AMENDMENT NO. 1 TO LOAN AGREEMENT
Exhibit 10.3
AMENDMENT NO. 1 TO LOAN AGREEMENT
This AMENDMENT NO. 1 TO LOAN AGREEMENT (this “Agreement”), is dated as of November 28, 2016 between GLOBUS MARITIME LIMITED, a Xxxxxxxx Islands corporation having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands MH96960, Xxxxxxxx Islands, as borrower (the “Borrower”) and XXXXXXX TRADING LIMITED, a Xxxxxxxx Islands corporation having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands MH96960, Xxxxxxxx Islands, as lender (the “Lender” and together with the Borrower, the “Parties”).
WHEREAS, the Borrower and XXXXXXX TRADING LIMITED, a Cypriot company, entered into an Agreement for a Revolving Credit Facility of up to $4,000,000 dated December 16, 2013, which agreement was subsequently transferred to the Lender (as supplemented, amended or restated from time to time, the “Loan Agreement”).
WHEREAS, the Amendment No. 1 to the Loan Agreement is being made in order to facilitate the issuance of stock and warrants by the Borrower pursuant to that certain “Share and Warrant Purchase Agreement” of even date herewith, which agreement requires the Borrower to issue stock and warrants on fulfillment of various conditions to the counterparty to such Share and Warrant Purchase Agreement (the date of the first issuance of any stock or warrants to such counterparty pursuant to such Share and Warrant Purchase Agreement shall be the “Effective Date”).
WHEREAS, as the date hereof, there is an outstanding aggregate of $18,023,787 of the principal and all accrued interest under the Loan Agreement.
WHEREAS, the parties to this Agreement desire to amend the Loan Agreement as set forth herein to allow for a prepayment on the Effective Date in the amount of $16,885,000 (the “Prepayment”) leaving a balance on the Effective Date equal to the sum of the interest accruing from the date hereof to the Effective Date plus $1,138,787 (the “Balance”).
Section 1. Definitions. Unless otherwise defined herein, words and expressions defined in the Loan Agreement have the same meanings when used herein, including in the recitals hereto.
Section 2. Amendment of the Loan Agreement. The parties hereto agree that effective as of the Effective Date:
(a) All references to “this Agreement” shall be deemed to refer to the Loan Agreement as amended hereby.
(b) Section 4.02 (Voluntary Prepayment) of the Loan Agreement is hereby deleted in its entirety and replaced with the following (with the Balance on the Effective Date inserted in place of the “●” symbol):
“Subject to the terms and conditions of this Agreement, on the date hereof the Borrower shall issue to the Lender one share of common stock, par value $0.004 per share (the “Common Stock”) of the Borrower (the “Common Shares”) and a warrant (the “Warrant”) to purchase up to 0.3690008883624519 shares of Common Stock at a price of US$1.60 per share (subject to adjustment) (the “Exercisable Shares”), substantially in the form attached hereto as Exhibit A, for each $1.00 of the Prepayment amount. The Parties acknowledge and agree that the aggregate number of Common Shares to be issued pursuant to the previous sentence shall be 16,885,000 Common Shares, and the Warrant shall be exercisable to purchase up to an aggregate of 6,230,580 Exercisable Shares.
After the Prepayment is made, the Balance shall be $●, such Balance to accrue Interest as provided in Section 3.01 hereof and the Borrower shall be deemed as of the date of the Prepayment not to have failed to pay any sum due under this Agreement.”
Section 3. Representations and Warranties.
(a) Each of the Lender and the Borrower hereby reaffirms, as of the date hereof and as of the Effective Date, each and every representation and warranty made thereby in the Loan Agreement and further represents and warrants to each other as of the date hereof and as of the Effective Date that:
(i) the execution, delivery and performance of this Agreement by it and its consummation of the transactions contemplated hereby do not and shall not conflict with, result in a breach of, or constitute a default under, any applicable law, the organizational documents of such party or under any indenture, mortgage, deed of trust, or other instrument or agreement to which it is a party or by which it or any of its assets may be bound;
(ii) the execution, delivery and performance of this Agreement by it and the consummation of the transactions contemplated hereby have been duly authorized by any necessary governmental action, and no further consent, authorization or approval of, or exemption by, or the giving of notice to, or registration with or the taking of any other action in respect of any governmental authority is required in connection with such execution, delivery and performance;
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(iii) this Agreement constitutes its legal, valid and binding obligation and is enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and by general principles of equity, including principles of commercial reasonableness, fair dealing and good faith;
(iv) it has the corporate power and authority to enter into and perform its obligations under this Agreement and all other documents pursuant hereto; and
(v) there are no actions, suits or proceedings pending or, to the best knowledge of such party, threatened against it before any court or administrative agency, which either individually or in the aggregate, would reasonably be expected to have a material adverse effect on the ability of such party to perform its obligations under this Agreement.
(b) The Borrower represents and warrants to the Lender that:
(i) each of (a) the Common Shares to be issued to the Lender pursuant to Section 1(b) of this Agreement have been, and (b) upon the due exercise of Warrant, the Exercisable Shares shall be, duly authorized in accordance with the articles of incorporation of the Borrower and, when issued and delivered, will be validly issued, fully paid and non-assessable;
(ii) assuming the accuracy of the representations and warranties of the Lender contained in this Agreement, the issuance of the Common Shares and Warrant pursuant to this Agreement will be exempt from registration requirements of the Securities Act, and neither the Borrower nor, to its knowledge, any authorized representative acting on its behalf, has taken or will take any action hereafter that would cause the loss of such exemption;
(iii) neither the Borrower nor any of its affiliates have, or will have at the Effective Date, directly or indirectly through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act of 1933, as amended from time to time, and the rules and regulations of the United States Securities and Exchange Commission (the “Commission”) promulgated thereunder (the “Securities Act”)) that is or will be integrated with the sale of the Common Shares or the Warrant in a manner that would require registration under the Securities Act;
(iv) neither the Borrower nor any person acting on behalf of the Borrower has offered or sold or will offer or sell at or prior to the Effective Date any of the Common Shares or the Warrant by any form of general solicitation or general advertising (within the meaning of Regulation D promulgated under the Securities Act, and including (1) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television, radio, or the internet; and (2) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising) nor has it seen or been aware of any activity that, to its knowledge, constitutes general solicitation or general advertising. Neither the Borrower nor any person acting on behalf of the Borrower has engaged nor will engage in any “directed selling efforts” (as defined in Regulation S under the Securities Act) in the United States in respect of the Common Shares or the Warrant, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Common Shares or the Warrant, including placing an advertisement in a publication with a general circulation in the United States, nor has it seen or been aware of any activity that, to its knowledge, constitutes directed selling efforts in the United States;
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(v) no fees or commissions are or will be payable by the Borrower to brokers, finders, or investment bankers with respect to the sale and purchase of any of the Common Shares, the Warrant or the issuance of the Exercisable Shares with respect to the Warrant or the consummation of the transaction contemplated by this Agreement; and
(vi) neither the Borrower nor any agents of the Borrower provided to Lender any offering materials or other documents in connection with offer and sale of the Common Shares.
(c) The Lender represents and warrants to the Borrower both as of the date hereof and as of the Effective Date that:
(i) no fees or commissions are or will be payable by the Lender to brokers, finders, or investment bankers with respect to the purchase of any of the Common Shares or the Warrant or the issuance of the Exercisable Shares or the consummation of the transaction contemplated by this Agreement. The Lender agrees that it will indemnify and hold harmless the Borrower from and against any and all claims, demands, or liabilities for broker’s, finder’s, placement, or other similar fees or commissions incurred by the Lender in connection with the purchase of the Common Shares or the issuance of the Exercisable Shares or the consummation of the transactions contemplated by this Agreement;
(ii) the Common Shares and the Warrant are being acquired for the Lender’s own account, not as a nominee or agent, and with no present intention of distributing the Common Shares, the Warrant or the Exercisable Shares or any part thereof, and the Lender has no present intention of selling or granting any participation in or otherwise distributing the same in any transaction. The Lender was not formed for the purpose of acquiring any of the Common Shares, the Warrant or the Exercisable Shares. If the Lender should in the future decide to dispose of any of the Common Shares, the Warrant or the Exercisable Shares, the Lender understands and agrees (a) that it may do so only in compliance with the Securities Act and applicable state or other securities laws, as then in effect, including a sale contemplated by any registration statement pursuant to which such securities are being offered, or pursuant to an exemption from the Securities Act, and (b) that stop-transfer instructions to that effect will be in effect with respect to such securities. The Lender further understands and agrees that there is no public trading market for the Warrant purchased hereunder, that none is expected to develop, and that the Warrant must be held indefinitely unless and until it is duly exercised and the Exercisable Shares are registered under the Securities Act or an exemption from registration is available;
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(iii) the Lender represents and warrants to, and covenants and agrees with, the Borrower that, (a) it is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated by the Commission pursuant to the Securities Act, (b)by reason of its business and financial experience it has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks of the prospective investment in the Common Shares, the Warrant and the Exercisable Shares, (c) was advised by the Borrower to obtain United States counsel, either obtained United States counsel or had a full and fair opportunity and the means to obtain United States counsel, (d) is able to bear the economic risk of such investment and is able to afford a complete loss of such investment, and (e) it was provided access to all information regarding the Company and its business as the Purchaser desired, and was offered the opportunity to ask questions of management of the Company and to receive any documents and information on the Company. The questionnaire concerning accredited investor status previously signed by the Lender was true when furnished to the Borrower, remains true on the date hereof, and is not misleading. The Lender has no reason to believe that any statements contained in such questionnaire will change in any material way at any point in the foreseeable future;
(iv) the Lender understands that the Common Shares, the Warrant and the Exercisable Shares may be characterized as “restricted securities” under the Securities Act inasmuch as they are being acquired from the Borrower in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold (i) without registration under the Securities Act only in certain limited circumstances or (ii) if such resale is registered under the Securities Act. In this connection, the Lender represents that it is a sophisticated party knowledgeable with respect to the rules and regulations of the Commission promulgated under the Securities Act by which securities may be sold without filing a registration statement, including §§3-4 of the Securities Act, Regulation A, Regulation D, Rule 701, Regulation S, Rule 144, and Rule 144A. The Lender (i) acknowledges that after the date hereof and/or after issuance of the Exercisable Shares, the Lender may be deemed an “affiliate” of the Borrower under the Securities Act, (ii) acknowledges understanding the additional restrictions under the Securities Act applicable to affiliates of the Borrower, and (iii) either (a) confirms having discussed such restrictions with United States securities counsel or (b) acknowledges that it both the means and a full and fair opportunity to obtain United States securities counsel and discuss such restrictions prior to entering into this Agreement;
(v) the Lender understands that any certificates or statements evidencing any Common Shares, the Warrants or the Exercisable Shares may bear a legend in substantially the following form: “These securities have not been registered under the Securities Act of 1933, as amended (the “Securities Act”). These securities may not be sold or offered for sale except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration thereunder, in each case in accordance with all applicable securities laws of the states or other jurisdictions, and in the case of a transaction exempt from registration, such securities may only be transferred if Globus Maritime Limited and transfer agent for such securities has received documentation satisfactory to it that such transaction does not require registration under the Securities Act.”;
(vi) the Lender is not aware of any form of general solicitation or general advertising (within the meaning of Regulation D promulgated under the Securities Act) in respect of the Common Shares or the Warrant, including (1) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television, radio, or the internet; and (2) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising). The Lender is not aware of any form of “directed selling efforts” (as defined in Regulation S under the Securities Act) in the United States in respect of the Common Shares or the Warrant, which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Common Shares or the Warrant, including placing an advertisement in a publication with a general circulation in the United States;
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(vii) at the time the Lender received the offer to purchase the Common Shares and the Warrant it was not in the United States. The Lender is not a U.S. person (as defined in Regulation S promulgated under the Securities Act). The Lender’s receipt and execution of each this Agreement, and any other agreement relating hereto or thereto, has occurred or will occur outside the United States. The Lender understands and acknowledges that the offering and sale of the Common Shares and the Warrant are not being, and will not be, made, directly or indirectly, in or into, or by the use of the mails or any means or instrumentality (including telephonically or electronically) of interstate or foreign commerce of, or any facilities of a national securities exchange of, the United States;
(viii) the Lender is not a broker dealer registered under Section 15(a) of the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder, or a member of Financial Industry Regulatory Authority, Inc. or an entity engaged in the business of being a broker-dealer;
(ix) the Lender acknowledges and understands that all offers and sales of the Common Shares or the Warrant or the Exercisable Shares prior to the expiration of the 40-day period commencing the day after the date hereof shall be made only in accordance with the provisions of Regulation S promulgated under the Securities Act, pursuant to registration of the securities under the Securities Act, or pursuant to an available exemption from the registration requirements of the Act. The Lender further represents and warrants and agrees that the offer or resale of the Common Shares or the Warrant or the Exercisable Shares by the Lender, if made prior to the expiration of the 40-day period commencing the day after the date hereof, shall not be made to a U.S. person (as defined in Regulation S promulgated under the Securities Act) or for the account or benefit of a U.S. person (other than a distributor);
(x) the Lender conducted its own due diligence on the Borrower and was afforded: (i) the opportunity to ask such questions as it deemed necessary of, and to receive answers from, representatives of the Borrower concerning the terms and conditions contained herein and the merits and risks of investing in the Borrower, (ii) access to information about the Borrower and its subsidiaries and their respective financial condition, results of operations, business, properties, vessels, management and prospects sufficient to enable you to evaluate the investment, and (iii) the opportunity to obtain such additional information that the Borrower possesses or can acquire that is necessary to make an informed investment decision with respect to the investment and has received all the information requested in connection with your decision to obtain the Common Shares and the Warrant;
(xi) the Lender did not receive from the Borrower or its agent any offering materials or other documents in connection with offers and sales of the Common Shares or the Warrant; and
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(xii) the Lender and its beneficial owners of 20% or more of the Borrower’s outstanding voting equity securities, calculated on the basis of voting power (each, a “Covered Person”) is not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. The Lender has exercised reasonable care to determine whether any Covered Person is subject to a Disqualification Event. The purchase of the Common Shares, the purchase of the Warrant, and the exercise of the Warrant by the Lender will not subject the Borrower to any Disqualification Event. There are no matters that would have triggered disqualification under Rule 506(d)(1) under the Securities Act but occurred before September 23, 2013.
Section 6. Governing Law. This Agreement shall in all respects be governed by, and construed in accordance with, the laws of the State of New York, without regard to its principles of conflicts of law which might require the law of another jurisdiction to apply. Any controversy, dispute or claim arising out of or in connection with this Agreement (including, without limitation, the existence, validity, interpretation or breach hereof and any claim based on contract, tort of statute) shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce arbitration by three arbitrators appointed in accordance with the said Rules. Each of the Parties consents to process being served by the other party hereto in any suit, action, proceeding or arbitration by the mailing of a copy thereof in accordance with the provisions of Section 7.
| (a) | If to the Lender: |
Xxxxxxx Trading Limited
c/o Timagenis Law Firm
00 Xxxxxx Xxxxxx
00000 Xxxxxxx, Xxxxxx
Attn: Xxxxxxx J Timagenis
Facsimile: x00 000 0000000
with a copy to (which shall not constitute notice):
L Papaphilippou & Co LLC
00 Xxxxxxxxx Xxxxxx, 0000 Xxxxxxxxx
X.X. Xxx 0000
Xxxxxxx Xxxxxx
Fax x000 00 000000
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| (b) | If to the Borrower: |
Globus Maritime Limited
c/o Globus Shipmanagement Corp.
000 Xxxxxxxxxxxx Xxxxxx, 0xx Xxxxx
166 74 Glyfada
Athens Greece
Attention: Xxxxxxxxxx Feidakis
Facsimile: x00 000 0000000
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxxx & Xxxxxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile: x0-000-000-0000
or to such other address as the Borrower or the Lender may designate in writing. All notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; upon actual receipt if sent by registered or certified mail, return receipt requested, or regular mail, if mailed; when receipt acknowledged, if sent via facsimile; and upon actual receipt when delivered to an air courier guaranteeing overnight delivery.
[Signature Page Follows]
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| GLOBUS MARITIME LIMITED as Borrower | ||
| By: | /s/ Xxxxxxxxxx Feidakis | |
| Name: Xxxxxxxxxx Feidakis | ||
| Title: Chief Executive Officer | ||
| XXXXXXX TRADING LIMITED as Lender | ||
| By: | /s/ Xxxxxxxxx Xxxxxxxxx | |
| Name: Xxxxxxxxx Xxxxxxxxx | ||
| Title: Director | ||
Exhibit A
Form of Warrant
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THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and may not be sold or offered for sale except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration thereunder, in each case in accordance with all applicable securities laws of the states or other jurisdictions, and in the case of a transaction exempt from registration, such securities may only be transferred if the company AND transfer agent for such securities has received documentation satisfactory to it that such transaction does not require registration under the Securities Act.
WARRANT TO PURCHASE
COMMON SHARES
OF
GLOBUS MARITIME LIMITED
Expires [24 months after issuance], 2018
No.: 002
Number of Shares: 6,230,580 (subject to adjustment)
Date of Issuance: [l], 2016
FOR VALUE RECEIVED, Globus Maritime Limited, a Xxxxxxxx Islands corporation (the “Company”), hereby certifies that Xxxxxxx Trading Limited, a Xxxxxxxx Islands corporation (the “Holder”) is entitled, subject to the terms set forth below, to purchase from the Company up to an aggregate of 6,230,580 shares of common stock, par value US$0.004 per share, of the Company (the “Common Stock”) at the Exercise Price (as defined in Section 2.2 below) and otherwise in accordance with the terms set forth in this warrant (this “Warrant”), which is subject to adjustment. The shares of fully paid, duly authorized and non-assessable Common Stock issuable upon exercise of this Warrant are referred to herein as the “Warrant Shares”. The number of Warrant Shares that may be exercised pursuant to this Warrant and the Exercise Price is subject to adjustment as set forth in Section 6.
SECTION 1. TERM OF THE WARRANT. Subject to the terms and conditions hereof, at any time or from time to time after [l], 2016 (the “Warrant Issue Date”) and prior to 5:00 p.m., New York City time, on [l], 2018 (the “Expiration Date”), the Holder of this Warrant may exercise this Warrant for all or any part of the Warrant Shares purchasable hereunder (subject to adjustment as provided herein). If this Warrant is not exercised on or prior to the Expiration Date, notwithstanding anything to the contrary herein, then this Warrant shall become void, and all rights hereunder shall cease at such time.
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SECTION 2. EXERCISE OF THE WARRANT; RESTRICTIONS ON EXERCISE; EXERCISE PRICE.
Subject to Section 2.3, this Warrant may be exercised in full or in part by the Holder hereof by surrender of this Warrant (in original), with the form of subscription attached hereto as Exhibit A duly executed by such Holder, to the Company at its principal office, accompanied by payment of the aggregate Exercise Price (as determined in accordance with this Section 2.1) for the number of Warrant Shares in respect of which this Warrant is then exercised as designated by Holder in the subscription. The aggregate Exercise Price shall be an amount equal to the product obtained by multiplying (a) the number of Warrant Shares in respect of which this Warrant is being exercised by (b) the Exercise Price (as the same may be adjusted pursuant to Section 6 of this Warrant). Payment of the aggregate Exercise Price shall be made wire transfer of funds or by certified or official bank check payable to the order of the Company in the amount of such aggregate Exercise Price. The Exercise Price will be considered to have been paid only upon clearance of the wire transfer or check.
The stock certificate, or if shares of Common Stock are uncertificated, stock ledger, book-entry statement or other equivalent document produced by the Company, or if appointed, the transfer agent for the Common Stock (the “Transfer Agent”), will be issued and delivered as soon as practicable after the conditions set forth in this Section 2.1 have been satisfied.
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6.4 When No Adjustment Required.
(a) No adjustment need be made for a transaction referred to in Section 6.1 or Section 6.2 if the Holder is able to participate in the transaction on a basis and with notice that the Board of Directors of the Company determines to be fair and appropriate in light of the basis and notice on which holders of Common Stock participate in the transaction.
(b) Other than as described in Section 6.1 and Section 6.2 (but subject to Section 6.4(a)), no adjustment need be made for the issuance of any additional shares of Common Stock, preferred shares convertible into Common Stock, or debt, warrants, options or other instruments or securities which are convertible into or exercisable for shares of Common Stock. No adjustment need be made for the issuance of any other securities of the Company (other than as described in Section 6.1 and Section 6.2, subject to Section 6.4(a)).
SECTION 9. REPRESENTATION, WARRANTIES AND CERTAIN AGREEMENTS OF THE HOLDER.
The Holder hereby represents and warrants to the Company that:
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9.3 Investment. This Warrant and the Warrant Shares (collectively, the “Securities”) are being acquired for the Holder’s own account, not as a nominee or agent, and with no present intention of distributing the Securities or any part thereof, and the Holder has no present intention of selling or granting any participation in or otherwise distributing the same. The Holder was not formed for the purpose of acquiring any of the Securities. If the Holder should in the future decide to dispose of any of the Securities, the Holder understands and agrees (a) that it may do so only in compliance with the Securities Act and applicable state or other securities laws, as then in effect, including a sale contemplated by any registration statement pursuant to which such securities are being offered, or pursuant to an exemption from the Securities Act, and (b) that stop-transfer instructions to that effect will be in effect with respect to such Securities. The Holder further understands and agrees that there is no public trading market for this Warrant, that none is expected to develop, and that this Warrant must be held indefinitely unless and until it is duly exercised and the Warrant Shares are registered under the Securities Act or an exemption from registration is available.
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If to the Holder:
Xxxxxxx Trading Limited
c/o Timagenis Law Firm
00 Xxxxxx Xxxxxx, 00000 Xxxxxxx, Xxxxxx
Atttn: Xxxxxxx J Timagenis
Fax: 0000 000 0000000
With a copy to (which shall not constitute notice):
L Papaphilippou & Co LLC
00 Xxxxxxxxx Xxxxxx, 0000 Xxxxxxxxx
X.X. Xxx 0000
Xxxxxxx Xxxxxx
Fax x000 00 000000
If to the Company, to:
Globus Maritime Limited
c/o Globus Shipmanagement Corp.
000 Xxxxxxxxxxxx Xxxxxx, 0xx Xxxxx
166 74 Glyfada
Athens Greece
Attention: Xxxxxxxxxx Feidakis
Facsimile: x00 000 0000000
With a copy to (which shall not constitute notice):
Xxxxxx Xxxxxx & Xxxxxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile: x0-000-000-0000
Each party hereto may from time to time change the address to which notices to it are to be delivered or mailed hereunder by notice in writing to the other party.
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SECTION 12. GOVERNING LAW; JURISDICTION; ATTORNEYS’ FEES. This Warrant will be construed in accordance with and governed by the laws of the State of New York without regard to conflicts of laws. Any controversy, dispute or claim arising out of or in connection with this Warrant (including, without limitation, the existence, validity, interpretation or breach hereof and any claim based on contract, tort of statute) shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce arbitration by three arbitrators appointed in accordance with the said Rules. Each of the parties hereto consents to process being served by the other party hereto in any suit, action, proceeding or arbitration by the mailing of a copy thereof in accordance with the provisions of Section 11.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has duly executed this Warrant as of the Warrant Issue Date.
| GLOBUS MARITIME LIMITED | ||
| By: | ||
| Name: | ||
| Title: | ||
Accepted and agreed:
XXXXXXX TRADING LIMITED
| By: | ||
| Name: | ||
| Title: |
Signature Page to Warrant of Globus Maritime Limited
Exhibit A
WARRANT SHARES PURCHASE FORM
(To be executed if the Holder desires to purchase Warrant Shares)
Globus Maritime Limited
c/o Globus Shipmanagement Corp.
000 Xxxxxxxxxxxx Xxxxxx, 0xx Xxxxx
166 74 Glyfada
Athens Greece
Attention: Xxxxxxxxxx Feidakis
Reference is hereby made to the Warrant dated [l], 2016 (as amended, modified or supplemented from time to time, the “Warrant”) issued by Globus Maritime Limited, a Xxxxxxxx Islands corporation (the “Company”) to the undersigned. Capitalized terms used herein and not defined have the meanings assigned to such terms in the Warrant. The undersigned hereby irrevocably elects to exercise the Warrant to purchase the number of Warrant Shares set forth below.
1. The undersigned hereby elects to purchase the Warrant Shares set forth below and tenders herewith payment of the aggregate Exercise Price for such Warrant Shares in full.
2. The undersigned makes the representations set forth on Annex 1 attached to this Purchase Form. If the undersigned cannot make such representations because they would be factually incorrect, it shall be a condition to the undersigned’s exercise of the Warrant that the Company receive such other representations as the Company considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate any United States or state securities laws.
3. The undersigned requests a stock certificate, or if Warrant Shares are uncertificated, a stock ledger, book-entry statement or other equivalent document produced by the Company or the Transfer Agent, if any, representing the following number of Warrant Shares (in the name of the undersigned or in such other name as is specified below):
Warrant Shares: ___________________
Name: ___________________
4. The undersigned hereby requests that such proof of the Warrant Shares as set forth in subsection 3 above to be delivered by:
| (a) | certified mail to the address of the Holder, or |
| (b) | certified mail to the prime broker of the Holder at |
Name: _____________________________________
Address: ____________________________________
Attention: __________________________________
Tel. No.: ___________________________________
| (c) | electronically (DWAC Instructions: ____________________), or |
| (d) | other (specify) _____________________________________ |
| By: |
| Name: |
| Title: |
| Address: |
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Annex 1
THIS REPRESENTATION LETTER MUST BE COMPLETED, SIGNED AND RETURNED TO COMPANY ALONG WITH THE PURCHASE FORM BEFORE THE SHARES ISSUABLE UPON EXERCISE OF THE WARRANT WILL BE ISSUED.
Date: _____________
Globus Maritime Limited
c/o Globus Shipmanagement Corp.
000 Xxxxxxxxxxxx Xxxxxx, 0xx Xxxxx
166 74 Glyfada
Athens Greece
Attention: Xxxxxxxxxx Feidakis
(a)
(b) The undersigned, _______________ (the “Holder”), intends to acquire _______ shares of common stock, US$0.004 par value per share (the “Warrant Shares”), of Globus Maritime Limited, a Xxxxxxxx Islands corporation (the “Company”), from the Company pursuant to the exercise of a certain Warrant to purchase Common Shares held by the Holder dated [l], 2016. The Warrant Shares will be issued to the Holder in a transaction not involving a public offering and pursuant to an exemption from registration under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), and applicable state securities laws. In connection with such purchase and in order to comply with the exemptions from registration relied upon by the Company, the Holder represents, warrants and agrees as follows:
1. The Warrant Shares are being acquired for the Holder’s own account, not as a nominee or agent, and with no present intention of distributing the Warrant Shares or any part thereof, and the Holder has no present intention of selling or granting any participation in or otherwise distributing the same. The Holder was not formed for the purpose of acquiring any of the Warrant Shares. If the Holder should in the future decide to dispose of any of the Warrant Shares, the Holder understands and agrees (a) that it may do so only in compliance with the Securities Act and applicable state or other securities laws, as then in effect, including a sale contemplated by any registration statement pursuant to which such securities are being offered, or pursuant to an exemption from the Securities Act, and (b) that stop-transfer instructions to that effect will be in effect with respect to such Warrant Shares.
2. The Holder has received or has had full access to all the information it considers necessary or appropriate to make an informed investment decision with respect to the Warrant Shares. The Holder further has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the Warrant Shares and to obtain additional information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to the Holder or to which the Holder had access.
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3. The Holder understands that the purchase of the Warrant Shares involves substantial risk. The Holder represents and warrants to, and covenants and agrees with, the Company, that it (i) is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated pursuant to the Securities Act, (ii) by reason of its business and financial experience has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks of the prospective investment in the Warrant Shares, (iii) was advised by the Company to obtain United States counsel, either obtained United States counsel or had a full and fair opportunity and the means to obtain United States counsel, (iv) is able to bear the economic risk of such investment, would be able to afford a complete loss of such investment, and (v) was provided access to all information regarding the Company and its business as the Holder desired, and was offered the opportunity to ask questions of management of the Company and to receive any documents and information on the Company. The questionnaire concerning accredited investor status previously signed by the Holder was true when furnished to the Company, remains true on the date hereof, and is not misleading. The Holder has no reason to believe that any statements contained in such questionnaire will change in any material way at any point in the foreseeable future.
4. The Holder understands that the Warrant Shares may be characterized as “restricted securities” under the Securities Act inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such Warrant Shares may be resold (i) without registration under the Securities Act only in certain limited circumstances or (ii) if such resale is registered under the Securities Act. In this connection, the Holder represents that it is a sophisticated party knowledgeable with respect to the exemptions from registration under the Securities Act and applicable state securities laws (including, if available, the rules and regulations promulgated under the Securities Act by which securities may be sold without filing a registration statement, including but not limited to §§3-4 of the Securities Act, Regulation A, Regulation D, Rule 701, Regulation S, Rule 144, and Rule 144A).
5. The Holder (i) acknowledges that after the Warrant Issuance Date and/or after issuance of the Warrant Shares, the Holder may be deemed an “affiliate” of the Company under the Securities Act, (ii) acknowledges understanding the additional restrictions under the Securities Act applicable to affiliates of the Company, and (iii) either (a) confirms having discussed such restrictions with United States securities counsel or (b) acknowledges that it both the means and a full and fair opportunity to obtain United States securities counsel and discuss such restrictions prior to exercising the relevant Warrant.
6. The Holder is not aware any form of general solicitation or general advertising (within the meaning of Regulation D promulgated under the Securities Act) or directed selling efforts (as defined in Regulation S) relating to the Warrant Shares.
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7. The Holder understands that any certificates or statements evidencing any Warrant Shares may bear a legend in substantially the following form: “These securities have not been registered under the Securities Act of 1933, as amended (the “Securities Act”). These securities may not be sold or offered for sale except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration thereunder, in each case in accordance with all applicable securities laws of the states or other jurisdictions, and in the case of a transaction exempt from registration, such securities may only be transferred if the Company and transfer agent for such securities has received documentation satisfactory to it that such transaction does not require registration under the Securities Act.”
8. The Holder and its beneficial owners of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power (each, a “Covered Person”) is not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. The Holder has exercised reasonable care to determine whether any Covered Person is subject to a Disqualification Event. The purchase of the Warrant Shares by the Holder will not subject the Company to any Disqualification Event. There are no matters that would have triggered disqualification under Rule 506(d)(1) under the Securities Act but occurred before September 23, 2013.
9. The Holder understands that the Warrant Shares are being offered and sold to it in reliance upon specific exemptions from the registration requirements of the Securities Act, the rules and regulations and state securities laws, and that the Company is relying upon the truth and accuracy of, and the Holder’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Holder set forth herein in order to determine the availability of such exemptions and the eligibility of the Holder to acquire the Warrant Shares.
The Holder has carefully read this letter and has discussed its requirements and other applicable limitations upon the Holder’s resale of the Warrant Shares with the Holder’s counsel.
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