EXHIBIT A
AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of May 16, 2004, by and
between Stelshi Holding Ltd., a Liberian corporation ("Stelshi"), and OMI
Corporation, a company organized under the laws of the Republic of the Xxxxxxxx
Islands ("OMI").
WHEREAS, Stelshi, as of the date hereof, is the record and beneficial
owner of 1,288,584 shares (the "Shares") of common stock, par value $0.02 per
share (the "Common Stock") of Xxxxxxx Shipping Ltd., a Liberian corporation (the
"Company"); and
WHEREAS, OMI desires Stelshi to agree, and Stelshi agrees, to a
standstill with respect to the Shares and certain other matters as herein
described, all on the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF STELSHI
Stelshi represents and warrants to OMI as follows:
SECTION 1.1 LEGAL POWER. All corporate action on the part of
Stelshi, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement has been taken. Stelshi
has the requisite corporate power to enter into this Agreement, to carry out and
perform its obligations under the terms of this Agreement.
SECTION 1.2 DUE EXECUTION. This Agreement has been duly authorized,
executed and delivered by Stelshi and, upon due execution and delivery by OMI,
this Agreement will be a valid and binding agreement of Stelshi.
SECTION 1.3 NO CONFLICT. The execution, delivery and performance of
this Agreement by Stelshi will not result in any violation of, conflict with, or
constitute a default under, with or without the passage of time or the giving of
notice: (a) any obligation or duty of Stelshi to any other person, (b) any
provision of any judgment, decree or order to which Stelshi is a party or by
which it or any of its assets is bound; (c) any contract, obligation or
commitment to which Stelshi is a party or by which it or any of its assets is
bound; (d) any provision of its constituent documents; or (e) any applicable
law, including, without limitation, any statute, rule, order, decree, treaty or
governmental regulation. The execution, delivery and performance of this
Agreement by Stelshi will not require any consent, approval, authorization or
permit of, registration, declaration or filing (except for filings under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) with, or
notification to, any governmental entity (except for relevant antitrust or
competition authorities).
SECTION 1.4 TITLE. Stelshi is the sole record, legal and beneficial
owner of the Shares, and there are no outstanding options, calls, puts,
subscriptions, preemptive rights, rights of first refusal or other agreements or
commitments, obligating Stelshi to sell or transfer the Shares to any person or
granting an option or right to any person to purchase or acquire from Stelshi
the Shares. The Shares are free and clear of any claim, lien, pledge, option,
right of first refusal, buy-sell agreement, defect in title, charge, security
interest, conditional sales agreement, title retention agreement, restriction on
transfer, voting agreements, voting trusts, proxies, preemptive rights (whether
statutory or contractual), shareholder or similar agreements, or other
restrictions or encumbrances of any nature or kind (except state and federal
securities laws restrictions pertaining to the transfer of the Shares), whether
voluntarily incurred or arising by operation of law, including any agreement to
give any of the foregoing in the future.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF OMI
OMI represents and warrants to Stelshi as follows:
SECTION 2.1 LEGAL POWER. All corporate action on the part of OMI,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement has been taken. OMI has the requisite
corporate power to enter into this Agreement, to carry out and perform its
obligations under the terms of this Agreement.
SECTION 2.2 DUE EXECUTION. This Agreement has been duly authorized,
executed and delivered by OMI and, upon due execution and delivery by Stelshi,
this Agreement will be a valid and binding agreement of OMI.
SECTION 2.3 NO CONFLICT. The execution, delivery and performance of
this Agreement by OMI will not result in any violation of, conflict with, or
constitute a default under, with or without the passage of time or the giving of
notice: (a) any obligation or duty of OMI to any other person, (b) any provision
of any judgment, decree or order to which OMI is a party or by which it or any
of its assets is bound; (c) any contract, obligation or commitment to which OMI
is a party or by which it or any of its assets is bound; (d) any provision of
its constituent documents; or (e) any applicable law, including, without
limitation, any statute, rule, order, decree, treaty or governmental regulation.
The execution, delivery and performance of this Agreement by OMI will not
require any consent, approval, authorization or permit of, registration,
declaration or filing (except for filings under the U.S. federal and state
securities laws) with, or notification to, any governmental entity (except for
relevant antitrust or competition authorities).
ARTICLE III
STANDSTILL AND VOTING AGREEMENT
SECTION 3.1 STANDSTILL. Prior to the Termination Date, as defined
in Section 5.1 below and except pursuant to the terms of this Agreement, Stelshi
shall not (a) sell, pledge or otherwise transfer, directly or indirectly, any of
the Shares nor grant any options or rights to the Shares, to any third party nor
shall Stelshi, directly or indirectly, solicit or entertain offers from
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any third party to enter into any such transaction, provided that Stelshi may,
at any time, transfer any Shares to any other entity which, as of the date of
such transfer, has entered into an agreement with OMI on terms that are
identical in all material respects with the terms of this Agreement, (b) grant
any proxies or enter into any voting agreement or other arrangement with respect
to any of the Shares, (c) deposit any Shares into a voting trust, or (d) (i)
directly or indirectly solicit, initiate, or knowingly encourage the submission
of any offer or proposal for any acquisition of any shares of Common Stock or
any merger or other business combination or any similar transaction involving
the Company, and (ii) directly or indirectly participate in any discussions or
negotiations regarding, or furnish to any person (other than to any regulatory
or judicial authority as may be required by law or regulation or judicial
proceeding or to any person pursuant to court order) any information with
respect to, or knowingly take any other action to facilitate any inquiries or
the making of any offer or proposal that constitutes or would reasonably be
expected to lead to any offer, proposal or transaction that would compete with,
impede, or interfere with any OMI Transaction (as defined in Section 4.1 below)
and shall not permit any investment banker, attorney, or other adviser or
representative of Stelshi or any affiliate of Stelshi to do any of the
foregoing.
SECTION 3.2 VOTING AGREEMENT. Stelshi agrees, to the extent permitted
by law, prior to the Termination Date, (i) to attend all meetings of the
shareholders of the Company, (ii) to retain all voting rights with respect to
the Shares (except for transfer of Shares pursuant to Section 3.1(a) hereof) and
(iii) to the extent permitted by law, at any meeting of the shareholders of the
Company, however called, or in connection with any action by written consent by
the shareholders of the Company, to vote all of the Shares:
(a) If the OMI Transaction is a merger or other business combination
requiring a shareholder vote, in favor of the transactions contemplated by such
OMI Transaction and the agreements related thereto; and
(b) Against any action or agreement that would impede, interfere with
or discourage the transactions contemplated by the OMI Transaction (or attempt
to do any of the foregoing), including, but not limited to: (i) any
extraordinary corporate transaction, such as a merger, rights offering,
reorganization, recapitalization or liquidation involving the Company or any of
its subsidiaries, (ii) a sale or transfer of a material amount of assets of the
Company or any of its subsidiaries or the issuance of any securities of the
Company or any subsidiary, (iii) any change in the executive officers or Board
of Directors of the Company or (iv) any change in the present corporate
structure or business of the Company.
SECTION 3.3 TENDER OF SHARES. If the OMI Transaction is a tender
and/or exchange offer recommended by the Board of Directors of the Company,
Stelshi agrees to tender validly (and not to withdraw) the Shares, pursuant to
and in accordance with the terms of the Offer (as defined in Section 4.1 below)
and Rule 14d-2 under the Exchange Act, not later than the fifth business day
after commencement of the OMI Transaction. Stelshi shall cause the Shares to
remain validly tendered and not withdrawn unless and until the OMI Transaction
is consummated, terminated or has expired without OMI purchasing all shares of
Common Stock validly tendered in the Offer.
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SECTION 3.4 TERM. The initial term of the provisions of this
Article III shall be the 60 (sixty) day period commencing on the date hereof
(the "Initial Term"). If, prior to the expiration of the Initial Term, the Board
of Directors of the Company shall have approved a proposed OMI Transaction, the
provisions of this Article III shall be extended for a period of 90 (ninety)
days from the date of expiration of the Initial Term (the "Subsequent Period"),
provided that if the parties thereto are unable to consummate the OMI
Transaction during such Subsequent Period as a result of pending regulatory
filings and clearances and OMI continues to actively work towards the
consummation of the OMI Transaction, the term of such Subsequent Period shall be
extended without any additional fee becoming payable until the earliest to occur
of (i) OMI terminating or canceling the OMI Transaction or (ii) the obtaining or
satisfying of the requisite regulatory filings, approvals or clearances and, if
as a result of the pending regulatory matters, either OMI or the Company had
been unable to hold a meeting of its shareholder, the completion of such
meeting. OMI shall also have the option, in the event of a competing offer, to
extend the provisions of this Article III for up to an additional period of 60
(sixty) days beyond the expiration of the Subsequent Period (any such extension,
the "Optional Extension Period"). In the event that the Subsequent Period has
been automatically extended pursuant to the above provisions and there is a
competing offer, the provisions applicable to the Optional Extension Period
shall apply and the Optional Extension Fee shall be due as provided below. The
foregoing notwithstanding, in no event shall the Subsequent Period and/or the
Optional Extension Period in the aggregate extend beyond the date that is 7
(seven) months from the date of this Agreement.
SECTION 3.5 STANDSTILL FEES. The standstill fee for the Initial
Term is $0.50 per Share, payable by OMI by wire transfer of immediately
available funds to an account specified in writing by Stelshi upon the execution
of this Agreement (the "Initial Term Fee"). The standstill fee for the
Subsequent Period, including all extensions thereof as described in Section 3.4
above, is $1.00 per Share (excluding any Shares transferred by Stelshi to
another entity in accordance with the provisions of Section 3.1(a) above but
including any Shares acquired by Stelshi from another entity in accordance with
the provisions of Section 3.1(a) above, in such case as the term "Shares" is
defined in the agreement between that other entity and OMI), payable by OMI by
wire transfer of immediately available funds to an account specified in writing
by Stelshi promptly following the execution of a definitive agreement between
the Company and OMI for the consummation of the OMI Transaction (the "Subsequent
Period Fee"). The standstill fee for the Optional Extension Period is $0.25 per
Share for each month of the Optional Extension Period (excluding any Shares
transferred by Stelshi to another entity in accordance with the provisions of
Section 3.1(a) above but including any Shares acquired by Stelshi from another
entity in accordance with the provisions of Section 3.1(a) above, in such case
as the term "Shares" is defined in the agreement between that other entity and
OMI), payable by OMI by wire transfer of immediately available funds to an
account specified in writing by Stelshi promptly following notice from OMI of
election of such extension (the "Optional Extension Period Fee" and together
with the Initial Term Fee and the Subsequent Period Fee, the "Fees"). The Fees
shall be non-refundable, except that (i) the Fees shall be credited and applied
to the consideration payable upon the consummation of the OMI Transaction to
Stelshi pursuant to the terms and conditions of the OMI Transaction, and (ii) in
the event a competing offer is made during the 5 (five) month period commencing
on the date hereof and no definitive agreement between the Company and OMI has
been executed for the consummation of the OMI Transaction, upon consummation of
a transaction with the competing
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offeror, OMI shall be entitled to a payment equal to the higher of (A) an amount
equal to the aggregate Initial Term Fee received by Stelshi and (B) an amount
equal to 25% of the excess, per share of Common Stock, of the dollar equivalent
of the purchase price per share at which the transaction is consummated over
$33.90 multiplied by the number of shares of Common Stock sold, tendered, voted
or exchanged by Stelshi, as the case may be, in the transaction. Such payment
shall be made by wire transfer of immediately available funds to an account
specified in writing by OMI, no later than 5 (five) days after consummation of
the transaction. If such purchase price is payable in stock of an entity, the
dollar equivalent shall be the average closing price of the entity's stock on
its principal trading market (except that if the entity has ADRs trading on the
New York Stock Exchange or Nasdaq National Market, the relevant trading price
shall be that of the ADRs) for the 20 (twenty) most recent trading days
immediately prior to the consummation of such transaction.
SECTION 3.6 SUBSEQUENTLY ACQUIRED SHARES. Notwithstanding the use
of the term "Shares" in Sections 3.1, 3.2 and 3.3 above, the provisions in this
Article III shall apply to the Shares, together with (a) any additional shares
of capital stock of the Company acquired by Stelshi after the date hereof and
prior to the Termination Date, or that Stelshi is entitled to receive from the
Company by reason of being a record holder during such period, and (b) any
securities into which any such Shares or additional shares shall have been
converted or changed, whether by amendment to the constituent documents of the
Company, merger, consolidation or otherwise, provided that such additional
shares shall not be included in the calculation of the amounts of the Fees,
except as otherwise set forth in Section 3.5.
ARTICLE IV
COVENANTS
SECTION 4.1 AGREEMENT TO COMMENCE AN OMI TRANSACTION. OMI agrees
that, within thirty (30) days of the date of this Agreement, OMI or a subsidiary
of OMI, shall, subject to reasonable satisfaction of due diligence, offer in
writing to the Company's Board of Directors (the "Offer") to acquire all shares
of Common Stock either in a merger with the Company or in a tender and/or
exchange offer for Common Stock, provided that any such Offer shall be subject
to customary terms and conditions for such a transaction, including satisfactory
completion of due diligence (each, an "OMI Transaction"). The Offer shall be at
an offer price (as such offer price may be amended, the "Offer Price"), payable
in OMI common stock, that will provide on a fully diluted basis to the former
holders of Common Stock (including any holders of options or warrants or other
rights to acquire Common Stock (on an as exercised basis)), an aggregate
shareholder interest of not less than 40.5% in OMI as of the date of the
consummation of the OMI Transaction. The Offer shall further provide that each
holder of Common Stock shall be entitled to elect to receive up to 25% of the
Offer Price in cash; provided that the maximum aggregate amount of cash to be
paid shall not exceed $175,000,000 (one hundred seventy-five million dollars).
In the event that the aggregate amount of cash elected by the holders of Common
Stock shall exceed this maximum amount, the cash portion to be received by each
holder shall be reduced on a pro rata basis.
SECTION 4.2 REGISTRATION COVENANT. OMI agrees that, upon the
written advice of outside counsel reasonably satisfactory to OMI and Stelshi
that Stelshi may be deemed to be
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an "affiliate" of OMI for purposes of the federal securities laws following
consummation of an OMI Transaction, Stelshi shall be entitled to registration
rights with respect to all of the shares of OMI received by Stelshi in the OMI
Transaction. Such registration rights shall be for a resale shelf registration
upon Form S-3 or any successor form thereto, upon customary terms and conditions
and such other provisions as the parties shall mutually agree, provided that the
plan of distribution shall not include an underwritten offering. The expenses
incurred in connection with the registration shall be borne by OMI (excluding
the fees of any legal counsel selected by or representing Stelshi, brokers fees
and commissions and other similar fees and commissions customarily borne by
Stelshi).
SECTION 4.3 NON-COMPETE AGREEMENT. Following consummation of an OMI
Transaction, Xxxxxxx Xxxx-Xxxxxxx, the sole shareholder of Stelshi, and OMI or
the surviving entity of the OMI Transaction shall enter into a non-competition
agreement with OMI or the surviving entity of the OMI Transaction, as
appropriate, for a 5 (five) year period from the date of consummation of the OMI
Transaction. In consideration for the non-compete agreement, Xx. Xxxx-Xxxxxxx
shall be entitled to receive $2,500,000 (two million five hundred thousand
dollars) payable by OMI or the surviving entity, as applicable, by wire transfer
of immediately available funds to an account specified in writing by Xx.
Xxxx-Xxxxxxx upon execution of the non-compete agreement. The effect of such
agreement will be to extend for an additional 3 (three) year period the
covenants in that certain Exclusivity and Non-Compete Agreement dated as of
February 26, 2001 between Xx. Xxxx-Xxxxxxx and the Company, the provisions of
which, as a result of the consummation of an OMI Transaction, are anticipated to
expire 2 (two) years from the date of consummation of the OMI Transaction.
SECTION 4.4 REIMBURSEMENT OF CERTAIN EXPENSES. OMI agrees to
reimburse Stelshi, its officers, directors, employees and agents for 50% (fifty
percent) of their reasonable out-of-pocket expenses as they are incurred in
connection with investigating, preparing or defending any pending or threatened
claim or action or proceeding resulting from the entering into of this Agreement
up to an aggregate maximum amount of $54,000.
ARTICLE V
TERMINATION
SECTION 5.1 TERMINATION. This Agreement shall terminate upon the
earliest to occur of (a) the end of the term of the Optional Extension Period,
if any, or if none, the end of the term of the Subsequent Period as such may be
extended pursuant to Section 3.4, or, solely in the event that the conditions
for the commencement of the Subsequent Period are not satisfied, the end of the
term of the Initial Term, (b) the termination of this Agreement by Stelshi upon
the occurrence of a Termination Event (as defined in Section 5.1), (c) the
agreement of the parties to terminate this Agreement, (d) the termination by OMI
of a proposed OMI Transaction, (e) the consummation of any OMI Transaction, (f)
the shareholders of the Company failing to approve an OMI Transaction by the
requisite vote at any shareholders' meeting called, or pursuant to a consent
circulated, for consideration and approval of such OMI Transaction, (g) in the
event of a competing offer, the Board of Directors of the Company changing its
recommendation to the shareholders and the shareholders of the Company either
(i) failing to approve an OMI
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Transaction by the requisite vote at any shareholders' meeting called, or
pursuant to consent circulated, for consideration and approval of such OMI
Transaction, (ii) the shareholders of the Company approving the transaction
contemplated by the competing offer by the requisite vote at any shareholders'
meeting called, or pursuant to consent circulated, for consideration and
approval of such OMI Transaction, or (iii) if no vote of the shareholders of the
Company is required, the shareholders of the Company tendering or exchanging in
any tender or exchange offer the number of shares of Common Stock required to
close the tender or exchange offer relating to the competing offer, or failing
to tender or exchange in any OMI tender or exchange offer the number of shares
of Common Stock required to close such tender or exchange offer. The date on
which the earliest of one of the above listed events occurs is herein referred
to as the "Termination Date."
SECTION 5.2 TERMINATION EVENT.
(a) Any of the following events shall constitute a Termination Event
for purposes of this Agreement during the Initial Term:
(i) Statement by OMI in any government or administrative
proceeding or filing or any judicial proceeding, or in any
written notice to Stelshi, that it has effectively abandoned
its efforts to consummate an OMI Transaction; or
(ii) A material adverse change in the business, financial
condition, results of operations or property of OMI and its
subsidiaries taken as a whole, provided, however, that any
such change resulting from any change (A) in laws, rules or
regulations applicable to companies in business generally or
to the shipping industry specifically, (B) in economic or
business conditions generally or in the shipping industry
specifically, or (C) in the securities markets in general,
shall not be considered when determining if a material adverse
change has occurred.
(b) The termination of the definitive merger or acquisition agreement
by either OMI or the Company (or the termination of a tender/exchange offer) as
a result of a material adverse change or event as defined in such agreement
shall constitute a Termination Event for purposes of this Agreement during the
Subsequent Period.
SECTION 5.3 EFFECT OF TERMINATION. In the event of termination of
this Agreement pursuant to Section 5.1, except with respect to the payments that
may be required pursuant to Section 3.5, this Agreement shall become void and
have no effect, without liability on the part of any party. Nothing contained in
this Article V shall relieve any party from liability for any breach of this
Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the substantive laws of the State of New York and
the United States of America, without regard to choice of law rules thereof.
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SECTION 6.2 PUBLIC STATEMENTS. Neither Stelshi nor OMI nor any of
their representatives will issue any press release or make any public
announcement relating to the subject matter of this Agreement without the prior
written approval of the other party; provided, however, that a party may,
subject to a right of the other party to review and comment, (a) make any
announcement it believes in good faith after consultation with legal counsel is
required by law or the rules of any stock exchange and (b) make any filings
required under applicable securities laws or regulations, including but not
limited to Form 4 reports and Schedule 13D filings; and provided, further, that
the parties shall mutually agree upon the form, substance and timing of issuance
of a mutually acceptable press release with respect to the subject matter of
this Agreement.
SECTION 6.3 GREEK OPERATION AND NAME. OMI currently anticipates
that the resulting business following the consummation of any OMI Transaction
would have a meaningful operational presence in Greece and that the name of the
resulting entity would be OMI-Stelmar Corporation.
SECTION 6.4 SUCCESSORS AND ASSIGNS. Neither this Agreement nor any
of the rights or obligations under this Agreement may be assigned by any party
without the prior written consent of the other parties; provided, however, that
OMI may assign or delegate all or part of its rights and obligations under this
Agreement to one or more direct or indirect subsidiaries or affiliates;
provided, further, that any such assignment or delegation shall not relieve OMI
of its obligations under this Agreement. This Agreement will be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns, and no other person will have any right, benefit or
obligation under this Agreement as a third party beneficiary or otherwise.
SECTION 6.5 ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth
all of the representations, warranties, covenants, agreements and understandings
between Stelshi and OMI. There are no representations, warranties, covenants,
agreements or understandings, either oral or written, between Stelshi and OMI
other than as set forth in this Agreement. This Agreement may be amended only by
written instrument duly executed by each party.
SECTION 6.6 NOTICES. All notices and other communications required
or permitted hereunder shall be in writing and shall be deemed effectively given
and received (a) upon personal delivery, (b) on the fifth day following mailing
by registered or certified mail return receipt requested, postage prepaid,
addressed to Stelshi or OMI at their respective addresses listed below (or at
such other address for a party as shall be specified by like notice; provided,
that notices of a change of address shall be effective only upon receipt
thereof), (c) upon confirmed transmission by facsimile (with telephonic notice),
or (d) upon confirmed delivery by overnight commercial courier service:
If to Stelshi, to: Areos 0X Xxxxxx
Xxxxxx, Xxxxxx
Attention: Xxxxxx Karageoriou
Email: xxxxxxx@xxxxxxxxx.xx.xx
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With a copy to:
Xxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Email: xxxxxxx@xxxxxxxxxxxx.xxx
If to OMI, to: OMI Corporation
Xxx Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. London
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Email: xxxxxxx@xxxxxxx.xxx
With a copy to: Coudert Brothers LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, III
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Email: xxxxxx@Xxxxxxx.xxx
SECTION 6.7 EXPENSES. Except as otherwise expressly provided
herein, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs
or expenses.
SECTION 6.8 INTERPRETATION. When a reference is made in this
Agreement to a Section such reference shall be to a Section of this Agreement
unless otherwise indicated. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. The masculine, feminine or
neuter gender and the singular or plural shall each be construed to include the
other whenever the context indicates.
SECTION 6.9 FURTHER ASSURANCES. Each party will execute and deliver
all such further documents and instruments and take all such further action as
may be necessary in order to consummate the transactions contemplated hereby.
SECTION 6.10 SPECIFIC PERFORMANCE. The parties recognize and agree
that if for any reason any of the provisions of this Agreement are not performed
in accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party
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agrees that, in addition to other remedies, the other party shall be entitled to
an injunction restraining any violation or threatened violation of the
provisions of this Agreement. In the event that any action should be brought in
equity to enforce the provisions of the Agreement, neither party will allege,
and each party hereby waives the defense, that there is adequate remedy at law.
SECTION 6.11 SURVIVAL. The representations, warranties and
agreements of Stelshi and OMI in this Agreement or in any instrument delivered
by them pursuant to this Agreement shall survive for 1 (one) year after the
Termination Date and any investigation at any time made by or on behalf of any
party hereto, except that with respect to the agreement of OMI set forth in
Section 4.4, the period shall be 2(two) years after the Termination Date.
SECTION 6.12 ADJUSTMENTS IN EVENT OF CHANGE IN COMMON STOCK. In the
event of any change in the Company's Common Stock by reasons of stock dividends,
stock splits, reclassifications, cash dividends, repurchases, splitups, mergers,
recapitalizations, combinations, exchange of shares or the like, the type and
number of shares or securities subject to the Standstill Fee and the Offer Price
shall be adjusted appropriately.
SECTION 6.13 COUNTERPARTS; FACSIMILE. This Agreement may be executed
in one or more counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument. This Agreement
may be executed and delivered by facsimile transmission, and a facsimile of this
Agreement or of a signature of a party will be effective as an original.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement is executed and delivered by the
parties as of the date first above written.
STELSHI HOLDING LTD.
By: /S/ XXXXXXX XXXX-XXXXXXX
-----------------------------------
Name: Xxxxxxx Xxxx-Xxxxxxx
Title: Attorney-In-Fact
OMI CORPORATION
By: /S/ XXXXX X. XXXXXXXXX, XX.
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Chairman of the Board and
Chief Executive Officer
Acknowledge and agreed solely for purposes of Section 4.3 hereof.
/S/ XXXXXXX XXXX-XXXXXXX
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Xxxxxxx Xxxx-Xxxxxxx
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