d984144_13d.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
SCHEDULE
13D
THE
SECURITIES EXCHANGE ACT OF 1934
(Amendment
No.____________)*
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Excel
Maritime Carriers Ltd.
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(Name
of Issuer)
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Class
A Common Stock, par value $0.01 per share
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(Title
of Class of Securities)
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Gabriel
Panayotides
17th
km National Road Athens Lamia & Finikos Street
145-64
Nea Kifisia
Athens,
Greece.
With
a copy to:
Gary
J. Wolfe, Esq.
Seward
& Kissel LLP
One
Battery Park Plaza
New
York, New York 10004
(212)
574-1200
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(Name,
Address and Telephone Number of Person Authorized to Receive
Notices
and Communications)
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March
31, 2009
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(Date
of Event Which Requires Filing of this
Statement)
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If
the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule
13d-1(g), check the following box [_].
*The
remainder of this cover page shall be filled out for a reporting person’s
initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The
information required on the remainder of this cover page shall not be
deemed to be “filed” for the purpose of Section 18 of the Securities
Exchange Act of 1934,as amended, (the “Act”) or otherwise subject to the
liabilities of that section of the Act but shall be subject to all other
provisions of the Act (however, see the
Notes).
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1.
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NAME
OF REPORTING PERSONS
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I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Lhada
Holdings Inc.
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2.
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
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(a)
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[X]
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(b)
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[_]
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5.
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d)
OR 2(e)
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[_]
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6.
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CITIZENSHIP
OR PLACE OF ORGANIZATION
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Republic
of Liberia
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NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
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8.
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SHARED
VOTING POWER
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15,607,143
(1)
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9.
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SOLE
DISPOSITIVE POWER
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0
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10.
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SHARES
DISPOSITIVE POWER
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15,607,143
(1)
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11.
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
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PERSON
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15,607,143
(1)
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12.
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
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CERTAIN
SHARES*
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[_]
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13.
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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21.7%
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14.
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TYPE
OF REPORTING PERSON*
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CO
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*SEE
INSTRUCTIONS
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(1)
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Includes
warrants to purchase up to 2,750,000 shares of the Issuer’s Class A common
stock (“Common Shares”), at an exercise price of $3.50 per
share.
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1.
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NAME
OF REPORTING PERSONS
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I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Tanew
Holdings Inc.
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2.
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
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(a)
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[X]
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(b)
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[_]
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5.
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d)
OR 2(e)
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[_]
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6.
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CITIZENSHIP
OR PLACE OF ORGANIZATION
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Republic
of Liberia
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NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
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8.
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SHARED
VOTING POWER
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15,607,143
(2)
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9.
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SOLE
DISPOSITIVE POWER
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0
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10.
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SHARES
DISPOSITIVE POWER
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15,607,143
(2)
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11.
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
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PERSON
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15,607,143
(2)
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12.
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
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CERTAIN
SHARES*
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[_]
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13.
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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21.7%
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14.
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TYPE
OF REPORTING PERSON*
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CO
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*SEE
INSTRUCTIONS
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(2)
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Includes
warrants to purchase up to 2,750,000 Common Shares at an exercise price of
$3.50 per share.
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1.
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NAME
OF REPORTING PERSONS
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I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Gabriel
Panayotides (3)
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2.
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
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(a)
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[X]
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(b)
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[_]
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5.
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d)
OR 2(e)
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[_]
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6.
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CITIZENSHIP
OR PLACE OF ORGANIZATION
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Greece
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NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
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7.
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SOLE
VOTING POWER
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31,717,614
(3)
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9.
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SOLE
DISPOSITIVE POWER
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31,717,614
(3)
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10.
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SHARES
DISPOSITIVE POWER
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0
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11.
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
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PERSON
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31,717,614
(3)
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12.
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
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CERTAIN
SHARES*
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[_]
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13.
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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44.2%
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14.
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TYPE
OF REPORTING PERSON*
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IN
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*SEE
INSTRUCTIONS
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(3)
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Mr.
Panayotides may be deemed to beneficially own 31,717,614 Common Shares,
which includes (i) 31,214,286 Common Shares and warrants to purchase up to
5,500,000 Common Shares at an exercise price of $3.50 per share, through
Lhada Holdings Inc. and Tanew Holdings Inc., the shares of which are
held in a trust (the “Trust”), the beneficiaries of which are
certain members of Mr. Panayotides’ family; and (ii) 503,328 Common Shares
of which Mr. Panayotides is the controlling person. Mr.
Panayotides disclaims beneficial ownership of 31,214,286 Common Shares
except to the extent of his voting and dispositive interests in such
shares. Mr. Panayotides has no pecuniary interest in such
Common Shares.
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Item
1.
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Security
and Issuer.
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The name of the issuer is Excel
Maritime Carriers Ltd., a Liberian corporation (the
“Issuer”). The principal executive office and mailing address
of the Issuer is 17th km National Road Athens Lamia & Finikos Street,
145-64 Nea Kifisia, Athens, Greece. This Schedule 13D relates
to shares of the Issuer’s common stock (the “Common Shares”), warrants to
purchase Common Shares at an exercise price of $3.50 per share (the
“Warrants”) and Common Shares issuable on exercise of the Warrants (the
“Warrant Shares”) (Common Shares, Warrants and Warrant Shares,
collectively the “Shares”).
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Item
2.
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Identity
and Background.
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(a)
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This
Schedule 13D is being filed by Lhada Holdings Inc., a Liberian corporation
(“Lhada”), Tanew Holdings Inc., a Liberian corporation (“Tanew”); and
Gabriel Panayotides, a Greek citizen (Mr. “Panayotides”) (Lhada, Tanew and
Mr. Panayotides, collectively the “Reporting Persons”).
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(b)
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The
principal business address for each of the Reporting Persons
is:
c/o
Gabriel Panayotides
17th
km National Road Athens Lamia & Finikos Street
145-64
Nea Kifisia
Athens,
Greece.
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(c)
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The
principal business of Lhada and Tanew is acting as an investment holding
companies. Mr. Panayotides serves as the Chairman of the board
of directors of the Issuer.
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Mr.
Panayotides may be deemed to beneficially own 31,214,286 Common Shares and
Warrants to purchase up to 5,500,000 Common Shares at an exercise price of
$3.50 per share, through Lhada and Tanew, the shares of which are held
in the Trust, the beneficiaries of which are certain members of Mr.
Panayotides’ family. Mr. Panayotides disclaims beneficial
ownership of such Common Shares except to the extent of his voting and
dispositive interests in such Common Shares and has no pecuniary interest
in such Common Shares. Mr. Panayotides is also the sole director of both
Lhada and Tanew.
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(d),
(e)
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None
of the Reporting Persons has, during the last five years, been (i)
convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (ii) a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violations
with respect to such laws.
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(f)
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The
citizenship of each Reporting Person is as follows:
Lhada:
Liberian corporation;
Tanew:
Liberian corporation; and
Mr. Panayotides:
Citizen of Greece.
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Item
3.
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Source
and Amount of Funds or Other Consideration.
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The
source of funds for the purchases of 12,857,143 Common Shares and
2,750,000 Warrants held in the account of Lhada was $22,500,000,
representing the working capital of Lhada.
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The
source of funds for the purchases of 12,857,143 Common Shares and
2,750,000 Warrants held in the account of Tanew was $22,500,000,
representing the working capital of Tanew.
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None
of the other persons named in response to Item 2 hold any shares of Common
Stock or Warrant in their accounts.
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Item
4.
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Purpose
of Transaction.
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Lhada and Tanew, Liberian
corporations formed, among others, for the purpose of acquisition,
ownership and ultimate disposition of securities of the
Issuer.
Lhada and Tanew entered into a
Stock Purchase Agreement on March 2, 2009 which was subsequently amended
on March 31, 2009 (the “Stock Purchase Agreement”) pursuant to which Lhada
and Tanew agreed to purchase from the Issuer (i) 25,714,286 Common Shares;
and (ii) Warrants to purchase up to 5,500,000 Common Shares, for a
purchase price of $45.0 million.
Mr.
Panayotides serves as Chairman of the board and a director of the
Issuer. As Chairman, Mr. Panayotides may have influence over
the corporate activities of the Issuer, including activities which may
relate to items described in paragraphs (a) through (j) of the
instructions to Item 4 of Schedule 13D. The Reporting Persons
reserve the right to acquire or dispose of shares Common Stock and
Warrants, or to formulate other purposes, plans or proposals regarding the
Issuer or the shares of Common Stock or Warrants held by the Reporting
Persons to the extent deemed advisable in light of general investment
policies, market conditions and other factors.
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Item
5.
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Interest
in Securities of the Issuer.
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(a),
(b) As of April 2, 2009, there were 71,789,899 Common Shares
outstanding. Based on such information, the Reporting Persons
report beneficial ownership of the following Common
Shares:
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Lhada
may be deemed to beneficially own 15,607,143 Common Shares, representing
approximately 21.7% of the outstanding Common Shares. Lhada has
the sole power to vote 0 Common Shares and the shared power to vote
15,607,143 Common Shares. Lhada has the sole power to dispose
of 0 Common Shares and the shared power to dispose of 15,607,143 Common
Shares.
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Tanew
may be deemed to beneficially own 15,607,143 Common Shares, representing
approximately 21.7% of the outstanding Common Shares. Tanew has
the sole power to vote 0 Common Shares and the shared power to vote
15,607,143 Common Shares. Tanew has the sole power to dispose
of 0 Common Shares and the shared power to dispose of 15,607,143 Common
Shares.
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Mr.
Panayotides may be deemed to beneficially own 31,717,614 Common Shares,
representing approximately 44.2% of the outstanding Common Shares. Mr.
Panayotides has the sole power to vote 31,717,614 Common Shares and the
shared power to vote 0 Common Shares. Mr. Panayotides has the sole power
to dispose of 31,717,614 Common Shares and the shared power to dispose of
0 Common
Shares.
Mr.
Panayotides disclaims beneficial ownership of 31,214,286 Common
Shares except to the extent of his voting and dispositive interests in
such Common Shares. Mr. Panayotides has no pecuniary interest
in such Common Shares.
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No
person other than the persons named in response to Item 2 have the sole
power to vote or to direct the vote, the shared power to vote or direct
the vote, the sole power to dispose or to direct the disposition of the
Common Shares that are the subject of this Schedule
13D.
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(c) Except
for the Stock Purchase Agreement described in Item 6, no transactions in
the Common Shares were effected by the Reporting Persons during the past
60 days.
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(d)
No person other than the beneficiaries of the Trust, and Mr. Panayotides
to the extent of 503,328 Common Shares, is known to have the right to
receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, any of the Common Shares beneficially owned by
the Reporting Persons.
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Item
6.
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Contracts,
Arrangements, Understandings or Relationships with Respect
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to
Securities of the Issuer.
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Pursuant to the Stock Purchase
Agreement, Lhada and Tanew agreed to purchase from the Issuer an aggregate
of (i) 25,714,286 Common Shares; and (ii) Warrants to purchase up to
5,500,000 Common Shares, for an aggregate purchase price of $45.0 million.
The Warrants, attached hereto as Exhibits B
and C, have an exercise price equal to $3.50 per share and may be
exercised at any time beginning on April 1, 2009 and terminating March 31,
2010. The Common Shares, the Warrants and the Warrant Shares are
subject to a 12 month lock-up which began on March 31, 2009.
Other
than the Stock Purchase Agreement, to the knowledge of the Reporting
Persons, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons named in Item 2 with
respect to any securities of the Issuer.
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Item
7.
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Material
to be Filed as Exhibits.
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Exhibit
A - Joint Filing Undertaking.
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Exhibit
B – Warrant of Lhada Holdings Inc.
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Exhibit
C – Warrant of Tanew Holdings Inc.
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SIGNATURE
After
reasonable inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and
correct.
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Dated: April
10, 2009
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(Date)
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LHADA
HOLDINGS INC.
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By:
/s/ Gabriel Panayotides
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Name: Gabriel
Panayotides
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Title: Director
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TANEW
HOLDINGS INC.
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By:
/s/ Gabriel Panayotides
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Name: Gabriel
Panayotides
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Title: Director
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/s/
Gabriel Panayotides
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Name: Gabriel
Panayotides
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Attention: Intentional
misstatements or omissions of fact constitute Federal criminal violations (see
18 U.S.C. 1001).
EXHIBIT A
JOINT
FILING UNDERTAKING
The
undersigned, being duly authorized thereunto, hereby executes this agreement as
an exhibit to this Schedule 13D with respect to the shares of common stock of
Excel Maritime Carriers Ltd. to evidence the agreement of the below-named
parties, in accordance with the rules promulgated pursuant to the Securities
Exchange Act of 1934, as amended, to file this Schedule 13D jointly on behalf of
each such party.
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Dated: April
10, 2009
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(Date)
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LHADA
HOLDINGS INC.
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By:
/s/ Gabriel Panayotides
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Name: Gabriel
Panayotides
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Title: Director
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TANEW
HOLDINGS INC.
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By:
/s/ Gabriel Panayotides
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Name: Gabriel
Panayotides
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Title: Director
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/s/
Gabriel Panayotides
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Name: Gabriel
Panayotides
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Attention: Intentional
misstatements or omissions of fact constitute Federal criminal violations (see
18 U.S.C. 1001).
WARRANT
OF LHADA HOLDINGS INC.
WARRANT
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ANY EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF (I) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND COMPLIANCE WITH SUCH STATE
LAWS OR (II) AN APPLICABLE EXEMPTION THEREFROM AND AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. THIS WARRANT
IS SUBJECT TO AN AGREEMENT BY THE REGISTERED WARRANTHOLDER WITH THE COMPANY NOT
TO SELL THIS WARRANT FOR A PERIOD OF TWELVE MONTHS FOLLOWING THE DATE OF
ISSUANCE HEREOF.
WARRANT
No. W -
1
For the
Purchase of 2,750,000 Shares of Common Stock
of Excel
Maritime Carriers Ltd.
(Organized
under the Laws of the Republic of Liberia)
This is
to certify that, for value received, Lhada Holdings Inc. or its, his or her
permitted assigns (hereinafter called the "Warrantholder"), is entitled, subject
to the terms and conditions hereinafter set forth, to purchase 2,750,000 shares
of common stock (the "Common Stock") of Excel Maritime Carriers Ltd., a Liberian
corporation (hereinafter called the "Company"), from the Company at the purchase
price of $3.50 per share, and to receive a certificate or certificates for the
shares so purchased. This Warrant is first issued on March 31, 2009 (the
"Original Issue Date"), and shall remain outstanding until the Termination Date
(as defined below) subject to the following terms and conditions.
1. Terms and Exercise of
Warrant
(a) Exercise
Period. Subject to the terms of this Warrant, the
Warrantholder shall have the right, at any time during the period commencing on
April 1, 2009 and ending at 5:00 P.M., New York City time, on March 31, 2010
(the "Termination Date"), or if such date is a day on
which banking institutions in The City of New York or in Hamilton, Bermuda are
authorized by law to close, then on the next succeeding day which shall not be
such a day (a "Business Day"), to purchase from the Company up to the number of
fully paid and nonassessable shares of Common Stock which the Warrantholder may
at the time be entitled to purchase pursuant to this Warrant. Such shares of
Common Stock and other shares that the Company may be required by the operation
of Section 4 to issue upon the exercise hereof are referred to hereinafter as
the "Warrant Shares."
(b) Method of
Exercise. This Warrant shall be exercised by surrender to the
Company, at its principal office at Par La Ville Place, 14 Par La Ville Road,
Hamilton HM JX, Bermuda, or at such other address as the Company may designate
by notice in writing to the Warrantholder at the address of the Warrantholder
appearing on the books of the Company or such other address as the Warrantholder
may designate in writing, of this Warrant certificate, together with the form of
Election to Purchase, included as Exhibit "A" hereto, duly completed and signed,
and upon payment to the Company of the Exercise Price (as defined in Section 3),
for the number of Warrant Shares with respect to which this Warrant is then
exercised together with all taxes and governmental fees and charges applicable
upon such exercise. Payment of the aggregate Exercise Price shall be made in
cash or by certified check or cashier's check drawn on a financial institution
reasonably acceptable to the Company, payable to the order of the Company. In
the event the Warrantholder elects to exercise only a portion of the number of
Shares of Common Stock which the Warrantholder is entitled to purchase pursuant
to this Warrant, the Company shall issue a new Warrant entitling the
Warrantholder to purchase the remaining number of Shares not yet exercised (the
"New Warrant"); provided, however,
all Shares of Common Stock purchased pursuant to this Warrant and any New
Warrants must be purchased before the Termination Date.
(c) Cashless Exercise. If
an Election to Purchase is delivered at a time when (i) the fair market value of
the Common Stock is greater than the Exercise Price, (ii) a period of at least
six months has passed since the Original Issue Date, and (iii) Lhada Holdings
Inc. and Tanew Holdings Inc. have purchased securities from the Company,
directly or indirectly, in an aggregate amount of at least $50 million, then the
Warrantholder may notify the Company in an Election to Purchase of its election
to utilize cashless exercise, in which event the Company shall issue to the
Warrantholder the number of Warrant Shares determined as follows:
X = Y[(A-
B)/A]
where:
X = the
number of Warrant Shares to be issued to the Warrantholder.
Y – the
number of Warrant Shares with respect to which this Warrant is being
exercised.
A = the
Fair Market Value
B = the
Exercise Price.
For
purposes hereof, "Fair Market Value" shall equal the closing price for the
trading day immediately prior to (but not including) the Exercise Date; provided
that if the stock is not then trading, the Fair Market Value shall be an amount
determined in such reasonable manner as may be prescribed by the Board of
Directors of the Company.
(d) Share Issuance Upon
Exercise. Upon such surrender of this Warrant certificate and
payment of such Exercise Price as aforesaid, the Company shall promptly
thereafter issue to the Warrantholder in such name or names as the Warrantholder
may designate in writing, a certificate or certificates for the number of full
Warrant Shares so purchased upon the exercise of the Warrant, together with
cash, as provided in Section 5 hereof, with respect to any fractional Warrant
Shares otherwise issuable upon such surrender. Such certificate or certificates
shall be deemed to have been issued and any person so designated to be named
therein shall be deemed to have become a holder of such Warrant Shares as of the
close of business on the date of the surrender of this Warrant and payment of
the Exercise Price, as aforesaid, notwithstanding that the certificates
representing such Warrant Shares shall not actually have been delivered or that
the transfer books of the Company shall then be closed.
2. Legend On Warrant
Shares.
Each
certificate for Warrant Shares initially issued upon exercise of this Warrant,
unless at the time of exercise such Warrant Shares are registered with the
Securities Exchange Commission (the "Commission") under the Securities Act of
1933, as amended (the "Act"), shall bear the following legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR OFFERED FOR SALE IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AGREEMENT BY THE
REGISTERED HOLDER WITH THE COMPANY NOT TQ TRANSFER, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMPANY, SUCH SHARES FOR A PERIOD ENDING ON MARCH 31, 2010. THE
SHARES REPRESENTED BY THIS CERTIFICATE MAY BE PLEDGED IN CONNECTION WITH A BONA
FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SHARES.
Any
certificate issued at any time in exchange or substitution for any certificate
bearing such legend (except a new certificate issued upon completion of a public
distribution pursuant to a registration statement under the Act of the
securities represented thereby) shall also bear the above legend unless, in the
opinion of such counsel as shall be reasonably approved by the Company, the
securities represented thereby need no longer be subject to such
restrictions.
3. Exercise
Price.
The price
per share at which Warrant Shares shall be purchasable on the exercise of this
Warrant shall be $3.50 per Share, subject to adjustment pursuant to Section 4
hereof (originally and as adjusted, the "Exercise Price").
4. Adjustment of Exercise Price
and Number of Shares.
The
number of Warrant Shares issuable upon the exercise of this Warrant Certificate
and the Exercise Price shall be subject to adjustment from time to time upon the
happening of certain events, as follows:
(a) Merger. If
at any time there shall be a merger or consolidation of the Company with or into
another corporation when the Company is not the surviving corporation, then, as
part of such merger or consolidation, lawful provision shall be made so that the
Warrantholder shall thereafter be entitled to receive upon exercise of rights
herein granted, during the period specified herein and upon payment of the
aggregate Exercise Price, the number of shares of stock or other securities or
property of the successor corporation resulting from such merger or
consolidation, to which a holder of the stock deliverable upon exercise of the
rights granted in this Warrant would have been entitled in such merger or
consolidation if such rights had been exercised immediately before such merger
or consolidation. In any such case, appropriate adjustment shall be made in the
application of the provisions of this Warrant with respect to the rights and
interests of the Warrantholder after the merger or consolidation. The Company
will not effect any such merger or consolidation unless, prior to the
consummation thereof, the successor corporation shall assume, by written
instrument reasonably satisfactory in form and substance to the Warrantholder,
the obligations of the Company under this Warrant.
(b) Reclassification,
Etc. If the Company at any time shall, by combination or
reclassification of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such combination, reclassification or other
change.
(c) Stock Dividends, Splits,
Subdivisions or Combination of Shares. If the Company at any
time shall pay a stock dividend on its Common Stock or otherwise makes a
distribution on any class of capital stock that is payable in shares of Common
Stock, split or subdivide its Common Stock, the Exercise Price shall be
proportionately decreased and the number of Warrant Shares issuable pursuant to
this Warrant shall be proportionately increased. If the Company at any time
shall combine or reverse split its Common Stock, the Exercise Price shall be
proportionately increased and the number of Warrant Shares issuable pursuant to
this Warrant shall be proportionately decreased.
(d) Notices of Corporate
Events. If the Company (i) shall take a record of the holders
of its Common Stock for the purpose of entitling them to receive any dividend or
other distribution of cash, securities or other property in respect of its
Common Stock, (ii) authorizes or approves any (a) capital reorganization of the
Company, (b) any reclassification of the capital stock of the Company, (c) any
consolidation or merger of the Company with or into another corporation, (d) any
sale of all or substantially all of its assets in one or a series of related
transactions or (e) any tender offer or exchange offer pursuant to which holders
of the Common Stock are permitted to tender or exchange their shares for other
securities, cash or property or (iii) authorizes the voluntary dissolution,
liquidation or winding up of the Company, then the Company shall mail or cause
to be mailed to each Warrantholder a notice describing the material terms and
conditions of such transaction at least 20 calendar days prior to the applicable
record or effective date on which a person would need to hold Common Stock in
order to participate in or vote with respect to such transaction, and the
Company will take all steps reasonably necessary in order to insure that the
Warrantholder is given the practical opportunity to exercise this Warrant prior
to such time so as to participate in or vote with respect to such transaction;
provided,
however, that the failure to deliver
such notice or any defect therein shall not affect the validity of the corporate
action required to be described in such notice.
(e) No other Adjustments;
Warrant Certificates. Except as provided in this Section 4, no
other adjustments in the Exercise Price or the number or kind of securities
issuable upon exercise of this Warrant shall be made during the term of this
Warrant or upon exercise of this Warrant.
Irrespective
of any adjustments in the Exercise Price or the number or kind of securities
issuable upon the exercise of this Warrant, the Warrant certificate or
certificates theretofore or thereafter issued may continue to express the same
price or number or kind of securities stated in this Warrant initially issuable
hereunder.
5. Fractional
Interest.
The
Company shall not be required to issue fractional shares upon exercise of this
Warrant but shall pay an amount of cash equal to the then current trading price,
or if there is no public market, cash equal to the then fair market value of the
shares as reasonably determined by the Board of Directors of the Company,
multiplied by such fraction.
6. Transfers of
Warrant
(a) Transfer,
etc. The Company shall from time to time register the transfer
of this Warrant on its books and records upon surrender of this Warrant
accompanied by a written instrument or instruments of transfer substantially in
the form of Exhibit B attached hereto, duly executed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney or by the duly authorized agent, provided, however,
that (i) the transferee be a Permitted Holder (as defined below) and (ii)
the Warrantholder shall have given at least eight (5) Business Days prior notice
thereof to the Company, which notice shall include the identity of the
transferee. Upon any such registration of transfer, a new Warrant shall be
promptly issued to the transferee(s), in the denomination or denominations
specified in such instrument of transfer, and if requested by the Warrantholder,
the Company shall issue to the Warrantholder a new Warrant evidencing the
portion of this Warrant not so transferred. This Warrant shall be surrendered by
the Warrantholder and cancelled and disposed of by the Company. A Warrant, if
properly transferred in compliance with this Section 6, may be exercised by a
new holder for the receipt of shares of Common Stock without having a new
Warrant issued.
For the
purposes of this Warrant, the term "Permitted Holders" means the persons who are
named in "Risk Factors" in the Company's F-4 filing dated February 15, 2008 and
(A) each of their spouses, parents, siblings, family members (including adopted
children), lineal descendants, spouses of their lineal descendants and adopted
children and/or (B) the heirs, executors, administrators, testamentary trustees
and legatees and/or (C) any foundation controlled by any of the foregoing
persons, any trusts for the benefit of any of the foregoing persons, any
corporations controlled by the foregoing persons and any affiliates of the
foregoing persons
(b) Transferee. Any
person in possession of this Warrant properly endorsed and, if not the original
holder hereof, to whom possession was transferred in accordance with the
provisions of this Section 6 is authorized to represent himself as absolute
owner hereof and is granted power to transfer absolute title hereto by
endorsement and delivery hereof to a bona fide purchaser hereof for value; each
prior Warrantholder, taker or owner waives and renounces all of his equities or
rights in this Warrant in favor of every such bona fide purchaser, and every
such bona fide purchaser shall acquire title hereto and to all rights
represented hereby.
(c) Applicable
Laws. The Company shall not be required to register any
transfer of this Warrant pursuant to Section 6 hereof if such registration or
transfer violates applicable laws, including applicable United States or other
securities laws.
7. No Rights as Shareholder
Conferred by Warrant.
This
Warrant shall not entitle the Warrantholder to any of the rights of a holder of
any common stock of the Company, including, without limitation, the right to
receive dividends, if any, or payments upon the liquidation, dissolution or
winding up of the Company or to exercise any voting rights.
8. Notices.
Any
notice given pursuant to this Warrant by the Company or by the Warrantholder
shall be in writing and shall be deemed to have been duly given upon (a)
transmitter's confirmation of the receipt of a facsimile transmission, (b)
confirmed delivery by a standard overnight carrier or (c) the expiration of five
business days after the day when mailed by certified or registered mail, return
receipt requested, postage prepaid at the addresses:
If to the
Company:
Par La
Ville Place
14 Par La
Ville Road
Hamilton
HM JX
Bermuda
If to the
Warrantholder, then to the address of the Warrantholder in the Company's books
and records.
Each
party hereto may, from time to time, change the address to which notices to it
are to be transmitted, delivered or mailed hereunder by written notice in
accordance herewith to the other party.
9. General
Provisions.
(a) Successors. All
the covenants and provisions of this Warrant shall bind and inure to the benefit
of the respective executors, administrators, successors and assigns of the
Warrantholder and the Company.
(b) Choice of
Law. THIS WARRANT AND THE RIGHTS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY, PERFORMANCE, AND
ENFORCEMENT, AND WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF
LAWS.
(c) Entire
Agreement. Except as provided herein, this Warrant, including
exhibits, contains the entire agreement of the parties, and supersedes all
existing negotiations, representations or agreements and other oral, written, or
other communications between them concerning the subject matter of this
Warrant.
(d) Severability. If
any provision of this Warrant is unenforceable, invalid, or violates applicable
law, such provision shall be deemed stricken and shall not affect the
enforceability of any other provisions of this Warrant.
(e) Captions. The
captions in this Warrant are inserted only as a matter of convenience and for
reference and shall not be deemed to define, limit, enlarge, or describe the
scope of this Warrant or the relationship of the parties, and shall not affect
this Warrant or the construction of any provisions herein.
(f) This
Warrant may not be amended other than by a writing duly executed by each of the
Warrantholder and the Company.
IN
WITNESS WHEREOF, the Company caused this Warrant to be duly executed as of the
date first above written.
EXCEL
MARITIME CARRIERS LTD.
By:
_______________________________
Title:______________________________
EXHIBIT
A
NOTICE
OF EXERCISE
TO: EXCEL
MARITIME CARRIERS LTD.
(1) The
undersigned hereby elects to purchase Warrant Shares of the Company pursuant to
the terms of the attached Warrant (only if exercised in full), and tenders
herewith payment of the exercise price in full, together with all applicable
transfer taxes, if any.
(2) The
Warrantholder intends that payment of the Exercise Price shall be made as (check
one):
[ ] Cash Exercise. The undersigned has paid or delivered to the
Company $____________, the
aggregate Exercise Price for _____ shares of the Company's
Common Stock purchased herewith, in full in cash or by certified or official
bank check or wire transfer.
[
] Cashless
Exercise. In exchange for the
issuance of ______ shares of
the Company's Common Stock, the undersigned hereby agrees to surrender the right
to purchase shares of
Common Stock pursuant to the cashless exercise provisions set forth in Section
1(c) of the Warrant.
(3) Please
issue a certificate or certificates representing said Warrant Shares in the name
of the undersigned or in such other name as is specified below:
The
Warrant Shares shall be delivered to the following:
(4) Accredited
Investor. The undersigned is an "accredited investor" as defined in
Regulation D promulgated under the Securities Act of 1933, as
amended.
[SIGNATURE
OF WARRANTHOLDER]
|
Name
of Investing Entity:
_____________________________________________________________
|
|
Signature
of Authorized Signatory of Investing
Entity:_______________________________________
|
|
Name
of Authorized Signatory:
_________________________________________________________
|
|
Title
of Authorized
Signatory:__________________________________________________________
|
|
Date:
______________________________________________________________________________
|
EXHIBIT
B
EXCEL
MARITIME CARRIERS LTD.
WARRANT
TRANSFER FORM
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
____________________ the attached Warrant and appoints the Secretary of Excel
Maritime Carriers Ltd. (the “Company”) as its, his or her attorney to transfer
said right on the books of the Company with full power of substitution in the
premises.
Dated:
__________________________
___________________________
(Signature
must conform in all
respects
to name of Warrantholder as
specified
on the face of the Warrant
or on the
Company’s books and records)
__________________________
Address
WARRANT
OF TANEW HOLDINGS INC.
WARRANT
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ANY EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY
STATE SECURITIES OR BLUE SKY LAWS, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF (I) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND COMPLIANCE WITH SUCH STATE
LAWS OR (II) AN APPLICABLE EXEMPTION THEREFROM AND AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED. THIS WARRANT IS SUBJECT TO AN AGREEMENT BY THE REGISTERED
WARRANTHOLDER WITH THE COMPANY NOT TO SELL THIS WARRANT FOR A PERIOD OF TWELVE
MONTHS FOLLOWING THE DATE OF ISSUANCE HEREOF.
WARRANT
No. W -
2
For the
Purchase of 2,750,000 Shares of Common Stock
of Excel
Maritime Carriers Ltd.
(Organized
under the Laws of the Republic of Liberia)
This is to certify that, for value
received, Tanew Holdings Inc. or its, his or her permitted assigns (hereinafter
called the "Warrantholder"), is entitled, subject to the terms and conditions
hereinafter set forth, to purchase 2,750,000 shares of common stock (the "Common
Stock") of Excel Maritime Carriers Ltd., a Liberian corporation (hereinafter
called the "Company"), from the Company at the purchase price of $3.50 per
share, and to receive a certificate or certificates for the shares so
purchased. This Warrant is first issued on March 31, 2009 (the
"Original Issue Date"), and shall remain outstanding until the Termination Date
(as defined below) subject to the following terms and conditions.
1. Terms and Exercise of
Warrant
(a) Exercise
Period. Subject to the terms of this Warrant, the
Warrantholder shall have the right, at any time during the period commencing on
April 1, 2009 and ending at 5:00 P.M., New York City time, on March 31, 2010
(the "Termination Date"), or if such date is a day on which banking institutions
in The City of New York or in Hamilton, Bermuda are authorized by law to close,
then on the next succeeding day which shall not be such a day (a “Business
Day”), to purchase from the Company up to the number of fully paid and
nonassessable shares of Common Stock which the Warrantholder may at the time be
entitled to purchase pursuant to this Warrant. Such shares of Common
Stock and other shares that the Company may be required by the operation of
Section 4 to issue upon the exercise hereof are referred to hereinafter as the
"Warrant Shares."
(b) Method of
Exercise. This Warrant shall be exercised by surrender to the
Company, at its principal office at Par La Ville Place, 14 Par La Ville Road,
Hamilton HM JX, Bermuda, or at such other address as the Company may designate
by notice in writing to the Warrantholder at the address of the Warrantholder
appearing on the books of the Company or such other address as the Warrantholder
may designate in writing, of this Warrant certificate, together with the form of
Election to Purchase, included as Exhibit "A" hereto, duly completed and signed,
and upon payment to the Company of the Exercise Price (as defined in Section 3),
for the number of Warrant Shares with respect to which this Warrant is then
exercised together with all taxes and governmental fees and charges applicable
upon such exercise. Payment of the aggregate Exercise Price shall be
made in cash or by certified check or cashier's check drawn on a financial
institution reasonably acceptable to the Company, payable to the order of the
Company. In the event the Warrantholder elects to exercise only a
portion of the number of Shares of Common Stock which the Warrantholder is
entitled to purchase pursuant to this Warrant, the Company shall issue a new
Warrant entitling the Warrantholder to purchase the remaining number of Shares
not yet exercised (the “New Warrant”); provided, however, all Shares
of Common Stock purchased pursuant to this Warrant and any New Warrants must be
purchased before the Termination Date.
(c) Cashless
Exercise. If an Election to Purchase is delivered at a time
when (i) the fair market value of the Common Stock is greater than the Exercise
Price, (ii) a period of at least six months has passed since the Original Issue
Date, and (iii) Lhada Holdings Inc. and Tanew Holdings Inc. have purchased
securities from the Company, directly or indirectly, in an aggregate amount of
at least $50 million, then the Warrantholder may notify the Company in an
Election to Purchase of its election to utilize cashless exercise, in which
event the Company shall issue to the Warrantholder the number of Warrant Shares
determined as follows:
|
X =
Y [(A - B)/A]
|
|
where:
|
|
X =
the number of Warrant Shares to be issued to the
Warrantholder.
|
|
Y =
the number of Warrant Shares with respect to which this Warrant is being
exercised.
|
|
A =
the Fair Market Value
|
|
B =
the Exercise Price.
|
For
purposes hereof, “Fair Market Value” shall equal the closing price for the
trading day immediately prior to (but not including) the Exercise Date; provided
that if the stock is not then trading, the Fair Market Value shall be an amount
determined in such reasonable manner as may be prescribed by the Board of
Directors of the Company.
(d) Share Issuance Upon
Exercise. Upon such surrender of this Warrant certificate and
payment of such Exercise Price as aforesaid, the Company shall promptly
thereafter issue to the Warrantholder in such name or names as the Warrantholder
may designate in writing, a certificate or certificates for the number of full
Warrant Shares so purchased upon the exercise of the Warrant, together with
cash, as provided in Section 5 hereof, with respect to any fractional
Warrant Shares otherwise issuable upon such surrender. Such
certificate or certificates shall be deemed to have been issued and any person
so designated to be named therein shall be deemed to have become a holder of
such Warrant Shares as of the close of business on the date of the surrender of
this Warrant and payment of the Exercise Price, as aforesaid, notwithstanding
that the certificates representing such Warrant Shares shall not actually have
been delivered or that the transfer books of the Company shall then be
closed.
2. Legend On Warrant
Shares.
Each
certificate for Warrant Shares initially issued upon exercise of this Warrant,
unless at the time of exercise such Warrant Shares are registered with the
Securities Exchange Commission (the "Commission") under the Securities Act of
1933, as amended (the "Act"), shall bear the following legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
SOLD OR OFFERED FOR SALE IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AGREEMENT BY THE
REGISTERED HOLDER WITH THE COMPANY NOT TO TRANSFER, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMPANY, SUCH SHARES FOR A PERIOD ENDING ON MARCH 31,
2010. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH
SHARES.
Any certificate issued at any time in
exchange or substitution for any certificate bearing such legend (except a new
certificate issued upon completion of a public distribution pursuant to a
registration statement under the Act of the securities represented thereby)
shall also bear the above legend unless, in the opinion of such counsel as shall
be reasonably approved by the Company, the securities represented thereby need
no longer be subject to such restrictions.
3. Exercise
Price.
The price
per share at which Warrant Shares shall be purchasable on the exercise of this
Warrant shall be $3.50 per Share, subject to adjustment pursuant to Section 4
hereof (originally and as adjusted, the "Exercise Price").
4. Adjustment of Exercise Price
and Number of Shares.
The
number of Warrant Shares issuable upon the exercise of this Warrant Certificate
and the Exercise Price shall be subject to adjustment from time to time upon the
happening of certain events, as follows:
(a) Merger. If
at any time there shall be a merger or consolidation of the Company with or into
another corporation when the Company is not the surviving corporation, then, as
part of such merger or consolidation, lawful provision shall be made so that the
Warrantholder shall thereafter be entitled to receive upon exercise of rights
herein granted, during the period specified herein and upon payment of the
aggregate Exercise Price, the number of shares of stock or other securities or
property of the successor corporation resulting from such merger or
consolidation, to which a holder of the stock deliverable upon exercise of the
rights granted in this Warrant would have been entitled in such merger or
consolidation if such rights had been exercised immediately before such merger
or consolidation. In any such case, appropriate adjustment shall be
made in the application of the provisions of this Warrant with respect to the
rights and interests of the Warrantholder after the merger or
consolidation. The Company will not effect any such merger or
consolidation unless, prior to the consummation thereof, the successor
corporation shall assume, by written instrument reasonably satisfactory in form
and substance to the Warrantholder, the obligations of the Company under this
Warrant.
(b) Reclassification,
Etc. If the Company at any time shall, by combination or
reclassification of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such combination, reclassification or other
change.
(c) Stock Dividends, Splits,
Subdivisions or Combination of Shares. If the Company at any
time shall pay a stock dividend on its Common Stock or otherwise makes a
distribution on any class of capital stock that is payable in shares of Common
Stock, split or subdivide its Common Stock, the Exercise Price shall be
proportionately decreased and the number of Warrant Shares issuable pursuant to
this Warrant shall be proportionately increased. If the Company at
any time shall combine or reverse split its Common Stock, the Exercise Price
shall be proportionately increased and the number of Warrant Shares issuable
pursuant to this Warrant shall be proportionately decreased.
(d) Notices of Corporate
Events. If the Company (i) shall take a record of the holders
of its Common Stock for the purpose of entitling them to receive any dividend or
other distribution of cash, securities or other property in respect of its
Common Stock, (ii) authorizes or approves any (a) capital
reorganization of the Company, (b) any reclassification of the capital
stock of the Company, (c) any consolidation or merger of the Company with
or into another corporation, (d) any sale of all or substantially all of
its assets in one or a series of related transactions or (e) any tender
offer or exchange offer pursuant to which holders of the Common Stock are
permitted to tender or exchange their shares for other securities, cash or
property or (iii) authorizes the voluntary dissolution, liquidation or
winding up of the Company, then the Company shall mail or cause to be mailed to
each Warrantholder a notice describing the material terms and conditions of such
transaction at least 20 calendar days prior to the applicable record or
effective date on which a person would need to hold Common Stock in order to
participate in or vote with respect to such transaction, and the Company will
take all steps reasonably necessary in order to insure that the Warrantholder is
given the practical opportunity to exercise this Warrant prior to such time so
as to participate in or vote with respect to such transaction; provided, however, that the
failure to deliver such notice or any defect therein shall not affect the
validity of the corporate action required to be described in such
notice.
(e) No other Adjustments;
Warrant Certificates. Except as provided in this
Section 4, no other adjustments in the Exercise Price or the number or kind
of securities issuable upon exercise of this Warrant shall be made during the
term of this Warrant or upon exercise of this Warrant.
Irrespective
of any adjustments in the Exercise Price or the number or kind of securities
issuable upon the exercise of this Warrant, the Warrant certificate or
certificates theretofore or thereafter issued may continue to express the same
price or number or kind of securities stated in this Warrant initially issuable
hereunder.
5. Fractional
Interest.
The Company shall not be required to
issue fractional shares upon exercise of this Warrant but shall pay an amount of
cash equal to the then current trading price, or if there is no public market,
cash equal to the then fair market value of the shares as reasonably determined
by the Board of Directors of the Company, multiplied by such
fraction.
6. Transfers of
Warrant
(a) Transfer,
etc. The Company shall from time to time register the transfer
of this Warrant on its books and records upon surrender of this Warrant
accompanied by a written instrument or instruments of transfer substantially in
the form of Exhibit B attached hereto, duly executed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney or by the duly authorized agent, provided, however, that (i) the
transferee be a Permitted Holder (as defined below) and (ii) the Warrantholder
shall have given at least eight (5) Business Days prior notice thereof to the
Company, which notice shall include the identity of the
transferee. Upon any such registration of transfer, a new Warrant
shall be promptly issued to the transferee(s), in the denomination or
denominations specified in such instrument of transfer, and if requested by the
Warrantholder, the Company shall issue to the Warrantholder a new Warrant
evidencing the portion of this Warrant not so transferred. This Warrant shall be
surrendered by the Warrantholder and cancelled and disposed of by the Company. A
Warrant, if properly transferred in compliance with this Section 6, may be
exercised by a new holder for the receipt of shares of Common Stock without
having a new Warrant issued.
For the
purposes of this Warrant, the term “Permitted Holders” means the persons who are
named in “Risk Factors” in the Company’s F-4 filing dated February 15, 2008 and
(A) each of their spouses, parents, siblings, family members (including adopted
children), lineal descendants, spouses of their lineal descendants and adopted
children and/or (B) the heirs, executors, administrators, testamentary trustees
and legatees and/or (C) any foundation controlled by any of the foregoing
persons, any trusts for the benefit of any of the foregoing persons, any
corporations controlled by the foregoing persons and any affiliates of the
foregoing persons.
(b) Transferee. Any
person in possession of this Warrant properly endorsed and, if not the original
holder hereof, to whom possession was transferred in accordance with the
provisions of this Section 6 is authorized to represent himself as absolute
owner hereof and is granted power to transfer absolute title hereto by
endorsement and delivery hereof to a bona fide purchaser hereof for value; each
prior Warrantholder, taker or owner waives and renounces all of his equities or
rights in this Warrant in favor of every such bona fide purchaser, and every
such bona fide purchaser shall acquire title hereto and to all rights
represented hereby.
(c) Applicable
Laws. The Company shall not be required to register any
transfer of this Warrant pursuant to Section 6 hereof if such registration or
transfer violates applicable laws, including applicable United States or other
securities laws.
7. No
Rights as Shareholder Conferred by Warrant.
This Warrant shall not entitle the
Warrantholder to any of the rights of a holder of any common stock of the
Company, including, without limitation, the right to receive dividends, if any,
or payments upon the liquidation, dissolution or winding up of the Company or to
exercise any voting rights.
8. Notices.
Any notice given pursuant to this
Warrant by the Company or by the Warrantholder shall be in writing and shall be
deemed to have been duly given upon (a) transmitter's confirmation of the
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or (c) the expiration of five business days after the day when
mailed by certified or registered mail, return receipt requested, postage
prepaid at the addresses:
If to the Company:
Par La
Ville Place
14 Par La
Ville Road
Hamilton
HM JX
Bermuda
If to the Warrantholder, then to the
address of the Warrantholder in the Company's books and records.
Each party hereto may, from time to
time, change the address to which notices to it are to be transmitted, delivered
or mailed hereunder by written notice in accordance herewith to the other
party.
9. General
Provisions.
(a) Successors. All
the covenants and provisions of this Warrant shall bind and inure to the benefit
of the respective executors, administrators, successors and assigns of the
Warrantholder and the Company.
(b) Choice of
Law. THIS
WARRANT AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY, PERFORMANCE, AND ENFORCEMENT, AND WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS.
(c) Entire
Agreement. Except as provided herein, this Warrant, including
exhibits, contains the entire agreement of the parties, and supersedes all
existing negotiations, representations or agreements and other oral, written, or
other communications between them concerning the subject matter of this
Warrant.
(d) Severability. If
any provision of this Warrant is unenforceable, invalid, or violates applicable
law, such provision shall be deemed stricken and shall not affect the
enforceability of any other provisions of this Warrant.
(e) Captions. The
captions in this Warrant are inserted only as a matter of convenience and for
reference and shall not be deemed to define, limit, enlarge, or describe the
scope of this Warrant or the relationship of the parties, and shall not affect
this Warrant or the construction of any provisions herein.
(f) This
Warrant may not be amended other than by a writing duly executed by each of the
Warrantholder and the Company.
IN WITNESS WHEREOF, the Company caused
this Warrant to be duly executed as of the date first above
written.
EXCEL MARITIME CARRIERS
LTD.
By:______________________
Title:_____________________
EXHIBIT
A
NOTICE
OF EXERCISE
TO: EXCEL
MARITIME CARRIERS LTD.
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company
pursuant to the terms of the attached Warrant (only if exercised in full), and
tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
(2) The
Warrantholder intends that payment of the Exercise Price shall be made as (check
one):
|
|
[
]
|
Cash
Exercise. The undersigned has paid or delivered to the Company _________,
the aggregate Exercise Price for _________ shares of the Company's Common
Stock purchased herewith, in full in cash or by certified or official bank
check or wire transfer.
|
|
|
[
]
|
Cashless
Exercise. In exchange for the issuance of _________ shares of the
Company's Common Stock, the undersigned hereby agrees to surrender the
right to purchase shares of Common Stock pursuant to the cashless exercise
provisions set forth in Section 1(c) of the
Warrant.
|
(3) Please
issue a certificate or certificates representing said Warrant Shares in the name
of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following:
_______________________________
_______________________________
_______________________________
(4) Accredited
Investor. The undersigned is an “accredited investor” as
defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[SIGNATURE
OF WARRANTHOLDER]
Name of
Investing Entity:
________________________________________________________________________
Signature of Authorized Signatory of
Investing Entity:
_________________________________________________
Name of
Authorized Signatory:
___________________________________________________________________
Title of
Authorized Signatory:
____________________________________________________________________
Date:
________________________________________________________________________________________
EXHIBIT
B
EXCEL
MARITIME CARRIERS LTD.
WARRANT
TRANSFER FORM
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
____________________ the attached Warrant and appoints the Secretary of Excel
Maritime Carriers Ltd. (the “Company”) as its, his or her attorney to transfer
said right on the books of the Company with full power of substitution in the
premises.
Dated:
__________________________
___________________________
(Signature
must conform in all
respects
to name of Warrantholder as
specified
on the face of the Warrant or
on the
Company’s books and records)
__________________________
Address
SK 02545 0001 984144
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