CONTRIBUTION AND CONVEYANCE AGREEMENT
Exhibit 4.6
This contribution and conveyance agreement (this "Agreement") is entered into as of November 2, 2021, among Xxxxx Shipping Inc., a Xxxxxxxx Islands corporation ("Xxxxx"), and
OceanPal Inc., a Xxxxxxxx Islands corporation ("OceanPal"). The foregoing shall be referred to individually as a "Party" and collectively as the "Parties."
RECITALS
A. Diana intends to transfer a portion of its fleet to OceanPal, a wholly-owned subsidiary, and OceanPal will subsequently be spun off to
current shareholders of Xxxxx (the "Spin-Off"). Concurrently with the Spin-Off, Xxxxx intends to list the shares of the subsidiary to be spun off on the Nasdaq Capital Market. The board of directors of Xxxxx, and the board of directors of OceanPal,
as well of the shareholders of OceanPal, have or will authorize the actions set forth below at the times and in the order set forth below.
B. To accomplish the objectives and purposes in the preceding recital, the following actions have been taken prior to the date of this
Agreement:
(1) Xxxxx formed OceanPal pursuant to the Xxxxxxxx Islands Business Corporation Act and contributed $5.00 in exchange for 500 of OceanPal’s
common shares, par value $0.01 per share (the “Common Shares”), constituting all of the outstanding Common Shares of OceanPal at such time;
(2) Xxxxx, as sole shareholder of OceanPal, has authorized an increase of OceanPal’s authorized share capital from 500 to 1,000,000,000 Common
Shares and has authorized the issuance of up to 100,000,000 preferred shares of OceanPal capital stock, and the board of directors of OceanPal have designated an aggregate of 500,000 preferred shares of OceanPal as the Series B Preferred Shares and
have designated an aggregate of 10,000 preferred shares of OceanPal as the Series C Preferred Shares; and
(3) Xxxxx owns all of the outstanding shares (the "Vessel-Owning Subsidiary Shares") of (i) Darien Compania Armadora S.A., a Panama corporation
("DCA"), which owns the drybulk vessel Calipso; (ii) Cypres Enterprises Corp., a Panama corporation ("CEC"), which owns the drybulk vessel Protefs, and (iii) Marfort
Navigation Company Limited, a Cyprus corporation ("MNCL"), which owns the drybulk vessel Salt Lake City (the Calipso, the Protefs
and the Salt Lake City, collectively, the “Vessels”) (DCA, CEC and MNCL, collectively, the "Vessel-Owning Subsidiaries").
C. Effective on the date of this Agreement, the following transactions shall occur in accordance with and pursuant to this Agreement: Xxxxx
will contribute (i) all of the Vessel-Owning Subsidiary Shares to OceanPal as a capital contribution and (ii) and aggregate of $1.0 million in cash as working capital of the Company (the “Working Capital Amount”) in exchange for 500,000 of OceanPal’s
Series B Preferred Shares (the "OceanPal Series B Preferred Shares") and 10,000 of OceanPal’s Series C Convertible Preferred Shares (the “OceanPal Series C Preferred Shares” and, together with the OceanPal Series B Preferred Shares (the "OceanPal
Shares").
D. Subsequent to the date of this Agreement:
(1) OceanPal will effect a reverse stock split of the OceanPal Common Shares; and
(2) Xxxxx will distribute the OceanPal Common Shares, after giving effect to the reverse stock split, to its shareholders on a pro rata basis as a special dividend.
AGREEMENT
NOW, THEREFORE, in consideration of their mutual undertakings and agreements hereunder, the Parties undertake and agree as follows:
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ARTICLE I
CONTRIBUTIONS AND CONVEYANCE
1.1 Contributions and Conveyances. The Parties acknowledge and agree that the following actions hereby occur in the following order
effective on the date of this Agreement:
(a) Contribution by Xxxxx of the Vessel-Owning Subsidiary Shares and the Working Capital Amount to OceanPal as a capital contribution, and
OceanPal hereby acknowledges receipt of the Vessel-Owning Subsidiary Shares and Capital Account Amount;
(b) Delivery by OceanPal of the OceanPal Shares to Xxxxx in exchange for Diana’s capital contribution of the Vessel-Owning Subsidiary Shares
and Working Capital Amount, and Xxxxx hereby acknowledges receipt of the Vessel-Owning Subsidiary Shares; and
(c) The Parties shall execute such documents and take such actions as are necessary or desirable to effect the foregoing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF XXXXX; DISCLAIMER
2.1 Representations and Warranties. Xxxxx hereby represents and warrants that:
(a) Each of the Vessel-Owning Subsidiaries has been duly formed or incorporated and is validly existing in good standing under the laws of its
respective jurisdiction of formation or incorporation and has all requisite power and authority to operate its assets, including the vessel owned by each such Vessel-Owning Subsidiary, and conducts its business as described in Diana’s public filings
made with the U.S. Securities and Exchange Commission (“SEC”) through the date hereof;
(b) Correct and complete copies of the articles of association, articles of incorporation, by-laws, other organizational documents and all
material agreements (as amended to the date of this Agreement) of the Vessel-Owning Subsidiaries have been made available to OceanPal;
(c) The execution and delivery of this Agreement and all documents, instruments and agreements required to be executed and delivered by it
pursuant to this Agreement in connection with the completion of the transactions contemplated by this Agreement, have been duly authorized by all necessary actions by Xxxxx and, to the extent applicable, each Vessel-Owning Subsidiary, and this
Agreement has been duly executed and delivered by Xxxxx and constitutes a legal, valid and binding obligation of Xxxxx enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws of general application affecting the enforceability of remedies and rights of creditors and except that equitable remedies such as specific performance and injunction are in the discretion of a court;
(d) The execution, delivery and performance by it of this Agreement will not conflict with or result in any violation of or constitute a breach
of any of the terms or provisions of, or result in the acceleration of any obligation under, or constitute a default under any provision of: (i) the articles of association, articles of incorporation or by-laws or other organizational documents of
Xxxxx or any of the Vessel-Owning Subsidiaries (the "Xxxxx Parties" and each, a "Xxxxx Party"); (ii) any lien, encumbrance, security interest, pledge, mortgage, charge, other claim, bond, indenture, agreement, contract, franchise license, permit or
other instrument or obligation to which any Xxxxx Party is a party or is subject or by which any of such Xxxxx Party's assets or properties may be bound; (iii) any applicable laws, statutes, ordinances, rules or regulations promulgated by a
governmental authority, orders of a governmental authority, judicial decisions, decisions of arbitrators or determinations of any governmental authority or court ("Laws"); or (iv) any charter or vessel management agreement to which any Xxxxx Party is
a party or any material provision of any material contract to which a Xxxxx Party is a party or by which a Xxxxx Party's properties are bound;
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(e) Except as have already been obtained or that will be obtained in the ordinary course of business, no consent, permit, approval or
authorization of, notice or declaration to or filing with any governmental authority or any other person, including those related to any environmental laws or regulations or the charters or vessel management agreements related to the vessels owned by
the Vessel-Owning Subsidiaries, is required in connection with the execution and delivery by any Xxxxx Party of this Agreement or the consummation by any Xxxxx Party of the transactions contemplated hereunder;
(f) The Vessel-Owning Subsidiary Shares are validly issued in accordance with the applicable articles of association or incorporation and are
fully paid and non-assessable;
(g) Xxxxx owns the entire beneficial interest in the Vessel-Owning Subsidiary Shares and has good legal title to the same, free and clear of
all liens, encumbrances, security interests, pledges, mortgages, charges or other claims;
(h) There is no outstanding agreement, contract, option, commitment or other right or understanding in favor of, or held by, any person to
acquire the Vessel-Owning Subsidiary Shares or the assets of the Vessel-Owning Subsidiaries, including but not limited to the Vessels , that has not been terminated or otherwise waived;
(i) Each of the charters and the vessel management agreements to which each applicable Vessel-Owning Subsidiary is a party (as amended to the
date of this Agreement) has been made available to OceanPal and is a valid and binding agreement of the Vessel-Owning Subsidiary party to such charter or agreement enforceable in accordance with its terms and, to the knowledge of such Vessel-Owning
Subsidiary, of all other parties thereto enforceable in accordance with its terms;
(j) The Vessel-Owning Subsidiaries have fulfilled all material obligations required pursuant to the charters (described in (i) above) and the
vessel management agreements to have been performed by them prior to the date of this Agreement and have not waived any material rights thereunder; and no material default or breach exists in respect thereof on their part or, to their knowledge, any
of the other parties thereto and, to their knowledge, no event has occurred which, after giving of notice or the lapse of time, or both, would constitute such a material default or breach;
(n) Except for such liabilities, debts obligations, encumbrances, defects, restrictions or claims of a general nature and magnitude that would
arise in connection with the operation of vessels of the same type as the Vessels in the ordinary course of business, there are no liabilities, debts or obligations of, encumbrances, defects or restrictions with respect to, or claims against the
Vessel-Owning Subsidiaries or any of the assets owned by the Vessel-Owning Subsidiaries, including the Vessels, other than those disclosed in Diana’s public filings made with the SEC through the date hereof; and
(o) The Vessels are (i) adequate and suitable for use by the Vessel-Owning Subsidiaries in the
Vessel-Owning Subsidiaries' business as presently conducted by them in all material respects as described in the Registration Statement, ordinary wear and tear excepted; (ii) seaworthy in all material respects for hull and machinery insurance
warranty purposes and is in good running order and repair; (iii) insured against all risks, and in amounts, consistent with common industry practices; (iv) in compliance with maritime laws and regulations; (v) duly registered under the flag of the
Bahamas or Cyprus, as applicable; and (vi) in compliance in all material respects with the requirements of its present class and classification society; and all class certificates of each of the Vessels are clean and valid and free of recommendations
affecting class.
2.2 Disclaimer of Warranties. EXCEPT TO THE EXTENT PROVIDED IN THIS AGREEMENT OR IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN
CONNECTION WITH THIS AGREEMENT, THE PARTIES ACKNOWLEDGE AND AGREE THAT NONE OF THE PARTIES HAS MADE, DOES NOT MAKE, AND EACH SUCH PARTY SPECIFICALLY NEGATES AND DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES
OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, PAST OR PRESENT, REGARDING (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE ASSETS OWNED BY THE VESSEL-OWNING SUBSIDIARIES, INCLUDING, WITHOUT LIMITATION,
THE ENVIRONMENTAL CONDITION OF THE ASSETS GENERALLY, INCLUDING, WITHOUT LIMITATION, THE PRESENCE OR LACK OF HAZARDOUS SUBSTANCES OR OTHER
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MATTERS ON SUCH ASSETS, (B) THE INCOME TO BE DERIVED FROM SUCH ASSETS, (C) THE SUITABILITY OF SUCH ASSETS FOR ANY AND ALL ACTIVITIES AND USES THAT MAY BE CONDUCTED
THEREON OR THEREWITH, (D) THE COMPLIANCE OF OR BY SUCH ASSETS OR THEIR OPERATION WITH ANY LAWS (INCLUDING WITHOUT LIMITATION ANY ZONING, ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS), OR (E) THE
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF SUCH ASSETS. EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT, EACH PARTY ACKNOWLEDGES AND
AGREES THAT SUCH PARTY HAS HAD THE OPPORTUNITY TO INSPECT THE ASSETS OF THE VESSEL-OWNING SUBSIDIARIES, AND SUCH PARTY IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE ASSETS OF THE VESSEL-OWNING SUBSIDIARIES AND NOT ON ANY INFORMATION PROVIDED OR
TO BE PROVIDED BY THE OTHER PARTY. EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT, NONE OF THE PARTIES IS LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS
OR INFORMATION PERTAINING TO THE ASSETS OF THE VESSEL-OWNING SUBSIDIARIES FURNISHED BY ANY AGENT, EMPLOYEE, SERVANT OR THIRD PARTY. THIS SECTION SHALL SURVIVE THE CONTRIBUTION AND CONVEYANCE OF THE INTERESTS OR THE TERMINATION OF THIS AGREEMENT. THE
PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED BY THE PARTIES AFTER DUE CONSIDERATION AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE ASSETS OF
THE VESSEL-OWNING SUBSIDIARIES THAT MAY ARISE PURSUANT TO ANY LAW NOW OR HEREAFTER IN EFFECT, OR OTHERWISE, EXCEPT AS SET FORTH IN THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT.
2.3 Indemnification. Xxxxx hereby agrees to indemnify OceanPal for any and all obligations and other liabilities arising from or
relating to the operation, management or employment of any Vessel prior to the effective date of the Spin-Off, and hereby agrees to indemnify each Vessel-Owning Subsidiary for any and all obligations and other liabilities arising from or relating to
the operation, management or employment of the Vessel owned by such Vessel-Owning Subsidiary prior to the effective date of the Spin-Off.
ARTICLE III
FURTHER ASSURANCES
3.1 Further Assurances. From time to time after the date of this Agreement, and without any further consideration, the Parties agree to
execute, acknowledge and deliver all such additional deeds, assignments, bills of sale, conveyances, instruments, notices, releases, acquittances and other documents, and will do all such other acts and things, all in accordance with applicable Law,
as may be necessary or appropriate (a) more fully to assure that the applicable Parties own all of the properties, rights, titles, interests, estates, remedies, powers and privileges granted by this Agreement, or which are intended to be so granted,
(b) more fully and effectively to vest in the applicable Parties and their respective successors and assigns beneficial and record title to the interests contributed and assigned by this Agreement or intended so to be and (c) to more fully and
effectively carry out the purposes and intent of this Agreement.
3.2 Power of Attorney. Each Party that has conveyed any interests as reflected by this Agreement (collectively, the "Conveying
Parties") hereby constitutes and appoints each of Semiramis Paliou, Xxxxxxx Xxxxxxxxx and Xxxxxxxxxxx Xxxxxxxxxx, each of Pendelis 26, 000 00 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxx, and Xxxxxx X. Xxxxxx, Xxxxxx Xxx and Xxxxxx Xxxxxxxx, each of Xxxxxx &
Xxxxxx LLP, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, XX 00000 (the "Attorney-in-Fact") its true and lawful attorney-in-fact with full power of substitution for it and in its name, place and stead or otherwise on behalf of the applicable Conveying Party and
its successors and assigns, and for the benefit of the Attorney-in-Fact to demand and receive from time to time the interests contributed and conveyed by this Agreement (or intended so to be) and to execute in the name of the applicable Conveying
Party and its successors and assigns instruments of conveyance, instruments of further assurance and to give receipts and releases in respect of the same, and from time to time to institute and prosecute in the name of the applicable Conveying Party
for the benefit of the Attorney-in-Fact, any and all proceedings at law, in equity or otherwise which
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the Attorney-in-Fact may deem proper in order to (a) collect, assert or enforce any claims, rights or titles of any kind in and to the Interests, (b) defend and
compromise any and all actions, suits or proceedings in respect of any of the Interests, and (c) do any and all such acts and things in furtherance of this Agreement as the Attorney-in-Fact shall deem advisable. Each Conveying Party hereby declares
that the appointment hereby made and the powers hereby granted are coupled with an interest and are and shall be irrevocable and perpetual and shall not be terminated by any act of any Conveying Party or its successors or assigns or by operation of
law.
4.1 Survival of Representations and Warranties. The representations and warranties of the Parties in this Agreement and in or under any
documents, instruments and agreements delivered pursuant to this Agreement, will survive the completion of the transactions contemplated hereby regardless of any independent investigations that OceanPal may make or cause to be made, or knowledge it
may have, prior to the date of this Agreement and will continue in full force and effect for a period of one year from the date of this Agreement. At the end of such period, such representations and warranties will terminate, and no claim may be
brought by OceanPal against Xxxxx thereafter in respect of such representations and warranties, except for claims that have been asserted by OceanPal prior to the date of this Agreement.
4.2 Costs. OceanPal shall pay any and all sales, use and similar taxes arising out of the contributions, conveyances and deliveries to
be made hereunder, and shall pay all documentary, filing, recording, transfer, deed, and conveyance taxes and fees required in connection therewith.
4.3 Headings; References; Interpretation. All Article and Section headings in this Agreement are for convenience only and shall not be
deemed to control or affect the meaning or construction of any of the provisions hereof. The words "hereof," "herein" and "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. All references herein to Articles and Sections shall, unless the context requires a different construction, be deemed to be references to the Articles and Sections of this Agreement, respectively. All personal
pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. The use herein of the word "including" following any general
statement, term or matter shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as "without
limitation," "but not limited to," or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement,
term or matter.
4.4 Successors and Assigns. The Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors
and assigns.
4.5 No Third Party Rights. The provisions of this Agreement are intended to bind the Parties as to each other and are not intended to
and do not create rights in any other person or confer upon any other person any benefits, rights or remedies and no person is or is intended to be a third party beneficiary of any of the provisions of this Agreement.
4.6 Counterparts. This Agreement may be executed in any number of counterparts, all of which together shall constitute one agreement
binding on the parties hereto.
4.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without
giving effect to any choice of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. Each of the parties hereto submits
to the exclusive jurisdiction of the United States District Court for the Southern District of New York (or, if jurisdiction in that court is not available, then any state court located within the Borough of Manhattan, City of New York) for any and
all legal actions arising out of or in connection with this Agreement.
4.8 Severability. If any of the provisions of this Agreement are held by any court of competent jurisdiction to contravene, or to be
invalid under, the laws of any governmental body having jurisdiction over the subject matter hereof, such contravention or invalidity shall not invalidate the entire Agreement. Instead, this
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Agreement shall be construed as if it did not contain the particular provision or provisions held to be invalid, and an equitable adjustment shall be made and
necessary provision added so as to give effect, as nearly as possible, to the intention of the Parties as expressed in this Agreement at the time of execution of this Agreement.
4.9 Deed; Xxxx of Sale; Assignment. To the extent required and permitted by applicable Law, this Agreement shall also constitute a
"deed," "xxxx of sale" or "assignment" of the Interests.
4.10 Amendment or Modification. This Agreement may be amended or modified from time to time only by the written agreement of all the
Parties hereto.
4.11 Integration. This Agreement and the instruments referenced herein supersede all previous understandings or agreements among the
Parties, whether oral or written, with respect to its subject matter hereof. This Agreement and such instruments contain the entire understanding of the Parties with respect to the subject matter hereof and thereof. No understanding, representation,
promise or agreement, whether oral or written, is intended to be or shall be included in or form part of this Agreement unless it is contained in a written amendment hereto executed by the Parties hereto after the date of this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Contribution and Conveyance Agreement has been duly executed by the parties set forth below.
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XXXXX SHIPPING INC.
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By:
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/s/ Xxxxxxx Xxxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxxx
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Title
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Director, Chief Financial Officer, Chief Strategy Officer, Treasurer and Secretary
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By:
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/s/ Xxxxxxxxxxx Xxxxxxxxxx
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Name:
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Xxxxxxxxxxx Xxxxxxxxxx
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Title
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Director and Chief Executive Officer
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