RIGHT OF FIRST REFUSAL AND CORPORATE OPPORTUNITIES AGREEMENT
Exhibit 10.28
RIGHT OF FIRST REFUSAL AND
CORPORATE OPPORTUNITIES AGREEMENT
This Right of First Refusal and Corporate Opportunities Agreement (this “Agreement”) is made
as of August ___, 2007 by and between Seanergy Maritime Corp., a Xxxxxxxx Islands corporation (the
“Company”) and Equity Shipping Ltd. (“Equity”) in connection with the Company’s proposed initial
public offering (the “IPO”) of units of the Company in the United States pursuant to a registration
statement on Form F-1 (as amended, the “Registration Statement”), filed by the Company with the
Securities and Exchange Commission.
WHEREAS, the Company and Equity share certain officers and directors; and
WHEREAS, each of the Company and Equity may be seeking business opportunities in the shipping
industry, and the parties desire to enter into this Agreement to clarify the business opportunities
for which each party shall have the right of first refusal.
NOW, THEREFORE, in consideration of the mutual covenants and agreements as set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Right of First Refusal.
x. Xxxxx of Right. For the term specified in Section 2 hereof, Equity agrees to grant
to the Company (i) in its certificate of incorporation or equivalent document or (ii) by action of
its board of directors and/or shareholders, as applicable, a right of first refusal to any
corporate opportunities belonging to it that concern a Business Combination (as defined herein).
Decisions by the Company to release Equity to pursue any corporate opportunity concerning a
Business Combination will be made by a majority of the Company’s disinterested directors.
b. Scope of Right. As used herein, the term “Business Combination” shall mean any
acquisition, through a merger, capital stock exchange, asset acquisition, stock purchase or other
similar business combination, vessels or one or more operating businesses (each a “Target”) in the
shipping or any other industry.
c. General. Any directors, officers or employees that shall become aware of a
corporate opportunity subject to this Agreement shall provide written notice of the business
opportunity to the Company within five (5) business days of its identification of the corporate
opportunity. Equity further agrees that it will not enter into any agreement to purchase or invest
in a Target until the Company has had a reasonable period of time to determine whether or not to
pursue the opportunity.
2. Term. This Agreement shall become effective upon execution and shall remain in
effect for a period expiring upon the earlier of: (i) the consummation by the Company of a business
combination or (ii) the Company’s dissolution and liquidation pursuant to its second amended and
restated articles of incorporation, each in the circumstances and in the manner described in the
Registration Statement (the “Term”).
3. Notices. All notices or communications hereunder shall be in writing, addressed as
follows:
To the Company:
Seanergy Maritime Corp.
00, Xxxxxxxxx Xxxxxx
00000 X. Xxxxxx
Xxxxxx, Xxxxxx
Attention: Board of Directors
00, Xxxxxxxxx Xxxxxx
00000 X. Xxxxxx
Xxxxxx, Xxxxxx
Attention: Board of Directors
with a copy to:
Xxxxxxxx Xxxxxxxx
Xxxx & Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxx & Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Equity Shipping Ltd.
[contact information]
with a copy to:
[contact information]
4. Headings. The headings contained herein are for the sole purpose of convenience of
reference, and shall not in any way limit or affect the meaning or interpretation of any of the
terms or provisions of this Agreement.
5. Severability. If any provision of this Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof, which shall remain in full force and effect.
6. Amendment. This Agreement may only be amended by a written instrument executed by
each of the parties hereto. Notwithstanding the foregoing, this
Agreement may not be waived or amended to
provide for its termination prior to the expiration of the Term without the approval of a majority of the holders of the Company’s outstanding Common Stock.
7. Entire Agreement. This Agreement constitute the entire agreement
of the parties hereto with respect to the subject matter hereof and thereof, and supersede all
prior agreements and understandings of the parties, oral and written, with respect to the subject
matter hereof.
8. Specific
Performance. Equity acknowledges that damages at law will be an
insufficient remedy for the Company and that irreparable injury will result to
the Company, its business, and its property in the event of a breach by Equity
of this Agreement. Therefore, it is agreed that in this event of any such
breach or threatened breach, the Company and its affiliates shall be entitled,
in addition to any other remedies and damages available at law or in equity, to
specific performance of this Agreement by Equity and/or other appropriate
preliminary, permanent, and final injunctive relief to enjoin and restrain such
breach or threatened breach by Equity, its agents, officers, directors,
employees, partners and/or any other persons acting with Equity. Equity
agrees to pay any and all attorney’s fees and expenses incurred by the Company
(and/or its affiliates) in enforcing this Agreement. Such remedies shall be in
addition to all other remedies available at law or in equity, including the
Company’s right to recover any and all damages that may be sustained as a
result of Equity’s breach of this Agreement.
9. Governing Law, Venue, etc.
a. This Agreement shall be governed by and construed and enforced in accordance with the laws
of the State of New York, without giving effect to the conflict of laws principles thereof. The
parties: (i) agree that any legal suit, action or proceeding arising out of or relating to this
agreement and/or the transactions contemplated hereby shall be instituted exclusively in New York
Supreme Court, County of New York, or in the United States District Court for the Southern District
of New York, (ii) waive any objection which such party may have now or hereafter to the venue of
any such suit, action or proceeding and (iii) irrevocably and
exclusively consent and submit to the
jurisdiction of the New York Supreme Court, County of New York, and/or the United States District
Court for the Southern District of New York in any such suit, action or proceeding arising out of
this Agreement.
b. The parties further agree to accept and acknowledge service of any and all process which
may be served in any such suit, action or proceeding in the New York Supreme Court,
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County of New York, or in the United States District Court for the Southern District of New
York and agrees service of process upon the Company mailed by certified mail to the Company’s
address above shall be deemed in every respect effective service of process upon the Company in any such
suit, action or proceeding, and service of process upon Equity
mailed by certified mail to the addresses above shall be deemed in every respect effective service process upon the parties, in any such
suit, action or proceeding arising out of this Agreement.
c. THE PARTIES HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
10. Execution in Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been signed by each of the
parties hereto and delivered to each of the other parties hereto. Delivery of a signed counterpart
of this Agreement by fax or email/.pdf transmission shall constitute valid and sufficient delivery
thereof.
11. Waiver,
etc. The failure of any of the parties hereto, at any time, to enforce any
of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such
provision, nor to in any way effect the validity of this Agreement or any provision hereof or the
right of any of the parties hereto to thereafter enforce each and every provision of this
Agreement. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of
this Agreement shall be effective unless set forth in a written instrument executed by the party or
parties against whom or which enforcement of such waiver is sought; and no waiver of any such
breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other
or subsequent breach, non-compliance or non-fulfillment.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
specified above.
| SEANERGY MARITIME CORP. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| EQUITY SHIPPING COMPANY LTD. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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