MASTER AGREEMENT
dated
as
of January 12, 2007
by
and
among
TMT
CO., LTD.,
and
STAR
MARITIME ACQUISITION CORP.
relating
to the purchase of
eight
drybulk carriers
THIS
MASTER AGREEMENT, dated as of January 12, 2007 (this “Agreement”),
is
made by and among TMT CO., LTD., a Taiwan corporation (the “Seller”),
STAR
BULK CARRIERS CORP., a Xxxxxxxx Islands corporation (the “Buyer”),
and
STAR MARITIME
ACQUISITION CORP., a Delaware corporation (“Star
Maritime”).
WITNESSETH:
WHEREAS,
the Seller and the Buyer desire to effect the transfer by the Seller's
Vessel
Owning Subsidiaries to the Buyer or its nominees of all of the Vessel Owning
Subsidiaries'
right, title and interest in and to the Vessels in accordance with the terms
of
the MOAs
and
the Supplemental Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises, and the mutual covenants
and agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION
1. Definitions.
(a)
Definitions.
For
purposes of this Agreement, the following terms shall have the
following meanings:
“Aggregate
Purchase Price”
means
$345,237,520.
“Buyer
Common Stock”
means
the common stock, par value $0.01 per share, of the
Buyer.
“Cash
Consideration”
means
$224,499.998.65.
“Effective
Date of Merger”
has
the
meaning set forth in the Supplemental Agreement.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as
the
same shall be in effect from time to time.
“Forecasted
Annual Consolidated Revenue”
means
the forecasted annual Revenue of
the
Buyer, as shall be agreed between the Buyer and the Seller with reference to
the
Vessels' employment
once arranged, in writing at or prior to the Effective Date of
Merger.
“Memoranda
of Agreement”
or
“MOAs”
means
the separate memoranda of agreement
relating to the Vessels, each dated the date hereof, between the Buyer or its
nominees and the Vessel Owning Subsidiaries, each of which are attached hereto
as Exhibit
A.
“Memorandum
of Understanding”
means
the letter agreement dated November 23,
2006
by and between the Seller and Star Maritime.
“Merger”
means
the business combination of Star Maritime with the Buyer effected
by way of a merger in which the Buyer is the surviving corporation and where
the
merger
consideration consists of one share of Buyer Common Stock for each share of
common stock
of
Star Maritime.
“NASD”
shall
mean the National Association of Securities Dealers, Inc., or any successor
self regulatory organization.
“Registrable
Securities”
shall
mean the Buyer Common Stock issued to and owned
by
the Seller, the Vessel Owning Subsidiaries or any Seller Affiliates (i) as
the
Stock Consideration
and (ii) under Section 2(b) hereof.
“Registrable
Securities Holder”
shall
mean any of the Seller, the Vessel Owning Subsidiaries
or a Seller Affiliate holding the Registrable Securities.
“Revenue”
means
gross revenue of the Buyer and its consolidated subsidiaries which
own
and operate the Vessels, as determined under United States generally accepted
accounting
principles.
“SEC”
or
“Commission”
means
the United States Securities and Exchange Commission.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations of the Commission thereunder,
all
as the same
shall be in effect from time to time.
“Seller
Affiliates”
shall
mean any entity which is an “affiliate” of the Seller, as that term is defined
under Rule 144 (in effect as of the date hereof) promulgated under the
Securities
Act.
“Stock
Consideration”
means
12,537,645 shares of Buyer Common Stock.
“Supplemental
Agreement”
means
the agreement by and among Star Maritime, the
Buyer
and the Seller, dated the date hereof, relating to the purchase of the Vessels
and attached
hereto as Exhibit
B.
“USD”
or
“$” means legal tender of the United States of America.
“Vessel”
or
“Vessels”
means
each of the vessels, and collectively, all of the vessels
being sold pursuant to the MOAs listed in Schedule 3 of the Supplemental
Agreement.
“Vessel
Owning Subsidiaries”
means
the subsidiaries of the Seller that are party to
the
Memoranda of Agreement.
SECTION
2. Purchase
Price: Earn-out.
(a)
The
Buyer or its subsidiary nominees 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 in accordance
with the terms
and
provisions of the Memoranda of Agreement and the Supplemental
Agreement.
2
(b) In
addition to the Aggregate Purchase Price:
(1) With
respect to the short fiscal year of the Buyer commencing as of the Effective
Date of Merger and ending on December 31, 2007, in the event that the Buyer
achieves Revenue for such short fiscal year equal to or in excess of 80% of
the
Forecasted Annual Consolidated Revenue for such short fiscal year, then the
Seller
shall be entitled to receive, promptly following the Buyer's filing of its
Annual
Report on Form 20-F for such fiscal year, an additional 803,481 shares of Buyer
Common Stock (which shall be issued no later than ten (10) business days
following
the filing of such Annual Report to the Seller, the Vessel Owning Subsidiaries
and/or a Seller Affiliate, as directed by the Seller); plus
(2) With
respect to the first full fiscal year of the Buyer following the Merger
commencing
on January 1, 2008 and ending on December 31, 2008, in the event that
the
Buyer achieves Revenue for such first full fiscal year equal to or in excess
of
80% of
the Forecasted Annual Consolidated Revenue for such first full fiscal
year,
then the Seller shall be entitled to receive, promptly following the Buyer's
filing
of
its Annual Report on Form 20-F for such fiscal year, an additional 803,481
shares of Buyer Common Stock (which shall be issued no later than ten
(10)
business days following the filing of such Annual Report to the Seller, the
Vessel
Owning Subsidiaries or a Seller Affiliate, as directed by the
Seller).
(c) In
addition to the terms and provisions of the MOAs and the Supplemental
Agreement,
the Buyer's obligations hereunder shall also be subject to the Buyer obtaining
debt financing
in such amount as necessary in order for the Buyer to fund a portion of the
Cash
Consideration
in excess of its cash-on-hand immediately following the Merger.
SECTION
3. Covenants
of the Seller.
Until
the delivery of each of the Vessels, the Seller shall
(and shall cause the Vessel Owning Subsidiaries, as applicable, to): (a) use
its
commercially
reasonable efforts to: (i) prevent the Vessel Owning Subsidiaries from becoming
insolvent
(within the meaning of the U.S. Bankruptcy Code), (ii) continue to operate
its
business
as it is currently conducted, (iii) retain ownership and possession of the
Vessels (subject
to any charters in respect of the Vessels) and (iv) forbear from creating any
new liens, claims or encumbrances of any kind upon the Vessels or any other
material assets of the Vessel Owning
Subsidiaries (except, in each case, other than in the ordinary course of
business and subject
to any charters in respect of the Vessels) and (b) forbear from selling any
interest in any Vessel
Owning Subsidiary and cause each Vessel Owning Subsidiary to forbear from
issuing any
capital stock or other securities to, or making loans (other than in the
ordinary course of its business) to, any person other than the
Seller.
SECTION
4. Covenants
of Star Maritime.
Star
Maritime shall use its commercially reasonable
efforts to: (a) as soon as is reasonably practicable following the date hereof,
file a registration/proxy
statement on Form F-4 or S-4 with the SEC: (i) soliciting the vote of Star
Maritime's
stockholders in favor of the Merger and the purchase of the Vessels as
contemplated hereby and (ii) subject to provisions of Section 5(a) below,
registering the Registrable Securities with
the
SEC, (b) comply, and cause the Buyer and its Vessel purchasing nominees to
comply with
all
other applicable rules and regulations of the SEC, (c) obtain, on behalf of
itself, the Buyer
and
its Vessel purchasing nominees, all approvals, consents, exemptions or
authorizations
from such governmental agencies or authorities, and take all other actions,
as
may
be
necessary or reasonably appropriate in order to effect the Merger and
transactions contemplated
by this Agreement, the Supplemental Agreement and the MOAs.
3
SECTION
5. Registration
Rights: Lock Up.
(a) Registration
on Form F-4.
Buyer
shall include the Registrable Securities on Buyer's
Registration Statement on Form F-4 or S-4 contemplated in Section 4(a) above
to
the extent
that such inclusion would not, in Buyer's reasonable judgment after receiving
written comments
from the SEC that address the registration of the Registrable Securities,
materially hinder
or
delay the Commission's declaration of effectiveness thereof.
(b) Required
Shelf Registration.
After
receipt of a written request from the Seller, on behalf
of
itself or any Registrable Securities Holder, requesting that the Buyer effect
a
registration
under the Securities Act covering all of the shares of the Registrable
Securities then unregistered
and outstanding, and specifying the holders and intended method or methods
of
disposition
thereof, the Buyer shall promptly file with the SEC a registration statement
covering the
Registrable Securities and, as expeditiously as is possible, use its
commercially reasonable efforts
to effect the registration under the Securities Act of such shares for sale,
all
to the extent required
to permit the disposition (in accordance with the intended method or methods
thereof, as
aforesaid) of the Registrable Securities so registered; provided,
however,
that
the Buyer shall not
be
required to effect any such registrations pursuant to this Section 5(b) unless
the Buyer shall
be
eligible at any time to file a registration statement on Form F-3 or S-3 (or
other comparable
short form) under the Securities Act. If, at any time after giving the written
notice under
this Section 5(b), the Seller shall notify the Buyer in writing that the Seller
has determined for
any
reason not to proceed with the proposed offering, then the Buyer shall terminate
such offering.
(c) Incidental
Registration.
(i) If,
from and after the date that is one hundred and eighty
(180) days following the Effective Date of Merger, the Buyer at any time
proposes to file on its behalf and/or on behalf of any of its security holders
other than any Registrable Securities Holder
(the “demanding
security holders”)
a
registration statement under the Securities Act on any
form
(other than a registration statement on Form X-0, X-0 or S-8 or any successor
form for securities
to be offered in a transaction of the type referred to in Rule 145 under the
Securities Act or to employees of the Buyer pursuant to any employee benefit
plan, respectively) for the general
registration of securities, it will give written notice to all the Registrable
Securities Holders
at least thirty (30) days before the initial filing with the Commission of
such
Registration
Statement, which notice shall set forth the intended method of disposition
of
the securities
proposed to be registered by the Buyer or the demanding security holders. The
notice shall offer to include in such filing the aggregate number of shares
of
Registrable Securities as the
Seller may request. The Seller shall be entitled to withdraw its request at
any
time before the time that the Registration Statement is declared effective
and
the offering has commenced.
4
(ii)
The
Seller shall advise Buyer in writing within ten (10) business days after
the
date
of receipt of such offer from Buyer, setting forth the amount of such
Registrable Securities
for which registration is requested and the holders thereof. The Buyer shall
thereupon include
in such filing the number of shares of Registrable Securities for which
registration is so requested,
subject to the next sentence, and shall use its commercially reasonable efforts
to effect registration
under the Securities Act of such shares. If a proposed public offering pursuant
to this
Section 5(c) is an underwritten offering, and if the managing underwriter
thereof shall advise the Buyer in writing that, in its opinion, the distribution
of the Registrable Securities requested to be
included in the registration concurrently with the securities being registered
by the Buyer or such demanding security holder would materially and adversely
affect the distribution of such securities
by the Buyer or such demanding security holder, then all selling security
holders (including
the demanding security holder who initially requested such registration) shall
reduce the amount of securities each intended to distribute through such
offering on a pro rata basis, it being understood that the number of securities
offered by the Buyer shall not be subject to any such
pro
rata reduction. Except as otherwise provided in Section 5(e), all expenses
of
such registration
shall be borne by the Buyer.
(d)
Registration
Procedures.
If the
Buyer is required by the provisions of Section 5(b)
or
(c) to effect the registration of any of its securities under the Securities
Act, the Buyer will,
as
expeditiously as possible:
(i)
prepare and file with the Commission a registration statement with respect
to
such
securities and use its commercially reasonable efforts to cause such
registration statement to become and remain effective for a period of time
required for the disposition of such securities by the holders thereof (which
period of time shall be no later than the period that the Registrable
Securities
Holders could sell or dispose the Registrable Securities without restrictions
pursuant to Rule
144(k) promulgated under the Securities Act);
(ii)
prepare and file with the Commission such 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 to comply with the provisions
of the Securities
Act with respect to the sale or other disposition of all securities covered
by
such registration
statement until the such time as all of such securities have been fully disposed
of;
(iii)
furnish to all selling security holders (including the Registrable Securities
Holders)
such number of copies of a prospectus, including a preliminary prospectus,
in
conformity
with the requirements of the Securities Act, and such other documents, as such
selling
security holders may reasonably request;
(iv)
use
its commercially reasonable efforts to register or qualify the securities
covered
by such registration statement under such other securities or blue sky laws
of
such jurisdictions
within the United States and Puerto Rico as each holder of such securities
shall
request
(provided,
however,
that the
Buyer shall not be obligated to qualify as a foreign corporation
to do business under the laws of any jurisdiction in which it is not then
qualified or to
file
any general consent to service or process), and do such other reasonable acts
and things as may be required of it to enable such holder to consummate the
disposition in such jurisdiction of the
securities covered by such registration statement;
5
(v)
furnish, at the request of the selling Registrable Securities Holder(s), on
the
date
that such shares of Registrable Securities are delivered to the underwriters
for
sale pursuant
to a registration that is underwritten or, if such Registrable Securities are
not being sold through
underwriters, on the date that the registration statement with respect to such
shares of Registrable
Securities becomes effective, (A) an opinion, dated such date, of the counsel
representing the Buyer for the purposes of such registration, addressed to
the
underwriters, if any,
and
if such Registrable Securities are not being sold through underwriters, then
to
the selling
Registrable Securities Holder(s), in customary form and covering matters of
the
type customarily
covered in such legal opinions; and (B) a comfort letter dated such date, from
the independent certified public accountants of the Buyer, addressed to the
underwriters, if any, and the selling Registrable Securities Holder(s), in
a
customary form and covering matters of the type customarily covered by such
comfort letters and as the they shall reasonably request;
(vi)
enter into customary agreements (including an underwriting agreement in
customary
form, it being understood that any underwriting agreement entered into by the
selling Registrable
Securities Holder(s) with respect to an underwritten offering of Registrable
Securities
will impose customary indemnification obligations on the underwriter(s)) and
take such
other actions as are reasonably required in order to expedite or facilitate
the
disposition of such
Registrable Securities;
(vii)
cooperate reasonably with any managing underwriter to effect the sale of
Registrable
Securities, including but not limited to attendance of the Buyer's executive
officers at
any
planned “road show” presentations to the extent that such attendance does not
unduly or unreasonably impact the performance of such officer's
duties;
(viii)
notify the selling Registrable Securities Holder(s) and the underwriter(s),
if
any,
in writing at any time when the Buyer is aware that offering documents include
an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of
the circumstances then existing,
and at the request of any selling Registrable Securities Holder or underwriter,
prepare and
furnish to such person(s) such reasonable number of copies of any amendment
or
supplement
to the offering documents as may be necessary so that, as thereafter delivered
to the purchasers of such shares, such offering documents would not include
any
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and to
deliver to purchasers of any other securities of the Buyer included in the
offering copies of such offering documents as so amended or
supplemented;
(ix)
promptly notify the selling Registrable Securities Holder(s) of (A) the
effectiveness
of such offering documents, (B) the issuance by the Commission of an order
suspending
the effectiveness of the offering documents, or of the threat of any proceeding
for that
purpose, and (C) the suspension of the qualification of any securities to be
included in the offering documents for sale in any jurisdiction or the
initiation or threat of any proceeding for that
purpose; and
(x)
cause
all Registrable Securities registered hereunder to be listed on each
securities
exchange on which similar securities issued by the Buyer are then
listed.
6
It
shall
be a condition precedent to the obligation of the Buyer to take any action
pursuant to this Section 5 in respect of the securities which are to be
registered at the request of the Registrable Securities Holder(s) that the
Registrable Securities Holder(s) shall furnish to the Buyer
such information regarding the securities held by the Registrable Securities
Holder(s) and the
intended method of disposition thereof as the Buyer shall reasonably request
and
as shall be required
in connection with the action taken by the Buyer.
(e) Expenses.
All
expenses incurred in complying with this Section 5, including, without
limitation, all registration and filing fees (including all expenses incident
to
filing with the
NASD), all “road show” expenses incurred by the Buyer or the Registrable
Securities Holder(s)
and all applicable selling security holders, printing expenses, fees and
disbursements of
counsel for the Buyer, the reasonable fees and expenses of one counsel for
the
selling security holders
(selected by those holding a majority of the shares being registered), expenses
of any special
audits incident to or required by any such registration and expenses of
complying with the
securities or blue sky laws of any jurisdiction pursuant to Section 5(d)(iv),
shall be paid by the
Buyer, except that the Buyer shall not be liable for any fees, discounts or
commissions to any underwriter
or any fees or disbursements of counsel for any underwriter in respect of the
securities
sold by any applicable selling security holders, including the Registrable
Securities Holders.
(f) Indemnification
and Contribution.
(i)
In
the event of any registration of any Registrable Securities under the
Securities
Act pursuant to this Agreement, the Buyer shall indemnify and hold harmless
the
Registrable
Securities Holders, their respective directors and officers, and each other
person (including
each underwriter) who participated in the offering of such Registrable
Securities and each other person, if any, who controls the Registrable
Securities Holders or such participating person within the meaning of the
Securities Act (collectively, the “Seller
Indemnitees”)
from
and against
any losses, claims, damages or liabilities, joint or several, to which a Seller
Indemnitee may become subject under the Securities Act or any other statute
or
at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based upon:
(i)
any untrue statement or any alleged untrue statement of any material fact
contained or incorporated
by reference, on the effective date thereof, in any registration statement
under
which
such securities were registered under the Securities Act, any preliminary
prospectus or final
prospectus contained therein, any free writing prospectus or any amendment
or
supplement thereto,
(ii) any omission or any alleged omission to state therein a material fact
required to be stated
therein or necessary to make the statements therein not misleading, or (iii)
any
other violation
of any applicable securities laws, and in each of the foregoing circumstances
shall pay for or reimburse the Seller Indemnitees for any legal or any other
expenses reasonably incurred by
all or
any one of the Seller Indemnitees in connection with investigating or defending
any such
loss, claim, damage, liability or action; provided,however,
that,
with respect to any Seller Indemnitee, the Buyer shall not be liable in any
such
case to the extent that any such loss, claim, damage or liability has been
found
by a court of competent jurisdiction to have been based upon any
actual untrue statement or actual omission made or incorporated by reference
in
such registration statement, preliminary prospectus, prospectus, free writing
prospectus or any amendment
or supplement thereto solely in reliance upon and in conformity with written
information
furnished to the Buyer by such Seller Indemnitee specifically for use therein.
Such indemnity
shall remain in full force and effect regardless of any investigation made
by or
on behalf
of
a Seller Indemnitee, and shall survive the transfer of such securities by a
Seller Indemnitee.
7
(ii)
In
the event of any registration of any Registrable Securities under the
Securities
Act pursuant to this Agreement, the Registrable Securities Holders, by
acceptance hereof,
agrees to indemnify and hold harmless the Buyer, its directors and officers
and
each other person,
if any, who controls the Buyer within the meaning of the Securities Act and
any
other person
(including each underwriter) who participated in the offering of such
Registrable Securities
(collectively, the “Buyer
Indemnitees”)
against any losses, claims, damages or liabilities,
joint or several, to which the Buyer Indemnitees may become subject under the
Securities
Act or any other statute or at common law, insofar as such losses, claims,
damages or liabilities
(or actions in respect thereof) arise out of or are based upon: (i) any untrue
statement or any
alleged untrue statement of any material fact contained or incorporated by
reference, on the effective date thereof, in any registration statement under
which such securities were registered under
the
Securities Act, any preliminary prospectus or final prospectus contained
therein, any free
writing prospectus, or any amendment or supplement thereto, or (ii) any omission
or any alleged
omission to state therein a material fact required to be stated therein or
necessary to make the
statements therein not misleading, but in either case only to the extent that
such untrue statement
or omission is (A) made in reliance on and in conformity with any information
furnished
in writing by the Seller to the Buyer concerning the Seller specifically for
inclusion in the registration statement, preliminary prospectus, prospectus,
free writing prospectus or any amendment
or supplement thereto relating to such offering, and (B) is not corrected by
the
Seller and
distributed to the purchasers of shares within a reasonable period of
time.
(iii)
If
the indemnification provided for in this Section 5 from an indemnifying
party
is
unavailable to an indemnified party hereunder in respect of any losses, claims,
damages, liabilities
or expenses referred to therein, then the 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 losses, claims, damages, liabilities or expenses in such
proportion as is appropriate
to reflect the relative fault of the indemnifying party and indemnified parties
in connection
with the actions which resulted in such losses, claims, damages, liabilities
or
expenses,
as well as any other relevant equitable considerations. The relative fault
of
such indemnifying party and indemnified parties shall be determined by reference
to, among other things, whether any action in question, including any untrue
or
alleged untrue statement of a material
fact or omission or alleged omission to state a material fact, has been made
by,
or relates to
information supplied by, such indemnifying party or indemnified parties, and
the
parties' relative intent, knowledge, access to information and opportunity
to
correct or prevent such action.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
(iv)
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to Section 5(f)(iii) 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 paragraph. No person guilty of fraudulent
misrepresentation (within the
meaning of Section 11 (f) of the Securities Act) shall be entitled to
contribution from any person
who was not guilty of such fraudulent misrepresentation.
8
(g)
Certain
Limitations on Registration Rights.
Notwithstanding the other provisions of
this
Section 5, the Buyer shall have the right to delay the filing or effectiveness
of a registration
statement required pursuant to Section 5(b) hereof during one or more periods
aggregating
not more than one hundred and twenty (120) days in any twelve-month period
in
the event
that: (i) if counsel to the Buyer is of the opinion that the filing of such
a
registration statement
would require the disclosure of material non-public information about the Buyer,
the disclosure
of which the Buyer believes, in good faith, could have a material adverse effect
on the business
or financial condition of the Buyer or (ii) the Buyer furnishes to the Seller
or
other holders
requesting the filing of a registration statement, a certificate signed by
the
President or Chief
Executive Officer of the Buyer stating that, in the good faith judgment of
the
Board of the Buyer, it would be seriously detrimental to the Buyer and its
shareholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement.
(h)
“Market
Stand-Off" Agreement.
The
Seller (on behalf of itself and each Registrable
Securities Holder) hereby agrees, in connection with any firm commitment,
underwritten
public offering by the Buyer of its securities, that it shall not, to the extent
requested
by the Buyer or an underwriter of such securities, sell or otherwise transfer
or
dispose of or engage in any other transaction regarding any Registrable
Securities or other shares of the Buyer then owned by the Seller or any
Registrable Securities Holder for a period not to exceed one
hundred and eighty (180) days following the effective date of a registration
statement of the Buyer
filed under the Securities Act in connection with such firm commitment,
underwritten public
offering by the Buyer; provided,
however,
that the
foregoing shall only be applicable if all executive
officers and directors of the Buyer and holders of 5% or greater of the shares
of the Buyer
are
required to enter into similar agreements, it being agreed that the “lock-up”
period for Seller
or
any Registrable Securities Holder shall not to exceed the period applicable
to
such officers
and directors and shareholders and shall in no event exceed one hundred and
eighty (180)
days following the effective date of such registration statement.
(i)
Resale
Exemptions; Reports Under Exchange Act.
In
order to permit the Seller to sell
the
Registrable Securities, if it so desires, pursuant to any applicable resale
exemption under applicable
securities laws and regulations, the Buyer will:
(i)
comply with all rules and regulations of the Commission in connection
with
use
of any such resale exemption;
(ii)
make
and keep available adequate and current public information regarding
the Buyer;
(iii)
file with the Commission in a timely manner, all reports and other documents
required to be filed under the Securities Act, the Exchange Act, or other
applicable securities
laws and regulations;
(iv)
furnish to the Registrable Securities Holders, upon written request, copies
of
annual
reports required to be filed under the Exchange Act and other applicable
securities laws
and
regulations; and
(v)
furnish to the Registrable Securities Holders, upon written request (A) a
copy
of
the most recent quarterly report of the Buyer and such other reports and
documents filed by
the
Buyer with the Commission and (ii) such other information as may be reasonably
required to
permit
the Registrable Securities Holders to sell pursuant to any applicable resale
exemption under
the
Securities Act or other applicable securities law and regulations, if
any.
9
(j)
Lock-up.
The
Seller (on behalf of itself and each Registrable Securities Holder) hereby
agrees that, without the prior written consent of the Buyer, it (a) will not,
directly or indirectly, offer, sell, agree to offer or sell, solicit offers
to
purchase, grant any call option or purchase
any put option with respect to, pledge, borrow or otherwise dispose of any
of
the Registrable
Securities representing the Stock Consideration and (b) will not establish
or
increase any
“put
equivalent position” or liquidate or decrease any “call equivalent position”
with respect to
any of
the Registrable Securities representing the Stock Consideration (in each case
within the meaning
of Section 16 of the Exchange Act), or otherwise enter into any swap, derivative
or other
transaction or arrangement that transfers to another, in whole or in part,
any
economic consequence
of ownership of any of the Registrable Securities representing the Stock
Consideration,
whether or not such transaction is to be settled by delivery of Registrable
Securities
representing the Stock Consideration, other securities, cash or other
consideration for a period
of
one hundred and eighty (180) days commencing on the date of issuance of
Registrable Securities representing the Stock Consideration; provided,
however,
that,
notwithstanding the foregoing, the Seller and the Vessel Owning Subsidiaries
shall be permitted to transfer all or any portion
of the Registrable Securities representing the Stock Consideration among
themselves or to
any
Seller Affiliate; provided,
further,
that
prior to any such transfer the transferor at its expense
shall provide to the Buyer an opinion of counsel reasonably acceptable to the
Buyer to the
effect that that such transfer would not require registration under the
Securities Act. The Seller
hereby further agrees to cause each Registrable Securities Holder to enter
into
a lock-up agreement
giving effect to the provisions of this Section 5(j) immediately upon such
Registrable Securities
Holder's acquisition of Registrable Securities representing the Stock
Consideration.
(k)
Termination.
The
rights granted under this Section 5 shall expire at such time as the
Registrable Securities Holders collectively (i) hold less than five (5%) percent
of the outstanding
Buyer Common Stock, or (ii) are eligible to sell their Registrable Securities
without restriction under Rule 144(k) promulgated under the Securities Act
(it
being agreed, for purposes of this Section 5(k)(ii), that the Buyer, upon the
request of a Registrable Securities Holder and at its
expense, shall provide to Buyer's transfer agent a legal opinion of its counsel
regarding the ability
of such holder to sell its Registrable Securities under Rule 144(k) and any
appropriate legend
removal instructions).
(1)
Legends.
The
Seller hereby acknowledges and agrees that the Buyer shall legend the
share
certificates representing the Registrable Securities to reflect the restrictions
on transfer contained
in this Agreement and may issue to its transfer agent a stop transfer
instruction in relation thereto. Such legend shall state:
THE
SHARES OF COMMON STOCK REPRESENTED HEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
10
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO AN AGREEMENT BY THE REGISTERED HOLDER
WITH THE COMPANY NOT TO SELL SUCH SHARES
FOR A PERIOD OF 180 DAYS FOLLOWING THE DATE
OF
ISSUANCE OF THE SHARES.
SECTION
6. Director
Nominees.
Subject
to satisfactory due diligence, including but not limited
to, completion of Directors' & Officers' questionnaires, the Seller shall
have the right to nominate
and the Buyer and Star Maritime hereby agree to cause the appointment and
election of two (2) members of the board of directors of the Buyer, it being
understood and agreed that the
initial nominees and directors (to be listed in the registration/proxy statement
referred to in Section 4(a) hereof) shall be Mr. Nobu Su and Xx. Xxxxx Xxxxx,
each of whom shall serve upon the Effective Date of Merger for one (1) year
therefrom in the case of Mr. Nobu Su and for two (2)
years
therefrom in the case of Xx. Xxxxx Xxxxx or until their successors have been
duly elected
and qualified. For so long as Mr. Nobu Su serves on the board of directors
of
the Buyer, he shall receive the title of non-executive Co-Chairman of the
Buyer.
SECTION
7.
Third
Party Agreements.
The
Buyer or any of its subsidiaries or affiliates may enter
into agreements to purchase vessels and other assets other than the Vessels.
This Master Agreement
shall in no way restrict or prohibit the Buyer or its subsidiaries or affiliates
from negotiating
or completing such transactions. The Seller or any of its subsidiaries or
affiliates may enter into agreements relating to vessels or other assets other
than the Vessels; provided that,
in
no event shall the Seller or any of its subsidiaries enter into any agreements,
negotiations or
transactions that would materially adversely affect the obligations of the
Seller or any of its Vessel
Owning Subsidiaries hereunder.
SECTION
8. Representations
and Warranties of the Seller.
The
Seller (on behalf of itself and, with
respect to the representations and warranties contained in subsections (e)
through (h), each Registrable Securities Holder) hereby makes the following
representations and warranties to the Buyer and Star Maritime:
(a) it
is
duly organized and existing under the laws of the jurisdiction of its
organization
with full power and authority to execute and deliver this Agreement and to
perform all of the duties and obligations to be performed by it under this
Agreement;
(b) this
Agreement has been duly authorized, executed and delivered by it, and
constitutes
its valid, legal and binding obligation enforceable against it in accordance
with its terms,
except as enforceability may be limited by bankruptcy, insolvency or other
similar laws of general
application relating to or affecting the enforcement of creditors' rights in
general or by general
principles of equity whether considered in a proceeding at law or
equity;
11
(c) its
execution and delivery of, the performance and incurrence by it of its
obligations
and liabilities under, and the consummation by it of the other transactions
contemplated
by, this Agreement do not and will not (i) violate any provision of its
organizational
documents, (ii) violate any applicable law, rule or regulation, (iii) violate
any order,
writ, injunction or decree of any court or governmental or regulatory authority
or agency or
any
arbitral award applicable to it or its affiliates or (iv) subject to the consent
of applicable charterers
of the Vessels, result in a breach of, constitute a default under, require
any
consent under,
or
result in the acceleration or required prepayment of any indebtedness pursuant
to the terms
of,
any agreement or instrument of which it is a party or by which it is bound
or to
which it is
subject, or result in the creation or imposition of any lien upon any property
of it pursuant to the
terms
of any such agreement or instrument, in the case of (i), (ii), (iii) or (iv)
which could have
a
material adverse effect on the transactions contemplated hereby;
(d) there
are
no legal or governmental actions, suits or proceedings pending or, to
its
knowledge, threatened against it before any court, administrative agency or
tribunal which, if
determined adversely to it, could reasonably be expected to adversely affect
the
ability of it to perform
its obligations under this Agreement;
(e) it
is an
“accredited investor” within the meaning of Rule 501 of Regulation D
under
the Securities Act;
(f) it
has
received or has had full access to all the information it considers necessary
or appropriate to make an informed decision with respect to the acquisition
of
Buyer Common
Stock;
(g) the
Buyer
Common Stock being acquired by it are being acquired for its own
account for the purpose of investment and not with a view to, or for resale
in
connection with,
any
distribution thereof within the meaning of the Securities Act; and
(h)
it
understands that (i) the shares of Buyer Common Stock have not been registered
under the Securities Act by reason of their issuance in a transaction exempt
from the registration
requirements of the Securities Act, (ii) the shares of Buyer Common Stock must
be held
indefinitely (subject, however, to the Buyer's obligation to effect the
registration of registrable
securities in accordance with Section 5 hereof) unless a subsequent disposition
thereof
is registered under the Securities Act or is exempt from such registration,
and
(iii) the shares
of
Buyer Common Stock will bear the legend to such effect set forth in Section
5(1)
hereof.
SECTION
9. Representations
and Warranties of the Buyer.
The
Buyer makes the following representations
and warranties to the Seller and Star Maritime:
(a) it
is
duly organized and existing under the laws of the jurisdiction of its
organization
with full power and authority to execute and deliver this Agreement and to
perform all of the duties and obligations to be performed by it under this
Agreement;
(b) this
Agreement has been duly authorized, executed and delivered by it, and
constitutes
its valid, legal and binding obligation enforceable against it in accordance
with its terms,
except as enforceability may be limited by bankruptcy, insolvency or other
similar laws of general
application relating to or affecting the enforcement of creditors' rights in
general or by general
principles of equity whether considered in a proceeding at law or
equity;
12
(c) its
execution and delivery of, the performance and incurrence by it of its
obligations
and liabilities under, and the consummation by it of the other transactions
contemplated
by, this Agreement do not and will not (i) violate any provision of its
organizational
documents, (ii) violate any applicable law, rule or regulation, (iii) violate
any order,
writ, injunction or decree of any court or governmental or regulatory authority
or agency or
any
arbitral award applicable to it or its affiliates or (iv) result in a breach
of,
constitute a default
under, require any consent under, or result in the acceleration or required
prepayment of any indebtedness pursuant to the terms of, any agreement or
instrument of which it is a party or by
which
it is bound or to which it is subject, or result in the creation or imposition
of any lien upon
any
property of it pursuant to the terms of any such agreement or instrument, in
the
case of (i), (ii), (iii) or (iv) which could have a material adverse effect
on
the transactions contemplated hereby;
and
(d) there
are
no legal or governmental actions, suits or proceedings pending or, to its actual
knowledge, threatened against it before any court, administrative agency or
tribunal which, if determined adversely to it, could reasonably be expected
to
adversely affect the ability of
it to
perform its obligations under this Agreement.
SECTION
10. Representations
and Warranties of Star Maritime.
Star
Maritime makes the following
representations and warranties to the Seller and the Buyer:
(a) it
is
duly organized and existing under the laws of the jurisdiction of its
organization
with full power and authority to execute and deliver this Agreement and to
perform all of the duties and obligations to be performed by it under this
Agreement;
(b) this
Agreement has been duly authorized, executed and delivered by it, and
constitutes
its valid, legal and binding obligation enforceable against it in accordance
with its terms,
except as enforceability may be limited by bankruptcy, insolvency or other
similar laws of general
application relating to or affecting the enforcement of creditors' rights in
general or by general
principles of equity whether considered in a proceeding at law or
equity;
(c) its
execution and delivery of, the performance and incurrence by it of its
obligations
and liabilities under, and the consummation by it of the other transactions
contemplated
by, this Agreement do not and will not (i) violate any provision of its
organizational
documents, (ii) violate any applicable law, rule or regulation, (iii) violate
any order,
writ, injunction or decree of any court or governmental or regulatory authority
or agency or
any
arbitral award applicable to it or its affiliates or (iv) result in a breach
of,
constitute a default
under, require any consent under, or result in the acceleration or required
prepayment of any indebtedness pursuant to the terms of, any agreement or
instrument of which it is a party or by
which
it is bound or to which it is subject, or result in the creation or imposition
of any lien upon
any
property of it pursuant to the terms of any such agreement or instrument, in
the
case of (i), (ii), (iii) or (iv) which could have a material adverse effect
on
the transactions contemplated hereby;
and
13
(d)
there
are no legal or governmental actions, suits or proceedings pending or,
to
its
actual knowledge, threatened against it before any court, administrative agency
or tribunal which,
if
determined adversely to it, could reasonably be expected to adversely affect
the
ability of
it to
perform its obligations under this Agreement.
SECTION
11. Conditions
Precedent to the Obligations of the Seller.
The
obligation of the Seller
and the Vessel Owning Subsidiaries to sell and deliver the Vessels to the Buyer
is subject to
the
satisfaction or waiver of the following conditions, which conditions are
intended wholly for the benefit of the Seller and the applicable Vessel Owning
Subsidiary (with respect to each Vessel):
(a) Due
Authorization, Execution and Delivery.
This
Agreement shall have been
duly
authorized, executed and delivered by the Buyer and Star Maritime, shall be
in
full force
and
effect and executed counterparts thereof shall have been delivered to the
Seller;
(b) Representations
and Warranties.
The
representations and warranties of the Buyer
and
Star Maritime contained in this Agreement shall be true and
correct;
(c) Illegality.
The
performance of the transactions contemplated hereby upon the terms and subject
to the conditions set forth in this Agreement shall not, in the reasonable
judgment
of the Seller, violate, and shall not subject the Seller, any Vessel Owning
Subsidiary or any
Seller Affiliate to any material penalty or liability under, any law, rule
or
regulation binding upon
any
of them;
(d) No
Proceedings.
No
legal or governmental action, suit or proceeding shall have
been
instituted or threatened before any court, administrative agency or tribunal,
nor shall any
order, judgment or decree have been issued or proposed to be issued by any
court, administrative
agency or tribunal, to set aside, restrain, enjoin or prevent the consummation
of this
Agreement or the transactions contemplated hereby.
(e) Performance
of Obligations.
Star
Maritime, the Buyer and Buyer's Vessel purchasing
nominees shall have performed all obligations required of them under this
Agreement,
the Supplemental Agreement and the MOAs in all material respects.
SECTION
12. Conditions
Precedent to the Obligations of the Buyer.
The
obligation of the Buyer
to
purchase the Vessels from the Seller or the Vessel Owning Subsidiaries is
subject to the
satisfaction or waiver of the following conditions, which conditions are
intended wholly for the benefit of the Buyer:
(a) Due
Authorization. Execution and Delivery.
This
Agreement shall have been
duly
authorized, executed and delivered by the Seller, shall be in full force and
effect and executed
counterparts thereof shall have been delivered to the Buyer;
(b) Representations
and Warranties.
The
representations and warranties of the Seller
contained in this Agreement shall be true and correct;
14
(c) Illegality.
The
performance of the transactions contemplated hereby upon the terms and subject
to the conditions set forth in this Agreement shall not, in the reasonable
judgment
of the Buyer, violate, and shall not subject the Buyer to any material penalty
or liability under, any law, rule or regulation binding upon the
Buyer;
(d) No
Proceedings.
No
legal or governmental action, suit or proceeding shall have
been
instituted or threatened before any court, administrative agency or tribunal,
nor shall any
order, judgment or decree have been issued or proposed to be issued by any
court, administrative
agency or tribunal, to set aside, restrain, enjoin or prevent the consummation
of this
Agreement or the transactions contemplated hereby.
(e) Performance
of Obligations.
The
Seller and each Vessel Owning Subsidiary shall
have performed all obligations required of them under this Agreement, the
Supplemental Agreement
and the MOAs in all material respects.
SECTION
13.
Further
Assurances and Other Matters.
Each of
the Seller, the Buyer and Star Maritime
agrees, upon the request of the 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 effect
the Merger and more effectively confirm or carry out the provisions of this
Agreement and
the
other documents entered into in connection herewith.
SECTION
14. Term
and Termination.
This
Agreement shall terminate and be of no further force
and
effect: (i) upon satisfaction or waiver of all obligations of all parties
arising under this Agreement,
the Supplemental Agreement and the MOAs or (ii) in the event that the
stockholders
of Star Maritime do not approve the Merger or the sale and purchase of the
Vessels as
contemplated by this Agreement, the Supplemental Agreement and the MOAs,
provided,
however
that
Sections 6, 7 and 15 hereof shall survive the termination of this Agreement
and
remain in full force and effect if such termination is as a result of
satisfaction or waiver of all obligations
of all parties arising under the MOAs.
SECTION
15.
Miscellaneous.
(a) Termination
of Memorandum of Understanding.
The
Memorandum of Understanding
is hereby terminated and of no force and effect.
(b) Notices.
All
notices provided hereunder shall be given in writing and either delivered
personally or by overnight courier service or sent by certified mail, return
receipt requested,
or by facsimile transmission,
if
to the
Buyer, to:
c/o
Seward & Xxxxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx
Xxxx,
XX 00000
15
Attention:
Xxxxxx Xxxxx, Esq.
Xxxxxx
X.
Xxxxxxx, Esq.
Fax
No: x0(000)
000-0000
if
to
Star Maritime, to:
c/o
Seward & Xxxxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxx Xxxxx, Esq.
Xxxxxx
X.
Xxxxxxx, Esq.
Fax
No: x0
(000) 000-0000
if
to the
Seller to:
TMT
Co.,
Ltd.
8F.,
Xx.
000, Xxx. 0, Xxxxxxx Xx. Xx.
Xxxxxxxxx
Xxxxxxxx, Xxxxxx Xxxx 104
Taiwan,
R.O.C.
Attention:
Xxxxx Xxxxx
Fax
No.:
x000-0-0000-0000
with
a
copy (which shall not constitute notice) to:
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxxxx, Esq.
Fax
No.:
(000) 000-0000
or
to
such other address as the parties shall from time to time designate in writing.
Any notice delivered
personally or by fax shall be deemed given upon receipt (with confirmation
of
receipt required in the case of fax transmissions); any notice given by
overnight courier shall be deemed given
on
the next business day after delivery to the overnight courier; and any notice
given by certified
mail shall be deemed given upon the second business day after certification
thereof.
(c)
Governing
Law.
This
Agreement shall be governed by and construed under the
laws
of the State of New York without regard to conflicts of laws principles. Any
action or proceeding
(other than with respect to disputes under the MOAs and the Supplemental
Agreement,
which shall be subject to the dispute resolution provisions thereof) seeking
to
enforce
any provision of, or based on any right arising out of, this Agreement shall
be
brought against
the parties hereto or thereto in the courts of the State of New York, County
of
New York, or,
if it
has or can acquire jurisdiction, in the United States District Court for the
Southern District
of New York, and each of the parties consents to the exclusive jurisdiction
of
such courts (and
of
the appropriate appellate courts) in any such action or proceeding and waives
any objection
to venue laid therein. The parties hereby expressly waive all rights to trial
by
jury in any
suit,
action or proceeding arising under this Agreement.
16
(d) Survival
of Representations and Warranties.
All
representations and warranties
contained herein shall survive any termination of this Agreement for a period
of
two (2)
years.
(e) Headings.
Headings used herein are for convenience only and shall not in any
way
affect the construction of, or be taken into consideration in interpreting,
this
Agreement.
(f) Severabilitv.
Any
provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition
or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
(g) Amendments
in Writing.
No
amendment, modification, waiver, termination or discharge of any provision
of
this Agreement, or any consent to any departure by each of the Seller,
the Buyer or Star Maritime from any provision hereof, shall in any event be
effective unless
the same shall be in writing and signed by the parties hereto, and each such
amendment, modification,
waiver, termination or discharge shall be effective only in the specific
instance and for
the
specific purpose for which given. No provision of this Agreement shall be
varied, contradicted
or explained by any oral agreement, course of dealing or performance or any
other matter
not set forth in an agreement in writing and signed by the parties
hereto.
(h)
Expenses.
Each
party shall be responsible for its own expenses in connection
with the preparation, negotiation, execution and delivery of the MOAs, the
Supplemental
Agreement and this Agreement; provided,
however,
that
regardless of whether this Agreement
or the transactions contemplated hereby are terminated, Star Maritime shall
pay
for or
reimburse the Seller for all reasonable fees and expenses of its legal counsel
in connection with the preparation, negotiation, execution and delivery of
the
MOAs, the Supplemental Agreement
and this Agreement up to $25,000. The Buyer shall also be responsible for all
the reasonable expenses of the Seller in connection with soliciting the
stockholders vote in favor of, and
the
approval of, the Merger and transactions contemplated in this Agreement, the
MOAs and the
Supplemental Agreement, including all “road show,” travel and lodging expenses,
all reasonable
fees and expenses of legal counsel, accountants and other advisors and
consultants of the Seller.
(i)
Execution
in Counterparts.
This
Agreement and any amendment, waiver or consent
hereto may be executed by the parties hereto in separate counterparts (or upon
separate signature pages bound together into one or more counterparts), each
of
which, when so executed and delivered, shall be an original, but all such
counterparts shall together constitute one and the same
instrument. All such counterparts may be delivered among the parties hereto
by
facsimile or
other
electronic transmission, which shall not affect the validity
thereof.
(j)
Entire
Agreement.
This
Agreement and the other documents referred to herein
or
therein, on and as of the date hereof, constitute the entire agreement of the
parties hereto
with respect to the subject matter hereof or thereof, and all prior or
contemporaneous understandings
or agreements, whether written or oral between the parties hereto with respect
to such
subject matter (including, without limitation, the Memorandum of Understanding)
are hereby
superseded in their entirety.
17
(k)
Exhibits
and Schedules.
The
exhibits attached hereto or any schedules referenced
in this Agreement are incorporated by reference herein and shall have the same
force and
effect with respect to the provisions set forth therein as though fully set
forth in this Agreement.
(l)
Successors
and Assigns.
This
Agreement shall be binding upon, shall inure to
the
benefit of and shall be enforceable by the parties hereto and their respective
successors and assigns;
provided,
that,
except for permitted transferees of Registrable Securities, who shall be
entitled to the benefits of Section 5 hereof, none of the Buyer, the Seller
or
Star Maritime may assign
any of its obligations hereunder without the prior written consent of the other
party.
(m)
Third-Party
Beneficiaries.
The
Buyer and Star Maritime hereby acknowledge
and agree that each Vessel Owning Subsidiary shall be a third party beneficiary
of the
obligations of the Buyer and Star Maritime under this Agreement and each
Registrable Security
Holder, other than the Seller and each Vessel Owning Subsidiary, shall be a
third party beneficiary only with respect to Section 5 of this Agreement and
all
such entities shall be entitled to
enforce such obligations directly against the Buyer and Star Maritime as if
they
were a party hereto.
(n)
Non
Waiver.
Any
failure at any time of either party to enforce any provision of this Agreement
shall neither constitute a waiver of such provision nor prejudice the right
of
any
party
hereto to enforce such provision at any subsequent time.
[Signature
Page Follows]
18
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers thereunto duly authorized as of the day and date
first
above written.
|
TMT
CO., LTD.
for
itself individually and for/on behalf of each of the Vessel
Owning Subsidiaries and the Registrable Security
Hotders
|
||
| |
|
|
| By: | Nobu Su | |
|
Name: Nobu Su
Title:
Chairman and Chief Executive
Officer
|
||
|
for
itself individually and for/on behalf of each of its nominees
|
||
| |
|
|
| By: | /s/ Prokopios Tsirigakis | |
|
Name: Prokopios Tsirigakis
Title:
President
|
||
|
STAR
MARITIME ACQUISITION CORP.
|
||
| |
|
|
| By: | /s/ Prokopios Tsirigakis | |
|
Name: Prokopios Tsirigakis
Title:
Chairman, Chief Executive Officer and
President
|
||
19
Exhibit
A
MEMORANDA
OF AGREEMENT
[Attached]
Exhibit
B
SUPPLEMENTAL
AGREEMENT
[Attached]
AMENDMENT
TO MASTER AGREEMENT
TMT
CO.,
LTD., a Taiwan corporation (the “Seller”),
STAR
BULK CARRIERS CORP., a Xxxxxxxx Islands corporation (the “Buyer”),
and
STAR
MARITIME ACQUISITION CORP.,
a
Delaware corporation (“Star
Maritime”),
hereby amend the MASTER AGREEMENT dated as of January 12, 2007 (the “Master
Agreement”) by and among the Seller, the Buyer and Star Maritime, as
follows:
|
1.
|
The
definition of the term “Forecasted Annual Consolidated Revenue” contained
in Section 1 of the Master Agreement is hereby amended in its entirety
to
read as follows:
|
“Forecasted
Annual Consolidated Revenue” shall mean: (a) for purposes of
Section 2(b)(1) of this Agreement (i) if the Effective Date of Merger
occurs on or prior to June 30, 2007, an amount equal to $40 million, or
(ii) if the Effective Date of Merger occurs after June 30, 2007, an amount
equal to the product of (A) $40 million and (B) the ratio, expressed as a
percentage, of the number of days from the Effective Date of Merger to December
31, 2007 over 180; and (b) for purposes of Section 2(b)(2) of this
Agreement, $90 million.
|
2.
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All
capitalized terms used herein shall have the meanings assigned to
them in
the Master Agreement, unless defined herein or the context otherwise
requires. To the extent that this amendment conflicts with the Master
Agreement, this amendment shall govern. Except as amended hereby,
all of
the provisions of the Master Agreement shall remain and continue
in full
force and effect.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to Master
Agreement to be executed as of February 28, 2007.
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TMT
CO., LTD.
for
itself individually and for/on behalf of each of the Vessel Owning
Subsidiaries and the Registrable Security Holders
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By:
/s/ Nobu
Su
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Name:
Nobu Su
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Title:
Chairman and Chief Executive Officer
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for
itself individually and for/on behalf of each of its
nominees
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By:
/s/ Prokopios
Tsirigakis
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Name:
Prokopios Tsirigakis
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Title:
President, CEO
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STAR
MARITIME ACQUISITION CORP.
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By:
/s/ Prokopios
Tsirigakis
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Name:
Prokopios Tsirigakis
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Title:
President, CEO
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