respective successors and permitted assigns any right, benefit, or
remedy under or by reason of this Agreement.
5.11 Amendments and Waivers. This Agreement may be amended,
modified or supplemented only pursuant to a written instrument making
specific reference to this Agreement and signed by each of the parties
hereto or, in the case of a waiver, the party against whom the waiver
is to be effective.
5.12 Interpretation. The words "hereof," "herein" and "herewith"
and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement, and article, section,
paragraph and schedule references are to the articles, sections,
paragraphs and schedules of this Agreement unless otherwise specified.
Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words
"without limitation." The term "affiliate" (which shall have the
meaning set forth in Rule 144 under the Securities Act), when used
with respect to each Seller, shall not include the Company or and of
its subsidiaries and the term "controlled affiliate" shall mean an
entity that is majority owned or as to which another entity has the
direct or indirect unilateral power to direct its management and
policies. The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
PURCHASER:
Mast Acquisition Ltd.
By:/s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Director
Address for Notices:
-------------------
c/o Bear Xxxxxxx Merchant Banking, LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
SELLERS
NAVALMAR TRANSPORTES MARITIMOS LDA
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
Address for Notices:*
-------------------
Xxxxxx Xxxxxxx
Xxxxxxxx Xxxxxxx & figli Spa
Xxx Xxxxxxx, 00/X
00000 Xxxxxx xx Xxxxxxx (XX)
Xxxxx
Tel: x00 0000 000000
Fax: x00 0000 000000
WECO-REDERI HOLDING A/S
By: /s/ Xxxxx Xxxxxx-Wedellsborg
-----------------------------------------
Name: Xxxxx Xxxxxx-Wedellsborg
Title: Chief Executive Officer
Address for Notices:*
-------------------
Xxxxx Xxxxxx-Wedellsborg
Dannebrog Rederi AS
Rungsted Strandvej 113
DK-2960 Rungsted Kyst
Denmark
Tel: x00 00 00 00 00
Fax: x00 00 00 00 00
(*) With a copy (which shall not constitute
notice) to:
Xxxxxxx Xxxxxxxx, Esq.
Xxxxxxxxx Traurig, LLP
The MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
SCHEDULE I
SHARES BEING SOLD BY SELLERS
TOTAL NO. PURCHASE PURCHASE AGGREGATE
NO. OF NO. OF OF PURCHASE PRICE FOR PRICE FOR PURCHASE
ELECTRONIC CERTIFICATED PURCHASED PRICE PER CERTIFICATED ELECTRONIC PRICE
SHARES SHARES SHARES SHARE SHARES SHARES
------------ ------------- ----------- ---------- ------------ ------------ ------------
NAVALMAR 4,226,448 N/A 4,226,448 $14.25 N/A $60,226,884.00 $60,226,884.00
TRANSAPORTES
MARITIMOS LDA
WECO-REDERI 265,937 583,333 849,270 $14.25 $8,312,495.25 $3,789,602.25 $12,102,097.50
HOLDING A/S
TOTAL 4,492,385 583,333 5,075,718 - - $64,016,486.25 $72,328,981.50
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