REGISTRATION RIGHTS AGREEMENT
Exhibit 10.4
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of the
28th day of September 2007, by and among Seanergy Maritime Corp., a company organized
under the laws of the Republic of the Xxxxxxxx Islands (the “Company”), and the undersigned parties
listed under Investors on the signature page hereto (each, an “Investor” and collectively, the
“Investors”).
WHEREAS, the Investors currently hold all of the issued and outstanding securities of the
Company;
WHEREAS, the Investors and the Company desire to enter into this Agreement to provide the
Investors with certain rights relating to the registration of shares of Common Stock held by them;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS . The following capitalized terms used herein have the following meanings:
“Agreement” means this Agreement, as amended, restated, supplemented, or otherwise modified
from time to time.
“Commission” means the Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Common Stock” means the common stock, par value $0.0001 per share, of the Company.
“Company” is defined in the preamble to this Agreement.
“Demand Registration” is defined in Section 2.1.1.
“Demanding Holder” is defined in Section 2.1.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be in effect at the
time.
“Form F-3” is defined in Section 2.3.
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
“Investor” is defined in the preamble to this Agreement.
“Investor Indemnified Party” is defined in Section 4.1.
“Maximum Number of Shares” is defined in Section 2.1.4.
“Notices” is defined in Section 6.3.
“Piggy-Back Registration” is defined in Section 2.2.1.
“Register,” “registered” and “registration” mean a registration effected by preparing and
filing a registration statement or similar document in compliance with the requirements of the
Securities Act, and the applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
“Registrable Securities” mean the 5,500,000 shares of Common Stock owned or held by Investors
prior to the effective date of the Company’s initial public offering securities. Registrable
Securities include any warrants, shares of capital stock or other securities of the Company issued
as a dividend or other distribution with respect to or in exchange for or in replacement of such
shares of Common Stock. As to any particular Registrable Securities, such securities shall cease to
be Registrable Securities when: (a) a Registration Statement with respect to the sale of such
securities shall have become effective under the Securities Act and such securities shall have been
sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (b)
such securities shall have been otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the Company and subsequent public
distribution of them shall not require registration under the Securities Act; (c) such securities
shall have ceased to be outstanding, or (d) the Securities and Exchange Commission makes a
definitive determination to the Company that the Registrable Securities are saleable under Rule
144(k).
“Registration Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations promulgated
thereunder for a public offering and sale of Common Stock (other than a registration statement on
Form F-4 or Form S-8, or their successors, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another entity).
“Release Date” means the date on which shares of Common Stock are disbursed from escrow
pursuant to Section 3 of that certain Stock Escrow Agreement dated as of September 24, 2007 by and
among the parties hereto and Continental Stock Transfer & Trust Company, as escrow agent.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“Underwriter” means a securities dealer who purchases any Registrable Securities as principal
in an underwritten offering and not as part of such dealer’s market-making activities.
2. REGISTRATION RIGHTS.
2.1 Demand Registration.
2.1.1 Request for Registration. At any time and from time to time on or after the
Release Date, the holders of a majority-in-interest of the Registrable Securities held by the
Investors or the transferees of the Investors, may make a written demand for registration under the
Securities Act of all or part of their Registrable Securities (a “Demand Registration”). Any demand
for a Demand Registration shall specify the number of shares of Registrable Securities proposed to
be sold and the intended method(s) of distribution thereof. The Company will notify all holders of
Registrable Securities of the demand, and each holder of Registrable Securities who wishes to
include all or a portion of such holder’s Registrable Securities in the Demand Registration (each
such holder including shares of Registrable Securities in such registration, a “Demanding Holder”)
shall so notify the Company within fifteen (15) days after the receipt by the holder of the notice
from the Company. Upon any such request, the Demanding Holders shall be entitled to have their
Registrable Securities included in the Demand Registration, subject to Section 2.1.4 and the
provisos set forth in Section 3.1.1. The Company shall not be obligated to effect more than an
aggregate of two (2) Demand Registrations under this Section 2.1.1 in respect of Registrable
Securities.
2.1.2 Effective Registration. A registration will not count as a Demand Registration
until the Registration Statement filed with the Commission with respect to such Demand Registration
has been declared effective and the Company has complied with all of its obligations under
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this Agreement with respect thereto; provided , however , that if, after such Registration
Statement has been declared effective, the offering of Registrable Securities pursuant to a Demand
Registration is interfered with by any stop order or injunction of the Commission or any other
governmental agency or court, the Registration Statement with respect to such Demand Registration
will be deemed not to have been declared effective, unless and until, (i) such stop order or
injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the
Demanding Holders thereafter elect to continue, to have their Registrable Securities included in
the offering; provided, further, that the Company shall not be obligated to file a second
Registration Statement until a Registration Statement that has been filed is counted as a Demand
Registration or is terminated.
2.1.3 Underwritten Offering. If a majority-in-interest of the Demanding Holders so
elect and such holders so advise the Company as part of their written demand for a Demand
Registration, the offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of an underwritten offering. In such event, the right of any holder of
Registrable Securities to include its Registrable Securities in such Registration Statement shall
be conditioned upon such holder’s participation in such underwriting and the inclusion of such
holder’s Registrable Securities in the underwriting to the extent provided herein. All Demanding
Holders proposing to distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the Underwriter or Underwriters selected for such
underwriting by a majority-in-interest of the Demanding Holders initiating the Demand Registration.
2.1.4 Reduction of Offering. If the managing Underwriter or Underwriters for a Demand
Registration that is to be an underwritten offering advises the Company and the Demanding Holders
in writing that the dollar amount or number of shares of Registrable Securities which the Demanding
Holders desire to sell, taken together with all other shares of Common Stock or other securities
which the Company desires to sell and the shares of Common Stock, or other securities, if any, as
to which registration has been requested pursuant to written contractual piggy-back registration
rights held by other securityholders of the Company who desire to sell, exceeds the maximum dollar
amount or maximum number of securities that can be sold in such offering without adversely
affecting the proposed offering price, the timing, the distribution method, or the probability of
success of such offering (such maximum dollar amount or maximum number of shares, as applicable,
the “Maximum Number of Shares”), then the Company shall include in such registration: (i) first,
the Registrable Securities as to which Demand Registration has been requested by the Demanding
Holders ( pro rata in accordance with the number of shares of Registrable Securities which such
Demanding Holder has requested be included in such registration, regardless of the number of shares
of Registrable Securities held by each Demanding Holder) that can be sold without exceeding the
Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (i), the shares of Common Stock or other securities that the
Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii)
third, to the extent that the Maximum Number of Shares has not been reached under the foregoing
clauses (i) and (ii), the shares of Common Stock or other securities for the account of other
persons that the Company is obligated to register pursuant to written contractual arrangements with
such persons and that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth,
to the extent that the Maximum Number of Shares have not been reached under the foregoing clauses
(i), (ii), and (iii), the shares of Common Stock or other securities that other shareholders desire
to sell that can be sold without exceeding the Maximum Number of Shares.
2.1.5 Withdrawal. If a majority-in-interest of the Demanding Holders disapprove of the
terms of any underwriting or are not entitled to include all of their Registrable Securities in any
offering, such majority-in-interest of the Demanding Holders may elect to withdraw from such
offering by giving written notice to the Company and the Underwriter or Underwriters of their
request to withdraw prior to the effectiveness of the Registration Statement filed with the
Commission with respect to such Demand Registration. In such event, the Company need not seek
effectiveness of such Registration Statement for the benefit of other Investors. If the
majority-in-interest of the Demanding Holders withdraws from a proposed offering relating to a
Demand Registration, then such registration shall not count as a Demand Registration provided for
in Section 2.1.1.
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2.2 Piggy-Back Registration.
2.2.1 Piggy-Back Rights. If at any time on or after the Release Date the Company
proposes to file a Registration Statement under the Securities Act with respect to an offering of
equity securities, or securities or other obligations exercisable or exchangeable for, or
convertible into, equity securities, by the Company for its own account or for securityholders of
the Company for their account (or by the Company and by securityholders of the Company including,
without limitation, pursuant to Section 2.1), other than a Registration Statement (i) filed in
connection with any employee stock option or other benefit plan, (ii) for an exchange offer or
offering of securities solely to the Company’s existing shareholders, (iii) for an offering of debt
that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan,
then the Company shall (x) give written notice of such proposed filing to the holders of
Registrable Securities as soon as practicable but in no event less than ten (10) days before the
anticipated filing date, which notice shall describe the amount and type of securities to be
included in such offering, the intended method(s) of distribution, and the name of the proposed
managing Underwriter or Underwriters, if any, of the offering, and (y) offer to the holders of
Registrable Securities in such notice the opportunity to register the sale of such number of shares
of Registrable Securities as such holders may request in writing within five (5) days following
receipt of such notice (a “Piggy-Back Registration”). The Company shall cause such Registrable
Securities to be included in such registration and shall use its best efforts to cause the managing
Underwriter or Underwriters of a proposed underwritten offering to permit the Registrable
Securities requested to be included in a Piggy-Back Registration to be included on the same terms
and conditions as any similar securities of the Company and to permit the sale or other disposition
of such Registrable Securities in accordance with the intended method(s) of distribution thereof.
All holders of Registrable Securities proposing to distribute their securities through a Piggy-Back
Registration that involves an Underwriter or Underwriters shall enter into an underwriting
agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back
Registration.
2.2.2 Reduction of Offering. If the managing Underwriter or Underwriters for a
Piggy-Back Registration that is to be an underwritten offering advises the Company and the holders
of Registrable Securities in writing that the dollar amount or number of shares of Common Stock, or
other securities which the Company desires to sell, taken together with shares of Common Stock, and
other securities, if any, as to which registration has been demanded pursuant to written
contractual arrangements with persons other than the holders of Registrable Securities hereunder,
the Registrable Securities as to which registration has been requested under this Section 2.2, and
the shares of Common Stock, or other securities, if any, as to which registration has been
requested pursuant to the written contractual piggy-back registration rights of other
securityholders of the Company, exceeds the Maximum Number of Shares, then the Company shall
include in any such registration:
(i) If the registration is undertaken for the Company’s account: (A) first, the shares of
Common Stock or other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clause (A), the shares of Common Stock, and other
securities, if any, including the Registrable Securities, as to which registration has been
requested pursuant to written contractual piggy-back registration rights of security holders ( pro
rata in accordance with the number of shares of Common Stock or other securities which each such
person has actually requested to be included in such registration, regardless of the number of
shares of Common Stock and other securities, with respect to which such persons have the right to
request such inclusion) that can be sold without exceeding the Maximum Number of Shares; and
(ii) If the registration is a “demand” registration undertaken at the demand of persons other
than the holders of Registrable Securities pursuant to written contractual arrangements with such
persons, (A) first, the shares of Common Stock and other securities for the account of the
demanding persons that can be sold without exceeding the Maximum Number of Shares; (B) second, to
the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A),
the shares of Common Stock or other securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Shares; and (C) third, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clauses (A) and (B), the Registrable
Securities as to
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which registration has been requested under this Section 2.2 ( pro rata in accordance with the
number of shares of Registrable Securities held by each such holder); and (D) fourth, to the extent
that the Maximum Number of Shares has not been reached under the foregoing clauses (A), (B) and
(C), the shares of Common Stock and other securities, if any, as to which registration has been
requested pursuant to written contractual piggy-back registration rights which other
securityholders desire to sell that can be sold without exceeding the Maximum Number of Shares.
2.2.3 Withdrawal. Any holder of Registrable Securities may elect to withdraw such
holder’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company may also elect to withdraw a Registration Statement at any time
prior to the effectiveness of the Registration Statement. Notwithstanding any such withdrawal, the
Company shall pay all expenses incurred by the holders of Registrable Securities in connection with
such Piggy-Back Registration as provided in Section 3.3.
2.2.4 Registrations on Form F-3. The holders of Registrable Securities may at any time
and from time to time after the Release Date, request in writing that the Company register the
resale of any or all of such Registrable Securities on Form F-3 or any similar short-form
registration which may be available at such time (“Form F-3”); provided , however , that the
Company shall not be obligated to effect such request through an underwritten offering. Upon
receipt of such written request, the Company will promptly give written notice of the proposed
registration to all other holders of Registrable Securities, and, as soon as practicable
thereafter, effect the registration of all or such portion of such holder’s or holders’ Registrable
Securities as are specified in such request, together with all or such portion of the Registrable
Securities of any other holder or holders joining in such request as are specified in a written
request given within fifteen (15) days after receipt of such written notice from the Company;
provided , however , that the Company shall not be obligated to effect any such registration
pursuant to this Section 2.3: (i) if Form F-3 is not available for such offering; or (ii) if the
holders of the Registrable Securities, together with the holders of any other securities of the
Company entitled to inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at any aggregate price to the public of less than $500,000. Registrations
effected pursuant to this Section 2.3 shall not be counted as Demand Registrations effected
pursuant to Section 2.1.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever the Company is required to effect the registration
of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to
effect the registration and sale of such Registrable Securities in accordance with the intended
method(s) of distribution thereof as expeditiously as practicable, and in connection with any such
request:
3.1.1 Filing Registration Statement. The Company shall, as expeditiously as possible
and in any event within sixty (60) days after receipt of a request for a Demand Registration
pursuant to Section 2.1, prepare and file with the Commission a Registration Statement on any form
for which the Company then qualifies or which counsel for the Company shall deem appropriate and
which form shall be available for the sale of all Registrable Securities to be registered
thereunder in accordance with the intended method(s) of distribution thereof, and shall use its
best efforts to cause such Registration Statement to become and remain effective for the period
required by Section 3.1.3; provided , however , that the Company shall have the right to defer any
Demand Registration for up to thirty (30) days, and any Piggy-Back Registration for such period as
may be applicable to deferment of any demand registration to which such Piggy-Back Registration
relates, in each case if the Company shall furnish to the holders a certificate signed by the Chief
Executive Officer of the Company stating that, in the good faith judgment of the Board of Directors
of the Company, it would be materially detrimental to the Company and its shareholders for such
Registration Statement to be effected at such time; provided further, however , that the Company
shall not have the right to exercise the right set forth in the immediately preceding proviso more
than once in any 365-day period in respect of a Demand Registration hereunder.
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3.1.2 Copies. The Company shall, prior to filing a Registration Statement or
prospectus, or any amendment or supplement thereto, furnish without charge to the holders of
Registrable Securities included in such registration, and such holders’ legal counsel, copies of
such Registration Statement as proposed to be filed, each amendment and supplement to such
Registration Statement (in each case including all exhibits thereto and documents incorporated by
reference therein), the prospectus included in such Registration Statement (including each
preliminary prospectus), and such other documents as the holders of Registrable Securities included
in such registration or legal counsel for any such holders may request in order to facilitate the
disposition of the Registrable Securities owned by such holders.
3.1.3 Amendments and Supplements. The Company shall prepare and file with the
Commission such amendments, including post-effective amendments, and supplements to such
Registration Statement and the prospectus used in connection therewith as may be necessary to keep
such Registration Statement effective and in compliance with the provisions of the Securities Act
until all Registrable Securities and other securities covered by such Registration Statement have
been disposed of in accordance with the intended method(s) of distribution set forth in such
Registration Statement (which period shall not exceed the sum of one hundred eighty (180) days plus
any period during which any such disposition is interfered with by any stop order or injunction of
the Commission or any governmental agency or court) or such securities have been withdrawn.
3.1.4 Notification. After the filing of a Registration Statement, the Company shall
promptly, and in no event more than two (2) business days after such filing, notify the holders of
Registrable Securities included in such Registration Statement of such filing, and shall further
notify such holders promptly and confirm such advice in writing in all events within two (2)
business days of the occurrence of any of the following: (i) when such Registration Statement
becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes
effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the
Company shall take all actions required to prevent the entry of such stop order or to remove it if
entered); and (iv) any request by the Commission for any amendment or supplement to such
Registration Statement or any prospectus relating thereto or for additional information or of the
occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of the securities covered by such Registration
Statement, such prospectus will not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not
misleading, and promptly make available to the holders of Registrable Securities included in such
Registration Statement any such supplement or amendment; except that before filing with the
Commission a Registration Statement or prospectus or any amendment or supplement thereto, including
documents incorporated by reference, the Company shall furnish to the holders of Registrable
Securities included in such Registration Statement and to the legal counsel for any such holders,
copies of all such documents proposed to be filed sufficiently in advance of filing to provide such
holders and legal counsel with a reasonable opportunity to review such documents and comment
thereon, and the Company shall not file any Registration Statement or prospectus or amendment or
supplement thereto, including documents incorporated by reference, to which such holders or their
legal counsel shall reasonably object.
3.1.5 State Securities Laws Compliance. The Company shall use its best efforts to (i)
register or qualify the Registrable Securities covered by the Registration Statement under such
securities or “blue sky” laws of such jurisdictions in the United States as the holders of
Registrable Securities included in such Registration Statement (in light of their intended plan of
distribution) may request and (ii) take such action necessary to cause such Registrable Securities
covered by the Registration Statement to be registered with or approved by such other Governmental
Authorities as may be necessary by virtue of the business and operations of the Company and do any
and all other acts and things that may be necessary or advisable to enable the holders of
Registrable Securities included in such Registration Statement to consummate the disposition of
such Registrable Securities in such jurisdictions; provided , however , that the Company shall not
be required to qualify generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph 3.1.5 or subject itself to taxation in any such
jurisdiction.
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3.1.6 Agreements for Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take such other actions
as are reasonably required in order to expedite or facilitate the disposition of such Registrable
Securities. The representations, warranties and covenants of the Company in any underwriting
agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall
also be made to and for the benefit of the holders of Registrable Securities included in such
registration statement. No holder of Registrable Securities included in such registration statement
shall be required to make any representations or warranties in the underwriting agreement except,
if applicable, with respect to such holder’s organization, good standing, authority, title to
Registrable Securities, lack of conflict of such sale with such holder’s material agreements and
organizational documents, and with respect to written information relating to such holder that such
holder has furnished in writing expressly for inclusion in such Registration Statement. Holders of
Registrable Securities shall agree to such covenants and indemnifications and contribution
obligations for selling securityholders as are customarily contained in agreements of that type.
Further such holders shall cooperate fully in the preparation of the Registration Statement or
other documents relating to any offering in which they include Registrable Securities they hold.
Each holder shall also furnish to the Company such information regarding itself, the Registrable
Securities held by such holder and the intended method of disposition of such securities as shall
reasonably be required to effective the registration of the Registrable Securities.
3.1.7 Cooperation. The principal executive officer of the Company, the principal
financial officer of the Company, the principal accounting officer of the Company and all other
officers and members of the management of the Company shall cooperate fully in any offering of
Registrable Securities hereunder, which cooperation shall include, without limitation, the
preparation of the Registration Statement with respect to such offering and all other offering
materials and related documents, and participation in meetings with Underwriters, attorneys,
accountants and potential investors.
3.1.8 Records. The Company shall make available for inspection by the holders of
Registrable Securities included in such Registration Statement, any Underwriter participating in
any disposition pursuant to such registration statement and any attorney, accountant or other
professional retained by any holder of Registrable Securities included in such Registration
Statement or any Underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, as shall be necessary to enable them to exercise their due diligence
responsibility, and cause the Company’s officers, directors and employees to supply all information
reasonably requested by any of them in connection with such Registration Statement.
3.1.9 Opinions and Comfort Letters. The Company shall furnish to each holder of
Registrable Securities included in any Registration Statement a signed counterpart, addressed to
such holder, of (i) any opinion of counsel to the Company delivered to any Underwriter and (ii) any
comfort letter from the Company’s independent public accountants delivered to any Underwriter. In
the event no legal opinion is delivered to any Underwriter, the Company shall furnish to each
holder of Registrable Securities included in such Registration Statement, at any time that such
holder elects to use a prospectus, an opinion of counsel to the Company to the effect that the
Registration Statement containing such prospectus has been declared effective and that no stop
order is in effect.
3.1.10 Earnings Statement. The Company shall comply with all applicable rules and
regulations of the Commission and the Securities Act, and make available to its shareholders, as
soon as practicable, an earnings statement covering a period of twelve (12) months, beginning
within three (3) months after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
3.1.11 Listing. The Company shall use its best efforts to cause all Registrable
Securities included in any registration to be listed on such exchanges or otherwise designated for
trading in the same manner as similar securities issued by the Company are then listed or
designated or, if no such similar securities are then listed or designated, in a manner
satisfactory to the holders of a majority of the Registrable Securities included in such
registration.
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3.2 Obligation to Suspend Distribution. Upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3.1.4(iv), or, in the case of a resale
registration on Form F-3 pursuant to Section 2.3 hereof, upon any suspension by the Company,
pursuant to a written xxxxxxx xxxxxxx compliance program adopted by the Company’s Board of
Directors, of the ability of all “insiders” covered by such program to transact in the Company’s
securities because of the existence of material non-public information, each holder of Registrable
Securities included in any registration shall immediately discontinue disposition of such
Registrable Securities pursuant to the Registration Statement covering such Registrable Securities
until such holder receives the supplemented or amended prospectus contemplated by Section 3.1.4(iv)
or the restriction on the ability of “insiders” to transact in the Company’s securities is removed,
as applicable, and, if so directed by the Company, each such holder will deliver to the Company all
copies, other than permanent file copies then in such holder’s possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such notice.
3.3 Registration Expenses. The Company shall bear all costs and expenses incurred in
connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back Registration
pursuant to Section 2.2, and any registration on Form F-3 effected pursuant to Section 2.3, and all
expenses incurred in performing or complying with its other obligations under this Agreement,
whether or not the Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees; (ii) fees and expenses of compliance with securities or “blue sky”
laws (including fees and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses (including,
without limitation, all salaries and expenses of its officers and employees); (v) the fees and
expenses incurred in connection with the listing of the Registrable Securities as required by
Section 3.1.11; (vi) National Association of Securities Dealers, Inc. fees; (vii) fees and
disbursements of counsel for the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses or costs associated with the delivery
of any opinions or comfort letters requested pursuant to Section 3.1.9); (viii) the fees and
expenses of any special experts retained by the Company in connection with such registration and
(ix) the fees and expenses of one legal counsel selected by the holders of a majority-in-interest
of the Registrable Securities included in such registration. The Company shall have no obligation
to pay any underwriting discounts or selling commissions attributable to the Registrable Securities
being sold by the holders thereof, which underwriting discounts or selling commissions shall be
borne by such holders. Additionally, in an underwritten offering, all selling securityholders and
the Company shall bear the expenses of the underwriter pro rata in proportion to the respective
amount of securities each is selling in such offering.
3.4 Information. The holders of Registrable Securities shall provide such information
as may reasonably be requested by the Company, or the managing Underwriter, if any, in connection
with the preparation of any Registration Statement, including amendments and supplements thereto,
in order to effect the registration of any Registrable Securities under the Securities Act pursuant
to Section 2 and in connection with the Company’s obligation to comply with federal and applicable
state securities laws.
3.5 Holder Obligation. No holder of Registrable Securities may participate in any
underwritten offering pursuant to this Section 3 unless such holder: (i) agrees to sell only such
holder’s Registrable Securities on the basis reasonably provided in any underwriting agreement and
(ii) completes, executes and delivers any and all questionnaires, powers of attorney, custody
agreements, indemnities, underwriting agreements and other documents reasonably required by or
under the terms of any underwriting agreement or as reasonably requested by the Company.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless
each Investor and each other holder of Registrable Securities, and each of their respective
officers, employees, affiliates, directors, partners, members, attorneys and agents, and each
person, if any, who controls an Investor and each other holder of Registrable Securities (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an
“Investor Indemnified Party”), from and against any expenses, losses, judgments, claims, damages or
liabilities, whether joint or several, arising out
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of or based upon any untrue statement (or allegedly untrue statement) of a material fact
contained in any Registration Statement under which the sale of such Registrable Securities was
registered under the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained in the Registration Statement, or any amendment or supplement to such
Registration Statement, or arising out of or based upon any omission (or alleged omission) to state
a material fact required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or any rule or regulation
promulgated thereunder applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration; and the Company shall promptly reimburse the
Investor Indemnified Party for any legal and any other expenses reasonably incurred by such
Investor Indemnified Party in connection with investigating and defending any such expense, loss,
judgment, claim, damage, liability or action; provided , however , that the Company will not be
liable in any such case to the extent that any such expense, loss, claim, damage or liability
arises out of or is based upon any untrue statement or allegedly untrue statement or omission or
alleged omission made in such Registration Statement, preliminary prospectus, final prospectus, or
summary prospectus, or any such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company, in writing, by such selling holder expressly for use therein
or for the use by any Investor Indemnified Party of a prospectus in violation of any stop order or
other suspension of the Registration Statement; and (b) the foregoing indemnity. The Company also
shall not inure to the benefit of any holder (or any person controlling such holder) from whom the
person asserting such expense, loss, claim, damage or liability purchased the Registrable
Securities, if a copy of the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on behalf of such
holder to such person, if required by law so to have been delivered at or prior to the written
confirmation of the sale of the Registrable Securities to such person, and if the Prospectus (as to
amended or supplemented) would have cured the defect giving rise to such expense, loss, claim,
damage or liability, unless such failure is the result of noncompliance by the Company with Section
3.1.3 hereof. The Company also shall indemnify any Underwriter of the Registrable Securities, their
officers, employees, affiliates, directors, partners, members attorneys and agents and each person
who controls such Underwriter on substantially the same basis as that of the indemnification
provided above in this Section 4.1.
4.2 Indemnification by Holders of Registrable Securities. Each selling holder of
Registrable Securities will, in the event that any registration is being effected under the
Securities Act pursuant to this Agreement of any Registrable Securities held by such selling
holder, indemnify and hold harmless the Company, each of its directors and officers and each
underwriter (if any), and each other person, if any, who controls the company or any such
underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any losses, claims, judgments, damages or liabilities, whether joint or several,
insofar as such losses, claims, judgments, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or allegedly untrue statement of a material
fact contained in any Registration Statement under which the sale of such Registrable Securities
was registered under the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained in the Registration Statement, or any amendment or supplement to the
Registration Statement, or arise out of or are based upon any omission or the alleged omission to
state a material fact required to be stated therein or necessary to make the statement therein not
misleading, if the statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by such selling holder expressly for use therein or
for the use by any Investor Indemnified Party of a prospectus in violation of any stop order or
other suspension of the Registration Statement, and shall reimburse the Company, its directors and
officers, and each such controlling person for any legal or other expenses reasonably incurred by
any of them in connection with investigation or defending any such loss, claim, damage, liability
or action. Each selling holder’s indemnification obligations hereunder shall be several and not
joint and shall be limited to the amount of any net proceeds actually received by such selling
holder in connection with the sale of the Registrable Securities by such selling holder pursuant to
the Registration Statement containing such untrue or allegedly untrue statement.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by any person of
any notice of any loss, claim, damage or liability or any action in respect of which indemnity may
be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified Party”) shall, if a claim
in respect
9
thereof is to be made against any other person for indemnification hereunder, notify such
other person (the “Indemnifying Party”) in writing of the loss, claim, judgment, damage, liability
or action; provided, however, that the failure by the Indemnified Party to notify the Indemnifying
Party shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may
have to such Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is
materially prejudiced by such failure. If the Indemnified Party is seeking indemnification with
respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party
shall be entitled to participate in such claim or action, and, to the extent that it desires,
jointly with all other Indemnifying Parties, to assume control of the defense thereof with counsel
satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action, the Indemnifying
Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that in any action in which both the Indemnified Party
and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to
employ separate counsel (but no more than one such separate counsel) to represent the Indemnified
Party and its controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party,
with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the
written opinion of counsel of such Indemnified Party, representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them. No
Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent to
entry of judgment or effect any settlement of any claim or pending or threatened proceeding in
respect of which the Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such judgment or settlement includes an
unconditional release of such Indemnified Party from all liability arising out of such claim or
proceeding.
4.4 Contribution.
4.4.1 If the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is
unavailable to any Indemnified Party in respect of any loss, claim, damage, liability or action
referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such
loss, claim, damage, liability or action in such proportion as is appropriate to reflect the
relative benefit received by the Indemnified Parties and the Indemnifying Parties from the
offering. If, however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the Indemnified Party failed to give the notice required under
Section 4.3 above, then each Indemnifying Party shall contribute to such amount paid or payable by
such Indemnified Party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Indemnified Parties and the Indemnifying Parties in
connection with the actions or omissions which resulted in such loss, claim, damage, liability or
action, as well as any other relevant equitable considerations. The relative fault of any
Indemnified Party and any Indemnifying Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by such Indemnified Party
or such Indemnifying Party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
4.4.2 The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred to in the
immediately preceding Section 4.4.1. The amount paid or payable by an Indemnified Party as a result
of any loss, claim, damage, liability or action referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any legal or other expenses
incurred by such Indemnified Party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 4.4, no holder of Registrable Securities
shall be required to contribute any amount in excess of the dollar amount of the net proceeds
(after payment of any underwriting fees, discounts, commissions or taxes) actually received by such
holder from the sale of Registrable Securities which gave rise to such contribution obligation. No
person guilty of fraudulent misrepresentation (within the meaning of Section
10
11(f) of the Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
5. UNDERWRITING AND DISTRIBUTION.
5.1 Rule 144. The Company covenants that it shall file any reports required to be
filed by it under the Securities Act and the Exchange Act and shall take such further action as the
holders of Registrable Securities may reasonably request, all to the extent required from time to
time to enable such holders to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities
Act, as such Rules may be amended from time to time, or any similar Rule or regulation hereafter
adopted by the Commission.
6. MISCELLANEOUS.
6.1 Other Registration Rights. The Company represents and warrants that no person,
other than (i) a holder of the Registrable Securities and (ii) a subscriber for units of the
Company’s Common Stock and warrants pursuant to that certain Subscription Agreement dated as of
September 24, 2007 by and among the Company and the investors signatory thereto and (iii) Maxim
Group LLC currently has any right to require the Company to register any shares of the Company’s
capital stock for sale or to include shares of the Company’s capital stock in any registration
filed by the Company for the sale of shares of capital stock for its own account or for the account
of any other person.
6.2 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties
and obligations of the Company hereunder may not be assigned or delegated by the Company in whole
or in part. This Agreement and the rights, duties and obligations of the holders of Registrable
Securities hereunder may be freely assigned or delegated by such holder of Registrable Securities
in conjunction with and to the extent of any transfer of Registrable Securities by any such holder.
This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of
each of the parties and their respective successors and the permitted assigns of the Investor or
holder of Registrable Securities or of any assignee of the Investor or holder of Registrable
Securities. This Agreement is not intended to confer any rights or benefits on any persons that are
not party hereto other than as expressly set forth in Article 4 and this Section 6.2.
6.3 Notices. All notices, demands, requests, consents, approvals or other
communications (collectively, “Notices”) required or permitted to be given hereunder or which are
given with respect to this Agreement shall be in writing and shall be personally served, delivered
by reputable air courier service with charges prepaid, or transmitted by hand delivery, telegram,
telex or facsimile, addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice. Notice shall be deemed given on the date of service or
transmission if personally served or transmitted by telegram, telex or facsimile; provided, that if
such service or transmission is not on a business day or is after normal business hours, then such
notice shall be deemed given on the next business day. Notice otherwise sent as provided herein
shall be deemed given on the next business day following timely delivery of such notice to a
reputable air courier service with an order for next-day delivery.
To the Company: |
||||
| Seanergy Maritime Corp. | ||||
| 00, Xxxxxxxxx Xxxxxx | ||||
| 00000 X. Xxxxxx | ||||
| Xxxxxx, Xxxxxx | ||||
| Attn: Panagiotis Zafet, Chief Executive Officer and Co-Chairman | ||||
with a copy to:
|
Loeb & Loeb LLP | |||
| 000 Xxxx Xxxxxx |
00
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attn: Xxxxxxxx X. Xxxxxxxx, Esq. | ||||
To an Investor, to:
|
Panagiotis Zafet | |||
| c/o Seanergy Maritime Corp. | ||||
| 00, Xxxxxxxxx Xxxxxx | ||||
| 00000 X. Xxxxxx | ||||
| Xxxxxx, Xxxxxx | ||||
| ; or | ||||
| Georgios Koutsolioutsos | ||||
| c/o Seanergy Maritime Corp. | ||||
| 00, Xxxxxxxxx Xxxxxx | ||||
| 00000 X. Xxxxxx | ||||
| Xxxxxx, Xxxxxx | ||||
| ; or | ||||
| Xxxxx Xxxxx | ||||
| c/o Seanergy Maritime Corp. | ||||
| 00, Xxxxxxxxx Xxxxxx | ||||
| 00000 X. Xxxxxx | ||||
| Xxxxxx, Xxxxxx | ||||
| ; or | ||||
| Xxxxxxx Xxxxxxxx | ||||
| c/o Seanergy Maritime Corp. | ||||
| 00, Xxxxxxxxx Xxxxxx | ||||
| 00000 X. Xxxxxx | ||||
| Xxxxxx, Xxxxxx | ||||
| ; or | ||||
| Ioannis Tsigkounakis | ||||
| c/o Seanergy Maritime Corp. | ||||
| 00, Xxxxxxxxx Xxxxxx | ||||
| 00000 X. Xxxxxx | ||||
| Xxxxxx, Xxxxxx | ||||
| ; or |
6.4 Severability. This Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall be added as a part
of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may
be possible and be valid and enforceable.
6.5 Counterparts; Facsimile Signatures. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which taken together shall
constitute one and the same instrument. Facsimile signatures shall be deemed to be original
signatures for all purposes of this Agreement.
6.6 Entire Agreement. This Agreement (including all agreements entered into pursuant hereto
and all certificates and instruments delivered pursuant hereto and thereto) constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede all prior and
contemporaneous agreements, representations, understandings, negotiations and discussions between
the parties, whether oral or written.
6.7 Modifications and Amendments. No amendment, modification or termination of this Agreement
shall be binding upon any party unless executed in writing by such party.
12
6.8 Titles and Headings. Titles and headings of sections of this Agreement are for convenience
only and shall not affect the construction of any provision of this Agreement.
6.9 Waivers and Extensions. Any party to this Agreement may waive any right, breach or default
which such party has the right to waive, provided that such waiver will not be effective against
the waiving party unless it is in writing, is signed by such party, and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived has arisen or the breach or
default waived has occurred. Any waiver may be conditional. No waiver of any breach of any
agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding
breach thereof nor of any other agreement or provision herein contained. No waiver or extension of
time for performance of any obligations or acts shall be deemed a waiver or extension of the time
for performance of any other obligations or acts.
6.10 Remedies Cumulative. In the event that the Company fails to observe or perform any
covenant or agreement to be observed or performed under this Agreement, the Investor or any other
holder of Registrable Securities may proceed to protect and enforce its rights by suit in equity or
action at law, whether for specific performance of any term contained in this Agreement or for an
injunction against the breach of any such term or in aid of the exercise of any power granted in
this Agreement or to enforce any other legal or equitable right, or to take any one or more of such
actions, without being required to post a bond. None of the rights, powers or remedies conferred
under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be
cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement
or now or hereafter available at law, in equity, by statute or otherwise.
6.11 Governing Law. This Agreement shall be governed by, interpreted under, and construed in
accordance with the internal laws of the State of New York applicable to agreements made and to be
performed within the State of New York, without giving effect to any choice-of-law provisions
thereof that would compel the application of the substantive laws of any other jurisdiction.
6.12 Waiver of Trial by Jury. Each party hereby irrevocably and unconditionally waives the
right to a trial by jury in any action, suit, counterclaim or other proceeding (whether based on
contract, tort or otherwise) arising out of, connected with or relating to this Agreement, the
transactions contemplated hereby, or the actions of the Investor in the negotiation,
administration, performance or enforcement hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed
and delivered by their duly authorized representatives as of the date first written above.
| SEANERGY MARITIME CORP. | ||||||
| By: | /s/ Panagiotis Zafet | |||||
| Title: Chief Executive Officer and Co-Chairman | ||||||
| INVESTORS | ||||
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