Exhibit 10.7
[Form of Registration Rights Agreement]
REGISTRATION RIGHTS AGREEMENT, dated as of June 27, 2005,
among CAPITAL MARITIME & TRADING CORP., a Xxxxxxxx Islands
company (the "Company"), BOEM MARITIME INVESTMENT CORP., a
Xxxxxxxx Islands company ("Boem"), ADMIRALTY CORPORATION, a
Xxxxxxxx Islands company ("Admiralty"), and the other
holders of Registrable Securities (as defined below) party
hereto (together with Boem and Admiralty and any member of a
Family Group (as defined below) that delivers an undertaking
to the Company agreeing to be bound by the terms of this
Agreement (as defined below), the "Holders").
WHEREAS, the Company intends to sell shares of its Common Stock, par
value $0.001 per share ("Common Stock"), in a public offering (the "Offering");
WHEREAS, the Holders will own Common Stock; and
WHEREAS, the Holders and the Company desire to make certain
arrangements to provide the Holders with registration rights with respect to the
Registrable Securities (as defined below);
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereby agree as follows:
SECTION 1.01. Definitions. The following terms shall have the following
meanings for purposes of this Agreement:
"Affiliate" of any specified Person means any other Person, directly or
indirectly, through one or more intermediaries, Controlling, Controlled By or
Under Common Control With such specified Person.
"Agreement" means this Registration Rights Agreement, as it may be
amended, supplemented, restated or modified from time to time.
"Company" is defined in the preamble hereto.
"Company Funded Registration" is defined in Section 1.02(a).
"Control" (including the terms "Controlled By" and "Under Common
Control With") is defined in the Restated Articles of Incorporation of the
Company as in
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effect at consummation of the Offering.
"Demand Holders" means each of (i) Boem (on behalf of itself or one or
more members of its Family Group) and (ii) Admiralty (on behalf of itself or one
or more members of its Family Group).
"Demand Request" is defined in Section 1.02(a).
"Disadvantageous Condition" is defined in Section 1.02(a).
"Estate Planning Vehicle" means a trust or partnership (i) that is the
record holder of shares of Common Stock and (ii) the principal beneficiaries or
partners of which include Xx. Xxxxxxxxx Xxxxxxxxx ("EM") or Xxx. Xxxxx Xxxxxxxxx
("IM"), their respective issue, or issue of any thereof, and, with respect to
EM, shall include his spouse and his mother.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended, together with the rules and regulations promulgated thereunder.
"Family Group" means, (a) with respect to Boem, EM, any Estate Planning
Vehicle that is established by EM and any other Person that is Controlled By EM
and (b) with respect to Admiralty, IM, any Estate Planning Vehicle that is
established by IM and any other Person that is Controlled By IM, in each case,
so long as such Person continues to be so Controlled.
"Group" has the meaning assigned to such term in Section 13(d)(3) of
the Exchange Act.
"Holders" is defined in the preamble hereto.
"Inspectors" is defined in Section 1.04(a)(9).
"Minimum Demand Request" means, on the date a Demand Request is
delivered, at the option of the Demand Holder or Holders (in consultation with
the Company), such aggregate number of shares of Common Stock of the Demand
Holder or Holders that (A) have an aggregate minimum market value (based on the
closing price on the NYSE on the date preceding the date of the Demand Request)
of at least $25 million, before calculation of underwriting discounts and
commissions or (B) is at least equal to 10% of the Company's outstanding Common
Stock immediately following the closing of the Offering (subject to adjustment
in connection with any stock split, reverse stock split, reclassification,
recapitalization, split-up, combination, share exchange or similar transaction).
"NASD" means the National Association of Securities Dealers, Inc.
"Offering" is defined in the recitals hereto.
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"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivisions thereof or any Group comprised of two or more of the foregoing.
"Priority Securities" is defined in Section 1.03(a).
"Proceeding" is defined in Section 1.07(k).
"Records" is defined in Section 1.04(a)(9).
"Registrable Securities" means shares of Common Stock (including shares
or any other securities of the Company or any successor entity that are acquired
by way of a stock dividend or stock split or in connection with a
recapitalization, merger, consolidation or other reorganization of the Company
or similar transaction); provided, however, that a security shall cease to be a
Registrable Security if and when (i) a registration statement with respect to
such security becomes effective under the Securities Act and such security is
disposed of pursuant to such effective registration statement, (ii) such
security may be sold without restriction (including volume and manner of sale
restrictions) pursuant to Rule 144 (or any similar provision then in force)
under the Securities Act, (iii) such security is otherwise transferred (other
than to an Affiliate of the Holder), if a new certificate or other evidence of
ownership for such security not bearing a legend restricting further transfer
and not subject to any stop transfer order or other restrictions on transfer is
delivered by the Company and subsequent disposition of such security does not
require registration or qualification of such security under the Securities Act,
and the Company's outside counsel provides the Holder with an unqualified
opinion to such effect, or (iv) such security ceases to be outstanding.
"Registration Expenses" means all reasonable fees and expenses incident
to the Company's performance of or compliance with this Agreement, consisting of
(i) all SEC, stock exchange, NASD and other registration, listing and filing
fees and expenses, (ii) fees and expenses of compliance with securities or blue
sky laws (including fees and disbursements of one counsel for the Holders who
are including Registrable Securities in a registration statement in connection
with blue sky qualification of such Registrable Securities and determination of
the eligibility of such Registrable Securities for investment under applicable
blue sky laws), (iii) rating agency fees, (iv) printing expenses, (v) messenger,
telephone and delivery expenses, (vi) fees, expenses and disbursements of
counsel for the Company, (vii) fees, expenses and disbursements of one counsel
selected by Holders of Registrable Securities to be sold in connection with the
relevant registration, (viii) fees, expenses and disbursements of the Company's
independent certified public accountants, (ix) costs of Securities Act liability
insurance for the Company and its officers and directors (if the Company so
desires such insurance), (x) fees and expenses of all other Persons retained by
the Company in connection with the
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consummation of the transactions contemplated by this Agreement and (xi) all
internal expenses of the Company incurred in connection with the consummation of
the transactions contemplated in this Agreement (including all salaries and
expenses of its officers and employees performing legal or accounting duties,
the expense of any annual audit and the fees and expenses incurred in listing
the Registrable Securities on any securities exchange); provided, however, that
"Registration Expenses" shall not include any fees, expenses or disbursements of
any Holder participating in the relevant registration or those of any
underwriters, selling brokers or similar professionals, including any discounts,
commissions or fees of such underwriters, selling brokers or similar
professionals and including any fees, expenses or disbursements of counsel to
any such Holder (except as provided above) or any such underwriter, selling
broker or professional.
"Requesting Holder or Holders" is defined in Section 1.02(a).
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as
amended, together with the rules and regulations promulgated thereunder.
"Seller" is defined in Section 1.06(a).
"Shelf Registration" means a "shelf" registration statement on an
appropriate form pursuant to Rule 415 under the Securities Act (or any successor
rule that may be adopted by the SEC).
"Underwriter" is defined in Section 1.06(a).
SECTION 1.02. Certain Demand Registration Rights. (a) General. At any
time commencing 180 days following consummation of the Offering, upon the
written request (a "Demand Request") of one or both of the Demand Holders (the
"Requesting Holder or Holders") requesting that the Company effect the
registration under the Securities Act of Registrable Securities of such
Requesting Holder or Holders (or its or their Family Group members, if
applicable) representing at least the Minimum Demand Request (which request
shall specify the number of shares of Registrable Securities to be offered by
such Requesting Holder or Holders (and each of its or their Family Group
members, if applicable), subject to reduction to the extent provided herein, and
the intended method of disposition thereof), the Company shall use its
reasonable best efforts to effect, as expeditiously as possible, the
registration under the Securities Act of the Registrable Securities which the
Company has been so requested to register by the Requesting Holder or Holders,
which may include Registrable Securities held of record by the Family Group
members of such Requesting Holders to the extent such Family Group members and
the number of Registrable Securities requested to be sold thereby are specified
in the applicable Demand Request) all to the extent necessary to permit the
disposition (in accordance with the intended methods thereof as aforesaid) of
the Registrable Securities so to be registered; provided, however, that (A)
notwithstanding any other provision of this Agreement, the Company shall not be
required to file a registration statement relating to a Demand Request under
this Section 1.02 within a
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period of 180 days after the effective date of any other registration statement
of the Company with respect to Common Stock (i) where such registration
statement was filed pursuant to a Demand Request or (ii) in the case where
Demand Holders had piggyback rights pursuant to Section 1.03 of this Agreement,
where such Demand Holders were permitted to register and sell at least 50% of
the Registrable Securities requested to be included therein, (B) with respect to
any registration statement filed, or to be filed, pursuant to this Section 1.02,
if there is (i) material non-public information regarding the Company which the
Company's Board of Directors (the "Board") reasonably determines to be
significantly disadvantageous for the Company to disclose and which the Company
is not otherwise required to disclose at such time, (ii) there is a significant
business opportunity (including the acquisition or disposition of assets (other
than in the ordinary course of business) or any merger, consolidation, share
exchange, tender offer or other similar transaction) available to the Company
which the Board reasonably determines to be significantly disadvantageous for
the Company to disclose or (iii) there is any other event or condition of
similar significance to the Company that the Board reasonably determines to be
significantly disadvantageous for the Company to disclose and which the Company
is not otherwise required to disclose at such time (each, a "Disadvantageous
Condition"), and the Company shall furnish to the Requesting Holder or Holders a
resolution of the Board of Directors stating that the Company is deferring such
registration pursuant to this Section 1.02(a)(B) and setting forth in reasonable
detail the Disadvantageous Condition (giving due regard to any confidentiality
or competitive considerations), its reasons for such judgment and an
approximation of the anticipated delay, then the Company shall be entitled to
cause such registration statement to be withdrawn and the effectiveness of such
registration statement terminated (and, in the case of a Shelf Registration, the
Company shall not be required to file any amendment or supplement thereto
required to maintain the effectiveness of such Shelf Registration), or, in the
event no registration statement shall have been filed, shall be entitled not to
file any such registration statement, until the earlier of (x) 90 days following
the date such resolution was delivered to the Requesting Holder and (y) the date
such Disadvantageous Condition no longer exists (notice of which the Company
shall promptly deliver to the Requesting Holder or Holders) and upon receipt of
any such notice of a Disadvantageous Condition such Requesting Holder or Holders
of Registrable Securities selling securities pursuant to an effective
registration statement shall discontinue use of the prospectus contained in such
registration statement and, if so directed by the Company, each such Holder
shall deliver to the Company all copies, other than permanent file copies then
in such Holder's possession, of the prospectus then covering such Registrable
Securities current at the time of receipt of such notice, and, in the event no
registration statement shall have been filed, all drafts of the prospectus
covering such Registrable Securities, (C) the Company shall only be obligated to
effect a total of three demand registrations in each three year period and (D)
the Company shall not be required to, and shall not, allow a registration
statement relating to a registration request under this Section 1.02 to be
declared effective prior to the date that is 180 days after consummation of the
Offering. Each of the first five registrations under this Section 1.02 shall be
at the Company's own expense as provided in Section 1.02(c) (each such
registration, a "Company Funded Registration"). The Company shall be permitted
to satisfy its obligations under this
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Section 1.02 by amending (to the extent permitted by applicable law) any Shelf
Registration previously filed by the Company under the Securities Act so that
such Shelf Registration (as amended) shall permit the disposition of all of the
Registrable Securities for which a registration request under this Section 1.02
shall have been made. Notwithstanding the foregoing, the Company shall have no
obligation under this Agreement to file any Shelf Registration. The Requesting
Holder or Holders may, at any time prior to the effective date of the
registration statement relating to the relevant registration, revoke such
request, without liability, by providing a written notice to the Company
revoking such request. In the event that the Company shall give any notice of
the withdrawal of, or delay in filing, a registration statement contemplated by
clause (B) above, the Company shall, following the end of the period specified
in Section 1.02(a)(B), file the delayed registration statement with the SEC and
such registration statement shall be maintained effective for such time as may
be necessary so that the period of effectiveness of such new registration
statement, when aggregated with the period during which such initial
registration statement was effective, if any, shall be equal to the 180 days
that a registration statement is required to be kept effective pursuant to
Section 1.04(a)(2). The Company may not withdraw or suspend the effectiveness or
availability of a registration statement pursuant to this Section 1.02(a) for
more than 180 consecutive days. Within 20 days after receiving a notice
contemplated in clause (B) above, the Requesting Holder or Holders may withdraw
its or their Demand Request by giving written notice thereof to the Company. If
withdrawn, such Demand Request shall be deemed not to have been made for
purposes of this Agreement.
(b) Expenses. The Company shall pay all Registration Expenses in
connection with each Company Funded Registration which is requested and becomes
effective, or which is withdrawn prior to effectiveness by the Company, pursuant
to this Section 1.02. The Company shall not be liable for Registration Expenses
in connection with a registration that shall not have become effective due to a
revocation by the Holder or Holders requesting such registration under this
Section 1.02 (other than pursuant to the last sentence of Section 1.02(a)),
unless the Holders collectively agree that such revoked registration counts as
one of the Company Funded Registrations which may be requested by such Holders
pursuant hereto. If such Holders have not agreed to count such revoked
registration as one of the three Company Funded Registrations, the obligation to
pay the Registration Expenses in connection with such further registration or
such revoked registration shall be due and payable by the Holders who
participated in such registration or who initially requested and revoked such
registration, and such expenses shall be borne by them in proportion to the
number of shares of Registrable Securities requested by them to be registered.
The Company's obligation to pay all Registration Expenses in connection with
each Company Funded Registration under this paragraph (b) shall not be reduced
by any such revoked registration unless the Holders so elect as provided above.
(c) Effective Registration Statement. A registration requested pursuant
to this Section 1.02 shall not be deemed to have been effected unless the
registration statement relating thereto (i) has become effective under the
Securities Act and, except in the case of a Shelf Registration, any of the
Registrable Securities of the Requesting
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Holder or Holders (or its or their Family Group members, if applicable) included
in such registration have actually been sold thereunder and (ii) except in the
case of a Shelf Registration, has remained effective for a period of at least
that specified in Section 1.04(a)(2); provided, however, that if any effective
registration statement requested pursuant to this Section 1.02 is discontinued
in connection with a Disadvantageous Condition, such registration statement
shall be at the sole expense of the Company and shall not be included as one of
the Company Funded Registrations which may be requested pursuant to this Section
1.02; provided further, however, that if, after any registration statement
requested pursuant to this Section 1.02 becomes effective, such registration
statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court solely due to the
actions or omissions to act of the Company, such registration statement shall be
at the sole expense of the Company and shall not be included as one of the
Company Funded Registrations which may be requested at the cost of the Company
pursuant to this Section 1.02.
(d) Selection of Underwriters. The Requesting Holder or Holders shall
have the right to select the underwriters for each registration made pursuant to
Section 1.02(a), subject to the approval of the Company, which approval shall
not be unreasonably withheld.
(e) Pro Rata Participation in Demand Registrations. If a requested
registration pursuant to this Section 1.02 involves an underwritten offering and
the managing underwriter or underwriters selected in accordance with Section
1.02(d) shall advise the Company that, in their good faith view (based primarily
upon prevailing market conditions), the number of securities requested to be
included in such registration (including securities which the Company requests
to be included) exceeds the largest number of securities which can be sold
without having a significant negative effect on the price at which such
securities can be sold in such offering, the Company shall include the following
Registrable Securities in the following order:
(i) all Registrable Securities requested to be registered by the
Requesting Holder or Holders pursuant to Section 1.02(a);
(ii) to the extent that the number of Registrable Securities
included in such registration pursuant to Section 1.02(e)(i) is less
than the number of securities which the Company has been advised can be
sold in such offering without having the significant negative effect on
pricing referred to above, all other Registrable Securities requested
to be included in such registration pursuant to Section 1.02(a) that
are not otherwise included in Section 1.02(e)(i) (provided, however,
that if the number of Registrable Securities included in such
registration pursuant to Section 1.02(e)(i), together with all other
Registrable Securities requested to be included in such registration
pursuant to Section 1.02(a), exceeds the number which the Company has
been advised can be sold in such offering without having the
significant negative effect on pricing referred to above, the number of
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such Registrable Securities included in such registration pursuant to
this Section 1.02(e)(ii) shall be that number of securities which the
Company has been advised it can sell in excess of the number of
Registrable Securities being included in such registration pursuant to
Section 1.02(e)(i), allocated pro rata among the other Holders referred
to in Section 1.02(a) on the basis of the shares of Registrable
Securities each such other Holder has requested to be included in such
registration); and
(iii) to the extent that the number of Registrable Securities
included in such registration pursuant to Sections 1.02(e)(i) and
1.02(e)(ii) is, in the aggregate, less than the number of securities
which the Company has been advised can be sold in such offering without
having the significant negative effect on pricing referred to above,
any equity securities proposed to be sold by the Company (provided,
however, that if the number of securities proposed to be sold by the
Company, together with the number of Registrable Securities to be
included in such registration pursuant to Sections 1.02(e)(i) and
1.02(e)(ii), exceeds the number which the Company has been advised can
be sold in such offering without having the negative effect referred to
above, the number of such securities included in such registration
pursuant to this Section 1.02(e)(iii) shall be that number of
securities which the Company has been advised it can sell in excess of
the number of Registrable Securities being included in such
registration pursuant to Sections 1.02(e)(i) and 1.02(e)(ii)).
(f) Additional Registration. If at least 75% of the Registrable
Securities requested to be registered by the Requesting Holder or Holders in one
of the Company Funded Registrations are not included in such registration, then
such Requesting Holder may request that the Company effect an additional
registration under the Securities Act of all or part of such Requesting Holder's
or Holders' Registrable Securities in accordance with the provisions of this
Section 1.02, and the Company shall effect, and pay the Registration Expenses in
connection with, such additional registration (in addition to the Company Funded
Registrations referred to in Section 1.02(a)) requested pursuant to this Section
1.02(f).
(g) No-Cutbacks. Notwithstanding anything to the contrary in this
Agreement, and for the avoidance of doubt, with respect to any Requesting Holder
or Holders, all Registrable Securities of such Requesting Holder or Holders
requested to be included in a registration pursuant to Section 1.02(a) shall be
included in such registration (regardless of whether the underwriters agree that
inclusion of all such securities would have a significant negative effect on the
price at which such securities can be sold in such offering).
SECTION 1.03. Certain Piggyback Registration Rights. (a) General. If
the Company at any time proposes to register any of its equity securities (the
"Priority Securities") under the Securities Act (other than a registration (i)
on Form S-8 or S-4 or
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any successor or similar forms, (ii) relating to equity securities issuable upon
exercise of employee stock or similar options or in connection with any employee
benefit or similar plan of the Company, (iii) in connection with an acquisition
by the Company of another entity or (iv) pursuant to a registration under
Section 1.02), whether or not for sale for its own account (but not for the
account of any Holder or Family Group member), in a manner which would permit
registration of Registrable Securities for sale to the public under the
Securities Act, it shall each such time, subject to the provisions of Section
1.03(b), give written notice to all Holders of record of Registrable Securities
of its intention to do so and of such Holders' rights under this Section 1.03 at
least 20 days prior to the anticipated filing date of the registration statement
relating to such registration. Such notice shall offer all such Holders the
opportunity to include in such registration statement such number of Registrable
Securities as each such Holder may request. Upon the written request of any such
Holder made within 15 days after the receipt of the Company's notice (which
request shall specify the number of Registrable Securities intended to be
disposed of by such Holder, subject to reduction as provided herein, and the
intended method of disposition thereof), the Company shall use its reasonable
best efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
the Holders thereof, to the extent required to permit the disposition (in
accordance with such intended methods thereof) of the Registrable Securities so
to be registered; provided, however, that (A) if such registration involves an
underwritten offering, all Holders of Registrable Securities requesting to be
included in the Company's registration must sell their Registrable Securities to
the underwriters selected by the Company on the same terms and conditions as
apply to the Company or the original selling holders for whose account the
registration has been made; provided, however, that in respect of any offering
under this Agreement (whether under Section 1.02 or this Section 1.03 or
otherwise), unless agreed otherwise by the Holder and the underwriters in the
underwriting agreement, no Holder or any of its Affiliates (other than, for the
avoidance of doubt, the Company) shall be required to directly or indirectly
make any representations or warranties to, or agreements with, the Company or
the underwriters (including agreements with respect to indemnification) other
than representations, warranties or agreements regarding such Holder or its
Affiliates, its ownership of and title to the Registrable Securities and its
intended method of distribution, and any liability of such Holder or its
Affiliates to any underwriter or other Person under such underwriting agreement
shall be limited to liability arising from breach of its representations and
warranties and shall be limited to an amount equal to the total price at which
the securities sold by such Holder or its Affiliates were offered to the public
(net of discounts and commissions paid by such Holder or its Affiliates in
connection with such underwritten offering) and (B) if, at any time after giving
written notice of its intention to register any securities pursuant to this
Section 1.03(a) and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for any
reason not to register such securities, the Company shall give written notice to
all Holders of Registrable Securities and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (without prejudice, however, to rights of Holders under Section
1.02). If a registration pursuant to this Section 1.03(a) involves an
underwritten
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public offering, any Holder of Registrable Securities requesting to be included
in such registration may elect, in writing prior to the effective date of the
registration statement filed in connection with such registration, not to
register such securities in connection with such registration. No registration
effected under this Section 1.03 shall relieve the Company of its obligations to
effect registrations upon request under Section 1.02. The Company shall pay all
Registration Expenses in connection with each registration of Registrable
Securities pursuant to this Section 1.03. Nothing contained in this Section 1.03
shall create any liability on the part of the Company to the Holders if the
Company should for any reason decide not to file a registration statement for
which piggyback registration rights are available or withdraw such registration
statement subsequent to its filing, regardless of any action Holders may have
taken, whether as a result of the issuance by the Company of any notice
hereunder or otherwise.
(b) Priority in Piggyback Registrations. If a registration pursuant to
this Section 1.03 involves an underwritten offering and the managing
underwriters shall advise the Company that, in their good faith view (based
primarily upon prevailing market conditions), the number of securities
(including all Registrable Securities) which the Company, the Holders and any
other Persons intend to include in such registration exceeds the largest number
of securities which can be sold without having a significant negative effect on
the price at which such securities can be sold in such offering, the Company
will include in such registration in the following order: (i) all the Priority
Securities (including any to be sold for the Company's own account), on a pro
rata basis, (ii) to the extent that the number of Priority Securities which the
Company proposes to sell for its own account pursuant to Section 1.03(a) is less
than the number of securities which the Company has been advised can be sold in
such offering without having the negative effect referred to above, all
Registrable Securities requested to be included in such registration by the
Holders pursuant to Section 1.03(a) (provided, however, that if the number of
Registrable Securities requested to be included in such registration by the
Holders pursuant to Section 1.03(a), together with the number of Priority
Securities to be included in such registration pursuant to clause (i) of this
Section 1.03(b), exceeds the number which the Company has been advised can be
sold in such offering without having the negative effect referred to above, the
number of such Registrable Securities requested to be included in such
registration by the Holders pursuant to Section 1.03(a) shall be allocated pro
rata among all such other requesting Holders on the basis of the number of
Registrable Securities each such other Holder has requested to be included in
such registration) and (iii) all other securities requested to be included in
such registration (provided, however, that if the number of all other securities
proposed to be included in such registration, together with the Priority
Securities and the Registrable Securities requested to be included in such
registration, exceeds the number which the Company has been advised can be sold
in such offering without having the negative effect referred to above, the
number of such other securities requested to be included in such registration
shall be allocated pro rata among all such other requesting holders on the basis
of the number of Registrable Securities each such other holder has requested to
be included in such registration).
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SECTION 1.04. Registration Procedures. (a) If and whenever the Company
is required to use its reasonable best efforts to effect or cause the
registration under the Securities Act as provided in this Agreement of any
Registrable Securities, the Company shall, as expeditiously as possible:
(1) use its reasonable best efforts to prepare and file, or cause to be
prepared and filed as soon as practicable but in any event within 90 days
of receipt of a request for registration, a registration statement on any
form for which the Company then qualifies or which counsel for the Company
shall deem appropriate, and which form shall be available for the sale of
the Registrable Securities in accordance with the intended methods of
distribution thereof, and use its reasonable best efforts to cause such
registration statement to become and remain (for the period specified in
paragraph (2) below) effective; provided, however, that at least 10 days
before filing with the SEC a registration statement or prospectus and at
least two days before filing with the SEC any amendments or supplements
thereto, the Company shall (A) furnish to the underwriters, if any, and to
one counsel selected by the Holder or Holders of the Registrable Securities
covered by such registration statement copies of all such documents
proposed to be filed, which documents shall be subject to the review and
comments of the underwriters and such counsel (provided, however, that the
determination to accept any such comments not relating to the underwriters
or such selling stockholders shall be in the Company's sole discretion),
and (B) notify each Holder of Registrable Securities covered by such
registration statement of any stop order issued or threatened by the SEC
and take all reasonable actions required to prevent the entry of such stop
order or to remove it if entered;
(2) prepare and file with the SEC 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 for a
period of not less than 180 days (subject to blackouts upon the good faith
declaration of any Disadvantageous Condition in accordance with Section
1.02(a)) or such shorter period which shall terminate when all Registrable
Securities covered by such registration statement have been sold (but not
before the expiration of the 90-day period referred to in Section 4(3) of
the Securities Act and Rule 174 thereunder, if applicable), and comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof
set forth in such registration statement;
(3) notify each Holder of Registrable Securities covered by such
registration statement when such registration statement or any amendment
thereto has been filed or becomes effective;
(4) notify each Holder of Registrable Securities covered by such
registration statement of any notice from the SEC that there will be a
review of
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such registration statement and promptly provide such Holders with a copy
of any SEC comments received by the Company in connection therewith;
(5) furnish, without charge, to each Holder and each underwriter, if
any, of Registrable Securities covered by such registration statement such
number of copies of such registration statement, each amendment and
supplement thereto (including one conformed copy to each Holder and one
signed copy to each managing underwriter and in each case including all
exhibits thereto), and the prospectus included in such registration
statement (including each preliminary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such Holder
may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Holder;
(6) use its reasonable best efforts to register or qualify the
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as any underwriter
of Registrable Securities covered by such registration statement reasonably
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable each Holder and each underwriter to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such Holder; provided, however, that the Company shall
not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph
(6), (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction;
(7) use its reasonable best efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary by
virtue of the business and operations of the Company to enable the Holder
or Holders thereof to consummate the disposition of such Registrable
Securities;
(8) immediately notify each of the managing underwriters, if any, and
each Holder of Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event which
comes to the Company's attention if as a result of such event the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and the Company shall promptly prepare and file with the SEC
such amendment or supplement to such registration statement or prospectus
and furnish to such Holder a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
13
(9) use its reasonable best efforts to cause all Registrable Securities
covered by such registration statement to be listed on the national
securities exchange or national market interdealer quotation system on
which the Common Stock is then listed, and enter into such customary
agreements including a supplemental listing application and indemnification
agreement in customary form (provided, however, that the applicable listing
requirements are satisfied), and to provide a transfer agent and registrar
for such Registrable Securities covered by such registration statement no
later than the effective date of such registration statement;
(10) in the case of an underwritten offering, enter into such customary
agreements with the underwriters (including an underwriting agreement in
customary form) and take all such other actions as the underwriters
reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities, including customary indemnification;
(11) make available for inspection by any Holder of Registrable
Securities covered by such registration statement, any underwriter
participating in any disposition pursuant to such registration statement,
and any attorney, accountant or other agent retained by any such Holder or
underwriter (collectively, the "Inspectors"), those financial and other
records, organizational documents and properties of the Company and its
controlled entities (collectively, "Records"), and cause the Company's and
its controlled entities' officers, directors and employees to supply that
information and respond to those inquiries reasonably requested by any such
Inspector in connection with such registration statement, in each case
under this paragraph (11) only to the extent reasonably necessary, as
mutually determined by the Company and the underwriters or Holders, to
enable such underwriters or Holders to conduct their due diligence
investigation;
(12) use its reasonable best efforts to furnish to any underwriter
participating in any disposition pursuant to such registration statement a
signed counterpart of a "cold comfort" letter from the Company's
independent public accountants who have audited the Company's financial
statements included or incorporated by reference in such registration
statement (and prospectus included therein), in customary form and covering
such matter of the type customarily covered by "cold comfort" letters
delivered in connection with underwritten public offerings of securities
(including with respect to events subsequent to the date of such financial
statements) as the underwriters reasonably request (and dated the dates
such comfort letters are customarily dated);
(13) use its reasonable best efforts to furnish to each underwriter
participating in any disposition pursuant to such registration statement a
signed counterpart of an opinion and negative assurance letter of counsel
from the Company's outside counsel in customary form and covering such
matters of the
14
type customarily covered in opinions and negative assurance letters of
counsel delivered in connection with underwritten public offerings of
securities;
(14) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings with
the NASD;
(15) make available its officers, employees and personnel and otherwise
provide reasonable assistance to the underwriters in their marketing of
Registrable Securities as the underwriters shall reasonably request,
including participation in "roadshow" presentations or such other selling
efforts as the underwriters shall reasonably request; and
(16) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available or cause to
be made available, as applicable, to the Holders of Registrable Securities
sold under such registration statement, as soon as reasonably practicable,
a consolidated earnings statement covering a period of at least 12 months
(which earnings statement need not be audited), beginning with the first
month after the effective date of the registration statement (as the term
"effective date" is defined in Rule 158(c) under the Securities Act), which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
(b) It shall be a condition precedent to the obligation of the Company
to take any action pursuant to this Agreement in respect of the Registrable
Securities which are to be registered at the request of any Holder thereof that
such Holder shall furnish to the Company such information regarding the
Registrable Securities held by such Holder and the intended method of
disposition thereof as the Company shall reasonably request and as shall be
reasonably required in connection with the action taken by the Company.
(c) Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
1.04(a)(8), such Holder shall discontinue disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 1.04(a)(8), and, if so directed by the
Company, such Holder shall deliver to the Company (at the Company's expense) all
copies (including any and all drafts), other than permanent file copies, then in
such Holder's possession, of the prospectus covering such Registrable
Securities, current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period referred to in Section 1.04(a)(2)
shall be extended by the greater of (i) 180 days and (ii) the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 1.04(a)(8) to and including the date when each Holder of
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 1.04(a)(8).
15
SECTION 1.05. Holdback Agreements. (a) If any registration of
Registrable Securities shall be in connection with an underwritten public
offering, each Holder of Registrable Securities agrees not to effect any public
sale or distribution, including any sale pursuant to Rule 144, or any successor
provision, under the Securities Act, of any Registrable Securities and not to
effect any such public sale or distribution of any other equity security of the
Company or of any security convertible into or exchangeable or exercisable for
any equity security of the Company or publicly announce an intention to do any
of the foregoing (in each case, other than as part of such underwritten public
offering) during the 10 days prior to, and during the 180-day period which
begins on, the effective date of such registration statement (which 180-day
period shall be tolled to the extent of any blackouts upon the good faith
declaration of any Disadvantageous Conditions in accordance with Section
1.02(a)) (except as part of such registration) and agrees further to enter into
a customary lock-up with the underwriters of such offering (not to exceed 180
days from the date of consummation of such offering); provided, however, that
such Holder of Registrable Securities has received written notice of such
registration at least 20 days prior to the anticipated beginning of the 10-day
period referred to above.
(b) If any registration of Registrable Securities shall be in
connection with an underwritten public offering, the Company agrees not to
effect any public sale or distribution of any of its equity securities or of any
security convertible into or exchangeable or exercisable for any equity security
of the Company (other than any such sale or distribution of such securities in
connection with any merger or consolidation by the Company or any subsidiary of
the Company or the acquisition by the Company or a subsidiary of the Company of
the capital stock or substantially all the assets of any other Person or in
connection with an employee stock ownership or other benefit plan) during the 10
days prior to, and during the 180-day period which begins on, the effective date
of such registration statement (which 180-day period shall be tolled to the
extent of any blackouts upon the good faith declaration of any Disadvantageous
Conditions in accordance with Section 1.02(a)) (except as part of such
registration) and agrees further to enter into a customary lock-up with the
underwriters of such offering (not to exceed 180 days from the date of
consummation of such offering).
(c) During the term of this Agreement, each certificate evidencing
Registrable Securities held of record or beneficially owned by a Holder shall
bear the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AND
TRANSFERABLE ONLY UPON COMPLIANCE WITH THE PROVISIONS OF A
REGISTRATION RIGHTS AGREEMENT, DATED AS OF JUNE 27, 2005, AMONG
CAPITAL MARITIME & TRADING CORP. AND THE STOCKHOLDERS PARTY
THERETO. A COPY OF SUCH REGISTRATION RIGHTS AGREEMENT IS ON FILE
AT THE OFFICE OF CAPITAL MARITIME & TRADING CORP. XX 0, XXXXXXXX
XXXXXX, XXXXXXX, XXXXXX, 00000 GREECE."
16
(d) Upon a Person ceasing to have rights and obligations under this
Agreement pursuant to the terms hereof or upon termination of this Agreement,
such Person may surrender to the Company any certificates held of record by such
Person and bearing the legend set forth in Section 1.05(c), and upon surrender
of such certificates, the Company shall reissue such certificates without such
legend.
SECTION 1.06. Indemnification and Contribution. (a) To the fullest
extent permitted by applicable law, the Company shall indemnify and hold
harmless each Person who participates as an underwriter (any such Person being
an "Underwriter"), each Holder of Registrable Securities to be sold in
connection with the relevant registration (each such Holder being a "Seller")
and their respective partners, directors, officers and employees and each
Person, if any, who controls any Seller or Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any registration statement (or any amendment thereto)
relating to such registration, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any prospectus (or any amendment or supplement thereto) relating to
such registration, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and reasonable expenses whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation,
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any other claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all reasonable expense whatsoever, as
incurred (including, subject to Section 1.06(c), fees and disbursements
of counsel) incurred in investigating, preparing or defending against
any litigation, investigation or proceeding by any governmental agency
or body, commenced or threatened, in each case whether or not such
Person
17
is a party, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above; provided, however, that this indemnity
agreement does not apply to any Seller or Underwriter with respect to
any loss, liability, claim, damage, judgment or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission (A) made in reliance upon and in conformity with
written information furnished to the Company by such Seller or
Underwriter expressly for use in a registration statement (or any
amendment thereto) or any related prospectus (or any amendment or
supplement thereto) or (B) if such untrue statement or omission or
alleged untrue statement or omission was corrected in an amended or
supplemented registration statement or prospectus and the Company had
furnished copies thereof to the Underwriter or Seller from which the
Person asserting such loss, liability, claim, damage, judgment or
expense purchased the securities that are the subject thereof on a
timely basis prior to the date of sale by such Underwriter or Seller to
such Person.
(b) Each Seller shall severally indemnify and hold harmless the
Company, each Underwriter and the other Sellers, and each of their respective
partners, directors, officers and employees (including each director and officer
of the Company who signed the relevant registration statement) and each Person,
if any, who controls the Company, any Underwriter or any other Seller within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all losses, liabilities, claims, damages, judgments and expenses
described in the indemnity contained in Section 1.06(a) (provided, however, that
any settlement of the type described therein is effected with the written
consent of such Seller) as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in a registration
statement or any related prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Seller expressly for use in such registration statement (or any
amendment thereto) or such prospectus (or any amendment or supplement thereto);
provided, however, that an indemnifying Seller shall not be required to provide
indemnification in any amount in excess of the amount by which (x) the total
price at which the securities sold by such indemnifying Seller and its
affiliated indemnifying Sellers and distributed to the public were offered to
the public (net of discounts and commissions paid by the indemnifying Seller in
connection with such offering) exceeds (y) the amount of any damages which such
indemnifying Seller has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. The Company shall
be entitled, to the extent customary, to receive indemnification and
contribution from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the same
extent as provided above with respect to information so furnished in writing by
such Persons specifically for inclusion in any prospectus or registration
statement.
18
(c) Each indemnified party or parties shall give reasonably prompt
notice to each indemnifying party or parties of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party or parties shall not relieve it or
them from any liability which it or they may have under this indemnity
agreement, except to the extent that the indemnifying party is materially
prejudiced by such failure to give notice. If the indemnifying party or parties
so elects within a reasonable time after receipt of such notice, the
indemnifying party or parties may assume the defense of such action or
proceeding at such indemnifying party's or parties' expense with counsel chosen
by the indemnifying party or parties and approved by the indemnified party
defendant in such action or proceeding, which approval shall not be unreasonably
withheld; provided, however, that, if such indemnified party or parties
reasonably determine that a conflict of interest exists and that therefore it is
advisable for such indemnified party or parties to be represented by separate
counsel or that, upon advice of counsel, there may be legal defenses available
to it or them which are different from or in addition to those available to the
indemnifying party, then the indemnifying party or parties shall not be entitled
to assume such defense and the indemnified party or parties shall be entitled to
separate counsel (limited in each jurisdiction to one counsel for all
Underwriters and another counsel for all other indemnified parties under this
Agreement) at the indemnifying party's or parties' expense. The indemnified
party or parties shall have the right to engage separate counsel and participate
in the defense of any action, but, except as stated above, the fees and expenses
of such counsel shall be the expense of such indemnified party or parties. If
any indemnifying party or parties are not so entitled to assume the defense of
such action or do not assume such defense, after having received the notice
referred to in the first sentence of this paragraph, the indemnifying party or
parties will pay the reasonable fees and expenses of counsel for the indemnified
party or parties (limited in each jurisdiction to one counsel for all
Underwriters and another counsel for all other indemnified parties under this
Agreement). In such event, however, no indemnifying party or parties will be
liable for any settlement effected without the written consent of such
indemnifying party or parties (which consent shall not be unreasonably withheld
or delayed); provided, however, that if at any time the indemnified party or
parties shall have requested the indemnifying party or parties to reimburse the
indemnified party or parties for fees and expenses of counsel as contemplated by
this paragraph, the indemnifying party or parties shall be liable for any
settlement of any proceeding effected without the written consent of such
indemnifying party or parties if (x) such settlement is entered into more than
15 business days after receipt by such indemnifying party or parties of the
aforesaid request accompanied by supporting documents reasonably satisfactory to
the indemnifying party or parties and (y) such indemnifying party or parties
shall not have reimbursed the indemnified party or parties in accordance with
such request prior to the date of such settlement. No indemnifying party or
parties shall, without the prior written consent of the indemnified party or
parties, effect any settlement of any action in respect of which any indemnified
party or parties is a party, unless such settlement includes an unconditional
release of such indemnified party or parties from all liability on claims that
are the subject matter of such action. If an indemnifying party is entitled to
assume, and assumes, the defense of such action or proceeding in accordance with
this paragraph, such
19
indemnifying party or parties shall not, except as otherwise provided in this
subsection (c), be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action or
proceeding.
(d) (i) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 1.06
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms in respect of any losses, liabilities,
claims, damages, judgments and expenses suffered by an indemnified party
referred to therein, each applicable 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, liabilities, claims, damages,
judgments and expenses in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of the liable Sellers or
Underwriters (including, in each case, that of their respective officers,
directors, employees and agents), as the case may be, on the other in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages, judgments or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
liable Sellers or Underwriters (including, in each case, that of their
respective officers, directors, employees and agents), as the case may be, on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, on the one hand, or by or on behalf of the Sellers or Underwriters, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, liabilities, claims,
damages, judgments and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 1.06(c), any legal or other fees
or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim.
(ii) The Company and each Seller agree that it would not be just
and equitable if contribution pursuant to this Section 1.06 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 sub-paragraph (i) above. Notwithstanding anything in this Section
1.06(d) to the contrary, in the case of distributions to the public, an
indemnifying Seller shall not be required to contribute any amount in
excess of the amount by which (A) the total price at which the
securities sold by such indemnifying Seller and its affiliated
indemnifying Sellers and distributed to the public were offered to the
public (net of discounts and commissions paid by the indemnifying
Seller in connection with such offering) exceeds (B) the amount of any
damages which such indemnifying Seller has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities
20
Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(iii) For purposes of this Section, each Person, if any, who
controls a Seller or an Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the
same rights to contribution as such Seller or Underwriter; and each
director of the Company, each officer of the Company who signed the
relevant registration statement, and each Person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company.
SECTION 1.07. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor the Holders
have, as of the date hereof, entered into, nor shall they, on or after the date
hereof, enter into, any agreement with respect to the Registrable Securities
that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Complete Agreement. This Agreement shall constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
shall supercede all prior agreements and understandings, whether written or
oral, between or among the parties with respect to such subject matter.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, without the prior written consent of the Company and Holders
of a majority-in-interest of the Registrable Securities; provided, however, that
no amendment shall affect any rights or obligations of a Holder without the
consent of such Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address indicated for
such Holder in the Company's stock transfer records;
(ii) if to the Company, at:
Capital Maritime & Trading Corp.
c/o Capital Ship Management Corp.
0, Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Xxxxxx
Attention: Chief Financial Officer
21
Telecopier: x00 000 000 0000
with a copy to:
Gr. J. Timagenis Law Office
00 Xxxxxx Xxxxxx
000 00 Xxxxxxx, Xxxxxx, Xxxxxx
Attention: Xxxx X. Xxxxxx
Telecopier: x00 000 000 0000
All such notices and communications shall be deemed to have been duly
given when received.
The Holders or the Company by notice to the other parties may designate
additional or different addresses for subsequent notices or communications.
(e) Successors and Assigns. This Agreement shall be binding on and
inure to the benefit of and be enforceable by the parties hereto and, with
respect to the Company, its successors and assigns.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) 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
applicable principles of conflicts of laws.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(j) No Third Party Beneficiaries. Except as provided in Section 1.06,
this Agreement is not intended to confer any rights or remedies hereunder upon,
and shall not be enforceable by, any Person other than the parties hereto.
(k) Jurisdiction. Any suit, action or proceeding relating to this
Agreement (collectively, a "Proceeding") may be brought in the courts of the
State of New York and any court of the United States located in the Borough of
Manhattan in New York City and
22
each parties hereto (a) hereby consents to the jurisdiction of such courts, (b)
irrevocably waives any objection which such party may have at any time to the
laying of venue of any Proceeding brought in any such court, waives any claim
that such Proceeding has been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceeding, that such court
does not have jurisdiction over such party; (c) consents to the service of
process at the address set forth for notices in Section 1.07(d) herein;
provided, however, that such manner of service of process shall not preclude the
service of process in any other manner permitted under applicable law; and (d)
waives, to the fullest extent permitted by applicable law, any and all rights to
trial by jury in connection with any Proceeding.
(l) Enforcement. (i) Each party hereto acknowledges that the other
parties would not have an adequate remedy at law for money damages in the event
that any of the covenants or agreements of any of the other parties to this
Agreement were not performed in accordance with its terms, and it is therefore
agreed that each party hereto, in addition to and without limiting any other
remedy or right it may have, will have the right to an injunction or other
equitable relief in any court of competent jurisdiction, enjoining any such
breach and enforcing specifically the terms and provisions hereof, and each
party hereto hereby waives any and all defenses it may have on the ground of
lack of jurisdiction or competence of the court to grant such an injunction or
other equitable relief.
(ii) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
IN WITNESS HEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
CAPITAL MARITIME & TRADING CORP.,
by
---------------------------------------
Name:
Title:
BOEM MARITIME INVESTMENT CORP.,
By
by
-------------------------------------
Name:
Title:
ADMIRALTY CORPORATION,
By
by
-------------------------------------
Name:
Title:
