DANAOS CORPORATION 9,000,000 Shares Common Stock ($0.01 par value) Underwriting Agreement
DANAOS CORPORATION
9,000,000 Shares
Common Stock
($0.01 par value)
November 21, 2019
Citigroup Global Markets Inc.
Xxxxxxxxx LLC
As Representative of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxxxx LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Danaos Corporation, a Xxxxxxxx Islands corporation (the “Company”), proposes to sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, the number of shares of common stock, $0.01 par value (“Common Stock”), of the Company set forth in Schedule I hereto (said shares to be issued and sold by the Company being hereinafter called the “Underwritten Securities”). The Company also proposes to grant to the Underwriters an option to purchase up to the number of additional shares of Common Stock set forth in Schedule I hereto (the “Option Securities;” the Option Securities, together with the Underwritten Securities, being hereinafter called the “Securities”). To the extent there are no additional Underwriters listed on Schedule II other than you, the term Representatives as used herein shall mean you, as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires.
As used in this underwriting agreement (this “Agreement”), the “Registration Statement” means the registration statement referred to in paragraph 1(a) hereof, including the exhibits, schedules and financial statements and any prospectus supplement relating to the Securities that is filed with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 424(b) under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”) and deemed part of such registration statement
pursuant to Rule 430B under the Securities Act, as amended on each Effective Date, and, in the event any post-effective amendment thereto or any registration statement and any amendments thereto filed pursuant to Rule 462(b) under the Securities Act (a “Rule 462(b) Registration Statement”) becomes effective prior to the Closing Date (as defined in Section 3 hereof), shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be; the “Effective Date” means each date and time that the Registration Statement, any post-effective amendment or amendments thereto or any Rule 462(b) Registration Statement became or becomes effective; the “Base Prospectus” means the base prospectus referred to in paragraph 1(a) hereof contained in the Registration Statement at the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”); the “Preliminary Prospectus” means any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) hereof which is used prior to the filing of the Final Prospectus, together with the Base Prospectus; and the “Final Prospectus” means the prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b) under the Securities Act (“Rule 424(b)”) after the Execution Time, together with the Base Prospectus.
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final 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 Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference.
As used in this Agreement, the “Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) any issuer free writing prospectus, as defined in Rule 433 under the Securities Act (an “Issuer Free Writing Prospectus”), identified in Schedule III hereto and (iv) any other free writing prospectus, as defined in Rule 405 under the Securities Act (a “Free Writing Prospectus”), that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
1. Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form F-3 under the Securities Act and has prepared and filed with the SEC a registration statement (the file number of which is set forth in Schedule I hereto) on Form F-3, including a related Base Prospectus, for the registration of the offering and sale of the Securities under the Securities Act. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, has become effective. The Company may have filed with the SEC, as part of an amendment to the Registration Statement or pursuant to Rule 424(b),
preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The Company will file with the SEC a final prospectus supplement relating to the Securities in accordance with Rule 424(b) after the Execution Time. As filed, such final prospectus supplement shall contain all information required by the Securities Act and the rules thereunder and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act. The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time.
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein) and on any date on which Option Securities are purchased, if such date is not the Closing Date (a “settlement date”), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules thereunder; on each Effective Date, at the Execution Time and on the Closing Date, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date and any settlement date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement or the Final Prospectus (or any 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 Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8 hereof.
(c) (i) The Disclosure Package and the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Final Prospectus, when taken together as a whole, and (ii) each electronic road show, when taken together as a whole with the Disclosure Package and the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Final Prospectus, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(d) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) under the Securities and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405 under the Securities Act), without taking account of any determination by the SEC pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(e) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated by reference therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(f) The interactive data in the eXtensible Business Reporting Language (“XBRL”) included as an exhibit to the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the SEC’s rules and guidelines applicable thereto.
(g) Each of the Company and its subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(h) All the outstanding shares of capital stock of each subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable, and, except as otherwise set forth in the Disclosure Package and the Final Prospectus, all outstanding shares of capital stock of the subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances.
(i) There is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required (and the Preliminary Prospectus contains in all material respects the same description of the foregoing matters contained in the Final Prospectus).
(j) This Agreement has been duly authorized, executed and delivered by the Company.
(k) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.
(l) No consent, approval, authorization, filing with or order of any court or governmental agency or body in the United States, the Republic of the Xxxxxxxx Islands or any other jurisdiction, including, without limitation, the International Maritime Organization (the “IMO”), is required in connection with the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Final Prospectus.
(m) Neither the issue and sale of the Securities nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, or result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its or their property is subject or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority, including, without limitation, the IMO, having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, which conflicts, breaches, violations, defaults or liens, in the case of clauses (ii) and (iii), could reasonably be expected to have a Material Adverse Effect or would have a material adverse effect on the ability of the Underwriters to consummate the transactions contemplated by this Agreement.
(n) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement and the holders of outstanding shares of capital stock of the Company are not entitled to statutory preemptive or other similar contractual rights to subscribe for the Securities, except for such rights as have been effectively waived and those exercised by Danaos Investment Limited as Trustee of the 883 Trust and Sphinx Investment Corp. as the Company has informed the Underwriters.
(o) There are no restrictions on subsequent transfers of the Securities under the laws of the Republic of the Xxxxxxxx Islands.
(p) The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included in the Preliminary Prospectus, the Final Prospectus and the Registration Statement present fairly the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the Securities Act and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The selected financial data set forth under the caption “Summary Historical Financial and Operating Data” in the Preliminary Prospectus, the Final Prospectus and Registration Statement fairly present, on the basis stated in the Preliminary Prospectus, the Final Prospectus and the Registration Statement, the information included therein.
(q) No action, suit or proceeding by or before any court or governmental agency, authority or body, including, without limitation, the IMO, or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the knowledge of the Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(r) Each of the Company and its subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted.
(s) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the business of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances and defects except for those arising under credit facilities, each as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property taken as a whole by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries, in each case except as described in the Disclosure Package.
(t) Neither the Company nor any subsidiary is in violation or default of (i) any provision of its charter or bylaws, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject or (iii) any statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other authority, including, without limitation, the IMO, having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, which violations or defaults, in the case of clauses (ii) and (iii), could reasonably be expected to have a Material Adverse Effect or would have a material adverse effect on the ability of the Underwriters to consummate the transactions contemplated by this Agreement.
(u) PricewaterhouseCoopers S.A., who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included in the Disclosure Package and the Final Prospectus, are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder.
(v) There are no transfer taxes or other similar fees or charges under Federal law or the laws of any state, the Republic of the Xxxxxxxx Islands (assuming that none of the Underwriters are carrying on business or conducting transactions in the Republic of the Xxxxxxxx Islands), Liberia, Greece, Malta or Cyprus or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance by the Company or sale by the Company of the Securities.
(w) The Company has filed all tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). No labor problem or dispute with the employees of the Company, Danaos Shipping Co. Ltd. or any of the Company’s affiliates or any of the Company’s subsidiaries exists or is threatened or imminent, that could have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(y) The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect,
except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(z) No subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company, except as described in or contemplated by the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(aa) The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by all applicable authorities necessary to conduct their respective businesses, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(bb) The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in XBRL included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus is in compliance with the SEC’s published rules, regulations and guidelines applicable thereto. The Company and its subsidiaries’ internal controls over financial reporting are effective and the Company and its subsidiaries are not aware of any material weakness in their internal controls over financial reporting.
(cc) The Company and its subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act), and such disclosure controls and procedures are effective.
(dd) The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(ee) The Company and its subsidiaries (i) have complied with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”), (ii) have received and complied with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability under any environmental law, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto). Except as set forth in the Disclosure Package and the Final Prospectus, neither the Company nor any of the subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
(ff) In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(gg) There is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and regulations promulgated in connection thereunder, including Section 402 relating to loans and Sections 302 and 906 relating to certifications.
(hh) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation or a sanction for violation by such persons of the Foreign Corrupt Practices Act of 1977 or the U.K. Xxxxxxx Xxx 0000, each as may be amended, or similar law of any other relevant jurisdiction, or the rules or regulations thereunder; and the Company and its subsidiaries have instituted and maintain policies and procedures that are reasonably designed to ensure compliance therewith. No part of the proceeds of the offering will be used, directly or indirectly, in violation of the Foreign Corrupt Practices Act of 1977 or the U.K. Xxxxxxx Xxx 0000, each as may be amended, or similar law of any other relevant jurisdiction, or the rules or regulations thereunder.
(ii) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(jj) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is a person that is, or is 50% or more owned or otherwise controlled by a person that is: (i) currently the subject of any sanctions administered or enforced by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, a member state of the European Union (including sanctions administered or enforced by Her Majesty’s Treasury of the United Kingdom) or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons” and each such person, a “Sanctioned Person”), (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (currently, the Crimea region, Cuba, Iran, North Korea, Syria and Venezuela) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”) or (iii) will, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner that would result in a violation of any Sanctions by, or will result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise).
(kk) Neither the Company nor any of its subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding 3 years.
(ll) The Company and its subsidiaries own, possess, license or have other rights to use, on reasonable terms, all patents, patent applications, trade and service marks, trade and service xxxx registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, the “Intellectual Property”) necessary for the conduct of the Company’s business as now conducted or as proposed in the Disclosure Package and Prospectus to be conducted. Except as set forth in the Disclosure Package and the Final Prospectus (a) to the Company’s best knowledge, there are no rights of third parties to any such Intellectual Property; (b) to the Company’s best knowledge, there is no material infringement by third parties of any such Intellectual Property; (c) there is no pending or, to the Company’s best knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (d) to the Company’s best knowledge, there is no pending or threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for any such claim; (e) there is no pending or, to the Company’s best knowledge, threatened action, suit, proceeding or claim by others that the Company infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any other fact which would form a reasonable basis for any such claim; (f) to the Company’s knowledge, there is no U.S. patent or published U.S. patent application which contains claims that dominate or may dominate any Intellectual Property described in the Disclosure Package and the Final Prospectus as being owned by or licensed to the Company or that interferes with the issued or pending claims of any such Intellectual Property; and (g) there is no prior art of which the Company is aware that may render any U.S. patent held by the Company invalid or any U.S. patent application held by the Company un-patentable which has not been disclosed to the U.S. Patent and Trademark Office.
(mm) Except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of Citigroup Global Markets Holdings Inc. or Xxxxxxxxx LLC and (ii) does not intend to use any of the proceeds from the sale of the Securities hereunder to repay any outstanding debt owed to any affiliate of Citigroup Global Markets Holdings Inc. or Xxxxxxxxx LLC.
(nn) Neither the Company nor any of its subsidiaries nor any of its or their 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, the Republic of the Xxxxxxxx Islands, Greece, Liberia, Malta or Cyprus or any political subdivision thereof.
(oo) The Company does not believe that it is a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended, and, based on the Company’s current and expected assets, income and operations as described in the Registration Statement, the Disclosure Package and the Final Prospectus, the Company does not believe it is likely to become a PFIC.
(pp) No capital gains, income, withholding or other taxes are payable by or on behalf of any Representative to the Republic of Greece or the Republic of The Xxxxxxxx Islands (assuming that none of the Underwriters are carrying on business or conducting transactions in the Republic of the Xxxxxxxx Islands) or to any political subdivision or taxing authority thereof or therein in connection with the issuance and delivery by the Company of the Securities to any purchaser thereof or, where any Representative is acting as a principal, to or for the respective accounts of the Representatives or the sale and delivery by any Representative of the Securities to the initial purchasers thereof.
(qq) Each of the vessels described in the Registration Statement, the Disclosure Package and the Final Prospectus and listed on Schedule V hereto as owned by certain of the Company’s subsidiaries (other than the contracted vessel (Xxxxx
Champion) and the five cellular containerships owned by Gemini Shipholdings Corporation, in which the Company has a 49% equity interest), has been duly registered in the name of the entity that owns it under the laws and regulations and flag of the nation of its registration and no other action is necessary to establish and perfect such entity’s title to and interest in any of the vessels as against any charterer or third party and all of the vessels described in the Registration Statement, the Disclosure Package and the Final Prospectus as owned by a subsidiary of the Company are owned directly by such subsidiary of the Company free and clear of all liens, claims, security interests or other encumbrances, except such as are described in or contemplated by the Registration Statement, the Disclosure Package and the Final Prospectus or any other encumbrances which would not, in the aggregate, constitute a Material Adverse Effect.
(rr) Since the date of the latest audited financial statements included in the Disclosure Package and the Final Prospectus and other than as set forth in or contemplated by the Disclosure Package and the Final Prospectus, (i) the Company and its subsidiaries have not sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, investigation, order or decree, (ii) there has not been any material change in the capitalization or material increase in the short-term debt or long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving or which could reasonably be expected to involve, individually or in the aggregate, a prospective material adverse change in or affecting the general affairs, condition (financial or otherwise), results of operations, business, properties or assets or prospects of the Company and its subsidiaries, taken as a whole, and (iii) the Company and its subsidiaries have not incurred any liability or obligation, direct, indirect or contingent, or entered into any transactions, whether or not in the ordinary course of business, that, individually or in the aggregate, is material to the Company and its subsidiaries taken as a whole.
(ss) All dividends and other distributions declared and payable on the shares of capital stock of the Company, including the Securities, may, under the current laws and regulations of the Republic of The Xxxxxxxx Islands or any political subdivision thereof, be paid in United States dollars and may be freely transferred out of the Republic of The Xxxxxxxx Islands, and all such dividends and other distributions will not be subject to withholding or other taxes under the laws and regulations of the Republic of The Xxxxxxxx Islands and are otherwise free and clear of any other tax, withholding or deduction under the laws and regulations of the Republic of The Xxxxxxxx Islands and without the necessity of obtaining any consents, approvals, authorizations, orders, licenses, registrations, clearances and qualifications of or with any court or governmental agency or body in the Republic of The Xxxxxxxx Islands.
(tt) The statistical and market-related data included in the Registration Statement, the Disclosure Package and the Final Prospectus are based on or derived from sources which the Company believe to be reliable and accurate.
(uu) The Company is a “foreign private issuer” as defined in Rule 405 under the Securities Act.
(vv) The Company’s and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) operate and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted, and, to the knowledge of the Company, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants, other than those not reasonably expected to be material to the Company and its subsidiaries, taken as a whole. The Company and its subsidiaries maintain commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”) processed and stored thereon, and, to the knowledge of the Company, there have been no known breaches, violations, outages or unauthorized uses of or accesses to the same, except as would not, individually or in the aggregate, have a Material Adverse Effect, nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all applicable judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto, the number of Underwritten Securities set forth opposite such Underwriter’s name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to the number of Option Securities set forth in Schedule I hereto at the same purchase price per share as the Underwriters shall pay for the Underwritten Securities, less an amount per share equal to any dividends or distributions declared by the Company and payable on the Underwritten Securities but not payable on the Option Securities. Said option may be exercised in whole or in part at any time on or before the 30th day after the date of the Final Prospectus upon written or telegraphic notice by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters are exercising the option and the settlement date. The number of Option Securities to be purchased by each Underwriter shall be the same percentage of the total
number of Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten Securities and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the third Business Day immediately preceding the Closing Date) shall be made on the date and at the time specified in Schedule I hereto or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). As used herein, “Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City. Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Underwritten Securities and the Option Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
The Company agrees to have the Securities available for inspection, checking and packaging by the Representatives in New York, New York, not later than 1:00 PM on the Business Day prior to the Closing Date.
If the option provided for in Section 2(b) hereof is exercised after the third Business Day immediately preceding the Closing Date, the Company will deliver the Option Securities (at the expense of the Company) to the Representatives, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the Representatives (which shall be within three Business Days after exercise of said option) for the respective accounts of the several Underwriters, against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to the Representatives on the settlement date for the Option Securities, and the obligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the SEC pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the SEC, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the SEC or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 thereunder), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and
file with the SEC, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(e) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 thereunder), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(f) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(g) The Company will not, without the prior written consent of Citigroup Global Markets Inc. and Xxxxxxxxx LLC, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the SEC in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable for, shares Common Stock, or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto; provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon
the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(h) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the SEC of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) the out-of-pocket expenses of the Underwriters, including the fees and expenses of counsel for the Underwriters (such fees and expenses of counsel under this clause (x) and clause (vii) in an amount not to exceed $200,000); and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(j) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the SEC or retained by the Company under Rule 433 under the Securities Act (“Rule 433”); provided that the prior written consent of the parties hereto shall be
deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rule 164 under the Securities Act and Rule 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.
6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx, Xxxxx & Xxxxxxx LLP, U.S. counsel for the Company, together with Xxxxxx & Xxxxxxx, P.C., special counsel for the Company with respect to Xxxxxxxx Islands law, Xxxxxx Xxxxxx & Xxxxxxxx LLP, special counsel for the Company with respect to English law, Cozen X’Xxxxxx, special counsel for the Company with respect to Liberian law, Xxxxxx Xxxxxx & Xxxxxxxx, special counsel for the Company with respect to Greek law, Montanios & Montanios LLC, special counsel for the Company with respect to Cypriot law, Xxxx Xxxxxxxxx of MCConsult & Associates, special counsel for the Company with respect to Maltese law, and Xxxxxx & Xxxxxx, special counsel for the Company with respect to Panamanian law, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives.
(c) The Representatives shall have received from Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer of the Company, dated the Execution Time.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendments or supplements thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have requested and caused PricewaterhouseCoopers S.A. to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from the persons listed on Schedule IV hereto addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10(i) hereof 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 other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through Citigroup Global Markets Inc. on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees, affiliates and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (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 for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or in any amendment thereof or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, 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, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability 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 written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Securities and (ii) under the heading “Underwriting,” (a) the list of Underwriters and their respective participation in the sale of the Securities, (b) in the third paragraph under the heading “Underwriting,” (c) the sentences related to concessions and reallowances and (d) the paragraphs related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively, “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by the Underwriters, on the other, from the offering of the
Securities. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company, on the one hand, or the Underwriters, on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this paragraph (d), 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 who controls an Underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee, affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Securities Act or 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 the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such non-defaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any non-defaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any non-defaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s Common Stock shall have been suspended by the SEC or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities, (iii) there shall have occurred a material disruption in commercial banking or securities settlement or clearance services or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, agents, affiliates or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Citigroup Global Markets Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, facsimile number: x0 (000) 000-0000, or Jefferies LLC at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, facsimile number: x0 (000) 000-0000; or, if sent to the Company, will be mailed, delivered or telefaxed to Danaos Shipping Co. Ltd, Athens Branch, 00 Xxxx Xxxxxxx, 000 00 Xxxxxxx, Xxxxxx, Attention: Xxxxxxx Xxxxxxx, facsimile number: x00 000 000 0000.
13. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14. Jurisdiction. The Company agrees that any suit, action or proceeding against the Company brought by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or by any person who controls any Underwriter, arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in The City of New York and County of New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding. The Company hereby appoints Xxxxxxx & Associates as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated herein that may be instituted in any State or U.S. federal court in The City of New York and County of New York, by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or by any person who controls any Underwriter, and expressly accepts the exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. The Company hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company. Notwithstanding the foregoing, any action arising out of or based upon this Agreement may be instituted by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or by any person who controls any Underwriter, in any court of competent jurisdiction in the Xxxxxxxx Islands.
15. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 15, “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b) or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and “U.S. Special Resolution Regime” means each of (i)
the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
16. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and (c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
17. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
18. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
19. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
20. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
21. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
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Very truly yours, | ||
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Danaos Corporation | ||
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By: |
/s/ Xxxxxxxxx Xxxxxxx | |
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Name: |
Xxxxxxxxx Xxxxxxx |
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Title: |
Chief Financial Officer |
[Signature Page to Underwriting Agreement]
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The foregoing Agreement is hereby |
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confirmed and accepted as of the date |
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specified in Schedule I hereto. |
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By: |
Citigroup Global Markets Inc. |
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By: |
/s/ Xxxxxxx X. Xxxxxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxxxxx |
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Title: |
Managing Director |
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By: |
Xxxxxxxxx LLC |
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By: |
/s/ Xxxxx Xxxxxxxx |
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Name: |
Xxxxx Xxxxxxxx |
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Title: |
Managing Director |
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Each for themselves and the other several |
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Underwriters named in Schedule II to |
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the foregoing Agreement. |
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[Signature Page to Underwriting Agreement]
SCHEDULE I
Underwriting Agreement dated November 21, 2019
Registration Statement No. 333-230106
Representative(s): Citigroup Global Markets Inc. and Xxxxxxxxx LLC
Title, Purchase Price and Description of Securities:
Title: Common Stock, par value $0.01 per share
Number of Underwritten Securities to be sold by the Company: 9,000,000
Number of Option Securities to be sold by the Company: 1,350,000
Price per Share to Public (including accrued dividends, if any): $6.00
Price per Share to the Underwriters for 4,493,332 Company directed Securities: $6.00
Price per Share to the Underwriters for remaining 4,506,668 Underwritten Securities: $5.58
Closing Date, Time and Location: November 26, 2019 at 10:00 a.m. at Cravath, Swaine & Xxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Type of Offering: Non-Delayed
Date referred to in Section 5(g) after which the Company may offer or sell securities issued by the Company without the consent of the Representative(s): February 19, 2020
SCHEDULE II
|
Underwriters |
|
Number of Underwritten |
|
|
Citigroup Global Markets Inc. |
|
6,000,000 |
|
|
Xxxxxxxxx LLC |
|
3,000,000 |
|
|
|
|
|
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Total |
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9,000,000 |
|
SCHEDULE IV
List of Persons and Entities Subject to Lock-Up
Xxxx Xxxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxxxxx Xxxxxxx
Dimitris Vastarouchas
Xxxxx X. Xxxxx
Xxxxxx Xxxxxxx-Xxxxx
Xxxxxxx Xxxxx*
Xxxxxx Xxxxxxxxxxxxx
Danaos Investment Limited
Hamburg Commercial Bank
The Royal Bank of Scotland plc
* Not required to sign a Lock-Up Agreement by the Closing Date due to health issues. The Company will pursue an executed Lock-Up Agreement as soon as reasonably practicable.
SCHEDULE V
List of Vessels
|
Vessel Name |
|
Year |
|
Vessel |
|
Expiration |
|
Charterer |
|
Charter |
|
Through |
|
Charter |
|
Extension Options(4) |
| ||||||
|
MSC Ambition |
|
2012 |
|
13,100 |
|
June 2024 |
|
HMM |
|
T/C |
|
December 2019 |
|
$ |
49,563 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
April 2020 (6) |
|
$ |
59,418 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
June 2024 |
|
$ |
64,918 |
|
+ 3 years |
|
at |
|
$ |
60,418 |
|
|
Maersk Exeter |
|
2012 |
|
13,100 |
|
June 2024 |
|
HMM |
|
T/C |
|
December 2019 |
|
$ |
49,563 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
May 2020 (6) |
|
$ |
59,418 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
June 2024 |
|
$ |
64,918 |
|
+ 3 years |
|
at |
|
$ |
60,418 |
|
|
Maersk Enping |
|
2012 |
|
13,100 |
|
May 2024 |
|
HMM |
|
T/C |
|
December 2019 |
|
$ |
49,563 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
May 2020 (6) |
|
$ |
59,418 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
May 2024 |
|
$ |
64,918 |
|
+ 3 years |
|
at |
|
$ |
60,418 |
|
|
Hyundai Respect(12) |
|
2012 |
|
13,100 |
|
March 2024 |
|
HMM |
|
B/B |
|
December 2019 |
|
$ |
42,594 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
B/B |
|
March 2020 (6) |
|
$ |
52,449 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
B/B(5) |
|
May 2020 |
|
$ |
57,949 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
March 2024 |
|
$ |
64,918 |
|
+ 3 years |
|
at |
|
$ |
60,418 |
|
|
Hyundai Honour(12) |
|
2012 |
|
13,100 |
|
February 2024 |
|
HMM |
|
B/B |
|
December 2019 |
|
$ |
42,594 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
B/B |
|
January 2020 (6) |
|
$ |
52,449 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
B/B(5) |
|
May 2020 |
|
$ |
57,949 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
February 2024 |
|
$ |
64,918 |
|
+ 3 years |
|
at |
|
$ |
60,418 |
|
|
Express Rome |
|
2011 |
|
10,100 |
|
February 2022 |
|
Hapag Xxxxx |
|
T/C |
|
May 2021 |
|
$ |
27,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
February 2022 |
|
$ |
28,000 |
|
+ 3 months |
|
at |
|
$ |
28,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
+ 10 up to 14 months |
|
at |
|
$ |
29,000 |
| |
|
Express Berlin |
|
2011 |
|
10,100 |
|
April 2022 |
|
Xxxx Xxxx |
|
T/C |
|
December 2019 |
|
$ |
25,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
April 2022 |
|
$ |
27,750 |
|
+ 4 months |
|
at |
|
$ |
27,750 |
|
|
Express Athens |
|
2011 |
|
10,100 |
|
February 2022 |
|
Hapag Xxxxx |
|
T/C |
|
May 2021 |
|
$ |
27,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
February 2022 |
|
$ |
28,000 |
|
+ 3 months |
|
at |
|
$ |
28,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
+ 10 up to 14 months |
|
at |
|
$ |
29,000 |
| |
|
Le Havre |
|
2006 |
|
9,580 |
|
February 2023 |
|
MSC |
|
T/C |
|
February 2020 (6) |
|
$ |
13,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
February 2023 (8) |
|
$ |
23,000 |
|
+ 4 months |
|
at |
|
$ |
23,000 |
|
|
Pusan C |
|
2006 |
|
9,580 |
|
February 2023 |
|
MSC |
|
T/C |
|
February 2020 (6) |
|
$ |
13,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
February 2023 (8) |
|
$ |
23,000 |
|
+ 4 months |
|
at |
|
$ |
23,000 |
|
|
CMA CGM Melisande |
|
2012 |
|
8,530 |
|
May 2024 |
|
CMA CGM |
|
T/C |
|
November 2023 |
|
$ |
43,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
May 2024 |
|
at market (7) |
|
+ 6 months |
|
at |
|
market (7) |
| ||
|
CMA CGM Attila |
|
2011 |
|
8,530 |
|
October 2023 |
|
CMA CGM |
|
T/C |
|
April 2023 |
|
$ |
43,000 |
|
|
|
|
|
|
| |
|
Vessel Name |
|
Year |
|
Vessel |
|
Expiration |
|
Charterer |
|
Charter |
|
Through |
|
Charter |
|
Extension Options(4) |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
October 2023 |
|
at market (7) |
|
+ 6 months |
|
at |
|
market (7) |
| ||
|
CMA CGM Xxxxxxxx |
|
2011 |
|
8,530 |
|
November 2023 |
|
CMA CGM |
|
T/C |
|
May 2023 |
|
$ |
43,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
November 2023 |
|
at market (7) |
|
+ 6 months |
|
at |
|
market (7) |
| ||
|
CMA CGM Bianca |
|
2011 |
|
8,530 |
|
January 2024 |
|
CMA CGM |
|
T/C |
|
July 2023 |
|
$ |
43,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
January 2024 |
|
at market (7) |
|
+ 6 months |
|
at |
|
market (7) |
| ||
|
CMA CGM Samson |
|
2011 |
|
8,530 |
|
March 2024 |
|
CMA CGM |
|
T/C |
|
September 2023 |
|
$ |
43,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
March 2024 |
|
at market (7) |
|
+ 6 months |
|
at |
|
market (7) |
| ||
|
America |
|
2004 |
|
8,468 |
|
January 2023 |
|
MSC |
|
T/C |
|
January 2020 (6) |
|
$ |
13,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
January 2023 (8) |
|
$ |
22,000 |
|
+ 4 months |
|
at |
|
$ |
22,000 |
|
|
Europe |
|
2004 |
|
8,468 |
|
March 2023 |
|
MSC |
|
T/C |
|
March 2020 (6) |
|
$ |
13,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
March 2023 (8) |
|
$ |
22,000 |
|
+ 4 months |
|
at |
|
$ |
22,000 |
|
|
CMA CGM Xxxxxxx |
|
0000 |
|
6,500 |
|
August 2021 |
|
CMA CGM |
|
T/C |
|
August 2021 |
|
$ |
34,350 |
|
+ 2 months |
|
at |
|
$ |
34,350 |
|
|
CMA CGM Musset |
|
2010 |
|
6,500 |
|
August 2022 |
|
CMA CGM |
|
T/C |
|
February 2022 |
|
$ |
34,350 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
August 2022 |
|
at market (7) |
|
+ 6 months |
|
at |
|
market (7) |
| ||
|
CMA CGM Nerval |
|
2010 |
|
6,500 |
|
October 2022 |
|
CMA CGM |
|
T/C |
|
April 2022 |
|
$ |
34,350 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
October 2022 |
|
at market (7) |
|
+ 6 months |
|
at |
|
market (7) |
| ||
|
CMA CGM Rabelais |
|
2010 |
|
6,500 |
|
December 2022 |
|
CMA CGM |
|
T/C |
|
June 2022 |
|
$ |
34,350 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
December 2022 |
|
at market (7) |
|
+ 6 months |
|
at |
|
market (7) |
| ||
|
CMA CGM Racine |
|
2010 |
|
6,500 |
|
January 2023 |
|
CMA CGM |
|
T/C |
|
July 2022 |
|
$ |
34,350 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
January 2023 |
|
at market (7) |
|
+ 6 months |
|
at |
|
market (7) |
| ||
|
YM Mandate |
|
2010 |
|
6,500 |
|
January 2028 |
|
Xxxx Xxxx |
|
B/B |
|
January 2028 |
|
$ |
26,890 |
|
+ 8 months |
|
at |
|
$ |
26,890 |
|
|
YM Maturity |
|
2010 |
|
6,500 |
|
April 2028 |
|
Xxxx Xxxx |
|
B/B |
|
April 2028 |
|
$ |
26,890 |
|
+ 8 months |
|
at |
|
$ |
26,890 |
|
|
Dimitra C |
|
2002 |
|
6,402 |
|
January 2020 |
|
ONE |
|
T/C |
|
January 2020 |
|
$ |
18,000 |
|
up to February 2020 |
|
at |
|
$ |
18,000 |
|
|
Performance |
|
2002 |
|
6,402 |
|
May 2020 |
|
OOCL |
|
T/C |
|
May 2020 |
|
$ |
22,000 |
|
up to July 2020 |
|
at |
|
$ |
22,000 |
|
|
ZIM Rio Grande |
|
2008 |
|
4,253 |
|
May 2020 |
|
ZIM |
|
T/C |
|
May 2020 |
|
$ |
13,700 |
|
+ 3 months |
|
at |
|
$ |
13,700 |
|
|
ZIM Sao Paolo |
|
2008 |
|
4,253 |
|
August 2020 |
|
ZIM |
|
T/C |
|
August 2020 |
|
$ |
13,700 |
|
+ 3 months |
|
at |
|
$ |
13,700 |
|
|
ZIM Kingston |
|
2008 |
|
4,253 |
|
September 2020 |
|
ZIM |
|
T/C |
|
September 2020 |
|
$ |
13,700 |
|
+ 3 months |
|
at |
|
$ |
13,700 |
|
|
ZIM Monaco |
|
2009 |
|
4,253 |
|
November 2020 |
|
ZIM |
|
T/C |
|
November 2020 |
|
$ |
13,700 |
|
+ 3 months |
|
at |
|
$ |
13,700 |
|
|
ZIM Dalian |
|
2009 |
|
4,253 |
|
February 2021 |
|
ZIM |
|
T/C |
|
February 2021 |
|
$ |
13,700 |
|
+ 3 months |
|
at |
|
$ |
13,700 |
|
|
ZIM Luanda |
|
2009 |
|
4,253 |
|
May 2021 |
|
ZIM |
|
T/C |
|
May 2021 |
|
$ |
13,700 |
|
+ 3 months |
|
at |
|
$ |
13,700 |
|
|
YM Seattle |
|
2007 |
|
4,253 |
|
November 2019 |
|
Xxxx Xxxx |
|
T/C |
|
November 2019 |
|
$ |
9,000 |
|
|
|
|
|
|
| |
|
YM Vancouver |
|
2007 |
|
4,253 |
|
April 2020 |
|
Xxxx Xxxx |
|
T/C |
|
April 2020 |
|
$ |
14,600 |
|
+ 3 months |
|
at |
|
$ |
14,600 |
|
|
Derby D |
|
2004 |
|
4,253 |
|
May 2020 |
|
CMA CGM |
|
T/C |
|
May 2020 |
|
$ |
9,200 |
|
+ 2 months |
|
at |
|
$ |
9,200 |
|
|
ANL Tongala |
|
2004 |
|
4,253 |
|
May 2020 |
|
CMA CGM |
|
T/C |
|
May 2020 |
|
$ |
9,200 |
|
+ 2 months |
|
at |
|
$ |
9,200 |
|
|
Dimitris C |
|
2001 |
|
3,430 |
|
June 2020 |
|
CMA CGM |
|
T/C |
|
June 2020 |
|
$ |
9,500 |
|
+ 3 months |
|
at |
|
$ |
9,500 |
|
|
Vessel Name |
|
Year |
|
Vessel |
|
Expiration |
|
Charterer |
|
Charter |
|
Through |
|
Charter |
|
Extension Options(4) |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
+ 4.5 up to 6 months |
|
at |
|
$ |
10,500 |
| |
|
Express Argentina |
|
2010 |
|
3,400 |
|
May 2020 |
|
Maersk |
|
T/C |
|
May 2020 |
|
$ |
9,000 |
|
+ 4 months |
|
at |
|
$ |
9,000 |
|
|
Express Brazil |
|
2010 |
|
3,400 |
|
September 2020 |
|
CMA CGM |
|
T/C |
|
September 2020 |
|
$ |
10,600 |
|
+ 3 months |
|
at |
|
$ |
10,600 |
|
|
Express France |
|
2010 |
|
3,400 |
|
October 2020 |
|
CMA CGM |
|
T/C |
|
November 2019 |
|
$ |
9,500 |
|
+ 4 months |
|
at |
|
$ |
9,000 |
|
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
October 2020 |
|
$ |
10,600 |
|
+ 3 months |
|
at |
|
$ |
10,600 |
|
|
Express Spain |
|
2011 |
|
3,400 |
|
March 2020 |
|
Cosco |
|
T/C |
|
March 2020 |
|
$ |
10,500 |
|
+ 2 months |
|
at |
|
$ |
10,500 |
|
|
Express Black Sea |
|
2011 |
|
3,400 |
|
December 2019 |
|
CMA CGM |
|
T/C |
|
December 2019 |
|
$ |
9,750 |
|
up to February 2020 |
|
at |
|
$ |
9,750 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
+ 10.5 up to 13.5 months |
|
at |
|
$ |
11,000 |
| |
|
Singapore |
|
2004 |
|
3,314 |
|
March 2020 |
|
OOCL |
|
T/C |
|
March 2020 |
|
$ |
11,000 |
|
+ 2 months |
|
at |
|
$ |
11,000 |
|
|
Xxxxxxx |
|
0000 |
|
3,314 |
|
February 2020 |
|
MSC |
|
T/C |
|
February 2020 |
|
$ |
8,250 |
|
+ 2 months |
|
at |
|
$ |
8,250 |
|
|
MSC Zebra |
|
2001 |
|
2,602 |
|
September 2020 |
|
MSC |
|
T/C |
|
September 2020 |
|
$ |
9,500 |
|
|
|
|
|
|
| |
|
Danae C |
|
2001 |
|
2,524 |
|
January 2020 |
|
Hapag Xxxxx |
|
T/C |
|
January 2020 |
|
$ |
9,000 |
|
+ 13 months |
|
at |
|
$ |
9,000 |
|
|
Xxxxxx C |
|
1998 |
|
2,452 |
|
March 2020 |
|
Xxxx Xxxx |
|
T/C |
|
November 2019 |
|
$ |
8,750 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
March 2020 |
|
$ |
10,100 |
|
+ 2 months |
|
at |
|
$ |
10,100 |
|
|
Xxxxxxxxxxx |
|
0000 |
|
2,200 |
|
November 2019 |
|
Evergreen |
|
T/C |
|
November 2019 |
|
$ |
8,000 |
|
up to February 2020 |
|
at |
|
$ |
8,000 |
|
|
Stride |
|
1997 |
|
2,200 |
|
April 2020 |
|
Evergreen |
|
T/C |
|
April 2020 |
|
$ |
10,000 |
|
+ 3 months |
|
at |
|
$ |
10,000 |
|
|
Sprinter |
|
1997 |
|
2,200 |
|
March 2020 |
|
Evergreen |
|
T/C |
|
March 2020 |
|
$ |
9,100 |
|
+ 3 months |
|
at |
|
$ |
9,100 |
|
|
Future |
|
1997 |
|
2,200 |
|
November 2019 |
|
MCC |
|
T/C |
|
November 2019 |
|
$ |
7,650 |
|
|
|
|
|
|
| |
|
Advance |
|
1997 |
|
2,200 |
|
April 2020 |
|
Evergreen |
|
T/C |
|
April 2020 |
|
$ |
10,000 |
|
+ 3 months |
|
at |
|
$ |
10,000 |
|
|
Bridge |
|
1998 |
|
2,200 |
|
September 2020 |
|
Samudera |
|
T/C |
|
November 2019 |
|
$ |
7,500 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
September 2020 |
|
$ |
9,150 |
|
+ 2 months |
|
at |
|
$ |
9,150 |
|
|
Highway |
|
1998 |
|
2,200 |
|
February 2020 |
|
Cosco |
|
T/C |
|
November 2019 |
|
$ |
8,475 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
T/C |
|
February 2020 |
|
$ |
10,000 |
|
+ 2 months |
|
at |
|
$ |
10,000 |
|
|
Progress C |
|
1998 |
|
2,200 |
|
March 2020 |
|
Evergreen |
|
T/C |
|
March 2020 |
|
$ |
9,100 |
|
+ 3 months |
|
at |
|
$ |
9,100 |
|
|
Contracted |
|
Year |
|
Vessel |
|
Expiration |
|
Charterer |
|
Charter |
|
Through |
|
Charter |
|
Extension Options(4) |
| ||||
|
Xxxxx Champion (9) |
|
2005 |
|
8,500 |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
|
|
|
|
|
Gemini Vessels |
|
Year |
|
Vessel |
|
Expiration |
|
Charterer |
|
Charter |
|
Through |
|
Charter |
|
Extension Options(4) |
| ||||||
|
Xxxxxx (10) |
|
2006 |
|
8,533 |
|
September 2021 |
|
ZIM |
|
T/C |
|
November 2019 |
|
$ |
25,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
CMA CGM |
|
T/C |
|
September 2021 |
|
$ |
25,000 |
|
+ 4 months |
|
at |
|
$ |
25,000 |
|
|
Xxxxxxxxx C (10) |
|
2001 |
|
6,422 |
|
February 2023 |
|
MSC |
|
T/C |
|
February 2020 (6) |
|
$ |
10,000 |
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
February 2023 (8) |
|
$ |
18,000 |
|
+ 4 months |
|
at |
|
$ |
18,000 |
|
|
Xxx C (10) |
|
2002 |
|
6,422 |
|
September 2022 |
|
MSC |
|
T/C |
|
September 2022 |
|
$ |
18,000 |
|
+ 4 months |
|
at |
|
$ |
18,000 |
|
|
Suez Canal (10 11) |
|
2002 |
|
5,610 |
|
April 2020 |
|
TS Lines |
|
T/C |
|
April 2020 |
|
$ |
16,250 |
|
up to August 2020 |
|
at |
|
$ |
16,250 |
|
|
Gemini Vessels |
|
Year |
|
Vessel |
|
Expiration |
|
Charterer |
|
Charter |
|
Through |
|
Charter |
|
Extension Options(4) |
| ||||||
|
Genoa (10 11) |
|
2002 |
|
5,544 |
|
August 2020 |
|
Hapag Xxxxx |
|
T/C |
|
August 2020 |
|
$ |
17,000 |
|
+ 3 months |
|
at |
|
$ |
17,000 |
|
(1) Earliest date charters could expire. Most charters include options for the charterers to extend their terms as described in the “Extension Options” column.
(2) “T/C” stands for “Time Charter” and “B/B” stands for “Bareboat Charter”.
(3) Gross charter rate, does not include charter commissions.
(4) At the option of the charterer.
(5) Bareboat charter arrangement for vessels “Hyundai Honour” and “Hyundai Respect” through May 2020 after which the charters revert back to time charter. Charterers have the option to revert to time charter status earlier than these dates.
(6) Increased charter rate applies from date of scrubber installation, which is currently expected to be from the date indicated in the table and onwards; however, final scrubber installation date may vary.
(7) Daily charter rate for last six months of the charter term will be the prevailing market rate at that time.
(8) Charter period post scrubber installation to be 3 years, which is currently expected to be from the date indicated in the table and onwards; however, final scrubber installation date may vary.
(9) We have agreed to acquire this vessel for $25 million, with expected delivery to us by the end of May 2020.
(10) Vessels acquired by Gemini, in which Danaos holds a 49% equity interest.
(11) A subsidiary of Gemini holds a leasehold bareboat charter interest in such vessel, which was financed by and is subject to a capital lease pursuant to which such subsidiary will acquire all rights to such vessel at the end of such lease.
(12) A subsidiary of Danaos holds a leasehold bareboat charter interest in such vessel, which was financed by and is subject to a capital lease pursuant to which such subsidiary will acquire all rights to such vessel at the end of such lease.
Danaos Corporation
Public Offering of Common Stock
November , 2019
|
Citigroup Global Markets Inc. |
| |
|
Xxxxxxxxx LLC |
| |
|
|
As Representatives of the several Underwriters | |
|
c/o |
Citigroup Global Markets Inc. |
|
|
000 Xxxxxxxxx Xxxxxx |
|
|
Xxx Xxxx, Xxx Xxxx 00000 |
|
|
|
|
|
Xxxxxxxxx LLC |
|
|
000 Xxxxxxx Xxxxxx |
|
|
Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
This letter (this “Letter Agreement”) is being delivered to you in connection with the proposed underwriting agreement (the “Underwriting Agreement”), between Danaos Corporation, a Xxxxxxxx Islands corporation (the “Company”), and each of you as representatives of a group of Underwriters named therein, relating to an underwritten public offering of Common Stock, $0.01 par value per share (the “Common Stock”), of the Company (the “Offering”).
In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of Citigroup Global Markets Inc. and Xxxxxxxxx LLC (the “Representatives”), offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period from the date hereof until 90 days after the date of the Underwriting Agreement (such period, the “Lock-up Period”). Notwithstanding the foregoing, the terms of this Letter Agreement shall not apply to or prohibit: (A) transfers Common Shares as a bona fide gift or gifts, (B) transfers to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for the purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not
more remote than first cousin), and (C) distributions of Common Shares to members, limited partners or stockholders of the undersigned; provided that in the case of any transfer or distribution pursuant to clause (A), (B) or (C), each donee, distributee or transferee shall execute and deliver to the Representatives a lock-up letter in the form of this paragraph; and provided, further, that in the case of any transfer or distribution pursuant to clause (A), (B) or (C), no filing by any party (donor, donee, transferor or transferee) under the Securities Exchange Act of 1934, as amended, or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above).
If (1) prior to the execution of the Underwriting Agreement, the Company advises the Underwriters in writing, that it has determined not to proceed with the Offering for any reason or (2) the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
|
|
Yours very truly, |
|
|
|
|
|
|
|
|
|
Danaos Corporation
Public Offering of Common Stock
November , 2019
|
Citigroup Global Markets Inc. | |
|
Xxxxxxxxx LLC | |
|
|
As Representatives of the several Underwriters |
|
|
|
|
c/o |
Citigroup Global Markets Inc. |
|
|
000 Xxxxxxxxx Xxxxxx |
|
|
Xxx Xxxx, Xxx Xxxx 00000 |
|
|
|
|
|
Xxxxxxxxx LLC |
|
|
000 Xxxxxxx Xxxxxx |
|
|
Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
This letter (this “Letter Agreement”) is being delivered to you in connection with the proposed underwriting agreement (the “Underwriting Agreement”), between Danaos Corporation, a Xxxxxxxx Islands corporation (the “Company”), and each of you as representatives of a group of Underwriters named therein, relating to an underwritten public offering of Common Stock, $0.01 par value per share (the “Common Stock”), of the Company (the “Offering”).
In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of Citigroup Global Markets Inc. and Xxxxxxxxx LLC (the “Representatives”), offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”) and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period from the date hereof until 90 days after the date of the Underwriting Agreement (such period, the “Lock-up Period”). Notwithstanding the foregoing, the terms of this Letter Agreement shall not apply to or prohibit: (A) transfers Common Shares as a bona fide gift or gifts, (B) transfers to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for the purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not
more remote than first cousin), and (C) distributions of Common Shares to members, limited partners or stockholders of the undersigned; provided that in the case of any transfer or distribution pursuant to clause (A), (B) or (C), each donee, distributee or transferee shall execute and deliver to the Representatives a lock-up letter in the form of this paragraph; and provided, further, that in the case of any transfer or distribution pursuant to clause (A), (B) or (C), no filing by any party (donor, donee, transferor or transferee) under the Securities Exchange Act of 1934, as amended, or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above).
Notwithstanding the foregoing, in the event that Danaos Investment Limited or its affiliates are permitted by the Representatives to sell or otherwise transfer or dispose of any Common Stock (whether in one or multiple releases), then the same percentage of Common Stock held by the undersigned equal to the percentage so sold or otherwise transferred or disposed by Danaos Investment Limited or its affiliates relative to the total number of shares of Common Stock owned by such holder immediately prior to such release shall be immediately and fully released on the same terms from any remaining lock-up restrictions set forth herein.
If (1) prior to the execution of the Underwriting Agreement, the Company advises the Underwriters in writing, that it has determined not to proceed with the Offering for any reason or (2) the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
|
|
Yours very truly, | |
|
|
| |
|
|
By: | |
|
|
| |
|
|
| |
|
|
By: |
|
|
|
|
Name: |
|
|
|
Title: |
