SHARES
ULTRAPETROL (BAHAMAS) LIMITED
COMMON SHARES
UNDERWRITING AGREEMENT
October , 2006
UBS SECURITIES LLC,
BEAR, XXXXXXX & CO. INC.
As Representatives of the Several Underwriters,
c/o UBS Securities LLC,
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Dear Sirs:
1. Introductory. Ultrapetrol (Bahamas) Limited, a Bahamas corporation (the
"COMPANY"), proposes to issue and sell of its Common Shares, par value
$ per share (the "SECURITIES"), (such Securities to be sold by the Company
being together referred to as the "FIRM SECURITIES"). The stockholders listed in
Schedule A hereto (the "SELLING STOCKHOLDERS") also propose to sell to the
Underwriters, at the option of the Underwriters, an aggregate of not more than
additional shares of Securities, (the "OPTIONAL SECURITIES") as set forth
below. The Firm Securities and the Optional Securities are herein collectively
called the "OFFERED SECURITIES". The Company and the Selling Stockholders hereby
agree with the several Underwriters named in Schedule B hereto ("UNDERWRITERS")
as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333- ) (the "INITIAL
REGISTRATION STATEMENT") relating to the Offered Securities, including a
form of prospectus, has been filed with the Securities and Exchange
Commission (the "COMMISSION") and an additional registration statement (the
"ADDITIONAL REGISTRATION STATEMENT") relating to the
Offered Securities may have been or may be filed with the Commission
pursuant to Rule 462(b) ("RULE 462(B)") under the Securities Act of 1933
("ACT"). "INITIAL REGISTRATION STATEMENT" as of any time means the initial
registration statement, in the form then filed with the Commission,
including all material then incorporated by reference therein, all
information contained in the additional registration statement (if any) and
then deemed to be a part of the initial registration statement pursuant to
the General Instructions of the Form on which it is filed and all
information (if any) included in a prospectus then deemed to be a part of
the initial registration statement pursuant to Rule 430C ("RULE 430C")
under the Act or retroactively deemed to be a part of the initial
registration statement pursuant to RULE 430A(B) ("RULE 430A(B)") under the
Act and that in any case has not then been superseded or modified.
"ADDITIONAL REGISTRATION STATEMENT" as of any time means the additional
registration statement, in the form then filed with the Commission,
including the contents of the Initial Registration Statement incorporated
by reference therein and including all information (if any) included in a
prospectus then deemed to be a part of the additional registration
statement pursuant to Rule 430C or retroactively deemed to be a part of the
additional registration statement pursuant to Rule 430A(b) and that in any
case has not then been superseded or modified. The Initial Registration
Statement and the Additional Registration Statement are herein referred to
collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT". "REGISTRATION STATEMENT" as of any time means the
Initial Registration Statement and any Additional Registration Statement as
of such time. For purposes of the foregoing definitions, information
contained in a form of prospectus that is deemed retroactively to be a part
of a Registration Statement pursuant to Rule 430A shall be considered to be
included in such Registration Statement as of the time specified in Rule
430A. As of the time of execution and delivery of this Agreement, the
Initial Registration Statement has been declared effective under the Act
and is not proposed to be amended. Any Additional Registration Statement
has or will become effective upon filing with the Commission pursuant to
Rule 462(b) and is not proposed to be amended. The Offered Securities all
have been or will be duly registered under the Act pursuant to the Initial
Registration Statement and, if applicable, the Additional Registration
Statement. For purposes of this Agreement, "EFFECTIVE TIME" with respect to
the Initial Registration Statement or, if filed prior to the execution and
delivery of this Agreement, the Additional Registration Statement means the
date and time as of which such Registration Statement was declared
effective by the Commission or has become effective upon filing pursuant to
Rule 462(c) ("RULE 462(C)") under the Act. If an Additional Registration
Statement has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it proposes
to file one, "EFFECTIVE TIME" with respect to such Additional Registration
Statement means the date and time as of which such Registration Statement
is filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE"
with respect to the Initial Registration Statement or the Additional
Registration Statement (if any) means the date of the Effective Time
thereof. A "REGISTRATION STATEMENT" without reference to a time means such
Registration Statement as of its Effective Time. "STATUTORY PROSPECTUS" as
of any time means the prospectus included in a Registration
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Statement immediately prior to that time, including any document
incorporated by reference therein and any information in a prospectus
deemed to be a part thereof pursuant to Rule 430A or 430C that has not been
superseded or modified. For purposes of the preceding sentence, information
contained in a form of prospectus that is deemed retroactively to be a part
of a Registration Statement pursuant to Rule 430A shall be considered to be
included in the Statutory Prospectus as of the actual time that form of
prospectus is filed with the Commission pursuant to Rule 424(b) ("RULE
424(B)") under the Act. "PROSPECTUS" means the Statutory Prospectus that
discloses the public offering price and other final terms of the Offered
Securities and otherwise satisfies Section 10(a) of the Act. "ISSUER FREE
WRITING PROSPECTUS" means any "issuer free writing prospectus," as defined
in Rule 433, relating to the Offered Securities in the form filed or
required to be filed with the Commission or, if not required to be filed,
in the form retained in the Company's records pursuant to Rule 433(g).
"GENERAL USE ISSUER FREE WRITING PROSPECTUS" means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being specified in Appendix II(a) to this
Agreement. "LIMITED USE ISSUER FREE WRITING PROSPECTUS" means any Issuer
Free Writing Prospectus that is not a General Use Issuer Free Writing
Prospectus. "APPLICABLE TIME" means :00 a/pm (Eastern time) on the
date of this Agreement.
(ii) (A) On the Effective Date of the Initial Registration Statement,
the Initial Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B) on
the Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and (C)
on the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement, each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the Effective
Date of the Additional Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus will conform, in
all respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any material
fact necessary to make the statements therein not misleading. The preceding
sentence does not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information is
that described as such in Section 7(b) hereof. Except as disclosed in
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the Registration Statement or the Prospectus, on the date of this
Agreement, the Company's Annual Report on Form 20-F (the "EXCHANGE ACT
REPORT") most recently filed with the Commission pursuant to the United
States Securities Exchange Act of 1934 (the "EXCHANGE ACT") does not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. Such document, when it was filed with
the Commission, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder.
(iii) (A) At the time of initial filing of the Initial Registration
Statement and (B) at the date of this Agreement, the Company was not and is
not an "ineligible issuer", as defined in Rule 405, including (x) the
Company or any other subsidiary in the preceding three years not having
been convicted of a felony or misdemeanor or having been made the subject
of a judicial or administrative decree or order as described in Rule 405
and (y) the Company in the preceding three years not having been the
subject of a bankruptcy petition or insolvency or similar proceeding, not
having had a registration statement be the subject of a proceeding under
Section 8 of the Act and not being the subject of a proceeding under
Section 8A of the Act in connection with the offering of the Offered
Securities, all as described in Rule 405.
(iv) As of the Applicable Time, neither (A) the General Use Issuer
Free Writing Prospectus(es) issued at or prior to the Applicable Time, the
preliminary prospectus, dated ____________ __, 200_ (which is the most
recent Statutory Prospectus distributed to investors generally) and the
information set forth in Appendix I hereto, all considered together
(collectively, the "GENERAL DISCLOSURE PACKAGE"), nor (B) any individual
Limited Use Issuer Free Writing Prospectus, when considered together with
the General Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to statements
in or omissions from any prospectus included in the Registration Statement
or any Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 8(c)
hereof.
(v) Each Issuer Free Writing Prospectus, as of its issue date and at
all subsequent times through the completion of the public offer and sale of
the Offered Securities or until any earlier date that the Company notified
or notifies the Representatives as described in the next sentence, did not,
does not and will not include any information that conflicted, conflicts or
will conflict with the information then contained in the Registration
Statement. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with
the information then contained in the Registration Statement or included or
would include an untrue
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statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading, (A) the
Company has promptly notified or will promptly notify the Representatives
and (B) the Company has promptly amended or will promptly amend or
supplement such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission. The foregoing two sentences do not
apply to statements in or omissions from any Issuer Free Writing Prospectus
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in Section 8(c) hereof.
(vi) The Company (A) has been duly incorporated and is a validly
existing corporation in good standing under the laws of the Bahamas, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the General Disclosure Package; and (B) is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except where the
failure to be so qualified or in good standing would not individually or in
the aggregate have a material adverse effect on the properties, business,
prospects, condition (financial or other) or results of operations of the
Company and its subsidiaries taken as a whole (a "MATERIAL ADVERSE
EFFECT"). As of the Closing Date, the Company will have the authorized,
issued and outstanding capitalization set forth in the General Disclosure
Package.
(vii) (A) Each subsidiary of the Company has been duly incorporated
and is a validly existing corporation in good standing under the laws of
the jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described in
the General Disclosure Package; (B) each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not individually or in
the aggregate have a Material Adverse Effect; (C) all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and (D)
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and defects,
except in the case of this clause (D) for liens, encumbrances and defects
described in the General Disclosure Package.
(viii) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; the Offered
Securities to be sold by the Selling Stockholders and all other outstanding
shares of capital stock of the Company are, and, when the Offered
Securities to be sold by the Company have been delivered and paid for in
accordance with this Agreement on each Closing Date (as defined below),
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the Offered Securities to be sold by the Company will have been, validly
issued, fully paid and nonassessable, will be consistent with the
information in the General Disclosure Package and will conform to the
description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Securities.
(ix) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the
Act, other than the Registration Rights Agreement between the Company and
, dated as of , 2006.
(x) Except as disclosed in the General Disclosure Package, there are
no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment
in connection with this offering.
(xi) The Offered Securities have been approved for listing on The
Nasdaq Stock Market's National Market subject to notice of issuance.
(xii) No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court or any other third party is
required for the consummation of the transactions contemplated by this
Agreement in connection with the issuance and sale of the Offered
Securities by the Company, except such as have been obtained and made under
the Act and such as may be required under state securities laws.
(xiii) Except as disclosed in the General Disclosure Package, under
current laws and regulations of the Bahamas and any political subdivision
thereof, all dividends and other distributions declared and payable on the
Offered Securities may be paid by the Company to the holder thereof in
United States dollars or in the currency of such jurisdiction that may be
converted into foreign currency and freely transferred out of such
jurisdiction and all such payments made to holders thereof or therein who
are non-residents of the Bahamas will not be subject to income, withholding
or other taxes under laws and regulations of the Bahamas or any political
subdivision or taxing authority thereof or therein and will otherwise be
free and clear of any other tax, duty, withholding or deduction in the
Bahamas or any political subdivision or taxing authority thereof or therein
and without the necessity of obtaining any governmental authorization in
the Bahamas or any political subdivision or taxing authority thereof or
therein.
(xiv) The execution, delivery and performance of this Agreement, and
the consummation by the Company of the transactions contemplated hereby and
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thereby, and the issuance and sale of the Offered Securities and compliance
with the terms and provisions hereof and thereof will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under (or an event which with notice or passage of time or both
would constitute a default under), (A) any statute, judgments, rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any subsidiary
of the Company or any of their properties, except for breaches, violations
or defaults that would not individually or in the aggregate have a Material
Adverse Effect; (B) any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such subsidiary
is bound or to which any of the properties of the Company or any such
subsidiary is subject, except for breaches, violations or defaults that
would not individually or in the aggregate have a Material Adverse Effect;
or (C) the charter or by-laws of the Company or any such subsidiary, and
the Company has full power and authority (corporate and other) to
authorize, issue and sell the Offered Securities as contemplated by this
Agreement and the Company has full power to execute, deliver and perform
all its other obligations under this Agreement and to consummate the
transactions contemplated thereby.
(xv) This Agreement has been duly authorized, executed and delivered
by the Company.
(xvi) Except as disclosed in the General Disclosure Package, the
Company and its subsidiaries have good and marketable title to all real
properties and all other properties and assets described in the General
Disclosure Package as being owned by them, in each case free from liens,
encumbrances and defects that would, individually or in the aggregate, have
a Material Adverse Effect; and except as disclosed in the General
Disclosure Package, the Company and its subsidiaries hold any real or
personal property described in the General Disclosure Package as being
leased by them under valid and enforceable leases with no exceptions that
would, individually or in the aggregate, have a Material Adverse Effect.
All material leases, contracts and agreements to which the Company or any
subsidiary is a party or by which any of them is bound are valid and
enforceable against the Company or such subsidiary, and to the knowledge of
the Company and such subsidiary are valid and enforceable against the other
party or parties thereto and are in full force and effect.
(xvii) The Company and its subsidiaries (A) possess adequate licenses,
permits, certificates, consents, orders, approvals and other authorities
issued by, and have made or on or prior to the First Closing Date will
make, all declarations and filings with, appropriate governmental agencies
and bodies, self-regulatory organizations, courts and other tribunals and
all other third parties necessary to conduct the business now operated by
them ("PERMITS") other than as would not individually or in the aggregate
have a Material Adverse Effect; (B) have fulfilled and performed all of
their material obligations with respect to such Permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit; and (C) have not
received any notice of proceedings relating to the
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revocation or modification of any Permit, except as described in the
General Disclosure Package.
(xviii) The statistical and market-related data included in the
General Disclosure Package was prepared by an expert which the Company
believes to be reliable, and the Company has no reason to believe that such
statistical and market-related data is inaccurate in any material respect.
(xix) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent or
threatened that might have a Material Adverse Effect and none of the
Company and its subsidiaries is aware of any existing, imminent or
threatened labor disturbance by the employees of any of its principal
suppliers, manufacturers, distributors or contractors that would
individually or in the aggregate have a Material Adverse Effect.
(xx) Each of the Company and its subsidiaries carries insurance
covering their respective vessels and properties in such amounts and
covering such risks as is adequate for the conduct of its business and is
customary to its business. None of the Company or any of its subsidiaries
has received written notice from any insurer or agent of such insurer that
any material capital improvements or other material expenditures are
required or necessary to be made in order to continue such insurance.
(xxi) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xxii) Except as disclosed in the General Disclosure Package, (A) each
of the Company and its subsidiaries is in compliance with and not subject
to liability under applicable Environmental Laws (as defined below); (B)
each of the Company and its subsidiaries has made all filings and provided
all notices required under any applicable Environmental Law, and possesses
and is in compliance with all Permits required under any applicable
Environmental Law and each of them is in full force and effect; (C) there
is no civil, criminal or administrative action, suit, demand, claim,
hearing, notice of violation, investigation, proceeding, notice or demand
letter or request for information pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries under
any Environmental Law; (D) no lien, charge, encumbrance or restriction has
been recorded under any Environmental Law with respect to any assets,
facilities or property owned, operated, leased or controlled by the Company
or any of its subsidiaries; (E) none of the Company or
8
any of its subsidiaries has received notice that it has been identified as
a potentially responsible party under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"),
or any comparable state law; and (F) no property or facility owned or
operated by the Company or any of its subsidiaries is contaminated with any
material, substance or waste that is regulated by or pursuant to any
Environmental Law; in the case of each of (A) to (F) above, other than as
would not individually or in the aggregate have a Material Adverse Effect.
For purposes of this Agreement, "ENVIRONMENTAL LAWS" means the common law
and all applicable Federal, state, local, foreign and international laws,
regulations, treaties, conventions, rules, codes, orders, decrees,
judgments, injunctions or legally-binding agreements relating to pollution,
the environment or human health and safety, including, without limitation,
laws relating to (1) emissions, discharges, releases or threatened releases
of, or exposure to, pollutants or contaminants or hazardous or toxic
materials, substances or wastes; (2) the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or
handling of hazardous or toxic materials, substances or wastes; and (3)
underground and above ground storage tanks, and related piping, and
emissions, discharges, releases or threatened releases therefrom.
(xxiii) Except as disclosed in the General Disclosure Package, there
are no pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to perform
its obligations under this Agreement, or which are otherwise material in
the context of the sale of the Offered Securities; and no such actions,
suits or proceedings are threatened or, to the Company's knowledge,
contemplated.
(xxiv) There are no legal or governmental proceedings involving or
affecting the Company or any of its subsidiaries or any of their respective
properties that are required to be described pursuant to the Securities Act
that are not described in the General Disclosure Package.
(xxv) The statements in the Registration Statement and General
Disclosure Package under the heading "Description of Capital Stock",
insofar as such statements constitute a summary of documents or matters of
law, are accurate in all material respects as of the First Closing Date and
present fairly the information required to be shown. The amendment and
restatement of the Memorandum of Association of the Company and the
Articles of Association of the Company effected as of , 2006 to be effected
after the date hereof, but prior to the First Closing Date (the "Amended
Memorandum and Articles") have been duly authorized by the shareholders and
board of directors of the Company, and on the First Closing Date, will be
in full force and effect.
(xxvi) (A) The financial statements included in each Registration
Statement and the General Disclosure Package present fairly the financial
position of the Company and
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its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as otherwise
disclosed in the General Disclosure Package, such financial statements have
been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis and comply as
to form in all material respects with the applicable accounting
requirements of the Securities Act and the rules and regulations
thereunder; (B) the summary and selected financial and statistical data
included in the General Disclosure Package present fairly in all material
respects the information shown therein and have been prepared and compiled
on a basis consistent with the audited financial statements included in the
General Disclosure Package, except as otherwise stated in the General
Disclosure Package, and comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the rules and
regulations thereunder; and (C) the assumptions used in preparing the pro
forma financial statements included in each Registration Statement and the
General Disclosure Package provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts. Pistrelli, Xxxxx Xxxxxx y Asociados SRL (a
member of Ernst & Young Global) is an independent public accounting firm
within the meaning of the Securities Act and the regulations thereunder.
(xxvii) Except as disclosed in the General Disclosure Package, since
the date of the latest audited financial statements included in the General
Disclosure Package there has been no material adverse change, nor any
development or event which the Company reasonably believes involves a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole (a "MATERIAL CHANGE"); except as disclosed in
or contemplated by the General Disclosure Package, there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock nor has the Company purchased any of its
outstanding capital stock; and there has not been any change in the capital
stock or long-term indebtedness of the Company which would, individually or
in the aggregate, cause a Material Change.
(xxviii) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of 1934
and files reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (XXXXX) system.
(xxix) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the General Disclosure Package, will not be an "investment
company" as defined in the Investment Company Act of 1940.
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(xxx) None of the Company or any of its subsidiaries is (A) in
violation of its respective charter or by-laws; (B) in breach or in
violation of any statute, judgment, decree, order, rule or regulation
applicable to the Company or any of its subsidiaries, properties or assets;
or (C) in default (nor has any event occurred which, with notice or passage
of time or both, would constitute a default) in the performance of any
obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, deed of trust, lease, license, permit,
certificate, contract or other agreement or instrument, to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries or their respective property is bound, except in
the case of clauses (B) and (C), for breaches, violations or defaults that
would not individually or in the aggregate have a Material Adverse Effect.
(xxxi) Each of the Company and its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with management's general
or specific authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with the standards
of the Public Company Accounting Oversight Board (United States) ("PCAOB")
and to maintain asset accountability; (C) access to assets is permitted
only in accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences. The Company maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15 under the Exchange Act) that are
effective in ensuring that information required to be disclosed by the
Company in its reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported, within the time periods
specified in the rules and forms of the Commission, including, without
limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is accumulated and communicated to the
Company's management, including its principal executive officer or officers
and its principal financial officer or officers, as appropriate to allow
timely decisions regarding required disclosure.
(xxxii) Based on the evaluation of its internal control over financial
reporting (as such term is defined in Rule 13a-15 under the Exchange Act),
the Company is not aware of (A) any significant deficiency or material
weakness in the design or operation of internal control over financial
reporting that are reasonably likely to adversely affect the Company's
ability to record, process, summarize and report financial information or
(B) any fraud, whether or not material, that involves management or other
employees who have a significant role in the Company's internal controls
over financial reporting.
(xxxiii) No unaudited interim consolidated financial statements of the
Company for any date or period subsequent to the most recent financial
statements appearing in the General Disclosure Package have been prepared
by or otherwise made available
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to the Company that have not been provided to the Representatives and
Pistrelli, Xxxxx Xxxxxx y Asociados SRL (a member of Ernst & Young Global).
(xxxiv) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes and the Company
agrees to comply with such Section if prior to the completion of the
distribution of the Offered Securities it commences doing such business.
(xxxv) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is 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 "FCPA"), 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 FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
(xxxvi) The operations of the Company and its subsidiaries are and
have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the "MONEY LAUNDERING
LAWS") and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering
Laws is pending or, to the best knowledge of the Company, threatened.
(xxxvii) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department ("OFAC"); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
12
(xxxviii) There is and has been no failure on the part of the Company
and any of the Company's directors or officers to comply with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith (the "XXXXXXXX-XXXXX ACT").
(b) Each Selling Stockholder severally represents and warrants
to, and agrees with, the several Underwriters that:
(i) It has and on each Closing Date hereinafter mentioned
will have valid and unencumbered title to the Offered Securities
to be delivered by it on such Closing Date and full right, power
and authority to enter into this Agreement and to sell, assign,
transfer and deliver the Offered Securities to be delivered by it
on such Closing Date hereunder; and upon the delivery of and
payment for the Offered Securities on each Closing Date hereunder
the several Underwriters will acquire valid and unencumbered
title to the Offered Securities to be delivered by it on such
Closing Date.
(ii) It has, and on each Closing Date will have, full legal
right, power, authority, and all authorization and approval
required by law to sell, assign, transfer and deliver the Offered
Securities to be sold by it in the manner provided herein.
(iii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by it for the consummation of the
transactions contemplated by this Agreement in connection with
the sale of the Offered Securities to be sold by it, except such
as have been obtained and made under the Act and such as may be
required under state securities laws.
(iv) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(v) The execution, delivery and performance by or on behalf
of such Selling Stockholder of this Agreement, and the
consummation of the transactions herein contemplated, will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, rule,
regulation or order applicable to such Selling Stockholder of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over such Selling Stockholder or any of its
properties, or any agreement or instrument to which it is a party
or by which it is bound or to which any of its properties are
subject.
(vi) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement conformed in all
respects to the requirements of the Act and the Rules and
Regulations and did not include any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration
13
Statement conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the
statement therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior
to the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing
of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration
Statement and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and
neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading. If the Effective Time of
the Initial Registration Statement is subsequent to the execution
and delivery of this Agreement, on the Effective Date of the
Initial Registration Statement, the Initial Registration
Statement and the Prospectus will conform in all respects to the
requirements of the Act and the Rules and Regulations and neither
of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. The two preceding sentences apply only to statements
in or omissions from a Registration Statement or the Prospectus
based upon written information furnished to the Company by such
Selling Stockholder specifically for use therein.
(vii) As of the Applicable Time, neither (A) the General
Disclosure Package, nor (B) any individual Limited Use Issuer
Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a
material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence applies only to statements in or omissions
from the General Disclosure Package or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder
specifically for use therein.
(viii) The Selling Stockholder has not distributed and will
not distribute any prospectus or other offering material in
connection with the offering and sale of the Offered Securities.
(ix) The sale of the Offered Securities by the Selling
Stockholder pursuant hereto is not prompted by any information
concerning the Company or any of its subsidiaries that has come
to the attention of the Selling Stockholder and is not set forth
in the General Disclosure Package, the Prospectus or any
supplement thereto.
(x) Except as disclosed in the General Disclosure Package,
there are no contracts, agreements or understandings between the
Selling Stockholder and any person that
14
would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other
like payment.
(xi) At any time during the period during which a prospectus
relating to the Offered Securities is (or but for the exemption
in Rule 172 would be) required to be delivered under the Act in
connection with sales by any Underwriter or dealer, if there is
any change in the information with respect to the Selling
Stockholder set forth in the Prospectus as most recently amended
or supplemented, the Selling Stockholder will immediately notify
the Company and the Representatives of such change.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements and subject to the terms and
conditions set forth herein, the Company agrees to sell to the several
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $ per share, the number of
shares of Firm Securities set forth opposite the name of such Underwriter in
Schedule A hereto.
The Company will deliver the Firm Securities to or as instructed by the
Representatives for the accounts of the several Underwriters in a form
reasonably acceptable to the Representatives against payment of the purchase
price by the Underwriters in Federal (same day) funds by official bank check or
checks or wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of the Company at the office of Cravath,
Swaine & Xxxxx LLP, at 9 a.m., New York time, on August , 2006 or at such
other time not later than seven full business days thereafter as the
Representatives and the Company determine, such time being herein referred to as
the "FIRST CLOSING DATE". For purposes of Rule 15c6-1 under the Securities
Exchange Act of 1934, the First Closing Date (if later than the otherwise
applicable settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Offered Securities sold pursuant to the
offering. The Certificates for the Firm Securities will be in definitive form,
in such denominations and registered in such names as the Representatives
request and will be made available for checking and packaging at the above
office of Cravath, Swaine & Xxxxx LLP at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from the Representatives given to the
Company and the Selling Stockholders from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Securities at the purchase price per Security to
be paid for the Firm Securities. The Selling Stockholders agree, severally and
not jointly, to sell to the Underwriters the numbers of Optional Securities
obtained by multiplying the number of Optional Securities specified in such
notice by a fraction the numerator of which is the numbers of shares set forth
opposite the names of such Selling Stockholders in Schedule B hereto under the
caption "Number of Optional Securities to be Sold" and the denominator of which
is the total number of Optional Securities (subject to adjustment by the
Representatives to eliminate fractions). Such Optional Securities shall be
purchased from each Selling Stockholder for the account of each Underwriter in
the same proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by the Representatives to eliminate fractions) and may be purchased
by the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered
15
unless the Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time and to the extent not previously exercised
may be surrendered and terminated at any time upon notice by the Representatives
to the Company and the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representatives but shall be not later than five full business days after
written notice of election to purchase Optional Securities is given. The Selling
Stockholders will deliver the Optional Securities being purchased on each
Optional Closing Date to or as instructed by the Representatives for the
accounts of the several Underwriters in a form reasonably acceptable to the
Representatives against payment of the purchase price therefor in Federal (same
day) funds by official bank check or checks or wire transfer to an account at a
bank acceptable to the Representatives drawn to the order of the Selling
Stockholders, at the above office of Cravath, Swaine & Xxxxx LLP. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as the Representatives request upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the above office of Cravath, Swaine & Xxxxx LLP at a reasonable time in advance
of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public
as set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders
that:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by the Representatives, subparagraph (4)) of Rule
424(b) not later than the earlier of (A) the second business day
following the execution and delivery of this Agreement or (B) the 15th
business day after the Effective Date of the Initial Registration
Statement. The Company will advise the Representatives promptly of any
such filing pursuant to Rule 424(b). If an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of
the execution and delivery of this Agreement, the Company will file
the additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and
in accordance with Rule 462(b) on or prior to 10:00 p.m., New York
time, on the date of this Agreement or, if earlier, on or prior to the
time the Prospectus is printed and distributed to any Underwriter, or
will make such filing at such later date as shall have been consented
to by the Representatives.
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement at any time the Initial Registration
Statement, any Additional Registration Statement or any Statutory
Prospectus and will not effect such amendment or supplementation
without the Representatives' consent, which consent shall not be
16
unreasonably withheld; and the Company will also advise the
Representatives promptly of the effectiveness of any Additional
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or any Statutory
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is (or but for the exemption in Rule 172 would be required
to be) delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify the Representatives of such event and
will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither
the Representatives' consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
its securityholders an earnings statement covering a period of at
least 12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions
of Section 11(a) of the Act. For the purpose of the preceding
sentence, "AVAILABILITY DATE" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement two of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as the Representatives
request. The Prospectus shall be so furnished on or prior to 3:00
p.m., New York time, on the business day following the execution and
delivery of this Agreement. All other documents shall be so furnished
as soon as available. The Company will pay the expenses of printing
and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the
Representatives designate and will continue such qualifications in
effect so long as required for the distribution.
17
(g) The Company will pay all expenses (together with VAT where
applicable) incidental to the performance of the obligations of the
Company and the Selling Stockholders, as the case may be, under this
Agreement, including (A) the fees and other expenses (including
reasonable fees and disbursements of counsel) incurred in connection
with qualification of the Offered Securities for sale under the laws
of such jurisdictions as the Representatives designate and the
printing of memoranda relating thereto; (B) the expenses incurred in
distributing preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto) to the Underwriters; (C) the
expenses incurred for preparing, printing and distributing any Issuer
Free Writing Prospectuses to investors or prospective investors; (D)
for the filing fee incident to the review by the National Association
of Securities Dealers, Inc. of the Offered Securities and (E) for any
travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities,
including the cost of any aircraft chartered in connection with
attending or hosting such meetings; provided, however, that each of
the Selling Stockholders will pay all fees of counsel engaged by such
Selling Stockholder.
(h) The Company will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any
interest and penalties, on the creation, issue and sale of the Offered
Securities and on the execution and delivery of this Agreement unless
resulting solely from a grossly negligent act or omission on the part
of an Underwriter. All payments to be made by the Company hereunder
shall be made without withholding or deduction for or on account of
any present or future taxes, duties or governmental charges whatsoever
unless the Company is compelled by law to deduct or withhold such
taxes, duties or charges. In that event, the Company shall pay such
additional amounts as may be necessary in order that the net amounts
received after such withholding or deduction shall equal the amounts
that would have been received if no withholding or deduction had been
made.
(i) For the period specified below (the "LOCK-UP PERIOD"), the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional
shares of its Securities or securities convertible into or
exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the
Representatives, except grants of employee stock options pursuant to
the terms of a plan in effect on the date hereof, issuances of
Securities pursuant to the exercise of such options or the exercise of
any other employee stock options outstanding on the date hereof or
issuances of Securities pursuant to the Company's dividend
reinvestment plan. The initial Lock-Up Period will commence on the
date hereof and will continue and include the date 180 days after the
date hereof or such earlier date that the Representatives consent to
in writing; provided, however, that if (i) during the last 17 days of
the initial Lock-Up Period, the Company releases earnings results or
material news or a material event relating to the Company occurs or
(ii) prior to the expiration of the initial Lock-Up Period, the
Company announces that it will release earnings results during the
16-day period beginning on the
18
last day of the initial Lock-Up Period, then in each case the Lock-Up
Period will be extended until the expiration of the 18-day period
beginning on the date of release of the earnings results or the
occurrence of the material news or material event, as applicable,
unless the Representatives waive, in writing, such extension. The
Company will provide the Representatives with notice of any
announcement described in clause (ii) of the preceding sentence that
gives rise to an extension of the Lock-Up Period.
(j) The Selling Stockholders agree during the Lock-Up Period not
to offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any additional shares of the Securities of the
Company or securities convertible into or exchangeable or exercisable
for any shares of Securities, enter into a transaction which would
have the same effect, or enter into any swap, hedge or other
arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or
disposition, or enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of the
Representatives. The initial Lock-Up Period will commence on the date
hereof and will continue and include the date 180 days after the date
hereof or such earlier date that the Representatives consent to in
writing; provided, however, that if (i) during the last 17 days of the
initial Lock-Up Period, the Company releases earnings results or
material news or a material event relating to the Company occurs or
(ii) prior to the expiration of the initial Lock-up Period, the
Company announces that it will release earnings results during the
16-day period beginning on the last day of the initial Lock-Up Period,
then in each case the Lock-Up Period will be extended until the
expiration of the 18-day period beginning on the date of release of
the earnings results or the occurrence of the material news or
material event, as applicable, unless the Representatives waive, in
writing, such extension. A transfer of Securities to a family member,
trust or controlled affiliate may be made, provided the transferee
agrees to be bound in writing by the terms of this Section 5(j) prior
to such transfer and no filing by any party (donor, donee, transferor
or transferee) under the Securities Exchange Act of 1934 shall be
required or shall be voluntarily made in connection with such transfer
(other than a filing on a Form 5 made after the expiration of the
Lock-Up Period).
6. Free Writing Prospectuses. The Company represents and agrees that,
unless it obtains the prior consent of the Representatives, and each Underwriter
represents and agrees that, unless it obtains the prior consent of the Company
and the Representatives, it has not made and will not make any offer relating to
the Offered Securities that would constitute an Issuer Free Writing Prospectus,
or that would otherwise constitute a "free writing prospectus", as defined in
Rule 405, required to be filed with the Commission. Any such free writing
prospectus consented to by the Company and the Representatives is hereinafter
referred to as a "PERMITTED FREE WRITING PROSPECTUS". The Company represents
that it has treated and 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 Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including timely Commission
filing where required, legending and record keeping. The Company represents that
it has satisfied and agrees
19
that it will satisfy the conditions in Rule 433 to avoid a requirement to file
with the Commission any electronic road show.
7. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Pistrelli, Xxxxx Xxxxxx
y Associados SRL (a member of Ernst & Young Global) concerning the
financial information with respect to the Company set forth in the General
Disclosure Package in the form attached as Exhibit A.
(b) Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Selling Stockholders, the Company or the Representatives,
shall be contemplated by the Commission. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the execution
and delivery of this Agreement, such Effective Time shall have occurred not
later than 10:00 p.m., New York time, on the date of this Agreement or, if
earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by the Representatives. The Prospectus shall have been filed
with the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Underwriters including the Representatives, is material
and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) or any announcement
that the Company has been placed on negative
20
outlook; (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the judgment of a majority in interest of the Underwriters
including the Representatives, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange or Nasdaq or
any setting of minimum prices for trading on such exchange or market; (v)
any suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (vi) any banking moratorium declared by
U.S. Federal, New York, Argentinean, Bahamian, Bolivian, Chilean,
Panamanian or Paraguayan authorities; (vii) any major disruption of
settlements of securities or clearance services in the United States;
(viii) any accident, calamity, or other loss, including any event involving
the accidental discharge or release of oil or other petroleum products into
the environment, involving any of the vessels owned directly or indirectly
by the Company if, in the judgment of a majority in interest of the
Underwriters including the Representatives, the effect of any such
accident, calamity or loss makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the
Offered Securities; or (ix) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, Argentina, the
Bahamas, Bolivia, Brazil, Chile, Panama, Paraguay or Uruguay, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of the
Underwriters including the Representatives, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received the following legal
opinions, each dated as of the relevant Closing Date:
(i) of Xxxxxx & Xxxxxx LLP, counsel for the Company, in the
form attached as Exhibit B;
(ii) with regard to each Optional Closing Date only, of
Xxxxxxxxx & Xxxxxxx LLP, special New York counsel for Solimar
Holdings Ltd. in the form attached as Exhibit C-1;
(iii) with regard to each Optional Closing Date only, of
Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for Solimar
Holdings Ltd. in the form attached as Exhibit C-2;
(iv) with regard to each Optional Closing Date only, of
, counsel for Inversiones Los Avellanos S.A., in the
form attached as Exhibit C-3;
(v) with regard to each Optional Closing Date only, of Xxxxx
& Xxxxxxx, counsel for Hazels (Bahamas) Investments, Inc., in the
form attached as Exhibit C-4;
21
(vi) of Xxxxx Xxxxx, Grondona, Benites, Xxxxxxx & Xxxxxxxx
xx Xxx, Xx., Argentinean counsel for the Company in the form
attached as Exhibit D;
(vii) of Xxxxx & Xxxxxxx, Bahamian counsel for the Company,
in the forms attached as Exhibits E-1 and E-2;
(viii) of Bufete Xxxxxxx Xxxxxxxx S.C., Bolivian counsel for
the Company, in the form attached as Exhibit F;
(ix) of Barros & Errazuriz Abogados, Chilean counsel for the
Company, in the form attached as Exhibit G;
(x) of Xxxxxx & Xxxxxx LLP, Liberian counsel for the
Company, in the form attached as Exhibit H;
(xi) of Xxxxx, Xxxxxxx y Xxxxxx, Panamanian counsel for the
Company, in the form attached as Exhibit I;
(xii) of Xxxxxxxx, Prono & Xxxxxxxx, Paraguayan counsel for
the Company, in the form attached as Exhibit J; and
(xiii) of Cuatrecasas, Spanish counsel for the Company, in
the form attached as Exhibit K; and
(xiv) of Xxxx X. Xxxxx, Florida counsel for the Company, in
the form attached as Exhibit L.
(e) The Representatives shall have received from Cravath, Swaine &
Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated
the relevant Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such Closing
Date, the Registration Statements, the Prospectus and other related matters
as the Representatives may require, and the Selling Stockholders and the
Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters. In rendering
such opinion, Cravath, Swaine & Xxxxx LLP may rely as to the incorporation
of the Company and all other matters governed by Bahamian law upon the
opinion of Xxxxx & Xxxxxxx referred to above.
(f) The Representatives shall have received a certificate, dated the
relevant Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company or the Secretary
of the Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that: the representations and
warranties of the Company in this Agreement are true and correct in the
case of representations and warranties which are qualified as to
materiality, and true and correct in all material respects, in the case of
representations and warranties that are not so qualified; that the Company
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
22
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b),
including payment of the applicable filing fee in accordance with Rule
111(a) or (b) under the Act, prior to the Applicable Time; subsequent to
the respective dates of the most recent financial statements in the General
Disclosure Package, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except as
set forth in the General Disclosure Package or as described in such
certificate; and there are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of
capital stock of the Company.
(g) The Representatives shall have received a letter, dated the
relevant Closing Date, of Pistrelli, Xxxxx Xxxxxx y Associados SRL (a
member of Ernst & Young Global) which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing
Date for the purposes of this subsection.
(h) On or prior to the date of this Agreement, the Representatives
shall have received lock-up letters from each of the executive officers and
directors of the Company.
(i) On or prior to the date of this Agreement, the Representatives
shall have received lock-up letters from each of the Selling Stockholders.
(j) The Amended Memorandum and Articles shall have been duly
authorized by the shareholders and board of directors of the Company, shall
have been filed with the Companies Registry and shall be in full force and
effect.
(k) Either (i) the Custodian will deliver to the Representatives a
letter stating that he will deliver to each Selling Stockholder a United
States Treasury Department Form 1099 (or other applicable form or statement
specified by the United States Treasury Department regulations in lieu
thereof) on or before January 31 of the year following the date of this
Agreement or (ii) to avoid a 28% backup withholding tax the Each Selling
Stockholder will deliver to the Representatives a properly completed and
executed United States Treasury Department Form W-8-BEN (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof).
The Company and the Selling Stockholders will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. The Representatives may in their sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
23
8. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, members, directors, officers and
its affiliates and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
breach of any of the representations and warranties of the Company contained
herein or any untrue statement or alleged untrue statement of any material fact
contained in any part of any Registration Statement at any time, any Statutory
Prospectus as of any time, the Prospectus or any Issuer Free Writing Prospectus,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, including any losses, claims,
damages or liabilities arising out of or based upon the Company's failure to
perform their respective obligations under Section 5(a) of this Agreement, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
(b) Each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless each Underwriter, its partners, members,
directors and officers and its affiliates and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, but only to the extent that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by that Selling Stockholder
specifically for use therein; provided, however, that the Selling
Stockholders will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by an Underwriter through the
Representative specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as
24
such in subsection (c) below; provided, further, that the liability under
this subsection of the Selling Stockholders shall be limited to an amount
equal to the aggregate proceeds after underwriting commissions and
discounts, but before expenses, to the Selling Stockholders from the sale
of Securities sold by the Selling Stockholders hereunder.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Act, and
each Selling Stockholder against any losses, claims, damages or liabilities
to which the Company or the Selling Stockholders may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in any part of any Registration Statement at any time, any
Statutory Prospectus as of any time, the Prospectus, or any Issuer Free
Writing Prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact necessary in order to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company
and the Selling Stockholders in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the paragraph under the caption
"Underwriting" and the information contained in the paragraphs under
the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a), (b) or (c) above, notify the indemnifying party of
the commencement thereof; but the failure to notify the indemnifying party
shall not relieve it from any liability that it may have under subsection
(a), (b) or (c) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have
to an indemnified party otherwise than under subsection (a), (b) or (c)
above. In case any such action is brought against any indemnified party and
it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party
25
in connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding anything contained herein to the contrary,
if indemnity may be sought pursuant to the last paragraph in Section 8 (a)
hereof in respect of such action or proceeding, then in addition to such
separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate
firm (in addition to any local counsel) for the Designated Underwriter for
the defense of any losses, claims, damages and liabilities arising out of
the Directed Share Program, and all persons, if any, who control the
Designated Underwriter within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act. 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. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action 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 (i) includes an unconditional
release of such indemnified party from all liability on any claims that are
the subject matter of such action and (ii) does not include a statement as
to, or an admission of, fault, culpability, or a failure to act by or on
behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a),
(b) or (c) above, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a), (b) or (c)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one
hand and the Underwriters on the other from the offering of the Securities
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 and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating
26
or defending any action or claim which is the subject of this subsection
(e). Notwithstanding the provisions of this subsection (e), no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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. The Underwriters'
obligations in this subsection (e) to contribute are several in proportion
to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and
the Selling Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
(as hereinafter defined) within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company
and to each person, if any, who controls the Company, and to each officer
of the Company who has signed the Registration Statement within the meaning
of the Act.
9. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Company and the
Selling Stockholders for the purchase of such Offered Securities by other
persons, including any of the Underwriters, but if no such arrangements are made
by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to the Representatives, the Company and the
Selling Stockholders for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company, or the Selling Stockholders except as provided in Section 10 (provided,
that if such default occurs with respect to Optional Securities after the First
Closing Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
27
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Selling
Stockholders, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
9 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company and the Underwriters
pursuant to Section 8 shall remain in effect, and if any Offered Securities have
been purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 9
or the occurrence of any event specified in clause (iii), (iv), (vi), (vii),
(viii) or (ix) of Section 7(c), the Company and the Selling Stockholders will,
jointly and severally, reimburse the Underwriters for only actual out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives at UBS Securities LLC, , Attention: and
at Bear, Xxxxxxx & Co. Inc., , or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Ultrapetrol (Bahamas) Limited
, Attention: Xxxxxx Xxxxxxxx Xxxx if sent to Solimar Holdings Ltd., will
be mailed, delivered or telegraphed and confirmed to it at Solimar Holdings
Ltd., , Attention: ; if sent to the Inversiones Los Avellanos
S.A. or Hazels, will be mailed, delivered or telegraphed and confirmed to it at
Inversiones Los Avellanos S.A., , Attention: ; provided, however,
that any notice to an Underwriter pursuant to Section 8 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 8, and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives will be binding upon all the
Underwriters. will act for the Selling Stockholders in connection
with such transactions, and any action under or in respect of this Agreement
taken by will be binding upon all the Selling Stockholders.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
28
15. Absence of Fiduciary Relationship. The Company and the Selling
Stockholders acknowledge and agree that:
(a) the Representatives have been retained solely to act as
underwriters in connection with the sale of Offered Securities and that no
fiduciary, advisory or agency relationship between the Company or the
Selling Stockholders, on the one hand, and the Representatives, on the
other, has been created in respect of any of the transactions contemplated
by this Agreement or the Prospectus, irrespective of whether the
Representatives have advised or are advising the Company or the Selling
Stockholders on other matters;
(b) the price of the Offered Securities set forth in this Agreement
was established by the Company and the Selling Stockholders following
discussions and arm's-length negotiations with the Representatives and the
Company and the Selling Stockholders are capable of evaluating and
understanding and understand and accept the terms, risks and conditions of
the transactions contemplated by this Agreement;
(c) the Company and the Selling Stockholders have been advised that
the Representatives and their affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the
Company or the Selling Stockholders and that the Representatives have no
obligation to disclose such interests and transactions to the Company or
the Selling Stockholders by virtue of any fiduciary, advisory or agency
relationship; and
(d) the Company and the Selling Stockholders waive, to the fullest
extent permitted by law, any claims they may have against the
Representatives for breach of fiduciary duty or alleged breach of fiduciary
duty and agree that the Representatives shall have no liability (whether
direct or indirect) to the Company or the Selling Stockholders 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 the Company.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. The Company irrevocably appoints , as its
authorized agent in the Borough of Manhattan in The City of New York upon which
process may be served in any such suit or proceeding, and agrees that service of
process upon such agent, and written notice of said service to the Company by
the person serving the same to the address provided in Section 11, shall be
deemed in every respect effective service of process upon the Company in any
such suit or proceeding. The Company further agrees to take any and all action
as may be necessary to maintain such designation and
29
appointment of such agent in full force and effect for a period of seven years
from the date of this Agreement.
The obligation of the Company in respect of any sum due to any Underwriter
shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first business day, following receipt by
such Underwriter of any sum adjudged to be so due in such other currency, on
which (and only to the extent that) such Underwriter may in accordance with
normal banking procedures purchase United States dollars with such other
currency; if the United States dollars so purchased are less than the sum
originally due to such Underwriter hereunder, the Company agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss. If the United States dollars so purchased are greater than
the sum originally due to such Underwriter hereunder, such Underwriter agrees to
pay to the Company an amount equal to the excess of the dollars so purchased
over the sum originally due to such Underwriter hereunder.
30
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
ULTRAPETROL (BAHAMAS) LIMITED
By.......................
Name:
Title:
SOLIMAR HOLDINGS LTD.
By.......................
Name:
Title:
INVERSIONES LOS AVELLANOS, S.A.
By.......................
Name:
Title:
HAZELS (BAHAMAS) INVESTMENTS INC.
By.......................
Name:
Title:
31
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
Acting on behalf of themselves and as the Representatives of the several
Underwriters.
UBS SECURITIES LLC
By......................................................
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By......................................................
Name:
Title:
32
SCHEDULE A
UNDERWRITER
NUMBER OF
FIRM SECURITIES
TO BE PURCHASED
---------------
UBS Securities LLC....................................
Bear, Xxxxxxx & Co. Inc...............................
DVB Capital Markets LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated...........................
Xxxxxxxxx & Company, Inc.
Xxxxxxx Xxxxx & Associates, Inc.......................
------------------------
Total.......................
========================
SCHEDULE B
SELLING STOCKHOLDER
NUMBER OF OPTIONAL
SECURITIES TO BE SOLD
---------------------
Solimar Holdings Ltd. ................................
Inversiones Los Avellanos S.A. .......................
Hazels (Bahamas) Investments Inc. ....................
------------------------
Total......................
========================
EXHIBIT A
FORM OF COMFORT LETTER OF PISTRELLI, XXXXX XXXXXX Y ASOCIADOS SRL
(A MEMBER OF ERNST & YOUNG GLOBAL)
TO BE DATED THE DATE OF THIS AGREEMENT
The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of
Pistrelli, Xxxxx Xxxxxx y Associados SRL (a member of Ernst & Young
Global) confirming that they are independent public accountants within
the meaning of the Act and the applicable published Rules and
Regulations thereunder adopted by the SEC and the Public Company
Accounting Oversight Board (United States) ("PCAOB"), and within the
meaning of the standards established by the Professional Council in
Economic Sciences of the Buenos Aires City for independent public
accountants in Argentina and that they are registered with the PCAOB
and stating to the effect that:
(i) in their opinion the financial statements and schedules
and summary of earnings examined by them and included or
incorporated by reference in the Registration Statements and the
General Disclosure Package comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 100, Interim Financial Information, on the
unaudited financial statements included in the Registration
Statements and the General Disclosure Package;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements included in the
Registration Statements or the General Disclosure Package do
not comply as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally
accepted accounting principles;
(B) the unaudited consolidated net sales, net operating
income, net income and net income per share amounts for the
-month periods ended included in the
Registration Statements or the General Disclosure
Package do not agree with the amounts set forth in the
unaudited consolidated financial statements for those same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited statements of income;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements, each Issuer
Free Writing Prospectus (other than any Issuer Free Writing
Prospectus that is an "electronic road show," as defined in Rule
433(h)) and the General Disclosure Package (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of
the Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter;
(v) (A) they have read the unaudited pro forma consolidated
balance sheet as of March 31, 2006, and the unaudited pro forma
condensed statements of operations for the year ended December
31, 2005 and the three-month period ended March 31, 2006, all
included in the Registration Statement or the General Disclosure
Package;
(B) they have inquired of certain officials of the
Company who have responsibility for financial and accounting
matters as to:
(I) the basis for their determination of the pro
forma adjustments; and
(II) whether the unaudited pro forma condensed
consolidated financial statements referred to in
Section (v) above comply as to form in all material
respects with the applicable requirements of Rule
11-02 of Regulation S-X;
(C) they have proved the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the unaudited pro forma condensed financial
statements; and
(D) Nothing came to their attention as a result of the
procedures specified in paragraph (A), however, that caused
them to believe that the unaudited pro forma financial
statements referred to therein included in the registration
statement do not comply as to form in all material respects
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X and that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements.
For purposes of this Form, if the Effective Time of the
Additional Registration Statement is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
Initial Registration Statement and the Additional Registration
Statement as
proposed to be filed shortly prior to its Effective Time, and
"PROSPECTUS" shall mean the prospectus included in the Registration
Statements. All financial statements and schedules included in
material incorporated by reference into the Prospectus shall be deemed
included in the Registration Statements for purposes of this Form.
EXHIBIT B
FORM OF LEGAL OPINION OF XXXXXX & XXXXXXX LLP
COUNSEL FOR THE COMPANY
EXHIBIT C-1
FORM OF LEGAL OPINION OF XXXXXXXXX & XXXXXXX LLP,
SPECIAL NEW YORK COUNSEL FOR SOLIMAR HOLDINGS LTD.
EXHIBIT C-2
FORM OF LEGAL OPINION OF XXXXXXX XXXX & XXXXXXX,
SPECIAL BERMUDA COUNSEL FOR SOLIMAR HOLDINGS LTD.
EXHIBIT C-3
FORM OF LEGAL OPINION OF ,
COUNSEL FOR INVERSIONES LOS AVELLANOS S.A.
EXHIBIT C-4
FORM OF LEGAL OPINION OF XXXXX & XXXXXXX,
COUNSEL FOR HAZELS (BAHAMAS) INVESTMENTS INC.
EXHIBIT D
FORM OF LEGAL OPINION OF XXXXX XXXXX, GRONOONA,
XXXXXXX, ARNSEN & XXXXXXXX XX XXX, XX.,
ARGENTINIAN COUNSEL FOR THE COMPANY
EXHIBIT E
FORM OF LEGAL OPINIONS OF XXXXX & XXXXXXX,
BAHAMIAN COUNSEL FOR THE COMPANY
EXHIBIT F
FORM OF LEGAL OPINION OF BUFETE XXXXXXX XXXXXXXX S.C.,
BOLIVIAN COUNSEL FOR THE COMPANY
EXHIBIT G
FORM OF LEGAL OPINION OF BARROS & ERRA ZURIZ ABOGADOS,
CHILEAN COUNSEL FOR THE COMPANY
EXHIBIT H
FORM OF LEGAL OPINION OF XXXXXX & XXXXXX LLP,
LIBERIAN COUNSEL FOR THE COMPANY
EXHIBIT I
FORM OF LEGAL OPINION OF XXXXX, XXXXXXX Y XXXXXX,
PANAMANIAN COUNSEL FOR THE COMPANY
EXHIBIT J
FORM OF OPINION OF XXXXXXXX, PRONO & TALAVARA,
PARAGUAYAN COUNSEL FOR THE COMPANY
EXHIBIT K
FORM OF OPINION OF ,
SPANISH COUNSEL FOR THE COMPANY
EXHIBIT L
FORM OF OPINION OF XXXX X. XXXXX,
FLORIDA COUNSEL FOR THE COMPANY
APPENDIX I
Public offering price of Offered Securities: $ per share.
Number of Firm Securities sold by the Company: shares.
APPENDIX II
(a) General Use Issuer Free Writing Prospectuses: The Free Writing Prospectus
of the Company, dated
(b) Limited Use Issuer Free Writing Prospectuses: none
