4,200,000 Shares Genco Shipping & Trading Limited Common Stock UNDERWRITING AGREEMENT
Exhibit
1.1
4,200,000
Shares
Genco
Shipping & Trading Limited
Common
Stock
February
14, 2007
To
the
Managers named in Schedule I hereto
for
the
Underwriters named in Schedule II hereto
Ladies
and Gentlemen:
Fleet
Acquisition LLC, a Xxxxxxxx Islands company (the “Selling
Shareholder”),
a
stockholder of Genco Shipping & Trading Limited, a Xxxxxxxx Islands company
(the “Company”),
proposes 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 4,200,000 shares (the “Firm Shares”)of
common stock, par value $0.01 per share, of the Company (the “Common
Stock”).
The
Selling Stockholder also proposes to sell to the Underwriters not more than
an
aggregate of 630,000 shares of Common Stock (the “Additional
Shares”)
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 “Basic
Prospectus.”
The
Basic 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,” “Basic 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 Basic Prospectus, the
Time of Sale 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 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
2
statements
therein not misleading, (i) 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, (ii) 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, (iii) 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
(iv) 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.
(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 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
3
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 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
February 13, 2007, the Company’s authorized capital stock consists of
100,000,000 shares of common stock, par value $0.01 per share, of
which 25,502,275 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) All
of
the issued and outstanding shares of Common Stock (including the Shares) 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
4
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.
(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,
5
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 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
6
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 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
7
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 Nasdaq Global Select Market 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 Nasdaq 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.
(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
8
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 the 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 Time of Sale Prospectus will not be, an “investment
company”
within
the meaning of 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
9
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 National Association of Securities Dealers, 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
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.
10
(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 “Governmental Authority”
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.
(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
11
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 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.
12
(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 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.
(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
13
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.
The
Selling Shareholder 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 the Selling Shareholder, at a
purchase price of $29.2704 per share (the “Purchase
Price”),
the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule II hereto.
On
the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Selling Shareholder further agrees
to
sell to the several Underwriters the Additional Shares, and the Underwriters
shall have the right to purchase, 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. 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 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 purchased 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.
4. Public
Offering.
The
Company and the Selling Shareholder 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 Company and the Selling Shareholder 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 the Selling Shareholder shall be made to
the
Selling Shareholder 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 February 20,
2007, or at such other
14
time
on
the same or such other date, not later than February 27, 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 shall be made to the Selling Shareholder 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 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, 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.
15
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 Company and the Selling
Shareholder, 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
(i) 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;
(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,
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.
16
(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.
(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,
17
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 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.
18
Each
of
the Company and the Selling Shareholder hereby covenants and agrees that,
without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated and
Bear, Xxxxxxx & Co. 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.
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 Xxxxxx Xxxxxxx & Co. Incorporated and Bear,
Xxxxxxx & Co. 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 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.
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
19
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 Xxxxxx
Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. 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 Company and the Selling Shareholder 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 National
Association of Securities Dealers, Inc., (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 “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
20
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 Company and the Selling Shareholder 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.
(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 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
21
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.
(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 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 Xxxxxx Xxxxxxx & Co.
22
Incorporated.
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
and
the Selling Shareholder on the one hand and the Underwriters on the other hand
in connection 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,
collectively, 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 initial public offering price of the Shares
set forth in the Prospectus. The relative fault of the Company and
23
the
Selling Shareholder on the one hand and the Underwriters on the other hand
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
Company, the Selling Shareholder 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 Company and the Selling
Shareholder, 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.
11. Termination.
The
Underwriters may terminate this Agreement by notice given by you to the Company
and the Selling Shareholder, 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
24
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 Shares
to
be purchased on such date, and arrangements satisfactory to you, the Company
and
the Selling Shareholder 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 the Selling Shareholder 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
25
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 shall be unable to
perform its obligations under this Agreement, the Company or the Selling
Shareholder, 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)
(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
Company and the Selling Shareholder, 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
of
the Company and the Selling Shareholder 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 Company and the Selling Shareholder 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 Company and the Selling
Shareholder. Each of the Company and the Selling Shareholder 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.
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
Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Equity Syndicate Desk, with a copy to the Legal
Department; and if to the Company shall be
26
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/Xxxxxx
Xxxxxx Xxxxxxxx
|
|||
|
|
Name:
|
Xxxxxx
Xxxxxx Xxxxxxxx
|
||
|
|
Title:
|
President
|
||
28
|
FLEET
ACQUISITION LLC
|
||||
|
By:
|
/s/
Xxxxx X. Xxxxx III
|
|||
|
|
Name:
|
Xxxxx
X. Xxxxx III
|
||
|
|
Title:
|
Secretary
and Treasurer
|
||
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:
XXXXXX XXXXXXX & CO. INCORPORATED
|
||||
|
By:
|
/s/ Xxxxx Xxxxxxxxx | |||
|
Name:
|
Xxxxx
Xxxxxxxxx
|
|||
|
Title:
|
Vice
President
|
|||
|
|
||||
|
By:
BEAR, XXXXXXX & CO. INC.
|
||||
|
By:
|
/s/ Xxxxxxx Parish | |||
|
Name:
|
Xxxxxxx
Parish
|
|||
|
Title:
|
Senior
Managing Direcotr
|
|||
30
SCHEDULE
I
|
Managers:
|
|
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
|
|
Bear,
Xxxxxxx & Co. Inc.
|
I-1
SCHEDULE
II
|
Underwriter
|
Number
of Shares To Be Purchased
|
|
Xxxxxx
Xxxxxxx & Co.
Incorporated.............................................................
|
1,995,000
|
|
Bear,
Xxxxxxx & Co.
Inc....................................................................................
|
1,575,000
|
|
Xxxxxxx
Xxxx &
Company..............................................................................
|
630,000
|
|
Total:....................................................................................................
|
4,200,000
|
II-1
SCHEDULE
III
| Time of Sale Prospectus |
1.
Preliminary
Prospectus dated February 8, 2007
|
|
2. Issuer
Free Writing Prospectus dated February 14,
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
|
|
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)
|
V-1
|
Genco
Commander
|
Genco
Commander Limited
(Xxxxxxxx
Islands)
|
|
Genco
Acheron
|
Genco
Acheron Limited
(Xxxxxxxx
Islands)
|
|
Genco
Surprise
|
Genco
Surprise Limited
(Xxxxxxxx
Islands)
|
V-2
EXHIBIT
A
[LETTERHEAD
OF XXXXXX & XXXXXXX P.C.]
February
[__],
2007
Xxxxxx
Xxxxxxx & Co. Incorporated
Bear,
Xxxxxxx & Co. Inc.
As
Representatives of the Several Underwriters
c/o Morgan
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
Bear,
Xxxxxxx
& Co. Inc.
000
Xxxxxxx
Xxx.
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 company (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 Selling
Shareholder of 4,200,000 shares of common stock (the “Firm Shares”), par value
$0.01 per share, of the Company (“Common Stock”), (ii) the possible sale by
the Selling Shareholder of an additional 630,000 shares of Common Stock upon
the
exercise of the Underwriters’ over-allotment option (the “Additional Shares”),
(iii) the Underwriting Agreement dated February 14, 2007 (the “Underwriting
Agreement”) among the Company, the Selling Shareholder and Xxxxxx Xxxxxxx &
Co. Incorporated and Bear, Xxxxxxx & Co. 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 Company and the Selling Shareholder 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.
A-1
In
rendering this opinion, we have examined and relied upon originals or copies
of
the following:
|
(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)
|
the
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
the
Company and the Selling Shareholder 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 and the Selling Shareholder.
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 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 executed and
delivered by the Company.
2. Each
of
the RMI Subsidiaries is a non-resident 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.
3. The
Selling Shareholder is a non-resident company duly organized and validly
existing in good standing under the laws of the RMI, with the power and
authority to own, lease
A-2
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) 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.
6. 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.
7. 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
Selling Shareholder have been duly authorized by and on behalf of each of the
Company and the Selling Shareholder, and the Registration Statement has been
duly executed pursuant to such authorization by and on behalf of the
Company.
8. 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 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.
9. 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 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 governmental body, agency or court having jurisdiction over the Selling
Shareholder, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency under the laws of the RMI
is
A-3
required
for the performance by the Selling Shareholder of its obligations under the
Underwriting Agreement.
10. 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.
11. 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.
12. After
due
inquiry, we do not know of any 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.
13. 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.
14. 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
A-4
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
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.
Except
as
otherwise indicated, our opinion is limited to the laws of the RMI. 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,
A-5
EXHIBIT
B
[LETTERHEAD
OF XXXXXX XXXXX XXXXXXXX & XXXXXXX LLP]
February
[__], 2007
Xxxxxx
Xxxxxxx & Co. Incorporated
Bear,
Xxxxxxx & Co. Inc.
As
Representatives of the Several Underwriters
c/o Morgan
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
Bear,
Xxxxxxx &
Co. Inc.
000
Xxxxxxx
Xxx.
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 Fleet Acquisition LLC, a Xxxxxxxx
Islands company (the “Selling Shareholder”), of 4,200,000 shares of common stock
(the “Firm Shares”), par value $0.01 per share, of the Company (“Common Stock”),
(ii) the possible sale by the Selling Shareholder of an additional 630,000
shares of Common Stock upon the exercise of the Underwriters’ over-allotment
option (the “Additional Shares”), (iii) the Underwriting Agreement dated
February 14, 2007 (the “Underwriting Agreement”) among the Company, the Selling
Shareholder and Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx &
Co. 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 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.
In
rendering this opinion, we have examined and relied upon originals or copies
of
the following (the “Transaction Documents”):
B-1
| (a) |
the
Underwriting Agreement;
|
|
(b)
|
the
Existing Instruments included or incorporated by reference as exhibits
to
the Registration Statement (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 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 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
B-2
governmental
body or agency is required for the performance by the Company of its obligations
under the Underwriting Agreement, except such as 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 captions “Risk Factors-Risk Factors Related to
Our Business & Operations-Company Specific Risk Factors-A decline in the
market value of our vessels could lead to a default under our New Credit
Facility and the loss of our vessels, which would adversely affect our
business,” and “Management’s Discussion and Analysis of Financial Condition and
Results of Operations-Liquidity and Capital Resources-New Credit Facility,”
insofar as they purport to summarize the terms of the New Credit Facility (as
defined in the 10-K), conform in all material respects to the terms of the
New
Credit Facility.
10. 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.
11. 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.
12. 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.
13. 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 Existing Instruments or references
thereto in the Registration Statement, the Time of Sale Prospectus and the
Prospectus are accurate in all material respects.
14. 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.
15. The
Registration Statement, as of the Applicable Time, the Time of Sale Prospectus,
as of the Applicable Time, and the 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 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 7:00 a.m. (Eastern Standard Time) on
February 14, 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 Instruments.
(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. 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 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,
B-6
EXHIBIT
C
[LETTERHEAD
OF XXXXXX XXXXX XXXXXXXX & XXXXXXX LLP]
February
[__],
2007
Xxxxxx
Xxxxxxx & Co. Incorporated
Bear,
Xxxxxxx & Co. Inc.
As
Representatives of the Several Underwriters
c/o Morgan
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
Bear,
Xxxxxxx
& Co. Inc.
000
Xxxxxxx
Xxx.
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
Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. Inc., as
representatives of the 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.
As
United
States counsel to the Company, we reviewed the Registration Statement, the
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
and the Prospectus and related matters were discussed.
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 Prospectus or the Time of Sale
Prospectus. Moreover, many of the determinations required to be made in the
preparation of the Registration Statement, the 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
C-1
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 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 7:00 a.m. (Eastern Standard Time) on
February 14, 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]
February
[__], 2007
Xxxxxx
Xxxxxxx & Co. Incorporated
Bear,
Xxxxxxx & Co. Inc.
As
Representatives of the Several Underwriters
c/o Morgan
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
Bear,
Xxxxxxx
& Co. Inc.
000
Xxxxxxx
Xxx.
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
Fleet Acquisition LLC, a Xxxxxxxx Islands company (the “Selling Shareholder”),
of 4,200,000 shares of common stock (the “Firm Shares”), par value $0.01 per
share, of the Company (“Common Stock”), (ii) the possible sale by the
Selling Shareholder of an additional 630,000 shares of Common Stock upon the
exercise of the Underwriters’ over-allotment option (the “Additional Shares”),
(iii) the Underwriting Agreement dated February 14, 2007 (the “Underwriting
Agreement”) among the Company, the Selling Shareholder and Xxxxxx Xxxxxxx &
Co. Incorporated and Bear, Xxxxxxx & Co. 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.
In
rendering this opinion, we have examined and relied upon originals or copies
of
the following:
D-1
| (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]
February
[__], 2007
Xxxxxx
Xxxxxxx & Co. Incorporated
Bear,
Xxxxxxx & Co. Inc.
As
Representatives of the Several Underwriters
c/o Morgan
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
Bear,
Xxxxxxx
& Co. Inc.
000
Xxxxxxx
Xxx.
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 February 14, 2007 (the “Underwriting
Agreement”), among Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx &
Co. 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 4,200,000 shares of the Company’s common stock, par value
$0.01 per share (the “Common Stock”) (the “Secondary Shares”), and up to an
additional 630,000 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;
|
|
(e)
|
the
Amended and Restated Limited Liability Company Agreement of Fleet
Acquisition LLC ( the “LLC Agreement”);
and
|
|
(f)
|
the
certificate[s] registered in the name Fleet Acquisition, LLC identified
by
certificate number [s] [ ] [and __] and evidencing [___] Shares and
[___] Shares, respectively, being purchased by the Underwriters on
the
date hereof (the “Certificates”).
|
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
E-2
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, 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 National Association of
Securities Dealers, 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
|
E-3
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)
|
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)
|
We
have assumed that the person making the indorsements on the Certificates
on behalf of the Selling Shareholder is duly authorized to do so
under the
laws of the Xxxxxxxx Islands, the organizational documents of the
Selling
Shareholder and duly adopted resolutions of the Management Committee
of
the Selling Shareholder, and the indorsements are effective under
Xxxxxxxx
Islands law.
|
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.
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.
E-4
4. Assuming
that neither Xxxxxx Xxxxxxx & Co. Incorporated nor any other Underwriter has
notice of any adverse claims with respect to the Certificates number [___]
and
[___], evidencing [___] Shares and [___] Shares, respectively, then, upon
delivery to Xxxxxx Xxxxxxx & Co. Incorporated of such Certificates
indorsed in blank by an “effective” indorsement (within the meaning of Section
8-107 of the New York UCC) and payment for the Shares represented thereby in
accordance with the terms of the Underwriting Agreement, Xxxxxx Xxxxxxx &
Co. Incorporated, on behalf of the Underwriters, will become a “protected
purchaser” (within the meaning of Section 8-303 of the New York UCC) and will
acquire the Certificates (and the Shares represented thereby) free of any
adverse claims under Section 8-303 of the New York UCC. 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 which Xxxxxx Xxxxxxx
& Co. Incorporated or any other Underwriter would discover upon any
investigation which such person has a duty, imposed by statute or regulation
(included Rule 17f-1 under the Securities Exchange Act of 1934), 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]
February
[__],
2007
Xxxxxx
Xxxxxxx & Co. Incorporated
Bear,
Xxxxxxx & Co. Inc.
As
Representatives of the Several Underwriters
c/o Morgan
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
Bear,
Xxxxxxx
& Co. Inc.
000
Xxxxxxx
Xxx.
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 Stockholder”), in connection
with the Underwriting Agreement, dated February 14, 2007 (the “Underwriting
Agreement”), among Bear, Xxxxxxx & Co. and Xxxxxx Xxxxxxx & Co.
Incorporated (collectively, the Representatives), as representatives of the
several Underwriters named therein (the “Underwriters”), the Selling Stockholder
and Genco Shipping & Trading Limited, a Xxxxxxxx Islands corporation (the
“Company”), relating to the sale by the Selling Stockholder to the Underwriters
of an aggregate of 4,200,000 shares of the Company’s Common Stock, par value $
0.01 per share (the “Common Stock”) (the “Secondary Shares”), and up to an
additional 630,000 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 [__], 2007 (the “Base Prospectus”), relating to the offering of the
securities of the Company which forms a part of and is included in the
Registration Statement, (iii) the preliminary
F-1
prospectus
supplement, dated February [__], 2007 (together with the Base Prospectus, the
“Preliminary Prospectus”) relating to the offering of the Shares and (iv) the
prospectus supplement, dated February [__], 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 (collectively, the “Issuer General Use Free Writing
Prospectuses”) 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 7:00 a.m. (Eastern time) on February 14, 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].
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
F-2
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
February
[___], 2007
Xxxxxx
Xxxxxxx & Co. Incorporated
Bear,
Xxxxxxx & Co. Inc.
c/o Morgan
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
XX 00000
Ladies
and Gentlemen:
The
undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
(“Xxxxxx
Xxxxxxx”)
and
Bear, Xxxxxxx & Co. Inc. (“Bear
Xxxxxxx”)
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 Xxxxxx Xxxxxxx and Bear Xxxxxxx (the
“Underwriters”),
of
shares (the “Shares”)
of the
common stock, par value $0.01 per share, of the Company (the “Common
Stock”)
owned
by the Selling Shareholder.
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 Xxxxxx Xxxxxxx and Bear Xxxxxxx,
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, 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. 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 a lock-up letter
substantially in the form of
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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 Xxxxxx Xxxxxxx and Bear Xxxxxxx, 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 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, Xxxxxx Xxxxxxx or
Bear
Xxxxxxx
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.
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Very truly yours,
|
|
________________________________
|
|
(Name)
|
|
|
|
(Address)
|
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