SHARE ACQUISITION AGREEMENT
Exhibit 99.1
SHARE ACQUISITION AGREEMENT (the “Agreement”),
dated as of April 8, 2010, by and between NAVIOS MARITIME
HOLDINGS INC. (“NMH”), a corporation organized
under the laws of the Republic of the Xxxxxxxx Islands and
NAVIOS MARITIME ACQUISITION CORPORATION
(“NMAC”), a corporation organized under the
laws of the Republic of the Xxxxxxxx Islands.
RECITAL
WHEREAS, NMH is a significant shareholder in NMAC;
WHEREAS, pursuant to that certain Right of First Refusal and
Corporate Opportunities Agreement, dated as of June 25,
2008, by and among, NMH, NMAC and Navios Maritime Partners L.P.
(the “ROFR Agreement”), NMAC has a right of
first refusal with respect to certain corporate opportunities in
the shipping industry;
WHEREAS, in accordance with the XXXX Xxxxxxxxx, XXXX wishes to
acquire from NMH, and NMH wishes to assign, transfer and sell to
NMAC, the shares of common stock as set forth on
Schedule B to this Agreement (the
“Shares”) representing all of the issued and
outstanding shares of common stock of Aegean Sea Maritime
Holdings Inc. (“Aegean Sea Holdings”), a wholly
owned subsidiary of NMH and the owner of the entities listed on
Schedule A (the “Vessel-Owning
Subsidiaries”), which Vessel-Owning Subsidiaries will
take delivery, or hold an option for the delivery, as the case
may be, of the vessels (the “Vessels”). The
name (or, in the case of newbuild vessels, the vessel type) and
the delivery date of each Vessel is set forth opposite the
Vessel-Owning Subsidiary’s name on Schedule A
hereto; and
WHEREAS, the Vessel-Owning Subsidiaries are each a party to an
agreement for the purchase and delivery, or with respect to an
option for the delivery, of a Vessel (each, a “Vessel
Agreement”).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Interpretation
Section 1.01 Definitions. In
this Agreement, unless the context requires otherwise or unless
otherwise specifically provided herein, the following terms
shall have the respective meanings set out below and grammatical
variations of such terms shall have corresponding meanings:
“Agreement” means this Agreement,
including its recitals and schedules, as amended and
supplemented;
“Applicable Law” in respect of any
Person, property, transaction or event, means all laws,
statutes, ordinances, regulations, municipal by-laws, treaties,
judgments and decrees applicable to that Person, property,
transaction or event and, whether or not having the force of
law, all applicable official directives, rules, consents,
approvals, authorizations, guidelines, orders, codes of practice
and policies of any Governmental Authority having or purporting
to have authority over that Person, property, transaction or
event and all general principles of common law and equity;
“Business Day” means any day other than
a Saturday, Sunday or any statutory holiday on which banks in
London, Greece and New York are required to close;
“Closing” has the meaning given to it in
Section 2.02;
“Closing Date” means the day on which
the Closing takes place;
“Contracts” has the meaning given to it
in Section 5.08;
“Credit Agreements” mean the agreements
between the Vessel-Owning Subsidiaries and (a) Deutsche
Schiffsbank Aktiengesellschaft, Alpha Bank A.E. and Credit
Agricole Corporate and Investment Bank dated April 7, 2010
(b) DVB Bank SE and Fortis Bank dated April 8, 2010
and (c) a credit facility of up to $52 million to be
used to partially finance the acquisition of two currently
operating LR1 vessels, which is currently in advanced
negotiations;
“Encumbrance” means any mortgage, lien,
charge, assignment, adverse claim, hypothecation, restriction,
option, covenant, condition or encumbrance, whether fixed or
floating, on, or any security interest in, any property whether
real, personal or mixed, tangible or intangible, any pledge or
hypothecation of any property, any deposit arrangement,
priority, conditional sale agreement, other title retention
agreement or equipment trust, capital lease or other security
arrangements of any kind;
“Governmental Authority” means any
domestic or foreign government, including federal, provincial,
state, municipal, county or regional government or governmental
or regulatory authority, domestic or foreign, and includes any
department, commission, bureau, board, administrative agency or
regulatory body of any of the foregoing and any multinational or
supranational organization;
“Initial Public Offering” means the
initial public offering of NMAC pursuant to the Registration
Statement;
“Losses” means, with respect to any
matter, all losses, claims, damages, liabilities, deficiencies,
costs, expenses (including all costs of investigation, legal and
other professional fees and disbursements, interest, penalties
and amounts paid in settlement) or diminution of value, whether
or not involving a claim from a third party, however
specifically excluding consequential, special and indirect
losses, loss of profit and loss of opportunity;
“NMAC Indemnitees” has the meaning given
to it in Section 9.01;
“NMH Indemnities” has the meaning given
to it in Section 9.02;
“Notice” means any notice, citation,
directive, order, claim, litigation, investigation, proceeding,
judgment, letter or other communication, written or oral, actual
or threatened, from any Person;
“Parties” means all parties to this
Agreement and “Party” means any one of them;
“Person” means an individual, legal
personal representative, corporation, body corporate, firm,
partnership, trust, trustee, syndicate, joint venture,
unincorporated organization or Governmental Authority;
“Registration Statement” means the
registration statement on
Form F-1
filed by NMAC in connection with the Initial Public Offering, as
it may be amended.
“Shares” has the meaning given to it in
the recitals;
“Taxes” means all income, franchise,
business, property, sales, use, goods and services or value
added, withholding, excise, alternate minimum capital, transfer,
excise, customs, anti-dumping, stumpage, countervail, net worth,
stamp, registration, franchise, payroll, employment, health,
education, business, school, property, local improvement,
development, education development and occupation taxes,
surtaxes, duties, levies, imposts, rates, fees, assessments,
dues and charges and other taxes required to be reported upon or
paid to any domestic or foreign jurisdiction and all interest
and penalties thereon;
“Time of Closing” has the meaning given
to it in Section 2.02;
“Vessel Agreement” has the meaning given
to it in the recitals;
“Vessel-Owning Subsidiary” has the
meaning given to it in the recitals; and
“Vessel” has the meaning given to it in
the recitals.
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ARTICLE II
Transfer
of Shares; Closing
Section 2.01 Transfer
of Shares. NMH agrees to assign, sell and
transfer to NMAC, and NMAC agrees to accept from NMH and in
accordance with and subject to the terms and conditions set
forth in this Agreement, the Shares.
Section 2.02 Closing. On
the terms and subject to the conditions of this Agreement, the
transfer of the Shares of Aegean Sea Holdings shall take place
within five Business Days after the date on which the
stockholders of NMAC approve the transactions contemplated by
this Agreement or on such other date as may be agreed upon in
writing by NMH and NMAC (the “Time of
Closing”). The assignment and transfer of Shares of
Aegean Sea Holdings is hereinafter referred to as the
“Closing.”
Section 2.03 Place
of Closing. The Closing shall occur at a
place agreed upon in writing by NMH and NMAC.
ARTICLE III
Representations
and Warranties of NMAC
NMAC represents and warrants to the NMH that as of the date
hereof and on the Closing Date:
Section 3.01 Organization
and Limited Partnership Authority. NMAC is
duly formed, validly existing and in good standing under the
laws of the Republic of the Xxxxxxxx Islands, and has all
requisite corporate power and authority to enter into this
Agreement and to consummate the transaction contemplated hereby.
This Agreement has been duly executed and delivered by NMAC, has
been effectively authorized by all necessary action, corporate
or otherwise, and constitutes legal, valid and binding
obligations of NMAC. No meeting has been convened or resolution
proposed or petition presented and no order has been made to
wind up NMAC.
Section 3.02 Agreement
Not in Breach of Other Instruments. The
execution and delivery of this Agreement, the consummation of
the transaction contemplated hereby and the fulfillment of the
terms hereof will not result in a breach of any of the terms or
provisions of, or constitute a default under, or conflict with,
any agreement or other instrument to which NMAC is a party or by
which it is bound, its articles of incorporation and by-laws,
any judgment, decree, order or award of any court, governmental
body or arbitrator by which NMAC is bound, or any law, rule or
regulation applicable to NMAC which would have a material effect
on the transaction contemplated hereby.
Section 3.03 No
Legal Bar. NMAC is not prohibited by any
order, writ, injunction or decree of any body of competent
jurisdiction from consummating the transaction contemplated by
this Agreement and no such action or proceeding is pending or,
to the best of its knowledge and belief, threatened against NMAC
that questions the validity of this Agreement, the transaction
contemplated hereby or any action that has been taken by any of
the parties in connection herewith or in connection with the
transaction contemplated hereby.
ARTICLE IV
Representations
and Warranties of NMH
NMH represents and warrants to NMAC that as of the date hereof
and on the Closing Date:
Section 4.01 Organization
and Corporate Authority. NMH is duly
incorporated, validly existing and in good standing under the
laws of the Republic of the Xxxxxxxx Islands, and has all
requisite corporate power and authority to enter into this
Agreement and to consummate the transaction contemplated hereby.
This Agreement has been duly executed and delivered by NMH, has
been effectively authorized by all necessary action, corporate
or otherwise, and constitutes legal, valid and binding
obligations of NMH. No meeting has been convened or resolution
proposed or petition presented and no order has been made to
wind up NMH.
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Section 4.02 Agreement
Not in Breach of Other Instruments. The
execution and delivery of this Agreement, the consummation of
the transaction contemplated hereby and the fulfillment of the
terms hereof will not result in a breach of any of the terms or
provisions of, or constitute a default under, or conflict with,
any agreement or other instrument to which NMH is a party or by
which it is bound, the Articles of Incorporation and Bylaws of
NMH, any judgment, decree, order or award of any court,
governmental body or arbitrator by which NMH is bound, or any
law, rule or regulation applicable to NMH.
Section 4.03 No
Legal Bar. NMH is not prohibited by any
order, writ, injunction or decree of any body of competent
jurisdiction from consummating the transaction contemplated by
this Agreement and no such action or proceeding is pending or,
to the best of its knowledge and belief, threatened against NMH
that questions the validity of this Agreement, the transaction
contemplated hereby or any action that has been taken by any of
the parties in connection herewith or in connection with the
transaction contemplated hereby.
Section 4.04 Good
and Marketable Title to Shares. NMH is the
registered owner of all of the Shares and now has, and at the
Closing will have and convey to NMAC, good and marketable title
to the Shares, free and clear of any and all Encumbrances.
Section 4.05 Right
to Enter Agreement. NMH has the full right,
power and authority to enter into this Agreement and to
transfer, convey and sell to NMAC at the Time of Closing the
Shares and upon consummation of the purchase contemplated
hereby, NMAC will acquire from NMH good and marketable title to
the Shares, free and clear of all covenants, conditions,
restrictions, voting trust arrangements, liens, charges,
encumbrances, options and adverse claims or rights whatsoever.
ARTICLE V
Representations
and Warranties of
NMH
Regarding Aegean Sea Holdings and the Vessel-Owning
Subsidiaries
NMH represents and warrants to NMAC that as of the date hereof
and on the Closing Date:
Section 5.01 Organization
Good Standing and Authority. Each of Aegean
Sea Holdings and each Vessel-Owning Subsidiary is a corporation
duly incorporated, validly existing and in good standing under
the laws of the Republic of the Xxxxxxxx Islands and the Cayman
Islands. Each of Aegean Sea Holdings and each Vessel-Owning
Subsidiary has full corporate power and authority to carry on
its business as it is now, and has since its incorporation been,
conducted, and is entitled to own, lease or operate the
properties and assets it now owns, leases or operates and to
enter into legal and binding contracts. Each of Aegean Sea
Holdings and each Vessel-Owning Subsidiary is qualified to do
business, is in good standing and has all required and
appropriate licenses and authorizations in each jurisdiction in
which its failure to obtain or maintain such qualification, good
standing, licensing or authorization would have a material
adverse effect on the condition (financial or otherwise),
assets, properties, business or prospects of such entity taken
as a whole. No meeting has been convened or resolution proposed
or petition presented and no order has been made to wind up
Aegean Sea Holdings or any Vessel-Owning Subsidiary.
Section 5.02 Capitalization. (a) The
Shares consist of the shares listed next to Aegean Sea Holdings
in Schedule B. The Shares have been duly
authorized and validly issued and are fully paid and
non-assessable, and constitute the total authorized, issued and
outstanding capital stock of Aegean Sea Holdings. There are not,
and on the Closing Date there will not be, outstanding
(i) any options, warrants or other rights to purchase from
Aegean Sea Holdings any capital stock of Aegean Sea Holdings,
(ii) any securities convertible into or exchangeable for
shares of such capital stock or (iii) any other commitments
of any kind for the issuance of additional shares of capital
stock or options, warrants or other securities of Aegean Sea
Holdings.
(b) All of the issued and outstanding shares of capital
stock of, or other equity interests in, each Vessel-Owning
Subsidiary are: (i) duly authorized, validly issued, fully
paid, non-assessable; (ii) owned by Aegean Sea Holdings
free and clear of all liens and encumbrances except for those
liens and encumbrances under the Credit Agreements; and
(iii) free of any restriction, including, without
limitation, any restriction which
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restricts the right to vote, sell or otherwise dispose of such
capital stock or other ownership interest except for
restrictions under the Credit Agreements. There are no
outstanding or authorized options, warrants, rights, agreements
or commitments to which any Vessel-Owning Subsidiary is a party
or which are binding on any of them providing for the issuance,
disposition or acquisition of any capital stock of any
Vessel-Owning Subsidiary. There are no voting trusts, proxies or
other agreements or understandings with respect to the voting of
any capital stock of any Vessel-Owning Subsidiary.
Section 5.03 Organizational
Documents. NMH has supplied to NMAC true and
correct copies of the organizational documents of Aegean Sea
Holdings and each Vessel-Owning Subsidiary, as in effect on the
Closing Date (the “Organizational
Documents”) and no amendments will be made to the
Organizational Documents prior to the Closing Date without the
prior written consent of NMAC (such consent not to be
unreasonably withheld).
Section 5.04 Agreement
Not in Breach of Other Instruments. Neither
the execution and delivery of this Agreement nor the
consummation of the transaction contemplated hereby will
violate, or result in a breach of, any of the terms and
provisions of, or constitute a default under, or conflict with,
or give any other party thereto a right to terminate any
agreement or other instrument to which Aegean Sea Holdings or
any Vessel-Owning Subsidiary is a party or by which it is bound
including, without limitation, its articles of incorporation and
bylaws or any judgment, decree, order or award of any court,
governmental body or arbitrator applicable to Aegean Sea
Holdings or any Vessel-Owning Subsidiary.
Section 5.05 Litigation.
(a) There is no action, suit or proceeding to which Aegean
Sea Holdings or any Vessel-Owning Subsidiary is a party (either
as a plaintiff or defendant) pending before any court or
governmental agency, authority or body or arbitrator; there is
no action, suit or proceeding threatened against Aegean Sea
Holdings or any Vessel-Owning Subsidiary; and, to the best
knowledge of NMH, there is no basis for any such action, suit or
proceeding;
(b) Neither Aegean Sea Holdings nor any Vessel-Owning
Subsidiary has been permanently or temporarily enjoined by any
order, judgment or decree of any court or any governmental
agency, authority or body from engaging in or continuing any
conduct or practice in connection with the business, assets, or
properties of Aegean Sea Holdings or any Vessel-Owning
Subsidiary; and
(c) There is not in existence any order, judgment or decree
of any court or other tribunal or other agency enjoining or
requiring Aegean Sea Holdings or any Vessel-Owning Subsidiary to
take any action of any kind with respect to its business, assets
or properties.
Section 5.06 Indebtedness
to and from Officers, etc. Neither Aegean Sea
Holdings nor any Vessel-Owning Subsidiary will be indebted,
directly or indirectly, to any person who is an officer,
director, stockholder or employee of any of NMH or any spouse,
child, or other relative or any affiliate of any such person,
nor shall any such officer, director, stockholder, employee,
relative or affiliate be indebted to Aegean Sea Holdings or any
Vessel-Owning Subsidiary.
Section 5.07 Contracts
and Agreements. All contracts and agreements,
written or oral, to which Aegean Sea Holdings or any
Vessel-Owning Subsidiary is a party or by which any of its
assets are bound, including each Vessel Agreement (the
“Contracts”), have been disclosed to NMAC. No
other contracts or agreements, written or oral, will be entered
into by Aegean Sea Holdings or any Vessel-Owning Subsidiary
prior to the Closing Date without the prior consent of NMAC
(such consent not to be unreasonably withheld).
(a) Each of the Contracts is a valid and binding agreement
of Aegean Sea Holdings and of each Vessel-Owning Subsidiary, as
applicable, and to the best knowledge of NMH, of all other
parties thereto;
(b) Aegean Sea Holdings and each Vessel-Owning Subsidiary
has fulfilled all material obligations required pursuant to its
Contracts to have been performed by it prior to the date hereof
and has not waived any material rights thereunder; and
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(c) There has not occurred any material default under any
of the Contracts, or to the best knowledge of NMH, on the part
of any other party thereto nor has any event occurred that with
the giving of notice or the lapse of time, or both, would
constitute any material default on the part of Aegean Sea
Holdings or any Vessel-Owning Subsidiary, as applicable, under
any of the Contracts nor, to the best knowledge of NMH, has any
event occurred that with the giving of notice or the lapse of
time, or both, would constitute any material default on the part
of any other party to any of the Contracts.
Section 5.08 Compliance
with Law. The conduct of business by each of
Aegean Sea Holdings and each Vessel-Owning Subsidiary on the
date hereof does not violate any laws, statutes, ordinances,
rules, regulations, decrees, orders, permits or other similar
items in force on the date hereof (including, but not limited
to, any of the foregoing relating to employment discrimination,
environmental protection or conservation) of any country,
province, state or other governing body, the enforcement of
which would materially and adversely affect the business,
assets, condition (financial or otherwise) or prospects of
Aegean Sea Holdings or any Vessel-Owning Subsidiary, nor has
Aegean Sea Holdings or any Vessel-Owning Subsidiary received any
notice of any such violation.
Section 5.09 No
Undisclosed Liabilities. Other than
obligations under the Credit Agreements and the legal fees and
other expenses relating to the negotiation and execution of the
Contracts and the Credit Agreements , neither Aegean Sea
Holdings nor any Vessel-Owning Subsidiary (or the Vessel owned
by it) has any other liabilities or obligations of any nature,
whether absolute, accrued, contingent or otherwise, and whether
due or to become due (including, without limitation, any
liability for taxes and interest, penalties and other charges
payable with respect to any such liability or obligation).
Section 5.10 Title
to Vessels. Upon delivery, each Vessel-Owning
Subsidiary will be the registered owner of the applicable Vessel.
Section 5.11 No
Encumbrances. Each Vessel-Owning Subsidiary
and its applicable Vessel will be free of all Encumbrances other
than the Encumbrances appearing in the ship registry of the
Vessel and those arising under the applicable Credit Agreements
and the Contracts.
Section 5.12 Condition. Each
Vessel will be (i) adequate and suitable for use by the
applicable Vessel-Owning Subsidiary in its business, ordinary
wear and tear excepted; (ii) seaworthy in all material
respects for hull and machinery insurance warranty purposes and
in good running order and repair; (iii) insured against all
risks, and in amounts, consistent with common industry
practices; (iv) in compliance with maritime laws and
regulations; (v) in compliance in all material respects
with the requirements of its class and classification society;
and (vi) all class certificates of the Vessel will be clean
and valid and free of recommendations affecting class.
Section 5.13 Disclosure
of Information. NMH has disclosed to NMAC all
material information on, and about, Aegean Sea Holdings and each
Vessel-Owning Subsidiary and the Vessels and all such
information is true, accurate and not misleading in any material
respect. Nothing has been withheld from the material provided to
NMAC that would render such information untrue or misleading.
ARTICLE VI
Pre-Closing
Matters
Section 6.01 Covenants
of NMH Prior to the Closing. From the date of
this Agreement to the Closing Date, NMH shall cause Aegean Sea
Holdings and each Vessel-Owning Subsidiary to conduct its
businesses in the usual, regular and ordinary course in
substantially the same manner as previously conducted. NMH shall
not, and shall not permit Aegean Sea Holdings or any
Vessel-Owning Subsidiary to, take any action that would result
in any of the conditions to the assignment and transfer of
Shares set forth in Article VII not being satisfied. In
addition, NMH hereby agrees and covenants that it:
(a) shall cooperate with NMAC and use its reasonable best
efforts to obtain, at or prior to the Closing Date, any consents
required in respect of the transfer of the rights and benefits
under the Contracts;
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(b) shall use its reasonable best efforts to take or cause
to be taken promptly all actions and to do or cause to be done
all things necessary, proper and advisable to consummate and
make effective as promptly as practicable the transaction
contemplated by this Agreement and to cooperate with NMAC in
connection with the foregoing, including using all reasonable
best efforts to obtain all necessary consents, approvals and
authorizations from each Governmental Authority and each other
Person that are required to consummate the transaction
contemplated under this Agreement;
(c) shall take or cause to be taken all necessary corporate
action, steps and proceedings to approve or authorize validly
and effectively the assignment and transfer of the Shares and
the execution and delivery of this Agreement and the other
agreements and documents contemplated hereby;
(d) shall not amend, alter or otherwise modify or permit
any amendment, alteration or modification of any material
provision of or terminate the Vessel Agreements without the
prior written consent of NMAC, not to be unreasonably withheld
or delayed;
(e) shall not exercise or permit any exercise of any rights
or options contained in the Vessel Agreements, without the prior
written consent of NMAC, not to be unreasonably withheld or
delayed;
(f) shall consult with NMAC regarding all material
decisions to be made pursuant to each Vessel Agreement, and
shall make such decisions only with the prior approval of NMAC,
not to be unreasonably withheld or delayed;
(g) shall cause Aegean Sea Holdings and each Vessel-Owning
Subsidiary to observe and perform in a timely manner, all of its
covenants and obligations under its Vessel Agreement, if any,
and (i) in the case of a default by another party thereto,
it shall forthwith advise NMAC of such default and shall, if
requested by NMAC, enforce all of Aegean Sea Holdings and any
Vessel-Owning Subsidiary’s rights under such Vessel
Agreement in respect of such default; and (ii) in the case
of a breach or anticipated breach of any Vessel Agreement by any
Vessel-Owning Subsidiary, it shall permit NMAC to cure on its
behalf such breach or anticipated breach and shall promptly
reimburse NMAC for any and all costs that NMAC may expend in
order to effect such cure; and
(h) shall not cause or, to the extent reasonably within its
control, permit any Encumbrances to attach to any Vessel except
for Encumbrances under the Credit Agreements.
Section 6.02 Covenant
of NMAC Prior to the Closing. NMAC hereby
agrees and covenants that during the period of time after the
date of the Agreement and prior to the Closing Date, NMAC shall,
in respect of the Shares to be transferred on the Closing Date,
take, or cause to be taken, all necessary corporate action,
steps and proceedings to approve or authorize validly and
effectively the acceptance of the Shares and the execution and
delivery of this Agreement and the other agreements and
documents contemplated hereby.
ARTICLE VII
Conditions
Of Closing
Section 7.01 Conditions
of NMH. The obligation of NMH to assign and
transfer the Shares is subject to the satisfaction (or waiver by
NMH) on or prior to the Closing Date of the following conditions:
(a) the representations and warranties of NMAC made in this
Agreement shall be true and correct in all material respects as
of the Closing Date as though made on the Closing Date, except
to the extent such representations and warranties expressly
relate to an earlier date (in which case such representations
and warranties shall be true and correct in all material
respects, on and as of such earlier date);
(b) NMAC shall have performed or complied in all material
respects with all obligations and covenants required by this
Agreement to be performed or complied with by NMAC by the
Closing Date;
(c) no legal or regulatory action or proceeding shall be
pending or threatened by any Governmental Authority to enjoin,
restrict or prohibit the purchase and sale of the Shares;
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(e) NMAC shall have replaced NMH as a guarantor of
(i) the Credit Agreements relating to financing for the
purchase of the Vessels and (ii) any performance or similar
guaranties to any shipbuilder or seller relating to the Vessels,
each in form and substance reasonably satisfactory to each of
NMH and NMAC;
(f) NMAC shall have reimbursed NMH for all out of pocket
costs and expenses incurred in connection with the transactions
contemplated hereby, including, but not limited to, all costs
and expenses incurred in forming and maintaining Aegean Sea
Holdings and the Vessel-Owning Subsidiaries, costs and expenses
incurred in connection with the negotiation, execution and
delivery of the Credit Agreements and the Vessel Agreements and
any payments made by NMH, Aegean Sea Holdings or the
Vessel-Owning Subsidiaries under the Vessel Agreements, except
to the extent such payments were funded by funds drawn from the
Credit Agreements; and
(g) all proceedings to be taken in connection with the
transaction contemplated by this Agreement and all documents
incidental thereto shall be reasonably satisfactory in form and
substance to NMH, and NMH shall have received copies of all such
documents and other evidence as it may reasonably request in
order to establish the consummation of such transaction and the
taking of all proceedings in connection therewith.
Section 7.02 Conditions
of NMAC. The obligation of NMAC to accept
delivery of the Shares is subject to the satisfaction (or waiver
by NMAC) on or prior to the Closing Date of the following
conditions:
(a) the representations and warranties of NMH in this
Agreement shall be true and correct in all material respects as
of the Closing Date as though made on the Closing Date, except
to the extent such representations and warranties expressly
relate to an earlier date (in which case such representations
and warranties shall be true and correct in all material
respects, on and as of such earlier date);
(b) NMH shall have performed or complied in all material
respects with all obligations and covenants required by this
Agreement to be performed or complied with by NMH by the Closing
Date;
(c) no legal or regulatory action or proceeding shall be
pending or threatened by any Governmental Authority to enjoin,
restrict or prohibit the assignment and transfer of the Shares;
(d) the stockholders of NMAC shall have approved of the
transactions contemplated hereby and less than 40% of the shares
of common stock sold in the Initial Public Offering both vote
against the vessel acquisition proposal and properly exercise
their conversion rights;
(e) NMAC shall have received written consents from all
third parties necessary or appropriate to effect the purchase
and sale of the Shares, if any; and
(f) all proceedings to be taken in connection with the
transactions contemplated by this Agreement and all documents
incidental thereto shall be reasonably satisfactory in form and
substance to NMAC and its counsel, and NMAC shall have received
copies of all such documents and other evidence as it or its
counsel may reasonably request in order to establish the
consummation of such transaction and the taking of all
proceedings in connection therewith.
ARTICLE VIII
Termination,
Amendment and Waiver
Section 8.01 Termination
of Agreement. Notwithstanding anything to the
contrary in this Agreement, this Agreement may be terminated and
the assignment and transfer of the Shares contemplated by this
Agreement abandoned at any time prior to the Closing:
(a) by mutual written consent of NMH and NMAC; or
(b) by NMH if any of the conditions set forth in
Section 7.01 shall have become incapable of fulfillment,
and shall not have been waived by NMH; or
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(c) by NMAC if any of the conditions set forth in
Section 7.02 shall have become incapable of fulfillment,
and shall not have been waived by NMAC; or
(d) by written notice by either NMAC or NMH, if, at the
meeting of NMAC’s stockholders to vote upon the approval of
this Agreement and the transactions contemplated hereby
(including any adjournment or postponement thereof at which this
Agreement is voted upon), the approval by the stockholders of
NMAC shall not have been obtained.
provided, however, that the party seeking
termination pursuant to clause (b), (c) or (d) is not
then in material breach of any of its representations,
warranties, covenants or agreements contained in this Agreement.
Section 8.02 Amendments
and Waivers. This Agreement may not be
amended except by an instrument in writing signed on behalf of
each Party hereto. By an instrument in writing NMAC, on the one
hand, or NMH, on the other hand, may waive compliance by the
other with any term or provision of this Agreement that such
other party was or is obligated to comply with or perform.
ARTICLE IX
Indemnification;
Trust Fund Waiver
Section 9.01 Indemnity
by NMH. NMH shall be liable for, and shall
indemnify NMAC and each of its directors, employees, agents and
representatives (the “NMAC Indemnitees”)
against and hold them harmless from, any Losses, suffered or
incurred by such NMAC Indemnitee by reason of, arising out of or
otherwise in respect of any inaccuracy in, breach of any
representation or warranty, or a failure to perform or observe
fully any covenant, agreement or obligation of, NMH in or under
this Agreement or in or under any document, instrument or
agreement delivered pursuant to this Agreement by NMH.
Section 9.02 Indemnity
by NMAC. NMAC shall indemnify NMH and its
affiliates and each of their respective officers, directors,
employees, agents and representatives (the “NMH
Indemnitees”) against and hold them harmless from, any
Losses, suffered or incurred by such NMH Indemnitee by reason
of, arising out of or otherwise in respect of any inaccuracy in,
breach of any representation or warranty, or a failure to
perform or observe fully any covenant, agreement or obligation
of, NMAC in or under this Agreement or in or under any document,
instrument or agreement delivered pursuant to this Agreement by
NMAC.
Section 9.03 Trust Fund Waiver. NMH
acknowledges that NMAC is a blank check company formed for the
purpose of acquiring one or more businesses or assets (an
“Initial Business Combination”). NMH further
acknowledges that NMAC’s sole assets consist of the cash
proceeds of the IPO and private placements of its securities, in
each case, consummated on July 1, 2008, and that
substantially all of those proceeds have been deposited in a
trust account with a third party (the
“Trust Fund”) for the benefit of NMAC,
certain of its public stockholders and the underwriters of the
IPO. The monies in the Trust Fund may be disbursed only
(1) to NMAC in limited amounts from time to time (and in no
event more than $3,600,000 in total) in order to
fund NMAC’s working capital requirements; (2) if
NMAC completes an Initial Business Combination, to certain
dissenting public shareholders, to the underwriters in the
amount of underwriting discounts and commissions they earned in
the IPO but whose payment they have deferred, and then to NMAC;
and (3) if NMAC fails to complete an Initial Business
Combination within the allotted time period, or within an
extended period such extended period is approved, and
liquidates, subject to the terms of the agreement governing the
Trust Account, to NMAC in limited amounts to permit NMAC to
pay the costs and expenses of its liquidation and dissolution,
and then to NMAC’s public shareholders (as such term is
defined in the agreement governing the Trust Account). For
and in consideration of NMAC’s entering into this
Agreement, the receipt and sufficiency of which is hereby
acknowledged, NMH hereby irrevocably waives any right, title,
interest or claim of any kind (any “Claim”)
they have or may have in the future in or to any monies in the
Trust Fund and agree not to seek recourse against
NMAC’s directors or officers, the Trust Fund or any
funds distributed therefrom (except amounts released to NMAC as
described in clause (1) of the preceding sentence), as a
result of, or arising out of, any Claims against NMAC arising
under this Agreement and the other transactions and transaction
documents contemplated thereunder.
9
ARTICLE X
Miscellaneous
Section 10.01 Governing
Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Republic of the
Xxxxxxxx Islands applicable to contracts made and to be
performed wholly within such jurisdiction without giving effect
to conflict of law principles thereof.
Section 10.02 Counterparts. This
Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all
of which shall constitute but one and the same instrument.
Section 10.03 Complete
Agreement. This Agreement and Schedules
hereto contain the entire agreement between the parties hereto
with respect to the transaction contemplated herein and, except
as provided herein, supersede all previous oral and written and
all contemporaneous oral negotiations, commitments, writings and
understandings.
Section 10.04 Interpretation. The
headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 10.05 Severability. If
any of the provisions of this Agreement are held by any court of
competent jurisdiction to contravene, or to be invalid under,
the laws of any governmental body having jurisdiction over the
subject matter hereof, such contravention or invalidity shall
not invalidate the entire Agreement. Instead, this Agreement
shall be construed as if it did not contain the particular
provision or provisions held to be invalid, and an equitable
adjustment shall be made and necessary provision added so as to
give effect, as nearly as possible, to the intention of the
Parties as expressed in this Agreement at the time of execution
of this Agreement.
Section 10.06 Third
Party Rights. A person who is not a party to
this Agreement has no right to enforce or to enjoy the benefit
of any term of this Agreement.
Section 10.07 Notices. Any
notice, claim or demand in connection with this Agreement shall
be delivered to the parties at the following addresses (or at
such other address or facsimile number for a party as may be
designated by notice by such party to the other party):
(a) if to Navios Maritime Holdings Inc., as follows:
00 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx 185 38
(b) if to Navios Maritime Acquisition Corporation, as
follows:
00 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx 185 38
Attention: Xxxxxxxx Xxxxxxxxxxxxx
and any such notice shall be deemed to have been received
(i) on the next working day in the place to which it is
sent, if sent by facsimile or (ii) forty eight
(48) hours from the time of dispatch, if sent by courier.
[Remainder
of page intentionally left blank; signature page to
follow.]
10
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the date first above written.
NAVIOS MARITIME HOLDINGS INC.
| By: |
/s/ Xxxxxxxx
Xxxxxxxxxxxxx
|
Name: Xxxxxxxx Xxxxxxxxxxxxx
Title: Director
| By: |
/s/ Xxxxxxxx
Xxxxxxx
|
Name: Xxxxxxxx Xxxxxxx
Title: Director
11
SCHEDULE A
VESSEL-OWNING
SUBSIDIARY AND VESSEL
| Vessel-Owning Subsidiary | Jurisdiction | Vessel Name or Type | Delivery Date(1) | ||||||
|
Amorgos Shipping Corporation
|
Xxxxxxxx Islands | Chemical Tanker | 9/30/2010 | ||||||
|
Andros Shipping Corporation
|
Xxxxxxxx Islands | Chemical Tanker | 11/30/2010 | ||||||
|
Antiparos Shipping Corporation
|
Xxxxxxxx Islands | MR2 Product Tanker | Q1 2012 | ||||||
|
Ikaria Shipping Corporation
|
Xxxxxxxx Islands | MR2 Product Tanker | Q2 2012 | ||||||
|
Kos Shipping Corporation
|
Xxxxxxxx Islands | MR2 Product Tanker | Q3 2012 | ||||||
|
Mytilene Shipping Corporation
|
Xxxxxxxx Islands | MR2 Product Tanker | Q3 2012 | ||||||
|
Sifnos Shipping Corporation
|
Xxxxxxxx Islands | MR2 Product Tanker | Q4 2012 | ||||||
|
Skiathos Shipping Corporation
|
Xxxxxxxx Islands | MR2 Product Tanker | Q4 2012 | ||||||
|
Syros Shipping Corporation
|
Xxxxxxxx Islands | MR2 Product Tanker | Q4 2012 | ||||||
|
Ios Shipping Corporation
|
Cayman Islands | LR1 Product Tanker | May 2010 | ||||||
|
Skopelos Shipping Corporation
|
Cayman Islands | LR1 Product Tanker | May 2010 | ||||||
|
Xxxxxx Shipping Corporation
|
Xxxxxxxx Xxxxxxx | XX0 Xxxxxxx Xxxxxx | X0 0000 | ||||||
|
Crete Shipping Corporation
|
Xxxxxxxx Xxxxxxx | XX0 Xxxxxxx Xxxxxx | X0 0000 | ||||||
|
Tinos Shipping Corporation
|
Xxxxxxxx Islands | LR1 Product Tanker | Q4 2012(2) | ||||||
|
Thera Shipping Corporation
|
Xxxxxxxx Islands | LR1 Product Tanker | Q4 2012(2) | ||||||
| (1) | Estimated. | |
| (2) | Subject to the exercise by NMAC of an option to acquire the Vessel, which expires in January 2011. |
12
SCHEDULE B
CAPITALIZATION
| Number of Shares | ||||
|
Aegean Sea Maritime Holdings Inc.
|
500 | |||
13
