STOCK PURCHASE AGREEMENT by and among EXCEL MARITIME CARRIERS LTD., as Seller and LHADA HOLDINGS INC. and TANEW HOLDINGS INC., as Purchasers Dated as of March 2nd, 2009
EXHIBIT
4.17
by and
among
as
Seller
and
LHADA
HOLDINGS INC.
and
TANEW
HOLDINGS INC.,
as
Purchasers
Dated
as of March 2nd, 2009
TABLE OF
CONTENTS
|
ARTICLE
I
|
PURCHASE
AND SALE OF SHARES AND WARRANTS
|
1
|
|
|
Section
1.01
|
Authorization
of Issuance and Sale of Shares and Warrants
|
1
|
|
|
Section
1.02
|
Sale
and Purchase
|
1
|
|
|
Section
1.03
|
Purchase
Price
|
1
|
|
|
Section
1.04
|
Closing
Payments and Delivery of Shares
|
1
|
|
|
ARTICLE
II
|
CONDITIONS
TO CLOSING
|
2
|
|
|
Section
2.01
|
Mutual
Conditions
|
2
|
|
|
Section
2.02
|
Purchasers'
Conditions
|
2
|
|
|
Section
2.03
|
Company's
Conditions
|
3
|
|
|
ARTICLE
III
|
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS OF THE COMPANY
|
3
|
|
|
Section
3.01
|
Organization
|
3
|
|
|
Section
3.02
|
Authorization;
Enforcement
|
3
|
|
|
Section
3.03
|
No
Conflicts
|
3
|
|
|
Section
3.04
|
No
Misstatement or Omission
|
4
|
|
|
ARTICLE
IV
|
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS OF THE PURCHASERS
|
4
|
|
|
Section
4.01
|
Organization
|
4
|
|
|
Section
4.02
|
Authorization;
Enforcement
|
4
|
|
|
Section
4.03
|
No
Conflicts
|
4
|
|
|
Section
4.04
|
Investment
Representations
|
5
|
|
|
ARTICLE
V
|
OTHER
AGREEMENTS
|
6
|
|
|
Section
5.01
|
Lock-Up
and Legends
|
6
|
|
|
Section
5.02
|
Indemnification
|
6
|
|
|
Section
5.03
|
Confidentiality
|
7
|
|
|
Section
5.04
|
Public
Announcements
|
8
|
|
|
Section
5.05
|
Expenses
|
8
|
|
|
Section
5.06
|
Sales
and Transfer Taxes
|
8
|
|
|
ARTICLE
VI
|
MISCELLANEOUS
|
8
|
|
|
Section
6.01
|
Notices
|
8
|
|
i
|
Section
6.02
|
Further
Assurances
|
9
|
|
Section
6.03
|
Successors
and Assigns
|
9
|
|
Section
6.04
|
Entire
Agreement
|
10
|
|
Section
6.05
|
Amendments
and Waivers
|
10
|
|
Section
6.06
|
Governing
Law
|
10
|
|
Section
6.07
|
Submission
to Jurisdiction
|
10
|
|
Section
6.08
|
Waiver
of Jury Trial
|
10
|
|
Section
6.09
|
Captions;
Counterparts, Execution
|
10
|
|
SCHEDULE
A
|
SHARES
AND WARRANTS AND PURCHASE PRICE
ALLOCATION
|
ii
THIS
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of March 2nd, 2009, by and
among EXCEL MARITIME CARRIERS LTD., a corporation organized under the laws of
the Republic of Liberia (the "Company"), and LHADA HOLDINGS INC., a corporation
organized under the laws of the Republic of Liberia ("Lhada") and TANEW HOLDINGS
INC., a corporation organized und under the laws of the Republic of Liberia
("Tanew" and together with Lhada, the "Purchasers" and each a
"Purchaser").
WHEREAS,
the Purchasers are companies owned and controlled by entities which are members
of the family business group of Xxxxxxx Panayotides, the Chairman of the Board
of Directors of the Company.
WHEREAS,
the entry into this Agreement is a pre-condition to the agreement of certain
lenders (the "Lenders") under the US$1,400,000,000 Senior Secured Credit
Facility, dated as of April 14, 2008 (the "Credit Facility"), to restructure the
Credit Facility.
WHEREAS,
the Company, in order raise additional equity capital as required by the
Lenders, desires to issue and sell 20.000.000 to 22.858.000 of the Company's
Class A common shares, par value $0.01 per share (the "Shares"), also 5.500.000
warrants (the "Warrants"), to the Purchasers, and the Purchasers desire by buy
the Securities, subject to the terms and conditions set forth in this Agreement.
[The Company in consultation with the banks may increase the upfront amount of
equity to be raised to U.S.$ 45.000.000 in common equity decreasing equivalently
the amount of Warrants.]
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, and for
such other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF SHARES
Section
1.01 Authorization of Issuance
and Sale of Shares. The Company's board of directors, acting
through a special independent committee, has authorized the issuance and sale of
the Shares to the Purchasers.
Section
1.02 Sale and
Purchase. Upon the terms and subject to the conditions of this
Agreement, the Company hereby agrees to issue and sell to the Purchasers, free
and clear of any lien, pledge, claim, security interest, encumbrance or charge
of any kind (together, "Liens"), and the Purchasers agrees to purchase from the
Company the Shares, allocable between the Purchasers in the manner set forth on
Schedule
A.
Section
1.03 Purchase
Price. The aggregate purchase price for the Shares shall be in
an amount equal to U.S.$ 35.000.000 – 40.000.000 (the "Purchase Price"), while
the aggregate purchase price for the Warrants shall be in an amount equal to
U.S.$ 19.250.000 (the "Purchase Price"), allocable between the Purchasers in the
manner set forth on Schedule
A.
Section
1.04 Closing Payments and
Delivery of Shares. Upon the terms and subject to the
satisfaction of the conditions contained in this Agreement, the Purchasers shall
deliver to the Company, pursuant to wire instructions furnished separately, an
amount equal to the Purchase Price in immediately available U.S. funds, and the
Company shall issue and deliver to the Purchasers stock certificates
representing the Shares, allocable between the Purchasers in the manner set
forth on Schedule
A. Completion
of the issuance sale and purchase of the Shares (the "Closing") shall take place
no later than three (3) business days after the satisfaction or waiver of the
conditions contained in this Agreement. The date on which the Closing
occurs is herein referred to as the "Closing Date" and the Closing shall be
deemed to have occurred as of the close of business on the Closing
Date.
ARTICLE
II
CONDITIONS
TO CLOSING
Section
2.01 Mutual
Conditions. The respective obligations of each party to
consummate the issuance and sale and the purchase of the Shares shall be subject
to the satisfaction of each of the following conditions (any or all of which may
be waived by a particular party on behalf of itself in writing, in whole or in
part, to the extent permitted by applicable law):
(a) no
statute, rule, order, decree or regulation shall have been enacted or
promulgated, and no action shall have been taken, by any federal, state, local
or foreign political subdivision, court, administrative agency, board, bureau,
commission or department or other governmental authority or instrumentality
(each, a "Governmental Authority") which temporarily, preliminarily or
permanently restrains, precludes, enjoins or otherwise prohibits the
consummation of the transactions contemplated by this Agreement or makes the
transactions contemplated hereby illegal;
(b) there
shall not be pending any suit, action or proceeding by any Governmental
Authority or any person seeking to restrain, preclude, enjoin or prohibit the
transactions contemplated by this Agreement;
(c) the
Lenders shall have agreed to restructure the Credit Facility on terms
satisfactory to the Company; and
(d) all
other consents, authorizations, waivers, orders and approvals of, notices to,
filings or registrations with and the expiration of all waiting periods imposed
by, any third person, including any Governmental Authority, which are required
for or in connection with the execution and delivery by the parties of this
Agreement and the consummation the transactions contemplated by this Agreement
shall have been obtained or made, in form and substance reasonably satisfactory
to each of the parties, and shall be in full force and effect.
Section
2.02 Purchasers'
Conditions. The obligation of the Purchasers to consummate the
purchase of the Shares shall be subject to the satisfaction of the condition
(any or all of which may be waived by the Purchasers in writing, in whole or in
part, to the extent permitted by applicable law) that the representations and
warranties of the Company contained in this Agreement shall be true and correct
in all material respects at and as of the Closing Date as if made on and as of
the Closing Date (except that representations made as of a specific date shall
be required to be true and correct as of such date only).
2
Section
2.03 Company's
Conditions. The obligation of the Company to consummate the
issuance and sale of the Shares to the Purchasers shall be subject to the
satisfaction of the condition (which may be waived by the Company in writing, in
whole or in part, to the extent permitted by applicable law) that the
representations and warranties of the Purchasers contained in this Agreement
shall be true and correct in all material respects at and as of the Closing Date
as if made on and as of the Closing Date (except that representations made as of
a specific date shall be required to be true and correct as of such date
only).
ARTICLE
III
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS OF THE COMPANY
The
Company hereby represents and warrants to, and agrees with, each of the
Purchasers, as of the date hereof and as of the Closing Date, as
follows:
Section
3.01 Organization. The
Company is an entity duly incorporated, validly existing and in good standing
under the laws of the Republic of Liberia, with the requisite power and
authority to enter into this Agreement and the transactions contemplated
hereby.
Section
3.02 Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby have been duly authorized by all
necessary corporate action. No other corporate or other action or
proceeding on the part of the Company is necessary to authorize this Agreement
or the consummation of the transactions contemplated hereby. This
Agreement has been duly executed by the Company and, when delivered, will
constitute the valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
any other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of a specific
performance, injunctive relief or other equitable remedies or (iii) to the
extent the indemnification provisions contained in this Agreement may be limited
by applicable federal or state securities laws, public policy and other
equitable considerations.
Section
3.03 No
Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not, (i) conflict with or violate any
provision of its Restated Articles of Incorporation or Amended and Restated
Bylaws, (ii) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation (with or
without notice, lapse of time or both) of, any contract to which the Company is
a party or by which any property or asset of the Company is bound or affected,
(iii) result in a violation of any law, rule, statute or regulation to which the
Company is subject (including federal and state securities laws and regulations)
or (iv) result in any violation of any order, judgment, injunction, decree or
other restriction of any Governmental Authority to which the Company is subject,
or by which any property or asset of the Company is bound or
affected.
3
Section
3.04 No Misstatement or
Omission. The Company has filed or furnished, as the case may
be, on a timely basis all reports required to be filed or furnished with or to
the U.S. Securities and Exchange Commission (the "Commission"). The
Company's filings with the Commission do not contain 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.
ARTICLE
IV
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS OF THE PURCHASERS
Each
Purchaser, severally and not jointly, hereby represents and warrants to, and
agrees with, the Company, as of the date hereof and as of the Closing Date, as
follows:
Section
4.01 Organization. Such
Purchaser is an entity duly incorporated, validly existing and in good standing
under the laws of the Republic of Liberia, with the requisite power and
authority to enter into this Agreement and the transactions contemplated
hereby.
Section
4.02 Authorization;
Enforcement. Such Purchaser has the requisite corporate power
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations
hereunder. The execution and delivery of this Agreement by such
Purchaser and the consummation by it of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate
action. No other corporate or other action or proceeding on the part
of a Purchaser is necessary to authorize this Agreement or the consummation of
the transactions contemplated by this Agreement. This Agreement and
has been duly executed by such Purchaser and when delivered, will constitute the
valid and binding obligation of such Purchaser enforceable against such
Purchaser in accordance with its terms, except: (i) as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and any other laws of general application affecting enforcement of
creditors' rights generally; (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies; or (iii) to the extent the indemnification provisions contained in
this Agreement may be limited by applicable federal or state securities laws,
public policy and other equitable considerations.
Section
4.03 No
Conflicts. The execution, delivery and performance of this
Agreement by such Purchaser and the consummation of the transactions
contemplated hereby do not and will not: (i) conflict with or violate any
provision of its articles of incorporation, bylaws or other charter documents;
(ii) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any contract to which such Purchaser is a
party; (iii) result in a violation of any law, rule, statute or regulation to
which such Purchaser is subject (including federal and state securities laws and
regulations); or (iv) result in any violation of any order, judgment,
injunction, decree or other restriction of any Governmental Authority to which
such Purchaser is subject, or by which any respective property or asset of the
Purchaser is bound or affected.
4
Section
4.04 Investment
Representations.
(a) Investment
Intent. Such Purchaser is acquiring the Shares for its own
account, for investment purposes only and not with a view to or for distributing
or reselling the Shares or any part thereof, without prejudice, however, to such
Purchaser's right at all times to sell or otherwise dispose of all or any part
of the Shares in compliance with applicable federal and state securities
laws. None of the Purchasers has any agreement or understanding,
directly or indirectly, with any person to distribute any of the
Shares.
(b) General
Solicitation. Such Purchaser is not purchasing the Shares as a
result of any advertisement, article, notice or other communication regarding
the Shares published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or any other general
solicitation or general advertisement.
(c) Access to
Information. Such Purchaser acknowledges that it has had the
opportunity to review this Agreement and has been afforded: (i) the reasonable
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms and conditions
of the Shares and the merits and risks of investing in the Shares; (ii)
reasonable access to information about the Company and its financial condition,
results of operations, business, properties, management and prospects sufficient
to enable it to evaluate its investment; and (iii) the opportunity to obtain
such additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the transactions contemplated hereby.
(d) Independent Investment
Decision. Such Purchaser has independently evaluated the
merits of its decision to acquire the Shares pursuant to this Agreement, such
decision has been independently made by such Purchaser and such Purchaser
confirms that it has only relied on the advice of its own counsel and not on the
advice of the Company or its counsel in making such decision.
(e) Reliance upon Representation
and Warranties. Such Purchaser understands that the Shares are
being offered and sold to such Purchaser in reliance on exemptions from the
registration requirements of United States federal and state securities laws,
and that the Company is relying upon the truth and accuracy of, and the
compliance by such Purchaser with, the representations, warranties and
agreements of such Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of such Purchaser to acquire
the Shares.
(f) Unregistered
Securities. Such Purchaser understands that: (a) the Shares
have not been and are not being registered under the United States Securities
Act of 1933, as amended (the "Securities Act"), or
any state securities laws, and may not be offered for sale, sold, assigned or
transferred, unless: (A) subsequently registered thereunder or (B) sold in
reliance on an exemption therefrom; and (b) neither the Company nor any other
person is under any obligation to register the Shares under the Securities Act
or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder.
5
ARTICLE
V
OTHER
AGREEMENTS
Section
5.01 Lock-Up and
Legends
(a) Lock-Up. Each
Purchaser hereby agrees that, without the prior written consent of the Company,
it 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, any of the Shares for a period of 365 days following the date
of issuance of the Shares. Notwithstanding the foregoing, the Shares
may be pledged in connection with a bona fide margin account or other loan
secured by the Shares. The
warrants will be exercisable for a period of 12 months from the date of award,
with a 12 months lock up period for their sale from the time they are
granted.
(b) Legend. Each
Purchaser hereby acknowledges and agrees that the share certificates
representing the Shares will bear the following legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR OFFERED FOR SALE 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.
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AGREEMENT BY THE
REGISTERED HOLDER WITH THE COMPANY NOT TO TRANSFER, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMPANY, SUCH SHARES FOR A PERIOD OF [270][365] DAYS FOLLOWING
THE DATE OF ISSUANCE OF THE SHARES. THE
SHARES REPRESENTED BY THIS CERTIFICATE MAY BE PLEDGED IN CONNECTION WITH A BONA
FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SHARES.
Section
5.02 Indemnification
(a) Indemnification by
the
Company. The Company agrees to indemnify each of the
Purchasers and its respective officers, directors, employees, agents, counsel,
accountants, investment bankers and other representatives from, and hold each of
them harmless against, any and all losses, actions, suits, proceedings
(including any investigations, litigation or inquiries), demands, and causes of
action, and promptly upon demand, pay or reimburse each of them for all
reasonable costs, losses, liabilities, damages, or expenses of any kind or
nature whatsoever, including, without limitation, the reasonable
fees and disbursements of counsel and all other reasonable expenses incurred in
connection with investigating, defending or preparing to defend any such matter
that may be incurred by them or asserted against or involve any of them as a
result of, arising out of, or in any way related to the breach of any of the
representations, warranties or covenants of the Company contained
herein.
6
(b) Indemnification by the
Purchasers. Each Purchaser agrees, severally and not jointly,
to indemnify the Company and its officers, directors, employees, agents,
counsel, accountants, investment bankers and other representatives from, and
hold each of them harmless against, any and all losses, actions, suits,
proceedings (including any investigations, litigation or inquiries), demands,
and causes of action, and promptly upon demand, pay or reimburse each of them
for all reasonable costs, losses, liabilities, damages, or expenses of any kind
or nature whatsoever, including, without limitation, the reasonable fees and
disbursements of counsel and all other reasonable expenses incurred in
connection with investigating, defending or preparing to defend any such matter
that may be incurred by them or asserted against or involve any of them as a
result of, arising out of, or in any way related to the breach of any of the
representations, warranties or covenants of such Purchaser contained herein;
provided that the liability of a Purchaser shall not be in an amount greater
than its allocable Purchase Price, as set forth on Schedule
A.
Section
5.03 Confidentiality. The
parties hereto hereby agree that the existence and terms of this Agreement and
the transactions contemplated hereby are strictly confidential and further agree
that they and their respective officers, directors, employees, agents, counsel,
accountants, investment bankers and other representatives (collectively, the
"Representatives") shall not disclose to the public or to any third party: (i)
the existence or terms of this Agreement and the transactions contemplated
hereby without the prior written approval of the disclosing party; or (ii) any
other information relating to any party hereto which is not publicly known or
available either at the date of disclosure of such information or at any time
thereafter ("Confidential Information") without the prior written approval of
the disclosing party. Notwithstanding the foregoing, the provisions
of this Section 5.03 shall not apply to Confidential Information that: (a) is
disclosed to the Representatives of the receiving party and whom the receiving
party shall direct to keep confidential in accordance with the conditions of
this Agreement; (b) becomes generally available to the public other than as a
result of a breach of this Agreement by the receiving party or its
Representatives; (c) became or becomes available to the receiving party on a
non-confidential basis from a third party, provided that such third party was
not breaching an obligation of confidentiality to the disclosing party; (d) was
independently developed by the receiving party without violating any of its
obligations hereunder; or (e) is required to be disclosed pursuant to and in
accordance with any applicable law, regulation or stock exchange rule or is
requested to be disclosed by a Governmental Authority; provided that the
receiving party shall provide the disclosing party with reasonably prompt notice
of such requirement or request, so that the disclosing party may seek, at its
expense, an appropriate protective order or waiver or otherwise seek to protect
the confidentiality of such Confidential Information.
7
Section
5.04 Public
Announcements. Except as otherwise required by law, or
regulations or by the rules of any stock exchange, the Company and the
Purchasers will consult with each other before issuing any press release
or otherwise making any public statement thereafter with respect to this
Agreement and the transactions contemplated hereby and neither the Company nor
the Purchaser shall issue any such press release or make any such public
statement prior to such consultation.
Section
5.05 Expenses. Except
as otherwise provided herein, the Company and each Purchaser shall each bear
their own costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby.
Section
5.06 Sales and Transfer
Taxes. All sales and transfer taxes (including all stock
transfer taxes, if any) incurred in connection with this Agreement and the
transactions contemplated hereby will be borne by the Company, and the Company
will, at its own expense, file all necessary tax returns and other documentation
with respect to all such sales and transfer taxes, and, if required by
applicable law, the Purchasers will join in the execution of any such tax
returns or other documentation.
ARTICLE
VI
MISCELLANEOUS
Section
6.01 Notices. All
notices, requests, consents and other communications under this Agreement shall
be in writing and shall be deemed delivered (i) upon delivery when delivered
personally, (ii) upon receipt if by facsimile transmission (with confirmation of
receipt thereof), or (iii) one business day after being sent via a reputable
nationwide overnight courier service guaranteeing next business day delivery, in
each case to the intended recipient as set forth below:
|
|
If
to the Company:
|
00xx Xx
Xxxxxxxx Xxxx Xxxxxx-Xxxxx & Finikos Xxxxxx
000 00
Xxx Xxxxxxx
Xxxxxx,
Xxxxxx
Attention: Chief
Executive Officer
Facsimile: x00
000 00 00 000
|
|
With
a copy (which shall not constitute notice)
to:
|
Xxxxxx
& Xxxxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
X. Xxxxx
Facsimile:
x0 000 000-0000
8
If to
Lhada:
00xx Xx
Xxxxxxxx Xxxx Xxxxxx-Xxxxx & Finikos Xxxxxx
000 00
Xxx Xxxxxxx
Xxxxxx,
Xxxxxx
Attention: Villy
Panayotides
Facsimile: 000
0000000
With a copy (which shall not constitute notice) to:
Xxxxxx
& Xxxxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
X. Xxxxx
Facsimile:
x0 000 000-0000
|
|
If
to Tanew:
|
00xx Xx
Xxxxxxxx Xxxx Xxxxxx-Xxxxx & Finikos Xxxxxx
000 00
Xxx Xxxxxxx
Xxxxxx,
Xxxxxx
Attention: Villy
Panayotides
Facsimile: 000
0000000
With
a copy (which shall not constitute notice) to:
Xxxxxx
& Xxxxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
X. Xxxxx
Facsimile:
x0 000 000-0000
Any party
may change the address to which notices, requests, consents or other
communications hereunder are to be delivered by giving the other parties notice
in the manner set forth in this Section 6.01.
Section
6.02 Further
Assurances. Each party agrees that it will execute and
deliver, or cause to be executed and delivered, on or after the date of this
Agreement, all such other documents and instruments as are reasonably required
for the performance of such party's obligations hereunder and will take all
commercially reasonable actions as may be necessary to consummate the
transactions contemplated hereby and to effectuate the provisions and purposes
hereof.
Section
6.03 Successors and
Assigns. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns; provided, that none of the parties hereto may assign any
of its obligations hereunder without the prior written consent of the other
party.
9
Section
6.04 Entire
Agreement. This Agreement constitutes the entire agreement by
the parties hereto and supersedes any other agreement, whether written or oral,
that may have been made or entered into between them relating to the matters
contemplated hereby.
Section
6.05 Amendments and
Waivers. This Agreement may be amended, modified, superseded,
or canceled, and any of the terms, representations, warranties or covenants
hereof may be waived, only by written instrument executed by both of the parties
hereto or, in the case of a waiver, by the party waiving
compliance.
Section
6.06 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
laws principles.
Section
6.07 Submission to
Jurisdiction. Any legal action or proceeding in connection
with this Agreement or the performance hereof may be brought in the state and
federal courts located in the Borough of Manhattan, City, County and State of
New York, and the parties hereby irrevocably submit to the non-exclusive
jurisdiction of such courts for the purpose of any such action or
proceeding.
Section
6.08 Waiver of Jury
Trial. The parties hereby irrevocably waive trial by jury in
any action, proceeding or claim brought by any party hereto or beneficiary
hereof on any matter whatsoever arising out of or in any way connected with this
Agreement.
Section
6.09 Captions; Counterparts,
Execution. The captions in this Agreement are for convenience
only and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement. This Agreement may
be executed in one or more counterparts, each of which shall be an original, but
all of which together shall constitute one and the same
instrument. All such counterparts may be delivered between the
parties hereto by facsimile or other electronic transmission, which shall not
affect the validity thereof.
[Signature Page
Follows]
10
IN
WITNESS WHEREOF, the Company and each of the Purchasers have caused this
Agreement to be duly executed as of the date first above written.
| Special Independent Committee | |||
| By: | |||
| Name: | Xxxxxxxx Xxxxxx | ||
| Title: | Director | ||
| By: | |||
| Name: | Xxxxxxxxx Xxxxxxxxxxx | ||
| Title: | Director | ||
| By: | |||
| Name: | Xxxxxxxxx Xxxxxx | ||
| Title: | Director | ||
| By: | |||
| Name: | Xxxxxx Xxxxxxxx | ||
| Title: | Director | ||
|
LHADA
HOLDINGS INC.
|
|||
| By: | |||
| Name: | Villy Panayotides | ||
| Title: | |||
|
TANEW
HOLDINGS INC.
|
|||
| By: | |||
| Name: | Villy Panayotides | ||
| Title: | |||
[Signature Page to the Stock Purchase
Agreement]
Schedule
A
SHARES
AND PURCHASE PRICE ALLOCATION
|
Purchaser
|
Shares
|
Purchase Price
|
|
LHADA
HOLDINGS INC.
|
10.000.000
– 11.429.000
|
$
17.500.000 –
20,000,000
|
|
TANEW
HOLDINGS INC.
|
10.000.000
– 11.429.000
|
$
17.500.000 –
20,000,000
|
|
TOTAL:
|
20.000.000
– 22.858.000
|
$
35.000.000 - 40,000,000
|
|
Purchaser
|
Warrants
|
Warrants
|
|
LHADA
HOLDINGS INC.
|
2.750.000
|
$
9.625.000
|
|
TANEW
HOLDINGS INC.
|
2.750.000
|
$
9.625.000
|
|
TOTAL:
|
5.500.000
|
$
19.250.000
|
[Schedule A to the Stock
Purchase Agreement]
