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THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
EAGLE VENTURES LLC
A XXXXXXXX ISLANDS LIMITED LIABILITY COMPANY
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Table of Contents
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Page
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ARTICLE I DEFINED TERMS
Section 1.1 Definitions....................................................1
ARTICLE II FORMATION OF THE COMPANY
Section 2.1 Formation.....................................................13
Section 2.2 Company Name..................................................13
Section 2.3 The Certificate, etc..........................................13
Section 2.4 Term of Company...............................................13
Section 2.5 Registered Agent and Office...................................13
Section 2.6 Principal Place of Business...................................14
Section 2.7 Qualification in Other Jurisdictions..........................14
Section 2.8 Fiscal Year; Taxable Year.....................................14
ARTICLE III PURPOSE AND POWERS OF THE COMPANY
Section 3.1 Purpose.......................................................14
Section 3.2 Powers of the Company.........................................14
Section 3.3 Certain Tax Matters...........................................14
ARTICLE IV MEMBERS
Section 4.1 Powers of Members.............................................15
Section 4.2 Units Generally...............................................15
Section 4.3 Meetings of Members...........................................15
Section 4.4 Business Transactions of a Member with the Company............16
Section 4.5 No Cessation of Membership upon Bankruptcy....................17
Section 4.6 Confidentiality; Nonsolicitation; Non-Disparagement...........17
Section 4.7 Other Business for Kelso Members and Certain Members..........19
Section 4.8 Additional Members............................................19
ARTICLE V MANAGEMENT
Section 5.1 Board.........................................................21
Section 5.2 Meetings of the Board.........................................22
Section 5.3 Quorum and Acts of the Board..................................22
Section 5.4 Electronic Communications.....................................22
Section 5.5 Committees of Directors.......................................22
Section 5.6 Compensation of Directors.....................................23
Section 5.7 Resignation...................................................23
Section 5.8 Removal of Directors..........................................23
Section 5.9 Vacancies.....................................................23
Section 5.10 Directors as Agents ..........................................24
Section 5.11 Subsidiaries .................................................24
ARTICLE VI INVESTMENT REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations, Warranties and Covenants of Members..........24
Section 6.2 Additional Representations and Warranties of Management
Members, Outside Investor Members and Other Investor Members..26
Section 6.3 Additional Representations and Warranties of Xxxxx Members....27
Section 6.4 Additional Representations and Warranties of Zoullas, the
Management Members and the Outside Investor Members...........28
Section 6.5 Certain Members...............................................28
ARTICLE VII CAPITAL ACCOUNTS; CAPITAL CONTRIBUTIONS
Section 7.1 Capital Accounts..............................................28
Section 7.2 Adjustments...................................................28
Section 7.3 Initial Capital Contributions; Initial SMI Funds Advance......29
Section 7.4 Additional Capital Contributions by Xxxxx.....................29
Section 7.5 Additional Capital Contributions..............................29
Section 7.6 Negative Capital Accounts.....................................30
ARTICLE VIII POINTS
Section 8.1 Points........................................................31
Section 8.2 Ex-Management Members.........................................31
Section 8.3 Allocation of Points to Management Members upon Termination
of Employment.................................................32
Section 8.4 Nontransferability of Awards..................................34
Section 8.5 Amendment to the Points Plan..................................35
ARTICLE IX ALLOCATIONS
Section 9.1 Book Allocations of Net Profit and Net Loss...................35
Section 9.2 Special Book Allocations......................................35
Section 9.3 Tax Allocations...............................................36
ARTICLE X DISTRIBUTIONS
Section 10.1 Explanation of Terms .........................................37
Section 10.2 Distributions Generally ......................................39
Section 10.3 Distributions In Kind ........................................41
Section 10.4 No Withdrawal of Capital .....................................42
Section 10.5 Withholding ..................................................42
Section 10.6 Restricted Distributions .....................................42
Section 10.7 Tax Distributions ............................................43
Section 10.8 Eagle Bulk Shipping Advances .................................43
Section 10.9 Benchmarked Points - Catch Up Payment ........................43
ARTICLE XI BOOKS AND RECORDS
Section 11.1 Books, Records and Financial Statements ......................44
Section 11.2 Filings of Returns and Other Writings; Tax Matters Partner ...44
Section 11.3 Accounting Method ............................................45
Section 11.4 Appraisal ....................................................45
ARTICLE XII LIABILITY, EXCULPATION AND INDEMNIFICATION
Section 12.1 Liability ....................................................46
Section 12.2 Exculpation ..................................................46
Section 12.3 Fiduciary Duty ...............................................46
Section 12.4 Indemnification ..............................................46
Section 12.5 Expenses .....................................................46
Section 12.6 Severability .................................................47
ARTICLE XIII TRANSFERS OF INTERESTS
Section 13.1 Restrictions on Transfers of Interests or Special
Membership Interests by Management Members, Outside
Investor Members and Other Investor Members ..................47
Section 13.2 Estate Planning Transfers; Transfers upon Death of a
Management Member, Outside Investor Members or Other
Investor Members .............................................47
Section 13.3 Effect of Assignment .........................................48
Section 13.4 Overriding Provisions ........................................48
Section 13.5 Put Rights with respect to Interests and Special
Membership Interests Owned by Zoullas and the Outside
Investor Members .............................................49
Section 13.6 Involuntary Transfers ........................................51
Section 13.7 Assignment by the Company ....................................52
Section 13.8 Substitute Members ...........................................52
Section 13.9 Release of Liability .........................................52
Section 13.10 Tag-Along and Drag-Along Rights; Initial Members
Participation Rights..........................................52
Section 13.11 Initial Public Offering.......................................55
Section 13.12 Right of First Offer..........................................55
ARTICLE XIV DISSOLUTION, LIQUIDATION AND TERMINATION
Section 14.1 Dissolving Events ............................................56
Section 14.2 Dissolution and Winding-Up ...................................56
Section 14.3 Distributions in Cash or in Kind .............................57
Section 14.4 Termination ..................................................58
Section 14.5 Claims of the Members ........................................58
ARTICLE XV MISCELLANEOUS
Section 15.1 Notices ......................................................58
Section 15.2 Securities Act Matters .......................................59
Section 15.3 Headings; Interpretation .....................................59
Section 15.4 Entire Agreement .............................................59
Section 15.5 Counterparts .................................................59
Section 15.6 Governing Law; Attorneys' Fees; Forum; Jurisdiction;
Service of Process ...........................................59
Section 15.7 Waiver of Jury Trial .........................................60
Section 15.8 Waiver of Partition ..........................................60
Section 15.9 Severability .................................................60
Section 15.10 Further Actions...............................................60
Section 15.11 Amendments....................................................60
Section 15.12 Outside Investor Members Representative; Power of
Attorney .....................................................61
Section 15.13 Power of Attorney.............................................61
Section 15.14 Fees and Expenses.............................................62
EXHIBITS
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Exhibit A Joinder Agreement
SCHEDULES
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Schedule A Initial Capital Commitments by Xxxxx Members, Management Members,
Outside Investor Members and Other Investor Members
Schedule B Management Points
Schedule C Initial Directors
Schedule D Post IPO Performance Percentages - Definitions
Schedule E Special Membership Interests
Schedule F Vested IPO Percentages for Management Members
Schedule 10.9 Benchmarked Points
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This Third Amended and Restated Limited Liability Company Agreement of
Eagle Ventures LLC, a Xxxxxxxx Islands limited liability company (the
"Company"), is made as of January 28, 2006 by and among the individuals or
entities listed under the heading "Xxxxx Members" on Schedule A hereto (each a
"Kelso Member" and collectively, the "Xxxxx Members"), Xxxxxxxxx Xxxxxxx
("Zoullas"), Xxxxxx X. Xxxxx ("Xxxxx"), Xxxxxx Xxxxxxx ("Xxxxxxx"), Xxxx
Xxxxxxxx ("Xxxxxxxx"), Xxxxx Xxxxxxx ("Xxxxxxx"), Intercontinental Shipping and
Trading Corp. ("IST"), Xxxxx Xxxxxxx ("Xxxxx"), Xxxxxx X. Xxxxxxx ("Xxxxxxx"),
Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxx Xxxxx ("Xxxxx"), and Magnetite Asset
Investors III L.L.C. ("Magnetite," and, together with the Kelso Members,
Xxxxxxx, Xxxxx, Thouret, Ginsberg, IST, Xxxxx, Xxxxxxx, Xxxxxxxx and Xxxxx, the
"Initial Members") and such other Persons as may become Members of the Company
after the date hereof in accordance with Section 4.8 of this Agreement. Xxxxxxx,
Xxxxx, Thouret, Xxxxxxxx and Xxxxxxx and such other employees of the Company or
any Subsidiary of the Company as shall become members of the Company after the
date hereof are referred to as the "Management Members." IST, Xxxxx, Xxxxxxx and
Xxxxxxxx are collectively referred to as the "Outside Investor Members." Xxxxx
and Magnetite are collectively referred to as the "Other Investor Members." The
Xxxxx Members, Management Members, Outside Investor Members and Other Investor
Members are collectively referred to herein as the "Members."
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions.
"Accounting Period" means, for the first Accounting Period, the period
commencing on the day after the Initial Capital Contribution Date and ending on
the next Adjustment Date. All succeeding Accounting Periods shall commence on
the day after an Adjustment Date and end on the next Adjustment Date.
"Additional Capital Contribution Event" has the meaning set forth in
Section 7.4(a) of this Agreement.
"Additional Member" has the meaning set forth in Section 4.8(a) of this
Agreement.
"Adjusted Aggregate Post IPO Performance Percentage" has the meaning set
forth in Section 10.1(a)(ii) of this Agreement.
"Adjusted Carry Percentage" means, with respect to any Management Member,
the product of (x) such Management Member's Carry Percentage multiplied by (y)
the Carry Adjustment Factor.
"Adjusted Total Service Percentage" shall have the meaning set forth in
Section 10.1(a)(i) of this Agreement.
"Adjusted Total Vested IPO Percentage" has the meaning set forth in Section
10.1(a)(iii) of this Agreement.
"Adjusted Total Vested Service Percentage" shall have the meaning set forth
in Section 10.1(a)(i) of this Agreement.
"Adjustment Date" means the last day of each fiscal year of the Company or
any other date determined by the Board, in its sole discretion, as appropriate
for an interim closing of the Company's books.
"Affiliate" means, with respect to a specified Person, any Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with the specified Person. As used in
this definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by
contract or otherwise; provided, that, for purposes of this Agreement, the
Company shall not be considered an Affiliate of any Kelso Member or any
affiliate or portfolio company of any Xxxxx Member.
"Aggregate Benchmark Withholdings" has the meaning set forth in Section
10.9 of this Agreement.
"Aggregate Investment" has the meaning set forth in Section 10.2(c) of this
Agreement.
"Aggregate Post IPO Performance Percentage" has the meaning set forth in
Section 10.1(a)(ii) of this Agreement.
"Aggregate Retainable Service Points" has the meaning set forth in Section
8.3(d) of this Agreement.
"Agreement" means this Limited Liability Company Agreement of the Company,
as this agreement may be amended, modified, supplemented or restated from time
to time after the date hereof.
"Appraisal" has the meaning set forth in Section 11.4 of this Agreement.
"Appraisal Date" has the meaning set forth in Section 11.4 of this
Agreement.
"Appraiser" has the meaning set forth in Section 11.4 of this Agreement.
"Benchmark Amount" has the meaning set forth in Section 10.1(b) of this
Agreement.
"Board" has the meaning set forth in Section 5.1(a) of this Agreement.
"Bulk Advance" has the meaning set forth in Section 10.8 of this Agreement.
"Capital Account" has the meaning set forth in Section 7.1 of this
Agreement.
"Capital Contribution" means, for any Member, the total amount of cash and
the Fair Market Value of any property contributed to the Company by such Member.
For the avoidance of doubt, Special Membership Interest Funds shall not be
considered Capital Contributions.
"Carry Adjustment Factor" means a fraction, the numerator of which is
$125,000,000, and the denominator of which is the aggregate value of all Capital
Contributions and advances of Special Membership Interest Aggregate Funds made
to the Company since January 31, 2005 (other than Capital Contributions or
advances of Special Membership Interest Funds not made to the Company for good
xxxxx xxxx fide Company purposes); provided that in no event shall the Carry
Adjustment Factor be more than 1.
"Carry Percentage" has the meaning set forth in Section 10.1 of this
Agreement.
"Carrying Value" means with respect to any Interest of any Management
Member, Outside Investor Member or Other Investor Member purchased by the
Company, the value equal to the Capital Contribution made by the selling
Management Member, Outside Investor Member or Other Investor Member in respect
of any such Interest plus simple interest at a rate per annum equal to 6%, which
shall be deemed to be the carrying cost, from the date of such Capital
Contribution by such Management Member, Outside Investor Member or Other
Investor Member through the date of such purchase by the Company, less the
amount of distributions made in respect of such Interest (to the extent the
amount of such distributions does not exceed simple interest).
"Catch Up Payment" has the meaning set forth in Section 10.9 of this
Agreement.
"Certificate" means the Certificate of Formation of the Company and any and
all amendments thereto and restatements thereof filed on behalf of the Company
pursuant to the Xxxxxxxx Islands Act with the Republic of the Xxxxxxxx Islands
Registrar of Corporations.
"Code" means the U.S Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the recitals to this Agreement.
"Compensation Committee" has the meaning set forth in Section 5.5 of this
Agreement.
"Confidential Information" has the meaning set forth in Section 4.6(a) of
this Agreement.
"Covered Person" means a current or former Member or Director, an Affiliate
of a current or former Member or Director, any officer, director, shareholder,
partner, member, employee, representative or agent of a current or former Member
or Director or any of their respective Affiliates, or any current or former
officer, employee or agent of the Company or any of its Affiliates.
"Deficit" has the meaning set forth in Section 9.2(a) of this Agreement.
"Director" has the meaning set forth in Section 5.1(a) of this Agreement.
"Disability" means with respect to a Management Member, the termination of
the employment of any Management Member by the Company or any Subsidiary of the
Company that employs such individual (or by the Company on behalf of any such
Subsidiary) as a result of such Management Member's incapacity due to reasonably
documented physical or mental illness that shall have prevented such Management
Member from performing his or her duties for the Company on a full-time basis
for more than six months and within 30 days after written notice has been given
to such Management Member, such Management Member shall not have returned to the
full time performance of his or her duties, in which case the date of
termination shall be deemed to be the last day of the aforementioned 30-day
period, provided that in the case of any Management Member who, as of the date
of determination, is party to an effective services, severance or employment
agreement with the Company or any of its Subsidiaries, "Disability" shall have
the meaning, if any, specified in such agreement.
"Distributable Amounts" has the meaning set forth in Section 10.2 of this
Agreement.
"Drag-Along Rights" has the meaning set forth in Section 13.10(b) of this
Agreement.
"Eagle Shipping" means Eagle Shipping International (USA) LLC, a Xxxxxxxx
Islands Limited Liability Company.
"Economic Interest" means a Member's or Ex-Management Member's share of the
profits and losses of the Company and such Member's or Ex-Management Member's
right to receive distributions of the Company's assets, but shall not include
the right to vote on or participate in any decision or action of or by the
Members or any right to receive information concerning the business and affairs
of the Company.
"Ex-Management Member" has the meaning set forth in Section 8.2 of this
Agreement.
"Exit Event" shall mean a transaction or series of transactions (other than
an Initial Public Offering):
(a) involving the sale, transfer or other disposition by the Kelso Members
to one or more Persons that are not, immediately prior to such sale,
Affiliates of the Company or any Kelso Member, of all or substantially
all of both the Interests and Special Membership Interests of the
Company beneficially owned by the Xxxxx Members as of the date of such
transaction; or
(b) involving the sale, Transfer or other disposition of all or
substantially all of the assets of the Company and its Subsidiaries,
taken as a whole, to one or more Persons that are not, immediately
prior to such sale, Transfer or other disposition, Affiliates of the
Company or any Xxxxx Member.
"Fair Market Value" means, as of any date,
(a) for purposes of determining the value of any property contributed to
or distributed by the Company, (i) in the case of publicly-traded
securities, the average of their last sales prices on the applicable
trading exchange or quotation system on each trading day during the
five trading-day period ending on such date and (ii) in the case of
any other property, the fair market value of such property, as
determined in good faith by the Board, or
(b) for purposes of determining the value of any Member's Interest or
Special Membership Interest in connection with Section 13.5 ("Put
Rights"), Section 13.6 ("Involuntary Transfers") or for other purposes
contemplated in this Agreement, (i) the fair market value of such
Interest as reflected in the most recent Appraisal without additional
premiums for control or discounts for minority interests or
restrictions on transfer or (ii) in the event no such Appraisal exists
with respect thereto or the Appraisal Date is more than one year prior
to the date of determination or the Board otherwise determines in good
faith that the use of such Appraisal is inappropriate, the fair market
value of such Interest or Special Membership Interest, as applicable,
as determined in good faith by the Board;
provided that, in the event fair market value is to be determined by
the Board hereunder and such determination is disputed in good faith
on reasonable grounds by a majority of the Members directly affected
by such determination, then fair market value shall be finally
determined by arbitration in New York City in accordance with the
commercial rules of the American Arbitration Association, and any such
determination by the arbitration panel shall be final and binding (the
expenses of such arbitration to be borne equally by the Company, on
the one hand, and the affected disputing Members, on the other hand).
"Financing Documents" has the meaning set forth in Section 13.5(b) of this
Agreement.
"Xxxxxxxx" has the meaning set forth in the recitals to this Agreement.
"Xxxxx" has the meaning set forth in the recitals to this Agreement.
"Initial Capital Commitment" means, with respect to any Member, the amount
as set forth opposite the name of such Member on Schedule A hereto under the
heading "Initial Capital Commitment."
"Initial Capital Contribution" means, for any Member, the amount of cash
and the Fair Market Value of any property contributed to the Company by such
Member on or prior to the Initial Capital Contribution Date.
"Initial Capital Contribution Date" shall mean May 11, 2005.
"Initial SMI Funds Advance" means, for any Member, the amount of Special
Membership Interest Funds advanced to the Company by such Member on or prior to
the Initial Capital Contribution Date.
"Initial Members" has the meaning set forth in the recitals to this
Agreement.
"Initial Public Offering" or "IPO" means the first underwritten public
offering of the common stock of a Subsidiary of the Company to the general
public through a registration statement filed with the Securities and Exchange
Commission that covers (together with prior effective registrations) (i) not
less than 25% of the then outstanding shares of common stock of such Subsidiary
of the Company on a fully diluted basis or (ii) shares of such Subsidiary of the
Company that will be traded on any of the New York Stock Exchange, the American
Stock Exchange or the National Association of Securities Dealers Automated
Quotation System after the close of any such general public offering.
"Interest" means a Member's limited liability interest in the Company
(other than any Special Membership Interest), including such Member's Economic
Interest, the right, if any, to vote on or participate in any decision or action
of or by the Members (as such voting rights are represented by such Member's
Units) and the right to receive information concerning the business and affairs
of the Company, in each case to the extent provided for herein or as otherwise
required by the Xxxxxxxx Islands Act.
"Involuntary Transfer" has the meaning set forth in Section 13.6 of this
Agreement.
"Involuntary Transferee" has the meaning set forth in Section 13.6 of this
Agreement.
"IST" has the meaning set forth in the recitals to this Agreement.
"Xxxxx" has the meaning set forth in the recitals to this Agreement.
"Xxxxxxx" has the meaning set forth in the recitals to this Agreement.
"Xxxxx" means KIA VII together with KEP VI.
"Xxxxx Investment Multiple" has the meaning set forth on Schedule D to this
Agreement.
"Xxxxx IRR" has the meaning set forth on Schedule D to this Agreement.
"Xxxxx Member" has the meaning set forth in the recitals to this Agreement.
"Xxxxx Restriction Period" has the meaning set forth in Section 13.10(b) of
this Agreement.
"Xxxxx Threshold Date" shall be deemed to occur at such time as the Xxxxx
Total Invested Capital has reached and amount equal to $126,681,771.
"Xxxxx Total Invested Capital" means the aggregate amount of all Capital
Contributions and advances of Special Membership Interest Aggregate Funds by the
Xxxxx Members.
"KEP VI" means KEP VI, LLC, a Delaware limited liability company.
"KIA VII" means Xxxxx Investment Associates VII, L.P., a Delaware limited
partnership.
"Management Member" has the meaning set forth in the recitals to this
Agreement. A Management Member shall be deemed not to be a "manager" within the
meaning of the Xxxxxxxx Islands Act (except to the extent Section 5.1(b)(i) of
this Agreement applies).
"Majority in Interest" means the holders of a majority of the Units held by
Members having the right to vote at a meeting of the Members.
"Magnetite" has the meaning set forth in the recitals to this Agreement.
"Xxxxx" has the meaning set forth in the recitals to this Agreement.
"Xxxxxxxx Islands Act" means the Xxxxxxxx Islands Limited Liability Company
Act of 1996 (SS.22.1 et seq of the Republic of the Xxxxxxxx Islands Associations
Law), as the same may be amended from time to time.
"Maximum Amount" has the meaning set forth in Section 13.5(c) of this
Agreement.
"Member" has the meaning set forth in the recitals to this Agreement and
includes any Person admitted as an additional or substitute Member of the
Company pursuant to this Agreement.
"Net Profits" and "Net Losses" means, with respect to any Accounting
Period, net income or net loss of the Company for such Accounting Period,
determined in accordance with ss. 703(a) of the Code, including any items that
are separately stated for purposes of ss. 702(a) of the Code, as determined in
accordance with federal income tax accounting principles with the following
adjustments:
(a) any income of the Company that is exempt from United States federal
income tax shall be included as income;
(b) any expenditures of the Company described in ss. 705(a)(2)(B) of the
Code or treated as expenditures pursuant to ss. 1.704-1(b)(2)(iv)(i)
of the Treasury Regulations shall be treated as current expenses;
(c) any items of income, gain, loss or deduction specially allocated
pursuant to this Agreement, including pursuant to Section 9.2, shall
be excluded from the determination of Net Profit and Net Loss; and
(d) treating as an item of gain (loss) the excess (deficit), if any, of
the gross fair market value of property distributed in such Accounting
Period over (under) the amount at which such property was carried on
the books of the Company.
"Nordhaus" has the meaning set forth in the recitals to this Agreement.
"Other Investor Members" has the meaning set forth in the recitals to this
Agreement.
"Outside Investor Members" has the meaning set forth in the recitals to
this Agreement.
"Partnership Minimum Gain" shall have the meaning set forth in sections
1.704-2(b)(2) and 1.704-2(d) of the Treasury Regulations.
"Performance Factor" has the meaning set forth on Schedule D to this
Agreement.
"Performance Percentage" has the meaning set forth in Section 10.1(a)(ii)
of this Agreement.
"Performance Points" has the meaning set forth in Section 8.1(a) of this
Agreement.
"Person" means any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability company,
or other legal entity or organization.
"Points" has the meaning set forth in Section 8.1(a) of this Agreement.
"Post IPO Awarded Performance Points" has the meaning set forth in Section
10.1(a)(ii) of this Agreement.
"Post IPO Performance Percentage" has the meaning set forth in Section
10.1(a)(ii) of this Agreement.
"Post IPO Remaining Percentage" has the meaning set forth in Section
10.1(a)(ii) of this Agreement.
"Put Notice" has the meaning set forth in Section 13.5(a) of this
Agreement.
"Put Rights" has the meaning set forth in Section 13.5(a) of this
Agreement.
"Retainable Service Points" has the meaning set forth in Section 8.3(d) of
this Agreement.
"Resignation for Good Reason" means a voluntary termination of a Member's
employment with the Company or any Subsidiary of the Company that employs such
individual by such Member of his employment with the Company or any such
Subsidiary as a result of either of the following:
(a) without the Member's prior written consent, a significant reduction by
the Company or any such Subsidiary of his or her current salary, other
than any such reduction which is part of a general salary reduction or
other concessionary arrangement affecting all employees or affecting
the group of employees of which the Member is a member (after receipt
by the Company of written notice from such Member and a 20-day cure
period); or
(b) the taking of any action by the Company or any such Subsidiary that
would substantially diminish the aggregate value of the benefits
provided him or her under the Company's or such Subsidiary's accident,
disability, life insurance and any other employee benefit plans in
which he or she was participating on the date of his or her execution
of this Agreement, other than any such reduction which is (i) required
by law, (ii) implemented in connection with a general concessionary
arrangement affecting all employees or affecting the group of
employees of which the Member is a member, (iii) generally applicable
to all beneficiaries of such plans (after receipt by the Company of
written notice and a 20-day cure period) or (iv) in accordance with
the terms of any such plan.
or, if such Member is a party to a services, severance or employment agreement
with the Company or a Subsidiary of the Company, the meaning as set forth in
such services or employment agreement.
"Restriction Period" means, with respect to any Management Member, a period
commencing on the date hereof and ending on the later of (i) the date on which a
Management Member or any transferee thereof permitted under Section 13.2 hereof,
directly or indirectly, no longer retains any equity interest in the Company and
(ii) the termination of any severance payable pursuant to any employment,
termination or severance agreement, if any, entered into between such Management
Member and the Company or any Subsidiary of the Company.
"Retirement" means the termination of a Member's employment on or after the
date the Member attains age 65. Notwithstanding the foregoing, (i) with respect
to any Member who is a party to a services or employment agreement with the
Company or a Subsidiary of the Company, "Retirement" shall have the meaning, if
any, specified in such Member's services, severance or employment agreement and
(ii) in the event a Member whose employment with the Company or a Subsidiary of
the Company terminates due to Retirement continues to serve as a Director of or
a consultant to the Company or a Subsidiary of the Company, such participant's
employment with the Company or a Subsidiary of the Company shall not be deemed
to have terminated for purposes of Sections 8.3 and 13.5, until the date as of
which such Member's services as a Director of or consultant to the Company or a
Subsidiary of the Company shall have also terminated, at which time the Member
shall be deemed to have terminated employment due to retirement.
"ROFO" has the meaning set forth in Section 13.12(a) of this Agreement.
"ROFO Notice" has the meaning set forth in Section 13.12(a) of this
Agreement.
"Rule 144" has the meaning set forth in Section 6.1(b) of this Agreement.
"Securities Act" means the Securities Act of 1933 as amended from time to
time.
"Service Percentage" has the meaning set forth in Section 10.1(a)(i) of
this Agreement.
"Service Points" has the meaning set forth in Section 8.1(a) of this
Agreement.
"Ship Sale" has the meaning set forth in Section 13.12(a) of this
Agreement.
"Special Interest Payment" has the meaning set forth in Section 10.8 of
this Agreement.
"Special Membership Interest" means, with respect to any Member, the
special debt membership interest in the Company issued to such Member in the
amount set forth on Schedule E, as such schedule may be amended from time to
time (including to account for any reduction in the Special Membership Interest
by virtue of Section 10.8).
"Special Membership Interest Aggregate Funds" means, with respect to any
Member, aggregate Special Membership Interest Funds advanced by such Member in
respect of all Special Membership Interests (whether or not currently
outstanding) issued to such Member.
"Special Membership Interest Funds" means, with respect to any particular
advance by a Member, cash funds advanced by a Member to the Company in exchange
for Special Membership Interests.
"Stub Performance Percentage Allocation" has the meaning set forth in
Section 10.1(a)(ii) of this Agreement.
"Subject Members" means the Management Members, Outside Investor Members
and any Additional Members.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture or other legal entity of which such Person (either
alone or through or together with any other Subsidiary) (a) owns, directly or
indirectly, fifty percent (50%) or more of the stock, partnership interests or
other equity interests which are generally entitled to vote for the election of
the board of directors or other governing body of such corporation, partnership,
joint venture of other legal entity; or (b) possesses, directly or indirectly,
control over the direction of management or policies of such corporation,
partnership, joint venture or other legal entity (whether through ownership of
voting securities, by agreement or otherwise).
"Subsidiary Board" has the meaning set forth in Section 5.11(a) of this
Agreement.
"Tag-Along Rights" has the meaning set forth in Section 13.10(a) of this
Agreement.
"Tax Matters Partner" has the meaning set forth in Section 11.2(b) of this
Agreement.
"Termination for Cause" means a termination of a Member's employment by the
Company or any Subsidiary of the Company that employs such individual (or by the
Company on behalf of any such Subsidiary), provided that any of the events
described below that give rise to such termination shall not have been cured
within 30 days after a Member receives written notice of termination from the
Company, due to such Member's (i) refusal or neglect to perform substantially
his or her employment-related duties, (ii) dishonesty, incompetence, willful
misconduct or breach of fiduciary duty, (iii) indictment for, conviction of, or
entering a plea of guilty or no lo contedere to, a crime constituting a felony
or his or her willful violation of any law, rule, or regulation (other than a
traffic violation or other offense or violation outside of the course of
employment which in no way adversely affects the Company and its Subsidiaries or
its reputation or the ability of the Member to perform his or her
employment-related duties or to represent the Company or any Subsidiary of the
Company that employs such Management Member) or (iv) material breach of any
written covenant or agreement with the Company or any of its Subsidiaries not to
disclose any information pertaining to the Company or such Subsidiary or not to
compete or interfere with the Company or such Subsidiary, provided that, in the
case of any Member who, as of the date of determination, is party to an
effective services, severance or employment agreement with the Company or a
Subsidiary of the Company, "Termination for Cause" shall have the meaning, if
any, specified in such agreement.
"Third Party" shall mean, in respect of any Transfer, one or more Persons
other than the Company, any Member or any of their respective Affiliates.
"Thouret" has the meaning set forth in the recitals to this Agreement.
"Total Available Post IPO Remaining Performance Percentage" has the meaning
set forth on Schedule D to this Agreement.
"Total Performance Pool Points" has the meaning set forth in Section
10.1(a)(ii) of this Agreement.
"Total Service Percentage" shall have the meaning set forth in Section
10.1(a)(i) of this Agreement.
"Total Service Pool Points" shall have the meaning set forth in Section
10.1(a)(i) of this Agreement.
"Total Stub Performance Percentage" has the meaning set forth on Schedule D
to this Agreement.
"Total Vested IPO Percentage" has the meaning set forth in Section
10.1(a)(iii) of this Agreement.
"Transfer" means to directly or indirectly transfer, sell, pledge,
hypothecate or otherwise dispose of.
"Transferor Member" has the meaning set forth in Section 13.10(d).
"Treasury Regulations" means the Regulations of the Treasury Department of
the United States issued pursuant to the Code.
"Trigger Achieving Balance" has the meaning set forth in Section 10.2(b) of
this Agreement.
"Trigger Multiple" means the Xxxxx Investment Multiple set forth on
Schedule 10.9.
"Unallocated Points" has the meaning set forth in Section 8.1(a) of this
Agreement.
"Units" has the meaning set forth in Section 4.2 of this Agreement.
"Unreturned Benchmark Withholdings" shall have the meaning set forth in
Section 10.9 of this Agreement.
"Unreturned Capital" means, with respect to any Member on any date of
determination, an amount equal to the excess, if any, of (x) the aggregate
amount of Capital Contributions made by such Member on or after the date of this
Agreement over (y) the aggregate amount of distributions made by the Company on
or after the date of this Agreement that constitute a return of the Capital
Contributions of such Member pursuant to Section 10.2. For the avoidance of
doubt, amounts advanced as Special Membership Interest Funds shall not be
included under clause (x) and amounts paid pursuant to Section 10.8 in respect
of Special Membership Interests shall not be included under clause (y).
"Vested IPO Percentage" has the meaning set forth in Section 10.1(a)(iii)
of this Agreement.
"Vested Service Factor" shall have the meaning set forth in Section
10.1(a)(i) of this Agreement.
"Zoullas" has the meaning set forth in the recitals to this Agreement.
ARTICLE II
FORMATION OF THE COMPANY
Section 2.1 Formation. The Company was formed upon the filing of the
Certificate pursuant to the Xxxxxxxx Islands Act with the Republic of the
Xxxxxxxx Islands Registrar of Corporations on January 27, 2005.
Section 2.2 Company Name. The name of the Company shall be Eagle Ventures
LLC. The business of the Company may be conducted under such other names as the
Board may from time to time designate, provided that the Company complies with
all relevant state laws relating to the use of fictitious and assumed names.
Section 2.3 The Certificate, etc. Xxxxxx X. Xxxxx, Xx. is hereby designated
as an authorized person within the meaning of the Xxxxxxxx Islands Act and shall
be authorized to execute, deliver and file (or direct the execution, delivery
and filing of) any necessary amendments to the Certificate with the Republic of
the Xxxxxxxx Islands Registrar of Corporations. Each Director is hereby
authorized to execute, deliver, file and record all such other certificates and
documents, including amendments to or restatements of the Certificate, and to do
such other acts as may be appropriate to comply with all requirements for the
formation, continuation and operation of a limited liability company, the
ownership of property, and the conduct of business under the laws of the
Xxxxxxxx Islands and any other jurisdiction in which the Company may own
property or conduct business.
Section 2.4 Term of Company. The term of the Company commenced on the date
of the initial filing of the Certificate with the Republic of the Xxxxxxxx
Islands Registrar of Corporations. The Company may be terminated in accordance
with the terms and provisions hereof, and shall continue unless and until
dissolved as provided in Article XIV. The existence of the Company as a separate
legal entity shall continue until the cancellation of the Certificate as
provided in the Xxxxxxxx Islands Act.
Section 2.5 Registered Agent and Office. The Company's registered agent in
the Xxxxxxxx Islands shall be The Trust Company of the Xxxxxxxx Islands, Inc.,
and office of such registered agent shall be Trust Company Complex, Xxxxxxxx
Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx Xxxxxxx XX 00000. The Board may
designate another registered agent and/or registered office from time to time in
accordance with the then applicable provisions of the Xxxxxxxx Islands Act and
any other applicable laws.
Section 2.6 Principal Place of Business. The principal place of business of
the Company shall be located at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The
location of the Company's principal place of business may be changed by the
Board from time to time in accordance with the then applicable provisions of the
Xxxxxxxx Islands Act and any other applicable laws.
Section 2.7 Qualification in Other Jurisdictions. Any authorized Person of
the Company shall execute, deliver and file any certificates (and any amendments
and/or restatements thereof) necessary for the Company to qualify to do business
in a jurisdiction in which the Company may wish to conduct business.
Section 2.8 Fiscal Year; Taxable Year. The fiscal year of the Company for
financial accounting purposes shall end on December 31. The taxable year of the
Company for federal, state and local income tax purposes shall end on December
31.
ARTICLE III
PURPOSE AND POWERS OF THE COMPANY
Section 3.1 Purpose. The purposes of the Company are, and the nature of the
business to be conducted and promoted by the Company is, engaging in any lawful
act or activity for which limited liability companies may be formed under the
Xxxxxxxx Islands Act and engaging in all acts or activities as the Company deems
necessary, advisable or incidental to the furtherance of the foregoing.
Section 3.2 Powers of the Company. The Company shall have the power and
authority to take any and all actions that are necessary, appropriate,
advisable, convenient or incidental to or for the furtherance of the purposes
set forth in Section 3.1.
Section 3.3 Certain Tax Matters. The Members agree that, pursuant to
Treasury Regulation Section 301.7701-3, the Company shall elect to be classified
as a partnership for U.S. federal income tax purposes and under all
corresponding provisions of state or local income tax law and that Zoullas is
hereby authorized, in the name of and on behalf of the Company and each of the
Members, to sign and file with the U.S. Internal Revenue Service an Entity
Classification Election (IRS Form 8832) electing to have the Company classified
as a partnership for U.S. federal income tax purposes retroactive to the date of
formation of the Company, and any such action heretofore taken by Zoullas is
hereby ratified, confirmed and approved in all respects. The Company and the
Board shall not permit the registration or listing of interests in the Company
on an "established securities market," as such term is used in Treasury
Regulations section 1.7704-1.
ARTICLE IV
MEMBERS
Section 4.1 Powers of Members. The Members shall have the power to exercise
any and all rights or powers granted to the Members pursuant to the express
terms of this Agreement. The approval or consent of the Members shall not be
required in order to authorize the taking of any action by the Company unless
and then only to the extent that (i) this Agreement shall expressly provide
therefor, (ii) such approval or consent shall be required by non-waivable
provisions of the Xxxxxxxx Islands Act or (iii) the Board shall determine that
obtaining such approval or consent would be appropriate or desirable. The
Members, as such, shall have no power to bind the Company.
Section 4.2 Units Generally. The right of a Member to vote in its capacity
as a member of the Company shall be represented by membership units (the
"Units"). Unless otherwise determined by the Board, each Member shall receive
one Unit for each dollar of such Member's Capital Contribution. The number of
Units of each Member shall be set forth on Schedule A. Notwithstanding anything
to the contrary, Special Membership Interests shall not have voting rights.
Section 4.3 Meetings of Members.
(a) Meetings; Notice of Meetings. Meetings of the Members, including any
special meeting, may be called by (i) the Board from time to time, (ii) any
Member, or Members, holding 25% or more of the Units or (iii) Zoullas so long as
he is Chief Executive Officer of Eagle Shipping and a Member of the Company.
Notice of any such meeting shall be given to all Members not less than three nor
more than 30 business days prior to the date of such meeting and shall state the
location, date and hour of the meeting and, in the case of a special meeting,
the nature of the business to be transacted. Meetings shall be held at the
location at the date and hour set forth in the notice of the meeting.
(b) Waiver of Notice. No notice of any meeting of Members need be given to
any Member who submits a signed waiver of notice, whether before or after the
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Members need be specified in a written waiver
of notice. The attendance of any Member at a meeting of Members shall constitute
a waiver of notice of such meeting, except when the Member attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
(c) Quorum. Except as otherwise required by law or by the Certificate, the
presence in person or by proxy of the holders of record of a Majority in
Interest shall constitute a quorum for the transaction of business at such
meeting.
(d) Voting. If the Board has fixed a record date, every holder of record of
Units entitled to vote at a meeting of Members or to consent in writing in lieu
of a meeting of Members shall be entitled to one vote for each such Unit
outstanding in such Member's name at the close of business on such record date.
If no record date has been so fixed, then every holder of record of such Units
entitled to vote at a meeting of Members shall be entitled to one vote for each
Unit outstanding in his name on the close of business on the day next preceding
the day on which notice of the meeting is given or the first consent in respect
of the applicable action is executed and delivered to the Company, or, if notice
is waived, at the close of business on the day next preceding the day on which
the meeting is held. Except as otherwise required by applicable law, the
Certificate or this Agreement, the vote of a majority of the Units represented
in person or by proxy at any meeting at which a quorum is present shall be
sufficient for the transaction of any business at such meeting.
(e) Proxies. Each Member may authorize any Person to act for such Member by
proxy on all matters in which a Member is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. Every
proxy must be signed by the Member or such Member's attorney-in-fact. No proxy
shall be valid after the expiration of three years from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the Member executing it unless otherwise provided in such proxy, provided,
that such right to revocation shall not invalidate or otherwise affect actions
taken under such proxy prior to such revocation.
(f) Organization. Each meeting of Members shall be conducted by such Person
as the Board may designate.
(g) Action Without a Meeting. Unless otherwise provided in this Agreement,
any action which may be taken at any meeting of the Members may be taken without
a meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by a Majority in Interest.
Prompt notice of the taking of the action without a meeting by less than
unanimous written consent shall be given to those Members who have not consented
in writing.
Section 4.4 Business Transactions of a Member with the Company. Subject to
prior approval of the Board, a Member may lend money to, borrow money from, act
as surety or endorser for, guarantee or assume one or more specific obligations
of, provide collateral for, or transact any other business with the Company,
provided that any such transaction pursuant to any agreement entered into after
the date hereof shall be approved by a majority of the non-interested Directors.
Section 4.5 No Cessation of Membership upon Bankruptcy. A Person shall not
cease to be a Member of the Company upon the happening, with respect to such
Person, of any of the events specified in Section 21 of the Xxxxxxxx Islands
Act.
Section 4.6 Confidentiality; Nonsolicitation; Non-Disparagement. The
covenants and restrictions contained in this Section 4.6 shall be in addition to
and not in lieu of any covenants or restrictions applying to any Member pursuant
to any employment, severance or services agreement between such Member and the
Company or any of its Subsidiaries.
(a) Confidentiality; Tax Information. Without the prior written consent of
a majority of the Board, except to the extent required by law, rule, regulation
or court order, each Subject Member shall not disclose any trade secrets,
customer lists, drawings, designs, marketing plans, sales plans, management
organization information (including data and other information relating to
members of the Board or management), operating policies or manuals, business
plans, financial records or other financial, commercial, business or technical
information relating to the Company or any of its Subsidiaries or information
designated as confidential or proprietary that the Company or any of its
Subsidiaries may receive belonging to suppliers, customers or others who do
business with the Company or any of its Subsidiaries (collectively,
"Confidential Information") to any third person unless such Confidential
Information has been previously disclosed to the public by the Company or is in
the public domain (other than by reason of such Subject Member's breach of this
Section 4.6(a)). Notwithstanding anything to the contrary herein or contained in
any other materials relating to an investment in the Company, each Subject
Member (and each employee, representative, or other agent of the foregoing) may
disclose to any and all persons, without limitation of any kind, the tax
treatment and any facts that may be relevant to the tax structure of the Company
and its Subsidiaries, provided, however, that no Subject Member (and no
employee, representative, or other agent thereof) shall disclose any other
information that is not relevant to understanding the tax treatment and tax
structure of the Company and its Subsidiaries (including the identity of any
Subject Member and any information that could lead another to determine the
identity of any Subject Member), or any other information to the extent that
such disclosure could reasonably result in a violation of any applicable
securities law.
(b) Non-Solicitation of Employees. Except as permitted under any
employment, severance or services agreement between such Subject Member and the
Company or any of its Subsidiaries, during the Restriction Period, no Subject
Member shall directly or indirectly induce any employee of the Company or any of
its Subsidiaries to terminate employment with such entity, and no Subject Member
shall directly or indirectly, either individually or as owner, agent, employee,
consultant or otherwise, employ, offer employment to or otherwise interfere with
the employment relationship of the Company or any of its Subsidiaries with any
person who is or was employed by the Company or such Subsidiary unless, at the
time of such employment, offer or other interference, such person shall have
ceased to be employed by such entity for a period of at least six months,
provided that, nothing in this Section 4.6(b) shall preclude such Subject Member
from placing advertisements during the Restriction Period in periodicals of
general circulation soliciting persons for employment or from employing any
person who comes to such Subject Member solely in response to such
advertisements.
(c) Non-Solicitation of Clients. Except as permitted under any employment,
severance or services agreement between such Subject Member and the Company or
any of its Subsidiaries, during the Restriction Period, no Subject Member shall
solicit or otherwise attempt to establish for himself or any other person, firm
or entity any business relationship with any person, firm or entity which is, or
during the 12-month period preceding the date such Subject Member ceases to hold
any equity interest in the Company was, a customer, client or distributor of the
Company or any of its Subsidiaries.
(d) Non-Disparagement. No Subject Member shall, directly or indirectly,
either individually or as owner, agent, employee, consultant or otherwise, make,
participate in the making of, or encourage any other Person to make, any
statement, whether written or oral, that criticizes, disparages or defames the
Company, any Subsidiary of the Company or the business conducted by the Company
or any Subsidiary of the Company.
(e) Injunctive Relief with Respect to Covenants. Each Subject Member
acknowledges and agrees that the covenants and obligations of such Subject
Member with respect to non-disparagement, nonsolicitation and confidentiality
herein relate to special, unique and extraordinary matters and that a violation
or threatened violation of any of the terms of such covenants or obligations
will cause the Company irreparable injury for which adequate remedies are not
available at law. Therefore, each Subject Member agrees, to the fullest extent
permitted by law, that the Company shall be entitled to an injunction,
restraining order or such other equitable relief (without the requirement to
post bond) restraining such Subject Member from committing any violation of the
covenants or obligations contained in this Section 4.6. These injunctive
remedies are cumulative and are in addition to any other rights and remedies the
Company may have at law or in equity. In connection with the foregoing
provisions of this Section 4.6, each Subject Member represents that his economic
means and circumstances are such that such provisions will not prevent him from
providing for himself and his family on a basis satisfactory to him.
(f) Unenforceable Restriction. It is expressly understood and agreed that
although each Subject Member and the Company consider the restrictions contained
in this Section 4.6 to be reasonable, if a final determination is made by an
arbitrator to whom the parties have assigned the matter or a court of competent
jurisdiction that any restriction contained in this Agreement is an
unenforceable restriction against any Subject Member, the provisions of this
Agreement shall not be rendered void but shall be reformed to apply as to such
maximum time and to such maximum extent as such arbitrator or court may
determine or indicate to be enforceable. Alternatively, if such arbitrator or
court finds that any restriction contained in this Agreement is unenforceable,
and such restriction cannot be reformed so as to make it enforceable, such
finding shall not affect the enforceability of any of the other restrictions
contained herein.
(g) Ex-Management Members. The provisions of this Section 4.6 shall apply
to both Management Members and Ex-Management Members (as defined in Section
8.2).
Section 4.7 Other Business for Xxxxx Members and Certain Members.
(a) Notwithstanding anything to the contrary contained in Section 4.6, any
Kelso Member or Affiliate thereof may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Company, and the Company, the
Directors and the Members shall have no rights by virtue of this Agreement in
and to such independent ventures or the income or profits derived therefrom, and
the pursuit of any such venture, even if competitive with the business of the
Company, shall not be deemed wrongful or improper. No Xxxxx Member, Director
(other than any Subject Member who serves as a Director) or Affiliate thereof
shall be obligated to present any particular investment opportunity to the
Company even if such opportunity is of a character that, if presented to the
Company, could be taken by the Company, and any Kelso Member, Director (other
than any Subject Member who serves as a Director) or Affiliate thereof shall
have the right to take for such Person's own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
opportunity, provided that this Section 4.7(a) shall not apply to Subject
Members or any other Members who are employees of the Company or any of its
Subsidiaries.
(b) Notwithstanding anything to the contrary contained in Section 4.6, any
Outside Investor Member, Other Investor Member or Affiliate thereof (other than
Zoullas) may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Company, and the Company, the Directors and the Members
shall have no rights by virtue of this Agreement in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Company, shall not be
deemed wrongful or improper. No Outside Investor Member, Other Investor Member
or any of its Affiliates (other than Zoullas) shall be obligated to present any
particular investment opportunity to the Company even if such opportunity is of
a character that, if presented to the Company, could be taken by the Company,
and any Outside Investor Member, Other Investor Member or Affiliate thereof
(other than Zoullas) shall have the right to take for such Person's own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment opportunity, provided that this Section 4.7(b) shall not
apply to Subject Members or any other Members who are employees of the Company
or any of its Subsidiaries.
Section 4.8 Additional Members.
(a) Admission. Upon the approval of the Board, the Company may admit one or
more additional Members (each an "Additional Member"), including additional
Management Members to the Company, to be treated as a "Member" or one of the
"Members" for all purposes hereunder. Each Person shall be admitted as an
Additional Member at the time such Person (i) executes a joinder agreement to
this Agreement substantially in the form of Exhibit A hereto (subject, in the
case of the admission of any Additional Member who is a Management Member, to
the following sentence), (ii) complies with the applicable Board resolution, if
any, with respect to such admission and (iii) is named as a Member in Schedule A
and Schedule B (as described in Section 8.1) and Schedule E hereto, as
applicable. Any Management Member admitted as an Additional Member after the
date hereof who is unable to make the representation contained in Section 6.1(e)
may execute a joinder agreement which exclude such representation; provided such
Additional Member also concurrently delivers to the Company a certificate,
accompanied by an opinion of counsel, to the effect that the issuance of Units
or Points to such Member shall be exempt from the registration requirements
under the Securities Act. Xxxxx is authorized to amend Schedule A, Schedule B
and Schedule E, as applicable, to reflect any such admission and any actions
pursuant to Section 4.8(b) below.
(b) Rights of Additional Members. Upon, and as a condition precedent to,
the admission of an Additional Member:
(i) the Board shall determine the Initial Capital Commitment and any
additional capital commitment (if any) of such Additional Member;
(ii) the Board shall determine the rights (if any) of such Additional
Members to appoint Directors to the Board;
(iii) the Board shall assign Units (if any) to such Additional Member;
(iv) such Additional Member shall make Capital Contributions and/or
advance Special Membership Interest Funds to the Company in an amount to be
determined by the Board;
(v) if such Additional Member is an employee of the Company or any of
its Subsidiaries, such employee will be a "Management Member" and one of
the "Management Members" for all purposes hereunder, and, subject to the
prior consultation with the Chief Executive Officer of Eagle Shipping and
further subject to the terms of any employment or services agreement
between the Company or any Subsidiary of the Company, and any Management
Member, the Board will have the right to grant such employee Points
pursuant to Article VIII and amend Schedule B accordingly; ----------
(vi) if such Additional Member will not be a Management Member
hereunder then the Board may either designate such Member as a "Xxxxx
Member," as an "Outside Investor Member" or as an "Other Investor Member"
or as a member of such other class or designation as may be designated by
the Board, having such rights and obligations as the Board may specify; and
(vii) the Board will amend Schedule A and Schedule E, as applicable,
to reflect the actions taken pursuant to this Section 4.8.
ARTICLE V
MANAGEMENT
Section 5.1 Board.
(a) Generally. The business and affairs of the Company shall be managed by
or under the direction of a committee of the Company (the "Board") consisting of
up to seven (7) natural Persons (each a "Director"), which Persons shall be
elected annually by the holders of Units unless otherwise appointed pursuant to
Section 5.1(b)(ii). The initial Directors of the Company shall be as designated
pursuant to Section 5.1(b)(i). Subject to the rights granted pursuant to Section
5.1(b)(ii), the Board, in its sole discretion, may increase the authorized
number of Directors at any time with the vote of a majority of the Directors
then in office. Directors need not be Members. Subject to the consultation
rights of Zoullas set forth in his employment agreement with the Company or any
Subsidiary of the Company and except as otherwise set forth in this Agreement,
the Board shall have full, exclusive and complete discretion to manage and
control the business and affairs of the Company, to make all decisions affecting
the business and affairs of the Company and to take all such actions as it deems
necessary or appropriate to accomplish the purposes of the Company as set forth
herein, including, without limitation, to exercise all of the powers of the
Company set forth in Section 3.2.
(b) Election of Directors.
(i) Initial Directors; Term. The initial Board shall consist of four
(4) Directors. The initial Directors of the Company will be those
individuals set forth on Schedule C. Each Director shall hold office until
a successor is elected or appointed by a Majority in Interest (unless
otherwise appointed in accordance with Section 5.1(b)(ii)) or until such
Director's earlier death, resignation or removal in accordance with the
provisions hereof in which event, a successor will be appointed in
accordance with Section 5.1(b)(ii). Each Person named as a Director herein
or subsequently appointed as a Director (including any Management Member
named or appointed as such) is hereby designated as a "manager" (within the
meaning of the Xxxxxxxx Islands Act) of the Company. Except as otherwise
provided herein, no single Director may bind the Company, and the Board
shall have the power to act only collectively in the manner specified
herein.
(ii) Composition. For so long as the Board consists of four (4)
Directors, Xxxxx shall have the right to appoint, in its sole discretion,
three (3) Directors. In the event that the Board determines to expand the
size of the Board following the date hereof in accordance with Section
5.1(a), Xxxxx shall have the right to appoint in its sole discretion such
number of additional Directors that are necessary for Xxxxx to retain the
right to appoint a majority of the Directors on the Board (as so expanded).
For so long as Zoullas is a Member of the Company, Zoullas shall have the
right to appoint one (1) Director (which may be himself). For so long as
Zoullas is the Chief Executive Officer of Eagle Shipping (and a Member of
the Company), Zoullas shall have the right to appoint, in his sole
discretion, a number of additional Directors that, when taken together with
the Directors referred to in the immediately preceding sentence,
constitutes one less than a majority of the Board.
Section 5.2 Meetings of the Board. The Board shall meet from time to time
to discuss the business of the Company. Meetings of the Board may be held
without notice at such time and at such place as shall from time to time be
determined by the Board. The Chairman of the Board or Zoullas so long as he is
Chief Executive Officer of Eagle Shipping and a Member of the Company or a
majority of the Board may call a meeting of the Board on three business days'
notice to each Director, either personally, by telephone, by facsimile or by any
other similarly timely means of communication. Any Director may waive the notice
requirement described in this Section 5.2 as it relates to such Director.
Section 5.3 Quorum and Acts of the Board. At all meetings of the Board,
four Directors shall constitute a quorum for the transaction of business unless
the number of Directors is increased pursuant to Section 5.1(a), in which case
the presence of a majority of the then authorized number of Directors shall
constitute a quorum. Except as otherwise provided in this Agreement, the act of
a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at any meeting
of the Board, the Directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. Any action required or permitted to be taken at any meeting of
the Board or of any committee thereof may be taken without a meeting, if a
majority of the members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee; each Director not executing such a
written consent shall be given prompt notice after any such action is taken by
the other Directors.
Section 5.4 Electronic Communications. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
Section 5.5 Committees of Directors. The Board (a) shall designate (i) a
compensation committee (the "Compensation Committee") and (ii) an Executive
Committee and (b) may, by resolution passed by unanimous consent of the
Directors, designate one or more additional committees. Such resolution shall
specify the duties and quorum requirements of such additional committees. Each
committee of the Board shall be comprised of at least three (3) Directors, two
(2) of whom shall be Directors designated by Xxxxx and the other Director shall
be the Chief Executive Officer of Eagle Shipping. The Board may designate one or
more Directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
members constitute a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Company. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board. Each committee shall keep regular minutes of
its meetings and report the same to the Board when required.
Section 5.6 Compensation of Directors. The Board shall have the authority
to fix the compensation (if any) of Directors. The Directors may be paid their
expenses (if any) of attendance at such meetings of the Board and may be paid a
fixed sum for attendance at each meeting of the Board or a stated salary as a
Director. No such payment shall preclude any Director from serving the Company
in any other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
Section 5.7 Resignation. Any Director may resign at any time by giving
written notice to the Company. The resignation of any Director shall take effect
upon receipt of such notice or at such later time as shall be specified in the
notice; and, unless otherwise specified in the notice, the acceptance of the
resignation by the Company, the Members or the remaining Directors shall not be
necessary to make it effective. Upon the effectiveness of any such resignation,
such Director shall cease to be a "manager" (within the meaning of the Xxxxxxxx
Islands Act).
Section 5.8 Removal of Directors. The Members holding a Majority in
Interest shall have the right to remove any Director at any time with or without
cause. In addition, a majority of the Directors then in office shall have the
right to remove a Director for cause. Upon the taking of such action, the
Director shall cease to be a "manager" (within the meaning of the Xxxxxxxx
Islands Act). Notwithstanding anything in this Section 5.8 to the contrary, (i)
the removal from the Board or a Subsidiary Board (with or without cause) of any
Director designated hereunder by Xxxxx shall be only at the written request of
Xxxxx, and under no other circumstances, and (ii) the removal from the Board or
a Subsidiary Board (without cause) of any Director designated hereunder by
Zoullas shall be only at the written request of Zoullas. Upon receipt of any
such written removal request, the Board will promptly take all such actions as
shall be necessary or desirable to cause the removal of such Director. Any
vacancy caused by any such removal shall be filled in accordance with Section
5.9.
Section 5.9 Vacancies. If any vacancies shall occur in the Board, by reason
of death, resignation, removal or otherwise, the Directors then in office shall
continue to act, and actions that would otherwise be taken by a majority of the
Directors may be taken by a majority of the Directors then in office, even if
less than a quorum. Any vacancy shall be filled at any time in accordance with
Section 5.1(b)(ii). A Director elected to fill a vacancy in the Board shall hold
office until his or her successor has been elected and qualified or until his or
her earlier death, resignation or removal.
Section 5.10 Directors as Agents. The Directors, to the extent of their
powers set forth in this Agreement, are agents of the Company for the purpose of
the Company's business, and the actions of the Directors taken in accordance
with such powers shall bind the Company. Except as otherwise provided in this
Agreement, no single Director shall have the power to bind the Company and the
Board shall have the power to act only collectively in the manner specified
herein.
Section 5.11 Subsidiaries.
(a) Subsidiary Boards. The composition of the board of directors of each of
the Company's Subsidiaries (a "Subsidiary Board") shall be determined by a
majority of the Directors; provided, that, the rights of Xxxxx and Zoullas to
appoint directors thereof shall be similar to their respective rights to appoint
Directors to the Board described in Section 5.1(b)(ii).
(b) Structure; Governance. For so long as Zoullas is the Chief Executive
Officer of Eagle Shipping (and a Member of the Company), the Board shall
consider recommendations of Zoullas before altering the structure or governance
of any Subsidiary of the Company. Any change in the structure or governance of
any Subsidiary of the Company shall not adversely affect any Member or group of
Members disproportionately relative to other Members without the prior written
consent of the affected Member or Members, as applicable.
(c) Protections. All Subsidiaries of the Company shall be governed in a
manner consistent with the applicable provisions of this Agreement (including
with respect to Board composition, quorum and notice requirements). The Company
shall take such actions, including causing its Subsidiaries to take such
actions, to ensure that the provisions of Subsidiaries' organizational documents
applicable to Subsidiary Boards are not inconsistent with the provisions of this
Agreement applicable to the Board or any Subsidiary Board.
ARTICLE VI
INVESTMENT REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations, Warranties and Covenants of Members.
(a) Investment Intention and Restrictions on Disposition. Each Member
represents and warrants that such Member is acquiring the Interests and/or
Special Membership Interests, as applicable, solely for such Member's own
account for investment and not with a view to resale in connection with, any
distribution thereof. Each Member agrees that such Member will not, directly or
indirectly, Transfer any of the Interests or Special Membership Interests (or
solicit any offers to buy, purchase or otherwise acquire or take a pledge of any
of the Interests) or any interest therein or any rights relating thereto or
offer to Transfer, except in compliance with the Securities Act, all applicable
state securities or "blue sky" laws and this Agreement, as the same shall be
amended from time to time. Any attempt by a Member, directly or indirectly, to
Transfer, or offer to Transfer, any Interests or Special Membership Interests,
as applicable, or any interest therein or any rights relating thereto without
complying with the provisions of this Agreement, shall be void and of no effect.
(b) Securities Laws Matters. Each Member acknowledges receipt of advice
from the Company that (i) neither the Interests nor the Special Membership
Interests have been registered under the Securities Act or qualified under any
state securities or "blue sky" laws, (ii) it is not anticipated that there will
be any public market for the Interests or the Special Membership Interests,
(iii) the Interests and the Special Membership Interests must be held
indefinitely and such Member must continue to bear the economic risk of the
investment in the Interests and the Special Membership Interests, as applicable,
unless the Interests and/or Special Membership Interests are subsequently
registered under the Securities Act and such state laws or an exemption from
registration is available, (iv) Rule 144 promulgated under the Securities Act
("Rule 144") is not presently available with respect to sales of any securities
of the Company and the Company has made no covenant to make Rule 144 available
and Rule 144 is not anticipated to be available in the foreseeable future, (v)
when and if the Interests and/or Special Membership Interests may be disposed of
without registration in reliance upon Rule 144, such disposition can be made
only in limited amounts and in accordance with the terms and conditions of such
Rule and the provisions of this Agreement, (vi) if the exemption afforded by
Rule 144 is not available, public sale of the Interests or Special Membership
Interests without registration will require the availability of an exemption
under the Securities Act, (vii) restrictive legends shall be placed on any
certificate representing the Interests and/or Special Membership Interests, as
applicable, and (viii) a notation shall be made in the appropriate records of
the Company indicating that the Interests and the Special Membership Interests
are subject to restrictions on transfer and, if the Company should in the future
engage the services of a transfer agent, appropriate stop-transfer instructions
will be issued to such transfer agent with respect to the Interests and the
Special Membership Interests.
(c) Ability to Bear Risk. Each Member represents and warrants that (i) such
Member's financial situation is such that such Member can afford to bear the
economic risk of holding the Interests and/or the Special Membership Interests,
as applicable, for an indefinite period of time and (ii) such Member can afford
to suffer the complete loss of such Member's investment in the Interests and/or
the Special Membership Interests, as applicable.
(d) Access to Information; Sophistication; Lack of Reliance. Each Member
represents and warrants that (i) such Member is familiar with the business and
financial condition, properties, operations and prospects of the Company and
that such Member has been granted the opportunity to ask questions of, and
receive answers from, representatives of the Company concerning the Company and
the terms and conditions of the purchase of the Interests and/or the Special
Membership Interests, as applicable, and to obtain any additional information
that such Member deems necessary, (ii) such Member's knowledge and experience in
financial and business matters is such that such Member is capable of evaluating
the merits and risk of the investment in the Interests and/or the Special
Membership Interests, as applicable, and (iii) such Member has carefully
reviewed the terms and provisions of this Agreement and has evaluated the
restrictions and obligations contained therein. In furtherance of the foregoing,
each Member represents and warrants that (x) no representation or warranty,
express or implied, whether written or oral, as to the financial condition,
results of operations, prospects, properties or business of the Company or as to
the desirability or value of an investment in the Company has been made to such
Member by or on behalf of the Company, (y) such Member has relied upon such
Member's own independent appraisal and investigation, and the advice of such
Member's own counsel, tax advisors and other advisors, regarding the risks of an
investment in the Company and (z) such Member will continue to bear sole
responsibility for making its own independent evaluation and monitoring of the
risks of its investment in the Company.
(e) Accredited Investor. Each Member represents and warrants that such
Member is an "accredited investor" as such term is defined in Rule 501(a) of
Regulation D promulgated under the Securities Act and, in connection with the
execution of this Agreement, agrees to deliver such certificates to that effect
as the Board may request.
Section 6.2 Additional Representations and Warranties of Management
Members, Outside Investor Members and Other Investor Members. Each Management
Member, Outside Investor Member and Other Investor Member represents and
warrants as to itself that (a) such Management Member, Outside Investor Member
or Other Investor Member has duly executed and delivered this Agreement; (b) all
actions required to be taken by or on behalf of the Management Member, Outside
Investor Member or Other Investor Member to authorize it to execute, deliver and
perform its obligations under this Agreement have been taken and this Agreement
constitutes such Management Member's, Outside Investor Member's or Other
Investor Member's legal, valid and binding obligation, enforceable against such
Management Member, Outside Investor Member or Other Investor Member in
accordance with the terms hereof; (c) the execution and delivery of this
Agreement and the consummation by the Management Member, Outside Investor Member
or Other Investor Member of the transactions contemplated hereby in the manner
contemplated hereby do not and will not conflict with, or result in a breach of
any terms of, or constitute a default under, any agreement or instrument or any
statute, law, rule or regulation, or any judgment, decree, writ, injunction,
order or award of any arbitrator, court or governmental authority which is
applicable to such Management Member, Outside Investor Member or Other Investor
Member or by which such Management Member, Outside Investor Member or Other
Investor Member or any material portion of its properties is bound; (d) no
consent, approval, authorization, order, filing, registration or qualification
of or with any court, governmental authority or third person is required to be
obtained by such Management Member, Outside Investor Member or Other Investor
Member in connection with the execution and delivery of this Agreement or the
performance of such Management Member's, Outside Investor Member's or Other
Investor Member's obligations hereunder; (e) if such Management Member, Outside
Investor Member or Other Investor Member is an individual, such Management
Member, Outside Investor Member or Other Investor Member is a resident of the
state set forth below such Management Member's, Outside Investor Member's or
Other Investor Member's name on the signature page hereof; and (f) if such
Management Member, Outside Investor Member or Other Investor Member is not an
individual, such Management Member's, Outside Investor Member's or Other
Investor Member's principal place of business and mailing address is in the
state or foreign jurisdiction set forth below the Management Member's signature
on the signature page.
Section 6.3 Additional Representations and Warranties of Xxxxx Members.
(a) Due Organization; Power and Authority, etc. KIA VII represents and
warrants that it is a limited partnership duly formed, validly existing and in
good standing under the laws of the State of Delaware. KEP VI represents and
warrants that it is a limited liability company duly formed, validly existing
and in good standing under the laws of the State of Delaware. Each Xxxxx Member
further represents and warrants that it has all necessary power and authority to
enter into this Agreement to carry out the transactions contemplated herein and
therein.
(b) Authorization; Enforceability. Each Xxxxx Member represents and
warrants that such Xxxxx Member has duly executed and delivered this Agreement.
All actions required to be taken by or on behalf of such Xxxxx Member to
authorize it to execute, deliver and perform its obligations under this
Agreement have been taken, and this Agreement constitutes the valid and binding
obligation of such Xxxxx Member, enforceable against such Xxxxx Member in
accordance with its terms, except as the same may be affected by bankruptcy,
insolvency, moratorium or similar laws, or by legal or equitable principles
relating to or limiting the rights of contracting parties generally. No consent,
approval, authorization, order, filing, registration or qualification of or with
any court, governmental authority or third person is required to be obtained by
such Xxxxx Member in connection with the execution and delivery of this
Agreement or the performance of such Xxxxx Member's obligations hereunder
(c) Compliance with Laws and Other Instruments. The execution and delivery
of this Agreement and the consummation by such Xxxxx Member of the transactions
contemplated hereby in the manner contemplated hereby do not and will not
conflict with, or result in a breach of any terms of, or constitute a default
under, any agreement or instrument or any statute, law, rule or regulation, or
any judgment, decree, writ, injunction, order or award of any arbitrator, court
or governmental authority which is applicable to such Xxxxx Member or by which
such Xxxxx Member or any material portion of its properties is bound, except for
conflicts, breaches and defaults that, individually or in the aggregate, will
not have a material adverse effect upon the financial condition, business or
operations of such Xxxxx Member or upon such Xxxxx Member's ability to enter
into and carry out its obligations under this Agreement.
(d) Executing Parties. The person executing this Agreement on behalf of
each Kelso Member has full power and authority to bind such Xxxxx Member to the
terms hereof and thereof.
Section 6.4 Additional Representations and Warranties of Zoullas, the
Management Members and the Outside Investor Members. Zoullas, each Management
Member and each Outside Investor Member represents and warrants that such Member
does not, directly or indirectly (i) own any equity or other interest in Norland
Shipping & Trading Company ("Norland") or (ii) have any ownership or other
interest in any of the vessels for which Norland currently acts, or at any time
in the past has acted, as agent.
Section 6.5 Certain Members. Notwithstanding anything to the contrary
contained herein, the representations and warranties under this Article VI shall
be deemed not to be made to Members not executing this Agreement or a joinder
agreement substantially in the form of Exhibit A hereto.
ARTICLE VII
CAPITAL ACCOUNTS; CAPITAL CONTRIBUTIONS
Section 7.1 Capital Accounts. A separate capital account (a "Capital
Account") shall be established and maintained for each Member. The initial
balance in each Member's Capital Account shall be zero.
Section 7.2 Adjustments.
(a) Each Member's Capital Accounts shall be credited with (i) the amount of
Capital Contributions by such Member on the Initial Capital Contribution Date
and (ii) the amount of funds advanced as Special Membership Interest Funds, on
the Initial Capital Contribution Date, as set forth on Schedule A.
(b) As of the end of each Accounting Period, the balance in each Member's
Capital Account shall be adjusted by (i) increasing such balance by such
Member's (A) allocable share of Net Profit (allocated in accordance with Section
9.1) and (B) the amount of cash and the Fair Market Value of any property (as of
the date of the contribution thereof and net of any liabilities encumbering such
property) contributed (or advanced as Special Membership Funds) by such Member
to the Company during such Accounting Period, if any, and (ii) decreasing such
balance by (A) the amount of cash and the Fair Market Value of any property (as
of the date of the distribution thereof and net of any liabilities encumbering
such property) distributed to such Member during such Accounting Period
(including payments in respect of Special Membership Interests held pursuant to
Section 10.8) and (B) such Member's allocable share of Net Loss (allocated in
accordance with Section 9.1). Each Member's Capital Account shall be further
adjusted with respect to any special allocations pursuant to Section 9.2. The
provisions of this Agreement relating to the maintenance of Capital Accounts are
intended to comply with Treasury Regulations section 1.704-1(b) and section
1.704-2 and shall be interpreted and applied in a manner consistent with such
Treasury Regulations.
Section 7.3 Initial Capital Contributions; Initial SMI Funds Advance. Each
of the Members has made or is concurrently making (i) an initial cash
contribution to the capital of the Company and/or (ii) an initial advance of
cash funds constituting Special Membership Interest Funds, in an aggregate
amount equal to its Initial Capital Commitment on or before the Initial Capital
Contribution Date. Any contributions of property on or after the Initial Capital
Contribution Date shall be valued at their Fair Market Value.
Section 7.4 Additional Capital Contributions by Xxxxx.
(a) In addition to its Initial Capital Contribution and its Initial SMI
Funds Advance, Xxxxx, subject to receipt of its investment committee approval
and satisfaction of such other customary closing conditions for such additional
investment, may make additional Capital Contributions and/or advance Special
Membership Interest Funds to the Company at such times, if any, as the Board
shall determine such additional Capital Contributions or advances of Special
Membership Interest Funds are advisable (x) to make acquisitions of assets,
businesses or other entities which the Board determines are desirable for the
business of the Company and its Subsidiaries and (y) for other bona fide
corporate or organizational purposes (each time a Capital Contribution is made
or Special Membership Interest Funds are advanced by Xxxxx, in either case
following the date hereof, an "Additional Capital Contribution Event").
(b) [intentionally omitted]
Section 7.5 Additional Capital Contributions. Except as required by Section
7.4(a), no Member shall be required or permitted to make any additional Capital
Contribution or advance Special Membership Interests Funds to the Company in
respect of the Interests or Special Membership Interests, as applicable, then
owned by such Member. However, from and after the Xxxxx Threshold Date, the
Initial Members (including Zoullas and the Outside Investor Members) shall have
the right (but not the obligation) to make additional Capital Contributions or
advances of Special Membership Interest Funds, as applicable, to the Company in
the following circumstances:
(a) at the time of any Additional Capital Contribution Event from and after
the Xxxxx Threshold Date, in amounts up to such amounts as are necessary to
maintain its relative ownership interest (in respect of each of Interests and
Special Membership Interests, as applicable) in the Company; provided, that the
rights of the Initial Members (including Zoullas and the Outside Investor
Members) to make additional Capital Contributions or advances of Special
Membership Interest Funds pursuant to this Section 7.5 shall not apply (i) at
any time prior to the Xxxxx Threshold Date and (ii) in connection with an
Additional Capital Contribution Event from and after the Xxxxx Threshold Date
involving a Capital Contribution or advance of Special Membership Interest Funds
by Xxxxx of less than $1.0 million; provided, that if, at any time following the
Xxxxx Threshold Date, Xxxxx makes a particular Capital Contribution or advance
of Special Membership Interest Funds of less than $1.0 million (the "Threshold
Contribution") which together with Capital Contributions or advances of Special
Membership Interest Funds made by Xxxxx over the prior 12-month period
aggregates to an amount greater than $1 million, then such Threshold
Contribution shall be deemed to be not less than $1 million; provided, that the
calculation of aggregate contributions or advances over the prior 12-month
period pursuant to the previous proviso shall exclude any contributions or
advances made prior to the Xxxxx Threshold Date; and
(b) upon the written consent of the Board acting by majority vote.
For the avoidance of doubt, except upon the written consent of the Board, no
Member shall have the right to make additional Capital Contributions or advance
Special Membership Interest Funds to the Company in connection with (i)
issuances of Points (as defined in Section 8.1) made to executives for
compensatory or incentive purposes, and (ii) issuances made as additional yield
or consideration in connection with the incurrence of indebtedness by the
Company. The provisions of this Section 7.5 are intended solely to benefit the
Members and, to the fullest extent permitted by applicable law, shall not be
construed as conferring any benefit upon any creditor of the Company (and no
such creditor shall be a third party beneficiary of this Agreement), and no
Member shall have any duty or obligation to any creditor of the Company to make
any additional Capital Contributions or advances of Special Membership Interest
Funds or to cause the Board to consent to the making of additional Capital
Contributions or advances of Special Membership Interest Funds. Members shall be
deemed to have contributed or advanced, as applicable, such additional capital
upon issuance of additional Interests or Special Membership Interests, as
applicable, equal to the cash purchase price for such Interests or Special
Membership Interests, as applicable, or, if no cash is paid or there is non-cash
consideration, in the amount of the Fair Market Value of such non-cash
consideration as determined by the Board in good faith at or prior to issuance
of such Interests or Special Membership Interests, as applicable. No Member
shall be permitted to finance its additional Capital Contributions or advances
of Special Membership Interest Funds pursuant to this Section 7.5 by or through
third party financing or any relationship or arrangement with third parties
(other than third party debt financing not secured by Interests or Special
Membership Interests (or otherwise by Units or Economic Interests in the
Company)). In connection with any additional Capital Contributions to be made
following the IPO of Eagle Bulk Shipping Inc. (including any Capital
Contributions made by third parties), the Board may in its discretion make
appropriate adjustments to Section 10.2(c) of this Agreement (including to
provide that distributions are made for purposes of Section 10.2(c) on the basis
of Units held) to account for any such Capital Contributions made at a higher
valuation than earlier Capital Contributions; provided that any such adjustments
affect all then current Members holding Units in the same manner.
Section 7.6 Negative Capital Accounts. Except as required by law, no Member
shall be required to make up a negative balance in its Capital Account.
ARTICLE VIII
POINTS
Section 8.1 Points.
(a) General. There shall be established two pools of points. One pool shall
consist of points called "Service Points;" and one pool shall consist of points
called "Performance Points." There shall be 1000 Service Points and 1000
Performance Points. Service Points and Performance Points shall be referred to
collectively as "Points." The Compensation Committee shall have the
discretionary authority to allocate Points from time to time to any Management
Member subject to the terms of any employment or services agreement between the
Company or any Subsidiary of the Company and any Management Member; provided,
that (i) the Compensation Committee shall take into consideration the
recommendation of Zoullas (for so long as Zoullas is a Member and the Chief
Executive Officer of Eagle Shipping) in making its allocation and (ii) the
Compensation Committee may, pursuant to an employment or services agreement
between the Company or any Subsidiary of the Company and a Management Member,
delegate authority to award or allocate Points to the Chief Executive Officer of
Eagle Shipping. On the Initial Capital Contribution Date, Zoullas and the other
Management Members listed on Schedule B hereto shall be allocated the number and
type of Points set forth opposite their respective names. Schedule B will be
maintained confidentially and accurately in the books and records of the Company
by the chairman of the Compensation Committee and each Management Member will
receive a copy of Schedule B reflecting only his or her own Point allocation.
The Compensation Committee shall have the discretion to allocate, after taking
into consideration the recommendation of Zoullas (for so long as Zoullas is a
Member and the Chief Executive Officer of Eagle Shipping) any or all of the
remaining Points (the "Unallocated Points"), to any Management Member (as
determined at the time of such allocation). Unless otherwise determined by the
Board, or as otherwise provided in an employment or services agreement between
the Company or any Subsidiary of the Company and such Management Member, all
Service Points, whether allocated or unallocated, shall expire on the tenth
anniversary of the initial date of issuance of Points hereunder and, upon such
expiration, the provisions of this Article VIII shall be of no further force and
effect.
(b) Additional Management Members. The Compensation Committee may decide at
any time to award Points to an employee of the Company who is not yet a party to
this Agreement by admitting such employee as a Management Member hereunder
pursuant to Section 4.8.
(c) Economics. The economic rights of Points are set forth in Article X.
Section 8.2 Ex-Management Members. In the event that the employment with
the Company (or any Subsidiary of the Company that employs such individual) of
any Management Member terminates for any reason, such Management Member shall,
as of the earlier of the date of such termination or the repurchase by the
Company of such Management Members' Interests or Special Membership Interests
pursuant to Section 13.5, cease to be a Member of the Company for all purposes
and shall be thereafter referred to herein as a "Ex-Management Member" with only
the rights of a Ex-Management Member specified herein unless such Ex-Management
Member continues to own Units in the Company by virtue of such Ex-Management
Member having made a Capital Contribution to the Company. Notwithstanding the
foregoing, such Ex-Management Member shall continue to be treated, for U.S.
federal, state and local income tax purposes, as a Member to the extent such
Ex-Management Member retains any Points following such termination, and any
allocations or distributions made to such Ex-Management Member shall be deemed
for tax purposes to be made to such Ex-Management Member in its capacity as a
Member.
Section 8.3 Allocation of Points to Management Members upon Termination of
Employment.
(a) Termination for Cause. Unless otherwise determined by the Compensation
Committee in a manner more favorable to such Management Member or Ex-Management
Member, or as otherwise provided in an employment or services agreement between
the Company or any Subsidiary of the Company and such Management Member, if a
Management Member's employment with the Company or any Subsidiary of the Company
that employs such individual is terminated for Cause, the number of Service
Points and Performance Points allocated to such Ex-Management Member shall be
reduced to zero.
(b) Other Termination of Employment. Unless otherwise determined by the
Compensation Committee in a manner more favorable to such Ex-Management Member,
or as otherwise provided in an employment or services agreement between the
Company or any Subsidiary of the Company and such Management Member, if the
Management Member's employment with the Company or any Subsidiary of the Company
that employs such individual terminates for any reason other than for Cause,
then the number of Performance Points allocated to such Ex-Management Member
shall be reduced to zero (unless at the time such Ex-Management Member's
employment is terminated the Xxxxx Investment Multiple is at least four (4) and
the Xxxxx IRR is at least ten percent (10%), in which case all of the
Performance Points allocated to such Ex-Management Member shall be retained and
not forfeited) and the number of Service Points allocated to such Ex-Management
Member shall be adjusted according to the following schedule:
The Ex-Management
Member's Service Points
If the termination occurs shall be reduced by
------------------------- -------------------
Before the first quarterly anniversary of the 100%
grant of such Ex-Management Member's Service
Points
On or after the first quarterly anniversary, but 93.75%
before the second quarterly anniversary, of the
grant of such Ex-Management Member's Service
Points
On or after the second quarterly anniversary, 87.5%
but before the third quarterly anniversary, of
the grant of such Ex-Management Member's Service
Points
On or after the third quarterly anniversary, but 81.25%
before the fourth quarterly anniversary, of the
grant of such Ex-Management Member's Service
Points
On or after the fourth quarterly anniversary, 75.00%
but before the fifth quarterly anniversary, of
the grant of such Ex-Management Member's Service
Points
On or after the fifth quarterly anniversary, but 68.75%
before the sixth quarterly anniversary, of the
grant of such Ex-Management Member's Service
Points
On or after the sixth quarterly anniversary, but 62.50%
before the seventh quarterly anniversary, of the
grant of such Ex-Management Member's Service
Points
On or after the seventh quarterly anniversary, 56.25%
but before the eighth quarterly anniversary, of
the grant of such Ex-Management Member's Service
Points
On or after the eighth quarterly anniversary, 50.00%
but before the ninth quarterly anniversary, of
the grant of such Ex-Management Member's Service
Points
On or after the ninth quarterly anniversary, but 43.75%
before the tenth quarterly anniversary, of the
grant of such Ex-Management Member's Service
Points
On or after the tenth quarterly anniversary, but 37.50%
before the eleventh quarterly anniversary, of
the grant of such Ex-Management Member's Service
Points
On or after the eleventh quarterly anniversary, 31.25%
but before the twelfth quarterly anniversary, of
the grant of such Ex-Management Member's Service
Points
On or after the twelfth quarterly anniversary, 25.00%
but before the thirteenth quarterly anniversary,
of the grant of such Ex-Management Member's
Service Points
On or after the thirteenth quarterly 18.75%
anniversary, but before the fourteenth quarterly
anniversary, of the grant of such Ex-Management
Member's Service Points
On or after the fourteenth quarterly 12.50%
anniversary, but before the fifteenth quarterly
anniversary, of the grant of such Ex-Management
Member's Service Points
On or after the fifteenth quarterly anniversary, 6.25%
but before the sixteenth quarterly anniversary,
of the grant of such Ex-Management Member's
Service Points
On or after the sixteenth quarterly anniversary 0.0%
of the grant of such Ex-Management Member's
Service Points
(c) Forfeiture of Points. Any Points forfeited by such Member pursuant to
this Section 8.3 shall, following such forfeiture, be considered Unallocated
Points for purposes of Section 8.1 hereof, except as otherwise provided therein.
(d) Service Points Vesting. For purposes of this Agreement, (A) "Retainable
Service Points," with respect to any Management Member at any particular date of
determination, shall mean such number of Service Points that would be retained
and not forfeited by such Management Member pursuant to the schedule set forth
in Section 8.3(b) hereof (subject to the last sentence of this Section 8.3(d))
if the employment of such Management Member with the Company or the Subsidiary
of the Company that employs such Management Member was terminated at such time
(other than a termination for Cause) and (B) "Aggregate Retainable Service
Points" shall mean the sum of (a) the aggregate Retainable Service Points of all
Management Members and (b) the aggregate retained Service Points of
Ex-Management Members. Notwithstanding the provisions of Section 8.3(b), in the
event that any Person other than Xxxxx or Affiliates thereof shall acquire a
Majority in Interests of the Company or the right to appoint a majority of the
Directors on the Board, all Service Points then allocated to any Member shall no
longer be subject to forfeiture or adjustment, other than as provided in Section
8.3(a).
Section 8.4 Nontransferability of Awards. No Points (or Economic Interests
by virtue of such Management Member's or Ex-Management Member's, as applicable,
Vested IPO Percentages) allocated hereby may be Transferred, other than by will
or by the laws of descent and distribution or, on such terms and conditions as
the Compensation Committee shall establish, to a transferee permitted under
Section 13.2. All rights with respect to Points (or Economic Interests by virtue
of such Management Member's or Ex-Management Member's, as applicable, Vested IPO
Percentages) allocated to a Management Member or Ex-Management Member hereunder
shall be distributed during his or her lifetime only to such Management Member
or Ex-Management Member or, if applicable, a transferee permitted under Section
13.2.
Section 8.5 Amendment to the Points Plan. The Compensation Committee will
administer the allocation of Points and will have the authority to amend the
terms of the Points at any time, however, no amendment shall adversely affect in
a material way any of the rights of a Management Member without such Member's
consent with respect to awards of Points previously granted. For so long as
Zoullas remains Chief Executive Officer of Eagle Shipping and a Member, any such
amendment shall be subject to the consent of Zoullas, which such consent shall
not be unreasonably withheld. Notwithstanding anything in this Article VIII to
the contrary, until such time as the Company shall have received Capital
Contributions and Special Membership Interest Aggregate Funds of at least $125
million in the aggregate, the Compensation Committee and the Board shall not be
permitted to increase the number of Performance Points (above 1000) available
for allocation hereunder. Notwithstanding the foregoing, the Compensation
Committee shall have the right to make the adjustments contemplated by the last
paragraph of Schedule D attached hereto.
ARTICLE IX
ALLOCATIONS
Section 9.1 Book Allocations of Net Profit and Net Loss. Except as provided
in Section 9.2, Net Profit or Net Loss, as the case may be, with respect to any
Accounting Period, including each item of income, gain, loss and deduction of
the Company, shall be allocated among the Capital Accounts as of the end of such
Accounting Period in a manner that as closely as possible gives effect to the
provisions of Article X and the other relevant provisions of this Agreement.
Section 9.2 Special Book Allocations.
(a) Qualified Income Offset. If any Member unexpectedly receives any
adjustment, allocation or distribution described in Treasury Regulations section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) and such adjustment, allocation or
distribution causes or increases a deficit in such Member's Capital Account in
excess of its obligation to make additional Capital Contributions (a "Deficit"),
items of gross income and gain for such Accounting Period and each subsequent
Accounting Period shall be specially allocated to such Member in an amount and
manner sufficient to eliminate, to the extent required by the Treasury
Regulations, the Deficit of such Member as quickly as possible; provided that an
allocation pursuant to this Section 9.2(a) shall be made only if and to the
extent that such Member would have a Deficit after all other allocations
provided for in this Article IX have been tentatively made as if this Section
9.2(a) were not in this Agreement. This Section 9.2(a) is intended to comply
with the qualified income offset provision of Treasury Regulations section
1.704-1(b)(2)(ii)(d) and shall be interpreted in a manner consistent therewith.
(b) Partnership Minimum Gain. Except as otherwise provided in Treasury
Regulations section 1.704-2(f), if there is a net decrease in Partnership
Minimum Gain during any Accounting Period, each Member shall be specially
allocated items of Company income and gain for such Accounting Period in
proportion to, and to the extent of, an amount equal to the portion of such
Member's share of the net decrease in Partnership Minimum Gain, determined in
accordance with Treasury Regulations section 1.704-2(g). This Section 9.2(b) is
intended to comply with the chargeback of items of income and gain requirement
in Treasury Regulations section 1.704-2(f) and shall be interpreted consistently
therewith.
(c) Restorative Allocations. Any special allocations of items of income or
gain pursuant to this Section 9.2 shall be taken into account in computing
subsequent allocations pursuant to this Agreement, so that the net amount for
any item so allocated and all other items allocated to each Member pursuant to
this Agreement shall be equal, to the extent possible, to the net amount that
would have been allocated to each Member pursuant to the provisions of this
Agreement if such special allocations had not occurred.
(d) Bulk Advances. Notwithstanding anything to the contrary, interest
income derived from Bulk Advances shall be allocated only to the Capital
Accounts of Members holding Special Membership Interests (on a basis pro rata
for Special Membership Interests held).
Section 9.3 Tax Allocations. The income, gains, losses, credits and
deductions recognized by the Company shall be allocated among the Members, for
U.S. federal, state and local income tax purposes, to the extent permitted under
the Code and the Treasury Regulations, in the same manner that each such item is
allocated to the Members' Capital Accounts. Notwithstanding the foregoing, the
Board shall have the power to make such allocations for U.S. federal, state and
local income tax purposes as may be necessary to maintain substantial economic
effect, or to ensure that such allocations are in accordance with the Members'
interests in the Company, in each case within the meaning of the Code and the
Treasury Regulations, it being anticipated that no Management Member or
Additional Management Member shall be allocated taxable income in excess of the
amount of cash to be received by such Member or Additional Member. In accordance
with section 704(c) of the Code and the Treasury Regulations thereunder, income,
gain, loss and deduction with respect to any property contributed to the capital
of the Company shall, solely for tax purposes, be allocated among the Members so
as to take account of any variation between the adjusted basis of such property
to the Company for U.S. federal income tax purposes and its fair market value at
the time of contribution.
ARTICLE X
DISTRIBUTIONS
Section 10.1 Explanation of Terms.
(a) Carry Percentage. For purposes of computing the amount to be
distributed to each Member, certain Members will have a "Carry Percentage,"
which shall be based upon the following two elements: a Service Percentage and a
Performance Percentage. The Carry Percentage shall be, for each Management
Member, the quotient obtained by dividing (i) the sum of such Member's Service
Percentage and such Member's Performance Percentage by (ii) the sum of (w) 100%
plus (x) the Adjusted Total Vested Service Percentage plus (y) the Adjusted
Aggregate Post IPO Performance Percentage plus (z) the Adjusted Total Vested IPO
Percentage.
(i) Service Percentage. The "Service Percentage" for each Management
Member (or Ex-Management Member, as applicable) shall be the Total Service
Percentage multiplied by the quotient obtained by dividing (x) the number
of Retainable Service Points allocated to such Management Member (or, in
the case of any Ex-Management Member, the allocated and retained Service
Points of such Ex-Management Member as determined in accordance with the
schedule set forth in Section 8.3(b) hereof) by (y) 1000 (or, if the pool
of allocated Service Points has been increased above 1000 (such increased
number, the "Total Service Pool Points"), the Total Service Pool Points).
For purposes of this Agreement, (A) the "Total Service Percentage" means
five percent (5%), (B) the "Adjusted Total Service Percentage" means the
product of (x) the Total Service Percentage and (y) the Carry Adjustment
Factor, (C) the "Adjusted Total Vested Service Percentage" means the
product of (x) the Adjusted Total Service Percentage and (y) the Vested
Service Factor, and (D) the "Vested Service Factor" means, at any date of
determination, the quotient obtained by dividing (x) the Aggregate
Retainable Service Points by (y) the total Service Points then allocated to
Management Members and Ex-Management Members (it being understood that such
total may be less than 1000).
(ii) Performance Percentage. The "Performance Percentage" for each
Management Member (or Ex-Management Member, if applicable) on any date of
determination shall be the sum of (a) such Management Member's (or
Ex-Management Member's) Vested IPO Percentage (as defined in Section
10.1(a)(iii)), if any, and (b) such Management Member's (or Ex-Management
Member's, if applicable) Post IPO Performance Percentage (as defined
below).
1. A Management Member's (or Ex-Management Member's, if
applicable) "Post IPO Performance Percentage" shall be the sum of (a)
such Management Member's (or Ex-Management Member's, if applicable)
Post IPO Remaining Percentage (as defined below) and (b) such
Management Member's (or Ex-Management Member's, if applicable) Stub
Performance Percentage Allocation (as defined below), if any.
2. A Management Member's (or Ex-Management Member's, if
applicable) "Post IPO Remaining Percentage" shall be calculated by
dividing (x) the number of Performance Points allocated to such
Management Member (or, in the case of any Ex-Management Member, the
allocated and retained Performance Points of such Ex-Management
Member, if any) by (y) 1000 (or, if the pool of allocated Performance
Points has been increased above 1000 (such increased number, the
"Total Performance Pool Points"), the Total Performance Pool Points);
and then multiplying the resulting quotient by the Total Available
Post IPO Remaining Performance Percentage for such date of
determination.
3. A Management Member's (or Ex-Management Member's, if
applicable) "Stub Performance Percentage Allocation" shall be
calculated by dividing (x) the number of Post IPO Awarded Performance
Points, if any, allocated to such Management Member (or, in the case
of any Ex-Management Member, the allocated and retained Post IPO
Awarded Performance Points of such Ex-Management Member, if any) by
(y) 120 (or, if the total Post IPO Awarded Performance Points are
greater than 120, then such greater number of total Post IPO Awarded
Performance Points); and then multiplying the resulting quotient by
the Total Stub Performance Percentage for such date of determination.
4. For purposes of this Agreement, (A) the "Total Available Post
IPO Remaining Performance Percentage" means, on any date of
determination, the percentage determined by reference to Schedule D of
this Agreement, (B) the "Total Stub Performance Percentage" means, on
any date of determination, the percentage determined by reference to
Schedule D of this Agreement, (C) the "Aggregate Post IPO Performance
Percentage" means the sum of (i) Total Available Post IPO Remaining
Performance Percentage plus (ii) Total Stub Performance Percentage,
(D) the "Adjusted Aggregate Post IPO Performance Percentage" means the
product of (x) the Carry Adjustment Factor and (y) the Aggregate Post
IPO Performance Percentage and (E) "Post IPO Awarded Performance
Points" mean Performance Points (including any previously forfeited
Performance Points) that are newly awarded after the IPO of Eagle Bulk
Shipping Inc. to Management Members (it being understood that the 880
Performance Points set forth on Schedule B as of the date hereof shall
be excluded unless, and to the extent that, any of such Performance
Points are forfeited and reallocated to Management Members after the
IPO of Eagle Bulk Shipping Inc.).
(iii) Vested IPO Percentage. The "Vested IPO Percentage," with respect
to any Management Member or Ex-Management Member, as applicable, is the
percentage (if any) set forth on Schedule F with respect to such Management
Member or Ex-Management Member, as applicable; provided that if the
applicable Ex-Management Member's employment with the Company or the
Subsidiary of the Company that employed such Ex-Management Member was
terminated for Cause, then the "Vested IPO Percentage" of such
Ex-Management Member shall be reduced to zero percent (0%). For purposes of
this Agreement, (A) the "Total Vested IPO Percentage" means the sum of all
Vested IPO Percentages of Management Members and Ex-Management Members set
forth on Schedule F hereof, as indicated opposite "Total Vested IPO
Percentage" thereon (reduced by any forfeited amounts pursuant to the
proviso of the preceding sentence) and (B) the "Adjusted Total Vested IPO
Percentage" means the product of (x) the Carry Adjustment Factor and (y)
the Total Vested IPO Percentage.
(b) Benchmark Amounts.
(i) Management Members who receive Points after the Initial
Contribution Date may be assigned, in respect of any Points allocated
to a Management Member, a "Benchmark Amount," which shall be an amount
determined by the Compensation Committee (or the Board, as applicable)
at the time the Compensation Committee (or the Board, as applicable)
assigned such Points (such Points to which a Benchmark applies, the
"Benchmarked Points"). The Benchmark Amount may be used by the
Compensation Committee to calculate an appropriate adjustment to a
Management Member's Carry Percentage, and/or the manner and timing of
distributions to Management Members, to reflect the increase or
decrease in the value of the Company between the Initial Contribution
Date and the date of such award or as otherwise required by the
Compensation Committee in its discretion. The Benchmark Amounts (if
any) for each Management Member will be reflected on Schedule B.
Section 10.2 Distributions Generally. This section provides for the
distribution of certain amounts ("Distributable Amounts") to the Members. The
term "Distributable Amounts" means (a) upon the occurrence of an Exit Event, all
amounts held by the Company immediately following such Exit Event, reduced by
existing liabilities (including the pro rata payment of all amounts owed in
respect of outstanding Special Membership Interests) and expenses of the Company
and a reasonable reserve for future liabilities and expenses; and (b) at any
other time determined by the Board, any amounts designated by the Board in its
sole discretion (subject to Section 10.8 hereof). Immediately prior to the
making of any distribution, a tentative distribution schedule shall be made for
the purpose of determining each Member's Performance Percentage, if any.
Distributable Amounts shall then be distributed in the following order and
priority:
(a) First, to the Members and Ex-Management Members, an amount equal to
their aggregate Unreturned Capital (in the proportion that each such Member's or
Ex-Management Member's share of Unreturned Capital immediately prior to such
distribution bears to the aggregate Unreturned Capital of all Members and
Ex-Management Members immediately prior to such distribution), until each Member
and Ex-Management Member has received distributions in an amount equal to its
Unreturned Capital immediately prior to such distribution, and no distribution
or portion thereof shall be made under any of Section 10.2(b)-(e) below until
the entire amount of the Unreturned Capital for all Members and Ex-Management
Members has been paid in full;
(b) Second, until such time as Xxxxx achieves the Trigger Multiple,
(i) to each Management Member and Ex-Management Member (other
than the individuals set forth on Schedule 10.9 in respect of any
Benchmarked Points held by such individuals), the product of (A) the
amount that is the lesser of (I) the Trigger Achieving Balance and
(II) the remaining balance to be distributed at such time (after
giving effect to Section 10.2(a) above) and (B) each such Management
Member's or Ex-Management Member's Adjusted Carry Percentage (it being
understood that (x) Benchmarked Points of the individuals set forth on
Schedule 10.9 shall be treated as non-Benchmarked Points solely for
purposes of calculating clause (ii) of the definition of "Carry
Percentage" in Section 10.1(a) (and in turn the calculation of
Adjusted Carry Percentages of all Management Members for purposes of
this clause (b)(i)) and (y) Benchmarked Points shall not be included
for purposes of calculating clause (i) of the definition of "Carry
Percentage" in Section 10.1(a) (and in turn the calculation of
Adjusted Carry Percentage) for individuals holding Benchmarked Points
but otherwise participating under this Section 10.2(b)(i) by virtue of
non-Benchmarked Points), and
(ii) to the Members (and Ex-Management Members, if applicable) in
proportion to their respective Aggregate Investments (as defined in
Section 10.2(e)), the lesser of (I) the remaining amount of the
Trigger Achieving Balance and (II) the remaining amount of the balance
to be distributed at such time (in each case after giving simultaneous
effect to distributions made under clause (b)(i) above);
For purposes of this Section 10.2(b), the "Trigger Achieving Balance" means
the amount of the distribution in question which, after giving effect to clause
10.2(b)(ii), results in Xxxxx achieving the Trigger Multiple.
(c) Third, following (and only following) achievement by Xxxxx of the
Trigger Multiple, the Catch Up Payments (if any) required to be paid to the
applicable individuals pursuant to Section 10.9 shall be paid until the
aggregate Catch Up Payments required to be paid pursuant thereto have been paid;
(d) Fourth, following (and only following) achievement by Xxxxx of the
Trigger Multiple and the payment of Catch Up Payments pursuant to Section
10.2(c) above, to each Management Member and Ex-Management Member, an amount
equal to the product of (i) the sum of (A) the balance remaining to be
distributed at such time (after giving effect to clauses (a), (b) and (c) above,
in each case to the extent applicable to the distribution in question) and (B)
aggregate Catch Up Payments being paid pursuant to Section 10.2(c) above (if
any), and (ii) the Adjusted Carry Percentage of such Management Member or
Ex-Management Members (it being understood that, if Catch Up Payments are being
paid pursuant to Section 10.2(c) above, the sum of (A) and (B) in clause (i)
hereof is simply a notional amount, but that the product of (i) and (ii) shall
be an actual distribution); and
(e) Fifth, to the Members (and Ex-Management Members, if applicable), the
remaining balance to be distributed (in proportion to their respective Aggregate
Investments). For purposes of this Agreement, the "Aggregate Investment," with
respect to any Member or Ex-Management Member, as applicable, shall mean the sum
of such Member's (or Ex-Management Member's, as applicable) aggregate Capital
Contributions and advances of Special Membership Interest Aggregate Funds.
Notwithstanding the foregoing, for purposes of Sections 10.2(b) or (d), as
applicable, if any Management Member has Benchmarked Points, then distributions
to such Management Member pursuant to this Section 10.2 in respect of such
Benchmarked Points shall be made as though the aggregate Unreturned Capital of
all Members immediately prior to the time of the granting of the applicable
Benchmarked Points had been equal to such Management Member's applicable
Benchmark Amount (which has the effect of making less proceeds assumed to be
available for distribution pursuant to Sections 10.2(b) or (d), as applicable,
since more amounts are assumed to be distributed pursuant to Section 10.2(a));
provided that the foregoing shall in no event apply to the individuals set forth
on Schedule 10.9 hereof in respect of any Benchmarked Points held by such
individuals. An amount equal to the amount of any reduction in distributions to
a Management Member resulting from the application of the foregoing sentence
(i.e., the incremental amount that such Management Member with a Benchmark
Amount would have otherwise been distributed pursuant to any particular
distribution but for the application of the prior sentence) shall be
distributed, in accordance with Section 10.2(b) or (d), as applicable, and
Section 10.2(e), to all of the other Members then entitled to participate in
distributions pursuant thereto. For the avoidance of doubt, with respect to any
Management Member holding both (i) Benchmarked Points and (ii) Points without an
assigned Benchmark Amount, such Management Member's distributions pursuant to
Section 10.2(b) or (d), as applicable, will be reduced, as applicable, solely in
respect of the Benchmarked Points.
In the event that an Exit Event is structured as a sale of Interests by the
Members, rather than a distribution of proceeds by the Company, the purchase
agreement governing such Interest sale will have provisions therein which
replicate, to the greatest extent possible, the economic result which would have
been attained under this Article X had the Exit Event been structured as a
distribution of proceeds.
Section 10.3 Distributions In Kind. In the event of a distribution of
Company property, such property shall for all purposes of this Agreement be
deemed to have been sold at its Fair Market Value and the proceeds of such sale
shall be deemed to have been distributed to the Members.
Section 10.4 No Withdrawal of Capital. Except as otherwise expressly
provided in Article XIV, no Member shall have the right to withdraw capital from
the Company or to receive any distribution or return of such Member's Capital
Contributions or advance of Special Membership Interest Funds, as applicable.
Section 10.5 Withholding.
(a) Each Member shall, to the fullest extent permitted by applicable law,
indemnify and hold harmless each Person who is or who is deemed to be the
responsible withholding agent for U.S. federal, state, local or foreign income
tax purposes against all claims, liabilities and expenses of whatever nature
(other than any claims, liabilities and expenses in the nature of penalties and
accrued interest thereon that result from such Person's fraud, willful
misfeasance, bad faith or gross negligence) relating to such Person's obligation
to withhold and to pay over, or otherwise pay, any withholding or other taxes
payable by the Company or as a result of such Member's participation in the
Company, provided that such liability of any Member shall not exceed the sum of
the balance of such Member's Capital Account, after giving effect to all
adjustments hereunder, and the aggregate amount of all prior distributions made
to such Member by the Company.
(b) Notwithstanding any other provision of this Article X, (i) each Member
hereby authorizes the Company to withhold and to pay over, or otherwise pay, any
withholding or other taxes payable by the Company or any of its Affiliates with
respect to such Member or as a result of such Member's participation in the
Company and (ii) if and to the extent that the Company shall be required to
withhold or pay any such taxes (including any amounts withheld from amounts
payable to the Company to the extent attributable, in the judgment of the
Compensation Committee, to the interest of such Member in the Company), such
Member shall be deemed for all purposes of this Agreement to have received a
payment from the Company as of the time such withholding or tax is required to
be paid, which payment shall be deemed to be a distribution with respect to such
Member's interest in the Company to the extent that the Member (or any successor
to such Member's interest in the Company) is then entitled to receive a
distribution. To the extent that the aggregate of such payments to a Member for
any period exceeds the distributions to which such Member is entitled for such
period, such Member shall make a prompt payment to the Company of such amount.
(c) If the Company makes a distribution in kind and such distribution is
subject to withholding or other taxes payable by the Company on behalf of any
Member, such Member shall make a prompt payment to the Company of the amount of
such withholding or other taxes by wire transfer.
Section 10.6 Restricted Distributions. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not make a distribution
to any Member on account of its interest in the Company if such distribution
would violate Section 40 of the Xxxxxxxx Islands Act or other applicable law.
Section 10.7 Tax Distributions. In the event the Company allocates net
taxable income to any of the Company's Members for any accounting period, then,
at the Compensation Committee's discretion (or the Board, if there shall be no
Compensation Committee), the Company will make distributions of cash to such
members prior to any other distributions provided for in Article X in an amount
determined by the Compensation Committee (or the Board, if there shall be no
Compensation Committee) for the purpose of allowing such members to satisfy
their tax liability arising as a result of such allocation. Tax distributions
made pursuant to the foregoing shall be treated as advances against
distributions payable to members pursuant to Section 10.2.
Section 10.8 Eagle Bulk Shipping Advances. Notwithstanding anything to the
contrary, all principal payments paid to the Company in respect of any Bulk
Advances (as defined below), and quarterly (or such other scheduled payment
intervals that is on a basis consistent with the timing of payments in respect
of such Bulk Advances) cash payments at a fixed per annum rate of seven percent
(7.0%) on the amount equal to the daily outstanding principal amount of any Bulk
Advances (the "Special Interest Payment"), shall be paid pro rata to (and only
to) the holders of outstanding Special Membership Interests, until the Bulk
Advances are repaid to the Company in full; provided, however, that no such
payments shall be made if, after giving effect to such payments, the Company
would be insolvent. Any repayment of principal on the Bulk Advances subsequently
paid to any Member pursuant to the foregoing shall reduce such Member's Special
Membership Interest on a dollar for dollar basis (and, as result, only such
reduced amount shall be considered outstanding as a Special Membership Interest
for purposes of this Agreement, and Schedule E shall be amended accordingly).
For purposes of this Agreement, "Bulk Advances" shall be loans made by the
Company to Eagle Bulk Shipping Inc., a Xxxxxxxx Islands corporation and a
Subsidiary of the Company, as determined to be made by the Board in its
discretion, of funds advanced to the Company as Special Membership Interest
Funds.
Section 10.9 Benchmarked Points - Catch Up Payment. Notwithstanding
anything to the contrary, following Xxxxx'x achievement of the Trigger Multiple,
a Catch Up Payment (as defined below) shall be paid to each of the individuals
set forth on Schedule 10.9 as a priority distribution before payment of any
amounts are distributed to the other Members or Management Members (or
Ex-Management Members), as applicable; provided, that, once a Catch Up Payment
is paid in full to an individual set forth on Schedule 10.9 in accordance with
Section 10.2(c) such individual shall no longer have a right to receive any
Catch Up Payment in future distributions under this Agreement. For purposes of
this Section 10.9, (i) a "Catch Up Payment", with respect to each of the
individuals set forth on Schedule 10.9, shall mean a distribution in an amount
equal to the lesser of (A) such individual's pro rata portion (determined pro
rata for relative Unreturned Benchmark Withholdings) of Distributable Amounts
remaining to be distributed (after giving effect to Section 10.2(b)), and (B)
such individual's Unreturned Benchmark Withholdings, (ii) "Unreturned Benchmark
Withholdings", with respect to each of the individuals set forth on Schedule
10.9, means that portion of such individual's Aggregate Benchmark Withholding
which has not been paid to such individual pursuant to any priority catch up
distribution or otherwise, and (iii) "Aggregate Benchmark Withholdings", with
respect to each of the individuals set forth on Schedule 10.9, means the
aggregate incremental reduction in such Management Member's distributions
pursuant to Section 10.2 resulting from the fact that such individual's
Benchmarked Points were excluded from distributions under Section 10.2(b) (i.e,
the aggregate incremental amount that such Management Member would have
otherwise been distributed under Section 10.2(b) pursuant to any prior
distribution or distributions if all of such Management Member's Points
(including Benchmarked Points) were included for purposes of clause (i) of the
definition of Carry Percentage with respect to such individual). Notwithstanding
the foregoing, if in connection with an Exit Event distribution, any remaining
proceeds (after giving effect to Section 10.2(b)) are not sufficient (A) to make
payments of all required Catch Up Payments pursuant to Section 10.2(c) and (B)
to pay any amounts required to be paid to all Management Members and
Ex-Management Members pursuant to the terms of Section 10.2(d), then the
Compensation Committee shall have discretion to allocate any such remaining
proceeds among the Management Members and Ex-Management Members (including in
respect of Catch Up Payments then due) in an equitable manner taking into
account the intent of this Agreement. The implementation of, and all decisions
with respect to, this Section 10.9 shall be determined by the Board or the
Compensation Committee in its good faith discretion.
ARTICLE XI
BOOKS AND RECORDS
Section 11.1 Books, Records and Financial Statements. At all times during
the continuance of the Company, the Company shall maintain, at its principal
place of business, separate books of account for the Company that shall show a
true and accurate record of all costs and expenses incurred, all charges made,
all credits made and received and all income derived in connection with the
operation of the Company's business in accordance with generally accepted
accounting principles consistently applied, and, to the extent inconsistent
therewith, in accordance with this Agreement. Such books of account, together
with a copy of this Agreement and the Certificate, shall at all times be
maintained at the principal place of business of the Company and shall be open
to inspection and examination at reasonable times by each Member owning Units
and its duly authorized representative for any purpose reasonably related to
such Member's interest in the Company, provided that the Company may maintain
the confidentiality of Schedule B. The Company shall provide to all Members
owning Units, within 120 days of fiscal year end, annual audited financial
statements of the Company. The annual audited financial statements may be
provided to all such Members, in the sole discretion of the Board, either
electronically or via hard copy.
Section 11.2 Filings of Returns and Other Writings; Tax Matters Partner.
(a) The Company shall timely file all Company tax returns and shall timely
file all other writings required by any governmental authority having
jurisdiction to require such filing. Within 90 days after the end of each
taxable year (or as soon as reasonably practicable thereafter), the Company
shall send to each Person that was a Member at any time during such year such
information as may be necessary for such Person to file his, her or its United
States federal income tax returns.
(b) KIA VII shall be the tax matters partner of the Company, within the
meaning of section 6231 of the Code (the "Tax Matters Partner") unless a
Majority in Interest votes otherwise. Each Member hereby consents to such
designation and agrees that upon the request of the Tax Matters Partner, such
Member will execute, certify, acknowledge, deliver, swear to, file and record at
the appropriate public offices such documents as may be necessary or appropriate
to evidence such consent.
(c) Promptly following the written request of the Tax Matters Partner, the
Company shall, to the fullest extent permitted by law, reimburse and indemnify
the Tax Matters Partner for all reasonable expenses, including reasonable legal
and accounting fees, claims, liabilities, losses and damages incurred by the Tax
Matters Partner in connection with any administrative or judicial proceeding
with respect to the tax liability of the Members, except to the extent arising
from the bad faith, gross negligence, willful violation of law, fraud or breach
of this Agreement by such Tax Matters Partner.
(d) The provisions of this Section 11.2 shall survive the termination of
the Company or the termination of any Member's interest in the Company and shall
remain binding on the Members for as long a period of time as is necessary to
resolve with the Internal Revenue Service any and all matters regarding the U.S.
federal income taxation of the Company or the Members.
Section 11.3 Accounting Method. For both financial and tax reporting
purposes, the books and records of the Company shall be kept on the accrual
method of accounting applied in a consistent manner and shall reflect all
Company transactions and be appropriate and adequate for the Company's business.
Section 11.4 Appraisal. The Company shall engage, from time to time, but
not less often than within 90 days after every fiscal year, commencing with the
fiscal year ending on December 31, 2005, a nationally recognized independent
valuation consultant or appraiser of national standing reasonably satisfactory
to Xxxxx and the Chief Executive Officer of Eagle Shipping (which approval shall
not be unreasonably withheld) (the "Appraiser") to appraise the Fair Market
Value of the Interests as of the last day of the fiscal year then most recently
ended or, at the request of the Company, as of any more recent date (the
"Appraisal Date") and to prepare and deliver a report to the Company describing
the results of such appraisal (the "Appraisal"). The Company shall bear the fees
and expenses of each Appraisal.
ARTICLE XII
LIABILITY, EXCULPATION AND INDEMNIFICATION
Section 12.1 Liability. Except as otherwise provided by the Xxxxxxxx
Islands Act, the debts, obligations and liabilities of the Company, whether
arising in contract, tort or otherwise, shall be solely the debts, obligations
and liabilities of the Company, and no Covered Person shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Covered Person.
Section 12.2 Exculpation. No Covered Person shall be liable to the Company
or any other Covered Person for any loss, damage or claim incurred by reason of
any act or omission performed or omitted by such Covered Person in good faith on
behalf of the Company and in a manner believed to be within the scope of
authority conferred on such Covered Person by this Agreement, except that a
Covered Person shall be liable for any such loss, damage or claim incurred by
reason of such Covered Person's gross negligence, willful misconduct or willful
breach of this Agreement.
Section 12.3 Fiduciary Duty. To the extent that, at law or in equity, a
Covered Person has duties (including fiduciary duties) and liabilities relating
thereto to the Company or to any other Covered Person, a Covered Person acting
under this Agreement shall not be liable to the Company or to any other Covered
Person for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and
liabilities of a Covered Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Covered Person.
Section 12.4 Indemnification. To the fullest extent permitted by applicable
law, a Covered Person shall be entitled to indemnification from the Company for
any loss, damage or claim incurred by such Covered Person by reason of any act
or omission performed or omitted by such Covered Person in good faith on behalf
of the Company and in a manner believed to be within the scope of authority
conferred on such Covered Person by this Agreement, except that no Covered
Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Covered Person by reason of such Covered Person's gross
negligence, willful misconduct or willful breach of this Agreement with respect
to such acts or omissions; provided, that any indemnity under this Section 12.4
shall be provided out of and to the extent of Company assets only, and no
Covered Person shall have any personal liability on account thereof.
Section 12.5 Expenses. To the fullest extent permitted by applicable law,
expenses (including, without limitation, reasonable attorneys' fees,
disbursements, fines and amounts paid in settlement) incurred by a Covered
Person in defending any claim, demand, action, suit or proceeding relating to or
arising out of their performance of their duties on behalf of the Company shall,
from time to time, be advanced by the Company prior to the final disposition of
such claim, demand, action, suit or proceeding upon receipt by the Company of an
undertaking by or on behalf of the Covered Person to repay such amount if it
shall ultimately be determined by a court of competent jurisdiction that the
Covered Person is not entitled to be indemnified as authorized in Section 12.4.
Section 12.6 Severability. To the fullest extent permitted by applicable
law, if any portion of this Article shall be invalidated on any ground by any
court of competent jurisdiction, then the Company shall nevertheless indemnify
each Covered Person and may indemnify each employee or agent of the Company as
to costs, charges and expenses (including reasonable attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Company, to the fullest extent
permitted by any applicable portion of this Article that shall not have been
invalidated.
ARTICLE XIII
TRANSFERS OF INTERESTS
Section 13.1 Restrictions on Transfers of Interests or Special Membership
Interests by Management Members, Outside Investor Members and Other Investor
Members. No Member (other than the Xxxxx Members) may Transfer any Interests or
Special Membership Interests (including, without limitation to any other Member,
or by gift, or by operation of law or otherwise, provided that Interests and/or
Special Membership Interests may be Transferred (a) pursuant to Section 13.2
("Estate Planning Transfers, Transfers Upon Death"), (b) in accordance with
Section 13.5 ("Puts"), (c) in accordance with Section 13.6 ("Involuntary
Transfers"), (d) pursuant to Section 13.10(a) ("Tag-Along Rights") and (e)
pursuant to Section 13.10(b) ("Drag-Along Rights"). Notwithstanding the
foregoing, Zoullas may Transfer his Interests and/or Special Membership
Interests to any of his Affiliates or to any Outside Investor Member or its
Affiliates, and any Outside Investor Member may transfer its Interests and/or
Special Membership Interests to its Affiliates or to Zoullas or any of his
Affiliates, subject in each case to the requirements of applicable law. Each
Other Investor Member may transfer its Interests and/or Special Membership
Interests to any of its Affiliates. The Kelso Members shall be free to Transfer
their Interests and/or Special Membership Interests, in whole or in part, at any
time, subject to Section 13.10(a) and (b).
Section 13.2 Estate Planning Transfers; Transfers upon Death of a
Management Member, Outside Investor Members or Other Investor Members. Interests
and/or Special Membership Interests held by any Member may be transferred for
estate-planning purposes of such Member, authorized by the prior written
approval of the Board which shall not be unreasonably withheld (excluding such
Member and other members of the Board who are designees of such Member), to (A)
a trust under which the distribution of the Interests and/or Special Membership
Interests may be made only to beneficiaries who are such Member, his or her
spouse, his or her parents, members of his or her immediate family or his or her
lineal descendants, (B) a charitable remainder trust, the income from which will
be paid to such Member during his or her life, (C) a corporation, the members or
shareholders of which are only such Member, his or her spouse, his or her
parents, members of his or her immediate family or his or her lineal descendants
or (D) a partnership or limited liability company, the partners or members of
which are only such Member, his or her spouse, his or her parents, members of
his or her immediate family or his or her lineal descendants. Interests and/or
Special Membership Interests may be transferred as a result of the laws of
descent, provided that any heirs, executors or other beneficiaries shall remain
subject to the terms of this Agreement as if such Member continued to hold the
Interests and/or Special Membership Interests, as applicable, directly.
Section 13.3 Effect of Assignment. The Company shall, from the effective
date of any permitted assignment or Transfer of an Interest and/or Special
Membership Interest (or part thereof), as applicable, thereafter pay all further
distributions or payments on account of such Interest and/or Special Membership
Interest (or part thereof), as applicable, to the assignee or transferee, as
applicable, of such Interest and/or Special Membership Interests (or part
thereof), as applicable. It is understood that for purposes of Section 10.2(c)
of this Agreement, any Member transferring Units (including a transfer of Units
to the Company pursuant to Section 13.5 hereof) shall be deemed to have made
Aggregate Investments in an amount ratably reduced by the proportion of such
Member's total Units (before giving effect to the applicable transfer) so
transferred.
Section 13.4 Overriding Provisions.
(a) Any Transfer in violation of this Article XIII shall be null and void
ab initio, and the provisions of Section 13.3 shall not apply to any such
Transfers. The approval of any Transfer in any one or more instances shall not
limit or waive the requirement for such approval in any other or future
instance.
(b) All Transfers permitted under this Article XIII are subject to this
Section 13.4, Section 13.5 and Section 13.10.
(c) Any proposed Transfer by a Member pursuant to the terms of this Article
XIII shall, in addition to meeting all of the other requirements of this
Agreement, satisfy the following conditions: (i) the Transfer will not be
effected on or through an "established securities market" or a "secondary market
or the substantial equivalent thereof," as such terms are used in Treasury
Regulations section 1.7704-1, and, at the request of the Board, the transferor
and the transferee will have each provided the Company a certificate to such
effect; and (ii) the proposed Transfer will not result in the Company having
more than 99 Members, within the meaning of Treasury Regulations section
1.7704-1(h)(1) (determined pursuant to the rules of Treasury Regulations section
1.7704-1(h)(3)). The Board may in its sole discretion waive the condition set
forth in clause (ii) of this Section 13.4(c).
(d) The Company shall promptly amend Schedule A and/or Schedule E, as
applicable, to reflect any permitted Transfers of Interests or Special
Membership Interests, as applicable, pursuant to this Article XIII.
Section 13.5 Put Rights with respect to Interests and Special Membership
Interests Owned by Zoullas and the Outside Investor Members.
(a) Sale to the Company ("Put Rights"). Subject to all provisions of this
Section 13.5(a) and to Section 13.5(b) ("Prohibited Purchases"), unless
otherwise provided in an employment or services agreement between the Company or
any Subsidiary of the Company and Zoullas, Zoullas shall have the right to sell
to the Company, and the Company shall have the obligation to purchase from
Zoullas and the Outside Investor Members, all, but not less than all, of the
Interests and Special Membership Interests owned by Zoullas and the Outside
Investor Members following the termination of employment of Zoullas, at their
Fair Market Value (as of the date of the Put Notice (as defined below)), if the
employment of Zoullas with the Company or any Subsidiary that employs Zoullas
(or by the Company on behalf of any such Subsidiary) (i) is terminated without
Cause or (ii) terminates as a result of (A) the death or Disability of Zoullas,
(B) the Resignation of Zoullas for Good Reason or (C) upon the approval of such
right by the Compensation Committee, the Retirement of Zoullas. If Zoullas
desires to sell Interests and Special Membership Interests pursuant to this
Section 13.5(a), he (or his estate, as the case may be) shall notify the Company
(such notice, the "Put Notice") not more than 60 days after the qualifying
termination of employment as described in (i) and (ii) above (such 60 day
period, the "Put Notice Period"). Failure to deliver the Put Notice within the
Put Notice Period pursuant to the preceding sentence shall constitute a waiver
of the Put Right by Zoullas (or his estate). Subject to the provisions of
paragraphs (b) and (c) of this Section 13.5, the Company shall purchase and
deliver payment for the Interests and Special Membership Interests of the
Zoullas and the Outside Investor Members not later than 60 days after receipt of
the Put Notice. The Company shall be permitted to use the proceeds from any key
man insurance policy on Zoullas to fulfill its obligations under this Section
13.5.
(b) Prohibited Purchases. Notwithstanding anything to the contrary herein,
and unless otherwise provided in an employment or services agreement between the
Company or any Subsidiary of the Company, and Zoullas, the Company shall not be
permitted or obligated to purchase any Interests and/or Special Membership
Interests from Zoullas or any Outside Investor Member hereunder to the extent
(i) the Company is prohibited from purchasing such Interests and/or Special
Membership Interests (or incurring debt to finance the purchase of such
Interests and/or Special Membership Interests), or a Subsidiary is restricted
from distributing funds to the Company for such purchase, in any case by any
debt instruments or agreements, including any amendment, renewal, extension,
substitution, refinancing, replacement or other modification thereof, which have
been entered into or which may be entered into by the Company or any of its
Subsidiaries, including those to finance the acquisition of assets or businesses
by the Company or any of its Subsidiaries and any future acquisitions or
recapitalizations (the "Financing Documents") or by applicable law, (ii) an
event of default has occurred (or, with notice or the lapse of time or both,
would occur) under any Financing Document and is (or would be) continuing, or
(iii) the purchase of such Interests and/or Special Membership Interests
(including the incurrence of any indebtedness in connection with the financing
of such purchase) or the distribution of funds to the Company by a Subsidiary
for such purchase (1) would, or in the opinion of the Board (excluding from such
determination Zoullas and other members of the Board who are designees of the
Zoullas or the Outside Investor Members) might, result in the occurrence of an
event of default under any Financing Document or create a condition which would
or might, with notice or lapse of time or both, result in such an event of
default, or (2) would, in the reasonable opinion of the Board (excluding Zoullas
and other members of the Board who are designees of Zoullas or the Outside
Investor Members), be imprudent in view of the financial condition (present or
projected) of the Company or any of its Subsidiaries or the anticipated impact
of the purchase of such Interests and/or Special Membership Interests on the
Company's or any of its Subsidiaries' ability to meet their respective
obligations under any Financing Document or otherwise, or to satisfy and make
their planned capital or other expenditures or satisfy any related obligations.
If Interests and/or Special Membership Interests which the Company has the right
or obligation to purchase on any date exceed the total amount permitted to be
purchased on such date pursuant to the preceding sentence (the "Maximum
Amount"), the Company shall purchase on such date only that number of Interests
and/or Special Membership Interests up to the Maximum Amount (if any) (and shall
not be required to purchase more than the Maximum Amount) in such amounts as the
Board shall in good faith determine.
(c) Form of Payment. Notwithstanding anything to the contrary contained in
this Agreement, if the Company is unable to make any payment when due to Zoullas
or any Outside Investor Member under this Agreement by reason of paragraph (b)
of this Section 13.5, the Company shall have the option to pay all or a portion
of the purchase price for such Interests and Special Membership Interests, as
applicable, with a subordinated note accruing simple interest at 6% per annum
which is fully subordinated in right of payment and exercise of remedies to the
lenders' rights under the Financing Documents and the maturity date of which is
30 days after the latest maturity date on any debt of the Company which is
outstanding (or reasonably expected to become outstanding) as of the date such
subordinated note is issued; provided, that if all or a portion of the purchase
price will be paid by delivery of a subordinated note, at least 10 business days
prior to the payment due date, the Company shall notify Zoullas (or his estate,
as the case may be) that it will pay all or a portion of the purchase price with
a subordinated note, and Zoullas (or his estate, as the case may be) shall have
10 business days from receipt of such notice to rescind his or her (or his or
her estate's, as the case may be) election to sell his Interests and Special
Membership Interests, as applicable, and those of the Outside Investor Members
to the Company.
(d) Interests of Outside Investor Members. Notwithstanding anything in this
Agreement to the contrary, for purposes of this Section 13.5, the exercise of
the Put Right by Zoullas with respect to Interests and Special Membership
Interests, as applicable, owned by him and the Outside Investor Members shall be
deemed to be binding on the Outside Investor Members with respect to the
Interests and Special Membership Interests, as applicable, owned by the Outside
Investor Members. Upon any exercise by Zoullas, and subject to the provisions of
paragraphs (b) and (c) of this Section 13.5, each Outside Investor Member shall
have the obligation to sell, and the Company shall have the obligation to
purchase, all of each such Outside Investor Member's Interests and Special
Membership Interests, as applicable, on the terms set forth in this Section 13.5
(it being understood that any rescission by Zoullas shall also be deemed to be a
rescission with respect to the Interests and Special Membership Interests, as
applicable, owned by the Outside Investor Members). The exercise of the Put
Right by Zoullas may have such other consequences to Zoullas (including
consequences with respect to the forfeiture of Points) as may be set forth in
any employment or services agreement between the Company or one of its
Subsidiaries and Zoullas.
Section 13.6 Involuntary Transfers. Any transfer of title or beneficial
ownership of Interests or Special Membership Interests, as applicable, upon
default, foreclosure, forfeit, divorce, court order or otherwise than by a
voluntary decision on the part of a Management Member, Outside Investor Member
or Other Investor Member (each, an "Involuntary Transfer") shall be void unless
such Management Member, Outside Investor Member or Other Investor Member
complies with this Section 13.6 and enables the Company to exercise in full its
rights hereunder. Upon any Involuntary Transfer, the Company shall have the
right to purchase such Interests or Special Membership Interests, as applicable,
pursuant to this Section 13.6 and the person or entity to whom such Interests or
Special Membership Interests, as applicable, have been Transferred (the
"Involuntary Transferee") shall have the obligation to sell such Interests or
Special Membership Interests, as applicable, in accordance with this Section
13.6. Upon the Involuntary Transfer of any Interest or Special Membership
Interests, as applicable, such Management Member, Outside Investor Member or
Other Investor Member shall promptly (but in no event later than two days after
such Involuntary Transfer) furnish written notice to the Company indicating that
the Involuntary Transfer has occurred, specifying the name of the Involuntary
Transferee, giving a detailed description of the circumstances giving rise to,
and stating the legal basis for, the Involuntary Transfer. Upon the receipt of
the notice described in the preceding sentence, and for 60 days thereafter, the
Company shall have the right to purchase, and the Involuntary Transferee shall
have the obligation to sell, all (but not less than all) of the Interests and
Special Membership Interests acquired by the Involuntary Transferee for a
purchase price equal to the lesser of (i) the Fair Market Value of such
Interests or Special Membership Interests, as applicable, and (ii) the amount of
the indebtedness or other liability that gave rise to the Involuntary Transfer
plus the excess, if any, of the Carrying Value of such Interests or Special
Membership Interests, as applicable, over the amount of such indebtedness or
other liability that gave rise to the Involuntary Transfer. For purposes of this
Agreement, "Carrying Value", with respect to any outstanding Special Membership
Interest, means the value equal to the Special Membership Interest Funds
advanced by the applicable selling Management Member, Outside Investor Member or
Other Investor Member in respect of any such outstanding Special Membership
Interest (plus any portion of accrued and unpaid interest on the applicable pro
rata outstanding portion of the Bulk Advances that is allocable to the
applicable Member pursuant to Section 10.8), less principal amounts paid to such
Member in respect of such Member's Special Membership Interest.
Section 13.7 Assignment by the Company. The Company shall have the right to
assign to Xxxxx all or any portion of its rights and obligations under Sections
13.5(a) or 13.6, provided that any such assignment or assumption is accepted by
Xxxxx. If the Company has not exercised its right to purchase Interests or
Special Membership Interests pursuant to any such section within 15 days of
receipt by the Company of the letter, notice or other occurrence giving rise to
such right, then Xxxxx shall have the right to require the Company to assign
such right. Xxxxx shall have the right to assign to one or more of the Xxxxx
Members all or any of its rights to purchase Interests or Special Membership
Interests pursuant to this Section 13.7.
Section 13.8 Substitute Members. In the event any Management Member,
Outside Investor Member, Other Investor Member or Xxxxx Member Transfers its
Interest or Special Membership Interests in compliance with the other provisions
of this Article XIII, the transferee thereof shall have the right to become a
substitute Management Member, Outside Investor Member, Other Investor Member or
substitute Xxxxx Member, as the case may be, but only upon satisfaction of the
following:
(a) execution of such instruments as the Board deems reasonably necessary
or desirable to effect such substitution; and
(b) acceptance and agreement in writing by the transferee of the Member's
Interest or Special Membership Interest, as applicable, to be bound by all of
the terms and provisions of this Agreement and assumption of all obligations
under this Agreement (including breaches hereof) applicable to the transferor.
Section 13.9 Release of Liability. In the event any Member shall sell such
Member's entire interest in the Company (other than in connection with an Exit
Event) in compliance with the provisions of this Agreement, including, without
limitation, pursuant to the last sentence of Section 13.6, without retaining any
interest therein, directly or indirectly, then the selling Member shall, to the
fullest extent permitted by law, be relieved of any further liability arising
hereunder for events occurring from and after the date of such Transfer;
provided, however, that no such Transfer shall relieve any Management Member of
his obligations pursuant to Section 4.6 hereof and such obligations shall
survive any termination of such Management Member's membership in the Company
for the restriction period set forth in Section 4.6.
Section 13.10 Tag-Along and Drag-Along Rights; Initial Members
Participation Rights.
(a) Tag-Along Rights. In the event that at any time any Kelso Member
proposes to Transfer Interests or Special Membership Interests in the Company,
other than any Transfer to an Affiliate of Xxxxx, and such Interests or Special
Membership Interests would represent, together with all Interests and Special
Membership Interests previously Transferred by the Xxxxx Members, more than 10%
of the aggregate Interests and Special Membership Interests, taken together,
held by the Xxxxx Members, then at least thirty (30) days prior to effecting
such Transfer, Xxxxx shall give each Management Member written notice of such
proposed Transfer. Each Management Member shall then have the right (the
"Tag-Along Right"), exercisable by written notice to Xxxxx, to participate pro
rata in such sale by selling a pro rata portion of such Management Member's
Interests or Special Membership Interests, as applicable, on substantially the
same terms (including with respect to representations, warranties and
indemnification) as the selling Xxxxx Members (including relative proportions of
Interests and Special Membership Interests being sold), provided, however, that
any representations and warranties relating specifically to any Member shall
only be made by that Member and any indemnification provided by the Members
shall be based on the relative Interests and Special Membership Interests being
sold by each Member in the proposed sale, either on a several, not joint, basis
or solely with recourse to an escrow established for the benefit of the proposed
purchaser; provided, further, however, that the form or forms of consideration
to be received by Xxxxx or any Kelso Member in connection with the proposed sale
may be different from that received by the Management Members so long as the
value of the consideration to be received by Xxxxx or any Kelso Member is the
same or less (with respect to each of the Interests and Special Membership
Interests being sold) than what they would have received had they received the
same form or forms of consideration as the Management Members (as reasonably
determined by the Board in good faith). In the event the Kelso Members sell less
than 100% of their aggregate Interests and Special Membership Interests in the
Company, and any Management Member exercises its rights under this Section
13.10(a), participation "pro rata in such sale" shall be based on relative
Capital Contributions unless the Compensation Committee deems the provisions of
Article X operative.
(b) Drag-Along Rights. (i) Subject to the provisions of Section 13.12
("Right of First Offer"), in the event that at any time any Kelso Member (A)
proposes to Transfer Interests or Special Membership Interests in the Company,
other than any Transfer to an Affiliate of Xxxxx, and such Interests or Special
Membership Interests would represent, together with all Interests and Special
Membership Interests previously Transferred by the Xxxxx Members, more than 75%
of the aggregate Interests and Special Membership Interests, taken together,
held by the Kelso Members or (B) desires to effect an Exit Event, the Xxxxx
Members shall have the right (the "Drag-Along Right"), upon written notice to
the other Members, to require that each other Member join pro rata in such sale
on substantially the same terms (including with respect to representations,
warranties and indemnification) as the selling Xxxxx Members, provided, however,
that any representations and warranties relating specifically to any Member
shall only be made by that Member and any indemnification provided by the
Members shall be based on the relative purchase price being received by each
Member in the proposed sale, either on a several, not joint, basis or solely
with recourse to an escrow established for the benefit of the proposed
purchaser; provided, further, however, that the form or forms of consideration
to be received by Xxxxx or any Xxxxx Member in connection with the proposed sale
may be different from that received by the other Members so long as the value of
the consideration to be received by Xxxxx or any Kelso Member is the same or
less (with respect to each of the Interests and Special Membership Interests
being sold) than what they would have received had they received the same form
or forms of consideration as the other Members (as reasonably determined by the
Board in good faith). Notwithstanding the foregoing, the Kelso Members shall not
be permitted to exercise the Drag-Along Right for a period of 18 months
following the date hereof (the "Xxxxx Restriction Period") unless (x) the
Company or any of its Subsidiaries is in default under any Financing Document or
(y) for any fiscal quarter, in the good faith reasonable judgment of the Board,
the Company and its Subsidiaries have failed to meet or exceed 75% of targeted
EBITDA (as set forth in most recently business plan approved by the Board) for
such period as set forth in the most recent business plan approved by the Board
for such period. For purposes of this Section 13.10, for each Member, "joining
the Xxxxx Members in such sale" shall include voting its Interests consistently
with the Xxxxx Members, transferring its Interests or Special Membership
Interests to a corporation organized in anticipation of such sale in exchange
for capital stock or other securities of such corporation, executing and
delivering agreements and documents which are being executed and delivered by
the Xxxxx Members and providing such other cooperation as the Xxxxx Members may
reasonably request.
(ii) Any Exit Event may be structured as an auction and may be
initiated by the delivery to the Company and the other Members of a written
notice that Xxxxx has elected to initiate an auction sale procedure. Xxxxx
shall be entitled to take all steps reasonably necessary to carry out an
auction of the Company, including, without limitation, selecting an
investment bank, providing confidential information (pursuant to
confidentiality agreements), selecting the winning bidder and negotiating
the requisite documentation. The Company and each Member shall provide
assistance with respect to these actions as reasonably requested.
(iii) In the event the Kelso Members sell less than 100% of their
Interests and Special Membership Interests in the aggregate in the Company,
joining "pro rata in such sale" shall be based on relative Capital
Contributions and Special Membership Interest Aggregate Funds unless the
Compensation Committee deems the provisions of Article X operative.
(c) Any transaction costs, including transfer taxes and legal, accounting
and investment banking fees incurred by the Company and Xxxxx in connection with
an Exit Event shall, unless the applicable purchaser refuses, be borne by the
Company in the event of a merger, consolidation or sale of assets and shall
otherwise be borne by the Members on a pro rata basis based on the consideration
received by each Member in such Exit Event.
(d) Initial Members Participation Rights. In addition, in the event the
Board permits any Member (other than a Xxxxx Member) to Transfer Interests or
Special Membership Interests that would not otherwise be permitted by the terms
of this Agreement (such transferring Member, the "Transferor Member"), then at
least thirty (30) days prior to effecting such Transfer, the Transferor Member
shall give each Initial Member written notice of such proposed Transfer. Each
Initial Member shall then have the right exercisable by written notice to the
Transferor Member to participate pro rata in such sale by selling a pro rata
portion of such Initial Member's Interests or Special Membership Interests, as
applicable, on substantially the same terms (including with respect to
representations, warranties and indemnification) as the Transferor Member,
provided, however, that any representations and warranties relating specifically
to any Initial Member shall only be made by that Initial Member and any
indemnification provided by the Initial Members shall be based on the relative
Interests or Special Membership Interests, as applicable, being sold by each
Initial Member in the proposed sale, either on a several, not joint, basis or
solely with recourse to an escrow established for the benefit of the proposed
purchaser; provided, further, however, that the form or forms of consideration
to be received by the Transferor Member in connection with the proposed sale may
be different from that received by the Initial Members so long as the value of
the consideration to be received by the Transferor Member is the same or less
(in respect of each of the Interests and Special Membership Interests, as
applicable) than what they would have received had they received the same form
or forms of consideration as the Initial Members (as reasonably determined by
the Board in good faith).
Section 13.11 Initial Public Offering. [intentionally left blank]
Section 13.12 Right of First Offer.
(a) In the event that the Board determines to sell any of the vessels owned
by any of its Subsidiaries or the equity securities or other interests in any of
its Subsidiaries that own any such vessels to a Third Party (any such sale, a
"Ship Sale") and Zoullas objected to such Ship Sale (such objection to be
evidenced by a negative vote or a no vote by Zoullas (in the event Zoullas did
not have the opportunity to vote) in the meeting of the Board in which the
decision to proceed with a potential Ship Sale was ratified by the Board in
accordance with the terms of this Agreement), the Company shall promptly send to
Zoullas a notice (the "ROFO Notice") setting forth its intentions with respect
to a Ship Sale and offering Zoullas the right (the "ROFO") to make an offer to
purchase the vessel described in the ROFO Notice. Within seven (7) days of
receipt of a ROFO Notice, Zoullas shall notify the Board that he either (i)
wishes to exercise his ROFO with respect to the Ship Sale described in the ROFO
Notice or (ii) does not intend to exercise such ROFO. The failure to notify the
Board within such seven (7) day period shall be deemed to be a notice that
Zoullas does not intend to exercise his ROFO with respect to such Ship Sale. In
the event Zoullas elects to exercise his ROFO with respect to the Ship Sale
described in the ROFO Notice, Zoullas must, within fourteen (14) days of his
receipt of the ROFO Notice (i) execute a definitive agreement with respect to
such Ship Sale that is at a price acceptable to the Company and on other terms
and conditions reasonably satisfactory to the Company; and (ii) make a customary
deposit and provide credible evidence (as determined by the Board in its
reasonable judgment) of having financing necessary to consummate such Ship Sale.
If Zoullas fails to comply with the requirements of the immediately preceding
sentence (which failure shall include, for the avoidance of doubt, the price not
being acceptable to the Company or the Company not being reasonably satisfied
with the other terms and conditions of the definitive agreement delivered by
Zoullas with respect to such Ship Sale), the Company shall have no further
obligations to Zoullas with respect to such Ship Sale and the Company may
consummate such Ship Sale with a Third Party.
(b) Notwithstanding anything to the contrary contained in paragraph (a) of
this Section 13.12, the Company shall not be required to send a ROFO Notice and
xxxxx Xxxxxxx a ROFO with respect to any Ship Sale if (i) the Board determines
in good faith that the Company in undergoing financial difficulties at the time
of such proposed Ship Sale, (ii) Zoullas is no longer a Member of the Company at
the time of such proposed Ship Sale or (iii) Zoullas has previously successfully
exercised a ROFO with respect to any other Ship Sale (provided that in the event
Zoullas exercises a ROFO but fails to consummate the Ship Sale that was
contemplated by the ROFO Notice by reason of Zoullas' failure to obtain the
financing necessary to consummate such Ship Sale, the exercise of such ROFO
shall be deemed to be a "successful exercise" for purposes of this clause
(iii)).
(c) Notwithstanding anything to the contrary, the provisions of this
Section 13.12 shall terminate, and no party shall have rights or obligations
under this Section 13.12, upon and following an IPO.
ARTICLE XIV
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 14.1 Dissolving Events. The Company shall be dissolved and its
affairs wound up in the manner hereinafter provided upon the happening of any of
the following events:
(a) the Board and the Members shall vote or agree in writing to dissolve
the Company pursuant to the required votes set forth in Sections 5.3 and 4.3(d),
respectively;
(b) any event which under applicable law would cause the dissolution of the
Company, provided that, unless required by law, the Company shall not be wound
up as a result of any such event and the business of the Company shall continue.
Notwithstanding the foregoing, the death, retirement, resignation,
expulsion, bankruptcy or dissolution of any Member or the occurrence of any
other event that terminates the continued membership of any Member in the
Company under the Xxxxxxxx Islands Act shall not, in and of itself, cause the
dissolution of the Company. In such event, the remaining Member(s) shall
continue the business of the Company without dissolution.
Section 14.2 Dissolution and Winding-Up. Upon the dissolution of the
Company, the assets of the Company shall be liquidated or distributed under the
direction of and to the extent determined by the Board and the business of the
Company shall be wound up. Within a reasonable time after the effective date of
dissolution of the Company, the Company's assets shall be distributed in the
following manner and order:
First, to creditors in satisfaction of indebtedness (other than any loans
or advances that may have been made by any of the Members to the Company),
whether by payment or the making of reasonable provision for payment, and the
expenses of liquidation, whether by payment or the making of reasonable
provision for payment, including the establishment of reasonable reserves (which
may be funded by a liquidating trust) determined by the Board or the liquidating
trustee, as the case may be, to be reasonably necessary for the payment of the
Company's expenses, liabilities and other obligations (whether fixed,
conditional, unmatured or contingent);
Second, to the payment of loans or advances that may have been made by any
of the Members to the Company and amounts owed in respect of outstanding Special
Membership Interests pursuant to Section 10.8; and
Third, to the Members in accordance with Section 10.2, taking into account
any amounts previously distributed under Section 10.2,
provided that no payment or distribution in any of the foregoing categories
shall be made until all payments in each prior category shall have been made in
full, and provided, further, that if the payments due to be made in any of the
foregoing categories exceed the remaining assets available for such purpose,
such payments shall be made to the Persons entitled to receive the same pro rata
in accordance with the respective amounts due to them.
To the extent that the balances in the Capital Accounts, after adjusting the
Capital Accounts for all allocations of Profits and Losses and all special book
allocations and all distributions other than liquidating distributions under
this Section 14.2, do not equal the amounts to be distributed hereunder, then,
any provision in this Agreement to the contrary notwithstanding, the Company
shall allocate gross income or gross deductions for its last Fiscal Year to the
extent necessary in order that such Capital Accounts equal the distributions to
be made to the Members pursuant to this Section 14.2; and to the extent such
gross income or gross deductions are not sufficient, shall allocate gross income
and gross deductions for the next preceding Fiscal Year to the extent necessary
in order that such Capital Accounts equal such distributions; and to the extent
such gross income or gross deductions are not sufficient, shall allocate gross
income or gross deductions for the second preceding Fiscal Year, and so forth,
with respect to all Company taxable years for which an amended return can be
timely filed, to the extent necessary to cause such Capital Accounts to equal
the amounts to be distributed hereunder.
Section 14.3 Distributions in Cash or in Kind. Upon the dissolution of the
Company, the Board shall use all commercially reasonable efforts to liquidate
all of the Company's assets in an orderly manner and apply the proceeds of such
liquidation as set forth in Section 14.2, provided that if in the good faith
judgment of the Board, a Company asset should not be liquidated, the Board shall
cause the Company to allocate, on the basis of the Fair Market Value of any
Company assets not sold or otherwise disposed of, any unrealized gain or loss
based on such value to the Members' Capital Accounts as though the assets in
question had been sold on the date of distribution and, after giving effect to
any such adjustment, distribute such assets in accordance with Section 14.2 as
if such Fair Market Value had been received in cash, subject to the priorities
set forth in Section 14.2, and provided, further, that the Board shall in good
faith attempt to liquidate sufficient Company assets to satisfy in cash (or make
reasonable provision for) the debts and liabilities referred to in Section 14.2.
Section 14.4 Termination. The Company shall terminate when the winding up
of the Company's affairs has been completed, all of the assets of the Company
have been distributed and the Certificate has been canceled, all in accordance
with the Xxxxxxxx Islands Act.
Section 14.5 Claims of the Members. The Members and former Members shall
look solely to the Company's assets for the return of their Capital
Contributions, and if the assets of the Company remaining after payment of or
due provision for all debts, liabilities and obligations of the Company are
insufficient to return such Capital Contributions, the Members and former
Members shall have no recourse against the Company or any other Member.
ARTICLE XV
MISCELLANEOUS
Section 15.1 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by fax, as follows
(or to such other address as the party entitled to notice shall hereafter
designate in accordance with the terms hereof):
(a) If to the Company:
Eagle Ventures LLC
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxx & Company, L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxxxx, XX
and a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Attention: Xxx X. Xxxxx
(b) If to a Member, at the address set forth opposite such Member's name on
Schedule A attached hereto, or at such other address as such Member may
hereafter designate by written notice to the Company.
All such notices, requests, demands, waivers and other communications shall
be deemed to have been received by (w) if by personal delivery, on the day
delivered, (x) if by certified or registered mail, on the fifth business day
after the mailing thereof, (y) if by next-day or overnight mail or delivery, on
the day delivered, or (z) if by fax, on the day delivered, provided that such
delivery is confirmed.
Section 15.2 Securities Act Matters. Each Member understands that in
addition to the restrictions on transfer contained in this Agreement, he or she
must bear the economic risks of his or her investment for an indefinite period
because neither the Interests nor the Special Membership Interests have been
registered under the Securities Act.
Section 15.3 Headings; Interpretation. The headings contained in this
Agreement are for purposes of convenience only and shall not affect the meaning
or interpretation of this Agreement. If any claim is made by a party relating to
any conflict, omission or ambiguity in the provisions of this Agreement, no
presumption or any burden of proof or persuasion will be implied because this
Agreement was prepared by or at the request of any party or its counsel.
Section 15.4 Entire Agreement. This Agreement constitutes the entire
agreement among the Members with respect to the subject matter hereof, and
supersedes any prior agreement or understanding among them with respect to such
subject matter.
Section 15.5 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
Section 15.6 Governing Law; Attorneys' Fees; Forum; Jurisdiction; Service
of Process. This Agreement shall be governed in all respects, including as to
validity, construction, interpretation and effect, by the substantive laws of
the Xxxxxxxx Islands, without giving effect to the conflict of laws rules
thereof. The substantially prevailing party in any action or proceeding relating
to this Agreement shall be entitled to receive an award of, and to recover from
the other party or parties, any fees or expenses incurred by him, her or it
(including, without limitation, reasonable attorneys' fees and disbursements) in
connection with any such action or proceeding. Each party hereby irrevocably and
unconditionally agrees that any legal action or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby must be
brought in the State of New York, City of New York and hereby expressly submits
to the personal jurisdiction and venue of such courts for the purposes thereof
and expressly waives any claim of improper venue and any claim that such courts
are an inconvenient forum. Each party hereby irrevocably consents to the service
of process of any of the aforementioned court by notice in the manner specified
in Section 15.1.
Section 15.7 Waiver of Jury Trial. EACH MEMBER HEREBY WAIVES THE RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF
THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 15.8 Waiver of Partition. Except as may otherwise be provided by
law in connection with the winding-up, liquidation and dissolution of the
Company, each Member hereby irrevocably waives any and all rights that it may
have to maintain an action for partition of any of the Company's property.
Section 15.9 Severability. If any provision of this Agreement is
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering the provision in question inoperative or unenforceable
in any other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative, or unenforceable to any extent
whatsoever, so long as this Agreement, taken as a whole, still expresses the
material intent of the parties hereto. The invalidity of any one or more
phrases, sentences, clauses, Sections or subsections of this Agreement shall not
affect the remaining portions of this Agreement.
Section 15.10 Further Actions. Each Member shall execute and deliver such
other certificates, agreements and documents, and take such other actions, as
may reasonably be requested by the Company in connection with the continuation
of the Company and the achievement of its purposes, including, without
limitation, (a) any documents that the Company deems necessary or appropriate to
continue the Company as a limited liability company in all jurisdictions in
which the Company or its Subsidiaries conduct or plan to conduct business and
(b) all such agreements, certificates, tax statements and other documents as may
be required to be filed in respect of the Company.
Section 15.11 Amendments. This Agreement (including this Section 15.11) may
not be amended, modified or supplemented except by a written instrument signed
by a Majority in Interest; provided, however, that the Board may (i) pursuant to
Section 4.8, make such modifications to this Agreement, including Schedule A and
Schedule B, as are necessary to admit additional Members and (ii) pursuant to
Section 10.8, make modifications to Schedule E, and (iii) to the extent that any
provision related to Units is subject to Section 409A of the Code and fails to
comply with the requirements of Section 409A of the Code, amend, modify or
supplement such provision in order to cause it to either not be subject to
Section 409A of the Code or to comply with the applicable provisions of such
section. Notwithstanding the foregoing, for so long as Zoullas is a Member of
the Company, no amendment, modification or supplement to this Agreement shall
adversely affect Zoullas or the Outside Investor Members relative to the other
Members unless such amendment, modification or supplement is signed by Zoullas,
other than any amendment, modification or supplement required to comply with
Section 409A of the Code. The Company shall notify all Members after any such
amendment, modification or supplement, other than any amendments to Schedule A,
Schedule B, Schedule E or any amendment required to comply with Section 409A of
the Code, as permitted herein, has taken effect. Each Member acknowledges and
agrees that in the event that the Board determines that Special Membership
Interests shall be exchanged for Interests in the Company (or another form of
security), the Board may affect such exchange and amend and make any
modifications to this agreement and Schedule E which it considers necessary or
appropriate to reflect any such exchange.
Section 15.12 Outside Investor Members Representative; Power of Attorney.
Each of the Outside Investor Members hereby irrevocably makes, constitutes and
appoints Zoullas as its true and lawful agent, representative and
attorney-in-fact for all purposes relating to this Agreement and to the Outside
Investor Members' ownership of Interests and/or Special Membership Interests in
the Company, including with out limitation, the full power and authority on the
Outside Investor Member's behalf to (i) vote or direct the voting of such
Outside Investor Member's Interests, including with respect to any amendments to
this Agreement; (ii) sell, or direct the sale, of any or all of such Outside
Investor Member's Interests and/or Special Membership Interests, including a
sale to the Company pursuant to the exercise of any "Put Right" granted to
Zoullas pursuant to Section 13.5 of this Agreement; (iii) collect on behalf of
such Outside Investor Member any amounts that the Company would otherwise pay to
such Outside Investor Member in exchange of Interests and/or Special Membership
Interests held by such Outside Investor Member (whether in the form of cash or a
promissory note) pursuant to Zoullas' decision to exercise the Put Right
relating to the Interests and/or Special Membership Interests held by Zoullas
and the Outside Investor Members; and (iv) to execute and deliver on behalf of
such Outside Investor Member any instruments or other documents related to, and
to take any actions deemed necessary or appropriate by Zoullas in his sole
discretion to effectuate, any of the foregoing. Each of the Outside Investor
Members agrees that the Company shall be entitled to rely upon the power and
authority of Zoullas, acting as a limited representative of such Outside
Investor Member, to act on behalf of such Outside Investor Member with respect
to the Put Right described above.
Section 15.13 Power of Attorney. Each Member hereby constitutes and
appoints Xxxxx as his or her true and lawful representative and attorney-in-fact
in his or her name, place and xxxxx to make, execute, acknowledge, record and
file the following:
(a) any amendment to the Certificate which may be required by the laws of
the Xxxxxxxx Islands due to:
(i) any duly made amendment to this Agreement, or
(ii) any change in the information contained in such Certificate, or
any amendment thereto;
(b) any other certificate or instrument which may be required to be filed
by the Company under the laws of the Xxxxxxxx Islands or under the applicable
laws of any other jurisdiction in which counsel to the Company determines that
it is advisable to file;
(c) any certificate or other instrument which Xxxxx or the Board deems
necessary or desirable to effect a termination and dissolution of the Company
which is authorized under this Agreement;
(d) any amendments to this Agreement, duly adopted in accordance with the
terms of this Agreement; and
(e) any other instruments that Xxxxx or the Board may deem necessary or
desirable to carry out fully the provisions of this Agreement; provided,
however, that any action taken pursuant to this power shall not, in any way,
increase the liability of the Members beyond the liability expressly set forth
in this Agreement, and provided further that where action by a majority of the
Board is required, such action shall have been taken.
Such attorney-in-fact is not by the provisions of this Section 15.12
granted any authority on behalf of the undersigned to amend this Agreement,
except as provided for in this Agreement. Such power of attorney is coupled with
an interest and shall continue in full force and effect notwithstanding the
subsequent death or incapacity of the Member granting such power of attorney.
Section 15.14 Fees and Expenses
The Company shall assume (as applicable) and pay all legal, formation,
transaction and related expenses incurred by the Company and its Subsidiaries
(including all such expenses incurred by any Member on behalf of the Company and
its Subsidiaries). Except (i) as provided in this Agreement, (ii) as provided in
any other agreement between the Company and such Member or its Affiliates
(including the letter agreement dated February 1, 2005, between Xxxxx & Company,
L.P., the Company and Eagle Holdings LLC), or (iii) for the reasonable
documented expenses incurred by Zoullas in respect of the transactions
contemplated by this Agreement (including in connection with Zoullas'
negotiation of this Agreement and the employment agreement between Zoullas and
the Company or any Subsidiary of the Company), all other fees and expenses
incurred by any Member in connection with its investment in the Company
(including in connection with such Member's negotiation of this Agreement) shall
be borne by the respective Member incurring such expenses.
Schedule A
----------
Xxxxx Members
-------------
Initial Capital
Commitment
----------
Total
Date of Initial SMI Initial Capital Capital
Name & Mailing Address Admission Funds Advance Contribution Commitment Units
---------------------- --------- ------------- ------------ ---------- -----
Xxxxx Investment Associates January 28, 43,143,367 30,323,681 73,467,048 30,323,681
VII, L.P. x/x Xxxxx & 0000
Xxxxxxx, X.X.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
KEP VI, LLC January 28, 10,683,112 7,508,733 18,191,845 7,508,733
x/x Xxxxx & Xxxxxxx, X.X. 0000
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Management Members
------------------
Initial Capital
Commitment
----------
Total
Date of Initial SMI Initial Capital Capital
Name & Mailing Address Admission Funds Advance Contribution Commitment Units
---------------------- --------- ------------- ------------ ---------- -----
Xxxxxxxxx Xxxxxxx January 28, 1,024,490 621,836 1,646,326 621,836
000 Xxxx Xxxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx X. Xxxxx February 1, 8,965 3,911 12,876 3,911
0000 Xxxxxxx Xxxxxx 0000
Xxxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx February 1, 22,417 9,777 32,194 9,777
00 Xxxxxx Xxxx 0000
Xxxxxxx, Xxx Xxxxxx 00000
Xxxx Xxxxxxxx February 1, 8,965 3,911 12,876 3,911
000 Xxxxxx Xxxxxx 0000
Xxxxxxxx, Xxx Xxxx 00000
Outside Investor Members
------------------------
Initial Capital
Commitment
----------
Total
Date of Initial SMI Initial Capital Capital
Name & Mailing Address Admission Funds Advance Contribution Commitment Units
---------------------- --------- ------------- ------------ ---------- -----
Intercontinental Shipping & February 1, 1,826,725 1,173,275 3,000,000 1,173,275
Trading Corp. 2005
c/o Cruzpren S.L.
Xxxxx Xxxxxxx 00, 0xx Xxxxx
Xxx Xxxxxx 00000
Xxxxxx Xxxxxxx, Xxxxx
Xxxxx Xxxxxxx February 1, 161,083 97,773 258,856 97,773
000 Xxxx 00xx Xxxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx February 1, 161,083 97,773 258,856 97,773
000 Xxxx 00xx Xxxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxxxxx February 1, 134,501 58,664 193,165 58,664
000 Xxxx 00xx Xxxxxx, Xxx 00X 0000
Xxx Xxxx, Xxx Xxxx 00000
Other Investor Members
----------------------
Initial Capital
Commitment
----------
Total
Date of Initial SMI Initial Capital Capital
Name & Mailing Address Admission Funds Advance Contribution Commitment Units
---------------------- --------- ------------- ------------ ---------- -----
Xxxxx Xxxxx April 21, 2005 311,144 188,856 500,000 188,856
000 Xxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Magnetite Asset Investors May 6, 2005 1,244,578 755,422 2,000,000 755,422
III L.L.C.
c/o BlackRock Financial
Management
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Schedule B
----------
Points
------
--------------------------------------------------------------------------------
Benchmark
Amount
Name Performance Points Service Points (if any)
--------------------------------------------------------------------------------
Sophocles X. Xxxxxxx 750 750
--------------------------------------------------------------------------------
Xxxx X. Xxxxxxxx 50 50
100* 100* $230,168,796
in respect of
Points awarded
post-IPO
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 40 40
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxx 40 40
--------------------------------------------------------------------------------
Xxxxx Xxxxxxx 20* 20* $230,168,796
in respect of
Points awarded
post-IPO
--------------------------------------------------------------------------------
TOTAL 1000 1000
--------------------------------------------------------------------------------
* Reflects Points awarded after the IPO of Eagle Bulk Shipping, Inc. With
respect to Performance Points, these post IPO Points are "Post IPO Awarded
Performance Points" for purposes of this Agreement. See Schedule 10.9 for more
information relating to these Benchmarked Points.
Schedule C
----------
Initial Directors
-----------------
Xxxxxxx Xxxxxxxx
Xxxxxx Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxxxx Xxxxxxx
Schedule D
----------
Post IPO Performance Percentages - Definitions
----------------------------------------------
The "Total Available Post IPO Remaining Performance Percentage" available
to all Management Members allocated Performance Points (and Ex-Management
Members that retain Performance Points pursuant to this Agreement, if any) on
any date of determination shall equal the product of (x) seven and one half
percent (7.5%) and (y) the Performance Factor (as defined below).
The "Total Stub Performance Percentage" available to all Management Members
allocated Post IPO Awarded Performance Points (and Ex-Management Members that
retain Post IPO Awarded Performance Points pursuant to this Agreement, if any)
on any date of determination shall equal the product of (x) nine-tenths of one
percent (.9%) and (y) the Performance Factor.
For purposes of this Schedule D:
--------------------------------
The "Xxxxx Investment Multiple" is computed by dividing (x) (i) the total
Fair Market Value of all distributions (determined pro forma for any
distributions to be made to the Xxxxx Members at the time which the Xxxxx
Investment Multiple is calculated) received by the Xxxxx Members from the
Company in respect of their aggregate investment in the Company (which shall
include, if applicable, the Fair Market Value of any Units distributed by the
Xxxxx Members to any Affiliate of the Xxxxx Members that is not a party to this
Agreement) plus (ii) all principal payments on Bulk Advances and all Special
Interest Payments in each case paid to the Xxxxx Members in respect of advances
of Special Membership Interest Funds by the Xxxxx Members by (y) the aggregate
Capital Contributions of the Xxxxx Members plus the Special Membership Interest
Aggregate Funds advanced by the Xxxxx Members.
The "Xxxxx IRR" means the internal rate of return, compounded annually,
received by the Kelso Members on their aggregate Capital Contributions and
advances of Special Membership Interest Aggregate Funds, calculated after giving
full effect to any reduction in the Xxxxx IRR caused by an increase in the Total
Available Performance Percentage.
The "Performance Factor" is a number (between zero and one) equal to the
quotient obtained by dividing (x) the excess, if positive, of the Xxxxx
Investment Multiple over two (2) by (y) two (2); provided however that if such
quotient is greater than one (1), the Performance Factor shall equal one (1);
provided further that, if in any date of determination of Total Available Post
IPO Performance Percentage, the Xxxxx IRR calculated as of such date is less
than 10%, the Performance Factor computed pursuant to the foregoing shall be
reduced to such amount as would cause the Xxxxx IRR to equal 10% or, if there is
no such amount, to zero (0).
Compensation Committee Adjustments
----------------------------------
Notwithstanding anything in the Agreement to the contrary, as contemplated
by the last sentence of Section 8.5 of the Agreement, the Compensation Committee
shall make such adjustments to the Xxxxx Investment Multiple and the Xxxxx IRR
or otherwise as it deems necessary in its good faith discretion to take into
account any increase in interest, fees or other expenses incurred by the Company
as a result of a refinancing or extraordinary dividends, with the general
intention that no such increase in interest, fees or expenses resulting from the
refinancing or extraordinary dividends (as applicable) would have a material
adverse effect on the achievement of a particular Carry Percentage by any
Management Member when measured in terms of dollars to be received (in any
distributions pursuant to Section 10.2) by any such Management Member.
Schedule E
----------
Special Membership Interests
----------------------------
--------------------------------------------------------------------------
Special Special Membership
Member Membership Interest Interest Aggregate Funds
--------------------------------------------------------------------------
KIA VII 43,143,367 43,143,367
--------------------------------------------------------------------------
KEP VI 10,683,112 10,683,112
--------------------------------------------------------------------------
Magnetite 1,244,578 1,244,578
--------------------------------------------------------------------------
Xxxxxxxxx Xxxxxxx 1,024,490 1,024,490
--------------------------------------------------------------------------
Xxxxxx X. Xxxxx 8,967 8,967
--------------------------------------------------------------------------
Xxxxxx Xxxxxxx 22,417 22,417
--------------------------------------------------------------------------
Xxxx Xxxxxxxx 8,967 8,967
--------------------------------------------------------------------------
Intercontinental Shipping 1,826,725 1,826,725
& Trading Corp
--------------------------------------------------------------------------
Xxxxx Xxxxxxx 161,083 161,083
--------------------------------------------------------------------------
Xxxxxx Xxxxxxx 161,083 161,083
--------------------------------------------------------------------------
Xxxxxxx Xxxxxxxx 134,501 134,504
--------------------------------------------------------------------------
Xxxxx Xxxxx 311,144 311,144
--------------------------------------------------------------------------
Schedule F
----------
Vested IPO Percentages
----------------------
--------------------------------------------------------------
Member Vested IPO Percentage
------ ---------------------
--------------------------------------------------------------
Xxxxxxxxx Xxxxxxx 5.625%
--------------------------------------------------------------
Xxxxxx Xxxxx 0.3%
--------------------------------------------------------------
Xxxxxx Xxxxxxx 0.3%
--------------------------------------------------------------
Xxxx Xxxxxxxx 0.375%
--------------------------------------------------------------
TOTAL VESTED IPO PERCENTAGE 6.6%
--------------------------------------------------------------
Schedule 10.9
-------------
--------------------------------------------------------------------------------
Benchmarked Points
-----------------------------
Benchmarked
Performance Benchmarked Benchmark Trigger
Name Points Service Points Amount Multiple
--------------------------------------------------------------------------------
Xxxx X. 100 100 $230,168,796 2.184
Xxxxxxxx
--------------------------------------------------------------------------------
Xxxxx Xxxxxxx 00 00 $230,168,796 2.184
--------------------------------------------------------------------------------
25083.0001#638886
