INVESTMENT AGREEMENT
This
Investment Agreement (this "Agreement")
is
dated as of October 12, 2007, among Oceanaut,
Inc.,
a
Xxxxxxxx Islands corporation (the "Company"),
and
the purchasers identified on the signature pages hereto (each, an "Investor"
and
collectively, the "Investors").
WHEREAS,
pursuant to the terms of the Master Agreement, dated as of October 12, 2007
(the
“Master
Agreement”),
by
and among the Company and the entities listed on Schedule I thereto (the
“Sellers”),
the
Sellers have agreed to sell, and the Company or its subsidiary nominees has
agreed to purchase, each of the Seller’s right, title and interest in and to the
nine vessels listed on Schedule 1 thereto (collectively, the “Vessel
Sale and Purchase”)
in
accordance with the terms and conditions of the Master Agreement and the
Memoranda of Agreement applicable to each such vessel, each entered into as
of
the date hereof, for the aggregate purchase price of $700,000,000;
and
WHEREAS,
pursuant to the Master Agreement and subject to the terms and conditions set
forth in this Agreement and pursuant to Section 4(2) of the Securities Act
(as
defined below) and Rule 506 promulgated thereunder, the Company desires to
issue
and sell to the Investors and the Investors desire to purchase from the Company
an aggregate of 10,312,500 shares of the Company’s Common Stock (the
“Shares”)
at a
price per share of $8.00, for an aggregate investment amount of $82,500,000
(the
“Investment”);
and
WHEREAS,
upon the cessation of any applicable lock-up period, the Company shall file
a
shelf registration covering the resale by the Investors of the Shares and all
other shares of the Company’s common stock then owned by the Investors, all in
accordance with the terms and conditions of the Registration Rights Agreement
in
the form of Exhibit
A
hereto;
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and the Investors agree as
follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement, for all purposes
of
this Agreement, the following terms shall have the meanings indicated in this
Section 1.1:
"Action"
means
any action, suit, inquiry, notice of violation, proceeding (including any
partial proceeding such as a deposition) or investigation pending or threatened
in writing against or affecting the Company or any of its properties before
or
by any court, arbitrator, governmental or administrative agency, regulatory
authority (federal, state, county, local or foreign), stock market, stock
exchange or trading facility.
"Affiliate"
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144 and, in addition, as to each
Investor, such other Investor.
"Business
Day"
means
any day except Saturday, Sunday and any day which shall be a federal legal
holiday or a day on which banking institutions in the State of New York, London,
England or Athens, Greece are authorized or required by law or other
governmental action to close.
"Closing"
means
the closing of the purchase and sale of the Shares pursuant to Section
2.1.
"Closing
Date"
means
the date of the Closing, which date shall be the same day as the Initial Closing
Date (as defined in the Master Agreement) occurs, following the satisfaction
of
each of the conditions applicable to the Closing as set forth in Section 2.2
hereof.
"Commission"
means
the Securities and Exchange Commission.
"Common
Stock"
means
the common stock of the Company, $0.0001 par value per share, and any securities
into which such common stock may hereafter be reclassified.
"Common
Stock Equivalents"
means
any securities of the Company which entitle the holder thereof to acquire Common
Stock at any time, including without limitation, any debt, preferred stock,
rights, options, warrants or other instrument that is at any time convertible
into or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.
"Company
Counsel"
means
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
"Effective
Date"
means
the date that the Registration Statement is first declared effective by the
Commission.
"Exchange
Act"
means
the Securities Exchange Act of 1934, as amended.
"Investment
Amount"
means,
with respect to each Investor, the investment amount indicated below such
Investor's name on the signature page of this Agreement.
"Lien"
means
any lien, charge, encumbrance, security interest, right of first refusal or
other restrictions of any kind.
“Master
Agreement”
has the
meaning set forth in the recitals.
"Per
Share Purchase Price"
equals
$8.00.
"Person"
means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
"Proceeding"
means an
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced
or threatened.
“Proxy
Statement”
means
the definitive proxy statement to be filed by the Company with the SEC with
respect to the transactions contemplated by the Master Agreement.
"Registration
Rights Agreement"
means
the Registration Rights Agreement, dated as of the date of this Agreement,
among
the Company and the Investors, in the form of Exhibit
A
hereto.
"Registration
Statement"
means a
registration statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale by the Investors of the
Shares.
"Rule
144"
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“SEC
Reports”
shall
have the meaning ascribed to such term in Section 3.1(g).
“Securities”
means
the Shares.
"Securities
Act"
means
the Securities Act of 1933, as amended.
"Shares"
means
the shares of Common Stock issued or issuable to the Investors pursuant to
this
Agreement.
"Trading
Day"
means
(i) a day on which the Common Stock is traded on a Trading Market, or (ii)
if
the Common Stock is not listed on a Trading Market, a day on which the Common
Stock is traded in the over-the-counter market is quoted in the over-the-counter
market as reported by the National Quotation Bureau Incorporated (or any similar
organization or agency succeeding to its functions of reporting prices);
provided, that in the event that the Common Stock is not listed or quoted as
set
forth in (i) or (ii) hereof, then Trading Day shall mean a Business
Day.
"Trading
Market"
means
whichever of the New York Stock Exchange, the American Stock Exchange, the
NASDAQ Global Market or the NASDAQ Capital Market on which the Common Stock
is
listed or quoted for trading on the date in question.
"Transaction
Documents"
means
this Agreement, the Registration Rights Agreement, and any other documents
or
agreements executed in connection with the transactions contemplated
hereunder.
“Vessel
Sale and Purchase”
has
the
meaning set forth in the recitals.
“Vessel
Sale and Purchase Transaction”
means
the sale and purchase of nine vessels in accordance with the terms and
conditions of the Master Agreement and the Memoranda of Agreement.
ARTICLE
II.
PURCHASE
AND SALE
2.1 Closing.
(a) Subject
to the terms and conditions set forth in this Agreement, on the Closing Date,
the Company shall issue and sell to each Investor, and each Investor shall,
severally and not jointly, purchase from the Company, the Shares representing
such Investor’s Investment Amount. The Closing shall occur at the offices of
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 000 Xxxxx Xxxxxx, Xxx
Xxxx,
XX 00000 or at such other location or time as the parties shall mutually
agree.
(b) On
the
Closing Date, each Investor shall deliver its Investment Amount, in United
States dollars and in immediately available funds simultaneously with the
Initial Closing of the Vessel Sale and Purchase Transaction. In no event shall
the Investors receive any Shares if the Initial Closing of the Vessel Sale
and
Purchase Transaction does not occur.
2.2 Closing
Conditions.
a)
At the
Closing, the Company shall deliver or cause to be delivered to each Investor
the
following:
(i) a
certificate evidencing a number of Shares registered in the name of such
Investor or a book-entry transfer of the Shares to such Investor equal to such
Investor’s Investment Amount divided by the Per Share Purchase
Price;
(ii) the
legal
opinion of Company Counsel, in a form reasonably acceptable to the Investors,
upon advice of their counsel; and
(iii) the
Registration Rights Agreement, duly executed by the Company.
(b) At
the
Closing, each Investor shall deliver or cause to be delivered to the Company
the
following:
(i) the
Registration Rights Agreement, duly executed by such Investor.
(c) The
obligations of each party at the Closing to consummate the transactions
contemplated at such Closing shall be subject to the fulfillment, or waiver
by
the parties, of each of the following conditions:
(i) from
the
date that is five (5) Business Days prior to the Closing Date, trading in the
Common Stock shall not have been suspended by the Commission (except for any
suspension of trading of limited duration agreed to by the Company, which
suspension shall be terminated prior to the Closing), and, during such time,
trading in securities generally as reported by Bloomberg Financial Markets
shall
not have been suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by such service, or on
any
Trading Market, nor shall a banking moratorium have been declared either by
the
United States or New York State authorities;
(ii) the
approval by the Company’s shareholders of the issuance of the Shares shall have
been obtained;
(iii) on
or
prior to the Closing Date, the Vessel Sale and Purchase Transaction shall have
been approved by the Company’s shareholders; and
(iv) the
satisfaction or waiver of each of the applicable conditions set forth in Article
VIII of the Master Agreement.
(d) The
respective obligations of the Investors at the Closing to consummate the
transactions contemplated at such closing shall be subject to the fulfillment,
or waiver by the Investors, of the conditions that all representations and
warranties of the Company contained herein shall remain true and correct in
all
material respects as of the Closing Date, as if made at and as of the Closing
Date, and the Company shall have performed all its covenants and agreements
to
be performed on or prior to the Closing Date.
(e) The
obligations of the Company at the Closing to consummate the transactions
contemplated at such closing shall be subject to the fulfillment, or waiver
by
the Company, of the conditions that all representations and warranties of the
Investors contained herein shall remain true and correct in all material
respects as of the Closing Date, as if made at and as of the Closing Date,
and
the Investors shall have performed all of their covenants and agreements to
be
performed on or prior to the Closing Date.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company.
The
Company hereby makes the following representations and warranties to each
Investor on the date hereof and as of the Closing Date:
(a) Organization
and Qualification.
The
Company is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
or
organization (as applicable), with the requisite power and authority to own
and
use its properties and assets and to carry on its business as currently
conducted. The Company is not in violation of any of the provisions of its
certificate or articles of incorporation, bylaws or other organizational or
charter documents. The Company is duly qualified to conduct business and is
in
good standing as a foreign corporation or other entity in each jurisdiction
in
which the nature of the business conducted or property owned by it makes such
qualification.
(b) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority, and has taken all
requisite corporate action, other than as set forth in Section 2.2(c) with
respect to the need for shareholders approval of the issuance of the Shares
in
compliance with the rules of the American Stock Exchange, to enter into and
to
consummate the transactions contemplated by each of the Transaction Documents
and otherwise to carry out its obligations thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been duly
authorized by all necessary action on the part of the Company and no further
action is required by the Company in connection therewith. Each Transaction
Document has been (or upon delivery will have been) duly executed by the Company
and, when delivered in accordance with the terms hereof, will constitute the
valid and binding obligation of the Company enforceable against the Company
in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other
equitable remedies, and (iii) as limited by public policy.
(c) No
Conflicts.
Other
than the need for shareholders approval of the issuance of the Shares pursuant
to the rules of the American Stock Exchange, the execution, delivery and
performance of the Transaction Documents by the Company and the consummation
by
the Company of the transactions contemplated thereby do not and will not (i)
conflict with or violate any provision of the Company's certificate or articles
of incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse
of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company debt or otherwise) or other understanding
to
which the Company is a party or by which any property or asset of the Company
is
bound or affected, or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including federal and
state securities laws and regulations), or by which any property or asset of
the
Company is bound or affected.
(d) Filings,
Consents and Approvals.
Other
than the requirement to obtain shareholders approval of the issuance of the
Shares pursuant to the rules of the American Stock Exchange, the Company is
not
required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal,
state, local or other governmental authority or other Person in connection
with
the execution, delivery and performance by the Company of the Transaction
Documents other than (i) the filing with the Commission of the Registration
Statement in accordance with the requirements of the Registration Rights
Agreement, (ii) the filing of a Form D with the Commission and such filings
required by state securities laws, which the Company will promptly, and in
any
event prior to the Effectiveness Date under the Registration Statement, make,
(iii) the application(s) to each Trading Market for the listing of the shares
of
Common Stock to be sold hereunder for trading thereon in the time and manner
required thereby, (iv) the filings required in accordance with Section 4.4,
and
(v) such other filings as may be required following the Closing Date under
the
Securities Act and the Exchange Act.
(e) Issuance
of the Securities.
The
Shares have been duly authorized and, when issued and paid for in accordance
with the Transaction Documents, will be duly and validly issued, fully paid
and
nonassessable, free and clear of all Liens. The Company has reserved from its
duly authorized capital stock all of the Shares issuable pursuant to this
Agreement.
(f) Capitalization.
The
capitalization of the Company conforms as to legal matters to the description
thereof contained in the Company’s most recent periodic report filed with the
Commission and in the Proxy Statement. No securities of the Company are entitled
to preemptive or similar rights, and no Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate
in
the transactions contemplated by the Transaction Documents. Except as a result
of the purchase and sale of the Shares and except as described in the SEC
Reports, there are no outstanding options, warrants, scrip rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or exchangeable for,
or
giving any Person any right to subscribe for or acquire, any shares of Common
Stock, or contracts, commitments, understandings or arrangements by which the
Company is or may become bound to issue additional shares of Common Stock,
or
securities or rights convertible, exercisable or exchangeable into shares of
Common Stock. The issue and sale of the Shares will not obligate the Company
to
issue shares of Common Stock or other securities to any Person (other than
the
Investors) and will not result in a right of any holder of Company securities
to
adjust the exercise, conversion, exchange or reset price under such
securities.
(g) SEC
Reports; Financial Statements.
The
Company has filed all reports required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the twelve months preceding the date hereof (or such shorter period as
the
Company was required by law to file such reports) (the foregoing materials
being
collectively referred to herein as the "SEC
Reports"
and,
together with the Schedules to this Agreement (if any), the "Disclosure
Materials")
on a
timely basis or has timely filed a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such extension.
As
of their respective dates, the SEC Reports complied in all material respects
with the requirements of the Securities Act and the Exchange Act and the rules
and regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the Company included
in the SEC Reports comply in all material respects with the rules and
regulations of the Commission with respect thereto as in effect at the time
of
filing. Such financial statements have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent basis
during the periods involved ("GAAP"),
except
as may be otherwise specified in such financial statements or the notes thereto
and except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial
position of the Company and its consolidated subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods
then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
(h) Material
Changes.
Since
the date of the latest audited financial statements included within the SEC
Reports, except as specifically disclosed in the SEC Reports, (i) there has
been
no event, occurrence or development that has had or that could reasonably be
expected to result in a Material Adverse Effect, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent
with
past practice and (B) liabilities not required to be reflected in the Company's
financial statements pursuant to GAAP or required to be disclosed in filings
made with the Commission, (iii) the Company has not altered its method of
accounting or the identity of its auditors, (iv) the Company has not declared
or
made any dividend or distribution of cash or other property to its shareholders
or purchased, redeemed or made any agreements to purchase or redeem any shares
of its capital stock, and (v) the Company has not issued any equity securities
to any officer, director or Affiliate, except pursuant to existing Company
stock
option plans. The Company does not have pending before the Commission any
request for confidential treatment of information.
(i) Litigation.
There
is no Action which (i) adversely affects or challenges the legality, validity
or
enforceability of any of the Transaction Documents or the Shares or (ii) except
as set forth in the SEC Reports, could, if there were an unfavorable decision,
individually or in the aggregate, have or reasonably be expected to result
in a
Material Adverse Effect. Neither the Company, nor any director or officer
thereof, is or has been the subject of any Action involving a claim of violation
of or liability under federal or state securities laws or a claim of breach
of
fiduciary duty. There has not been, and to the knowledge of the Company, there
is not pending or contemplated, any investigation by the Commission involving
the Company or any current or former director or officer of the Company. The
Commission has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Company under the
Exchange Act or the Securities Act.
(j) Compliance.
The
Company (i) is not in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both,
would result in a default by the Company under), nor has the Company received
notice of a claim that it is in default under or that it is in violation of,
any
indenture, loan or credit agreement or any other agreement or instrument to
which it is a party or by which it or any of its properties is bound (whether
or
not such default or violation has been waived), (ii) is in violation of any
order of any court, arbitrator or governmental body, or (iii) is or has been
in
violation of any statute, rule or regulation of any governmental authority,
including without limitation all foreign, federal, state and local laws
applicable to its business.
(k) Private
Placement.
Assuming the accuracy of the Investors’ representations and warranties set forth
in Section 3.2, no registration under the Securities Act is required for the
offer and sale of the Shares by the Company to the Investors as contemplated
hereby. Upon satisfaction of the condition set forth in Section 2.2(c) hereof
with respect to shareholders approval of the issuance of the Shares, the
issuance and sale of the Shares hereunder will not contravene the rules and
regulations of the Trading Market.
(l) Listing
and Maintenance Requirements.
The
Company has not received any notice from any Trading Market to the effect that
the Company is not in compliance with the listing or maintenance requirements
thereof. The Company is, and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with the listing and
maintenance requirements for continued listing of the Common Stock on the
applicable Trading Market, including the Eligibility Rules thereunder. Upon
satisfaction of the condition set forth in Section 2.2(c) hereof with respect
to
shareholders approval of the issuance of the Shares, the issuance and sale
of
the Shares under the Transaction Documents does not contravene the rules and
regulations of the Trading Market on which the Common Stock is currently listed
or quoted.
(m) Registration
Rights.
Other
than each of the Investors, and as disclosed in the SEC Reports, no Person
has
any right to cause the Company to effect the registration under the Securities
Act of any securities of the Company.
3.2 Representations
and Warranties of the Investors.
Each
Investor hereby, for itself and for no other Investor, represents and warrants
as of the date hereof and as of the Closing Date to the Company as
follows:
(a) Organization;
Authority.
Such
Investor is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with the requisite
corporate or partnership power and authority to enter into and to consummate
the
transactions contemplated by the applicable Transaction Documents and otherwise
to carry out its obligations thereunder. The execution, delivery and performance
by such Investor of the transactions contemplated by this Agreement has been
duly authorized by all necessary corporate or, if such Investor is not a
corporation, such partnership, limited liability company or other applicable
like action, on the part of such Investor. Each of this Agreement and the
Registration Rights Agreement has been duly executed by such Investor, and
when
delivered by such Investor in accordance with terms hereof, will constitute
the
valid and legally binding obligation of such Investor, enforceable against
it in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, or similar laws relating to or affecting the
enforcement of creditors’ rights generally and (ii) as limited by equitable
principles generally.
(b) Investment
Intent.
Such
Investor understands that the Shares are “restricted securities” and have not
been registered under the Securities Act or any applicable state securities
law
and is acquiring the Shares as principal for its own account for investment
purposes only and not with a present view to or for distributing or reselling
such Shares or any part thereof, has no present intention of distributing any
of
such Shares and has no arrangement or understanding with any other person or
persons regarding the distribution of such Shares (this representation and
warranty not limiting such Investor’s right to sell the Shares pursuant to the
Registration Statement or otherwise in compliance with applicable federal and
state securities laws). Such Investor has not engaged, during the one month
prior to the date of this Agreement, in any short sales with respect to the
Common Stock. The Investor further represents that, between the time it became
aware of the transactions contemplated by this Agreement and the public
announcement of this Agreement or the termination hereof, it has not engaged
and
will not engage in any trades, whether purchases, sales, short sales or
otherwise, with respect to the Common Stock.
(c) Investor
Status/Residence.
At the
time such Investor was offered the Shares, it was, and at the date hereof it
is
(a) an “accredited investor” as defined in Rule 501(a) under the Securities Act,
and/or (b) not a U.S. Person as defined in Regulation S under the Securities
Act. Such Investor is not a registered broker-dealer under Section 15 of the
Exchange Act.
(d) Experience
of Such Investor.
Such
Investor, either alone or together with its representatives, has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in
the
Shares, and has so evaluated the merits and risks of such investment. Such
Investor is able to bear the economic risk of an investment in the Shares and
is
able to afford a complete loss of such investment.
(e) General
Solicitation.
Such
Investor is not purchasing the Shares as a result of any advertisement, article,
notice or other communication regarding the Shares published in any newspaper,
magazine or similar media or broadcast over television or radio or presented
at
any seminar or any other general solicitation or general
advertisement.
(f) Access
to Information.
Such
Investor acknowledges that it has reviewed the Disclosure Materials and has
been
afforded (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning
the
terms and conditions of the offering of the Shares and the merits and risks
of
investing in the Shares; (ii) access to information about the Company and their
respective financial condition, results of operations, business, properties,
management and prospects sufficient to enable it to evaluate its investment;
and
(iii) the opportunity to obtain such additional information that the Company
possesses or can acquire without unreasonable effort or expense that is
necessary to make an informed investment decision with respect to the
investment. Neither such inquiries nor any other investigation conducted by
or
on behalf of such Investor or its representatives or counsel shall modify,
amend
or affect such Investor's right to rely on the truth, accuracy and completeness
of the Disclosure Materials and the Company's representations and warranties
contained in the Transaction Documents.
(g) Independent
Investment Decision.
Such
Investor has independently evaluated the merits of its decision to purchase
Shares pursuant to this Agreement, such decision has been independently made
by
such Investor and such Investor confirms that it has only relied on the advice
of its own business and/or legal counsel and not on the advice of any other
Investor’s business and/or legal counsel in making such decision.
(h) No
Tax
or Legal Advice.
Such
Investor understands that nothing in this Agreement, any other Transaction
Document or any other materials presented to such Investor in connection with
the purchase and sale of the Shares constitutes legal, tax or investment advice.
Such Investor has consulted such legal, tax and investment advisors as it,
in
its sole discretion, has deemed necessary or appropriate in connection with
its
purchase of Shares.
(i) Short
Sales.
Each
Investor represents that from the date that it was approached to participate
in
the transaction contemplated by this Agreement through the Closing Date, neither
it nor its affiliates have engaged in any trades with respect to, or made any
net Short Sales of, or granted any option for the purchase of or entered into
any hedging or similar transaction with the same economic effect as a net Short
Sale of the Common Stock. For the purposes of this Agreement, “Short Sale” by an
Investor means a sale of Common Stock that is marked as a short sale and that
is
executed at a time when such Investor has no equivalent offsetting long position
in the Common Stock, exclusive of the Shares. For purposes of determining
whether an Investor has an equivalent offsetting long position in the Common
Stock, all Common Stock that would be issuable upon exercise in full of all
options then held by such Investor (assuming that such options were then fully
exercisable, notwithstanding any provisions to the contrary, and giving effect
to any exercise price adjustments scheduled to take effect in the future) shall
be deemed to be held long by such Investor.
The
Company acknowledges and agrees that each Investor does not make or has not
made
any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this Section 3.2.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer;
Lock-Up.
(a) Securities
may only be disposed of in compliance with state and federal securities laws.
In
connection with any transfer of the Shares other than pursuant to an effective
registration statement, to the Company, to an Affiliate of an Investor or in
connection with a pledge as contemplated in Section 4.1(b), the Company may
require the transferor thereof to provide to the Company an opinion of counsel,
the form and substance of which opinion shall be reasonably satisfactory to
the
Company, to the effect that such transfer does not require registration of
such
transferred Shares under the Securities Act. As a condition of transfer, any
such transferee shall agree in writing to be bound by the terms of this
Agreement and shall have the rights of an Investor under this Agreement and
the
Registration Rights Agreement.
(b) Each
Investor hereby agrees that, without the prior written consent of the Company,
it will not, directly or indirectly, offer, sell, agree to offer or sell,
solicit offers to purchase, grant any call option or purchase any put option
with respect to, pledge, borrow or otherwise dispose of any of the Shares and
(b) will not establish or increase any “put equivalent position” or liquidate or
decrease any “call equivalent position” with respect to any of the Shares (in
each case within the meaning of Section 16 of the Exchange Act, or otherwise
enter into any swap, derivative or other transaction or arrangement that
transfers to another, in whole or in part, any economic consequence of ownership
of any of the Shares, whether or not such transaction is to be settled by
delivery of Shares, other securities, cash only, for a period of one hundred
and
eighty (180) days commencing on the date of issuance of the Shares; provided,
however, that, notwithstanding the foregoing, the Investors shall be permitted
to transfer all or any portion of the Shares among themselves or to any
Affiliate; provided, further, that prior to any such transfer, the transferor,
at its expense, shall provide to the Company an opinion of counsel reasonably
acceptable to the Company to the effect that that such transfer would not
require registration under the Securities Act. Each Investor hereby further
agrees to cause each holder of Shares to enter into a lock-up agreement giving
effect to the provisions of this Section 4.1(b) immediately upon such holder’s
acquisition of the Shares.
(c) Certificates
evidencing the Shares will contain the following legend, until such time as
they
are not required under Section 4.1(d):
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, UPON REQUEST,
DELIVERY OF AN OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
NOTWITHSTANDING THE FOREGOING, THESE SECURITIES MAY BE PLEDGED TO A FINANCIAL
INSTITUTION LENDER AS COLLATERAL FOR A LOAN.
The
Company acknowledges and agrees that an Investor may from time to time pledge,
and/or grant a security interest in some or all of the Shares as a bona fide
pledge to a financial institution lender as collateral for a loan, including
pursuant to a bona fide margin agreement in connection with a bona fide margin
account and, if required under the terms of such agreement or account, such
Investor may transfer pledged or secured Shares to the pledgees or secured
parties. Such a pledge or transfer would not be subject to approval or consent
of the Company and no legal opinion of legal counsel to the pledgee, secured
party or pledgor shall be required in connection with the pledge, but such
legal
opinion may be required in connection with a subsequent transfer following
default by the Investor transferee of the pledge. No notice shall be required
of
such pledge. At the appropriate Investor’s expense, the Company will execute and
deliver such reasonable documentation as a pledgee or secured party of Shares
may reasonably request in connection with a pledge or transfer of the Shares
including the preparation and filing of any required prospectus supplement
under
Rule 424(b)(3) of the Securities Act or other applicable provision of the
Securities Act to appropriately amend the list of Selling Stockholders
thereunder.
(d) Certificates
evidencing the Shares shall not contain any legend (including the legend set
forth in Section 4.1(c)): (i) following a sale of such Shares pursuant to an
effective registration statement (including the Registration Statement) so
long
as the purchaser of the Shares is not an Affiliate of the Company, or (ii)
following a sale of such Shares pursuant to Rule 144, or (iii) while such Shares
are eligible for sale under Rule 144(k), or (iv) if such legend is not required
under applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the Staff of the Commission)
provided in the case of (iv), however, that the beneficial owner of the Shares
is not an Affiliate of the Company. Following such time as restrictive legends
are not required to be placed on certificates representing Shares, the Company
will, not later than five Trading Days following the delivery by an Investor
to
the Company or the Company's transfer agent of a certificate representing such
Shares containing a restrictive legend, deliver or cause to be delivered to
such
Investor a certificate representing such Shares that is free from all
restrictive and other legends. The Company may not make any notation on its
records or give instructions to any transfer agent of the Company that enlarge
the restrictions on transfer set forth in this Section.
4.2 Furnishing
of Information.
As long
as any Investor owns the Shares, the Company covenants to timely file (or obtain
extensions in respect thereof and file within the applicable grace period)
all
reports required to be filed by the Company after the date hereof pursuant
to
the Exchange Act. As long as any Investor owns Shares, if the Company is not
required to file reports pursuant to such laws, it will prepare and furnish
to
the Investors and make publicly available in accordance with Rule 144(c) such
information as is required for the Investors to sell such Shares under Rule
144.
The Company further covenants that it will take such further action as any
holder of Shares may reasonably request, all to the extent required from time
to
time to enable such Person to sell such Shares without registration under the
Securities Act within the limitation of the exemptions provided by Rule
144.
4.3 Integration.
The
Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Shares in a manner
that would require the registration under the Securities Act of the sale of
the
Shares to the Investors, or that would be integrated with the offer or sale
of
the Shares for purposes of the rules and regulations of any Trading
Market.
4.4 Securities
Laws Disclosure; Publicity.
No
later than 5:30 p.m. (New York time) on the second Business Day following the
date of this Agreement, the Company shall issue a press release reasonably
acceptable to the Investors disclosing the transactions contemplated by the
Master Agreement and hereby and file a Current Report on Form 8-K disclosing
the
material terms of the transactions contemplated thereby and hereby. In addition,
the Company will make such other filings and notices in the manner and time
required by the Commission and the Trading Market on which the Common Stock
is
listed.
4.5 Non-Public
Information.
The
Company covenants and agrees that neither it nor any other Person acting on
its
behalf will provide any Investor or its agents or counsel with any information
that the Company believes constitutes material non-public information, unless
prior thereto such Investor shall have executed a written agreement regarding
the confidentiality and use of such information. The Company understands and
confirms that each Investor shall be relying on the foregoing representations
in
effecting transactions in securities of the Company.
4.6 Use
of Proceeds.
The
Company shall use the net proceeds from the sale of the Shares hereunder as
described in the Company’s Proxy Statement.
4.7 Reservation
of Stock.
As of
the date hereof, the Company has reserved and the Company shall continue to
reserve and keep available at all times, free of preemptive rights, a sufficient
number of shares of Common Stock for the purpose of enabling the Company to
issue Shares pursuant to this Agreement.
4.8 Listing
of Common Stock.
The
Company hereby agrees to use commercially reasonably efforts to maintain the
listing of the Common Stock on the Trading Market, and as soon as reasonably
practicable following the Closing (but not later than the earlier of the
Effective Date applicable to such Shares and the three (3) month anniversary
of
the Closing Date) to list the applicable Shares on the Trading Market. The
Company further agrees, if the Company applies to have the Common Stock traded
on any other Trading Market, it will include in such application the Common
Stock sold hereunder.
ARTICLE
V.
MISCELLANEOUS
5.1 Fees
and Expenses.
Each
Investor and the Company shall pay the fees and expenses of its own advisers,
counsel, accountants and other experts, if any, and all other expenses incurred
by such party incident to the negotiation, preparation, execution, delivery
and
performance of the Transaction Documents. The Company shall pay all stamp and
other taxes and duties levied in connection with the issuance of the Shares
under this Agreement.
5.2 Entire
Agreement.
The
Transaction Documents, together with the Exhibits and Schedules thereto, and
the
Master Agreement contain the entire understanding of the parties with respect
to
the subject matter hereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge
have been merged into such documents, exhibits and schedules.
5.3 Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified in this Section
prior to 6:30 p.m. (New York City time) on a Trading Day, (b) the next Trading
Day after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number specified in this Section on a day that
is
not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading
Day, (c) the Trading Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (d) upon actual receipt
by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
| If to the Company: |
00xx
Xx
Xxxxxxxx Xxxx Xxxxxx-Xxxxx & Finikos Xxxxxx
000
00 Xxx Xxxxxxx
Xxxxxx,
Xxxxxx
Facsimile:
x00-000-000-0000
Attention:
Chief Executive Officer
|
| With a copy to: |
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxxx X. Xxxx, Esq.
Facsimile:
(000) 000-0000
|
| If to an Investor: |
To
the address set forth under such Investor's name
on
the signature pages hereof;
|
| With a copy to: |
Xxxxxx
& Xxxxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
|
or
such
other address as may be designated in writing hereafter, in the same manner,
by
such Person.
5.4 Amendments;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed by the Company and a majority-in-interest of the Investors.
No
waiver of any default with respect to any provision, condition or requirement
of
this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such
right.
5.5 Construction.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party. This Agreement shall be
construed as if drafted jointly by the parties, and no presumption or burden
of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement or any of the Transaction
Documents.
5.6 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Investors. Any Investor may assign any or all of its rights
under
this Agreement to any Person to whom such Investor assigns or transfers any
Shares, provided such transferee agrees in writing to be bound, with respect
to
the transferred Shares, by the provisions hereof that apply to the
"Investors."
5.7 No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set
forth
in Section 4.8 (as to each Investor Party).
5.8 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all Proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether
brought against a party hereto or its respective Affiliates, employees or
agents) may be commenced non-exclusively in the state and federal courts sitting
in the City of New York, Borough of Manhattan (the “New
York Courts”).
Each
party hereto hereby irrevocably submits to the non-exclusive jurisdiction of
the
New York Courts for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of the any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in any
Proceeding, any claim that it is not personally subject to the jurisdiction
of
any such New York Court, or that such Proceeding has been commenced in an
improper or inconvenient forum. Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Agreement and agrees that such service
shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives,
to
the fullest extent permitted by applicable law, any and all right to trial
by
jury in any legal proceeding arising out of or relating to this Agreement or
the
transactions contemplated hereby. If either party shall commence a Proceeding
to
enforce any provisions of a Transaction Document, then the prevailing party
in
such Proceeding shall be reimbursed by the other party for its attorney’s fees
and other costs and expenses incurred with the investigation, preparation and
prosecution of such Proceeding.
5.9 Survival.
The
representations, warranties, agreements and covenants contained herein shall
survive the Closing and the delivery of the Shares.
5.10 Execution.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original
thereof.
5.11 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and
the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
5.12 Replacement
of Securities.
If any
certificate or instrument evidencing any Shares is mutilated, lost, stolen
or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction and
customary and reasonable indemnity, if requested. The applicants for a new
certificate or instrument under such circumstances shall also pay any reasonable
third-party costs associated with the issuance of such replacement Shares.
If a
replacement certificate or instrument evidencing any Shares is requested due
to
a mutilation thereof, the Company may require delivery of such mutilated
certificate or instrument as a condition precedent to any issuance of a
replacement.
5.13 Remedies.
In
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, each of the Investors and the Company will
be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agrees to waive in any action for specific performance
of
any such obligation the defense that a remedy at law would be
adequate.
(Remainder
of page intentionally left blank. Signature pages to follow.)
IN
WITNESS WHEREOF,
the
parties hereto have caused this Investment Agreement to be duly executed by
their respective authorized signatories as of the date first indicated
above.
|
By:
/s/
Xxxxxxxxxxx Xxxxxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxxxxx
Title:
President and Chief Executive
Officer
|
(Remainder
of page intentionally left blank.
Signature
pages for the Investors to follow.)
Signature
page to
Investment
Agreement dated as of October 12, 2007
IN
WITNESS WHEREOF, the parties have executed this Investment Agreement as of
the
date first written above.
|
UNITED
CAPITAL INVESTMENT CORP.
By:
/s/ Xxxx X. Xxxxxxxx
Name:
Xxxx X. Xxxxxxxx
Title:
Attorney-in-fact
Number
of Shares: 2,578,125
Investment
Amount: $20,625,000
Address
for Notice: 00 Xxxxxxxxxx Xxxxxx, 00000 Xxxxxxxx,
Xxxxxx,
Xxxxxx.
ATRION SHIPHOLDING S.A. By:
/s/ Xxxx X. Xxxxxxxx
Name:
Xxxx X. Xxxxxxxx
Title:
Attorney-in-fact
Number
of Shares: 2,578,125
Investment
Amount: $20,625,000
Address
for Notice: 00 Xxxxxxxxxx Xxxxxx, 00000 Xxxxxxxx,
Xxxxxx,
Xxxxxx.
PLAZA SHIPHOLDING CORP. By:
/s/ Xxxx X. Xxxxxxxx
Name:
Xxxx X. Xxxxxxxx
Title:
Attorney-in-fact
Number
of Shares: 2,578,125
Investment
Amount: $20,625,000
Address
for Notice: 00 Xxxxxxxxxx Xxxxxx, 00000 Xxxxxxxx,
Xxxxxx,
Xxxxxx.
|
|
COMET
SHIPHOLDING INC.
By:
/s/ Xxxx X. Xxxxxxxx
Name:
Xxxx X. Xxxxxxxx
Title:
Attorney-in-fact
Number
of Shares: 2,578,125
Investment
Amount: $20,625,000
Address
for Notice: 00 Xxxxxxxxxx Xxxxxx, 00000 Xxxxxxxx,
Xxxxxx,
Xxxxxx.
|
Signature
page to
Investment
Agreement dated as of October 12, 2007
EXHIBIT
A
FORM
OF
REGISTRATION
RIGHTS AGREEMENT
