SVRN 6-K
OceanPal Inc. (SVRN)
6-K
2025-10-28
For: 2025-10-31
View Original
Added on
July 04, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 OF THE
SECURITIES EXCHANGE ACT OF 1934
For the month of October 2025.
Commission File Number 001-40930
OCEANPAL INC.
(Translation of registrant’s name into English)
Pendelis 26, 175 64 Palaio Faliro, Athens, Greece
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
Form 20-F ☒ Form 40-F ☐
PIPE Subscription Agreements
On October 27, 2025, OceanPal Inc. (the “Company”) entered into subscription agreements (the “Cash Subscription Agreements”) with certain accredited investors (the “Cash Purchasers”) pursuant to which the Company
agreed to sell and issue to the Cash Purchasers in a private placement offering (the “Cash Offering”) an aggregate of 10,759,994 shares of common stock of the Company, par value $0.01 (the “Cash Shares”), at an offering price of $1.275 per Cash
Share (the “Per Share Cash Purchase Price”). In the Cash Offering, the Cash Purchasers had the option to tender any of U.S. dollars, USDC or USDT (or a combination thereof) to the Company as consideration for the Cash Shares.
Also, on October 27, 2025 the Company entered into subscription agreements (the “Cryptocurrency Subscription Agreements”, and together with the Cash Subscription Agreements, the “Subscription Agreements”) with
certain accredited investors (the “Cryptocurrency Purchasers,” and together with the Cash Purchasers, the “Purchasers”) pursuant to which the Company agreed to sell and issue to the Cryptocurrency Purchasers in a private placement (the
“Cryptocurrency Offering,” and together with the Cash Offering, the “PIPE Transaction”) (i) 10,136,033 shares of common stock of the Company, par value $0.01 per share (the “Cryptocurrency Shares”), at an offering price of $1.275 per
Cryptocurrency Share (the “Per Share Cryptocurrency Purchase Price”); and (ii) pre-funded warrants (the “Pre-Funded Warrants”) to purchase 75,210,318 shares of common stock (the “Pre-Funded Warrant Shares”) at an offering price of the Per
Share Cryptocurrency Purchase Price less $0.01 per Cryptocurrency Pre-Funded Warrant Share. In the Cryptocurrency Offering, the Cryptocurrency Purchasers tendered NEAR tokens to the Company as consideration for the Cryptocurrency Pre-Funded
Warrants.
Each of the Pre-Funded Warrants is exercisable for one share of common stock at the exercise price of $0.01 per Pre-Funded Warrant Share, immediately exercisable by the registered holder, and may be exercised at
any time following registration until all of the Pre-Funded Warrants issued in the PIPE Transaction are exercised in full. Each Purchaser’s ability to exercise its Pre-Funded Warrants in exchange for common stock is subject to certain
beneficial ownership limitations set forth therein.
The PIPE Transaction closed on October 28, 2025. The PIPE Transaction resulted in total gross proceeds of approximately $122.5 million before deducting estimated placement agent fees and other transaction fees
and expenses. The Company intends to use the net proceeds from the PIPE Transaction to fund the acquisition of the native token of the NEAR Protocol and the establishment of the Company’s NEAR treasury operations, as well as for working
capital, general corporate purposes and to pay transaction fees and expenses related thereto. The Company will not use the net proceeds from the PIPE Transaction: (a) for the redemption of any outstanding shares of common stock or common stock
equivalents of the Company, (b) for the settlement of any outstanding litigation or (c) in violation of the Foreign Corrupt Practices Act of 1977, as amended or the Office of Foreign Assets Control of the U.S. Treasury Department regulations.
Clear Street LLC and Cohen & Company Capital Markets, a division of Cohen & Company Securities, LLC are acting as the placement agents in connection with the PIPE Transaction.
The common stock and Pre-Funded Warrants (and underlying shares) were offered and sold in reliance upon the exemption from the registration requirement of the Securities Act of 1933, as amended (the “Securities
Act”), pursuant to Section 4(a)(2) thereof, and applicable state securities laws. The issuance of the common stock and Pre-Funded Warrants (and underlying shares) have not been registered under the Securities Act and such securities may not be
offered or sold in the United States absent registration or an exemption from registration under the Securities Act and any applicable state securities laws.
Pursuant to the Subscription Agreements, the Company agreed to file a registration statement with the U.S. Securities and Exchange Commission, within 30 days of the closing of the PIPE Transaction registering the
resale of, among others, the common stock sold in the PIPE Transaction and the common stock underlying the Pre-Funded Warrants.
Each of the Purchasers have agreed, pursuant to lock-up agreements (the “Lock-Up Agreements”), not to sell, transfer, pledge, hedge, or otherwise dispose of any of its respective Cash Securities, Cryptocurrency
Shares and Cryptocurrency Pre-Funded Warrant Shares (the Cryptocurrency Shares and Cryptocurrency Pre-Funded Warrant Shares together the “Cryptocurrency Securities”) until the resale registration statement is declared effective (the
“Effectiveness Date”), and with respect to 50% of its respective Cash Securities and Cryptocurrency Securities, until 30 calendar days following the Effectiveness Date, except with the Company’s prior written consent and subject to certain
customary exceptions.
The foregoing summaries of the Pre-Funded Warrants, Subscription Agreements and Lock-Up Agreements do not purport to be complete and are qualified in their entirety by reference to the complete text of those
agreements, the forms of which are attached hereto as Exhibits 4.1, 10.1, 10.2, 10.3 and 10.4 respectively, to this Report on Form 6-K and are hereby incorporated by reference.
Amendment to Statement of Designations and Resale of the Company’s Series B and Series E Preferred Shares
Concurrently with the PIPE Transaction, the Company’s board of directors (the “Board”) unanimously approved amendments to the Statements of Designation (each a “Statement of Designation” and together, the
“Statements of Designation”) (copies of which are included as Exhibit 4.2 and 4.3 to this Report on Form 6-K) governing the terms of the Company’s Series B Preferred Stock, par value of $0.01 (the “Series B Preferred Stock”), originally filed
on November 8, 2021 and the terms of the Company’s Series E Preferred Stock, par value $0.01 per share (the “Series E Preferred Stock”), originally filed on March 20, 2023. The Series B Preferred Stock Statement of Designation was amended to
establish a limitation on voting power such that no individual holder, together with its affiliates and related parties, may exercise voting rights by virtue of the Series B Preferred Stock exceeding 9.99% of the total voting power of the
Company’s outstanding voting securities. The amendment to the Series E Preferred Stock Statement of Designation eliminated the holders’ conversion rights, thereby removing the ability of such shares to be converted into shares of the Company’s
common stock.
Concurrently with the PIPE Transaction, the holders of our Series B Preferred Shares and Series E Preferred Shares agreed to sell all of their Series B Preferred Shares and Series E Preferred Shares to certain
Cryptocurrency Purchasers and incoming members of management. In addition, in connection with the PIPE Transaction certain insiders of the Company, as well as the holders of the Company’s Series B Preferred Shares and Series E Preferred Shares
immediately prior to the closing of the PIPE Transaction will receive, in the aggregate, 3,529,411 shares of newly issued common stock of the Company and approximately $10.5 million in cash, payable out of the net proceeds of the Cash Offering.
Stockholders Rights Agreement
In connection with entering into the Subscription Agreements, the Company executed an amended and restated stockholders rights agreement (the “Amended and Restated Stockholders Rights Agreement”) which amends and
restates the Company’s existing amended and restated stockholders rights agreement dated as of January 22, 2025, with Computershare Trust Company N.A. serving as the Company’s rights agent. The Amended and Restated Stockholder Rights Agreement
is attached hereto as Exhibit 10.3.
Changes to Management
Effective as of October 28, 2025, Semiramis Paliou, the Chairperson and member of the Board resigned from her position, in order to pursue other activities. Ms. Paliou advised the Company that her departure from
the Board did not result from any disagreement with the Company, its management or the Board on any matter, whether related to the Company’s operations, policies, practices or otherwise. Mr. Salvatore Ternullo was appointed to fill the Board
vacancy resulting from Ms. Paliou’s resignation and will also serve as a Class I Director, Chairperson, and as the Co-Chief Executive Officer of the Company alongside Mr. Robert Perri. Set forth below is certain biographical information of Mr.
Ternullo.
Since November 2023, Mr. Ternullo has served as General Partner of A100x Fund II GP LLC, where he leads capital formation, investment execution, portfolio management, administration, and audit and compliance
functions. Since March 2021, he has also served as General Partner of Animal Ventures Tomorrow Fund SCSp. Earlier in Mr. Ternullo’s career, Mr. Ternullo spent time as a Director with KPMG LLP, where he managed U.S. advisory work focused on
emerging technologies, including public blockchains, and on domains such as cybersecurity, anti-money laundering compliance and regulatory licensing. Mr. Ternullo also has experience at State Street performing risk-based internal audit across
technology and business processes. Mr. Ternullo is a Certified Information Systems Auditor (CISA) and holds a Bachelor of Science in Corporate Finance and Accounting and a Master of Accountancy from Bentley University.
We believe that Mr. Ternullo is well qualified to serve on the Board due to his hands-on investment leadership and risk, audit, and technology advisory experience, including specific expertise in public
blockchains.
(a) Exhibits
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Number
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Description
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4.1
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4.2
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4.3
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10.1
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10.2
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10.3
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10.4
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99.1
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
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Date: October 28, 2025
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OCEANPAL INC.
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By:
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/s/ Robert Perri
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Name: Robert Perri
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Title: Co-Chief Executive Officer
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Exhibit 4.1
Form of Pre-Funded Warrant
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS WARRANT (THE “SECURITIES”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (II) AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION AND THE DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH REGISTRATION IS NOT REQUIRED.
FORM OF PRE-FUNDED WARRANT TO PURCHASE COMMON STOCK
Number of Shares: [●]
(subject to adjustment)
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Warrant No. [●]
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Original Issue Date: [●], 2025
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[•], a [•] corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, [●] or its registered assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company up to a total of [●] shares of common
stock of the Company, $0.01 par value per share, and any other class of securities into which such securities may hereafter be reclassified or changed (the “Common Stock”), of the Company (each such share, a “Warrant Share” and all such shares, the “Warrant Shares”) at the remaining exercise price per share equal to $0.01 per Warrant Share (the “Remaining
Exercise Price” and, together with the pre-funded purchase price per share, the “Exercise Price”), in each case as adjusted from time to time as provided in Section 9, upon surrender of this
Warrant to purchase Common Stock (including any Warrants to purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”) at any time and from time to time on or after the date hereof
(the “Original Issue Date”), subject to the following terms and conditions:
This Warrant is one of a series of similar warrants issued pursuant to that certain Subscription Agreement, dated [•], 2025, by and among the Company and the
Subscribers identified therein (the “Subscription Agreement”). Certain capitalized terms used herein and not otherwise defined have the meanings given to such terms in the Subscription Agreement.
1. Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
“Affiliate” means, with respect to any specified Person, (a) any other Person that, directly or indirectly through one
or more intermediates, controls, is controlled by or is under common control with such Person or (b) in the event that the specified Person is a natural Person, a Member of the Immediate Family of such Person; provided that the Company and each of
its subsidiaries shall be deemed not to be Affiliates of any Subscriber. As used in this definition, the term “control” 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 ownership of voting securities, by contract or otherwise; provided that the Affiliates of any Person that is an investment fund shall not include any portfolio companies of such investment fund or any affiliated
investment fund.
“Attribution Parties” means, collectively, the following Persons and entities: (i) any direct or indirect Affiliates of
the Holder, (ii) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the date hereof, directly or indirectly managed or advised by the Holder’s investment manager or any of its
Affiliates or principals, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any Attribution Parties and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock would or could be
aggregated with the Holder’s and/or any other Attribution Parties for purposes of Section 13(d) or Section 16 of the Exchange Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to
the Maximum Percentage.
“Closing Sale Price” means, for any security as of any date, the last trade price for such security on the Principal
Trading Market for such security, as reported by Bloomberg Financial Markets, or, if such Principal Trading Market begins to operate on an extended hours basis and does not designate the last trade price, then the last trade price of such security
prior to 4:00 P.M., New York City time, as reported by Bloomberg Financial Markets, or if the foregoing do not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported
by Bloomberg Financial Markets. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually
determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then the Board of Directors of the Company shall use its good faith judgment to determine the fair market value.
The Board of Directors’ determination shall be binding upon all parties absent demonstrable error. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during the
applicable calculation period.
“Commission” means the U.S. Securities and Exchange Commission.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and all of the rules and regulations
promulgated thereunder.
“Group” shall have the meaning ascribed to it in Section 13(d) of the Exchange Act, and all related rules, regulations
and jurisprudence.
“Member of the Immediate Family” means, with respect to any Person who is an individual, (a) each parent, spouse (but
not including a former spouse or a spouse from whom such Person is legally separated) or child (including those adopted) of such individual and (b) each trustee, solely in his or her capacity as trustee, for a trust naming only one or more of the
Persons listed in sub-clause (a) as beneficiaries.
“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company,
trust, incorporated or unincorporated association, joint venture, government (or an agency or subdivision thereof) or any other entity or organization.
“Principal Trading Market” means the national securities exchange or other trading market on which the Common Stock is
primarily listed on and quoted for trading, which, as of the Original Issue Date, is The Nasdaq Capital Market.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and all of the rules and regulations promulgated thereunder.
“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, for the
Principal Trading Market with respect to the Common Stock that is in effect on the date of delivery of an applicable Exercise Notice (as defined below), which as of the Original Issue Date was “T+1.”
“Trading Day” means any weekday on which the Principal Trading Market is open for trading.
“Transfer Agent” means [•]1, the Company’s transfer agent and registrar for the Common Stock, and any
successor appointed in such capacity.
2. Issuance of Securities; Registration of Warrants. The Company shall register ownership of this Warrant, upon
records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder (which shall include the initial Holder or, as the case may be, any assignee to which this
Warrant is permissibly assigned hereunder) from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all
other purposes, absent actual notice to the contrary.
1 RS Note: Please provide the name of the transfer agent.
3. Registration of Transfers. This Warrant and all rights hereunder (including, without limitation, any
registration rights in respect of the Warrant Shares) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant
substantially in the form attached hereto duly executed by the Holder or its agent or attorney, duly authorized, and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Subject to compliance with all applicable
securities laws, the Company shall, or will cause its Transfer Agent to, register the transfer of all or any portion of this Warrant in the Warrant Register, upon surrender of this Warrant, and payment for all applicable transfer taxes (if any). Upon
any such registration or transfer, a new warrant to purchase Common Stock in substantially the form of this Warrant (any such new warrant, a “New Warrant”) evidencing the portion of this Warrant so transferred
shall be issued to the transferee, and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed
acceptance by such transferee of all of the rights and obligations in respect of the New Warrant that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer Agent to, prepare, issue and deliver at the Company’s own
expense any New Warrant under this Section 3. Until due presentment for registration of transfer, the Company may treat the registered Holder hereof as the owner and holder for all purposes, and the Company shall not be affected by any notice
to the contrary.
4. Exercise of Warrants.
(a) All or any part of this Warrant shall be exercisable by the registered Holder in any manner permitted by this Warrant (including Section 11) at any
time and from time to time on or after the Original Issue Date, and such rights shall not expire until exercised in full.
(b) The Holder may exercise this Warrant by delivering to the Company (i) an exercise notice, in the form attached as Schedule 1 hereto (the “Exercise Notice”), completed and duly signed, and (ii) payment of the Remaining Exercise Price for the number of Warrant Shares as to which this Warrant is being exercised (which may take the form of a “cashless
exercise” if so indicated in the Exercise Notice pursuant to Section 10 below), and the date on which the last of such items is delivered to the Company (as determined in accordance with the notice provisions hereof) is an “Exercise Date.” The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice shall have the same effect as cancellation
of the original Warrant and issuance of a New Warrant evidencing the right to purchase the remaining number of Warrant Shares, if any.
(c) The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this section, following the purchase
of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
5. Delivery of Warrant Shares.
(a) Upon exercise of this Warrant, the Company shall promptly (but in no event later than the number of Trading Days comprising the Standard Settlement Period
following the Exercise Date), upon the request of the Holder, cause the Transfer Agent to credit such aggregate number of shares of Common Stock specified by the Holder in the Exercise Notice and to which the Holder is entitled pursuant to such
exercise (the “Exercise Shares”) to (i) the Holder’s or its designee’s balance account with The Depository Trust Company (“DTC”) through its Deposit Withdrawal At
Custodian system or (ii) in book-entry form via a direct registration system (“DRS”) maintained by or on behalf of the Transfer Agent, in each case, so long as either (A) there is an effective registration
statement permitting the issuance of the Warrant Shares to or the resale of such Warrant Shares by the Holder or (B) the Exercise Shares are eligible for resale by the Holder without volume or manner-of-sale restrictions pursuant to Rule 144
promulgated under the Securities Act (assuming cashless exercise of this Warrant). If (A) and (B) above are not true, the Company shall cause the Transfer Agent to either (i) record the Exercise Shares in the name of the Holder or its designee on the
certificates reflecting the Exercise Shares with an appropriate legend regarding restriction on transferability and stop transfer notation, which shall be issued and dispatched by overnight courier to the address as specified in the Exercise Notice,
and on the Company’s share register or (ii) issue such Exercise Shares in the name of the Holder or its designee in restricted book-entry form in the Company’s share register reflecting such legend and notation. The Holder, or any Person so
designated by the Holder to receive Warrant Shares, shall be deemed to have become the holder of record of such Warrant Shares as of the Exercise Date, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account, the date of
the book entry positions or the date of delivery of the certificates evidencing such Exercise Shares, as the case may be.
(b) In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to deliver to the Holder or its designee Exercise
Shares in the manner required pursuant to Section 5(a) within the Standard Settlement Period following the Exercise Date (other than a failure caused by incorrect or incomplete information provided by the Holder to the Company) and the Holder
or the Holder’s broker on its behalf purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”) but did not receive within the Standard Settlement Period, then the Company shall, within two (2) Trading Days after the Holder’s request and in the Holder’s sole discretion, promptly honor its obligation
to deliver to the Holder or its designee the Exercise Shares pursuant to Section 5(a) and pay cash to the Holder in an amount equal to the excess (if any) of the Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased in the Buy-In, less the product of (A) the number of shares of Common Stock purchased in the Buy-In, times (B) the Closing Sale Price of a share of Common Stock on the Exercise Date. The Holder shall provide the
Company written notice promptly after the occurrence of a Buy-In, indicating the amounts payable to the Holder in respect of the Buy-In together with applicable confirmations and other evidence reasonably requested by the Company.
(c) To the extent permitted by law and subject to Section 5(b), the Company’s obligations to issue and deliver Warrant Shares in accordance with and
subject to the terms hereof (including the limitations set forth in Section 11 below) are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any
provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any
obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance that might otherwise limit such obligation of the Company to the Holder in connection with the
issuance of Warrant Shares. Subject to Section 5(b), nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance
and/or injunctive relief with respect to the Company’s failure to timely deliver Exercise Shares; provided, however, that the Holder shall not be entitled to both (i) require the Company to reinstate the portion of the Warrant and equivalent number
of Warrant Shares for which such exercise was not timely honored and (ii) receive the number of shares of Common Stock that would have been issued if the Company had timely complied with its delivery requirements under Section 5(a).
6. Charges, Taxes and Expenses. Issuance and delivery of Exercise Shares shall be made without charge to
the Holder for any issue or transfer tax, transfer agent fee or other incidental tax or expense (excluding any applicable stamp duties) in respect of the issuance of such shares, all of which taxes and expenses shall be paid by the Company; provided,
however, that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the registration of any Warrant Shares or the Warrants in a name other than that of the Holder. The Holder shall be responsible
for all other tax liabilities that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof. Each party hereto intends that this Warrant shall be treated as stock for U.S. federal (and applicable
state and local) income tax purposes.
7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or
destruction (in such case) and, in each case, a customary contractual indemnity reasonably acceptable to the Company, if requested. If a New Warrant is requested as a result of a mutilation of this Warrant, then the Holder shall deliver such
mutilated Warrant to the Company as a condition precedent to the Company’s obligation to issue the New Warrant.
8. Reservation of Warrant Shares. The Company covenants that it will, at all times while this Warrant is
outstanding, reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as herein provided, the
number of Warrant Shares that are at all times issuable and deliverable upon the exercise of this entire Warrant (without regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage (as
defined below)), free from preemptive rights or any other contingent purchase rights of persons other than the Holder (taking into account the adjustments and restrictions of Section 9). The Company covenants that all Warrant Shares so
issuable and deliverable shall, upon issuance and the payment of the applicable Remaining Exercise Price in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and non-assessable. The Company will take all such
action as may be reasonably necessary to assure that such shares of Common Stock may be issued as provided herein without violation by the Company of any applicable law or regulation, or of any requirements of any securities exchange or automated
quotation system upon which the Common Stock may be listed. The Company further covenants that it will not, without the prior written consent of the Holder, take any actions to increase the par value of the Common Stock at any time while this Warrant
is outstanding.
9. Certain Adjustments. The Remaining Exercise Price and number of Warrant Shares issuable upon exercise of this
Warrant (the “Number of Warrant Shares”) are subject to adjustment from time to time as set forth in this Section 9.
(a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on its Common Stock or
otherwise makes a distribution on any class of capital stock issued and outstanding on the Original Issue Date and in accordance with the terms of such stock on the Original Issue Date or as amended, that is payable in shares of Common Stock, (ii)
subdivides its outstanding shares of Common Stock into a larger number of shares of Common Stock, (iii) combines its outstanding shares of Common Stock into a smaller number of shares of Common Stock or (iv) issues by reclassification of shares of
capital stock any additional shares of Common Stock of the Company, then in each such case the Number of Warrant Shares shall be multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately
after such event and the denominator of which shall be the number of shares of Common Stock outstanding immediately before such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution, provided, however, that if such record date shall have been fixed and such dividend is not fully paid on the date fixed therefor, the Number of Warrant
Shares shall be recomputed accordingly as of the close of business on such record date and thereafter the Number of Warrant Shares shall be adjusted pursuant to this paragraph as of the time of actual payment of such dividends. Any adjustment
pursuant to clause (ii), (iii) or (iv) of this paragraph shall become effective immediately after the effective date of such subdivision, combination or issuance.
(b) Pro Rata Distributions. If, on or after the Original Issue Date, the Company shall declare or make any dividend or other pro rata distribution of
its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property, options, evidence of
indebtedness or any other assets by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction, but, for the avoidance of doubt, excluding any distribution of shares of Common Stock
subject to Section 9(a), any distribution of Purchase Rights (as defined below) subject to Section 9(c) and any Fundamental Transaction (as defined below) subject to Section 9(d)) (a “Distribution”)
then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage) immediately before the date on which a record is taken for such Distribution, or, if no such record
is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution; provided, that to the extent that the Holder’s right to
participate in any such Distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution to such extent (and shall not be entitled to
beneficial ownership of such shares of Common Stock as a result of such Distribution (and beneficial ownership) to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time or times as
its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such Distribution (and any Distributions declared or made on such initial
Distribution or on any subsequent Distribution held similarly in abeyance) to the same extent as if there had been no such limitation.
(c) Purchase Rights. If at any time on or after the Original Issue Date, the Company grants, issues or sells any Options, Convertible Securities or
rights to purchase stock, warrants, securities or other property, in each case pro rata to the record holders of any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any
limitations or restrictions on exercise of this Warrant, including without limitation, the Maximum Percentage) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is
taken, the date as of which the record holders of Common Stock are to be determined for the grant, issuance or sale of such Purchase Rights; provided, that to the extent that the Holder’s right to
participate in any such Purchase Right would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to such extent (and shall not be
entitled to beneficial ownership of such Common Stock as a result of such Purchase Right (and beneficial ownership) to such extent) and at the Holder’s election, in its sole discretion, either (1) such Purchase Right to such extent shall be held in
abeyance for the benefit of the Holder until such time or times as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such right (and
any Purchase Right granted, issued or sold on such initial Purchase Right or on any subsequent Purchase Right to be held similarly in abeyance) to the same extent as if there had been no such limitation or (2) the Company shall offer the Holder the
right upon exercise of such Purchase Right to acquire a security (e.g. a pre-funded warrant) that would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage but will otherwise to the extent possible have
economic and other rights, preferences and privileges substantially consistent and on par with the securities or other property issuable upon exercise of the originally offered Purchase Rights). As used in this Section 9(c), (i) “Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities and (ii) “Convertible Securities” mean any stock
or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable for shares of Common Stock.
(d) Fundamental Transactions. If, at any time while this Warrant is outstanding (i) the Company, directly or indirectly, in one or more related
transactions effects any merger or amalgamation or consolidation of the Company with or into another Person, in which the Company is not the surviving entity or in which the stockholders of the Company immediately prior to such merger or
consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale to another Person of all or substantially all of its assets
in one or a series of related transactions, (iii) pursuant to any tender offer or exchange offer (whether by the Company or another Person), holders of capital stock tender shares representing more than 50% of the voting power of the capital stock of
the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company consummates a stock purchase agreement or other business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the voting power of the capital stock of the Company (except for any such transaction in which the stockholders of the
Company immediately prior to such transaction maintain, in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any reclassification of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above) (in any
such case, a “Fundamental Transaction”), then following such Fundamental Transaction, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise
immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder, the same amount and kind of securities of the successor or acquiring corporation or of the Company, cash or property as it would have been entitled to
receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the number of Warrant Shares then issuable upon exercise in full of this Warrant (including any Distributions
or Purchase Rights then held in abeyance pursuant to Sections 9(b) or 9(c) above) without regard to any limitations on exercise contained herein (the “Alternate Consideration”) (provided, that to the extent
that the Holder’s right to receive any such Alternate Consideration would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the holder shall not be entitled to receive such Alternate Consideration to such
extent (and shall not be entitled to beneficial ownership of such Common Stock as a result of such Alternate Consideration (and beneficial ownership) to such extent) and at the Holder’s election, in its sole discretion, either (1) such Alternate
Consideration to such extent shall be held in abeyance for the benefit of the Holder until such time or times as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or
times the Holder shall be granted such right (and any Alternate Consideration granted, issued or sold on such initial receipt or on any subsequent receipt to be held similarly in abeyance) to the same extent as if there had been no such limitation)
or (2) the Company shall offer the Holder the right upon receipt of such Alternate Consideration to acquire a security (e.g. a pre-funded warrant) that would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage
but will otherwise to the extent possible have economic and other rights, preferences and privileges substantially consistent and on par with the securities or other property issuable upon exercise of the originally offered Alternate Consideration).
The Company shall not effect any Fundamental Transaction in which the Company is not the surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company
provides for the simultaneous “cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any
purchaser of assets of the Company) shall assume the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this
Warrant. Notwithstanding, anything to the contrary contained herein, the Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”)
to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 9(d). Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted
for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power
of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits
of the provisions of this Section 9(d) regardless of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Exercise Date.
The provisions of this paragraph (d) shall similarly apply to subsequent transactions analogous to a Fundamental Transaction type.
(e) Number of Warrant Shares. Simultaneously with any adjustment to the Number of Warrant Shares pursuant to Section 9, the Remaining Exercise
Price shall be increased or decreased proportionately, so that after such adjustment the aggregate Remaining Exercise Price payable hereunder for the increased or decreased Number of Warrant Shares shall be the same as the aggregate Remaining
Exercise Price in effect immediately prior to such adjustment. Notwithstanding the foregoing, in no event may the Remaining Exercise Price be adjusted below the par value of the Common Stock then in effect.
(f) Calculations. All calculations under this Section 9 shall be made to the nearest one-tenth of one cent or rounded down to the nearest whole
share, as applicable.
(g) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this Section 9, the Company at its expense will, at the written
request of the Holder, promptly compute such adjustment, in good faith, in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a statement of the adjusted Remaining Exercise Price and adjusted
number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts upon which such adjustment is based. Upon written
request, the Company will promptly deliver a copy of each such certificate to the Holder and to the Company’s transfer agent.
(h) Notice of Corporate Events. If, while this Warrant is outstanding, the Company (i) declares a dividend or any other distribution of cash, securities
or other property in respect of its Common Stock, including, without limitation, any granting of rights or warrants to subscribe for or purchase any capital stock of the Company or any subsidiary, (ii) authorizes or approves, enters into any
agreement contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the Company shall deliver to the Holder a notice of
such transaction at least ten (10) business 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; 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. In addition, if while this Warrant is outstanding, the Company authorizes or approves, enters into any
agreement contemplating or solicits stockholder approval for any Fundamental Transaction contemplated by Section 9(d), other than a Fundamental Transaction under clause (iii) of Section 9(d), the Company shall deliver to the Holder a
notice of such Fundamental Transaction at least ten (10) business days prior to the date such Fundamental Transaction is consummated. Holder agrees to maintain any information disclosed pursuant to this Section 9(h) in confidence until such
information is publicly available, and shall comply with applicable law with respect to trading in the Company’s securities following receipt of any such information. Notwithstanding anything in this Section 9 to the contrary, the Company
shall be deemed to have provided the information required to be delivered to a Holder under this Section 9 if disseminated by press release or filed in any report or statement filed with the Commission prior to the applicable deadline.
10. Payment of Exercise Price. Notwithstanding anything contained herein to the contrary, the Holder may, in its
sole discretion, satisfy its obligation to pay the Remaining Exercise Price through a “cashless exercise”, in which event the Company shall issue to the Holder the number of Warrant Shares in an exchange of securities effected pursuant to Section
3(a)(9) of the Securities Act, determined as follows:
X = Y [(A-B)/A]
where:
“X” equals the number of Warrant Shares to be issued to the Holder;
“Y” equals the total number of Warrant Shares with respect to which this Warrant is then being exercised if such exercise were by means of a cash exercise rather than a cashless
exercise;
“A” equals the Closing Sale Price of the shares of Common Stock on the Trading Day immediately preceding the Exercise Date; and
“B” equals the Remaining Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
The issue price for each such Warrant Shares to be issued pursuant to the cashless exercise of a Warrant will be equal to (B), as defined above, and the total issue price for the
aggregate number of Warrant Shares issued pursuant to the cashless exercise of a Warrant will be deemed paid and satisfied in full by the deemed surrender to the Company of the portion of such Warrant being exercised in accordance with this Section
10.
For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a “cashless exercise” transaction
shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the Original Issue Date (provided that the Commission continues to take the position that such treatment is
proper at the time of such exercise). In the event that a registration statement registering the issuance of Warrant Shares is, for any reason, not effective at the time of exercise of this Warrant, then this Warrant may only be exercised through a
cashless exercise, as set forth in this Section 10. If the Warrant Shares are issued in such a cashless exercise, the Company acknowledges and agrees that, in accordance with Section 3(a)(9) of the Securities Act, the Exercise Shares issued
in such exercise shall take on the registered characteristics of the Warrants being exercised and may be tacked on to the holding period of the Warrants being exercised. Except as set forth in Section 5(b) (Buy-in Remedy) and Section 12
(No Fractional Shares), in no event will the exercise of this Warrant be settled in cash.
11. Limitations on Exercise.
(a) Notwithstanding anything to the contrary contained herein, the Company shall not effect the exercise of any portion of this Warrant, and the Holder of this
Warrant shall not have the right to exercise any portion of the Warrant, and any such exercise shall be null and void ab initio and treated as if the exercise had not been made, to the extent that immediately prior to or following such exercise, the
Holder, together with the Attribution Parties, beneficially owns or would beneficially own as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder, in excess of 4.99% or 9.99% (or such other amount as a
holder may specify) (the “Maximum Percentage”) of the Common Stock that would be issued and outstanding following such exercise. For purposes of calculating beneficial ownership for determining whether the
Maximum Percentage is or will be exceeded, the aggregate number of shares of Common Stock held and/or beneficially owned by the Holder together with the Attribution Parties, shall include the number of shares of Common Stock held and/or beneficially
owned by the Holder together with the Attribution Parties plus the number of shares of Common Stock issuable upon exercise of the relevant Warrant with respect to which the determination is being made but shall exclude the number of shares of Common
Stock which would be issuable upon (i) exercise of the remaining, unexercised Warrant held and/or beneficially owned by the Holder or the Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other
securities of the Company held and/or beneficially owned by such Holder or any Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise
analogous to the limitation contained herein. For purposes of this Section 11(a), beneficial ownership of the Holder or the Attribution Parties shall, except as set forth in the immediately preceding sentence, be calculated and determined in
accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, a Holder of this Warrant may rely on the number of outstanding
shares of Common Stock as reflected in (1) the Company’s most recent Form 20-F, Current Report on Form 6-K or other public filing with the Securities and Exchange Commission, as the case may be, (2) a more recent public announcement by the Company or
(3) any other notice by the Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (such issued and outstanding shares, the “Reported Outstanding Share Number”).
For any reason at any time, upon the written or oral request of the Holder, the Company shall within one business day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The Holder
shall disclose to the Company the number of shares of Common Stock that it, together with the Attribution Parties holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on
exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting an Exercise Notice for the relevant Warrant. If the Company receives an Exercise Notice from the Holder at a time when the actual
number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice
would otherwise cause the Holder’s, together with the Attribution Parties’, beneficial ownership, as determined pursuant to this Section 11(a), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of
Warrant Shares to be purchased pursuant to such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) or that no reduction is necessary in order to receive shares in
compliance with the Maximum Percentage, and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares (if any) and to issue the shares to the Holder (reduced by the
Reduction Shares, if applicable). In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder and the
Attribution Parties since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder, together with the Attribution
Parties, being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the
Holder’s, together with the Attribution Parties’, aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the
Holder and/or the Attribution Parties shall not have the power to vote or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return to the Holder
the exercise price paid by the Holder for the Excess Shares and the Holder shall return such Excess Shares (if in its possession) to the Company. By written notice to the Company, a Holder of this Warrant may from time to time increase or decrease
the Maximum Percentage to any other percentage specified in such notice, provided, however, that (1) in no case shall the percentage specified be in excess of 19.99% and (2) any increase in the Maximum Percentage will not be effective until the 61st
day after such notice is delivered to the Company and shall not negatively affect any partial exercise effected prior to such change.
(b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder or the Attribution Parties may receive or beneficially own in
order to determine the amount of securities or other consideration that such Holder or the Attribution Parties may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant. For purposes of clarity, the
shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder or the Attribution Parties for any purpose including for purposes of Section 13(d) of
the Exchange Act and the rules promulgated thereunder or Section 16 of the Exchange Act and the rules promulgated thereunder, including Rule 16a-1(a)(1). No prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on
the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms
of this Section 11 to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 11 or to make
changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.
12. No Fractional Shares. No fractional Warrant Shares will be issued in connection with any exercise of this
Warrant. In lieu of any fractional shares that would otherwise be issuable, the number of Warrant Shares to be issued shall be rounded down to the next whole number.
13. Notices. Any and all notices or other communications or deliveries hereunder (including, without limitation,
any Exercise Notice) shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered confirmed e-mail prior to 5:00 P.M., New York City time, on a Trading Day,
(b) the next Trading Day after the date of transmission, if such notice or communication is delivered via confirmed e-mail on a day that is not a Trading Day or later than 5:00 P.M., New York City time, on any Trading Day, (c) the Trading Day
following the date of mailing, if sent by nationally recognized overnight courier service specifying next business day delivery, or (d) upon actual receipt by the Person to whom such notice is required to be given, if by hand delivery:
(a) If to the Company, addressed as follows:
[•]
Attn: [•]
E-mail: [•]
with a copy (which shall not constitute notice):
[•]
Attn: [•]
E-mail: [•]
(b) If to the Holder, at its address or e-mail address set forth in the books and records of the Company, which may be modified by written notice from the
Holder to the Company.
14. Warrant Agent. The Company shall initially serve as warrant agent under this Warrant. Upon ten (10) days’
notice to the Holder, the Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Company or any new warrant agent shall
be a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or shareholders services business shall be a successor warrant agent under this Warrant without any further act. Any such
successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register. The Holder acknowledges that this
Warrant may be held in book-entry form through the facilities of the Company’s warrant agent and, at the request of the Holder, may be issued in definitive form.
15. Miscellaneous.
(a) No Rights as a Stockholder. Except as otherwise set forth in this Warrant, the Holder, solely in such Person’s capacity as a holder of this Warrant,
shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the
Holder of this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger,
amalgamation, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due exercise
of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such
liabilities are asserted by the Company or by creditors of the Company.
(b) Further Assurances. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without
limitation, amending its certificate or articles of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth
in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par
value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable Warrant Shares upon the exercise of this Warrant, and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform its obligations under this Warrant. Before taking any action which would result
in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
(c) Successors and Assigns. Subject to compliance with applicable securities laws, this Warrant may be assigned by the Holder. This Warrant may not be
assigned by the Company without the written consent of the Holder, except to a successor in the event of a Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the Company and the Holder and their respective
successors and assigns. Subject to the preceding sentence, nothing in this Warrant shall be construed to give to any Person other than the Company and the Holder any legal or equitable right, remedy or cause of action under this Warrant.
(d) Amendment and Waiver. This Warrant may be amended only in writing signed by the Company and the Holder, or their successors and assigns. Except as
otherwise provided herein, the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the Holder.
(e) Acceptance. Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.
(f) Governing Law; Jurisdiction. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. EACH OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE
AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE
ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT. EACH OF THE COMPANY AND
THE HOLDER HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY)
TO SUCH PERSON AT THE ADDRESS IN EFFECT FOR NOTICES TO IT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS
IN ANY MANNER PERMITTED BY LAW. EACH OF THE COMPANY AND THE HOLDER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
(g) Headings. The headings herein are for convenience only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any of
the provisions hereof.
(h) Severability. If any part or provision of this Warrant is held unenforceable or in conflict with the applicable laws or regulations of any
jurisdiction, the invalid or unenforceable part or provisions shall be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder
of this Warrant shall remain binding upon the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS
WHEREOF, the Company has caused this Warrant to be duly executed by its authorized officer as of the date first indicated above.
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By:
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Name:
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[•]
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Title:
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[•]
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SCHEDULE 1
FORM OF EXERCISE NOTICE
[To be executed by the Holder to purchase shares of Common Stock under the Warrant]
Ladies and Gentlemen:
(1) The undersigned is the Holder of Warrant No. __ (the “Warrant”) issued by [•], a [•] corporation (the “Company”).
Capitalized terms used herein and not otherwise defined herein have the respective meanings set forth in the Warrant.
(2) The undersigned hereby exercises its right to purchase _____ Warrant Shares pursuant to the Warrant.
(3) The Holder intends that payment of the Remaining Exercise Price shall be made as (check one):
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Cash Exercise
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“Cashless Exercise” under Section 10 of the Warrant
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(4) If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $ _____ in immediately available funds to the Company in accordance with the terms of the Warrant.
(5) Pursuant to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares determined in accordance with the terms of the Warrant. The Warrant Shares shall be
delivered (check one):
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to the following DWAC Account Number: _______________________________
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in book-entry form via a direct registration system
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by physical delivery of a certificate to: __________________________________________________________
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____________________________________________________________
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in restricted book-entry form in the Company’s share register
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(6) By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company that in giving effect to the exercise evidenced hereby the Holder (i) is an
“accredited investor” as defined in Regulation D promulgated under the Securities Act and (ii) will not beneficially own in excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of the Exchange Act) permitted
to be owned under Section 11(a) of the Warrant to which this notice relates.
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Dated:
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Name of Holder:
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By:
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Name:
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Title:
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(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)
Exhibit 4.2
AMENDED AND RESTATED STATEMENT OF DESIGNATION OF RIGHTS, PREFERENCES
AND PRIVILEGES OF SERIES B PREFERRED STOCK OF
OCEANPAL INC. (the “Company”)
AND PRIVILEGES OF SERIES B PREFERRED STOCK OF
OCEANPAL INC. (the “Company”)
Section 1. Designation and Amount. The shares of such series shall be designated as “Series B Preferred Stock”. The Series B Preferred
Stock shall have a par value of $0.01 per share, and the number of shares constituting such series shall initially be five hundred thousand, which number the Board of Directors of the Company (the “Board”) may increase or decrease (but not to less
than the number of shares of Series B Preferred Stock then outstanding) from time to time.
Section 2. No Proportional Adjustment. In the event the Company shall at any time after the issuance of any share or shares of Series B
Preferred Stock (i) declare any dividend on the common stock of the Company, par value $0.01 per share (the “Common Stock”), payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii) combine the outstanding Common Stock
into a smaller number of shares, there shall be no adjustment to the number of outstanding shares of Series B Preferred Stock.
Section 3. Dividends and Distributions. The Series B Preferred Stock shall not have dividend or distribution rights.
Section 4. Voting Rights. The holders of shares of Series B Preferred Stock (each a “Holder”, and collectively the “Holders”) shall have
the following voting rights:
(a) Each share of Series B Preferred Stock shall entitle the Holder thereof to two thousand (2,000) votes on all matters submitted to a vote of
the stockholders of the Company, provided however, that, notwithstanding any other provision of this Statement of Designation, the total number of votes one or more Holder is entitled to vote by virtue of
such Series B Preferred Stock shall not exceed 34.0% in aggregate of the total number of votes eligible to be cast on such matter, and, provided further, that to the extent that the total number of votes one
or more Holder is entitled to vote, (including any voting power of such Holders derived from Series B Preferred Stock, shares of Common Stock or any other voting security of the Company issued and outstanding as of the date hereof or that may be
issued in the future) on any matter submitted to a vote of stockholders of the Company would exceed 49.0% of the total number of votes eligible to be cast on such matter, the total number of votes that such Holder may exercise derived from such
Series B Preferred Stock shall be reduced, but to not less than nil, so that the aggregate number of votes that may be cast by such Holder on such matter submitted to a vote of stockholders shall not be greater than 49.0% in aggregate of the total
number of votes eligible to be cast on such matter. To the extent there are multiple Holders, the aggregate caps set forth in this Section 4(a) shall apply to all Holders in aggregate, and each Holder shall be capped individually at a percentage of
such aggregate cap amount consistent with his, her or its respective percentage ownership of the aggregate number of then-issued and outstanding shares of Series B Preferred Stock (e.g., if a Holder owns 50% of the total number of then-issued and
outstanding shares, then the first proviso of this Section 4(a) would limit the total number of votes such Holder is entitled to vote by virtue of such Series B Preferred Stock to not exceed 17.0% of the total number of votes eligible to be cast on
such matter); provided, that notwithstanding anything herein, the total number of votes one Holder is entitled to vote by virtue of its Series B Preferred Stock (including any voting power of such Holder derived from such Series B Preferred Stock,
shares of Common Stock or any other voting security of the Company issued and outstanding as of the date hereof or that may be issued in the future) shall not exceed 9.99% in aggregate of the total number of votes eligible to be cast on such matter.
(b) For purposes of this Section 4, a Holder shall include each “beneficial owner” of such Series B Preferred Stock, as determined in accordance
with Section 13d-3 of the Securities Exchange Act of 1934, as amended, together with any person or entity that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such beneficial
owner.
(c) Except as otherwise provided herein or by law, the Holders and the holders of shares of Common Stock shall vote together as one class on all
matters submitted to a vote of stockholders of the Company.
(d) Except as required by law, Holders shall have no special voting rights and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.
Section 5. Transfer Restrictions. The shares of Series B Preferred Stock shall not be transferable by any holder except to an affiliate
or successor of such Holder without the prior written consent of the Company.
Section 6. Reacquired Shares. Any shares of Series B Preferred Stock purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of preferred stock and may be reissued as part of a new series of preferred stock to
be created by resolution or resolutions of the Board, subject to the conditions and restrictions on issuance set forth herein and in the Articles of Incorporation of the Company, as then amended.
Section 7. Liquidation, Dissolution or Winding Up. The shares of Series B Preferred Stock shall have no liquidation rights upon any
liquidation, dissolution or winding up of the Company.
Section 8. Consolidation, Merger, etc. In case where the Company shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series B Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share equal to the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged.
Section 9. No Redemption. The shares of Series B Preferred Stock shall not be redeemable.
Section 10. Amendment. The Articles of Incorporation of the Company shall not be further amended in any manner which would materially
alter or change the powers, preference or special rights of the Series B Preferred Stock so as to affect them adversely without the affirmative vote of the Holders of a majority of the outstanding shares of Series B Preferred Stock, voting separately
as a class.
Section 11. Fractional Shares. Series B Preferred Stock may not be issued in fractional shares.
Section 12. Notices. Any notice to be delivered hereunder shall be delivered (via overnight courier, facsimile or email) to each Holder
at its last address as it shall appear upon the books and records of the Company at least ten (10) calendar days prior to the applicable record or effective date thereinafter specified.
Section 13. Severability. If any provision of this Amended and Restated Statement of Designation is invalid, illegal or unenforceable,
the balance of this Amended and Restated Statement of Designation shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, this Amended and Restated Statement of Designations is executed on behalf of the Company by its Director and Chief Executive
Officer on this 27th day of October, 2025.
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By: /s/ Robert Perri
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Name: Robert Perri
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Title: Chief Executive Officer
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Exhibit 4.3
AMENDED AND RESTATED STATEMENT OF DESIGNATION OF RIGHTS, PREFERENCES
AND PRIVILEGES OF SERIES E PREFERRED STOCK OF
OCEANPAL INC.
AND PRIVILEGES OF SERIES E PREFERRED STOCK OF
OCEANPAL INC.
OCEANPAL INC., a Company organized and existing under the Business Corporations Act (the “BCA”) of the Republic of the Marshall Islands (the “Company”),
in accordance with the provisions of Section 35 thereof and the Company’s Amended and Restated Articles of Incorporation, does hereby certify:
The Board of Directors of the Company (the “Board”) has adopted the following resolution creating a series of Preferred Stock (this and other capitalized
terms shall have the same meaning as in the Company’s Amended and Restated Articles of Incorporation, unless otherwise specified in this Amended and Restated Statement of Designation (this “Statement of Designation”) or unless the context
otherwise requires) of the Company designated as “Series E Preferred Stock.”
RESOLVED, that a series of Preferred Stock, par value $0.01 per share, of the Company be and hereby is created, and that the designation and number of shares of
such series, and the voting and other powers, preferences and relative, participating, optional or special rights and qualifications, limitations and restrictions thereof, of the shares of such series, are as follows:
Section 1. Designation and Amount. The shares of such series shall be designated as “Series E Preferred Stock”. The Series E Preferred Stock
shall have a par value of $0.01 per share, and the number of shares constituting such series shall initially be 10,000, which number the Board may increase or decrease (but not to less than the number of shares of Series E Preferred Stock then
outstanding) from time to time.
Section 2. Reserved.
Section 3. Dividends and Distributions. The Series E Preferred Stock shall not have dividend or distribution rights.
Section 4. Voting Rights. The Holders shall have the following voting rights:
(a)Each share of Series E Preferred Stock shall entitle the Holder thereof to twenty five thousand (25,000) votes on all matters submitted to
a vote of the stockholders of the Company, provided however, that, not notwithstanding any other provision of this Statement of Designation, the total number of votes one or more Holders, or any Related
Party or wholly-owned entity of such Holder, is entitled to vote by virtue of such Series E Preferred Stock shall not exceed 15.0% in aggregate of the total number of votes eligible to be cast on such matter, and, provided
further, that to the extent that the total number of votes one or more Holder, or any Related Party or wholly-owned entity of such Holder, is entitled to vote (including any voting power of such Holders derived from Series E Preferred
Stock, shares of Common Stock or any other voting security of the Company issued and outstanding as of the date hereof or that may be issued in the future) on any matter submitted to a vote of stockholders of the Company exceeds 15.0% in aggregate of
the total number of votes eligible to be cast on such matter, the total number of votes that Holders may exercise derived from such Series E Preferred Stock shall be automatically reduced, but to not less than nil, so that the aggregate number of
votes derived from the Series E Preferred Stock that such Holders, or any Related Party or wholly-owned entity of such Holder, that may be cast by such Holder on such matter submitted to a vote of stockholders shall not be greater than 15.0% of the
total number of votes eligible to be cast on such matter. To the extent there are multiple Holders, the aggregate caps set forth in this Section 4(a) shall apply to all Holders in aggregate, and each Holder shall be capped individually at a
percentage of such aggregate cap amount consistent with his, her or its respective percentage ownership of the aggregate number of then-issued and outstanding shares of Series E Preferred Stock (e.g., if a Holder owns 50% of the total number of
then-issued and outstanding shares, then the first proviso of this Section 4(a) would limit the total number of votes such Holder is entitled to vote by virtue of such Series E Preferred Stock to not exceed 7.5% of the total number of votes eligible
to be cast on such matter).
(b)Except as otherwise provided herein or by law, the Holders of Series E Preferred Stock and the holders of shares of Common Stock shall
vote together as one class on all matters submitted to a vote of stockholders of the Company.
(c)Except as required by law, Holders of Series E Preferred Stock shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.
Section 5. Transfer Restrictions. The shares of Series E Preferred Stock shall not be transferable by any Holder except to a
Related Party or wholly owned entity of such Holder or Related Party without the prior written consent of the Company.
Section 6. Reacquired Shares. Any shares of Series E Preferred Stock purchased or otherwise acquired by the Company in any manner whatsoever shall be held in the Company’s
treasury and the Company may, in its sole discretion, elect to reissue or retire and cancel the Series E Preferred Stock. All such shares shall upon their cancellation become authorized but unissued shares of preferred stock and may be reissued as
part of a new series of preferred stock to be created by resolution or resolutions of the Board, subject to the conditions and restrictions on issuance set forth herein and in the Articles of Incorporation of the Company, as then amended.
Section 7. Liquidation, Dissolution or Winding Up. The shares of Series E Preferred Stock shall have no liquidation rights upon any
liquidation, dissolution or winding up of the Company.
Section 8. Consolidation, Merger, etc. In case where the Company shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series E Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share equal to the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged.
Section 10. Optional Redemption. In the event that a Holder resigns or is removed or terminated (for any reason, including with or
without cause) from his or her position and/or employment with the Company, the Company shall have the option, at its sole discretion, to redeem any or all of the shares of the Series E Preferred Stock held by such Holder at a price per share
determined in good faith by the Company.
Section 10. Amendment. The Articles of Incorporation of the Company shall not be further amended in any manner which would materially
alter or change the powers, preference or special rights of the Series E Preferred Stock so as to affect them adversely without the affirmative vote of the Holders of a majority of the outstanding shares of Series E Preferred Stock, voting separately
as a class.
Section 11. Definitions. As used herein with respect to the Series E Preferred Stock:
“Articles of Incorporation” means the amended and restated articles of incorporation of the
Company, as they may be amended from time to time in a manner consistent with this Statement of Designation, and shall include this Statement of Designation.
“BCA” has the meaning set forth in the introductory paragraph of this Statement of Designation.
“Board” means the board of directors of the Company or, to the extent permitted by the Articles of
Incorporation and the BCA, any authorized committee thereof.
“Business Day” means any day that is not a Saturday or Sunday or a day on which banks in New York
City are authorized or required by law to close.
“Common Stock” means the common stock of the Company, par value $0.01 per share.
“Company” has the meaning set forth in the introductory paragraph of this Statement of
Designation.
“Holder” means the Person in whose name the Series E Preferred Stock is registered on the stock
register of the Company maintained by the Registrar of Corporations of the Republic of the Marshall Islands and the Company’s transfer agent.
“Person” means a legal person, including any individual, Company, estate, partnership, joint venture,
association, joint-stock company, limited liability company, trust or entity.
“Preferred Stock” means any of the Company’s capital stock, however designated, which entitles the
holder thereof to a preference with respect to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of the Company’s affairs, over shares of the Common Stock.
“Related Party” of any persons means such person’s immediate family member or lineal descendent.
“Statement of Designation” means this Statement of Designation relating to the Series E Preferred
Stock, as it may be amended from time to time in a manner consistent with this Statement of Designation, the Articles of Incorporation and the BCA.
For all purposes relevant to this Statement of Designation: the terms defined in the singular have a comparable meaning when used in the
plural and vice versa; whenever the words “include,” “includes,” or “including” are used, they are deemed followed by the words “without limitation;” all references to number of shares, amounts per share, prices, and the like shall be subject to
appropriate adjustment for stock splits, stock combinations, stock dividends and similar events; and, except as otherwise set forth in this Statement of Designation, if any event under this Statement of Designation occurs on a day that is not a
Business Day, such event shall be deemed to occur on the first Business Day after such date.
Section 12. Fractional Shares. Series E Preferred Stock may not be issued in fractional shares.
Section 13. Notices. Any notice to be delivered hereunder shall be delivered (via overnight courier, facsimile or email) to each
Holder at its last address as it shall appear upon the books and records of the Company at least ten (10) calendar days prior to the applicable record or effective date thereinafter specified.
Section 14. Severability. If any provision of this Statement of Designation is invalid, illegal or unenforceable, the balance of this
Statement of Designation shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, this Amended and Restated Statement of Designations is executed on behalf of the Company by its Chief Executive Officer on
this 27th day of October, 2025.
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By:
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/s/ Robert Perri
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Name:
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Robert Perri
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Title:
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Chief Executive Officer
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Exhibit 10.1
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on October 27, 2025, by and among OceanPal Inc., a Marshall Islands corporation (the “Issuer”), and the undersigned investors (collectively, the “Subscribers” and each, a “Subscriber”).
This Subscription Agreement may be executed by an investment manager on behalf of one or more managed funds or accounts set
forth on a schedule hereto, each of which severally and not jointly shall be a Subscriber hereunder.
WHEREAS, in connection with the Transaction (as defined below), on the terms and subject to the conditions
set forth in this Subscription Agreement, Subscriber desires to subscribe for and purchase in cash and/or USDC or USDT from the Issuer (i) the number of shares of the Issuer’s common stock, par value $0.01 per
share, and any other class of securities into which such securities may hereafter be reclassified or changed (the “Common Stock”), set forth on the Subscriber’s signature page hereto (the “Acquired Shares”) for a purchase price of
$1.275 per share (the “Share Purchase Price”), and/or (ii) the number of pre-funded warrants to purchase Common Stock (the “Warrant Shares”), substantially in the form attached hereto as Exhibit A (the “Pre-Funded Warrants”
and together with the Acquired Shares, the “Acquired Securities”), set forth on the signature page hereto, if any, at a purchase price equal to the Share Purchase Price less $0.01 per Pre-Funded Warrant,
with a remaining exercise price equal to $0.01 per Warrant Share (the “Warrant Purchase Price”) (the aggregate purchase price set forth on the Subscriber’s signature page hereto for the Acquired
Securities, the “Purchase Price”).
WHEREAS, subject to the terms and conditions set forth in this Subscription Agreement and pursuant to Section 4(a)(2) of
the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), and Rule 506(b) of Regulation D promulgated thereunder, the Issuer desires to issue and sell to each Subscriber, and each
Subscriber, severally and not jointly, desires to purchase from the Issuer, Acquired Shares and/or Pre-Funded Warrants, as more fully described in this Subscription Agreement (the “Offering”);
WHEREAS, the Issuer intends to use the net proceeds of the sale of Acquired Securities to purchase the native token of the
NEAR Protocol (“NEAR Tokens”), for fees and expenses incurred in connection with the Transaction (as defined below), for working capital and for general corporate purposes; and
WHEREAS, in connection with the Transaction, each of Clear Street LLC and Cohen & Company Capital Markets LLC, in its
respective capacity as placement agent (together, the “Placement Agents”, and each a “Placement Agent”) for the offer and sale of the Acquired Securities (the “Transaction”), may identify and solicit certain other “qualified
institutional buyers” (as defined in Rule 144A under the Securities Act) or institutional “accredited investors” (as such term is defined in Rule 501 under the Securities Act, and each such “qualified institutional buyer” or institutional “accredited
investor,” an “Other Subscriber”), each of which shall have entered into a subscription agreement with the Issuer substantially similar to this Subscription Agreement contemporaneously herewith (the “Other Subscription Agreements”),
pursuant to which such Other Subscribers have agreed to subscribe for and purchase, and the Issuer has agreed to issue and sell to such Other Subscribers, on the Closing Date, the Acquired Securities at the Share Purchase Price and/or Warrant
Purchase Price, as applicable (the “Other Subscriptions”).
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to
the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1. Subscription. Subject to the terms and conditions hereof, Subscriber hereby agrees to subscribe for and
purchase, and the Issuer hereby agrees to sell to Subscriber, upon the payment of the Purchase Price, the Acquired Securities (such subscription and issuance, the “Subscription”).
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2. Closing.
a. Subject to the satisfaction or waiver of the conditions set forth in Sections 2.d and 2.e (other than
those conditions that by their nature are to be satisfied at Closing, but without affecting the requirement that such conditions be satisfied or waived at Closing), the closing of the Subscription contemplated hereby (the “Closing”) shall
occur substantially concurrently with the closing of the Other Subscriptions (such date, the “Closing Date”).
b. On or prior to 4:00 p.m. New York City time on the date disclosed in the Closing Notice (as defined herein) that is two
business days prior to the anticipated date of Closing (the “Escrow Payment Deadline”), each Subscriber will pay its total Purchase Price by wire transfer of immediately available funds in accordance with wire instructions provided by the
Issuer to the Subscribers. At the Closing, the Issuer shall deliver or cause to be delivered to the Subscriber a number of Acquired Securities, registered in the name of the Subscriber (or its nominee in accordance with such Subscriber’s delivery
instructions), equal to the number of Acquired Securities indicated on the Subscriber’s signature page to this Subscription Agreement. The Issuer will deliver or cause to be delivered to Subscriber as promptly as practicable after the Closing,
evidence from the Issuer’s transfer agent of the issuance to Subscriber of Subscriber’s Acquired Securities on and as of the Closing Date. Subscriber shall deliver to the Issuer on the Escrow Payment Deadline, any other information that is reasonably
requested in the notice provided by Issuer (the “Closing Notice”) that is required in order to enable the Issuer to issue and sell the Acquired Securities, including, without limitation, the legal name of the person (or nominee) in whose name
such Acquired Securities are to be delivered and a duly executed Internal Revenue Service Form W-9 or W-8, as applicable.
c. Subject to the satisfaction or waiver of the conditions set forth in Sections 2.d and 2.e (other than
those conditions that by their nature are to be satisfied at Closing, but without affecting the requirement that such conditions be satisfied or waived at Closing), on the Closing Date, the Issuer shall deliver or cause to be delivered to Subscriber
the Acquired Securities against and upon payment by Subscriber in book-entry form, free and clear of any Liens (as defined below) or other restrictions whatsoever (other than those arising under state or federal securities laws), in the name of
Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable. Each book entry for the Acquired Securities shall contain a legend in substantially the following form:
[NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE] HAS [NOT] BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
d. The Issuer’s obligation to effect the Closing shall be subject to the satisfaction on the Closing Date, or, to the
extent permitted by applicable law, the waiver by the Issuer, of each of the following conditions:
(i) the Placement Agents and the Issuer shall each have received a completed copy of the “Eligibility Representations of
Subscriber” questionnaire in substantially the form attached as Schedule A hereto no later than the Closing Date;
(ii) all Subscribers party to this Subscription Agreement shall have delivered to the Issuer an executed lock-up agreement
in the form attached hereto as Exhibit B;
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(iii) all representations and warranties of Subscriber contained in this Subscription Agreement shall be true and correct
in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and
as of the Closing Date;
(iv) Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and
conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance, satisfaction or compliance would not or would not be reasonably expected to
prevent, materially delay or materially impair the ability of Subscriber to consummate the Closing; and
(v) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order,
law, rule or regulation (whether temporary, preliminary or permanent) that is then in effect and has the effect of making consummation of the Subscription illegal or otherwise preventing or prohibiting consummation of the Subscription, and no
governmental authority shall have instituted or threatened in writing a proceeding seeking to impose any such prevention or prohibition.
e. Subscriber’s obligation to effect the Closing shall be subject to the satisfaction on the Closing Date, or, to the
extent permitted by applicable law, the written waiver by Subscriber, of each of the following conditions:
(i) no suspension of the listing on The Nasdaq Capital Market or another national securities exchange (collectively,
the “Exchange”) of the Common Stock shall have occurred, and the Issuer shall have filed with The Nasdaq Stock Market LLC (“Nasdaq”) a Notification Form: Listing of Additional Shares for the listing of the Acquired Shares. In the event
that Nasdaq raises any objection to such notice or to the transactions contemplated hereby, the Issuer shall be afforded a reasonable period of time to cure such objection to the satisfaction of Nasdaq;
(ii) all representations and warranties of the Issuer contained in this Subscription Agreement shall be true and
correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and as
of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects or in all respects, as applicable as of such date);
(iii) the Issuer shall have performed, satisfied and complied (unless waived) in all material respects with all
covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing;
(iv) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment,
order, law, rule or regulation (whether temporary, preliminary or permanent) that is then in effect and has the effect of making consummation of the Subscription illegal or otherwise preventing or prohibiting consummation of the Subscription and no
governmental authority shall have instituted or threatened in writing a proceeding seeking to impose any such prevention or prohibition;
(v) the Issuer shall have provided each Subscriber with the escrow agent’s wire instructions, on the escrow agent’s
letterhead and executed by an authorized representative of the escrow agent;
(vi) if required, the Issuer shall have delivered a Pre-Funded Warrant
registered in the name of such Subscriber to purchase up to a number of Warrant Shares included on the signature page hereto; and
(vii) no event or series of events that, individually or in the aggregate, has had or would reasonably be expected to have
a Material Adverse Effect (as defined herein) shall have occurred and be continuing on the Closing Date.
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f. Notwithstanding anything to the contrary contained herein, Subscriber may notify the Issuer in writing in
the event it elects to be subject to the provisions contained in this Section 2.f; however, no Subscriber shall be subject to this Section 2.f unless he, she or it makes such election. If the election is made by the Subscriber, in
no event shall the Subscriber be permitted to acquire Acquired Securities to the extent that, immediately after giving effect to such acquisition, the Subscriber (together with its affiliates and any other persons or entities whose beneficial
ownership of Common Stock would be aggregated with the Subscriber’s for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable regulations of United States Securities and
Exchange Commission (the “Commission”)), would beneficially own in excess of [4.99/9.99%] of the then outstanding shares of Common Stock of the Issuer (the “Beneficial Ownership Limitation”). For
purposes of this provision, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. The Beneficial Ownership Limitation may be increased or decreased by the
Subscriber upon written notice to the Issuer, provided that any increase shall not be effective until the 61st day after such notice is delivered to the Issuer and in no event shall the Beneficial Ownership Limitation exceed 19.99%.
g. Prior to or at the Closing, the parties hereto shall execute and deliver such additional documents and take such
additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the Subscription as contemplated by this Subscription Agreement.
3. Issuer Representations and Warranties. The Issuer represents and warrants, as of the date hereof and the
Closing Date, that:
a. The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Republic of the
Marshall Islands, with corporate power and authority to own, lease and operate its respective properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. The
Issuer, as set forth in the SEC Documents (as defined below), is not in violation or default of any of the provisions of its respective certificate or articles of incorporation, memorandum and articles of association, bylaws, or other organizational
or charter documents, as applicable (the “Charter Documents”). The Issuer is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected to result in: (i) a material adverse effect on the legality,
validity or enforceability of any Transaction Document (as defined below), (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Issuer, or (iii) a material adverse
effect on the Issuer’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. “Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal
investigation or partial proceeding, such as a deposition), whether commenced or threatened.
b. As of the Closing Date, the Acquired Shares will have been duly authorized and, when sold and delivered to Subscriber against full
payment for the Acquired Shares in accordance with the terms of this Subscription Agreement, the Acquired Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or
similar rights created under the Issuer’s Charter Documents (as in effect at such time of issuance) or under the laws of the Republic of the Marshall Islands.
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c. The Pre-Funded Warrants are duly authorized and, when issued in accordance with this Subscription Agreement, will be duly and validly
issued and constitute the legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms free and clear of all Liens (as defined below) imposed by the Issuer. The Warrant Shares have been duly
authorized and reserved for issuance and, upon issuance pursuant to the terms of the Pre-Funded Warrants against full payment therefor in accordance with the terms of the Pre-Funded Warrants, will be duly and validly issued, fully paid and
non-assessable and will be issued free and clear of any Liens or other restrictions (other than those as provided in the Transaction Documents (as defined below) or restrictions on transfer under applicable state and federal securities laws), and the
holder of the Warrant Shares shall be entitled to all rights accorded to a holder of Common Stock. “Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
d. The Issuer has reserved from its duly authorized capital stock the maximum number of shares of
Common Stock issuable pursuant to this Subscription Agreement and the Pre-Funded Warrants.
e. This Subscription Agreement, the Other Subscription Agreements, the Pre-Funded Warrants, and the escrow agreement with the escrow agent
for the Transaction (collectively, the “Transaction Documents”) have been duly authorized, executed and delivered by the Issuer and the Transaction Documents constitute the valid and legally binding obligation of the Issuer, enforceable
against the Issuer in accordance with their respective terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of
creditors generally and (ii) principles of equity, whether considered at law or equity.
f. Assuming the accuracy of Subscriber’s representations and warranties in Section 4, the execution and delivery of this
Subscription Agreement and the other Transaction Documents to which the Issuer is a party, and the performance by the Issuer of its obligations under the Transaction Documents, including the issuance and sale of the Acquired Securities, do not and
will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien, charge or encumbrance upon any of the property or assets of the Issuer
pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the
Issuer is subject, which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially affect the validity of the Acquired Securities or the legal authority of the Issuer to comply in all material
respects with the terms of this Subscription Agreement or any other Transaction Document; (ii) the Charter Documents; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign,
having jurisdiction over the Issuer or any of its respective properties that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially affect the validity of the Acquired Securities or the legal
authority of the Issuer to comply in all material respects with the terms of this Subscription Agreement or any other Transaction Document.
g. There are no securities or instruments issued by or to which the Issuer is a party containing anti-dilution, price reset or similar
provisions that will be triggered by the issuance of (i) the Acquired Securities or (ii) the Common Stock to be issued pursuant to any Other Subscription Agreement and Pre-Funded Warrants, in each case, that have not been or will not be validly and
irrevocably waived on or prior to the Closing Date.
h. Assuming the accuracy of each Subscriber’s representations and warranties in Section 4, the Issuer is not required to obtain
any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization (including the Exchange) or other
person in connection with the execution, delivery and performance by the Issuer of this Subscription Agreement (including, without limitation, the issuance of the Acquired Securities and Warrant Shares), other than (i) the filing with the Commission
of the Registration Statement (as defined below), (ii) the filings required in accordance with Section 9.m, (iii) notifications required by each Exchange, and (iv) the failure of which to obtain would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated hereby or thereby, including the sale and issuance of the Acquired Securities.
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i. As of the date hereof, the authorized capital stock of the Issuer consists of (i) 100,000,000 shares of preferred stock, par value
$0.01 per share (“Preferred Stock”), and (ii) 1,000,000,000 shares of Common Stock. As of the date hereof, there are 536,342 shares of Preferred Stock issued and outstanding, consisting of (i) 500,000 shares of Series B Preferred Stock, (ii)
12,185 shares of C Preferred Stock, (iii) 22,957 shares of Series D Preferred stock, and (v) 1,200 shares of Series E Preferred Stock, there are 6,696,039 shares of Common Stock issued and outstanding, and there are 29,474,223 total warrants
outstanding, exercisable for an aggregate 33,118 shares of Common Stock, with a weighted average exercise price of $794.62 and a 2.76-year exercise term. The Issuer has not issued any shares of Common Stock since its most recently filed or furnished
report under the Exchange Act other than (i) any Acquired Shares issued pursuant to this Subscription Agreement, (ii) pursuant to the exercise of employee share options under the Issuer’s outstanding share option awards, (iii) the issuance of Common
Stock or other equity securities to employees pursuant to the Issuer’s equity incentive plan, and (iv) pursuant to the conversion and/or exercise of Common Stock Equivalents (as defined below) outstanding as of the date of the most recent Annual
Report on Form 20-F filed with the Commission. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result
of the purchase and sale of the Acquired Securities and described in the SEC Documents, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or
obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any Common Stock, or contracts, commitments, understandings or arrangements by which the Issuer is or may become bound to
issue additional Common Stock or Common Stock Equivalents. The issuance and sale of the Acquired Securities will not obligate the Issuer to issue Common Stock or other securities to any Person (other than the Subscribers). There are no outstanding
securities or instruments of the Issuer with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Issuer. There are no outstanding securities or instruments
of the Issuer that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Issuer is or may become bound to redeem a security of the Issuer. The Issuer does not have any
outstanding share appreciation rights or “phantom stock” awards or agreements or any similar award or agreement. All of the outstanding shares of Common Stock and Preferred Stock of the Issuer are duly authorized, validly issued as fully paid and
nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further
approval or authorization of any shareholder, the Board of Directors of the Issuer (the “Board of Directors”) or others is required for the issuance and sale of the Acquired Securities. There are no shareholders agreements, voting agreements
or other similar agreements with respect to the Issuer’s shares of Common Stock to which the Issuer is a party or, to the knowledge of the Issuer, between or among any of the Issuer’s shareholders. “Common Stock Equivalents” means any
securities of the Issuer which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preference share, right, option, warrant or other instrument that is at any time convertible into or
exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
j. The financial statements of the Issuer included in the SEC Documents comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing or as such financial statements have been amended or corrected in a subsequent filing. Such financial statements have been prepared
in accordance with U.S. generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that
unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Issuer as of and for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. Since the date of the latest audited financial statements included within the SEC Documents or as otherwise disclosed in the SEC
Documents, (i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Issuer has not incurred any liabilities (contingent or otherwise) other than (A)
trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Issuer’s financial statements pursuant to GAAP or disclosed in filings made with the
Commission, (iii) the Issuer has not altered its method of accounting, (iv) the Issuer has not declared or made any dividend or distribution of cash or other property to its shareholders (other than in accordance with the terms of the Preferred
Stock’s Statements of Designations included in the SEC Documents) or purchased, redeemed or made any agreements to purchase or redeem any shares and (v) the Issuer has not issued any equity securities to any officer, director or affiliate, except
pursuant to existing Issuer equity incentive plans. The Issuer does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Acquired Securities contemplated by this Subscription
Agreement, the other transactions contemplated by the other Transaction Documents, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Issuer or its
business, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Issuer under applicable securities laws at the time this representation is made or deemed made that has not been publicly
disclosed at least one (1) trading day prior to the date that this representation is made.
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k. The Issuer has not received any written communication from a governmental entity that alleges that the Issuer is not in compliance with
or is in default or violation of any applicable law, except where such non-compliance, default or violation would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
l. The Issuer and its subsidiaries have good and marketable title to all vessels owned by them, including but not limited to the “Melia,”
“Zeze Start,” and “Calipso,” free and clear of all liens, encumbrances, mortgages, pledges, security interests, and other restrictions, except as specifically disclosed in the SEC Documents or as permitted under existing financing arrangements.
m. All vessels owned by the Issuer and its subsidiaries are: (i) in good operating condition and repair, ordinary wear and tear excepted;
(ii) seaworthy and in compliance with all applicable international, national, state, and local laws, regulations, and conventions; (iii) properly classified with recognized classification societies and such classifications are current and in good
standing; (iv) in compliance with all applicable safety, environmental, and operational requirements including but not limited to MARPOL, SOLAS, and ISM Code requirements.
n. All vessels are properly registered under their respective flag states and are in compliance with all flag state and port state control
requirements. The Issuer has not received any detention orders, port state control deficiencies, or notices of non-compliance that remain unresolved.
o. All charter agreements, management agreements, and other material contracts relating to the vessels are valid, binding, and in full
force and effect. Neither the Issuer nor any of its subsidiaries is in breach or default under any such agreements, and no event has occurred that would constitute a default with the passage of time or giving of notice.
p. Neither the Issuer nor any of its subsidiaries is in breach or default under any material contract, and no event has occurred that,
with the passage of time or the giving of notice, would constitute such a breach or default.
q. The Issuer maintains, or causes to be maintained, adequate marine insurance coverage for all vessels including: (i) Marine Hull and
Machinery insurance; (ii) Protection and Indemnity (P&I) insurance through a recognized P&I club; (iii) War Risks insurance; (iv) Loss of Hire insurance where applicable; all such insurance policies are in full force and effect, all premiums
have been paid, and there are no material outstanding claims or circumstances that could give rise to material claims. The Issuer has not received any notice of cancellation, non-renewal, or material alteration of coverage.
r. Any vessel valuations reflected in the SEC Documents are based on recognized maritime valuation methodologies and fairly represent the
vessels’ market values as of the applicable dates. Depreciation methods used are consistent with industry practice and in accordance with GAAP.
s. All vessels comply with applicable environmental laws and regulations, including ballast water management, emissions control, and waste
disposal requirements. The Issuer and its subsidiaries have obtained all environmental permits, licenses, approvals, consents, certificates and other authorizations necessary to conduct the respective businesses operated by them (collectively, the “Licenses
and Permits”), the Issuer and its subsidiaries are in compliance with the terms and conditions of all such Licenses and Permits, and all Licenses and Permits are valid and in full force and effect. Neither the Issuer nor its subsidiaries have
not received any notice of Proceedings relating to the revocation or modification of any Licenses and Permits which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
t. All Bills of Sale, transfer documents, and other instruments by which the Issuer acquired title to its vessels are valid, legally
effective, and properly recorded with the appropriate maritime authorities.
7
u. All vessel financing arrangements, including but not limited to that certain seller’s credit agreement entered between Batiki Shipping
Company Inc. and Zeze Shipping Company Inc. on August 13, 2024 and any pledge agreements, are valid, binding, and in full force and effect. The Issuer is in compliance with all covenants, conditions, and other provisions of such financing
arrangements.
v. The issued and outstanding shares of Common Stock are, and as of the Closing will be, registered pursuant to Section 12(b) of the
Exchange Act, and are listed for trading on each Exchange. The Issuer has taken no action that is designed to terminate the registration of the Common Stock under the Exchange Act or the listing of the Common Stock on the Exchange. Except as included
in the SEC Documents, the Issuer has not received notice from any Exchange on which the Common Stock is or has been listed or quoted to the effect that the Issuer is not in compliance with the listing or maintenance requirements of such Exchange.
There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the Exchange or the Commission with respect to any intention by such entity to deregister the Common Stock or prohibit
or terminate the listing of the Common Stock on the Exchange. The Issuer is in compliance with all such listing and maintenance requirements and is not aware of any facts or circumstances that would reasonably be expected to result in noncompliance
with such requirements in the foreseeable future. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Issuer is current in payment of the fees to the
Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
w. Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 4, no registration under the
Securities Act is required for the issuance and sale of the Acquired Securities by the Issuer to Subscriber or the Other Subscribers in the manner contemplated by this Subscription Agreement or the Other Subscription Agreements, as the case may be.
The issuance, sale, and delivery of the Acquired Securities hereunder does not contravene the rules and regulations of the Exchange.
x. Neither the Issuer nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general
advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Acquired Securities.
y. The Issuer is not, and immediately after receipt of payment for the Acquired Securities and the use of proceeds as contemplated hereby
will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “ICA”).
z. The Issuer has not entered into any subscription agreement, side letter or other agreement with any Other Subscriber or any other
investor (other than certain agreements with affiliates of Near Foundation, Proximity Labs, Frontier Growth Holdings Limited, and their respective affiliates, and except with respect to payment method and timing) in connection with such Other
Subscriber’s or investor’s direct or indirect investment in the Issuer, other than (i) the Other Subscription Agreements, (ii) the Pre-Funded Warrants, and (iii) agreements or forms thereof that have been publicly filed as exhibits to the SEC
Documents via the Commission’s EDGAR system, including filings made by the Issuer.
aa. The Issuer is not, and has not been at any time during the past 12 months, a “shell company” as such term is defined in Rule 405 under
the Securities Act or Rule 12b-2 under the Exchange Act.
bb. The Issuer is eligible to register the resale of the Registrable Securities (as defined below) on a registration statement on Form F-3
under the Securities Act. Without limiting the generality of the foregoing, the Issuer specifically represents and warrants that: (i) the Issuer has been subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act for a period of
at least twelve (12) calendar months immediately preceding the date hereof and the Closing Date; (ii) the Issuer has filed all material required to be filed pursuant to Section 13, 14, or 15(d) of the Exchange Act for such period; and (iii) the
Issuer has filed in a timely manner all reports required to be filed by it with the Commission during the preceding twelve (12) calendar months (or for such shorter period that the Issuer was required to file such reports), including its most recent
Annual Report on Form 20-F and all required Current Reports on Form 6-K.
8
cc. The Issuer acknowledges and agrees that each of the Subscribers is acting solely in the capacity of an arm’s length purchaser with
respect to this Subscription Agreement and the transactions contemplated hereby. The Issuer further acknowledges that no Subscriber is acting as a financial advisor or fiduciary of the Issuer (or in any similar capacity) with respect to this
Subscription Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and any advice given by any Subscriber or any of their respective representatives or agents in connection with this Subscription Agreement
and the other Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Subscriber’s purchase of the Acquired Securities. The Issuer further represents to each Subscriber that the Issuer’s decision to
enter into this Subscription Agreement and the Other Subscription Agreements has been based solely on the independent evaluation of the transactions contemplated hereby by the Issuer and its respective representatives.
dd. Anything in this Subscription Agreement or elsewhere herein to the contrary notwithstanding, it is understood and acknowledged by the
Issuer that: (i) none of the Subscribers has been asked by the Issuer to agree, nor has any Subscriber agreed, to desist from purchasing or selling, long and/or short, securities of the Issuer, or “derivative” securities based on securities issued by
the Issuer or to hold the Acquired Securities for any specified term; (ii) past or future open market or other transactions by any Subscriber, specifically including, without limitation, “short sales” (as defined in Rule 200 of Regulation SHO under
the Exchange Act) or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Issuer’s publicly-traded securities; (iii) any Subscriber, and counter-parties
in “derivative” transactions to which any such Subscriber is a party, directly or indirectly, presently may have a “short” position in the Common Stock; and (iv) each Subscriber shall not be deemed to have any affiliation with or control over any
arm’s length counter-party in any “derivative” transaction. The Issuer further understands and acknowledges that (y) one or more Subscribers may engage in hedging activities at various times during the period that the Acquired Securities are
outstanding, and (z) such hedging activities (if any) could reduce the value of the existing shareholders’ equity interests in the Issuer at and after the time that the hedging activities are being conducted. The Issuer acknowledges that such
aforementioned hedging activities do not constitute a breach of this Subscription Agreement or any of the other Transaction Documents.
ee. The Issuer has made available to Subscriber (including via the Commission’s EDGAR system) a copy of each form, report, statement,
schedule, prospectus, proxy, registration statement and other document, if any, filed by the Issuer with the Commission for the two years preceding the date hereof (the foregoing materials filed or furnished by the Issuer under the Securities Act and
the Exchange Act, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material
respects with the requirements of the Securities Act and Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents and were filed on a timely basis or the
Issuer has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration of any such extension. None of the SEC Documents filed under the Exchange Act (except to the extent that information contained
in any SEC Document has been superseded by a later timely filed SEC Document) contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein
not misleading, in the case of any SEC Document that is a registration statement, or included, when filed, any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in the case of all other SEC Documents.
9
ff. Except as disclosed in the SEC Documents or for such matters as would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against or affecting the Issuer or any of its properties before or by any
court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (each, an “Action”). Except as disclosed in the SEC Documents, none of the Actions, if any, (i) adversely affects or
challenges the legality, validity or enforceability of any of the Transaction Documents or the Acquired Securities or (ii) would, if resolved adversely to the Issuer, have or reasonably be expected to result in a Material Adverse Effect. Neither the
Issuer nor any director or officer thereof is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge
of the Issuer, there is not pending or contemplated, any investigation by the Commission involving the Issuer or any current or former director or officer of the Issuer. The Commission has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Issuer under the Exchange Act or the Securities Act.
gg. Except for any placement fees payable to the Placement Agents or financial advisors to the Issuer, in connection to the Transaction,
the Issuer has not paid, and is not obligated to pay, any brokerage, finder’s or other commission or similar fees in connection with the transactions contemplated by the Transaction Documents. The Subscribers shall have no obligation with respect to
any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
hh. None of the Issuer, any predecessor or affiliated issuer of the Issuer, any director, executive officer or other officer of the Issuer
or, to the Issuer’s knowledge, any beneficial owner of twenty percent (20%) or more of the Issuer’s outstanding voting equity securities, calculated on the basis of voting power, or any promoter connected with the Issuer in any capacity, is subject
to any of the “bad actor” disqualifications within the meaning of Rule 506(d) under the Securities Act, except for a disqualification event covered by Rule 506(d)(2) or (d)(3).
ii. The Issuer acknowledges that there have been no representations, warranties, covenants and agreements made to Issuer by or on behalf
of any Subscriber, any of its respective affiliates or any of its or their control persons, officers, directors, employees, partners, agents or representatives, expressly or by implication, regarding the transactions contemplated by this Subscription
Agreement other than those representations, warranties, covenants and agreements included in this Subscription Agreement (inclusive of the exhibits and schedules attached hereto).
jj. The gross proceeds from the Acquired Securities contemplated by the Transaction will be utilized for purposes of acquiring NEAR Tokens
(including costs associated with such acquisition), Transaction costs, working capital and general corporate purposes.
kk. No labor dispute exists or, to the knowledge of the Issuer, is threatened with respect to any of the employees of the Issuer, which
would reasonably be expected to result in a Material Adverse Effect. None of the Issuer’s employees is a member of a union that relates to such employee’s relationship with the Issuer, the Issuer is not a party to a collective bargaining agreement,
and the Issuer believes that its relationship with its employees is good. To the knowledge of the Issuer, no executive officer of the Issuer, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the
Issuer to any liability with respect to any of the foregoing matters. The Issuer is in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment
and wages and hours, except where the failure to be in compliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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ll. The Issuer possesses all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct its business as described in the SEC Documents, except where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and the
Issuer has not received any notice of proceedings relating to the revocation or modification of any Material Permit.
mm. The Issuer has good and marketable title to its owned properties and owned assets that are material to the business of the Issuer,
free and clear of all (i) Liens, except for Liens as do not materially affect the value of such property, taken as a whole, and do not interfere in any material respect with the use made or proposed to be made of such properties by the Issuer and
(ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities
held under lease by the Issuer are held by the Issuer under valid, subsisting and enforceable leases with which the Issuer is in compliance, except where such non-compliance would not have or reasonably be expected to have a Material Adverse Effect.
nn. The Issuer has, or has rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade
names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with its respective businesses as described in the SEC Documents and which the failure to so
have would have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). The Issuer has not received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned,
or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Subscription Agreement, except where such expiration, termination or abandonment would not have or reasonably be expected to have a Material Adverse
Effect. The Issuer has not received, since the date of the latest audited financial statements included within the SEC Documents or as otherwise disclosed in the SEC Documents, a written notice of a claim or otherwise has any knowledge that the
Intellectual Property Rights violate or infringe upon the rights of any Person, except as would not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Issuer, all such Intellectual Property Rights are
enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Issuer has taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
oo. The Issuer is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are
prudent and customary for companies of similar size as the Issuer in the businesses in which the Issuer is engaged, including, but not limited to, directors and officers insurance coverage. The Issuer has no reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
pp. Except as disclosed in the SEC Documents, none of the officers or directors of the Issuer, and, to the knowledge of the Issuer, none
of the employees of the Issuer is presently a party to any transaction with the Issuer (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to
or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the
Issuer, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, shareholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or
consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Issuer and (iii) other employee benefits, including equity incentives granted under any equity incentive plan of the Issuer.
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qq. Except as set forth in the SEC Documents, the Issuer is in compliance in all material respects with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the
Closing Date. Except as set forth in the SEC Documents, the Issuer maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general
or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Issuer has established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Issuer and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Issuer in the reports it files or submits under
the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
rr. Except as set forth in SEC Documents and in connection with this Transaction, no Person has any right to cause the Issuer to effect
the registration under the Securities Act of any securities of the Issuer.
ss. The Issuer and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Charter Documents or the laws of its jurisdiction of incorporation that is or could become
applicable to the Subscribers as a result of the Subscribers and the Issuer fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Issuer’s issuance and sale of the
Acquired Securities and the Subscribers’ ownership of the Acquired Securities.
tt. Assuming the accuracy of the Subscribers’ representations and warranties set forth in Section 4, neither the Issuer nor any of
its affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Acquired
Securities to be integrated with prior offerings by the Issuer for purposes of (i) the Securities Act which would require the registration of any such securities under the Securities Act, or (ii) any applicable shareholder approval provisions of any
Exchange on which any of the securities of the Issuer are listed or designated.
uu. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse
Effect, the Issuer (i) has made or filed all federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provisions reasonably adequate for the payment of all material taxes for
periods subsequent to the periods to which such returns, reports or declarations apply. To the knowledge of the Issuer, there are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction.
vv. None of the Issuer or, to the knowledge of the Issuer, any agent or other person acting on behalf of the Issuer has (i) directly or
indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to
any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Issuer (or made by any person acting on its behalf of which the Issuer is aware) which is in violation of law, or
(iv) violated in any material respect any provision of Foreign Corrupt Practices Act of 1977, as amended.
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ww. The Issuer’s accounting firm is Ernst & Young (Hellas) Certified Auditors Accountants S.A. (the “Accountant”). The
Accountant (i) is a registered public accounting firm as required by the Exchange Act, (ii) is an independent public accountant within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States), and (iii)
whose report was included on the consolidated financial statements of the Issuer for the fiscal year ended December 31, 2024, during the periods covered of its report, was an independent public accountant within the meaning of the Securities Act and
the Public Company Accounting Oversight Board (United States). There are no disagreements of any kind presently existing, or reasonably anticipated by the Issuer to arise, between the Issuer and the accountants formerly or presently employed by the
Issuer, and the Issuer is current with respect to any fees owed to its accountants which could affect the Issuer’s ability to perform any of its obligations under any of the Transaction Documents. Each of the accountants formerly or presently
employed by the Issuer is not, or was not, in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002, as amended, with respect to the Issuer.
xx. Neither the Issuer nor, to its knowledge, anyone acting on its behalf has, (i) taken, directly or indirectly, any action designed to
cause or to result in the stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of any of the Acquired Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Acquired Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Issuer, other than, in the case of clauses (ii) and (iii), compensation paid to the
Placement Agents in connection with the placement of the Acquired Securities.
yy. The Issuer has not issued any share options under the Issuer’s share option plan.
zz. (i) There has been no security breach or other compromise of or relating to any of the Issuer’s information technology and computer
systems, networks, hardware, software, data (including the data of its respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems and Data”)
and (y) the Issuer has not been notified of, any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data, except, with respect to either (x) or (y), those which would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (ii) the Issuer is presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or
governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or
modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Issuer has implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential information and
the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Issuer has implemented backup and disaster recovery technology consistent with industry standards and practices.
aaa. (i) The Issuer is, and at all times since January 1, 2024, in material compliance with all applicable state, federal and foreign
data privacy and security laws and regulations, including, without limitation, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy Laws”); (ii) the Issuer has in place and has taken steps
reasonably designed to ensure material compliance with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling and analysis of Personal Data (as defined below) (the “Policies”);
(iii) the Issuer provides accurate notice of its applicable Policies to its customers, employees, third party vendors and representatives as required by the Privacy Laws; and (iv) applicable Policies provide accurate and sufficient notice of the
Issuer’s then-current privacy practices relating to its subject matter, and do not contain any material omissions of the Issuer’s then-current privacy practices, as required by Privacy Laws. “Personal Data” means (i) a natural person’s name,
street address, telephone number, email address, photograph, social security number, bank information, or customer or account number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission
Act, as amended; (iii) “personal data” as defined by GDPR; and (iv) any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any identifiable data related to
an identified person’s health or sexual orientation. None of such disclosures made or contained in any of the Policies have been inaccurate, misleading, or incomplete in material violation of any Privacy Laws and the execution, delivery and
performance of the Transaction Documents will not result in a breach of any Privacy Laws or Policies. The Issuer (i) has not received written notice of any actual or potential liability of the Issuer under, or actual or potential violation by the
Issuer of, any of the Privacy Laws; (ii) is not currently conducting or paying for, in whole or in part, any investigation, remediation or other corrective action pursuant to any regulatory request or demand pursuant to any Privacy Law; or (iii) is
not a party to any order, decree, or agreement by or with any court or arbitrator or governmental or regulatory authority that imposed any obligation or liability under any Privacy Law.
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bbb. The Issuer is not subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of
Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Issuer nor any of its affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or
twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Issuer nor any of its affiliates exercises a controlling influence over the management or
policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
ccc. Neither the Issuer nor, to the knowledge of the Issuer, any director, officer, agent, employee, affiliate or representative of the
Issuer is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign
Assets Control (“OFAC”), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Issuer located, organized or resident in a country
or territory that is the subject of Sanctions; and the Issuer will not directly or indirectly use any funds, or lend, contribute or otherwise make available such funds to any joint venture partners or other Person, to fund any activities of or
business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction,
whether as underwriter, advisor, investor or otherwise) of Sanctions.
ddd. The operations of the Issuer are and have conducted at all times in compliance with applicable financial record-keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no Action or
Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
eee. The Issuer has no material liabilities, contingent or otherwise, except as disclosed in the SEC Documents.
fff. The Issuer has not disclosed to Subscriber any material non-public information not otherwise disclosed in the SEC Documents.
4. Subscriber Representations and Warranties. Each Subscriber, severally and not jointly, and with respect to
itself only and not any other Subscriber, represents and warrants, as of the date hereof and the Closing Date, that:
a. Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its
jurisdiction of incorporation or formation, with the requisite entity power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.
b. This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. This Subscription Agreement
is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of
creditors generally and (ii) principles of equity, whether considered at law or equity.
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c. The execution and delivery by Subscriber of this Subscription Agreement, and the performance by Subscriber of its
obligations under this Subscription Agreement, including the purchase of the Acquired Securities and the consummation of the other transactions contemplated herein, will not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan
agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material
adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of Subscriber, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to
comply in all material respects with the terms of this Subscription Agreement; (ii) the organizational documents of Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or
foreign, having jurisdiction over Subscriber or any of Subscriber’s properties that would reasonably be expected to have a Subscriber Material Adverse Effect or materially affect the legal authority of Subscriber to comply in all material respects
with this Subscription Agreement.
d. Subscriber hereby represents and warrants that: (1) if an individual, Subscriber is a “qualified
purchaser” as defined in Section 2(a)(51)(A) of the ICA and (2) if an entity, either: (i) Subscriber is an accredited investor, as defined in Rule 501(a)(3), Rule 501(a)(7), Rule 501(a)(9) or Rule 501(a)(12) under Regulation D under the Securities
Act, and the Subscription Amount of Subscriber is not financed in whole or in part by any third party for the specific purpose of making the particular investment contemplated by this Subscription Agreement; or (ii) (x) such Subscriber is an entity
that is an accredited investor, as defined in Rule 501(a)(8) under Regulation D under the Securities Act, in which all of the equity holders are accredited investors, as defined in Rule 501(a)(3), Rule 501(a)(5), Rule 501(a)(6), Rule 501(a)(7),
Rule 501(a)(9) or Rule 501(a)(12) under Regulation D under the Securities Act, and (y) the Subscription Amount of Subscriber and the Subscription Amount of Subscriber’s equity holders are not financed in whole or in part by any third party for the
specific purpose of making the particular investment contemplated by this Subscription Agreement. Subscriber (i) acknowledges that the sale contemplated hereby is being made in reliance on a private placement exemption to “accredited
investors” within the meaning of Section 501(a) of Regulation D under the Securities Act and similar exemptions under state law, (ii) is acquiring the Acquired Securities, and upon the exercise of the Pre-Funded Warrants, to the extent
applicable, will acquire the Warrant Shares issuable upon exercise of the Pre-Funded Warrants, for its own account and not for the account of others, or if Subscriber is subscribing for the Acquired Securities as a fiduciary or agent for one or more
investor accounts, each owner of such account is an “accredited investor” (as defined above) and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements,
representations and agreements herein on behalf of each owner of each such account and (iii) is not acquiring the Acquired Securities, and upon the exercise of the Pre-Funded Warrants, will not acquire the Warrant Shares issuable upon exercise of the
Pre-Funded Warrants with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. Subscriber understands and acknowledges that the purchase and sale of the Acquired Securities hereunder (i)
meets the exemptions from filing under FINRA Rule 5123(b)(1), (ii) is not being recommended (within the meaning of FINRA Rule 2111) by the Placement Agents, and (iii) if an individual, is not being recommended (for purposes of Regulation Best
Interest) by the Placement Agents.
e. Subscriber understands that the Acquired Securities are being offered in a transaction not involving any public
offering within the meaning of the Securities Act and that the Acquired Securities and Warrant Shares underlying the Pre-Funded Warrants have not been registered under the Securities Act. Subscriber understands that the Acquired Securities and
Warrant Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer, (ii) to non-U.S. persons pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S under the Securities Act, (iii) pursuant to Rule 144 (including Rule 144(i) thereunder) under the Securities Act; provided, that
all of the applicable conditions thereof have been met, or (iv) pursuant to another applicable exemption from the registration requirements of the Securities Act (including, without limitation, a private resale pursuant to the so-called “Section
4(a)(7)”), and in each case, in accordance with any applicable securities laws of the states of the United States and other applicable jurisdictions, and that any certificates or book-entry records representing the Acquired Securities shall
contain a legend to such effect. Subscriber acknowledges that the Acquired Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Acquired Securities will be
subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Acquired Securities and may be required to bear the financial risk of an investment in the Acquired
Securities for an indefinite period of time. Subscriber acknowledges and agrees that the Acquired Securities will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 until at least six months from the Closing Date.
Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Acquired Securities.
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f. Subscriber understands and agrees that Subscriber is purchasing the Acquired Securities directly from the Issuer.
Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by or on behalf of the Issuer, any of its respective affiliates or control persons, officers, directors, employees,
partners, agents or representatives, expressly or by implication, regarding the transactions contemplated by this Subscription Agreement, other than those representations, warranties, covenants and agreements included in this Subscription Agreement.
g. Subscriber’s acquisition and holding of the Acquired Securities will not constitute or result in a non-exempt
prohibited transaction under section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), section 4975 of the Code, or any applicable similar law.
h. In making its decision to subscribe for and purchase the Acquired Securities, Subscriber represents that
it has relied solely upon its own independent investigation, the investor presentation provided to Subscriber and the Issuer’s representations, warranties and covenants set forth in this Subscription Agreement. Without limiting the generality of
the foregoing, Subscriber has not relied on any statements, representations or warranties or other information provided by the Placement Agents or any of their respective affiliates, or any of their respective officers, directors, employees or
representatives, concerning the Issuer or the Acquired Securities or the offer and sale of the Acquired Securities. Subscriber acknowledges and agrees that Subscriber has received and has had the opportunity to review such information as Subscriber
deems necessary in order to make an investment decision with respect to the Acquired Securities and the Issuer, including the SEC Documents, the risk factors set forth therein, a summary of risks set forth in Exhibit C, and certain
information provided in the Issuer’s data room (provided that no risk factor disclosure or information set forth in such data room shall be deemed to qualify any representation or warranty of the Issuer contained herein). Subscriber represents and
agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have
deemed necessary to make an investment decision with respect to the Acquired Securities.
i. Subscriber became aware of this offering of the Acquired Securities solely by means of direct contact between
Subscriber and the Issuer, a Placement Agent or a representative of the Issuer or a Placement Agent, and the Acquired Securities were offered to Subscriber solely by direct contact between Subscriber and the Issuer, a Placement Agent or a
representative of the Issuer or a Placement Agent. Subscriber did not become aware of this offering of the Acquired Securities, nor were the Acquired Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer
represents and warrants that the Acquired Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of,
the Securities Act, or any state securities laws.
j. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the
Acquired Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Acquired Securities, and Subscriber has sought such accounting, legal and
tax advice as Subscriber has considered necessary to make an informed investment decision. Accordingly, Subscriber is aware that neither of the Placement Agents is making any recommendation to the Subscriber with respect to the offering of the
Acquired Securities.
k. Subscriber acknowledges and agrees that none of the Placement Agents, nor any affiliate of a Placement Agent or any
officer, director, employee or representative of such Placement Agent or any affiliate thereof has provided Subscriber with any information or advice with respect to the Acquired Securities nor is such information or advice necessary or desired.
Subscriber acknowledges that none of the Placement Agents, any of their respective affiliates or any of their respective officers, directors, employees or representatives (i) has made any representation as to the Issuer or the quality of the Acquired
Securities, and the Placement Agents may have acquired non-public information with respect to the Issuer, which Subscriber agrees need not be provided to it, (ii) has made an independent investigation with respect to the Issuer or the Acquired
Securities or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Issuer, (iii) has acted as Subscriber’s financial advisor or fiduciary in connection with the issuance and purchase of the Acquired Securities or
(iv) has prepared a disclosure or offering document in connection with the offer and sale of the Acquired Securities.
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l. Subscriber represents and acknowledges that Subscriber, either alone or together with any professional advisor(s), has
adequately analyzed and fully considered the risks of an investment in the Acquired Securities and determined that the Acquired Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future
to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists; provided, that neither this representation nor any other representation or warranty made
by the Subscriber herein shall in any way limit the Subscriber’s right to rely upon the Issuer’s representations, warranties and covenants contained herein.
m. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the
offering of the Acquired Securities or made any findings or determination as to the fairness of an investment in the Acquired Securities.
n. The operations of the Subscriber have been conducted in material compliance with the rules and
regulations administered or conducted by OFAC applicable to such Subscriber. Such Subscriber has performed due diligence necessary to reasonably determine that its beneficial owners are not named on the lists of denied parties or blocked persons
administered by OFAC, resident in or organized under the laws of a country that is the subject of Sanctions, or otherwise the subject of Sanctions, except as permitted under Sanctions.
o. Subscriber is not currently (and at all times through the Closing or earlier termination of this Subscription Agreement
will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) acting for the purpose of acquiring, holding, voting or disposing of equity
securities of the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any “group” consisting solely of the Subscriber and one or more of its affiliates.
p. If Subscriber is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of ERISA, (ii) a
plan, an individual retirement account or other arrangement that is subject to section 4975 of the Code, (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i)
and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of
ERISA) or other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the
Internal Revenue Code (collectively, “Similar Laws,” and together with the ERISA Plans, the “Plans”), Subscriber represents and warrants that (i) neither the Issuer nor any of its respective affiliates has provided investment advice or
has otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold the Acquired Securities, and none of the Issuer or any of its respective affiliates is or shall at any time be the Plan’s fiduciary with respect to any
decision to acquire and hold the Acquired Securities, and none of the Issuer or any of its respective affiliates is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with Subscriber’s investment in the Acquired
Securities and (ii) its purchase of the Acquired Securities will not result in a non-exempt prohibited transaction under section 406 of ERISA or section 4975 of the Code, or any applicable Similar Law.
q. Subscriber has, and at the Closing, will have, sufficient funds to pay the Purchase Price pursuant to Section 2.b.
r. If Subscriber is paying all or part of the Purchase Price in USDC or USDT (i) Subscriber has all rights, title and
interest in and to the USDC or USDT, as applicable, to be contributed by it to the Issuer pursuant to this Subscription Agreement, (ii) such USDC or USDT, as applicable, is held in a digital wallet held or operated by or on behalf of the Subscriber
at or by an appropriately regulated custodian and/or in accordance with industry-standard security practices (the “Subscriber Digital Wallet”) and neither such USDC nor USDT, as applicable, nor such Subscriber Digital Wallet is subject to any
liens, encumbrances or other restrictions, (iii) Subscriber has taken commercially reasonable steps to protect its Subscriber Digital Wallet and such USDC or USDT, as applicable, and (iv) Subscriber has the exclusive ability to control such
Subscriber Digital Wallet, including by use of “private keys” or other equivalent means or through custody arrangements or other equivalent means.
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5. Registration Rights.
a. The Issuer agrees to use commercially reasonable efforts to submit to or file with the Commission, within thirty (30)
calendar days after the consummation of the Transaction (the “Filing Date”) (at the Issuer’s sole cost and expense), a registration statement on Form F-3 (or Form F-1 if Form F-3 is not available) (the “Registration Statement”),
registering the resale of the Registrable Securities, which Registration Statement may include the shares of Common Stock being purchased by the Other Subscribers in the Other Subscriptions and the shares of Common Stock issued or issuable upon the
exercise of the Pre-Funded Warrants being purchased by the Other Subscribers in the Other Subscriptions, and the Issuer shall use its commercially reasonable efforts to have the Registration Statement declared effective under the Securities Act as
soon as practicable after the filing thereof and upon the earlier of (i) the fifteenth (15th) business day (or sixtieth (60th) business day if the Commission notifies the Issuer that it will “review” the Registration Statement)
following the filing date and (ii) the fifth (5th) business day after the date the Issuer is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be
subject to further review (such earlier date, the “Effective Date”); provided, however, that the Issuer’s obligations to include a Subscriber’s Registrable
Securities in the Registration Statement are contingent upon Subscriber furnishing in writing to the Issuer such information regarding such Subscriber, the securities of the Issuer held by such Subscriber and the intended method of disposition of the
Registrable Securities as shall be reasonably requested by the Issuer to effect the registration of the Registrable Securities, and Subscriber shall execute such documents in connection with such registration as the Issuer may reasonably request that
are customary of a selling stockholder in similar situations, including providing that the Issuer shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement as permitted under Section 5.c of this
Subscription Agreement. Notwithstanding the foregoing, if the Commission prevents the Issuer from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the
Securities Act for the resale of the Registrable Securities by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Registrable Securities which is equal to the maximum number of Registrable
Securities as is permitted by the Commission. In such event, the number of Registrable Securities to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders. In the
event of any such reduction, the Issuer shall use its best efforts to promptly file additional registration statements (or amendments) as permitted by the Commission to register for resale any Registerable Securities not included due to such
limitation, until all Registerable Securities are so registered. Upon notification by the Commission that the Registration Statement has been declared effective by the Commission, within two (2) business days thereafter, the Issuer shall file the
final prospectus under Rule 424 of the Securities Act. The Issuer will provide a draft of the Registration Statement to Subscriber for review at least five (5) business days in advance of filing the Registration Statement; provided, that for the avoidance of doubt, in no event shall the Issuer be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Subscriber’s review. In no event shall
Subscriber be identified as an underwriter in the Registration Statement unless required by the Commission; provided, that if the Commission requests that Subscriber be identified as an underwriter in the
Registration Statement, Subscriber will have an opportunity to withdraw from the Registration Statement (in which case the Issuer shall not identify the Subscriber as an underwriter therein). Subscriber shall not be entitled to use the Registration
Statement for an underwritten offering of Registrable Securities. For purposes of clarification, any failure by the Issuer to file the Registration Statement by the Filing Date or to effect such Registration Statement by the Effective Date shall not
otherwise relieve the Issuer of its obligations to file or effect the Registration Statement as set forth above in this Section 5. “Registrable Securities” means the Acquired Shares, the Warrant Shares issued or issuable upon the
exercise of the Pre-Funded Warrants, and any shares of Common Stock issued or issuable with respect to the Acquired Shares and the Warrant Shares as a result of any stock split or subdivision, stock dividend, recapitalization, exchange or similar
event.
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b. In the case of the registration effected by the Issuer pursuant to this Subscription Agreement, the Issuer shall, upon
reasonable request, inform Subscriber as to the status of such registration. At its expense the Issuer shall:
(i) except for such times as the Issuer is permitted hereunder to suspend the use of the prospectus forming part of a
Registration Statement, use its commercially reasonable efforts to keep such registration continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any
material misstatements or omissions, until the earlier of the following: (A) Subscriber ceases to hold any Registrable Securities, (B) the date all Registrable Securities held by Subscriber may be sold without restriction under Rule 144 of the
Securities Act, including without limitation, any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 and without the requirement for the Issuer to be in compliance with the current public information required
under Rule 144(c)(1) or Rule 144(i)(2), as applicable, and (C) three (3) years from the Effective Date of the Registration Statement. The period of time during which the Issuer is required hereunder to keep a Registration Statement effective is
referred to herein as the “Registration Period”;
(ii) during the Registration Period, advise Subscriber promptly:
(1) when a Registration Statement or any amendment thereto has been filed with the Commission and when such Registration
Statement or any post-effective amendment thereto has become effective;
(2) of any request by the Commission for amendments or supplements to any Registration Statement or the prospectus
included therein or for additional information;
(3) after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
(4) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the
Registrable Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(5) in accordance with Section 5.c of this Subscription Agreement, of the occurrence of any event that requires
the making of any changes in any Registration Statement or prospectus so that, as of such date, any Registration Statement does not contain an untrue statement of a material fact or does not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any prospectus does not include an untrue statement of a material fact or does not omit to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Notwithstanding anything to the contrary set forth herein, the Issuer shall not, when so advising Subscriber of such events, provide
Subscriber with any material, nonpublic information regarding the Issuer, any of its affiliates or any other Person, unless the Issuer has notified Subscriber of the existence of such an event (without providing material, nonpublic information about
the specific nature of such event) and obtained the written consent of the Subscriber to receive such information;
(iii) during the Registration Period, use its commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of any Registration Statement as soon as reasonably practicable;
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(iv) during the Registration Period, upon the occurrence of any event contemplated above, except for such times as the
Issuer is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such
Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, such prospectus will not include any untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) during the Registration Period, use its commercially reasonable efforts (y) to remain listed on each Exchange and to
cause all Registrable Securities to be listed on each securities exchange or market, if any, on which the Common Stock issued by the Issuer have been listed and (z) to timely comply in all material respects with the Issuer’s reporting, filing and
other obligations under the rules and regulations of the Commission and each Exchange;
(vi) during the Registration Period, use its commercially reasonable efforts to take all other steps necessary to effect
the registration of the Registrable Securities contemplated hereby and, for so long as Subscriber holds Registrable Securities, to enable Subscriber to sell the Registrable Securities under Rule 144;
(vii) subject to receipt from Subscriber by the Issuer or its transfer agent of customary representations and other
customary documentation reasonably acceptable to the Issuer and the transfer agent in connection therewith, Subscriber may request that the Issuer remove, and the Issuer shall cause to be removed, any legend from the book entry position(s) or
certificate(s) evidencing its Registrable Securities at any time that such Registrable Securities (A) are subject to or have been or are about to be sold or transferred pursuant to, an effective registration statement (including a registration
statement filed under this Subscription Agreement); (B) have been or are about to be sold pursuant to Rule 144; or (C) may be sold pursuant to Rule 144 without restriction on the volume or manner of sale and without the requirement for the Issuer to
be in compliance with the current public information requirement under Rule 144 (or any similar provision then in force under the Securities Act). If required by the Issuer’s transfer agent, the Issuer shall cause its counsel to deliver promptly to
such transfer agent an opinion of counsel to the effect that the removal of restrictive legends in such circumstances may be effected under the Securities Act if required by such transfer agent to effect the removal of restrictive legends in
accordance with the provisions of this Subscription Agreement. If restrictive legends are no longer required for such Registrable Securities pursuant to the foregoing, the Issuer shall, in accordance with the provisions of this Section 5 and
within two (2) business days of any request therefor from Subscriber accompanied by such customary and reasonably acceptable representations and other documentation referred to above establishing that restrictive legends are no longer required,
deliver to the transfer agent irrevocable instructions that the transfer agent shall make a new, unlegended entry for such book entry Registrable Securities. The Issuer shall be responsible for the fees of its transfer agent and all Depository Trust
Company fees associated with such issuance; and
(viii) reasonably cooperate with any broker-dealer through which a Subscriber proposes to resell Registrable Securities,
including making any required filings with FINRA and applicable state securities authorities.
c. Notwithstanding anything to the contrary in this Subscription Agreement, the Issuer shall be entitled to delay or
postpone the filing or effectiveness of the Registration Statement, and, from time to time, to require Subscriber not to sell under the Registration Statement or to suspend the effectiveness or use thereof, if it determines that the negotiation or
consummation of a transaction by the Issuer is pending or an event has occurred, which negotiation, consummation or event that the Board of Directors reasonably believes, upon the advice of outside legal counsel, would require additional disclosure
by the Issuer in the Registration Statement of material information that the Issuer has a bona fide business purpose for keeping confidential and the non-disclosure of which in the Registration Statement would be expected, in the reasonable
determination of the Issuer, upon the advice of outside legal counsel, to cause the Registration Statement to fail to comply with applicable disclosure requirements or is otherwise necessary for the Registration Statement to not contain a material
misstatement or omission (each such circumstance, a “Suspension Event”); provided, however, that the Issuer may not delay or suspend the effectiveness or use
of the Registration Statement on more than two (2) occasions or for more than sixty (60) calendar days, or for more than ninety (90) total calendar days, in each case during any twelve-month period. Upon receipt of any written notice from the Issuer
of the happening of any Suspension Event (which notice shall not contain material, nonpublic information) during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement contains any
untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any related prospectus includes any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, Subscriber agrees that (i) it will promptly discontinue offers and sales of the Registrable
Securities under the Registration Statement until Subscriber receives copies of a supplemental or amended prospectus (which the Issuer agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice
that any post-effective amendment has become effective or unless otherwise notified by the Issuer that it may resume such offers and sales and (ii) it will maintain the confidentiality of any information included in such written notice delivered by
the Issuer unless otherwise required by law or subpoena. If so directed by the Issuer, Subscriber will deliver to the Issuer or, in Subscriber’s sole discretion destroy, all copies of the prospectus covering the Registrable Securities in Subscriber’s
possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Registrable Securities shall not apply (A) to the
extent Subscriber is required to retain a copy of such prospectus (x) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (y) in accordance with a bona fide pre-existing document retention policy or
(B) to copies stored electronically on archival servers as a result of automatic data back-up.
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d. Subscriber may deliver written notice (including via email in accordance with Section 8.k) (an “Opt-Out
Notice”) to the Issuer requesting that Subscriber not receive notices from the Issuer otherwise required by this Section 5; provided, however, that
Subscriber may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from Subscriber (unless subsequently revoked), (i) the Issuer shall not deliver any such notices to Subscriber and Subscriber shall no longer be
entitled to the rights associated with any such notice and (ii) each time prior to Subscriber’s intended use of an effective Registration Statement, Subscriber will notify the Issuer in writing at least two (2) business days in advance of such
intended use, and if a notice of a Suspension Event was previously delivered (or would have been delivered but for the provisions of this Section 5.d) and the related suspension period remains in effect, the Issuer will so notify Subscriber,
within one (1) business day of Subscriber’s notification to the Issuer, by delivering to Subscriber a copy of such previous notice of Suspension Event, and thereafter will provide Subscriber with the related notice of the conclusion of such
Suspension Event immediately upon its availability.
e. The Issuer shall, notwithstanding any termination of this Subscription Agreement in accordance with Section 6,
indemnify, defend and hold harmless Subscriber (to the extent a seller under the Registration Statement), its directors, officers, agents, broker-dealers, and employees and each person who controls Subscriber (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the fullest extent permitted by applicable law, from and against any and all out-of-pocket losses, claims, damages, liabilities and reasonable and documented costs (including, without limitation,
reasonable and documented costs of preparation and investigation and reasonable documented attorneys’ fees of one legal counsel (and one local counsel)) and all other reasonable and documented expenses (collectively, “Losses”), as incurred,
that arise out of or are based upon (i) any untrue statement of a material fact contained in the Registration Statement or in any amendment or supplement thereto, or arising out of or relating to any omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; (ii) any untrue statement of a material fact included in any prospectus included (or incorporated by reference) in the Registration Statement, or any form of prospectus, or in
any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading, except in either of the foregoing clauses (i) and (ii), to the extent, but only to the extent, that such untrue statement or omissions are based upon information regarding Subscriber furnished in writing to the Issuer by such
Subscriber expressly for use therein or such Subscriber has omitted a material fact from such information or otherwise violated the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder; or (iii) any material
breach of any representation, warranty, or covenant in this Subscription Agreement; provided, however, that the indemnification contained in this Section 5 shall not apply to amounts paid in
settlement of any Losses if such settlement is effected without the consent of the Issuer (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Issuer be liable for any Losses to the extent they arise out of or are
based upon a violation which occurs (A) in reliance upon and in conformity with written information furnished by Subscriber expressly for inclusion in the Registration Statement, or (B) in connection with any offers or sales effected by or on behalf
of Subscriber in violation of Section 5.c hereof. The Issuer shall notify Subscriber reasonably promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section
5 of which the Issuer is aware. The Issuer shall not, without the prior written consent of Subscriber, effect any settlement of any pending proceeding in respect of which Subscriber or any other person entitled to indemnification hereunder is a
party, unless such settlement includes an unconditional release of Subscriber or such other person, as applicable, from all liability on claims that are the subject matter of such proceeding. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Registrable Securities by Subscriber. The indemnification obligations of the Issuer shall remain in full force and effect regardless of
any termination of this Subscription Agreement and shall survive the transfer of Registerable Securities by Subscriber.
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f. Subscriber shall, severally and not jointly, indemnify and hold harmless the Issuer, its directors, officers, agents
and employees, and each person who controls the Issuer (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, that
arise out of or are based upon (i) any untrue statement of a material fact contained in any Registration Statement or in any amendment or supplement thereto or arising out of or relating to any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) any untrue statement of a material fact included in any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case of
clauses (i) and (ii), to the extent, but only to the extent, that such untrue statement or omissions are based upon information regarding such Subscriber furnished in writing to the Issuer by such Subscriber expressly for use therein or a material
fact that such Subscriber has omitted from such information; provided, however, that the indemnification contained in this Section 5.f shall not apply to amounts paid in settlement of any Losses if
such settlement is effected without the consent of Subscriber (which consent shall not be unreasonably withheld, conditioned or delayed). In no event shall the liability of Subscriber be greater in amount than the dollar amount of the net proceeds
received by such Subscriber upon the sale of the Registrable Securities giving rise to such indemnification obligation. Subscriber shall notify the Issuer promptly of the institution, threat or assertion of any proceeding arising from or in
connection with the transactions contemplated by this Section 5.f of which such Subscriber is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall
survive the transfer of the Acquired Securities by Subscriber.
g. If the indemnification provided under this Section 5 from the indemnifying party is unavailable or insufficient
to hold harmless an indemnified party in respect of any Losses, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such
proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question, including any untrue statement of a material fact or omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses shall be
deemed to include, subject to the limitations set forth above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5.g from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying party’s obligation to make a
contribution pursuant to this Section 5.g shall be several, not joint. In no event shall the liability of the Subscriber under any indemnification or contribution obligation hereunder be greater in amount than the dollar amount of the net
proceeds received by such Subscriber upon the sale of the Acquired Securities purchased pursuant to this Subscription Agreement giving rise to such obligation. The Issuer acknowledges and agrees that monetary damages would not be adequate
compensation for a breach of its obligations hereunder, and Subscriber shall be entitled to specific performance. All obligations of the Issuer under this Section shall survive any termination of this Subscription Agreement and the transfer of
Registerable Securities.
h. Except as expressly set forth in the Transaction Documents to the contrary, the Issuer shall not enter into any
agreement granting registration rights that are more favorable in any respect to another holder of its securities without offering such more favorable terms to Subscriber on a pari passu basis.
6. Confidential Information.
Each Subscriber covenants that until such time as the transactions contemplated by this Subscription Agreement are publicly
disclosed by the Issuer in a Current Report on Form 6-K, such Subscriber will maintain the confidentiality of the existence and terms of this transaction, this Subscription Agreement and the other Transaction Documents, except that the foregoing
shall not prohibit disclosure by such Subscriber to such Subscriber’s outside attorney, accountant, auditor or investment advisor only to the extent necessary to permit evaluation of the investment and the performance of the necessary or required
tax, accounting, financial, legal, or administrative tasks and services and other than as may be required by law.
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7. Reliance by and Exculpation of the Placement Agents.
a. Each Subscriber acknowledges and agrees for the express benefit of each of the Placement Agents, their respective
affiliates, and any of their respective control persons, officers, directors, employees, agents, and representatives that (i) none of the Placement Agents or any of their respective affiliates or their respective control persons, officers, directors,
employees, agents, or representatives of any of the foregoing has made, and will not make, any representations or warranties, whether express or implied, with respect to the Issuer or the offer and sale of the Acquired Securities, and such Subscriber
will not rely on any statements made by the Placement Agents, orally or in writing, to the contrary, (ii) such Subscriber will be responsible for conducting its own due diligence investigation with respect to the Issuer and the offer and sale of the
Acquired Securities, (iii) such Subscriber will be purchasing Acquired Securities based on the results of its own due diligence investigation of the Issuer, and none of the Placement Agents nor any of their respective affiliates nor any control
persons, officers, directors, employees, partners, agents, or representatives of any of the foregoing (x) has made any independent investigation with respect to the Issuer, the Acquired Securities, or the accuracy, completeness, or adequacy of any
information supplied to the Subscriber by the Issuer and (y) is not making any recommendation to any Subscriber with respect to the Issuer or the Acquired Securities, including the purchase of the Acquired Securities by any Subscriber, (iv) none of
the Transaction Documents has been prepared by the Placement Agents or any of their respective affiliates, or any control persons, officers, directors, employees, agents, or representatives of any of the foregoing in connection with the offer and
sale of the Acquired Securities, (v) none of the Placement Agents nor any of their affiliates, nor any control persons, officers, directors, employees, agents, or representatives of any of the foregoing, has (x) any responsibility with respect to (1)
any representations, warranties, or agreements made by any other Person under or in connection with the transactions contemplated by this Subscription Agreement or any of the documents furnished pursuant thereto or in connection therewith, or the
execution, legality, validity, or enforceability (with respect to any Person) or any thereof or (2) the business, affairs, financial condition, operations, properties, or prospects of, or any other matter concerning the Issuer or the transactions
contemplated by this Subscription Agreement or (y) any liability or obligation (including, without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses, or
disbursements incurred by the Subscriber, the Issuer, or any other Person), whether in contract, tort, or otherwise, to the Subscriber, or to any Person claiming through such Subscriber, in respect of any of the transactions contemplated by this
Subscription Agreement, (vi) the Placement Agents are acting solely as placement agents to the Issuer in connection with the transactions contemplated by this Subscription Agreement, and none of the Placement Agents, nor any of their respective
affiliates, or any control persons, officers, directors, employees, agents, or representatives of any of the foregoing, is acting as an underwriter or in any other capacity and is not and shall not be construed as a financial advisor or fiduciary for
such Subscriber, the Issuer, or any other person or entity in connection with any of the transactions contemplated by this Subscription Agreement, and (vii) the decision to invest in the Issuer will involve a significant degree of risk, including a
risk of total loss of such investment. Each Subscriber further represents and warrants to the Placement Agents that such Subscriber, including any fund or funds that such Subscriber manages or advises that participates in the offer and sale of the
Acquired Securities, is permitted under its constitutive documents (including, without limitation, all limited partnership agreements, charters, bylaws, limited liability company agreements, all applicable side letters with investors, and similar
documents) to make investments of the type contemplated by this Subscription Agreement. This Section 7 shall survive any termination of this Subscription Agreement.
b. The Issuer agrees and acknowledges that the Placement Agents may rely on its representations, warranties, agreements
and covenants contained in this Subscription Agreement and each Subscriber agrees that the Placement Agents may rely on such Subscriber’s representations and warranties contained in this Subscription Agreement as if such representations and
warranties, as applicable, were made directly to the Placement Agents.
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c. None of the Placement Agents nor any of their respective affiliates, or any control persons, officers, directors,
employees, agents, or representatives of any of the foregoing, (1) shall have any liability to the Subscribers pursuant to, arising out of or relating to this Subscription Agreement, the negotiation hereof or thereof, or its subject matter, or the
transactions contemplated in this Subscription Agreement or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Acquired
Securities or with respect to any claim (whether in tort, contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided
herein, or for any actual or alleged inaccuracies, misstatements, or omissions with respect to any information or materials of any kind furnished by the Issuer, the Placement Agents or any Non-Party Affiliate (as defined below) concerning the
Placement Agents, this Subscription Agreement, or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member,
manager, direct or indirect equity holder, or affiliate of the Placement Agents or any of the Placement Agents’ controlled affiliates. The Subscriber agrees that the Placement Agents shall not be liable to it (including in contract, tort, under
federal or state securities laws or otherwise) for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the sale of Acquired Securities pursuant to this Subscription Agreement. Subscriber releases each of
the Placement Agents in respect of any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses, or disbursements related to the sale of Acquired Securities pursuant to this Subscription Agreement. Each
Subscriber agrees not to commence any litigation or bring any claim against either of the Placement Agents in any court or any other forum which relates to, may arise out of, or is in connection with, the sale of Acquired Securities pursuant to this
Subscription Agreement. This undertaking is given freely and after obtaining independent legal advice.
d. The Issuer agrees that the Placement Agents, their affiliates and any of their respective control persons, officers,
directors, employees, agents and representatives shall be entitled to (1) rely on, and shall be protected in acting upon, any certificate, instrument, notice, letter or any other document or security delivered to any of them by or on behalf of the
Issuer, and (2) be indemnified by the Issuer for acting as the Placement Agents hereunder pursuant to the indemnification provisions set forth in the applicable letter agreement between the Issuer and the Placement Agents.
8. Termination. This Subscription Agreement shall terminate and be void and of no further force and
effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) upon the mutual written agreement of each of the parties
hereto to terminate this Subscription Agreement, (b) if any of the conditions to the Closing set forth in Section 2 of this Subscription Agreement are not satisfied at, or are not capable of being satisfied on or prior to, the Closing and,
as a result thereof, the transactions contemplated by this Subscription Agreement will not be or are not consummated at the Closing, or (c) at the election of Subscriber, on or after November 6, 2025; provided, that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at
law or in equity to recover losses, liabilities or damages arising from any such willful breach. In the event that this Subscription Agreement is terminated for any reason, the Issuer shall within one (1) business day following such termination,
return to Subscriber (by wire transfer of U.S. dollars in immediately available funds to the account specified by such Subscriber) all funds deposited in escrow by Subscriber in connection with the Transaction.
9. Miscellaneous
a. Each party hereto acknowledges that the other party hereto and the Placement Agents will rely on the acknowledgments,
understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the Closing, each party hereto agrees to promptly notify the other party hereto if any of the acknowledgments, understandings, agreements,
representations and warranties made by such party as set forth herein are no longer accurate in all material respects. Subscriber further acknowledges and agrees that the Placement Agents are third-party beneficiaries of the representations and
warranties of Subscriber contained in Section 4, and the Issuer further acknowledges and agrees that each of the Placement Agents is a third-party beneficiary of the representations and warranties of the Issuer contained in Section 3.
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b. Subscriber agrees that none of (i) any Other Subscriber pursuant to Other Subscription Agreements entered into in
connection with the Transaction (including the affiliates or controlling persons, members, officers, directors, partners, agents, or employees of any such Other Subscriber), (ii) the Placement Agents, their respective affiliates or any of their or
their respective affiliates’ control persons, officers, directors or employees, and (iii) any affiliates or any control persons, officers, directors, employees, partners, agents or representatives of the Issuer shall be liable to Subscriber or to any
Other Subscriber pursuant to this Subscription Agreement, the Pre-Funded Warrants, or the Other Subscription Agreements, as applicable, the negotiation hereof or thereof or the subject matter hereof or thereof, or the transactions contemplated hereby
or thereby, for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Acquired Securities. On behalf of itself and its affiliates, the Subscriber releases each of the entities or
individuals described above in respect of any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements related to this Subscription Agreement or the transactions contemplated hereby.
c. The Issuer and Subscribers are entitled to rely upon this Subscription Agreement and each is irrevocably authorized to
produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby to the extent required by law or by regulatory bodies.
d. Notwithstanding anything to the contrary in this Subscription Agreement, prior to the Closing, Subscriber may not
transfer or assign all or a portion of its rights and obligations under this Subscription Agreement, other than to one or more of its affiliates (including other investment funds or accounts managed or advised by the investment manager who acts on
behalf of Subscriber) without the prior consent of the Issuer; provided, that such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Subscription
Agreement, makes the representations and warranties in Section 4 and completes Schedule A hereto; provided, further, that, no assignment shall relieve the assigning party of any of its
obligations hereunder, including any assignment to any fund or account managed by the same investment manager as Subscriber or by an affiliate of such investment manager. In the event of such a transfer or assignment, such Subscriber shall complete
the form of assignment attached as Schedule B hereto. The Issuer may not assign or transfer all or any portion of its rights or obligations under this Subscription Agreement without the consent of each Subscriber.
e. The Issuer may request from Subscriber such additional information as the Issuer may reasonably deem necessary to
evaluate the eligibility of Subscriber to acquire the Acquired Securities and to register the Acquired Securities for resale, and Subscriber shall promptly provide such information as may be reasonably requested, to the extent readily available and
to the extent consistent with its internal policies and procedures; provided, that the Issuer agrees to keep any such information provided by Subscriber confidential except (i) as required by the federal
securities laws, rules or regulations and (ii) to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of the Commission or regulatory agency or under the regulations of Nasdaq. The Subscriber
acknowledges that the Issuer may file a copy of this Subscription Agreement with the Commission as exhibit to a periodic report or a registration statement of the Issuer.
f. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements,
understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.
g. Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of,
the parties hereto and their respective affiliates and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments
contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
h. If any provision of this Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.
i. This Subscription Agreement may be executed in two (2) or more counterparts (including by electronic means), all of
which shall be considered one and the same agreement and shall become effective when signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
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j. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay all of its own
expenses in connection with this Subscription Agreement and the transactions contemplated herein.
k. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally,
emailed or telecopied, sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) upon receipt of an
appropriate electronic answerback or confirmation when so delivered by telecopy (to such number specified below or another number or numbers as such person may subsequently designate by notice given hereunder), (iii) when sent, with no mail
undeliverable or other rejection notice, if sent by email or (iv) five (5) business days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:
(A) if to Subscriber, to such address or addresses set forth on the signature page hereto;
(B) if to the Issuer, to:
OceanPal Inc.
Pendelis 26, 175 64 Palaio Faliro
Athens, Greece,
Attention: Robert Perri
Facsimile: + 30-210-9401-810
email: [email protected]
Copy (which shall not constitute notice) to:
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Attention: Edward S. Horton, Esq.,
Facsimile: (212) 480-8421
Email: [email protected]
(C) if to the Placement Agents, to:
Clear Street LLC
4 World Trade Center
150 Greenwich Street, 45th Floor
New York, NY 10007
Attn: General Counsel
Email: [email protected]
150 Greenwich Street, 45th Floor
New York, NY 10007
Attn: General Counsel
Email: [email protected]
and
Cohen & Company Capital Markets LLC
3 Columbus Circle, Floor 24
New York, NY 10019
Attn: Jerry Serowik
Email: [email protected]
3 Columbus Circle, Floor 24
New York, NY 10019
Attn: Jerry Serowik
Email: [email protected]
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l. This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or
related to this Subscription Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of this Subscription Agreement, shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the principles of conflicts of law thereof.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, THE SUPREME COURT OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF NEW
YORK SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS SUBSCRIPTION AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED
HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE
THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE
HEARD AND DETERMINED BY SUCH A NEW YORK STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE
AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 9.K OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES
THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 9.L.
m. The Issuer shall, by 9:30 a.m., New York City time, on the first (1st) business day immediately following the date of
this Subscription Agreement (or, if this Subscription Agreement is executed and delivered by the parties hereto prior to 8:00 a.m., New York City time, on a business day, prior to 9:30 a.m., New York City time, on the date hereof), issue one or more
press releases or furnish or file with the Commission a Current Report on Form 6-K (collectively, the “Disclosure Document”) disclosing, to the extent not previously publicly disclosed, all material terms of the transactions contemplated
hereby, the Transaction and any other material, nonpublic information that the Issuer has provided to Subscriber at any time prior to the filing of the Disclosure Document. From and after the issuance of the Disclosure Document, Subscriber shall not
be in possession of any material, nonpublic information received from the Issuer or any of its officers, directors, employees or other representatives. From and after such date, Issuer shall not provide any material non-public information to
Subscriber without Subscriber’s prior written consent, and any such information so provided shall be promptly disclosed publicly. Notwithstanding anything in this Subscription Agreement to the contrary, the Issuer shall not publicly disclose the name
of Subscriber or any of its affiliates, or include the name of Subscriber or any of its affiliates, without the prior written consent of Subscriber, (i) in any press release or (ii) in any filing with the Commission or any regulatory agency or
trading market, except (A) as required by the federal securities law in connection with the Registration Statement, (B) in a press release or marketing materials of the Issuer in connection with the Transaction to the extent any such disclosure is
substantially equivalent to the information that has previously been made public without breach of the obligation under this Section 9.m or (C) to the extent such disclosure is required by law, at the request of the staff of the Commission or
regulatory agency or under the regulations of the Exchange or by any other governmental authority, in which case the Issuer shall provide Subscriber with prior written notice of such disclosure permitted under this subclause (iii).
27
n. In connection with any sale, assignment, transfer or other disposition of the Acquired Securities by a Subscriber
pursuant to Rule 144 or pursuant to any other exemption under the Securities Act such that the purchaser acquires freely tradable shares and upon compliance by the Subscriber with the requirements of this Subscription Agreement, if requested by the
Subscriber by notice to the Issuer, the Issuer shall request its transfer agent to remove any restrictive legends related to the book entry account holding such shares and make a new, unlegended entry for such book entry shares sold or disposed of
without restrictive legends within one (1) business day of any such request therefor from such Subscriber, provided, that the Issuer has timely received from the Subscriber a completed representation letter
in customary form and such other customary representations as may be reasonably required in accordance with applicable law in connection therewith. Subject to receipt from a Subscriber by the Issuer and the Issuer’s transfer agent of customary
representations and other documentation reasonably acceptable to the Issuer and the Issuer’s transfer agent in connection therewith, the Issuer shall, in accordance with the provisions of this Section 9.n and promptly following any request
therefor from a Subscriber accompanied by such customary and reasonably acceptable documentation referred to above, (A) deliver to the Issuer’s transfer agent irrevocable instructions that the Issuer’s transfer agent shall make a new, unlegended
entry for such book entry shares, and (B) cause its counsel to promptly deliver to the Issuer’s transfer agent an opinion to the effect that the removal of such legends in such circumstances may be effected under the Securities Act if required by the
Issuer’s transfer agent to effect the removal of such legends in accordance with the provisions of this Subscription Agreement. The Issuer shall be responsible for the fees of the Issuer’s transfer agent, its legal counsel and all DTC fees associated
with such legend removal.
o. No consideration (including any modification of any Transaction Document) shall be offered or
paid to any person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is also offered to all of the parties to the Transaction Documents.
p. This Subscription Agreement may not be amended, modified, supplemented, or waived except by an instrument in writing
signed by the Issuer and Subscriber; provided, however, that any amendment, modification, supplement or waiver that adversely affects each Placement Agent will require the consent of the Placement Agents.
Notwithstanding the foregoing, any party may waive any of its own rights (but not obligations) under this Subscription Agreement, in whole or in part, by providing written notice to the other parties, and such waiver shall not require the consent of
any other party; provided, further, that Section 3, Section 4, Section 7, Section 9.a and this Section 9.p may not be amended, terminated or waived in a manner that is
material and adverse to the Placement Agents without the written consent of each of the Placement Agents.
q. The parties agree that irreparable damage would occur if any provision of this Subscription Agreement were not
performed in accordance with the terms hereof, and accordingly, that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Subscription Agreement or to enforce specifically the performance of the terms
and provisions of this Subscription Agreement in an appropriate court of competent jurisdiction as set forth in Section 9.l, in addition to any other remedy to which any party is entitled at law or in equity.
r. If Subscriber purchases the Acquired Securities by transferring USDC or USDT to the Issuer, Subscriber shall furnish or
otherwise make available to the Issuer (and shall cooperate with the Issuer in obtaining) all information and documentation necessary for the Issuer to specifically identify the tax basis in each such USDC or USDT for applicable tax purposes,
including, but not limited to: (i) the date, time, and source of acquisition of each such USDC or USDT, (ii) the original cost and fair market value at the time of acquisition of each such USDC or USDT, (iii) historical wallet and account location
with respect to each such USDC or USDT, and (iv) detailed transaction history (both on-chain and off-chain) with respect to each such USDC or USDT.
[Signature pages follow.]
28
IN WITNESS WHEREOF, each of the Issuer and Subscriber has executed or caused this
Subscription Agreement to be executed by its duly authorized representative as of the date first written above.
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ISSUER:
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OCEANPAL INC.,
a Marshall Islands corporation
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By:
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Name:
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Title:
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||
Signature Page to Subscription Agreement
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SUBSCRIBER:
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Name of Subscriber:
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Signature of Subscriber:
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By:
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Name:
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Title:
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Name in which securities are to be registered (if different):
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Email Address: _____________________
Subscriber’s EIN: ___________________
Address:
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Attn:
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||||
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Telephone No:
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||||
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Facsimile No:
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||||
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Subscription Amount:
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$
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_________________ (in USD)
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$
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_________________ (in USDT)
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||
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$
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_________________ (in USDC)
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Aggregate Number of Acquired Shares subscribed for: _______________________
Beneficial Ownership Blocker ☐ 4.99% or ☐ 9.99%
Aggregate Number of Pre-Funded Warrants subscribed for: ___________________
Aggregate Purchase Price: $ __________________
You must pay the Purchase Price by wire transfer of United States dollars in immediately available funds to the account specified by the Issuer in the Closing
Notice.
Name and Address of Beneficial Owner, if different from Subscriber:
Number of shares of Common Stock and other equity securities of the Issuer currently owned by Beneficial Owner prior to this Transaction:
Signature Page to Subscription Agreement
EXHIBIT A
Form of Pre-Funded Warrant
(see attached)
EXHIBIT B
Form of Lock Up Agreement
(see attached)
EXHIBIT C
Summary of Risks
Certain factors may have a material adverse effect on the business, financial condition and results of operations of the Issuer and your proposed investment in
the Issuer. The risks and uncertainties described below are not the only ones that the Issuer faces. Additional risks that the Issuer is unaware of, or that the Issuer currently believes are not material, may also become important factors that
materially adversely affect the Issuer. If any of the risk factors discussed in the SEC Documents or any of the following risks actually occur, the business, financial condition, results of operation, and future prospects of the Issuer could be
adversely affected, the trading price of the Common Stock could decline, and you could lose all or part of your investment.
Risks Related to Issuer’s Proposed NEAR Treasury Strategy and Holdings
| • |
The Issuer’s financial results and the trading price of its common stock may be affected by the market prices of NEAR, which are highly volatile.
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| • |
Investing in NEAR will expose the Issuer to certain risks associated with NEAR, such as price volatility, limited liquidity and trading volumes, relative anonymity, potential susceptibility to
market abuse and manipulation, theft, compliance and internal control failures at exchanges and other risks inherent in its electronic, virtual form and decentralized network.
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| • |
Future developments regarding the treatment of crypto assets for U.S. and foreign tax purposes could adversely impact the Issuer’s business. NEAR and other digital assets are novel assets, and
are subject to significant legal, commercial, regulatory and technical uncertainty.
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| • |
The availability of spot exchange-traded products for NEAR and other digital assets may adversely affect the market price of NEAR and, consequently, the trading price of the Issuer’s common
stock.
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| • |
The Issuer’s NEAR strategy may subject it to enhanced regulatory oversight.
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| • |
NEAR trading venues may experience greater fraud, security failures, or regulatory or operational problems than trading venues for more
established asset classes.
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| • |
The concentration of NEAR holdings may enhance the risks inherent in the Issuer’s NEAR treasury strategy.
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| • |
The Issuer’s NEAR holdings will be less liquid than existing cash and cash equivalents and may not be able to serve as a source of liquidity for it to the same extent as cash and cash
equivalents.
|
| • |
If the Issuer or its third-party service providers experience a security breach or cyber-attack and unauthorized parties obtain access to its NEAR assets, the Issuer may lose some or all of
its NEAR assets and its financial condition and results of operations could be materially adversely affected.
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| • |
The further development and acceptance of the NEAR network and other cryptocurrency networks, including the bitcoin network, which represent a relatively new and rapidly changing industry, are
subject to a variety of factors that are difficult to evaluate. The slowing or stopping of the development or acceptance of the NEAR, bitcoin and other cryptocurrency networks may adversely affect an investment in the Issuer.
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| • |
The launch of central bank digital currencies may adversely affect the Issuer’s ability to successfully manage its NEAR treasury strategy and, consequently, its business.
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| • |
The Issuer is not subject to legal and regulatory obligations that apply to investment companies, such as mutual funds and exchange-traded funds, or to obligations applicable to investment
advisers.
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| • |
Absent federal regulations, there is a possibility that NEAR may be classified as a “security.” Any classification of NEAR as a “security” would subject the Issuer to additional regulation and
could materially impact the operation of the Issuer’s business.
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| • |
If the Issuer was deemed to be an investment company under the Investment Company Act, applicable restrictions likely would make it impractical for the Issuer to continue our business as
currently conducted and the Issuer’s NEAR treasury functions as currently contemplated.
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| • |
Transactions using NEAR require the payment of “gas fees,” which are subject to fluctuations that may result in high transaction fees.
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| • |
The Issuer faces risks relating to the custody of the Issuer’s NEAR, including the loss or destruction of private keys required to access the Issuer’s NEAR and cyberattacks or other data loss
relating to the Issuer’s NEAR, including smart contract related losses and vulnerabilities.
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Risks Related to Issuer’s Proposed Offering
| • |
The trading price on Nasdaq for the Issuer's common stock following the closing of the proposed PIPE (including common stock and pre-funded warrants) will be affected by factors that are
materially different from those that historically have affected or currently affect such trading price, and such trading price (and volume of trading) may be volatile following such closing.
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| • |
The Issuer intends to use the net proceeds from the proposed offerings to purchase NEAR, the price of which has been, and will likely continue to be, highly volatile.
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| • |
The Issuer has broad discretion in the use of the net proceeds from the proposed offering that the Issuer does not use to purchase NEAR as part of our NEAR treasury strategy, if any, and
investors will not have the opportunity to assess whether the net proceeds are being used in a manner of which you approve.
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| • |
The Issuer's stockholders will experience dilution in the future due to any exercise of warrants, including, without limitation, the pre-funded warrants, and any future issuances of equity
securities.
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SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER
This Schedule must be completed by Subscriber and forms a part of the Subscription Agreement to which it is attached.
Capitalized terms used and not otherwise defined in this Schedule have the meanings given to them in the Subscription Agreement. Subscriber must check the applicable box in either Part A or Part B below and the applicable box in Part C below.
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A.
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QUALIFIED INSTITUTIONAL BUYER STATUS
(Please check the applicable subparagraphs): |
| ☐ |
Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act).
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*** OR ***
B. ACCREDITED INVESTOR STATUS
The undersigned represents and warrants that the undersigned is an “accredited investor” (an “Accredited
Investor”) as such term is defined in Rule 501(a) of Regulation D under the U.S. Securities Act of 1933, as amended (the “Securities Act”), for one or more of the reasons specified below
(please check all boxes that apply):
| ☐ |
(i) A natural person whose net worth, either individually or jointly with such person’s spouse or spousal equivalent, at the time of Subscriber’s purchase,
exceeds $1,000,000;
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The term “net worth” means the excess of total assets over total liabilities
(including personal and real property, but excluding the estimated fair market value of Subscriber’s primary home). For the purposes of calculating joint net worth with the person’s spouse or spousal equivalent, joint net worth can be the
aggregate net worth of Subscriber and spouse or spousal equivalent; assets need not be held jointly to be included in the calculation. There is no requirement that securities be purchased jointly. A spousal equivalent means a cohabitant occupying a
relationship generally equivalent to a spouse.
| ☐ |
(ii) A natural person who had an individual income in excess of $200,000, or joint income with Subscriber’s spouse or spousal
equivalent in excess of $300,000, in each of the two most recent years and reasonably expects to reach the same income level in the current year;
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In determining individual “income,” Subscriber should add to Subscriber’s
individual taxable adjusted gross income (exclusive of any spousal or spousal equivalent income) any amounts attributable to tax exempt income received, losses claimed as a limited partner in any limited partnership, deductions claimed for depletion,
contributions to an IRA or Keogh retirement plan, alimony payments, and any amount by which income from long-term capital gains has been reduced in arriving at adjusted gross income.
| ☐ |
(iii) A director or executive officer of the Issuer;
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A-1
| ☐ |
(iv) A natural person holding in good standing with one or more professional certifications or designations or other credentials from an accredited educational
institution that the United States Securities and Exchange Commission (“SEC”) has designated as qualifying an individual for accredited investor status;
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The SEC has designated the General Securities Representative license (Series 7),
the Private Securities Offering Representative license (Series 82) and the Licensed Investment Adviser Representative (Series 65) as the initial certifications that qualify for accredited investor status.
| ☐ |
(v) A natural person who is a “knowledgeable employee” as defined in Rule 3c-5(a)(4) under the Investment Company Act of 1940 (the “Investment Company Act”),
of the issuer of the securities being offered or sold where the issuer would be an investment company, as defined in Section 3 of the Investment Company Act, but for the exclusion provided by either Section 3(c)(1) or Section 3(c)(7) of the
Investment Company Act;
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| ☐ |
(vi) A bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities
Act, whether acting in its individual or fiduciary capacity;
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| ☐ |
(vii) A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
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| ☐ |
(viii) An investment adviser registered pursuant to Section 203 of the Investment Advisers Act of 1940 (the “Investment Advisers Act”) or registered
pursuant to the laws of a state, or an investment adviser relying on the exemption from registering with the SEC under Section 203(l) or (m) of the Investment Advisers Act;
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| ☐ |
(ix) An insurance company as defined in Section 2(13) of the Exchange Act;
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| ☐ |
(x) An investment company registered under the Investment Company Act or a business development company as defined in Section 2(a)(48) of that Act;
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| ☐ |
(xi) A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of
1958;
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| ☐ |
(xii) A Rural Business Investment Company as defined in Section 384A of the Consolidated Farm and Rural Development Act;
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| ☐ |
(xiii) A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state, or its political subdivisions for
the benefit of its employees, if such plan has total assets in excess of $5,000,000;
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| ☐ |
(xiv) An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, if the investment decision is made by a plan fiduciary,
as defined in Section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;
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| ☐ |
(xv) A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
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A-2
| ☐ |
(xvi) An organization described in Section 501(c)(3) of the Internal Revenue Code, or a corporation, business trust, partnership, or limited liability company, or
any other entity not formed for the specific purpose of acquiring the Acquired Securities, with total assets in excess of $5,000,000;
|
| ☐ |
(xvii) A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Acquired
Securities, whose purchase is directed by a sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of investing in the Issuer;
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| ☐ |
(xviii) A “family office” as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act with assets under management in excess of $5,000,000 that is not formed for the specific purpose of acquiring the securities offered and whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that
such family office is capable of evaluating the merits and risks of the prospective investment;
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(xix) A “family client” as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act, of a family office meeting the requirements set forth in (xviii) and whose
prospective investment in the issuer is directed by a person from a family office that is capable of evaluating the merits and risks of the prospective investment;
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(xx) A “qualified institutional buyer” as defined in Rule 144A under the Securities Act;
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(xxi) An entity, of a type not listed above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000; and/or
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| ☐ |
(xxii) An entity in which all of the equity owners qualify as an accredited investor under any of the above subparagraphs.
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| ☐ |
(xxiii) Subscriber does not qualify under any of the investor categories set forth in (i) through (xxi) above.
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*** AND ***
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C.
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AFFILIATE STATUS
(Please check the applicable box) SUBSCRIBER: |
| ☐ |
is:
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| ☐ |
is not:
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an “affiliate” (as defined in Rule 144 under the Securities Act) of the Issuer or acting on behalf of an affiliate of the Issuer.
A-3
SCHEDULE B
FORM OF ASSIGNMENT
FORM OF ASSIGNMENT
This Subscription Assignment and Joinder Agreement (this “Assignment Agreement”), dated _________ ____, 2025, is made and entered into by
and between (“Subscriber”) and (“Assignee”) and acknowledged by OceanPal Inc., a Marshall Islands corporation (the “Issuer”).
WHEREAS, the Issuer and Subscriber entered into that certain Subscription
Agreement (the “Subscription Agreement”), dated _________ _, 2025, pursuant to which Subscriber agreed to subscribe for and purchase from the Issuer’s shares (the “Acquired Shares”) of the Issuer’s common stock, par
value $0.01 per share (the “Common Stock”) and/or the pre-funded warrants to purchase shares of Common Stock (the “Pre-Funded Warrants” and, together with the Acquired Shares, the “Acquired
Securities”);
WHEREAS, Subscriber and Assignee are affiliated investment funds; and
WHEREAS, for administrative reasons, Subscriber desires to assign its rights to subscribe for and
purchase of the Acquired Securities along with the rights and obligations set forth in the Subscription Agreement of such Acquired Securities (the “Assigned Securities”) to Assignee.
NOW, THEREFORE, pursuant to Section 9.d of the Subscription Agreement, and as further described
in the table below, Subscriber hereby assigns its rights to subscribe for and purchase the Assigned Securities to Assignee and Assignee hereby (i) accepts the rights to subscribe for and purchase the Assigned Securities and agrees to be bound by and
subject to the terms and conditions of the Subscription Agreement, (ii) expressly makes the representations and warranties in Section 4 of the Subscription Agreement with respect to the Assigned Securities and (iii) completed Schedule A to
the Subscription Agreement and attached it hereto. Notwithstanding the foregoing, this Assignment Agreement shall not relieve Subscriber of any of its obligations under the Subscription Agreement. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Subscription Agreement.
The following assignment by Subscriber to Assignee of its rights to subscribe for and purchase all or a portion of the Acquired Securities have
been made:
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Date of
Assignment |
Subscriber
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Assignee
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Number of
Acquired Shares and/or Pre-Funded Warrants Assigned |
Subscriber
Revised Subscription Amount |
Assignee
Subscription Amount |
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[Signature Page Follows]
B-1
IN WITNESS WHEREOF, this Subscription Assignment and Joinder Agreement has been executed by Subscriber
and Assignee and acknowledged by a duly authorized representative of the Issuer as of the date set forth above.
Acknowledgement by the Issuer:
OceanPal Inc.
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By:
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Name:
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Title:
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Signature of Subscriber:
|
||||
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By:
|
||||
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Name:
|
||||
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Title:
|
||||
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Signature of Assignee:
|
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By:
|
||
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Name:
|
||
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Title:
|
Assignee’s EIN: _______________
|
Address:
|
||
|
Attn:
|
||
B-2
Exhibit 10.2
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on October 27, 2025, by and among OceanPal Inc., a Marshall Islands corporation (the “Issuer”), and the undersigned investors (collectively, the “Subscribers” and each, a “Subscriber”).
This Subscription Agreement may be executed by an investment manager on behalf of one or more managed funds or accounts set
forth on a schedule hereto, each of which severally and not jointly shall be a Subscriber hereunder.
WHEREAS, in connection with the Transaction (as defined below), on the terms and subject to the conditions
set forth in this Subscription Agreement, Subscriber desires to subscribe for and purchase from the Issuer (i) the number of shares of the Issuer’s common stock, par value $0.01 per share, and any other class of
securities into which such securities may hereafter be reclassified or changed (the “Common Stock”), set forth on the Subscriber’s signature page hereto (the “Acquired Shares”) for a purchase price of $1.275 per share (the “Share Purchase Price”), and/or (ii) the number of pre-funded warrants to purchase Common Stock (the “Warrant Shares”), substantially in the form attached hereto as Exhibit A (the “Pre-Funded
Warrants” and together with the Acquired Shares, the “Acquired Securities”), set forth on the signature page hereto, if any, at a purchase price equal to the Share Purchase Price less $0.01 per
Pre-Funded Warrant, with a remaining exercise price equal to $0.01 per Warrant Share (the “Warrant Purchase Price”) (the aggregate purchase in price native token of the NEAR Protocol (“NEAR Tokens”)
set forth on the Subscriber’s signature page hereto for the Acquired Securities, the “Purchase Price”).
WHEREAS, subject to the terms and conditions set forth in this Subscription Agreement and pursuant to Section 4(a)(2) of
the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), and Rule 506(b) of Regulation D promulgated thereunder, the Issuer desires to issue and sell to each Subscriber, and each
Subscriber, severally and not jointly, desires to purchase from the Issuer, Acquired Shares and/or Pre-Funded Warrants, as more fully described in this Subscription Agreement (the “Offering”);
WHEREAS, the Issuer intends to use the net proceeds of the sale of Acquired Securities to purchase NEAR Tokens, for fees
and expenses incurred in connection with the Transaction (as defined below), for working capital and for general corporate purposes; and
WHEREAS, in connection with the Transaction, each of Clear Street LLC and Cohen & Company Capital Markets LLC, in its
respective capacity as placement agent (together, the “Placement Agents”, and each a “Placement Agent”) for the offer and sale of the Acquired Securities (the “Transaction”), may identify and solicit certain other “qualified
institutional buyers” (as defined in Rule 144A under the Securities Act) or institutional “accredited investors” (as such term is defined in Rule 501 under the Securities Act, and each such “qualified institutional buyer” or institutional “accredited
investor,” an “Other Subscriber”), each of which shall have entered into a subscription agreement with the Issuer substantially similar to this Subscription Agreement contemporaneously herewith (the “Other Subscription Agreements”),
pursuant to which such Other Subscribers have agreed to subscribe for and purchase, and the Issuer has agreed to issue and sell to such Other Subscribers, on the Closing Date, the Acquired Securities at the Share Purchase Price and/or Warrant
Purchase Price, as applicable (the “Other Subscriptions”).
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to
the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1. Subscription. Subject to the terms and conditions hereof, Subscriber hereby agrees to subscribe for and
purchase, and the Issuer hereby agrees to sell to Subscriber, upon the payment of the Purchase Price, the Acquired Securities (such subscription and issuance, the “Subscription”).
1
2. Closing.
a. Subject to the satisfaction or waiver of the conditions set forth in Sections 2.d and 2.e (other than
those conditions that by their nature are to be satisfied at Closing, but without affecting the requirement that such conditions be satisfied or waived at Closing), the closing of the Subscription contemplated hereby (the “Closing”) shall
occur substantially concurrently with the closing of the Other Subscriptions (such date, the “Closing Date”).
b. On or prior to 4:00 p.m. New York City time on the date disclosed in the Closing Notice (as defined herein) that is two
business days prior to the anticipated date of Closing (the “Escrow Payment Deadline”), each Subscriber will pay its total Purchase Price by transfer of NEAR Tokens to an applicable wallet address in the name of SovereignAI Services LLC, a
Delaware limited liability company (the “Custodial Account”). At the Closing, the Issuer shall deliver or cause to be delivered to the Subscriber a number of Acquired Securities, registered in the name of the Subscriber (or its nominee in
accordance with such Subscriber’s delivery instructions), equal to the number of Acquired Securities indicated on the Subscriber’s signature page to this Subscription Agreement. The Issuer will deliver or cause to be delivered to Subscriber as
promptly as practicable after the Closing, evidence from the Issuer’s transfer agent of the issuance to Subscriber of Subscriber’s Acquired Securities on and as of the Closing Date. Subscriber shall deliver to the Issuer on the Escrow Payment
Deadline, any other information that is reasonably requested in the notice provided by Issuer (the “Closing Notice”) that is required in order to enable the Issuer to issue and sell the Acquired Securities, including, without limitation, the
legal name of the person (or nominee) in whose name such Acquired Securities are to be delivered and a duly executed Internal Revenue Service Form W-9 or W-8, as applicable. The amount of NEAR Tokens to be paid to the Issuer shall equal (a) the
Subscriber’s Purchase Price divided by (b) $2.29 (representing the Time-Weighted Average Price (“TWAP”) of NEAR Tokens over the 24-hour period ending at 12:00 p.m. Eastern Time on the Sunday immediately preceding the date hereof, as quoted on Binance
Spot).
c. Subject to the satisfaction or waiver of the conditions set forth in Sections 2.d and 2.e (other than those conditions
that by their nature are to be satisfied at Closing, but without affecting the requirement that such conditions be satisfied or waived at Closing), on the Closing Date, the Issuer shall deliver or cause to be delivered to Subscriber the Acquired
Securities against and upon payment by Subscriber in book-entry form, free and clear of any Liens (as defined below) or other restrictions whatsoever (other than those arising under state or federal securities laws), in the name of Subscriber (or its
nominee in accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable. Each book entry for the Acquired Securities shall contain a legend in substantially the following form:
[NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE] HAS [NOT] BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
d. The Issuer’s obligation to effect the Closing shall be subject to the satisfaction on the Closing Date, or, to the
extent permitted by applicable law, the waiver by the Issuer, of each of the following conditions:
(i) the Placement Agents and the Issuer shall each have received a completed copy of the “Eligibility Representations of
Subscriber” questionnaire in substantially the form attached as Schedule A hereto no later than the Closing Date;
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(ii) all Subscribers party to this Subscription Agreement shall have delivered to the Issuer an executed lock-up agreement
in the form attached hereto as Exhibit B;
(iii) all representations and warranties of Subscriber contained in this Subscription Agreement shall be true and correct
in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and
as of the Closing Date;
(iv) Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and
conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance, satisfaction or compliance would not or would not be reasonably expected to
prevent, materially delay or materially impair the ability of Subscriber to consummate the Closing; and
(v) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order,
law, rule or regulation (whether temporary, preliminary or permanent) that is then in effect and has the effect of making consummation of the Subscription illegal or otherwise preventing or prohibiting consummation of the Subscription, and no
governmental authority shall have instituted or threatened in writing a proceeding seeking to impose any such prevention or prohibition.
e. Subscriber’s obligation to effect the Closing shall be subject to the satisfaction on the Closing Date, or, to the
extent permitted by applicable law, the written waiver by Subscriber, of each of the following conditions:
(i) no suspension of the listing on The Nasdaq Capital Market or another national securities exchange (collectively,
the “Exchange”) of the Common Stock shall have occurred, and the Issuer shall have filed with The Nasdaq Stock Market LLC (“Nasdaq”) a Notification Form: Listing of Additional Shares for the listing of the Acquired Shares. In the event
that Nasdaq raises any objection to such notice or to the transactions contemplated hereby, the Issuer shall be afforded a reasonable period of time to cure such objection to the satisfaction of Nasdaq;
(ii) all representations and warranties of the Issuer contained in this Subscription Agreement shall be true and
correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and as
of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects or in all respects, as applicable as of such date);
(iii) the Issuer shall have performed, satisfied and complied (unless waived) in all material respects with all
covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing;
(iv) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment,
order, law, rule or regulation (whether temporary, preliminary or permanent) that is then in effect and has the effect of making consummation of the Subscription illegal or otherwise preventing or prohibiting consummation of the Subscription and no
governmental authority shall have instituted or threatened in writing a proceeding seeking to impose any such prevention or prohibition;
(v) the Issuer shall have provided each Subscriber with the Custodial Account information;
(vi) the Issuer shall have delivered a Pre-Funded Warrant registered in
the name of such Subscriber to purchase up to a number of Warrant Shares included on the signature page hereto; and
(vii) no event or series of events that, individually or in the aggregate, has had or would reasonably be expected to have
a Material Adverse Effect (as defined herein) shall have occurred and be continuing on the Closing Date.
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f. Notwithstanding anything to the contrary contained herein, Subscriber may notify the Issuer in writing in
the event it elects to be subject to the provisions contained in this Section 2.f; however, no Subscriber shall be subject to this Section 2.f unless he, she or it makes such election. If the election is made by the Subscriber, in
no event shall the Subscriber be permitted to acquire Acquired Securities to the extent that, immediately after giving effect to such acquisition, the Subscriber (together with its affiliates and any other persons or entities whose beneficial
ownership of Common Stock would be aggregated with the Subscriber’s for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the applicable regulations of United States Securities and
Exchange Commission (the “Commission”)), would beneficially own in excess of [4.99/9.99%] of the then outstanding shares of Common Stock of the Issuer (the “Beneficial Ownership Limitation”). For
purposes of this provision, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. The Beneficial Ownership Limitation may be increased or decreased by the
Subscriber upon written notice to the Issuer, provided that any increase shall not be effective until the 61st day after such notice is delivered to the Issuer and in no event shall the Beneficial Ownership Limitation exceed 19.99%.
g. Prior to or at the Closing, the parties hereto shall execute and deliver such additional documents and take such
additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the Subscription as contemplated by this Subscription Agreement.
3. Issuer Representations and Warranties. The Issuer represents and warrants, as of the date hereof and the
Closing Date, that:
a. The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Republic of the
Marshall Islands, with corporate power and authority to own, lease and operate its respective properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. The
Issuer, as set forth in the SEC Documents (as defined below), is not in violation or default of any of the provisions of its respective certificate or articles of incorporation, memorandum and articles of association, bylaws, or other organizational
or charter documents, as applicable (the “Charter Documents”). The Issuer is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected to result in: (i) a material adverse effect on the legality,
validity or enforceability of any Transaction Document (as defined below), (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Issuer, or (iii) a material adverse
effect on the Issuer’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. “Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal
investigation or partial proceeding, such as a deposition), whether commenced or threatened.
b. As of the Closing Date, the Acquired Shares will have been duly authorized and, when sold and delivered to Subscriber against full
payment for the Acquired Shares in accordance with the terms of this Subscription Agreement, the Acquired Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or
similar rights created under the Issuer’s Charter Documents (as in effect at such time of issuance) or under the laws of the Republic of the Marshall Islands.
c. The Pre-Funded Warrants are duly authorized and, when issued in accordance with this Subscription Agreement, will be duly and validly
issued and constitute the legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms free and clear of all Liens (as defined below) imposed by the Issuer. The Warrant Shares have been duly
authorized and reserved for issuance and, upon issuance pursuant to the terms of the Pre-Funded Warrants against full payment therefor in accordance with the terms of the Pre-Funded Warrants, will be duly and validly issued, fully paid and
non-assessable and will be issued free and clear of any Liens or other restrictions (other than those as provided in the Transaction Documents (as defined below) or restrictions on transfer under applicable state and federal securities laws), and the
holder of the Warrant Shares shall be entitled to all rights accorded to a holder of Common Stock. “Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
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d. The Issuer has reserved from its duly authorized capital stock the maximum number of shares of
Common Stock issuable pursuant to this Subscription Agreement and the Pre-Funded Warrants.
e. This Subscription Agreement, the Other Subscription Agreements, and the Pre-Funded Warrants (collectively, the “Transaction
Documents”) have been duly authorized, executed and delivered by the Issuer and the Transaction Documents constitute the valid and legally binding obligation of the Issuer, enforceable against the Issuer in accordance with their respective
terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether
considered at law or equity.
f. Assuming the accuracy of Subscriber’s representations and warranties in Section 4, the execution and delivery of this
Subscription Agreement and the other Transaction Documents to which the Issuer is a party, and the performance by the Issuer of its obligations under the Transaction Documents, including the issuance and sale of the Acquired Securities, do not and
will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien, charge or encumbrance upon any of the property or assets of the Issuer
pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the
Issuer is subject, which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially affect the validity of the Acquired Securities or the legal authority of the Issuer to comply in all material
respects with the terms of this Subscription Agreement or any other Transaction Document; (ii) the Charter Documents; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign,
having jurisdiction over the Issuer or any of its respective properties that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially affect the validity of the Acquired Securities or the legal
authority of the Issuer to comply in all material respects with the terms of this Subscription Agreement or any other Transaction Document.
g. There are no securities or instruments issued by or to which the Issuer is a party containing anti-dilution, price reset or similar
provisions that will be triggered by the issuance of (i) the Acquired Securities or (ii) the Common Stock to be issued pursuant to any Other Subscription Agreement and Pre-Funded Warrants, in each case, that have not been or will not be validly and
irrevocably waived on or prior to the Closing Date.
h. Assuming the accuracy of each Subscriber’s representations and warranties in Section 4, the Issuer is not required to obtain
any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization (including the Exchange) or other
person in connection with the execution, delivery and performance by the Issuer of this Subscription Agreement (including, without limitation, the issuance of the Acquired Securities and Warrant Shares), other than (i) the filing with the Commission
of the Registration Statement (as defined below), (ii) the filings required in accordance with Section 9.m, (iii) notifications required by each Exchange, and (iv) the failure of which to obtain would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or have a material adverse effect on the Issuer’s ability to consummate the transactions contemplated hereby or thereby, including the sale and issuance of the Acquired Securities.
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i. As of the date hereof, the authorized capital stock of the Issuer consists of (i) 100,000,000 shares of preferred stock, par value
$0.01 per share (“Preferred Stock”), and (ii) 1,000,000,000 shares of Common Stock. As of the date hereof, there are 536,342 shares of Preferred Stock issued and outstanding, consisting of (i) 500,000 shares of Series B Preferred Stock, (ii)
12,185 shares of C Preferred Stock, (iii) 22,957 shares of Series D Preferred stock, and (v) 1,200 shares of Series E Preferred Stock, there are 6,696,039 shares of Common Stock issued and outstanding, and there are 29,474,223 total warrants
outstanding, exercisable for an aggregate 33,118 shares of Common Stock, with a weighted average exercise price of $794.62 and a 2.76-year exercise term. The Issuer has not issued any shares of Common Stock since its most recently filed or furnished
report under the Exchange Act other than (i) any Acquired Shares issued pursuant to this Subscription Agreement, (ii) pursuant to the exercise of employee share options under the Issuer’s outstanding share option awards, (iii) the issuance of Common
Stock or other equity securities to employees pursuant to the Issuer’s equity incentive plan, and (iv) pursuant to the conversion and/or exercise of Common Stock Equivalents (as defined below) outstanding as of the date of the most recent Annual
Report on Form 20-F filed with the Commission. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result
of the purchase and sale of the Acquired Securities and described in the SEC Documents, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or
obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any Common Stock, or contracts, commitments, understandings or arrangements by which the Issuer is or may become bound to
issue additional Common Stock or Common Stock Equivalents. The issuance and sale of the Acquired Securities will not obligate the Issuer to issue Common Stock or other securities to any Person (other than the Subscribers). There are no outstanding
securities or instruments of the Issuer with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Issuer. There are no outstanding securities or instruments
of the Issuer that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Issuer is or may become bound to redeem a security of the Issuer. The Issuer does not have any
outstanding share appreciation rights or “phantom stock” awards or agreements or any similar award or agreement. All of the outstanding shares of Common Stock and Preferred Stock of the Issuer are duly authorized, validly issued as fully paid and
nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further
approval or authorization of any shareholder, the Board of Directors of the Issuer (the “Board of Directors”) or others is required for the issuance and sale of the Acquired Securities. There are no shareholders agreements, voting agreements
or other similar agreements with respect to the Issuer’s shares of Common Stock to which the Issuer is a party or, to the knowledge of the Issuer, between or among any of the Issuer’s shareholders. “Common Stock Equivalents” means any
securities of the Issuer which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preference share, right, option, warrant or other instrument that is at any time convertible into or
exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
j. The financial statements of the Issuer included in the SEC Documents comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing or as such financial statements have been amended or corrected in a subsequent filing. Such financial statements have been prepared
in accordance with U.S. generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that
unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Issuer as of and for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. Since the date of the latest audited financial statements included within the SEC Documents or as otherwise disclosed in the SEC
Documents, (i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Issuer has not incurred any liabilities (contingent or otherwise) other than (A)
trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Issuer’s financial statements pursuant to GAAP or disclosed in filings made with the
Commission, (iii) the Issuer has not altered its method of accounting, (iv) the Issuer has not declared or made any dividend or distribution of cash or other property to its shareholders (other than in accordance with the terms of the Preferred
Stock’s Statements of Designations included in the SEC Documents) or purchased, redeemed or made any agreements to purchase or redeem any shares and (v) the Issuer has not issued any equity securities to any officer, director or affiliate, except
pursuant to existing Issuer equity incentive plans. The Issuer does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Acquired Securities contemplated by this Subscription
Agreement, the other transactions contemplated by the other Transaction Documents, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Issuer or its
business, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Issuer under applicable securities laws at the time this representation is made or deemed made that has not been publicly
disclosed at least one (1) trading day prior to the date that this representation is made.
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k. The Issuer has not received any written communication from a governmental entity that alleges that the Issuer is not in compliance with
or is in default or violation of any applicable law, except where such non-compliance, default or violation would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
l. The Issuer and its subsidiaries have good and marketable title to all vessels owned by them, including but not limited to the “Melia,”
“Zeze Start,” and “Calipso,” free and clear of all liens, encumbrances, mortgages, pledges, security interests, and other restrictions, except as specifically disclosed in the SEC Documents or as permitted under existing financing arrangements.
m. All vessels owned by the Issuer and its subsidiaries are: (i) in good operating condition and repair, ordinary wear and tear excepted;
(ii) seaworthy and in compliance with all applicable international, national, state, and local laws, regulations, and conventions; (iii) properly classified with recognized classification societies and such classifications are current and in good
standing; (iv) in compliance with all applicable safety, environmental, and operational requirements including but not limited to MARPOL, SOLAS, and ISM Code requirements.
n. All vessels are properly registered under their respective flag states and are in compliance with all flag state and port state control
requirements. The Issuer has not received any detention orders, port state control deficiencies, or notices of non-compliance that remain unresolved.
o. All charter agreements, management agreements, and other material contracts relating to the vessels are valid, binding, and in full
force and effect. Neither the Issuer nor any of its subsidiaries is in breach or default under any such agreements, and no event has occurred that would constitute a default with the passage of time or giving of notice.
p. Neither the Issuer nor any of its subsidiaries is in breach or default under any material contract, and no event has occurred that,
with the passage of time or the giving of notice, would constitute such a breach or default.
q. The Issuer maintains, or causes to be maintained, adequate marine insurance coverage for all vessels including: (i) Marine Hull and
Machinery insurance; (ii) Protection and Indemnity (P&I) insurance through a recognized P&I club; (iii) War Risks insurance; (iv) Loss of Hire insurance where applicable; all such insurance policies are in full force and effect, all premiums
have been paid, and there are no material outstanding claims or circumstances that could give rise to material claims. The Issuer has not received any notice of cancellation, non-renewal, or material alteration of coverage.
r. Any vessel valuations reflected in the SEC Documents are based on recognized maritime valuation methodologies and fairly represent the
vessels’ market values as of the applicable dates. Depreciation methods used are consistent with industry practice and in accordance with GAAP.
s. All vessels comply with applicable environmental laws and regulations, including ballast water management, emissions control, and waste
disposal requirements. The Issuer and its subsidiaries have obtained all environmental permits, licenses, approvals, consents, certificates and other authorizations necessary to conduct the respective businesses operated by them (collectively, the “Licenses
and Permits”), the Issuer and its subsidiaries are in compliance with the terms and conditions of all such Licenses and Permits, and all Licenses and Permits are valid and in full force and effect. Neither the Issuer nor its subsidiaries have
not received any notice of Proceedings relating to the revocation or modification of any Licenses and Permits which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
t. All Bills of Sale, transfer documents, and other instruments by which the Issuer acquired title to its vessels are valid, legally
effective, and properly recorded with the appropriate maritime authorities.
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u. All vessel financing arrangements, including but not limited to that certain seller’s credit agreement entered between Batiki Shipping
Company Inc. and Zeze Shipping Company Inc. on August 13, 2024 and any pledge agreements, are valid, binding, and in full force and effect. The Issuer is in compliance with all covenants, conditions, and other provisions of such financing
arrangements.
v. The issued and outstanding shares of Common Stock are, and as of the Closing will be, registered pursuant to Section 12(b) of the
Exchange Act, and are listed for trading on each Exchange. The Issuer has taken no action that is designed to terminate the registration of the Common Stock under the Exchange Act or the listing of the Common Stock on the Exchange. Except as included
in the SEC Documents, the Issuer has not received notice from any Exchange on which the Common Stock is or has been listed or quoted to the effect that the Issuer is not in compliance with the listing or maintenance requirements of such Exchange.
There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the Exchange or the Commission with respect to any intention by such entity to deregister the Common Stock or prohibit
or terminate the listing of the Common Stock on the Exchange. The Issuer is in compliance with all such listing and maintenance requirements and is not aware of any facts or circumstances that would reasonably be expected to result in noncompliance
with such requirements in the foreseeable future. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Issuer is current in payment of the fees to the
Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
w. Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 4, no registration under the
Securities Act is required for the issuance and sale of the Acquired Securities by the Issuer to Subscriber or the Other Subscribers in the manner contemplated by this Subscription Agreement or the Other Subscription Agreements, as the case may be.
The issuance, sale, and delivery of the Acquired Securities hereunder does not contravene the rules and regulations of the Exchange.
x. Neither the Issuer nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general
advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Acquired Securities.
y. The Issuer is not, and immediately after receipt of payment for the Acquired Securities and the use of proceeds as contemplated hereby
will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “ICA”).
z. The Issuer has not entered into any subscription agreement, side letter or other agreement with any Other Subscriber or any other
investor (other than certain agreements with affiliates of Near Foundation, Proximity Labs, Frontier Growth Holdings Limited, and their respective affiliates, and except with respect to payment method and timing) in connection with such Other
Subscriber’s or investor’s direct or indirect investment in the Issuer, other than (i) the Other Subscription Agreements, (ii) the Pre-Funded Warrants, and (iii) agreements or forms thereof that have been publicly filed as exhibits to the SEC
Documents via the Commission’s EDGAR system, including filings made by the Issuer.
aa. The Issuer is not, and has not been at any time during the past 12 months, a “shell company” as such term is defined in Rule 405 under
the Securities Act or Rule 12b-2 under the Exchange Act.
bb. The Issuer is eligible to register the resale of the Registrable Securities (as defined below) on a registration statement on Form F-3
under the Securities Act. Without limiting the generality of the foregoing, the Issuer specifically represents and warrants that: (i) the Issuer has been subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act for a period of
at least twelve (12) calendar months immediately preceding the date hereof and the Closing Date; (ii) the Issuer has filed all material required to be filed pursuant to Section 13, 14, or 15(d) of the Exchange Act for such period; and (iii) the
Issuer has filed in a timely manner all reports required to be filed by it with the Commission during the preceding twelve (12) calendar months (or for such shorter period that the Issuer was required to file such reports), including its most recent
Annual Report on Form 20-F and all required Current Reports on Form 6-K.
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cc. The Issuer acknowledges and agrees that each of the Subscribers is acting solely in the capacity of an arm’s length purchaser with
respect to this Subscription Agreement and the transactions contemplated hereby. The Issuer further acknowledges that no Subscriber is acting as a financial advisor or fiduciary of the Issuer (or in any similar capacity) with respect to this
Subscription Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and any advice given by any Subscriber or any of their respective representatives or agents in connection with this Subscription Agreement
and the other Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Subscriber’s purchase of the Acquired Securities. The Issuer further represents to each Subscriber that the Issuer’s decision to
enter into this Subscription Agreement and the Other Subscription Agreements has been based solely on the independent evaluation of the transactions contemplated hereby by the Issuer and its respective representatives.
dd. Anything in this Subscription Agreement or elsewhere herein to the contrary notwithstanding, it is understood and acknowledged by the
Issuer that: (i) none of the Subscribers has been asked by the Issuer to agree, nor has any Subscriber agreed, to desist from purchasing or selling, long and/or short, securities of the Issuer, or “derivative” securities based on securities issued by
the Issuer or to hold the Acquired Securities for any specified term; (ii) past or future open market or other transactions by any Subscriber, specifically including, without limitation, “short sales” (as defined in Rule 200 of Regulation SHO under
the Exchange Act) or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Issuer’s publicly-traded securities; (iii) any Subscriber, and counter-parties
in “derivative” transactions to which any such Subscriber is a party, directly or indirectly, presently may have a “short” position in the Common Stock; and (iv) each Subscriber shall not be deemed to have any affiliation with or control over any
arm’s length counter-party in any “derivative” transaction. The Issuer further understands and acknowledges that (y) one or more Subscribers may engage in hedging activities at various times during the period that the Acquired Securities are
outstanding, and (z) such hedging activities (if any) could reduce the value of the existing shareholders’ equity interests in the Issuer at and after the time that the hedging activities are being conducted. The Issuer acknowledges that such
aforementioned hedging activities do not constitute a breach of this Subscription Agreement or any of the other Transaction Documents.
ee. The Issuer has made available to Subscriber (including via the Commission’s EDGAR system) a copy of each form, report, statement,
schedule, prospectus, proxy, registration statement and other document, if any, filed by the Issuer with the Commission for the two years preceding the date hereof (the foregoing materials filed or furnished by the Issuer under the Securities Act and
the Exchange Act, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material
respects with the requirements of the Securities Act and Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents and were filed on a timely basis or the
Issuer has received a valid extension of such time of filing and has filed any such SEC Documents prior to the expiration of any such extension. None of the SEC Documents filed under the Exchange Act (except to the extent that information contained
in any SEC Document has been superseded by a later timely filed SEC Document) contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein
not misleading, in the case of any SEC Document that is a registration statement, or included, when filed, any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in the case of all other SEC Documents.
ff. Except as disclosed in the SEC Documents or for such matters as would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against or affecting the Issuer or any of its properties before or by any
court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (each, an “Action”). Except as disclosed in the SEC Documents, none of the Actions, if any, (i) adversely affects or
challenges the legality, validity or enforceability of any of the Transaction Documents or the Acquired Securities or (ii) would, if resolved adversely to the Issuer, have or reasonably be expected to result in a Material Adverse Effect. Neither the
Issuer nor any director or officer thereof is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge
of the Issuer, there is not pending or contemplated, any investigation by the Commission involving the Issuer or any current or former director or officer of the Issuer. The Commission has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Issuer under the Exchange Act or the Securities Act.
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gg. Except for any placement fees payable to the Placement Agents or financial advisors to the Issuer, in connection to the Transaction,
the Issuer has not paid, and is not obligated to pay, any brokerage, finder’s or other commission or similar fees in connection with the transactions contemplated by the Transaction Documents. The Subscribers shall have no obligation with respect to
any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
hh. None of the Issuer, any predecessor or affiliated issuer of the Issuer, any director, executive officer or other officer of the Issuer
or, to the Issuer’s knowledge, any beneficial owner of twenty percent (20%) or more of the Issuer’s outstanding voting equity securities, calculated on the basis of voting power, or any promoter connected with the Issuer in any capacity, is subject
to any of the “bad actor” disqualifications within the meaning of Rule 506(d) under the Securities Act, except for a disqualification event covered by Rule 506(d)(2) or (d)(3).
ii. The Issuer acknowledges that there have been no representations, warranties, covenants and agreements made to Issuer by or on behalf
of any Subscriber, any of its respective affiliates or any of its or their control persons, officers, directors, employees, partners, agents or representatives, expressly or by implication, regarding the transactions contemplated by this Subscription
Agreement other than those representations, warranties, covenants and agreements included in this Subscription Agreement (inclusive of the exhibits and schedules attached hereto).
jj. The gross proceeds from the Acquired Securities contemplated by the Transaction will be utilized for purposes of acquiring NEAR Tokens
(including costs associated with such acquisition), Transaction costs, working capital and general corporate purposes.
kk. No labor dispute exists or, to the knowledge of the Issuer, is threatened with respect to any of the employees of the Issuer, which
would reasonably be expected to result in a Material Adverse Effect. None of the Issuer’s employees is a member of a union that relates to such employee’s relationship with the Issuer, the Issuer is not a party to a collective bargaining agreement,
and the Issuer believes that its relationship with its employees is good. To the knowledge of the Issuer, no executive officer of the Issuer, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the
Issuer to any liability with respect to any of the foregoing matters. The Issuer is in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment
and wages and hours, except where the failure to be in compliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
ll. The Issuer possesses all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct its business as described in the SEC Documents, except where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and the
Issuer has not received any notice of proceedings relating to the revocation or modification of any Material Permit.
mm. The Issuer has good and marketable title to its owned properties and owned assets that are material to the business of the Issuer,
free and clear of all (i) Liens, except for Liens as do not materially affect the value of such property, taken as a whole, and do not interfere in any material respect with the use made or proposed to be made of such properties by the Issuer and
(ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities
held under lease by the Issuer are held by the Issuer under valid, subsisting and enforceable leases with which the Issuer is in compliance, except where such non-compliance would not have or reasonably be expected to have a Material Adverse Effect.
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nn. The Issuer has, or has rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade
names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with its respective businesses as described in the SEC Documents and which the failure to so
have would have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). The Issuer has not received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned,
or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Subscription Agreement, except where such expiration, termination or abandonment would not have or reasonably be expected to have a Material Adverse
Effect. The Issuer has not received, since the date of the latest audited financial statements included within the SEC Documents or as otherwise disclosed in the SEC Documents, a written notice of a claim or otherwise has any knowledge that the
Intellectual Property Rights violate or infringe upon the rights of any Person, except as would not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Issuer, all such Intellectual Property Rights are
enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Issuer has taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
oo. The Issuer is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are
prudent and customary for companies of similar size as the Issuer in the businesses in which the Issuer is engaged, including, but not limited to, directors and officers insurance coverage. The Issuer has no reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
pp. Except as disclosed in the SEC Documents, none of the officers or directors of the Issuer, and, to the knowledge of the Issuer, none
of the employees of the Issuer is presently a party to any transaction with the Issuer (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to
or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the
Issuer, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, shareholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or
consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Issuer and (iii) other employee benefits, including equity incentives granted under any equity incentive plan of the Issuer.
qq. Except as set forth in the SEC Documents, the Issuer is in compliance in all material respects with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the
Closing Date. Except as set forth in the SEC Documents, the Issuer maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general
or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Issuer has established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Issuer and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Issuer in the reports it files or submits under
the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
rr. Except as set forth in SEC Documents and in connection with this Transaction, no Person has any right to cause the Issuer to effect
the registration under the Securities Act of any securities of the Issuer.
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ss. The Issuer and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Charter Documents or the laws of its jurisdiction of incorporation that is or could become
applicable to the Subscribers as a result of the Subscribers and the Issuer fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Issuer’s issuance and sale of the
Acquired Securities and the Subscribers’ ownership of the Acquired Securities.
tt. Assuming the accuracy of the Subscribers’ representations and warranties set forth in Section 4, neither the Issuer nor any of
its affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Acquired
Securities to be integrated with prior offerings by the Issuer for purposes of (i) the Securities Act which would require the registration of any such securities under the Securities Act, or (ii) any applicable shareholder approval provisions of any
Exchange on which any of the securities of the Issuer are listed or designated.
uu. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse
Effect, the Issuer (i) has made or filed all federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provisions reasonably adequate for the payment of all material taxes for
periods subsequent to the periods to which such returns, reports or declarations apply. To the knowledge of the Issuer, there are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction.
vv. None of the Issuer or, to the knowledge of the Issuer, any agent or other person acting on behalf of the Issuer has (i) directly or
indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to
any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Issuer (or made by any person acting on its behalf of which the Issuer is aware) which is in violation of law, or
(iv) violated in any material respect any provision of Foreign Corrupt Practices Act of 1977, as amended.
ww. The Issuer’s accounting firm is Ernst & Young (Hellas) Certified Auditors Accountants S.A. (the “Accountant”). The
Accountant (i) is a registered public accounting firm as required by the Exchange Act, (ii) is an independent public accountant within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States), and (iii)
whose report was included on the consolidated financial statements of the Issuer for the fiscal year ended December 31, 2024, during the periods covered of its report, was an independent public accountant within the meaning of the Securities Act and
the Public Company Accounting Oversight Board (United States). There are no disagreements of any kind presently existing, or reasonably anticipated by the Issuer to arise, between the Issuer and the accountants formerly or presently employed by the
Issuer, and the Issuer is current with respect to any fees owed to its accountants which could affect the Issuer’s ability to perform any of its obligations under any of the Transaction Documents. Each of the accountants formerly or presently
employed by the Issuer is not, or was not, in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002, as amended, with respect to the Issuer.
xx. Neither the Issuer nor, to its knowledge, anyone acting on its behalf has, (i) taken, directly or indirectly, any action designed to
cause or to result in the stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of any of the Acquired Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Acquired Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Issuer, other than, in the case of clauses (ii) and (iii), compensation paid to the
Placement Agents in connection with the placement of the Acquired Securities.
yy. The Issuer has not issued any share options under the Issuer’s share option plan.
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zz. (i) There has been no security breach or other compromise of or relating to any of the Issuer’s information technology and computer
systems, networks, hardware, software, data (including the data of its respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems and Data”)
and (y) the Issuer has not been notified of, any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data, except, with respect to either (x) or (y), those which would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (ii) the Issuer is presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or
governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or
modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Issuer has implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential information and
the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Issuer has implemented backup and disaster recovery technology consistent with industry standards and practices.
aaa. (i) The Issuer is, and at all times since January 1, 2024, in material compliance with all applicable state, federal and foreign
data privacy and security laws and regulations, including, without limitation, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy Laws”); (ii) the Issuer has in place and has taken steps
reasonably designed to ensure material compliance with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling and analysis of Personal Data (as defined below) (the “Policies”);
(iii) the Issuer provides accurate notice of its applicable Policies to its customers, employees, third party vendors and representatives as required by the Privacy Laws; and (iv) applicable Policies provide accurate and sufficient notice of the
Issuer’s then-current privacy practices relating to its subject matter, and do not contain any material omissions of the Issuer’s then-current privacy practices, as required by Privacy Laws. “Personal Data” means (i) a natural person’s name,
street address, telephone number, email address, photograph, social security number, bank information, or customer or account number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission
Act, as amended; (iii) “personal data” as defined by GDPR; and (iv) any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any identifiable data related to
an identified person’s health or sexual orientation. None of such disclosures made or contained in any of the Policies have been inaccurate, misleading, or incomplete in material violation of any Privacy Laws and the execution, delivery and
performance of the Transaction Documents will not result in a breach of any Privacy Laws or Policies. The Issuer (i) has not received written notice of any actual or potential liability of the Issuer under, or actual or potential violation by the
Issuer of, any of the Privacy Laws; (ii) is not currently conducting or paying for, in whole or in part, any investigation, remediation or other corrective action pursuant to any regulatory request or demand pursuant to any Privacy Law; or (iii) is
not a party to any order, decree, or agreement by or with any court or arbitrator or governmental or regulatory authority that imposed any obligation or liability under any Privacy Law.
bbb. The Issuer is not subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of
Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Issuer nor any of its affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or
twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Issuer nor any of its affiliates exercises a controlling influence over the management or
policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
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ccc. Neither the Issuer nor, to the knowledge of the Issuer, any director, officer, agent, employee, affiliate or representative of the
Issuer is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign
Assets Control (“OFAC”), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Issuer located, organized or resident in a country
or territory that is the subject of Sanctions; and the Issuer will not directly or indirectly use any funds, or lend, contribute or otherwise make available such funds to any joint venture partners or other Person, to fund any activities of or
business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction,
whether as underwriter, advisor, investor or otherwise) of Sanctions.
ddd. The operations of the Issuer are and have conducted at all times in compliance with applicable financial record-keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no Action or
Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened.
eee. The Issuer has no material liabilities, contingent or otherwise, except as disclosed in the SEC Documents.
fff. The Issuer has not disclosed to Subscriber any material non-public information not otherwise disclosed in the SEC Documents.
4. Subscriber Representations and Warranties. Each Subscriber, severally and not jointly, and with respect to
itself only and not any other Subscriber, represents and warrants, as of the date hereof and the Closing Date, that:
a. Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its
jurisdiction of incorporation or formation, with the requisite entity power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.
b. This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. This Subscription Agreement
is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of
creditors generally and (ii) principles of equity, whether considered at law or equity.
c. The execution and delivery by Subscriber of this Subscription Agreement, and the performance by Subscriber of its
obligations under this Subscription Agreement, including the purchase of the Acquired Securities and the consummation of the other transactions contemplated herein, will not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan
agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material
adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of Subscriber, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to
comply in all material respects with the terms of this Subscription Agreement; (ii) the organizational documents of Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or
foreign, having jurisdiction over Subscriber or any of Subscriber’s properties that would reasonably be expected to have a Subscriber Material Adverse Effect or materially affect the legal authority of Subscriber to comply in all material respects
with this Subscription Agreement.
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d. Subscriber hereby represents and warrants that: (1) if an individual, Subscriber is a “qualified
purchaser” as defined in Section 2(a)(51)(A) of the ICA and (2) if an entity, either: (i) Subscriber is an accredited investor, as defined in Rule 501(a)(3), Rule 501(a)(7), Rule 501(a)(9) or Rule 501(a)(12) under Regulation D under the Securities
Act, and the Subscription Amount of Subscriber is not financed in whole or in part by any third party for the specific purpose of making the particular investment contemplated by this Subscription Agreement; or (ii) (x) such Subscriber is an entity
that is an accredited investor, as defined in Rule 501(a)(8) under Regulation D under the Securities Act, in which all of the equity holders are accredited investors, as defined in Rule 501(a)(3), Rule 501(a)(5), Rule 501(a)(6), Rule 501(a)(7),
Rule 501(a)(9) or Rule 501(a)(12) under Regulation D under the Securities Act, and (y) the Subscription Amount of Subscriber and the Subscription Amount of Subscriber’s equity holders are not financed in whole or in part by any third party for the
specific purpose of making the particular investment contemplated by this Subscription Agreement. Subscriber (i) acknowledges that the sale contemplated hereby is being made in reliance on a private placement exemption to “accredited
investors” within the meaning of Section 501(a) of Regulation D under the Securities Act and similar exemptions under state law, (ii) is acquiring the Acquired Securities, and upon the exercise of the Pre-Funded Warrants, to the extent
applicable, will acquire the Warrant Shares issuable upon exercise of the Pre-Funded Warrants, for its own account and not for the account of others, or if Subscriber is subscribing for the Acquired Securities as a fiduciary or agent for one or more
investor accounts, each owner of such account is an “accredited investor” (as defined above) and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements,
representations and agreements herein on behalf of each owner of each such account and (iii) is not acquiring the Acquired Securities, and upon the exercise of the Pre-Funded Warrants, will not acquire the Warrant Shares issuable upon exercise of the
Pre-Funded Warrants with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. Subscriber understands and acknowledges that the purchase and sale of the Acquired Securities hereunder (i)
meets the exemptions from filing under FINRA Rule 5123(b)(1), (ii) is not being recommended (within the meaning of FINRA Rule 2111) by the Placement Agents, and (iii) if an individual, is not being recommended (for purposes of Regulation Best
Interest) by the Placement Agents.
e. Subscriber understands that the Acquired Securities are being offered in a transaction not involving any public
offering within the meaning of the Securities Act and that the Acquired Securities and Warrant Shares underlying the Pre-Funded Warrants have not been registered under the Securities Act. Subscriber understands that the Acquired Securities and
Warrant Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer, (ii) to non-U.S. persons pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S under the Securities Act, (iii) pursuant to Rule 144 (including Rule 144(i) thereunder) under the Securities Act; provided, that
all of the applicable conditions thereof have been met, or (iv) pursuant to another applicable exemption from the registration requirements of the Securities Act (including, without limitation, a private resale pursuant to the so-called “Section
4(a)(7)”), and in each case, in accordance with any applicable securities laws of the states of the United States and other applicable jurisdictions, and that any certificates or book-entry records representing the Acquired Securities shall
contain a legend to such effect. Subscriber acknowledges that the Acquired Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Acquired Securities will be
subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Acquired Securities and may be required to bear the financial risk of an investment in the Acquired
Securities for an indefinite period of time. Subscriber acknowledges and agrees that the Acquired Securities will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 until at least six months from the Closing Date.
Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Acquired Securities.
f. Subscriber understands and agrees that Subscriber is purchasing the Acquired Securities directly from the Issuer.
Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by or on behalf of the Issuer, any of its respective affiliates or control persons, officers, directors, employees,
partners, agents or representatives, expressly or by implication, regarding the transactions contemplated by this Subscription Agreement, other than those representations, warranties, covenants and agreements included in this Subscription Agreement.
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g. Subscriber acknowledges (a) that the Issuer makes no representation or warranty with respect to any tax implications of
the Transaction to the Subscriber, and (b) Subscriber shall be solely and exclusively responsible for the payment of any and all taxes incurred by Subscriber as a result of the Transaction.
h. Subscriber’s acquisition and holding of the Acquired Securities will not constitute or result in a non-exempt
prohibited transaction under section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), section 4975 of the Code, or any applicable similar law.
i. In making its decision to subscribe for and purchase the Acquired Securities, Subscriber represents that
it has relied solely upon its own independent investigation, the investor presentation provided to Subscriber and the Issuer’s representations, warranties and covenants set forth in this Subscription Agreement. Without limiting the generality of
the foregoing, Subscriber has not relied on any statements, representations or warranties or other information provided by the Placement Agents or any of their respective affiliates, or any of their respective officers, directors, employees or
representatives, concerning the Issuer or the Acquired Securities or the offer and sale of the Acquired Securities. Subscriber acknowledges and agrees that Subscriber has received and has had the opportunity to review such information as Subscriber
deems necessary in order to make an investment decision with respect to the Acquired Securities and the Issuer, including the SEC Documents, the risk factors set forth therein, a summary of risks set forth in Exhibit C, and certain
information provided in the Issuer’s data room (provided that no risk factor disclosure or information set forth in such data room shall be deemed to qualify any representation or warranty of the Issuer contained herein). Subscriber represents and
agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have
deemed necessary to make an investment decision with respect to the Acquired Securities.
j. Subscriber became aware of this offering of the Acquired Securities solely by means of direct contact between
Subscriber and the Issuer, a Placement Agent or a representative of the Issuer or a Placement Agent, and the Acquired Securities were offered to Subscriber solely by direct contact between Subscriber and the Issuer, a Placement Agent or a
representative of the Issuer or a Placement Agent. Subscriber did not become aware of this offering of the Acquired Securities, nor were the Acquired Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer
represents and warrants that the Acquired Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of,
the Securities Act, or any state securities laws.
k. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the
Acquired Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Acquired Securities, and Subscriber has sought such accounting, legal and
tax advice as Subscriber has considered necessary to make an informed investment decision. Accordingly, Subscriber is aware that neither of the Placement Agents is making any recommendation to the Subscriber with respect to the offering of the
Acquired Securities.
l. Subscriber acknowledges and agrees that none of the Placement Agents, nor any affiliate of a Placement Agent or any
officer, director, employee or representative of such Placement Agent or any affiliate thereof has provided Subscriber with any information or advice with respect to the Acquired Securities nor is such information or advice necessary or desired.
Subscriber acknowledges that none of the Placement Agents, any of their respective affiliates or any of their respective officers, directors, employees or representatives (i) has made any representation as to the Issuer or the quality of the Acquired
Securities, and the Placement Agents may have acquired non-public information with respect to the Issuer, which Subscriber agrees need not be provided to it, (ii) has made an independent investigation with respect to the Issuer or the Acquired
Securities or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Issuer, (iii) has acted as Subscriber’s financial advisor or fiduciary in connection with the issuance and purchase of the Acquired Securities or
(iv) has prepared a disclosure or offering document in connection with the offer and sale of the Acquired Securities.
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m. Subscriber represents and acknowledges that Subscriber, either alone or together with any professional advisor(s), has
adequately analyzed and fully considered the risks of an investment in the Acquired Securities and determined that the Acquired Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future
to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists; provided, that neither this representation nor any other representation or warranty made
by the Subscriber herein shall in any way limit the Subscriber’s right to rely upon the Issuer’s representations, warranties and covenants contained herein.
n. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the
offering of the Acquired Securities or made any findings or determination as to the fairness of an investment in the Acquired Securities.
o. The operations of the Subscriber have been conducted in material compliance with the rules and
regulations administered or conducted by OFAC applicable to such Subscriber. Such Subscriber has performed due diligence necessary to reasonably determine that its beneficial owners are not named on the lists of denied parties or blocked persons
administered by OFAC, resident in or organized under the laws of a country that is the subject of Sanctions, or otherwise the subject of Sanctions, except as permitted under Sanctions.
p. Subscriber is not currently (and at all times through the Closing or earlier termination of this Subscription Agreement
will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) acting for the purpose of acquiring, holding, voting or disposing of equity
securities of the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any “group” consisting solely of the Subscriber and one or more of its affiliates.
q. If Subscriber is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of ERISA, (ii) a
plan, an individual retirement account or other arrangement that is subject to section 4975 of the Code, (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i)
and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of
ERISA) or other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the
Internal Revenue Code (collectively, “Similar Laws,” and together with the ERISA Plans, the “Plans”), Subscriber represents and warrants that (i) neither the Issuer nor any of its respective affiliates has provided investment advice or
has otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold the Acquired Securities, and none of the Issuer or any of its respective affiliates is or shall at any time be the Plan’s fiduciary with respect to any
decision to acquire and hold the Acquired Securities, and none of the Issuer or any of its respective affiliates is or shall at any time be the Plan’s fiduciary with respect to any decision in connection with Subscriber’s investment in the Acquired
Securities and (ii) its purchase of the Acquired Securities will not result in a non-exempt prohibited transaction under section 406 of ERISA or section 4975 of the Code, or any applicable Similar Law.
r. Subscriber has, and at the Closing, will have, sufficient funds to pay the Purchase Price pursuant to Section 2.b.
s. (i) Subscriber has all rights, title and interest in and to the NEAR Tokens to be contributed by it to the Issuer
pursuant to this Subscription Agreement, (ii) the NEAR Tokens are held in a digital wallet held or operated by or on behalf of the Subscriber at or by an appropriately regulated custodian and/or in accordance with industry-standard security practices
(the “Subscriber Digital Wallet”) and neither the NEAR Tokens, nor such Subscriber Digital Wallet is subject to any liens, encumbrances or other restrictions, (iii) Subscriber has taken commercially reasonable steps to protect its Subscriber
Digital Wallet and the NEAR Tokens, and (iv) Subscriber has the exclusive ability to control such Subscriber Digital Wallet, including by use of “private keys” or other equivalent means or through custody arrangements or other equivalent means.
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5. Registration Rights.
a. The Issuer agrees to use commercially reasonable efforts to submit to or file with the Commission, within thirty (30)
calendar days after the consummation of the Transaction (the “Filing Date”) (at the Issuer’s sole cost and expense), a registration statement on Form F-3 (or Form F-1 if Form F-3 is not available) (the “Registration Statement”),
registering the resale of the Registrable Securities, which Registration Statement may include the shares of Common Stock being purchased by the Other Subscribers in the Other Subscriptions and the shares of Common Stock issued or issuable upon the
exercise of the Pre-Funded Warrants being purchased by the Other Subscribers in the Other Subscriptions, and the Issuer shall use its commercially reasonable efforts to have the Registration Statement declared effective under the Securities Act as
soon as practicable after the filing thereof and upon the earlier of (i) the fifteenth (15th) business day (or sixtieth (60th) business day if the Commission notifies the Issuer that it will “review” the Registration Statement)
following the filing date and (ii) the fifth (5th) business day after the date the Issuer is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be
subject to further review (such earlier date, the “Effective Date”); provided, however, that the Issuer’s obligations to include a Subscriber’s Registrable
Securities in the Registration Statement are contingent upon Subscriber furnishing in writing to the Issuer such information regarding such Subscriber, the securities of the Issuer held by such Subscriber and the intended method of disposition of the
Registrable Securities as shall be reasonably requested by the Issuer to effect the registration of the Registrable Securities, and Subscriber shall execute such documents in connection with such registration as the Issuer may reasonably request that
are customary of a selling stockholder in similar situations, including providing that the Issuer shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement as permitted under Section 5.c of this
Subscription Agreement. Notwithstanding the foregoing, if the Commission prevents the Issuer from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the
Securities Act for the resale of the Registrable Securities by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Registrable Securities which is equal to the maximum number of Registrable
Securities as is permitted by the Commission. In such event, the number of Registrable Securities to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders. In the
event of any such reduction, the Issuer shall use its best efforts to promptly file additional registration statements (or amendments) as permitted by the Commission to register for resale any Registerable Securities not included due to such
limitation, until all Registerable Securities are so registered. Upon notification by the Commission that the Registration Statement has been declared effective by the Commission, within two (2) business days thereafter, the Issuer shall file the
final prospectus under Rule 424 of the Securities Act. The Issuer will provide a draft of the Registration Statement to Subscriber for review at least five (5) business days in advance of filing the Registration Statement; provided, that for the avoidance of doubt, in no event shall the Issuer be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Subscriber’s review. In no event shall
Subscriber be identified as an underwriter in the Registration Statement unless required by the Commission; provided, that if the Commission requests that Subscriber be identified as an underwriter in the
Registration Statement, Subscriber will have an opportunity to withdraw from the Registration Statement (in which case the Issuer shall not identify the Subscriber as an underwriter therein). Subscriber shall not be entitled to use the Registration
Statement for an underwritten offering of Registrable Securities. For purposes of clarification, any failure by the Issuer to file the Registration Statement by the Filing Date or to effect such Registration Statement by the Effective Date shall not
otherwise relieve the Issuer of its obligations to file or effect the Registration Statement as set forth above in this Section 5. “Registrable Securities” means the Acquired Shares, the Warrant Shares issued or issuable upon the
exercise of the Pre-Funded Warrants, and any shares of Common Stock issued or issuable with respect to the Acquired Shares and the Warrant Shares as a result of any stock split or subdivision, stock dividend, recapitalization, exchange or similar
event.
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b. In the case of the registration effected by the Issuer pursuant to this Subscription Agreement, the Issuer shall, upon
reasonable request, inform Subscriber as to the status of such registration. At its expense the Issuer shall:
(i) except for such times as the Issuer is permitted hereunder to suspend the use of the prospectus forming part of a
Registration Statement, use its commercially reasonable efforts to keep such registration continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any
material misstatements or omissions, until the earlier of the following: (A) Subscriber ceases to hold any Registrable Securities, (B) the date all Registrable Securities held by Subscriber may be sold without restriction under Rule 144 of the
Securities Act, including without limitation, any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 and without the requirement for the Issuer to be in compliance with the current public information required
under Rule 144(c)(1) or Rule 144(i)(2), as applicable, and (C) three (3) years from the Effective Date of the Registration Statement. The period of time during which the Issuer is required hereunder to keep a Registration Statement effective is
referred to herein as the “Registration Period”;
(ii) during the Registration Period, advise Subscriber promptly:
(1) when a Registration Statement or any amendment thereto has been filed with the Commission and when such Registration
Statement or any post-effective amendment thereto has become effective;
(2) of any request by the Commission for amendments or supplements to any Registration Statement or the prospectus
included therein or for additional information;
(3) after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
(4) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the
Registrable Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(5) in accordance with Section 5.c of this Subscription Agreement, of the occurrence of any event that requires
the making of any changes in any Registration Statement or prospectus so that, as of such date, any Registration Statement does not contain an untrue statement of a material fact or does not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any prospectus does not include an untrue statement of a material fact or does not omit to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Notwithstanding anything to the contrary set forth herein, the Issuer shall not, when so advising Subscriber of such events, provide
Subscriber with any material, nonpublic information regarding the Issuer, any of its affiliates or any other Person, unless the Issuer has notified Subscriber of the existence of such an event (without providing material, nonpublic information about
the specific nature of such event) and obtained the written consent of the Subscriber to receive such information;
(iii) during the Registration Period, use its commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of any Registration Statement as soon as reasonably practicable;
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(iv) during the Registration Period, upon the occurrence of any event contemplated above, except for such times as the
Issuer is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such
Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, such prospectus will not include any untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) during the Registration Period, use its commercially reasonable efforts (y) to remain listed on each Exchange and to
cause all Registrable Securities to be listed on each securities exchange or market, if any, on which the Common Stock issued by the Issuer have been listed and (z) to timely comply in all material respects with the Issuer’s reporting, filing and
other obligations under the rules and regulations of the Commission and each Exchange;
(vi) during the Registration Period, use its commercially reasonable efforts to take all other steps necessary to effect
the registration of the Registrable Securities contemplated hereby and, for so long as Subscriber holds Registrable Securities, to enable Subscriber to sell the Registrable Securities under Rule 144;
(vii) subject to receipt from Subscriber by the Issuer or its transfer agent of customary representations and other
customary documentation reasonably acceptable to the Issuer and the transfer agent in connection therewith, Subscriber may request that the Issuer remove, and the Issuer shall cause to be removed, any legend from the book entry position(s) or
certificate(s) evidencing its Registrable Securities at any time that such Registrable Securities (A) are subject to or have been or are about to be sold or transferred pursuant to, an effective registration statement (including a registration
statement filed under this Subscription Agreement); (B) have been or are about to be sold pursuant to Rule 144; or (C) may be sold pursuant to Rule 144 without restriction on the volume or manner of sale and without the requirement for the Issuer to
be in compliance with the current public information requirement under Rule 144 (or any similar provision then in force under the Securities Act). If required by the Issuer’s transfer agent, the Issuer shall cause its counsel to deliver promptly to
such transfer agent an opinion of counsel to the effect that the removal of restrictive legends in such circumstances may be effected under the Securities Act if required by such transfer agent to effect the removal of restrictive legends in
accordance with the provisions of this Subscription Agreement. If restrictive legends are no longer required for such Registrable Securities pursuant to the foregoing, the Issuer shall, in accordance with the provisions of this Section 5 and
within two (2) business days of any request therefor from Subscriber accompanied by such customary and reasonably acceptable representations and other documentation referred to above establishing that restrictive legends are no longer required,
deliver to the transfer agent irrevocable instructions that the transfer agent shall make a new, unlegended entry for such book entry Registrable Securities. The Issuer shall be responsible for the fees of its transfer agent and all Depository Trust
Company fees associated with such issuance; and
(viii) reasonably cooperate with any broker-dealer through which a Subscriber proposes to resell Registrable Securities,
including making any required filings with FINRA and applicable state securities authorities.
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c. Notwithstanding anything to the contrary in this Subscription Agreement, the Issuer shall be entitled to delay or
postpone the filing or effectiveness of the Registration Statement, and, from time to time, to require Subscriber not to sell under the Registration Statement or to suspend the effectiveness or use thereof, if it determines that the negotiation or
consummation of a transaction by the Issuer is pending or an event has occurred, which negotiation, consummation or event that the Board of Directors reasonably believes, upon the advice of outside legal counsel, would require additional disclosure
by the Issuer in the Registration Statement of material information that the Issuer has a bona fide business purpose for keeping confidential and the non-disclosure of which in the Registration Statement would be expected, in the reasonable
determination of the Issuer, upon the advice of outside legal counsel, to cause the Registration Statement to fail to comply with applicable disclosure requirements or is otherwise necessary for the Registration Statement to not contain a material
misstatement or omission (each such circumstance, a “Suspension Event”); provided, however, that the Issuer may not delay or suspend the effectiveness or use
of the Registration Statement on more than two (2) occasions or for more than sixty (60) calendar days, or for more than ninety (90) total calendar days, in each case during any twelve-month period. Upon receipt of any written notice from the Issuer
of the happening of any Suspension Event (which notice shall not contain material, nonpublic information) during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement contains any
untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any related prospectus includes any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, Subscriber agrees that (i) it will promptly discontinue offers and sales of the Registrable
Securities under the Registration Statement until Subscriber receives copies of a supplemental or amended prospectus (which the Issuer agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice
that any post-effective amendment has become effective or unless otherwise notified by the Issuer that it may resume such offers and sales and (ii) it will maintain the confidentiality of any information included in such written notice delivered by
the Issuer unless otherwise required by law or subpoena. If so directed by the Issuer, Subscriber will deliver to the Issuer or, in Subscriber’s sole discretion destroy, all copies of the prospectus covering the Registrable Securities in Subscriber’s
possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Registrable Securities shall not apply (A) to the
extent Subscriber is required to retain a copy of such prospectus (x) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (y) in accordance with a bona fide pre-existing document retention policy or
(B) to copies stored electronically on archival servers as a result of automatic data back-up.
d. Subscriber may deliver written notice (including via email in accordance with Section 8.k) (an “Opt-Out
Notice”) to the Issuer requesting that Subscriber not receive notices from the Issuer otherwise required by this Section 5; provided, however, that
Subscriber may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from Subscriber (unless subsequently revoked), (i) the Issuer shall not deliver any such notices to Subscriber and Subscriber shall no longer be
entitled to the rights associated with any such notice and (ii) each time prior to Subscriber’s intended use of an effective Registration Statement, Subscriber will notify the Issuer in writing at least two (2) business days in advance of such
intended use, and if a notice of a Suspension Event was previously delivered (or would have been delivered but for the provisions of this Section 5.d) and the related suspension period remains in effect, the Issuer will so notify Subscriber,
within one (1) business day of Subscriber’s notification to the Issuer, by delivering to Subscriber a copy of such previous notice of Suspension Event, and thereafter will provide Subscriber with the related notice of the conclusion of such
Suspension Event immediately upon its availability.
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e. The Issuer shall, notwithstanding any termination of this Subscription Agreement in accordance with Section 6,
indemnify, defend and hold harmless Subscriber (to the extent a seller under the Registration Statement), its directors, officers, agents, broker-dealers, and employees and each person who controls Subscriber (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the fullest extent permitted by applicable law, from and against any and all out-of-pocket losses, claims, damages, liabilities and reasonable and documented costs (including, without limitation,
reasonable and documented costs of preparation and investigation and reasonable documented attorneys’ fees of one legal counsel (and one local counsel)) and all other reasonable and documented expenses (collectively, “Losses”), as incurred,
that arise out of or are based upon (i) any untrue statement of a material fact contained in the Registration Statement or in any amendment or supplement thereto, or arising out of or relating to any omission to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; (ii) any untrue statement of a material fact included in any prospectus included (or incorporated by reference) in the Registration Statement, or any form of prospectus, or in
any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading, except in either of the foregoing clauses (i) and (ii), to the extent, but only to the extent, that such untrue statement or omissions are based upon information regarding Subscriber furnished in writing to the Issuer by such
Subscriber expressly for use therein or such Subscriber has omitted a material fact from such information or otherwise violated the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder; or (iii) any material
breach of any representation, warranty, or covenant in this Subscription Agreement; provided, however, that the indemnification contained in this Section 5 shall not apply to amounts paid in
settlement of any Losses if such settlement is effected without the consent of the Issuer (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Issuer be liable for any Losses to the extent they arise out of or are
based upon a violation which occurs (A) in reliance upon and in conformity with written information furnished by Subscriber expressly for inclusion in the Registration Statement, or (B) in connection with any offers or sales effected by or on behalf
of Subscriber in violation of Section 5.c hereof. The Issuer shall notify Subscriber reasonably promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section
5 of which the Issuer is aware. The Issuer shall not, without the prior written consent of Subscriber, effect any settlement of any pending proceeding in respect of which Subscriber or any other person entitled to indemnification hereunder is a
party, unless such settlement includes an unconditional release of Subscriber or such other person, as applicable, from all liability on claims that are the subject matter of such proceeding. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Registrable Securities by Subscriber. The indemnification obligations of the Issuer shall remain in full force and effect regardless of
any termination of this Subscription Agreement and shall survive the transfer of Registerable Securities by Subscriber.
f. Subscriber shall, severally and not jointly, indemnify and hold harmless the Issuer, its directors, officers, agents
and employees, and each person who controls the Issuer (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, that
arise out of or are based upon (i) any untrue statement of a material fact contained in any Registration Statement or in any amendment or supplement thereto or arising out of or relating to any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) any untrue statement of a material fact included in any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case of
clauses (i) and (ii), to the extent, but only to the extent, that such untrue statement or omissions are based upon information regarding such Subscriber furnished in writing to the Issuer by such Subscriber expressly for use therein or a material
fact that such Subscriber has omitted from such information; provided, however, that the indemnification contained in this Section 5.f shall not apply to amounts paid in settlement of any Losses if
such settlement is effected without the consent of Subscriber (which consent shall not be unreasonably withheld, conditioned or delayed). In no event shall the liability of Subscriber be greater in amount than the dollar amount of the net proceeds
received by such Subscriber upon the sale of the Registrable Securities giving rise to such indemnification obligation. Subscriber shall notify the Issuer promptly of the institution, threat or assertion of any proceeding arising from or in
connection with the transactions contemplated by this Section 5.f of which such Subscriber is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall
survive the transfer of the Acquired Securities by Subscriber.
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g. If the indemnification provided under this Section 5 from the indemnifying party is unavailable or insufficient
to hold harmless an indemnified party in respect of any Losses, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such
proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question, including any untrue statement of a material fact or omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses shall be
deemed to include, subject to the limitations set forth above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5.g from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying party’s obligation to make a
contribution pursuant to this Section 5.g shall be several, not joint. In no event shall the liability of the Subscriber under any indemnification or contribution obligation hereunder be greater in amount than the dollar amount of the net
proceeds received by such Subscriber upon the sale of the Acquired Securities purchased pursuant to this Subscription Agreement giving rise to such obligation. The Issuer acknowledges and agrees that monetary damages would not be adequate
compensation for a breach of its obligations hereunder, and Subscriber shall be entitled to specific performance. All obligations of the Issuer under this Section shall survive any termination of this Subscription Agreement and the transfer of
Registerable Securities.
h. Except as expressly set forth in the Transaction Documents to the contrary, the Issuer shall not enter into any
agreement granting registration rights that are more favorable in any respect to another holder of its securities without offering such more favorable terms to Subscriber on a pari passu basis.
6. Confidential Information.
Each Subscriber covenants that until such time as the transactions contemplated by this Subscription Agreement are publicly
disclosed by the Issuer in a Current Report on Form 6-K, such Subscriber will maintain the confidentiality of the existence and terms of this transaction, this Subscription Agreement and the other Transaction Documents, except that the foregoing
shall not prohibit disclosure by such Subscriber to such Subscriber’s outside attorney, accountant, auditor or investment advisor only to the extent necessary to permit evaluation of the investment and the performance of the necessary or required
tax, accounting, financial, legal, or administrative tasks and services and other than as may be required by law.
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7. Reliance by and Exculpation of the Placement Agents.
a. Each Subscriber acknowledges and agrees for the express benefit of each of the Placement Agents, their respective
affiliates, and any of their respective control persons, officers, directors, employees, agents, and representatives that (i) none of the Placement Agents or any of their respective affiliates or their respective control persons, officers, directors,
employees, agents, or representatives of any of the foregoing has made, and will not make, any representations or warranties, whether express or implied, with respect to the Issuer or the offer and sale of the Acquired Securities, and such Subscriber
will not rely on any statements made by the Placement Agents, orally or in writing, to the contrary, (ii) such Subscriber will be responsible for conducting its own due diligence investigation with respect to the Issuer and the offer and sale of the
Acquired Securities, (iii) such Subscriber will be purchasing Acquired Securities based on the results of its own due diligence investigation of the Issuer, and none of the Placement Agents nor any of their respective affiliates nor any control
persons, officers, directors, employees, partners, agents, or representatives of any of the foregoing (x) has made any independent investigation with respect to the Issuer, the Acquired Securities, or the accuracy, completeness, or adequacy of any
information supplied to the Subscriber by the Issuer and (y) is not making any recommendation to any Subscriber with respect to the Issuer or the Acquired Securities, including the purchase of the Acquired Securities by any Subscriber, (iv) none of
the Transaction Documents has been prepared by the Placement Agents or any of their respective affiliates, or any control persons, officers, directors, employees, agents, or representatives of any of the foregoing in connection with the offer and
sale of the Acquired Securities, (v) none of the Placement Agents nor any of their affiliates, nor any control persons, officers, directors, employees, agents, or representatives of any of the foregoing, has (x) any responsibility with respect to (1)
any representations, warranties, or agreements made by any other Person under or in connection with the transactions contemplated by this Subscription Agreement or any of the documents furnished pursuant thereto or in connection therewith, or the
execution, legality, validity, or enforceability (with respect to any Person) or any thereof or (2) the business, affairs, financial condition, operations, properties, or prospects of, or any other matter concerning the Issuer or the transactions
contemplated by this Subscription Agreement or (y) any liability or obligation (including, without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses, or
disbursements incurred by the Subscriber, the Issuer, or any other Person), whether in contract, tort, or otherwise, to the Subscriber, or to any Person claiming through such Subscriber, in respect of any of the transactions contemplated by this
Subscription Agreement, (vi) the Placement Agents are acting solely as placement agents to the Issuer in connection with the transactions contemplated by this Subscription Agreement, and none of the Placement Agents, nor any of their respective
affiliates, or any control persons, officers, directors, employees, agents, or representatives of any of the foregoing, is acting as an underwriter or in any other capacity and is not and shall not be construed as a financial advisor or fiduciary for
such Subscriber, the Issuer, or any other person or entity in connection with any of the transactions contemplated by this Subscription Agreement, and (vii) the decision to invest in the Issuer will involve a significant degree of risk, including a
risk of total loss of such investment. Each Subscriber further represents and warrants to the Placement Agents that such Subscriber, including any fund or funds that such Subscriber manages or advises that participates in the offer and sale of the
Acquired Securities, is permitted under its constitutive documents (including, without limitation, all limited partnership agreements, charters, bylaws, limited liability company agreements, all applicable side letters with investors, and similar
documents) to make investments of the type contemplated by this Subscription Agreement. This Section 7 shall survive any termination of this Subscription Agreement.
b. The Issuer agrees and acknowledges that the Placement Agents may rely on its representations, warranties, agreements
and covenants contained in this Subscription Agreement and each Subscriber agrees that the Placement Agents may rely on such Subscriber’s representations and warranties contained in this Subscription Agreement as if such representations and
warranties, as applicable, were made directly to the Placement Agents.
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c. None of the Placement Agents nor any of their respective affiliates, or any control persons, officers, directors,
employees, agents, or representatives of any of the foregoing, (1) shall have any liability to the Subscribers pursuant to, arising out of or relating to this Subscription Agreement, the negotiation hereof or thereof, or its subject matter, or the
transactions contemplated in this Subscription Agreement or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Acquired
Securities or with respect to any claim (whether in tort, contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided
herein, or for any actual or alleged inaccuracies, misstatements, or omissions with respect to any information or materials of any kind furnished by the Issuer, the Placement Agents or any Non-Party Affiliate (as defined below) concerning the
Placement Agents, this Subscription Agreement, or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member,
manager, direct or indirect equity holder, or affiliate of the Placement Agents or any of the Placement Agents’ controlled affiliates. The Subscriber agrees that the Placement Agents shall not be liable to it (including in contract, tort, under
federal or state securities laws or otherwise) for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the sale of Acquired Securities pursuant to this Subscription Agreement. Subscriber releases each of
the Placement Agents in respect of any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses, or disbursements related to the sale of Acquired Securities pursuant to this Subscription Agreement. Each
Subscriber agrees not to commence any litigation or bring any claim against either of the Placement Agents in any court or any other forum which relates to, may arise out of, or is in connection with, the sale of Acquired Securities pursuant to this
Subscription Agreement. This undertaking is given freely and after obtaining independent legal advice.
d. The Issuer agrees that the Placement Agents, their affiliates and any of their respective control persons, officers,
directors, employees, agents and representatives shall be entitled to (1) rely on, and shall be protected in acting upon, any certificate, instrument, notice, letter or any other document or security delivered to any of them by or on behalf of the
Issuer, and (2) be indemnified by the Issuer for acting as the Placement Agents hereunder pursuant to the indemnification provisions set forth in the applicable letter agreement between the Issuer and the Placement Agents.
8. Termination. This Subscription Agreement shall terminate and be void and of no further force and
effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) upon the mutual written agreement of each of the parties
hereto to terminate this Subscription Agreement, (b) if any of the conditions to the Closing set forth in Section 2 of this Subscription Agreement are not satisfied at, or are not capable of being satisfied on or prior to, the Closing and,
as a result thereof, the transactions contemplated by this Subscription Agreement will not be or are not consummated at the Closing, or (c) at the election of Subscriber, on or after November 6, 2025; provided, that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at
law or in equity to recover losses, liabilities or damages arising from any such willful breach. In the event that this Subscription Agreement is terminated for any reason, the Issuer shall within one (1) business day following such termination,
return to Subscriber (by wire transfer of U.S. dollars in immediately available funds to the account specified by such Subscriber) all funds deposited in escrow by Subscriber in connection with the Transaction.
9. Miscellaneous
a. Each party hereto acknowledges that the other party hereto and the Placement Agents will rely on the acknowledgments,
understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the Closing, each party hereto agrees to promptly notify the other party hereto if any of the acknowledgments, understandings, agreements,
representations and warranties made by such party as set forth herein are no longer accurate in all material respects. Subscriber further acknowledges and agrees that the Placement Agents are third-party beneficiaries of the representations and
warranties of Subscriber contained in Section 4, and the Issuer further acknowledges and agrees that each of the Placement Agents is a third-party beneficiary of the representations and warranties of the Issuer contained in Section 3.
25
b. Subscriber agrees that none of (i) any Other Subscriber pursuant to Other Subscription Agreements entered into in
connection with the Transaction (including the affiliates or controlling persons, members, officers, directors, partners, agents, or employees of any such Other Subscriber), (ii) the Placement Agents, their respective affiliates or any of their or
their respective affiliates’ control persons, officers, directors or employees, and (iii) any affiliates or any control persons, officers, directors, employees, partners, agents or representatives of the Issuer shall be liable to Subscriber or to any
Other Subscriber pursuant to this Subscription Agreement, the Pre-Funded Warrants, or the Other Subscription Agreements, as applicable, the negotiation hereof or thereof or the subject matter hereof or thereof, or the transactions contemplated hereby
or thereby, for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Acquired Securities. On behalf of itself and its affiliates, the Subscriber releases each of the entities or
individuals described above in respect of any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements related to this Subscription Agreement or the transactions contemplated hereby.
c. The Issuer and Subscribers are entitled to rely upon this Subscription Agreement and each is irrevocably authorized to
produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby to the extent required by law or by regulatory bodies.
d. Notwithstanding anything to the contrary in this Subscription Agreement, prior to the Closing, Subscriber may not
transfer or assign all or a portion of its rights and obligations under this Subscription Agreement, other than to one or more of its affiliates (including other investment funds or accounts managed or advised by the investment manager who acts on
behalf of Subscriber) without the prior consent of the Issuer; provided, that such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Subscription
Agreement, makes the representations and warranties in Section 4 and completes Schedule A hereto; provided, further, that, no assignment shall relieve the assigning party of any of its
obligations hereunder, including any assignment to any fund or account managed by the same investment manager as Subscriber or by an affiliate of such investment manager. In the event of such a transfer or assignment, such Subscriber shall complete
the form of assignment attached as Schedule B hereto. The Issuer may not assign or transfer all or any portion of its rights or obligations under this Subscription Agreement without the consent of each Subscriber.
e. The Issuer may request from Subscriber such additional information as the Issuer may reasonably deem necessary to
evaluate the eligibility of Subscriber to acquire the Acquired Securities and to register the Acquired Securities for resale, and Subscriber shall promptly provide such information as may be reasonably requested, to the extent readily available and
to the extent consistent with its internal policies and procedures; provided, that the Issuer agrees to keep any such information provided by Subscriber confidential except (i) as required by the federal
securities laws, rules or regulations and (ii) to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of the Commission or regulatory agency or under the regulations of Nasdaq. The Subscriber
acknowledges that the Issuer may file a copy of this Subscription Agreement with the Commission as exhibit to a periodic report or a registration statement of the Issuer.
f. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements,
understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.
g. Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of,
the parties hereto and their respective affiliates and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments
contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
h. If any provision of this Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.
26
i. This Subscription Agreement may be executed in two (2) or more counterparts (including by electronic means), all of
which shall be considered one and the same agreement and shall become effective when signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
j. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay all of its own
expenses in connection with this Subscription Agreement and the transactions contemplated herein.
k. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally,
emailed or telecopied, sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) upon receipt of an
appropriate electronic answerback or confirmation when so delivered by telecopy (to such number specified below or another number or numbers as such person may subsequently designate by notice given hereunder), (iii) when sent, with no mail
undeliverable or other rejection notice, if sent by email or (iv) five (5) business days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:
(A) if to Subscriber, to such address or addresses set forth on the signature page hereto;
(B) if to the Issuer, to:
OceanPal Inc.
Pendelis 26, 175 64 Palaio Faliro
Athens, Greece,
Attention: Robert Perri
Facsimile: + 30-210-9401-810
email: [email protected]
Copy (which shall not constitute notice) to:
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Attention: Edward S. Horton, Esq.,
Facsimile: (212) 480-8421
Email: [email protected]
(C) if to the Placement Agents, to:
Clear Street LLC
4 World Trade Center
150 Greenwich Street, 45th Floor
New York, NY 10007
Attn: General Counsel
Email: [email protected]
150 Greenwich Street, 45th Floor
New York, NY 10007
Attn: General Counsel
Email: [email protected]
and
Cohen & Company Capital Markets LLC
3 Columbus Circle, Floor 24
New York, NY 10019
Attn: Jerry Serowik
Email: [email protected]
3 Columbus Circle, Floor 24
New York, NY 10019
Attn: Jerry Serowik
Email: [email protected]
27
l. This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or
related to this Subscription Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of this Subscription Agreement, shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the principles of conflicts of law thereof.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, THE SUPREME COURT OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF NEW
YORK SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS SUBSCRIPTION AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED
HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE
THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE
HEARD AND DETERMINED BY SUCH A NEW YORK STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE
AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 9.K OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES
THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 9.L.
m. The Issuer shall, by 9:30 a.m., New York City time, on the first (1st) business day immediately following the date of
this Subscription Agreement (or, if this Subscription Agreement is executed and delivered by the parties hereto prior to 8:00 a.m., New York City time, on a business day, prior to 9:30 a.m., New York City time, on the date hereof), issue one or more
press releases or furnish or file with the Commission a Current Report on Form 6-K (collectively, the “Disclosure Document”) disclosing, to the extent not previously publicly disclosed, all material terms of the transactions contemplated
hereby, the Transaction and any other material, nonpublic information that the Issuer has provided to Subscriber at any time prior to the filing of the Disclosure Document. From and after the issuance of the Disclosure Document, Subscriber shall not
be in possession of any material, nonpublic information received from the Issuer or any of its officers, directors, employees or other representatives. From and after such date, Issuer shall not provide any material non-public information to
Subscriber without Subscriber’s prior written consent, and any such information so provided shall be promptly disclosed publicly. Notwithstanding anything in this Subscription Agreement to the contrary, the Issuer shall not publicly disclose the name
of Subscriber or any of its affiliates, or include the name of Subscriber or any of its affiliates, without the prior written consent of Subscriber, (i) in any press release or (ii) in any filing with the Commission or any regulatory agency or
trading market, except (A) as required by the federal securities law in connection with the Registration Statement, (B) in a press release or marketing materials of the Issuer in connection with the Transaction to the extent any such disclosure is
substantially equivalent to the information that has previously been made public without breach of the obligation under this Section 9.m or (C) to the extent such disclosure is required by law, at the request of the staff of the Commission or
regulatory agency or under the regulations of the Exchange or by any other governmental authority, in which case the Issuer shall provide Subscriber with prior written notice of such disclosure permitted under this subclause (iii).
28
n. In connection with any sale, assignment, transfer or other disposition of the Acquired Securities by a Subscriber
pursuant to Rule 144 or pursuant to any other exemption under the Securities Act such that the purchaser acquires freely tradable shares and upon compliance by the Subscriber with the requirements of this Subscription Agreement, if requested by the
Subscriber by notice to the Issuer, the Issuer shall request its transfer agent to remove any restrictive legends related to the book entry account holding such shares and make a new, unlegended entry for such book entry shares sold or disposed of
without restrictive legends within one (1) business day of any such request therefor from such Subscriber, provided, that the Issuer has timely received from the Subscriber a completed representation letter
in customary form and such other customary representations as may be reasonably required in accordance with applicable law in connection therewith. Subject to receipt from a Subscriber by the Issuer and the Issuer’s transfer agent of customary
representations and other documentation reasonably acceptable to the Issuer and the Issuer’s transfer agent in connection therewith, the Issuer shall, in accordance with the provisions of this Section 9.n and promptly following any request therefor
from a Subscriber accompanied by such customary and reasonably acceptable documentation referred to above, (A) deliver to the Issuer’s transfer agent irrevocable instructions that the Issuer’s transfer agent shall make a new, unlegended entry for
such book entry shares, and (B) cause its counsel to promptly deliver to the Issuer’s transfer agent an opinion to the effect that the removal of such legends in such circumstances may be effected under the Securities Act if required by the Issuer’s
transfer agent to effect the removal of such legends in accordance with the provisions of this Subscription Agreement. The Issuer shall be responsible for the fees of the Issuer’s transfer agent, its legal counsel and all DTC fees associated with
such legend removal.
o. No consideration (including any modification of any Transaction Document) shall be offered or
paid to any person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is also offered to all of the parties to the Transaction Documents.
p. This Subscription Agreement may not be amended, modified, supplemented, or waived except by an instrument in writing
signed by the Issuer and Subscriber; provided, however, that any amendment, modification, supplement or waiver that adversely affects each Placement Agent will require the consent of the Placement Agents.
Notwithstanding the foregoing, any party may waive any of its own rights (but not obligations) under this Subscription Agreement, in whole or in part, by providing written notice to the other parties, and such waiver shall not require the consent of
any other party; provided, further, that Section 3, Section 4, Section 7, Section 9.a and this Section 9.p may not be amended, terminated or waived in a manner that is material and adverse to the Placement
Agents without the written consent of each of the Placement Agents.
q. The parties agree that irreparable damage would occur if any provision of this Subscription Agreement were not
performed in accordance with the terms hereof, and accordingly, that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Subscription Agreement or to enforce specifically the performance of the terms
and provisions of this Subscription Agreement in an appropriate court of competent jurisdiction as set forth in Section 9.l, in addition to any other remedy to which any party is entitled at law or in equity.
r. Subscriber shall furnish or otherwise make available to the Issuer (and shall cooperate with the Issuer in obtaining)
all information and documentation necessary for the Issuer to specifically identify the tax basis in each NEAR Token for applicable tax purposes, including, but not limited to: (i) the date, time, and source of acquisition of each NEAR Token, (ii)
the original cost and fair market value at the time of acquisition of each NEAR Token, (iii) historical wallet and account location with respect to each NEAR Token, and (iv) detailed transaction history (both on-chain and off-chain) with respect to
each NEAR Token.
[Signature pages follow.]
29
IN WITNESS WHEREOF, each of the Issuer and Subscriber has executed or caused this
Subscription Agreement to be executed by its duly authorized representative as of the date first written above.
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ISSUER:
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OCEANPAL INC.,
a Marshall Islands corporation
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By:
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Name:
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Title:
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Signature Page to Subscription Agreement
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SUBSCRIBER:
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Name of Subscriber:
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Signature of Subscriber:
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By:
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Name:
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Title:
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Name in which securities are to be registered (if different):
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Email Address: _____________________
Subscriber’s EIN: ___________________
Address:
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Attn:
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Telephone No:
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Facsimile No:
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Subscription Amount:
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$
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_________________ (in NEAR Token)
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Aggregate Number of Acquired Shares subscribed for: _______________________
Beneficial Ownership Blocker ☐ 4.99% or ☐ 9.99%
Aggregate Number of Pre-Funded Warrants subscribed for: ___________________
Aggregate Purchase Price: $ __________________
You must pay the Purchase Price by wire transfer of United States dollars in immediately available funds to the account specified by the Issuer in the Closing
Notice.
Name and Address of Beneficial Owner, if different from Subscriber:
Number of shares of Common Stock and other equity securities of the Issuer currently owned by Beneficial Owner prior to this Transaction:
Signature Page to Subscription Agreement
EXHIBIT A
Form of Pre-Funded Warrant
(see attached)
EXHIBIT B
Form of Lock Up Agreement
(see attached)
EXHIBIT C
Summary of Risks
Certain factors may have a material adverse effect on the business, financial condition and results of operations of the Issuer and your proposed investment in
the Issuer. The risks and uncertainties described below are not the only ones that the Issuer faces. Additional risks that the Issuer is unaware of, or that the Issuer currently believes are not material, may also become important factors that
materially adversely affect the Issuer. If any of the risk factors discussed in the SEC Documents or any of the following risks actually occur, the business, financial condition, results of operation, and future prospects of the Issuer could be
adversely affected, the trading price of the Common Stock could decline, and you could lose all or part of your investment.
Risks Related to Issuer’s Proposed NEAR Treasury Strategy and Holdings
| • |
The Issuer’s financial results and the trading price of its common stock may be affected by the market prices of NEAR, which are highly volatile.
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| • |
Investing in NEAR will expose the Issuer to certain risks associated with NEAR, such as price volatility, limited liquidity and trading
volumes, relative anonymity, potential susceptibility to market abuse and manipulation, theft, compliance and internal control failures at exchanges and other risks inherent in its electronic, virtual form and decentralized network.
|
| • |
Future developments regarding the treatment of crypto assets for U.S. and foreign tax purposes could adversely impact the Issuer’s business. NEAR and other digital assets are novel assets, and
are subject to significant legal, commercial, regulatory and technical uncertainty.
|
| • |
The availability of spot exchange-traded products for NEAR and other digital assets may adversely affect the market price of NEAR and, consequently, the trading price of the Issuer’s common
stock.
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| • |
The Issuer’s NEAR strategy may subject it to enhanced regulatory oversight.
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| • |
NEAR trading venues may experience greater fraud, security failures, or regulatory or operational problems than trading venues for more established asset classes.
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| • |
The concentration of NEAR holdings may enhance the risks inherent in the Issuer’s NEAR treasury strategy.
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| • |
The Issuer’s NEAR holdings will be less liquid than existing cash and cash equivalents and may not be able to serve as a source of liquidity for it to the same extent as cash and cash
equivalents.
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| • |
If the Issuer or its third-party service providers experience a security breach or cyber-attack and unauthorized parties obtain access to its NEAR assets, the Issuer may lose some or all of
its NEAR assets and its financial condition and results of operations could be materially adversely affected.
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| • |
The further development and acceptance of the NEAR network and other cryptocurrency networks, including the bitcoin network, which represent a relatively new and rapidly changing industry, are
subject to a variety of factors that are difficult to evaluate. The slowing or stopping of the development or acceptance of the NEAR, bitcoin and other cryptocurrency networks may adversely affect an investment in the Issuer.
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| • |
The launch of central bank digital currencies may adversely affect the Issuer’s ability to successfully manage its NEAR treasury strategy and, consequently, its business.
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| • |
The Issuer is not subject to legal and regulatory obligations that apply to investment companies, such as mutual funds and exchange-traded funds, or to obligations applicable to investment
advisers.
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| • |
Absent federal regulations, there is a possibility that NEAR may be classified as a “security.” Any classification of NEAR as a “security” would subject the Issuer to additional regulation
and could materially impact the operation of the Issuer’s business.
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| • |
If the Issuer was deemed to be an investment company under the Investment Company Act, applicable restrictions likely would make it impractical for the Issuer to continue our business as
currently conducted and the Issuer’s NEAR treasury functions as currently contemplated.
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| • |
Transactions using NEAR require the payment of “gas fees,” which are subject to fluctuations that may result in high transaction fees.
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| • |
The Issuer faces risks relating to the custody of the Issuer’s NEAR, including the loss or destruction of private keys required to access the Issuer’s NEAR and cyberattacks or other data
loss relating to the Issuer’s NEAR, including smart contract related losses and vulnerabilities
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Risks Related to Issuer’s Proposed Offering
| • |
The trading price on Nasdaq for the Issuer’s common stock following the closing of the proposed PIPE (including common stock and pre-funded warrants) will be affected by factors that are
materially different from those that historically have affected or currently affect such trading price, and such trading price (and volume of trading) may be volatile following such closing.
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| • |
The Issuer intends to use the net proceeds from the proposed offerings to purchase NEAR, the price of which has been, and will likely continue to be, highly volatile.
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| • |
The Issuer has broad discretion in the use of the net proceeds from the proposed offering that the Issuer does not use to purchase NEAR as part of our NEAR treasury strategy, if any, and
investors will not have the opportunity to assess whether the net proceeds are being used in a manner of which you approve.
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| • |
The Issuer’s stockholders will experience dilution in the future due to any exercise of warrants, including, without limitation, the pre-funded warrants, and any future issuances of equity
securities.
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SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER
This Schedule must be completed by Subscriber and forms a part of the Subscription Agreement to which it is attached.
Capitalized terms used and not otherwise defined in this Schedule have the meanings given to them in the Subscription Agreement. Subscriber must check the applicable box in either Part A or Part B below and the applicable box in Part C below.
| A. |
QUALIFIED INSTITUTIONAL BUYER STATUS
(Please check the applicable subparagraphs): |
| ☐ |
Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act).
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*** OR ***
| B. |
ACCREDITED INVESTOR STATUS
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The undersigned represents and warrants that the undersigned is an “accredited investor” (an “Accredited Investor”)
as such term is defined in Rule 501(a) of Regulation D under the U.S. Securities Act of 1933, as amended (the “Securities Act”), for one or more of the reasons specified below (please check all
boxes that apply):
| ☐ |
(i) A natural person whose net worth, either individually or jointly with such person’s spouse or spousal equivalent, at the time of Subscriber’s purchase,
exceeds $1,000,000;
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The term “net worth” means the excess of total assets over total liabilities (including personal and
real property, but excluding the estimated fair market value of Subscriber’s primary home). For the purposes of calculating joint net worth with the person’s spouse or spousal equivalent, joint net worth can be the aggregate net worth of
Subscriber and spouse or spousal equivalent; assets need not be held jointly to be included in the calculation. There is no requirement that securities be purchased jointly. A spousal equivalent means a cohabitant occupying a relationship generally
equivalent to a spouse.
| ☐ |
(ii) A natural person who had an individual income in excess of $200,000, or joint income with Subscriber’s spouse or spousal
equivalent in excess of $300,000, in each of the two most recent years and reasonably expects to reach the same income level in the current year;
|
In determining individual “income,” Subscriber should add to Subscriber’s individual taxable adjusted
gross income (exclusive of any spousal or spousal equivalent income) any amounts attributable to tax exempt income received, losses claimed as a limited partner in any limited partnership, deductions claimed for depletion, contributions to an IRA or
Keogh retirement plan, alimony payments, and any amount by which income from long-term capital gains has been reduced in arriving at adjusted gross income.
| ☐ |
(iii) A director or executive officer of the Issuer;
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| ☐ |
(iv) A natural person holding in good standing with one or more professional certifications or designations or other credentials from an accredited educational
institution that the United States Securities and Exchange Commission (“SEC”) has designated as qualifying an individual for accredited investor status;
|
A-1
The SEC has designated the General Securities Representative license (Series 7), the Private Securities
Offering Representative license (Series 82) and the Licensed Investment Adviser Representative (Series 65) as the initial certifications that qualify for accredited investor status.
| ☐ |
(v) A natural person who is a “knowledgeable employee” as defined in Rule 3c-5(a)(4) under the Investment Company Act of 1940 (the “Investment Company Act”),
of the issuer of the securities being offered or sold where the issuer would be an investment company, as defined in Section 3 of the Investment Company Act, but for the exclusion provided by either Section 3(c)(1) or Section 3(c)(7) of the
Investment Company Act;
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| ☐ |
(vi) A bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities
Act, whether acting in its individual or fiduciary capacity;
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| ☐ |
(vii) A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
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| ☐ |
(viii) An investment adviser registered pursuant to Section 203 of the Investment Advisers Act of 1940 (the “Investment Advisers Act”) or registered
pursuant to the laws of a state, or an investment adviser relying on the exemption from registering with the SEC under Section 203(l) or (m) of the Investment Advisers Act;
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| ☐ |
(ix) An insurance company as defined in Section 2(13) of the Exchange Act;
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| ☐ |
(x) An investment company registered under the Investment Company Act or a business development company as defined in Section 2(a)(48) of that Act;
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| ☐ |
(xi) A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of
1958;
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| ☐ |
(xii) A Rural Business Investment Company as defined in Section 384A of the Consolidated Farm and Rural Development Act;
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| ☐ |
(xiii) A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state, or its political subdivisions for
the benefit of its employees, if such plan has total assets in excess of $5,000,000;
|
| ☐ |
(xiv) An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, if the investment decision is made by a plan fiduciary,
as defined in Section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;
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| ☐ |
(xv) A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
|
| ☐ |
(xvi) An organization described in Section 501(c)(3) of the Internal Revenue Code, or a corporation, business trust, partnership, or limited liability company, or
any other entity not formed for the specific purpose of acquiring the Acquired Securities, with total assets in excess of $5,000,000;
|
A-2
| ☐ |
(xvii) A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Acquired
Securities, whose purchase is directed by a sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of investing in the Issuer;
|
| ☐ |
(xviii) A “family office” as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act with assets under management in excess of $5,000,000 that is not formed for the specific purpose of acquiring the securities offered and whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that
such family office is capable of evaluating the merits and risks of the prospective investment;
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| ☐ |
(xix) A “family client” as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act, of a family office meeting the requirements set forth in (xviii) and whose
prospective investment in the issuer is directed by a person from a family office that is capable of evaluating the merits and risks of the prospective investment;
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| ☐ |
(xx) A “qualified institutional buyer” as defined in Rule 144A under the Securities Act;
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| ☐ |
(xxi) An entity, of a type not listed above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000; and/or
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| ☐ |
(xxii) An entity in which all of the equity owners qualify as an accredited investor under any of the above subparagraphs.
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| ☐ |
(xxiii) Subscriber does not qualify under any of the investor categories set forth in (i) through (xxi) above.
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*** AND ***
C. AFFILIATE STATUS
(Please check the applicable box)
SUBSCRIBER:
(Please check the applicable box)
SUBSCRIBER:
☐ is:
☐ is not:
an “affiliate” (as defined in Rule 144 under the Securities Act) of the Issuer or acting on behalf of an affiliate of the Issuer.
an “affiliate” (as defined in Rule 144 under the Securities Act) of the Issuer or acting on behalf of an affiliate of the Issuer.
A-3
SCHEDULE B
FORM OF ASSIGNMENT
FORM OF ASSIGNMENT
This Subscription Assignment and Joinder Agreement (this “Assignment Agreement”), dated _________ ____, 2025, is made and entered into by
and between (“Subscriber”) and (“Assignee”) and acknowledged by OceanPal Inc., a Marshall Islands Corporation (the “Issuer”).
WHEREAS, the Issuer and Subscriber entered into that certain Subscription
Agreement (the “Subscription Agreement”), dated _________ _, 2025, pursuant to which Subscriber agreed to subscribe for and purchase from the Issuer’s shares (the “Acquired Shares”) of the Issuer’s common stock, par
value $0.01 per share (the “Common Stock”) and/or the pre-funded warrants to purchase shares of Common Stock (the “Pre-Funded Warrants” and, together with the Acquired Shares, the “Acquired
Securities”);
WHEREAS, Subscriber and Assignee are affiliated investment funds; and
WHEREAS, for administrative reasons, Subscriber desires to assign its rights to subscribe for and
purchase of the Acquired Securities along with the rights and obligations set forth in the Subscription Agreement of such Acquired Securities (the “Assigned Securities”) to Assignee.
NOW, THEREFORE, pursuant to Section 9.d of the Subscription Agreement, and as further described in the
table below, Subscriber hereby assigns its rights to subscribe for and purchase the Assigned Securities to Assignee and Assignee hereby (i) accepts the rights to subscribe for and purchase the Assigned Securities and agrees to be bound by and subject
to the terms and conditions of the Subscription Agreement, (ii) expressly makes the representations and warranties in Section 4 of the Subscription Agreement with respect to the Assigned Securities and (iii) completed Schedule A to the Subscription
Agreement and attached it hereto. Notwithstanding the foregoing, this Assignment Agreement shall not relieve Subscriber of any of its obligations under the Subscription Agreement. Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Subscription Agreement.
The following assignment by Subscriber to Assignee of its rights to subscribe for and purchase all or a portion of the Acquired Securities have
been made:
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Acquired Shares and/or Pre-Funded Warrants Assigned |
Subscriber
Revised Subscription Amount |
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Subscription Amount |
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IN WITNESS WHEREOF, this Subscription Assignment and Joinder Agreement has been executed by Subscriber
and Assignee and acknowledged by a duly authorized representative of the Issuer as of the date set forth above.
Acknowledgement by the Issuer:
OceanPal Inc.
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Title:
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Signature of Subscriber:
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Signature of Assignee:
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By:
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Title:
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Assignee’s EIN: _______________
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Address:
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Attn:
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Exhibit 10.3
AMENDED AND RESTATED STOCKHOLDERS RIGHTS AGREEMENT
between
OCEANPAL INC.
and
COMPUTERSHARE TRUST COMPANY, N.A.,
as Rights Agent
as Rights Agent
Dated as of October 27, 2025
This Amended and Restated Stockholders Rights Agreement (this "Rights Agreement") is made and entered into as of
October 27, 2025, by and between OceanPal Inc., a Marshall Islands corporation (the "Company"), and Computershare Trust Company, N.A., a federally chartered trust company, as Rights Agent (the "Rights Agent").
WHEREAS, the Board of Directors of the Company (the "Board") has (a) authorized and declared a dividend of one right
(the "Right") for each share of the Company's common stock, par value $0.01 per share (the "Common Stock") held of record as of the Close of Business (as hereinafter defined) on November 29, 2021 (the "Record Date") and (b) has
further authorized the issuance of one Right in respect of each share of Common Stock that shall become outstanding (i) at any time between the Record Date and the earliest of the Distribution Date, the Redemption Date or the Final Expiration Date (as
such terms are hereinafter defined) or (ii) upon the exercise or conversion, prior to the earlier of the Redemption Date or the Final Expiration Date, of any option or other security exercisable for or convertible into shares of Common Stock, which
option or other such security is outstanding on the Distribution Date; and
WHEREAS, each Right represents the right of the holder thereof to purchase one one-thousandth of a share of Series A
Participating Preferred Stock (as such number may hereafter be adjusted pursuant to the provisions hereof), upon the terms and subject to the conditions set forth herein, having the rights, preferences and privileges set forth in the Certificate of
Designations of Series A Participating Preferred Stock, filed with the Republic of the Marshall Islands, Registrar of Corporations, on November 29, 2021, attached hereto as Exhibit A.
NOW THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the parties hereby agree as
follows:
1. Certain Definitions. For purposes of this Rights Agreement, the following terms have the meanings indicated:
"Acquiring Person" shall mean any Person (as hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall be the Beneficial Owner (as hereinafter defined) of 15% or more of the shares of Common Stock then outstanding, but shall not include the Company, any Subsidiary (as hereinafter
defined) of the Company or any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person holding shares of Common Stock for or pursuant to the terms of any such plan. Notwithstanding the foregoing, no Person shall be
deemed to be an Acquiring Person if such Person shall become the Beneficial Owner of 15% or more of the shares of Common Stock then outstanding solely as a result of a grant under a Company equity incentive plan, a dividend or distribution paid or made
by the Company on the outstanding shares of Common Stock in shares of Common Stock or pursuant to a split or subdivision of the outstanding shares of Common Stock; provided, however, that a Person who (i) becomes the Beneficial Owner of
15% or more of the shares of Common Stock of the Company then outstanding by reason of a grant under a Company equity incentive plan, dividend or distribution paid or made by the Company on the outstanding shares of Common Stock in shares of Common
Stock or pursuant to a split or subdivision of the outstanding shares of Common Stock and (ii) becomes the Beneficial Owner of any additional shares of Common Stock of the Company (other than pursuant to an additional grant under a Company equity
incentive plan, dividend or distribution paid or made by the Company on the outstanding shares of Common Stock in shares of Common Stock or pursuant to a split or subdivision of the outstanding shares of Common Stock), shall be deemed to be an
Acquiring Person unless upon becoming the Beneficial Owner of such additional shares of Common Stock of the Company such Person does not beneficially own 15% or more of the shares of Common Stock of the Company then outstanding. Notwithstanding the
foregoing, no Person shall be deemed to be an Acquiring Person as the result of an acquisition of shares of Common Stock by the Company or any subsidiary of the Company or an employee benefit plan of the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially owned by such Person to 15% or more of the shares of Common Stock of the Company then outstanding; provided, however, that a Person who (i) becomes the Beneficial
Owner of 15% or more of the shares of Common Stock of the Company then outstanding by reason of share purchases by the Company or any Subsidiary of the Company or an employee benefit plan of the Company and (ii) after such share purchases, becomes the
Beneficial Owner of any additional shares of Common Stock of the Company (other than pursuant to a grant under a Company equity incentive plan, a dividend or distribution paid or made by the Company on the outstanding shares of Common Stock in shares
of Common Stock or pursuant to a split or subdivision of the outstanding shares of Common Stock), shall be deemed to be an Acquiring Person unless upon becoming the Beneficial Owner of such additional shares of Common Stock of the Company such Person
does not beneficially own 15% or more of the shares of Common Stock of the Company then outstanding. Notwithstanding the foregoing, if the Company's Board of Directors determines in good faith that a Person who would otherwise be an "Acquiring Person,"
as defined pursuant to the foregoing provisions of this paragraph, has become such inadvertently (including, without limitation, because (A) such Person was unaware that it beneficially owned a percentage of the shares of Common Stock that would
otherwise cause such Person to be an "Acquiring Person," as defined pursuant to the foregoing provisions of this paragraph, or (B) such Person was aware of the extent of the shares of Common Stock it beneficially owned but had no actual knowledge of
the consequences of such beneficial ownership under this Rights Agreement) and without any intention of changing or influencing control of the Company, and if such Person divested or divests as promptly as practicable a sufficient number of shares of
Common Stock so that such Person would no longer be an Acquiring Person, as defined pursuant to the foregoing provisions of this paragraph, then such Person shall not be deemed to be or have ever been an Acquiring Person for any purposes of this Rights
Agreement; provided, that within ten (10) Business Days of the Board of Directors of the Company making any determination under this sentence, the Company shall provide written notice of such determination to the Rights Agent. Notwithstanding the
foregoing, Diana Shipping Inc., Tuscany Shipping Corp., Abra Marinvest Inc., Eleftherios Papatrifon and NEAR Foundation, a Swiss foundation, individually or together with one or more of their respective Affiliates, shall not be or become an “Acquiring
Person” as defined herein, and, provided further, that if, as of the date hereof, any Person is the Beneficial Owner of 15% or more of the shares of Common Stock outstanding, such Person shall not be or become an "Acquiring Person," as defined herein,
unless and until such time as such Person shall become the Beneficial Owner of additional shares of Common Stock in an amount in excess of 2% of the Company's then outstanding common stock, (excluding shares acquired pursuant to a grant under a Company
equity incentive plan, a dividend or distribution paid or made by the Company on the outstanding shares of Common Stock in shares of Common Stock or pursuant to a split or subdivision of the outstanding shares of Common Stock), unless upon becoming the
Beneficial Owner of such additional shares of Common Stock, such Person is not then the beneficial owner of 15% or more of the shares of Common Stock then outstanding.
"Adjustment fraction" shall have the meaning set forth in Section 11(a)(i) hereof.
"Affiliate" and "Associate" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act (as hereinafter defined), as in effect on the date of this Rights Agreement.
A Person shall be deemed the "Beneficial Owner" of, and shall be deemed to "Beneficially Own," any securities:
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(i)
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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); or
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(ii)
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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); or
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(iii)
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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.
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"Book Entry Shares" shall have meaning set forth in Section 3.
"Business Day" shall mean any day other than a Saturday, a Sunday or a day on which banking institutions in New York
and New Jersey are authorized or obligated by law or executive order to close.
"Close of Business" on any given date shall mean 5:00 P.M., New York time, on such date; provided, however,
that if such date is not a Business Day it shall mean 5:00 P.M., New York time, on the next succeeding Business Day.
"Common Stock" shall have the meaning set forth in the preamble. Common Stock when used with reference to any Person
other than the Company shall mean the capital stock (or equity interest) with the greatest voting power of such other Person or, if such other Person is a Subsidiary of another Person, the Person or Persons which ultimately control such first-mentioned
Person.
"Common Stock Equivalents" shall have the meaning set forth in Section 11(a)(iii) hereof.
"Company" shall have the meaning set forth in the preamble, subject to the terms of Section 13(a)(iii)(C) hereof.
"Current Per Share Market Price" of any security (a "Security" for purposes of this definition), for all computations
other than those made pursuant to Section 11(a)(iii) hereof, shall mean the average of the daily closing prices per share of such Security for the thirty (30) consecutive Trading Days immediately prior to but not including such date, and for purposes
of computations made pursuant to Section 11(a)(iii) hereof, the Current Per Share Market Price of any Security on any date shall be deemed to be the average of the daily closing prices per share of such Security for the ten (10) consecutive Trading
Days immediately prior to but not including such date; provided, however, that in the event that the Current Per Share Market Price of the Security is determined during a period following the announcement by the issuer of such Security
of (i) a dividend or distribution on such Security payable in shares of such Security or securities convertible into such shares or (ii) any subdivision, combination or reclassification of such Security, and prior to the expiration of the applicable
thirty (30) Trading Day or ten (10) Trading Day period, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification, then, and in each such case, the Current Per Share Market
Price shall be appropriately adjusted to reflect the current market price per share equivalent of such Security. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Security is not
listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Security is listed or
admitted to trading or, if the Security is not listed or admitted to trading on any national securities exchange, the last sale price or, if such last sale price is not reported, the average of the high bid and low asked prices in the over- the-counter
market, as reported by Nasdaq or such other system then in use, or, if on any such date the Security is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in
the Security selected by the Board of Directors of the Company. If on any such date no market maker is making a market in the Security, the fair value of such shares on such date as determined in good faith by the Board of Directors of the Company
shall be used. If the Preferred Shares are not publicly traded, the Current Per Share Market Price of the Preferred Shares shall be conclusively deemed to be the Current Per Share Market Price of the shares of Common Stock as determined pursuant to
this definition, as appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date hereof, multiplied by 1000. If the Security is not publicly held or so listed or traded, Current Per Share Market
Price shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes.
"Current Value" shall have the meaning set forth in Section 11(a)(iii) hereof.
"Distribution Date" shall mean the earlier of (i) the Close of Business on the tenth calendar day after the Shares
Acquisition Date (or, if the tenth calendar day after the Shares Acquisition Date occurs before the Record Date, the Close of Business on the Record Date) or (ii) the Close of Business on the tenth Business Day (or such later date as may be determined
by action of the Company's Board of Directors) after the date that a tender or exchange offer by any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any
Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan) is first published or sent or given within the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act, if,
assuming the successful consummation thereof, such Person would be an Acquiring Person.
"Equivalent Shares" shall mean Preferred Shares and any other class or series of capital stock of the Company which is
entitled to the same rights, privileges and preferences as the Preferred Shares.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Exchange Ratio" shall have the meaning set forth in Section 24(a) hereof.
"Exercise Price" shall have the meaning set forth in Section 4(a) hereof.
"Expiration Date" shall mean the earliest to occur of: (i) the Close of Business on the Final Expiration Date, (ii)
the Redemption Date, or (iii) the time at which the Board of Directors orders the exchange of the Rights as provided in Section 24 hereof.
"Final Expiration Date" shall mean November 28, 2031.
"Nasdaq" shall mean the National Association of Securities Dealers, Inc. Automated Quotations System.
"Person" shall mean any individual, firm, corporation, limited liability company, partnership, trust, association,
limited liability partnership, joint venture, unincorporated organization or other entity, and shall include any successor (by merger or otherwise) thereof or thereto.
"Post-Event Transferee" shall have the meaning set forth in Section 7(e) hereof.
"Preferred Shares" shall mean shares of Series A Participating Preferred Stock, $0.01 par value, of the Company having
the rights and preferences set forth in the Form of Certificate of Designations, Preferences and Rights included as Exhibit A to this Stockholders' Rights Plan.
"Pre-Event Transferee" shall have the meaning set forth in Section 7(e) hereof.
"Principal Party" shall have the meaning set forth in Section 13(b) hereof.
"Record Date" shall have the meaning set forth in the recitals at the beginning of this Rights Agreement.
"Redemption Date" shall have the meaning set forth in Section 23(a) hereof.
"Redemption Price" shall have the meaning set forth in Section 23(a) hereof.
"Rights Agent" shall have the meaning set forth in the preamble and any successor or replacement as provided in
Sections 19 and 21 hereof.
"Rights Certificate" shall mean a certificate substantially in the form attached hereto as Exhibit B.
"Section 11(a)(ii) Trigger Date" shall have the meaning set forth in Section 11(a)(iii) hereof.
"Section 13 Event" shall mean any event described in clause (i), (ii) or (iii) of Section 13(a) hereof.
"SEC" shall mean the U.S. Securities and Exchange Commission or any successor thereto.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shares Acquisition Date" shall mean the first date of public announcement (which, for purposes of this definition
shall include, without limitation, a report filed pursuant to Section 13(d) under the Exchange Act) by the Company or an Acquiring Person that an Acquiring Person has become such; provided that, if such Person is determined not to have become an
Acquiring Person as defined herein, then no Shares Acquisition Date shall be deemed to have occurred.
"Spread" shall have the meaning set forth in Section 11(a)(iii) hereof.
"Subsidiary" of any Person shall mean any corporation or other entity of which an amount of voting securities
sufficient to elect a majority of the directors or Persons having similar authority of such corporation or other entity is beneficially owned, directly or indirectly, by such Person, or any corporation or other entity otherwise controlled by such
Person.
"Substitution Period" shall have the meaning set forth in Section 11(a)(iii) hereof.
"Summary of Rights" shall mean a summary of this Rights Agreement substantially in the form attached hereto as Exhibit
C.
"Total Exercise Price" shall have the meaning set forth in Section 4(a) hereof.
"Trading Day" shall mean a day on which the principal national securities exchange on which a referenced security is
listed or admitted to trading is open for the transaction of business or, if a referenced security is not listed or admitted to trading on any national securities exchange, a Business Day.
A "Triggering Event" shall be deemed to have occurred upon any Person, becoming an Acquiring Person.
2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act as rights agent for the Company
in accordance with the express terms and conditions hereof (and no implied terms or conditions), and the Rights Agent hereby accepts such appointment. The Company may from time to time appoint such co-Rights Agent as it may deem necessary or desirable,
upon ten (10) calendar days' prior written notice to the Rights Agent. In the event the Company appoints one or more co-Rights Agents, the respective duties of the Rights Agent and any co- Rights Agents under the provisions of this Rights Agreement
shall be as the Company shall reasonably determine and the Company shall notify in writing, the Rights Agent and any co-Rights Agent of such duties. The Rights Agent shall have no duty to supervise, and in no event shall be liable for, the acts or
omissions of any such co-Rights Agent appointed by the Company.
3. Issuance of Rights Certificates.
(a) Until the Distribution Date, (i) the Rights will be evidenced (subject to the provisions of Sections 3(b) and 3(c)
hereof) by the certificates for shares of Common Stock registered in the names of the holders thereof or, in the case of uncertificated shares of Common Stock registered in book-entry form ("Book Entry Shares"), by notation in book entry
accounts reflecting the ownership of such shares of Common Stock (which certificates and Book Entry Shares, as applicable, shall also be deemed to be Rights Certificates) and not by separate Rights Certificates and (ii) the right to receive Rights
Certificates will be transferable only in connection with the transfer of shares of Common Stock. Until the earlier of the Distribution Date or the Expiration Date, the surrender for transfer of certificates for shares of Common Stock shall also
constitute the surrender for transfer of the Rights associated with the shares of Common Stock represented thereby. As soon as practicable after the Distribution Date, the Company will prepare and execute, and upon written request of the Company, the
Rights Agent will countersign (in manual or facsimile form), and the Company will send or cause to be sent (and the Rights Agent will, if requested and provided with all necessary information and documents, in the discretion of the Rights Agent, at the
expense of the Company, send or cause to be sent) by first-class, postage-prepaid mail, to each record holder of shares of Common Stock as of the Close of Business on the Distribution Date, at the address of such holder shown on the records of the
Company, or the transfer agent or registrar for the Common Stock, a Rights Certificate, in substantially the form of Exhibit B hereto, evidencing one Right for each share of Common Stock so held, subject to adjustment as provided herein, other
than to any Acquiring Person or Associates or Affiliates thereof, pursuant to Section 11(a)(ii) of this Rights Agreement. In the event that an adjustment in the number of Rights per share of Common Stock has been made pursuant to Section 11 hereof,
then at the time of distribution of the Rights Certificates, the Company shall make the necessary and appropriate rounding adjustments (in accordance with Section 14(a) hereof) so that Rights Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights. As of the Distribution Date, the Rights will be evidenced solely by such Rights Certificates and may be transferred by the transfer of the Rights Certificates as permitted hereby,
separately and apart from any transfer of shares of Common Stock, and the holders of such Rights Certificates as listed in the records of the Company or any transfer agent or registrar for the Rights shall be the record holders thereof.
The Company shall promptly notify the Rights Agent in writing of the occurrence of the Distribution Date. Until such written
notice is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes that the Distribution Date has not occurred.
(b) On the Record Date or as soon as practicable thereafter, the Company will send a copy of the Summary of Rights by
first-class, postage-prepaid mail, to each record holder of shares of Common Stock as of the Close of Business on the Record Date, at the address of such holder shown on the records of the Company or the transfer agent or registrar for the Common
Stock. With respect to certificates for shares of Common Stock and Book Entry Shares, as applicable, outstanding as of the Record Date, until the Distribution Date, the Rights will be evidenced by such certificates or Book Entry Shares, registered in
the names of the holders thereof together with the Summary of Rights. Until the Distribution Date (or, if earlier, the Expiration Date), the surrender for transfer of any certificate for shares of Common Stock outstanding on the Record Date, with or
without a copy of the Summary of Rights, shall also constitute the transfer of the Rights associated with the shares of Common Stock represented thereby.
(c) Unless the Board of Directors by resolution adopted at or before the time of the issuance of any shares of Common Stock
specifies to the contrary, Rights shall be issued in respect of all shares of Common Stock that are issued after the Record Date but prior to the earlier of the Distribution Date or the Expiration Date or, in certain circumstances provided in Section
22 hereof, after the Distribution Date. Certificates and Book Entry Shares representing such shares of Common Stock shall also be deemed to be certificates for Rights, and shall bear a legend in substantially the following form:
THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF TO CERTAIN RIGHTS AS SET FORTH IN A STOCKHOLDERS RIGHTS
AGREEMENT BETWEEN OCEANPAL INC. AND COMPUTERSHARE TRUST COMPANY, N.A. (OR ANY SUCCESSOR RIGHTS AGENT), AS THE RIGHTS AGENT, DATED AS OF NOVEMBER 29, 2021, AS AMENDED AND RESTATED ON DECEMBER 16, 2022, SEPTEMBER 6, 2024, JANUARY 22, 2025 AND OCTOBER 27,
2025 AND AS MAY BE SUPPLEMENTED OR FURTHER AMENDED FROM TIME TO TIME (THE "RIGHTS AGREEMENT"), THE TERMS OF WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE AND A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF OCEANPAL INC. UNDER
CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, SUCH RIGHTS WILL BE EVIDENCED BY SEPARATE CERTIFICATES AND WILL NO LONGER BE EVIDENCED BY THIS CERTIFICATE. OCEANPAL INC. WILL MAIL TO THE HOLDER OF THIS CERTIFICATE A COPY OF THE RIGHTS
AGREEMENT WITHOUT CHARGE AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR. UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO, OR HELD BY, ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE
THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT), WHETHER CURRENTLY HELD BY OR ON BEHALF OF SUCH PERSON OR BY ANY SUBSEQUENT HOLDER, MAY BECOME NULL AND VOID.
With respect to such certificates or Book Entry Shares, as applicable, containing the foregoing legend, until the earlier of (i) the
Distribution Date or (ii) the Expiration Date, the Rights associated with the shares of Common Stock represented by such certificates or Book Entry Shares, as applicable, shall be evidenced by such certificates or Book Entry Shares, as applicable,
alone, and the surrender for transfer of any such certificate or Book Entry Shares, as applicable, (with or without a copy of the Summary of Rights) shall also constitute the transfer of the Rights associated with the shares of Common Stock represented
thereby.
(d) In the event that the Company purchases or acquires any shares of Common Stock after the Record Date but prior to the
Distribution Date, any Rights associated with such shares of Common Stock shall be deemed canceled and retired so that the Company shall not be entitled to exercise any Rights associated with the shares of Common Stock which are no longer outstanding.
4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to purchase shares of Series A Preferred Stock and of assignment to be
printed on the reverse thereof) shall be substantially in the form of Exhibit B hereto and may have such marks of identification or designation and such legends, summaries or endorsements printed thereon as the Company may deem appropriate (but
which do not affect the rights, duties, liabilities, or responsibilities of the Rights Agent) and as are not inconsistent with the provisions of this Rights Agreement, or as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock exchange or a national market system, on which the Rights may from time to time be listed or traded, or to conform to usage. Subject to the provisions of Section 11 and
Section 22 hereof, the Rights Certificates, whenever distributed, shall be dated as of the Record Date (or in the case of Rights issued with respect to shares of Common Stock issued by the Company after the Record Date, as of the date of issuance of
such shares of Common Stock) and on their face shall entitle the holders thereof to purchase such number of one one-thousandth of a Preferred Share as shall be set forth therein at the price set forth therein (such exercise price per one one-thousandth
of a Preferred Share being hereinafter referred to as the "Exercise Price" and the aggregate Exercise Price of all Preferred Shares issuable upon exercise of one Right being hereinafter referred to as the "Total Exercise Price"), but the
number and type of securities purchasable upon the exercise of each Right and the Exercise Price shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) or Section 22 hereof that represents Rights beneficially owned by:
(i) an Acquiring Person or any Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes such or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom such Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (B) a transfer which the Company's
Board of Directors has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect avoidance of Section 7(e) hereof, and any Rights Certificate issued pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights Certificate referred to in this sentence, shall contain (to the extent the Rights Agent has received written notice thereof and to the extent feasible) a legend in substantially the following
form:
THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION
7(e) OF THE RIGHTS AGREEMENT
The Company shall give written notice to the Rights Agent promptly after it becomes aware of the existence and identity of any Acquiring Person
or any Affiliate or Associate thereof. Until such notice is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes that no Person has become an Acquiring Person or an Affiliate or Associate of an Acquiring Person. The
Company shall instruct the Rights Agent in writing of the Rights which should be so legended.
5. Countersignature and Registration.
(a) The Rights Certificates shall be duly executed on behalf of the Company by its Chairman of the Board, its Chief Executive
Officer, its Chief Financial Officer, its President or any Vice President, either manually or by facsimile signature, and by the Secretary or an Assistant Secretary of the Company, either manually or by facsimile signature, and shall have affixed
thereto the Company's seal (if any) or a facsimile thereof. The Rights Certificates shall be, either manually or by facsimile signature, countersigned by the Rights Agent and shall not be valid for any purpose unless so countersigned. In case any
officer of the Company who shall have signed any of the Rights Certificates shall cease to be such officer of the Company before countersignature by the Rights Agent and issuance and delivery by the Company, such Rights Certificates, nevertheless, may
be countersigned by the Rights Agent and issued and delivered by the Company with the same force and effect as though the person who signed such Rights Certificates on behalf of the Company had not ceased to be such officer of the Company; and any
Rights Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Rights Certificate, shall be a proper officer of the Company to sign such Rights Certificate, although at the date of the execution
of this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, receipt by the Rights Agent of written notice to that effect and all other relevant
information referred to in Section 3(a), the Rights Agent will keep or cause to be kept, at its office designated for such purposes, books for registration and transfer of the Rights Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Rights Certificates, the number of Rights evidenced on its face by each of the Rights Certificates and the date of each of the Rights Certificates.
6. Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
(a) Subject to the provisions of Sections 7(e), 14 and 24 hereof, at any time after the Close of Business on the Distribution
Date, and at or prior to the Close of Business on the Expiration Date, any Rights Certificate or Rights Certificates may be transferred, split up, combined or exchanged for another Rights Certificate or Rights Certificates, entitling the registered
holder to purchase a like number of one one-thousandth of a Preferred Share (or, following a Triggering Event, other securities, cash or other assets, as the case may be) as the Rights Certificate or Rights Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer, split up, combine or exchange any Rights Certificate or Rights Certificates shall make such request in writing delivered to the Rights Agent, and shall surrender the Rights Certificate or
Rights Certificates to be transferred, split up, combined or exchanged at the office of the Rights Agent designated for such purpose, along with a signature guarantee and such other and further documentation as the Company or the Rights Agent may
reasonably request. The Rights Certificates are transferable only on the registry books of the Rights Agent. Neither the Rights Agent nor the Company shall be obligated to take any action whatsoever with respect to the transfer of any such surrendered
Rights Certificate or Rights Certificates until the registered holder shall have properly completed and duly signed the certificate contained in the form of assignment on the reverse side of such Rights Certificate and shall have provided such
additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) thereof and of the Rights evidenced thereby and the Affiliates and Associates of such Beneficial Owner (or former Beneficial Owner) as the Company or the Rights
Agent shall request. Thereupon the Rights Agent shall, subject to Sections 7(e), 14 and 24 hereof, countersign and deliver to the person entitled thereto a Rights Certificate or Rights Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or charge that may be imposed in connection with any transfer, split up, combination or exchange of Rights Certificates as required by Section 9(e) hereof. If and to the extent the Company does
require payment of any such taxes or charges, the Company shall give the Rights Agent prompt written notice thereof and the Rights Agent shall not deliver any Rights Certificate unless and until the Rights Agent is satisfied that such payments have
been made, and the Rights Agent shall forward any such sum collected by it to the Company or to such Persons as the Company shall specify by written notice. The Rights Agent shall have no duty or obligation to take any action with respect to a Rights
holder under any Section of this Rights Agreement which requires the payment by such Rights holder of applicable taxes and/or charges unless and until the Rights Agent is satisfied that such taxes and/or charges have been paid.
(b) Upon receipt by the Company and the Rights Agent of evidence satisfactory to them of the loss, theft, destruction or
mutilation of a Rights Certificate, along with a signature guarantee and such other and further documentation as the Company or the Rights Agent may reasonably request, and, in case of loss, theft or destruction, of indemnity or security satisfactory
to them, and reimbursement to the Company and the Rights Agent of all reasonable expenses incidental thereto, and, in the case of mutilation, upon surrender to the Rights Agent and cancellation of the Rights Certificate if mutilated, the Company will
make and deliver a new Rights Certificate of like tenor to the Rights Agent for countersignature and delivery to the registered holder in lieu of the Rights Certificate so lost, stolen, destroyed or mutilated.
7. Exercise of Rights; Exercise Price; Expiration Date of Rights.
(a) Subject to Sections 7(e), 23(b) and 24(b) hereof, the registered holder of any Rights Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein) in whole or in part at any time after the Distribution Date and prior to the Close of Business on the Expiration Date by surrender of the Rights Certificate, with the form of election to purchase
and the certificate on the reverse side thereof properly completed and duly executed (with such signature duly guaranteed), to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the
Exercise Price for each one one-thousandth of a Preferred Share (or, following a Triggering Event, other securities, cash or other assets as the case may be) as to which the Rights are exercised, and an amount equal to any tax or charge required to be
paid under Section 9(e) hereof, by certified check, cashier's check, bank draft or money order payable to the order of the Company.
(b) The Exercise Price for each one one-thousandth of a Preferred Share issuable pursuant to the exercise of a Right shall
initially be twenty-five U.S. Dollars ($25.00), shall be subject to adjustment from time to time as provided in Sections 11 and 13 hereof and shall be payable in lawful money of the United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the
certificate properly completed and duly executed (with such signature duly guaranteed), accompanied by payment of the Exercise Price for the number of one one-thousandth of a Preferred Share (or, following a Triggering Event, other securities, cash or
other assets as the case may be) to be purchased and an amount equal to any applicable tax or charge required to be paid by the holder of such Rights Certificate in accordance with Section 9(e) hereof, the Rights Agent shall, subject to Section 20(k)
hereof, thereupon promptly (i) (A) requisition from any transfer agent of the Preferred Shares (or make available, if the Rights Agent is the transfer agent for the Preferred Shares) a certificate or certificates for the number of one one-thousandth of
a Preferred Share (or, following a Triggering Event, other securities, cash or other assets as the case may be) to be purchased and the Company hereby irrevocably authorizes its transfer agent to comply with all such requests or (B) if the Company
shall have elected to deposit the total number of one one-thousandth of a Preferred Share (or, following a Triggering Event, other securities, cash or other assets as the case may be) issuable upon exercise of the Rights hereunder with a depositary
agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandth of a Preferred Share (or, following a Triggering Event, other securities, cash or other assets as the case may be) as are to be purchased
(in which case certificates for the Preferred Shares (or, following a Triggering Event, other securities, cash or other assets as the case may be) represented by such receipts shall be deposited by the transfer agent with the depositary agent) and the
Company hereby directs the depositary agent to comply with such request, (ii) when necessary to comply with this Rights Agreement, requisition from the Company the amount of cash to be paid in lieu of issuance of fractional shares in accordance with
Section 14 hereof, (iii) after receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such
holder and (iv) when necessary to comply with this Rights Agreement, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Rights Certificate. The payment of the Exercise Price (as such amount may be reduced
(including to zero) pursuant to Section 11(a)(iii) hereof) and an amount equal to any applicable tax or charge required to be paid by the holder of such Rights Certificate in accordance with Section 9(e) hereof, may be made in cash or by certified bank
check, cashier's check or bank draft payable to the order of the Company. In the event that the Company is obligated to issue securities of the Company other than Preferred Shares, pay cash and/or distribute other property pursuant to Section 11(a) or
Section 14 hereof, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when necessary to comply with this Rights Agreement.
(d) In case the registered holder of any Rights Certificate shall exercise less than all the Rights evidenced thereby, a new
Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Rights Certificate or to his or her duly authorized assigns, subject to the provisions of Section
14 hereof.
(e) Notwithstanding anything in this Rights Agreement to the contrary, from and after the first occurrence of a Triggering
Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person
becomes such (a "Post-Event Transferee"), (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer which the Company's Board of Directors has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7(e) (a "Pre-Event
Transferee") or (iv) any subsequent transferee receiving transferred Rights from a Post-Event Transferee or a Pre-Event Transferee, either directly or through one or more intermediate transferees, shall become null and void without any further
action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Rights Agreement or otherwise. The Company shall use all reasonable efforts to ensure that the provisions of this
Section 7(e) and Section 4(b) hereof are complied with, but neither the Company nor the Rights Agent shall have any liability to any holder of Rights Certificates or to any other Person as a result of the Company's failure to make any determinations
with respect to an Acquiring Person or any of such Acquiring Person's Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Rights Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with respect to a registered holder upon the occurrence of any purported transfer or exercise as set forth in this Section 7 unless such registered holder shall, in addition to having complied with
the requirements of Section 7(a), have (i) properly completed and duly signed the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) thereof and of the Rights evidenced thereby or Affiliates and Associates of such Beneficial Owner (or former Beneficial Owner) as the Company or the Rights Agent
shall reasonably request.
8. Cancellation and Destruction of Rights Certificates. All Rights Certificates surrendered for the purpose of
exercise, transfer, split up, combination or exchange shall, if surrendered to the Company or to any of its agents, be delivered to the Rights Agent for cancellation or in canceled form, or, if surrendered to the Rights Agent, shall be canceled by it,
and no Rights Certificates shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Rights Agreement. The Company shall deliver to the Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any Rights Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. The Rights Agent shall deliver all canceled Rights Certificates to the Company, or shall, at the written request of the Company,
destroy or cause to be destroyed such canceled Rights Certificates, and in such case shall deliver a certificate of destruction thereof to the Company.
9. Reservation and Availability of Preferred Shares.
(a) The Company covenants and agrees that it will use its best efforts to cause to be reserved and kept available out of its
authorized and unissued Preferred Shares not reserved for another purpose (and, following the occurrence of a Triggering Event, out of its authorized and unissued shares of Common Stock and/or other securities), the number of Preferred Shares (and,
following the occurrence of the Triggering Event, Common Stock and/or other securities) that will be sufficient to permit the exercise in full of all outstanding Rights.
(b) If the Company shall hereafter list any of its Preferred Shares on a national securities exchange, then so long as the
Preferred Shares (and, following the occurrence of a Triggering Event, shares of Common Stock and/or other securities) issuable and deliverable upon exercise of the Rights may be listed on such exchange, the Company shall use its best efforts to cause,
from and after such time as the Rights become exercisable (but only to the extent that it is reasonably likely that the Rights will be exercised), all shares reserved for such issuance to be listed on such exchange upon official notice of issuance upon
such exercise.
(c) The Company shall use its best efforts to (i) file, as soon as practicable following the earliest date after the first
occurrence of a Triggering Event in which the consideration to be delivered by the Company upon exercise of the Rights is described in Section 11(a)(ii) or Section 11(a)(iii) hereof, or as soon as is required by law following the Distribution Date, as
the case may be, a registration statement under the Securities Act with respect to the securities purchasable upon exercise of the Rights on an appropriate form, (ii) cause such registration statement to become effective as soon as practicable after
such filing and (iii) cause such registration statement to remain effective (with a prospectus at all times meeting the requirements of the Securities Act) until the earlier of (A) the date as of which the Rights are no longer exercisable for such
securities and (B) the date of expiration of the Rights. The Company may temporarily suspend, for a period not to exceed ninety (90) days after the date set forth in clause (i) of the first sentence of this Section 9(c), the exercisability of the
Rights in order to prepare and file such registration statement and permit it to become effective. Upon any such suspension, the Company shall issue a public announcement and notify the Rights Agent in writing that the exercisability of the Rights has
been temporarily suspended, as well as issue a public announcement and written notification to the Rights Agent at such time as the suspension is no longer in effect. The Company will also take such action as may be appropriate under, or to ensure
compliance with, the securities or "blue sky" laws of the various states in connection with the exercisability of the Rights. Notwithstanding any provision of this Rights Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction, unless the requisite qualification in such jurisdiction shall have been obtained, or an exemption therefrom shall be available, and until a registration statement has been declared effective.
(d) The Company covenants and agrees that it will take all such action as may be necessary to ensure that all Preferred
Shares (or other securities of the Company) delivered upon exercise of Rights shall, at the time of delivery of the certificates for such securities (subject to payment of the Exercise Price), be duly and validly authorized and issued and fully paid
and non-assessable shares.
(e) The Company further covenants and agrees that it will pay when due and payable any and all federal and state taxes or
charges which may be payable in respect of the original issuance or delivery of the Rights Certificates or of any Preferred Shares (or other securities of the Company) upon the exercise of Rights. The Company shall not, however, be required to pay any
tax which may be payable in respect of any transfer or delivery of Rights Certificates to a person other than, or the issuance or delivery of certificates or depositary receipts for the Preferred Shares (or other securities of the Company) in a name
other than that of, the registered holder of the Rights Certificate evidencing Rights surrendered for exercise or to issue or to deliver any certificates or depositary receipts for Preferred Shares (or other securities of the Company) upon the exercise
of any Rights until any such tax or charge shall have been paid (any such tax or charge being payable by the holder of such Rights Certificate at the time of surrender) or until it has been established to the Company's or the Rights Agent's
satisfaction that no such tax or charge is due.
10. Record Date. Each Person in whose name any certificate for a number of one one-thousandth of a Preferred Share
(or other securities of the Company) is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of Preferred Shares (or other securities of the Company) represented thereon, and such certificate shall be
dated, the date upon which the Rights Certificate evidencing such Rights was duly surrendered and payment of the Total Exercise Price with respect to which the Rights have been exercised (and any applicable taxes) was made; provided, however,
that if the date of such surrender and payment is a date upon which the transfer books of the Company are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate shall be dated, the next succeeding
Business Day on which the transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Rights Certificate shall not be entitled to any rights of a holder of Preferred Shares (or other securities of the
Company) for which the Rights shall be exercisable, including, without limitation, the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings
of the Company, except as provided herein.
11. Adjustment of Exercise Price, Number of Shares or Number of Rights. The Exercise Price, the number and kind of
shares or other property covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11.
(a) (i) Notwithstanding anything in this Rights Agreement to the contrary, in the event the Company shall at any time after
the date of this Rights Agreement (A) declare a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the outstanding Preferred Shares (by reverse stock split or otherwise) into a
smaller number of Preferred Shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or
surviving entity), then, in each such event, except as otherwise provided in Section 11 and Section 7(e) hereof: (1) the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination
or reclassification shall be adjusted so that the Exercise Price thereafter shall equal the result obtained by dividing the Exercise Price in effect immediately prior to such time by a fraction (the "Adjustment Fraction"), the numerator of which
shall be the total number of Preferred Shares (or shares of capital stock issued in such reclassification of the Preferred Shares) outstanding immediately following such time and the denominator of which shall be the total number of Preferred Shares
outstanding immediately prior to such time; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company
issuable upon exercise of such Right; and (2) the number of one one-thousandth of a Preferred Share (or share of such other capital stock) issuable upon the exercise of each Right shall equal the number of one one-thousandth of a Preferred Share (or
share of such other capital stock) as was issuable upon exercise of a Right immediately prior to the occurrence of the event described in clauses (A)-(D) of this Section 11(a)(i), multiplied by the Adjustment Fraction; provided, however,
that, no such adjustment shall be made pursuant to this Section 11(a)(i) to the extent that there shall have simultaneously occurred an event described in clause (A), (B), (C) or (D) of Section 11(n) with a proportionate adjustment being made
thereunder. Each share of Common Stock that shall become outstanding after an adjustment has been made pursuant to this Section 11(a)(i) shall have associated with it the number of Rights, exercisable at the Exercise Price and for the number of one
one-thousandth of a Preferred Share (or shares of such other capital stock) as one share of Common Stock has associated with it immediately following the adjustment made pursuant to this Section 11(a)(i).
(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.
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 Acquiring Person) shall be null and void without any further action and any holder of such Rights shall thereafter have no right whatsoever with respect to such Rights, under any provision of this Rights
Agreement or otherwise. No Rights Certificate shall be issued pursuant to Section 3 that represents Rights Beneficially Owned by an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate or
nominee thereof; no Rights Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of
such Acquiring Person, Associate or Affiliate; and any Rights Certificate delivered to the Rights Agent for transfer to an Acquiring Person whose Rights would be null and void pursuant to the preceding sentence or any Associate or Affiliate thereof or
to any nominee of such Acquiring Person, Associate or Affiliate shall be cancelled. The Company shall give the Rights Agent written notice of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, and
the Rights Agent may rely on such notice in carrying out its duties under this Rights Agreement and shall be deemed not to have any knowledge of the identity of any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing
unless and until it shall have received such notice.
(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 Certificate 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 surrender for exercise of a Right and without requiring payment of the Exercise Price, Common Stock (to the extent available), except to the extent that
the Company has not obtained any necessary stockholder or regulatory approval for such issuance, and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. If the Company's Board of Directors shall determine in
good faith that it is likely that sufficient additional Common Stock could be authorized for issuance upon exercise in full of the Rights or that any necessary regulatory approval for such issuance will be obtained, the thirty (30) day period set forth
above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the authorization of such additional shares or take action to obtain
such regulatory approval (such period, as it may be extended, the "Substitution Period"). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the
Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any
authorization of additional shares, to take any action to obtain any required regulatory approval and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any
such suspension, the Company shall issue a public announcement (and provide prompt written notice to the Rights Agent) stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement (and provide prompt
written notice to the Rights Agent) at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock shall be the Current Per Share Market Price of the Common Stock on the Section 11(a)(ii)
Trigger Date and the value of any Common Stock Equivalent shall be deemed to have the same value as the Common Stock on such date.
(b) In case the Company shall, at any time after the date of this Rights Agreement, fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Shares entitling such holders (for a period expiring within forty-five (45) calendar days after such record date) to subscribe for or purchase Preferred Shares or Equivalent Shares or securities
convertible into Preferred Shares or Equivalent Shares at a price per share (or having a conversion price per share, if a security convertible into Preferred Shares or Equivalent Shares) less than the then Current Per Share Market Price of the
Preferred Shares or Equivalent Shares on such record date, then, in each such case, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of Preferred Shares and Equivalent Shares (if any) outstanding on such record date, plus the number of Preferred Shares or Equivalent Shares, as the case may be, which the aggregate offering price of
the total number of Preferred Shares or Equivalent Shares, as the case may be, to be offered or issued (and/or the aggregate initial conversion price of the convertible securities to be offered or issued) would purchase at such current market price,
and the denominator of which shall be the number of Preferred Shares and Equivalent Shares (if any) outstanding on such record date, plus the number of additional Preferred Shares or Equivalent Shares, as the case may be, to be offered for subscription
or purchase (or into which the convertible securities so to be offered are initially convertible); provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par
value of the shares of capital stock of the Company issuable upon exercise of one Right. In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be as
determined in good faith by the Company's Board of Directors, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Preferred Shares and Equivalent
Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights, options
or warrants are not so issued, the Exercise Price shall be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall, at any time after the date of this Rights Agreement, fix a record date for the making of a
distribution to all holders of the Preferred Shares or of any class or series of Equivalent Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving entity) of
evidences of indebtedness or assets (other than a regular quarterly cash dividend, if any, or a dividend payable in Preferred Shares) or subscription rights, options or warrants (excluding those referred to in Section 11(b)), then, in each such case,
the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Per Share Market Price of a
Preferred Share or an Equivalent Share on such record date, less the fair market value per Preferred Share or Equivalent Share (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be binding and conclusive for all purposes on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or
warrants applicable to a Preferred Share or Equivalent Share, as the case may be, and the denominator of which shall be such Current Per Share Market Price of a Preferred Share or Equivalent Share on such record date; provided, however,
that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon exercise of one Right. Such adjustments shall be made successively
whenever such a record date is fixed, and in the event that such distribution is not so made, the Exercise Price shall be adjusted to be the Exercise Price which would have been in effect if such record date had not been fixed.
(d) Notwithstanding anything to the contrary, no adjustment in the Exercise Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in the Exercise Price; provided, however, that any adjustments which by reason of this Section 11(d) are not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the nearest ten-thousandth of a share of Common Stock or other share or one hundred-thousandth of a Preferred Share, as the case may be.
Notwithstanding the first sentence of this Section 11(d), any adjustment required by this Section 11 shall be made no later than the earlier of (i) three (3) years from the date of the transaction which requires such adjustment or (ii) the Expiration
Date.
(e) If as a result of an adjustment made pursuant to Section 11(a) or 13(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital stock of the Company other than Preferred Shares, thereafter the number of such other shares so receivable upon exercise of any Right and, if required, the Exercise Price thereof, shall
be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Preferred Shares contained in Sections 11(a), 11(b), 11(c), 11(d), 11(g), 11(h), 11(i), 11(j), 11(k) and
11(l), and the provisions of Sections 7, 9, 10, 13 and 14 with respect to the Preferred Shares shall apply on like terms to any such other shares.
(f) All Rights originally issued by the Company subsequent to any adjustment made to the Exercise Price hereunder shall
evidence the right to purchase, at the adjusted Exercise Price, the number of one one-thousandth of a Preferred Share purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(g) Unless the Company shall have exercised its election as provided in Section 11(h), upon each adjustment of the Exercise
Price as a result of the calculations made in Section 11(b) and (c), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of Preferred
Shares (calculated to the nearest one hundred-thousandth of a share) obtained by (i) multiplying (x) the number of Preferred Shares covered by a Right immediately prior to this adjustment, by (y) the Exercise Price in effect immediately prior to such
adjustment of the Exercise Price, and (ii) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment of the Exercise Price.
(h) The Company may elect on or after the date of any adjustment of the Exercise Price as a result of the calculations made
in Section 11(b) or (c) to adjust the number of Rights, in substitution for any adjustment in the number of Preferred Shares purchasable upon the exercise of a Right. Each of the Rights outstanding after such adjustment of the number of Rights shall be
exercisable for the number of one one-thousandth of a Preferred Share for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest one hundred- thousandth) obtained by dividing the Exercise Price in effect immediately prior to adjustment of the Exercise Price by the Exercise Price in effect immediately after adjustment of the Exercise Price. The Company
shall make a public announcement (with prompt written notice thereof to the Rights Agent) of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Exercise Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least ten (10) days later than the date of the public announcement. If Rights Certificates
have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(h), the Company shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date Rights Certificates
evidencing, subject to Section 14 hereof, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be issued, executed and delivered by the Company, and countersigned and delivered by the Rights Agent, in the manner provided for herein (and may bear, at the option of the Company, the
adjusted Exercise Price) and shall be registered in the names of the holders of record of Rights Certificates on the record date specified in the public announcement.
(i) Irrespective of any adjustment or change in the Exercise Price or the number of Preferred Shares issuable upon the
exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Exercise Price per one one-thousandth of a Preferred Share and the number of one one-thousandth of a Preferred Share which were expressed in
the initial Rights Certificates issued hereunder.
(j) Before taking any action that would cause an adjustment reducing the Exercise Price below the par or stated value, if
any, of the number of one one-thousandth of a Preferred Share issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally
issue as fully paid and non-assessable shares such number of one one-thousandth of a Preferred Share at such adjusted Exercise Price.
(k) In any case in which this Section 11 shall require that an adjustment in the Exercise Price be made effective as of a
record date for a specified event, the Company may elect to defer (with prompt written notice thereof to the Rights Agent) until the occurrence of such event the issuing to the holder of any Right exercised after such record date of the number of one
one-thousandth of a Preferred Share and other capital stock or securities of the Company, if any, issuable upon such exercise over and above the number of one one-thousandth of a Preferred Share and other capital stock or securities of the Company, if
any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder a due bill or other appropriate instrument evidencing such holder's right to
receive such additional shares (fractional or otherwise) upon the occurrence of the event requiring such adjustment.
(l) Notwithstanding anything in this Section 11 to the contrary, prior to the Distribution Date, the Company shall be
entitled to make such reductions in the Exercise Price, in addition to those adjustments expressly required by this Section 11, as and to the extent that it in its sole discretion shall determine to be advisable in order that any (i) consolidation or
subdivision of the Preferred Shares or Common Stock, (ii) issuance wholly for cash of any Preferred Shares or Common Stock at less than the current market price, (iii) issuance wholly for cash of Preferred Shares or Common Stock or securities which by
their terms are convertible into or exchangeable for Preferred or Common Stock, (iv) stock dividends or (v) issuance of rights, options or warrants referred to in this Section 11, hereafter made by the Company to holders of its Preferred Shares or
Common Stock shall not be taxable to such stockholders.
(m) The Company covenants and agrees that, after the Distribution Date, it will not, except as permitted by Sections 23, 24
or 27 hereof, take (or permit to be taken) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(n) In the event the Company shall at any time after the date of this Rights Agreement (A) declare a dividend on the Common
Stock payable in shares of Common Stock, (B) subdivide the outstanding shares of Common Stock, (C) combine the outstanding Common Stock (by reverse stock split or otherwise) into a smaller number of shares of Common Stock, or (D) issue any shares of
its capital stock in a reclassification of the shares of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving entity), then, in each such event, except as
otherwise provided in Section 11(a) and Section 7(e) hereof: (1) each share of Common Stock (or shares of capital stock issued in such reclassification of the Common Stock) outstanding immediately following such time shall have associated with it the
number of Rights as were associated with one share of Common Stock immediately prior to the occurrence of the event described in clauses (A)-(D) above; (2) the Exercise Price in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification shall be adjusted so that the Exercise Price thereafter shall equal the result obtained by multiplying the Exercise Price in effect immediately prior to such time by a fraction, the
numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the event described in clauses (A)-(D) above, and the denominator of which shall be the total number of shares of Common Stock outstanding
immediately after such event; provided, however, that in no event shall the consideration to be paid upon the exercise of one Right be less than the aggregate par value of the shares of capital stock of the Company issuable upon
exercise of such Right; and (3) the number of one one-thousandth of a Preferred Share (or shares of such other capital stock) issuable upon the exercise of each Right outstanding after such event shall equal the number of one one-thousandth of a
Preferred Share (or shares of such other capital stock) as were issuable with respect to one Right immediately prior to such event. Each share of Common Stock that shall become outstanding after an adjustment has been made pursuant to this Section
11(n) shall have associated with it the number of Rights, exercisable at the Exercise Price and for the number of one one-thousandth of a Preferred Share (or shares of such other capital stock) as one share of Common Stock has associated with it
immediately following the adjustment made pursuant to this Section 11(n). If an event occurs which would require an adjustment under both this Section 11(n) and Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(n) shall be in
addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
12. Certificate of Adjusted Exercise Price or Number of Shares. Whenever an adjustment is made or any event affecting
the Rights or their exercisability (including, without limitation, an event which causes Rights to become null and void) occurs as provided in Sections 11 and 13 hereof, the Company shall promptly (a) prepare a certificate setting forth such adjustment
or describing such event, and a brief reasonably detailed statement of the facts to the extent applicable, accounting for any such adjustment or event, (b) file with the Rights Agent and with each transfer agent for the Preferred Shares and Common
Stock a copy of such certificate and (c) mail a brief summary thereof to each holder of a Rights Certificate (or, if prior to the Distribution Date, each registered holder of shares of Common Stock, whether represented by certificates or Book Entry
Shares) in accordance with Section 26 hereof. Notwithstanding the foregoing sentence, the failure of the Company to make such certification or give such notice shall not affect the validity of such adjustment or the force or effect of the requirement
for such adjustment. The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment or statement contained therein and shall have no duty or liability with respect thereto, and shall not be deemed to have knowledge
of any adjustment or any such event unless and until it shall have received such certificate.
13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power.
(a) In the event that, following a Shares Acquisition Date, directly or indirectly:
| (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);
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| (ii) |
any Person shall consolidate with the Company, or merge with or into the Company and the Company shall be the continuing or surviving entity 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
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| (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),
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then, concurrent with and in each such case:
(a) each holder of a Right (except as provided in Section 7(e) hereof) shall thereafter have the right to receive, upon
the exercise thereof, at a price equal to the Total Exercise Price applicable immediately prior to the occurrence of the Section 13 Event in accordance with the terms of this Rights Agreement, such number of validly authorized and issued, fully paid,
non-assessable and freely tradeable shares of Common Stock of the Principal Party (as hereinafter defined), free of any liens, encumbrances, rights of first refusal or other adverse claims, as shall be equal to the result obtained by dividing such
Total Exercise Price by 50% of the Current Per Share Market Price of the shares of Common Stock of such Principal Party on the date of consummation of such Section 13 Event, provided, however, that the Exercise Price and the number of
shares of Common Stock of such Principal Party so receivable upon exercise of a Right shall be subject to further adjustment as appropriate in accordance with Section 11(e) hereof;
(b) such Principal Party shall thereafter be liable for, and shall assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this Rights Agreement;
(c) the term "Company" shall thereafter be deemed to refer to such Principal Party, it being specifically intended that
the provisions of Section 11 hereof shall apply only to such Principal Party following the first occurrence of a Section 13 Event;
(d) such Principal Party shall take such steps (including, but not limited to, the reservation of a sufficient number of
its Common Stock) in connection with the consummation of any such transaction as may be necessary to ensure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; and
(e) upon the subsequent occurrence of any consolidation, merger, sale or transfer of assets or other extraordinary
transaction in respect of such Principal Party, each holder of a Right shall thereupon be entitled to receive, upon exercise of a Right and payment of the Total Exercise Price as provided in this Section 13(a), such cash, shares, rights, warrants and
other property which such holder would have been entitled to receive had such holder, at the time of such transaction, owned the shares of Common Stock of the Principal Party receivable upon the exercise of such Right pursuant to this Section 13(a),
and such Principal Party shall take such steps (including, but not limited to, reservation of shares of stock) as may be necessary to permit the subsequent exercise of the Rights in accordance with the terms hereof for such cash, shares, rights,
warrants and other property.
(f) For purposes hereof, the "earning power" of the Company and its Subsidiaries shall be determined in good faith by the
Company's Board of Directors on the basis of the operating earnings of each business operated by the Company and its Subsidiaries during the three fiscal years preceding the date of such determination (or, in the case of any business not operated by
the Company or any Subsidiary during three full fiscal years preceding such date, during the period such business was operated by the Company or any Subsidiary).
(b) For purposes of this Rights Agreement, the term "Principal Party" shall mean:
| (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
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| (ii) |
in the case of any transaction described in clause (iii) of Section13(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.
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(c) The Company shall not consummate any Section 13 Event unless the Principal Party shall have a sufficient number of
authorized shares of Common Stock that have not been issued or reserved for issuance to permit the exercise in full of the Rights in accordance with this Section 13 and unless prior thereto the Company and such issuer shall have executed and delivered
to the Rights Agent a supplemental agreement confirming that such Principal Party shall, upon consummation of such Section 13 Event, assume this Rights Agreement in accordance with Sections 13(a) and 13(b) hereof, that all rights of first refusal or
preemptive rights in respect of the issuance of shares of Common Stock of such Principal Party upon exercise of outstanding Rights have been waived, that there are no rights, warrants, instruments or securities outstanding or any agreements or
arrangements which, as a result of the consummation of such transaction, would eliminate or substantially diminish the benefits intended to be afforded by the Rights and that such transaction shall not result in a default by such Principal Party under
this Rights Agreement, and further providing that, as soon as practicable after the date of such Section 13 Event, such Principal Party will:
| (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;
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| (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
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| (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
any successor form) under the Exchange Act.
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In the event that at any time after the occurrence of a Triggering Event some or all of the Rights shall not have been exercised at the time of
a transaction described in this Section 13, the Rights which have not theretofore been exercised shall thereafter be exercisable in the manner described in Section 13(a) (without taking into account any prior adjustment required by Section 11(a)(ii)).
(d) In case the "Principal Party" for purposes of Section 13(b) hereof has provision in any of its authorized securities or
in its certificate of incorporation or by-laws or other instrument governing its corporate affairs, which provision would have the effect of (i) causing such Principal Party to issue (other than to holders of Rights pursuant to Section 13 hereof), in
connection with, or as a consequence of, the consummation of a Section 13 Event, shares of Common Stock or Equivalent Shares of such Principal Party at less than the then Current Per Share Market Price thereof or securities exercisable for, or
convertible into, shares of Common Stock or Equivalent Shares of such Principal Party at less than such then Current Per Share Market Price, or (ii) providing for any special payment, tax or similar provision in connection with the issuance of the
shares of Common Stock of such Principal Party pursuant to the provisions of Section 13 hereof, then, in such event, the Company hereby agrees with each holder of Rights that it shall not consummate any such transaction unless prior thereto the Company
and such Principal Party shall have executed and delivered to the Rights Agent a supplemental agreement providing that the provision in question of such Principal Party shall have been canceled, waived or amended, or that the authorized securities
shall be redeemed, so that the applicable provision will have no effect in connection with or as a consequence of, the consummation of the proposed transaction.
(e) The Company covenants and agrees that it shall not, at any time after the Distribution Date, effect or permit to occur
any Section 13 Event, if (i) at the time or immediately after such Section 13 Event there are any rights, warrants or other instruments or securities outstanding or agreements in effect which would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights, (ii) prior to, simultaneously with or immediately after such Section 13 Event, the stockholders of the Person who constitutes, or would constitute, the "Principal Party" for purposes of Section 13(b)
hereof shall have received a distribution of Rights previously owned by such Person or any of its Affiliates or Associates or (iii) the form or nature of organization of the Principal Party would preclude or limit the exercisability of the Rights.
(f) The provisions of this Section 13 shall similarly apply to successive mergers or consolidations or sales or other
transfers.
14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights or to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights, there shall be paid to the registered holders of the Rights Certificates with regard to which such fractional Rights would otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this Section 14(a), the current market value of a whole Right shall be the closing price of the Rights for the Trading Day immediately prior to the date on which such fractional Rights would
have been otherwise issuable, as determined pursuant to this Rights Agreement.
(b) The Company shall not be required to issue fractions of Preferred Shares (other than fractions that are integral
multiples of one one-thousandth of a Preferred Share) upon exercise of the Rights or to distribute certificates which evidence fractional Preferred Shares (other than fractions that are integral multiples of one one-thousandth of a Preferred Share).
Interests in fractions of Preferred Shares in integral multiples of one one-thousandth of a Preferred Share may, at the election of the Company, be evidenced by depositary receipts, pursuant to an appropriate agreement between the Company and a
depositary selected by it; provided, that such agreement shall provide that the holders of such depositary receipts shall have all the rights, privileges and preferences to which they are entitled as beneficial owners of the Preferred Shares
represented by such depositary receipts. In lieu of fractional Preferred Shares that are not integral multiples of one one-thousandth of a Preferred Share, the Company shall pay to the registered holders of Rights Certificates at the time such Rights
are exercised as herein provided an amount in cash equal to the same fraction of the current market value of a Preferred Share. For purposes of this Section 14(b), the current market value of a Preferred Share shall be one thousand times the closing
price of a share of Common Stock (as determined pursuant to the terms hereof) for the Trading Day immediately prior to the date of such exercise.
(c) The Company shall not be required to issue fractions of shares of Common Stock or to distribute certificates which
evidence fractional shares of Common Stock upon the exercise or exchange of Rights. In lieu of such fractional shares of Common Stock, the Company shall pay to the registered holders of Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this Section 14(c), the current market value of a share of Common Stock shall be the closing price of a share of Common
Stock (as determined pursuant to the terms hereof) for the Trading Day immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of the Right expressly waives his or her right to receive any fractional Rights
or any fractional shares (other than fractions that are integral multiples of one one-thousandth of a Preferred Share) upon exercise of a Right.
(e) Whenever a payment for fractional Rights or fractional Shares is to be made by the Rights Agent under any Section of this
Rights Agreement, the Company shall (i) promptly prepare and deliver to the Rights Agent a certificate setting forth in reasonable detail the facts related to such payments and the prices and/or formulas utilized in calculating such payments, and (ii)
provide sufficient monies to the Rights Agent in the form of fully collected funds to make such payments. The Rights Agent shall be fully protected in relying upon such a certificate and shall have no duty with respect to, and shall not be deemed to
have knowledge of, any payment for fractional Rights or fractional Shares under any Section of this Rights Agreement relating to the payment of fractional Rights or fractional Shares unless and until the Rights Agent shall have received such a
certificate and sufficient monies.
15. Rights of Action. (a) All rights of action in respect of this Rights Agreement, excepting the rights of action
given to the Rights Agent under any Section of this Rights Agreement, are vested in the respective registered holders of the Rights Certificates (and, prior to the Distribution Date, the registered holders of the shares of Common Stock); and any
registered holder of any Rights Certificate (or, prior to the Distribution Date, of the shares of Common Stock), without the consent of the Rights Agent or of the holder of any other Rights Certificate (or, prior to the Distribution Date, of the shares
of Common Stock), may, in his or her own behalf and for his or her own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company to enforce, or otherwise act in respect of, his or her right to exercise the
Rights evidenced by such Rights Certificate in the manner provided in such Rights Certificate and in this Rights Agreement. Without limiting the foregoing or any remedies available to the holders of Rights, it is specifically acknowledged that the
holders of Rights would not have an adequate remedy at law for any breach of this Rights Agreement and will be entitled to specific performance of the obligations under, and injunctive relief against actual or threatened violations of, the obligations
of any Person subject to this Rights Agreement.
(b) Notwithstanding anything in this Rights Agreement to the contrary, neither the Company nor the Rights Agent shall have
any liability to any holder of a Right or other Person as a result of its inability to perform any of its obligations under this Rights Agreement by reason of any preliminary or permanent injunction or other order, judgment, decree or ruling (whether
interlocutory or final) issued by a court or by a governmental, regulatory, self- regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority, prohibiting
or otherwise restraining performance of such obligation; provided, however, that the Company shall use all reasonable efforts to have any such injunction, order, judgment, decree or ruling lifted or otherwise overturned as soon as possible.
16. Agreement of Rights Holders. Every holder of a Right, by accepting the same, consents and agrees with the Company
and the Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable only in connection with the transfer of the shares of
Common Stock;
(b) after the Distribution Date, the Rights Certificates are transferable only on the registry books of the Rights Agent if
surrendered at the office or offices of the Rights Agent designated for such purposes, duly endorsed or accompanied by a proper instrument of transfer and with the appropriate forms and certificates properly completed and duly executed (with such
signature duly guaranteed), as determined in the sole discretion of the Rights Agent; and
(c) subject to Sections 6(a) and 7(f) hereof, the Company and the Rights Agent may deem and treat the person in whose name
the Rights Certificate (or, prior to the Distribution Date, the associated Common Stock certificate or Book Entry Shares, as applicable) is registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Rights Certificates or the associated Common Stock certificate or Book Entry Shares, as applicable, made by anyone other than the Company or the Rights Agent) for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary.
17. Rights Certificate Holder Not Deemed a Stockholder. No holder, as such, of any Rights Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose to be the holder of the Preferred Shares or any other securities of the Company which may at any time be issuable on the exercise of the Rights represented thereby, nor shall anything
contained herein or in any Rights Certificate be construed to confer upon the holder of any Rights Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in Section 25 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by such Rights Certificate shall have been exercised in accordance with the provisions hereof.
18. The Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, to reimburse the Rights Agent for all of its actual expenses and counsel fees and other disbursements incurred in the preparation, delivery, negotiation, amendment, administration and execution of this
Rights Agreement and the exercise and performance of its duties hereunder. The Company also covenants and agrees to indemnify the Rights Agent for, and to hold it harmless against, any loss, liability, damage, judgment, fine, penalty, claim, demand,
settlement, cost or expense (including, without limitation, the reasonable fees and expenses of legal counsel), that may be paid, incurred or suffered by it, or to which it may become subject, without gross negligence, bad faith or willful misconduct
(which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction) on the part of the Rights Agent for any action taken, suffered or omitted to be taken by the Rights
Agent in connection with the acceptance, administration, exercise and performance of its duties under this Rights Agreement, including the costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or
enforcing its rights hereunder. The costs and expenses incurred in enforcing this right of indemnification shall be paid by the Company. The provisions of this Section 18 and Section 20 below shall survive the termination of this Rights Agreement, the
exercise or expiration of the Rights and the resignation, replacement or removal of the Rights Agent.
(b) The Rights Agent shall be authorized and protected and shall incur no liability for, or in respect of any action taken,
suffered or omitted to be taken by it in connection with, its acceptance and administration of this Rights Agreement and the exercise and performance of its duties hereunder, in reliance upon any Rights Certificate or certificate (including in the case
of uncertificated shares, by notation in book entry accounts reflecting ownership) for the Preferred Shares or shares of Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement or other paper or document believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons, or otherwise upon
the advice of counsel as set forth in Section 20 hereof. The Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive written notice thereof hereunder, but for which it has not received such written notice,
and the Rights Agent shall (subject to the limitations set forth herein) be fully protected and shall incur no liability for failing to take action in connection therewith unless and until it has received such written notice.
19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any Person into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated,
or any Person resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to the stock transfer or other stockholder service business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this Rights Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided, that such Person would be eligible for appointment
as a successor Rights Agent under Section 21 hereof. The purchase of all or substantially all of the Rights Agent's assets employed in the performance of transfer agent activities shall be deemed a merger or consolidation for purposes of this Section
19. In case at the time such successor Rights Agent shall succeed to the agency created by this Rights Agreement, any of the Rights Certificates shall have been countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Rights Certificates so countersigned; and in case at that time any of the Rights Certificates shall not have been countersigned, any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor Rights Agent or in the name of the successor Rights Agent; and in all such cases such Rights Certificates shall have the full force provided in the Rights Certificates and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and at such time any of the Rights Certificates shall
have been countersigned but not delivered, the Rights Agent may adopt the countersignature under its prior name and deliver Rights Certificates so countersigned; and in case at that time any of the Rights Certificates shall not have been countersigned,
the Rights Agent may countersign such Rights Certificates either in its prior name or in its changed name; and in all such cases such Rights Certificates shall have the full force provided in the Rights Certificates and in this Rights Agreement.
20. Rights and Duties of Rights Agent. The Rights Agent undertakes to perform only the duties and obligations
expressly set forth in this Rights Agreement (and not implied duties or obligations). The Rights Agent shall perform such duties and obligations upon the following terms and conditions, by all of which the Company and the holders of Rights
Certificates, or, prior to the Distribution Date, Common Stock, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel selected by it (who may be outside legal counsel for the Rights Agent or
the Company), and the advice or opinion of such counsel shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent will have no liability for or in respect of, any action taken, suffered, or omitted to be taken by
it and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Rights Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person or any Affiliate or Associate of an Acquiring Person, or the determination of Current Per Share Market Price) be proved or established by the Company
prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be specifically prescribed herein) may be deemed to be conclusively proved and established by a certificate signed by any
one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Secretary or any Assistant Secretary of the Company and delivered to the Rights Agent; and such certificate shall be the
full and complete authorization and protection to the Rights Agent and the Rights Agent shall incur no liability for or in respect of any action taken, suffered or omitted to be taken by it under the provisions of this Rights Agreement in reliance upon
such certificate. The Rights Agent shall have no duty to act without such a certificate from an officer of the Company as set forth in the preceding sentence.
(c) The Rights Agent shall be liable to the Company and any other Person hereunder only for its own gross negligence, bad
faith or willful misconduct (which gross negligence, bad faith or willful misconduct must be determined by a final, non-appealable judgment of a court of competent jurisdiction).
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this
Rights Agreement or in the Rights Certificates (including in the case of uncertificated shares, by notation in book entry accounts reflecting ownership), except as to its countersignature thereof, or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any liability for nor be under any responsibility in respect of the legality or validity
of this Rights Agreement or the execution and delivery hereof (except the due execution hereof by the Rights Agent) or in respect of the validity or execution of any Rights Certificate (including in the case of uncertificated shares, by notation in
book entry accounts reflecting ownership), except its countersignature thereof, or any modification or order of any court, tribunal, or governmental authority in connection with the foregoing; nor shall it be liable or responsible for any breach by the
Company of any covenant or failure by the Company to satisfy any condition contained in this Rights Agreement or in any Rights Certificate; nor shall it be responsible for any change in the exercisability of the Rights or any adjustment in the terms of
the Rights (including the manner, method or amount thereof) provided for in Sections 3, 11, 13, 23 or 24, or the ascertaining of the existence of facts that would require any such change or adjustment (except with respect to the exercise of Rights
evidenced by Rights Certificates after receipt by the Rights Agent of a certificate furnished pursuant to Section 12 describing such change or adjustment); nor shall it by any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock, the Preferred Shares, or any other securities to be issued pursuant to this Rights Agreement or any Rights Certificate or as to whether any shares of Preferred Stock, the Preferred Shares, or
any other securities will, when so issued, be validly authorized and issued, fully paid and non-assessable. The Rights Agent shall have no obligation under any Section of this Rights Agreement to determine whether an event requiring an adjustment in
Exercise Price, number of shares or number of Rights has occurred or to calculate or confirm the accuracy of any of the adjustments required hereunder.
(f) The Company shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may reasonably be required or requested by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Rights Agreement, in the reasonable
discretion of the Rights Agent.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties
hereunder and certificates delivered pursuant to any provisions hereof from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Secretary or any Assistant Secretary of
the Company, and to apply to such officers for advice or instructions in connection with its duties. The Rights Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with instructions of any such officer
and such advice or instruction shall be full authorization and protection to the Rights Agent and the Rights Agent shall incur no liability for or in respect of any action taken or suffered or omitted to be taken by it in accordance with advice or
instructions of any such officer or for any delay in acting while waiting for those instructions. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action
proposed to be taken or omitted by the Rights Agent under this Rights Agreement and the date on and/or after which such action shall be taken or such omission shall be effective. The Rights Agent shall be fully authorized and protected in relying upon
the most recent instructions received from any such officer, and shall not be liable for any action taken by, or omission of, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such
application (which date shall not be less than five (5) Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to an earlier date) unless, prior to taking any
such action (or the effective date in the case of an omission), the Rights Agent shall have received written instructions in response to such application specifying the action to be taken, suffered, or omitted.
(h) The Rights Agent and any stockholder, member, affiliate, director, officer, employee, agent, or representative of the
Rights Agent may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as
fully and freely as though it were not the Rights Agent under this Rights Agreement. Nothing herein shall preclude the Rights Agent or any such stockholder, member, affiliate, director, officer or employee of the Rights Agent from acting in any other
capacity for the Company or for any other Person.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder
either itself (through its officers, directors and employees) or by or through its attorneys or agents. The Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss
to the Company resulting from any such act, default, neglect or misconduct; provided that reasonable care was exercised in the selection and continued employment thereof.
(j) No provision of this Rights Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it. The Rights Agent shall not be required to take any action or to follow any instruction of the Company that the Rights Agent believes, in its sole discretion, would cause the Rights Agent to take action that is
illegal.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, either (i) the
certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 and/or 2 thereof, or (ii) any other actual or suspected irregularity
exists, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company; provided, however that Rights Agent shall not be liable for any delays arising from the duties
under this section 20(k).
(l) The Rights Agent shall have no responsibility to the Company, any holders of Rights or any holders of shares of Common
Stock for interest or earnings on any moneys held by the Rights Agent pursuant to this Rights Agreement.
(m) The Rights Agent shall not be required to take notice or be deemed to have notice of any fact, event, condition, or
determination (including, without limitation, any dates or events defined in this Rights Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under this Rights Agreement unless and until the Rights Agent shall be
specifically notified in writing by the Company of such fact, event, condition, or determination, and all notices or other instruments required by this Rights Agreement to be delivered to the Rights Agent must, in order to be effective, be received by
the Rights Agent as specified in Section 26 hereof, and in the absence of such notice so delivered, the Rights Agent may conclusively assume no such event or condition exists.
(n) The Rights Agent may rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of
signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the
foregoing; or (b) any law, act, regulation or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
(o) The Rights Agent shall act hereunder solely as agent for the Company. The Rights Agent shall not assume any obligations
or relationship of agency or trust with any of the owners or holders of the Rights.
(p) The Rights Agent shall not be liable or responsible for any failure of the Company to comply with any of its obligations
relating to any registration statement filed with the SEC or this Rights Agreement, including without limitation obligations under applicable regulation or law.
(q) The Rights Agent shall not have any duty or responsibility in the case of the receipt of any written demand from any
holder of Rights with respect to any action or default by the Company, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand
upon the Company.
The provisions of Sections 18 and 20 shall survive the termination of this Rights Agreement, the resignation, replacement or
removal of the Rights Agent and the exercise, termination and the expiration of the Rights. Notwithstanding anything in this Rights Agreement to the contrary, in no event shall the Rights Agent be liable for special, punitive, incidental, indirect or
consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of the action; and the Company shall
indemnify the Rights Agent and hold it harmless to the fullest extent permitted by law against any loss, liability or expense incurred as a result of claims for special, punitive, incidental, indirect or consequential loss or damages of any kind
whatsoever provided in each case that such claims are not based on the gross negligence, bad faith or willful misconduct of the Rights Agent (each as determined by a final judgment of a court of competent jurisdiction). Notwithstanding anything in this
Rights Agreement to the contrary, any liability of the Rights Agent under this Rights Agreement will be limited to the amount of annual fees paid by the Company to the Rights Agent during the twelve (12) months immediately preceding the event for which
recovery from the Rights Agent is being sought.
21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may resign and be discharged from its
duties under this Rights Agreement upon at least thirty (30) days' written notice to the Company and, in the event that the Rights Agent or one of its Affiliates is not also the transfer agent for the Company, to each transfer agent of the Preferred
Shares and the Common Stock known to the Rights Agent. In the event the transfer agency relationship in effect between the Company and the Rights Agent terminates, the Rights Agent will be deemed to have resigned automatically and be discharged from
its duties under this Rights Agreement as of the effective date of such termination, and the Company shall be responsible for sending any required notice. The Company may remove the Rights Agent or any successor Rights Agent upon at least thirty (30)
days' written notice to the Rights Agent or successor Rights Agent, as the case may be, and to each transfer agent of the Preferred Shares and the Common Stock and to the holders of the Rights Certificates by public announcement or written notice. If
the Rights Agent shall resign or be removed or shall otherwise become incapable of acting, the Company shall appoint a successor to the Rights Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after giving
notice of such removal or after receiving written notice of such resignation or incapacity by the resigning or incapacitated Rights Agent or by the holder of a Rights Certificate (who shall, with such notice, submit his or her Rights Certificate for
inspection by the Company), then the registered holder of any Rights Certificate may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. Any successor Rights Agent, whether appointed by the Company or by such a
court, shall be (a) a Person organized and doing business under the laws of the United States or of any state of the United States, in good standing, which is authorized under such laws to exercise corporate trust or stock transfer powers and is
subject to supervision or examination by federal or state authority and which at the time of its appointment as Rights Agent has, along with its Affiliates, a combined capital and surplus of at least $50 million or (b) an Affiliate of such a Person
described in clause (a) of this sentence. After appointment, the successor Rights Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights Agent any property at the time held by it hereunder, and execute and deliver any further assurance, conveyance, act or deed necessary for the foregoing purpose, but the
predecessor Rights Agent shall not be required to make any additional expenditure or assume any additional liability in connection with the foregoing. Not later than the effective date of any such appointment, the Company shall file notice thereof in
writing with the predecessor Rights Agent and each transfer agent of the Preferred Shares and the Common Stock, and mail a written notice thereof to the registered holders of the Rights Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the legality or validity of the resignation or removal of the Rights Agent or the appointment of the successor Rights Agent, as the case may be.
22. Issuance of New Rights Certificates. Notwithstanding any of the provisions of this Rights Agreement or of the
Rights to the contrary, the Company may, at its option, issue new Rights Certificates evidencing Rights in such form as may be approved by its Board of Directors to reflect any adjustment or change in the Exercise Price or the number or kind or class
of shares or other securities or property purchasable under the Rights Certificates made in accordance with the provisions of this Rights Agreement. In addition, in connection with the issuance or sale of shares of Common Stock following the
Distribution Date and prior to the redemption or expiration of the Rights, the Company (a) shall, with respect to shares of Common Stock so issued or sold pursuant to the exercise of stock options or under any employee plan or arrangement or upon the
exercise, conversion or exchange of other securities of the Company outstanding at the date hereof or upon the exercise, conversion or exchange of securities hereinafter issued by the Company and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors of the Company, issue Rights Certificates representing the appropriate number of Rights in connection with such issuance or sale; provided, however, that (i) no such Rights Certificate shall be
issued and this sentence shall be null and void ab initio if, and to the extent that, such issuance or this sentence would create a significant risk of or result in material adverse tax consequences to the Company or the Person to whom such Rights
Certificate would be issued or would create a significant risk of or result in such options' or employee plans' or arrangements' failing to qualify for otherwise available special tax treatment and (ii) no such Rights Certificate shall be issued if,
and to the extent that, appropriate adjustment shall otherwise have been made in lieu of the issuance thereof.
23. Redemption.
(a) The Company may, at its option and with the approval of the Board of Directors, at any time prior to the Close of
Business on the earlier of (i) the Distribution Date and (ii) the Final Expiration Date, redeem all but not less than all the then outstanding Rights at a redemption price of $0.01 per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such redemption price being herein referred to as the "Redemption Price") and the Company may, at its option, pay the Redemption Price either in shares of Common Stock (based on
the Current Per Share Market Price thereof at the time of redemption) or cash. Such redemption of the Rights by the Company may be made effective at such time, on such basis and with such conditions as the Board of Directors in its sole discretion may
establish. The date on which the Board of Directors elects to make the redemption effective shall be referred to as the "Redemption Date".
(b) Immediately upon the action of the Board of Directors of the Company ordering the redemption of the Rights, written
notice of which shall have been filed with the Rights Agent, and without any further action and without any notice, the right to exercise the Rights shall terminate and the only right thereafter of the holders of Rights shall be to receive the
Redemption Price. The Company shall promptly give public notice of any such redemption; provided, however, that the failure to give or any defect in, any such notice shall not affect the legality or validity of such redemption. Within
ten (10) days after the action of the Board of Directors ordering the redemption of the Rights, the Company shall promptly mail a notice of such redemption to the Rights Agent and the holders of the then outstanding Rights at their last addresses as
they appear upon the registry books of the Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent for the Common Stock. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of redemption will state the method by which the payment of the Redemption Price will be made. Neither the Company nor any of its Affiliates or Associates may redeem, acquire or purchase for value any
Rights at any time in any manner other than that specifically set forth in this Section 23 or in Section 24 hereof, and other than in connection with the purchase of shares of Common Stock prior to the Distribution Date.
24. Exchange.
(a) Subject to applicable laws, rules and regulations, and subject to subsection 24(c) below, the Company may, at its option,
by action of the Board of Directors, at any time after the occurrence of a Triggering Event, exchange all or part of the then outstanding and exercisable Rights (which shall not include Rights that have become null and void pursuant to the provisions
of Section 7(e) hereof) for shares of Common Stock at an exchange ratio of one share of Common Stock per Right, appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date hereof (such exchange
ratio being hereinafter referred to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board of Directors shall not be empowered to effect such exchange at any time after any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or any such Subsidiary, or any entity holding Common Stock for or pursuant to the terms of any such plan), together with all Affiliates and Associates of such Person, becomes the Beneficial Owner of 50%
or more of the Common Stock then outstanding.
(b) Immediately upon the action of the Board of Directors ordering the exchange of any Rights pursuant to subsection 24(a) of
this Section 24 and without any further action and without any notice, the right to exercise such Rights shall terminate and the only right thereafter of a holder of such Rights shall be to receive that number of shares of Common Stock equal to the
number of such Rights held by such holder multiplied by the Exchange Ratio. The Company shall give (i) prompt written notice to the Rights Agent of such exchange; and (ii) public notice of any such exchange; provided, however, that the
failure to give, or any defect in, such notice shall not affect the validity of such exchange. The Company shall promptly mail a notice of any such exchange to all of the holders of such Rights at their last addresses as they appear upon the registry
books of the Rights Agent. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of exchange will state the method by which the exchange of the shares of Common
Stock for Rights will be effected and, in the event of any partial exchange, the number of Rights which will be exchanged. Any partial exchange shall be effected pro rata based on the number of Rights (other than Rights which have become null and void
pursuant to the provisions of Section 7(e) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient shares of Common Stock issued but not outstanding or authorized but
unissued to permit any exchange of Rights as contemplated in accordance with Section 24(a), the Company shall either take such action as may be necessary to authorize additional shares of Common Stock for issuance upon exchange of the Rights or
alternatively, at the option of a majority of the Board of Directors, with respect to each Right (i) pay cash in an amount equal to the Current Value (as hereinafter defined), in lieu of issuing shares of Common Stock in exchange therefor, or (ii)
issue debt or equity securities or a combination thereof, having a value equal to the Current Value, in lieu of issuing shares of Common Stock in exchange for each such Right, where the value of such securities shall be determined by a nationally
recognized investment banking firm selected by majority vote of the Board of Directors, or (iii) deliver any combination of cash, property, shares of Common Stock and/or other securities having a value equal to the Current Value in exchange for each
Right. For purposes of this Section 24(c) only, the Current Value shall mean the product of the Current Per Share Market Price of shares of Common Stock on the date of the occurrence of the event described above in subparagraph (a), multiplied by the
number of shares of Common Stock for which the Right otherwise would be exchangeable if there were sufficient shares available. To the extent that the Company determines that some action need be taken pursuant to clauses (i), (ii) or (iii) of this
Section 24(c), the Board of Directors may temporarily suspend the exercisability of the Rights for a period of up to sixty (60) days following the date on which the event described in Section 24(a) shall have occurred, in order to seek any
authorization of additional shares of Common Stock and/or to decide the appropriate form of distribution to be made pursuant to the above provision and to determine the value thereof. In the event of any such suspension, the Company shall (i) give
prompt written notice to the Rights Agent of such suspension; and (ii) issue a public announcement stating that the exercisability of the Rights has been temporarily suspended.
(d) The Company shall not be required to issue fractions of shares of Common Stock or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of such fractional shares of Common Stock, there shall be paid to the registered holders of the Rights Certificates with regard to which such fractional shares of Common Stock would otherwise be
issuable, an amount in cash equal to the same fraction of the current market value of a whole share of Common Stock (as determined pursuant to the terms hereof).
(e) The Company may, at its option, by majority vote of the Board of Directors, at any time before the Share Acquisition
Date, exchange all or part of the then outstanding Rights for rights of substantially equivalent value, as determined reasonably and with good faith by the Board of Directors, based upon the advice of one or more nationally recognized investment
banking firms.
(f) Immediately upon the action of the Board of Directors ordering the exchange of any Rights pursuant to subsection 24(e) of
this Section 24 and without any further action and without any notice, the right to exercise such Rights shall terminate and the only right thereafter of a holder of such Rights shall be to receive that number of rights in exchange therefor as has been
determined by the Board of Directors in accordance with subsection 24(e) above. The Company shall give public notice of any such exchange; provided, however, that the failure to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company shall promptly mail a notice of any such exchange with a reasonably detailed description thereof to the Rights Agent and all of the holders of such Rights at their last addresses as they appear upon the registry
books of the transfer agent for the shares of Common Stock of the Company. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of exchange will state the method
by which the exchange of the Rights will be effected.
25. Notice of Certain Events.
(a) In case the Company shall propose to effect or permit to occur any Triggering Event or Section 13 Event, the Company
shall give notice thereof to the Rights Agent and each holder of Rights in accordance with Section 26 hereof at least twenty (20) days prior to occurrence of such Triggering Event or such Section 13 Event.
(b) In case any Triggering Event set forth in Section 11(a)(ii) hereof shall occur, then the Company shall as soon as
practicable thereafter give to the Rights Agent and to each holder of a Rights Certificate, in accordance with Section 26 hereof, a notice of the occurrence of such event, which notice shall describe such event and the consequences of such event to
holders of Rights under Section 11(a)(ii) hereof.
26. Notices. Notices or demands authorized by this Rights Agreement to be given or made by the Rights Agent or by the
holder of any Rights Certificate to or on the Company shall be sufficiently given or made if in writing and sent by facsimile when a confirmation is received by the transmitting person (which confirmation may be made by facsimile or email), if sent by
first-class mail or nationally recognized overnight delivery service, postage prepaid, or hand delivery when received and addressed (until another address is filed in writing with the Rights Agent) as follows:
OceanPal Inc.Pendelis 26
175 64 Palaio Faliro
Athens, Greece
Attention: Mr. Robert Perri
with a copy to:
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Attention: Edward Horton
Subject to the provisions of Section 21 hereof, any notice or demand authorized by this Rights Agreement to be given or made by the Company or
by the holder of any Rights Certificate to or on the Rights Agent shall be sufficiently given or made if in writing and sent by facsimile when a confirmation is received by the transmitting person (which confirmation may be made by facsimile or email),
or by first-class mail or nationally recognized overnight delivery service, postage prepaid, or hand delivery when received and addressed (until another address is filed in writing with the Company) as follows:
Computershare Trust Company, N.A.
150 Royall Street
Canton, MA 02021
Attention: Client Services
Notices or demands authorized by this Rights Agreement to be given or made by the Company or the Rights Agent to the holder of any Rights
Certificate (or, if prior to the Distribution Date, to the holders of shares of Common Stock) shall be sufficiently given or made if sent by first-class mail or nationally recognized courier service, postage prepaid, addressed to such holder at the
address of such holder as shown on the registry books of the Company.
27. Supplements and Amendments. Prior to the occurrence of a Distribution Date, the Company and the Rights Agent may
supplement or amend this Rights Agreement in any respect without the approval of any holders of Rights. From and after the occurrence of a Distribution Date, the Company and the Rights Agent may from time to time supplement or amend this Rights
Agreement without the approval of any holders of Rights in order to (i) cure any ambiguity, (ii) correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions herein, (iii) shorten or lengthen any
time period hereunder or (iv) to change or supplement the provisions hereunder in any manner that the Company may deem necessary or desirable and that shall not adversely affect the interests of the holders of Rights (other than an Acquiring Person or
an Affiliate or Associate of an Acquiring Person); provided, this Rights Agreement may not be supplemented or amended to lengthen, pursuant to clause (iii) of this sentence, (A) a time period relating to when the Rights may be redeemed at such time as
the Rights are not then redeemable or (B) any other time period unless such lengthening is for the purpose of protecting, enhancing or clarifying the rights of, and/or the benefits to, the holders of Rights (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person). Upon the delivery of a certificate from an appropriate officer of the Company and, if reasonably requested by the Rights Agent, an opinion of counsel, that states that the proposed supplement or amendment
is in compliance with the terms of this Section 27, the Rights Agent shall execute such supplement or amendment. Notwithstanding anything contained in this Rights Agreement to the contrary, the Rights Agent may, but shall not be obligated to, enter
into any supplement or amendment that affects the Rights Agent's own rights, duties, obligations or immunities under this Rights Agreement. Prior to the Distribution Date, the interests of the holders of Rights shall be deemed coincident with the
interests of the holders of Common Stock.
28. Successors. All the covenants and provisions of this Rights Agreement by or for the benefit of the Company or the
Rights Agent shall bind and inure to the benefit of their respective successors and assigns hereunder.
29. Determinations and Actions by the Board of Directors, etc. For all purposes of this Rights Agreement, any
calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be
made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. Except as otherwise provided for herein, the Board of Directors of the Company shall have the exclusive power and authority to
administer this Rights Agreement and to exercise all rights and powers specifically granted to the Board, or the Company, or as may be necessary or advisable in the administration of this Rights Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Rights Agreement and (ii) make all determinations deemed necessary or advisable for the administration of this Rights Agreement (including a determination to redeem or not redeem the Rights or to amend the
Rights Agreement in accordance with Section 27 hereof). All such actions, calculations, interpretations and determinations (including, for purposes of clause (y) below, all omissions with respect to the foregoing) which are done or made by the Board in
good faith, shall (x) be final, conclusive and binding on the Company, the Rights Agent (except with respect to any dispute concerning the Rights Agent's own rights, duties, obligations or immunities under this Rights Agreement), the holders of the
Rights Certificates and all other parties and (y) not subject the Board to any liability to the holders of the Rights. The Rights Agent is entitled always to assume the Company's Board of Directors acted in good faith and shall be fully protected and
incur no liability in reliance thereon.
30. Benefits of this Rights Agreement. Nothing in this Rights Agreement shall be construed to give to any Person
other than the Company, the Rights Agent and the registered holders of the Rights Certificates (and, prior to the Distribution Date, the shares of Common Stock) any legal or equitable right, remedy or claim under this Rights Agreement; but this Rights
Agreement shall be for the sole and exclusive benefit of the Company, the Rights Agent and the registered holders of the Rights Certificates (and, prior to the Distribution Date, the shares of Common Stock).
31. Severability. If any term, provision, covenant or restriction of this Rights Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Rights Agreement shall remain in full force and effect and shall in no way be affected, impaired
or invalidated; provided, however, that notwithstanding anything in this Rights Agreement to the contrary, if any such term, provision, covenant or restriction is held by such court or authority to be invalid, void or unenforceable and
the Board of Directors of the Company determines in its good faith judgment that severing the invalid language from this Rights Agreement would adversely affect the purpose or effect of this Rights Agreement, the right of redemption set forth in
Section 23 hereof shall be reinstated and shall not expire until the Close of Business on the tenth Business Day following the date of such determination by the Board of Directors; further provided, however, that if any such
excluded language shall adversely affect rights, immunities, liabilities, duties, responsibilities or obligations of the Rights Agent, the Rights Agent shall be entitled to resign immediately.
32. Governing Law. This Rights Agreement and each Right and each Rights Certificate issued hereunder shall be deemed
to be a contract made under the laws of the State of New York and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State, and without
reference to rules or principles that would require the application of the laws of any other jurisdiction other than the State of New York.
33. Counterparts. This Rights Agreement may be executed in any number of counterparts and each of such counterparts
shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to this Rights Agreement executed and/or transmitted electronically shall have the same authority,
effect and enforceability as an original signature.
34. Descriptive Headings; Interpretation.
(a) Descriptive headings of the several Sections of this Rights Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
(b) Whenever the words "include," "includes" or "including" are used in this Rights Agreement, they shall be deemed to be
followed by the words "without limitation." The words "hereof," "herein" and "herewith" and words of similar import shall, unless otherwise stated, be construed to refer to this Rights Agreement as a whole and not to any particular provision of this
Rights Agreement, and article, section, subsection, paragraph and exhibit references are to the articles, sections, paragraphs and exhibits of this Rights Agreement unless otherwise specified. The meaning assigned to each term defined herein shall be
equally applicable to both the singular and the plural forms of such term, and words denoting any gender shall include all genders. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning.
35. Force Majeure. Notwithstanding anything to the contrary contained herein, the Rights Agent shall not be liable
for any delays or failures in performance of any act, duty, obligation or responsibility by reason of any occurrence beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage of supply, breakdowns or
malfunctions, interruptions or malfunction of any utilities, communications, or computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil
unrest.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Amended and Restated Stockholders Rights Agreement as of the date first written above.
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OCEANPAL INC.
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By:
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/s/ Robert Perri
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Name: Robert Perri
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Title: Co-Chief Executive Officer |
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COMPUTERSHARE TRUST COMPANY, N.A.,
as Rights Agent
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By:
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/s/ Rachel Fisher
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Name: Rachel Fisher
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Title: Sr Contract Negotiation Specialist
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[Signature Page to Amended and Restated Stockholders Rights Agreement]
Exhibit A
CERTIFICATE OF DESIGNATIONS OF RIGHTS, PREFERENCES AND PRIVILEGES OF SERIES A
PARTICIPATING PREFERRED STOCK OF OCEANPAL INC.
PARTICIPATING PREFERRED STOCK OF OCEANPAL INC.
The undersigned, Mr. Eleftherios Papatrifon and Mr. Ioannis Zafirakis, do hereby certify:
1. That they are the duly elected and acting Chief Executive Officer and Secretary, respectively, of OceanPal Inc., a Marshall Islands
corporation (the "Company").
2. That pursuant to the authority conferred by the Company's Amended and Restated Articles of Incorporation, the Company's Board of Directors on
November 2, 2021 adopted the following resolution designating and prescribing the relative rights, preferences and limitations of the Company's Series A Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors (the "Board") of the Company by the Articles of
Incorporation, the Board does hereby establish a series of preferred stock, par value $0.01 per share, and the designation and certain powers, preferences and other special rights of the shares of such series, and certain qualifications, limitations
and restrictions thereon, are hereby fixed as follows:
Section 1. Designation and Amount. The shares of such series shall be designated as "Series A Participating Preferred
Stock". The Series A Participating Preferred Stock shall have a par value of $0.01 per share, and the number of shares constituting such series shall initially be 1,000,000, which number the Board may from time to time increase or decrease (but
not below the number then outstanding).
Section 2. Proportional Adjustment. In the event the Company shall at any time after the issuance of any share or
shares of Series A Participating Preferred Stock (i) declare any dividend on the common stock of the Company par value $0.01 per share (the "Common Stock") payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in each such case the Company shall simultaneously effect a proportional adjustment to the number of outstanding shares of Series A Participating Preferred Stock.
Section 3. Dividends and Distributions.
(a) Subject to the prior and superior right of the holders of any shares of any series of preferred stock ranking prior and
superior to the shares of Series A Participating Preferred Stock with respect to dividends, the holders of shares of Series A Participating Preferred Stock shall be entitled to receive when, as and if declared by the Board out of funds legally
available for the purpose, quarterly dividends payable in cash on the last day of January, April, July and October in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Participating Preferred Stock, in an amount per share (rounded to the nearest cent) equal to 1,000 times the aggregate per share amount of all cash dividends,
and 1,000 times 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 the Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A
Participating Preferred Stock.
(b) The Company shall declare a dividend or distribution on the Series A Participating Preferred Stock as provided in
paragraph (a) above immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock).
(c) Dividends shall begin to accrue on outstanding shares of Series A Participating Preferred Stock from the Quarterly
Dividend Payment Date immediately preceding the date of issue of such shares of Series A Participating Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A
Participating Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A Participating Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board may fix a record date for the determination of holders of shares of Series A Participating Preferred Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days prior to the date fixed for the payment thereof.
Section 4. Voting Rights. The holders of shares of Series A Participating Preferred Stock shall have the following
voting rights:
(a) Each share of Series A Participating Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters
submitted to a vote of the stockholders of the Company.
(b) Except as otherwise provided herein or by law, the holders of shares of Series A Participating Preferred Stock and the
holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Company.
(c) Except as required by law, holders of Series A Participating Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.
Section 5. Certain Restrictions.
(a) The Company shall not declare any dividend on, make any distribution on, or redeem or purchase or otherwise acquire for
consideration any shares of Common Stock after the first issuance of a share or fraction of a share of Series A Participating Preferred Stock unless concurrently therewith it shall declare a dividend on the Series A Participating Preferred Stock as
required by Section 3 hereof.
(b) Whenever quarterly dividends or other dividends or distributions payable on the Series A Participating Preferred Stock as
provided in Section 3 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Participating Preferred Stock outstanding shall have been paid in full, the Company shall not
(i) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Participating Preferred Stock; (ii) declare or pay dividends on, make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with Series A Participating Preferred
Stock, except dividends paid ratably on the Series A Participating Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Participating Preferred Stock, provided that the Company
may at any time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares of any stock of the Company ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A
Participating Preferred Stock; (iv) purchase or otherwise acquire for consideration any shares of Series A Participating Preferred Stock, or any shares of stock ranking on a parity with the Series A Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined by the Board) to all holders of such shares upon such terms as the Board, after consideration of the respective annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.
(c) The Company shall not permit any subsidiary of the Company to purchase or otherwise acquire for consideration any shares
of stock of the Company unless the Company could, under paragraph (a) of this Section 5, purchase or otherwise acquire such shares at such time and in such manner.
Section 6. Reacquired Shares. Any shares of Series A Participating Preferred Stock purchased or otherwise acquired by
the Company in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of preferred stock and may be reissued as part of a new
series of preferred stock to be created by resolution or resolutions of the Board, subject to the conditions and restrictions on issuance set forth herein and, in the Articles of Incorporation, as then amended.
Section 7. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or winding up of the Company,
the holders of shares of Series A Participating Preferred Stock shall be entitled to receive an aggregate amount per share equal to 1,000 times the aggregate amount to be distributed per share to holders of shares of Common Stock plus an amount equal
to any accrued and unpaid dividends on such shares of Series A Participating Preferred Stock.
Section 8. Consolidation, Merger, etc. In case the Company shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series A Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or
exchanged.
Section 9. No Redemption. The shares of Series A Participating Preferred Stock shall not be redeemable.
Section 10. Ranking. The Series A Participating Preferred Stock shall rank junior to all other series of the
Company's preferred stock as to the payment of dividends and the distribution of assets, unless the terms of any such series shall provide otherwise.
Section 11. Amendment. The Articles of Incorporation of the Company shall not be further amended in any manner which
would materially alter or change the powers, preference or special rights of the Series A Participating Preferred Stock so as to affect them adversely without the affirmative vote of the holders of a majority of the outstanding shares of Series A
Participating Preferred Stock, voting separately as a class.
Section 12. Fractional Shares. Series A Participating Preferred Stock may be issued in fractions of a share which
shall entitle the holder, in proportion to such holder's fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series A Participating Preferred Stock.
RESOLVED FURTHER, that the Chief Executive Officer or any Vice President and the Secretary or any Assistant Secretary of this
Company be, and they hereby are, authorized and directed to prepare and file a Certificate of Designation of Rights, Preferences and Privileges in accordance with the foregoing resolution and the provisions of Marshall Islands law and to take such
actions as they may deem necessary or appropriate to carry out the intent of the foregoing resolution."
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
We further declare under penalty of perjury that the matters set forth in the foregoing Certificate of Designation are true
and correct of our own knowledge.
Executed in Athens, Greece on November 29, 2021.
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/s/ Eleftherios Papatrifon
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Eleftherios Papatrifon
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Chief Executive Officer
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/s/ Ioannis Zafirakis
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Ioannis Zafirakis
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Secretary
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Exhibit B
FORM OF RIGHTS CERTIFICATE
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Certificate No. R-
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Rights
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NOT EXERCISABLE AFTER NOVEMBER 28, 2031, UNLESS EXTENDED PRIOR THERETO BY THE BOARD OF DIRECTORS OF THE COMPANY, OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT AND EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF ANY SUCH PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [IF THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF THE RIGHTS AGREEMENT.]1
RIGHTS CERTIFICATE
OCEANPAL INC.
This certifies that ____________, or registered assigns, is the registered owner of the number of Rights set forth above,
each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of November 29, 2021, as amended and restated on December 16, 2022, September 6, 2024, January 22, 2025 and October 27, 2025
(the "Rights Agreement"), between OceanPal Inc., a Marshall Islands corporation (the "Company"), and Computershare Trust Company, N.A., a federally chartered trust company, as Rights Agent (the "Rights Agent"), to purchase from the Company at any time
after the Distribution Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M., New York time, on November 28, 2031 at the office or offices of the Rights Agent, or at the office or offices of its successor as Rights Agent, one
one-thousandth of a fully paid non-assessable share of Series A Participating Preferred Stock, $0.01 par value per share (the "Preferred Shares"), of the Company, at a purchase price of $25.00 per one one-thousandth of a Preferred Share (the "Purchase
Price"), upon presentation and surrender of this Rights Certificate with the Form of Election to Purchase duly executed. The number of Rights evidenced by this Rights Certificate (and the number of one one-thousandths of a Preferred Share which may be
purchased upon exercise hereof) set forth above, and the Purchase Price set forth above, are the number and Purchase Price as of November 29, 2021, based on the Preferred Shares as constituted at such date. As provided in the Rights Agreement, the
Purchase Price and the number of one one-thousandths of a Preferred Share which may be purchased upon the exercise of the Rights evidenced by this Rights Certificate are subject to modification and adjustment upon the happening of certain events.
This Rights Certificate is subject to all of the terms, covenants and restrictions of the Rights Agreement, which terms,
covenants and restrictions are hereby incorporated herein by reference and made a part hereof, and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the Rights Certificates. Copies of the Rights Agreement are on file at the principal executive offices of the Company.
______________________
1 [The portion of the legend in brackets shall be inserted only if applicable and shall replace the
preceding sentence.]
This Rights Certificate, with or without other Rights Certificates, upon surrender at the office of the Rights Agent
designated for such purpose, may be exchanged for another Rights Certificate or Rights Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Preferred Shares as the Rights evidenced by the
Rights Certificate or Rights Certificates surrendered shall have entitled such holder to purchase. If this Rights Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate (i) may be redeemed by the
Company at a redemption price of $0.01 per Right or (ii) may be exchanged in whole or in part for Preferred Shares or shares of the Company's Common Stock, par value $0.01 per share.
No fractional Preferred Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions
which are integral multiples of one one-thousandth of a Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate shall be entitled to vote or receive dividends or be deemed for any purpose the holder
of the Preferred Shares or of any other securities of the Company which may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of
the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Rights Certificate shall have been exercised as provided in
the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by an
authorized signatory of the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
Dated as of ___________, _______.
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ATTEST:
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OCEANPAL INC.
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By:
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Name:
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Name:
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Title:
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Title:
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Countersigned:
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Computershare Trust Company, N.A., as Rights Agent
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By:
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Authorized Signature
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FORM OF REVERSE SIDE OF RIGHTS CERTIFICATE
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
holder desires to transfer the Rights Certificate.)
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FOR VALUE RECEIVED
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hereby sells, assigns and transfers unto
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(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint Attorney, to
transfer the within Rights Certificate on the books of the within-named Company, with full power of substitution.
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Dated: ________________, _____.
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________________________________
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Signature
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Signature Guaranteed:
Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the
New York Stock Exchange, Inc. Medallion Signature Program.
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned or transferred by or on behalf of a Person who is or was an Acquiring Person
or an Affiliate or Associate of any Acquiring Person (as such terms are defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or subsequently became an Acquiring Person or an Affiliate or Associate thereof.
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Dated: ________________, _____.
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________________________________
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Signature
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Signature Guaranteed:
Signatures must be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level acceptable to the Company's
transfer agent.
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder
desires to exercise Rights represented by the Rights Certificate.)
desires to exercise Rights represented by the Rights Certificate.)
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TO:
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OCEANPAL INC.
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The undersigned hereby irrevocably elects to exercise _________ Rights represented by this Rights
Certificate to purchase the Preferred Shares issuable upon the exercise of such Rights and requests that certificates for such Preferred Shares be issued in the name of and delivered to:
(Please print name and address)
Please insert social security
or other tax identifying number
or other tax identifying number
If such number of Rights shall not be all the Rights evidenced by this Rights Certificate, a new Rights Certificate for the balance remaining of
such Rights shall be registered in the name of and delivered to:
(Please print name and address)
Please insert social security
or other tax identifying number
or other tax identifying number
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Dated: ________________, _____.
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________________________________
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Signature
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Signature Guaranteed:
Signatures must be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level acceptable to
the Company's transfer agent.
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned, transferred, or exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of an Acquiring Person (as such terms are defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or subsequently became an Acquiring Person or an Affiliate or Associate of an Acquiring Person.
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Dated: ________________, _____.
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________________________________
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Signature
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Signature Guaranteed:
Signatures must be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level acceptable to
the Company's transfer agent.
NOTICE
The signature in the Form of Assignment or Form of Election to Purchase, as the case may be, must conform to the name as written upon the face
of this Rights Certificate in every particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Company and the Rights Agent will deem the beneficial owner of the Rights evidenced by this Rights Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and such Assignment or
Election to Purchase will not be honored.
Exhibit C
SUMMARY OF RIGHTS
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Distribution and Transfer of Rights; Distribution Date:
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The rights will separate from the common stock and become exercisable after (1) the 10th day after public announcement that a person or group has acquired
ownership of 15% or more of the company's common stock or (2) the 10th business day (or such later date as determined by the company's board of directors) after a person or group announces a tender or exchange offer which would result in that
person or group holding 15% or more of the company's common stock.
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Preferred Stock Purchaseable Upon Exercise of Rights:
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On the Distribution Date, each holder of a right will be entitled to purchase for U.S. $25, subject to adjustment (the "Exercise Price") a fraction
(1/1000th) of one share of the company's preferred stock which has similar economic terms as one share of common stock.
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Flip-in:
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If an acquiring person (an "Acquiring Person") acquires more than 15% of the company's common stock then each holder of a right (except that acquiring
person) will be entitled to buy at the Exercise Price, a number of shares of the company's common stock which has a market value of twice the Exercise Price.
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Flip-over:
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If after an Acquiring Person acquires more than 15% of the company's common stock, the company merges into another company (either as the surviving entity or
as the disappearing entity) or the company sells more than 50% of its assets or earning power, then each holder of a right (except for those owned by the acquirer) will be entitled to purchase at the Exercise Price, a number of shares of common
stock of the surviving entity which has a then current market value of twice the Exercise Price.
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Exchange Provision:
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Any time after the date an Acquiring Person obtains more than 15% of the company's common stock and before that Acquiring Person acquires more than 50% of
the company's outstanding common stock, the company may exchange each right owned by all other rights holders, in whole or in part, for one share of the company's common stock.
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Redemption of Rights:
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The company can redeem the rights at any time prior to a public announcement that a person has acquired ownership of 15% or more of the company's common
stock.
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Expiration of Rights:
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The rights expire on the earliest of (1) November 28, 2031 or (2) the exchange or redemption of the rights as described above.
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Amendment of Terms of Rights:
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The terms of the rights and the Stockholders Rights Plan may be amended without the consent of the rights holders at any time on or prior to the Distribution
Date. After the Distribution Date, the terms of the rights and the Stockholders rights Plan may be amended to make changes, which do not adversely affect the rights of the rights holders (other than the Acquiring Person).
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Voting Rights:
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The rights will not have any voting rights.
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Anti-dilution Provisions:
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The rights will have the benefit of certain customary anti-dilution protections
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Exhibit 10.4
FORM OF LOCK-UP AGREEMENT
[Pubco]
[Pubco Address]
This agreement (this “Lock-up Agreement”) is being delivered to you in connection
with the proposed private placement offering of (i) shares of common stock, par value $0.01 per share (the “Common Stock”) of [•], a [•] corporation (the “Company”), and/or (ii) pre-funded warrants (the “Pre-Funded Warrants”) to purchase shares of Common Stock pursuant to that certain Subscription Agreement dated
[•], 2025 (the “Subscription Agreement”) by and between you and the Company (the “Offering”). Capitalized terms used herein, and
not otherwise defined herein, shall have the meaning ascribed to them in the Subscription Agreement.
In order to induce the Company to enter into the Subscription Agreement, and in light of the benefits that the Offering will confer upon you
in your capacity as a securityholder and/or a director or officer of the Company, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you hereby irrevocably agree that, without the prior written
consent of the Company, during the period beginning on the date of the Subscription Agreement through and including the date that is (i) the day the effectiveness (the “Registration Date”)
of the resale registration statement on Form F-3 (or Form F-1 as applicable) (the “Registration Statement”) registering for resale the Common Stock and the shares of Common Stock underlying
the Pre-Funded Warrants purchased in the Offering (collectively the “Acquired Securities”) with the United States Securities and Exchange Commission (the “Commission”) with respect to one-hundred percent (100%) of the Acquired Securities (the “Initial Lock-Up Period”); and (ii) the 30th day following
the Registration Date, with respect to fifty percent (50%) of the Acquired Securities (the “Subsequent Lock-Up Period” and, together with the Initial Lock- Up Period, the “Lock-Up Periods”), you will not directly or indirectly, (1) offer for sale, sell, assign, hypothecate, transfer, pledge, contract to sell, lend or otherwise transfer or dispose of (or enter into
any transaction or agreement that is designed to, or would reasonably be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock (including, without limitation, shares of Common Stock that may be
deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Commission and shares of Common Stock that may be issued upon exercise of any options or warrants) or securities convertible into or exercisable or
exchangeable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, (2) enter into any swap, hedge or similar agreement or arrangement
(including, without limitation, the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivatives transaction or instrument, however described or defined) that transfers, is designed to
transfer or reasonably could be expect to transfer (whether by the undersigned or someone other than the undersigned) to another, in whole or in part, directly or indirectly, any of the economic benefits or risks of ownership of shares of Common
Stock or any Acquired Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of shares of Common Stock or other securities of the Company, in cash or otherwise, (3) make any demand for or exercise
any right to file, cause to be filed or cause to be confidentially submitted any registration statement, including any amendments thereto, with respect to the registration of any shares of Common Stock, the Acquired Securities, or securities
convertible into or exercisable or exchangeable for Common Stock or any other
securities of the Company, provided that, to the extent the undersigned has demand and/or piggyback registration rights under any registration rights agreement,
investor rights agreement or similar agreement, the undersigned may notify the Company privately that the undersigned is or will be exercising its demand and/or piggyback registration rights under any such agreement following the expiration of the
respective Lock-Up Period and undertake preparations related thereto, or (4) publicly disclose the intention to do any of the foregoing (the “Lock-Up Restrictions”). Notwithstanding the
foregoing, in no event shall the Initial Lock-Up Period extend beyond the date that is one hundred eighty (180) days following the Closing Date (the “Outside Release Date”), whether or not
the Registration Date has occurred. Accordingly, the Lock-Up Restrictions shall automatically terminate with respect to all Acquired Securities on the Outside Release Date if the Registration Date has not occurred by such date. Furthermore, the
Lock-Up Restrictions shall automatically terminate once the Subscriber is permitted to sell all of its Acquired Securities under Rule 144 without restriction, regardless of whether the Registration Statement has been declared effective.
The foregoing restrictions are expressly agreed to preclude you from engaging in any hedging or other transaction which is designed to, or
which reasonably could be expected to, lead to or result in a sale or disposition of shares of Common Stock or any other securities of the Company even if such Common Stock or other securities of the Company would be disposed of by someone other than
the undersigned, including, without limitation, any short sale or any purchase, sale or grant of any right (including without limitation any put or call option, forward, swap or any other derivative transaction or instrument) with respect to any
shares of Common Stock, or any other security of the Company that includes, relates to, or derives any significant part of its value from shares of Common Stock or other securities of the Company.
The foregoing restrictions, including without limitation the immediately preceding sentence, shall not apply to:
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(a)
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(i) any bona fide charitable gift or gifts, including, without limitation, to a charitable organization or
educational institution, or (ii) bona fide gifts, sales or other dispositions of shares of any class of the Company’s capital stock, in each case, that are made exclusively between and among the undersigned or members of the undersigned’s
family, or affiliates of the undersigned, including its partners (if a partnership) or members (if a limited liability company); provided, that it shall be a condition to any transfer pursuant to
this clause (a) that (1) the transferee/donee agrees to be bound by the terms of this Lock-Up Letter Agreement (including, without limitation, the restrictions set forth in the preceding paragraph) to the same extent as if the
transferee/donee were a party hereto, (2) any such transfer shall not involve a disposition for value, (3) each party (donor, donee, transferor or transferee) shall agree to not voluntarily make, any filing or public announcement of the
gift, sale or other disposition prior to the expiration of the respective Lock- Up Period, and (4) the undersigned notifies the Company at least two business days prior to the proposed gift, sale or other disposition;
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(b)
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the exercise or settlement of stock options or other equity awards granted pursuant to the Company’s stock option/incentive plans or
awards, provided, that the restrictions shall apply to shares of Common Stock issued upon such exercise;
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(c)
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any transfers by will or intestacy; provided, that no public disclosure or filing under the Exchange Act shall be voluntarily
made during the respective Lock-Up Period and any required filing under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), made during the Lock-Up Period shall
clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause (c);
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(d)
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any transfers pursuant to a court order or settlement agreement related to the distribution of assets in connection with the dissolution of a marriage or civil union, provided, that no public disclosure or filing under the Exchange Act shall be voluntarily made during the Lock-Up Period and any required filing under the Exchange Act made during the respective Lock-Up
Period shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause (d);
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(e)
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transfers or dispositions of shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for, such capital stock to any
trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned in a transaction not involving a disposition for value, or, if the undersigned is a trust, to a trustor or beneficiary of the trust, or,
if the undersigned is a corporation, partnership, limited liability company or other business entity, to another corporation, partnership, limited liability company or other business entity that controls, is controlled by or is under common
control with the undersigned or as part of a disposition, transfer or distribution by the undersigned to partners, limited partners, stockholders, members or equityholders of the undersigned, provided, in each case, that (1) any transferee
agrees to be bound by the terms of this Lock-Up Letter Agreement (including, without limitation, the restrictions set forth in the preceding sentence) to the same extent as if the transferee(s) were a party hereto, (2) any such transfer
shall not involve a disposition for value, (3) no public disclosure or filing under the Exchange Act shall be voluntarily made during the respective Lock-Up Period and (4) any required filing under the Exchange Act made during the
respective Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause (e);
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(f)
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the exercise of the Pre-Funded Warrants or the conversion, exercise or exchange of any other securities of the Company, into Common Stock or any other securities of
the Company, provided, that such shares of Common Stock or other securities issued upon conversion, exercise or exchange remain subject to the terms of this Lock-Up Letter Agreement;
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(g)
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any transfers or commitments to transfer pursuant to a merger, consolidation, tender offer or other similar transaction involving a Change of Control (as defined
below) or reverse merger, provided, that in the event that such merger, consolidation, tender offer or other such transaction involving a Change of Control or reverse merger is not completed, such shares of Common Stock or other securities
held by the undersigned shall remain subject to the provisions of this Lock-Up Letter Agreement;
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(h)
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the transfer by the undersigned of shares of Common Stock or any securities convertible into, exercisable or exchangeable for, shares of Common Stock to the Company
upon a vesting or settlement event of the Company’s securities or upon the exercise of options or warrants to purchase the Company’s securities on a “cashless” or “net exercise” basis, or in a “sell-to-cover” transaction, in each case,
pursuant to any equity incentive plan or award of the Company and to the extent permitted by the instruments representing such options or warrants outstanding as of the date of the Subscription Agreement, provided, that (1) the shares
received upon exercise or settlement of such option or warrant or other security are subject to the terms of this Lock-Up Letter Agreement, (2) no public disclosure or filing under the Exchange Act shall be voluntarily made during the
respective Lock-Up Period and (3) any required filing under the Exchange Act made during the respective Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause
(h);
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(i)
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the transfer of shares of Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Common Stock to the Company in connection with the
termination of the undersigned’s employment with the Company, provided, that no public disclosure or filing under the Exchange Act shall be voluntarily made during the respective Lock-Up Period and any required filing under the Exchange Act
made during the respective Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause (i);
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(j)
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transfers that are approved by the prior written consent of the Company;
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(k)
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sales of shares of Common Stock purchased by the undersigned on the open market following the date of the Subscription Agreement, provided, that any required filing under
the Exchange Act made during the respective Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause (k); and
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(l)
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transfers to any affiliate (as defined in Rule 405 under the Securities Act of 1933, as amended), provided that (i) such transfer is not for value, (ii) the affiliate
transferee agrees in writing, prior to such transfer, to be bound by the terms of this Lock-Up Letter Agreement to the same extent as if the affiliate were an original party hereto, and (iii) the undersigned provides the Company with at
least two (2) business days’ prior written notice of such transfer, including the identity of the affiliate transferee and a copy of the executed agreement by which the affiliate agrees to be bound by this Lock-Up Letter Agreement.
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Notwithstanding the restrictions imposed by this Lock-Up Letter Agreement, the undersigned may establish or enter into a trading plan
pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided, that such plan does not provide for any transfers of shares of Common Stock, and no filing under the
Exchange Act or other public announcement shall be required or voluntarily made by the undersigned or any other person in connection therewith, in each case during the respective Lock-Up Period.
“Change of Control” shall mean the consummation of any bona fide third party
tender offer, merger, consolidation or other similar transaction, in one transaction or a series of related transactions, the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of more than 50% of the voting capital stock of the Company (or the surviving entity).
Delivery of an executed Lock-Up Letter Agreement by one party to any other party may be made by facsimile, electronic mail (including PDF or
any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method, and the parties hereto agree that any copy so delivered shall be deemed to have been duly and
validly delivered and be valid and effective for all purposes.
This Lock-Up Letter Agreement and any transaction contemplated by this Lock-Up Letter Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflict of laws principles that would result in the application of any other law than the laws of the State of New York (other than Section 5-1401 of the General Obligations Law).
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Letter Agreement.
Any obligations of the undersigned shall be binding upon the heirs and executors (in the case of individuals), personal representatives, successors and assigns of the undersigned.
Dated: [•], 2025
_________________________________________________________
(Name - Please Print)
_________________________________________________________
(Signature)
__________________________________________________________
(Name of Signatory, in the case of entities - Please Print)
__________________________________________________________
(Title of Signatory, in the case of entities - Please Print)
Address:
[Signature Page to the Lock-Up Letter Agreement]
Exhibit 99.1
OceanPal in Partnership with NEAR Foundation Announces $120M PIPE Investment to Launch SovereignAI to Buildout Near-Powered AI Infrastructure
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OceanPal launches SovereignAI focused on commercializing the NEAR Protocol
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Deep alignment on a shared vision for universal AI sovereignty with the NEAR Foundation will facilitate the implementation of a NEAR treasury strategy
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Capital generated from treasury management strategy will be used to build a unique blockchain-native, confidential AI-cloud infrastructure using NVIDIA
tech and powered by NEAR
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ATHENS, GREECE & NEW YORK – October 28, 2025 – OceanPal Inc. (“OceanPal”, “OP”, NASDAQ:
OP), today announced the closing of a $120M private investment in public equity transaction for the purchase and sale of common stock and/or pre-funded warrants to purchase shares of common stock (the “Offering”). The Company intends to use the net
proceeds of the transaction to implement a digital asset treasury strategy through its new wholly owned subsidiary, SovereignAI Services LLC (“SovereignAI”), focused on commercializing the NEAR Protocol, a blockchain platform architected for
Artificial Intelligence (“AI”) use cases. As a result of this transaction, OP, through SovereignAI, is expected to serve as the leading public investment vehicle to gain exposure to NEAR, the NEAR Protocol’s native token, and the foundational AI
infrastructure needed to enable agentic commerce.
The NEAR Protocol’s focus on agentic AI & chain abstraction aligns with increasing institutional interest in automation, compliance, and scalable AI infrastructure, proven by
continued support from leading TradFi and crypto-native funds. NEAR’s AI-centric tech stack allows AI agents to function as independent economic actors, allowing them to transact, manage assets, and make automated decisions, all while maintaining
data privacy, governance, and economic rights of their end users.
SovereignAI intends to monetize its infrastructure business by accumulating NEAR with the objective of acquiring at least 10% of the NEAR token supply over time. SovereignAI
represents an evolution in the treasury company landscape, moving beyond passive accumulation models to focus on the successful execution against operating and infrastructure businesses, leveraging the yield from its balance sheet to build an
innovative unique blockchain-native, confidential AI infrastructure.
"We believe NEAR presents the greatest asymmetric upside across mature projects in the digital asset market, which we aim to capture and offer to our shareholders,” said OceanPal’s
newly appointed Co-CEO, Sal Ternullo. “This is a public company launching as an active, strategic partner with the NEAR Foundation to advance a shared vision of universal AI sovereignty by leveraging the NEAR Protocol’s vertically integrated AI
products and rails, which were purpose-built for these exact use cases. We plan to use this decentralized, confidential compute infrastructure to capitalize on the explosive demand for privacy-first, regulatory compliant AI across enterprise markets
including finance, healthcare, and media while enabling businesses and consumers to maintain control and ownership."
Mr. Ternullo brings deep expertise in early-stage investing, asset management, and working with frontier technologies at firms like State Street, KPMG, most recently serving as
General Partner at A100x. The OP executive team also includes newly appointed Chief Operating Officer (“COO”), David Schwed, who brings extensive experience in information security and privacy in both traditional financial institutions and
crypto-native contexts, working at firms including BNY and Galaxy, while most recently serving as the Chief Information Security Officer for Brokerage & Money at Robinhood.
“SovereignAI is positioned at the convergence of two massive transformations - AI and digital ownership,” said Mr. Schwed. “Our strategy goes beyond treasury management to actively
build the infrastructure enabling user-owned, privacy-preserving AI at scale. NEAR Protocol’s architecture provides the trust, security, and economic alignment necessary to realize true AI sovereignty and unlock the next generation of autonomous
agent commerce.”
The strategy is supported by NEAR Protocol ecosystem-aligned strategic advisors, leading investors, and operating partners. The NEAR Foundation and the following key individuals
will not only contribute capital to the transaction but will also support the strategy on a go-forward basis. OP has constructed a world class Advisory Board for SovereignAI chaired by Illia Polosukhin, CEO & co-founder NEAR Foundation,
alongside, Richard Muirhead (founder, Fabric Ventures & NEAR Foundation Council member since inception), Lukasz Kaiser (OpenAI), Philippe Sachs (Nscale), Andy Brown (Sandhill East), and Jackie Kennedy (Quicknode) providing direct access to AI
experts, hyperscalers and infrastructure companies to deliver on its mission.
“We are very pleased to welcome SovereignAI to the NEAR ecosystem,” said Mr. Polosukhin, CEO & co-founder NEAR Foundation. “I look forward to working with them to realize a
shared vision of achieving true universal AI sovereignty by enabling private, user-owned AI and autonomous agent commerce. We believe the NEAR Protocol’s AI-centric tech stack will allow user-owned AI to meet its moment.”
The transaction involved several strategic participants, including crypto-native investors such as Kraken, Proximity, Fabric Ventures, G20 Group – among others. Clear Street LLC and
Cohen & Company Capital Markets, a division of Cohen & Company Securities, LLC (“CCM”), served as financial advisors and placement agents to SovereignAI. Sealion Capital LLC served as advisor to OceanPal Inc.
Reed Smith LLP served as legal advisor to NEAR Foundation and will represent SovereignAI following the closing of the Offering. Paul Hastings LLP served as legal advisor to Clear
Street LLC and CCM, and Seward & Kissel LLP acted as legal advisors to OceanPal Inc.
Following the transaction, OP will continue to operate as a global provider of shipping transportation services, specializing in the ownership and operation of dry bulk vessels and
product tankers. OP expects to continue its seaborne transportation of bulk commodities as well as refined petroleum products.
Securities Disclaimers:
The information provided in this press release is intended for informational purposes only and does not constitute investment advice, endorsement, analysis, or recommendations with
respect to any financial instruments, investments, or issuers. Investment in cryptocurrency and NEAR projects involves substantial risk, including the risk of complete loss. This press release does not take into account the investment objectives,
financial situation, or specific needs of any particular person and each individual is urged to consult their legal and financial advisors before making any investment decisions.
The offer and sale of the securities in the Offering, including the shares of common stock underlying the pre-funded warrants, was made to institutional accredited investors in a
transaction not involving a public offering pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the "Securities Act"), and have not been registered under the Securities Act or applicable state securities laws. Accordingly, the
securities issued in the Offering and shares of common stock underlying the pre-funded warrants may not be offered or sold in the United States except pursuant to an effective registration statement with the Securities and Exchange Commission ("SEC")
or an applicable exemption from the registration requirements of the Securities Act and such other applicable state securities laws.
This press release shall not constitute an offer to sell or a solicitation of an offer to buy any of the securities described herein, nor shall there be any sale of these securities
in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction.
The private placement was conducted in accordance with applicable Nasdaq rules and was priced to satisfy the "Minimum Price" requirement (as defined in the Nasdaq rules).
About OceanPal Inc.
OceanPal Inc. is a global provider of shipping transportation services, specializing in the ownership and operation of dry bulk vessels and product tankers. OP is engaged in the seaborne
transportation of bulk commodities, including iron ore, coal, and grain, as well as refined petroleum products. OP’s fleet is primarily employed on time charter trips with short to medium duration and spot charters, with a strategic focus on
maximizing long-term shareholder value.
About SovereignAI
SovereignAI is a wholly owned subsidiary of OP formed to implement the company’s digital asset treasury strategy, and developer of confidential AI infrastructure offering a
superior path to get exposure to the intersection of AI and blockchain in the public markets. SovereignAI will use NEAR Protocol’s purpose-built technology to establish private, user-owned agentic commerce. Funds generated by SovereignAI’s holistic
treasury management strategy of NEAR tokens will be used to further the Company’s goal of building unique blockchain-native AI infrastructure.
To learn more about SovereignAI, please visit: https://www.svrn.net/
Media Contact: [email protected]
Cautionary Note Regarding Forward-Looking Statements
This press release contains statements that constitute “forward-looking statements” within the meaning of the U.S. federal securities laws. Forward-looking statements are statements other than
historical facts and include, without limitation, statements regarding the potential for and amount of additional cash proceeds from warrant exercises, the anticipated use of proceeds from the announced Offering, future announcements and
priorities, expectations regarding management, corporate governance, market position, business strategies, future financial and operating performance, and other projections or statements of plans and objectives.
These forward-looking statements are based on current expectations, estimates, assumptions, and projections, and involve known and unknown risks, uncertainties, and other factors—many of which are
beyond OP’s control—that may cause actual results, performance, or achievements to differ materially from those expressed or implied by such statements. Important factors that may affect actual results include, among others, OP’s ability to execute
its growth strategy; its ability to raise and deploy capital effectively; developments in technology and the competitive landscape; the market performance of NEAR; and other risks and uncertainties described under “Risk Factors” in OP’s Annual
Report on Form 20-F filed with the SEC on April 15, 2025, and in other subsequent filings with the SEC. These filings are available at www.sec.gov. OP undertakes no obligation to update or revise any forward-looking statements, whether as a
result of new information, future events, or otherwise, except as required by law.