DHT MARITIME, INC. ___________ Shares Common Stock ($0.01 par value per Share) PURCHASE AGREEMENT
Exhibit
1.1
___________
Shares
Common
Stock
($0.01
par value per Share)
___________,
2008
___________,
2008
___________
___________
___________
Ladies
and Gentlemen:
DHT Maritime, Inc., a Xxxxxxxx Islands
corporation (the “Company”), proposes
to issue and sell to the underwriters named in Schedule A hereto
(the “Underwriters”) for
whom you are acting as representatives (the “Representatives”), an
aggregate of ___________ shares (the “Firm Shares”) of
common stock, $0.01 par value per share (the “Common Stock”), of
the Company and, solely for the purpose of covering over-allotments proposes to
grant to the Underwriters the option to purchase up to an additional 1,200,000
shares of Common Stock (the “Additional
Shares”). The Firm Shares and the Additional Shares are
hereinafter collectively sometimes referred to as the “Shares.” The
Shares are described in the Prospectus which is referred to below. As
used in this Agreement, the term “business day” means a
day on which the New York Stock Exchange (the “NYSE”) is open for
trading and the terms “herein,” “hereof” and “hereto” refer in each case to this
Agreement as a whole and not to any particular section, paragraph, sentence or
other subdivision of this Agreement.
The Company has prepared and filed, in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations thereunder (collectively, the
“Act”), with
the Securities and Exchange Commission (the “Commission”) a
registration statement on Form F-3 (File No. 333-___________) under the Act,
including a base prospectus, relating to securities to be sold by the Company,
including the Shares. Except where the context otherwise requires, “Registration
Statement,” as used herein, means the registration statement, as amended
at the time of such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the Underwriters (the “Effective Time”),
including (i) all documents filed as a part thereof, (ii) all material then
incorporated by reference therein and any information deemed to be part of the
registration statement at the Effective Time pursuant to Rule 430A, 430B or Rule
430C under the Act, and (iii) any registration statement filed to register the
offer and sale of Shares pursuant to Rule 462(b) under the Act (a “Rule 462(b) Registration
Statement”). Except where the context otherwise requires, the base
prospectus filed as part of the Registration Statement, in the form in which it
was most recently filed with the Commission and furnished to the Underwriters
prior to the execution of this Agreement, is referred to herein as the “Base Prospectus,” and
the Base Prospectus, as supplemented by the final prospectus supplement
specifically relating to the offer and sale of the Shares, in the form filed or
to be filed with the Commission pursuant to Rule 424(b) under the Act, is
referred to herein as the “Prospectus.” Except
where the context otherwise requires, the term “Preliminary
Prospectus” shall refer to the Base Prospectus, as supplemented by any
preliminary prospectus supplement specifically relating to the offer and sale of
the Shares and furnished to the Underwriters prior to the execution of this
Agreement or, if the Base Prospectus shall not have been supplemented by such a
preliminary prospectus supplement, such term shall refer to the Base Prospectus.
For the purposes of this Agreement, any “issuer free writing prospectus” (as
defined in Rule 433 under the Act) relating to the Shares is referred to as an
“Issuer Free Writing
Prospectus.” The Underwriters have not, and the Company has not, offered
or sold and will not offer or sell, without the consent of the Company (in the
case of the Underwriters) or the consent of the Underwriters (in the case of the
Company), any Shares by means of any Issuer Free Writing Prospectus or “free
writing prospectus” (as defined in the Rule 405 under the Act) that is or would
be required to be filed by the Underwriters with the Commission pursuant to Rule
433 under the Act, other than an Issuer Free Writing Prospectus listed on Schedule B hereto
(each, a “Permitted
Free Writing Prospectus”). The Company represents that it has
treated or agrees that it will treat each Permitted Free Writing Prospectus as
an “issuer free writing prospectus,” as defined in Rule 433, and has
complied and will comply with the requirements of Rule 433 applicable to any
Permitted Free Writing Prospectus, including timely filing with the Commission
where required, legending and record keeping . For the purposes of
clarity, the foregoing shall not restrict the Company from making any filings
required in order to comply with its reporting obligations under the Securities
Exchange Act of 1934 (the “1934 Act”) or the
rules and regulations of the Commission thereunder (the “1934 Act
Regulations”).
The Company and the Underwriters agree
as follows:
1. Sale and
Purchase. Upon the basis of the representations and warranties
and subject to the terms and conditions set forth herein, the Company agrees to
issue and sell to the respective Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule A hereto,
subject to adjustment in accordance with Section 9 hereof, in each case at a
purchase price of $___________ per share. The Company has been advised that the
Underwriters intend (i) to make a public offering of their respective portions
of the Firm Shares and (ii) initially to offer the Firm Shares upon the terms
set forth in the Prospectus. The Underwriters may from time to time
increase or decrease the public offering price after the public offering to such
extent as it may determine.
In addition, upon the basis of the
representations and warranties and subject to the terms and conditions herein
set forth, the Company hereby grants to the several Underwriters the option to
purchase, and the Underwriters shall have the right to purchase, severally and
not jointly, from the Company, ratably in accordance with the number of Firm
Shares to be purchased by each of them, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in connection with the
offering of the Firm Shares, at the same purchase price per share to be paid by
the Underwriters for the Firm Shares. This option may be exercised by the
Representatives on behalf of the several Underwriters at any time and from time
to time on or before the thirtieth day following the date of the Prospectus, by
written notice to the Company. Such notice shall set forth the aggregate number
of Additional Shares as to which the option is being exercised and the date and
time when the Additional Shares are to be delivered (any such date and time
being herein referred to as an “additional time of
purchase”); provided, however, that no additional time of purchase shall
be earlier than the “time of purchase” (as hereinafter defined) or earlier than
the second business day after the date on which the option shall have been
exercised nor later than the tenth business day after the date on which the
option shall have been exercised. If the option is exercised as to
all or any portion of the Additional Shares, each Underwriter, severally and not
jointly, agrees to purchase that proportion of the total number of Additional
Shares then being purchased which bears the same proportion to the aggregate
number of Additional Shares then being purchased as the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule A hereto bears to
the total number of Firm Shares (subject, in each case, to such adjustment as
you may determine to eliminate fractional shares), subject to adjustment in
accordance with Section 9 hereof.
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2. Payment and
Delivery. Payment of the purchase price for the Firm Shares
shall be made to the Company by Federal Funds wire transfer against delivery of
the certificates for the Firm Shares to the Underwriters through the facilities
of The Depository Trust Company (“DTC”) for the
respective accounts of the Underwriters. Such payment and delivery shall be made
at 10:00 A.M., New York City time, on ___________, 2008, unless another time
shall be agreed to by the Underwriters and the Company or unless postponed in
accordance with the provisions of Section 9 hereof. The time at which such
payment and delivery are to be made is sometimes referred to herein as the
“time of
purchase.” Electronic transfer of the Firm Shares shall be
made to the Underwriters at the time of purchase in such names and in such
denominations as the Underwriters shall specify.
If an additional time of purchase is
the same as the time of purchase, payment of the purchase price for any
Additional Shares then being purchased by the Underwriters shall be made at the
time of purchase to the Company by Federal Funds wire transfer against delivery
of the certificates for such Additional Shares to the Underwriters through the
facilities of DTC for the respective accounts of the Underwriters. If
an additional time of purchase is after the time of purchase, payment of the
purchase price for any Additional Shares then being purchased by the
Underwriters shall be made at such additional time of purchase to the Company by
Federal Funds wire transfer against delivery of the certificates for such
Additional Shares to the Underwriters through the facilities of DTC for the
respective accounts of the Underwriters. Electronic transfer of any Additional
Shares purchased shall in each case be made in such names and in such
denominations as you shall specify.
Deliveries of the documents described
in Section 7 hereof with respect to the purchase of the Shares shall be made at
the offices of ___________ at ___________, at 9:00 A.M., New York City time, at
or prior to the time of purchase for the Firm Shares or the additional time of
purchase for the Additional Shares, as the case may be.
3. Representations and
Warranties of the Company. The Company represents and warrants
to and agrees with the Underwriters that:
(a) the
Registration Statement has heretofore become effective under the Act or, with
respect to any Rule 462(b) Registration Statement, will be filed with the
Commission and become effective under the Act no later than 10:00 P.M., New York
City time, on the date of this Agreement; no stop order of the Commission
preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus nor any
similar order directed to any document incorporated by reference in
the Preliminary Prospectus
or the Final Prospectus, or the effectiveness of the Registration
Statement, has been issued, and no proceedings for such purpose have been
instituted or, to the Company’s knowledge, are contemplated by the
Commission.
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(b) the
Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase and, if
applicable, any additional time of purchase and at all times during which a
prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, will comply, in all material respects, with the requirements
of the Act; the Registration Statement did not, as of the Effective Time,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; each Preliminary Prospectus, if any, complied, at the time it was
filed with the Commission, and complies as of the date hereof, in all material
respects with the requirements of the Act; each Preliminary Prospectus
(including the documents incorporated by reference therein) and any amendment or
supplement thereto, as of its date and the date it was filed with the
Commission, and the most recent Preliminary Prospectus (including the documents
incorporated by reference therein), as then amended or supplemented (the “Pricing Prospectus”),
as of ___________ p.m. (Eastern time) on the date hereof (the “Applicable Time”), in
each case when read together with the then issued Issuer Free Writing
Prospectuses, if any, and the information included on Schedule C hereto,
did not include an 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; the Prospectus
will comply, as of its date, the date that it is filed with the Commission, the
time of purchase and, if applicable, any additional time of purchase and at all
times during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, in all material respects, with the
requirements of the Act; at no time during the period that begins on the earlier
of the date of the Prospectus and the date the Prospectus is filed with the
Commission and ends at the later of the time of purchase or, if applicable, any
additional time of purchase, and the end of the period during which a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares did or will the Prospectus, as then amended or supplemented, include an
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; each Issuer Free Writing Prospectus, when
read together with the Pricing Prospectus, any other Issuer Free Writing
Prospectuses then issued and the information included on Schedule C hereto, as
of the Applicable Time, did not include an 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 representation or warranty in this Section 3(b) with respect to
any statement contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus in reliance
upon and in conformity with information concerning the Underwriters and
furnished in writing by or on behalf of the Underwriters to the Company
expressly for use in the Registration Statement, such Preliminary Prospectus,
the Prospectus or such Issuer Free Writing Prospectus.
(c) The
documents incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or hereafter are
filed with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations and, when
read together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the date of the Prospectus and at
the closing time (and, if any Additional Shares are purchased, the additional
closing time with respect to such Additional Shares) did not and will not
include an 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.
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(d) the
Company has not, directly or indirectly, offered or sold any Shares by means of
any “prospectus” (within the meaning of the Act) or used any “prospectus”
(within the meaning of the Act) in connection with the offer or sale of the
Shares other than the Preliminary Prospectus and the Permitted Free Writing
Prospectuses, if any; the Company is not and will continue not to be an
“ineligible issuer” (as defined in Rule 405 under the Act) for the purposes of
Rules 164 and Rule 433 under the Act in connection with the offer or sale of the
Shares; and the Company has complied, and will comply, with the requirements of
Rules 164 and Rule 433 under the Act applicable to any Issuer Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and record-keeping;
(e) the
Company has an authorized and outstanding capitalization as set forth in the
Registration Statement, the Pricing Prospectus and the Prospectus; all of the
issued and outstanding shares of capital stock of the Company, including the
Shares, have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable federal and
state securities laws and were not issued in violation of any preemptive right,
resale right, right of first refusal or similar right; and the Shares are duly
listed and admitted and authorized for trading on the NYSE;
(f) the
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the Xxxxxxxx Islands, with full corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the Pricing Prospectus and the
Prospectus and to execute and deliver this Agreement;
(g) the
Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in
the aggregate, have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company and the
subsidiaries of the Company named in Schedule D hereto
(the “Subsidiaries”) taken
as a whole (a “Material Adverse
Effect”);
(h) the
Company has no “subsidiaries” (as defined under the Act) other than the
Subsidiaries; the Company owns all of the issued and outstanding capital stock
of each of the Subsidiaries; other than the capital stock of the Subsidiaries,
the Company does not own, directly or indirectly, any shares of stock or any
other equity or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or other entity;
complete and correct copies of the articles of incorporation and bylaws of the
Company and each Subsidiary and all amendments and restatements thereto have
been delivered to the Underwriters or their counsel, and, except as set forth in
the exhibits to the Registration Statement, no changes therein will be made on
or after the date hereof or on or before the time of purchase and, if
applicable, any additional time of purchase; each Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the Xxxxxxxx Islands, with full corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Registration Statement, the Pricing Prospectus and the Prospectus; each
Subsidiary is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would not,
individually or in the aggregate, have a Material Adverse Effect; each
Subsidiary is in compliance in all respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdictions, except
where the failure to be in compliance would not, individually or in the
aggregate, have a Material Adverse Effect; all of the outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, have been issued in compliance with
all applicable federal and state securities laws, were not issued in violation
of any preemptive right, resale right, right of first refusal or similar right
and are owned by the Company subject to no security interest, other encumbrance
or adverse claims; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding;
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(i) the
capital stock of the Company, including the Shares, conforms in all material
respects to the description thereof contained in the Registration Statement, the
Pricing Prospectus and the Prospectus; the certificates for the Shares comply
with the applicable requirements of the Company’s articles of incorporation and
bylaws, any applicable laws and the rules of the NYSE; and the holders of the
Shares will not be subject to personal liability for the debt or other
obligations of the Company by reason of being such holders;
(j) this
Agreement has been duly authorized, executed and delivered by the
Company;
(k) neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of time or
both would result in any breach or violation of, constitute a default under or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (i) its respective articles of incorporation or bylaws,
(ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties may be bound
or affected, (iii) any federal, state, local or foreign law, regulation or rule,
(iv) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the rules
and regulations of the NYSE) or (v) any decree, judgment or order applicable to
the Company or any of the Subsidiaries or any of their respective properties,
except in the case of the foregoing clauses (ii), (iii), (iv) and (v) above as
would not, individually or in the aggregate, have a Material Adverse
Effect;
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(l) the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with, result in any
breach or violation of or constitute a default under (or constitute any event
which with notice, lapse of time or both would result in any breach or violation
of or constitute a default under or give the holder of any indebtedness (or a
person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness under) (or result
in the creation or imposition of a lien, charge or encumbrance on any property
or assets of the Company or any Subsidiary pursuant to) (i) the articles of
incorporation or bylaws of the Company or any of the Subsidiaries, (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or
affected, (iii) any federal, state, local or foreign law, regulation or rule,
(iv) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the rules
and regulations of the NYSE) or (v) any decree, judgment or order applicable to
the Company or any of the Subsidiaries or any of their respective properties,
except in the case of the foregoing clauses (ii), (iii), (iv) and (v) as would
not, individually or in the aggregate, have a Material Adverse
Effect;
(m) no
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization, other
non-governmental regulatory authority (including, without limitation, the NYSE),
is required in connection with the execution, delivery and performance of this
Agreement or the consummation by the Company of the transactions contemplated
hereby, other than registration of the Shares under the Act, which has been
effected (or, with respect to a Rule 462(b) Registration Statement, will be
effected in accordance herewith), any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the Shares are
being offered by the Underwriters or under the rules and regulations of the
Financial Industry Regulatory Authority, Inc. (“FINRA”) and such
approvals, authorizations, consents, orders or filings that have been obtained
or made and are in full force and effect;
(n) except
as expressly set forth in the Registration Statement, the Pricing Prospectus and
the Prospectus, (i) no person has the right, contractual or otherwise, to cause
the Company to issue or sell to it any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, (ii) no person has
any preemptive rights, resale rights, rights of first refusal or other rights to
purchase any shares of Common Stock or shares of any other capital stock of or
other equity interests in the Company and (iii) no person has the right to act
as an underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Shares, in the case of each of the foregoing clauses
(i), (ii) and (iii), whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby or
otherwise; except as expressly set forth in the Registration Statement, the
Pricing Prospectus and the Prospectus, no person has the right, contractual or
otherwise, to cause the Company to register under the Act any shares of Common
Stock or shares of any other capital stock of or other equity interests in the
Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby, whether as a result of the
filing or effectiveness of the Registration Statement or the sale of the Shares
as contemplated thereby or otherwise;
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(o) each
of the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule, and has obtained all
necessary licenses, authorizations, consents and approvals from other persons,
in order to conduct its respective business as described in the Registration
Statement, the Pricing Prospectus and the Prospectus, except where the failure
to have such licenses, authorizations, consents and approvals or to have made
such filings would not, individually or in the aggregate, have a Material
Adverse Effect; neither the Company nor any of the Subsidiaries is in violation
of, or in default under, or has received notice of any proceedings relating to
revocation or modification of any such license, authorization, consent or
approval or any filing required under any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Company or
any of the Subsidiaries, except where such violation, default, revocation or
modification would not, individually or in the aggregate, have a Material
Adverse Effect;
(p) all
legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions (including, without limitation, transactions related to, and the
existence of, “variable interest entities” within the meaning of Financial
Accounting Standards Board Interpretation No. 46), contracts, licenses,
agreements, properties, leases or documents required to be described in the
Registration Statement, the Pricing Prospectus or the Prospectus or the
documents incorporated by reference therein or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(q) there are no actions, suits, claims,
investigations or proceedings pending or, to the knowledge of the Company,
threatened to which the Company or any of the Subsidiaries or any of their
respective directors or officers is or would be a party, or of which any of
their respective properties, including any vessel named in Schedule
D hereto (each, a
“Vessel”), is or would be subject, at law or
in equity, before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency, or before or by any
self-regulatory organization or other non-governmental regulatory authority,
except any such action, suit, claim, investigation or proceeding which (i) would
not result in a judgment, decree or order having, individually or in the
aggregate, a Material Adverse Effect and would not prevent the consummation of
the transactions contemplated hereby or (ii) is required to be disclosed in the
Registration Statement and is so disclosed therein;
(r) Ernst
& Young LLP, whose audit reports on (i) the consolidated financial
statements of the Company as of December 31, 2007 and 2006 and for the period
from October 18, 2005 to December 31, 2005 (the “Company Financial
Statements”) and (ii) the combined financial statements of the
predecessor of the Company for the period from January 1, 2005 to
October 17, 2005 (the “Predecessor Financial
Statements”) are included in the Registration Statement, the Pricing
Prospectus and the Prospectus, are independent registered public accountants as
required by the Act and by the rules of the Public Company Accounting Oversight
Board;
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(s) the
Company Financial Statements and the Predecessor Financial Statements included
in the Registration Statement, the Pricing Prospectus and the Prospectus,
together with the related notes thereto, present fairly in all material respects
the financial position and the statement of operations, stockholders’ equity and
cash flows of the Company and its predecessor, as the case may be, as of the
dates indicated and the results of operations and cash flows of the Company and
its predecessor, as the case may be, for the periods specified and have been
prepared in compliance with the requirements of the Act and the 1934 Act, and in
conformity with United States generally accepted accounting principles (“GAAP”) applied on a
consistent basis during the periods involved; all pro forma financial statements
or data included in the Registration Statement, the Pricing Prospectus or the
Prospectus and indicated as being such comply with the requirements of
Regulation S-X of the Act, including, without limitation, Article 11 thereof,
and the assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used therein are
appropriate to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements and data; the other
historical financial and related statistical data set forth in the Registration
Statement, the Pricing Prospectus or the Prospectus are accurately and fairly
presented and prepared on a basis consistent with the financial statements and
books and records of the Company or its predecessor, as the case may be; there
are no financial statements (historical or pro forma) that are required to be
included in the Registration Statement, the Pricing Prospectus or the Prospectus
(including, without limitation, as required by Rules 3-12 or 3-05 or Article 11
of Regulation S-X under the Act) that are not included as required; neither the
Company nor any of the Subsidiaries has any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not
disclosed in the Registration Statement, the Pricing Prospectus and the
Prospectus; and all disclosures contained in the Registration Statement, the
Pricing Prospectus or the Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the Commission) comply with
Regulation G of the 1934 Act and Item 10 of Regulation S-K under the Act, to the
extent applicable;
(t) subsequent
to the time of execution of this Agreement or, if earlier, the respective dates
as of which information is given in the Registration Statement, the Pricing
Prospectus and the Prospectus (in each case excluding any amendments or
supplements thereto made after the execution of this Agreement), there has not
been (i) any material adverse change, or any development involving a prospective
material adverse change, in the business, properties, financial condition,
results of operations or prospects of the Company and the Subsidiaries taken as
a whole, (ii) any obligation, direct or contingent (including any off-balance
sheet obligations), incurred by the Company or any Subsidiary, which is material
to the Company and the Subsidiaries taken as a whole, (iii) any change in the
capital stock or outstanding indebtedness of the Company or any Subsidiary or
(iv) any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company;
(u) the
Company has obtained for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”),
in the form set forth as Exhibit A hereto, of
each of its directors and officers named in Schedule E
hereto;
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(v) the
Company is a “foreign private issuer” (as defined in Rule 405) of the
Act;
(w) the
Company is not and, after giving effect to the offer and sale of the Shares and
at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, will not be an “investment
company” or an entity “controlled” by an “investment company,” as such terms are
defined in the Investment Company Act of 1940, as amended (the “Investment Company
Act”) or a “passive foreign investment company” or a “controlled foreign
corporation,” as such terms are defined in the Internal Revenue Code of 1986, as
amended (the “Internal
Revenue Code”);
(x) the
Company and each of the Subsidiaries has good and marketable title to all
property (real and personal), if any, described in the Registration Statement,
the Pricing Prospectus or the Prospectus as being owned by each of them, free
and clear of all liens, claims, security interests or other encumbrances with
such exceptions as are not material and do not interfere with the intended use
to be made of such property by the Company or its Subsidiaries as described in
the Registration Statement, the Pricing Prospectus and the Prospectus; and all
the property described in the Registration Statement, the Pricing Prospectus or
the Prospectus as being held under lease by the Company or a Subsidiary is held
thereby under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the intended use to be made of such
property by the Company or its Subsidiaries as described in the Registration
Statement, the Pricing Prospectus and the Prospectus;
(y) the
Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), trade names, service
names, copyrights, trade secrets and other proprietary information described in
the Registration Statement, the Pricing Prospectus or the Prospectus as being
owned or licensed by them or which are necessary for the conduct of their
respective businesses as currently conducted or as proposed to be conducted,
except where the failure to own, license or have such rights would not,
individually or in the aggregate, have a Material Adverse Effect (collectively,
“Intellectual
Property”); (i) there are no third parties who have or, to the Company’s
knowledge, will be able to establish rights to any Intellectual Property, except
for, and to the extent of, the ownership rights of the owners of the
Intellectual Property is licensed to the Company; (ii) to the Company’s
knowledge, there is no infringement by third parties of any Intellectual
Property; (iii) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others challenging the Company’s rights in
or to any Intellectual Property, and the Company is unaware of any facts which
could form a reasonable basis for any such action, suit, proceeding or claim;
(iv) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the validity, enforceability or
scope of any Intellectual Property, and the Company is unaware of any facts
which could form a reasonable basis for any such action, suit, proceeding or
claim; (v) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company or any Subsidiary
infringes or otherwise violates any patent, trademark, trade name, service name,
copyright, trade secret or other proprietary rights of others, and the Company
is unaware of any facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (vi) to the Company’s knowledge, there is no patent
or patent application that contains claims that interfere with the issued or
pending claims of any of the Intellectual Property; (viii) to the Company’s
knowledge, there is no prior art that may render any patent application owned by
the Company or any Subsidiary of the Intellectual Property unpatentable that has
not been disclosed to the U.S. Patent and Trademark Office;
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(z) neither
the Company nor any of the Subsidiaries is engaged in any unfair labor practice;
except for matters which would not, individually or in the aggregate, have a
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint
pending or, to the Company’s knowledge, threatened against the Company or any of
the Subsidiaries before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under collective bargaining agreements
is pending or, to the Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened
against the Company or any of the Subsidiaries and (C) no union representation
dispute currently existing concerning the employees of the Company or any of the
Subsidiaries, and (ii) to the Company’s knowledge, (A) no union organizing
activities are currently taking place concerning the employees of the Company or
any of the Subsidiaries and (B) there has been no violation of any federal,
state, local or foreign law relating to discrimination in the hiring, promotion
or pay of employees, any applicable wage or hour laws or any provision of the
Employee Retirement Income Security Act of 1974 (“ERISA”) or the rules
and regulations promulgated thereunder concerning the employees of the Company
or any of the Subsidiaries;
(aa) each
of the Company and the Subsidiaries and their respective properties, assets and
operations is in compliance with, and each of the Company and the Subsidiaries
holds all permits, authorizations and approvals required under, Environmental
Laws (as hereinafter defined), except to the extent that failure to so comply or
to hold such permits, authorizations or approvals would not, individually or in
the aggregate, have a Material Adverse Effect; there are no past, present or, to
the Company’s knowledge, reasonably anticipated future events, conditions,
circumstances, actions, omissions or plans that could reasonably be expected to
give rise to any material costs or liabilities to the Company or any Subsidiary
under, or to materially interfere with or prevent compliance by the Company or
any Subsidiary with, Environmental Laws; except as would not, individually or in
the aggregate, have a Material Adverse Effect, neither the Company nor any of
the Subsidiaries (i) has received any notice that it is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party to or
affected by any pending or, to the Company’s knowledge, threatened action, suit
or proceeding, (iv) is bound by any judgment, decree or order or (v) has entered
into any written indemnification or settlement agreement, in each case relating
to any alleged violation of any Environmental Law or any actual or alleged
release or threatened release or cleanup at any location of any Hazardous
Materials (as hereinafter defined) (as used herein, “Environmental Law”
means any applicable federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement or common law (including any
applicable regulations and standards adopted by the International Maritime
Organization) relating to health, safety or the protection, cleanup or
restoration of the environment or natural resources, and “Hazardous Materials”
means any material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that in relevant form and concentration
is regulated by or may give rise to liability under any Environmental
Law);
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(bb) the
Subsidiaries have arranged for the technical manager of the Vessels (the “Technical Manager”)
to conduct a periodic review of the effect of the Environmental Laws on their
respective businesses, operations and properties for the purposes of identifying
and evaluating associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for cleanup or compliance with
the Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties);
(cc) all
income and other material tax returns required to be filed by the Company or any
of the Subsidiaries have been filed, and all taxes and other material
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been timely paid, other
than those being contested in good faith and for which adequate reserves have
been provided;
(dd) the Company and the Subsidiaries
maintain or have caused the Technical Manager to maintain for its or their
benefit, insurance or a membership in a mutual protection and indemnity
association covering its properties, operations, personnel and businesses as
deemed adequate by the Company; such insurance or membership insures or will
insure against such losses and risks to an extent which is adequate in
accordance with customary industry practice to protect the Vessels and, in the
case of insurance or a membership maintained by or for the benefit of the
Company and the Subsidiaries, their businesses; any such insurance or membership
maintained by or for the benefit of the Company and its Subsidiaries is and will
be fully in force at the time of purchase and, if applicable, any
additional time of purchase; there
are no material claims by the Company or any Subsidiary under any insurance
policy or instrument as to which any insurance company or mutual protection and
indemnity association is denying liability or defending under a reservation of
rights clause; neither the Company nor any of the Subsidiaries is currently
required to make any material payment, or
is aware of any facts that would require the Company or any Subsidiary to make
any material payment, in respect of a call by, or a contribution
to, any mutual protection and indemnity association; and neither the Company nor
any Subsidiary has reason to believe that it will not be able to renew or cause
to be renewed for its benefit any such insurance or membership in a mutual
protection and indemnity association as and when such insurance or membership
expires or is
terminated;
(ee) since the date of the last audited
Company Financial Statements included in the Registration Statement, the
Pricing Prospectus and the Prospectus, (i) there has not been a
material partial loss or total loss of or to any of the Vessels, whether actual
or constructive, (ii) no Vessel has been arrested or requisitioned for title or
hire and (iii) neither
the Company nor any of the Subsidiaries has sustained any material loss or
interference with its respective business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree;
(ff) none
of the contracts or agreements filed as an exhibit to the Registration Statement
has been terminated, amended, modified, supplemented or waived; neither the Company nor any Subsidiary
has sent or received any communication regarding the termination, amendment,
modification, supplementation or waiver of, or an intention to terminate, amend,
modify, supplement or waive, or not to consummate any transaction contemplated
by, any such contract or agreement; and no such termination, amendment,
modification, supplementation or waiver, or intention to terminate, amend, modify, supplement
or waive, or not to consummate any transaction contemplated by, any such contract or agreement
has been threatened by the Company
or any Subsidiary or, to the Company’s knowledge, any other party to any such
contract or agreement;
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(gg) the
Company and each of the Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(hh) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the 1934
Act); such disclosure controls and procedures are designed to ensure that
material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s Chief Executive Officer and its
Chief Financial Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for which they
were established; the Company’s auditors and Board of Directors of the Company
have been advised of: (i) any significant deficiencies and material weaknesses
in the design or operation of internal controls which are reasonably likely to
adversely affect the Company’s ability to record, process, summarize, and report
financial data; and (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal
controls; to date, the Company’s auditors have not identified any material
weaknesses in internal controls; since the date of the most recent evaluation of
such disclosure controls and procedures, there have been no changes in internal
controls or in other factors within control of the Company that have materially
affected, or are reasonably likely to materially affect, the Company’s internal
controls; and the Company, the Subsidiaries and their respective officers and
directors, in their capacities as such, are each in compliance in all material
respects with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated thereunder that are applicable to the Company, the
Subsidiaries or such officers and directors, including Section 402 related to
loans and Sections 302 and 906 related to certifications;
(ii) the
Company has not, directly or indirectly, including through any Subsidiary,
extended credit, arranged to extend credit, or renewed any extension of credit,
in the form of a personal loan, to or for any director or executive officer of
the Company, or to or for any family member or affiliate of any director or
executive officer of the Company;
(jj) each
“forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the 0000 Xxx) contained in the Registration Statement, the
Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus has
been made with a reasonable basis and has been disclosed in good
faith;
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(kk) all
statistical or market-related data included in the Registration Statement, the
Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus are
based on or derived from sources that the Company believes to be reliable and
accurate, and the Company has obtained the written consent to the use of such
data from such sources to the extent required;
(ll) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder (the “Foreign Corrupt Practices
Act”), including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of
anything of value to any “foreign official” (as such term is defined in the
Foreign Corrupt Practices Act) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the
Foreign Corrupt Practices Act; and the Company, the Subsidiaries and, to the
Company’s knowledge, the affiliates of the Company have conducted their
businesses in compliance with the Foreign Corrupt Practices Act and have
instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance
therewith;
(mm) the
operations of the Company, the Subsidiaries and the Vessels are and have been
conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes, rules and regulations of all
jurisdictions and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency that, in each case,
are applicable to the Company, any of the Subsidiaries and any of the Vessels
(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 or non-governmental
authority involving the Company, any of the Subsidiaries or any of the Vessels
with respect to the Money Laundering Laws is pending or, to the Company’s
knowledge, threatened;
(nn) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is currently subject to any United States sanctions administered by
the Office of Foreign Assets Control of the United States Treasury Department
(“OFAC”);
(oo) no
Subsidiary 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 the Registration Statement, the Pricing
Prospectus and the Prospectus; all dividends and other distributions declared
and payable on the shares of Common Stock of the Company and on the capital
stock of each Subsidiary may under the current laws and regulations of the
Xxxxxxxx Islands be paid in United States dollars and freely transferred out of
the Xxxxxxxx Islands; and all such dividends and other distributions are not
subject to withholding or other taxes under the current laws and regulations of
the Xxxxxxxx Islands and are otherwise free and clear of any withholding or
other tax and may be declared and paid without the necessity of obtaining any
consents, approvals, authorizations, orders licenses, registrations, clearances
and qualifications of or with any court or governmental agency or body or any
stock exchange authorities in the Xxxxxxxx Islands;
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(pp) except
pursuant to this Agreement, neither the Company nor any of the Subsidiaries has
incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby or by the Registration Statement, the
Pricing Prospectus and the Prospectus;
(qq) neither
the Company nor any of the Subsidiaries nor, to the Company’s knowledge, any of
their respective directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has constituted or
might reasonably be expected to cause or result in, under the 1934 Act or
otherwise, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(rr) to
the Company’s knowledge, there are no affiliations or associations between (i)
any member of FINRA and (ii) the Company or any of the Company’s officers,
directors or 5% or greater securityholders or any beneficial owner of the
Company’s unregistered equity securities that were acquired at any time on or
after the 180th day immediately preceding the date the Registration Statement
was initially filed with the Commission, except as set forth in the Registration
Statement, the Pricing Prospectus and the Prospectus; and
(ss) The
Registration Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject
of a pending proceeding under Section 8A of the 1933 Act in connection with the
offering of the Shares.
In addition, any certificate signed by
any officer of the Company and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Shares shall be deemed to be
a representation and warranty by the Company, as to matters covered thereby, to
the Underwriters.
4. Certain Covenants of the
Company. The Company hereby agrees:
(a) to
furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky
laws of such states or other jurisdictions as the Underwriters may reasonably
designate and to maintain such qualifications in effect so long as may be
required for the distribution of the Shares; provided, however, that the
Company shall not be required to qualify as a foreign corporation or subject
itself to taxation in any such jurisdiction or consent to the service of process
under the laws of any such jurisdiction (except service of process with respect
to the offering and sale of the Shares); and to promptly advise the Underwriters
of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for offer or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
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(b) to
make available to the Underwriters in New York City, as soon as practicable
after the date of this Agreement, and thereafter from time to time to furnish to
the Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments or
supplements thereto after the date of this Agreement) as the Underwriters may
request for the purposes contemplated by the Act; in case the Underwriters are
required to deliver (whether physically or through compliance with Rule 172
under the Act or any similar rule), in connection with the sale of the Shares, a
prospectus after the nine-month period referred to in Section 10(a)(3) of the
Act, the Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the Prospectus as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of
the Act;
(c) if,
at the time this Agreement is executed and delivered, it is necessary for any
post-effective amendment to the Registration Statement or a Rule 462(b)
Registration Statement to be filed with the Commissions and become effective
before the Shares may be sold, the Company will use its best efforts to cause
such post-effective amendment or such Rule 462(b) Registration Statement to be
filed and become effective, and will pay any fees in accordance with the Act as
soon as possible, and the Company will advise the Underwriters promptly and, if
requested by the Underwriters, will confirm such advice in writing, (i) when
such post-effective amendment or such Rule 462(b) Registration Statement has
become effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when
the Prospectus is filed with the Commission pursuant to Rule 424(b) under the
Act; the Company will effect the filings required under Rule 424(b), in the
manner and within the time period required by Rule 424(b) (without reliance on
Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus;
(d) to
advise the Underwriters promptly, and, if requested by the Underwriters, to
confirm such advice in writing, of any request by the Commission for amendments
or supplements to the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order, suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus and, if the Commission should
enter a stop order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus, the Prospectus
or any Issuer Free Writing Prospectus, to use its best efforts to obtain the
lifting or removal of such order as soon as possible; to advise the Underwriters
promptly of any proposal to amend or supplement the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and
to provide the Underwriters and their counsel copies of any such documents for
review and comment a reasonable amount of time prior to any proposed filing and
to file no such amendment or supplement to which the Underwriters shall
reasonably object in writing;
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(e) subject
to Section 4(d) hereof, to file promptly all reports and documents and any
information statement required to be filed by the Company with the Commission in
order to comply with the 1934 Act for so long as the delivery of a prospectus is
required by the Act (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares; and,
during such period, to provide the Underwriters, for their review and comment,
with a copy of such reports and statements and other documents to be filed by
the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such
period a reasonable amount of time prior to any proposed filing, and to file no
such report, statement or document to which the Underwriters shall reasonably
object in writing; and to promptly notify the Underwriters of such
filing;
(f) to
advise the Underwriters promptly of the happening of any event known to the
Company within the period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, which event could
require the making of any change in the Prospectus then being used so that the
Prospectus would not include an 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 are made, not misleading, and,
during such time, subject to Section 4(d) hereof, to prepare and furnish, at the
Company’s expense, to the Underwriters promptly such amendments or supplements
to such Prospectus as may be necessary to reflect any such change;
(g) to
furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including a consolidated balance sheet and statements of
income, stockholders’ equity and cash flow of the Company and the Subsidiaries
for such fiscal year, accompanied by a copy of the certificate or report thereon
of nationally recognized independent certified public accountants duly
registered with the Public Company Oversight Accounting Board);
(h) to
furnish to the Underwriters one copy of the Registration Statement, as initially
filed with the Commission, and of all amendments thereto, including, if
requested, all exhibits thereto;
(i) to
furnish to the Underwriters promptly for a period of three years from the date
of this Agreement (i) copies of any reports, proxy statements, or other
communications which the Company shall send to its stockholders, (ii) copies of
all annual, quarterly and current reports filed with or furnished to the
Commission on Forms 20-F or 6-K, or such other similar forms as may be
designated by the Commission and (iii) copies of documents or reports filed with
any national securities exchange on which any class of securities of the Company
is listed; provided, however, that any
information or documents filed with or furnished to the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval System shall be considered
furnished for the purposes of this Section 4(i);
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(j) for
a period of 90 days after the date hereof (the “Lock-Up Period”),
without the prior written consent of the Representatives, not to (i) sell, offer
to sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the 1934 Act and
the rules and regulations of the Commission promulgated thereunder, with respect
to, any Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar to
Common Stock, (ii) file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock, (iii)
enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock or any such securities,
whether any such transaction is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (iv) publicly announce an
intention to effect any transaction specified in clause (i), (ii) or (iii),
except, in each case, for (A) the registration of the Shares and the sales to
the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon
the exercise of options or warrants disclosed as outstanding in the Registration
Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of
employee stock options not exercisable during the Lock-Up Period pursuant to
stock option plans described in the Registration Statement, the Pricing
Prospectus and the Prospectus; provided, however, that if (a)
during the period that begins on the date that is fifteen (15) calendar days
plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (b) prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Section
4(j) shall continue to apply until the expiration of the date that is fifteen
(15) calendar days plus three (3) business days after the date on which the
issuance of the earnings release or the material news or material event
occurs;
(k) prior
to the time of purchase, to issue no press release or other communication
directly or indirectly and hold no press conferences with respect to the Company
or any Subsidiary, the financial condition, results of operations, business,
properties, assets, or liabilities of the Company or any Subsidiary or the
offering of the Shares, without the Underwriters’ prior consent;
(l) not,
at any time at or after the execution of this Agreement, to directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act) or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, other than the Registration
Statement and the then most recent Prospectus;
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(m) not
to, and to cause its Subsidiaries not to, take, directly or indirectly, any
action designed, or which has constituted or might reasonably be expected to
cause or result in, under the 1934 Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares;
(n) to use its reasonable best efforts either
(i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to
maintain the listing of, the Shares on any other national securities exchange
registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the
quotation, and to maintain the quotation of, the Shares in an automated
interdealer quotation system of a national securities association registered
pursuant to Section 15A(a) of the 1934 Act;
(o) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock; and
(p) to
apply the net proceeds received by it from the sale of the Shares in the manner
described in the Prospectus under “Use of Proceeds”.
5. Covenant to Pay
Costs. The Company agrees to pay all costs, expenses, fees and
taxes in connection with (i) the preparation and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the registration, issue, sale
and delivery of the Shares including any stock or transfer taxes and stamp or
similar duties payable upon the sale, issuance or delivery of the Shares to the
Underwriters, (iii) the qualification of the Shares for offering and sale
under state or foreign laws and the determination of their eligibility for
investment under state or foreign law (including the legal fees and filing fees
and other disbursements of counsel for the Underwriters incurred in connection
with such qualifications and determinations) and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (iv) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on the NYSE and any registration
thereof under the 1934 Act, (v) any filing for review of the public offering of
the Shares by FINRA, including the legal fees and filing fees and other
disbursements of counsel to the Underwriters relating to FINRA matters,
(vi) the fees and disbursements of any transfer agent or registrar for the
Shares, (vii) unless otherwise agreed in writing, the costs and expenses of
the Company relating to presentations or meetings undertaken in connection with
the marketing of the offering and sale of the Shares to prospective investors
and the Underwriters’ sales forces, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations, travel, lodging and other expenses incurred by the officers of
the Company and any such consultants, and the cost of any aircraft chartered in
connection with any road show and (ix) the performance of the Company’s
other obligations hereunder.
6. Reimbursement of
Underwriters’ Expenses. If the Shares are not delivered for
any reason, the Company agrees that it shall, in addition to paying the amounts
described in Section 5 hereof, reimburse the Underwriters for all of their
properly documented out-of-pocket expenses, including the reasonable fees and
disbursements of their counsel.
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7. Conditions of Underwriters’
Obligations. The obligations of the Underwriters hereunder are
subject to the accuracy of the representations and warranties on the part of the
Company on the date hereof and at the time of purchase and, if applicable, any
additional time of purchase, the performance by the Company of each of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) The
Company shall furnish to the Underwriters at the time of purchase and, if
applicable, any additional time of purchase an opinion of Cravath, Swaine &
Xxxxx LLP, special United States counsel for the Company, addressed to the
Underwriters and dated the time of purchase or the additional time of purchase,
as the case may be, substantially in the form set forth in Exhibit B
hereto.
(b) The
Company shall furnish to the Underwriters at the time of purchase and, if
applicable, any additional time of purchase a negative assurance letter of
Cravath, Swaine & Xxxxx LLP, special United States counsel for the Company,
addressed to the Underwriters and dated the time of purchase or the additional
time of purchase, as the case may be, substantially in the form set forth in
Exhibit C
hereto.
(c) The
Company shall furnish to the Underwriters at the time of purchase and, if
applicable, any additional time of purchase an opinion of Cravath, Swaine &
Xxxxx LLP, special United States counsel for the Company, as to certain tax
matters, addressed to the Underwriters and dated the time of purchase or the
additional time of purchase, as the case may be, substantially in the form set
forth in Exhibit
D hereto.
(d) The
Company shall furnish to the Underwriters at the time of purchase and, if
applicable, any additional time of purchase an opinion of Xxxxxx & Xxxxxxx,
P.C., Xxxxxxxx Islands counsel for the Company, addressed to the Underwriters
and dated the time of purchase or the additional time of purchase, as the case
may be, substantially in the form set forth in Exhibit E
hereto.
(e) The
Underwriters shall have received from Ernst & Young LLP letters dated,
respectively, the date of this Agreement, the time of purchase and, if
applicable, any additional time of purchase and addressed to the Underwriters,
in the forms heretofore approved by the Representatives.
(f) The
Underwriters shall have received at the time of purchase and, if applicable, any
additional time of purchase the favorable opinion and negative assurance letter
of ___________, counsel for the Underwriters, dated the time of purchase or the
additional time of purchase, as the case may be, in form and substance
satisfactory to the Representatives.
(g) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which the Underwriters reasonably object in
writing.
(h) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act at or before 5:30 P.M., New York City time, on the second full
business day after the date of this Agreement and any Rule 462(b) Registration
Statement required by the Act in connection with the offer and sale of the
Shares shall have been filed and become effective no later than 10:00 P.M., New
York City time, on the date of this Agreement.
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(i) Prior
to and at the time of purchase and, if applicable, any additional time of
purchase, (i) no stop order of the Commission preventing or suspending the
use of any Preliminary Prospectus or Issuer Free Writing Prospectus, or the
effectiveness of the Registration Statement, shall have been issued, and no
proceedings for such purpose shall have been instituted; (ii) the
Registration Statement and all amendments thereto shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
(iii) the Pricing Prospectus and all supplements and amendments thereto,
when read together with the then issued Issuer Free Writing Prospectuses, if
any, and the information included on Schedule C hereto,
shall not include an 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; (iv) the
Prospectus and all supplements and amendments thereto shall not include an
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; and (v) the Issuer Free Writing
Prospectuses, if any, when read together with the Pricing Prospectus and the
information included on Schedule C hereto,
shall not include an 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.
(j) Between
the time of execution of this Agreement and the time of purchase or additional
time of purchase, if applicable, (i) there shall not have occurred or
become known any material adverse change, or any development involving a
prospective material adverse change, in the business, properties, financial
condition, results of operations or prospects of the Company and the
Subsidiaries taken as a whole and (ii) no transaction which is material and
adverse to the Company and the Subsidiaries taken as a whole shall have been
entered into by the Company or any of the Subsidiaries.
(k) The
Company will, at the time of purchase and, if applicable, any additional time of
purchase, deliver to the Underwriters a certificate of its Chief Executive
Officer and its Chief Financial Officer, dated the time of purchase or the
additional time of purchase, as the case may be, in the form attached as Exhibit F
hereto.
(l) The
Representatives shall have received each of the signed Lock-Up Agreements
referred to in Section 3(u) hereof, and each such Lock-Up Agreement shall be in
full force and effect at the time of purchase.
(m) The
Company shall have furnished to the Underwriters such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement, the Pricing Prospectus, the Prospectus and any Issuer
Free Writing Prospectus as of the time of purchase and, if applicable, any
additional time of purchase as the Underwriters may reasonably
request.
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(n) The
Shares shall be listed and admitted and authorized for trading on the
NYSE.
(o) FINRA
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
(p) Each
Vessel shall be owned directly by a Subsidiary free and clear of all liens,
claims, security interests or other encumbrances, except such as are described
in the Registration Statement, the Pricing Prospectus and the Prospectus and
such as are not material and do not interfere with the intended use to be made
of such Vessel as described in the Registration Statement, the Pricing
Prospectus and the Prospectus.
8. Effective Date of Agreement;
Termination. This Agreement shall become effective when the
parties hereto have executed and delivered this Agreement. The obligations of
the Underwriters hereunder shall be subject to termination in the absolute
discretion of the Representatives if (x) since the time of execution of this
Agreement or the earlier respective dates as of which information is given in
the Registration Statement, the Pricing Prospectus, the Prospectus and any
Permitted Free Writing Prospectus, there has been any material adverse change or
any development involving a prospective material adverse change in the business,
properties, management, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole which would, in the judgment of
the Representatives, make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Pricing Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, (in each case
excluding any amendments or supplements thereto made after the execution of this
Agreement) or (y) since the time of execution of this Agreement, there shall
have occurred: (i) a suspension or material limitation in trading in securities
generally on the NYSE or NASDAQ; (ii) a suspension or material limitation in
trading in the Company’s securities on the NYSE; (iii) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war (it being
understood that, with respect to matters relating to the current conflicts in
Afghanistan and Iraq occurring within Afghanistan and Iraq, respectively, this
clause (iv) shall apply only to an escalation of hostilities or a declaration by
the United States of a national emergency or a war which has not heretofore been
declared); or (v) any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Pricing Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, (in each case
excluding any amendments or supplements thereto made after the execution of this
Agreement) or (z) since the time of execution of this Agreement, there shall
have occurred any downgrading, or any notice or announcement shall have been
given or made of (i) any intended or potential downgrading or (ii) any watch,
review or possible change that does not indicate an affirmation or improvement
in the rating accorded any securities of or guaranteed by the Company or any
Subsidiary by any “nationally recognized statistical rating organization,” as
that term is defined in Rule 436(g)(2) under the Act.
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If the Representatives elect to
terminate this Agreement as provided in this Section 8, the Company shall be
notified promptly in writing. If the sale to the Underwriters of the Shares, as
contemplated by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement, or if such sale is not carried out
because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5, 6 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
9. Increase in Underwriters’
Commitments. Subject to Sections 7 and 8 hereof, if any
Underwriter (the “Defaulting
Underwriter”) shall default in its obligation to take up and pay for the
Shares to be purchased by it hereunder and if the aggregate number of Shares
which the Defaulting Underwriter shall have agreed but failed to take up and pay
for does not exceed 10% of the total number of Shares, each non-defaulting
Underwriter (each, a “Non-Defaulting
Underwriter” and collectively, the “Non-Defaulting
Underwriters”) shall take up and pay for (in addition to the aggregate
number of Shares such Non-Defaulting Underwriter is obligated to purchase
pursuant to Section 1 hereof) such Non-Defaulting Underwriter’s pro rata share
(based on the number of Shares that such Non-Defaulting Underwriter agreed to
purchase pursuant to Section 1 hereof) of the Shares agreed but failed to be
taken up and paid for by the Defaulting Underwriter.
Without relieving the Defaulting
Underwriter from its obligations hereunder, the Company agrees with the
Non-Defaulting Underwriters that it will not sell any Shares hereunder unless
all of the Shares are purchased by the Non-Defaulting Underwriters (or by
substituted Underwriters selected by the Non-Defaulting Underwriters with the
approval of the Company or selected by the Company with the approval of the
Non-Defaulting Underwriters).
If a new Underwriter or Underwriters
are substituted by the Non-Defaulting Underwriters for the Defaulting
Underwriter in accordance with the foregoing provision, the Non-Defaulting
Underwriters or the Company shall have the right to postpone the time of
purchase for a period not exceeding five business days in order that any
necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term “Underwriter” as used in this
Agreement shall refer to and include any underwriter substituted under this
Section 9 with like effect as if such substituted underwriter had originally
been named as an Underwriter in Schedule A
hereto.
If the aggregate number of Shares which
the Defaulting Underwriter agreed to purchase but failed to take up and pay for
exceeds 10% of the total number of Shares which the Underwriters agreed to
purchase hereunder, and if neither the Non-Defaulting Underwriters nor the
Company shall make arrangements within the five business day period stated above
for the purchase of all the Shares which the Defaulting Underwriter agreed to
purchase hereunder but failed to take up and pay for, this Agreement shall
terminate without further act or deed and without any liability on the part of
the Company to the Non-Defaulting Underwriters and without any liability on the
part of any Non-Defaulting Underwriter to the Company. Nothing in
this paragraph, and no action taken hereunder, shall in any way relieve the
Defaulting Underwriter from any liability in respect of any default of such
Defaulting Underwriter under this Agreement.
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10. Indemnity and
Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls such Underwriter
within the meaning of Section 15 of the Act or Section 20 of the 1934 Act, and
the successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Underwriters or any such person
may incur under the Act, the 1934 Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or arises out of
or is based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in, and in conformity with information concerning
the Underwriters furnished in writing by or on behalf of the Underwriters to the
Company expressly for use in, the Registration Statement or arises out of or is
based upon any omission or alleged omission to state a material fact in the
Registration Statement in connection with such information, which material fact
was not contained in such information and which material fact was required to be
stated in such Registration Statement or was necessary to make such information
not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for the purpose of
this Section 10 being deemed to include any Preliminary Prospectus, the
Prospectus and any amendments or supplements to the foregoing), in any Issuer
Free Writing Prospectus, in any “issuer information” (as defined in Rule 433
under the Act) of the Company, which “issuer information” is required to be, or
is, filed with the Commission, or in any Prospectus together with any
combination of one or more Issuer Free Writing Prospectuses, if any, or arises
out of or is based upon any omission or alleged omission to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except, with respect
to such Prospectus or Issuer Free Writing Prospectus, insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by
or on behalf of such Underwriter to the Company expressly for use in, such
Prospectus or Issuer Free Writing Prospectus or arises out of or is based upon
any omission or alleged omission to state a material fact in such Prospectus or
Issuer Free Writing Prospectus in connection with such information, which
material fact was not contained in such information and which material fact was
necessary in order to make the statements in such information, in the light of
the circumstances under which they were made, not misleading.
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(b) Each
Underwriter agrees to indemnify, defend and hold harmless the Company, its
directors and officers and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the 1934 Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person may
incur under the Act, the 1934 Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in,
and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter to the Company expressly for use in,
the Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company), or arises out of or is based
upon any omission or alleged omission to state a material fact in such
Registration Statement in connection with such information, which material fact
was not contained in such information and which material fact was required to be
stated in such Registration Statement or was necessary to make such information
not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter to the
Company expressly for use in, a Prospectus or any Issuer Free Writing
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in such Prospectus or Issuer Free Writing Prospectus in
connection with such information, which material fact was not contained in such
information and which material fact was necessary in order to make the
statements in such information, in the light of the circumstances under which
they were made, not misleading.
(c) If
any action, suit or proceeding (each, a “Proceeding”) is
brought against a person (an “indemnified party”)
in respect of which indemnity may be sought against the Company or the
Underwriters (as applicable, the “indemnifying party”)
pursuant to subsection (a) or (b) of this Section 10, such indemnified party
shall promptly notify such indemnifying party in writing of the institution of
such Proceeding and such indemnifying party shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however, that the
omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have to
any indemnified party or otherwise. The indemnified party or parties
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have
been authorized in writing by the indemnifying party in connection with the
defense of such Proceeding or the indemnifying party shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded, based on the advice of counsel, that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to such indemnifying party (in which case such indemnifying
party shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by such indemnifying party and paid as incurred (it
being understood, however, that such indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any
settlement of any Proceeding effected without its written consent but, if
settled with its written consent, such indemnifying party agrees to indemnify
and hold harmless the indemnified party or parties from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this Section 10(c), then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault or culpability or a
failure to act by or on behalf of such indemnified party.
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(d) If
the indemnification provided for in this Section 10 is unavailable to an
indemnified party under subsections (a) or (b) of this Section 10 or
insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above 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, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriters, bear to the aggregate
public offering price of the Shares. The relative fault of the
Company on the one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission relates to
information supplied by the Company or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, damages, expenses, liabilities and claims
referred to in this subsection shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
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(e) The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 10 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in subsection (d) above. Notwithstanding
the provisions of this Section 10, (i) the Underwriters shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by the Underwriters and distributed to the public were
offered to the public exceeds the amount of any damage which the Underwriters
have otherwise been required to pay by reason of such untrue statement or
alleged untrue statement or omission or alleged omission and (ii) the Company
shall not be required to contribute any amount in excess of the product of (x)
the aggregate number of Shares sold by the Company hereunder and (y) the
purchase price per Share set forth in Section 1 hereof. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(f) The
indemnity and contribution agreements contained in this Section 10 and the
covenants, warranties and representations of the Company contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the Underwriters, their partners, directors or officers
or any person (including each partner, officer or director of such person) who
controls the Underwriters within the meaning of Section 15 of the Act or Section
20 of the 1934 Act, or by or on behalf of the Company, their respective
directors or officers or any person who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the 1934 Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares
pursuant hereto. The Company and the Underwriters agree promptly to notify each
other of the commencement of any Proceeding against it and, in the case of the
Company, against any of their officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus.
11. Information Furnished by the
Underwriters. The statements set forth in the Prospectus under
“Underwriting” in the ___________ paragraph under the subheading ___________
constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Section 3 and Section 10 hereof.
12. Notices. Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to ___________ and, if
to the Company, shall be sufficient in all respects if delivered or sent to the
Company at the offices of the Company at 00 Xxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0
0XX, Attention: Chief Executive Officer, with a copy to Cravath, Swaine &
Xxxxx LLP, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxx X. Xxxxxx.
00. Governing Law;
Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating
to this Agreement (“Claim”), directly or
indirectly, shall be governed by, and construed in accordance with, the laws of
the State of New York. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of this
Agreement.
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14. Submission to
Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company consents to personal jurisdiction, service and
venue in any court in which any Claim arising out of or in any way relating to
this Agreement is brought by any third party against any Underwriter or any
indemnified party. The Underwriters and the Company (on its behalf
and, to the extent permitted by applicable law, on behalf of its stockholders
and affiliates) each waive all right to trial by jury in any action, proceeding
or counterclaim (whether based upon contract, tort or otherwise) in any way
arising out of or relating to this Agreement. The Company agrees that
a final judgment in any such action, proceeding or counterclaim brought in any
such court shall be conclusive and binding upon the Company and may be enforced
in any other courts to the jurisdiction of which the Company is or may be
subject, by suit upon such judgment. The Company hereby appoints,
without power of revocation, CT
Corporation, located at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, as
its agent to accept and acknowledge on its behalf of any and all process which
may be served in any action, proceeding or counterclaim in any way relating to
or arising out of this Agreement.
15. Parties at
Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriters and the Company and to the extent
provided in Section 10 hereof the controlling persons, partners, directors and
officers referred to in such Section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from the Underwriters) shall acquire or have any right under or
by virtue of this Agreement.
16. Counterparts. This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
17. Successors and
Assigns. This Agreement shall be binding upon the Underwriters
and the Company and their successors and assigns and any successor or assign of
any substantial portion of the Company’s or any of the Underwriters’ respective
businesses and/or assets.
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18. No Fiduciary
Relationship. The Company hereby acknowledges that the Underwriters are
acting solely as the underwriters in connection with the purchase and sale of
the Company’s securities. The Company further acknowledges that the Underwriters
are acting pursuant to a contractual relationship created solely by this
Agreement entered into on an arm’s length basis and in no event do the parties
intend that the Underwriters act or be responsible as a fiduciary to the
Company, its management, stockholders or creditors or any other person in
connection with any activity that the Underwriters may undertake or have
undertaken in furtherance of the purchase and sale of the Company’s securities
either before or after the date hereof. The Underwriters hereby expressly
disclaim any fiduciary or similar obligations to the Company, either in
connection with the transactions contemplated by this Agreement or any matters
leading up to such transactions, and the Company hereby confirms its
understanding and agreement to that effect. The Company and the Underwriters
agree that they are each responsible for making their own independent judgments
with respect to any such transactions, and that any opinions or views expressed
by the Underwriters to the Company regarding such transactions, including but
not limited to any opinions or views with respect to the price or market for the
Company’s securities, do not constitute advice or recommendations to the
Company. The Company hereby waives and releases, to the fullest extent permitted
by law, any claims that the Company may have against the Underwriters with
respect to any breach or alleged breach of any fiduciary or similar duty to the
Company in connection with the transactions contemplated by this Agreement or
any matters leading up to such transactions.
[The Remainder of This Page
Intentionally Left Blank; Signature Pages Follow]
- 29
-
If the foregoing correctly sets forth
the understanding among the Company and the Underwriters, please so indicate in
the space provided below for that purpose, whereupon this Agreement and the
Underwriter’s acceptance shall constitute a binding agreement among the Company
and the Underwriters.
Very truly
yours,
By: ______________________________
Name:
Title:
Accepted
and agreed as of the date
first written above, on behalf of
themselves and the other
Underwriters named in Schedule A:
first written above, on behalf of
themselves and the other
Underwriters named in Schedule A:
By:
__________________________
By:
__________________________
Name:
Title:
SCHEDULE
A
LIST OF
UNDERWRITERS
|
Name
of Underwriter
|
Number
of shares of
common
stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
..........................................................................................
|
|
SCHEDULE
B
PERMITTED
FREE WRITING PROSPECTUSES
[•]
SCHEDULE
C
CERTAIN
INFORMATION
[•]
SCHEDULE
D
SUBSIDIARIES
AND VESSELS
|
Subsidiary
|
Vessel Owned
|
|
|
Xxx
Tanker Corporation
|
Overseas
Xxx
|
|
|
Xxxxx
Tanker Corporation
|
Overseas
Xxxxx
|
|
|
Regal
Unity Tanker Corporation
|
Overseas
Regal
|
|
|
Xxxxx
Tanker Corporation
|
Overseas
Xxxxx
|
|
|
Sophie
Tanker Corporation
|
Overseas
Sophie
|
|
|
Xxxxxxx
Tanker Corporation
|
Overseas
Xxxxxxx
|
|
|
Ania
Aframax Corporation
|
Overseas Ania
|
|
|
London
Tanker Corporation
|
Overseas
London
|
|
|
Newcastle
Tanker Corporation
|
Overseas
Newcastle
|
|
SCHEDULE
E
PERSONS
REQUIRED TO DELIVER LOCK-UP AGREEMENTS
|
1.
|
Xxxx
X. Xxxx
|
|
2.
|
Xxxxxx
Day
|
|
3.
|
Xxxx
X. Wikborg
|
|
4.
|
Ole
Xxxxx Xxxxxx
|
|
5.
|
Eirik
Ubøe
|
|
6.
|
Xxx
Kjeldsberg
|
EXHIBIT
A
LOCK-UP
AGREEMENT
___________,
2008
___________
___________
___________
Ladies
and Gentlemen:
This Lock-Up Agreement is being
delivered to you in connection with the proposed Purchase Agreement (the
“Purchase
Agreement”) to be entered into among DHT Maritime, Inc. a Xxxxxxxx
Islands corporation (the “Company”), and you,
as representatives (the “Representatives”) of the underwriters named in Schedule
A to the Purchase Agreement (the “Underwriters”), with respect to the public
offering (the “Offering”) of common
stock, par value $0.01 per share, of the Company (the “Common
Stock”).
In order to induce you to enter into
the Purchase Agreement, the undersigned agrees that, for a period (the “Lock-Up Period”)
beginning on the date hereof and ending on, and including, the date that is 90
days after the date of the final prospectus relating to the Offering, the
undersigned will not, without the prior written consent of the Representatives,
(i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of or agree to dispose of, directly
or indirectly, or file (or participate in the filing of) a registration
statement with the Securities and Exchange Commission (the “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, and the rules and regulations of
the Commission promulgated thereunder (the “Exchange Act”) with
respect to, any Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock or any such securities, (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock or any such securities, whether any such transaction is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise or (iii)
publicly announce an intention to effect any transaction specified in clause (i)
or (ii). The foregoing sentence shall not apply to (a) the registration of or
sale to the Underwriters (as defined in the Purchase Agreement) of any Common
Stock pursuant to the Offering and the Purchase Agreement, (b) bona fide gifts,
provided the recipient thereof agrees in writing with the Underwriters to be
bound by the terms of this Lock-Up Agreement or (c) dispositions to any trust
for the direct or indirect benefit of the undersigned and/or the immediate
family of the undersigned, provided that such trust agrees in writing with the
Underwriters to be bound by the terms of this Lock-Up Agreement. For
purposes of this paragraph, “immediate family” shall mean the undersigned and
the spouse, any lineal descendent, father, mother, brother or sister of the
undersigned.
In addition, the undersigned hereby
waives any rights the undersigned may have to require registration of Common
Stock in connection with the filing of a registration statement relating to the
Offering. The undersigned further agrees that, for the Lock-Up
Period, the undersigned will not, without the prior written consent of the
Representatives, make any demand for, or exercise any right with respect to, the
registration of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock or any such securities.
Notwithstanding the above, if (a)
during the period that begins on the date that is fifteen (15) calendar days
plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (b) prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Lock-Up
Agreement shall continue to apply until the expiration of the date that is
fifteen (15) calendar days plus three (3) business days after the date on which
the issuance of the earnings release or the material news or material event
occurs.
In addition, the undersigned hereby
waives any and all preemptive rights, participation rights, resale rights,
rights of first refusal and similar rights that the undersigned may have in
connection with the Offering or with any issuance or sale by the Company of any
equity or other securities before the Offering, except for any such rights as
have been heretofore duly exercised.
The undersigned hereby confirms that
the undersigned has not, directly or indirectly, taken, and hereby covenants
that the undersigned will not, directly or indirectly, take, any action
designed, or which has constituted or will constitute or might reasonably be
expected to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of shares of Common Stock.
If for any reason the Purchase
Agreement shall be terminated prior to the “time of purchase” (as defined in the
Underwriting Agreement), this Lock-Up Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder.
| Yours very truly, | ||
|
______________________________________
|
||
| Name: |
EXHIBIT
B
OPINION
OF CRAVATH, SWAINE & XXXXX LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
C
NEGATIVE
ASSURANCE LETTER OF CRAVATH, SWAINE & XXXXX LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
D
TAX
OPINION OF CRAVATH, SWAINE & XXXXX LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
E
OPINION
OF XXXXXX & XXXXXXX P.C.
XXXXXXXX
ISLANDS COUNSEL TO THE COMPANY
EXHIBIT
F
OFFICERS’
CERTIFICATE
