4,055,000 Shares Genco Shipping & Trading Limited Common Stock UNDERWRITING AGREEMENT
Exhibit
1.1
Execution
version
4,055,000
Shares
Genco
Shipping & Trading Limited
Common
Stock
September
26, 2007
To
the
Managers named in Schedule I hereto
for
the Underwriters named in Schedule
II hereto
Genco
Shipping & Trading Limited, a Xxxxxxxx Islands company (the
“Company”), and Fleet Acquisition LLC, a Xxxxxxxx Islands
company and a stockholder of the Company (the “Selling
Shareholder”), propose to sell to the several underwriters named in
Schedule II hereto (the “Underwriters”), for whom you are
acting as managers (the “Managers”), an aggregate of 4,055,000
shares (the “FirmShares”) of common stock, par
value $0.01 per share, of the Company (the “Common Stock”), of
which 3,208,955 shares are to be sold by the Company and 846,045 shares are
to
be sold by the Selling Shareholder. The Company and the Selling
Shareholder are hereinafter sometimes referred to as the
“Sellers.”
The
Sellers also propose to sell to the several Underwriters not more than an
aggregate of 405,500 shares of Common Stock (the “Additional
Shares”), of which 149,254 shares may be sold by the Company and
256,246 shares may be sold by the Selling Shareholder, if and to the extent
that
you, as Managers of the offering, shall have determined to exercise, on behalf
of the Underwriters, the right to purchase such shares of Common Stock granted
to the Underwriters in Section 3 hereof. The Firm Shares and the
Additional Shares are hereinafter referred to as the
“Shares.” If the firm or firms listed in Schedule II
hereto include only the Managers listed in Schedule I hereto, then the terms
“Underwriters” and “Managers” as used herein shall each be deemed to refer to
such firm or firms.
The
Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement, including a prospectus,
(File No. 333-140158) on Form S-3, relating to certain securities of the
Company (the “Shelf Securities”), including the
Shares,
to
be
offered and sold from time to time by the Company or by selling shareholders
of
the Company to be named in one or more prospectus supplements. The
registration statement as amended to the date of this underwriting agreement
(this “Agreement”), including the information (if any) deemed
to be part of the registration statement at the time of effectiveness pursuant
to Rule 430A or Rule 430B under the Securities Act of 1933, as amended
(the “Securities Act”), is hereinafter referred to as the
“Registration Statement”, and the related prospectus covering
the Shelf Securities dated February 7, 2007 in the form first used to confirm
sales of the Shares (or in the form first made available to the Underwriters
by
the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “Base
Prospectus.” The Base Prospectus, as supplemented by the
prospectus supplement specifically relating to the Shares in the form first
used
to confirm sales of the Shares (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant to Rule
173
under the Securities Act) is hereinafter referred to as the
“Prospectus,” and the term “preliminary
prospectus” means any preliminary form of the
Prospectus. For purposes of this Agreement, “free writing
prospectus” has the meaning set forth in Rule 405 under the Securities
Act, “Time of Sale Prospectus” means the preliminary prospectus
together with the free writing prospectuses, if any, each identified in Schedule
III hereto, and “broadly available road show” means a “bona
fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act
that has been made available without restriction to any person. As
used herein, the terms “Registration Statement,” “Base Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein. The terms
“supplement,” “amendment,” and
“amend” as used herein with respect
to the Registration
Statement, the Base Prospectus, the Time of Sale Prospectus, the Prospectus,
any
preliminary prospectus or free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), that are
deemed to be incorporated by reference therein.
1. Representations
and Warranties of the Company. The Company hereby represents and
warrants to and agrees with each of the Underwriters that:
(a) The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings
for
such purpose have been instituted or are pending before or, to the knowledge
of
the Company, threatened by the Commission. The Company has complied
to the Commission’s satisfaction with all requests of the Commission for
additional or supplemental information.
(b) Each
preliminary prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(c) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and
2
regulations
of the Commission thereunder, (ii) each part of the Registration Statement,
when
such part became effective, did not contain, and each such part, as amended
or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the Registration
Statement as of the date hereof does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading, (iv) the
Registration Statement and the Prospectus comply, and as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (v) the Time of Sale Prospectus does not, and at the time of
each sale of the Shares in connection with the offering when the Prospectus
is
not yet available to prospective purchasers and at the Closing Date (as defined
in Section 5), the Time of Sale Prospectus, as then amended or supplemented
by
the Company, if applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
(vi) each broadly available road show, if any, when considered together
with the Time of Sale Prospectus, does not contain any untrue statement of
a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and (vii)the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
do
not apply to statements or omissions in the Registration Statement, the Time
of
Sale Prospectus or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the
Managers expressly for use therein, which information is specified in Section
10(i) of this Agreement.
(d) The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file, pursuant to
Rule
433(d) under the Securities Act or that was prepared by or on behalf of or
used
or referred to by the Company complies or will comply in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing
prospectuses, if any, identified in Schedule III hereto forming part of the
Time
of Sale Prospectus, and electronic road shows, if any, each furnished to you
before first use, the Company has not prepared, used or referred to, and will
not, without your prior consent, prepare, use or refer to, any free writing
prospectus.
(e) Except
as
otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus
and, since the date of the last audited financial statements included in the
Time of Sale Prospectus: (i) there has been no material adverse change, or
any development that could reasonably be expected to result in a material
adverse change, in the condition, financial or
3
otherwise,
or in the earnings, business, operations or prospects, whether or not arising
from transactions in the ordinary course of business, of the Company and the
subsidiaries of the Company listed on Schedule IV to this Agreement (each,
a
“Subsidiary” and collectively, the
“Subsidiaries”), taken as a whole; (ii) the Company and
the Subsidiaries, considered as one entity, have neither incurred any material
liability or obligation (including any off-balance sheet obligation), indirect,
direct or contingent, not in the ordinary course of business nor entered into
any material transaction or agreement not in the ordinary course of business;
and (iii) there has been no dividend or distribution of any kind declared,
paid or made by the Company or, except for dividends paid to the Company or
other Subsidiaries, any of the Subsidiaries on any class of capital stock or
share capital or repurchase or redemption by the Company or any of the
Subsidiaries of any class of capital stock or share capital.
(f) Each
of
the Company and the Subsidiaries has been duly organized and is validly existing
as a corporation, or company with limited liability, as applicable, in good
standing under the laws of the Xxxxxxxx Islands or the State of Delaware, as
applicable, and has the power and authority (corporate or other) to own, lease
and operate its properties and to conduct its business as described in the
Time
of Sale Prospectus and, in the case of the Company, to enter into and perform
its obligations under this Agreement. Each of the Company and each
Subsidiary is duly qualified as a foreign corporation, or company with limited
liability, as applicable, to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the
ownership or leasing of property or the conduct of business, except where the
failure to be so qualified would not result in a material adverse effect on
the
condition (financial or otherwise), earnings, business, operations or prospects
of the Company and the Subsidiaries, taken as a whole (a “Material
Adverse Effect”). All of the issued and outstanding capital
stock or other equity or ownership interest of each Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, except
as
set forth in each of the Time of Sale Prospectus and the Prospectus, is owned
by
the Company, directly or indirectly, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or adverse claim. None of the
issued and outstanding shares of capital stock or other equity or ownership
interest of any Subsidiary were issued in violation of preemptive or other
similar rights of any security holder of such Subsidiary. The Company
does not own or control, directly or indirectly, any corporation, association
or
other entity other than the Subsidiaries.
(g) This
Agreement has been duly authorized, executed and delivered by the
Company.
(h) As
of
September 26, 2007, the Company’s authorized capital stock consists of
100,000,000 shares of common stock, par value $0.01 per share, of which
25,514,600 shares are issued and outstanding, and 25,000,000 shares of preferred
stock, par value $0.01 per share, of which no shares were issued and
outstanding. The authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in each of the Time of
Sale Prospectus and the Prospectus.
(i) The
Shares to be issued and sold by the Company to the Underwriters hereunder have
been duly authorized and, when issued and delivered against payment therefor
as
provided
4
in
herein, will be validly issued, fully paid and non-assessable. All of
the issued and outstanding shares of Common Stock (including the Shares to
be
sold by the Selling Shareholder) have been duly authorized and validly issued,
are fully paid and non-assessable and have been issued in compliance with
federal and state securities laws and Xxxxxxxx Islands law. None of
the outstanding shares of Common Stock (including the Shares) was issued in
violation of any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase securities of the Company. There
are no authorized or outstanding options, warrants, preemptive rights, rights
of
first refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any share capital of the
Company or any of the Subsidiaries other than those accurately described in
each
of the Time of Sale Prospectus and the Prospectus.
(j) There
are
no persons with registration or other similar rights to have any equity or
debt
securities registered for sale under the Registration Statement or included
in
the offering contemplated by this Agreement, other than the Selling Shareholder
as described in the Time of Sale Prospectus and the Prospectus, except for
such
rights as have been duly waived in writing.
(k) Deloitte
& Touche LLP, who has certified the financial statements included in the
Registration Statement, the Time of Sale Prospectus and the Prospectus, are
independent public or certified public accountants as required by the Securities
Act.
(l) The
financial statements included in the Registration Statement, the Time of Sale
Prospectus and the Prospectus present fairly the consolidated financial position
of the Company and the Subsidiaries as of and at the dates indicated therein
and
the results of their operations and cash flows for the periods specified
therein. Such financial statements have been prepared in conformity
with generally accepted accounting principles (“GAAP”) in the
United States applied on a consistent basis throughout the periods
involved. No other financial statements or supporting schedules are
required to be included in the Registration Statement. To the
Company’s knowledge, after reasonable inquiry, no person who has been suspended
or barred from being associated with a registered public accounting firm, or
who
has failed to comply with any sanction pursuant to Rule 5300 promulgated by
the
Public Company Accounting Oversight Board, has participated in or otherwise
aided the preparation of, or audited, the financial statements, supporting
schedules or other financial data included in the Registration Statement, the
Time of Sale Prospectus and the Prospectus.
(m) The
Company and each of the Subsidiaries makes and keeps accurate books and records
and maintains a system of accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP as applied in the United States and to maintain
accountability for assets; (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 existing
assets at reasonable intervals and appropriate action is taken with respect
to
any differences.
5
(n) Neither
the Company nor any of the Subsidiaries (i) is in violation of any provision
of
any of its articles of incorporation, bylaws or other charter documents or
(ii) is in default (or, with the giving of notice or lapse of time, would
be in default) (“Default”) under any indenture, mortgage, loan
or credit agreement, note, contract, franchise, lease or other instrument to
which the Company or any of the Subsidiaries is a party or by which it or any
of
them may be bound (including, without limitation, the debt instruments referred
to in each of the Time of Sale Prospectus and the Prospectus and/or filed as
exhibits to the Registration Statement), or to which any of the property or
assets of the Company or any of the Subsidiaries is subject (each, an
“Existing Instrument”), except for such Defaults under clause
(ii) above as would not, individually or in the aggregate, result in a Material
Adverse Effect. The Company’s execution, delivery and performance of
this Agreement, consummation of the transactions contemplated hereby and by
the
Time of Sale Prospectus and the Prospectus and the issuance and sale of the
Shares (i) have been duly authorized by all necessary corporate action and
will not result in any violation of any of the provisions of any of the articles
of incorporation, bylaws or other charter documents of the Company or any
Subsidiary, (ii) will not conflict with or constitute a breach of, or
Default or a Debt Repayment Triggering Event (as defined below) under, or result
in the creation or imposition of any security interest, mortgage, pledge, lien,
encumbrance or adverse claim upon any property or assets of the Company or
any
of the Subsidiaries pursuant to, or require the consent of any other party
to,
any Existing Instrument and (iii) will not result in any violation of any
law, administrative regulation or administrative or court decree applicable
to
the Company or any Subsidiary. No consent, approval, authorization or
other order of, or registration or filing with, any court or other governmental
or regulatory authority or agency, is required for the Company’s execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby and by the Time of Sale Prospectus and the
Prospectus, except such as (i) have been obtained or made by the Company
and are in full force and effect or (ii) may be required under applicable
state securities or blue sky laws. As used herein, a “Debt
Repayment Triggering Event” means any event or condition which gives,
or with the giving of notice or lapse of time would give, the holder of any
note, debenture or other evidence of indebtedness (or any person acting on
such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of the
Subsidiaries.
(o) Except
as
otherwise disclosed in the each of the Time of Sale Prospectus and the
Prospectus, there are no legal or governmental actions, suits or proceedings
pending, to which the Company or any Subsidiary is a party or of which any
property, operations or assets of the Company or any Subsidiary is the subject
which (individually or in the aggregate), if determined adversely to the Company
or any Subsidiary, would result in a Material Adverse Effect or adversely affect
the consummation of the transactions contemplated by this Agreement or would
be
material in the context of the sale of shares of Common Stock; to the Company’s
knowledge, no such proceeding, litigation or arbitration is threatened or
contemplated; and the defense of all such proceedings, litigation and
arbitration against or involving the Company or any Subsidiary would not result
in a Material Adverse Effect. To the knowledge of the Company, no
claim has been asserted against any director or officer of the Company that
is
premised upon a breach of fiduciary duty owed to the Company or any other person
by such director or officer based upon such director’s or officer’s involvement
in the formation or management of, or other activities
6
undertaken
in connection with, either the Company or the offering of the Shares, and no
basis for any such claim exists.
(p) Except
as
otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus,
the Company and each Subsidiary possess such valid and current certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct their respective businesses,
and neither the Company nor any Subsidiary has received, or to the Company’s and
each Subsidiary’s knowledge expects to receive, any notice of proceedings
relating to the revocation or modification of, or non-compliance with, any
such
certificate, authorization or permit which, singly or in the aggregate, if
the
subject of an unfavorable decision, ruling or finding, could result in a
Material Adverse Effect.
(q) Except
as
otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus,
the Company and each of the Subsidiaries has good and marketable title to all
of
the personal property owned by them, in each case free and clear of any security
interests, mortgages, pledges, liens, encumbrances, equities, adverse claims
and
other defects, except for any maritime or other liens incurred in the ordinary
course of business that do not materially and adversely affect the value of
such
property and do not materially interfere with the use made or proposed to be
made of such property by the Company or such Subsidiary. The real
property held under lease by the Company or any Subsidiary are held under valid
and enforceable leases, with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such real
property by the Company or such Subsidiary. Each of the vessels
currently in the fleet of the Company (the “Fleet”) is duly
registered in the name of the Subsidiary that owns it under the laws and
regulations and the flag of the nation of such vessel’s registration, and no
other action is necessary to establish and perfect such Subsidiary’s title to
and interest in the vessel as against any charterer or other third
party. Each of the vessels in the Fleet is owned directly by one of
the Subsidiaries as indicated in Schedule V, free and clear of all security
interests, mortgage, pledges, liens, encumbrances, equities, adverse claims
and
other defects, except for any maritime or other liens incurred in the ordinary
course of business that do not materially and adversely affect the value of
such
vessel and do not materially interfere with the use made or proposed to be
made
of such vessel by the Company or such Subsidiary, or except such as described
in
each of the Time of Sale Prospectus and the Prospectus and such as are not
material and do not interfere with the ownership or operation of such
vessel.
(r) All
material Tax returns required to be filed by the Company and each of the
Subsidiaries have been filed and all such returns are true, complete, and
correct in all material respects. All material Taxes that are due or
claimed to be due from the Company and each of the Subsidiaries have been paid
other than those (A) currently payable without penalty or interest or (B) being
contested in good faith and by appropriate proceedings and for which, in the
case of both clauses (A) and (B), adequate reserves have been established on
the
books and records of the Company and each of its Subsidiaries in accordance
with
GAAP. There are no material Tax assessments proposed in writing against
the Company or any of the Subsidiaries. To the Company’s knowledge, the
accruals and reserves on the books and records of the Company and each of the
Subsidiaries in respect of any material Tax liability for any taxable period
not
finally
7
determined
are adequate to meet any assessments of Tax for any such period. For
purposes of this Agreement, the term “Tax” and
“Taxes” shall mean all federal, state, local and
foreign taxes,
and other assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or penalties applicable
thereto.
(s) Except
as
otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus,
each of the Company and the Subsidiaries maintains insurance or participates
in
insurance clubs in such amounts and with such deductibles and covering such
risks as are generally deemed adequate and customary for their
business. The Company has no reason to believe that it or any
Subsidiary will not be able (i) to renew its existing insurance coverage as
and when such policies expire or (ii) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct its business
as now conducted and at a cost that would not result in a Material Adverse
Effect.
(t) The
Company has not taken, directly or indirectly, any action which constitutes
or
is designed to cause or result in, or which would constitute, cause or result
in, the stabilization or manipulation of the price of any security to facilitate
the sale or resale of the shares of Common Stock. The Company
acknowledges that the Underwriters may engage in passive market making
transactions in the Common Stock on the New York Stock Exchange in accordance
with Regulation M under the Exchange Act (“Regulation
M”).
(u) There
are
no business relationships or related-party transactions involving the Company
or
any Subsidiary or any other person required by the Securities Act or otherwise
to be described in the Time of Sale Prospectus or the Prospectus which have
not
been described as required.
(v) The
Company has not been advised, and has no reason to believe, that it and each
of
the Subsidiaries are not conducting business in compliance with all applicable
laws, rules and regulations of the jurisdictions in which it and each of the
Subsidiaries is conducting business, except where failure to be so in compliance
would not result in a Material Adverse Effect. Without limiting the
generality of the foregoing, neither the Company nor any of the Subsidiaries
nor, to the best of the Company’s knowledge, any employee or agent of the
Company or any Subsidiary, has made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in violation
of any applicable law.
(w) The
Company is in compliance in all material respects with all applicable provisions
of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”)
and the applicable rules and regulations of the Commission and the New York
Stock Exchange relating to the Xxxxxxxx-Xxxxx Act.
(x) No
labor
disturbance by the employees of the Company or any Subsidiary exists or, to
the
Company’s knowledge, is imminent and the Company is not aware of any existing or
imminent labor disturbances by the employees of any of its or any Subsidiary’s
principal suppliers, shipyards, manufacturers, customers or contractors, which,
in either case (individually or in the aggregate), would result in a Material
Adverse Effect.
8
(y) Except
as
described in each of the Time of Sale Prospectus and the Prospectus and except
as would not, singly or in the aggregate, result in a Material Adverse Effect,
(i) neither the Company nor any of the Subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (ii) the Company and the
Subsidiaries have all permits, authorizations and approvals required under
any
applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or, to the Company’s and each
Subsidiary’s knowledge, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any Environmental Law
against the Company or any of the Subsidiaries and (iv) there are no events
or
circumstances that could reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or any
of
the Subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(z) Neither
the Company nor any of the Subsidiaries has sustained since the date of the
last
audited financial statements incorporated by reference in the Time of Sale
Prospectus any loss or interference with its respective business from the actual
or constructive loss of or to any vessel or any other asset that is material
to
the Company or any of the Subsidiaries, the requisition for title of any vessel,
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree
that
resulted in a Material Adverse Effect.
(aa) Except
as
disclosed in each of the Time of Sale Prospectus and the Prospectus, the Company
has not sent or received any communication regarding termination of, or intent
not to renew, any of the charters or other contracts or agreements filed as
an
exhibit to the Registration Statement, and no such termination or non-renewal
has been threatened by the Company or, to the Company’s knowledge, any other
party to any such charter, contract or agreement.
(bb) Except
as
otherwise disclosed in each of the Time of Sale Prospectus and the Prospectus,
there is no broker, finder or other party that is entitled to receive from
the
Company any brokerage or finder’s fee or other fee or commission as a result of
any transactions contemplated by this Agreement.
(cc) The
Company has been advised of the rules and requirements under the Investment
Company Act of 1940, as amended (the “Investment Company
Act”). The Company is not, and after giving effect to the
offering and sale of the Shares as described in the
9
Time
of
Sale Prospectus will not be, an “investment company” within the
meaning of the Investment Company Act.
(dd) Since
July 21, 2005, neither the Company nor any Subsidiary has extended or
maintained credit, arranged for the extension of credit, or renewed any
extension of credit, in the form of a personal loan, to or for any director
or
executive officer (or equivalent thereof) of the Company and/or such Subsidiary
except for such extensions of credit as are expressly permitted by Section
13(k)
of the Exchange Act and Xxxxxxxx Islands law.
(ee) To
the
Company’s knowledge, there are no affiliations or associations between any
member of the Financial Industry Regulatory Authority, Inc. (the
“NASD”) and any of the Company’s officers, directors or 5% or
greater security holders, except as set forth in each of the Time of Sale
Prospectus and the Prospectus or as disclosed to the Managers and the
NASD.
(ff) The
Company is not a Passive Foreign Investment Company (“PFIC”)
within the meaning of Section 1296 of the Internal Revenue Code of 1986 and
expects to continue its operations in such a manner that it will not become
a
PFIC.
(gg) Except
as
described in each of the Time of Sale Prospectus and the Prospectus, none of
the
Subsidiaries is prohibited, directly or indirectly, from paying any dividends
to
the Company, from making any other distribution on such Subsidiary’s equity
securities, from repaying to the Company any loans or advances to such
Subsidiary from the Company or from transferring any of such Subsidiary’s
property or assets to the Company or any other Subsidiary. Except as
disclosed in each of the Time of Sale Prospectus and the Prospectus, the Company
is not prohibited by contract from declaring and paying dividends and making
other distributions on shares of Common Stock.
(hh) Except
as
described in each of the Time of Sale Prospectus and the Prospectus, the Company
is not prohibited, directly or indirectly, under Xxxxxxxx Islands law from
paying any dividends or other distributions on shares of Common
Stock. Except as described in each of the Time of Sale Prospectus and
the Prospectus, all dividends and other distributions declared and payable
on
shares of Common Stock may under the current laws and regulations of the
Xxxxxxxx Islands be paid in U.S. dollars and may be freely transferred out
of
the Xxxxxxxx Islands, and all such dividends and other distributions will not
be
subject to withholding or other taxes under the current laws and regulations
of
the Xxxxxxxx Islands and are otherwise free and clear of any other tax,
withholding or deduction in and without the necessity of obtaining any consents,
approvals, authorizations, orders, licenses,
registrations, clearances and qualifications of or with any court or
governmental agency or body or any stock exchange authorities in the Xxxxxxxx
Islands.
(ii) The
Company is not owned or controlled by, or under common control with, or acting
on behalf of, or is owned or controlled by, or under common control with, or
acting on behalf of, any entity that is owned or controlled by, or acting on
behalf of, or is doing business with, (i) the government of a
terrorist-sponsoring country as designated by the U.S. Department of State,
(ii)
the government of a country subject to a sanctions program administered by
the
10
Office
of
Foreign Assets Control of the U.S. Treasury Department
(“OFAC”), (iii) a person or entity identified on the Specially
Designated Nationals and Blocked Persons List maintained by OFAC (31 C.F.R.,
Subtitle B, Chapter V, Appendix A) or (iv) any persons or entities subject
to
U.S. trade sanctions under the Trading with the Enemy Act, as amended, or the
International Emergency Economic Powers Act, as amended.
(jj) The
Company is not, and to the knowledge of the Company, no director, officer,
agent, employee or affiliate of the Company is, currently subject to any U.S.
sanctions administered by OFAC.
(kk) The
operations of the Company and the Subsidiaries are and have been conducted
at
all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as
amended, the money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency and
no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of the
Subsidiaries with respect to any such laws is pending or, to the Company’s
knowledge, threatened.
(ll) Neither
the Company nor any of its affiliates, nor any of its or their officers,
directors, employees or agents, in their capacities as such, nor any other
person acting on behalf of the Company, has made any payments, loans, gifts,
or
promises or offers of payments, loans, gifts or anything of value, directly
or
indirectly to or for the use or benefit in whole or in part of, any officer
or
employee of a Governmental Authority (defined below), or any person acting
in an
official capacity for or on behalf of any Governmental Authority (a
“Public Official”) or state-owned company or other state-owned
enterprise, or to or for the use of any political party or official thereof,
or
candidate for political office, or to any other person if any such party knew
or
should have known or had reason to suspect, that any part of such payment,
loan,
gift or promise or offer, (i) was for purposes of corruptly (A) influencing
any
act or decision of the recipient in its official capacity, (B) inducing such
recipient to (1) do or omit to do any act in violation of its lawful duty or
(2)
use its influence to affect or influence any act or decision of any Governmental
Authority, or (C) securing any improper advantage, in each case, in order
to assist the parties in obtaining or retaining business for or with, or
directing business to, any person unless such payment, loan, gift or promise
or
offer thereof is lawful under written applicable law of the relevant
jurisdiction or (ii) would violate the Foreign Corrupt Practices Act, the OECD
Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions and similarly applicable laws or requirements (the
“Anti-Corruption Statutes”). For purposes of this
representation and warranty, the term
“GovernmentalAuthority” means any public
international, multinational or transnational organization or any national,
state, municipal or local governmental, judicial, legislative, administrative
or
other authority, ministry, department, agency, instrumentality, office or
organization. Each of the Company and its affiliates has conducted
its business in compliance with the Anti-Corruption Statutes and has implemented
and maintained policies and procedures designed to ensure, and which are
expected to continue to ensure, continued compliance therewith.
11
(mm) The
Company has not issued any options under the Company’s stock option or other
employee benefit plans or arrangements.
(nn) The
industry, statistical and market-related data included or incorporated by
reference in the Registration Statement, the Time of Sale Prospectus and the
Prospectus are derived from sources that the Company reasonably and in good
faith believes to be accurate, reasonable and reliable, and such data agree
with
the sources from which they were derived.
2. Representations
and Warranties of the Selling Shareholder. The Selling
Shareholder represents and warrants to and agrees with each of the Underwriters
that:
(a) The
Selling Shareholder has been duly organized and is validly existing as a company
with limited liability in good standing under the laws of the Xxxxxxxx Islands
and has the power and authority to own, lease and operate its properties and
to
conduct its business as currently conducted and to enter into and perform its
obligations under this Agreement.
(b) This
Agreement has been duly authorized, executed and delivered by the Selling
Shareholder.
(c) The
execution and delivery by the Selling Shareholder of, and the performance by
the
Selling Shareholder of its obligations under, this Agreement will not contravene
or conflict with, result in a breach of, or constitute a Default under, or
require the consent of any other party to, the certificate of formation,
articles of organization or other organizational documents of the Selling
Shareholder or any other agreement or instrument to which the Selling
Shareholder is a party or by which it is bound or under which it is entitled
to
any right or benefit, any provision of applicable law or any judgment, order,
decree or regulation applicable to the Selling Shareholder of any court,
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over the Selling Shareholder. No consent, approval,
authorization or other order of, or registration or filing with, any court
or
other governmental or regulatory authority or agency is required for the Selling
Shareholder’s execution, delivery or performance of this Agreement or the
consummation by the Selling Shareholder of the transactions contemplated in
this
Agreement, except such as (i) have been obtained or made and are in full
force and effect or (ii) may be required under applicable state securities
or blue sky laws.
(d) Except
for such consents, approvals and waivers which have been obtained by the Selling
Shareholder on or prior to the date of this Agreement, no consent, approval
or
waiver is required under any instrument or agreement to which the Selling
Shareholder is a party or by which it is bound or under which it is entitled
to
any right or benefit, in connection with the offering, sale or purchase by
the
Underwriters of any of the Shares which may be sold by the Selling Shareholder
under this Agreement or the consummation by the Selling Shareholder of any
of
the other transactions contemplated hereby.
(e) The
Selling Shareholder has, and on the Closing Date and each applicable Option
Closing Date (as defined below) will have good and valid title to all of the
Shares which may be sold by the Selling Shareholder pursuant to this Agreement
on such date and the legal right and
12
power
to
sell, transfer and deliver all of the Shares which may be sold by the Selling
Shareholder pursuant to this Agreement and to comply with its other obligations
hereunder and thereunder.
(f) Delivery
of the Shares which are sold by the Selling Shareholder pursuant to this
Agreement will pass good and valid title to such Shares, free and clear of
any
security interest, mortgage, pledge, lien, encumbrance or other adverse
claim.
(g) The
Selling Shareholder has not taken, directly or indirectly, any action designed
to or that might be reasonably expected to cause or result in stabilization
or
manipulation of the price of any security to facilitate the sale or resale
of
shares of Common Stock.
(h) The
Selling Shareholder (i) does not have any registration or other similar rights
to have any equity or debt securities registered for sale by the Company under
the Registration Statement or included in the offering contemplated by this
Agreement, except for such rights as are generally described in the Time of
Sale
Prospectus and the Prospectus or are set forth in that certain Registration
Rights Agreement dated as of July 15, 2005 (which is incorporated by reference
as an exhibit to the Registration Statement), and (ii) does not own any
warrants, options or similar rights to acquire, and does not have any right
or
arrangement to acquire, any share capital, rights, warrants, options or other
securities from the Company, other than those generally described in the Time
of
Sale Prospectus and the Prospectus.
(i) All
information furnished by or on behalf of the Selling Shareholder in writing
expressly for use in the Registration Statement, the Time of Sale Prospectus
and
the Prospectus is, and on the Closing Date and any applicable Option Closing
Date will be, true, correct, and complete in all material respects, and does
not, and on the Closing Date and any applicable Option Closing Date will not,
contain any untrue statement of a material fact or omit to state any material
fact necessary to make such information not misleading. The Selling
Shareholder confirms as accurate the number of shares of Common Stock set forth
opposite the Selling Shareholder’s name in the Time of Sale Prospectus under the
caption “Selling Shareholder” (both prior to and after giving effect to the sale
of the Shares).
(j) The
Selling Shareholder is not, and after receipt of payment for the Shares will
not
be, an “investment company” within the meaning of the Investment Company
Act.
(k) There
are
no transfer taxes or other similar fees or charges under federal law or the
laws
of any state or foreign jurisdiction, or any political subdivision thereof,
required to be paid by the Selling Shareholder in connection with the execution
and delivery of this Agreement or the sale by the Selling Shareholder of the
Shares.
(l) The
Selling Shareholder has not distributed and will not distribute, prior to the
later of (i) the expiration or termination of the option granted to the several
Underwriters under Section 3, (ii) the completion of the Underwriters’
distribution of the Shares and (iii) the expiration of 25 days after the date
of
the Prospectus, any offering material in connection with the offering and sale
of the Shares other than a preliminary prospectus, the Time of Sale Prospectus,
the Prospectus or the Registration Statement.
13
(m) The
Selling Shareholder has reviewed and is familiar with the Registration
Statement, the Time of Sale Prospectus and the Prospectus and: (i)
with respect solely to information provided in writing by the Selling
Shareholder that is included therein, has no knowledge of any misstatement
of a
material fact or failure to state a material fact necessary to make the
statements in the Time of Sale Prospectus and the Prospectus, in light of the
circumstances under which they were made, not misleading; and (ii) is not
prompted to sell the Firm Shares and the Additional Shares, if any, to be sold
by the Selling Shareholder by any information concerning the Company or any
Subsidiary which is not set forth in the Registration Statement, the Time of
Sale Prospectus and the Prospectus.
3. Agreements
to Sell and Purchase. Each Seller, severally and not jointly,
hereby agrees to sell to each of the several Underwriters, and each Underwriter,
upon the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees, severally and not jointly,
to purchase from such Seller, at a purchase price of $63.8175 per share (the
“Purchase Price”), the number of Firm Shares (subject to such
adjustments to eliminate fractional shares as you may determine) equal to the
product of (i) the number of Firm Shares to be sold by such Seller (as set
forth
in the first paragraph of this Agreement) multiplied by (ii) a fraction, the
numerator of which is the number of Firm Shares set forth in Schedule II hereto
opposite the name of such Underwriter, and the denominator of which is the
total
number of Firm Shares.
On
the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, each Seller, severally and not jointly,
further agrees to sell to the several Underwriters the Additional Shares set
forth for such Seller in the second paragraph of this Agreement, and the
Underwriters shall have the right to purchase from such Seller, severally and
not jointly, up to the number of Additional Shares set forth in Schedule II
hereto at a price per share equal to the Purchase Price. You may
exercise this right on behalf of the Underwriters in whole or from time to
time
in part by giving written notice not later than 30 days after the date of the
Prospectus. If you exercise this right for less than all of the
Additional Shares, then such Additional Shares shall be purchased first from
the
Company up to the maximum number of Additional Shares set forth for the Company
in the second paragraph of this Agreement before any Additional Shares shall
be
purchased from the Selling Shareholder. Any exercise notice shall
specify the number of Additional Shares to be purchased by the Underwriters
and
the date on which such shares are to be purchased. Each purchase date
must be at least one business day after the written notice is given and may
not
be earlier than the closing date for the Firm Shares nor later than ten business
days after the date of such notice. Additional Shares may be
purchased as provided in this Section 3 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. On each day, if any, that Additional Shares are to be
purchased (an “Option Closing Date”), each Underwriter agrees,
severally and not jointly, to purchase from each Seller in the priority
described above the number of Additional Shares (subject to such adjustments
to
eliminate fractional shares as you may determine) that bears the same proportion
to the total number of Additional Shares to be sold by such Seller on such
Option Closing Date as the number of Firm Shares set forth in Schedule II
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares.
14
4. Public
Offering. The Sellers are advised by you that the Underwriters
propose to make a public offering of their respective portions of the Shares
as
soon after the Registration Statement and this Agreement have become effective
as in your judgment is advisable. The Sellers are further advised by
you that the Shares are to be offered to the public upon the terms set forth
in
the Prospectus.
5. Payment
and Delivery. Payment for the Firm Shares to be sold by either
Seller shall be made to such Seller in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on October 2, 2007, or at such other time on the same or such other date,
not later than October 9, 2007, as shall be designated in writing by you. The
time and date of such payment are hereinafter referred to as the
“Closing Date.”
Payment
for any Additional Shares to be sold by either Seller shall be made to such
Seller in Federal or other funds immediately available in New York City against
delivery of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the Option Closing Date
specified in the corresponding notice described in Section 3 or at such other
time on the same or on such other date, in any event not later than the tenth
business day thereafter, as may be designated in writing by you.
The
Firm
Shares and the Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date or the applicable Option Closing Date, as the
case
may be. The Firm Shares and the Additional Shares shall be delivered to you
on
the Closing Date or the applicable Option Closing Date, as the case may be,
for
the respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly
paid, against payment of the aggregate Purchase Price therefor.
6. Conditions
to the Underwriters’ Obligations. The several obligations of the
Underwriters are subject to the following conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date:
(i) there
shall not have occurred any downgrading, nor shall any notice have been given
of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the securities of the Company or any of the Subsidiaries by
any
“nationally recognized statistical rating organization,” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and the Subsidiaries, taken as a whole, from that
set forth in the Time of Sale Prospectus (excluding any amendments or
supplements thereto) that,
15
in
your judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Time of Sale Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the effect
set forth in Section 6(a)(i) above and to the effect that the representations
and warranties of the Company contained in this Agreement are true and correct
as of the Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be performed
or
satisfied hereunder on or before the Closing Date.
The
officer signing and delivering such certificate may rely upon the best of his
or
her knowledge as to proceedings threatened.
(c) The
Underwriters shall have received on the Closing Date the opinion of Xxxxxx
&
Xxxxxxx P.C., outside Xxxxxxxx Islands counsel for the Sellers, dated the
Closing Date in the form attached hereto as Exhibit A.
(d) The
Underwriters shall have received on the Closing Date: (i) the opinion of
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside United States counsel for the
Company, dated the Closing Date, in the form attached hereto as Exhibit B;
(ii) a “negative assurance” letter of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx
LLP, dated the Closing Date, in the form attached hereto as Exhibit C; and
(iii) the opinion of Xxxxxx & Xxxxxx LLP, special outside United States
counsel for the Company, dated the Closing Date, in the form attached hereto
as
Exhibit D.
(e) The
Underwriters shall have received on the Closing Date: (i) an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special United States counsel for
the Selling Shareholder, dated the Closing Date, in the form attached hereto
as
Exhibit E; and (ii) a negative assurance letter of Skadden, Arps, State, Xxxxxxx
& Flam LLP, dated the Closing Date, in the form attached hereto as Exhibit
F.
(f) The
Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxxx
L.L.P., counsel for the Underwriters, dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters.
The
opinions of Xxxxxx & Xxxxxxx P.C., Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP,
Xxxxxx & Xxxxxx LLP and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
described in Sections 6(c), (d) and (e) above shall be rendered to the
Underwriters at the request of the Company or the Selling Shareholder, as the
case may be, and shall so state therein.
(g) The
Underwriters shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be,
in
form and substance satisfactory to the Underwriters, from Deloitte & Touche
LLP, independent public accountants, containing statements and information
of
the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference into the Registration
Statement,
16
the
Time
of Sale Prospectus and the Prospectus; provided that the letter delivered on
the
Closing Date shall use a “cut-off date” not earlier than the date
hereof.
(h) The
Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Selling Shareholder
to
the effect that the representations and warranties of the Selling Shareholder
contained in this Agreement are true and correct as of the Closing Date and
that
the Selling Shareholder has complied with all of the agreements and satisfied
all the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
(i) The
“lock-up” agreements, each substantially in the form of Exhibit G hereto,
between you and the officers and directors of the Company relating to sales
and
certain other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in full
force and effect on the Closing Date.
The
several obligations of the Underwriters to purchase Additional Shares hereunder
are subject to the delivery to you on the applicable Option Closing Date of
such
documents as you may reasonably request with respect to the good standing of
the
Company, the due authorization and issuance of the Additional Shares to be
sold
on such Option Closing Date and other matters related to the issuance of such
Additional Shares.
7. Covenants
of the Company and the Selling Shareholder. The Company
covenants with each Underwriter as follows:
(a) To
furnish to you, without charge, a signed copy of the Registration Statement
(including exhibits thereto and documents incorporated by reference therein)
and
to deliver to each of the Underwriters during the period mentioned in Section
7(e) or 7(f) below, as many copies of the Time of Sale Prospectus, the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto or to the Registration Statement as you may reasonably
request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities
Act
any prospectus required to be filed pursuant to such Rule.
(c) To
furnish to you a copy of each proposed free writing prospectus to be prepared
by
or on behalf of, used by, or referred to by the Company and not to use or refer
to any proposed free writing prospectus to which you reasonably
object.
(d) Not
to
take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to
file
thereunder.
17
(e) If
the
Time of Sale Prospectus is being used to solicit offers to buy the Shares at
a
time when the Prospectus is not yet available to prospective purchasers and
any
event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then
on
file, or if, in the opinion of counsel for the Underwriters, it is necessary
to
amend or supplement the Time of Sale Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time
of
Sale Prospectus as so amended or supplemented will not, in the light of the
circumstances when delivered to a prospective purchaser, be misleading or so
that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable
law.
(f) If,
during such period after the first date of the public offering of the Shares
as
in the opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
required by law to be delivered in connection with sales by an Underwriter
or
dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
delivered to a purchaser, not misleading, or if, in the opinion of counsel
for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission
and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names
and addresses you will furnish to the Company) to which Shares may have been
sold by you on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements in
the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to
in
Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading
or so that the Prospectus, as amended or supplemented, will comply with
law.
(g) To
endeavor to qualify the Shares for offer and sale under the securities or Blue
Sky laws of such jurisdictions as you shall reasonably request.
(h) To
make
generally available to the Company’s security holders and to you an earnings
statement (which need not be audited) for the twelve-month period beginning
after the effective date of the Registration Statement as soon as reasonably
practicable after the end of such period, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(i) If
the
third anniversary of the initial effective date of the Registration Statement
occurs before all the Shares have been sold by the Underwriters, prior to the
third anniversary to file a new shelf registration statement and to take any
other action necessary to permit the public
18
offering
of the Shares to continue without interruption; references herein to the
Registration Statement shall include the new registration statement declared
effective by the Commission;
(j) If
requested by the Managers, to prepare a final term sheet relating to the
offering of the Shares, containing only information that describes the final
terms of the offering in a form consented to by the Managers, and to file such
final term sheet within the period required by Rule 433(d)(5)(ii) under the
Securities Act following the date the final terms have been established for
the
offering of the Shares.
Each
Seller hereby covenants and agrees that, without the prior written consent
of
Bear, Xxxxxxx & Co. Inc. and Xxxxxxxxx & Company, Inc., on behalf of the
Underwriters, it will not, during the period ending 45 days after the date
of
the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option
or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, or (2) enter into any
swap
or other arrangement that transfers to another, in whole or in part, any of
the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery
of
Common Stock or such other securities, in cash or otherwise, or (3) file any
registration statement, other than the Time of Sale Prospectus, with the
Commission relating to the offering of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock
or
(4) publicly disclose an intention to do any of the foregoing.
The
restrictions contained in the immediately preceding paragraph shall not apply
to
(a) the Shares to be sold hereunder, (b) the issuance by the Company of shares
of Common Stock upon the exercise of an option or warrant or the conversion
of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing or which is described in the Time of Sale Prospectus, (c)
the
grant by the Company of options or the issuance of shares of restricted stock
or
restricted stock units by the Company to employees, officers, directors,
advisors or consultants pursuant to any employee benefit plan referred to in
the
Time of Sale Prospectus, (d) the filing of any registration statement on Form
S-8 in respect of any employee benefit plan referred to in the Time of Sale
Prospectus, (e) distributions by the Selling Shareholder of shares of Common
Stock or any security convertible into Common Stock to limited liability company
members of the Selling Shareholder or by those members to their members;
provided that in the case of any transfer or distribution pursuant to clause
(e), (i) each donee or distributee shall enter into a written agreement
accepting the restrictions set forth in the preceding paragraph and this
paragraph as if it were a Selling Shareholder and (ii) no filing under Section
16(a) of the Exchange Act, reporting a reduction in beneficial ownership of
shares of Common Stock, shall be required or shall be voluntarily made in
respect of the transfer or distribution during the 45-day restricted period,
as
such may be extended. In addition, the Selling Shareholder, agrees that, without
the prior written consent of Bear, Xxxxxxx & Co. Inc. and Xxxxxxxxx &
Company, Inc., on behalf of the Underwriters, it will not, during the period
ending 45 days after the date of the Prospectus, as such may be extended as
described in the immediately following paragraph, make any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock. The
19
Selling
Shareholder consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of any Shares held
by the Selling Shareholder except in compliance with the foregoing restrictions
during the restricted period described herein.
The
lock-up period described in the proceeding paragraph will be extended if (i)
during the last 17 days of the lock-up period the Company issues a release
about
earnings or material news or a material event relating to the Company occurs;
or
(ii) prior to the expiration of the lock-up period, the Company announces that
it will release earning results during the 16-day period beginning on the last
day of the lock-up period, in which case the restrictions described in the
preceding paragraph will continue to apply until the expiration of the 18-day
period beginning on the issuance of the release or the occurrence of the
material news or material event. The Company shall promptly notify
Bear, Xxxxxxx & Co. Inc. and Xxxxxxxxx & Company, Inc. of any earnings
release, news or event that may give rise to an extension of the initial lock-up
period.
8. Covenants
of the Underwriters. Each Underwriter severally covenants with
the Company not to take any action that would result in the Company being
required to file with the Commission under Rule 433(d) a free writing prospectus
prepared by or on behalf of such Underwriter that otherwise would not be
required to be filed by the Company thereunder, but for the action of the
Underwriter.
9. Expenses. (a) Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Sellers agree to pay or cause to be paid all
expenses incident to the performance of their obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company’s counsel,
counsel for the Selling Shareholder and the Company’s accountants in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of
the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
the Prospectus, any free writing prospectus prepared by or on behalf of, used
by, or referred to by the Company and amendments and supplements to any of
the
foregoing, including the filing fees payable to the Commission relating to
the
Shares, all printing costs associated therewith, and the mailing and delivering
of copies thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery
of the Shares to the Underwriters, including any transfer or other taxes payable
thereon, (iii) the cost of printing or producing any blue sky or legal
investment memorandum in connection with the offer and sale of the Shares under
state securities laws and all expenses in connection with the qualification
of
the Shares for offer and sale under state securities laws as provided in Section
7(g) hereof, including filing fees and the reasonable fees and disbursements
of
counsel to the Underwriters (not to exceed $5,000) in connection with such
qualification and in connection with the blue sky or legal investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements
of counsel to the Underwriters (not to exceed $5,000) incurred in connection
with the review and qualification of the offering of the Shares by the NASD,
(v) the cost of printing certificates representing the Shares,
(vi) the costs and charges of any transfer agent, registrar or depositary,
(vii) the costs and expenses of the Company relating to investor
presentations on any
20
“road
show” undertaken in connection with the marketing of the offering of the Shares,
including, without limitation, expenses associated with the preparation of
or
dissemination of any electronic roadshow, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel
and
lodging expenses of the representatives and officers of the Company and any
such
consultants, and the cost of any aircraft chartered in connection with the
road
show, (viii) the document production charges and expenses associated with
printing this Agreement and (ix) all other costs and expenses incident to
the performance of the obligations of the Company hereunder for which provision
is not otherwise made in this Section. It is understood, however, that except
as
provided in this Section, Section 10 entitled “Indemnity and Contribution” and
the last paragraph of Section 12 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
(b) The
provisions of this Section 9 shall not supersede or otherwise affect any
agreement that the Sellers may otherwise have for the allocation of such
expenses among themselves.
10. Indemnity
and Contribution. (a) The
Company agrees to indemnify and hold harmless each Underwriter, its directors
and officers and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act and each affiliate of any Underwriter within the meaning of Rule 405 under
the Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, any Company
information that the Company has filed, or is required to file, pursuant to
Rule
433(d) under the Securities Act, or the Prospectus or any amendment or
supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission
or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
you
expressly for use therein, which information is specified in Section 10(i)
below.
(b) The
Selling Shareholder agrees to indemnify and hold harmless each Underwriter,
its
directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and each affiliate of any Underwriter within the meaning of Rule
405 under the Securities Act from against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus, the Time of
21
Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under
the Securities Act, any Company information that the Company has filed, or
is
required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus or any amendment or supplement thereto, or caused by any omission
or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information relating to the Selling Shareholder furnished by or
on
behalf of the Selling Shareholder in writing expressly for use in the
Registration Statement, the Time of Sale Prospectus or the Prospectus (which
information includes all information under the caption “Selling Shareholder” in
the Registration Statement, the Time of Sale Prospectus and the
Prospectus).
(c) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Selling Shareholder, the directors of the Company, the officers
of the Company who sign the Registration Statement and each person, if any,
who
controls the Company or the Selling Shareholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus,
the
Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule
433(h) under the Securities Act, any Company information that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act,
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendment or supplement thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus or the Prospectus or any amendments or supplements
thereto, which information is specified in Section 10(i) below.
(d) In
case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section 10(a), 10(b) or 10(c), such person (the “indemnified party”) shall
promptly notify the person against whom such indemnity may be sought (the
“indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any other persons
entitled to indemnification hereunder in such proceeding and shall pay the
fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is
22
understood
that the indemnifying party shall not, in respect of the legal expenses of
any
indemnified party in connection with any proceeding or related proceedings,
be
liable for the fees and expenses of more than one separate firm (in addition
to
any local counsel) for all the indemnified parties, and that all such fees
and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons and affiliates
of
any Underwriters, such firm shall be designated in writing by Bear, Xxxxxxx
& Co. Inc. In the case of any such separate firm for the Company,
and such directors, officers and control persons of the Company, such firm
shall
be designated in writing by the Company. In the case of any such separate firm
for the Selling Shareholder and such control persons of the Selling Shareholder,
such firm shall be designated in writing by the Selling Shareholder. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees
to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if
at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than
30
days after receipt by such indemnifying party of the aforesaid request and
(ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding and does not include
a
statement as to or an admission of fault, culpability or a failure to act,
by or
on behalf of any indemnified party.
(e) To
the
extent the indemnification provided for in Section 10(a), 10(b) or 10(c) is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as
a
result of such losses, claims, damages or liabilities (i) in such proportion
as
is appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party or parties on the
other hand from the offering of the Shares or (ii) if the allocation provided
by
clause 10(e)(i) above is not permitted by applicable law, in such proportion
as
is appropriate to reflect not only the relative benefits referred to in clause
10(e)(i) above but also the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations; provided, however, that the liability of the Selling Shareholder
under this Section 10 shall be limited to an amount equal to the gross proceeds,
after deducting underwriting discounts and commissions but before deducting
expenses, to the Selling Shareholder from the sale of the Shares sold by the
Selling Shareholder hereunder. The relative benefits received by the
Company, the Selling Shareholder and the Underwriters in connection
23
with
the
offering of the Shares shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Shares (before deducting expenses)
received by the Company and the Selling Shareholder, respectively, and the
total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate public offering price of the Shares set forth in the
Prospectus. The relative fault of the Company, the Selling
Shareholder and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Shareholder or the Underwriters
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Underwriters’
respective obligations to contribute pursuant to this Section 10 are several
in
proportion to the respective number of Shares they have purchased hereunder,
and
not joint.
(f) The
Sellers and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 10 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any
other method of allocation that does not take account of the equitable
considerations referred to in Section 10(e). The amount paid or payable by
an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 10(e) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 10, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
that
such Underwriter has otherwise been required to pay by reason of such untrue
or
alleged untrue statement or omission or alleged omission. No person guilty
of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 10 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(g) Nothing
in the foregoing is intended to, or shall, supersede the respective
indemnification and contribution obligations of the Sellers, but only as between
themselves, as provided in that certain Registration Rights Agreement dated
as
of July 15, 2005.
(h) The
indemnity and contribution provisions contained in this Section 10 and the
representations, warranties and other statements of the Company and the Selling
Shareholder contained in this Agreement shall remain operative and in full
force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter, any person controlling
any Underwriter or any affiliate of any Underwriter, the Selling Shareholder
or
any person controlling the Selling Shareholder, or the Company, its officers
or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
24
(i) The
Underwriters confirm and the Company and the Selling Shareholder acknowledge
and
agree that the statements regarding delivery of shares by the Underwriters
set
forth on the cover page of, and the concession and reallowance figures and
the
paragraphs relating to stabilization and passive market making by the
Underwriters appearing under the caption “Underwriting” in, the most recent
preliminary prospectus and the Prospectus constitute the only information
relating to any of the Underwriters furnished in writing to the Company by
or on
behalf of any of the Underwriters specifically for inclusion in the Registration
Statement, any preliminary prospectus relating to the offering of the Shares,
the Time of Sale Prospectus, any issuer free writing prospectus relating to
the
offering of the Shares or the Prospectus or in any amendment or supplement
to
any of the foregoing.
11. Termination. The
Underwriters may terminate this Agreement by notice given by you to each of
the
Sellers, if after the execution and delivery of this Agreement and prior to
the
Closing Date (i) trading generally shall have been suspended or materially
limited on, or by, as the case may be, any of the New York Stock Exchange,
the
American Stock Exchange, the Nasdaq Global Select Market, the Chicago Board
of
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(ii) trading of any securities of the Company shall have been suspended on
any
exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall
have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Shares on the terms and in the manner
contemplated in the Time of Sale Prospectus or the Prospectus.
12. Effectiveness;
Defaulting Underwriters. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
If,
on
the Closing Date or an Option Closing Date, as the case may be, any one or
more
of the Underwriters shall fail or refuse to purchase Shares that it has or
they
have agreed to purchase hereunder on such date, and the aggregate number of
Shares which such defaulting Underwriter or Underwriters agreed but failed
or
refused to purchase is not more than one-tenth of the aggregate number of the
Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite
their respective names in Schedule II bears to the aggregate number of Firm
Shares set forth opposite the names of all such non-defaulting Underwriters,
or
in such other proportions as you may specify, to purchase the Shares which
such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the number of Shares that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 12 by an amount in excess of one-ninth of such number
of Shares without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of
Firm
25
Shares
to
be purchased on such date, and arrangements satisfactory to you and each of
the
Sellers for the purchase of such Firm Shares are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part
of
any non-defaulting Underwriter, the Company or the Selling
Shareholder. In any such case either you or either of the Sellers
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement, in the Time of Sale Prospectus, in the Prospectus or in any other
documents or arrangements may be effected. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect
to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such Option Closing Date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase the Additional Shares to be sold on such Option
Closing Date or (ii) purchase not less than the number of Additional Shares
that
such non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
If
this
Agreement shall be terminated by the Underwriters, or any of them, because
of
any failure or refusal on the part of the Company or the Selling Shareholder
to
comply with the terms or to fulfill any of the conditions of this Agreement,
or
if for any reason the Company or the Selling Shareholder (or both) shall be
unable to perform its obligations under this Agreement, the Company or the
Selling Shareholder (or both), as applicable, will reimburse the Underwriters
or
such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated
hereunder.
13. Entire
Agreement. (a) This
Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement) that relate
to the offering of the Shares, represents the entire agreement between the
Sellers, on the one hand, and the Underwriters, on the other, with respect
to
the preparation of any preliminary prospectus, the Time of Sale Prospectus,
the
Prospectus, the conduct of the offering, and the purchase and sale of the
Shares.
(b) Each
Seller acknowledges that in connection with the offering of the Shares: (i)
the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary
duties to, the Company or any other person, (ii) the Underwriters owe the
Sellers only those duties and obligations set forth in this Agreement and prior
written agreements (to the extent not superseded by this Agreement), if any,
and
(iii) the Underwriters may have interests that differ from those of the Sellers.
Each Seller waives to the full extent permitted by applicable law any claims
it
may have against the Underwriters arising from an alleged breach of fiduciary
duty in connection with the offering of the Shares.
26
14. Counterparts. This
Agreement may be signed in two or more counterparts, each of which shall be
an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
15. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to any rules
of conflict of laws thereof that would result in the application of the laws
of
any other jurisdiction.
16. Headings. The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed a part of this Agreement.
17. Notices. All
communications hereunder shall be in writing and effective only upon receipt
and
if to the Underwriters shall be delivered, mailed or sent to you in care of
Bear, Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxx., Xxx Xxxx, Xxx Xxxx 00000,
Attention: Equity Syndicate Desk, with a copy to the Legal Department; and
if to
the Company shall be delivered, mailed or sent to Genco Shipping & Trading
Limited, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx X. Xxxxxxxxxx; and if to the Selling Shareholder
shall be delivered, mailed or sent to B. Xxxxx Xxxx, 000 Xxxxx Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
27
Very
truly
yours,
GENCO
SHIPPING &
TRADING LIMITED
By: /s/ Xxxx
X. Xxxxxxxxxx
Name:
Xxxx X.
Xxxxxxxxxx
Title:
Chief Financial Officer
28
FLEET
ACQUISITION
LLC
By: /s/B.
Xxxxx Xxxx
Name:
B. Xxxxx Xxxx
Title:
President
29
|
Accepted
by the Managers as of the date
hereof,
acting
severally on behalf of
themselves
and the
several Underwriters
named
in Schedule
II hereto.
|
|
By:
BEAR, XXXXXXX & CO. INC.
|
|
By:
/s/ Xxxxxxx
Parish
|
|
Name:
Xxxxxxx Parish
|
|
Title:
Senior Managing Director
|
|
By:
XXXXXXXXX & COMPANY INC.
|
|
By: /s/
Hamish X.X.
Xxxxxx
|
|
Name:
Hamish X.X. Xxxxxx
|
|
Title: Managing
Director
|
30
SCHEDULE
I
|
Managers:
|
|
|
Bear,
Xxxxxxx & Co. Inc.
|
|
|
Xxxxxxxxx
& Company Inc.
|
I-1
SCHEDULE
II
|
Underwriter
|
Number
of Shares To Be Purchased
|
|||
|
Bear,
Xxxxxxx & Co.
Inc.
|
1,622,000
|
|||
|
Xxxxxxxxx
& Company
Inc.
|
1,419,250
|
|||
|
Xxxxxxx
Xxxx & Company,
LLC
|
811,000
|
|||
|
DnB
NOR Markets,
Inc.
|
202,750
|
|||
|
Total:
|
4,055,000
|
|||
II-1
SCHEDULE
III
|
Time
of Sale Prospectus
|
1. Preliminary
Prospectus dated September 24, 2007
2. Issuer
Free Writing Prospectus dated September 26, 2007
|
III-1
SCHEDULE
IV
Company
Subsidiaries
|
Subsidiary
|
Jurisdiction
of Organization
|
|
Genco
Beauty Limited
|
Xxxxxxxx
Islands
|
|
Genco
Knight Limited
|
Xxxxxxxx
Islands
|
|
Genco
Leader Limited
|
Xxxxxxxx
Islands
|
|
Genco
Vigour Limited
|
Xxxxxxxx
Islands
|
|
Genco
Trader Limited
|
Xxxxxxxx
Islands
|
|
Genco
Success Limited
|
Xxxxxxxx
Islands
|
|
Genco
Carrier Limited
|
Xxxxxxxx
Islands
|
|
Genco
Prosperity Limited
|
Xxxxxxxx
Islands
|
|
Genco
Wisdom Limited
|
Xxxxxxxx
Islands
|
|
Genco
Marine Limited
|
Xxxxxxxx
Islands
|
|
Genco
Explorer Limited
|
Xxxxxxxx
Islands
|
|
Genco
Pioneer Limited
|
Xxxxxxxx
Islands
|
|
Genco
Progress Limited
|
Xxxxxxxx
Islands
|
|
Genco
Reliance Limited
|
Xxxxxxxx
Islands
|
|
Genco
Sugar Limited
|
Xxxxxxxx
Islands
|
|
Genco
Muse Limited
|
Xxxxxxxx
Islands
|
|
Genco
Commander Limited
|
Xxxxxxxx
Islands
|
|
Genco
Acheron Limited
|
Xxxxxxxx
Islands
|
|
Genco
Surprise Limited
|
Xxxxxxxx
Islands
|
|
Genco
Glory Limited
|
Xxxxxxxx
Islands
|
|
Xxxxx
Xxxxxxxx Limited
|
Xxxxxxxx
Islands
|
|
Genco
Tiberius Limited
|
Xxxxxxxx
Islands
|
|
Xxxxx
Xxxxx Limited
|
Xxxxxxxx
Islands
|
|
Xxxxx
Xxxxxxxxxxx Limited
|
Xxxxxxxx
Islands
|
|
Genco
London Limited
|
Xxxxxxxx
Islands
|
|
Genco
Hadrian Limited
|
Xxxxxxxx
Islands
|
|
Genco
Commodus Limited
|
Xxxxxxxx
Islands
|
|
Genco
Maximus Limited
|
Xxxxxxxx
Islands
|
|
Xxxxx
Xxxxxxxx Limited
|
Xxxxxxxx
Islands
|
|
Genco
Predator Limited
|
Xxxxxxxx
Islands
|
|
Genco
Warrior Limited
|
Xxxxxxxx
Islands
|
|
Genco
Hunter Limited
|
Xxxxxxxx
Islands
|
|
Genco
Challenger Limited
|
Xxxxxxxx
Islands
|
|
Genco
Charger Limited
|
Xxxxxxxx
Islands
|
|
Genco
Champion Limited
|
Xxxxxxxx
Islands
|
|
Genco
Investments LLC
|
Xxxxxxxx
Islands
|
|
Genco
Ship Management LLC
|
Delaware
|
IV-1
SCHEDULE
V
Ownership
of Vessels
|
Vessel
|
Subsidiary
|
|
Genco
Beauty
|
Genco
Beauty Limited
(Xxxxxxxx
Islands)
|
|
Genco
Knight
|
Genco
Knight Limited
(Xxxxxxxx
Islands)
|
|
Genco
Leader
|
Genco
Leader Limited
(Xxxxxxxx
Islands)
|
|
Genco
Vigour
|
Genco
Vigour Limited
(Xxxxxxxx
Islands)
|
|
Genco
Trader
|
Genco
Trader Limited
(Xxxxxxxx
Islands)
|
|
Genco
Success
|
Genco
Success Limited
(Xxxxxxxx
Islands)
|
|
Genco
Carrier
|
Genco
Carrier Limited
(Xxxxxxxx
Islands)
|
|
Genco
Prosperity
|
Genco
Prosperity Limited
(Xxxxxxxx
Islands)
|
|
Genco
Wisdom
|
Genco
Wisdom Limited
(Xxxxxxxx
Islands)
|
|
Genco
Marine
|
Genco
Marine Limited
(Xxxxxxxx
Islands)
|
|
Genco
Explorer
|
Genco
Explorer Limited
(Xxxxxxxx
Islands)
|
|
Genco
Pioneer
|
Genco
Pioneer Limited
(Xxxxxxxx
Islands)
|
|
Genco
Progress
|
Genco
Progress Limited
(Xxxxxxxx
Islands)
|
|
Genco
Reliance
|
Genco
Reliance Limited
(Xxxxxxxx
Islands)
|
|
Genco
Sugar
|
Genco
Sugar Limited
(Xxxxxxxx
Islands)
|
|
Genco
Muse
|
Genco
Muse Limited
(Xxxxxxxx
Islands)
|
|
Genco
Commander
|
Genco
Commander Limited
(Xxxxxxxx
Islands)
|
|
Genco
Acheron
|
Genco
Acheron Limited
(Xxxxxxxx
Islands)
|
|
Genco
Surprise
|
Genco
Surprise Limited
(Xxxxxxxx
Islands)
|
|
Xxxxx
Xxxxxxxx
|
Xxxxx
Xxxxxxxx Limited
(Xxxxxxxx
Islands)
|
|
Genco
Tiberius
|
Genco
Tiberius Limited
(Xxxxxxxx
Islands)
|
V-1
EXHIBIT
A
[LETTERHEAD
OF XXXXXX & XXXXXXX P.C.]
October
[ ], 2007
Bear,
Xxxxxxx & Co. Inc.
Xxxxxxxxx
& Company, Inc.
As
Representatives of the Several Underwriters
|
c/o
|
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxx.
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Xxxxxxxxx
& Company, Inc.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Ladies
and Gentlemen:
We
have acted as special Xxxxxxxx
Islands counsel to Genco Shipping & Trading Limited, a non-resident domestic
corporation (the “Company”) organized under the laws
of the Republic of the Xxxxxxxx Islands (the “RMI”),
and Fleet Acquisition LLC, a non-resident domestic company organized under
the
laws of the RMI (the “Selling Shareholder”), in
connection with (i) the sale by the Company and the Selling Shareholder of
an
aggregate of 4,055,000 shares of common stock (the “Firm
Shares”), par value $0.01 per share, of the Company (the
“Common Stock”), (ii) the possible sale by the
Company
and the Selling Shareholder of an additional aggregate 405,500 shares of Common
Stock upon the exercise of the Underwriters’ over-allotment option (the
“Additional Shares”), (iii) the Underwriting Agreement
dated as of September 26, 2007 (the “Underwriting
Agreement”) among the Company, the Selling Shareholder and Bear,
Xxxxxxx & Co. Inc. and Xxxxxxxxx & Company, Inc., as representatives of
the several underwriters listed on Schedule II thereto (collectively, the
“Underwriters”), and (iv) the preparation of a
registration statement on Form S-3 (File No. 333-140158) of the Company,
including the prospectus contained therein, with respect to the offering of
the
Shares (as defined below) included therein. The Firm Shares and any
Additional Shares purchased by the Underwriters are collectively called the
“Shares”. This opinion is furnished to the
Underwriters at the request of the Sellers pursuant to Section 6(c) of the
Underwriting Agreement. Except as otherwise provided herein,
capitalized terms used herein but not otherwise defined herein shall have the
respective meanings set forth in the Underwriting Agreement.
In
rendering this opinion, we have
examined and relied upon originals or copies of the following:
A-1
|
(a)
|
|
(b)
|
the
Existing Instruments;
|
|
(c)
|
the
articles of incorporation, bylaws or other organizational documents
of the
Company, each of the RMI subsidiaries as set out in Schedule IV of
the
Underwriting Agreement (the “RMI Subsidiaries”),
and the Selling Shareholder;
|
|
(d)
|
the
Registration Statement;
|
|
(e)
|
Time
of Sale Prospectus; and
|
|
(f)
|
the
Prospectus.
|
We
have also examined and relied, as to
factual matters, upon originals, or copies certified to our satisfaction, of
such records, documents, certificates of officers of each of the Sellers and
of
public officials and other instruments, and made such other inquiries, as,
in
our judgment, are necessary or appropriate to enable us to render the opinion
expressed below. As to questions of fact material to this opinion, we
have, where relevant facts were not independently established, relied upon,
among other things, the representations made in the Underwriting Agreement
and
certificates of officers of each of the Sellers.
For
the purpose of this opinion, we
have assumed the genuineness of all signatures on all documents and the
completeness, and the conformity to original documents, of all copies submitted
to us.
Based
upon and subject to the foregoing
and to the qualifications and limitations hereafter expressed, we are of the
opinion that:
1. The
Company is a non-resident domestic corporation duly organized and validly
existing in good standing under the laws of the RMI, with full corporate power
and authority to (i) own, lease and operate its properties and to conduct its
business as described in the Time of Sale Prospectus and the Prospectus and
(ii)
execute, deliver and perform its obligations under the Underwriting Agreement,
which has been duly executed and delivered by the Company.
2. Each
of the RMI Subsidiaries is a non-resident domestic company duly organized and
validly existing in good standing under the laws of the RMI, with full power
and
authority to own, lease and operate its properties and to conduct its business
as it is now being conducted, as described in the Time of Sale Prospectus and
the Prospectus.
A-2
3. The
Selling Shareholder is a non-resident domestic company duly organized and
validly existing in good standing under the laws of the RMI, with the power
and
authority to own, lease and operate its properties and to (i) conduct its
business as currently conducted and (ii) execute, deliver and perform its
obligations under the Underwriting Agreement.
4. The
authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the
Prospectus.
5. All
of the issued and outstanding shares of Common Stock (including the Shares
to be
sold by the Selling Shareholder) have been duly authorized and are validly
issued, fully paid and nonassessable and are not subject to any preemptive
or
similar rights. The form of certificate used to evidence shares of
Common Stock is in due and proper form and complies with all applicable
requirements of the articles of incorporation and bylaws of the Company and
The
Associations Law of 1990 of the RMI, as amended.
6. The
Shares to be issued and sold by the Company to the Underwriters under the
Underwriting Agreement have been duly authorized and, when issued and delivered
against payment therefor as provided in the Underwriting Agreement, will be
validly issued, fully paid and nonassessable and will conform to the description
of the Common Stock contained in each of the Time of Sale Prospectus and the
Prospectus.
7. All
of the issued and outstanding shares of capital stock of each of the RMI
Subsidiaries have been duly authorized and are validly issued, fully paid and
nonassessable and are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims.
8. The
filing of the Registration Statement and the Prospectuses with the U.S.
Securities and Exchange Commission, the execution and delivery of the
Underwriting Agreement and the offer and sale of the Shares to be sold by the
Sellers have been duly authorized by and on behalf of each Seller, and the
Registration Statement has been duly executed pursuant to such authorization
by
and on behalf of the Company.
9. The
issuance and sale of the Shares to be sold by the Company pursuant to, the
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, the Underwriting Agreement will not contravene any
provision of applicable law; or conflict with any provisions of the articles
of
incorporation or bylaws of the Company; or, to the best of our knowledge,
conflict with or constitute a breach of, or default or a debt repayment
triggering event under, or result in the creation or imposition of any security
interest, mortgage, pledge, lien, encumbrance or adverse claim upon any property
or assets of the Company or any of the RMI Subsidiaries pursuant to, or require
the consent of any other party to, any agreement or other instrument binding
upon the Company or any of the RMI Subsidiaries that is material to the Company
and the RMI Subsidiaries, taken as a whole; or, to the best of our knowledge,
conflict with or result in a violation of any judgment, order or decree of
any
governmental body, agency or court having jurisdiction over the Company or
any
RMI Subsidiary; and no consent, approval, authorization or order of, or
qualification with, any
A-3
governmental
body or agency under the laws of the RMI is required for the performance by
the
Company of its obligations under the Underwriting Agreement.
10. The
execution and delivery by the Selling Shareholder of, and the performance by
the
Selling Shareholder of its obligations under, the Underwriting Agreement will
not contravene any provision of applicable RMI law, or the articles of
incorporation, bylaws, or other organizational documents of the Selling
Shareholder or, to the best of our knowledge, any agreement or other instrument
binding upon the Selling Shareholder that is material to the Selling
Shareholder, or, to the best of our knowledge, any judgment, order or decree
of
any RMI governmental body, agency or court, and no RMI consent, approval,
authorization or order of, or qualification with, any governmental body or
agency under the laws of the RMI is required for the performance by the Selling
Shareholder of its obligations under the Underwriting Agreement.
11. Each
of the certificates evidencing the Shares being purchased by the Underwriters
on
the date hereof is in due and proper form under the laws of the RMI and (i)
such
Shares represent shares, participations or other interests in the Company,
(ii)
such certificates are in registered form, the transfer of which may be
registered upon the books maintained for that purpose by or on behalf of the
Company, and (iii) the Shares are part of the class of Common Stock, which
represents shares, participations or interests in the Company. The
person who has endorsed the certificates evidencing the Shares being purchased
by the Underwriters on the date hereof is authorized to do so under the laws
of
the RMI, the organizational documents of the Selling Shareholder and resolutions
duly adopted by the Management Committee of the Selling Shareholder, and the
endorsement of each of those certificates is effective under the laws of the
RMI.
12. The
statements relating to legal matters, documents or proceedings included in
(A)
the Time of Sale Prospectus and the Prospectus under the caption “Description of
Capital Stock” and (B) the Registration Statement in Item 15, in each case,
fairly summarize in all material respects such matters, documents or
proceedings.
13. After
due inquiry, we do not know of any RMI legal or governmental proceedings pending
or threatened to which the Company or any of the RMI Subsidiaries is a party
or
to which any of the properties of the Company or any of the RMI Subsidiaries
is
subject that are required to be described in the Registration Statement, the
Time of Sale Prospectus or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement, the Time of Sale Prospectus or the
Prospectus or to be filed as exhibits to the Registration Statement that are
not
described or filed as required.
14. The
choice of New York law to govern the Underwriting Agreement constitutes a valid
choice of law under the laws of the RMI, and such choice of law would be
recognized, upheld and applied by the courts of the RMI as the proper law of
the
Underwriting Agreement in proceedings brought before them in relation to the
Underwriting Agreement.
A-4
15. Our
opinion filed as Exhibit 5.1 to the Registration Statement is confirmed, and
the
Underwriters may rely upon such opinion as if it were addressed to
them.
Although
we do not assume any
responsibility for, and shall not be deemed to have independently ascertained
or
verified, the accuracy, completeness or fairness of the statements made in
the
Registration Statement, the Time of Sale Prospectus or the Prospectus, nothing
has come to our attention in the course of participating in conferences with
officers and representatives of the Company, representatives of the Company’s
independent accountants, representatives of the Selling Shareholder and
representatives of the Underwriters and counsel for the Underwriters in the
preparation of the Registration Statement, the Time of Sale Prospectus and
the
Prospectus that causes us to believe that (A) any part of the Registration
Statement (except for the financial statements and financial schedules and
other
financial data included therein as to which we have not been asked to express
any belief), when such part became effective, contained 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, (B) the
Time
of Sale Prospectus (except for the financial statements and financial schedules
and other financial data included therein, as to which we have not been asked
to
express any belief) as of the date of the Underwriting Agreement or as amended
or supplemented, if applicable, as of the Closing Date contained or contains
any
untrue statement of a material fact or omitted or omits 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 or (C) the Prospectus
(except for the financial statements and financial schedules and other financial
data included therein, as to which we have not been asked to express any belief)
as of its date or as of the Closing Date contained or contains any untrue
statement of a material fact or omitted or omits 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
as otherwise indicated, our
opinion is limited to the laws of the RMI which are in effect as of the date
hereof. We express no opinion with respect to the laws of any
other jurisdiction other than the laws of the RMI which are in effect as of
the
date hereof.
This
opinion is rendered only to the Underwriters and is solely for their benefit
in
connection with their purchase of the Shares from the Sellers. This
opinion may not be relied upon by such Underwriters for any other purpose or
by
any other person for any purpose without our prior written consent.
Sincerely,
A-5
EXHIBIT
B
[LETTERHEAD
OF XXXXXX XXXXX XXXXXXXX & XXXXXXX LLP]
October
[ ], 2007
Bear,
Xxxxxxx & Co. Inc.
Xxxxxxxxx
& Company, Inc.
As
Representatives of the Several Underwriters
|
c/o
|
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxx.
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Xxxxxxxxx
& Company, Inc.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Ladies
and Gentlemen:
We
have
acted as United States counsel to Genco Shipping & Trading Limited, a
company organized under the laws of the Republic of the Xxxxxxxx Islands (the
“Company”), in connection with (i) the sale by the Company and the Selling
Shareholder, of an aggregate of 4,055,000 shares of common stock (the “Firm
Shares”), par value $0.01 per share, of the Company (the “Common Stock”),
(ii) the possible sale by the Company and the Selling Shareholder of an
additional aggregate of 405,500 shares of Common Stock upon the exercise of
the
Underwriters’ over-allotment option (the “Additional Shares”), (iii) the
Underwriting Agreement dated as of September 26, 2007 (the “Underwriting
Agreement”) among the Company, the Selling Shareholder and Bear, Xxxxxxx &
Co. Inc. and Xxxxxxxxx & Company, Inc., as representatives of the several
underwriters listed on Schedule II thereto (collectively, the “Underwriters”),
and (iv) the preparation of a registration statement on Form S-3 (File No.
333-140158) of the Company, including the prospectus contained therein, with
respect to the offering of the Shares (as defined below) included
therein. The Firm Shares and any Additional Shares are collectively
called the “Shares.” This opinion is furnished to the Underwriters at
the request of the Company pursuant to Section 6(d) of the Underwriting
Agreement. Except as otherwise provided herein, capitalized terms
used herein but not otherwise defined herein shall have the respective meanings
set forth in the Underwriting Agreement. For purposes hereof, “Final
Prospectus” means the Base Prospectus as supplemented by the final prospectus
supplement specifically relating to the Shares dated September 26, 2007,
together with the Company’s free writing prospectus relating specifically to the
Shares dated September 26, 2007 (the “Free
B-1
Writing
Prospectus”), and “Time of Sale Prospectus” means the Base Prospectus as
supplemented by the preliminary prospectus supplement specifically relating
to
the Shares dated September 24, 2007, together with the Free Writing
Prospectus.
In
rendering this opinion, we have examined and relied upon originals or copies
of
the following (the “Transaction Documents”):
|
|
(a)
|
the
Underwriting Agreement;
|
|
|
(b)
|
the
agreements listed on Schedule A hereto (the “Listed Existing
Agreements”);
|
|
|
(c)
|
the
Registration Statement;
|
|
|
(d)
|
Time
of Sale Prospectus; and
|
|
|
(e)
|
the
Prospectus.
|
We
have
also reviewed such other documents and made such other investigations as we
have
deemed appropriate. As to various questions of fact material to this
opinion, we have relied upon the representations and warranties of the Company
contained in the Transaction Documents and upon the statements, representations
and certificates of officers or other representatives of the Company and public
officials. We have not independently verified the facts so relied
on.
For
the
purpose of this opinion, we have assumed the genuineness of all signatures
on
all documents and the completeness, and the conformity to original documents,
of
all copies submitted to us.
Based
upon and subject to the foregoing and to the qualifications and limitations
hereafter expressed, we are of the opinion that:
1. Genco
Ship Management LLC, a Delaware limited liability company (“GSM”), is validly
existing as a limited liability company in good standing under the laws of
the
State of Delaware, has the limited liability company power and authority to
own
its property and to conduct its business as described in the Time of Sale
Prospectus.
2. All
of the issued and outstanding units of limited liability company membership
interests in GSM have been duly authorized and are validly issued and fully
paid.
3. The
Underwriting Agreement has been duly executed and delivered by the Company
in
accordance with the laws of the State of New York, to the extent such execution
and delivery are governed by the laws of the State of New York.
4. The
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, the Underwriting Agreement will not: (i) violate or
otherwise contravene any provision of Relevant Law (as hereinafter defined)
(other than state securities or blue sky laws concerning which no opinion is
expressed in this paragraph 4); (ii) conflict with or
B-2
constitute
a breach of, or Default or a Debt Repayment Triggering Event under, or result
in
the creation or imposition of any security interest, mortgage, pledge, lien,
encumbrance or adverse claim upon any property or assets of the Company or
any
of the Subsidiaries pursuant to, or require the consent of any other party
to,
any Listed Existing Agreement; or (iii) to our knowledge, conflict with or
result in a violation of any judgment, order or decree of any U.S. Federal
or
New York governmental body, agency or court having jurisdiction over the Company
or any Subsidiary; and, to our knowledge, no consent, approval, authorization
or
order of, or qualification with, any U.S. Federal or New York governmental
body
or agency is required for the performance by the Company of its obligations
under the Underwriting Agreement, except such as may have been obtained or
may
be required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Shares.
5. The
Registration Statement is effective under the Securities Act, and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof has been issued and no
proceedings therefor have been initiated or are contemplated or threatened
by
the Commission and all filings required by Rule 424(b) and Rule 430B under
the
Securities Act have been made in the manner and within the time period required
by Rule 424(b) and Rule 430B, respectively.
6. The
statements in the Time of Sale Prospectus and the Prospectus under the captions
“Risk Factors – Risk Factors Related to Taxation,” and “Tax Considerations,”
insofar as they purport to summarize certain U.S. federal income tax laws,
conform in all material respects to such laws, subject to the qualifications
and
limitations set forth thereunder.
7. The
statements in the Time of Sale Prospectus and the Prospectus under the caption
“Underwriting,” insofar as they purport to summarize the terms of the
Underwriting Agreement, conform in all material respects to the terms of the
Underwriting Agreement.
8. The
statements in the Company’s Annual Report on Form 10-K for the year ended
December 31, 2006 (which is incorporated by reference into the Registration
Statement, the Time of Sale Prospectus and the Prospectus) (the “10-K”) under
the captions “Business–Our Charters,” insofar as they purport to summarize the
terms of agreements to charter the Company’s vessels, conform in all material
respects to the terms of such agreements.
9. The
statements in the 10-K under the caption “Interest Rate Swap Agreements and
Forward Freight Agreements,” insofar as they purport to summarize the terms of
the 4.485% Swap, the 5.075% Swap, and the 5.25% Swap (each as defined in the
10-K), conform in all material respects to the terms of the 4.485% Swap, the
5.075% Swap, and the 5.25% Swap, respectively.
10. To
our knowledge, there are no legal or governmental proceedings pending or
threatened to which the Company or any of the Subsidiaries is a party or to
which any of the properties of the Company or any of the Subsidiaries is subject
that are required to be described in the Registration Statement, the Time of
Sale Prospectus or the Prospectus and are not so described.
11. The
Company is not and, after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the Prospectus
will
not be, required to
B-3
register
as an “investment company,” as such term is defined in the Investment Company
Act of 1940, as amended.
12. To
our knowledge, there are no Existing Instruments to which the Company is a
party
of a character that would be required to be filed as an exhibit to the
Registration Statement which have not been so filed as an exhibit to the
Registration Statement; and the descriptions of any Listed Existing Agreements
or references thereto in the Registration Statement, the Time of Sale Prospectus
and the Prospectus are accurate in all material respects.
13. The
choice of New York law in Section 15 of the Underwriting Agreement, whereby
the
parties agree that the Underwriting Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to any
rules of conflict of laws thereof that would result in the application of the
laws of any other jurisdiction, is a valid choice of law under N.Y. Gen. Oblig.
Law §§ 5-1401, 5-1402 (XxXxxxxx 2001) and N.Y. C.P.L.R. 327(b) (XxXxxxxx 2001),
and in an action properly brought before a New York state court or a Federal
court sitting in the State of New York arising out of or relating to the
Underwriting Agreement, New York substantive law would be applied in determining
the respective rights and obligations of the parties thereto, provided that
such
court does not determine that the application of such law would violate the
public policy of the State of New York.
14. The
Registration Statement, as of the Applicable Time, the Time of Sale Prospectus,
as of the Applicable Time, and the Final Prospectus, as of the date of the
Final
Prospectus (in each case, other than the financial statements, the notes
thereto, the related schedules, the other financial and accounting data, and
the
industry-related statistical data included therein, as to which we have not
been
asked to express any opinion), complied as to form in all material respects
with
the applicable requirements of the Securities Act and the applicable rules
and
regulations of the Commission thereunder. Each report filed pursuant
to the Exchange Act and incorporated by reference in the Registration Statement,
the Time of Sale Prospectus and the Final Prospectus (in each case, except
for
the financial statements, the notes thereto, the related schedules, the other
financial and accounting data, and the industry-related statistical data
included therein, as to which we have not been asked to express any opinion),
as
of its filing date, complied as to form in all material respects with the
applicable requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder.
As
used
herein, the “Applicable Time” means 9:00 p.m. (Eastern Daylight Time) on
September 26, 2007.
The
opinions set forth herein are subject to and limited by the
following:
(a) With
respect to the opinion expressed in paragraph 1, we have relied solely on
certificates of good standing and bring-down good standing telegrams, copies
of
which have been furnished to you.
(b) In
rendering the foregoing opinions, we have not expressed, explicitly or
implicitly, any opinion as to matters arising under the anti-fraud provisions
of
the Federal securities laws.
B-4
(c) We
express no opinion with respect to any matters which require us to perform
a
mathematical calculation or make a financial or accounting
determination. Without limiting the forgoing, we express no opinion
with respect to the Company’s compliance with any financial covenants set forth
in the Listed Existing Agreements.
(d) As
used in this opinion letter, “to our knowledge,” or “known to us” or any phrase
or similar import shall mean the current, actual knowledge (without independent
investigation or verification) of those attorneys in our firm who are currently
partners or associates of, or counsel to, our firm who have directly
participated in our engagement by the Company in connection with the offering
of
the Shares or who have provided assistance or advice to the Company or any
of
its subsidiaries on substantive matters substantially contemporaneously with
such engagement.
(e) With
respect to the opinion set forth in paragraph 3, we have assumed that the
Company’s execution and delivery of the Underwriting Agreement has been duly
authorized by all necessary corporate action on the part of the
Company.
(f) IRS
Circular 230 disclosure: The opinion expressed in paragraph 6 is written to
support the promotion or marketing of the transactions described in the
Underwriting Agreement. Such opinion is not intended or written by us
to be used, and cannot be used, by any taxpayer for the purpose of avoiding
tax-related penalties that may be imposed on the taxpayer under the Internal
Revenue Code. Taxpayers should seek advice based on their particular
circumstances from an independent tax advisor.
We
are members of the bar of the State
of New York and are not members of the bar of any other state. We
express no opinion as to any laws other than the laws of the State of New York,
the Limited Liability Company Law of the State of Delaware and the federal
laws
of the United States of America, that in each case, in our experience, we
recognize are normally applicable to transactions of the type contemplated
by
the Underwriting Agreement (the “Relevant Laws”). Without limiting
the foregoing, we express no opinion with respect to the application or
compliance with, or the effect of, the securities or “Blue Sky” laws of any
state. With respect to the opinions expressed in paragraphs 4, 8, 9
and 12 hereof, to the extent any contract, agreement, or other instrument is
governed by a law other than a Relevant Law, we have rendered such opinions
as
if such contract, agreement, or other instrument were governed by the internal
laws of the State of New York. We note that we do not represent the
Company or its subsidiaries in matters of maritime law or environmental law,
and
any matters related thereto are expressly excluded from the opinions and
statements contained in this letter.
The
opinions expressed herein are based upon the Relevant Laws and interpretations
thereof in effect on the date hereof, and the facts and circumstances in
existence on the date hereof, and we assume no obligation to revise or
supplement this opinion letter should any such law or interpretation be changed
by legislative action, judicial decision or otherwise or should there be any
change in such facts or circumstances.
B-5
This
opinion is rendered only to the Underwriters and is solely for their benefit
in
connection with their purchase of the Shares from the Sellers. This
opinion may not be relied upon by such Underwriters for any other purpose or
by
any other person for any purpose without our prior written consent.
Sincerely,
B-6
SCHEDULE
A
Listed
Existing Agreements
1. Employment
Agreement, dated September 21, 2007, between Genco Shipping & Trading
Limited and Xxxx X. Xxxxxxxxxx
2. Master
Agreement dated July 11, 2007 by and between the Company and Metrostar
Management Corporation.
3. Memoranda
of Agreement for the purchase of the six Evalend vessels entered into by the
following parties as of August 8, 2007:
|
x.
|
Xxxxxx
Enterprises Inc. and Genco Charger
Limited.
|
|
x.
|
Xxxxxx
Enterprises Inc. and Genco Challenger
Limited
|
|
c.
|
Guardian
Shipholding Limited and Genco Predator
Limited
|
|
d.
|
Naias
Marine SA and Genco Champion
Limited
|
|
e.
|
Arabella
Navigation Corporation and Genco Hunter
Limited
|
|
f.
|
Seaforce
Navigation SA and Genco Warrior
Limited
|
4. Credit
Agreement, dated as of July 20, 2007, among Genco Shipping & Trading
Limited, Various Lenders, DnB NOR Bank ASA, New York Branch, as Administrative
Agent and Collateral Agent, and DnB NOR Bank ASA, New York Branch, as Mandated
Lead Arranger and Bookrunner
5. Pledge
and Security Agreement, dated as of July 20, 2007, by Xxxxx Xxxxxxxx Limited,
Xxxxx Xxxxxxxx Limited, Genco Commodus Limited, Xxxxx Xxxxxxxxxxx Limited,
Genco
Hadrian Limited, Genco London Limited, Genco Maximus Limited, Genco Tiberius
Limited and Xxxxx Xxxxx Limited, as pledgors, to DnB NOR Bank, ASA, New York
Branch, as Collateral Agent, for the benefit of the Secured Creditors and Nordea
Bank Finland PLC, New York Branch, as Deposit Account Bank
6. Guaranty,
dated as of July 20, 2007, by Xxxxx Xxxxxxxx Limited, Xxxxx Xxxxxxxx Limited,
Genco Commodus Limited, Xxxxx Xxxxxxxxxxx Limited, Genco Hadrian Limited, Genco
London Limited, Genco Maximus Limited, Genco Tiberius Limited and Xxxxx Xxxxx
Limited, as guarantors, for the benefit of the Secured Creditors
B-7
7. Amendment
and Supplement No. 1 to Senior Secured Credit Agreement, dated as of September
21, 2007, among Genco Shipping & Trading Limited, the lenders party thereto,
and DnB NOR Bank ASA, New York Branch, as Administrative Agent
8. Swap
Agreement between the Company and DnB NOR Bank ASA, New York Branch, dated
as of
September 7, 2007 ($75,000,000 notional amount, 4.56% per annum fixed
rate).
9. Swap
Agreement between the Company and DnB NOR Bank ASA, New York Branch, dated
as of
August 16, 2007 ($100,000,000 notional amount, 5.04% per annum fixed
rate).
10. Swap
Agreement between the Company and DnB NOR Bank ASA, New York Branch, dated
as of
August 9, 2007 ($100,000,000 notional amount, 5.07% per annum fixed
rate).
11. Swap
Agreement between the Company and DnB NOR Bank ASA, New York Branch, dated
as of
July 31, 2007 ($100,000,000 notional amount, 5.115% per annum fixed
rate).
12. Swap
Agreement between the Company and DnB NOR Bank ASA, New York Branch, dated
as of
March 29, 2006 ($50,000,000 notional amount, 5.25% per annum fixed
rate).
13. Swap
Agreement between the Company and DnB NOR Bank ASA, New York Branch, dated
as of
March 27, 2006 ($50,000,000 notional amount, 5.075% per annum fixed
rate).
14. Swap
Agreement between the Company and DnB NOR Bank ASA, New York Branch, dated
as of
September 6, 2005 ($106,233,000 notional amount, 4.485% per annum fixed
rate).
15. Swap
Agreement between the Company and DnB NOR Bank ASA, New York Branch, dated
as of
August 16, 2005 ($50,000,000 notional amount, 4.985% per annum fixed
rate).
16. Form
of
Director Restricted Stock Grant Agreement dated February 8, 2007.
17. Genco
Shipping & Trading Limited 2005 Equity Incentive Plan, as amended and
restated effective December 31, 2005.
18. Registration
Rights Agreement dated as of July 15, 2005 between the Company and the Selling
Shareholder.
B-8
EXHIBIT
C
[LETTERHEAD
OF XXXXXX XXXXX XXXXXXXX & XXXXXXX LLP]
October
[ ], 2007
Bear,
Xxxxxxx & Co. Inc.
Xxxxxxxxx
& Company, Inc.
As
Representatives of the Several Underwriters
|
c/o
|
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxx.
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Xxxxxxxxx
& Company, Inc.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Ladies
and Gentlemen:
We
have
acted as United States counsel to Genco Shipping & Trading Limited, a
company organized under the laws of the Republic of the Xxxxxxxx Islands (the
“Company”), in connection with the Underwriting Agreement (the “Underwriting
Agreement”), dated as of the date hereof, by and among the Company, Fleet
Acquisition LLC, a Xxxxxxxx Islands company (the “Selling Shareholder”), and
Bear, Xxxxxxx & Co. Inc. and Xxxxxxxxx & Company, Inc., as
representatives of the several underwriters referred to therein (collectively,
the “Underwriters”). This letter is delivered pursuant to Section
6(d) of the Underwriting Agreement. Capitalized terms used but not
defined herein have the meanings assigned to them in the Underwriting
Agreement. For purposes hereof, “Final Prospectus” means the Base
Prospectus as supplemented by the final prospectus supplement specifically
relating to the Shares dated September 26, 2007, together with the Company’s
free writing prospectus relating specifically to the Shares dated September
26,
2007 (the “Free Writing Prospectus”), and “Time of Sale Prospectus” means the
Base Prospectus as supplemented by the preliminary prospectus supplement
specifically relating to the Shares dated September 24, 2007, together with
the
Free Writing Prospectus.
As
United
States counsel to the Company, we reviewed the Registration Statement, the
Final
Prospectus and the Time of Sale Prospectus, and we participated in conferences
with representatives of the Company, representatives of the independent public
accountants for the Company, representatives of the Selling Shareholder and
your
representatives, at which conferences the contents of the Registration
Statement, the Final Prospectus and the Time of Sale Prospectus and related
matters were discussed.
C-1
We
have
not independently verified and are not passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Final Prospectus or the Time of
Sale Prospectus. Moreover, many of the determinations required to be
made in the preparation of the Registration Statement, the Final Prospectus,
and
the Time of Sale Prospectus involve matters of a non-legal nature. We
can give you no assurance that our participation as described in the prior
paragraph would necessarily reveal matters of significance with respect to
the
following comments. Further, we note that we do not represent the
Company or its subsidiaries in matters of maritime law or environmental law,
and
any matters related thereto are expressly excluded from the statements contained
in this letter.
During
the course of performing the services referred to in this letter (relying as
to
materiality upon officers and other representatives of the Company), nothing
has
come to our attention which causes us to believe that (A) any part of the
Registration Statement, at the time such part became effective under the
Securities Act, contained 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, (B) the Final Prospectus, as of the date
of
the Final Prospectus or as of the Closing Date, contained or contains any untrue
statement of a material fact or omitted to state a material fact necessary
in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, or (C) that the Time of Sale Prospectus, as
of
the Applicable Time, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, it being understood that in each case we express no view with
respect to (i) the financial statements contained or incorporated by reference
therein and the related notes thereto and the related schedules and (ii) other
financial and accounting data or any industry-related statistical data contained
or incorporated by reference in or omitted from the Registration Statement,
the
Prospectus, or the Time of Sale Prospectus.
As
used
herein, the “Applicable Time” means 9:00 p.m. (Eastern Daylight Time) on
September 26, 2007.
This
letter is based upon the facts and circumstances in existence on the date
hereof, and we assume no obligation to revise or supplement this letter should
there be any change in such facts or circumstances.
This
letter is being delivered to you in connection with the transactions described
in the Underwriting Agreement and may not be relied on or otherwise used by
any
other person or by you for any other purpose.
Very
truly yours,
C-2
EXHIBIT
D
[LETTERHEAD
OF XXXXXX & XXXXXX LLP]
October
[ ], 2007
Bear,
Xxxxxxx & Co. Inc.
Xxxxxxxxx
& Company, Inc.
As
Representatives of the Several Underwriters
|
c/o
|
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxx.
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Xxxxxxxxx
& Company, Inc.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Ladies
and Gentlemen:
We
have
acted as United States counsel to Genco Shipping & Trading Limited, a
corporation organized and existing under the laws of the Republic of the
Xxxxxxxx Islands (the “Company”), in connection with (i) the public offering by
the Company and Fleet Acquisition LLC, a Xxxxxxxx Islands company (the “Selling
Shareholder”), of an aggregate of 4,055,000 shares of common stock (the “Firm
Shares”), par value $0.01 per share, of the Company (“Common Stock”),
(ii) the possible sale by the Company and the Selling Shareholder of an
additional 405,500 shares of Common Stock upon the exercise of the Underwriters’
over-allotment option (the “Additional Shares”), (iii) the Underwriting
Agreement dated September 26, 2007 (the “Underwriting Agreement”) among the
Company, the Selling Shareholder and Bear, Xxxxxxx & Co. Inc. and Xxxxxxxxx
& Company, Inc., as representatives of the several underwriters listed on
Schedule II thereto (collectively, the “Underwriters”), and (iv) the preparation
of the Company’s Annual Report for the year ended December 31, 2006 on
Form 10-K (the “Annual Report”) which is incorporated by reference into the
registration statement (the “Registration Statement”) on Form S-3 (File No.
333-140158) of the Company, as amended, with respect to the offering of the
Shares (as defined below) included therein. The Firm Shares and any
Additional Shares purchased by the Underwriters are collectively called the
“Shares.” This opinion is furnished to the Underwriters at the
request of the Company pursuant to Section 6(d) of the Underwriting
Agreement. Except as otherwise provided herein, capitalized terms
used herein but not otherwise defined herein shall have the respective meanings
set forth in the Underwriting Agreement.
D-1
In
rendering this opinion, we have examined and relied upon originals or copies
of
the following:
|
|
(a)
|
the
Underwriting Agreement;
|
|
|
(b)
|
the
Registration Statement;
|
|
|
(c)
|
Time
of Sale Prospectus;
|
|
|
(d)
|
the
Prospectus; and
|
|
|
(e)
|
the
Annual Report
|
We
have
also examined and relied, as to factual matters, upon originals, or copies
certified to our satisfaction, of such records, documents, certificates of
officers of the Company and of public officials and other instruments, and
made
such other inquiries, as, in our judgment, are necessary or appropriate to
enable us to render the opinion expressed below. As to questions of
fact material to this opinion, we have, where relevant facts were not
independently established, relied upon, among other things, the representations
made in the Underwriting Agreement and certificates of officers of the
Company.
Based
upon and subject to the foregoing and to the qualifications and limitations
hereafter expressed, we are of the opinion that the statements relating to
legal
matters, documents or proceedings included in the Annual Report (which is
incorporated by reference into the Registration Statement and the Time of Sale
Prospectus) under the captions “Business–Environmental and Other Regulation” and
“Risk Factors–Risk Factors Related to Our Business & Operations–Industry
Specific Risk Factors–We are subject to regulation and liability under
environmental and operational safety laws that could require significant
expenditures and affect our cash flows and net income,” in each case fairly
summarize in all material respects such matters, documents or
proceedings.
Our
opinion is limited to the laws of the State of New York and the federal laws
of
the United States. We express no opinion with respect to the laws of
any other jurisdiction.
This
opinion is rendered only to the Underwriters and is solely for their benefit
in
connection with their purchase of the shares of Common Stock from the Selling
Shareholder. This opinion may not be relied upon by such Underwriters
for any other purpose or by any other person for any purpose without our prior
written consent.
Sincerely,
D-2
EXHIBIT
E
[LETTERHEAD
OF SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP]
October
[ ], 2007
Bear,
Xxxxxxx & Co. Inc.
Xxxxxxxxx
& Company, Inc.
As
Representatives of the Several Underwriters
|
c/o
|
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxx.
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Xxxxxxxxx
& Company, Inc.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Ladies
and Gentlemen:
We
have
acted as special United States counsel to Fleet Acquisition LLC, a Xxxxxxxx
Islands limited liability company (the “Selling Shareholder”), in connection
with the Underwriting Agreement, dated September 26, 2007 (the “Underwriting
Agreement”), among Bear, Xxxxxxx & Co. Inc. and Xxxxxxxxx & Company,
Inc. (collectively, the “Representatives”), as representatives of the several
Underwriters named therein (the “Underwriters”), the Selling Shareholder and
Genco Shipping & Trading Limited, a Xxxxxxxx Islands corporation (the
“Company”), relating to the sale by the Selling Shareholder to the Underwriters
of an aggregate of 846,045 shares of the Company’s common stock, par value $0.01
per share (the “Common Stock”) (the “Secondary Shares”), and up to an additional
256,246 shares of Common Stock (the “Option Shares”) at the Underwriters’ option
to cover over-allotments. The Secondary Shares and the Option Shares
are collectively referred to herein as the “Shares.” Capitalized terms defined
herein shall have the respective meanings set forth in the Underwriting
Agreement.
This
opinion is being furnished to you pursuant to Section 6(e) of the Underwriting
Agreement.
In
rendering this opinion, we have examined and relied upon originals or copies
of
the following:
|
|
(a)
|
the
Underwriting Agreement;
|
|
|
(b)
|
the
Registration Statement;
|
E-1
|
|
(c)
|
the
preliminary prospectus together with the free writing prospectuses,
if
any, each identified in Schedule III of the Underwriting Agreement,
(the
“Time of Sale Prospectus”);
|
|
|
(d)
|
the
Prospectus; and
|
|
|
(e)
|
the
Amended and Restated Limited Liability Company Agreement of Fleet
Acquisition LLC ( the “LLC
Agreement”).
|
We
have
also examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Selling Shareholder and such agreements,
certificates and receipts of public officials, certificates of officers or
other
representatives of the Selling Shareholder and others, and such other documents
as we have deemed necessary or appropriate as a basis for the opinions set
forth
below. In rendering the opinions set forth herein, we have, with your consent,
examined only the documents referenced above and have made no independent
verification or investigation of the factual matters set forth
therein.
In
our
examination, we have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted
to us
as originals, the conformity to original documents of all documents submitted
to
us as facsimile, electronic, certified or photostatic copies, and the
authenticity of the originals of such copies. In making our
examination of executed documents, we have assumed that the parties thereto,
including the Selling Shareholder, had the power, corporate or other, to enter
into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and, except to the
extent expressly set forth in paragraph 1 below, the execution and delivery
by
such parties of such documents and the validity and binding effect thereof
on
such parties. We have also assumed that the Selling Shareholder has
been duly organized, is validly existing in good standing, and has requisite
legal status and legal capacity, under the laws of its jurisdiction of
organization and that the Selling Shareholder has complied and will comply
with
all aspects of the laws of all relevant jurisdictions (including the laws of
the
Republic of the Xxxxxxxx Islands) in connection with the transactions
contemplated by, and the performance of its obligations under, the Underwriting
Agreement, other than the laws of the United States of America and
the State of New York insofar as we express our opinions herein. As
to any facts material to the opinions expressed herein that we did not
independently establish or verify, we have relied upon statements and
representations of officers and other representatives of the Selling Shareholder
and other parties involved with the sale of the Shares by the Selling
Shareholder and of public officials.
As
used
herein: (i) “Governmental Approval” means any consent, approval, license,
authorization or validation of, or filing, qualification or registration with,
any Governmental Authority required to be made or obtained by the Selling
Shareholder pursuant to Applicable Laws, other than any consent, approval,
license, authorization, validation, filing, qualification or registration that
may have become applicable as a result of the involvement of any party (other
than the Selling Shareholder) in the transactions contemplated by the
Underwriting Agreement or because of such parties’ legal or regulatory status or
because of any other facts specifically pertaining to such parties; (ii)
“Governmental Authorities” means any court, regulatory body,
E-2
administrative
agency or governmental body of the State of New York or the United States of
America having jurisdiction over the Company under Applicable Laws; and (iii)
“Applicable Laws” means those laws, rules and regulations of the State of New
York and those federal laws, rules and regulations of the United States of
America, in each case that, in our experience, are normally applicable to
transactions of the type contemplated by the Underwriting Agreement (other
than
the United States federal securities laws, state securities or blue sky laws,
antifraud laws and the rules and regulations of the Financial Industry
Regulatory Authority, Inc.), but without our having made any special
investigation as to the applicability of any specific law, rule or
regulation.
The
opinions set forth below are subject to the following further qualifications,
assumptions and limitations:
|
|
(a)
|
We
have assumed that the execution and delivery by the Selling Shareholder
of
the Underwriting Agreement and the performance by the Selling Shareholder
of its obligations thereunder do not and will not violate, conflict
with
or constitute a default under any law, rule, or regulation to which
the
Selling Shareholder or any of its properties is subject except that
we do
not make the assumption set forth in this clause with respect to
those
laws, rules and regulations of the State of New York and those federal
laws, rules and regulations of the United States of America, in each
case
that, in our experience, are normally applicable to transactions
of the
type contemplated by the Underwriting Agreement, but without our
having
made any special investigation as to the applicability of any specific
law, rule or regulation.
|
|
|
(b)
|
We
note that the LLC Agreement is governed by laws other than the Applicable
Laws; our opinions expressed herein are based solely upon our
understanding of the plain language of such agreement or instrument,
and
we do not express any opinion with respect to the validity, binding
nature
or enforceability of any such agreement or instrument, and we do
not
assume any responsibility with respect to the effect on the opinions
or
statements set forth herein of any interpretation thereof inconsistent
with such understanding.
|
|
|
(c)
|
To
the extent any opinion relates to the enforceability of the choice
of New
York law and choice of New York forum provisions of the Underwriting
Agreement, our opinion is rendered in reliance upon N.Y. Gen. Oblig.
Law
§§ 5-1401, 5-1402 (XxXxxxxx 2001) and N.Y. C.P.L.R. 327(b) (XxXxxxxx
2001)
and is subject to the qualification that such enforceability may
be
limited by public policy considerations of any jurisdiction, other
than
the courts of the State of New York, in which enforcement of such
provisions, or of a judgment upon an agreement containing such provisions,
is sought.
|
|
|
(d)
|
In
rendering the opinions expressed below we have also assumed, without
independent investigation or verification of any kind, that the choice
of
New York law to govern the Underwriting Agreement, which is stated
therein
to be governed thereby, is legal and valid under the laws of other
applicable jurisdictions and that, insofar as any obligation under
the
Underwriting Agreement is to be performed in any jurisdiction outside
the
United States of America, its performance will not be illegal or
ineffective by virtue of the law of that
jurisdiction.
|
E-3
|
|
(e)
|
We
call to your attention that the issuer of the Certificates is organized
under the laws of the Xxxxxxxx Islands, and we express no opinion
as to
the effect of the laws of the Xxxxxxxx Islands on the opinions herein
stated. We understand that you are relying on the opinion of
Xxxxxx & Xxxxxxx P.C. with respect to matters of Xxxxxxxx Island
law. We assume that, for purposes of Section 8-102 of the
Uniform Commercial Code of the State of New York (the “New York UCC”) and
under Xxxxxxxx Islands law, the Certificates representing the Shares
of
Common Stock represent an obligation of the issuer or a share,
participation or other interest in an issuer (i) the transfer of
which may
be registered upon books maintained for that purpose by or on behalf
of
the issuer and (ii) which is one of a class or series or by its terms
is
divisible into a class or series of shares, participations, interests,
or
obligations.
|
|
|
(f)
|
Our
opinion is limited to the financial asset consisting of the Shares
deposited in DTC and we express no opinion whether or to what extent
an
adverse claim may be asserted against any security entitlement created
by
DTC in favor of Bear, Xxxxxxx & Co.
Inc.
|
|
|
(g)
|
We
note that pursuant to Section 8-111 of the Uniform Commercial Code
of the
State of New York (the “New York UCC”), a rule adopted by a clearing
corporation, such as the DTC, governing rights and obligations among
the
clearing corporation and its participants is effective even if the
rule
conflicts with the New York UCC and affects another party who does
not
consent to the rule, and we express no opinion as to the effect of
any
such rule on the opinions expressed
herein.
|
|
|
(h)
|
We
assume that, for purposes of Section 8-102 of the New York UCC and
under
Xxxxxxxx Islands law, the Shares represent obligations of the Company
or
shares, participations or other interests in the Company (i) the
transfer
of which may be registered upon books maintained for that purpose
by or on
behalf of the Company and (ii) which is one of a class or series
or by its
terms is divisible into a class or series of shares, participations,
interests, or obligations.
|
We
do not
express any opinion as to any laws other than the Applicable Laws and the
federal laws of the United States of America to the extent referred to
specifically herein. Insofar as the opinions expressed herein relate
to matters governed by laws other than those set forth in the preceding
sentence, we have assumed, without having made any independent investigation,
that such laws do not affect any of the opinions set forth
herein. The opinions expressed herein are based on laws in effect on
the date hereof, which laws are subject to change with possible retroactive
effect.
E-4
Based
upon and subject to the foregoing and to the qualifications and limitations
hereafter expressed, we are of the opinion that:
1. The
Underwriting Agreement has been duly executed and delivered by the Selling
Shareholder to the extent such execution and delivery are governed by the laws
of the State of New York.
2. The
execution and delivery by the Selling Shareholder of the Underwriting Agreement
and the consummation by the Selling Shareholder of the transactions contemplated
by the Underwriting Agreement, Registration Statement, Time of Sale Prospectus
or Prospectus, including the sale of the Shares, will not (i) constitute a
violation of the LLC Agreement or (ii) violate or conflict with, or result
in
any contravention of any Applicable Law.
3. No
Governmental Approval, which has not been obtained or taken and is not in full
force and effect, is required to authorize, or is required for, the execution
or
delivery of the Underwriting Agreement by the Selling Shareholder or the
consummation by the Selling Shareholder of the transactions contemplated by
the
Underwriting Agreement, Registration Statement, Time of Sale Prospectus or
Prospectus.
4. An
action based on an adverse claim to the financial asset consisting of 846,045
Shares deposited in or held by the Depository Trust Company (“DTC”), whether
such action is framed in conversion, replevin, constructive trust, equitable
lien, or other theory, may not be successfully asserted against Bear, Xxxxxxx
& Co. Inc. assuming that Bear, Xxxxxxx & Co. Inc. acquires security
entitlements with respect to such Shares from DTC and neither Bear, Xxxxxxx
& Co. Inc. nor any other Underwriter has notice of any adverse claims with
respect to such financial asset. As used herein, “notice of adverse
claim” has the meaning set forth in Section 8-105 of the New York UCC and
includes, without limitation, any adverse claim that Bear, Xxxxxxx & Co.
Inc. or any other Underwriter would discover upon any investigation which such
person has a duty, imposed by statute or regulation, to
investigate.
5. The
choice of New York law in Section 15 of the Underwriting Agreement, whereby
the
parties agree that the Underwriting Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to any
rules of conflict of laws thereof that would result in the application of the
laws of any other jurisdiction, is a valid choice of law under N.Y. Gen. Oblig.
Law §§ 5-1401, 5-1402 (XxXxxxxx 2001) and N.Y. C.P.L.R. 327(b) (XxXxxxxx
2001), and in an action properly brought before a New York state court arising
out of or relating to the Underwriting Agreement, New York substantive law
would
be applied in determining the respective rights and obligations of the parties
thereto, provided that such court does not determine that the application of
such law would violate the public policy of the State of New York.
This
opinion is furnished only to you as representatives of the Underwriters and
is
solely for the Underwriters’ benefit in connection with the closing occurring
today and the offering of the Shares, in each case pursuant to the Underwriting
Agreement. Without our prior written consent, this opinion may not be used,
circulated, quoted or otherwise referred to for any other purpose or relied
upon
by, or assigned to, any other person for any purpose, including any other person
that acquires Shares or that seeks to assert your rights in respect of this
opinion (other than any Underwriter’s successor in interest by means of merger,
consolidation, transfer of a business or other similar
transaction).
Sincerely,
E-5
EXHIBIT
F
[LETTERHEAD
OF SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP]
October
[ ], 2007
Bear,
Xxxxxxx & Co. Inc.
Xxxxxxxxx
& Company, Inc.
As
Representatives of the Several Underwriters
|
c/o
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Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxx.
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Xxxxxxxxx
& Company, Inc.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Ladies
and Gentlemen:
We
have
acted as special United States counsel to Fleet Acquisition LLC, a Xxxxxxxx
Islands limited liability company (the “Selling Shareholder”), in connection
with the Underwriting Agreement, dated September 26, 2007 (the “Underwriting
Agreement”), among Bear, Xxxxxxx & Co. Inc. and Xxxxxxxxx & Company,
Inc. (collectively, the Representatives), as representatives of the several
Underwriters named therein (the “Underwriters”), the Selling Shareholder and
Genco Shipping & Trading Limited, a Xxxxxxxx Islands corporation (the
“Company”), relating to the sale by the Selling Shareholder to the Underwriters
of an aggregate of 846,045 shares of the Company’s Common Stock, par value $
0.01 per share (the “Common Stock”) (the “Secondary Shares”), and up to an
additional 256,246 shares of Common Stock (the “Option Shares”) at the
Underwriters’ option to cover over-allotments. The Secondary Shares
and the Option Shares are collectively referred to herein as the
“Shares.”
This
letter is being furnished to you pursuant to Section 6(e) of the Underwriting
Agreement. Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in the Underwriting
Agreement.
In
the
above capacity, we have reviewed (i) the registration statement on Form S-3
(File No. 333-140158) relating to the common stock, preferred stock and debt
securities of the Company, filed on January 23, 2007 with the Commission under
the Securities Act of 1933 (the “Securities Act”), as amended by Amendment No. 1
thereto, filed with the Commission allowing for delayed offerings pursuant
to
Rule 415 under the Securities Act (such registration statement being hereinafter
referred to as the “Registration Statement”), (ii) the prospectus, dated
February 7, 2007 (the “Base Prospectus”), relating to the offering of the
securities of the Company which
F-1
forms
a
part of and is included in the Registration Statement, (iii) the preliminary
prospectus supplement, dated September 24, 2007 (together with the Base
Prospectus, the “Preliminary Prospectus”) relating to the offering of the Shares
and (iv) the prospectus supplement, dated September 26, 2007 (the “Prospectus
Supplement,” together with the Base Prospectus, the “Prospectus”), relating to
the offering of the Shares. We have also reviewed the “issuer free
writing prospectuses” (as defined in Rule 433(h)(1)) of the General Rules and
Regulations under the Securities Act (the “Rules and Regulations”)
identified on Schedule A hereto relating to the Shares (the “Issuer
General Use Free Writing Prospectus”) and such other documents as we deemed
appropriate.
In
addition, we have participated in conferences with officers and other
representatives of the Company, counsel for the Company, representatives of
the
independent accountants of the Company, your representatives and counsel for
the
Underwriters at which the contents of the Registration Statement, the General
Disclosure Package (as defined below) and the Prospectus set forth under the
headings described below and related matters were discussed. We did
not prepare the Registration Statement, Prospectus or Base Prospectus or Issuer
General Use Free Writing Prospectuses. We do not pass upon, or assume
any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the General Disclosure Package or
the
Prospectus and have made no independent check or verification
thereof.
On
the
basis of the foregoing, the disclosures under the heading “Selling Shareholder”
(such disclosures, “the Disclosures”) (i) in the Registration Statement, as of
the Applicable Time (as defined below), and the Prospectus, as of the date
of
the Prospectus Supplement, appeared on their face to be appropriately responsive
in all material respects to the requirements of the Act and the Rules and
Regulations applicable thereto and (ii) no facts have come to our attention
that
have caused us to believe that the Disclosures in the Registration Statement,
as
of the Applicable Time, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary
to
make the statements therein not misleading or that the Disclosures in the
Prospectus, as of the date of the Prospectus Supplement and as of the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. In addition, on the basis of the foregoing, no facts have
come to our attention that have caused us to believe that the Disclosures in
the
General Disclosure Package, as of the Applicable Time, contained an 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 (except that we do not express any view
as
to disclosures of the amount of shares of Common Stock reflected in the
Disclosures as being owned or beneficially owned by any person or entity)
.
As
used
herein, “Applicable Time” means 9:00 p.m. (Eastern Daylight Time) on September
26, 2007 and “General Disclosure Package” means the Preliminary Prospectus and
the Issuer General Free Writing Prospectuses issued at or prior to the
Applicable Time, all considered together.
F-2
This
letter is furnished to you as representatives of the Underwriters and is solely
for your and the other Underwriters’ benefit in connection with the closing
occurring today and the offering of the Shares pursuant to the Underwriting
Agreement. Without our prior written consent, this letter may not be
used, circulated, quoted or otherwise referred to for any other purpose or
relied upon by, or assigned to, any other person for any purpose, including
any
person that acquires the Shares or that seeks to assert your rights in respect
of this letter (other than your successor in interest by means of a merger,
consolidation, transfer of a business or other similar
transaction).
Very
truly yours,
F-3
EXHIBIT
G
FORM
OF LOCK-UP LETTER
September
26,
2007
Bear,
Xxxxxxx & Co. Inc.
Xxxxxxxxx
& Company, Inc.
c/o Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxx.
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
The
undersigned understands that Bear, Xxxxxxx & Co. Inc. (“Bear
Xxxxxxx”) and Xxxxxxxxx & Company, Inc.
(“Jefferies”) propose to enter into an Underwriting Agreement
(the “Underwriting Agreement”) with Genco Shipping &
Trading Limited, Inc., a Xxxxxxxx Islands company (the
“Company”) and Fleet Acquisition LLC, a Xxxxxxxx
Islands
company (the “Selling Shareholder”), providing for the public
offering (the “Public Offering”) by the several Underwriters,
including Bear Xxxxxxx and Jefferies (the “Underwriters”), of
shares (the “Shares”) of the common stock, par value $0.01 per
share, of the Company (the “Common Stock”).
To
induce
the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees
that, without the prior written consent of Bear Xxxxxxx and Jefferies, on behalf
of the Underwriters, it will not, during the period commencing on the date
hereof and ending 45 days after the date of the final prospectus relating to
the
Public Offering (the “Prospectus”), (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares
of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences
of
ownership of the Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise, or (3) publicly disclose an intention
to
do any of the foregoing. The foregoing sentence shall not apply to
(a) transactions relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the Public
Offering, provided that no filing under Section 16(a) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), shall be required or shall be voluntarily made in connection
with subsequent sales of Common Stock or other securities acquired in such
open
market transactions or (b) transfers of shares of Common Stock or any
security convertible into Common Stock as a bona fide gift; provided
that in the case of any transfer or distribution pursuant to clause (b),
(i) each donee or distributee shall sign and deliver
G-1
a
lock-up
letter substantially in the form of this letter and (ii) no filing under
Section 16(a) of the Exchange Act, reporting a reduction in beneficial
ownership of shares of Common Stock, shall be required or shall be voluntarily
made during the restricted period referred to in the foregoing sentence. In
addition, the undersigned agrees that, without the prior written consent of
Bear
Xxxxxxx and Jefferies, on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 45 days after the date of the
Prospectus, as such may be extended as described below, make any demand for
or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock. The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company’s transfer agent and registrar against the
transfer of the undersigned’s shares of Common Stock during the restricted
period described herein, except in compliance with the foregoing
restrictions.
If:
(1)
during the last 17 days of the restricted period the Company issues an earnings
release or material news or a material event relating to the Company occurs;
or
(2)
prior
to the expiration of the restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day
of
the restricted period;
the
restrictions imposed by this agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
The
undersigned shall not engage in any
transaction that may be restricted by this agreement during the 34-day period
beginning on the last day of the initial restricted period unless the
undersigned requests and receives prior written confirmation from the
Company, Bear Xxxxxxx or Jefferies that the restrictions imposed by
this agreement have expired.
The
undersigned understands that the
Company and the Underwriters are relying upon this agreement in proceeding
toward consummation of the Public Offering. The undersigned further understands
that this agreement is irrevocable and shall be binding upon the undersigned’s
heirs, legal representatives, successors and assigns.
Whether
or not the Public Offering
actually occurs depends on a number of factors, including market conditions.
Any
Public Offering will only be made pursuant to an Underwriting Agreement, the
terms of which are subject to negotiation between the Company and the
Underwriters.
G-2
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Very
truly yours,
|
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_________________________________
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|
(Name)
|
|
__________________________________
|
|
(Address)
|
