Marshall Islands
|
4412
|
N/A
|
||
(State or other jurisdiction of
incorporation or organization)
|
(Primary Standard Industrial
Classification Code Number)
|
(I.R.S. Employer
Identification Number)
|
Castor Maritime Inc.
Victory House, 205 Archbishop Makarios Avenue, Limassol 3030, Cyprus
(357) 25 040 157
|
Seward & Kissel LLP
Attention: Gary J. Wolfe, Esq.
One Battery Park Plaza
New York, New York 10004
(212) 574-1200
|
|
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
|
(Name, address and telephone number of agent
for service)
|
Title of Each Class of
Securities to be Registered
|
Amount
to be
Registered |
Proposed
Maximum Offering Price per Share (1) |
Proposed
Maximum Aggregate
Offering Price
(1)
|
Amount of
Registration Fee
|
||||
Common shares, $0.001 par value per share, including related preferred stock purchase rights
|
1,275,906 |
N/A
|
$7,655,436
|
$953.11
|
||||
(1)
|
Estimated solely for the purpose of calculating the registration fee required by Section 6(b) of the Securities Act of 1933, as amended (the "Securities Act"). The proposed maximum aggregate offering price is being calculated pursuant to Rule 457(f)(2) under the Securities Act, based on 1,275,906 shares of the Company being exchanged and the book value per share of $6.00 as of the date of the most recently completed sales of such shares on February 16, 2018.
|
· |
We are offering to exchange, commencing on , 2018, an aggregate of 1,275,906 our common shares that have been registered for exchange, or the Exchange Shares, for an equivalent number of our common shares, previously sold in private offerings, or the Original Shares. We refer to this offer to exchange as the Exchange Offer.
|
· |
The terms of the Exchange Shares are identical to the terms of the Original Shares, except for the transfer restrictions relating to the Original Shares.
|
· |
We will exchange all Original Shares that are validly tendered and not validly withdrawn.
|
· |
The Exchange Offer will expire at 4:59 p.m., New York City time (10:59 p.m. Central European Time), on , 2018, unless we determine to extend it.
|
· |
You may withdraw tenders of Original Shares at any time before 4:59 p.m., New York City time (10:59 p.m. Central European Time), on the date of the expiration of the Exchange Offer.
|
· |
We will not receive any proceeds from the Exchange Offer.
|
· |
We will pay the expenses of the Exchange Offer.
|
· |
No dealer-manager is being used in connection with the Exchange Offer.
|
· |
The exchange of shares will not be a taxable exchange for U.S. federal income tax purposes.
|
PROSPECTUS SUMMARY
|
1
|
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
|
6
|
RISK FACTORS
|
7
|
USE OF PROCEEDS
|
24
|
CAPITALIZATION
|
25
|
DIVIDEND POLICY
|
26
|
SELECTED FINANCIAL DATA
|
27
|
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
|
28
|
THE INTERNATIONAL DRY BULK SHIPPING INDUSTRY
|
37
|
BUSINESS
|
38
|
MANAGEMENT
|
48
|
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
|
50
|
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
|
51
|
THE EXCHANGE OFFER
|
52
|
DESCRIPTION OF THE EXCHANGE SHARES
|
58
|
DESCRIPTION OF CAPITAL STOCK
|
59
|
CERTAIN MARSHALL ISLANDS COMPANY CONSIDERATIONS
|
69
|
TAXATION
|
72
|
PLAN OF DISTRIBUTION
|
79
|
ENFORCEMENT OF CIVIL LIABILITIES AND INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
|
80
|
LEGAL MATTERS
|
80
|
EXPERTS
|
80
|
WHERE YOU CAN FIND ADDITIONAL INFORMATION
|
80
|
Vessel Name
|
Year
Built |
Type of
Charter |
Capacity
(dwt) |
Delivered to
Spetses |
Approximate
Charter Expiration |
|||
Magic P
|
2004
|
Time Charter
|
76,453
|
February 21, 2017
|
May 2018
|
|||
· |
the ability to present only two years of audited financial statements and only two years of related Management's Discussion and Analysis of Financial Condition and Results of Operations in the registration statement for an initial public offering;
|
· |
exemption from the auditor attestation requirement in the assessment of the emerging growth company's internal controls over financial reporting;
|
· |
exemption from new or revised financial accounting standards applicable to public companies until such standards are also applicable to private companies; and
|
· |
exemption from compliance with any new requirements adopted by the Public Company Accounting Oversight Board, or the PCAOB, requiring mandatory audit firm rotation or a supplement to the auditor's report in which the auditor would be required to provide additional information about the audit and financial statements.
|
Issuer
|
Castor Maritime Inc., a corporation formed under the laws of the Republic of the Marshall Islands.
|
||
Offer to Exchange Original Shares for Exchange Shares
|
Under the terms of the Exchange Offer, you are entitled to exchange the Original Shares for Exchange Shares. All Original Shares that are validly tendered and not validly withdrawn prior to the expiration of the Exchange Offer will be exchanged promptly. Any Original Shares not accepted for tender for any reason will be returned promptly after termination or expiration of the Exchange Offer.
|
||
Any holder electing to have Original Shares exchanged pursuant to this Exchange Offer must properly tender such holder's Original Shares for Exchange Shares prior to 4:59 p.m. New York City time (11:59 p.m. Central European Time) on the Expiration Date, as defined below.
|
|||
The Exchange Offer is not being made to, nor will we accept surrenders of Original Shares for exchange from, holders of Original Shares in any jurisdiction in which the Exchange Offer or the acceptance thereof would not be in compliance with the securities or blue sky laws of the jurisdiction, nor to any person or entity to whom it is unlawful to make such offer.
|
|||
Affiliates of ours (within the meaning of Rule 405 under the Securities Act), may not participate in the Exchange Offer.
|
|||
Procedures for Tendering Original Shares
|
If you wish to tender your Original Shares for exchange in the Exchange Offer, you must send to the Company, on or before the Expiration Date, a properly completed and executed letter of transmittal, which has been provided to you with this prospectus and any other documentation requested by the letter of transmittal.
|
||
If you beneficially own Original Shares registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your Original Shares in the Exchange Offer, you should contact the registered holder promptly and instruct it to tender on your behalf accordingly.
|
|||
Expiration Date
|
The Exchange Offer will remain open for at least 20 full business days and will expire at 4:59 p.m., New York City time (11:59 p.m. Central European Time), on , 2018, unless extended by us at our sole discretion, or the Expiration Date.
|
||
Resales of Exchange Shares
|
We believe that the Exchange Shares may be offered for resale, resold or otherwise transferred by you (unless you are an "affiliate" of ours within the meaning of Rule 405 of the Securities Act) without compliance with the registration and prospectus delivery requirements of the Securities Act, provided that:
|
||
•
|
You acquire the Exchange Shares in the ordinary course of business; and
|
||
|
•
|
You are not participating, do not intend to participate, and have no arrangement or understanding with any person to participate in the distribution of the Exchange Shares.
|
|
If any of the foregoing is not true and you transfer any Exchange Shares without delivering a prospectus meeting the requirements of the Securities Act and without an exemption for the transfer of your Exchange Shares from such requirements, you may incur liability under the Securities Act. We do not assume or indemnify you against such liability. If you are a broker-dealer and receive Exchange Shares for your own account in exchange for Original Shares that were acquired as a result of market-making activities or other trading activities, you must represent to us that you will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of the Exchange Shares.
|
|||||
Consequences of Failure to Exchange
|
If we complete the Exchange Offer and you do not participate in it, then:
|
|||||
|
•
|
Your Original Shares will continue to be subject to the existing restrictions upon their transfer; and
|
||||
|
•
|
The liquidity of the market for your Original Shares could be adversely affected.
|
||||
Withdrawal of Tenders
|
You may withdraw your tender of Original Shares at any time prior to the Expiration Date. To withdraw, you must submit a notice of withdrawal to the Exchange Offer before 4:59 p.m., New York City time (11:59 p.m. Central European Time) on the Expiration Date.
|
|||||
Conditions to Exchange Offer
|
The Exchange Offer is subject to certain customary conditions.
|
|||||
Tax Considerations
|
A shareholder will not recognize gain or loss for U.S. federal income tax purposes on the exchange of Original Shares for Exchange Shares pursuant to the Exchange Offer. Under current Marshall Islands law, we are not subject to tax on income or capital gains, and no Marshall Islands withholding tax will be imposed upon payments of dividends by us to our shareholders.
|
|||||
|
Until the shares become traded on an established securities market in the United States, any dividends paid by us will be treated as ordinary income to a U.S. shareholder, and may continue to be so treated even after we become publicly traded. On the disposition of our shares, a U.S. shareholder will recognize capital gain or loss, which will be treated as long-term capital gain or loss if the shares have been held for more than one year. Under certain circumstances, we may be treated as a "passive foreign investment company" for U.S. federal income tax purposes. If we were to be so treated, dividends paid by us will be treated as ordinary income to a U.S. shareholder. In addition, a U.S. shareholder may be subject to adverse U.S. federal income tax consequences with respect to certain distributions received from us and gain on the sale of our shares, although a U.S. shareholder may be able to make certain tax elections to ameliorate these adverse consequences. See "Taxation—U.S. Federal Income Tax Considerations—Passive Foreign Investment Company Status and Significant Tax Consequences."
|
|||||
Use of Proceeds
|
We will not receive any cash proceeds from the issuance of the Exchange Shares in this Exchange Offer. See "Use of Proceeds."
|
|||||
Exchange Agent
|
The Company will distribute and collect the required documents from our shareholders to tender Original Shares in the Exchange Offer. American Stock Transfer and Trust Company, LLC, or AST, is expected to be appointed as our transfer agent who will act as agent for purposes of exchanging Original Shares for Exchange Shares. Deliveries should be addressed to the Company at the address on the back cover of this prospectus. | |||||
Exchange Shares
|
The Exchange Shares are identical to the Original Shares except that the Exchange Shares have been registered under the Securities Act of 1933, as amended, or the Securities Act, and, therefore, will not bear legends restricting their transfer. For more details, please read "The Exchange Offer."
|
· |
the strength of world economies;
|
· |
fluctuations in interest rates;
|
· |
general drybulk shipping market trends, including fluctuations in charter hire rates and vessel values
;
|
· |
changes in demand in drybulk vessels;
|
· |
changes in our operating expenses, including bunker prices, dry docking and insurance costs;
|
· |
changes in governmental rules and regulations or actions taken by regulatory authorities;
|
· |
potential liability from pending or future litigation;
|
· |
general domestic and international political conditions;
|
· |
potential disruption of shipping routes due to accidents or political events;
|
· |
the availability of financing and refinancing;
|
· |
vessel breakdowns and instances of off-hire; and
|
· |
other important factors described in "Risk Factors" beginning on page 7.
|
· |
supply of and demand for energy resources, commodities, semi-finished and finished consumer and industrial products;
|
· |
changes in the exploration or production of energy resources, commodities, semi-finished and finished consumer and industrial products;
|
· |
the location of regional and global exploration, production and manufacturing facilities;
|
· |
the location of consuming regions for energy resources, commodities, semi-finished and finished consumer and industrial products;
|
· |
the globalization of production and manufacturing;
|
· |
global and regional economic and political conditions, including armed conflicts and terrorist activities, embargoes and strikes;
|
· |
developments in international trade;
|
· |
changes in seaborne and other transportation patterns, including the distance cargo is transported by sea;
|
· |
environmental and other regulatory developments;
|
· |
currency exchange rates; and
|
· |
the weather.
|
· |
number of newbuilding orders and deliveries;
|
· |
the number of shipyards and ability of shipyards to deliver vessels;
|
· |
port and canal congestion;
|
· |
scrapping of older vessels;
|
· |
speed of vessel operation;
|
· |
vessel casualties; and
|
· |
number of vessels that are out of service or laid up.
|
· |
low charter rates, particularly for vessels employed on short-term time charters or in the spot market;
|
· |
decreases in the market value of dry bulk vessels and limited second-hand market for the sale of vessels;
|
· |
limited financing for vessels;
|
· |
widespread loan covenant defaults; and
|
· |
declaration of bankruptcy by certain vessel operators, vessel owners, shipyards and charterers.
|
· |
a marine disaster;
|
· |
terrorism;
|
· |
environmental accidents;
|
· |
cargo and property losses and damage; and
|
· |
business interruptions caused by mechanical failure, human error, war, terrorism, piracy, political action in various countries, labor strikes, or adverse weather conditions.
|
· |
identify suitable drybulk vessels, including newbuilding slots at reputable shipyards and/or shipping companies for acquisitions at attractive prices;
|
· |
obtain required financing for our existing and new operations;
|
· |
integrate any acquired drybulk vessels, assets or businesses successfully with our existing operations, including obtaining any approvals and qualifications necessary to operate vessels that we acquire;
|
· |
hire, train and retain qualified personnel and crew to manage and operate our growing business and fleet;
|
· |
enhance our customer base; and
|
· |
improve our operating, financial and accounting systems and controls.
|
· |
There are no underwriters. Consequently, prior to the opening of trading on over-the-counter market, there will be no book building process and no price at which underwriters initially sold common shares to the public to help inform efficient price discovery with respect to the opening trades on over-the-counter market. Therefore, buy and sell orders submitted prior to and at the opening of trading of our common shares on over-the-counter market will not have the benefit of being informed by a published price range or a price at which the underwriters initially sold common shares to the public. Moreover, there will be no underwriters assuming risk in connection with the initial sale of our common shares. Additionally, because there are no underwriters, there is no underwriters' option to purchase additional common shares to help stabilize, maintain, or affect the public price of our common shares on over-the-counter market immediately after the listing. In an underwritten initial public offering, the underwriters may engage in "covered" short sales in an amount of common shares representing the underwriters' option to purchase additional common shares. To close a covered short position, the underwriters purchase common shares in the open market or exercise the underwriters' option to purchase additional common shares. In determining the source of common shares to close the covered short position, the underwriters typically consider, among other things, the price of common shares available for purchase in the open market as compared to the price at which they may purchase common shares through the underwriters' option to purchase additional common shares. Purchases in the open market to cover short positions, as well as other purchases underwriters may undertake for their own accounts, may have the effect of preventing a decline in the market price of common shares. Given that there will be no underwriters' option to purchase additional common shares or otherwise underwriters in engaging in stabilizing transactions, there could be greater volatility in the public price of our common shares during the period immediately following the commencement of trading of our common shares.
|
· |
There is not a fixed number of securities available for sale. Therefore, there can be no assurance that any shareholders will sell any or all of their common shares and there may initially be a lack of supply of, or demand for, common shares on over-the-counter market. Alternatively, we may have a large number of shareholders who choose to sell their common shares in the near-term resulting in oversupply of our common shares, which could adversely impact the public price of our common shares once listed on the over-the-counter market.
|
· |
None of our shareholders have entered into contractual lock-up agreements or other contractual restrictions on transfer. In an underwritten initial public offering, it is customary for an issuer's officers, directors, and most of its other shareholders to enter into a 180-day contractual lock-up arrangement with the underwriters to help promote orderly trading immediately after listing. Consequently,
any of our shareholders, including our directors and officers who own our common shares and other significant shareholders, may sell any or all of their common shares immediately upon the commencement of trading of our common shares and at any other time (subject to any restrictions under applicable law). If such sales were to occur in a significant amount, they may result in an oversupply of our common shares in the market, which could adversely impact the public price of our common shares.
|
· |
We will not conduct a traditional "roadshow" with underwriters prior to the opening of trading on over-the-counter market. As a result, there may not be efficient price discovery with respect to our common shares or sufficient demand among investors immediately after our listing, which could result in a more volatile public price of our common shares.
|
· |
our existing shareholders' proportionate ownership interest in us will decrease;
|
· |
the amount of cash available for dividends payable on our common shares may decrease;
|
· |
the relative voting strength of each previously outstanding common share may be diminished; and
|
· |
the market price of our common shares may decline.
|
· |
authorizing our Board to issue "blank check" preferred stock without stockholder approval;
|
· |
providing for a classified Board with staggered, three year terms;
|
· |
establishing certain advance notice requirements for nominations for election to our Board or for proposing matters that can be acted on by shareholders at stockholder meetings;
|
· |
prohibiting cumulative voting in the election of directors;
|
· |
limiting the persons who may call special meetings of shareholders; and
|
· |
establishing supermajority voting provisions with respect to amendments to certain provisions of our articles of incorporation and bylaws.
|
· |
changes in our operating cash flow, capital expenditure requirements, working capital requirements and other cash needs;
|
· |
restrictions under any future credit facilities or any future debt securities on our ability to pay dividends if an event of default has occurred and is continuing or if the payment of the dividend would result in an event of default, or under certain facilities if it would result in the breach of certain financial covenants;
|
· |
the amount of any cash reserves established by our Board; and
|
· |
restrictions under Marshall Islands law, which generally prohibits the payment of dividends other than from surplus (retained earnings and the excess of consideration received for the sale of shares above the par value of the shares) or while a company is insolvent or would be rendered insolvent by the payment of such a dividend.
|
|
· |
on an actual basis;
|
· |
on an adjusted basis to give effect to the offer to exchange 1,275,906 registered common shares, par value $0.001 per share for 1,275,906 outstanding unregistered common shares, par value $0.001 per share. We will not receive any cash proceeds from the issuance of the Exchange Shares in this Exchange Offer. See "Use of Proceeds".
|
|
As of September 30, 2017
|
|||||||
|
Actual
|
As adjusted
|
||||||
|
(in U.S. dollars)
|
|||||||
|
||||||||
SHAREHOLDERS' EQUITY:
|
||||||||
Preferred Shares, $0.001 par value: 50,000,000 shares authorized, 480,000 9.75% Series A cumulative redeemable perpetual preferred shares and 12,000 Series B preferred shares issued and outstanding (actual and as adjusted)
|
492
|
492
|
||||||
Common Shares, $0.001 par value; 1,950,000,000 shares authorized; 2,400,000 issued and outstanding (actual and as adjusted)
|
2,400
|
2,400
|
||||||
Additional paid-in capital
|
7,612,108
|
7,612,108
|
||||||
Retained Earnings
|
878,644
|
878,644
|
||||||
Total shareholders' equity
|
8,493,644
|
8,493,644
|
||||||
Total capitalization
|
$
|
8,493,644
|
$
|
8,493,644
|
· |
the cyclical nature of the industry and its impact on charter rates and vessel values;
|
· |
employment and operation of our vessel; and
|
· |
management of the financial, general and administrative elements involved in the conduct of our business and ownership of our vessel.
|
For the period from December 13, 2016 to September 30, 2017
|
||||
(In U.S. dollars, except for days and utilization)
|
||||
Operational Metrics
|
||||
Available days
(1)
|
216
|
|||
Calendar days
(2)
|
222
|
|||
Vessel utilization
(3)
|
97.30
|
%
|
||
Daily time charter equivalent (or TCE)
(4)
|
8,969
|
|||
Daily vessel operating expenses
(5)
|
5,383
|
|||
Daily management fees
(6)
|
250
|
|||
Daily general and administrative expenses
(7)
|
425
|
|
For the period from December 13, 2016 to September 30, 2017
|
|||
(In U.S. dollars, except for available days)
|
||||
Revenues (net of address commissions)
|
2,018,061
|
|||
Voyage expenses
|
(80,853
|
)
|
||
Time charter equivalent revenues
|
1,937,208
|
|||
Available days
|
216
|
|||
Time charter equivalent rate
|
8,969
|
· |
Voyage expenses;
|
· |
Vessel operating expenses;
|
· |
General and administrative expenses; and
|
· |
Depreciation.
|
· |
reports by industry analysts and data providers that focus on our industry and related dynamics affecting vessel values;
|
· |
news and industry reports of similar vessel sales;
|
· |
news and industry reports of sales of vessels that are not similar to our vessel where we have made certain adjustments in an attempt to derive information that can be used as part of our estimates;
|
· |
approximate market values for our vessel or similar vessels that we have received from shipbrokers, whether solicited or unsolicited, or that shipbrokers have generally disseminated;
|
· |
offers that we may have received from potential purchasers of our vessel; and
|
· |
vessel sale prices and values of which we are aware through both formal and informal communications with shipowners, shipbrokers, industry analysts and various other shipping industry participants and observers.
|
For the period from December 13, 2016 to September 30, 2017
|
||||
(In U.S. dollars)
|
||||
Net cash provided by operating activities
|
770,749
|
|||
Net cash used in investing activities
|
(7,549,281
|
)
|
||
Net cash provided by financing activities
|
7,615,000
|
As of September 30, 2017
|
||||
(In U.S. dollars)
|
||||
Total current assets
|
1.350,983
|
|||
Total current liabilities
|
(224,274
|
)
|
||
Working capital
|
1,126,709
|
Total
(1)
|
Less than 1 year
|
1-3 years
|
3-5 years
|
More than 5 years
|
||||||||||||||||
(In U.S. dollars)
|
||||||||||||||||||||
Property lease
(2)
|
$
|
3,900
|
$
|
3,120
|
$
|
780
|
-
|
-
|
||||||||||||
Total
|
$
|
3,900
|
$
|
3,120
|
$
|
780
|
-
|
-
|
(1) |
The table does not include the daily fixed fee payable to Pavimar, for the management of our Vessel.
|
(2) |
The amount relates to the rental of office premises. The monthly rental payment is approximately $260 and the agreement expires in December 2018.
|
Vessel Name
|
Year
Built |
Type of
Charter |
Capacity
(dwt) |
Delivered to
Spetses |
Approximate
Charter Expiration |
|||
Magic P
|
2004
|
Time Charter
|
76,453
|
February 21, 2017
|
May 2018
|
|||
· |
injury to, destruction or loss of, or loss of use of, natural resources and the costs of assessment thereof;
|
· |
injury to, or economic losses resulting from, the destruction of real and personal property;
|
· |
net loss of taxes, royalties, rents, fees or net profit revenues resulting from injury, destruction or loss of real or personal property, or natural resources;
|
· |
loss of subsistence use of natural resources that are injured, destroyed or lost;
|
· |
lost profits or impairment of earning capacity due to injury, destruction or loss of real or personal property or natural resources;
|
· |
net cost of increased or additional public services necessitated by removal activities following a discharge of oil, such as protection from fire, safety or health hazards.
|
· |
on-board installation of automatic identification systems to provide a means for the automatic transmission of safety-related information from among similarly equipped ships and shore stations, including information on a ship's identity, position, course, speed and navigational status;
|
· |
on-board installation of ship security alert systems, which do not sound on the vessel but only alert the authorities on shore;
|
· |
the development of a ship security plan;
|
· |
ship identification number to be permanently marked on a vessel's hull;
|
· |
a continuous synopsis record kept onboard showing a vessel's history including the name of the ship, the state whose flag the ship is entitled to fly, the date on which the ship was registered with that state, the ship's identification number, the port at which the ship is registered and the name of the registered owner(s) and their registered address; and
|
· |
compliance with flag state security certification requirements.
|
Name
|
Age
|
Position
|
||
Petros Panagiotidis
|
27
|
Chairman, Chief Executive Officer, Chief Financial Officer, President, Treasurer and Class C Director
|
||
Dionysios Makris
|
37
|
Secretary and Class B Director
|
||
Georgios Daskalakis
|
28
|
Class A Director
|
Common Shares
Beneficially Owned Prior to and after the Exchange Offer |
||||||||
Name of Beneficial Owner
|
Number
|
Percentage
|
||||||
Thalassa Investment Co. S.A.
(1)
|
1,124,094
|
46.83
|
%
|
|||||
Universe Shipping Inc.
(2)
|
235,200
|
9.8
|
%
|
|||||
Simple Life Corp.
(3)
|
230,400
|
9.6
|
%
|
|||||
Directors and Officers (excluding Petros Panagiotidis)
(4)
|
0
|
0
|
%
|
· |
any Exchange Shares received by you will be, and the Original Shares you are tendering in anticipation of receiving the Exchange Shares were, acquired in the ordinary course of business;
|
· |
you do not have any arrangement or understanding with any person to participate in, are not engaged in, and do not intend to engage in, the distribution (within the meaning of the Securities Act) of the Exchange Shares in violation of the provisions of the Securities Act;
|
· |
you are not an "affiliate" of ours, as defined in Rule 405 of the Securities Act;
|
· |
you are not acting on behalf of any person who could not truthfully make the foregoing representations; and
|
· |
if you are a broker-dealer, (i) you will receive Exchange Shares for your own account in exchange for Original Shares that were acquired as a result of market-making activities or other trading activities and (ii) you will deliver a prospectus (or, to the extent permitted by law, make available a prospectus to purchasers) meeting the requirements of the Securities Act in connection with any resale of those Exchange Shares to the extent required by applicable law or regulation or SEC pronouncement.
|
· |
such Exchange Shares are acquired in the ordinary course of the holder's business;
|
· |
such holder is not engaged in, has no arrangement with any person to participate in, and does not intend to engage in, any public distribution of the Exchange Shares;
|
· |
such holder is not our "affiliate," as defined in Rule 405 of the Securities Act; and
|
· |
if such holder is a broker-dealer that receives Exchange Shares for its own account in exchange for Original Shares that were acquired as a result of market-making activities, it will deliver a prospectus, as required by law, in any resale of such Exchange Shares.
|
· |
cannot rely on the position of the staff of the SEC set forth in "Exxon Capital Holdings Corporation" or similar interpretive letters issued to third parties with respect to similar transactions that did not involve the issuer of securities or its affiliates; and
|
· |
must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction.
|
· |
delay acceptance of any Original Shares as may be permitted under SEC rules;
|
· |
extend the Exchange Offer and retain all Original Shares tendered before the expiration date of the Exchange Offer, subject to the rights of the holders of tendered Original Shares to withdraw their tendered Original Shares;
|
· |
terminate the Exchange Offer and refuse to accept any Original Shares;
|
· |
waive the termination event with respect to the Exchange Offer and accept all properly tendered Original Shares that have not been withdrawn; or
|
· |
following the Expiration Date, exchange the Original Shares for Exchange Shares.
|
· |
instruct the Exchange Agent to tender your Original Shares on your behalf by completing the letter of transmittal accompanying this prospectus; and
|
· |
deliver a duly completed letter of transmittal to the Company at its address specified in the letter of transmittal.
|
· |
specify the name of the person who tendered the Original Shares to be withdrawn;
|
· |
identify the Original Shares to be withdrawn; and
|
· |
be signed by the holder of such Original Shares in the same manner as the original signature on the letter of transmittal by which such Original Shares were tendered, or be accompanied by (i) documents of transfer sufficient to have our transfer agent register the transfer of the Original Shares into the name of the person withdrawing such Original Shares, and (ii) a properly completed irrevocable proxy authorizing such person to effect such withdrawal on behalf of such holder.
|
· |
the designation of the series;
|
· |
the number of shares of the series;
|
· |
the preferences and relative, participating, option or other special rights, if any, and any qualifications, limitations or restrictions of such series; and
|
· |
the voting rights, if any, of the holders of the series.
|
· |
any person who is the beneficial owner of 15% or more of our outstanding voting shares; or
|
· |
any person who is our affiliate or associate and who held 15% or more of our outstanding voting shares at any time within three years before the date on which the person's status as an interested shareholder is determined, and the affiliates and associates of such person.
|
· |
certain mergers or consolidations of us or any direct or indirect majority-owned subsidiary of ours;
|
· |
any sale, lease, exchange, mortgage, pledge, transfer or other disposition of our assets or of any subsidiary of ours having an aggregate market value equal to 10% or more of either the aggregate market value of all of our assets, determined on a combined basis, or the aggregate value of all of our outstanding shares;
|
· |
certain transactions that result in the issuance or transfer by us of any shares of ours to the interested shareholder;
|
· |
any transaction involving us or any of our subsidiaries that has the effect of increasing the proportionate share of any class or series of stock, or securities convertible into any class or series of stock, of ours or any such subsidiary that is owned directly or indirectly by the interested shareholder or any affiliate or associate of the interested shareholder; and
|
· |
any receipt by the interested shareholder of the benefit directly or indirectly (except proportionately as a shareholder) of any loans, advances, guarantees, pledges or other financial benefits provided by or through us or a subsidiary.
|
· |
before a person became an interested shareholder, our Board approved either the business combination or the transaction in which the shareholder became an interested shareholder;
|
· |
upon consummation of the transaction which resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of our voting shares outstanding at the time the transaction commenced, other than certain excluded shares;
|
· |
at or following the transaction in which the person became an interested shareholder, the business combination is approved by our Board and authorized at an annual or special meeting of shareholders, and not by written consent, by the affirmative vote of the holders of at least two-thirds of our outstanding voting shares that is not owned by the interest shareholder;
|
· |
the shareholder became an interested shareholder prior to the date of our articles of incorporation, which was September 11, 2017;
|
· |
a shareholder became an interested shareholder inadvertently and (i) as soon as practicable divested itself of ownership of sufficient shares so that the shareholder ceased to be an interested shareholder; and (ii) would not, at any time within the three-year period immediately prior to a business combination between us and such shareholder, have been an interested shareholder but for the inadvertent acquisition of ownership; or
|
· |
the business combination is proposed prior to the consummation or abandonment of and subsequent to the earlier of the public announcement or the notice required under our amended and restated articles of incorporation which (i) constitutes one of the transactions described in the following sentence; (ii) is with or by a person who either was not an interested shareholder during the previous three years or who became an interested shareholder with the approval of the board; and (iii) is approved or not opposed by a majority of the members of the Board then in office (but not less than one) who were directors prior to any person becoming an interested shareholder during the previous three years or were recommended for election or elected to succeed such directors by a majority of such directors. The proposed transactions referred to in the preceding sentence are limited to:
|
· |
a merger or consolidation of us (except for a merger in respect of which, pursuant to the BCA, no vote of our shareholders is required);
|
· |
a sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), whether as part of a dissolution or otherwise, of assets of us or of any direct or indirect majority-owned subsidiary of ours (other than to any direct or indirect wholly-owned subsidiary or to us) having an aggregate market value equal to 50% or more of either the aggregate market value of all of our assets determined on a consolidated basis or the aggregate market value of all the outstanding shares; or
|
· |
a proposed tender or exchange offer for 50% or more of our outstanding voting shares.
|
· |
not be redeemable;
|
· |
entitle holders to quarterly dividend payments in an amount per share equal to the aggregate per share amount of all cash dividends, and the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in our common shares or a subdivision of the our outstanding common shares (by reclassification or otherwise), declared on our common shares since the immediately preceding quarterly dividend payment date; and
|
· |
entitle holders to one vote on all matters submitted to a vote of the shareholders of the Company.
|
Marshall Islands
|
Delaware
|
|
Shareholder Meetings
|
||
Held at a time and place as designated in the bylaws.
|
May be held at such time or place as designated in the certificate of incorporation or the bylaws, or if not so designated, as determined by the Board.
|
|
Special meetings of the shareholders may be called by the Board or by such person or persons as may be authorized by the articles of incorporation or by the bylaws.
|
Special meetings of the shareholders may be called by the Board or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws.
|
|
May be held within or without the Marshall Islands.
|
May be held within or without Delaware.
|
|
Notice
:
|
Notice
:
|
|
Whenever shareholders are required or permitted to take any action at a meeting, written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, unless it is an annual meeting, indicate that it is being issued by or at the direction of the person(s) calling the meeting. Notice of a special meeting shall also state the purpose for which the meeting is called.
|
Whenever shareholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which shareholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the shareholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.
|
|
A copy of the notice of any meeting shall be given personally or sent by mail not less than 15 nor more than 60 days before the meeting.
|
Whenever stockholders are required or permitted to take any action at a meeting, written notice shall be given not less than 10 nor more than 60 days before the meeting.
|
|
Shareholders' Voting Rights
|
||
Any action required to be taken by a meeting of shareholders may be taken without meeting if consent is in writing and is signed by all the shareholders entitled to vote.
|
Unless otherwise provided in the certificate of incorporation, any action required to be taken at a meeting of shareholders may be taken without a meeting if a consent for such action is in writing and is signed by shareholders having not fewer than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
|
|
Any person authorized to vote may authorize another person or persons to act for him by proxy.
|
Any person authorized to vote may authorize another person or persons to act for him by proxy.
|
Unless otherwise provided in the articles of incorporation or bylaws, a majority of shares entitled to vote constitutes a quorum. In no event shall a quorum consist of fewer than one- third of the shares entitled to vote at a meeting.
|
For stock corporations, the certificate of incorporation or bylaws may specify the number of shares required to constitute a quorum but in no event shall a quorum consist of less than one- third of shares entitled to vote at a meeting. In the absence of such specifications, a majority of shares entitled to vote shall constitute a quorum.
|
|
The articles of incorporation may provide for cumulative voting in the election of directors.
|
The certificate of incorporation may provide for cumulative voting in the election of directors.
|
|
Any two or more domestic corporations may merge into a single corporation if approved by the board of each corporation and if authorized by a majority vote of the holders of outstanding shares of each corporation at a shareholder meeting.
|
Any two or more corporations existing under the laws of the state may merge into a single corporation pursuant to a board resolution and upon the majority vote by shareholders of each constituent corporation at an annual or special meeting.
|
|
Any sale, lease, exchange or other disposition of all or substantially all the assets of a corporation, if not made in the corporation's usual or regular course of business, once approved by the board, shall be authorized by the affirmative vote of two-thirds of the shares of those entitled to vote at a shareholder meeting.
|
Every corporation may at any meeting of the board sell, lease or exchange all or substantially all of its property and assets as its board deems expedient and for the best interests of the corporation when so authorized by a resolution adopted by the holders of a majority of the outstanding stock of the corporation entitled to vote.
|
|
Any domestic corporation owning at least 90% of the outstanding shares of each class of another domestic corporation may merge such other corporation into itself without the authorization of the shareholders of any corporation.
|
Unless otherwise stated in the certificate of incorporation, any corporation owning at least 90% of the outstanding shares of each class of another corporation may merge the other corporation into itself and assume all of its obligations without the vote or consent of shareholders; however, in case the parent corporation is not the surviving corporation, the Merger shall be approved by a majority of the outstanding stock of the parent corporation entitled to vote at a duly called shareholder meeting.
|
|
Any mortgage, pledge of or creation of a security interest in all or any part of the corporate property may be authorized without the vote or consent of the shareholders, unless otherwise provided for in the articles of incorporation.
|
Any mortgage or pledge of a corporation's property and assets may be authorized without the vote or consent of shareholders, except to the extent that the certificate of incorporation otherwise provides.
|
|
Directors
|
||
The Board must consist of at least one member.
|
The Board must consist of at least one member.
|
|
The number of board members may be changed by an amendment to the bylaws, by the shareholders, or by action of the board under the specific provisions of a bylaw.
|
The number of board members shall be fixed by, or in a manner provided by, the bylaws, unless the certificate of incorporation fixes the number of directors, in which case a change in the number shall be made only by an amendment to the certificate of incorporation.
|
|
If the board is authorized to change the number of directors, it can only do so by a majority of the entire board and so long as no decrease in the number shall shorten the term of any incumbent director.
|
||
Removal:
|
Removal:
|
|
Any or all of the directors may be removed for cause by vote of the shareholders.
|
Any or all of the directors may be removed, with or without cause, by the holders of a majority of the shares entitled to vote subject to certain exceptions.
|
|
If the articles of incorporation or the bylaws so provide, any or all of the directors may be removed without cause by vote of the shareholders.
|
In the case of a classified board, shareholders may effect removal of any or all directors only for cause.
|
|
1) |
it is organized in a "qualified foreign country" which is one that grants an "equivalent exemption" from tax to corporations organized in the United States in respect of each category of shipping income for which exemption is being claimed under Section 883; and
|
2) |
one of the following tests is met:
|
A) |
more than 50% of the value of its shares is beneficially owned, directly or indirectly, by "qualified shareholders," which as defined includes individuals who are "residents" of a qualified foreign country, to which we refer as the "50% Ownership Test"; or
|
B) |
its shares are "primarily and regularly traded on an established securities market" in a qualified foreign country or in the United States, to which we refer as the "Publicly
‑
Traded Test."
|
· |
we have, or are considered to have, a fixed place of business in the United States involved in the earning of United States source shipping income; and
|
· |
substantially all of our United States source shipping income is attributable to regularly scheduled transportation, such as the operation of a vessel that follows a published schedule with repeated sailings at regular intervals between the same points for voyages that begin or end in the United States.
|
|
(1)
|
at least 75% of our gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or
|
(2)
|
at least 50% of the average value of our assets during such taxable year produce, or are held for the production of, passive income.
|
|
(1)
|
the excess distribution or gain would be allocated ratably over the Non-Electing Holder's aggregate holding period for the Exchange Shares;
|
|
(2)
|
the amount allocated to the current taxable year, and any taxable year prior to the first taxable year in which we were a PFIC, would be taxed as ordinary income and would not be "qualified dividend income"; and
|
(3)
|
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed tax deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
(1)
|
the gain is effectively connected with the Non-U.S. Holder's conduct of a trade or business in the United States; in general, in the case of a Non-U.S. Holder entitled to the benefits of an applicable U.S. income tax treaty with respect to that gain, that gain is taxable only if it is attributable to a permanent establishment maintained by the Non-U.S. Holder in the United States; or
|
|
(2)
|
the Non-U.S. Holder is an individual who is present in the United States for 183 days or more during the taxable year of disposition and other conditions are met.
|
|
(1)
|
fails to provide an accurate taxpayer identification number;
|
|
(2)
|
is notified by the IRS that it has have failed to report all interest or dividends required to be shown on its U.S. federal income tax returns; or
|
|
(3)
|
in certain circumstances, fails to comply with applicable certification requirements.
|
|
Page
|
||
Report of Independent Registered Public Accounting Firm
|
F-2
|
|
Consolidated Balance Sheet as of September 30, 2017
|
F-3
|
|
Consolidated Statement of Comprehensive Income for the period from December 13, 2016 to September 30, 2017
|
F-4
|
|
Consolidated Statement of Shareholders' Equity for the period from December 13, 2016 to September 30, 2017
|
F-5
|
|
Consolidated Statement of Cash Flows for the period from December 13, 2016 to September 30, 2017
|
F-6
|
|
Notes to Consolidated Financial Statements
|
F-7
|
CASTOR MARITIME INC.
|
CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 2017
|
(Expressed in U.S. Dollars – except for share data)
|
The accompanying notes are an integral part of these consolidated financial statements.
|
CASTOR MARITIME INC.
|
|
CONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME
|
|
FOR THE PERIOD FROM DECEMBER 13, 2016 TO SEPTEMBER 30, 2017
|
|
(Expressed in U.S. Dollars-except for share data)
|
REVENUES:
|
||||
Revenues (net of address commissions of $74,271) (Note 7)
|
$
|
2,018,061
|
||
Total revenues
|
2,018,061
|
|||
EXPENSES:
|
||||
Voyage expenses (Note 11)
|
80,853
|
|||
Vessel operating expenses (Note 11)
|
1,194,995
|
|||
Management fees to related party (Note 3)
|
55,500
|
|||
Depreciation (Note 5)
|
182,346
|
|||
General and administrative expenses (Note 12)
|
94,440
|
|||
Total Expenses
|
1,608,134
|
|||
Operating income
|
409,927
|
|||
OTHER INCOME (EXPENSES):
|
||||
Bank charges
|
(532
|
)
|
||
Gain on derivative financial instruments (Note 7)
|
475,530
|
|||
Foreign exchange losses
|
(7,021
|
)
|
||
Other, net
|
740
|
|||
Total other income, net
|
468,717
|
|||
Net income and comprehensive income
|
$
|
878,644
|
||
Earnings per common share, basic and diluted (Note 10)
|
$
|
0.35
|
||
Weighted average number of common shares, basic and diluted
|
2,400,000
|
CASTOR MARITIME INC.
|
|
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
|
|
FOR THE PERIOD FROM DECEMBER 13, 2016 TO SEPTEMBER 30, 2017
|
|
(Expressed in U.S. Dollars – except for share data)
|
Number of Shares issued
|
||||||||||||||||||||||||||||
Common shares
|
Preferred A shares
|
Preferred B shares
|
Par Value of Shares issued
|
Additional Paid-in capital
|
Retained earnings
|
Total Shareholders' Equity
|
||||||||||||||||||||||
Balance, December 13, 2016 (Note 6)
|
-
|
-
|
-
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
-
|
|||||||||||||||||
-Issuance of common shares as part of exchange and shareholders' contribution
|
2,400,000
|
-
|
-
|
2,400
|
7,612,108
|
-
|
7,614,508
|
|||||||||||||||||||||
-Issuance of preferred shares as part of exchange
|
-
|
480,000
|
12,000
|
492
|
2,740,000
|
-
|
2,740,492
|
|||||||||||||||||||||
-Deemed contribution of preferred shares as part of exchange
|
-
|
-
|
-
|
-
|
(2,740,000
|
)
|
-
|
(2,740,000
|
)
|
|||||||||||||||||||
-Net income
|
-
|
-
|
-
|
-
|
-
|
878,644
|
878,644
|
|||||||||||||||||||||
Balance, September 30, 2017
|
2,400,000
|
480,000
|
12,000
|
$
|
2,892
|
$
|
7,612,108
|
$
|
878,644
|
$
|
8,493,644
|
The accompanying notes are an integral part of these consolidated financial statements
|
CASTOR MARITIME INC.
|
|
CONSOLIDATED STATEMENT OF CASH FLOWS
|
|
FOR THE PERIOD FROM DECEMBER 13, 2016 TO SEPTEMBER 30, 2017
|
|
(Expressed in U.S. Dollars)
|
Cash Flows from Operating Activities:
|
||||
Net income
|
$
|
878,644
|
||
Adjustments to reconcile net income to net cash
|
||||
provided by operating activities:
|
||||
Depreciation
|
182,346
|
|||
Changes in operating assets and liabilities:
|
||||
Accounts receivable trade
|
(342,605
|
)
|
||
Inventories
|
(46,586
|
)
|
||
Due from related company
|
(96,264
|
)
|
||
Prepayments and other
|
(29,060
|
)
|
||
Accounts payable
|
105,104
|
|||
Accrued liabilities
|
119,170
|
|||
Net Cash provided by Operating Activities
|
$
|
770,749
|
||
Cash Flows used in Investing Activities:
|
||||
Purchase of vessel
|
(7,549,281
|
)
|
||
Net cash used in Investing Activities
|
$
|
(7,549,281
|
)
|
|
Cash Flows provided by Financing Activities:
|
||||
Shareholders' contribution
|
7,615,000
|
|||
Net cash provided by Financing Activities
|
$
|
7,615,000
|
||
Net increase in cash and cash equivalents
|
836,468
|
|||
Cash and cash equivalents at December 13, 2016
|
-
|
|||
Cash and cash equivalents at September 30, 2017
|
$
|
836,468
|
||
Supplemental cash flow information:
Non cash Financing Activities
Deemed contribution relating to issuance of preferred shares
|
$ | 2,740,000 |
1. |
Basis of Presentation:
|
2. |
Significant
Accounting Policies:
|
(a) |
Principles of consolidation:
The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("U.S. GAAP") and include all accounts of the Company. All intercompany balances and transactions have been eliminated upon consolidation. The Company's fiscal year end is September 30.
|
(b) |
Use of estimates:
The preparation of the financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Significant estimates include vessel valuations, the valuation of amounts due from charterers, residual value and useful life of vessel. Actual results may differ from these estimates.
|
(c) |
Other comprehensive income:
The Company follows the accounting guidance relating to comprehensive income, which requires separate presentation of certain transactions that are recorded directly as components of shareholders' equity. The Company has no other comprehensive income (loss) items and, accordingly, comprehensive income equals net income for the period presented.
|
(d) |
Foreign currency translation:
The Company's reporting and functional currency is the U.S. Dollar. Transactions incurred in other currencies are translated into USD using the exchange rates in effect at the time of the transaction. On the balance sheet date, monetary assets and liabilities that are denominated in other currencies are translated into USD to reflect the end-of-period exchange rates.
|
(e) |
Cash and cash equivalents:
The Company considers highly liquid investments such as time deposits and certificates of deposit with an original maturity of three months or less to be cash equivalents.
|
2. |
Significant Accounting Policies-continued
|
(f) |
Accounts receivable trade:
Accounts receivable trade reflect receivables from vessel charters. At each balance sheet date, all potentially uncollectible accounts are assessed individually for purposes of determining the appropriate provision for doubtful accounts. Provision for doubtful accounts for the period presented was zero.
|
(g) |
Inventories:
Inventories consist of lubricants and provisions on board the vessels. Inventories are stated at the lower of cost or market. Cost is determined by the first in, first out method.
|
(h) |
Vessel, net:
Vessel, net is stated at cost net of accumulated depreciation. The cost of vessel consists of the contract price plus any direct expenses incurred upon acquisition, including improvements, delivery expenses and other expenditures to prepare the vessel for her initial voyage. Subsequent expenditures for conversions and major improvements are also capitalized when they appreciably extend the life, increase the earning capacity or improve the efficiency or safety of the vessel. Repairs and maintenance are expensed as incurred.
|
(i) |
Impairment of long‑lived assets:
The Company reviews its vessel for impairment whenever events or changes in circumstances indicate that the carrying amount of the vessel may not be recoverable. When the estimate of future undiscounted cash flows expected to be generated by the use of the vessel is less than her carrying amount, the Company evaluates the vessel for an impairment loss. Measurement of the impairment loss is based on the fair value of the vessel. In this respect, management regularly reviews the carrying amount of the vessel in connection with her estimated recoverable amount. There were no indications that the carrying value of the vessel is not recoverable as of September 30, 2017.
|
(j) |
Vessel depreciation:
Depreciation is computed using the straight‑line method over the estimated useful life of the vessel, after considering the estimated salvage value. The vessel's salvage value is equal to the product of her lightweight tonnage and estimated scrap rate. Management estimates the useful life of the vessel to be 25 years from the date of initial delivery from the shipyard and as a second-hand vessel is depreciated from the date of her acquisition through her remaining estimated useful life.
|
(k) |
Revenue and expense recognition:
The Company generates its revenues from charterers for the charterhire of its vessel. Vessel is chartered using either voyage charters, where a contract is made in the spot market for the use of a vessel for a specific voyage for a specified charter rate, or time charters, where a contract is entered into for the use of a vessel for a specific period of time and a specified daily charterhire rate over the daily charterhire rate, if applicable. If a charter agreement exists and collection of the related revenue is reasonably assured, revenue is recognized, as it is earned ratably over the duration of the period of each voyage or time charter.
Revenue is shown net of address commissions payable directly to charterers under the relevant charter agreements. Address commissions represent discount (sales incentive) on services rendered by the Company and no identifiable benefit is received in exchange for the consideration provided to the charterer. A voyage is deemed to commence upon the completion of discharge of the vessel's previous cargo and the vessel's sail to the next fixed loading port and is deemed to end upon the completion of discharge of the current cargo. Demurrage income represents payments by the charterer to the vessel owner when loading or discharging time exceeded the stipulated time in the voyage charter and is recognized as it is earned. Deferred revenue includes cash received prior to the balance sheet date and is related to revenue earned after such date.
|
2. |
Significant Accounting Policies-continued
|
(l) |
Derivative instruments:
The Company is exposed to changes in the spot market rates associated with the deployment of its vessel and its objective is to manage the impact of such changes in its cash flows. In this respect, from time to time, the Company may engage in certain forward freight agreements. When such derivatives do not qualify for hedge accounting the Company records these financial instruments in the consolidated balance sheet at their fair value as either a derivative asset or a liability, and recognizes the fair value changes thereto in earnings. When the derivatives do qualify for hedge accounting, depending upon the nature of the hedge, changes in fair value of the derivatives are either offset against the fair value of assets and liabilities through earnings, or recognized in other comprehensive income/(loss) (effective portion) until the hedged item is recognized in earnings. As of September 30, 2017, there were no open derivative instruments.
|
(m) |
Fair
value measurements:
The Company follows the provisions of ASC 820, "Fair Value Measurements and Disclosures" which defines, and provides guidance as to the measurement of fair value. ASC 820 creates a hierarchy of measurement and indicates that, when possible, fair value is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. The fair value hierarchy gives the highest priority (Level 1) to quoted prices in active markets and the lowest priority (Level 3) to unobservable data, for example, the reporting entity's own data. Under the standard, fair value measurements are separately disclosed by level within the fair value hierarchy. ASC 820 applies when assets or liabilities in the financial statements are to be measured at fair value, but does not require additional use of fair value beyond the requirements in other accounting principles.
|
(n) |
Earnings per common share:
Basic earnings per common share are computed by dividing net income available to common stockholders by the weighted average number of common shares outstanding during the period. Dividends on cumulative redeemable perpetual preferred shares reduce the income available to common shareholders, (whether or not earned). Diluted earnings per common share, reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised.
|
(o) |
Commitments and contingencies:
Liabilities for loss contingencies, arising from claims, assessments, litigation, fines and penalties, environmental and remediation obligations and other sources are recorded when it is probable that a liability has been incurred and the amount of the loss can be reasonably estimated.
|
(p) |
Recent Accounting Pronouncements:
|
i. |
In May 2014, the FASB issued ASU No. 2014-09, "Revenue from Contracts with Customers" ("ASU 2014-09"), which supersedes nearly all existing revenue recognition guidance under U.S. GAAP. The core principle is that a company should recognize revenue when promised goods or services are transferred to customers in an amount that reflects the consideration to which an entity expects to be entitled for those goods or services. ASU 2014-09 defines a five-step process to achieve this core principle and, in doing so, more judgment and estimates may be required within the revenue recognition process than are required under existing U.S. GAAP. Subsequent to the issuance of ASU 2014-09, the FASB issued the following ASU's which amend or provide additional guidance on topics addressed in ASU 2014-09. In March 2016, the FASB issued ASU No. 2016-08, "Revenue Recognition - Principal versus Agent" (reporting revenue gross versus net). In April 2016, the FASB issued ASU No. 2016-10, "Revenue Recognition - Identifying Performance Obligations and Licenses." Lastly, in May 2016, the FASB issued No. ASU 2016-12, "Revenue Recognition - Narrow Scope Improvements and Practical Expedients".
In August 2015, the FASB issued ASU No. 2015-14, which deferred the effective date of ASU No. 2014-09 by one year applying for annual reporting periods beginning after December 15, 2017 for public entities and after December 15, 2018 for all other entities.
The standard shall be applied either retrospectively to each period presented or as a cumulative effect adjustment as of the date of adoption. Early adoption of the standard, but not before December 15, 2016 is permitted. The Company believes that the adoption of this update will not have a material impact on its financial statements.
|
2. |
Significant Accounting Policies-continued
|
ii. |
In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows: Classification of Certain Cash Receipts and Cash Payments. This Update addresses eight specific cash flow issues with the objective of reducing the existing diversity in practice. The amendments in this Update are effective for public business entities for fiscal years beginning after December 15, 2017, and interim periods within those fiscal years. For all other entities, the amendments are effective for fiscal years beginning after December 15, 2018, and interim periods within fiscal years beginning after December 15, 2019. Early adoption is permitted. The Company believes that the implementation of this update will not have any material impact on its financial statements.
|
iii. |
In July 2017, the FASB issued ASU 2017-11—Earnings Per Share (Topic 260); Distinguishing Liabilities from Equity (Topic 480); Derivatives and Hedging (Topic 815): (Part I) Accounting for Certain Financial Instruments with Down Round Features, (Part II) Replacement of the Indefinite Deferral for Mandatorily Redeemable Financial Instruments of Certain Nonpublic Entities and Certain Mandatorily Redeemable Noncontrolling Interests with a Scope Exception. The amendments in Part I of ASU 2017-11 change the classification analysis of certain equity-linked financial instruments (or embedded features) with down round features and also clarify existing disclosure requirements for equity-classified instruments. The amendments in Part II of ASU 2017-11 recharacterize the indefinite deferral of certain provisions of Topic 480, currently presented as pending content in the Codification, to a scope exception.
|
iv. |
In September 2017, the FASB issued ASU 2017-12, Derivatives and hedging (topic 815): targeted improvements to accounting for hedging activities to amend its hedge accounting model to enable entities to better portray the economics of their risk management activities in the financial statements. The amendments expand an entity's ability to hedge nonfinancial and financial risk components and reduce complexity in fair value hedges of interest rate risk. The guidance eliminates the requirement to separately measure and report hedge ineffectiveness and generally requires the entire change in the fair value of a hedging instrument to be presented in the same income statement line as the hedged item. The guidance also eases certain documentation and assessment requirements and modifies the accounting for components excluded from the assessment of hedge effectiveness. The amendments in this Update apply to any entity that elects to apply hedge accounting in accordance with current GAAP.
|
(q) |
Emerging Growth Company:
The Company is an "emerging growth company," as defined in the Jumpstart Our Business Startups Act, or JOBS Act. and it may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, and reduced disclosure obligations. Further, the JOBS Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies (that is, those that have not had a Securities Act registration statement declared effective or do not have a class of securities registered under the Exchange Act) are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition period and comply with the requirements that apply to non-emerging growth companies but any such election to opt out is irrevocable.
|
2. |
Significant Accounting Policies-continued
|
3. |
Transactions with Related Party:
|
4. |
Inventories:
|
5. |
Vessel:
|
6. |
Shareholders' Equity:
|
6. |
Shareholders' Equity-continued
|
(1) |
There are no issuance costs.
|
7. |
Financial Instruments and Fair Value Disclosures:
|
7. |
Financial Instruments and Fair Value disclosures-continued
|
Charterer
|
% of Company's revenue
|
||
A
|
81%
|
||
B
|
16%
|
8. |
Commitments and contingencies:
|
9. |
Income Taxes:
|
10. |
Earnings Per Share:
|
Net income and comprehensive income
|
$
|
878,644
|
||
Less: Cumulative dividend on preferred shares
|
(29,250
|
)
|
||
Net income and comprehensive income available to common shareholders
|
$
|
849,394
|
||
Weighted average number of common shares outstanding, basic and diluted
|
2,400,000
|
|||
Earnings per common share, basic and diluted
|
$
|
0.35
|
11. |
Vessel Operating and Voyage Expenses:
|
Vessel Operating Expenses
|
For the period from December 13, 2016 to September 30, 2017
|
|||
Crew and related costs
|
$
|
609,549
|
||
Repairs & maintenance, spares, stores, classification, chemicals & gases, paints
|
323,322
|
|||
Lubricants
|
104,410
|
|||
Insurance premium
|
75,321
|
|||
Tonnage taxes
|
33,429
|
|||
Other
|
48,964
|
|||
Total
|
$
|
1,194,995
|
Voyage expenses
|
For the period from December 13, 2016 to September 30, 2017
|
|||
Brokerage commissions
|
$
|
51,735
|
||
Port & other expenses
|
29,118
|
|||
Total
|
$
|
80,853
|
12. |
General and Administrative Expenses:
|
13. |
Subsequent Events:
|
(a) |
Drydocking:
In October 2017 and following the completion of the vessel's latest charter, she entered a shipyard to undertake her regular scheduled dry-dock. A vessel is generally required to be drydocked approximately every 30 to 60 months for carrying out works that cannot be performed while the vessel is in the water at sea and to comply with her classification society requirements.
|
(b) |
Adoption of a shareholder rights plan:
On November 21, 2017, the Company declared a dividend of one preferred share purchase right for each outstanding common share and adopted a shareholder rights plan.
|
1. |
Any person who is or was a Director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another, partnership, joint venture, trust or other enterprise shall be entitled to be indemnified by the Corporation upon the same terms, under the same conditions, and to the same extent as authorized by Section 60 of the BCA, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The Corporation shall have the power to pay in advance expenses a director or officer incurred while defending a civil or criminal proceeding, provided that the director or officer will repay the amount if it shall ultimately be determined that he or she is not entitled to indemnification under this section. Any repeal or modification of this Article VIII shall not adversely affect any rights to indemnification and to the advancement of expenses of a Director or officer of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
|
2. |
The Corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a Director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer against any liability asserted against such person and incurred by such person in such capacity whether or not the Corporation would have the power to indemnify such person against such liability by law or under the provisions of these Bylaws.
|
1. |
Actions not by or in right of the corporation.
A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of no contest, or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the bests interests of the corporation, and, with respect to any criminal action or proceedings, had reasonable cause to believe that his conduct was unlawful.
|
2. |
Actions by or in right of the corporation.
A corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him or in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claims, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
|
3. |
When director or officer successful.
To the extent that a director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (1) or (2) of this section, or in the defense of a claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith.
|
4. |
Payment of expenses in advance.
Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid in advance of the final disposition of such action, suit or proceeding as authorized by the Board in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this section.
|
5. |
Indemnification pursuant to other rights.
The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.
|
6. |
Continuation of indemnification.
The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
|
7. |
Insurance.
A corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director or officer against any liability asserted against him and incurred by him in such capacity whether or not the corporation would have the power to indemnify him against such liability under the provisions of this section.
|
CASTOR MARITIME INC.
|
|||
By:
|
/s/ Petros Panagiotidis | ||
Name:
|
Petros Panagiotidis
|
||
Title:
|
Chairman, Chief Executive Officer and Chief Financial Officer
|
||
Signature
|
Title
|
|
/s/ Petros Panagiotidis |
Chairman, Chief Executive Officer and Chief Financial Officer
|
|
Petros Panagiotidis
|
(Principal Executive Officer, Principal Financial
|
|
Officer
and Principal Accounting Officer)
|
||
/s/ Dionysios Makris |
Secretary and Director
|
|
Dionysios Makris
|
||
/s/ Georgios Daskalakis |
Director
|
|
Georgios Daskalakis
|
||
PUGLISI & ASSOCIATES
|
|||
By:
|
/s/ Donald J. Puglisi | ||
Name:
|
Donald J. Puglisi
|
||
Title:
|
Managing Director
|
||
Number
|
Description
|
3.1
|
|
3.2
|
|
3.3
|
|
3.4
|
|
3.5
|
|
4.1
|
|
5.1
|
|
8.1
|
|
10.1
|
|
10.2
|
|
10.3 | |
|
|
10.4 | |
10.5 | Fixture Slip for Time Charter, dated as of January 24, 2018, by and between Spetses Shipping Co., and Mitsui O.S.K. Line |
21.1
|
|
23.1 | Consent of Registered Public Accounting Firm |
24.1
|
|
99.1
|
|
|
Given under my hand and seal on
|
|
September 11, 2017.
|
||
/s/Deputy Registrar of Corporations | ||
Deputy Registrar of Corporations
|
||
September 11, 2017
|
||
/s/ Deputy Registrar | ||
Deputy Registrar
|
||
Name:
|
Address
|
||
Majuro Nominees Ltd.
|
P.O. Box 1405
Majuro Marshall Islands |
(a) |
one billion nine hundred and fifty million (1,950,000,000) shall be designated common shares with a par value of U.S. $0.001 per share; and
|
(b) |
fifty million (50,000,000) shall be designated preferred shares with a par value of U.S.$0.001 per share. The Board of Directors of the Corporation (the "Board") shall have the authority to authorize the issuance from time to time of one or more classes of preferred shares with one or more series within any class thereof, with such voting powers, full or limited, or without voting powers and with such designations, preferences and relative, participating, optional or special rights and qualifications, limitations or restrictions thereon as shall be set forth in the resolution or resolutions adopted by the Board providing for the issuance of such preferred shares.
|
(b) |
At any time that the Board is comprised of at least three members, the Board shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the entire Board permits, with the term of office of one or another of the three classes expiring each year. As soon as practicable after the Board is comprised of three or more members, the Board shall be divided into three classes, with the term of office of the first class to expire at the first annual meeting of shareholders held after the Board is comprised of three or more members, the term of office of the second class to expire at the second annual meeting of shareholders held after the Board is comprised of three or more members and the term of office of the third class to expire at the third annual meeting of shareholders held after the Board is comprised of three or more members. Commencing with the first annual meeting of shareholders, the directors elected at an annual meeting of shareholders to succeed those whose terms then expire shall be identified as being directors of the same class, if any, as the directors whom they succeed, and each of them shall hold office until the next annual meeting of shareholders (assuming the Board is not classified) or the third succeeding annual meeting of shareholders if the Board is then classified, and until such director's successor is elected and has qualified. Any vacancies in the Board for any reason, and any created directorships resulting from any increase in the number of directors, may be filled by the vote of not less than a majority of the members of the Board then in office, although less than a quorum, and any directors so chosen shall hold office until the next election of the class for which such directors shall have been chosen and until their successors shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director.
|
(c) |
Notwithstanding any other provisions of these Articles of Incorporation or the bylaws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, these Articles of Incorporation or the bylaws of the Corporation), any director or the entire Board may be removed at any time, (i) for cause by the affirmative vote of a majority of votes cast at a meeting of shareholders by the holders of shares entitled to vote thereon (considered for this purpose as one class) or by the affirmative vote of a majority of the members of the Board or (ii) without cause only by the affirmative vote of a majority of votes cast at a meeting of shareholders by the holders of shares entitled to vote thereon (considered for this purpose
|
(d) |
Directors shall be elected by a plurality of the votes cast at a meeting of shareholders by the holders of shares entitled to vote in the election. Cumulative voting, as defined in Division 7, Section 71(2) of the BCA, shall not be used to elect directors.
|
(e) |
Notwithstanding any other provisions of these Articles of Incorporation or the bylaws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, these Articles of Incorporation or the bylaws of the Corporation), the affirmative vote of two-thirds or more of the total number of votes eligible to be cast by the holders of issued and outstanding shares of common stock of the Corporation entitled to vote in the election of directors (considered for this purpose as one class) shall be required to amend, alter, change or repeal this Section 4.1.
|
(1) |
prior to such time, the Board approved either the Business Combination or the transaction which resulted in the shareholder becoming an Interested Shareholder;
|
(2) |
upon consummation of the transaction which resulted in the shareholder becoming an Interested Shareholder, the Interested Shareholder owned at least 85% of the Voting Stock of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
|
(3) |
at or subsequent to such time, the Business Combination is approved by the Board and authorized at an annual or special meeting of shareholders, and not by written consent, by the affirmative vote of the holders of at least two-thirds of the outstanding Voting Stock that is not owned by the Interested Shareholder; or
|
(4) |
the shareholder became an Interested Shareholder prior to the date hereof.
|
(b) |
The restrictions contained in this Article V shall not apply if:
|
(1) |
A shareholder becomes an Interested Shareholder inadvertently and (i) as soon as practicable divests itself of ownership of sufficient shares so that the shareholder ceases to be an Interested Shareholder; and (ii) would not, at any time within the three-year period immediately prior to a Business Combination between the Corporation and such shareholder, have been an Interested Shareholder but for the inadvertent acquisition of ownership; or
|
(2) |
The Business Combination is proposed prior to the consummation or abandonment of and subsequent to the earlier of the public announcement or the notice required hereunder of a proposed transaction which (i) constitutes one of the transactions described in the following sentence; (ii) is with or by a person who either was not an Interested Shareholder during the previous three years or who became an Interested Shareholder with the approval of the Board; and (iii) is approved or not opposed by a majority of the members of the Board then in office (but not less than one) who were directors prior to any person becoming an Interested Shareholder during the
|
(A) |
a merger or consolidation of the Corporation (except for a merger in respect of which, pursuant to the BCA, no vote of the shareholders of the Corporation is required);
|
(B) |
a sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation (other than to any direct or indirect wholly-owned subsidiary or to the Corporation) having an aggregate market value equal to 50% or more of either that aggregate market value of all of the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding shares; or
|
(C) |
a proposed tender or exchange offer for 50% or more of the outstanding voting shares of the Corporation.
|
(c) |
For the purpose of this Article V only, the term:
|
(1) |
"Affiliate" means a person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, another person.
|
(2) |
"Associate", when used to indicate a relationship with any person, means: (i) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 15% or more of any class of voting shares; (ii) any trust or other estate in which such person has at least a 15% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.
|
(3) |
"Business Combination", when used in reference to the Corporation and any Interested Shareholder of the Corporation, means:
|
(i) |
Any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation with (A) the Interested Shareholder or any of its affiliates, or (B) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the Interested Shareholder;
|
(ii) |
Any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a shareholder of the Corporation, to or with the Interested Shareholder, whether as part of a dissolution or otherwise, of assets of the Corporation o4 of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding shares;
|
(iii) |
Any transaction which results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any shares, or any share of such subsidiary, to the Interested Shareholder, except: (A) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into shares, or shares of any such subsidiary, which securities were outstanding prior to the time that the Interested Shareholder became such; (B) pursuant to a merger with a direct or indirect wholly-owned subsidiary of the Corporation solely for purposes of forming a holding company; (C) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into shares, or shares of any such subsidiary, which security is distributed, pro rata to all holders of a class or series of shares subsequent to the time the Interested Shareholder became such; (D) pursuant to an exchange offer by the Corporation to purchase shares
|
(iv) |
Any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect, directly or indirectly, of increasing the proportionate share of any class or series of shares, or securities convertible into any class or series of shares, or shares of any such subsidiary, or securities convertible into I such shares, which is owned by the Interested Shareholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares not caused, directly or indirectly, by the Interested Shareholder; or
|
(v) |
Any receipt by the Interested Shareholder of the benefit, directly or indirectly (except proportionately as a shareholder of the Corporation), of any loans, advances, guarantees, pledges or other financial benefits (other than those expressly permitted in subparagraphs (i)-(iv) of this paragraph) provided by or through the Corporation or any direct or indirect majority-owned subsidiary.
|
(4) |
"Control", including the terms "controlling", "controlled by" and "under common control with", means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting shares, by contract or otherwise. A person who is the owner of 15% or more of the outstanding voting shares of any corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting shares, in good faith and not for the purpose of circumventing this provision, as an agent, bank,
|
(5) |
"Interested Shareholder" means any person (other than the Corporation and any direct or indirect majority-owned subsidiary of the Corporation) that (i) is the owner of 15% or more of the outstanding voting shares of the Corporation, or (ii) is an affiliate or associate of the Corporation and was the owner of 15% or more of the outstanding Voting Stock of the Corporation at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such person is an Interested Shareholder; and the affiliates and associates of such person; provided, however, that the term "Interested Shareholder" shall not ir elude any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of action taken solely by the Corporation; provided that such person shall be an Interested Shareholder if thereafter such person acquires additional shares of voting shares of the Corporation, except as a result of further Corporation action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an Interested Shareholder, the voting shares of the Corporation deemed to be outstanding shall include voting shares deemed to be owned by the person through application of paragraph (8) below, but shall not include any other unissued shares which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
|
(6) |
"Person" means any individual, corporation, partnership, unincorporated association or other entity.
|
(7) |
"Voting Stock" means, with respect to any corporation, shares of any class or series entitled to vote in the election of directors and, with respect to any entity that is not a corporation, any equity interest entitled to vote in the election of the governing body of such entity.
|
(8) |
"Owner", including the terms "own" and "owned", when used with respect to any shares, means a person that individually or with or through any of its affiliates or associates:
|
(i) |
Beneficially owns such shares, directly or indirectly; or
|
(ii) |
Has (A) the right to acquire such shares (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of shares tendered pursuant to a tender or exchange offer made by such person or any of such person's affiliates or associates until such tendered shares is accepted for purchase or exchange; or (B) the right to vote such shares pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any shares because of such person's right to vote such shares if the agreement, arrangement or understanding to vote such shares arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to 10 or more persons; or
|
(iii) |
Has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (B) of subparagraph (ii) of this paragraph), or disposing of such shares with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such shares.
|
(d) |
Notwithstanding any other provisions of these Articles of Incorporation or the bylaws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, these Articles of Incorporation or the bylaws of the Corporation), the affirmative vote of two-thirds or more of the total number of votes eligible to be cast by the holders of issued and outstanding shares of common stock of the Corporation entitled to vote in the election of directors (considered for this purpose as one class) shall be required to amend, alter, change or repeal this Article V.
|
by:
|
/s/
Cheyenna Gaughf
|
|
Cheyenna Gaughf, Authorized Signatory
|
||
Majuro Nominees Ltd., Incorporator
|
||
|
/s/ Denise M. Francis
|
|
Denise M. Francis, Special Agent
|
||
WITNESS my hand and the official seal of the Registry on September 11, 2017.
|
||
/s/ Deputy Registrar | ||
|
Deputy Registrar
|
|
|
REPUBLIC OF THE MARSHALL ISLANDS
|
||
REGISTRAR OF CORPORATIONS
|
||
DUPLICATE COPY
|
||
NON RESIDENT
|
||
The original of this Document was
|
||
FILED ON
|
||
September 22, 2017
|
||
|
||
/s/ Deputy Registrar | ||
Deputy Registrar
|
||
(a) |
Number.
The authorized number of shares of Series A Preferred Shares shall be four hundred eighty thousand (480,000), subject to increase by filing a statement of designation with respect to such additional shares. Shares of Series A Preferred Shares that are repurchased or otherwise acquired by the Company shall be cancelled and shall revert to authorized but unissued Preferred Stock, undesignated as to series.
|
(a) |
Dividends.
Dividends on each share of Series A Preferred Shares shall be cumulative and shall accrue at the Dividend Rate from the Original Issue Date (or, for any subsequently issued and newly outstanding stock, from the Dividend Payment Date immediately preceding the issuance date of such stock) until such time as the Company pays the dividend or redeems the stock in full in accordance with Section 6 below, whether or not such dividends shall have been declared, and whether or not there are profits, surplus, or other funds legally available for the payment of dividends. Holders of Series A Preferred Shares shall be entitled to receive dividends from time to time out of any assets of the Company legally available for the payment of dividends at the Dividend Rate per share, when, as, and if declared by the Board of Directors. Dividends, to the extent declared to be paid by the Company in accordance with this Statement of Designation, shall be paid semi-annually on each Dividend Payment Date. Dividends shall accumulate in each Dividend Period from and
|
(b) |
Payment and Priorities of Dividends.
Not later than 5:00 p.m., New York City time, on each Dividend Payment Date, the Company shall pay those dividends, if any, on the Series A Preferred Shares that shall have been declared by the Board of Directors to the Holders of record of such shares as such Holders' names appear on the stock transfer books of the Company maintained by the Registrar and Transfer Agent on the applicable record date (the "
Record Date
"), being the Business Day immediately preceding the applicable Dividend Payment Date, except that in the case of payments of dividends in arrears, the Record Date with respect to a Dividend Payment Date shall be such date as may be designated by the Board of Directors in accordance with the Company's Bylaws and this Statement of Designation. No dividend shall be declared or paid or set apart for payment on any Junior Stock (other than a dividend payable solely in shares of Junior Stock) unless full cumulative dividends have been or contemporaneously are being paid or provided for on all outstanding Series A Preferred Shares for all prior and the then-ending Dividend Periods.
|
(a) |
Liquidation Event.
Upon the occurrence of any Liquidation Event, Holders of Series A Preferred Shares shall be entitled to receive out of the assets of the Company or proceeds thereof legally available for distribution to stockholders of the Company, (i) after satisfaction of all liabilities, if any, to creditors of the Company, (ii) after payment of taxes, costs and expenses that may be payable with respect to the Liquidation Event and (iii) before any distribution of such assets or proceeds is made
|
(b) |
Partial Payment.
In the event that the distribution or payment described in Section 4(a) above where the Company's assets available for distribution to holders of the outstanding Series A Preferred Shares are insufficient to permit payment of all required amounts, the Company's then remaining assets or proceeds thereof legally available for distribution to stockholders of the Company shall be distributed among the Series A Preferred Shares, as applicable, ratably on the basis of their relative aggregate liquidation preferences. To the extent that the Holders of Series A Preferred Shares receive a partial payment of their Liquidation Preference, such partial payment shall reduce the Liquidation Preference of their Series A Preferred Shares, but only to the extent of such amount paid.
|
(c) |
Residual Distributions.
After payment of all required amounts to the Holders of the outstanding Series A Preferred Shares, the Company's remaining assets and funds shall be distributed among the holders of the Common Stock and any other Junior Stock then outstanding according to their respective rights.
|
(a) |
General.
The Series A Preferred Shares shall have no voting rights except as set forth in this Section 5 or as otherwise provided by Marshall Islands law.
|
(b) |
Amendments.
Unless the Company shall have received the affirmative vote or consents of the Holders of at least two thirds of the outstanding Series A Preferred Shares, voting as a single class, the Company may not adopt any amendment to the Articles of Incorporation that adversely alters the preferences, powers or rights of the Series A Preferred Shares
|
(a) |
Redemption Price.
The Company may redeem each share of Series A Preferred Shares at an amount equal to the Liquidation Preference on the Redemption Date, whether or not declared (the "
Redemption Price
")
.
The Redemption Price shall be paid by the Paying Agent to the the Holder on the Redemption Date. The Redemption Price may be paid in cash, Common Stock or a Note as shall be determined in the Company's sole discretion. If paid in Common Stock, the price of the Common Stock will be 90% of the lowest daily volume weighted average price on any trading day during the 5 consecutive trading day period ending and including the trading day immediately prior to the date of the applicable Redemption Date.
|
(b) |
Redemption Notice.
The Company shall give notice of any redemption by mail not less than 30 days and not more than 60 days before the scheduled Redemption Date, to the Holders of record (as of 5:00 p.m. New York City time on the Business Day next preceding the day on which notice is given) of any Series A Preferred Shares to be redeemed as such Holders' names appear on the Company's stock transfer books maintained by the Registrar and Transfer Agent and at the address of such Holders shown therein. Such notice (the "
Redemption Notice
")
shall state: (1) the Redemption Date, (2) the number of Series A Preferred Shares to be redeemed and, if less than all outstanding Series A Preferred Shares are to be redeemed, the number (and the identification) of shares to be redeemed from such Holder, (3) the
|
(c) |
Effect of Redemption; Partial Redemption.
If the Company elects to redeem less than all of the outstanding Series A Preferred Shares, the number of shares to be redeemed shall be determined by the Company, and such shares shall be redeemed pro rata or by lot, with adjustments to avoid redemption of fractional shares. The Company shall give notice, or cause notice to be given, to the Holders of the number of shares of Series A Preferred Shares to be redeemed, and the Company shall determine the number of Series A Preferred Shares to be redeemed from the account of each of its participants holding such shares in its participant account. The aggregate Redemption Price for any such partial redemption of the outstanding Series A Preferred Shares shall be allocated correspondingly among the redeemed Series A Preferred Shares. The Series A Preferred Shares not redeemed shall remain outstanding and subject to all the terms provided in this Statement of Designation (including the Company's right, if it elects so, to redeem all or part of the Series A Preferred Shares outstanding at any relevant time in accordance with this Section 6 (including this paragraph (c))).
|
(d) |
Redemption Funds.
If the Company gives or causes to be given a Redemption Notice, the Company shall deposit with the Paying Agent funds sufficient to redeem the Series A Preferred Shares as to which such Redemption Notice shall have been given, no later than 5:00 p.m. New York City time on the Business Day immediately preceding the Redemption Date, and shall give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders of the Series A Preferred Shares to be redeemed upon surrender or deemed surrender of the certificates therefor. If the Redemption Notice shall have been given, from and after the Redemption Date, unless the Company defaults in providing funds sufficient for such redemption at the time and place specified for payment pursuant to the Redemption Notice, all dividends on such Series A Preferred Shares to be redeemed shall cease to accumulate and all rights of Holders of such shares as the Company's stockholders shall cease, except the right to receive the Redemption Price, and such shares shall not thereafter be transferred on Company's stock transfer books maintained by the Registrar and Transfer Agent or be deemed to be outstanding for any purpose whatsoever. The Company shall be entitled to receive from the Paying Agent the interest income, if any, earned on such funds deposited with the Paying Agent (to the extent that such interest income is not required to pay the Redemption Price of the Series A Preferred Shares to be redeemed), and the Holders of any shares so redeemed shall have no claim to any such interest income. Any funds deposited with the Paying Agent hereunder by the Company for any reason, including, but not limited to, redemption of Series A Preferred Shares, that remain unclaimed or unpaid after two years after the applicable Redemption Date or other payment date, shall be, to the extent permitted by law, repaid to the Company upon its written request after which repayment the Holders of the Series A Preferred Shares entitled to such redemption or other payment shall have recourse only to the Company. Notwithstanding any Redemption Notice, there shall be no redemption of any Series A Preferred Shares called for redemption until funds sufficient to pay the full Redemption Price of such shares shall have been deposited by the Company with the Paying Agent.
|
(e) |
Certificate.
If only a portion of the Series A Preferred Shares represented by a certificate shall have been called for redemption, upon surrender of the certificate to the Paying Agent, the Paying Agent shall issue to the Holder of such shares a new certificate (or adjust the applicable book-entry account) representing the number of shares of Series A Preferred Shares represented by the surrendered certificate that have not been called for redemption
|
By:
|
/s/ Petros Panagiotidis
|
|
Name:
|
Petros Panagiotidis
|
|
Title:
|
Chief Executive Officer, Chief Financial Officer and Director
|
|
REPUBLIC OF THE MARSHALL ISLANDS
|
||
REGISTRAR OF CORPORATIONS
|
||
DUPLICATE COPY
|
||
NON RESIDENT
|
||
The original of this Document was
|
||
FILED ON
|
||
September 22, 2017
|
||
|
||
/s/ Deputy Registrar | ||
Deputy Registrar
|
||
By:
|
/s/ Petros Panagiotidis
|
|
Name:
|
Petros Panagiotidis
|
|
Title:
|
Chief Executive Officer, Chief Financial Officer and Director
|
|
REPUBLIC OF THE MARSHALL ISLANDS
|
||
REGISTRAR OF CORPORATIONS
|
||
DUPLICATE COPY
|
||
NON RESIDENT
|
||
The original of this Document was
|
||
FILED ON
|
||
November 29, 2017
|
||
|
||
/s/ Deputy Registrar | ||
Deputy Registrar
|
||
/s/ Petros Panagiotidis | ||
Petros Panagiotidis
|
||
President
|
||
/s/ Dionysis Makris | ||
Dionysis Makris
|
||
Secretary
|
||
SEWARD & KISSEL LLP
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
|
||
WRITER'S DIRECT DIAL
|
TELEPHONE: (212) 574-1200
FACSIMILE: (212) 480-8421
WWW.SEWKIS.COM
|
901 K STREET, NW
WASHINGTON, D.C. 20001
TELEPHONE: (202) 737-8833
FACSIMILE: (202) 737-5184
|
April 11, 2018
|
Re:
|
Castor Maritime Inc.
|
Very truly yours,
/s/ Seward & Kissel LLP
|
SEWARD & KISSEL LLP
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
|
||
WRITER'S DIRECT DIAL
|
TELEPHONE: (212) 574-1200
FACSIMILE: (212) 480-8421
WWW.SEWKIS.COM
|
901 K STREET, NW
WASHINGTON, D.C. 20001
TELEPHONE: (202) 737-8833
FACSIMILE: (202) 737-5184
|
April 11, 2018
|
Re:
|
Castor Maritime Inc.
|
Very truly yours,
/s/ Seward & Kissel LLP
|
(a) |
any misrepresentation or breach of any representation or warranty of the Shareholders contained in this Agreement or in any certificate or other instrument delivered by the Shareholders at the Closing;
|
(b) |
any breach of any covenant of the Shareholders contained in this Agreement; and
|
(c) |
any and all actions, suits, demands, assessments or judgments with respect to any claim arising out of or relating to the subject matter of the indemnification.
|
SHAREHOLDERS:
|
||||
CASTOR MARITIME INC.
|
THALASSA INVESTMENT CO. S.A.
|
|||
By:
|
/s/ Petros Panagiotidis
|
By:
|
/s/ Loucas Hadjiyiangou
|
|
Name:
|
Petros Panagiotidis
|
Name:
|
Loucas Hadjiyiangou
|
|
Title:
|
Director, President, CEO
|
Title:
|
Director
|
|
SPETSES SHIPPING CO.
|
UNIVERSE SHIPPING INC
|
|||
By:
|
/s/ Thaleia Kamilieri
|
By:
|
/s/ Savvas Polydorou
|
|
Name:
|
Thaleia Kamilieri
|
Name:
|
Savvas Polydorou
|
|
Title:
|
Director
|
Title:
|
Director
|
|
SIMPLE LIFE CORP
|
||||
By:
|
/s/ Nikole Skoufidou
|
|||
Name:
|
Nikole Skoufidou
|
|||
Title:
|
Director
|
|||
INFINITY SHIPPING INC
|
||||
By:
|
/s/ Areti Charidemou
|
|||
Name:
|
Areti Charidemou
|
|||
Title:
|
Director
|
|||
BALMONT NAVIGATION COMPANY
|
||||
By:
|
/s/ Socrates Ellinas
|
|||
Name:
|
Socrates Ellinas
|
|||
Title:
|
Director
|
|||
MEJEN NAVIGATION CO.
|
||||
By:
|
/s/ Petros Petrou | |||
Name:
|
Petros Petrou | |||
Title:
|
Director
|
|||
MALPAIS SHIPTRADE INC.
|
||||
By:
|
/s/ Dimitrakis Petrou
|
|||
Name:
|
Dimitrakis Petrou
|
|||
Title:
|
Director
|
|||
TANISHA INVESTMENT INC.
|
||||
By:
|
/s/ Georgios Antoniou
|
|||
Name:
|
Georgios Antoniou
|
|||
Title:
|
Director
|
|||
MATTELL CHARTERING LIMITED
|
||||
By:
|
/s/ Antroulla Papathoma
|
|||
Name:
|
Antroulla Papathoma
|
|||
Title:
|
Director
|
Shareholders of
Common Stock |
Number of Common Shares
of the Company issued |
Number of Common Shares
of Spetses exchanged |
Thalassa Investment Co. S.A.
|
1,248,000
|
260
|
Universe Shipping Inc
|
235,200
|
49
|
Simple Life Corp
|
230,400
|
48
|
Infinity Shipping Inc
|
115,200
|
24
|
Balmont Navigation Company
|
115,200
|
24
|
Mejen Navigation Co.
|
115,200
|
24
|
Malpais Shiptrade Inc.
|
115,200
|
24
|
Tanisha Investment Inc.
|
115,200
|
24
|
Mattell Chartering Limited
|
110,400
|
23
|
Holders of Series A Preferred Shares
of the Company |
Number of Series A Preferred Shares
of the Company |
Universe Shipping Inc
|
98,000
|
Simple Life Corp
|
96,000
|
Infinity Shipping Inc
|
48,000
|
Balmont Navigation Company
|
48,000
|
Mejen Navigation Co.
|
48,000
|
Malpais Shiptrade Inc.
|
48,000
|
Tanisha Investment Inc.
|
48,000
|
Mattell Chartering Limited
|
46,000
|
Holders of Series B Preferred Shares
of the Company
|
Number of Series B Preferred Shares
of the Company
|
Thalassa Investment Co. S.A.
|
12,000
|
(i) |
which such Person or any of such Person's Affiliates or Associates beneficially owns, directly or indirectly, for purposes of Section 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation);
|
(ii) |
which such Person or any of such Person's Affiliates or Associates has (A) the right to acquire or direct the acquisition of (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities), or upon the exercise of conversion rights,
exchange rights, rights (other than the Rights), warrants or options, or otherwise;
provided
,
however
, that a Person shall not be deemed pursuant to this subsection (ii)(A) to be the Beneficial Owner of, or to Beneficially Own, (1) securities tendered pursuant to a tender or exchange offer made by or on behalf of such Person or any of such Person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange, or (2) securities which a Person or any of such Person's Affiliates or Associates may be deemed to have the right to acquire pursuant to any merger or other acquisition agreement between the Company and such Person (or one or more of its Affiliates or Associates) if such agreement has been approved by the Board of Directors of the Company prior to there being an Acquiring Person; or (B) the right to vote pursuant to any agreement, arrangement or understanding or otherwise;
provided
,
however
, that a Person shall not be deemed the Beneficial Owner of, or to Beneficially Own, any security under this subsection (ii)(B) if the agreement, arrangement or understanding to vote such security (1) arises solely from a revocable proxy or consent given to such Person in response to a public proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and regulations of the Exchange Act and (2) is not also then reportable on Schedule 13D under the Exchange Act (or any comparable or successor report);
|
(iii) |
which are Beneficially Owned, directly or indirectly, by any other Person (or any Affiliate or Associate thereof) with which such Person or any of such Person's Affiliates or Associates has any agreement, arrangement or understanding, whether or not in writing (other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities) for the purpose of acquiring, holding, voting (except to the extent contemplated by the proviso to subsection (ii)(B) above) or disposing of any securities of the Company;
provided
,
however
, that in no case shall an officer or director of the Company be deemed (x) the Beneficial Owner of any securities beneficially owned by another officer or director of the Company solely by reason of actions undertaken by such persons in their capacity as officers or directors of the Company or (y) the Beneficial Owner of securities held of record by the trustee of any employee benefit plan of the Company or any Subsidiary of the Company for the benefit of any employee of the Company or any Subsidiary of the Company, other than the officer or director, by reason of any influence that such officer or director may have over the voting of the securities held in the plan; or
|
(iv) |
which are beneficially owned, directly or indirectly, by a Counterparty (or any of such Counterparty's Affiliates or Associates) under any Derivatives Contract (without regard to any short or similar position under the same or any other Derivatives Contract) to which such Person or any of such Person's Affiliates or Associates is a Receiving Party (as such terms are defined in the immediately following paragraph);
provided
,
however
, that the number of shares of Common Stock that a Person is deemed to Beneficially Own pursuant to this clause (iv) in connection with a particular Derivatives Contract shall not exceed the number of Notional Common Shares with respect to such Derivatives Contract;
provided
,
further
, that the number of securities beneficially owned by each Counterparty (including its Affiliates and Associates) under a Derivatives Contract shall for purposes of this clause (iv) be deemed to include all securities that are beneficially owned, directly or indirectly, by any other Counterparty (or any of such other Counterparty's Affiliates or Associates) under any Derivatives Contract to which such first Counterparty (or any of such first Counterparty's Affiliates or Associates) is a Receiving Party, with this proviso being applied to successive Counterparties as appropriate.
|
(ii) |
Subject to Section 24 of this Rights Agreement, in the event a Triggering Event shall have occurred, then promptly following such Triggering Event each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have the right to receive for each Right, upon exercise thereof in accordance with the terms of this Rights Agreement and payment of the Exercise Price in effect immediately prior to the occurrence of the Triggering Event, in lieu of a number of one one-thousandth of a Preferred Share, such number of shares of Common Stock of the Company as shall equal the result obtained by multiplying the Exercise Price in effect immediately prior to the occurrence of the Triggering Event by the number of one one-thousandth of a Preferred Share for which a Right was exercisable (or would have been exercisable if the Distribution Date had occurred) immediately prior to the first occurrence of a Triggering Event, and dividing that product by 50% of the Current Per Share Market Price for shares of Common Stock on the date of occurrence of the Triggering Event;
provided
,
however
, that the Exercise Price and the number of shares of Common Stock of the Company so receivable upon exercise of a Right shall be subject to further adjustment as appropriate in accordance with Section 11(e) hereof to reflect any events occurring in respect of the shares of Common Stock of the Company after the occurrence of the Triggering Event. In the event that any Person shall become an Acquiring Person and the Rights shall then be outstanding, the Company shall not take any action which would eliminate or diminish the benefits intended to be afforded by the Rights. From and after the occurrence of such event, any Rights that are or were acquired or Beneficially Owned by any Acquiring Person (or any Associate or Affiliate of such
|
(iii) |
In lieu of issuing shares of Common Stock in accordance with Section 11(a)(ii) hereof, the Company may, if the Company's Board of Directors determines that such action is necessary or appropriate and not contrary to the interest of holders of Rights and, in the event that the number of shares of Common Stock which are authorized by the Company's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights, or if any necessary regulatory approval for such issuance has not been obtained by the Company, the Company shall: (A) determine the excess of (1) the value of the shares of Common Stock issuable upon the exercise of a Right (the "
Current Value
") over (2) the Exercise Price (such excess, the "
Spread
") and (B) with respect to each Right, make adequate provision to substitute for such shares of Common Stock, upon exercise of the Rights, (1) cash, (2) a reduction in the Exercise Price, (3) other equity securities of the Company (including, without limitation, shares or units of shares of any series of preferred stock which the Company's Board of Directors has deemed to have the same value as Common Stock (such shares or units of shares of preferred stock are herein called "
Common Stock Equivalents
")), except to the extent that the Company has not obtained any necessary stockholder or regulatory approval for such issuance, (4) debt securities of the Company, except to the extent that the Company has not obtained any necessary stockholder or regulatory approval for such issuance, (5) other assets or (6) any combination of the foregoing, having an aggregate value equal to the Current Value, where such aggregate value has been determined by the Company's Board of Directors based upon the advice of a nationally recognized investment banking firm selected by the Company's Board of Directors;
provided
,
however
, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Triggering Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the "
Section 11(a)(ii) Trigger Date
"), then the Company shall be obligated to deliver, upon the
|
(i) |
the Company shall consolidate with, or merge with or into, any other Person (other than a wholly-owned Subsidiary of the Company in a transaction the principal purpose of which is to change the state of incorporation of the Company and which complies with Section 11(m) hereof);
|
(ii) |
any Person shall consolidate with the Company, or merge with or into the Company and the Company shall be the continuing or surviving corporation of such consolidation or merger and, in connection with such merger, all or part of the shares of Common Stock shall be changed into or exchanged for stock or other securities of any other person (or the Company); or
|
(iii) |
the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or more transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any other Person or Persons (other than the Company or one or more of its wholly owned Subsidiaries in one or more transactions, each of which individually (and together) complies with Section 11(m) hereof),
|
(i) |
in the case of any transaction described in clause (i) or (ii) of Section 13(a) hereof: (A) the Person that is the issuer of the securities into which the shares of Common Stock are converted in such merger or consolidation, or, if there is more than one such issuer, the issuer the shares of Common Stock of which have the greatest aggregate market value of shares outstanding, or (B) if no securities are so issued, (x) the Person that is the other party to the merger, if such Person survives said merger, or, if there is more than one such Person, the Person the shares of Common Stock of which have the greatest aggregate market value of shares outstanding or (y) if the Person that is the other party to the merger does not survive the merger, the Person that does survive the merger (including the Company if it survives) or (z) the Person resulting from the consolidation; and
|
(ii) |
in the case of any transaction described in clause (iii) of Section 13(a) hereof, the Person that is the party receiving the greatest portion of the assets or earning power transferred pursuant to such transaction or transactions, or, if more than one Person that is a party to such transaction or transactions receives the same portion of the assets or earning power so transferred and each such portion would, were it not for the other equal portions, constitute the greatest portion of the assets or earning power so transferred, or if the Person receiving the greatest portion of the assets or earning power cannot be determined, whichever of such Persons is the issuer of shares of Common Stock having the greatest aggregate market value of shares outstanding;
provided
,
however
, that in any such case described in the foregoing clause (b)(i) or (b)(ii), if the shares of Common Stock of such Person are not at such time or have not been continuously over the preceding 12-month period registered under Section 12 of the Exchange Act, then (1) if such Person is a direct or indirect Subsidiary of another Person the shares of Common Stock of which are and have been so registered, the term "Principal Party" shall refer to such other Person, or (2) if such Person is a Subsidiary, directly or indirectly, of more than one Person, the Common Stock of which are and have been so registered, the term "Principal Party" shall refer to whichever of such Persons is the issuer of shares of Common Stock having the greatest aggregate market value of shares outstanding, or (3) if such Person is owned, directly or indirectly, by a joint venture formed by two or more Persons that are not owned, directly or indirectly by the same Person, the rules set forth in clauses (1) and (2) above shall apply to each of the owners having an interest in the venture as if the Person owned by the joint venture was a Subsidiary of both or all of such joint venturers, and the Principal Party in each such case shall bear the obligations set forth in this Section 13 in the same ratio as its interest in such Person bears to the total of such interests.
|
(i) |
prepare and file a registration statement under the Securities Act with respect to the Rights and the securities purchasable upon exercise of the Rights on an appropriate form, use its best efforts to cause such registration statement to become effective as soon as practicable after such filing and use its best efforts to cause such registration statement to remain effective (with a prospectus at all times meeting the requirements of the Securities Act) until the Expiration Date, and similarly comply with applicable state securities laws;
|
(ii) |
use its best efforts to list (or continue the listing of) the Rights and the securities purchasable upon exercise of the Rights on a national securities exchange or to meet the eligibility requirements for quotation on Nasdaq and list (or continue the listing of) the Rights and the securities purchasable upon exercise of the Rights on Nasdaq; and
|
(iii) |
deliver to holders of the Rights historical financial statements for such Principal Party which comply in all respects with the requirements for registration on Form F-1 or S-1 (or any successor form) under the Exchange Act.
|
CASTOR MARITIME INC.
|
||
By:
|
/s/ Petros Panagiotidis
|
|
Name:
|
Petros Panagiotidis
|
|
Title:
|
CEO/CFO
|
|
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, as Rights Agent
|
||
By:
|
/s/ Paula Caroppoli
|
|
Name:
|
Paula Caroppoli
|
|
Title:
|
Senior Vice President
|
|
Certificate No. R-
|
Rights
|
ATTEST:
|
CASTOR MARITIME INC.
|
|||
By:
|
||||
Name:
|
Name:
|
|||
Title:
|
Title:
|
|||
Countersigned:
|
||||
American Stock Transfer & Trust Company, LLC, as Rights Agent
|
||||
By:
|
||||
Authorized Signature
|
||||
FOR VALUE RECEIVED
|
||
hereby sells, assigns and transfers unto
|
||
(Please print name and address of transferee)
|
||
Dated as of ______________ ___, _____.
|
|
Signature
|
Dated as of ______________ ___, _____.
|
|
Signature
|
(Please print name and address)
|
||
Please insert social security
or other tax identifying number |
(Please print name and address)
|
||
Please insert social security
or other tax identifying number |
Dated as of ______________ ___, _____.
|
|
Signature
|
Dated as of ______________ ___, _____.
|
|
Signature
|
· |
not be redeemable;
|
· |
entitle holders to quarterly dividend payments in an amount per share equal to the aggregate per share amount of all cash dividends, and the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on shares of Common Stock since the immediately preceding quarterly dividend payment date; and
|
· |
entitle holders to one vote on all matters submitted to a vote of the shareholders of the Company.
|
· |
Flip In.
If an Acquiring Person obtains beneficial ownership of 15% or more of the Common Stock, then each Right will entitle the holder thereof to purchase, for the Exercise Price, a number of shares of Common Stock (or, in certain circumstances, cash, property or other securities of the Company) having a then-current market value of twice the Exercise Price. However, the Rights are not exercisable following the occurrence of the foregoing event until such time as the Rights are no longer redeemable by the Company, as further described below.
|
· |
Flip Over.
If, after an Acquiring Person obtains 15% or more of the Common Stock, (i) the Company merges into another entity; (ii) an acquiring entity merges into the Company; or (iii) the Company sells or transfers 50% or more of its assets, cash flow or earning power, then each Right (except for Rights that have previously been voided as set forth above) will entitle the holder thereof to purchase, for the Exercise Price, a number of shares of common stock of the person engaging in the transaction having a then-current market value of twice the Exercise Price.
|
· |
Notional Shares.
Shares held by affiliates and associates of an Acquiring Person, including certain entities in which the Acquiring Person beneficially owns a majority of the equity securities, and Notional Common Shares (as defined in the Rights Agreement) held by counterparties to a Derivatives Contract (as defined in the Rights Agreement) with an Acquiring Person, will be deemed to be beneficially owned by the Acquiring Person.
|
+THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO)
STANDARD SHIP MANAGEMENT AGREEMENT
CODE NAME: "SHIPMAN 98"
+THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO)
STANDARD SHIP MANAGEMENT AGREEMENT
CODE NAME: "SHIPMAN 98"
Part I
|
||||
Date of Agreement
16/12/2016
|
Name of Vessel: MAGIC P
|
|||
2. Owners (name, place of registered office and law of registry) (Cl. 1)
|
3. Managers (name, place of registered office and law of registry) (Cl. 1)
|
|||
__________________________________________________ | __________________________________________________ | |||
Name:
SPETSES SHIPPING CO.
|
Name:
PAVIMAR S.A.
|
|||
__________________________________________________ | __________________________________________________ | |||
Place of registered office:
|
Place of registered office:
|
|||
Trust Company Complex, Ajeltaka Road, Ajeltake Islands, Majuro, Marshall Islands MH 96960
|
Trust Company Complex, Ajeltake Road, Ajeltake Islands, Majuro, Marshall Islands MH 96960
|
|||
__________________________________________________ | __________________________________________________ | |||
Law of Registry: Marshall Islands
|
Law of Registry: Marshall Islands
|
|||
4. Day and year of commencement of Agreement (Cl. 2)
21 February 2017 (UPON DELIVERY OF VESSEL)
|
||||
5. Crew Management (state "yes" or "no" as agreed) (Cl. 3.1)
YES
|
6. Technical Management (state "yes" or "no" as agreed) (Cl. 3.2)
YES
|
|||
7. Commercial Management (state "yes" or "no" as agreed) (Cl. 3.3)
YES
|
8. Insurance Arrangements (state "yes" or "no" as agreed) (Cl. 3.4)
YES
|
|||
9. Accounting Services (state "yes" or "no" as agreed) (Cl. 3.5)
YES
|
10. Sale of purchase of the Vessel (state "yes" or "no" as agreed) (Cl 3.6)
NO
|
|||
11. Provisions (state "yes" or "no" as agreed) (Cl. 3.7)
YES
|
12. Bunkering (state "yes" or "no" as agreed) (Cl. 3.8)
YES
|
|||
13. Chartering Services Period (only to be filled in if "yes" stated in Box 7) (Cl. 3.3(i))
NO
|
14. Owners' Insurance (state alternative (i), (ii) or (iii) of Cl. 6.3)
Cl. 6.3(ii)
|
|||
15. Annual Management Fee (state annual amount) (Cl. 8.1)
DAILY: 250 USD
|
16. Severance Costs (state maximum amount) (Cl. 8.4(ii))
Per Cl. 8.4
|
|||
17. Day and year of termination of Agreement (Cl. 17)
UPON SALE OF M/V MAGIC P
|
18. Law and Arbitration (state alternative 19.1, 19.2 or 19.3; if 19.3 place of arbitration must be stated) (Cl. 19)
Cl 19.1
|
|||
19. Notices (state postal and cable address, telex and telefax number for serving notice and communication to the Owners) (Cl. 20)
SPETSES SHIPPING CO.
|
20. Notices (state postal and cable address, telex and telefax number for serving notice and communication to the Managers) (Cl. 20)
PAVIMAR S.A.
17th Km National Road Athens - Lamia & Finikos Str.
145 64 Nea Kifisia, Greece,
Tel: +30 211 8880200
Fax: +30 211 8880299
|
|||
It is mutually agreed between the party mentioned in Box 2 and the party stated in Box 3 that this Agreement consisting of PART I and PART II as well as ANNEXES "A" (Details of Vessel, "B" (Details of Crew), "C" (Budget) and "D" (Associated vessels) attached hereto, shall be performed subject to the conditions, contained herein. In the event of a conflict of conditions, the provisions of PART I and Annexes "A", "B", "C" and "D" shall prevail over those of PART II to the extent of such conflict but no further.
|
||||
Signature(s) (Owners)
/s/ Captain Nick Glynos
Operation Manager
SEAL
|
Signature(s) (Managers)
/s/ Mr. Bairactaris
Attorney-in-Fact
SEAL
|
a. |
fail to meet their obligations under sub- clauses 5.2
|
b. |
proceed with the employment of or continue to employ the Vessel in the carriage of contraband, blockade running, or in an unlawful trade, or on a voyage which in the reasonable opinion of the Managers is unduly hazardous or improper,
|
Name of Vessel(s)
|
MAGIC P (ex. Silver Freedom)
|
Particulars of Vessel(s):
|
Flag:
|
Marshall Islands
|
GT/NT/DWT
|
39,964/25,889/76,453t
|
|
Built:
|
2004, Tsuneishi Japan
|
|
I.O.A.
|
225.00mtrs
|
|
Breadth
|
32.26mtrs
|
|
Depth
|
19.30mtrs
|
|
Ho/hs
|
7/7
|
|
Main Engine:
|
1 set 7S50MC/9350 kw/108rpm
|
|
Mitsui Engineerng & Shipbuilding Co., Ltd. Tamano Works
|
||
Generators:
|
3 sets x M200AL UN Yanmar
Output 3x400KW/900rpm
|
VESSEL:
MAGIC P
|
DATE:
24/11/2017
|
FIXTURE SLIP FOR T/C
|
1.
|
CHARTER PARTY
|
:
|
Date: 24/11/2017
|
|
2.
|
CHARTERERS
|
:
|
Glencore Agriculture B.V
|
|
3.
|
DESCRIPTION
|
:
|
Normal Speed:
-
Ballast: About 14,00 knots on about 30.0 mt ifo plus about 0,2 mtns mdo only during ballast exchange or holds washing when 2nd d/g engaged plus about 2,0 mtns ifo.
- Laden : about 13,50 knots on about 32.00 mtns ifo plus about 0,2 mt/day m.d.o.
|
|
ECO Speed:
-
Ballast: About 12,00 knots on about 20.00 mt ifo plus about 0,2 mtns mdo or exchange or holds washing when 2nd d/g engaged plus about 2,0 mtns ifo.
-
Laden : About 11.50 knots on about 22.00 mt ifo plus about 0,2 mtns mdo.
|
||||
Port Consumption:
-
Idle About 3 mtns Ifo plus about 0,2 mtns mdo
- Working about 4,5 mt/day Ifo and about 0,2 mtns / day mdo
|
||||
4.
|
DELIVERY
|
:
|
DLOSP CJK ATDNSHINC
|
|
5.
|
REDELIVERY
|
:
|
DLOSP 1 SP or passing SP Spore-Japan ATDNSHINC
|
|
In case Disch port is a Japanese inland sea port then redely to be upon dropping last outbpund inland sea pilot (KII strait pilot station or Bungo Strait (Sekisaki pilot station) or Mutsure pilot station)
|
||||
6.
|
DURATION
|
:
|
Abt 45 - 50 days wog
|
|
7.
|
INT. CARGO
|
:
|
Sole cargo Grains In bulk.
|
|
8.
|
TRADE
|
:
|
One T/C Trip via safe port / s berth / s anchorage / s, always afloat,always within iwl via Ausie (intented loading 'Adelaide' ) to Spore - Jpn rge incl PRC
|
|
9.
|
INT. PORTS
|
:
|
Int. 1
st
|
Load Port: Adelaide (Int)
|
Disch. Port TBA
|
||||
10.
|
LAYDAYS
|
:
|
25 November 2017 00.01 HRS / 27 November 2017 24.00HRS
|
|
11.
|
DAILY HIRE
|
:
|
US$ 9,750 Diot.
|
|
12.
|
BALLAST BONUS
|
:
|
-
|
|
13.
|
COMMISSIONS
|
:
|
- 5.00 % Total Commission
- 1.25 % Queensland Navigation SA
- Total 6,25%
|
Prepared by :
|
Joseph S. Vakondios
/s/ Joseph S. Vakondios
|
|
Approved by :
|
Capt Nikos Glynos
/s/ Capt Nikos Glynos
|
VESSEL:
|
MAGIC P
|
DATE:
|
24/01/218
|
FIXTURE SLIP FOR T/C
|
1.
|
CHARTER PARTY
|
:
|
Date: 24/01/2018
|
2.
|
CHARTERERS
|
:
|
Mitsui O.S.K. Line
|
3.
|
DESCRIPTION
|
:
|
Normal Speed
:
- Ballast: About 14,00 knots on about 30.0 mt ifo plus about 0,2 mtns lsmgo only during ballast exchange or holds washing when 2nd d/g engaged plus about 2,0 mtns ifo.
- Laden : about 13,50 knots on about 32.00 mtns ifo plus about 0,2 mt/day lsmgo.
ECU Speed
:
- Ballast: About 12,00 knots on about 20.00 mt ifo plus about 0,2 mtns lsmgo or exchange or holds washing when 2nd d/g engaged plus about 2,0 mtns ifo.
- Laden : About 11.5 knots on about 22.00 mt ifo plus about 0,2 mtns lsmgo.
Port Consumption
:
- Idle About 3 mtns Ifo plus about 0,2 mtns lsmgo
- Working about 4,5 mt/day Ifo and about 0,2 mtns / day lsmgo
- During ballasting / deballasting additional abt 1,5 mts hsifo
|
4.
|
DELIVERY
|
:
|
DLOSP
CJK ATDNSHINC
|
5.
|
REDELIVERY
|
:
|
- DLOSP / Passing SP Skaw-Passero Rge incl Uk-Ireland Atl Morocco
- DLOSP / Passing SP Boston - Bahia Blanca range.
- DLOSP / Passing SP Pmo-Japan rge incl Indonesia/Philippines
Islands/Malaysia/PRC atdnshinc
In case dischport is a Japanese inland sea port theri redely to be upon dropping past outbound inland sea pilot (kii strait pilot station or bungo strait(sekisaki pilot station) or mutsure pilot station )
|
6.
|
DURATION
|
:
|
Tc Period of Min 3 months up to Abt 5 months
(where abt means 15 days -in chopt)
|
7.
|
INT. CARGO
|
:
|
Various non harmless cargoes in accordance with the terms and conditions of governing C/P
|
8.
|
TRADE
|
:
|
Various WW trades always in accordance with the terms and conditions of governing C/P
|
9.
|
INT. PORTS
|
:
|
Int. 1st Load Port: Australia (Port TBC)
Disch. Port: TBA
|
10.
|
LAYDAYS
|
:
|
27 January 2018 00.01 HRS / 04 February 2018 24.00HRS
|
11.
|
DAILY HIRE
|
:
|
US$ 13,000 Diot.
|
12.
|
BALLAST BONUS
|
:
|
-
|
13.
|
COMMISSIONS
|
:
|
- 5,00 % Total Commission
- 1.25 % Queensland Navigation SA
- Total 6,25%
|
14.
|
HIRE PAYMENT
|
:
|
1st 15 days hire plus value of bunkers on board on dely to be paid w/i 3 banking days after vsl delivery.
|
15.
|
BUNKERS ON DELIVERY
|
:
|
- Abt 1,180 - 1,200 mts HSIFO.
- Abt 200 - 220 mts LSMGO.
|
16.
|
BUNKERS ON REDELIVERY
|
:
|
About same qties as on board on dely.
|
17.
|
BUNKER PRICES
|
:
|
- US$ 400 per ton Hsfo
- US$ 555 per ton Hsmgo
|
18.
|
HOLDS INSPECTION
|
:
|
On arrival first load port, all holds to he washed down, dried up and clean swept and in every respect ready and suitable to load Charterers first intended cargo. Holds / hatches to be free of salt, previous cargo remnants / residue to the satisfaction of the relevant surveyors' / inspection authorities.
If vessel fails to pass such inspection vessel to be put off hire from the time of rejection until re- inspection passed and all substantiated relevant and fully documented actual expenses arising therefrom to be for Owners' account.
|
19.
|
HOLDS CLEANING
|
:
|
- US$ 4,500 in lieu of holds cleaning for grains/grain products
- US$ 5,500 for Ore / Concentrates
- US$ 6,500 for Coal.
- US$ 600 / hold fr Intermediate HC.
|
20.
|
C.V.E.
|
:
|
US$ 1,500 per 30 days pro rata
|
21.
|
ON/OFF HIRE SURVEY
|
:
|
Owners and Charterers to hold a bunker and vessel's condition survey on delivery or at delivery port or at first loading port as well as similar off-hire survey at last discharging port for joint account on redelivery. Owners' option to appoint the Master to attend surveys on Owners' behalf in which case Owners not to contribute to survey cost.
|
22.
|
NOTICES
|
:
|
- For Delivery : Daily
- For Redelivery : 10/7/5/4/3/2/1 days Notice.
|
DISTRIBUTION TO
|
:
|
ALL DEPARTMENTS
|
Prepared by:
|
Joseph S. Vakondios
/s/ J. Vakondios
|
Approved by:
|
Capt Nikos Glynos
/s/ Capt Nikos Glynos
|
Name
|
Jurisdiction of Incorporation
|
|
Spetses Shipping Co.
|
Republic of the Marshall Islands
|
/s/
Deloitte Certified Public Accountants S.A.
|
|
|
|
Athens, Greece
|
|
April 11, 2018
|
|
Name(s) and Address of Registered Holder(s)
If there is any error in the name or address shown below, please make the necessary corrections
|
DESCRIPTION OF SHARES SURRENDERED
(Please fill in. Attach separate schedule if needed
)
|
|
Certificate No(s)
(if applicable)
|
Number of Shares
|
|
TOTAL SHARES
F
|
Alternative A:
|
☐
|
The undersigned elects to receive the Exchange Shares in certificated form mailed to the following address:
__________________________________
_________________________________
_________________________________
|
Alternative B:
|
☐
|
The undersigned hereby instructs the agents of the Company to cause the deposit of the Exchange Shares to the Depository Trust Company (DTC). In order for the Exchange Shares to be credited to your account, you must instruct your Broker Representative at your Broker to receive the Exchange Shares on the settlement date (shares will be delivered/transferred via Deposit Withdrawal at Custodian ("DWAC") from American Stock Transfer & Trust Company, LLC ("AST")), which is expected to be two business days following the Expiration Date of the Exchange Offer from, AST the Company's U.S. Transfer Agent in accordance with its standard settlement procedures.
|
Alternative C:
|
☐
|
The undersigned elects to receive the Exchange Shares in a new account in the Direct Registration System at AST:
|
1. |
I/we irrevocably accept the offer to exchange all of my/our Original Shares for Exchange Shares in accordance with the terms and conditions set out in the Prospectus and this Letter of Transmittal (which together, as amended, supplemented or modified from time to time, constitute the "Exchange Offer").
|
2. |
The Exchange Agent and the Company are irrevocably authorized, subject to the withdrawal rights described below, to tender the Original Shares in exchange for the Exchange Shares. Upon the terms and subject to the conditions of the Exchange Offer (and if the Exchange Offer is extended or amended, the terms of any such extension or amendment), effective upon acceptance for the Original Shares tendered herewith, the undersigned appoints the Exchange Agent and the Company as the true and lawful agents and attorneys-in-fact (with full knowledge that the Exchange Agent also acts as agent for the Company) of such holder of Original Shares with respect to such Original Shares, with full power of substitution, to (i) delete the beneficial ownership interest in the Original Shares held through a registered position or in certificated form, (ii) the Original Shares be cancelled and destroyed if in certificated form, and (iii) cause AST as the Company's U.S. Transfer Agent and Registrar (the "Transfer Agent") to deliver the Exchange Shares in the form chosen in Item 2 above, all in accordance with the terms of the Exchange Offer. The power of attorney granted in this paragraph shall be deemed to be irrevocable and coupled with an interest.
|
3. |
The Original Shares will be exchanged free of any encumbrances or other third-party rights whatsoever and with all shareholder rights attached to them. I/we acknowledge that this acceptance will only be regarded as valid if any third party with registered encumbrances or other third-party rights over the Original Shares has approved by signing this Letter of Transmittal that the Original Shares may be exchanged free of any encumbrances or other third-party rights with Exchange Shares. The undersigned represents and warrants that it has full power and authority to tender and exchange the Original Shares and to acquire Exchange Shares upon the exchange of such tendered Original Shares, and that, when the same are accepted for exchange, the tendered Original Shares will be good and unencumbered, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The undersigned also warrants that it will, upon request, execute and deliver any additional documents deemed by the Exchange Agent or the Company to be necessary or desirable to complete the exchange of the tendered Original Shares.
|
4. |
By tendering Original Shares and executing this Letter of Transmittal, the undersigned represents that (1) the Exchange Shares acquired pursuant to the Exchange Offer will be, and the Original Shares being tendered were, acquired in the ordinary course of business of the undersigned, (2) the undersigned is not engaging in and does not intend to engage in a distribution of the Exchange Shares, (3) the undersigned does not have an arrangement or understanding with any person to participate in the distribution of such Exchange Shares, (4) the undersigned is not an "affiliate" of the Company within the meaning of Rule 405 under the Securities Act of 1933, as amended, and (5) the undersigned is not acting on behalf of any person who could not truthfully make the foregoing representations. If the undersigned is a broker-dealer that will receive Exchange Shares for its own account in exchange for Original Shares that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a Prospectus meeting the requirements of the Securities Act of 1933, as amended, in connection with any resale of such Exchange Shares to the extent required by applicable law or regulation or SEC pronouncement. By acknowledging that it will deliver and by delivering a Prospectus meeting the requirements of the Securities Act of 1933, as amended, in connection with any resale of such Exchange Shares, the undersigned is not deemed to admit that it is an "underwriter" within the meaning of the Securities Act of 1933, as amended.
|
5. |
Any holder of Original Shares using the Exchange Offer to participate in a distribution of the Exchange Shares (i) cannot rely on the position of the staff of the Securities and Exchange Commission enunciated in its interpretive letter with respect to Exxon Capital Holdings Corporation (available May 13, 1988) or similar interpretive letters and (ii) must comply with the registration and Prospectus delivery requirements of the Securities Act of 1933, as amended, in connection with a secondary resale transaction.
|
6. |
All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Tendered Original Shares may be withdrawn at any time prior to the Expiration Date in accordance with the terms of this Letter of Transmittal. You may withdraw your tender of Original Shares at any time prior to the Expiration Date.
|
7. |
For a withdrawal of tendered Original Shares to be effective, a written notice of withdrawal must be received by the Exchange Agent or the Company, at their addresses set forth above prior to the Expiration Date. Any such notice of withdrawal must: (i) specify the name of the person who tendered the Original Shares to be withdrawn; (ii) identify the Original Shares to be withdrawn; and (iii) be signed by the holder of such Original Shares in the same manner as the original signature on the Letter of Transmittal by which such Original Shares were tendered or be accompanied by (i) the documents required by the Exchange Agent to unblock the Original Shares and (ii) a properly completed irrevocable proxy authorizing such person to effect such withdrawal on behalf of such holder.
|
8. |
All questions as to the validity, form and eligibility, including time of receipt, of such notices will be determined by the Company, and our determination shall be final and binding on all parties. Any Original Shares withdrawn will be considered not to have been validly tendered for exchange for the purposes of the Exchange Offer. Any Original Shares that have been tendered for exchange but that are not exchanged for any reason will be returned to you without cost promptly after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Original Shares may be re-tendered at any time on or prior to the Expiration Date.
|
Place
|
|
Date
|
|
Binding Signature*
|
|
Telephone
|
* |
If signed by power of attorney, the power of attorney (and with respect to companies, Certificate of Registration or similar documentation) shall be enclosed.
|
* |
If signed by a person with signatory right, Certificate of Registration or similar documentation shall be enclosed.
|