Form of Sales Agreement
SALES AGREEMENT
[Date]
Cantor Xxxxxxxxxx & Co.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Hibernia Southcoast Capital, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Dear Sirs/Ladies:
Excel Maritime Carriers Ltd., a corporation incorporated under the laws of
the Republic of Liberia (the "Company"), confirms its agreement (this
"Agreement") with Cantor Xxxxxxxxxx & Co. ("CF&Co") and ------- --------- -----
Hibernia Southcoast Capital, Inc. ("Hibernia" and, together with CF&Co, the
"Sales Agents") as follows: --------- ------------
1. Issuance and Sale of Shares. The Company agrees that, from time to time
during the term of this Agreement, on the terms and subject to the conditions
set forth herein, it will issue and sell through the Sales Agents, acting as
agents, up to a number of shares equal to $145,000,000 (the "Shares") of the
Company's Class A common stock, $0.01 par value ("Common Stock"); provided,
however, that with respect to "at-the-market" sales (as defined in Section 3
hereof), which may only be effected on the Company's behalf by CF&Co, the
aggregate sales price shall not exceed $32,110,000, which represents less than
ten percent (10%) of the aggregate market value of the outstanding Common Stock
held by non-affiliates of the Company in accordance with Rule 415 of the
Securities Act of 1933, as amended (the "Act"). Notwithstanding anything to the
contrary contained herein, the parties hereto agree that compliance with the
limitations set forth in this Section 1 on the number and aggregate sales price
of Shares issued and sold under this Agreement in "at-the-market" transactions
shall be the sole responsibility of the Company, and the Sales Agents shall have
no obligation in connection with such compliance. The issuance and sale of
Shares through CF&Co or the Sales Agents, as the case may be, will be effected
pursuant to the Registration Statement (as defined below) filed by the Company
and declared effective by the Securities and Exchange Commission (the
"Commission").
2. Placements. Each time that the Company wishes to issue and sell Shares
hereunder (each, a "Placement"), it will notify CF&Co, as the representative of
the Sales Agents, of the proposed terms of such Placement. If CF&Co wishes to
accept such proposed terms (which it may decline to do for any reason in its
sole discretion) or, following discussions with the Company, wishes to accept
amended terms, CF&Co will issue to the Company a written notice setting forth
the terms that the CF&Co is willing to accept, including, without limitation,
the number of Shares ("Placement Shares") to be issued, the manner(s) in which
sales are to be made, the date or dates on which such sales are anticipated to
be made, any minimum price below which sales may not be made (a "Placement
Notice"), the form of which is attached hereto as Schedule 1. Subject to
paragraph 3 below relating to negotiated transactions for which the amount of
compensation payable to the Sales Agents shall be higher, the amount of
compensation to be paid by the Company to the CF&Co with respect to each
Placement shall be three percent (3%) of gross proceeds for each Placement. The
terms set forth in a Placement Notice will not be binding on the Company, CF&Co
or Hibernia unless and until the Company delivers written notice of its
acceptance of all of the terms of such Placement Notice (an "Acceptance");
provided, however, that none of the Company, CF&Co nor Hibernia will not be
bound by the terms of a Placement Notice unless the Company delivers to CF&Co an
Acceptance with respect thereto prior to 4:30 p.m. (New York time) on the
Business Day (as defined below) following the Business Day on which such
Placement Notice is delivered to the Company. It is expressly acknowledged and
agreed that none of the Company, CF&Co nor Hibernia will have any obligation
whatsoever with respect to a Placement or any Placement Shares unless and until
CF&Co delivers a Placement Notice to the Company and the Company accepts such
Placement Notice by means of an Acceptance, and then only upon the terms
specified therein and herein. In the event of a conflict between the terms of
this Agreement and the terms of a Placement Notice, the terms of the Placement
Notice will control.
3. Sale of Placement Shares by CF&Co. Subject to the terms and conditions
of this Agreement and the applicable Placement Notice, upon the Acceptance of a
Placement Notice, and unless the sale of the Placement Shares described therein
has been suspended or otherwise terminated in accordance with the terms of this
Agreement, the Sales Agents will use their commercially reasonable efforts
consistent with its normal trading and sales practices to sell on behalf of the
Company and as agent, such Placement Shares up to the amount specified, and
otherwise in accordance with the terms of such Placement Notice. The Sales
Agents will provide written confirmation to the Company no later than the
opening of the Trading Day next following the Trading Day on which it has made
sales of Placement Shares hereunder setting forth the number of Placement Shares
sold on such day, the compensation payable by the Company to the Sales Agents
with respect to such sales, and the Net Proceeds (as defined below) payable to
the Company. CF&Co may sell Placement Shares by any method permitted by law
deemed to be an "at-the-market" offering as defined in Rule 415 of the Act,
including without limitation sales made directly on the American Stock Exchange
(the "Exchange"), on any other existing trading market for the Common Stock or
to or through a market maker. The Sales Agents may also sell Placement Shares in
negotiated transactions, for which the amount of compensation to be paid by the
Company to the Sales Agents shall be five and three-quarter percent (5 3/4%) of
the gross proceeds with respect to such negotiated sales. Notwithstanding
anything to the contrary set forth in this Agreement or a Placement Notice, the
Company acknowledges and agrees that (i) there can be no assurance that the
Sales Agents will be successful in selling any Placement Shares or as to the
price at which any Placement Shares are sold, if at all, and (ii) the Sales
Agents will incur no liability or obligation to the Company or any other person
or entity if it does not sell Placement Shares for any reason other than a
failure by the Sales Agents to use their commercially reasonable efforts
consistent with its normal trading and sales practices to sell such Placement
Shares as provided under this Section 3. For the purposes hereof, "Trading Day"
means any day on which Common Stock is purchased and sold on the principal
market on which the Common Stock is listed or quoted.
4. Suspension of Sales. The Company or the Sales Agents may, upon notice to
the other party in writing or by telephone (confirmed immediately by verifiable
facsimile transmission), suspend any sale of Placement Shares; provided,
however, that such suspension shall not affect or impair either party's
obligations with respect to any Placement Shares sold hereunder prior to the
receipt of such notice. The Company agrees that no such notice shall be
effective against the Sales Agents unless it is made to one of the individuals
named on Schedule 2 hereto, as such Schedule may be amended from time to time.
5. Settlement.
(a) Settlement of Placement Shares. Unless otherwise specified in the
applicable Placement Notice, settlement for sales of Placement Shares will
occur on the third (3rd) Business Day (or such earlier day as is industry
practice for regular-way trading) following the date on which such sales
are made (each a "Settlement Date"). The amount of proceeds to be delivered
to the Company on a Settlement Date against the receipt of the Placement
Shares sold ("Net Proceeds") will be equal to the aggregate sales price at
which such Placement Shares were sold, after deduction for (i) the
commission or other compensation for such sales payable by the Company to
CF&Co or the Sales Agents, as the case may be, pursuant to Section 2 or
Section 3 hereof, as the case may be, (ii) any other amounts due and
payable by the Company to the Sales Agents hereunder pursuant to Section
7(h) hereof, and (iii) any transaction fees imposed by any governmental or
self-regulatory organization in respect of such sales.
(b) Delivery of Shares. On each Settlement Date, the Company will, or
will cause its transfer agent to, electronically transfer the Placement
Shares being sold by crediting the Sales Agents' accounts or its designee's
account at The Depository Trust Company through its Deposit Withdrawal
Agent Commission System or by such other means of delivery as may be
mutually agreed upon by the parties hereto and, upon receipt of such
Placement Shares, which in all cases shall be freely tradeable,
transferable, registered shares in good deliverable form, the Sales Agents
will, on each Settlement Date, deliver the related Net Proceeds in same day
funds delivered to an account designated by the Company prior to the
Settlement Date. If the Company defaults in its obligation to deliver
Placement Shares on a Settlement Date, the Company agrees that in addition
to and in no way limiting the rights and obligations set forth in Section
10 hereto, it will (i) hold the Sales Agents harmless against any loss,
claim, damage, or expense (including reasonable legal fees and expenses),
as incurred, arising out of or in connection with such default by the
Company and (ii) pay to the Sales Agents any commission, discount, or other
compensation to which it would otherwise have been entitled absent such
default.
6. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Sales Agents that:
(a) The Common Stock is registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
Company has filed all reports, schedules, forms, statements and other
documents required to be filed by it with the Commission (the "Commission
Documents") for the past two (2) years, and all of such filings have been
made on a timely basis. The Common Stock is currently listed on the
Exchange under the trading symbol "EXM". The Company meets the requirements
of Form F-3 under the Act and the rules and regulations thereunder ("Rules
and Regulations") including but not limited to the transactions
requirements for an offering made by the issuer set forth in Instruction
I.B.1 to Form F-3. The Company has filed a registration statement on Form
F-3 (Registration Statement No. 333-120259) with respect to an aggregate of
$200,000,000 of securities of the Company, which was declared effective by
the Commission on November 19, 2004 (as amended or supplemented, the
"Registration Statement"). The Registration Statement, including the base
prospectus contained therein (the "Base Prospectus") was prepared by the
Company in conformity with the requirements of the Act and all applicable
Rules and Regulations. One or more prospectus supplements (the "Prospectus
Supplements", and together with the Base Prospectus and any amendment
thereto and all documents incorporated therein by reference, the
"Prospectus") will be prepared by the Company in conformity with the
requirements of the Act and all applicable Rules and Regulations and will
be filed with the Commission in the manner and time frame required by the
Act and the Rules and Regulations. Any amendment or supplement to the
Registration Statement or Prospectus required by this Agreement will be so
prepared and filed by the Company, and, as applicable, the Company will use
its best reasonable efforts to cause it to become effective as soon as
reasonably practicable. No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose
has been instituted or threatened by the Commission. Copies of all filings
made by the Company under the Act and all Commission Documents that were
filed with the Commission on or within the two years prior to the date of
this Agreement have either been delivered to the Sales Agents or made
available to the Sales Agents on the Commission's Electronic Data
Gathering, Analysis, and Retrieval system ("XXXXX"). Any reference herein
to the Registration Statement, the Prospectus, or any amendment or
supplement thereto shall be deemed to refer to and include the documents
incorporated (or deemed to be incorporated) by reference therein, and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or Prospectus shall be deemed to
refer to and include the filing after the execution hereof of any document
with the Commission deemed to be incorporated by reference therein.
(b) Each part of the Registration Statement, when such part became or
becomes effective, and the Prospectus, on the date of filing thereof with
the Commission and at each Settlement Date, conformed or will conform in
all material respects with the requirements of the Act and the Rules and
Regulations; each part of the Registration Statement, when such part became
or becomes effective, did not or will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Prospectus, on the date of filing thereof with the Commission and at each
Settlement Date, did not or will not include an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; except that the foregoing shall not apply to
statements or omissions in any such document made in reliance on
information furnished to the Company by the Sales Agents specifically
stating that it is intended for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto.
(c) The documents incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto (the
"Disclosure Documents"), when they became effective under the Act or were
filed with the Commission under the Exchange Act, as the case may be,
conformed in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement or the Prospectus or any further
amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform to the
requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; except that the foregoing will not apply to statements or
omissions in any such document made in reliance on information furnished to
the Company by the Sales Agents specifically stating that it is intended
for use in any such document
(d) The consolidated financial statements and financial schedules of
the Company and the subsidiaries of the Company listed on Schedule 3 hereto
(collectively, the "Subsidiaries", and each, individually, a "Subsidiary"),
together with the related notes set forth or incorporated by reference in
the Registration Statement and Prospectus, have been and will be prepared
in accordance with Regulation S-X under the Act and with United States
generally accepted accounting principles consistently applied at the times
and during the periods involved (except (i) as may be otherwise indicated
in such financial statements or the notes thereto, or (ii) in the case of
unaudited interim statements, to the extent they may exclude footnotes or
may be condensed or summary statements) and fairly present and will fairly
present the financial position of the Company as of the dates thereof and
the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end
adjustments).
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Liberia with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and
Prospectus; and the Company is duly qualified as a foreign entity to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure,
individually or in the aggregate, to be so qualified and be in good
standing would not have a material adverse effect on (i) the consolidated
business, operations, properties, financial condition, reputation,
prospects or results of operations of the Company and its Subsidiaries
taken as a whole, or (ii) the ability of the Company to perform its
obligations under this Agreement and consummate the transactions
contemplated hereunder (collectively, a "Material Adverse Effect").
(f) Each Subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has full corporate power and authority
to own, lease and operate its properties and conduct its business as
described in the Registration Statement and Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to be so qualified would not have a
Material Adverse Effect.
(g) Except as described in the Prospectus, all of the vessels
described in the Prospectus as owned by the Company or by a Subsidiary of
the Company are owned directly by Subsidiaries of the Company. The
Subsidiaries listed on Schedule 3 hereto are the only subsidiaries of the
Company and except for the Subsidiaries and as otherwise listed on Schedule
3 hereto, the Company owns no beneficial interest, directly or indirectly,
in any corporation, partnership, joint venture, limited liability company
or other entity.
(h) Each of the Company and its Subsidiaries has (i) good and
marketable title to all of the properties and assets owned by it, free and
clear of all liens, charges, claims, security interests or encumbrances
(collectively, "Encumbrances"), other than Encumbrances that would not have
a Material Adverse Effect, and (ii) possession under all material leases to
which it is party as lessee. All leases to which the Company or any of its
Subsidiaries is a party are valid and binding and no material default has
occurred and is continuing thereunder, and no event or circumstance that
with the passage of time or giving of notice, or both, would constitute
such a material default has occurred and is continuing, and, to the best
knowledge of the Company, no defaults by the landlord exist under any such
leases.
(i) No relationship, direct or indirect, exists between or among the
Company or any or its Subsidiaries on the one hand, and the directors,
officers, shareholders, customers or suppliers of the Company or any of its
Subsidiaries on the other hand, which is required by the Act to be
described in the Registration Statement and the Prospectus which is not so
described. Since the date of its incorporation, the Company has not,
directly or indirectly, including through any Subsidiary, extended or
maintained credit, or arranged for the extension of credit, or renewed or
amended any extension of credit, in the form of a personal loan to or for
any of its directors or executive officers.
(j) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(k) The Company has authorized and outstanding capitalization as set
forth in the Prospectus under the caption "Capitalization" as of the dates
indicated in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and have been issued in compliance with all
applicable United States federal and state and all applicable foreign
securities laws; and all of the issued shares of capital stock of each
Subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and the shares of such Subsidiary are
owned directly or indirectly by the Company, are held free and clear of all
Encumbrances.
(l) The Shares have been duly authorized and, when issued, delivered
and paid for pursuant to this Agreement, will be validly issued and fully
paid and non-assessable, free and clear of all Encumbrances and will be
issued in compliance with all applicable United States federal and state
and all applicable foreign securities laws; the capital stock of the
Company, including the Common Stock, conforms in all material respects to
the description thereof contained in the Registration Statement and the
Common Stock, including the Placement Shares, will conform to the
description thereof contained in the Prospectus as amended or supplemented.
Neither the stockholders of the Company, nor any other person or entity
have any preemptive rights or rights of first refusal with respect to the
Placement Shares or other rights to purchase or receive any of the
Placement Shares or any other securities or assets of the Company, and no
person has the right, contractual or otherwise, to cause the Company to
issue to it, or register pursuant to the Act, any shares of capital stock
or other securities or assets of the Company upon the issuance or sale of
the Placement Shares.
(m) Neither the Company nor any of its Subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus
any material loss or interference with the business of the Company and its
Subsidiaries, taken as a whole, including without limitation, from fire,
explosion, flood or other calamity or damage to any vessel, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree; subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, (i)
neither the Company nor any of its Subsidiaries has incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are material to
the Company and its Subsidiaries taken as a whole, and (ii) since the date
of the latest audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus there has not
been any material change, on a consolidated basis, in the authorized
capital stock of the Company and its Subsidiaries, any material increase in
the short-term debt or long-term debt of the Company and its Subsidiaries,
on a consolidated basis, or any Material Adverse Effect, or any development
reasonably likely to cause or result in a Material Adverse Effect.
(n) Except as set forth in the Prospectus, there is no legal,
governmental, administrative or other claim, proceeding, investigation,
action, suit or inquiry pending, or, to the Company's knowledge, threatened
against or affecting the Company or any of its Subsidiaries or any of their
respective properties or to which the Company or any of its Subsidiaries is
or may be a party or to which any property of the Company or any of its
Subsidiaries is or may be the subject, or against any officer, director or
employee of the Company or any such Subsidiary in connection with such
person's employment therewith that, if determined adversely to the Company
or any of its Subsidiaries or such officer, director or employee, could
individually or in the aggregate have, or reasonably be expected to have, a
Material Adverse Effect on the general affairs, business, prospects,
management, consolidated financial position, stockholders' equity or
results of operations of the Company and its Subsidiaries taken as a whole.
Neither the Company nor any of its Subsidiaries is a party to or subject to
the provisions of, any order, writ, injunction, judgment or decree of any
court or government agency or instrumentality which could have a Material
Adverse Effect.
(o) There are no legal, governmental or administrative proceedings,
investigations, actions, suits or inquiries or contracts or documents of
the Company or any of its Subsidiaries that are required to be described in
or filed as exhibits to the Commission Documents, Registration Statement or
any of the documents incorporated by reference therein by the Act or the
Exchange Act or by the rules and regulations of the Commission thereunder
that have not been so described or filed as required by the Act and the
Rules and Regulations thereunder.
(p) All necessary action has been duly and validly taken by the
Company to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly and validly authorized, executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except as rights to indemnification and contribution
hereunder may be limited by applicable law and except as enforcement hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether applied in a proceeding in law
or equity).
(q) Neither the Company nor any of its Subsidiaries is in violation of
any provisions of its charter, bylaws or any other governing document as
amended and in effect on and as of the date hereof or in default (and no
event has occurred which, with notice or lapse of time or both, would
constitute a default) under any indenture, mortgage, deed of trust, loan or
credit agreement or any provision of any instrument or contract to which it
is a party or by which it is bound that, individually or in the aggregate,
could have a Material Adverse Effect.
(r) Executing and delivering this Agreement and the issuance and sale
of the Shares and the compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions contemplated
herein will not result in (i) a breach or violation of any of the terms and
provisions of, or constitute a default under, any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan or credit agreement or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which any of them is
bound or to which any of the property of the Company or any of its
Subsidiaries is subject, (ii) a violation of the Company's charter or
by-laws, or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its Subsidiaries or any of its properties or (iii) the creation of any
material Encumbrance upon any assets of the Company or of any of its
Subsidiaries or the triggering, solely as a result of the Company's
execution and delivery of this Agreement, of any preemptive or
anti-dilution rights or rights of first refusal or first offer, or any
similar rights (whether pursuant to a "poison pill" provision or
otherwise), on the part of holders of the Company's securities or any other
person. Neither the Company nor any of its Subsidiaries or affiliates, nor
any person acting on its or their behalf, has issued or sold any shares of
Common Stock or securities or instruments convertible into, exchangeable
for and/or otherwise entitling the holder thereof to acquire shares of
Common Stock which would be integrated with the offer and sale of the
Shares hereunder.
(s) The Company and its Subsidiaries have not violated and are in
compliance with all laws, statutes, ordinances, regulations, rules and
orders of each foreign, federal, state or local government and any other
governmental department or agency having jurisdiction over the Company and
any Subsidiary, and any judgment, decision, decree or order of any court or
governmental agency, department or authority having jurisdiction over the
Company and any Subsidiary, except for such violations or noncompliance
which, individually or in the aggregate, would not have a Material Adverse
Effect.
(t) The Company and its Subsidiaries possess all such licenses,
permits, consents, orders, certificates, authorizations, approvals,
franchises and rights issued by and have obtained or made all such
registrations with the appropriate federal, state, foreign or local
regulatory agencies or judicial or governmental bodies that are necessary
to conduct their business as described in the Registration Statement and
the Prospectus except for licenses, permits, consents, orders,
certificates, authorizations, approvals, franchises, rights or
registrations, the absence of which, individually or in the aggregate,
would not have a Material Adverse Effect; the Company and its Subsidiaries
have not received any notice of proceedings or investigations relating to
the revocation or modification of any such licenses, permits, consents,
orders, certificates, authorizations, approvals, franchises, rights or
registrations which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect. No consent, approval, authorization, permit, or order of, or filing
or registration with, any court or governmental or self regulatory agency
or body is required for the issue and sale of the Shares and the
consummation by the Company of the transactions contemplated by this
Agreement, except the filing with the Commission of the Registration
Statement (including the Prospectus) and amendments and supplements to the
Registration Statement and Prospectus related to the issue and sale of the
Shares and such consents, approvals, authorizations, registrations or
qualifications as have already been obtained or made or as may be required
under state securities or Blue Sky laws;
(u) On the date hereof, and after the date hereof other than as set
forth in the Prospectus, the Company and its Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
prudent, reasonable and customary for companies engaged in similar
businesses in similar industries; neither the Company nor any of its
Subsidiaries has received notice from any insurer or agent of such insurer
that substantial capital improvements or other expenditures will have to be
made in order to continue such insurance; all such insurance is outstanding
and in full force and effect and neither the Company nor any Subsidiary has
received any notice of cancellation or proposed cancellation relating to
such insurance.
(v) On the date hereof, and after the date hereof other than as set
forth in the Prospectus, the Company and each of its Subsidiaries have
obtained all environmental permits, licenses and other authorizations
required by federal, state, foreign and local law, including any applicable
regulations and standards adopted by the International Maritime
Organization, relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), in order to conduct their businesses
as described in the Prospectus except where the failure to obtain a
particular environmental permit, license, or authorization, has not or
could not reasonably be expected to, either individually or in the
aggregate, result in a Material Adverse Effect; the Company and each of its
Subsidiaries are conducting their businesses in compliance with such
permits, licenses and authorizations and with applicable environmental
laws, except where the failure to be in compliance would not have a
Material Adverse Effect; and, except as described in the Prospectus, the
Company is not in violation of any federal, state, foreign or local law or
regulation relating to the storage, handling, disposal, release or
transportation of hazardous or toxic materials except for such violations
or noncompliance which, individually or in the aggregate, would not have a
Material Adverse Effect.
(w) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its Subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up or compliance with Environmental Laws or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of
such review, the Company has reasonably concluded that such associated
costs and liabilities which, individually or in the aggregate, would not
have a Material Adverse Effect.
(x) Ernst & Young, which has audited the financial statements of the
Company and its Subsidiaries included in the Registration Statement and the
Prospectus, is an independent public accountant as required by the Act and
the Rules and Regulations.
(y) No forward looking statement within the meaning of Section 27A of
the Act and Section 21E of the Exchange Act contained in the Commission
Documents, the Registration Statement or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
(z) The Company and each of its Subsidiaries own or possess sufficient
legal rights to all patents, trademarks, service marks, tradenames,
copyrights, trade secrets, licenses, information and proprietary rights and
processes necessary for their respective businesses as now conducted
(collectively, the "Company Intellectual Property Rights") without any
conflict with, or infringement of, the rights of others, except where the
failure to own or possess such Company Intellectual Property Rights,
individually or in the aggregate, would not have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries has received any written
communications alleging that the Company or any of its Subsidiaries has
violated or, by conducting its business, would violate any of the patents,
trademarks, service marks, service marks, tradenames, copyrights, trade
secrets or other proprietary rights or processes of any other person or
entity. All Company Intellectual Property Rights are enforceable and there
is no existing infringement by any person of such Company Intellectual
Property Rights. All patent applications that have been filed by the
Company or any of its Subsidiaries with the Patent and Trademark Office
have been duly filed by the Company or such Subsidiary, as applicable, has
taken all actions reasonably necessary to maintain the prosecution of such
patent applications.
(aa) On each Settlement Date and each Filing Date (as defined in
Section 7(m) below), the Company shall be deemed to have confirmed (i) the
accuracy and completeness, as of such date, of each representation and
warranty made by it in this Agreement, as if each such representation and
warranty were made on and as of such date, and (ii) that the Company has
complied with all of the agreements to be performed by it hereunder at or
prior to such date.
(bb) The Company was not, for the immediately preceding taxable year,
treated as, will not, for the current taxable year, be treated as, and does
not anticipate that, for any subsequent taxable year, it will be treated as
a "passive foreign investment company," a "foreign investment company" or a
"foreign personal holding company" for United States federal income tax
purposes.
(cc) The Company has filed all United States federal and state and all
applicable local and foreign income tax returns which have been required to
be filed, except in any case in which the failure to so file would not have
a Material Adverse Effect.
(dd) The Company has paid all United States federal, state and local
and foreign taxes required to be paid and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing would
otherwise be delinquent, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good faith and
except in any case in which the failure to so pay would not result in a
Material Adverse Effect.
(ee) The Company is not a party to any agreement with an agent or
underwriter for any other "at-the-market" or continuous equity transaction
or negotiated or underwritten public offering involving the Common Stock.
(ff) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 under the Exchange Act),
which (i) are designed to ensure that material information relating to the
Company, including its consolidated Subsidiaries, is made known to the
Company's principal executive officer and its principal financial officer
by others within those entities, particularly during the preparation of the
Registration Statement; (ii) have been evaluated for effectiveness as of
the date of the filing of the Registration Statement with the Commission;
and (iii) are effective in all material respects to perform the functions
for which they were established.
(gg) The Company has not taken, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Common Stock.
(hh) The Company is in full compliance with all applicable listing
standards of the Exchange.
(ii) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted only
in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(jj) Neither the Company nor any of its Subsidiaries has, or
guarantees any securities accorded a rating by any "nationally recognized
statistical rating organization", as such term is defined in Rule 436(g)(2)
under the Securities Act.
(kk) Neither the Company nor any of its Subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its Subsidiaries, has used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds, violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(ll) The Company acknowledges and agrees that the Sales Agents have
informed the Company that the Sales Agents may, to the extent permitted
under the Act and the Exchange Act, purchase and sell shares of Common
Stock for its own account while this Agreement is in effect provided that
(i) no such purchase or sales shall take place while a Placement Notice is
in effect (except to the extent the Sales Agents may engage in sales of
Placement Shares purchased or deemed purchased from the Company as a
"riskless principal" or in a similar capacity) and (ii) the Company shall
not be deemed to have authorized or consented to any such purchases or
sales by the Sales Agents.
7. Covenants of the Company. The Company covenants and agrees with the
Sales Agents that:
(a) After the date of this Agreement and during the period in which a
prospectus relating to the Shares is required to be delivered by the Sales
Agents under the Act, the Company will notify the Sales Agents promptly of
the time when any subsequent amendment to the Registration Statement has
been filed with the Commission and has become effective or any subsequent
supplement to the Prospectus has been filed and of any request by the
Commission for any amendment or supplement to the Registration Statement or
Prospectus or for additional information; it will prepare and file with the
Commission, promptly upon the Sales Agents' request, any amendments or
supplements to the Registration Statement or Prospectus that, in the Sales
Agents' reasonable opinion, may be necessary or advisable in connection
with the distribution of the Shares by the Sales Agents (provided, however
that the failure of the Sales Agents to make such request shall not relieve
the Company of any obligation or liability hereunder, or affect the Sales
Agents' right to rely on the representations and warranties made by the
Company in this Agreement); the Company will submit to the Sales Agents a
copy of any amendment or supplement to the Registration Statement or
Prospectus relating to the Common Stock of the Company or a security
convertible into the Common Stock of the Company a reasonable period of
time before the filing; and it will furnish to the Sales Agents at the time
of filing thereof a copy of any document that upon filing is deemed to be
incorporated by reference in the Registration Statement or Prospectus; and
the Company will cause each amendment or supplement to the Prospectus to be
filed with the Commission as required pursuant to the applicable paragraph
of Rule 424(b) of the Rules and Regulations or, in the case of any document
to be incorporated therein by reference, to be filed with the Commission as
required pursuant to the Exchange Act, within the time period prescribed.
(b) The Company will advise the Sales Agents, promptly after it
receives notice or obtains knowledge thereof, of the issuance or threatened
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose; and it will promptly
use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued.
(c) Within the time during which a prospectus relating to the Shares
is required to be delivered by the Sales Agents under the Act, the Company
will comply with all requirements imposed upon it by the Act and by the
Rules and Regulations, as from time to time in force, and will file on or
before their respective due dates all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14, 15(d), if applicable, or
any other provision of or under the Exchange Act. If during such period 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 a material fact necessary to make the statements therein, in the
light of the circumstances then existing, not misleading, or if during such
period it is necessary to amend or supplement the Registration Statement or
Prospectus to comply with the Act, the Company will immediately notify the
Sales Agents to suspend the offering of Shares during such period and the
Company will promptly amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such statement
or omission or effect such compliance.
(d) The Company will use its commercially reasonable efforts to cause
the Shares to be listed on the Exchange and to qualify the Shares for sale
under the securities laws of such jurisdictions as the Sales Agents
designate and to continue such qualifications in effect so long as required
for the distribution of the Shares; provided that the Company shall not be
required in connection therewith to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction.
(e) The Company will furnish to the Sales Agents and its counsel (at
the expense of the Company) copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein) and
all amendments and supplements to the Registration Statement or Prospectus
that are filed with the Commission during the period in which a prospectus
relating to the Shares is required to be delivered under the Act (including
all documents filed with the Commission during such period that are deemed
to be incorporated by reference therein), in each case as soon as
reasonably practicable and in such quantities as the Sales Agents may from
time to time reasonably request and, at the Sales Agents' request, will
also furnish copies of the Prospectus to each exchange or market on which
sales of Shares may be made.
(f) The Company will furnish to the Sales Agents for a period of three
(3) years from the date of this Agreement such information as reasonably
requested by the Sales Agents regarding the Company or its Subsidiaries.
(g) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than 15 months after the
end of the Company's current fiscal quarter, an earnings statement covering
a 12-month period that satisfies the provisions of Section 11(a) of the Act
and Rule 158 of the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will pay all
expenses incident to the performance of its obligations hereunder, not
including fees of counsel for the Sales Agents, but including expenses
relating to (i) the preparation, printing and filing of the Registration
Statement and each amendment and supplement thereto, of each Prospectus and
of each amendment and supplement thereto, (ii) the preparation, issuance
and delivery of the Shares, (iii) the fees and disbursements of the
Company's counsel and accountants in connection with negotiating this
agreement and performing its obligations hereunder, (iv) the qualification
of the Shares under securities laws in accordance with the provisions of
Section 7(d) of this Agreement, including filing fees in connection
therewith, (v) the printing and delivery to the Sales Agents of copies of
the Prospectus and any amendments or supplements thereto, and of this
Agreement, (vi) the fees and expenses incurred in connection with the
listing or qualification of the Shares for trading on the Exchange, or
(vii) filing fees and expenses, if any, of the Commission and the National
Association of Securities Dealers, Inc. Corporate Finance Department or
(viii) the cost of publication of a tombstone ad in The Wall Street
Journal.
(i) The Company will use the Net Proceeds as described in the
Prospectus.
(j) Without the written consent of the Sales Agents, the Company will
not, directly or indirectly, offer to sell, sell, contract to sell, grant
any option to sell or otherwise dispose of any shares of Common Stock
(other than the Shares offered pursuant to the provisions of this
Agreement) or securities convertible into or exchangeable for Common Stock,
warrants or any rights to purchase or acquire, Common Stock during the
period beginning on the fifth (5th) Trading Day immediately prior to the
date on which any Acceptance of a Placement Notice is delivered to the
Sales Agents hereunder and ending on the fifth (5th) Trading Day
immediately following the final Settlement Date with respect to Shares sold
pursuant to such Placement Notice; and without the written consent of the
Sales Agents, the Company will not directly or indirectly offer to sell,
sell, contract to sell, grant any option to sell or otherwise dispose of
any shares of Common Stock (other than the Shares offered pursuant to the
provisions of this Agreement) or securities convertible into or
exchangeable for Common Stock, warrants or any rights to purchase or
acquire, Common Stock prior to the later of the termination of this
Agreement and the thirtieth (30th) day immediately following the final
Settlement Date with respect to Shares sold pursuant to such Placement
Notice; provided, however, that such restrictions will not be applicable to
the Company's issuance or sale of (i) Common Stock, options to purchase
shares of Common Stock or Common Stock issuable upon the exercise of
options, pursuant to any employee or director (x) stock option or benefits
plan, (y) stock ownership plan or (z) dividend reinvestment plan (but not
shares subject to a waiver to exceed plan limits in its dividend
reinvestment plan) of the Company whether now in effect or hereafter
implemented, and (ii) Common Stock issuable upon conversion of securities
or the exercise of warrants, options or other rights in effect or
outstanding on the date hereof, and disclosed in writing to the Sales
Agents.
(k) The Company will, at any time during the term of this Agreement,
as supplemented from time to time, advise the Sales Agents immediately
after it shall have received notice or obtained knowledge thereof, of any
information or fact that would alter or affect any opinion, certificate,
letter or other document provided to the Sales Agents pursuant to this
Agreement.
(l) The Company will cooperate with any bring-down due diligence
review conducted by the Sales Agents or its agents, including, without
limitation, providing information and making available documents and senior
corporate officers, as the Sales Agents may reasonably request; provided,
however, that the Company shall be required to make available senior
corporate officers only (i) by telephone or at the Company's principal
offices and (ii) during the Company's ordinary business hours.
(m) The Company agrees that on such dates as the Rules and Regulations
shall require, the Company will (i) file a prospectus supplement with the
Commission under the applicable paragraph of Rule 424(b) under the Act
(each and every filing under Rule 424(b), a "Filing Date"), which
prospectus supplement will set forth, within the relevant period, the
amount of Shares sold through the Sales Agents, the Net Proceeds to the
Company and the compensation payable by the Company to the Sales Agents and
(ii) deliver such number of copies of each such prospectus supplement to
each exchange or market on which such sales were effected as may be
required by the rules or regulations of such exchange or market.
(n) On the date that the Registration Statement is declared effective
or on each Filing Date or Settlement Date and each time that the
Registration Statement shall be amended or the Prospectus supplemented, the
Company shall furnish or cause to be furnished to the Sales Agents
forthwith a certificate dated the date of filing with the Commission of
such supplement, or other document, or the date of the effectiveness of the
Registration Statement or such amendment, as the case may be, or Settlement
Date in the form attached hereto as Exhibit 8(i) to the effect that the
representations and warranties made by the Company in this Agreement are
true and correct on such date as though made at and as of such date (except
that such statements shall be deemed to relate to the Registration
Statement or the Prospectus as amended and supplemented to such time) and
that the Company has complied with all of the agreements to be performed by
it at or prior to such date.
(o) On the date that the Registration Statement is declared effective
or such date thereafter as the Sales Agents shall request, including,
without limitation each Settlement Date and each time that the Registration
Statement is amended or the Prospectus supplemented, the Company shall
furnish or cause to be furnished forthwith to the Sales Agents and to
counsel to the Sales Agents a written opinion of Xxxxxx & Xxxxxx LLP,
counsel to the Company ("Company Counsel"), or other counsels satisfactory
to the Sales Agents, and Liberian counsel to the Company and such other
counsel to be determined and reasonably satisfactory to the Sales Agents
practicing law in jurisdictions in which subsidiaries of the Company may
then be organized ("Special Counsel"), dated the date of effectiveness of
the Registration Statement or amendment, or the date of filing with the
Commission of such supplement or other document, as the case may be, or
Settlement Date as otherwise requested by the Sales Agents in form and
substance satisfactory to the Sales Agents and its counsel, in
substantially the forms attached hereto as Exhibits 8(e)(1) and 8(f)(1)
respectively (for the date of effectiveness of the Registration Statement)
and Exhibits 8(e)(2) and 8(f)(2) respectively (for subsequent dates), but
modified as necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
opinion.
(p) On the date that the Registration Statement is declared effective
or such date thereafter as the Sales Agents shall request, including,
without limitation each Settlement Date and each time that the Registration
Statement is amended or the Prospectus supplemented to include additional
amended financial information or there is filed with the Commission any
document incorporated by reference into the Registration Statement or the
Prospectus which contains additional amended financial information, the
Company shall cause its independent accountants reasonably satisfactory to
the Sales Agents, forthwith to furnish the Sales Agents letters (the
"Comfort Letters"), dated the date of effectiveness of the Registration
Statement or such amendment, or the date of filing of such supplement or
other document with the Commission, as the case may be, or Settlement Date,
as otherwise requested by the Sales Agents in form and substance
satisfactory to the Sales Agents, (i) confirming that they are independent
public accountants within the meaning of the Act and are in compliance with
the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of
such date, the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings (the first such letter, the "Initial Comfort Letter") and (iii)
updating the Initial Comfort Letter with any information which would have
been included in the Initial Comfort Letter had it been given on such date
and modified as necessary to relate to the Registration Statement and the
Prospectus, as amended and supplemented to the date of such letter.
(q) The Company will not, directly or indirectly, (i) take any action
designed to cause or result in, or that constitutes or might reasonably be
expected to constitute, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Shares
or (ii) sell, bid for, or purchase the Shares, or pay anyone any
compensation for soliciting purchases of the Shares other than the Sales
Agents.
Notwithstanding anything to the contrary contained herein, the parties
hereto agree that the obligations of the Company under Sections 7(n), 7(o) and
7(p) shall terminate at the earlier of (i) the termination of the Agreement
pursuant to Section 12 and (ii) upon the issuance, sale, placement and
settlement of all of the Shares hereunder.
8. Covenants of the Sales Agents. The Company covenants and agrees with the
Sales Agents that:
(a) The Sales Agents will not issue any press release or place any
tombstone ad related to a Placement made under this Agreement unless a copy
thereof has been submitted to the Company and the Company has not
reasonably objected thereto.
(b) The Sales Agents acknowledge that from time to time, in its
capacity as sales agent under this Agreement, the Sales Agents may be in
possession of material non-public information with respect to the Company
or its securities, and that it is aware of the applicable provisions of the
United States securities laws and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder applicable to
purchases and sales of securities of the Company for its own account at
such times. The Sales Agents agree that is shall not, directly or
indirectly, for its own account, purchase, sell or otherwise engage in
transactions involving, relating to or based upon any Company securities at
any such time when it is in receipt of material non-public information.
9. Conditions to the Sales Agents' Obligations. The obligations of the
Sales Agents hereunder with respect to a Placement will be subject to the
continuing accuracy and completeness of the representations and warranties made
by the Company herein and in the applicable Placement Notices, to the due
performance by the Company of its obligations hereunder, to the completion by
the Sales Agents of a due diligence review satisfactory to the Sales Agents in
their reasonable judgment, and to the continuing satisfaction (or waiver by the
Sales Agents in their sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall
be available for the resale of (i) all Placement Shares issued pursuant to
all prior Placements and not yet sold by the Sales Agents and (ii) all
Placement Shares contemplated to be issued by the Placement Notice relating
to such Placement.
(b) None of the following events shall have occurred and be
continuing: (i) receipt by the Company of any request for additional
information from the Commission or any other federal or state governmental,
administrative or self regulatory authority during the period of
effectiveness of the Registration Statement, the response to which would
require any amendments or supplements to the Registration Statement or the
Prospectus; (ii) the issuance by the Commission or any other federal or
state governmental authority of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose; (iii) receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any
of the Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; (iv) the occurrence of any event that
makes any statement made in the Registration Statement or the Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes
in the Registration Statement, related prospectus or documents so that, in
the case of the Registration Statement, it will not contain 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, and that in the case of the Prospectus, it will not contain 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,
in the light of the circumstances under which they were made, not
misleading; and (v) the Company's reasonable determination that a
post-effective amendment to the Registration Statement would be
appropriate.
(c) The Sales Agents shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in the Sales Agents'
opinion is material, or omits to state a fact that in the Sales Agents'
opinion is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(d) Except as contemplated and appropriately disclosed in the
Prospectus, or disclosed in the Company's reports filed with the
Commission, in each case at the time the applicable Placement Notice is
delivered, there shall not have been any material change, on a consolidated
basis, in the authorized capital stock of the Company and its Subsidiaries,
or any Material Adverse Effect, or any development that may reasonably be
expected to cause a Material Adverse Effect, or a downgrading in or
withdrawal of the rating assigned to any of the Company's securities by any
rating organization or a public announcement by any rating organization
that it has under surveillance or review its rating of any of the Company's
securities, the effect of which, in the sole judgment of the Sales Agents
(without relieving the Company of any obligation or liability it may
otherwise have), is so material as to make it impracticable or inadvisable
to proceed with the offering of the Placement Shares on the terms and in
the manner contemplated in the Prospectus.
(e) The Sales Agents shall have received the opinions of Company
Counsel required to be delivered pursuant Section 7(o) on or before the
date on which such delivery of such opinion is required pursuant to Section
7(o).
(f) The Sales Agents shall have received the opinion of Special
Counsel required to be delivered pursuant to Section 7(o) on or before the
date on which such delivery of such opinion is required pursuant to Section
7(o).
(g) The Sales Agents shall have received the Comfort Letter required
to be delivered pursuant Section 7(p) on or before the date on which such
delivery of such letter is required pursuant to Section 7(p).
(h) The Sales Agents shall have received the certificate required to
be delivered pursuant to Section 7(n) on or before the date on which
delivery of such certificate is required pursuant to Section 7(n).
(i) The Shares shall have been duly listed, subject to notice of
issuance, on the Exchange, and trading in the Common Stock shall not have
been suspended on such market.
(j) On each date on which the Company is required to deliver a
certificate pursuant to Section 7(n), the Company shall have furnished to
the Sales Agents such appropriate further information, certificates,
opinions and documents as the Sales Agents may reasonably request. All such
opinions, certificates, letters and other documents will be in compliance
with the provisions hereof. The Company will furnish the Sales Agents with
such conformed copies of such opinions, certificates, letters and other
documents as the Sales Agents shall reasonably request.
(k) There shall not have occurred any event that would permit the
Sales Agents to terminate this Agreement pursuant to Section 12(a).
10. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Sales
Agents, the directors, officers, partners, employees and agents of the
Sales Agents and each person, if any, who (i) controls the Sales Agents
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, or (ii) is controlled by or is under common control with the Sales
Agents (a "Sales Agent Affiliate") from and against any and all losses,
claims, liabilities, expenses and damages (including, but not limited to,
any and all investigative, legal and other expenses reasonably incurred in
connection with, and any and all amounts paid in settlement of, any action,
suit or proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and any third party,
or otherwise, or any claim asserted), as and when incurred, to which the
Sales Agents, or any such person, may become subject under the Act, the
Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities,
expenses or damages arise out of or are based, directly or indirectly, on
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus or any amendment
or supplement to the Registration Statement or the Prospectus, or in any
application or other document executed by or on behalf of the Company or
based on written information furnished by or on behalf of the Company filed
in any jurisdiction in order to qualify the Shares under the securities
laws thereof or filed with the Commission, (ii) the omission or alleged
omission to state in the Registration Statement or the Prospectus or any
amendment or supplement to the Registration Statement or the Prospectus, or
in any application or other document executed by or on behalf of the
Company or based on written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify the Shares under the
securities laws thereof or filed with the Commission a material fact
required to be stated in it or necessary to make the statements in it not
misleading or (iii) any breach by the Company of any of its
representations, warranties and agreements contained in this Agreement;
provided that this indemnity agreement shall not apply to the extent that
such loss, claim, liability, expense or damage arises from the sale of the
Shares pursuant to this Agreement and is caused directly by an untrue
statement or omission made in reliance on and in conformity with
information relating to the Sales Agents and furnished in writing to the
Company by the Sales Agents expressly stating that such information is
intended for inclusion in any document described in clause (a)(i) above.
This indemnity agreement will be in addition to any liability that the
Company might otherwise have.
(b) The Sales Agents agree to indemnify and hold harmless the Company
and its directors and each officer of the Company who signed the
Registration Statement, and each person, if any, who (i) controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act or (ii) is controlled by or is under common control with the
Company (a "Company Affiliate") against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 10(a),
as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendments thereto) or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information relating to the Sales Agents furnished to the
Company by the Sales Agents expressly stating that such information is
intended for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Any party that proposes to assert the right to be indemnified
under this Section 10 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim
is to be made against an indemnifying party or parties under this Section
10, notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party will not relieve the indemnifying party from (i) any
liability that it might have to any indemnified party otherwise than under
this Section 10 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 10 unless, and only to
the extent that, such omission results in the forfeiture of substantive
rights or defenses by the indemnifying party. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in
and, to the extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the commencement of
the action from the indemnified party, jointly with any other indemnifying
party similarly notified, to assume the defense of the action, with counsel
reasonably satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified
party in connection with the defense. The indemnified party will have the
right to employ its own counsel in any such action, but the fees, expenses
and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified
party has been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based on
advice of counsel to the indemnified party) between the indemnified party
and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the
indemnified party) or (4) the indemnifying party has not in fact employed
counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the
reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not, in any event, be liable for any
settlement of any action or claim effected without its written consent. No
indemnifying party shall, without the prior written consent of each
indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating
to the matters contemplated by this Section 10 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from
all liability arising or that may arise out of such claim, action or
proceeding. Notwithstanding any other provision of this Section 10(c), if
at any time an indemnified party shall have properly requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel for which it is entitled to reimbursement pursuant to this
Section 10(c), such indemnifying party agrees that it shall be liable for
any settlement effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into, and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement; provided that an indemnifying party
shall not be liable for any such settlement effected without its consent if
such indemnifying party, at least five days prior to the date of such
settlement, (1) reimburses such indemnified party in accordance with such
request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable and (2) provides
written notice to the indemnified party that the indemnifying party
disputes in good faith the reasonableness of the unpaid balance of such
fees and expenses.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 10 is applicable in accordance with its terms
but for any reason is held to be unavailable from the Company or the Sales
Agents, the Company and the Sales Agents will contribute to the total
losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted, but after deducting any contribution received by the
Company from persons other than the Sales Agents, such as persons who
control the Company within the meaning of the Act, officers of the Company
who signed the Registration Statement and directors of the Company, who
also may be liable for contribution) to which the Company and the Sales
Agents may be subject in such proportion as shall be appropriate to reflect
the relative benefits received by the Company on the one hand and the Sales
Agents on the other. The relative benefits received by the Company on the
one hand and the Sales Agents on the other hand shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total compensation
(before deducting expenses) received by the Sales Agents from the sale of
Shares on behalf of the Company. If, but only if, the allocation provided
by the foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits referred to in the
foregoing sentence but also the relative fault of the Company, on the one
hand, and the Sales Agents, on the other, with respect to the statements or
omission which resulted in such loss, claim, liability, expense or damage,
or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Company or
the Sales Agents, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Sales Agents agree that it would not be
just and equitable if contributions pursuant to this Section 10(d) were to
be determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of
the loss, claim, liability, expense, or damage, or action in respect
thereof, referred to above in this Section 10(d) shall be deemed to
include, for the purpose of this Section 10(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim to the extent
consistent with Section 10(c) hereof. Notwithstanding the foregoing
provisions of this Section 10(d), the Sales Agents shall not be required to
contribute any amount in excess of the commissions received by it under
this Agreement and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 10(d), any person who
controls a party to this Agreement within the meaning of the Act, and any
officers, directors, partners, employees or agents of the Sales Agents,
will have the same rights to contribution as that party, and each officer
of the Company who signed the Registration Statement will have the same
rights to contribution as the Company, subject in each case to the
provisions hereof. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action against such party in
respect of which a claim for contribution may be made under this Section
10(d), will notify any such party or parties from whom contribution may be
sought, but the omission to so notify will not relieve that party or
parties from whom contribution may be sought from any other obligation it
or they may have under this Section 10(d) except to the extent that the
failure to so notify such other party materially prejudiced the defenses of
the party from whom contribution is sought. Except for a settlement entered
into pursuant to the last sentence of Section 10(c) hereof, no party will
be liable for contribution with respect to any action or claim settled
without its written consent if such consent is required pursuant to Section
10(c) hereof.
11. Representations and Agreements to Survive Delivery. All representations
and warranties of the Company herein or in certificates delivered pursuant
hereto shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of the Sales Agents, any controlling persons,
or the Company (or any of their respective officers, directors or controlling
persons), (ii) delivery and acceptance of the Shares and payment therefor or
(iii) any termination of this Agreement.
12. Termination.
(a) The Sales Agents shall have the right by giving notice as
hereinafter specified at any time to terminate this Agreement if (i) any
Material Adverse Effect has occurred, or any development that is reasonably
expected to cause a Material Adverse Effect has occurred which, in the
reasonable judgment of the Sales Agents, may materially impair the
investment quality of the Shares, (ii) the Company shall have failed,
refused or been unable, at or prior to any Settlement Date, to perform any
agreement on its part to be performed hereunder, (iii) any other condition
of the Sales Agents' obligations hereunder is not fulfilled, or (iv) any
suspension or limitation of trading in the Shares or in securities
generally on the Exchange shall have occurred. Any such termination shall
be without liability of any party to any other party except that the
provisions of Section 7(f), Section 7(h), Section 7(j), Section 10, Section
11, Section 17 and Section 18 hereof shall remain in full force and effect
notwithstanding such termination. If the Sales Agents elect to terminate
this Agreement as provided in this Section 12, the Sales Agents shall
provide the required notice as specified herein.
(b) The Company shall have the right, by giving twenty (20) days'
notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time following the 30th day after the date of this
Agreement. Any such termination shall be without liability of any party to
any other party except that the provisions of Section 7(f), Section 7(h),
Section 7(j), Section 10, Section 11, Section 17 and Section 18 hereof
shall remain in full force and effect notwithstanding such termination.
(c) In addition to, and without limiting the Sales Agents' rights
under Section 12(a), the Sales Agents shall have the right, by giving
twenty (20) days' notice as hereinafter specified to terminate this
Agreement in its sole discretion at any time following the 30th day after
the date of this Agreement. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 7(f),
Section 7(h), Section 7(j), Section 10, Section 11, Section 17 and Section
18 hereof shall remain in full force and effect notwithstanding such
termination.
(d) This Agreement shall remain in full force and effect unless
terminated pursuant to Sections 12(a), 12(b) or 12(c) above or otherwise by
mutual agreement of the parties; provided that any such termination by
mutual agreement shall in all cases be deemed to provide that Section 7(f),
Section 7(h), Section 7(j), Section 10, Section 11, Section 17 and Section
18 shall remain in full force and effect.
(e) Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination
shall not be effective until the close of business on the date of receipt
of such notice by the Sales Agents or the Company, as the case may be. If
such termination shall occur prior to the Settlement Date for any sale of
Placement Shares, such Placement Shares shall settle in accordance with the
provisions of this Agreement.
13. Notices. All notices or other communications required or permitted to
be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and if sent to the Sales Agents, shall be delivered to
Cantor Xxxxxxxxxx & Co., 000 Xxxx 00 Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no.
(000) 000-0000, Attention: Xxxx Xxxxxx and Xxxxxxx Xxxxxxxxxxxx, Managing
Directors, ITD-Investment Banking, with a copy to Xxxxxx X. Xxxxxx, President
and Chief Executive Officer, Institutional Equities, at the same address, with a
copy to Xxxxxx, Xxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
fax no. (000) 000-0000, Attention: Xxxxxxx X. Xxxxxxx, Esq.; or if sent to the
Company, shall be delivered to Excel Maritime Carriers Ltd., Par La Ville Road,
Xxxxxxxx XX JX, Bermuda, fax no. 00 000 00 00 000, Attention: Xxxxxxxxxxxxx
Xxxxxxxxx, President and Chief Executive Officer, with a copy to Xxxxxx & Xxxxxx
LLP, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no. (000) 000-0000,
Attention: Xxxx X. Xxxxx, Esq. Each party to this Agreement may change such
address for notices by sending to the parties to this Agreement written notice
of a new address for such purpose. Each such notice or other communication shall
be deemed given (i) when delivered personally or by verifiable facsimile
transmission (with an original to follow) on or before 4:30 p.m., eastern time,
on a Business Day or, if such day is not a Business Day, on the next succeeding
Business Day, (ii) on the next Business Day after timely delivery to a
nationally-recognized overnight courier and (iii) on the Business Day actually
received if deposited in the U.S. mail (certified or registered mail, return
receipt requested, postage prepaid). For purposes of this Agreement, "Business
Day" shall mean any day on which the Exchange and commercial banks in the city
of New York are open for business.
14. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company and the Sales Agents and their respective
successors and the affiliates, controlling persons, officers and directors
referred to in Section 10 hereof. References to any of the parties contained in
this Agreement shall be deemed to include the successors and permitted assigns
of such party. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. Neither party may assign its rights or obligations under this
Agreement without the prior written consent of the other party, provided,
however, that the Sales Agents may assign its rights and obligations hereunder
to an affiliate of the Sales Agents without obtaining the Company's consent.
15. Adjustments for Stock Splits. The parties acknowledge and agree that
all share related numbers contained in this Agreement shall be adjusted to take
into account any stock split, stock dividend or similar event effected with
respect to the Shares.
16. Entire Agreement; Amendment; Severability. This Agreement (including
all schedules and exhibits attached hereto and placement notices issued pursuant
hereto) constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, among the
parties hereto with regard to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended except pursuant to a written instrument
executed by the Company and the Sales Agents. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
17. Applicable Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York without regard to the principles of conflicts of laws. Each party
hereby irrevocably submits to the non-exclusive jurisdiction of the state and
federal courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection with any transaction
contemplated hereby, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof (certified or registered mail, return
receipt requested) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
18. Waiver of Jury Trial. The Company and the Sales Agents hereby
irrevocably waive any right either may have to a trial by jury in respect of any
claim based upon or arising out of this agreement or any transaction
contemplated hereby.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed
Agreement by one party to the other may be made by facsimile transmission.
[Remainder of Page Intentionally Blank]
If the foregoing correctly sets forth the understanding between the Company
and the Sales Agents, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Company and the Sales Agents.
Very truly yours,
EXCEL MARITIME CARRIERS LTD.
By:
------------------------------
Name: Xxxxxxxxxxxxx Xxxxxxxxx
Title: President and
Chief Executive Officer
ACCEPTED as of the date
first-above written:
Cantor Xxxxxxxxxx & Co.
Hibernia Southcoast Capital, Inc.
By: CANTOR XXXXXXXXXX & CO.
By:
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Name:
Title:
