NON-COMPETITION AGREEMENT
Exhibit 4.4
This AGREEMENT (this "Agreement") is
made effective as of November 2, 2021 between XXXXX SHIPPING INC., a Xxxxxxxx Islands company ("Xxxxx") and OCEANPAL INC., a Xxxxxxxx Islands company ("OceanPal", and
together with Xxxxx, the "parties").
WHEREAS, Xxxxx is engaged in the ownership, operation and chartering of dry bulk
vessels;
WHEREAS, OceanPal is engaged in the ownership, operation and chartering of dry
bulk vessels (each an "OceanPal vessel");
WHEREAS, Xxxxx is the sole shareholder of OceanPal and intends to distribute of
all of OceanPal's issued and outstanding common shares to Diana's shareholders (the "Spin-Off") such that OceanPal will be an independent publicly traded company following the Spin-Off;
WHEREAS, certain of the senior executive officers and directors of Xxxxx will
continue to serve as senior executive officers and directors of OceanPal following the Spin-Off;
WHEREAS, Xxxxx and OceanPal desire to enter into this Agreement to memorialize
their agreement relating to engaging in potentially competitive business activities and certain other matters set forth more fully herein.
NOW, THEREFORE, in consideration of the mutual covenants and premises of the
parties and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Rights of First Refusal.
(a) Vessel Acquisitions. Xxxxx hereby grants to OceanPal a right of first refusal over any opportunity available to Xxxxx (or any wholly-owned subsidiary of
Xxxxx) to acquire or to charter-in any dry bulk vessel larger than 70,000 deadweight tons built prior to 2006 (an "Acquisition Opportunity") in accordance with this Section 1(a). In the event that an
Acquisition Opportunity is made available to Xxxxx, Xxxxx shall notify OceanPal of such Acquisition Opportunity. To the extent such Acquisition Opportunity constitutes the acquisition of a vessel, such Acquisition Opportunity shall be offered to
the Company at a purchase price not to exceed the fair market value of the vessel, which fair market value shall be determined as the average of two independent broker valuations of two brokers mutually agreeable to each of Xxxxx and OceanPal.
Within seven (7) calendar days after receipt of such notice from Xxxxx, OceanPal shall have the right to exercise its right of refusal and pursue the Acquisition Opportunity. In the event that OceanPal does not exercise its right of first refusal
on or before the seventh day following receipt of the notice from Xxxxx, Xxxxx shall be entitled to pursue such Acquisition Opportunity. To the extent that the seller or charterer of any vessel that is the subject of an Acquisition Opportunity
indicated in writing that it is unwilling or unable to sell or charter the vessel that is the subject of an Acquisition Opportunity to OceanPal, Xxxxx shall have the right, but not the obligation, to purchase the vessel itself and offer OceanPal
the opportunity to purchase the vessel on substantially the same terms within 30 days of such acquisition by Xxxxx and OceanPal shall have up to 15 days to elect to purchase such vessel from Xxxxx.
(b) Vessel Employment. Xxxxx hereby grants to OceanPal a right of first refusal over any employment opportunity for a dry bulk vessel pursuant to a spot market
charter presented or available to Xxxxx with respect to any vessel owned or chartered in, directly or indirectly, by Xxxxx (a "Charter Opportunity") in accordance with this Section 1(b). In the event Xxxxx
receives an offer for or negotiates a Charter Opportunity relating to a dry bulk vessel for which an OceanPal vessel meets the charterer's requirements relating to, among other factors, vessel age, size and other specifications, vessel positioning,
and cost, then prior to entering into such Charter Opportunity, Xxxxx shall notify OceanPal of such Charter Opportunity. Within one (1) business day after receipt of such notice from Xxxxx, OceanPal shall have the right, directly or through one or
more wholly owned subsidiaries, to exercise its right of first refusal and enter into the Charter Opportunity. In the event that OceanPal does not exercise its right of first refusal on or before the fifth day following receipt of the notice from
Xxxxx, Xxxxx shall be entitled to pursue such Charter Opportunity.
2. Non-Solicitation. Each of the parties agrees that during the term of this agreement and for a period of six (6) months thereafter, neither party will, without the prior written
consent of the other party, directly or indirectly, including through a wholly-owned subsidiary or affiliate, on behalf of itself or any other individual or entity, solicit for employment, induce or encourage the resignation of any employee of the
other party or its related entities, subsidiaries or affiliates, or any person who was employed by the other party or a subsidiary or affiliate of the other party within six months of the date of such solicitation; or in any other way interfere or
attempt to interfere with the relationship of either party hereto with any of its or their employees, provided, however, that nothing herein shall be deemed to prohibit or limit (i) certain of the executive
officers and/or directors of Xxxxx set forth on Schedule I from providing services to OceanPal in their capacity as executive officers and / or directors of OceanPal or (ii) either party from hiring any
person, including a person then employed by the other party, that is introduced to either party, or which Xxxxx or OceanPal become aware of through, any non-targeted solicitation.
3. Confidentiality. Except as (i) the parties may otherwise agree or (ii) as may be required by either party in the disclosing party's reasonable opinion after consultation with
outside legal counsel by applicable law (including without limitation U.S. federal securities law) or compliance with the requirements of any regulatory authority or stock exchange on which the shares of a party may be listed, any non-public
information or confidential information relating to or obtained in the pursuant to this Agreement or any transaction contemplated therefor, or the business or affairs of either party, their respective subsidiaries or affiliates, shall be kept
strictly confidential by the other party hereto; provided, however, in the case of clause (ii) of this Section 3, prior to any public disclosure by a party hereto contemplated to be made in order to comply with applicable law or requirements of
regulatory authorities or stock exchange requirements, the disclosing party shall provide a draft of such public disclosure or other communication to the non-disclosing party in advance and consult with the non-disclosing party regarding the
contents of such disclosure and, to the extent reasonably practicable in the circumstances, take into consideration any comments on such disclosure as may be provided by the non-disclosing party.
4. Notices. Each notice, consent or request required to be given to a party pursuant to this Agreement must be given in writing (including prepaid overnight courier or electronic
mail) and will be given to such party at its respective address set forth below or at such other address as such party may hereafter specify for the purpose by notice to the other party.
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If to Xxxxx:
Xxxxx Shipping Inc.
Xxxxxxxx 00
000 00 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx
Attention: Xxxxxxx Xxxxxxxxx
Tel: x00 0000000000
Email: xxxxxxxxxx@xxxxxxxxxxxxxxxx.xxx
With Copy to:
Xxxxxx X Xxxxxx, Esq.
Xxxxxx & Xxxxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Email: xxxxxx@xxxxxx.xxx
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If to OceanPal:
Pendelis 00
000 00 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx
Attention: Xxxxxxxxxxx Xxxxxxxxxx
Tel: x00 000 0000000
Email: xxxxxxxxxxx@xxxxxxxx.xxx
With Copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Email: xxxxxx@xxxxxx.xxx
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5. Termination. This Agreement shall terminate on the date that (i) Diana's ownership of OceanPal's equity securities represents less than 10% of the total
outstanding voting power of OceanPal and (ii) Xxxxx and OceanPal share no common executive officers.
6. Governing Law. This Agreement and the rights and obligations of the parties hereto will be governed by and construed in accordance with the laws of the State of New York.
7. Further Assurances. Each of the parties to this Agreement agrees to execute, acknowledge and deliver all such instruments and take all such actions a party from time to time may
reasonably request in order to further effectuate the purposes of this Agreement and to carry out the terms hereof and to better assure and confirm to the Company its rights, powers and remedies hereunder.
8. Binding Effect; Assignment. This Agreement will be binding upon and inure to the benefit of the parties and to their respective heirs, executors, administrators, successors and
permitted assigns. This Agreement is not assignable by either party without the prior written consent of the other party.
9. Severability. If any term, covenant or condition of this Agreement is held to be invalid, illegal or unenforceable in any respect, then this Agreement will be construed as if
such invalid, illegal, or unenforceable provision or part of a provision had never been contained in this Agreement.
10. Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original and all of such counterparts together will constitute one
agreement. To facilitate execution of this Agreement, the parties may execute and exchange counterparts of signature pages by electronic transmission (e.g., through use of a Portable Document Format or "PDF" file).
[Signature page follows.]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties as of the date first written above.
XXXXX SHIPPING INC.
/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Director, Chief Financial Officer, Chief Strategy Officer, Treasurer and Secretary
/s/ Xxxxxxxxxxx Xxxxxxxxxx
Name: Xxxxxxxxxxx Xxxxxxxxxx
Title: Director and Chief Executive Officer
[Signature Page to Non-Competition Agreement]
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Schedule I
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Person
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Xxxxx Capacity
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OceanPal Capacity
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Semiramis Paliou
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Director and Chief Executive Officer
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Director and Chairperson
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Xxxxxxx Xxxxxxxxx
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Director, CFO, Chief Strategy Officer, Treasurer & Secretary
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Director, President, Interim Chief Financial Officer and Secretary
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Xxxxxxxxxxx Xxxxxxxxxx
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Chief Operating Officer
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Director and Chief Executive Officer
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