Exhibit 10.9
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement is entered into as of this 12th day of January,
2007 by and among (i) Star Maritime Acquisition Corp. ("Star Maritime"), a
Delaware corporation, (ii) Star Bulk Carriers Corp. ("Star Bulk"), a Xxxxxxxx
Islands corporation wholly-owned by Star Maritime, for itself individually and
for/on behalf of each of the Buyers (as hereinafter defined), and (iii) TMT Co.,
Ltd. ("TMT"), a Taiwan corporation, for itself individually and for/on behalf of
each of the Sellers (as hereinafter defined).
Capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in Schedule 1 hereto.
The purpose of this Supplement Agreement is, inter alia, to provide for the
timing of the delivery of, and payment of the consideration for, the Vessels as
provided for under the MOAs which are being concurrently executed and delivered
herewith.
In consideration of the premises, the parties hereto agree as follows:
1. If the Merger and the acquisition by Star Bulk of the Vessels are not
approved by the requisite vote of the stockholders of Star Maritime on
the Proxy Vote Date, the MOAs and this Supplemental Agreement shall be
deemed terminated, cancelled and of no further force and effect, in
each case with any further action required of the parties.
2. If the Merger and the acquisition by Star Bulk of the Vessels are
approved by the requisite vote of the Star Maritime stockholders on
the Proxy Vote Date, Star Maritime and Star Bulk shall proceed
forthwith to take all actions necessary to implement the Merger on or
before the Effective Date of Merger.
3. Star Bulk shall purchase the Vessels for the Aggregate Purchase Price,
which consists of two components: (1) the Stock Consideration and (2)
the Cash Consideration. The Aggregate Purchase Price shall be paid as
follows:
(i) first, in the form of the Stock Consideration (which shall be
issued to TMT, not in its individual capacity but solely as agent
for each of the applicable Sellers, concurrently with the
Merger); and
(ii) second, only after Vessels with an aggregate value (as set forth
in Schedule 2 hereto) that equals the aggregate value of the
Stock Consideration (the "Stock Consideration Threshold") have
been delivered, in the form of the Cash Consideration.
If a Vessel is delivered whose value, together with all previous
Vessels delivered, exceeds the Stock Consideration Threshold, the
remaining portion of the allocated Aggregate Purchase Price for such
Vessel and any other remaining Vessels shall be paid in the form of
Cash Consideration upon delivery of each such Vessel (allocated as per
Schedule 2 hereto).
4. As the 100% parent of each of the Sellers and the Buyers,
respectively, TMT and Star Maritime hereby guarantees the due and
punctual performance of each of the Sellers and the Buyers,
respectively, under the relevant MOA.
5. The Vessels, on delivery under the MOAs, shall be operated either on a
spot basis or subject to term employment called for, with minimum
terms and aggregate minimum daily hire rate, as provided for in
Schedule 4. Term employment shall be with first class charterers and
otherwise shall contain standard industry terms for employment of such
Vessels and also a charter clause and a form of novation agreement,
both substantially in the forms attached hereto as Exhibit A and B,
respectively. TMT undertakes to procure such term employment by the
Sellers with a third party or, in the case of the Mommy Duckling and,
at its sole option, one of C Duckling, F Duckling, G Duckling or I
Duckling, with itself as charterer, as soon as possible but no later
than thirty (30) days from the date of this Supplemental Agreement or
to pay Star Bulk the difference between the aggregate daily hire rate
so fixed and the aggregate minimum daily hire rate provided for in
Schedule 4 (which aggregate daily hire rate difference shall be
calculated from the time of delivery of all such Vessels under the
MOAs) during the relevant minimum employment term set forth in
Schedule 4 (which minimum employment term shall be measured from the
date of delivery of the applicable Vessel to its charterers under the
applicable charter). Should TMT be unable to secure a novation
agreement substantially in the form attached hereto as Exhibit B with
respect to A Duckling prior to or at delivery of the Vessel, the Buyer
shall, concurrent with delivery, time charter the Vessel to TMT or an
affiliate designee of TMT on the same terms and conditions as the
Vessel's current time charter term employment.
6. If any of the Sellers is unable to deliver its Vessel pursuant to and
in compliance with the terms of its MOA, Star Bulk and TMT shall
confer and cooperate to identify mutually acceptable replacement
vessel and enter into a binding purchase agreement for such
replacement vessel within forty-five (45) days from the required
delivery date of the Vessel being replaced. Should the purchase price
(based on prevailing market rates) of any replacement vessel be higher
than the the portion of the Aggregate Purchase Price allocated to the
Vessel being replaced, Star Bulk hereby agrees to pay TMT or its
nominee in cash such price difference, which payment shall be made
concurrently with delivery of the replacement Vessel. Should the
purchase price (based on prevailing market rates) of any replacement
vessel be lower than the Aggregate Purchase Price allocated to the
Vessel being replaced, TMT hereby agrees to pay in cash to Star Bulk
such price difference, which payment shall be made concurrently with
delivery of the replacement Vessel. If a binding purchase agreement
for a replacement vessel is not entered into within the required
forty-five (45) days period, Star Bulk/Buyer shall have the right to
terminate the MOA for the Vessel being replaced whereupon neither
party to such MOA shall have any rights or liabilities thereunder.
7. This Supplemental Agreement shall be governed and construed in
accordance with Title 9 of the United States Code and the law of the
State of New York and should any dispute arise under this Supplemental
Agreement the matter in dispute shall be referred to three persons at
New York, one to be appointed by Star Maritime and Star Bulk and one
to be appointed by TMT, and the third by the two so chosen; their
decision or that of any two of them shall be final and for the purpose
of enforcing of any award, this Supplemental Agreement may be made a
rule of the court. The proceedings shall be conducted in accordance
with the rules of the Society of Maritime Arbitrators, Inc. in New
York.
8. In the event of any conflict between the provisions of any MOA and
this Supplemental Agreement, the provisions of this Supplement
Agreement shall prevail.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has caused this Supplemental Agreement
to be executed and delivered as of this date first indicated above by these duly
authorized officers or representatives.
STAR MARITIME ACQUISITION CORP.
By: /s/ Nobu Su
---------------------------------
Name:
Title:
STAR BULK CARRIERS CORP.,
for itself individually and for/on
behalf of each of the Buyers
By: /s/ Prokopios Tsirigakis
---------------------------------
Name:
Title:
TMT CO., LTD.,
for itself individually and for/on
behalf of each of the Sellers
By: /s/ Prokopios Tsirigakis
---------------------------------
Name:
Title:
SCHEDULE 1
DEFINITIONS
As used in the Supplemental Agreement to which this Schedule 1 is attached,
the following terms have the meanings set forth below:
"Aggregate Purchase Price" shall mean $345,237,520.
"Buyers" shall mean, collectively, Star Bulk and those
entities wholly-owned by Star Bulk for and on
behalf of which Star Bulk is purchasing the
Vessels.
"Cash Consideration" shall mean $ 224,499.998.65.
"Effective Date of Merger" shall mean the date, which shall not more than
15 days of the Proxy Vote Date approving the
Merger, on which the merger of Star Maritime
into Star Bulk becomes effective under the
Xxxxxxxx Islands law.
"Merger" shall mean the business combination of Star
Maritime with Star Bulk effected by way of a
merger in which Star Bulk is the surviving
corporation.
"Proxy Vote Date" shall mean the date on which the proposed
merger of Star Maritime into Star Bulk is
submitted for vote of the shareholders of Star
Maritime.
"MOAs" shall mean, collectively, the memoranda of
agreement listed and described in Schedule 3.
"Sellers" shall mean, collectively, those entities
wholly-owned by TMT and identified as sellers
of the Vessels in the MOAs listed on Schedule
3.
"Stock Consideration" shall mean 12,537,645 shares of common stock,
par value $0.01 per share, of the Star Bulk,
equivalent to $120,737,521.35.
"Stock Consideration Threshold" shall have the meaning set forth in Section
3(ii).
"Vessels" shall mean, collectively, the vessels listed
on Schedule 2 and to be delivered under the
MOAs listed on Schedule 3.
SCHEDULE 2
AGGREGATE PURCHASE PRICE ALLOCATION
-----------------------------------
Vessel Name Price Allocation
----------- ----------------
A DUCKLING $59,329,707.14
B DUCKLING 61,375,559.11
C DUCKLING 43,474,354.37
F DUCKLING 40,917,039.41
G DUCKLING 40,917,039.41
I DUCKLING 42,451,428.39
J DUCKLING 43,985,817.36
MOMMY DUCKLING 12,786,574.81
Aggregate Purchase Price: $345,237,520.00
SCHEDULE 3
MEMORANDA OF AGREEMENT
Memorandum of Agreement relating to the A Duckling dated January 12, 2007
between Star Bulk Carriers Corp., as buyer, and A Duckling Corporation, as
seller.
Memorandum of Agreement relating to the B Duckling dated January 12, 2007
between Star Bulk Carriers Corp., as buyer, and B Duckling Corporation, as
seller.
Memorandum of Agreement relating to the C Duckling dated January 12, 2007
between Star Bulk Carriers Corp., as buyer, and C Duckling Corporation, as
seller.
Memorandum of Agreement relating to the F Duckling dated January 12, 2007
between Star Bulk Carriers Corp., as buyer, and F Duckling Corporation, as
seller.
Memorandum of Agreement relating to the G Duckling dated January 12, 2007
between Star Bulk Carriers Corp., as buyer, and G Duckling Corporation, as
seller.
Memorandum of Agreement relating to the I Duckling dated January 12, 2007
between Star Bulk Carriers Corp., as buyer, and I Duckling Corporation, as
seller.
Memorandum of Agreement relating to the J Duckling dated January 12, 2007
between Star Bulk Carriers Corp., as buyer, and J Duckling Corporation, as
seller.
Memorandum of Agreement relating to the Mommy Duckling dated January 12, 2007
between Star Bulk Carriers Corp., as buyer, and Mommy Management Corp., as
seller.
SCHEDULE 4
Contract Type/
Vessel Minimum Term Employment Targeted Daily Hire Rate
------ ----------------------- ------------------------
A DUCKLING Time Charter/3 Years $47,000
C DUCKLING Time Charter/1 Year $28,500
F DUCKLING Time Charter/2 Years $24,500
G DUCKLING Time Charter/2 Years $24,500
I DUCKLING Time Charter/1 Year $28,500
MOMMY DUCKLING Time Charter/1 Year $18,000
Aggregate Minimum Daily Hire Rate: $171,000
B DUCKLING Spot N/A
J DUCKLING Spot N/A
EXHIBIT A
FORM OF CHARTER CLAUSE
The [Charterer] hereby acknowledges that the [Owner] or its parent, TMT CO.,
LTD., a Taiwan corporation (or "TMT"), may transfer the Vessel to STAR BULK
CARRIERS CORP., a Xxxxxxxx Islands corporation ("Star Bulk") or a wholly-owned
subsidiary of Star Bulk, and further agrees to consent to such sale and enter
into a novation agreement, substantially in the form attached hereto as Exhibit
[__], pursuant to which the [Owner] will transfer all of its rights,
liabilities, duties and obligations with respect to the [Charterer] under [the
Charter Agreement] with effect from and including the date of the delivery of
the Vessel to Star Bulk or a wholly-owned subsidiary of Star Bulk.
EXHIBIT B
FORM OF NOVATION AGREEMENT
[FORM OF]
NOVATION AGREEMENT
THIS NOVATION AGREEMENT (this "Agreement") is made and entered into as of
[_________], 2007, by and among [___________________], a [______________]
corporation (the "Transferor"), [___________________], a company incorporated
under the laws of [____________] and the charterer of the Vessel (the
"Charterer") and [______________], a Xxxxxxxx Islands corporation (the
"Transferee").
WITNESSETH:
WHEREAS, the Transferor owns the [______________], a drybulk carrier with a
cargo-carrying capacity of [__________] deadweight tons (the "Vessel");
WHEREAS, the Vessel is to be sold by the Transferor to the Transferee
pursuant to a memorandum of agreement dated January [__], 2007 (the "MOA");
WHEREAS, the Transferor and the Charterer are parties to a charter
agreement, dated [_________], 2007, for the charter of the Vessel (the "Charter
Agreement");
WHEREAS, the Transferor desires to transfer by novation to the Transferee,
and the Transferee wishes to accept the transfer by novation of all the rights,
liabilities, duties and obligations of the Transferor with respect to the
Charterer under the Charter Agreement with effect from and including the date of
the delivery of the Vessel to the Transferee (the "Novation Date");
WHEREAS, the Transferor desires to transfer by novation to the Transferee,
and the Transferee wishes to accept the transfer by novation, of all the rights,
liabilities, duties and obligations of the Transferor with respect to the
Charterer under the Charter Agreement with effect from and including the
Novation Date; and
WHEREAS, the Charterer desires to consent to the Transferor's sale of the
Vessel pursuant to the MOA and transfers by novation to the Transferee of all
the rights, liabilities, duties and obligations of the Transferor with respect
to the Charterer under the Charter Agreement with effect from and including the
Novation Date.
NOW, THEREFORE, in consideration of the mutual representations, warranties
and covenants contained in this Agreement and other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the parties), the parties hereto agree as follows:
1. Novation
With effect from and including the Novation Date:
(a) the Charterer consents to the Transferor's sale of the Vessel to the
Transferee pursuant to the MOA, the change of the Vessel's flag to the
Republic of the Xxxxxxxx Islands and the change of the Vessel's name as
directed by the Transferee;
(b) the Charterer releases the Transferor from the Transferor' obligations
and liabilities to the Charterer under the Charter Agreement arising on or
after the Novation Date and which relate to the period commencing from the
Novation Date, such release and discharge being without prejudice to the
obligations and liabilities of the Transferee to the Charterer pursuant to
the Charter Agreement;
(c) the Transferee agrees with the Transferor and the Charterer to assume
all the rights, title, benefit, interest, liabilities and obligations of
the Transferor in and under the Charter Agreement, in lieu of the
Transferor, arising on or after the Novation Date and which relate to the
period commencing from the Novation Date and hereby undertakes to observe
and perform in favor of and for the benefit of the Charterer all such
obligations and liabilities arising on or after the Novation Date and which
relate to the period commencing from the Novation Date;
(d) the Charterer agrees with the Transferee to observe and perform in
favor of and for the benefit of the Transferee, in lieu of the Transferor,
all of their obligations and liabilities under the Charter Agreement
arising on or after the Novation Date and which relate to the period
commencing from the Novation Date;
(e) the Charterer expressly consents to and accept the assumption by the
Transferee of the rights, title, benefit, interest, obligations and
liabilities of the Transferor under the Charter Agreement, in lieu of the
Transferor, arising on or after the Novation Date and which relate to the
period commencing from the Novation Date and agrees that any actions,
proceedings, demands, claims, liabilities, damages, costs and expenses of
any nature whatsoever arising on or after the Novation Date shall be made
against the Transferee and not the Transferor;
(f) the Transferor agrees at all times to keep the Transferee, its
successors and assigns fully indemnified against all actions, proceedings,
demands, claims, liabilities, damages, costs and expenses of any nature
whatsoever (other than indirect, consequential, punitive or special
damages), made against the Transferee, its successors and assigns or for
which the Transferee, its successors and assigns may be held liable in
relation to such actions, proceedings, demands, claims, liabilities,
damages, costs and expenses of the Transferor accrued or existing prior to
the Novation Date. The Transferee shall give the Transferor prompt written
notice of any such actions, proceedings, demands, claims, liabilities,
damages, costs and expenses of any nature whatsoever, which the Transferee
believes will give rise to indemnification by the Transferor under this
paragraph and the Transferor shall have the right to defend and to direct
the defense against any such claim, suit or demand, in the Transferor's
name at the Transferor's expense and with counsel of Transferor's own
choosing, which counsel shall be reasonably satisfactory to the Transferee;
provided that such claim, suit or demand would not adversely affect any
rights of the Transferee or the ownership and operation of the Vessel; and
(g) the Transferee agrees at all times to keep the Transferor, its
successors and assigns fully indemnified against all actions, proceedings,
demands, claims, liabilities, damages, costs and expenses of any nature
whatsoever (other than indirect, consequential, punitive or special
damages), made against the Transferor, its successors and assigns or for
which the Transferor, its successors and assigns may be held liable in
relation to such actions, proceedings, demands, claims, liabilities,
damages, costs and expenses of the Transferee accrued or existing on or
after the Novation Date. The Transferor shall give the Transferee prompt
written notice of any such actions, proceedings, demands, claims,
liabilities, damages, costs and expenses of any nature whatsoever, which
the Transferor believes will give rise to indemnification by the Transferee
under this paragraph and the Transferee shall have the right to defend and
to direct the defense against any such claim, suit or demand, in the
Transferee's name at the Transferee's expense and with counsel of
Transferee's own choosing, which counsel shall be reasonably satisfactory
to the Transferor; provided that such claim, suit or demand would not
adversely affect any rights of the Transferor.
2. Representations and Warranties.
Each party represents to the other party that:
(a) Status. It is duly organized and validly existing under the laws of the
jurisdiction of its organization or incorporation and, if relevant under
such laws, in good standing;
(b) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver
this Agreement and any other documentation relating to this Agreement and
to perform its obligations under this Agreement and has taken all necessary
action to authorize such execution, delivery and performance;
(c) No Violation or Conflict. Such execution, delivery and performance do
not violate or conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(d) Consents. All governmental and other consents that are required to have
been obtained by it with respect to this Agreement have been obtained and
are in full force and effect and all conditions of any such consents have
been complied with;
(e) Obligations Binding. Its obligations under this Agreement constitute
its legal, valid and binding obligations, enforceable in accordance with
their respective terms (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a
proceeding in equity or at law));
(f) Absence of Certain Events. No event of default or potential event of
default with respect to it has occurred and is continuing and no such event
or circumstance would occur as a result of its entering into or performing
its obligations under this Agreement;
(g) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal, governmental
body, agency or official or any arbitrator that is likely to affect the
legality, validity or enforceability against it of this Agreement or its
ability to perform its obligations under this Agreement; and
(h) Other Parties. As of the Novation Date, no other party has any interest
or obligation in or under the Charter Agreement.
3. Miscellaneous.
3.1 Amendments. No amendment, modification or waiver in respect of the Novation
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
3.2 Dispute Resolution, Governing Law and Jurisdiction. Any dispute, action or
proceeding arising in connection with this Agreement or the performance hereof
shall be governed by the relevant dispute resolution, governing law and
jurisdiction provisions of the Charter Agreement to which this Agreement is
annexed, which provisions are hereby incorporated herein by reference and shall
have the same force and effect as if fully set forth herein.
3.3 Waiver of Jury Trial. The parties waive, to the fullest extent permitted by
applicable law, any right they may have to a trial by jury in respect of any
suit, action or proceeding relating to this Agreement. The parties certify that
no representative, agent or attorney of either party has represented, expressly
or otherwise, that such other party would not, in the event of such a suit,
action or proceeding, seek to enforce the foregoing waiver and acknowledge that
they have been induced to enter into this Agreement by, among other things, the
mutual waivers and certifications in this Section 3.4.
3.4 Further Assurances and Other Matters. The parties agree, upon the request of
any other party, at any time and from time to time, promptly to execute and
deliver all such further documents, promptly to take and forbear from all such
action, and obtain all approvals, consents, exemptions or authorizations from
such governmental agencies or authorities as may be necessary or reasonably
appropriate in order to carry out the provisions of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written. This Agreement may be executed in one or
more counterparts and will be deemed effective when each of the parties shall
have executed a copy hereof.
[TRANSFEROR] [CHARTERER]
By: By:
----------------------------------- -------------------------------------
Name: Name:
Title: Title:
[TRANSFEREE]
By:
-----------------------------------
Name:
Title:
SK 25767 0001 739068
