PREFERRED STOCK PURCHASE AGREEMENT among eagle bulk shipping inc. and the Parties listed on schedule 1 hereto Dated as of May 26, 2016 PREFERRED STOCK PURCHASE AGREEMENT

EX-10.1 2 ex10-1.htm EXHIBIT 10.1 ex10-1.htm

Exhibit 10.1

EXECUTION VERSION

PREFERRED STOCK PURCHASE AGREEMENT

among

eagle bulk shipping inc.

and

the Parties listed on schedule 1 hereto

Dated as of May 26, 2016

PREFERRED STOCK PURCHASE AGREEMENT

PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of May 26, 2016, by and among Eagle Bulk Shipping Inc., a Marshall Islands corporation (the “Company”), and the parties listed on Schedule 1 hereto (each, a “Purchaser,” and collectively, the “Purchasers”).

RECITALS

WHEREAS, the Company has deemed it advisable and in its best interests to issue and sell to the Purchasers, and each Purchaser has deemed it advisable and in its best interest to purchase from the Company, the number of shares (the “Shares”) of 15% Cumulative Nonparticipating Redeemable Series A Preferred Stock, par value $0.01 per share (the “Preferred Stock”), set forth next to each Purchaser’s name on Schedule 1 hereto, subject to the terms and conditions set forth in this Agreement; and

WHEREAS, in order to permit the issuance of the Shares of Preferred Stock, the Company deems it advisable and in its best interests to seek the approval of the holders of its Common Stock of an amendment to its Articles of Incorporation pursuant to the Shareholder Approval.

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.1 Definitions. In this Agreement, unless the context otherwise requires, the following terms shall have the respective meanings specified or referred to in this Section 1.1:

“Action” means any action, claim, suit, arbitration, inquiry, subpoena, discovery request, proceeding or investigation by or before any court or grand jury, any governmental or other regulatory or administrative entity, agency or commission or any arbitration tribunal.

“Affiliate” means, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, “control,” when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. The terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Agreement” has the meaning specified in the Preamble.

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“Articles of Incorporation” means the Second Amended and Restated Articles of Incorporation of the Company.

“Closing” has the meaning specified in Section 2.2(a).

“Closing Date” has the meaning specified in Section 2.2(a).

“Common Stock” means the common stock, $.01 par value, of the Company.

“Company” has the meaning specified in the Preamble.

“Court Order” means any judgment, order, award or decree of any foreign, Federal, state, local or other court or administrative or regulatory body and any award in any arbitration proceeding.

“Encumbrance” means any lien (statutory or other), encumbrance, claim, charge, security interest, mortgage, deed of trust, pledge, hypothecation, assignment, conditional sale or other title retention agreement, preference, priority or other security agreement or preferential arrangement of any kind or nature, and any easement, encroachment, covenant, restriction, right of way, defect in title or other encumbrance of any kind.

“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.

“Governmental Body” means any foreign, Federal, state, local or other government, governmental, statutory or administrative authority or regulatory body, self-regulatory organization or any court, tribunal or judicial or arbitral body.

“Losses” means any and all losses, costs, obligations, liabilities, settlement payments, awards, judgments, fines, penalties, damages, fees, expenses, deficiencies, claims or other charges, absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown (including the costs and expenses of any and all Actions, threatened Actions, demands, assessments, judgments, settlements and compromises relating thereto and reasonable attorneys’ fees and any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any such Actions or threatened Actions).

“Party” means the Company and each individual or financial institution listed on Schedule 1 hereto.

“Person” means any individual, partnership, corporation, limited liability company, association, joint venture, joint-stock company, trust, unincorporated organization, Governmental Body or other entity.

“Preferred Stock” has the meaning specified in the Preamble.

“Purchasers” has the meaning specified in the Preamble.

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“Registrar” means the Registrar of Corporations of the Republic of the Marshall Islands.

“Requirements of Law” means any applicable foreign, Federal, state and local laws, statutes, regulations, rules, codes, ordinances, Court Orders and requirements enacted, adopted, issued or promulgated by any Governmental Body or common law or any applicable consent decree or settlement agreement entered into with any Governmental Body.

“Securities Act” means the Securities Act of 1933, as amended.

“Shareholder Approval” shall mean the approval by the holders of the Common Stock pursuant to Article FOURTEENTH of the Articles of Incorporation of an amendment to Article FOURTH of the Articles of Incorporation to specify the total number of shares of preferred stock that the Company is authorized to issue as required by Section 28(e) of the Business Corporations Act of the Republic of the Marshall Islands.

“Shares” has the meaning specified in the Preamble.

“Statement of Designations” means the Statement of the Designations, Preferences and Rights of the Preferred Stock adopted by the Board of Directors of the Company and duly filed with the Registrar on or before the Closing Date substantially in the form attached hereto as Exhibit A.

“Subsidiary” means any corporation or other entity in which the Company owns or controls more than fifty percent (50%) of (i) the equity interests or (ii) the voting power of the voting equity securities of any such corporation or other entity.

Section 1.2 Interpretation.

(a) In this Agreement, unless the context clearly indicates otherwise:

(i) words used in the singular include the plural and words in the plural include the singular;

(ii) reference to any gender includes the other gender;

(iii) the word “including” (and with correlative meaning “include”) means “including but not limited to” or “including without limitation”;

(iv) reference to any Article, Section, Exhibit or Schedule means such Article or Section of, or such Exhibit or Schedule to, this Agreement, as the case may be, and reference in any Section or definition to any clause means such clause of such Section or definition;

(v) the words “herein,” “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof;

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(vi) reference to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement;

(vii) reference to any law (including statutes and ordinances) means such law (including all rules and regulations promulgated thereunder) as amended, modified, codified or reenacted, in whole or in part, and in effect at the time of determining compliance or applicability;

(viii) relative to the determination of any period of time, “from” means “from and including,” “to” means “to but excluding” and “through” means “through and including”; and

(ix) the titles to Articles and headings of Sections contained in this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of or to affect the meaning or interpretation of this Agreement.

(b) This Agreement was negotiated by the Parties with the benefit of legal representation, and no rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any Party shall apply to any construction or interpretation hereof. Subject to Section 8.6, this Agreement shall be interpreted and construed to the maximum extent possible so as to uphold the enforceability of each of the terms and provisions hereof.

ARTICLE II

PURCHASE AND ISSUANCE OF PREFERRED STOCK

Section 2.1 Purchase and Issuance of Preferred Stock. At the Closing, upon the terms and conditions set forth in this Agreement, the Company shall issue and sell to each Purchaser, and each Purchaser shall, severally and not jointly, purchase from the Company, the number of Shares of Preferred Stock set forth next to each Purchaser’s name on Schedule 1 hereto at a purchase price equal to $1,000.00 per share with a 1.0% original issue discount (the “Purchase Price”). If any Purchaser defaults in the payment of such Purchase Price for such Purchaser’s Shares of Preferred Stock at the Closing (a “Defaulting Purchaser”), the non-defaulting Purchasers may make arrangements satisfactory to the Company for the purchase of the Shares of Preferred Stock that were to be purchased by the Defaulting Purchaser by any of the non-defaulting Purchasers or by any other Person reasonably acceptable to the Company; provided, that such arrangements and purchase by any non-defaulting Purchaser or other person shall in no way relieve such Defaulting Purchaser of any liability under this Agreement.

Section 2.2 The Closing.

(a) The closing of the transactions contemplated hereby (the “Closing”) will take place at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York on the third business day after the satisfaction or waiver of the conditions set forth in Article VI (other than those conditions that by their nature are satisfied at the Closing); or at such other time and date to be agreed by the Purchasers purchasing a majority of the Preferred Stock and the Company (such date and time of delivery and payment for the Preferred Stock being herein called, the “Closing Date”).

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(b) At the Closing, the Company shall issue and deliver to each Purchaser one or more stock certificates, duly executed by the Company and registered in the Company’s stock ledger in each Purchaser’s name, representing the number of Shares of Preferred Stock being purchased by such Purchaser at the Closing. As payment in full for the Shares of Preferred Stock being purchased by it under this Agreement, at the Closing each Purchaser shall pay to the Company, by wire transfer to an account specified by the Company, in immediately available funds, the amount set forth opposite the name of such Purchaser on Schedule 1.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

As an inducement to the Purchasers to enter into this Agreement and to consummate the transactions contemplated hereby, the Company represents and warrants, as of the date hereof and as of the Closing Date, as follows:

Section 3.1 Organization. The Company and each Subsidiary is duly incorporated or formed and validly existing and in good standing under the law of its jurisdiction of incorporation or formation.

Section 3.2 Authorization. The Company has all requisite power and authority to execute and deliver this Agreement and, after giving effect to the Shareholder Approval and the amendment to the Articles of Incorporation contemplated thereby, to perform its obligations hereunder in accordance with the terms hereof. The execution, delivery and performance of this Agreement by the Company have been duly authorized by all necessary corporate action, including in compliance with Article ELEVENTH of the Articles of Incorporation. This Agreement has been, and at or prior to the Closing, will have been, duly executed and delivered by the Company, and this Agreement constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting the enforcement of creditors’ rights generally and by general equitable principles.

Section 3.3 No Violation; Consents and Approvals. The execution and delivery by the Company of this Agreement does not, and the consummation by the Company of any of the transactions contemplated hereby and compliance by the Company with the terms, conditions and provisions hereof (including the issuance of the Preferred Stock) will not:

(i) after giving effect to the Shareholder Approval and the amendment to the Articles of Incorporation contemplated thereby, conflict with, violate, result (with the giving of notice or passage of time or both) in a breach of the terms, conditions or provisions of, or constitute a default, an event of default or an event creating rights of acceleration, termination or cancellation or a loss of rights under, or result in the creation or imposition of any Encumbrance upon any of the assets or properties of the Company or any Subsidiary under (A) the articles of incorporation or certificate of formation or the by-laws or limited liability company agreement, each as applicable, of the Company or any Subsidiary, (B) any note, instrument, agreement, contract, mortgage, lease, license, franchise, guarantee, permit or other authorization, right, restriction or obligation to which the Company or any Subsidiary is a party or any of their respective assets or properties is subject or by which the Company or any Subsidiary is bound, (C) any Court Order to which the Company or any Subsidiary is a party or any of their respective assets or properties is subject or by which the Company or any Subsidiary is bound, or (D) any Requirements of Law applicable to the Company or any Subsidiary or any of their respective assets or properties; or

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(ii) require the approval, consent, authorization or act of, or the making by the Company or any Subsidiary of any declaration, filing or registration with, any Person (including under the Securities Act or state securities laws), except for the requisite filing of the Statement of Designations, the amendment of the Articles of Incorporation to give effect to the Shareholder Approval, the applicable reporting requirements of the Exchange Act and the filing of a notice of an exempt offering on Form D for the transactions contemplated by this Agreement.

Section 3.4 Capital Structure. As of the date hereof, the authorized capital stock of the Company consists of 150,000,000 shares of Common Stock, of which 45,713,023, shares are issued and outstanding, and all such outstanding shares of Common Stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. After giving effect to the Shareholder Approval and the amendment to the Articles of Incorporation contemplated thereby, the shares of Preferred Stock will be duly authorized, and when issued in accordance with this Agreement, (i) will be validly issued, fully paid and non-assessable and will be free and clear of any Encumbrances (other than, with respect to any Purchaser, any Encumbrances created by or through such Purchaser and restrictions on transfer imposed by the Securities Act, and applicable state securities laws) and the Purchasers will have good title thereto, (ii) will have the rights, preferences and privileges described in the Statement of Designations, (iii) will not have been issued in violation of any preemptive or subscription rights and will not result in the antidilution provisions of any security of the Company becoming applicable, and (iv) assuming the accuracy of the representations made by the Purchasers in Section 4.4, the offer and sale of the Shares of Preferred Stock by the Company will not require registration under the Securities Act.

Section 3.5 Compliance with Laws. (a) The Company and each of the Subsidiaries is in compliance with all laws and regulatory requirements to which it is subject, except for such non-compliance that (i) could not reasonably be expected to have a material adverse effect on the business, assets, operations, financial position or results of operations of the Company and the Subsidiaries, taken as a whole or (ii) occurs as a direct result of any proceedings or investigations directly with respect to the matters described under the Section “Legal Proceedings” under Note 6 to the Company’s unaudited consolidated financial statements included in the Company’s Quarterly Report on Form 10-Q filed with the SEC for the period ended March 31, 2016.

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(b) The Company shall not directly or, to the best of the Company’s knowledge (after due and careful inquiry) indirectly, use the proceeds of the sale of the Shares of Preferred Stock to be issued under this Agreement, or lend, contribute or otherwise make available such proceeds directly or, to the best of the Company’s knowledge (after due and careful inquiry) indirectly, to any subsidiary, joint venture partner or other person in any manner or for any purpose prohibited by U.S. economic or trade sanctions.

Section 3.6 Private Offering. No form of general solicitation or general advertising was used by the Company or its representatives in connection with the offer or sale of the Shares of Preferred Stock to be issued under this Agreement. No registration of the shares of Preferred Stock to be issued under this Agreement, pursuant to any provision of the Securities Act or any state securities or “blue sky” laws, will be required by the offer, sale or issuance of the shares of Preferred Stock to be issued under this Agreement. The Company agrees that neither it, nor, anyone acting on its behalf, shall offer to sell the Shares of Preferred Stock to be issued under this Agreement or any other securities of the Company so as to require the registration of the Shares of Preferred Stock being offered hereby pursuant to the provisions of the Securities Act or any state securities or “blue sky” laws, unless the offer and sale of the Shares of Preferred Stock to be issued under this Agreement or such other securities is so registered.

Section 3.7 Disclosure. The Company is in compliance with its reporting obligations under Section 13 of the Exchange Act.

Section 3.8 Financial Statements. The historical audited consolidated financial statements included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015 (the “Audited Financial Statements”) and the historical unaudited consolidated financial statements included in the Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2016 (the “Interim Financial Statements” and, together with the Audited Financial Statements, the “Financial Statements”), present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements have been prepared in all material respects in conformity with the generally accepted accounting principles in the United States applied on a consistent basis for the periods shown (except as otherwise noted in the Financial Statements, including changes resulting from the Company’s adoption of “fresh-start” accounting principles effective as of October 16, 2014, and except in the case of the Interim Financial Statements, as permitted for Quarterly Reports on Form 10-Q, and that such Interim Financial Statements are subject to normal recurring year-end adjustments in the ordinary course of business).

Section 3.9 No Material Adverse Change in Business. Since December 31, 2015, there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business or properties of the Company and its subsidiaries, taken as a whole, that is material and adverse, except as set forth in the Company’s filings with the SEC made pursuant to the requirements of the Exchange Act after December 31, 2015, and prior to the date that is three business days prior to the date of this Agreement.

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Section 3.10 Section 16. The Board of Directors has approved the issuance and sale of the Preferred Stock in the manner required to exempt the acquisition of such Preferred Stock from Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE Purchasers

As an inducement to the Company to enter into this Agreement and to consummate the transactions contemplated hereby, each Purchaser, severally and not jointly, represents and warrants, as of the date hereof and as of the Closing Date, as follows:

Section 4.1 Organization. Such Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized.

Section 4.2 Authorization. Such Purchaser has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder in accordance with the terms hereof. This Agreement has been and at or prior to the Closing, will have been, duly executed and delivered by such Purchaser, and constitutes the legal, valid and binding obligation of such Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting the enforcement of creditors’ rights generally and by general equitable principles.

Section 4.3 No Violation. The execution and delivery and performance by such Purchaser of this Agreement do not conflict with, violate or result (with the giving of notice or passage of time or both) in a breach of the terms, conditions or provisions of the certificate of incorporation or by-laws or comparable organizational documents of such Purchaser, or any Court Order to which such Purchaser is a party.

Section 4.4 Investment Representations.

(a) Such Purchaser is acquiring the shares of the Preferred Stock to be issued under this Agreement to such Purchaser for its own account with the present intention of holding such securities for purposes of investment, and it has no intention of selling such securities in a public distribution in violation of the Federal securities laws or any applicable state securities laws.

(b) Such Purchaser is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act.

(c) Such Purchaser understands that (i) the shares of the Preferred Stock to be issued hereunder have not been and will not be registered under the Securities Act, or any applicable state securities laws, and will be issued in reliance on exemptions from the registration requirements under the Securities Act and state securities laws, and may not be re-offered or resold except through a valid and effective registration statement or pursuant to a valid exemption from the registration requirements under the Securities Act and applicable state securities laws, and (ii) the certificates that will be issued upon the issuance of such shares of the Preferred Stock will contain a legend with reference to the necessity for compliance with state and Federal securities laws in substantially the forms set forth in Section 5.1.

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(d) Such Purchaser has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Company, and has so evaluated the merits and risks of such investment, and understands that it may be required to bear the risks thereof.

(e) Such Purchaser has conducted its own independent evaluation, made its own analysis and consulted with advisors as it has deemed necessary, prudent, or advisable in order for such Purchaser to make its own determination and decision to enter into the transactions contemplated by this Agreement and to execute and deliver this Agreement.

(f) Such Purchaser has adequate information to evaluate the transactions contemplated by this Agreement and has had the opportunity to discuss such information with a representative of the Company and to obtain and review information reasonably requested by the Purchaser.

(g) Such Purchaser is not purchasing the Shares of Preferred Stock as a result of any advertisement, article, notice or other communication regarding the Shares of Preferred Stock published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to such Purchaser’s knowledge, any other general solicitation or general advertisement. Neither such Purchaser nor its Affiliates or any person acting on its or any of their behalf has engaged, or will engage, in any form of general solicitation or general advertising (within the meaning of Rule 502(c) under the Securities Act) in connection with the offering of the Shares of Preferred Stock.

(h) No brokerage or finder’s fees or commissions are or will be payable by such Purchaser to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the issuance of the Shares of Preferred Stock, and such Purchaser has not taken any action that could cause the Company to be liable for any such fees or commissions.

ARTICLE V

ADDITIONAL AGREEMENTS

Section 5.1 Legend. Each certificate representing any Shares of the Preferred Stock shall be stamped or otherwise imprinted with a legend in substantially the following form:

“The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the “securities act”), or the securities laws of any state. The securities may not be offered for sale, sold or otherwise transferred except INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT.”

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Section 5.2 Existence and Compliance. The Company and each Subsidiary will maintain their respective existence, good standing and qualification to do business where required and comply with all agreements, instruments, judgments, laws, regulations and governmental requirements, applicable to them or to any of their respective properties, business operations and transactions, except for such non-compliance with this Section 5.2 that could not reasonably be expected to have a material adverse effect on the business, assets, operations, financial position or results of operations of the Company and the Subsidiaries, taken as a whole, and provided that nothing in this Section 5.2 shall prevent the merger of a Subsidiary into the Company or another Subsidiary.

Section 5.3 Voting Agreement. Each Purchaser hereby severally agrees with the Company that it shall, and shall cause its Affiliates, to vote all shares of Common Stock held by it or its Affiliates in favor of the Shareholder Approval at a special meeting of shareholders to be held by the Company for the purpose of seeking the Shareholder Approval, including voting or causing to be voted (including by proxy, if applicable) all of the Common Stock owned by it or its Affiliates in favor of the amendment to the Articles of Incorporation contemplated by the Shareholder Approval. From the date of this Agreement through the completion of such special meeting of shareholders (or an adjournment thereof), each Purchaser severally agrees that it shall not, and shall cause each of its Affiliates not to, transfer, sell, gift, pledge or otherwise dispose of its respective shares of Common Stock unless the transferee of such shares of Common Stock of the Company agrees in writing prior to any transfer, sale, gift, pledge or other disposition to vote in favor of the Shareholder Approval. Any attempt to transfer shares of Common Stock that does not comply with the provisions of the immediately preceding sentence shall be null and void ab initio.

ARTICLE VI

CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS AND THE COMPANY

Section 6.1 Conditions to the Purchaser’s Obligations .The obligation of each Purchaser to pay to the Company the Purchase Price in respect of the Shares of Preferred Stock to be issued under this Agreement to such Purchaser in accordance with Schedule 1 hereto is subject to the fulfillment to the reasonable satisfaction of, or, to the extent permitted by law, waiver by, such Purchaser at or prior to the Closing of each of the following conditions:

(a) Shareholder Approval and Amendment to the Articles of Incorporation. The Shareholder Approval shall have been obtained and the Articles of Incorporation shall have been (i) duly amended and (ii) filed with the Registrar and evidence of the acceptance and effectiveness of such filing provided by the Registrar.

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(b) Statement of Designations. The Statement of Designations shall have been executed in accordance with the relevant provisions of the Marshall Islands Business Corporations Act, and duly filed with the Registrar of Corporations of the Republic of the Marshall Islands, and the Purchasers shall have received evidence thereof in form and substance reasonably satisfactory to the Purchasers.

(c) Covenants and Agreements. The Company shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by it hereunder on or prior to the Closing Date.

(d) Legal Opinions. The Purchasers shall have received an opinion from Seward & Kissel LLP substantially in the form of Exhibit B hereto and an opinion from Akin Gump Strauss Hauer & Feld LLP substantially in the form of Exhibit C hereto.

(e) Payment of Expenses. The Company shall have satisfied its obligations under the last sentence of Section 8.10 below.

(f) No Injunction. No Governmental Body or any other Person shall have issued an order, injunction, judgment, decree, ruling or assessment which shall then be in effect restraining or prohibiting the completion of the transactions contemplated by this Agreement, nor to the Purchaser’s knowledge, shall any such order, injunction, judgment, decree, ruling or assessment be threatened or pending.

(g) Representations and Warranties. The representations and the warranties of the Company contained in this Agreement shall be true and correct in all material respects as of the Closing Date, except with respect to provisions including the word “material,” “material adverse effect” or words of similar import and except with respect to materiality, as reflected under GAAP, in the representations and warranties contained in Section 3.8 relating to the financial statements, with respect to which such representations and warranties shall be true and correct at and as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of such date, except that representations and warranties made as of a specified date need be true and correct only as of that date.

Section 6.2 Conditions to the Company’s Obligations. The obligation of the Company to sell and issue the Shares of Preferred Stock being sold and issued by it at the Closing is subject to the fulfillment on or before the Closing Date of the following conditions, any of which may be waived by the Company in its sole discretion:

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(b) No Injunction. No Governmental Body or any other Person shall have issued an order, injunction, judgment, decree, ruling or assessment which shall then be in effect restraining or prohibiting the completion of the transactions contemplated by this Agreement, nor to the Company’s knowledge, shall any such order, injunction, judgment, decree, ruling or assessment be threatened or pending.

(c) Securities Law Compliance. The offer and sale of the Shares of Preferred Stock to the Purchasers pursuant to this Agreement shall be exempt from the registration requirements of the Securities Act and the registration and/or qualification requirements of all applicable state securities laws.

(d) Purchase Price Paid. The Purchasers shall have paid the Purchase Price to the Company as set forth in Schedule 1 hereto.

(e) Covenants and Agreements. With respect to the sale of Shares to any Purchaser, such Purchaser shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by such Purchaser hereunder on or prior to the Closing Date.

(f) Representations and Warranties. With respect to each Purchaser, the representations and the warranties of such Purchaser contained in this Agreement shall be true and correct in all material respects, except with respect to provisions including the word “material,” “material adverse effect” or words of similar import, at and as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of such date.

ARTICLE VII

TERMINATION

Section 7.1 Termination. This Agreement may be terminated on a Purchaser-by-Purchaser basis (i) by mutual consent between the Company and such Purchaser evidenced in writing and (ii) by such Purchaser or the Company if the Closing does not occur on or before August 1, 2016, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1 shall not have breached in any material respects its representations, warranties or covenants set forth in this Agreement.

Section 7.2 Effect of Termination. If this Agreement is terminated by either the Company or a Purchaser pursuant to the provisions of Section 7.1, this Agreement with respect to the Company and such Purchaser shall forthwith become void and there shall be no further obligations on the part of the Company or such Purchaser or their respective stockholders, directors, officers, employees, agents or representatives, except for the provisions of Article VIII, which shall survive any termination of this Agreement; provided, however, that nothing in this Section 7.2 shall relieve any party from liability for any breach of any representation, warranty, covenant, or agreement under this Agreement prior to such termination or for any willful breach of this Agreement.

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Section 7.3 Extensions; Waiver. At any time prior to any applicable compliance time (including the termination provisions set forth in Section 7.1), the Company and any Purchaser may (a) extend the time for the performance of any of the obligations or other acts of the Company or such Purchaser, respectively, (b) waive any inaccuracies in the representations and warranties contained herein and (c) waive compliance with any of the agreements or conditions herein. Any agreement on the part of a Purchaser to any such extension or waiver shall be valid if set forth in an instrument in writing signed on behalf of such Purchaser and the Company and shall be deemed to modify the terms and conditions of this Agreement as between such Purchaser and the Company.

ARTICLE VIII

MISCELLANEOUS

Section 8.1 Survival of Obligations. All representations, warranties, covenants, agreements and obligations contained in this Agreement shall survive the consummation of the transactions contemplated by this Agreement.

Section 8.2 Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed given or delivered (i) when delivered personally, (ii) when delivered by electronic mail (so long as notification of a failure to deliver such electronic mail is not received by the sending party), (iii) if transmitted by facsimile when confirmation of transmission is received by the sending party, (iv) if sent by registered or certified mail, postage prepaid, return receipt requested, on the third business day after mailing or (v) if sent by reputable overnight courier when received; and shall be addressed to each Purchaser as set forth on its respective signature pages and if to the Company as follows:

Eagle Bulk Shipping Inc.

300 First Stamford Place, 5th Floor

Stamford, Connecticut 06902

Attention: Adir Katzav

Facsimile: 203 ###-###-####

Email: ***@***

with a copy to:

Akin Gump Strauss Hauer & Feld LLP

1333 New Hampshire Ave. N.W.

Washington, DC 20036

Attention: Daniel I. Fisher

Facsimile: 202 ###-###-####

Email: ***@***

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Any Party may, from time to time, change its address, facsimile number, e-mail address or other information for the purpose of notices to that Party by giving notice specifying such change to the other Parties.

Section 8.3 Execution in Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and shall become binding when one or more counterparts have been signed by and delivered to each of the Parties.

Section 8.4 Amendments. This Agreement shall not be amended, modified or supplemented prior to the Closing except by a written instrument signed by all the Parties. This Agreement shall not be amended, modified or supplemented after the Closing except by a written instrument signed by the all the Parties; provided, that no amendment, modification or supplement that disproportionately adversely affects the interests of a Purchaser shall be effective without the written consent of such disproportionately adversely affected Purchaser.

Section 8.5 Waivers. Any term or provision of this Agreement may be waived, or the time for its performance may be extended, by the Party or Parties entitled to the benefit thereof. Any such waiver shall be validly and sufficiently authorized for the purposes of this Agreement if, as to any Party, it is in writing signed by an authorized representative of such Party. The failure or delay of any Party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of any Party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.

Section 8.6 Severability. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such invalid, illegal or unenforceable provision or provisions or any other provisions hereof, unless such a construction would be unreasonable.

Section 8.7 Assignment; Successors and Assigns. Neither this Agreement nor any of the rights and obligations of any Party hereunder may be assigned, delegated or otherwise transferred by such Party without the prior written consent of each other Party; provided, that any Purchaser may assign, in its sole discretion, any or all of its rights, interests and obligations under this Agreement to any of its Affiliates or to any transferee of the Shares of Preferred Stock. No such assignment, delegation or other transfer shall relieve the assignor of any of its obligations or liabilities hereunder. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.

Section 8.8 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon any third Person, other than the Parties and their respective successors and assigns permitted by Section 8.7, any right, remedy or claim under or by reason of this Agreement.

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Section 8.9 Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York without regard to its conflict of laws principles.

Section 8.10 Expenses. The Company shall pay all delivery expenses and stamp, transfer, issue, documentary and similar taxes, assessments and charges levied under the laws of any applicable jurisdiction in connection with the issuance of the Shares of Preferred Stock and will hold the Purchasers or other holders thereof harmless, without limitation as to time, against any and all liabilities with respect to all such delivery expenses, taxes, assessments and charges. The Company shall pay all reasonable and documented fees and expenses of the Purchasers, including the reasonable and documented fees and expenses of one legal counsel of the Purchasers selected by a majority of the Purchasers in an amount not to exceed $100,000.

Section 8.11 Submission to Jurisdiction. Each of the Parties hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the Parties hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the Parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any Purchaser may otherwise have to bring any action or proceeding relating to this Agreement against the Company and its Subsidiaries or their respective properties in the courts of any jurisdiction or any right that the Company may otherwise have to bring any action or proceeding relating to this Agreement against any Purchaser or its properties in the courts of any jurisdiction. Each Party irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such proceeding brought in such a court referred to in the first sentence of this Section 8.11 and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.

Section 8.12 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO IT THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

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Section 8.13 Public Announcements. The Company and the Purchasers shall consult with each other before issuing any press release or otherwise making any public statements with respect to the transactions contemplated herein, and shall not issue any such press release or make any such public statement that uses the name of any Purchaser or any affiliate thereof without the prior written consent of each such Purchaser and affiliate whose name is proposed to be used; provided, that no Purchaser shall make any public announcements or otherwise communicate with the news media with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Company. Notwithstanding the forgoing, any Party may make or cause to be made any press release or similar public announcement or communication as may be required to comply with (a) the requirements of applicable law, including the Exchange Act or (b) its disclosure obligations or practices with respect to its investors; provided that prior to making any such disclosure under this clause (b), such Party shall provide a copy of such proposed disclosure to the Company and shall only publicly make such disclosure with the consent of the Company, which consent shall not be unreasonably withheld or delayed, if the Company has not previously made a public announcement of the transactions contemplated hereby.

Section 8.14 Right to Conduct Activities. The Company and each Purchaser acknowledge that some or all of the Purchasers are professional investors, and as such invest in numerous portfolio companies, some of which may be competitive with the Company’s business. No Purchaser shall be liable to the Company or to another Purchaser for any claim arising out of, or based upon, (i) the investment by the Purchaser or any Affiliate of the Purchaser in any entity competitive to the Company or (ii) actions taken by the Purchaser or any Affiliate of the Purchaser to assist any such competitive company, whether or not such action was taken as a board member of such competitive company or otherwise, and whether or not such action has a detrimental effect on the Company, so long as such Purchaser or such Affiliate does not use or permit the use of confidential or proprietary information of the Company or of its affiliates.

Section 8.15 Entire Agreement. This Agreement, the Exhibits and the Schedules and the documents delivered pursuant hereto and thereto constitute the entire agreement and understanding among the Parties with respect to the subject matter contained herein or therein, and supersede any and all prior agreements, negotiations, discussions, understandings, term sheets or letters of intent between or among any of the Parties with respect to such subject matter.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the Parties have executed this Agreement, to be effective on the date first above written.

	EAGLE BULK SHIPPING INC.



	By:	/s/ Adir Katzav
		Name: Adir Katzav
		Title: Chief Financial Officer