BUSINESS OPPORTUNITIES AGREEMENT
Exhibit
10.4
This
Business Opportunities Agreement (this “Agreement”) is entered into
on, and effective as of, November 22, 2010, between Georgios Feidakis (the
“Founder”) and Globus
Maritime Limited, a Jersey company to be domesticated into the Republic of the
Xxxxxxxx Islands (the “Company”).
RECITALS
WHEREAS,
the Founder and the Company and their respective affiliates are or in the future
may be engaged in businesses relating to dry bulk shipping; and
WHEREAS,
the Founder and the Company wish to identify the circumstances when, and the
procedures pursuant to which, Business Opportunities (as hereinafter defined)
are divided between the Founder and the Company.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
obligations hereinafter set forth, the parties hereto hereby agree as
follows:
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1.
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Corporate
Opportunities.
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a.
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The
Founder agrees to disclose all Business Opportunities and the material
facts attendant thereto, to the board of directors of the Company (the
“Board”) for
consideration by the Company.
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b.
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If
within seven (7) business days of the Founder disclosing the Business
Opportunity to the Board, the Board fails to adopt a resolution (and to
provide a copy of the same to the Founder) that provides that the Company
will use its commercial best efforts to pursue such Business Opportunity,
the Company will be deemed to have declined to pursue such Business
Opportunity, in which event the Founder shall be free to pursue it for the
Founder’s or his affiliates’ personal benefit. For the avoidance of doubt,
any Business Opportunity that the Company fails to pursue, as defined in
this clause, shall be treated as confidential and may not be disclosed by
the Company to any third party, subject to applicable laws and rules and
requirements of the U.S. Securities and Exchange Commission and any stock
exchange upon which the securities of the Company
trade.
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c.
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For
the purposes herein, “Business Opportunities”
shall mean any business opportunities available to the Founder or to any
affiliate of the Founder that he controls relating to dry bulk shipping
which may arise during the Term, as defined below in Section 6, and which
could reasonably be expected to be business opportunities that the Company
might pursue.
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2.
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Acknowledgment and
Release. The Company hereby
(i) acknowledges and agrees that except as provided in this Agreement, the
Founder shall not have any obligation to offer the Company any business
opportunity (other than a Business Opportunity) or transaction; (ii)
renounces any interest or expectancy in any permitted Business Opportunity
pursued by the Founder in accordance with this Agreement; and (iii) waives
any claim that any business opportunity, transaction or Business
Opportunity pursued by the Founder constitutes a corporate opportunity of
the Company, unless such opportunity was pursued by the Founder in
violation of this Agreement.
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3.
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Conduct of
Business. Neither the Founder or his affiliates nor a
director, officer, employee or agent of the Founder or his affiliates,
whether or not such person is also a director, officer, employee, agent or
shareholder of the Company, shall be liable to the Company or its
shareholders for breach of any fiduciary or other duty that such person
may have by reason of the Founder or his affiliates undertaking any
activity permitted in this
Agreement.
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4.
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Additional Obligations of
Founder.
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a.
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The
Founder hereby acknowledges and agrees that he and the affiliates he
controls may acquire an interest of up to five (5) per cent of the issued
ordinary share capital of a public company that carries on dry bulk
shipping activities, provided neither he nor any such affiliate is
directly or indirectly involved in the management of such
company.
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b.
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Neither
the Founder nor any affiliate he controls shall during the Term and for
six (6) months thereafter solicit any employee or officer of the Company
or its subsidiaries, being an employee of a senior capacity (with
seniority being determined by reference to an annual salary in excess of
€100,000 per annum or more).
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5.
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Other Conduct. Any conduct by the
Founder or his affiliates that does not comply with this Agreement shall
not by reason thereof void a transaction or make it voidable or be deemed
a breach of any fiduciary or other duty that may be owed to the Company,
but shall instead be governed by the Republic of the Xxxxxxxx Islands
Business Corporations Act or any other applicable
law.
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6.
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Term. This Agreement
shall expire (other than Sections 4(b), 7, 8 and 11) on the first day on
which the Founder no longer beneficially owns common shares or any other
equity representing at least thirty (30) per cent of the combined voting
power of all outstanding common shares or any other equity of the Company,
or no longer serves as a director of the Company (the “Term”).
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7.
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Governing
Law. This Agreement, except as provided for in Section 5
and any mandatory provisions of the Republic of the Xxxxxxxx Islands with
regard to the Company, shall be governed by and construed in accordance
with the substantive laws of the State of New
York.
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8.
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Arbitration. All
disputes arising out of or in connection with this Agreement shall be
finally settled by arbitration under the Rules of Arbitration of the
International Chamber of Commerce by one or more arbitrators appointed in
accordance with the said Rules. The seat of the arbitration shall be
Athens, Greece. Any award rendered by the arbitrator(s) may be recognized
and enforced by any court having jurisdiction
thereof.
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9.
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Amendments;
Waivers. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties
hereto. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such
compliance.
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2
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10.
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Entire
Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to its subject matter, and
supersedes and replaces all prior agreements and understandings of the
parties in connection with such subject
matter.
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11.
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Notices. All
notices and other communications hereunder shall be given in writing and
delivered personally, by registered or certified mail (postage prepaid,
return receipt requested), by overnight courier postage prepaid),
facsimile transmission or similar means, to the party to receive such
notices or communications at the address set forth (or such other address
as shall from time to time be designated by such party to the other party
in accordance with this Section 11.
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If
to the Founder:
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Mr.
Georgios Feidakis
c/o
Global Maritime Limited
000
Xxxxxxxxxxxx Xxxxxx, 0xx Xxxxx
000
00 Xxxxxxx
Xxxxxx
Xxxxxx
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If
to the Company:
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Globus
Maritime Limited
00
Xxxxxxxxxxxx Xxxxxx, 0xx Xxxxx
000
00 Xxxxxxx
Xxxxxx
Xxxxxx
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All such
notices and communications hereunder shall be deemed given when received, as
evidenced by the signed acknowledgement of receipt of the person to whom such
notice or communication shall have been personally delivered, the
acknowledgement of receipt returned to the sender by the applicable authorities,
the confirmation of delivery rendered by the applicable overnight courier
service or the confirmation of a successful facsimile transmission of such
notice or communication.
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12.
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Family
Relationships. Notwithstanding anything herein to the
contrary, no family member above the age of 18 shall be considered an
affiliate of the Founder, other than in connection with Section
3.
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13.
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Rights of Third Parties.
The provisions of this Agreement are enforceable solely by the parties to
this Agreement, and no shareholder of the Company or any other person
shall have the right, separate and apart from the Company, to enforce any
provision of this Agreement or to compel any party to this Agreement to
comply with the terms of this
Agreement.
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14.
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Further
Assurances. The parties hereto agree to execute and
deliver such other documents or agreements and to use commercially
reasonable efforts to take, or cause to be taken, such other actions and
to do, or cause to be done, all other things, in each case necessary to
desirable for the implementation of this Agreement, including but not
limited to executing or causing a party’s affiliate to execute an
agreement to terminate the Relationship Agreement dated May 31, 2007 among
the Company, the Founder and Xxxxxxx Trading
Limited.
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15.
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Headings. The
headings in this Agreement are for convenience of reference only and are
not intended to be a part of this Agreement or to affect the meaning or
interpretation of this Agreement.
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16.
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Counterparts. This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one
agreement.
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3
IN WITNESS WHEREOF, the Founder and
the Company have executed this Agreement on the date first written
above.
/s/ Georgios
Feidakis
Georgios
Feidakis
GLOBUS
MARITIME LIMITED
By: /s/ Xxxxxxxx
Xxxxxxxxxxxx
Name:
Xxxxxxxx Xxxxxxxxxxxx
Title:
Director
