FORM OF SHARE PURCHASE AGREEMENT
Exhibit 4.5
SHARE PURCHASE AGREEMENT (the “Agreement”), dated as of [ ], 2011,
by and between Xxxxx Containerships Inc., a Xxxxxxxx Islands Corporation (the “Company”), and Xxxxx
Shipping Inc., a Xxxxxxxx Islands Corporation, (the “Buyer”).
WHEREAS, the Company is currently conducting a public offering of the Company’s common shares,
par value $0.01 (the “Shares”), not including any over-allotment that may be exercised by the
underwriters, under the Securities Act of 1933, as amended (the “Offering”); and
WHEREAS, the Buyer owns approximately 11% of the Company’s issued and outstanding common
shares prior to the Offering; and
WHEREAS, the Company has agreed to issue to the Buyer, and the Buyer has agreed to purchase,
$20.0 million United States dollars of the Company’s common shares at the same price per share as
is being offered to the public in the Offering, before underwriting discounts and commissions (the
“Purchased Shares”); and
WHEREAS, the Purchased Shares shall be issued and purchased simultaneously with the closing of
the Offering (the “Closing”).
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and for such other
good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Upon the terms and subject to the conditions of this Agreement:
1.1 Issuance and Purchase of Shares. The Company shall issue, set over and deliver
to the Buyer, free and clear of all liens and outstanding charges of whatever nature (“Liens”), and
the Buyer shall purchase from the Company, the Purchased Shares on the Closing Date.
1.2 Purchase Consideration. In consideration for the Purchased Shares, the Buyer
shall pay in immediately available funds for the Purchased Shares as follows:
(a) $20.0 million at the Closing.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
The Company hereby represents and warrants to, and agrees with the Buyer, as of the date
hereof and the Closing, as follows:
2.1 Capacity; Authority; Validity. The Company has all capacity, power and
authority to enter into this Agreement and to perform all the obligations to be performed by the
Company hereunder; this Agreement and the consummation by the Company of the transactions
contemplated hereby and thereby have been duly and validly authorized by all necessary action of
the Company; this Agreement has been duly executed and delivered by the Company; and assuming the
due execution and delivery of this Agreement by the Buyer, this Agreement constitutes the legal,
valid and binding obligation of the Company enforceable against the Company in accordance with
their respective terms.
2.2 Validity of Shares. Upon delivery of the Purchased Shares by the Company in
accordance with the terms of this Agreement, the Purchased Shares shall be duly issued, fully paid
and non-assessable, free and clear of all Liens.
2.3 No Violation of Law or Agreement. Neither the execution and delivery of this
Agreement by the Company, nor the consummation of the transactions contemplated hereby by the
Company, will violate any judgment, order, writ, decree, law, rule, regulation or agreement
applicable to the Company.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF BUYER
The Buyer hereby represents and warrants to, and agrees with the Company, as of the date
hereof and the Closing as follows:
3.1 Capacity; Authority; Validity. The Buyer has all necessary capacity, power and
authority to enter into this Agreement and to perform all the obligations to be performed by the
Buyer hereunder; this Agreement and the consummation by the Buyer of the transactions contemplated
hereby have been duly and validly authorized by all necessary action of the Buyer; this Agreement
has been duly executed and delivered by the Buyer; and assuming the due execution and delivery of
this Agreement by the Company, this Agreement constitutes the legal, valid and binding obligation
of the Buyer enforceable against the Buyer in accordance with its terms.
3.2 No Violation of Law or Agreement. Neither the execution and delivery of this
Agreement by the Buyer, nor the consummation of the transactions contemplated hereby by the Buyer,
will violate any judgment, order, writ, decree, law, rule, regulation or agreement applicable to
the Buyer or create any Lien over the Buyer’s assets.
3.3 No Registration. The Buyer understands that the Purchased Shares have not been
registered under the Securities Act, are being sold in a transaction that is exempt from the
registration requirements of the Securities Act and that the Purchased Shares may not be re-offered
or resold except as permitted in the following sentence. The Buyer agrees that it will resell the
Purchased Shares only (A) to the Company, its successors or assigns, (B) outside the United States
in accordance with Rule 904 of Regulation S under the Securities Act, (C) pursuant to an exemption
from registration provided by Rule 144 under the Securities Act or another available exception from
registration, or (D) pursuant to an effective registration statement under the Securities Act, and
the Buyer further agrees to provide to any person purchasing any of the Purchased Shares from it a
notice advising such purchaser that resales of the Purchased Shares are restricted as stated
herein. The Buyer understands that any certificates for the Purchased Shares shall carry a
restrictive legend to such effect.
3.4 Resale. The Buyer understands that, on any proposed resale of the Purchased
Shares, it will be required to furnish the Company such certification, legal opinions and other
information as the Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. All notices and other communications by the Buyer or the Company
hereunder shall be in writing to the other party and shall be deemed to have been duly given when
delivered in person or by an overnight courier service, or sent via telecopy transmission and
verification received, or when posted by postal service, registered or certified mail, return
receipt requested with postage prepaid, at the address set forth on the signature page hereto or to
such other addresses as a party may from time to time designate to the other party by written
notice thereof, effective only upon actual receipt.
4.2 Assignment. This Agreement shall not be assigned by either party without the
other’s prior written consent.
4.3 Entire Agreement. This Agreement constitutes the entire agreement by the
parties hereto and supersedes any other agreement, whether written or oral, that may have been made
or entered into between them relating to the matters contemplated hereby.
4.4 Amendments and Waivers. This Agreement may be amended, modified, superseded, or
canceled, and any of the terms, representations, warranties or covenants hereof may be waived, only
by written instrument executed by both of the parties hereto or, in the case of a waiver, by the
party waiving compliance.
4.5 Captions; Counterparts, Execution. The captions in this Agreement are for
convenience only and shall not be considered a part of or affect the construction or interpretation
of any provision of this Agreement. This Agreement may be executed in one or more counterparts,
each of which shall be an original, but all of which together shall constitute one and the same
instrument.
4.6 Governing Law and Submission to Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York without regard to conflicts
of laws principles. Any legal action or proceeding in connection with this Agreement or the
performance hereof may be brought in the state and federal courts located in the Borough of
Manhattan, City, County and State of New York, and the parties hereby irrevocably submit to the
non-exclusive jurisdiction of such courts for the purpose of any such action or proceeding.
IN WITNESS WHEREOF, the Buyer and the Company have caused this Agreement to be duly
executed as of the date first above written.
| XXXXX CONTAINERSHIPS INC. | XXXXX SHIPPING INC. | |||||||
By:
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By: | |||||||
| Title: | Title: | |||||||
| Address: | Address: | |||||||
| Telecopy No.: | Telecopy No.: | |||||||
SK 26949 0001 1196051
