Exhibit 99.1
EXECUTION COPY
3,500,000 Shares of Common Stock
NORDIC AMERICAN TANKER SHIPPING LIMITED
UNDERWRITING AGREEMENT
March 2, 2005
BEAR, XXXXXXX & CO. INC.
UBS SECURITIES LLC
As Representatives of the
several Underwriters named in
Schedule I attached hereto (the "Representatives")
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies/Gentlemen:
Nordic American Tanker Shipping Limited, a company organized and
existing under the laws of the Islands of Bermuda (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
several underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 3,500,000 shares (the "Firm Shares") of its common shares, par
value $0.01 per share (the "Common Stock") and, for the sole purpose of covering
over-allotments in connection with the sale of the Firm Shares, at the option of
the Underwriters, up to an additional 525,000 shares (the "Additional Shares")
of Common Stock. The Firm Shares and any Additional Shares purchased by the
Underwriters are referred to herein as the "Shares". The Shares are more fully
described in the Registration Statement and Prospectus referred to below. Bear,
Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") and UBS Securities LLC are acting as lead
managers (together, the "Lead Managers") in connection with the offering and
sale of the Shares contemplated herein (the "Offering").
1. Representations and Warranties of the Company
The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form F-3 (No.
333-118128), and amendments thereto, and related preliminary prospectuses for
the registration under the Securities Act of 1933, as amended (the "Securities
Act"), of the Shares which registration statement, as so amended, has been
declared effective by the Commission and copies of which have heretofore been
made available to the Underwriters. The registration statement, as amended at
the time it became effective, including the prospectus, financial statements,
schedules, exhibits and other information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A or 434
under the Securities Act, is hereinafter referred to as the "Registration
Statement." If the Company has filed or is required pursuant to the terms hereof
to file a registration statement pursuant to Rule 462(b) under the Securities
Act registering additional shares of Common Stock (a "Rule 462(b) Registration
Statement"), then, unless otherwise specified, any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration Statement, which,
if filed, becomes effective upon filing, no other document with respect to the
Registration Statement has heretofore been filed with the Commission. All of the
Shares have been registered under the Securities Act pursuant to the
Registration Statement or, if any Rule 462(b) Registration Statement is filed,
will be duly registered under the Securities Act with the filing of such Rule
462(b) Registration Statement. No stop order suspending the effectiveness of
either the Registration Statement or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission. The Company, if required by the Securities Act and
the rules and regulations of the Commission (the "Rules and Regulations"),
proposes to file the Prospectus with the Commission pursuant to Rule 424(b)
under the Securities Act ("Rule 424(b)"). The prospectus, in the form in which
it is to be filed with the Commission pursuant to Rule 424(b), is hereinafter
referred to as the "Prospectus," except that if any revised prospectus or
prospectus supplement shall be provided to the Underwriters by the Company for
use in connection with the Offering which differs from the Prospectus (whether
or not such revised prospectus or prospectus supplement is required to be filed
by the Company pursuant to Rule 424(b)), the term "Prospectus" shall also refer
to such revised prospectus or prospectus supplement, as the case may be, from
and after the time it is first provided to the Underwriters for such use. Any
preliminary prospectus or prospectus subject to completion included in the
Registration Statement or filed with the Commission pursuant to Rule 424 under
the Securities Act is hereafter called a "Preliminary Prospectus." Any reference
herein to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 6 of Form F-3 which were filed under the
Exchange Act (as defined below) on or before the effective date of the
Registration Statement, the date of such Preliminary Prospectus or the date of
the Prospectus, as the case may be, and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include (i) the filing of any document under the Exchange Act after the
effective date of the Registration Statement, the date of such Preliminary
Prospectus or the date of the Prospectus, as the case may be, which is
incorporated therein by reference and (ii) any such document so filed. All
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a Preliminary Prospectus and the Prospectus, or any
amendments or supplements to any of the foregoing shall be deemed to include any
copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX") as superceded by a subsequent
filing, if applicable.
(b) At the time of the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement or the effectiveness of any
post-effective amendment to the Registration Statement, when the Prospectus is
first filed with the Commission pursuant to Rule 424(b) or Rule 434 under the
Securities Act ("Rule 434"), when any supplement to or amendment of the
Prospectus is filed with the Commission, when any document filed under the
Exchange Act was or is filed and at the Closing Date and the Additional Closing
Date, if any (as hereinafter respectively defined), the Registration Statement
and the Prospectus and any amendments thereof and supplements thereto complied
or will comply in all material respects with the applicable provisions of the
Securities Act, the Exchange Act and the Rules and Regulations and did not and
will not contain an untrue statement of a material fact and did not and will not
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein (i) in the case of the Registration
Statement, not misleading and (ii) in the case of the Prospectus or any related
Preliminary Prospectus in light of the circumstances under which they were made,
not misleading. When any Preliminary Prospectus was first filed with the
Commission (whether filed as part of the registration statement for the
registration of the Shares or any amendment thereto or pursuant to Rule 424(b)
under the Securities Act) and when any amendment thereof or supplement thereto
was first filed with the Commission, such Preliminary Prospectus and any
amendments thereof and supplements thereto complied in all material respects
with the applicable provisions of the Securities Act, the Exchange Act and the
Rules and Regulations and did not contain an untrue statement of a material fact
and did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. No representation and warranty is
made in this subsection (b), however, with respect to any information contained
in or omitted from the Registration Statement or the Prospectus or any related
Preliminary Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Lead Managers
specifically for use therein. The parties acknowledge and agree that such
information provided by or on behalf of any Underwriter consists solely of
underwriters, names included in the table of underwriters' names under the
caption "Underwriting" in the prospectus the material included in (1) the first,
second and fifth sentences of the third paragraph under the caption
"Underwriting" in the Prospectus, (2) the portion of the first sentence of the
tenth paragraph under the caption "Underwriting" in the Prospectus that relates
to the Underwriters' action, (3) the twelfth paragraph under the caption
"Underwriting" in the Prospectus, (4) the first sentence of the fourteenth
paragraph under the caption "Underwriting" in the Prospectus and the portion of
fifth sentence of the fourteenth paragraph under the caption "Underwriting" in
the Prospectus under the caption "Underwriting" in the Prospectus that relates
to the Underwriters' approval and/or endorsement and (5) the fifteenth paragraph
under the caption "Underwriting" in the Prospectus.
(c) Deloitte Statsaurtoriserte Revisorer AS, who have certified
the financial statements of the Company included or incorporated by reference in
the Registration Statement are an independent registered public accounting firm
as required by the Securities Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the Rules and Regulations.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as disclosed in
the Registration Statement and the Prospectus, the Company has not declared,
paid or made any dividends or other distributions of any kind on or in respect
of its share capital and there has been no material adverse change or any
development involving a prospective material adverse change, whether or not
arising from transactions in the ordinary course of business, in or affecting
(i) the business, condition (financial or otherwise), results of operations,
stockholders' equity, properties or prospects of the Company; (ii) the long-term
debt or share capital of the Company; or (iii) the Offering or consummation of
any of the other transactions contemplated by this Agreement, the Registration
Statement or the Prospectus (a "Material Adverse Change"). Since the date of the
latest balance sheet presented, or incorporated by reference, in the
Registration Statement and the Prospectus, the Company has not incurred or
undertaken any liabilities or obligations, whether direct or indirect,
liquidated or contingent, matured or unmatured, or entered into any
transactions, including any acquisition or disposition of any business or asset,
which are material to the Company, except for liabilities, obligations and
transactions which are disclosed in the Registration Statement and the
Prospectus.
(e) The authorized, issued and outstanding share capital of the
Company is as set forth in the Prospectus in the column headed "Actual" under
the caption "Capitalization" and, after giving effect to the Offering and the
other transactions contemplated by this Agreement, the Registration Statement
and the Prospectus, will be as set forth in the column headed "As Adjusted"
under the caption "Capitalization". All of the issued and outstanding shares in
the capital of the Company are fully paid and non-assessable and have been duly
and validly authorized and issued, in compliance with all applicable state,
federal and foreign securities laws and not in violation of or subject to any
preemptive or similar right that does or will entitle any person, upon the
issuance or sale of any security, to acquire from the Company any Common Stock
or other security of the Company or any security convertible into, or
exercisable or exchangeable for, Common Stock or any other such security (any
"Relevant Security"), except for such rights as may have been fully satisfied or
waived prior to the effectiveness of the Registration Statement.
(f) The Shares have been duly and validly authorized and, when
delivered in accordance with this Agreement, will be duly and validly issued,
fully paid and non-assessable, will have been issued in compliance with all
applicable state, federal and foreign securities laws and will not have been
issued in violation of or subject to any preemptive or similar right that does
or will entitle any person to acquire any Relevant Security from the Company
upon issuance or sale of Shares in the Offering. The Common Stock and the Shares
conform in all material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus. Except as disclosed in the
Registration Statement and the Prospectus, the Company does not have outstanding
warrants, options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, or any contracts or commitments to issue or sell,
any Relevant Security.
(g) The Company holds no ownership or other interest, nominal or
beneficial, direct or indirect, in any corporation, partnership, joint venture
or other business entity.
(h) The Company has been duly organized and validly exists as a
corporation, in good standing under the laws of the Islands of Bermuda. The
Company has all requisite power and authority to carry on its business as it is
currently being conducted and as described in the Prospectus, and to own, lease
and operate its properties. The Company is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which (individually or in
the aggregate) would not have a material adverse effect on (i) the business,
condition (financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company; (ii) the long-term debt or share capital
of the Company; or (iii) the Offering or consummation of any of the other
transactions contemplated by this Agreement, the Registration Statement or the
Prospectus (any such effect being a "Material Adverse Effect").
(i) The Company has all necessary consents, approvals,
authorizations, orders, registrations, qualifications, licenses, filings and
permits of, with and from all judicial, regulatory and other legal or
governmental agencies and bodies and all third parties, foreign and domestic
(collectively, the "Consents"), except where the failure to obtain such Consents
would not have a Material Adverse Effect, to own, lease and operate its
properties and conduct its business as it is now being conducted and as
disclosed in the Registration Statement and the Prospectus, and each such
Consent is valid and in full force and effect, and the Company has not received
notice of any investigation or proceedings which results in or, if decided
adversely to the Company, could reasonably be expected to result in, the
revocation of, or imposition of a materially burdensome restriction on, any
Consent. The Company is in compliance with all applicable laws, rules,
regulations, ordinances, directives, judgments, decrees and orders, foreign and
domestic, except where failure to be in compliance would not have a Material
Adverse Effect. No Consent contains a materially burdensome restriction not
adequately disclosed in the Registration Statement and the Prospectus.
(j) The Company has full right, power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated by this Agreement, the Registration
Statement and the Prospectus. This Agreement and the transactions contemplated
by this Agreement, the Registration Statement and the Prospectus have been duly
and validly authorized by the Company. This Agreement has been duly and validly
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(k) The execution, delivery, and performance of this Agreement
and consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus do not and will not (i) conflict with,
require consent under or result in a breach of any of the terms and provisions
of, or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement, instrument, franchise, license or permit to which the Company is a
party or by which the Company or its properties, operations or assets may be
bound or (ii) violate or conflict with any provision of the certificate of
incorporation, memorandum of association, bye-laws or other organizational
documents of the Company, or (iii) violate or conflict with any law, rule,
regulation, ordinance, directive, judgment, decree or order of any judicial,
regulatory or other legal or governmental agency or body, domestic or foreign,
except (in the case of clause (i) above) as would not have a Material Adverse
Effect.
(l) No Consent of, with or from any judicial, regulatory or other
legal or governmental agency or body or any third party, foreign or domestic,
with jurisdiction over the Company, is required for the execution, delivery and
performance of this Agreement or consummation of the transactions contemplated
by this Agreement, the Registration Statement and the Prospectus, including the
issuance, sale and delivery of the Shares, except the registration under the
Securities Act of the Shares, and such Consents as may be required under state
securities or blue sky laws, under the by-laws and rules of the National
Association of Securities Dealers, Inc. (the "NASD") or NASD Regulation, Inc.
("NASDR") in connection with the purchase and distribution of the Shares by the
Underwriters or by the Bermuda Monetary Authority, each of which has been
obtained and is in full force and effect.
(m) Except as disclosed in the Registration Statement and the
Prospectus, there is no judicial, regulatory, arbitral or other legal or
governmental proceeding or other litigation or arbitration, domestic or foreign,
pending to which the Company is a party or of which any property, operations or
assets of the Company is the subject which, individually or in the aggregate, if
determined adversely to the Company, would have a Material Adverse Effect; to
the best of 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 would
not have a Material Adverse Effect.
(n) The financial statements and pro forma data, including the
notes thereto, and the supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus present fairly the
financial position as of the dates indicated and the cash flows and results of
operations for the periods specified of the Company; except as otherwise stated
in the Registration Statement and the Prospectus, said financial statements have
been prepared in conformity with United States generally accepted accounting
principles 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. The other financial and statistical information
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information included therein and have been
prepared on a basis consistent with that of the financial statements that are
included or incorporated by reference in the Registration Statement and the
Prospectus and the books and records of the respective entities presented
therein.
(o) There are no pro forma or as adjusted financial statements
which are required to be included or incorporated by reference in the
Registration Statement and the Prospectus in accordance with Regulation S-X
which have not been included as so required.
(p) The statistical, industry-related and market-related data
included in the Registration Statement and the Prospectus are based on or
derived from sources which the Company reasonably and in good faith believes are
reliable and accurate, and such data agree with the sources from which they are
derived.
(q) The Company is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act and files reports with the Commission on
the XXXXX System. The Common Stock is registered pursuant to Section 12(b) of
the Exchange Act and the outstanding shares of Common Stock (including the
Shares) are listed on the NYSE (as defined in Section 11(b) below) and the
Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or
de-listing the Common Stock from the NYSE, nor has the Company received any
notification that the Commission or the NYSE is contemplating terminating such
registration or listing.
(r) The Company maintains a system of internal accounting and
other controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with United States generally accepted accounting
principles 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 accounting for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(s) Neither the Company nor any of its affiliates (within the
meaning of Rule 144 under the Securities Act) has taken, directly or indirectly,
any action which constitutes or is designed to cause or result in, or which
would reasonably be expected to constitute, cause or result in, the
stabilization or manipulation of the price of any security to facilitate the
sale or resale of the Shares.
(t) Neither the Company nor any of its affiliates has, prior to
the date hereof, made any offer or sale of any securities which could be
"integrated" for purposes of the Securities Act or the Rules and Regulations
with the offer and sale of the Shares pursuant to the Registration Statement.
Except as disclosed in the Registration Statement and the Prospectus, neither
Company nor any of its affiliates has sold or issued any Relevant Security
during the six-month period preceding the date of the Prospectus, including but
not limited to any sales pursuant to Rule 144A or Regulation D or S under the
Securities Act, other than shares of Common Stock issued pursuant to employee
benefit plans, qualified stock option plans or the employee compensation plans
or pursuant to outstanding options, rights or warrants as described in the
Prospectus.
(u) Except as disclosed in the Registration Statement and the
Prospectus, no holder of any Relevant Security has any rights to require
registration of any Relevant Security as part or on account of, or otherwise in
connection with, the offer and sale of the Shares contemplated hereby, and any
such rights so disclosed have either been fully complied with by the Company or
effectively waived by the holders thereof, and any such waivers remain in full
force and effect.
(v) The conditions for use of Form F-3 to register the Offering
under the Securities Act, as set forth in the General Instructions to such Form,
have been satisfied.
(w) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Securities Act, the Exchange Act and the Rules and
Regulations, and, when read together with the other information in the
Prospectus, do not contain an 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, in the light of the circumstances under which they were
made, not misleading.
(x) The Company is not and, at all times up to and including
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, and after giving effect to
application of the net proceeds of the Offering, will not be, subject to
registration as an "investment company" under the Investment Company Act of
1940, as amended, and is not and will not be an entity "controlled" by an
"investment company" within the meaning of such act.
(y) There are no contracts or other documents (including, without
limitation, any voting agreement), which are required to be described in the
Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act, the Exchange Act or the Rules and
Regulations and which have not been so described or filed.
(z) No relationship, direct or indirect, exists between or among
any of the Company or any affiliate of the Company, on the one hand, and any
director, officer, stockholder, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by the Securities
Act, the Exchange Act or the Rules and Regulations to be described in the
Registration Statement or the Prospectus which is not so described and described
as required. There are no outstanding loans, advances (except normal advances
for business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company to or for the benefit of any of the officers or
directors of the Company or any of their respective family members, except as
disclosed in the Registration Statement and the Prospectus. The Company has not,
in violation of the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act"),
directly or indirectly, extended or maintained credit, arranged for the
extension of credit, or renewed an extension of credit, in the form of a
personal loan to or for any director or executive officer of the Company.
(aa) Except as disclosed in the Registration Statement and the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the Company
or any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus or, to the Company's knowledge, any
arrangements, agreements, understandings, payments or issuance with respect to
the Company or any of its officers, directors, shareholders, partners,
employees, Subsidiaries or affiliates that may affect the Underwriters'
compensation as determined by the NASD.
(bb) The Company owns or leases all such properties as are
necessary to the conduct of its business as presently operated as described in
the Registration Statement and the Prospectus. The Company has good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and clear of all
liens, charges, mortgages, pledges, security interests, claims, equity, trust or
other encumbrances, preferential arrangements, defects or restrictions of any
kind whatsoever ("Liens") except for maritime liens and other liens incurred in
the ordinary course of the Company's shipping business or otherwise as are
described in the Registration Statement and the Prospectus or such as would not
(individually or in the aggregate) have a Material Adverse Effect and any real
property and buildings held under lease or sublease by the Company are held by
it under valid, subsisting and enforceable leases except where failure to do so
would not have a Material Adverse Effect. The Company has not received any
notice of any claim adverse to its ownership of any real or personal property or
of any claim against the continued possession of any real property, whether
owned or held under lease or sublease by the Company, that would individually or
in the aggregate have a Material Adverse Effect.
(cc) The Company maintains insurance in such amounts and covering
such risks as the Company reasonably considers adequate for the conduct of its
business and the value of its properties and as is customary for companies
engaged in similar businesses in similar industries, all of which insurance is
in full force and effect, except where the failure to maintain such insurance
would not be expected to have a Material Adverse Effect. There are no material
claims by the Company under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause under circumstances that would result in a Material Adverse
Effect.
(dd) The Company has accurately prepared and timely filed all
federal, state, foreign and other tax returns that are required to be filed by
it and has paid or made provision for the payment of all taxes, assessments,
governmental or other similar charges, including without limitation, all sales
and use taxes and all taxes which the Company is obligated to withhold from
amounts owing to employees, creditors and third parties, with respect to the
periods covered by such tax returns (whether or not such amounts are shown as
due on any tax return), unless such failure would not, individually or in the
aggregate, have a Material Adverse Effect. No deficiency assessment with respect
to a proposed adjustment of the Company's federal, state, local or foreign taxes
is pending or, to the best of the Company's knowledge, threatened. The accruals
and reserves on the books and records of the Company in respect of tax
liabilities for any taxable period not finally determined are adequate to meet
any assessments and related liabilities for any such period and, since December
31, 2003, the Company has not incurred any liability for taxes other than in the
ordinary course of its business. To the Company's knowledge, there is no tax
lien, whether imposed by any federal, state, foreign or other taxing authority,
outstanding against the assets, properties or business of the Company.
(ee) No labor disturbance by the employees of the Company exists
or, to the best of 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 principal suppliers, manufacturers', customers or contractors, which, in
either case, could reasonably be expected to have a Material Adverse Effect.
(ff) (i) Neither the Company nor any entity, whether or not
incorporated, that is under common control with the Company within the meaning
of Section 4001 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") or is part of a group that includes the Company and that is
treated as a single employer under Section 414 of the Internal Revenue Code of
1986, as amended (the "Code") has, within the five year period prior to the date
on which this representation is made or deemed made, sponsored, contributed to,
or has or had any liability or obligation in respect of, any "employee benefit
plan" (within the meaning of Section 3(3) of ERISA) subject to ERISA or any plan
subject to Section 4975 of the Code.
(gg) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of any kind
of toxic or other wastes or other hazardous substances by, due to, or caused by
the Company (or, to the Company's knowledge, any other entity for whose acts or
omissions the Company is or may be liable) upon any other property now or
previously owned or leased by the Company, or upon any other property, which
would be a violation of or give rise to any liability under any applicable law,
rule, regulation, order, judgment, decree or permit relating to pollution or
protection of human health and the environment ("Environmental Law") which
would, individually or in the aggregate, have a Material Adverse Effect. There
has been no disposal discharge, emission or other release of any kind onto such
property or into the environment surrounding such property of any toxic or other
wastes or other hazardous substances with respect to which the Company has
knowledge which would, individually or in the aggregate, have a Material Adverse
Effect. The Company has not agreed to assume, undertake or provide
indemnification for any liability of any other person under any Environmental
Law, including any obligation for cleanup or remedial action other than by
operation of law as described in the Registration Statement and the Prospectus.
There is no pending or, to the best of the Company's knowledge, threatened
administrative, regulatory or judicial action, claim or notice of noncompliance
or violation, investigation or proceedings relating to any Environmental Law
against the Company.
(hh) Neither the Company nor, to the Company's knowledge, any of
its employees or agents has at any time during the last five years (i) made any
unlawful contribution to any candidate for foreign office, or failed to disclose
fully any contribution in violation of law, or (ii) made any payment to any
federal or state governmental officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or permitted
by the laws of the United States of any jurisdiction thereof.
(ii) Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
(jj) The Company is not (i) in violation of its certificate of
incorporation, memorandum of association, bye-laws or other organizational
documents, (ii) in default under, and no event has occurred which, with notice
or lapse of time or both, would constitute a default under or result in the
creation or imposition of any lien, charge or encumbrance upon any of its
property or assets pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it
is bound or to which any of its property or assets is subject or (iii) in
violation in any respect of any law, rule, regulation, ordinance, directive,
judgment, decree or order of any judicial, regulatory or other legal or
governmental agency or body, foreign or domestic, except (in the case clauses
(ii) and (iii) above) violations or defaults that would not (individually or in
the aggregate) have a Material Adverse Effect and except (in the case of clause
(ii) alone) for any lien, charge or encumbrance disclosed in the Registration
Statement and the Prospectus.
(kk) The Company is in compliance in all material respects with
the provisions of the Xxxxxxxx-Xxxxx Act that are applicable to it and effective
and is actively taking steps to ensure that it will be in compliance in all
material respects with other applicable provisions of the Xxxxxxxx-Xxxxx Act
upon the effectiveness of such provisions.
(ll) The Company has established and maintains "disclosure
controls and procedures" (as defined in Rules 13a-15(e) and 15d-15(e) of the
Exchange Act); the Company's "disclosure controls and procedures" are designed
to ensure that material information relating to the Company is made known to the
Company's Chief Executive Officer and Chief Financial Officer by others within
the Company, particularly during the period that the Registration Statement and
the Prospectus were being prepared; since the date of the filing of the
Company's Annual Report on Form 20-F for the year ended December 31, 2003, the
Company's auditors and the audit committee of the board of directors of the
Company (or persons fulfilling the equivalent function) have not been advised of
(i) all significant deficiencies and material weaknesses in the design or
operation of internal controls over financial reporting which are reasonably
likely to adversely affect the Company's ability to record, process, summarize
and report financial information; or (ii) any fraud, whether or not material,
that involves management or other employees who have a significant role in the
Company's internal controls over financial reporting.
(mm) No stamp duty, stock exchange tax, value-added tax,
withholding or any other similar duty or tax is payable in the United States,
Bermuda or any other jurisdiction in which either the Company is organized or
engaged in business for tax purposes or, in each case, any political subdivision
thereof or any authority having power to tax, in connection with the execution,
delivery or performance of this Agreement by the Company or the issuance, sale
or delivery of the Shares by the Company to the Underwriters or the initial
resales thereof by the Underwriters in the manner contemplated by this Agreement
and the Prospectus.
(nn) Under the current laws and regulations of Bermuda, all
dividends and other distributions declared and payable on the Shares may be paid
by the Company to the holder thereof in United States dollars that may be freely
transferred out of Bermuda and all such payments made to holders thereof who are
non-residents of Bermuda will not be subject to income, withholding or other
taxes under the laws or regulations of Bermuda and will otherwise be free of any
other tax, duty, withholding or deduction in Bermuda and without the necessity
of obtaining any governmental authorization in Bermuda.
(oo) None of the Company or its properties or assets has any
immunity from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) under the laws of the United States or Bermuda.
(pp) The Company is a "foreign private issuer" as defined by Rule
405 of the Securities Act.
(qq) To ensure the legality, validity, enforceability and
admissibility into evidence of each of this Agreement, the Shares and any other
document to be furnished hereunder in Bermuda, it is not necessary that this
Agreement, the Shares or such other document be filed or recorded with any court
or other authority in Bermuda or any stamp or similar tax be paid in Bermuda on
or in respect of this Agreement, the Shares or any such other document except
that (i) the consent of the Bermuda Monetary Authority is required and has been
obtained for the sale and subsequent transferability of the Shares provided the
Shares remain listed on the NYSE or another appointed stock exchange; and (ii)
the Prospectus is required to be and has been filed with the Registrar of
Companies in Bermuda pursuant to Part III of the Companies Xxx 0000 of Bermuda.
Any certificate signed by or on behalf of the Company and
delivered to the Representatives or to counsel for the Underwriters' shall be
deemed to be a representation and warranty by the Company to each Underwriter as
to the matters covered thereby.
2. Purchase, Sale and Delivery of the Shares
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at a purchase
price per share of $46.654, the number of Firm Shares set forth opposite their
respective names on Schedule I hereto together with any additional number of
Shares which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of
certificates representing, the Firm Shares shall be made at the office of
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP ("Underwriters' Counsel"), or at such other place
as shall be agreed upon by the Lead Managers and the Company, at 10:00 A.M., New
York City time, on the third or (as permitted under Rule 15c6-1 under the
Exchange Act) fourth business day (unless postponed in accordance with the
provisions of Section 9 hereof) after the determination of the public offering
price of the Shares), or such other time not later than ten business days after
such date as shall be agreed upon by the Lead Managers and the Company (such
time and date of payment and delivery being herein called the "Closing Date").
Payment of the purchase price for the Firm Shares shall be made by
wire transfer in same day funds to or as directed by the Company upon delivery
of certificates for the Firm Shares to the Representatives through the
facilities of The Depository Trust Company for the respective accounts of the
several Underwriters. The Company will permit the Lead Managers to examine and
package such certificates for delivery at least one full business day prior to
the Closing Date.
(c) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company hereby grants to the Underwriters,
acting severally and not jointly, the option to purchase up to 525,000
Additional Shares at the same purchase price per share to be paid by the
Underwriters for the Firm Shares as set forth in Section 2(a) above, for the
sole purpose of covering over-allotments in the sale of Firm Shares by the
Underwriters. This option may be exercised at any time and from time to time, in
whole or in part on one or more occasions, on or before the thirtieth day
following the date of the Prospectus, by written notice from the Lead Managers
to the Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised and the date and time, as
reasonably determined by the Lead Managers, when the Additional Shares are to be
delivered (any such date and time being herein sometimes referred to as the
"Additional Closing Date"); provided, however, that unless otherwise agreed upon
by the Lead Managers and the Company no Additional Closing Date shall occur
earlier than the Closing Date or earlier than the second full business day after
the date on which the option shall have been exercised nor later than the eighth
full business day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the provisions of
Section 9 hereof). Upon any exercise of the option as to all or any portion of
the Additional Shares, each Underwriter, acting severally and not jointly,
agrees to purchase from the Company the number of Additional Shares that bears
the same proportion of the total number of Additional Shares then being
purchased as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to the total number of Firm Shares that the Underwriters
have agreed to purchased hereunder, subject, however, to such adjustments to
eliminate fractional shares as the Lead Managers in their sole discretion shall
make.
(d) Payment of the purchase price for, and delivery of
certificates representing, the Additional Shares shall be made at the office of
Underwriters' Counsel, or at such other place as shall be agreed upon by the
Lead Managers and the Company, at 10:00 A.M., New York City time, on the
Additional Closing Date (unless postponed in accordance with the provisions of
Section 9 hereof), or such other time as shall be agreed upon by the Lead
Managers and the Company.
Payment of the purchase price for the Additional Shares shall be
made by wire transfer in same day funds to or as directed by the Company upon
delivery of certificates for the Additional Shares to the Representatives
through the facilities of The Depository Trust Company for the respective
accounts of the several Underwriters. The Company will permit the Lead Managers
to examine and package such certificates for delivery at least one full business
day prior to the Additional Closing Date.
3. Offering
Upon authorization of the release of the Firm Shares by the Lead
Managers, the Underwriters propose to offer the Shares for sale to the public
upon the terms and conditions set forth in the Prospectus.
4. Covenants of the Company
The Company covenants and agrees with the Underwriters that:
(a) The Registration Statement and any amendments thereto have
been declared effective, and if Rule 430A is used or the filing of the
Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will
file the Prospectus (properly completed if Rule 430A has been used) pursuant to
Rule 424(b) within the prescribed time period and will provide evidence
satisfactory to the Lead Managers of such timely filing. If the Company elects
to rely on Rule 434, the Company will prepare and file a term sheet that
complies with the requirements of Rule 434, and the Prospectus shall not be
"materially different" (as such term is used in Rule 434) from the Prospectus
included in the Registration Statement at the time it became effective.
The Company will notify you immediately (and, if requested by the Lead
Managers, will confirm such notice in writing) (i) when any amendment to the
Registration Statement becomes effective, (ii) of any request by the Commission
for any amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information, (iii) of the Company's intention
to file or prepare any supplement or amendment to the Registration Statement or
the Prospectus (including documents filed under the Exchange Act if such
document would be deemed to be incorporated by reference into the Registration
Statement or the Prospectus), (iv) of the mailing or the delivery to the
Commission for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, including but not limited to Rule 462(b) under the
Securities Act, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto or of the initiation, or the threatening, of any proceedings
therefor, it being understood that the Company shall make every effort to avoid
the issuance of any such stop order, (vi) of the receipt of any comments from
the Commission, and (vii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time, the
Company will make every reasonable effort to prevent the issuance of any such
stop order and, if issued, to obtain the lifting of such order as soon as
possible. The Company will only file an amendment to the Registration Statement
or an amendment of or supplement to the Prospectus (including the prospectus
required to be filed pursuant to Rule 424(b) or Rule 434) that differs from the
prospectus on file at the time of the effectiveness of the Registration
Statement or file any document under the Exchange Act if such document would be
deemed to be incorporated by reference into the Prospectus that is in form and
substance reasonably satisfactory to the Lead Managers; provided that this
covenant shall not restrict the Company from complying with its reporting
obligations under the Exchange Act. The Company will provide the Lead Managers
with copies of all such amendments, filings and other documents a sufficient
time prior to any filing or other publication thereof to permit the Lead
Managers a reasonable opportunity to review and comment thereon.
(b) The Company shall comply with the Securities Act and the
Exchange Act to permit completion of the Offering and the distribution
contemplated in the Registration Statement and the Prospectus. If at any time
when a prospectus relating to the Shares is required to be delivered under the
Securities Act or the Exchange Act in connection with the sales of Shares, any
event shall have occurred as a result of which the Prospectus as then amended or
supplemented would, in the judgment of the Underwriters or the Company, include
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances existing at the time of delivery to the
purchaser, not misleading, or if to comply with the Securities Act, the Exchange
Act or the Rules and Regulations it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement, or to file any document
incorporated by reference in the Registration Statement or the Prospectus or in
any amendment thereof or supplement thereto, the Company will notify you
promptly and prepare and file with the Commission, subject to Section 4(a)
hereof, an appropriate amendment or supplement which will correct such statement
or omission or which will effect such compliance and will use its best efforts
to have any amendment to the Registration Statement declared effective as soon
as possible.
(c) The Company will deliver to each of you and Underwriters'
Counsel a signed copy of the Registration Statement, as initially filed and all
amendments thereto, including all consents and exhibits filed therewith, and
will maintain in the Company's files manually signed copies of such documents
for at least five years after the date of filing. The Company will promptly
deliver to each of the Underwriters such number of copies of any Preliminary
Prospectus, the Prospectus, the Registration Statement, and all amendments of
and supplements to such documents, if any, and all documents incorporated by
reference in the Registration Statement and Prospectus or any amendment thereof
or supplement thereto, as you may reasonably request. Prior to 10:00 A.M., New
York time, on the business day next succeeding the date of this Agreement and
from time to time thereafter, the Company will furnish the Underwriters with
copies of the Prospectus in New York City in such quantities as you may
reasonably request.
(d) The Company consents to the use and delivery of the
Preliminary Prospectus by the Underwriters in accordance with Rule 430 and
Section 5(b) of the Securities Act.
(e) The Company will use its best efforts, in cooperation with
the Lead Manager, at or prior to the time of effectiveness of the Registration
Statement, to qualify the Shares for offering and sale under the securities laws
relating to the offering or sale of the Shares of such jurisdictions, domestic
or foreign, as the Lead Managers may designate in cooperation with the Company
and to maintain such qualification in effect for so long as required for the
distribution thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation in any jurisdiction in
which it is not already so qualified or to execute a general consent to service
of process in any jurisdiction in which it is not already so subject.
(f) The Company will make generally available to its security
holders and to the Underwriters as soon as practicable, but in any event not
later than twelve months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Securities Act), an earnings statement of
the Company and the Subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158).
(g) During the period of 90 days from the date of the Prospectus,
without the prior written consent of both of the Lead Managers the Company (i)
will not, directly or indirectly, issue, offer, sell, agree to issue, offer or
sell, solicit offers to purchase, grant any call option, warrant or other right
to purchase, purchase any put option or other right to sell, pledge, borrow or
otherwise dispose of any Relevant Security, or make any announcement of any of
the foregoing, (ii) will not establish or increase any "put equivalent position"
or liquidate or decrease any "call equivalent position" (in each case within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder) with respect to any Relevant Security, and (iii) will
not otherwise enter into any swap, derivative or other transaction or
arrangement that transfers to another, in whole or in part, any economic
consequence of ownership of a Relevant Security, whether or not such transaction
is to be settled by delivery of Relevant Securities, other securities, cash or
other consideration; and the Company will obtain an undertaking in substantially
the form of Annex III hereto of each of its officers and directors not to engage
in any of the aforementioned transactions on their own behalf, other than the
sale of Shares as contemplated by this Agreement and the Company's issuance of
Common Stock upon the grant and exercise of options under, or the issuance and
sale of shares pursuant to, employee stock option plans in effect on the date
hereof, as described in the Registration Statement and the Prospectus. The
Company will not file a registration statement under the Securities Act in
connection with any transaction by the Company or any person that is prohibited
pursuant to the foregoing, except for registration statements on Form S-8
relating to employee benefit plans.
(h) (i) During the period of five years from the effective date
of the Registration Statement, the Company will make available to you copies of
all reports or other communications (financial or other) furnished to security
holders or from time to time published or publicly disseminated by the Company,
and will make available to you as soon as they are available, copies of any
reports, financial statements and proxy or information statements furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (ii) during the period of one
year from the effective date of the Registration Statement, the Company will
make available to you copies of such additional information concerning the
business and financial condition of the Company as you may from time to time
reasonably request (such financial information to be on a consolidated basis to
the extent the accounts of the Company and any subsidiaries are consolidated in
reports furnished to its security holders generally or to the Commission),
provided that the Underwriters shall sign a confidentiality agreement regarding
any such additional information containing standard terms and conditions as the
Company shall reasonably request.
(i) The Company will apply the net proceeds from the sale of the
Shares as set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to list the Shares,
subject to notice of issuance, on the NYSE effect and maintain, for the duration
of the Offering, the listing of the Shares on the NYSE.
(k) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to the
Securities Act, the Exchange Act and the Rules and Regulations within the time
periods required thereby.
(l) The Company will use its best efforts to do and perform all
things required to be done or performed under this Agreement by the Company
prior to the Closing Date or the Additional Date, as the case may be, and to
satisfy all conditions precedent to the delivery of the Firm Shares and the
Additional Shares.
(m) The Company will not take, and will cause its affiliates
(within the meaning of Rule 144 under the Securities Act) not to take, directly
or indirectly, any action which constitutes or is designed to cause or result
in, or which could reasonably be expected to constitute, cause or result in, the
stabilization or manipulation of the price of any security to facilitate the
sale or resale of the Shares.
(n) The Company will use its best efforts to keep its existing
insurance and maintain insurance in such amounts as is adequate for the conduct
of its business and the value of its properties and customary for a business in
its industry.
5. Payment of Expenses
Whether or not the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus are consummated or this Agreement is
terminated, the Company hereby agrees to pay all costs and expenses incident to
the performance of its obligations hereunder, including the following: (i) all
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and any
and all amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Securities Act and the Offering; (iii) all
expenses in connection with the qualification of the Shares for offering and
sale under state or foreign securities or blue sky laws as provided in Section
4(e) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with any
blue sky survey; (iv) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the NASD of the terms of the Offering; (v) all fees and
expenses in connection with listing the Shares on the NYSE; (vi) all travel
expenses of the Company's officers and employees and any other expense of the
Company incurred in connection with attending or hosting meetings with
prospective purchasers of the Shares and the entire cost of any airplane
chartered in connection with attending or hosting such meetings (subject to the
reimbursement by the Underwriters of $13,122.00 of the cost of such airplane);
and (vii) any stock transfer taxes incurred in connection with this Agreement or
the Offering. The Company also will pay or cause to be paid: (x) the cost of
preparing stock certificates representing the Shares; (y) the cost and charges
of any transfer agent or registrar for the Shares; and (z) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 5. It is understood,
however, that except as provided in this Section, and Sections 7, 8 and 11
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees and expenses of their counsel and stock transfer taxes on resale of any
of the Shares by them. Notwithstanding anything to the contrary in this Section
5, in the event that this Agreement is terminated pursuant to Section 6 or 11(b)
hereof, or subsequent to a Material Adverse Change, the Company will pay all
out-of pocket expenses of the Underwriters (including but not limited to fees
and disbursements of Underwriters' Counsel) incurred in connection herewith.
6. Conditions of Underwriters' Obligations
The obligations of the Underwriters to purchase and pay for the Firm
Shares and the Additional Shares, as provided herein, shall be subject to the
accuracy of the representations and warranties of the Company herein contained,
as of the date hereof and as of the Closing Date (for purposes of this Section 6
"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters furnished
to you or to Underwriters' Counsel pursuant to this Section 6 of any material
misstatement or omission, to the performance by the Company of its obligations
hereunder, and to each of the following additional conditions:
(a) The Registration Statement shall have become effective and
all necessary foreign and domestic regulatory or stock exchange approvals shall
have been received not later than 5:30 P.M., New York time, on the date of this
Agreement, or at such later time and date as shall have been consented to in
writing by the Lead Managers; if the Company shall have elected to rely upon
Rule 430A or Rule 434 under the Securities Act, the Prospectus shall have been
filed with the Commission in a timely fashion in accordance with Section 4(a)
hereof; and, at or prior to the Closing Date no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof shall have been issued and no proceedings therefor shall have been
initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the written
opinion of Xxxxxx & Xxxxxx LLP, counsel for the Company, dated the Closing Date
addressed to the Underwriters in the form attached hereto as Annex I.
(c) At the Closing Date you shall have received the written
opinion of Xxxxxxx Xxxxxxxx Xxxxxx, Bermuda counsel for the Company, dated the
Closing Date addressed to the Underwriters in the form attached hereto as Annex
II.
(d) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be satisfactory in
form and substance to the Lead Managers and to Underwriters' Counsel, and the
Underwriters shall have received from Underwriters' Counsel a favorable written
opinion, dated as of the Closing Date, with respect to the issuance and sale of
the Shares, the Registration Statement and the Prospectus and such other related
matters as the Lead Managers may require, and the Company shall have furnished
to Underwriters' Counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(e) At the Closing Date you shall have received a certificate of
the Chief Executive Officer and Chief Financial Officer of the Company, dated
the Closing Date to the effect that (i) the condition set forth in subsection
(a) of this Section 6 has been satisfied, (ii) as of the date hereof and as of
the Closing Date, the representations and warranties of the Company set forth in
Section 1 hereof are accurate, (iii) as of the Closing Date all agreements,
conditions and obligations of the Company to be performed or complied with
hereunder on or prior thereto have been duly performed or complied with, (iv)
the Company has not sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, (v) 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
threatened by the Commission, (vi) there are no pro forma or as adjusted
financial statements that are required to be included in the Registration
Statement and the Prospectus pursuant to the Rules and Regulations that have not
been included or incorporated therein as required and (vii) subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus there has not been any material adverse change or any
development involving a prospective material adverse change, whether or not
arising from transactions in the ordinary course of business, in or affecting
(x) the business, condition (financial or otherwise), results of operations,
stockholders' equity, properties or prospects of the Company; (y) the long-term
debt or share capital of the Company; or (z) the Offering or consummation of any
of the other transactions contemplated by this Agreement, the Registration
Statement and the Prospectus.
(f) At the time this Agreement is executed and at the Closing
Date, you shall have received a comfort letter, from Deloitte Statsaurtoriserte
Revisorer AS, independent registered public accounting firm, dated,
respectively, as of the date of this Agreement and as of the Closing Date
addressed to the Underwriters and in form and substance reasonably satisfactory
to the Underwriters and Underwriters' Counsel.
(g) Subsequent to the execution and delivery of this Agreement
or, if earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been any change in the share
capital or long-term debt of the Company or any change or development involving
a change, whether or not arising from transactions in the ordinary course of
business, in the business, condition (financial or otherwise), results of
operations, stockholders' equity, properties or prospects of the Company,
including but not limited to the occurrence of any fire, flood, storm,
explosion, accident or other calamity at any of the properties owned or leased
by the Company, the effect of which, in any such case described above, is, in
the judgment of the Lead Managers, so material and adverse as to make it
impracticable or inadvisable to proceed with the Offering on the terms and in
the manner contemplated in the Prospectus (exclusive of any supplement).
(h) You shall have received a duly executed lock-up agreement
from each person who is a director or officer of the Company, in each case
substantially in the form attached hereto as Annex III.
(i) At the Closing Date, the Shares shall have been approved for
listing upon notice of issuance on the NYSE.
(j) At the Closing Date, the NASD shall have orally confirmed
that it has not raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(k) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal,
state or foreign governmental or regulatory authority that would, as of the
Closing Date, prevent the issuance or sale of the Shares; and no injunction or
order of any federal, state or foreign court shall have been issued that would,
as of the Closing Date, prevent the issuance or sale of the Shares.
(l) The Company shall have furnished the Underwriters and
Underwriters' Counsel with such other certificates, opinions or other documents
as they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be satisfactory in
form and substance to the Lead Managers and to Underwriters' Counsel, all
obligations of the Underwriters hereunder may be cancelled by the Lead Managers
at, or at any time prior to, the Closing Date and the obligations of the
Underwriters to purchase the Additional Shares may be cancelled by the Lead
Managers at, or at any time prior to, the Additional Closing Date. Notice of
such cancellation shall be given to the Company in writing, or by telephone. Any
such telephone notice shall be confirmed promptly thereafter in writing.
7. Indemnification
(a) The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all losses, liabilities, claims, damages and expenses whatsoever
as incurred (including but not limited to attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation (provided that such
settlement is effected in accordance with Section 7(c) hereof)), joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, as originally filed or any amendment
thereof, or the Prospectus, or in any supplement thereto or amendment thereof,
or (ii) the omission or alleged omission to state in the Registration Statement,
as originally filed or any amendment thereof, or the Prospectus, or in any
supplement thereto or amendment thereof, a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company will not be liable in any such case to the extent but
only to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, as
originally filed or any amendment thereof, or the Prospectus, or in any
supplement thereto or amendment thereof, in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any Underwriter
through the Lead Managers expressly for use therein. The parties agree that such
information provided by or on behalf of any Underwriter through the Lead
Managers consists solely of the material referred to in the last sentence of
Section 1(b) hereof. This indemnity agreement will be in addition to any
liability which the Company may otherwise have, including but not limited to
other liability under this Agreement.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration Statement, and
each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof, or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Lead Managers specifically for use therein; provided, however, that in no
case shall any Underwriter be liable or responsible for any amount in excess of
the underwriting discount applicable to the Shares to be purchased by such
Underwriter hereunder. The parties agree that such information provided by or on
behalf of any Underwriter through the Lead Managers consists solely of the
material referred to in the last sentence of Section 1(b) hereof. This indemnity
will be in addition to any liability which any Underwriter may otherwise have,
including but not limited to other liability under this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of any claims or the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the claim or the
commencement thereof (but the failure so to notify an indemnifying party shall
not relieve the indemnifying party from any liability which it may have under
this Section 7 to the extent that it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability that such
indemnifying party may have otherwise than on account of the indemnity agreement
hereunder). In case any such claim or action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate, at its own expense in the
defense of such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party; provided however, that counsel to the
indemnifying party shall not (except with the written consent of the indemnified
party) also be counsel to the indemnified party. Notwithstanding the foregoing,
the indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
(iii) the indemnifying party does not diligently defend the action after
assumption of the defense, or (iv) such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. No indemnifying party shall, without the prior written
consent of the indemnified parties, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
claim, investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an indemnified party under this
Section 7 or Section 8 hereof (whether or not the indemnified party is an actual
or potential party thereto), unless (x) such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such claim, investigation, action or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or
any failure to act, by or on behalf of the indemnified party, and (y) the
indemnifying party confirms in writing its indemnification obligations hereunder
with respect to such settlement, compromise or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested
that an indemnifying party reimburse the indemnified party for fees and expenses
of counsel as contemplated by this paragraph, the indemnifying party shall be
liable for any settlement, compromise or judgment effected without its written
consent if (i) such settlement, compromise or judgment is entered into more than
30 days after receipt by the indemnifying party of such request and (ii) the
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
8. Contribution
In order to provide for contribution in circumstances in which the
indemnification provided for in Section 7 hereof is for any reason held to be
unavailable from any indemnifying party or is insufficient to hold harmless a
party indemnified thereunder, the Company and the Underwriters shall contribute
to the aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Company, any contribution received by the Company from persons,
other than the Underwriters, who may also be liable for contribution, including
persons who control the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, officers of the Company who
signed the Registration Statement and directors of the Company) as incurred to
which the Company and one or more of the Underwriters may be subject, in such
proportions as is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the Offering or, if such allocation is not
permitted by applicable law, in such proportions as are appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company and the Underwriters in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Underwriters shall be deemed to be in the same proportion
as (x) the total proceeds from the Offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company bears to (y)
the underwriting discount or commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of each of the Company and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 8 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
which does not take account of the equitable considerations referred to above in
this Section. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
8 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any judicial, regulatory or
other legal or governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provisions of this Section 8,
(i) no Underwriter shall be required to contribute any amount in excess of the
amount by which the discounts and commissions applicable to the Shares
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission and (ii)
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. For purposes of this
Section 8, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to clauses
(i) and (ii) of the immediately preceding sentence. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 8 or
otherwise. The obligations of the Underwriters to contribute pursuant to this
Section 8 are several in proportion to the respective number of Shares to be
purchased by each of the Underwriters hereunder and not joint.
9. Underwriter Default
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default relates
(the "Default Shares") do not (after giving effect to arrangements, if any, made
by the Lead Managers pursuant to subsection (b) below) exceed in the aggregate
10% of the number of Firm Shares or Additional Shares, each non-defaulting
Underwriter, acting severally and not jointly, agrees to purchase from the
Company that number of Default Shares that bears the same proportion of the
total number of Default Shares then being purchased as the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto bears to
the aggregate number of Firm Shares set forth opposite the names of the
non-defaulting Underwriters, subject, however, to such adjustments to eliminate
fractional shares as the Lead Managers in their sole discretion shall make.
(b) In the event that the aggregate number of Default Shares
exceeds 10% of the number of Firm Shares or Additional Shares, as the case may
be, the Lead Managers may in their discretion arrange for itself or for another
party or parties (including any non-defaulting Underwriter or Underwriters who
so agree) to purchase the Default Shares on the terms contained herein. In the
event that within five calendar days after such a default the Lead Managers do
not arrange for the purchase of the Default Shares as provided in this Section
9, this Agreement or, in the case of a default with respect to the Additional
Shares, the obligations of the Underwriters to purchase and of the Company to
sell the Additional Shares shall thereupon terminate, without liability on the
part of the Company with respect thereto (except in each case as provided in
Sections 5, 7, 8, 10 and 11(d)) or the Underwriters, but nothing in this
Agreement shall relieve a defaulting Underwriter or Underwriters of its or their
liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
(c) In the event that any Default Shares are to be purchased by
the non-defaulting Underwriters, or are to be purchased by another party or
parties as aforesaid, the Lead Managers or the Company shall have the right to
postpone the Closing Date or Additional Closing Date, as the case may be for a
period, not exceeding five business days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus or
in any other documents and arrangements, and the Company agrees to file promptly
any amendment or supplement to the Registration Statement or the Prospectus
which, in the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 9 with like effect as if it had originally
been a party to this Agreement with respect to such Firm Shares and Additional
Shares.
10. Survival of Representations and Agreements
All representations and warranties, covenants and agreements of the
Underwriters and the Company contained in this Agreement or in certificates of
officers of the Company submitted pursuant hereto, including the agreements
contained in Section 5, the indemnity agreements contained in Section 7 and the
contribution agreements contained in Section 8, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person thereof or by or on behalf of the
Company, any of its officers and directors or any controlling person thereof,
and shall survive delivery of and payment for the Shares to and by the
Underwriters. The representations contained in Section 1 and the agreements
contained in Sections 5, 7, 8, 10 and 11 hereof shall survive any termination of
this Agreement, including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination
(a) This Agreement shall become effective upon the execution of
this Agreement. Notwithstanding any termination of this Agreement, the
provisions of this Section 11 and of Sections 1, 5, 7, 8 and 12 through 17,
inclusive, shall remain in full force and effect at all times after the
execution hereof.
(b) The Lead Managers shall have the right to terminate this
Agreement at any time prior to the Closing Date or to terminate the obligations
of the Underwriters to purchase the Additional Shares at any time prior to the
Additional Closing Date, as the case may be, if (i) any domestic or
international event or act or occurrence has materially disrupted, or in the
opinion of the Lead Managers will in the immediate future materially disrupt,
the market for the Company's securities or securities in general; or (ii)
trading on The New York Stock Exchange (the "NYSE") shall have been suspended or
been made subject to material limitations, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities shall
have been required, on the NYSE or by order of the Commission or any other
governmental authority having jurisdiction; or (iii) a banking moratorium has
been declared by any state or federal authority or if any material disruption in
commercial banking or securities settlement or clearance services shall have
occurred; or (iv) (A) there shall have occurred any outbreak or escalation of
hostilities or acts of terrorism involving the United States or there is a
declaration of a national emergency or war by the United States or (B) there
shall have been any other calamity or crisis or any change in political,
financial or economic conditions if the effect of any such event in (A) or (B),
in the judgment of the Lead Managers, makes it impracticable or inadvisable to
proceed with the offering, sale and delivery of the Firm Shares or the
Additional Shares, as the case may be, on the terms and in the manner
contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall
be in writing.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than pursuant to (i) notification by the Lead Managers
as provided in Section 11(a) hereof or (ii) Section 9(b) hereof), or if the sale
of the Shares provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth herein is not satisfied or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, the Company will, subject
to demand by the Lead Managers, reimburse the Underwriters for all out-of-pocket
expenses (including the fees and expenses of their counsel), reasonably incurred
by the Underwriters in connection herewith.
12. Notices
All communications hereunder, except as may be otherwise specifically
provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed, delivered, or
faxed and confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co.
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Parish,
Senior Managing Director, Equity Capital Markets and c/o UBS Securities LLC, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Desk, with a copy to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal
Department and a copy to Underwriter's Counsel at Xxxxxxx Xxxxxxx & Xxxxxxxx
LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx;
(b) if sent to the Company, shall be mailed, delivered, or faxed
and confirmed in writing to the Company and its counsel at the addresses set
forth in the Registration Statement, Attention: Herbjorn Hansson, Chairman and
Chief Executive Officer, with a copy to Xxxxxx & Xxxxxx LLP, Xxx Xxxxxxx Xxxx
Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx;
provided, however, that any notice to an Underwriter pursuant to Section 7 shall
be delivered or sent by mail or facsimile transmission to such Underwriter at
its address set forth in its acceptance facsimile to Bear Xxxxxxx, which address
will be supplied to any other party hereto by Bear Xxxxxxx upon request. Any
such notices and other communications shall take effect at the time of receipt
thereof.
13. Parties
This Agreement shall inure solely to the benefit of, and shall be
binding upon, the Underwriters and the Company and the controlling persons,
directors, officers, employees and agents referred to in Sections 7 and 8
hereof, and their respective successors and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and said
controlling persons and their respective successors, officers, directors, heirs
and legal representatives, and it is not for the benefit of any other person,
firm or corporation. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Shares from any of the Underwriters.
14. Governing Law and Jurisdiction; Waiver of Jury Trial
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. The Company irrevocably (a) submits to the
jurisdiction of any court of the State of New York or the United State District
Court for the Southern District of the State of New York for the purpose of any
suit, action, or other proceeding arising out of this Agreement, or any of the
agreements or transactions contemplated by this Agreement, the Registration
Statement and the Prospectus (each, a "Proceeding"), (b) agrees that all claims
in respect of any Proceeding may be heard and determined in any such court, (c)
waives, to the fullest extent permitted by law, any immunity from jurisdiction
of any such court or from any legal process therein, (d) agrees not to commence
any Proceeding other than in such courts, and (e) waives, to the fullest extent
permitted by law, any claim that such Proceeding is brought in an inconvenient
forum. The Company hereby irrevocably designates Xxxxxx & Xxxxxxx LLP, Xxx
Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as agent upon whom process against
the Company may be served. THE COMPANY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
15. Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument. Delivery of a signed
counterpart of this Agreement by facsimile transmission shall constitute valid
and sufficient delivery thereof.
16. Headings
The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of,
this Agreement.
17. Time is of the Essence
Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business other than days when banking institutions
in the City of New York are authorized by law, regulation or executive order to
be closed.
[signature page follows]
If the foregoing correctly sets forth your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us.
Very truly yours,
NORDIC AMERICAN TANKER SHIPPING LIMITED
By:
--------------------------------
Name:
Title:
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
By:
--------------------------------
Name:
Title:
UBS SECURITIES LLC
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
On behalf of itself and the other several
Underwriters named in Schedule I hereto.
SCHEDULE I
Number of
Total Number Additional Shares
of Firm Shares be Purchased if Option
Underwriter to be Purchased is Fully Exercised
----------- --------------- ------------------
Bear, Xxxxxxx & Co. Inc. ........... 1,750,000 262,500
UBS Securities LLC.................. 1,225,000 183,750
DNB Nor Markets, Inc. .............. 525,000 78,750
--------- -------
Total.......................... 3,500,000 525,000
========= =======
ANNEX I
[Form of Opinion of Xxxxxx & Xxxxxx LLP]
ANNEX II
[Form of Opinion of Xxxxxxx Xxxxxxxx Xxxxxx]
ANNEX III
Form of Lock-Up Agreement
February 16, 2005
BEAR, XXXXXXX & CO. INC.
UBS SECURITIES LLC
As Representatives of the
several Underwriters referred to below
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Equity Capital Markets
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Desk
Nordic American Tanker Shipping Limited Lock-Up Agreement
---------------------------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement") relates to the proposed
public offering (the "Offering") by Nordic American Tanker Shipping Limited, a
Bermuda corporation (the "Company"), of its common shares, $0.01 par value (the
"Stock").
In order to induce you and the other underwriters for which you act as
representatives (the "Underwriters") to underwrite the Offering, the undersigned
hereby agrees that, without the prior written consent of both of the
Representatives, during the period from the date hereof until ninety (90) days
from the date of the final prospectus for the Offering (the "Lock-Up Period"),
the undersigned (a) will not, directly or indirectly, offer, sell, agree to
offer or sell, solicit offers to purchase, grant any call option or purchase any
put option with respect to, pledge, borrow or otherwise dispose of any Relevant
Security (as defined below), and (b) will not establish or increase any "put
equivalent position" or liquidate or decrease any "call equivalent position"
with respect to any Relevant Security (in each case within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder), or otherwise enter into any swap,
derivative or other transaction or arrangement that transfers to another, in
whole or in part, any economic consequence of ownership of a Relevant Security,
whether or not such transaction is to be settled by delivery of Relevant
Securities, other securities, cash or other consideration. As used herein
"Relevant Security" means the Stock, any other equity security of the Company or
any of its subsidiaries and any security convertible into, or exercisable or
exchangeable for, any Stock or other such equity security.
The undersigned hereby authorizes the Company during the Lock-Up
Period to cause any transfer agent for the Relevant Securities to decline to
transfer, and to note stop transfer restrictions on the stock register and other
records relating to, Relevant Securities for which the undersigned is the record
holder and, in the case of Relevant Securities for which the undersigned is the
beneficial but not the record holder, agrees during the Lock-Up Period to cause
the record holder to cause the relevant transfer agent to decline to transfer,
and to note stop transfer restrictions on the stock register and other records
relating to, such Relevant Securities. The undersigned hereby further agrees
that, without the prior written consent of both of the Representatives, during
the Lock-up Period the undersigned (x) will not file or participate in the
filing with the Securities and Exchange Commission of any registration
statement, or circulate or participate in the circulation of any preliminary or
final prospectus or other disclosure document with respect to any proposed
offering or sale of a Relevant Security and (y) will not exercise any rights the
undersigned may have to require registration with the Securities and Exchange
Commission of any proposed offering or sale of a Relevant Security.
The second and third paragraphs of this letter shall not apply to (a)
bona fide gifts, provided the recipient thereof agrees in writing with the
Underwriters to be bound by the terms of this Agreement and confirms that he,
she or it has been in compliance with the terms of this Agreement since the date
hereof, (b) on death, by will or intestacy, or (c) dispositions to a member of
the undersigned's immediate family or to any trust, partnership or other entity
for the direct or indirect benefit of the undersigned and/or such immediate
family member, provided that such immediate family member, trust, partnership or
other entity agrees in writing with the Underwriters to be bound by the terms of
this Agreement and confirms that it has been in compliance with the terms of
this Agreement since the date hereof or (d) pursuant to a court order or
settlement agreement approved by a court of competent jurisdiction.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this Agreement and that this
Agreement constitutes the legal, valid and binding obligation of the
undersigned, enforceable in accordance with its terms. Upon request, the
undersigned will execute any additional documents necessary in connection with
enforcement hereof. Any obligations of the undersigned shall be binding upon the
successors and assigns of the undersigned from the date first above written.
If (i) the Company notifies you in writing that it does not intend to
proceed with the Offering, (ii) the registration statement filed with the
Securities Exchange Commission with respect to the Offering is withdrawn or
(iii) for any reason the Underwriting Agreement shall be terminated prior to the
Closing Date (as defined in the Underwriting Agreement), this Agreement shall
terminate without any action by the parties and the undersigned shall be
released from its obligations hereunder.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. Delivery of a signed copy of this letter by
facsimile transmission shall be effective as delivery of the original hereof.
Very truly yours,
By:
---------------------------
Print Name:
---------------------
