CONTROLLED EQUITY OFFERINGSM SALES AGREEMENT
Exhibit
1.1
EXECUTION
VERSION
CONTROLLED
EQUITY OFFERINGSM
June 19,
2008
Cantor
Xxxxxxxxxx & Co.
000 Xxxx
00xx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
OceanFreight
Inc., a corporation incorporated under the laws of the Republic of the Xxxxxxxx
Islands (the “Company”), confirms
its agreement (this “Agreement”) with
Cantor Xxxxxxxxxx & Co. (“CF&Co”), as
follows:
1. Issuance and Sale of
Shares. The Company agrees that, from time to time during the
term of this Agreement, on the terms and subject to the conditions set forth
herein, it will issue and sell through CF&Co, acting as agent and/or
principal, such number (the “Shares”) of the
Company’s Class A common shares, $0.01 par value per share (the “Common shares”) as
the Company and CF&Co shall agree from time to time. The issuance and sale of
the Shares through CF&Co will be effected pursuant to the Registration
Statement (as defined below) filed by the Company and declared effective by the
Securities and Exchange Commission (the “Commission”).
2. Placements. Each
time that the Company wishes to issue and sell Shares hereunder (each, a “Placement”), it will
notify CF&Co by e-mail notice (or other method mutually agreed to in writing
by the parties) containing the parameters in accordance with which it desires
the Shares to be sold, which shall at a minimum include the number of Shares
(“Placement
Shares”) to be issued, the time period during which sales are requested
to be made, any limitation on the number of Shares that may be sold in any one
day and any minimum price below which sales may not be made (a “Placement Notice”), a
form of which containing such minimum sales parameters necessary is attached
hereto as Schedule
1. The Placement Notice shall originate from any of the
individuals from the Company set forth on Schedule 2 (with a
copy to each of the other individuals from the Company listed on such schedule),
and shall be addressed to each of the individuals from CF&Co set forth on
Schedule 2, as
such Schedule 2
may be amended from time to time. The Placement Notice shall be
effective upon receipt by CF&Co unless and until (i) in accordance with the
notice requirements set forth in Section 4, CF&Co declines to accept the
terms contained therein for any reason, in its sole discretion, (ii) the entire
amount of the Placement Shares have been sold, (iii) in accordance with the
notice requirements set forth in Section 4, the Company suspends or terminates
the Placement Notice, (iv) the Company issues a subsequent Placement Notice with
parameters superseding those on the earlier dated Placement Notice, or (v) the
Agreement has been terminated under the provisions of Section 12. The
amount of compensation to be paid by the Company to CF&Co with respect to
each Placement shall be up to two and one half percent (2.5%) of gross proceeds
for each Placement. It is expressly acknowledged and agreed that
neither the Company nor CF&Co will have any obligation whatsoever with
respect to a Placement or any Placement Shares unless and until the Company
delivers a Placement Notice to CF&Co and CF&Co does not decline such
Placement Notice pursuant to the terms set forth above, and then only upon the
terms specified therein and herein. In the event of a conflict
between the terms of this Agreement and the terms of a Placement Notice, the
terms of the Placement Notice will control.
3. Sale of Placement Shares by
CF&Co. Subject to the terms and conditions herein set
forth, upon the Company’s issuance of a Placement Notice, and unless the sale of
the Placement Shares described therein has been declined, suspended, or
otherwise terminated in accordance with the terms of this Agreement, CF&Co
will use its commercially reasonable efforts consistent with its normal trading
and sales practices to sell on behalf of the Company and as agent and/or
principal, such Placement Shares up to the amount specified, and otherwise in
accordance with the terms of such Placement Notice. CF&Co will
provide written confirmation to the Company no later than the opening of the
Trading Day next following the Trading Day on which they have made sales of
Placement Shares hereunder setting forth the number of Placement Shares sold on
such day, the compensation payable by the Company to CF&Co with respect to
such sales, and the Net Proceeds (as defined below) payable to the
Company. CF&Co may sell Placement Shares by any method permitted
by law deemed to be an “at the market” offering as defined in Rule 415 of the
Securities Act of 1933, as amended (the Securities Act”),
including without limitation sales made directly on the Nasdaq Stock Market
(“Nasdaq”), on
any other existing trading market for the Common shares or to or through a
market maker. CF&Co may also sell Placement Shares in negotiated
transactions, for which the amount of compensation to be paid by the Company to
CF&Co shall be four percent (4.0%) of the gross proceeds with respect to
such negotiated sales. Notwithstanding anything to the contrary set
forth in this Agreement or a Placement Notice, the Company acknowledges and
agrees that (i) there can be no assurance that CF&Co will be successful in
selling any Placement Shares or as to the price at which any Placement Shares
are sold, if at all, and (ii) CF&Co will incur no liability or obligation to
the Company or any other person or entity if they do not sell Placement Shares
for any reason other than a failure by CF&Co to use its commercially
reasonable efforts consistent with its normal trading and sales practices to
sell such Placement Shares as provided under this Section 3. For the
purposes hereof, “Trading Day” means
any day on which Common Shares are purchased and sold on the principal market on
which the Common Shares are listed or quoted.
4. Suspension of Sales.
The Company or CF& Co. may, upon notice to the other party in writing, by
telephone (confirmed immediately by verifiable facsimile transmission) by e-mail
notice (or other method mutually agreed to in writing by the parties), suspend
any sale of Placement Shares; provided, however, that such suspension shall not
affect or impair either party’s obligations with respect to any Placement Shares
sold hereunder prior to the receipt of such notice. The Company
agrees that no such notice shall be effective against CF&Co unless it is
made to one of the individuals named on Schedule 2 hereto, as
such Schedule may be amended from time to time.
5. Settlement.
(a) Settlement of Placement
Shares. Unless otherwise specified in the applicable Placement
Notice, settlement for sales of Placement Shares will occur on the third (3rd)
Business Day (or such earlier day as is industry practice for regular-way
trading) following the date on which such sales are made (each a “Settlement
Date”). The amount of proceeds to be delivered to the Company
on a Settlement Date against the receipt of the Placement Shares sold (“Net Proceeds”) will
be equal to the aggregate sales price at which such Placement Shares were sold,
after deduction for (i) the commission or other compensation for such sales
payable by the Company to CF&Co, as the case may be, pursuant to Section 2
or Section 3 hereof, as the case may be, (ii) any other amounts due and payable
by the Company to CF&Co hereunder pursuant to Section 7(h) hereof, and (iii)
any transaction fees imposed by any governmental or self-regulatory organization
in respect of such sales.
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(b) Delivery of
Shares. On each Settlement Date, the Company will, or will
cause its transfer agent to, electronically transfer the Placement Shares being
sold by crediting CF&Co’s accounts or its designee’s account at The
Depository Trust Company through its Deposit Withdrawal Agent Commission System
or by such other means of delivery as may be mutually agreed upon by the parties
hereto and, upon receipt of such Placement Shares, which in all cases shall be
freely tradeable, transferable, registered shares in good deliverable form,
CF&Co will, on each Settlement Date, deliver the related Net Proceeds in
same day funds delivered to an account designated by the Company prior to the
Settlement Date. If the Company defaults in its obligation to deliver
Placement Shares on a Settlement Date, the Company agrees that in addition to
and in no way limiting the rights and obligations set forth in Section 10
hereto, it will (i) hold CF&Co harmless against any loss, claim, damage, or
expense (including reasonable legal fees and expenses), as incurred, arising out
of or in connection with such default by the Company and (ii) pay to CF&Co
any commission, discount, or other compensation to which it would otherwise have
been entitled absent such default.
6. Representations and
Warranties of the Company. The Company represents and warrants to, and
agrees with, CF&Co that:
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(d) Financial
Information. The consolidated financial statements and
financial schedules of the Company and the subsidiaries of the Company listed on
Schedule 3
hereto (collectively, the “Subsidiaries”, and
each, individually, a “Subsidiary”),
together with the related notes set forth or incorporated by reference in the
Registration Statement and Prospectus, have been and will be prepared in
accordance with Regulation S-X under the Securities Act and with United States
generally accepted accounting principles consistently applied at the times and
during the periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto, or (ii) in the case of unaudited
interim statements, to the extent they may exclude footnotes or may be condensed
or summary statements) and fairly present and will fairly present the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end adjustments).
(e) Organization. (1) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the Republic 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 and Prospectus;
and the Company is duly qualified as a foreign entity to transact business and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure, individually or in the aggregate,
to be so qualified and be in good standing would not have a material adverse
effect on (i) the consolidated business, operations, assets, properties,
financial condition, reputation, prospects or results of operations of the
Company and its Subsidiaries taken as a whole, (ii) the transactions
contemplated hereby, or (iii) the ability of the Company to perform its
obligations under this Agreement (collectively, a “Material Adverse
Effect”).
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(2) Each
Subsidiary of the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has full corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to be so qualified
would not have a Material Adverse Effect.
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(i) Investment Company
Act. Neither the Company nor any of the Subsidiaries, after
giving effect to the offering and sale of the Shares, will 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”).
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(2) There
are no legal, governmental or administrative proceedings, investigations,
actions, suits or inquiries or contracts or documents of the Company or any of
its Subsidiaries that are required to be described in or filed as exhibits to
the Commission Documents, Registration Statement or any of the documents
incorporated by reference therein by the Securities Act or the Exchange Act or
by the rules and regulations of the Commission thereunder that have not been so
described or filed as required by the Securities Act and the Rules and
Regulations thereunder.
(2) Executing
and delivering this Agreement and the issuance and sale of the Shares and the
compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions contemplated herein will not result in (i) a
breach or violation of any of the terms and provisions of, or constitute a
default under, any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan or credit agreement or other agreement
or instrument to which the Company or any of its Subsidiaries is a party or by
which any of them is bound or to which any of the property of the Company or any
of its Subsidiaries is subject, (ii) a violation of the Company’s articles of
incorporation or bylaws, or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
of its Subsidiaries or any of its properties or (iii) the creation of any
material Encumbrance upon any assets of the Company or of any of its
Subsidiaries or the triggering, solely as a result of the Company’s execution
and delivery of this Agreement, of any preemptive or anti-dilution rights or
rights of first refusal or first offer, or any similar rights (whether pursuant
to a “poison pill” provision or otherwise), on the part of holders of the
Company’s securities or any other person. Neither the Company nor any
of its Subsidiaries or affiliates, nor any person acting on its or their behalf,
has issued or sold any Common Shares or securities or instruments convertible
into, exchangeable for and/or otherwise entitling the holder thereof to acquire
Common Shares which would be integrated with the offer and sale of the Shares
hereunder.
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(p) No Violations or
Default. Neither the Company nor any of its Subsidiaries is in
violation of any provisions of its articles of incorporation, bylaws or any
other governing document as amended and in effect on and as of the date hereof
or in default (and no event has occurred which, with notice or lapse of time or
both, would constitute a default) under any indenture, mortgage, deed of trust,
loan or credit agreement or any provision of any instrument or contract to which
it is a party or by which it is bound that, individually or in the aggregate,
could have a Material Adverse Effect.
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(2) In
the ordinary course of its business, the Company conducts a periodic review of
the effect of Environmental Laws on the business, operations and properties of
the Company and its Subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities which, individually or in
the aggregate, would not have a Material Adverse Effect.
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(2) The
Company has filed all United States federal and state and all applicable local
and foreign income tax returns which have been required to be filed, except in
any case in which the failure to so file would not have a Material Adverse
Effect.
(3) The
Company has paid all United States federal, state and local and foreign taxes
required to be paid and any other assessment, fine or penalty levied against it,
to the extent that any of the foregoing would otherwise be delinquent, except,
in all cases, for any such tax, assessment, fine or penalty that is being
contested in good faith and except in any case in which the failure to so pay
would not result in a Material Adverse Effect.
(4) No
stamp or other issuance or transfer taxes or duties and no capital gains,
income, withholding or other taxes are payable by or on behalf of CF&Co to
Greece or the Xxxxxxxx Islands or any political subdivision or taxing authority
thereof or therein in connection with the sale and delivery by the Company of
the Shares to or for the account of CF&Co or the sale and delivery by
CF&Co of the Shares to the purchasers thereof.
(2) The
Company (i) makes and keeps accurate books and records and (ii) maintains
internal accounting controls which provide reasonable assurance that (A)
transactions are executed in accordance with management’s authorization, (B)
transactions are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C) access to its
assets is permitted only in accordance with management’s authorization and (D)
the reported accountability for its assets is compared with existing assets at
reasonable intervals.
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(ee) Xxxxxxxx-Xxxxx. The
principal executive officer and principal financial officer of the Company have
made all certifications required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations promulgated in connection therewith
(the “Xxxxxxxx-Xxxxx
Act”) with respect to all reports, schedules, forms, statements and other
documents required to be filed by it with the Commission, and the statements
contained in any such certification are complete and correct. The
Company, and to its knowledge, all of the Company’s directors or officers, in
their capacities as such, are in compliance in all material respects with all
applicable effective provisions of the Xxxxxxxx-Xxxxx Act (and the Company
intends to comply with all applicable provisions that are not yet effective upon
effectiveness).
(ff) Finder’s Fees.
Neither the Company nor any of the Subsidiaries has incurred any liability for
any finder’s fees or similar payments in connection with the transactions herein
contemplated, except as may otherwise exist with respect to CF&Co pursuant
to this Agreement.
(ii) CF&Co
Purchases. The Company acknowledges and agrees that CF&Co
has informed the Company that CF&Co may, to the extent permitted under the
Securities Act and the Exchange Act, purchase and sell Common Shares for its own
account while this Agreement is in effect provided that (i) no such purchase or
sales shall take place while a Placement Notice is in effect (except to the
extent CF&Co may engage in sales of Placement Shares purchased or deemed
purchased from the Company as a “riskless principal” or in a similar capacity)
and (ii) the Company shall not be deemed to have authorized or consented to any
such purchases or sales by CF&Co.
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7. Covenants of the
Company. The Company covenants and agrees with CF&Co
that:
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(2) On such date as
CF&Co shall request, including, without limitation, on the date that a
Registration Statement is declared effective, on the first Settlement Date
hereunder, on each Filing Date, each time that a Registration Statement shall be
amended or the Prospectus supplemented (other than a supplement filed pursuant
to Rule 424(b) under the Securities Act that contains solely the information
confirmed to the Company by CF&Co pursuant to Section 7(m) above) and within
five (5) Business Days after the Company files an Annual Report on Form 20-F
with the Commission, the Company shall furnish or cause to be furnished to
CF&Co a written opinion of Xxxxxx & Xxxxxx LLP, Xxxxxxxx Islands counsel
for the Company, or other counsel satisfactory to CF&Co, in form and
substance satisfactory to CF&Co. Such opinion shall be rendered
to CF&Co at the request of the Company and shall state so
therein. Notwithstanding the foregoing, in lieu of such opinion to be
delivered within five (5) Business Days after the Company files an Annual Report
on Form 20-F, counsel may furnish CF&Co with a letter to the effect that
CF&Co may rely on a prior opinion delivered under this Section 7(o)(2) to
the same extent as if it were dated the date of such letter.
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(3) On such date as CF&Co shall request, including, without
limitation, on the date that a Registration Statement is declared effective, on
the first Settlement Date hereunder, on each Filing Date, each time that a
Registration Statement shall be amended or the Prospectus supplemented (other
than a supplement filed pursuant to Rule 424(b) under the Securities Act that
contains solely the information confirmed to the Company by CF&Co pursuant
to Section 7(m) above) and within five (5) Business Days after the Company files
an Annual Report on Form 20-F with the Commission, the Company shall furnish or
cause to be furnished to CF&Co a written opinion of S. & X. Xxxxxxxxxxxx
& Co., Greek counsel to the Company, or other counsel satisfactory to
CF&Co, in form and substance satisfactory to CF&Co. Such
opinion shall be rendered to CF&Co at the request of the Company and shall
state so therein. Notwithstanding the foregoing, in lieu of such
opinion to be delivered within five (5) Business Days after the Company files an
Annual Report on Form 20-F, counsel may furnish CF&Co with a letter to the
effect that CF&Co may rely on a prior opinion delivered under this Section
7(o)(3) to the same extent as if it were dated the date of such
letter.
(4) On
such date as CF&Co shall request, including, without limitation, on the date
that a Registration Statement is declared effective, on the first Settlement
Date hereunder, on each Filing Date, each time that a Registration Statement
shall be amended or the Prospectus supplemented (other than a supplement filed
pursuant to Rule 424(b) under the Securities Act that contains solely the
information confirmed to the Company by CF&Co pursuant to Section 7(m)
above) and within five (5) Business Days after the Company files an Annual
Report on Form 20-F with the Commission, the Company shall furnish or cause to
be furnished to CF&Co a written opinion of Xxxxxxx, Xxxxxxx &
Xxxxxxxxxxx, Cypriot counsel to the Company, or other counsel satisfactory to
CF&Co, in form and substance satisfactory to CF&Co. Such
opinion shall be rendered to CF&Co at the request of the Company and shall
state so therein. Notwithstanding the foregoing, in lieu of such
opinion to be delivered within five (5) Business Days after the Company files an
Annual Report on Form 20-F, counsel may furnish CF&Co with a letter to the
effect that CF&Co may rely on a prior opinion delivered under this Section
7(o)(4) to the same extent as if it were dated the date of such
letter.
(5) On
such date as CF&Co shall request, including, without limitation, on the date
that a Registration Statement is declared effective, on the first Settlement
Date hereunder, on each Filing Date, each time that a Registration Statement
shall be amended or the Prospectus supplemented (other than a supplement filed
pursuant to Rule 424(b) under the Securities Act that contains solely the
information confirmed to the Company by CF&Co pursuant to Section 7(m)
above) and within five (5) Business Days after the Company files an Annual
Report on Form 20-F with the Commission, the Company shall furnish or cause to
be furnished to CF&Co a written opinion of Cefai & Associates, Maltese
counsel to the Company, or other counsel satisfactory to CF&Co, in form and
substance satisfactory to CF&Co. Such opinion shall be rendered
to CF&Co at the request of the Company and shall state so
therein. Notwithstanding the foregoing, in lieu of such opinion to be
delivered within five (5) Business Days after the Company files an Annual Report
on Form 20-F, counsel may furnish CF&Co with a letter to the effect that
CF&Co may rely on a prior opinion delivered under this Section 7(o)(5) to
the same extent as if it were dated the date of such letter.
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(p) Comfort
Letters. On such date as CF&Co shall request, including,
without limitation, on the date that a Registration Statement is declared
effective, on the first Settlement Date hereunder and each time that a
Registration Statement shall be amended or the Prospectus supplemented to
include additional amended financial information or there is filed with the
Commission any document incorporated by reference into the Registration
Statement or Prospectus which contains additional amended financial information,
the Company shall cause its independent accountants reasonably satisfactory to
CF&Co, to furnish CF&Co letters (the “Comfort Letters”), in
form and substance satisfactory to CF&Co, (i) confirming that they are
registered independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of such date, the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to CF&Co in connection with
registered public offerings (the first such letter, the “Initial Comfort
Letter”) and (iii) updating the Initial Comfort Letter with any
information which would have been included in the Initial Comfort Letter had it
been given on such date and modified as necessary to relate to the Registration
Statement and the Prospectus, as amended and supplemented to the date of such
letter.
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(2) The
Company agrees that no Issuer Free Writing Prospectus, if any, will include any
information that conflicts with the information contained in the Registration
Statement, including any document incorporated by reference therein that has not
been superseded or modified, or the Prospectus. In addition, no
Issuer Free Writing Prospectus, if any, will include an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided however, the foregoing shall not apply to any statements or
omissions in any Issuer Free Writing Prospectus made in reliance on information
furnished in writing to the Company by CF&Co expressly stating that such
information is intended for use therein.
(3) The
Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration
Statement, including any document incorporated by reference therein that has not
been superseded or modified, or the Prospectus or would include an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, the Company will give prompt notice thereof to CF&Co
and, if requested by CF&Co, will prepare and furnish without charge to
CF&Co an Issuer Free Writing Prospectus or other document which will correct
such conflict, statement or omission; provided, however, the foregoing shall not
apply to any statements or omissions in any Issuer Free Writing Prospectus made
in reliance on information furnished in writing to the Company by CF&Co
expressly stating that such information is intended for use
therein.
9. Conditions to CF&Co’s
Obligations. The obligations of CF&Co hereunder with respect to a
Placement will be subject to the continuing accuracy and completeness of the
representations and warranties made by the Company herein and in the applicable
Placement Notices, to the due performance by the Company of its obligations
hereunder, to the completion by CF&Co of a due diligence review satisfactory
to CF&Co in its reasonable judgment, and to the continuing satisfaction (or
waiver by CF&Co in its sole discretion) of the following additional
conditions:
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(c) No Misstatement or Material
Omission. CF&Co shall not have advised the Company that
the Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in CF&Co’s opinion is
material, or omits to state a fact that in CF&Co’s opinion is material and
is required to be stated therein or is necessary to make the statements therein
not misleading.
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(e) Certificate. CF&Co
shall have received the certificate required to be delivered pursuant to
Section 7(n) on or before the date on which delivery of such certificate is
required pursuant to Section 7(n).
(f) Legal Opinions
CF&Co shall have received the opinions of counsel required to be delivered
pursuant Sections 7(o)(1), 7(o)(2), 7(o)(3), 7(o)(4) and 7(o)(5) on or before
the date on which such delivery of such opinion is required pursuant to Sections
7(o)(1), 7(o)(2), 7(o)(3), 7(o)(4) and 7(o)(5).
(h) Approval for Listing; No
Suspension. The Shares shall have been duly listed, subject to
notice of issuance, on the NASDAQ, and trading in the Common Shares shall not
have been suspended on such market.
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law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based, directly or indirectly, on (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus, or any Issuer Free Writing Prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the
Securities Act, or any amendment or supplement to the Registration Statement or
the Prospectus, or in any application or other document executed by or on behalf
of the Company or based on written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify the Shares under the
securities laws thereof or filed with the Commission, (ii) the omission or
alleged omission to state in the Registration Statement, the Prospectus, or any
Issuer Free Writing Prospectus or any “issuer information” filed or required to
be filed pursuant to Rule 433(d) under the Securities Act, or any amendment or
supplement to the Registration Statement or the Prospectus, or in any
application or other document executed by or on behalf of the Company or based
on written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Shares under the securities laws thereof or
filed with the Commission a material fact required to be stated in it or
necessary to make the statements in it not misleading or (iii) any breach by the
Company of any of its representations, warranties and agreements contained in
this Agreement; provided that this indemnity agreement shall not apply to the
extent that such loss, claim, liability, expense or damage arises from the sale
of the Shares pursuant to this Agreement and is caused directly by an untrue
statement or omission made in reliance on and in conformity with information
relating to CF&Co and furnished in writing to the Company by CF&Co
expressly stating that such information is intended for inclusion in any
document described in clause (a)(i) above. This indemnity agreement
will be in addition to any liability that the Company might otherwise
have.
(b) CF&Co
Indemnification. CF&Co agrees to indemnify and hold
harmless the Company and its directors and each officer of the Company who
signed the Registration Statement, and each person, if any, who
(i) controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act or (ii) is controlled by or is under
common control with the Company (a “Company Affiliate”)
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 10(a), as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendments thereto), the Prospectus (or
any amendment or supplement thereto) or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information relating to CF&Co
furnished to the Company by CF&Co expressly stating that such information is
intended for use in the Registration Statement (or any amendment thereto), such
preliminary prospectus, the Prospectus (or any amendment or supplement thereto)
or Issuer Free Writing Prospectus.
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party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a conflict
or potential conflict exists (based on advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party has not
in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not, in any event, be liable for any settlement of any
action or claim effected without its written consent. No indemnifying
party shall, without the prior written consent of each indemnified party, settle
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding relating to the matters contemplated by
this Section 10 (whether or not any indemnified party is a party thereto),
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising or that may arise out of
such claim, action or proceeding. Notwithstanding any other provision of this
Section 10(c), if at any time an indemnified party shall have properly requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel for which it is entitled to reimbursement pursuant to this Section
10(c), such indemnifying party agrees that it shall be liable for any settlement
effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into, and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement; provided
that an indemnifying party shall not be liable for any such settlement effected
without its consent if such indemnifying party, at least five days prior to the
date of such settlement, (1) reimburses such indemnified party in
accordance with such request for the amount of such fees and expenses of counsel
as the indemnifying party believes in good faith to be reasonable and (2)
provides written notice to the indemnified party that the indemnifying party
disputes in good faith the reasonableness of the unpaid balance of such fees and
expenses.
23
24
notify
any such party or parties from whom contribution may be sought, but the omission
to so notify will not relieve that party or parties from whom contribution may
be sought from any other obligation it or they may have under this Section 10(d)
except to the extent that the failure to so notify such other party materially
prejudiced the defenses of the party from whom contribution is sought. Except
for a settlement entered into pursuant to the last sentence of Section 10(c)
hereof, no party will be liable for contribution with respect to any action or
claim settled without its written consent if such consent is required pursuant
to Section 10(c) hereof.
11. Representations and
Agreements to Survive Delivery. All representations and warranties of the
Company herein or in certificates delivered pursuant hereto shall remain
operative and in full force and effect regardless of (i) any investigation made
by or on behalf of CF&Co, any controlling persons, or the Company (or any of
their respective officers, directors or controlling persons), (ii) delivery and
acceptance of the Shares and payment therefor or (iii) any termination of this
Agreement.
12. Termination.
(a) CF&Co
shall have the right by giving notice as hereinafter specified at any time to
terminate this Agreement if (i) any Material Adverse Effect has occurred, or any
development that is reasonably expected to cause a Material Adverse Effect has
occurred which, in the reasonable judgment of CF&Co, may materially impair
the investment quality of the Shares, (ii) the Company shall have failed,
refused or been unable, at or prior to any Settlement Date, to perform any
agreement on its part to be performed hereunder, (iii) any other condition of
CF&Co’s obligations hereunder is not fulfilled, or (iv) any suspension or
limitation of trading in the Shares on the NASDAQ shall have
occurred. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 7(h) (Expenses),
Section 10 (Indemnification), Section 11 (Survival of Representations), Section
17 (Applicable Law; Consent to Jurisdiction) and Section 18 (Waiver of Jury
Trial) hereof shall remain in full force and effect notwithstanding such
termination. If CF&Co elects to terminate this Agreement as
provided in this Section 12(a), CF&Co shall provide the required notice as
specified in Section 13 (Notices).
(b) The
Company shall have the right, by giving twenty (20) days’ notice as hereinafter
specified to terminate this Agreement in its sole discretion at any time following the period of six (6) months after the date of this
Agreement. Any such termination shall be without liability of
any party to any other party except that the provisions of Section 7(h), Section
10, Section 11, Section 17 and Section 18 hereof shall remain in full force and
effect notwithstanding such termination.
(c) In
addition to, and without limiting CF&Co’s rights under Section 11(a),
CF&Co shall have the right, by giving twenty (20) days’ notice as
hereinafter specified to terminate this Agreement in its sole discretion at any time following the 30th day after the date of
this Agreement. Any such
termination shall be without liability of any party to any other party except
that the provisions of Section 7(h), Section 10, Section 11, Section 17 and
Section 18 hereof shall remain in full force and effect notwithstanding such
termination.
25
(d) This
Agreement shall remain in full force and effect unless terminated pursuant to
Sections 11(a), 11(b) or 11(c) above or otherwise by mutual agreement of the
parties; provided that any such termination by mutual agreement shall in all
cases be deemed to provide that Section 7(h), Section 10, Section 11, Section 17
and Section 18 shall remain in full force and effect.
(e) Any
termination of this Agreement shall be effective on the date specified in such
notice of termination; provided that such termination shall not be effective
until the close of business on the date of receipt of such notice by CF&Co
or the Company, as the case may be. If such termination shall occur
prior to the Settlement Date for any sale of Placement Shares, such Placement
Shares shall settle in accordance with the provisions of this
Agreement.
13. Notices. All
notices or other communications required or permitted to be given by any party
to any other party pursuant to the terms of this Agreement shall be in writing
and if sent to CF&Co, shall be delivered to Cantor Xxxxxxxxxx & Co., 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax: 212-829-4972); Attention:
Xxxxxxx Xxxxx, Managing Director, with a copy to Xxxxxx, Xxxxx & Xxxxxxx
LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no. (000) 000-0000,
Attention: Xxxxxxx X. Xxxxxxx, Esq.; or if sent to the Company, shall be
delivered to OceanFreight Inc. 00 Xxxxxxxxx Xxxxxx, Xxxxxx 00000, Xxxxxx (fax:
x00 000 0000000, Attention: Antonis Kandylidis, Chief Executive Officer, with a
copy to Xxxxxx & Xxxxxx LLP, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, fax no. (000) 000-0000, Attention: Xxxx X. Xxxxx, Esq. Each
party to this Agreement may change such address for notices by sending to the
parties to this Agreement written notice of a new address for such
purpose. Each such notice or other communication shall be deemed
given (i) when delivered personally or by verifiable facsimile transmission
(with an original to follow) on or before 4:30 p.m., eastern time, on a Business
Day or, if such day is not a Business Day, on the next succeeding Business Day,
(ii) on the next Business Day after timely delivery to a nationally-recognized
overnight courier and (iii) on the Business Day actually received if
deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid). For purposes of this Agreement, “Business Day” shall
mean any day on which the NASDAQ and commercial banks in the city of New York
are open for business.
14. Successors and
Assigns. This Agreement shall inure to the benefit of and be binding upon
the Company and CF&Co and their respective successors and the affiliates,
controlling persons, officers and directors referred to in Section 10
hereof. References to any of the parties contained in this Agreement
shall be deemed to include the successors and permitted assigns of such party.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement. Neither party
may assign its rights or obligations under this Agreement without the prior
written consent of the other party, provided, however, that CF&Co may assign
its rights and obligations hereunder to an affiliate of CF&Co without
obtaining the Company’s consent.
15. Adjustments for Stock
Splits. The parties acknowledge and agree that all share related numbers
contained in this Agreement shall be adjusted to take into account any stock
split, stock dividend or similar event effected with respect to the
Shares.
26
16. Entire Agreement; Amendment;
Severability. This Agreement (including all schedules and exhibits
attached hereto and placement notices issued pursuant hereto) constitutes the
entire agreement and supersedes all other prior and contemporaneous agreements
and undertakings, both written and oral, among the parties hereto with regard to
the subject matter hereof. Neither this Agreement nor any term hereof may be
amended except pursuant to a written instrument executed by the Company and
CF&Co. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
17. Applicable Law; Consent to
Jurisdiction. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York without regard to
the principles of conflicts of laws. Each of the parties hereto
irrevocably (i) agrees that any legal suit, action or proceeding arising out of
or based upon this Agreement or the transactions contemplated hereby may be
instituted in any state or federal court located in the Borough of Manhattan,
The City of New York, New York (each a “New York Court”),
(ii) waives, to the fullest extent it may effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company has appointed Xxxxxx & Xxxxxx
LLP, New York, New York, as its authorized agent (the “Authorized Agent”)
upon whom process may be served in any such action arising out of or based on
this Agreement or the transactions contemplated hereby which may be instituted
in any New York Court by CF&Co or by any person who controls CF&Co,
expressly consents to the jurisdiction of any such court in respect of any such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be
irrevocable. The Company represents and warrants that the Authorized
Agent has agreed to act as such agent for service of process and agrees to take
any and all action, including the filing of any and all documents and
instruments that may be necessary to continue such appointment in full force and
effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Company shall be deemed, in every respect,
effective service of process upon the Company.
18. Waiver of Jury Trial.
The Company and CF&Co hereby irrevocably waive any right either may have to
a trial by jury in respect of any claim based upon or arising out of this
agreement or any transaction contemplated hereby.
19. Absence of Fiduciary
Duties. The parties acknowledge that they are sophisticated in business
and financial matters and that each of them is solely responsible for making its
own independent investigation and analysis of the transactions contemplated by
this Agreement. They further acknowledge that CF&Co has not been
engaged by the Company to provide, and has not provided, financial advisory
services in connection with the terms of the offering and sale of the Shares nor
has CF&Co assumed at any time a fiduciary relationship to the Company in
connection with such offering and sale. The parties also acknowledge
that the provisions of this Agreement fairly allocate the risks of the
transactions contemplated hereby among them in light of their respective
knowledge of the Company and their respective abilities to investigate its
affairs and business in order to assure that full and adequate disclosure has
been made in the Registration Statement and the Prospectus (and any amendments
and supplements thereto). The Company hereby waives, to the fullest
extent permitted by law, any claims it may have
against CF&Co for breach of fiduciary
duty or alleged breach of fiduciary duty and agrees CF&Co shall have no liability
(whether
direct or indirect) to the Company in respect of such a
fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in
right of the Company, including
stockholders,
employees or creditors of Company.
27
20. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Delivery of an executed Agreement by one party to the other may be
made by facsimile transmission.
[Remainder
of Page Intentionally Blank]
28
If the
foregoing accurately reflects your understanding and agreement with respect to
the matters described herein please indicate your agreement by countersigning
this Sales Agreement in the space provided below.
Very
truly yours,
By:
|
/s/ Antonis Kandylidis |
Antonis
Kandylidis
|
|
Chief
Executive Officer
|
ACCEPTED
as of the date
first-above
written:
CANTOR
XXXXXXXXXX & CO.
By:
|
/s/ Xxxxxxx Xxxxx |
Xxxxxxx
Xxxxx
|
|
Managing
Director
|
[Signature
page to the Sales Agreement]
|
29
SCHEDULE
1
FORM OF PLACEMENT
NOTICE
From: | [ ] |
Cc: | [ ] |
To: | [ ] |
Subject: | Controlled Equity Offering—Placement Notice |
Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Controlled Equity
OfferingSM Sales
Agreement between OceanFreight Inc. (the “Company”) and Cantor
Xxxxxxxxxx & Co. (“CF&Co”) dated
[________], 2008 (the “Agreement”), I hereby
request on behalf of the Company that CF&Co sell up to
[ ] of the Company’s common shares, $0.01 par value per
share, at a minimum market price of $[] per share during [insert applicable
period].
[Insert
other parameters as necessary]
1
SCHEDULE
2
CANTOR
XXXXXXXXXX & CO.
|
Xxxxxxx Xxxxx |
Xxxxxx Xxxxxxx |
Xxxxx Xxxxxxxxx |
OCEANFREIGHT INC. |
Antonis Kandylidis |
SCHEDULE
3
Subsidiary
|
Jurisdiction
of Incorporation
|
Oceanship
Owners Limited
|
Xxxxxxxx
Islands
|
Oceanwealth
Owners Limited
|
Xxxxxxxx
Islands
|
Oceanventure
Owners Limited
|
Xxxxxxxx
Islands
|
Oceanresources
Owners Limited
|
Xxxxxxxx
Islands
|
Oceanstrength
Owners Limited
|
Xxxxxxxx
Islands
|
Oceanenergy
Owners Limited
|
Xxxxxxxx
Islands
|
Oceantrade
Owners Limited
|
Xxxxxxxx
Islands
|
Oceanprime
Owners Limited
|
Xxxxxxxx
Islands
|
Oceanclarity
Owners Limited
|
Xxxxxxxx
Islands
|
Kifissia
Star Owners Inc.
|
Xxxxxxxx
Islands
|
Oceanfighter
Owners Inc.
|
Xxxxxxxx
Islands
|
EXHIBIT
A
I, [name
of executive officer], the [title of executive officer] of OceanFreight Inc.
(“Company”), a
Xxxxxxxx Islands corporation, do hereby certify in such capacity and on behalf
of the Company pursuant to Section 7(n) of the Controlled Equity Offering SM Sales
Agreement dated __________ (the “Sales Agreement”)
between the Company and Cantor Xxxxxxxxxx & Co., to the best of my knowledge
that:
(i) The
representations and warranties of the Company in Section 6 of the Sales
Agreement are true and correct on and as of the date hereof, with the same force
and effect as if expressly made on and as of the date hereof; and
(ii) The
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied pursuant to the Sales Agreement at or prior to
the date hereof.
By: | ||
Name: | ||
Title: |
_________,
2008
SK 25754 0002
893294