DOUBLE HULL TANKERS, INC. _________ Shares Common Stock ($0.01 par value per Share) UNDERWRITING AGREEMENT
Exhibit
1.1
_________
Shares
Common
Stock
($0.01
par value per Share)
_________________,
2007
_________,
2007
_______________
Ladies
and Gentlemen:
OSG
International, Inc., a Xxxxxxxx
Islands corporation (the “Selling Stockholder”), proposes to sell to
___________________ (the “Underwriter”) an aggregate of ________ shares
(the “Shares”) of common stock, $0.01 par value per share (the “Common
Stock”), of Double Hull Tankers, Inc., a Xxxxxxxx Islands corporation (the
“Company”). As used in this Agreement, the term “business day”
means a day on which the New York Stock Exchange (the “NYSE”) is open for
trading and the terms “herein,” “hereof” and “hereto” refer in each case to this
Agreement as a whole and not to any particular section, paragraph, sentence
or
other subdivision of this Agreement.
The
Company has prepared and filed, in
accordance with the provisions of the Securities Act of 1933, as amended,
and
the rules and regulations thereunder (collectively, the “Act”), with the
Securities and Exchange Commission (the “Commission”) a registration
statement on Form F-3 (File No. 333-________) under the Act, including a
base
prospectus, relating to Common Stock to be sold by the Selling Stockholder,
including the Shares. Except where the context otherwise requires,
“Registration Statement,” as used herein, means the registration
statement, as amended at the time of such registration statement’s effectiveness
for purposes of Section 11 of the Act, as such section applies to the
Underwriter (the “Effective Time”), including (i) all documents filed as
a part thereof, (ii) all material then incorporated by reference therein
and any
information deemed to be part of the registration statement at the Effective
Time pursuant to Rule 430A or Rule 430C under the Act, and (iii) any
registration statement filed to register the offer and sale of Shares pursuant
to Rule 462(b) under the Act (a “Rule 462(b) Registration Statement”).
Except where the context otherwise requires, the base prospectus filed as
part
of the Registration Statement, in the form in which it was most recently
filed
with the Commission and furnished to the Underwriter prior to the execution
of
this Agreement, is referred to herein as the “Base Prospectus,” and the
Base Prospectus, as supplemented by the final prospectus supplement specifically
relating to the offer and sale of the Shares, in the form filed or to be
filed
with the Commission pursuant to Rule 424(b) under the Act, is referred to
herein
as the “Prospectus.” Except where the context otherwise requires, the
term “Preliminary Prospectus” shall refer to the Base Prospectus, as
supplemented by any preliminary prospectus supplement specifically relating
to
the offer and sale of the Shares and furnished to the Underwriter prior to
the
execution of this Agreement or, if the Base Prospectus shall not have been
supplemented by such a preliminary prospectus supplement, such term shall
refer
to the Base Prospectus. For the purposes of this Agreement, any “issuer free
writing prospectus” (as defined in Rule 433 under the Act) relating to the
Shares is referred to as an “Issuer Free Writing Prospectus.” The
Underwriter has not offered or sold and will not offer or sell, without the
consent of the Company, any Shares by means of any “free writing prospectus” (as
defined in the Rule 405 under the Act) that is or would be required to be
filed
by the Underwriter with the Commission pursuant to Rule 433 under the Act,
other
than an Issuer Free Writing Prospectus listed on Schedule A hereto (each,
a “Permitted Free Writing Prospectus”).
The
Company, the Selling Stockholder
and the Underwriter agree as follows:
1. Sale
and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions set forth herein, the
Selling
Stockholder agrees to sell to the Underwriter and the Underwriter agrees
to
purchase from the Selling Stockholder an aggregate of _________ Shares, in
each
case at a purchase price of $____ per Share. The Company and the Selling
Shareholder have been advised that the Underwriter intends (i) to make a
public
offering of the Shares and (ii) initially to offer the Shares upon the terms
set
forth in the Prospectus. The Underwriter may from time to time
increase or decrease the public offering price after the public offering
to such
extent as it may determine.
2. Payment
and Delivery. Payment of the purchase price for the Shares shall
be made to the Selling Stockholder by Federal Funds wire transfer against
delivery of the certificates for the Shares to the Underwriter through the
facilities of The Depository Trust Company (“DTC”) for the account of the
Underwriter. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on ________, 2007, unless another time shall be agreed to by the
Underwriter, the Company and the Selling Stockholder. The time at which such
payment and delivery are to be made is sometimes referred to herein as the
“time of purchase.” Electronic transfer of the Shares shall be
made to the Underwriter at the time of purchase in such names and in such
denominations as the Underwriter shall specify.
Deliveries
of the documents described
in Section 9 hereof with respect to the purchase of the Shares shall be made
at
the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York City time, at or prior to the
time
of purchase for the Shares.
3. Representations
and Warranties of the Company. The Company represents and
warrants to and agrees with the Underwriter that:
(a) the
Registration Statement has heretofore become effective under the Act or,
with
respect to any Rule 462(b) Registration Statement, will be filed with the
Commission and become effective under the Act no later than 10:00 P.M., New
York
City time, on the date of this Agreement; no stop order of the Commission
preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus nor any similar order directed to any document
incorporated by reference in the Preliminary Prospectus or the Final Prospectus,
or the effectiveness of the Registration Statement, has been issued, and
no
proceedings for such purpose have been instituted or, to the Company’s
knowledge, are contemplated by the Commission.
(b) the
Registration Statement complied when it became effective, complies as of
the
date hereof and, as amended or supplemented, at the time of purchase and
at all
times during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Act; the Registration Statement did
not,
as of the Effective Time, contain an untrue statement of a material fact
or omit
to state a material fact required to be stated therein or necessary to make
the
statements therein not misleading; each Preliminary Prospectus, if any,
complied, at the time it was filed with the Commission, and complies as of
the
date hereof, in all material respects with the requirements of the Act; each
Preliminary Prospectus (including the Exchange Act Documents incorporated
by
reference therein) and any amendment or supplement thereto, as of its date
and
the date it was filed with the Commission, and the most recent Preliminary
Prospectus (including the Exchange Act Documents incorporated by reference
therein), as then amended or supplemented (the “Pricing Prospectus”), as
of 4:30 p.m. on the date hereof (the “Applicable Time”), in each case
when read together with the then issued Issuer Free Writing Prospectuses,
if
any, and the information included on Schedule B hereto,
-
2 -
did
not
include an untrue statement of a material fact or omit to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the Prospectus
will
comply, as of its date, the date that it is filed with the Commission, the
time
of purchase and at all times during which a prospectus is required by the
Act to
be delivered (whether physically or through compliance with Rule 172 under
the
Act or any similar rule) in connection with any sale of Shares, in all material
respects, with the requirements of the Act; at no time during the period
that
begins on the earlier of the date of the Prospectus and the date the Prospectus
is filed with the Commission and ends at the later of the time of purchase
and
the end of the period during which a prospectus is required by the Act to
be
delivered (whether physically or through compliance with Rule 172 under the
Act
or any similar rule) in connection with any sale of Shares did or will the
Prospectus, as then amended or supplemented, include an untrue statement
of a
material fact or omit to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading; each Issuer Free Writing Prospectus, when read together
with the Pricing Prospectus, any other Issuer Free Writing Prospectuses then
issued and the information included on Schedule B hereto, as of the
Applicable Time, did not include an untrue statement of a material fact or
omit
to state a material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or
warranty in this Section 3(b) with respect to any statement contained in
the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
Issuer
Free Writing Prospectus in reliance upon and in conformity with information
concerning the Underwriter and furnished in writing by or on behalf of the
Underwriter to the Company expressly for use in the Registration Statement,
such
Preliminary Prospectus, the Prospectus or such Issuer Free Writing
Prospectus.
(c) The
documents incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or hereafter
are
filed with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the “1934 Act Regulations”) and, when read together with
the other information in the Prospectus, at the date of the Prospectus and
at
the closing time, if any, did not and will not include an untrue statement
of a
material fact or omit to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading.
-
3 -
(d) the
Company has not, directly or indirectly, offered or sold any Shares by means
of
any “prospectus” (within the meaning of the Act) or used any “prospectus”
(within the meaning of the Act) in connection with the offer or sale of the
Shares other than the Preliminary Prospectus and the Permitted Free Writing
Prospectuses, if any; the Company is not and will continue not to be an
“ineligible issuer” (as defined in Rule 405 under the Act) for the purposes of
Rules 164 and Rule 433 under the Act in connection with the offer or sale
of the
Shares; and the Company has complied, and will comply, with the requirements
of
Rules 164 and Rule 433 under the Act applicable to any Issuer Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and record-keeping;
(e) the
Company has an authorized and outstanding capitalization as set forth in
the
Registration Statement, the Pricing Prospectus and the Prospectus; all of
the
issued and outstanding shares of capital stock of the Company, including
the
Shares, have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable federal
and
state securities laws and were not issued in violation of any preemptive
right,
resale right, right of first refusal or similar right; and the Shares are
duly
listed and admitted and authorized for trading on the NYSE;
(f) the
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the Xxxxxxxx Islands, with full corporate
power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the Pricing Prospectus and the
Prospectus and to execute and deliver this Agreement;
(g) the
Company is duly qualified to do business as a foreign corporation and is
in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where
the
failure to be so qualified and in good standing would not, individually or
in
the aggregate, have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company and
the
subsidiaries of the Company named in Schedule C hereto (the
“Subsidiaries”) taken as a whole (a “Material Adverse
Effect”);
(h) the
Company has no “subsidiaries” (as defined under the Act) other than the
Subsidiaries; the Company owns all of the issued and outstanding capital
stock
of each of the Subsidiaries; other than the capital stock of the Subsidiaries,
the Company does not own, directly or indirectly, any shares of stock or
any
other equity or long-term debt securities of any corporation or have any
equity
interest in any firm, partnership, joint venture, association or other entity;
complete and correct copies of the articles of incorporation and bylaws of
the
Company and each Subsidiary and all amendments and restatements thereto have
been delivered to the Underwriter or its counsel, and, except as set forth
in
the exhibits to the Registration Statement, no changes therein will be made
on
or after the date hereof or on or before the time of purchase; each Subsidiary
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the Xxxxxxxx Islands, with full corporate power
and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the Pricing Prospectus and the
Prospectus; each Subsidiary is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the ownership
or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing
would not, individually or in the aggregate, have a Material Adverse Effect;
each Subsidiary is in compliance in all respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdictions,
except
where the failure to be in compliance would not, individually or in the
aggregate, have a Material Adverse Effect; all of the outstanding shares
of
capital stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, have been issued in compliance
with
all applicable federal and state securities laws, were not issued in violation
of any preemptive right, resale right, right of first refusal or similar
right
and are owned by the Company subject to no security interest, other encumbrance
or adverse claims; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding;
-
4 -
(i) the
capital stock of the Company, including the Shares, conforms in all material
respects to the description thereof contained in the Registration Statement,
the
Pricing Prospectus and the Prospectus; the certificates for the Shares comply
with the applicable requirements of the Company’s articles of incorporation and
bylaws, any applicable laws and the rules of the NYSE; and the holders of
the
Shares will not be subject to personal liability for the debt or other
obligations of the Company by reason of being such holders;
(j) this
Agreement has been duly authorized, executed and delivered by the
Company;
(k) neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of time
or
both would result in any breach or violation of, constitute a default under
or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a
part of
such indebtedness under) (i) its respective articles of incorporation or
bylaws,
(ii) any indenture, mortgage, deed of trust, bank loan or credit agreement
or
other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is
a
party or by which any of them or any of their respective properties may be
bound
or affected, (iii) any federal, state, local or foreign law, regulation or
rule,
(iv) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the
rules
and regulations of the NYSE) or (v) any decree, judgment or order applicable
to
the Company or any of the Subsidiaries or any of their respective properties,
except in the case of the foregoing clauses (ii), (iii), (iv) and (v) above
as
would, individually or in the aggregate, have a Material Adverse
Effect;
(l) the
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby will not conflict with, result in any
breach or violation of or constitute a default under (or constitute any event
which with notice, lapse of time or both would result in any breach or violation
of or constitute a default under or give the holder of any indebtedness (or
a
person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness under) (or
result
in the creation or imposition of a lien, charge or encumbrance on any property
or assets of the Company or any Subsidiary pursuant to) (i) the articles
of
incorporation or bylaws of the Company or any of the Subsidiaries, (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement
or
instrument to which the Company or any of the Subsidiaries is a party or
by
which any of them or any of their respective properties may be bound or
affected, (iii) any federal, state, local or foreign law, regulation or rule,
(iv) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the
rules
and regulations of the NYSE) or (v) any decree, judgment or order applicable
to
the Company or any of the Subsidiaries or any of their respective properties,
except in the case of the foregoing clauses (ii), (iii), (iv) and (v) as
would
not, individually or in the aggregate, have a Material Adverse
Effect;
-
5 -
(m) no
approval, authorization, consent or order of or filing with any federal,
state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization, other
non-governmental regulatory authority (including, without limitation, the
NYSE),
is required in connection with the execution, delivery and performance of
this
Agreement or the consummation by the Company of the transactions contemplated
hereby, other than registration of the Shares under the Act, which has been
effected (or, with respect to a Rule 462(b) Registration Statement, will
be
effected in accordance herewith), any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the Shares
are
being offered by the Underwriter or under the rules and regulations of the
National Association of Securities Dealers, Inc. (the “NASD”) and such
approvals, authorizations, consents, orders or filings that have been obtained
or made and are in full force and effect;
(n) except
as expressly set forth in the Registration Statement, the Pricing Prospectus
and
the Prospectus, (i) no person has the right, contractual or otherwise, to
cause
the Company to issue or sell to it any shares of Common Stock or shares of
any
other capital stock or other equity interests of the Company, (ii) no person
has
any preemptive rights, resale rights, rights of first refusal or other rights
to
purchase any shares of Common Stock or shares of any other capital stock
of or
other equity interests in the Company and (iii) no person has the right to
act
as an underwriter or as a financial advisor to the Company in connection
with
the offer and sale of the Shares, in the case of each of the foregoing clauses
(i), (ii) and (iii), whether as a result of the filing or effectiveness of
the
Registration Statement or the sale of the Shares as contemplated thereby
or
otherwise; except as expressly set forth in the Registration Statement, the
Pricing Prospectus and the Prospectus, no person has the right, contractual
or
otherwise, to cause the Company to register under the Act any shares of Common
Stock or shares of any other capital stock of or other equity interests in
the
Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby, whether as a result of the
filing or effectiveness of the Registration Statement or the sale of the
Shares
as contemplated thereby or otherwise;
(o) each
of the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under
any
federal, state, local or foreign law, regulation or rule, and has obtained
all
necessary licenses, authorizations, consents and approvals from other persons,
in order to conduct its respective business as described in the Registration
Statement, the Pricing Prospectus and the Prospectus, except where the failure
to have such licenses, authorizations, consents and approvals or to have
made
such filings would not, individually or in the aggregate, have a Material
Adverse Effect; neither the Company nor any of the Subsidiaries is in violation
of, or in default under, or has received notice of any proceedings relating
to
revocation or modification of any such license, authorization, consent or
approval or any filing required under any federal, state, local or foreign
law,
regulation or rule or any decree, order or judgment applicable to the Company
or
any of the Subsidiaries, except where such violation, default, revocation
or
modification would not, individually or in the aggregate, have a Material
Adverse Effect;
-
6 -
(p) all
legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions (including, without limitation, transactions related to, and
the
existence of, “variable interest entities” within the meaning of Financial
Accounting Standards Board Interpretation No. 46), contracts, licenses,
agreements, properties, leases or documents required to be described in the
Registration Statement, the Pricing Prospectus or the Prospectus or the
documents incorporated by reference therein or to be filed as an exhibit
to the
Registration Statement have been so described or filed as required;
(q) there
are no actions, suits, claims, investigations or proceedings pending or,
to the
knowledge of the Company, threatened to which the Company or any of the
Subsidiaries or any of their respective directors or officers is or would
be a
party, or of which any of their respective properties, including any vessel
named in Schedule C hereto (each, a “Vessel”), is or would be subject, at
law or in equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency, or before or
by any
self-regulatory organization or other non-governmental regulatory authority,
except any such action, suit, claim, investigation or proceeding which would
not
result in a judgment, decree or order having, individually or in the aggregate,
a Material Adverse Effect and would not prevent the consummation of the
transactions contemplated hereby;
(r) Ernst
& Young LLP, whose audit reports on (i) the consolidated financial
statements of the Company as of December 31, 2005 and 2006 and for the period
from October 18, 2005 to December 31, 2005 (the “Company Financial
Statements”) and (ii) the combined financial statements of the predecessor
of the Company as of December 31, 2004 and for the period from January 1,
2005
to October 17, 2005 (the “Predecessor Financial Statements”) are included
in the Registration Statement, the Pricing Prospectus and the Prospectus,
are
independent registered public accountants as required by the Act and by the
rules of the Public Company Accounting Oversight Board;
(s) the
Company Financial Statements and the Predecessor Financial Statements included
in the Registration Statement, the Pricing Prospectus and the Prospectus,
together with the related notes thereto, present fairly in all material respects
the financial position of the Company and its predecessor, as the case may
be,
as of the dates indicated and the results of operations and cash flows of
the
Company and its predecessor, as the case may be, for the periods specified
and
have been prepared in compliance with the requirements of the Act and Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and in conformity
with United States generally accepted accounting principles applied on a
consistent basis during the periods involved; all pro forma financial statements
or data included in the Registration Statement, the Pricing Prospectus or
the
Prospectus and indicated as being such comply with the requirements of
Regulation S-X of the Act, including, without limitation, Article 11 thereof,
and the assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used therein
are
appropriate to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements and data; the other
historical financial and related statistical data set forth in the Registration
Statement, the Pricing Prospectus or the Prospectus are accurately and fairly
presented and prepared on a basis consistent with the financial statements
and
books and records of the Company or its predecessor, as the case may be;
there
are no financial statements (historical or pro forma) that are required to
be
included in the Registration Statement, the Pricing Prospectus or the Prospectus
(including, without limitation, as required by Rules 3-12 or 3-05 or Article
11
of Regulation S-X under the Act) that are not included as required; neither
the
Company nor any of the Subsidiaries has any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not
disclosed in the Registration Statement, the Pricing Prospectus and the
Prospectus; and all disclosures contained in the Registration Statement,
the
Pricing Prospectus or the Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the Commission) comply
with
Regulation G of the Exchange Act and Item 10 of Regulation S-K under the
Act, to
the extent applicable;
-
7 -
(t) subsequent
to the time of execution of this Agreement or, if earlier, the respective
dates
as of which information is given in the Registration Statement, the Pricing
Prospectus and the Prospectus (in each case excluding any amendments or
supplements thereto made after the execution of this Agreement), there has
not
been (i) any material adverse change, or any development involving a prospective
material adverse change, in the business, properties, financial condition,
results of operations or prospects of the Company and the Subsidiaries taken
as
a whole, (ii) any obligation, direct or contingent (including any off-balance
sheet obligations), incurred by the Company or any Subsidiary, which is material
to the Company and the Subsidiaries taken as a whole, (iii) any change in
the
capital stock or outstanding indebtedness of the Company or any Subsidiary
or
(iv) any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company;
(u) the
Company has obtained for the benefit of the Underwriter the agreement (a
“Lock-Up Agreement”), in the form set forth as Exhibit A hereto,
of each of its directors, officers and stockholders named in Schedule D
hereto;
(v) the
Company is a “foreign private issuer” (as defined in Rule 405) of the
Act;
(w) the
Company is not and, after giving effect to the offer and sale of the Shares
and
at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or
any
similar rule) in connection with any sale of Shares, will not be an “investment
company” or an entity “controlled” by an “investment company,” as such terms are
defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”) or a “passive foreign investment company” or a “controlled
foreign corporation,” as such terms are defined in the Internal Revenue Code of
1986, as amended (the “Internal Revenue Code”);
(x) the
Company and each of the Subsidiaries has good and marketable title to all
property (real and personal), if any, described in the Registration Statement,
the Pricing Prospectus or the Prospectus as being owned by each of them,
free
and clear of all liens, claims, security interests or other encumbrances
with
such exceptions as are not material and do not interfere with the intended
use
to be made of such property by the Company or its Subsidiaries as described
in
the Registration Statement, the Pricing Prospectus and the Prospectus; and
all
the property described in the Registration Statement, the Pricing Prospectus
or
the Prospectus as being held under lease by the Company or a Subsidiary is
held
thereby under valid, subsisting and enforceable leases with such exceptions
as
are not material and do not interfere with the intended use to be made of
such
property by the Company or its Subsidiaries as described in the Registration
Statement, the Pricing Prospectus and the Prospectus;
-
8 -
(y) the
Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), trade names, service
names, copyrights, trade secrets and other proprietary information described
in
the Registration Statement, the Pricing Prospectus or the Prospectus as being
owned or licensed by them or which are necessary for the conduct of their
respective businesses as currently conducted or as proposed to be conducted,
except where the failure to own, license or have such rights would not,
individually or in the aggregate, have a Material Adverse Effect (collectively,
“Intellectual Property”); (i) there are no third parties who have or, to
the Company’s knowledge, will be able to establish rights to any Intellectual
Property, except for, and to the extent of, the ownership rights of the owners
of the Intellectual Property is licensed to the Company; (ii) to the Company’s
knowledge, there is no infringement by third parties of any Intellectual
Property; (iii) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others challenging the Company’s rights in
or to any Intellectual Property, and the Company is unaware of any facts
which
could form a reasonable basis for any such action, suit, proceeding or claim;
(iv) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the validity, enforceability
or
scope of any Intellectual Property, and the Company is unaware of any facts
which could form a reasonable basis for any such action, suit, proceeding
or
claim; (v) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company or any Subsidiary
infringes or otherwise violates any patent, trademark, trade name, service
name,
copyright, trade secret or other proprietary rights of others, and the Company
is unaware of any facts which could form a reasonable basis for any such
action,
suit, proceeding or claim; (vi) to the Company’s knowledge, there is no patent
or patent application that contains claims that interfere with the issued
or
pending claims of any of the Intellectual Property; (viii) to the Company’s
knowledge, there is no prior art that may render any patent application owned
by
the Company or any Subsidiary of the Intellectual Property unpatentable that
has
not been disclosed to the U.S. Patent and Trademark Office;
(z) neither
the Company nor any of the Subsidiaries is engaged in any unfair labor practice;
except for matters which would not, individually or in the aggregate, have
a
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint
pending or, to the Company’s knowledge, threatened against the Company or any of
the Subsidiaries before the National Labor Relations Board, and no grievance
or
arbitration proceeding arising out of or under collective bargaining agreements
is pending or, to the Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened
against the Company or any of the Subsidiaries and (C) no union representation
dispute currently existing concerning the employees of the Company or any
of the
Subsidiaries, and (ii) to the Company’s knowledge, (A) no union organizing
activities are currently taking place concerning the employees of the Company
or
any of the Subsidiaries and (B) there has been no violation of any federal,
state, local or foreign law relating to discrimination in the hiring, promotion
or pay of employees, any applicable wage or hour laws or any provision of
the
Employee Retirement Income Security Act of 1974 (“ERISA”) or the rules
and regulations promulgated thereunder concerning the employees of the Company
or any of the Subsidiaries;
-
9 -
(aa) each
of the Company and the Subsidiaries and their respective properties, assets
and
operations is in compliance with, and each of the Company and the Subsidiaries
holds all permits, authorizations and approvals required under, Environmental
Laws (as hereinafter defined), except to the extent that failure to so comply
or
to hold such permits, authorizations or approvals would not, individually
or in
the aggregate, have a Material Adverse Effect; there are no past, present
or, to
the Company’s knowledge, reasonably anticipated future events, conditions,
circumstances, actions, omissions or plans that could reasonably be expected
to
give rise to any material costs or liabilities to the Company or any Subsidiary
under, or to materially interfere with or prevent compliance by the Company
or
any Subsidiary with, Environmental Laws; except as would not, individually
or in
the aggregate, have a Material Adverse Effect, neither the Company nor any
of
the Subsidiaries (i) has received any notice that it is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party to
or
affected by any pending or, to the Company’s knowledge, threatened action, suit
or proceeding, (iv) is bound by any judgment, decree or order or (v) has
entered
into any written indemnification or settlement agreement, in each case relating
to any alleged violation of any Environmental Law or any actual or alleged
release or threatened release or cleanup at any location of any Hazardous
Materials (as hereinafter defined) (as used herein, “Environmental Law”
means any applicable federal, state, local or foreign law, statute,
ordinance,
rule, regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement or common law (including any
applicable regulations and standards adopted by the International Maritime
Organization) relating to health, safety or the protection, cleanup or
restoration of the environment or natural resources, and “Hazardous
Materials” means any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that in relevant form
and
concentration is regulated by or may give rise to liability under any
Environmental Law);
(bb) the
Subsidiaries have arranged for the technical manager of the Vessels (the
“Technical Manager”) to conduct a periodic review of the effect of the
Environmental Laws on their respective businesses, operations and properties
for
the purposes of identifying and evaluating associated costs and liabilities
(including, without limitation, any capital or operating expenditures required
for cleanup or compliance with the Environmental Laws or any permit, license
or
approval, any related constraints on operating activities and any potential
liabilities to third parties);
-
10 -
(cc) all
income and other material tax returns required to be filed by the Company
or any
of the Subsidiaries have been filed, and all taxes and other material
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been timely paid,
other
than those being contested in good faith and for which adequate reserves
have
been provided;
(dd) the
Company and the Subsidiaries maintain or have caused the Technical Manager
to
maintain for its or their benefit, insurance or a membership in a mutual
protection and indemnity association covering its properties, operations,
personnel and businesses as deemed adequate by the Company; such insurance
or
membership insures or will insure against such losses and risks to an extent
which is adequate in accordance with customary industry practice to protect
the
Vessels and, in the case of insurance or a membership maintained by or for
the
benefit of the Company and the Subsidiaries, their businesses; any such
insurance or membership maintained by or for the benefit of the Company and
its
Subsidiaries is and will be fully in force at the time of purchase; there
are no
material claims by the Company or any Subsidiary under any insurance policy
or
instrument as to which any insurance company or mutual protection and indemnity
association is denying liability or defending under a reservation of rights
clause; neither the Company nor any of the Subsidiaries is currently required
to
make any material payment, or is aware of any facts that would require the
Company or any Subsidiary to make any material payment, in respect of a call
by,
or a contribution to, any mutual protection and indemnity association; and
neither the Company nor any Subsidiary has reason to believe that it will
not be
able to renew or cause to be renewed for its benefit any such insurance or
membership in a mutual protection and indemnity association as and when such
insurance or membership expires or is terminated;
(ee) since
the date of the last audited Company Financial Statements included in the
Registration Statement, the Pricing Prospectus and the Prospectus, (i) there
has
not been a material partial loss or total loss of or to any of the Vessels,
whether actual or constructive, (ii) no Vessel has been arrested or
requisitioned for title or hire and (iii) neither the Company nor any
of the Subsidiaries has sustained any material loss or interference with
its
respective business from fire, explosion, flood or other calamity, whether
or
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree;
(ff) none
of the contracts or agreements filed as an exhibit to the Registration Statement
has been terminated, amended, modified, supplemented or waived; neither the
Company nor any Subsidiary has sent or received any communication regarding
the
termination, amendment, modification, supplementation or waiver of, or an
intention to terminate, amend, modify, supplement or waive, or not to consummate
any transaction contemplated by, any such contract or agreement; and no such
termination, amendment, modification, supplementation or waiver, or intention
to
terminate, amend, modify, supplement or waive, or not to consummate any
transaction contemplated by, any such contract or agreement has been threatened
by the Company or any Subsidiary or, to the Company’s knowledge, any other party
to any such contract or agreement;
-
11 -
(gg) the
Company and each of the Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are
executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain accountability for assets; (iii) access to assets is permitted only
in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(hh) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act); such disclosure controls and procedures are designed to ensure
that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s Chief Executive Officer and its
Chief Financial Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for which
they
were established; the Company’s auditors and Board of Directors of the Company
have been advised of: (i) any significant deficiencies and material weaknesses
in the design or operation of internal controls which are reasonably likely
to
adversely affect the Company’s ability to record, process, summarize, and report
financial data; and (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal
controls; to date, the Company’s auditors have not identified any material
weaknesses in internal controls; since the date of the most recent evaluation
of
such disclosure controls and procedures, there have been no changes in internal
controls or in other factors within control of the Company that have materially
affected, or are reasonably likely to materially affect, the Company’s internal
controls; and the Company, the Subsidiaries and their respective officers
and
directors, in their capacities as such, are each in compliance in all material
respects with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and
regulations promulgated thereunder that are applicable to the Company, the
Subsidiaries or such officers and directors;
(ii) the
Company has not, directly or indirectly, including through any Subsidiary,
extended credit, arranged to extend credit, or renewed any extension of credit,
in the form of a personal loan, to or for any director or executive officer
of
the Company, or to or for any family member or affiliate of any director
or
executive officer of the Company;
(jj) each
“forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained in the Registration Statement,
the
Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus
has
been made with a reasonable basis and has been disclosed in good
faith;
(kk) all
statistical or market-related data included in the Registration Statement,
the
Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus
are
based on or derived from sources that the Company believes to be reliable
and
accurate, and the Company has obtained the written consent to the use of
such
data from such sources to the extent required;
-
12 -
(ll) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any
of the
Subsidiaries is aware of or has taken any action, directly or indirectly,
that
would result in a violation by such persons of the Foreign Corrupt Practices
Act
of 1977, as amended, and the rules and regulations thereunder (the “Foreign
Corrupt Practices Act”), including, without limitation, making use of the
mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the
payment
of any money, or other property, gift, promise to give, or authorization
of the
giving of anything of value to any “foreign official” (as such term is defined
in the Foreign Corrupt Practices Act) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of
the
Foreign Corrupt Practices Act; and the Company, the Subsidiaries and, to
the
Company’s knowledge, the affiliates of the Company have conducted their
businesses in compliance with the Foreign Corrupt Practices Act and have
instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance
therewith;
(mm) the
operations of the Company, the Subsidiaries and the Vessels are and have
been
conducted at all times in compliance with applicable financial recordkeeping
and
reporting requirements of the Currency and Foreign Transactions Reporting
Act of
1970, as amended, the money laundering statutes, rules and regulations of
all
jurisdictions and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency that, in each
case,
are applicable to the Company, any of the Subsidiaries and any of the Vessels
(collectively, the “Money Laundering Laws”); and no action, suit or
proceeding by or before any court or governmental agency, authority or body
or
any arbitrator or non-governmental authority involving the Company, any of
the
Subsidiaries or any of the Vessels with respect to the Money Laundering Laws
is
pending or, to the Company’s knowledge, threatened;
(nn) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any
of the
Subsidiaries is currently subject to any United States sanctions administered
by
the Office of Foreign Assets Control of the United States Treasury Department
(“OFAC”);
(oo) no
Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the
Company, except as described in the Registration Statement, the Pricing
Prospectus and the Prospectus; all dividends and other distributions declared
and payable on the shares of Common Stock of the Company and on the capital
stock of each Subsidiary may under the current laws and regulations of the
Xxxxxxxx Islands be paid in United States dollars and freely transferred
out of
the Xxxxxxxx Islands; and all such dividends and other distributions are
not
subject to withholding or other taxes under the current laws and regulations
of
the Xxxxxxxx Islands and are otherwise free and clear of any withholding
or
other tax and may be declared and paid without the necessity of obtaining
any
consents, approvals, authorizations, orders licenses, registrations, clearances
and qualifications of or with any court or governmental agency or body or
any
stock exchange authorities in the Xxxxxxxx Islands.
-
13 -
(pp) except
pursuant to this Agreement, neither the Company nor any of the Subsidiaries
has
incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby or by the Registration Statement,
the
Pricing Prospectus and the Prospectus;
(qq) neither
the Company nor any of the Subsidiaries nor, to the Company’s knowledge, any of
their respective directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has constituted
or
might reasonably be expected to cause or result in, under the Exchange Act
or
otherwise, the stabilization or manipulation of the price of any security
of the
Company to facilitate the sale or resale of the Shares; and
(rr) to
the Company’s knowledge, there are no affiliations or associations between (i)
any member of the NASD and (ii) the Company or any of the Company’s officers,
directors or 5% or greater securityholders or any beneficial owner of the
Company’s unregistered equity securities that were acquired at any time on or
after the 180th day immediately preceding the date the Registration Statement
was initially filed with the Commission, except as set forth in the Registration
Statement, the Pricing Prospectus and the Prospectus.
In
addition, any certificate signed by
any officer of the Company and delivered to the Underwriter or counsel for
the
Underwriter in connection with the offering of the Shares shall be deemed
to be
a representation and warranty by the Company, as to matters covered thereby,
to
the Underwriter.
4. Representations
and Warranties of the Selling Stockholder. The Selling
Stockholder represents and warrants to the Underwriter that:
(a) the
Selling Stockholder is and at the time of purchase will be the lawful owner
of
the number of Shares to be sold by the Selling Stockholder and the Selling
Stockholder has and at the time of purchase will have valid and marketable
title
to the Shares to be sold by the Selling Stockholder, and upon delivery of
and
payment for any Shares, the Underwriter will acquire valid and marketable
title
to such Shares free and clear of any claim, lien, encumbrance, security
interest, community property right, restriction on transfer or other defect
in
title;
(b) the
Selling Stockholder has been duly incorporated and is validly existing as
a
corporation in good standing under the laws of the Xxxxxxxx Islands; the
Selling
Stockholder has and at the time of purchase will have full legal right, power
and capacity, and all authorizations and approvals required by law (other
than
those imposed by the Act and state securities or blue sky laws), (i) to enter
into this Agreement, (ii) to sell, assign, transfer and deliver the Shares
pursuant to this Agreement in the manner provided in this Agreement and (iii)
to
make the representations, warranties and agreements made by the Selling
Stockholder herein;
(c) this
Agreement has been duly executed and delivered by the Selling Stockholder
and is
a legal, valid and binding agreement of the Selling Stockholder, enforceable
in
accordance with its terms;
-
14 -
(d) all
information with respect to the Selling Stockholder included in the Registration
Statement, any Preliminary Prospectus or the Prospectus complied and will
comply
with all applicable provisions of the Act; the Registration Statement, as
it
relates to the Selling Stockholder, did not, as of the Effective Time, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
each Preliminary Prospectus and any amendment or supplement thereto, as of
its
date and the date it was filed with the Commission, and the Pricing Prospectus,
as of the Applicable Time, in each case as it relates to the Selling Stockholder
and when read together with the then issued Issuer Free Writing Prospectuses,
if
any, and the information included in Schedule B hereto, did not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; at no time during
the
period that begins on the earlier of the date of the Prospectus and the date
the
Prospectus is filed with the Commission and ends at the later of the time
of
purchase and the end of the period during which a prospectus is required
by the
Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares
did or
will the Prospectus, as then amended or supplemented, as the Prospectus relates
to the Selling Stockholder, include an untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
each Issuer Free Writing Prospectus, as such Issuer Free Writing Prospectus
relates to the Selling Stockholder and when read together with the Pricing
Prospectus, any other Issuer Free Writing Prospectuses then issued and the
information included on Schedule B hereto, as of the Applicable Time, did
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(e) the
sale of the Shares by the Selling Stockholder pursuant to this Agreement
is not
prompted by any material information concerning the Company or any Subsidiary
which is not set forth in the Registration Statement, the Pricing Prospectus
and
the Prospectus;
(f) neither
the Selling Stockholder nor any of its affiliates has taken, directly or
indirectly, any action designed to, or which has constituted or might reasonably
be expected to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the Company
to
facilitate the sale or resale of the Shares;
(g) to
the Selling Stockholder’s knowledge, there are no affiliations or associations
between any member of the NASD and the Selling Stockholder, except as set
forth
in the Registration Statement, the Pricing Prospectus and the Prospectus;
and
none of the proceeds received by the Selling Stockholder from the sale of
the
Shares to be sold by the Selling Stockholder pursuant to this Agreement will
be
paid to a member of the NASD or any affiliate of such member;
-
15 -
(h) at
the time of purchase, all stock transfer or other taxes (other than income
taxes), if any, that are required to be paid in connection with the sale
and
transfer of the Shares to the Underwriter will be fully paid or provided
for by
the Selling Stockholder, and all laws imposing such taxes will be fully complied
with;
(i) no
approval, authorization, consent or order of or filing with any federal,
state,
local or foreign governmental or regulatory commission, court, board, body,
authority or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the
NYSE)
is required in connection with the sale of the Shares by the Selling Stockholder
pursuant to this Agreement or the consummation by the Selling Stockholder
of the
transactions contemplated hereby, other than registration of such Shares
under
the Act, which has been effected (or, with respect to a Rule 462(b) Registration
Statement, will be effected in accordance herewith), any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which
such
Shares are being offered by the Underwriter or under the rules and regulations
of the NASD and such approvals, authorizations, consents, orders or filings
that
have been obtained or made and are in full force and effect;
(j) the
Selling Stockholder has not offered or sold any Shares by means of any
“prospectus” (within the meaning of the Act), or used any “prospectus” (within
the meaning of the Act) in connection with the offer or sale of the Shares,
in
each case other than the then most recent Preliminary Prospectus;
(k) the
execution, delivery and performance of this Agreement, the sale by the Selling
Stockholder of the Shares pursuant to this Agreement and the consummation
of the
transactions contemplated hereby will not conflict with, result in any breach
or
violation of or constitute a default under (or constitute any event which
with
notice, lapse of time or both would result in any breach or violation of
or
constitute a default under) (i) the charter or bylaws of the Selling
Stockholder, (ii) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract
or
other agreement or instrument to which the Selling Stockholder is a party
or by
which the Selling Stockholder or any of its properties may be bound or affected,
(iii) any federal, state, local or foreign law, regulation or rule, (iv)
any
rule or regulation of any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the rules and regulations
of the NYSE) or (v) any decree, judgment or order applicable to the Selling
Stockholder or its properties, except in the case of the foregoing clauses
(ii),
(iii), (iv) and (v) as would not, individually or in the aggregate, have
a
material adverse effect on the ability of the Selling Stockholder to consummate
the transactions contemplated hereby;
(l) no
stamp duty, stock exchange tax, value-added tax, withholding tax or any other
similar duty or tax is payable by or on behalf of the Underwriter in the
United
States or the Xxxxxxxx Islands or any political subdivision thereof or any
authority thereof having power to tax in connection with the execution, delivery
or performance of this Agreement by the Selling Stockholder or the sale or
delivery of the Shares by the Selling Stockholder to or for the account of
the
Underwriter or the resales of the Shares by the Underwriter to the initial
purchasers thereof; and
-
16 -
(m) certificates
in negotiable form representing all of the Shares to be sold by the Selling
Stockholder hereunder have been or will be at the applicable time of payment
duly and properly endorsed in blank for transfer, accompanied by all documents,
including stock powers, duly and properly executed that are necessary to
validate the transfer of title to such Shares to the Underwriter, free of
any
legend, restriction on transferability, proxy, lien or claim
whatsoever.
In
addition, any certificate signed by
any officer of the Selling Stockholder or any of the Selling Stockholder’s
affiliates or by the Selling Stockholder and delivered to the Underwriter
or
counsel for the Underwriter in connection with the offering of the Shares
shall
be deemed to be a representation and warranty by the Selling Stockholder,
as to
matters covered thereby, to the Underwriter.
5. Certain
Covenants of the Company. The Company hereby agrees:
(a) to
furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue
sky
laws of such states or other jurisdictions as the Underwriter may reasonably
designate and to maintain such qualifications in effect so long as may be
required for the distribution of the Shares; provided, however,
that the Company shall not be required to qualify as a foreign corporation
or
subject itself to taxation in any such jurisdiction or consent to the service
of
process under the laws of any such jurisdiction (except service of process
with
respect to the offering and sale of the Shares); and to promptly advise the
Underwriter of the receipt by the Company of any notification with respect
to
the suspension of the qualification of the Shares for offer or sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(b) to
make available to the Underwriter in New York City, as soon as practicable
after
the date of this Agreement, and thereafter from time to time to furnish to
the
Underwriter, as many copies of the Prospectus (or of the Prospectus as amended
or supplemented if the Company shall have made any amendments or supplements
thereto after the date of this Agreement) as the Underwriter may request
for the
purposes contemplated by the Act; in case the Underwriter is required to
deliver
(whether physically or through compliance with Rule 172 under the Act or
any
similar rule), in connection with the sale of the Shares, a prospectus after
the
nine-month period referred to in Section 10(a)(3) of the Act, the Company
will
prepare, at its expense, promptly upon request such amendment or amendments
to
the Registration Statement and the Prospectus as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act;
(c) if,
at the time this Agreement is executed and delivered, it is necessary for
any
post-effective amendment to the Registration Statement or a Rule 462(b)
Registration Statement to be filed with the Commissions and become effective
before the Shares may be sold, the Company will use its best efforts to cause
such post-effective amendment or such Rule 462(b) Registration Statement
to be
filed and become effective, and will pay any fees in accordance with the
Act as
soon as possible, and the Company will advise the Underwriter promptly and,
if
requested by the Underwriter, will confirm such advice in writing, (i) when
such
post-effective amendment or such Rule 462(b) Registration Statement has become
effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when
the
Prospectus is filed with the Commission pursuant to Rule 424(b) under the
Act
(which the Company agrees to file in a timely manner in accordance with such
Rules);
-
17 -
(d) to
advise the Underwriter promptly, and, if requested by the Underwriter, to
confirm such advice in writing, of any request by the Commission for amendments
or supplements to the Registration Statement, any Preliminary Prospectus,
the
Prospectus or any Issuer Free Writing Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for, or
the
entry of a stop order, suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus,
the
Prospectus or any Issuer Free Writing Prospectus and, if the Commission should
enter a stop order suspending the effectiveness of the Registration Statement
or
preventing or suspending the use of any Preliminary Prospectus, the Prospectus
or any Issuer Free Writing Prospectus, to use its best efforts to obtain
the
lifting or removal of such order as soon as possible; to advise the Underwriter
promptly of any proposal to amend or supplement the Registration Statement,
any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus
and
to provide the Underwriter and its counsel copies of any such documents for
review and comment a reasonable amount of time prior to any proposed filing
and
to file no such amendment or supplement to which the Underwriter shall
reasonably object in writing;
(e) subject
to Section 5(d) hereof, to file promptly all reports and documents and any
information statement required to be filed by the Company with the Commission
in
order to comply with the Exchange Act for so long as the delivery of a
prospectus is required by the Act (whether physically or through compliance
with
Rule 172 under the Act or any similar rule) in connection with any sale of
Shares; and, during such period, to provide the Underwriter, for its review
and
comment, with a copy of such reports and statements and other documents to
be
filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange
Act
during such period a reasonable amount of time prior to any proposed filing,
and
to file no such report, statement or document to which the Underwriter shall
reasonably object in writing; and to promptly notify the Underwriter of such
filing;
(f) to
advise the Underwriter promptly of the happening of any event known to the
Company within the period during which a prospectus is required by the Act
to be
delivered (whether physically or through compliance with Rule 172 under the
Act
or any similar rule) in connection with any sale of Shares, which event could
require the making of any change in the Prospectus then being used so that
the
Prospectus would not include an untrue statement of a material fact or omit
to
state a material fact necessary in order to make the statements therein,
in the
light of the circumstances under which they are made, not misleading, and,
during such time, subject to Section 5(d) hereof, to prepare and furnish,
at the
Company’s expense, to the Underwriter promptly such amendments or supplements to
such Prospectus as may be necessary to reflect any such change;
(g) to
make generally available to its security holders, and to deliver to the
Underwriter, an earnings statement of the Company and its Subsidiaries (which
need not be audited but shall satisfy the provisions of Rule 158(a) under
the
Act) covering a period of twelve months beginning after the effective date
of
the Registration Statement (as defined in Rule 158(c) under the Act) as soon
as
is reasonably practicable after the termination of such twelve-month period
but
in any case not later than [·].
-
18 -
(h) to
furnish to its stockholders as soon as practicable after the end of each
fiscal
year an annual report (including a consolidated balance sheet and statements
of
income, stockholders’ equity and cash flow of the Company and the Subsidiaries
for such fiscal year, accompanied by a copy of the certificate or report
thereon
of nationally recognized independent certified public accountants duly
registered with the Public Company Oversight Accounting Board);
(i) to
furnish to the Underwriter one copy of the Registration Statement, as initially
filed with the Commission, and of all amendments thereto, including, if
requested, all exhibits thereto;
(j) to
furnish to the Underwriter promptly for a period of three years from the
date of
this Agreement (i) copies of any reports, proxy statements, or other
communications which the Company shall send to its stockholders, (ii) copies
of
all annual, quarterly and current reports filed with or furnished to the
Commission on Forms 20-F or 6-K, or such other similar forms as may be
designated by the Commission and (iii) copies of documents or reports filed
with
any national securities exchange on which any class of securities of the
Company
is listed; provided, however, that any information or documents
filed with or furnished to the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System shall be considered furnished for
the
purposes of this Section 5(j);
(k) for
a period of 90 days after the date hereof (the “Lock-Up Period”), without
the prior written consent of the Representatives, not to (i) sell, offer
to
sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or establish or increase a put equivalent position or liquidate or decrease
a
call equivalent position within the meaning of Section 16 of the Exchange
Act
and the rules and regulations of the Commission promulgated thereunder, with
respect to, any Common Stock or securities convertible into or exchangeable
or
exercisable for Common Stock or warrants or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar
to
Common Stock, (ii) file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock,
(iii)
enter into any swap or other arrangement that transfers to another, in whole
or
in part, any of the economic consequences of ownership of Common Stock or
any
securities convertible into or exercisable or exchangeable for Common Stock,
or
warrants or other rights to purchase Common Stock or any such securities,
whether any such transaction is to be settled by delivery of Common Stock
or
such other securities, in cash or otherwise or (iv) publicly announce an
intention to effect any transaction specified in clause (i), (ii) or (iii),
except, in each case, for (A) the registration of the Shares and the sales
to
the Underwriter pursuant to this Agreement, (B) issuances of Common Stock
upon
the exercise of options or warrants disclosed as outstanding in the Registration
Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance
of
employee stock options not exercisable during the Lock-Up Period pursuant
to
stock option plans described in the Registration Statement, the Pricing
Prospectus and the Prospectus; provided, however, that if (a)
during the period that begins on the date that is fifteen (15) calendar days
plus three (3) business days before the last day of the Lock-Up Period and
ends
on the last day of the Lock-Up Period, the Company issues an earnings release
or
material news or a material event relating to the Company occurs; or (b)
prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on
the
last day of the Lock-Up Period, then the restrictions imposed by this Section
5(k) shall continue to apply until the expiration of the date that is fifteen
(15) calendar days plus three (3) business days after the date on which the
issuance of the earnings release or the material news or material event
occurs;
-
19 -
(l) prior
to the time of purchase, to issue no press release or other communication
directly or indirectly and hold no press conferences with respect to the
Company
or any Subsidiary, the financial condition, results of operations, business,
properties, assets, or liabilities of the Company or any Subsidiary or the
offering of the Shares, without the Underwriter’s prior consent;
(m) not,
at any time at or after the execution of this Agreement, to directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act) or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, other than the Registration
Statement and the then most recent Prospectus;
(n) not
to, and to cause its Subsidiaries not to, take, directly or indirectly, any
action designed, or which has constituted or might reasonably be expected
to
cause or result in, under the Exchange Act or otherwise, the stabilization
or
manipulation of the price of any security of the Company to facilitate the
sale
or resale of the Shares;
(o) to
use its reasonable best efforts either (i) to maintain the listing of the
Shares
on the NYSE, (ii) to list, and to maintain the listing of, the Shares on
any
other national securities exchange registered pursuant to Section 6(a) of
the
Exchange Act or (iii) to arrange for the quotation, and to maintain the
quotation of, the Shares in an automated interdealer quotation system of
a
national securities association registered pursuant to Section 15A(a) of
the
Exchange Act; and
(p) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
6. Certain
Covenants of the Selling Stockholder. The Selling Stockholder
hereby agrees:
(a) not,
at any time at or after the execution of this Agreement, to directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act) or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, other than the Registration
Statement and the then most recent Prospectus;
-
20 -
(b) not
to take, directly or indirectly, any action designed to or which may constitute
or which might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares;
(c) to
pay or cause to be paid all taxes, if any, on the transfer and sale of the
Shares being sold by the Selling Stockholder;
(d) to
deliver to the Underwriter prior to the time of payment a properly completed
and
executed United States Treasury Department Form W-8BEN or other applicable
form
or statement specified by Treasury Department regulations in lieu
thereof;
(e) to
advise the Underwriter promptly, and if requested by the Underwriter, to
confirm
such advice in writing, so long as the delivery of a prospectus is required
by
the Act (whether physically or through compliance with Rule 172 under the
Act or
any similar rule) in connection with any sale of Shares, of (i) any material
change in the business, properties, financial condition, results of operations
or prospects of the Company and the Subsidiaries taken as a whole, (ii) any
change in material information in the Registration Statement, the Pricing
Prospectus, the Prospectus or any Issuer Free Writing Prospectus relating
to the
Selling Stockholder or (iii) any new material information relating to the
Company or any of its Subsidiaries or relating to any matter stated in the
Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer
Free Writing Prospectus, in each case which comes to the attention of the
Selling Stockholder; and
(f) prior
to or concurrently with the execution and delivery of this Agreement, to
execute
and deliver to the Underwriter a Lock-Up Agreement.
7. Covenant
to Pay Costs. The Selling Stockholder agrees to pay all costs,
expenses, fees and taxes in connection with (i) the preparation and filing
of
the Registration Statement, any Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus and any amendments or supplements thereto,
and
the printing and furnishing of copies of each thereof to the Underwriter
and to
dealers (including costs of mailing and shipment), (ii) the registration,
issue,
sale and delivery of the Shares including any stock or transfer taxes and
stamp
or similar duties payable upon the sale, issuance or delivery of the Shares
to
the Underwriter, (iii) the qualification of the Shares for offering and
sale under state or foreign laws and the determination of their eligibility
for
investment under state or foreign law (including the legal fees and filing
fees
and other disbursements of counsel for the Underwriter incurred in connection
with such qualifications and determinations) and the printing and furnishing
of
copies of any blue sky surveys or legal investment surveys to the Underwriter
and to dealers, (iv) any listing of the Shares on any securities exchange
or
qualification of the Shares for quotation on the NYSE and any registration
thereof under the Exchange Act, (v) any filing for review of the public offering
of the Shares by the NASD, including the legal fees and filing fees and other
disbursements of counsel to the Underwriter relating to NASD matters,
(vi) the fees and disbursements of any transfer agent or registrar for the
Shares, (vii) unless otherwise agreed in writing, the costs and expenses of
the Company and the Selling Stockholder relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the
Shares to prospective investors and the Underwriter’s sales forces, including,
without limitation, expenses associated with the production of road show
slides
and graphics, fees and expenses of any consultants engaged in connection
with
the road show presentations, travel, lodging and other expenses incurred
by the
officers of the Company or by the Selling Stockholder and any such consultants,
and the cost of any aircraft chartered in connection with any road show and
(ix) the performance of the Company’s and the Selling Stockholder’s other
obligations hereunder. The Company hereby agrees with the Underwriter that
it
will pay any such amounts not so paid by the Selling Stockholder.
-
21 -
8. Reimbursement
of Underwriter’s Expenses. If the Shares are not delivered for
any reason, the Selling Stockholder agrees that it shall, in addition to
paying
the amounts described in Section 7 hereof, reimburse the Underwriter for
all of
its properly documented out-of-pocket expenses, including the reasonable
fees
and disbursements of its counsel. The Company hereby agrees with the Underwriter
that it will pay any such amounts not so paid by the Selling
Stockholder.
9. Conditions
of Underwriter’s Obligations. The obligations of the Underwriter
hereunder are subject to the accuracy of the representations and warranties
on
the part of the Company and the Selling Stockholder on the date hereof and
at
the time of purchase, the performance by the Company and the Selling Stockholder
of each of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The
Company shall furnish to the Underwriter at the time of purchase an opinion
of
Cravath, Swaine & Xxxxx LLP, special United States counsel for the Company
and the Selling Stockholder, addressed to the Underwriter and dated the time
of
purchase, substantially in the form set forth in Exhibit B
hereto.
(b) The
Company shall furnish to the Underwriter at the time of purchase a negative
assurance letter of Cravath, Swaine & Xxxxx LLP, special United States
counsel for the Company and the Selling Stockholder, addressed to the
Underwriter and dated the time of purchase, substantially in the form set
forth
in Exhibit C hereto.
(c) The
Company shall furnish to the Underwriter at the time of purchase an opinion
of
Cravath, Swaine & Xxxxx LLP, special United States counsel for the Company,
as to certain tax matters, addressed to the Underwriter and dated the time
of
purchase, substantially in the form set forth in Exhibit D
hereto.
(d) The
Company and the Selling Stockholder shall furnish to the Underwriter at the
time
of purchase an opinion of Xxxxxx & Xxxxxxx, PC, Xxxxxxxx Islands counsel for
the Company and the Selling Stockholder, addressed to the Underwriter and
dated
the time of purchase, substantially in the form set forth in Exhibit E
hereto.
(e) The
Selling Stockholder shall furnish to the Underwriter at the time of purchase
an
opinion of Xxxxx X. Xxxxxxx, General Counsel of Overseas Shipholding Group,
Inc., addressed to the Underwriter and dated the time of purchase, substantially
in the form set forth in Exhibit F hereto.
-
22 -
(f) The
Underwriter shall have received from Ernst & Young LLP letters dated,
respectively, the date of this Agreement and the time of purchase and addressed
to the Underwriter, in the forms heretofore approved by the
Underwriter.
(g) The
Underwriter shall have received at the time of purchase the favorable opinion
and negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for
the Underwriter, dated the time of purchase, in form and substance satisfactory
to the Underwriter.
(h) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which the Underwriter reasonably objects
in
writing.
(i) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act at or before 5:30 P.M., New York City time, on the second full
business day after the date of this Agreement and any Rule 462(b) Registration
Statement required by the Act in connection with the offer and sale of the
Shares shall have been filed and become effective no later than 10:00 P.M.,
New
York City time, on the date of this Agreement.
(j) Prior
to and at the time of purchase, (i) no stop order of the Commission preventing
or suspending the use of any Preliminary Prospectus or Issuer Free Writing
Prospectus, or the effectiveness of the Registration Statement, shall have
been
issued, and no proceedings for such purpose shall have been instituted; (ii)
the
Registration Statement and all amendments thereto shall not contain an untrue
statement of a material fact or omit to state a material fact required to
be
stated therein or necessary to make the statements therein not misleading;
(iii)
the Pricing Prospectus and all supplements and amendments thereto, when read
together with the then issued Issuer Free Writing Prospectuses, if any, and
the
information included on Schedule B hereto, shall not include an untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; (iii) the Prospectus and all supplements
and
amendments thereto shall not include an untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and (iv) the Issuer Free Writing Prospectuses, if any, when read together
with
the Pricing Prospectus and the information included on Schedule B hereto,
shall not include an untrue statement of a material fact or omit to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading.
(k) Between
the time of execution of this Agreement and the time of purchase, (i) there
shall not have occurred or become known any material adverse change, or any
development involving a prospective material adverse change, in the business,
properties, financial condition, results of operations or prospects of the
Company and the Subsidiaries taken as a whole and (ii) no transaction which
is
material and adverse to the Company and the Subsidiaries taken as a whole
shall
have been entered into by the Company or any of the Subsidiaries.
-
23 -
(l) The
Company will, at the time of purchase, deliver to the Underwriter a certificate
of its Chief Executive Officer and its Chief Financial Officer, dated the
time
of purchase, in the form attached as Exhibit G hereto.
(m) The
Selling Stockholder will, at the time of purchase, deliver to the Underwriter
a
certificate of the Chief Financial Officer of the Overseas Shipholding Group,
Inc., dated the time of purchase, in the form attached as Exhibit H
hereto.
(n) The
Underwriter shall have received each of the signed Lock-Up Agreements referred
to in Section 3(t) hereof, and each such Lock-Up Agreement shall be in full
force and effect at the time of purchase.
(o) The
Company and the Selling Stockholder shall have furnished to the Underwriter
such
other documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement, the Pricing Prospectus, the Prospectus
and any Issuer Free Writing Prospectus as of the time of purchase as the
Underwriter may reasonably request.
(p) The
Shares shall be listed and admitted and authorized for trading on the
NYSE.
(q) The
NASD shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
(r) Each
Vessel shall be owned directly by a Subsidiary free and clear of all liens,
claims, security interests or other encumbrances, except such as are described
in the Registration Statement, the Pricing Prospectus and the Prospectus
and
such as are not material and do not interfere with the intended use to be
made
of such Vessel as described in the Registration Statement, the Pricing
Prospectus and the Prospectus.
10. Effective
Date of Agreement; Termination. This Agreement shall become
effective when the parties hereto have executed and delivered this Agreement.
The obligations of the Underwriter hereunder shall be subject to termination
in
the absolute discretion of the Underwriter if (x) since the time of execution
of
this Agreement or the earlier respective dates as of which information is
given
in the Registration Statement, the Pricing Prospectus, the Prospectus and
any
Permitted Free Writing Prospectus, there has been any material adverse change
or
any development involving a prospective material adverse change in the business,
properties, management, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole which would, in the judgment
of
the Underwriter, make it impracticable or inadvisable to proceed with the
public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Pricing Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, (in each
case
excluding any amendments or supplements thereto made after the execution
of this
Agreement) or (y) since the time of execution of this Agreement, there shall
have occurred: (i) a suspension or material limitation in trading in securities
generally on the NYSE or the NASDAQ; (ii) a suspension or material limitation
in
trading in the Company’s securities on the NYSE; (iii) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) an outbreak or
escalation of hostilities or acts of terrorism involving the United States
or a
declaration by the United States of a national emergency or war (it being
understood that, with respect to matters relating to the current conflicts
in
Afghanistan and Iraq occurring within Afghanistan and Iraq, respectively,
this
clause (iv) shall apply only to an escalation of hostilities or a declaration
by
the United States of a national emergency or a war which has not heretofore
been
declared); or (v) any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment
of the
Underwriter makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Pricing Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, (in each
case
excluding any amendments or supplements thereto made after the execution
of this
Agreement) or (z) since the time of execution of this Agreement, there shall
have occurred any downgrading, or any notice or announcement shall have been
given or made of (i) any intended or potential downgrading or (ii) any watch,
review or possible change that does not indicate an affirmation or improvement
in the rating accorded any securities of or guaranteed by the Company or
any
Subsidiary by any “nationally recognized statistical rating organization,” as
that term is defined in Rule 436(g)(2) under the Act.
-
24 -
If
the Underwriter elects to terminate
this Agreement as provided in this Section 10, the Company and the Selling
Stockholder shall be notified promptly in writing. If the sale to the
Underwriter of the Shares, as contemplated by this Agreement, is not carried
out
by the Underwriter for any reason permitted under this Agreement, or if such
sale is not carried out because the Company or the Selling Stockholder, as
the
case may be, shall be unable to comply with any of the terms of this Agreement,
the Company or the Selling Stockholder, as the case may be, shall not be
under
any obligation or liability under this Agreement (except to the extent provided
in Sections 7, 8 and 11 hereof), and the Underwriter shall be under no
obligation or liability to the Company or the Selling Stockholder under this
Agreement (except to the extent provided in Section 11 hereof) or to one
another
hereunder.
11. Indemnity
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls the Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act,
and the successors and assigns of all of the foregoing persons, from and
against
any loss, damage, expense, liability or claim (including the reasonable cost
of
investigation) which, jointly or severally, the Underwriter or any such person
may incur under the Act, the Exchange Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is based
upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration Statement
as
amended by any post-effective amendment thereof by the Company) or arises
out of
or is based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein
not
misleading, except insofar as any such loss, damage, expense, liability or
claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in, and in conformity with information concerning
the Underwriter furnished in writing by or on behalf of the Underwriter to
the
Company expressly for use in, the Registration Statement or arises out of
or is
based upon any omission or alleged omission to state a material fact in the
Registration Statement in connection with such information, which material
fact
was not contained in such information and which material fact was required
to be
stated in such Registration Statement or was necessary to make such information
not misleading or (ii) any untrue statement or alleged untrue statement of
a
material fact included in any Prospectus (the term Prospectus for the purpose
of
this Section 11 being deemed to include any Preliminary Prospectus, the
Prospectus and any amendments or supplements to the foregoing), in any Issuer
Free Writing Prospectus, in any “issuer information” (as defined in Rule 433
under the Act) of the Company, which “issuer information” is required to be, or
is, filed with the Commission, or in any Prospectus together with any
combination of one or more Issuer Free Writing Prospectuses, if any, or arises
out of or is based upon any omission or alleged omission to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except, with respect
to such Prospectus or Issuer Free Writing Prospectus, insofar as any such
loss,
damage, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in, and
in
conformity with information concerning such Underwriter furnished in writing
by
or on behalf of the Underwriter to the Company expressly for use in, such
Prospectus or Issuer Free Writing Prospectus or arises out of or is based
upon
any omission or alleged omission to state a material fact in such Prospectus
or
Issuer Free Writing Prospectus in connection with such information, which
material fact was not contained in such information and which material fact
was
necessary in order to make the statements in such information, in the light
of
the circumstances under which they were made, not misleading.
-
25 -
(b) The
Selling Stockholder agrees to indemnify, defend and hold harmless the
Underwriter, its partners, directors and officers, and any person who controls
the Underwriter within the meaning of Section 15 of the Act or Section 20
of the
Exchange Act, and the successors and assigns of all of the foregoing persons,
from and against any loss, damage, expense, liability or claim (including
the
reasonable cost of investigation) which, jointly or severally, the Underwriter
or any such person may incur under the Act, the Exchange Act, the common
law or
otherwise, insofar as such loss, damage, expense, liability or claim arises
out
of or is based upon (i) any untrue statement or alleged untrue statement
of a
material fact contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company)
or
arises out of or is based upon any omission or alleged omission to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case as such Registration Statement relates
to
the Selling Stockholder, or (ii) any untrue statement or alleged untrue
statement of a material fact included in any Prospectus, in any Issuer Free
Writing Prospectus or in any Prospectus together with any combination of
one or
more Issuer Free Writing Prospectuses, if any, or arises out of or is based
upon
any omission or alleged omission to state a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; provided, however, that the Selling
Stockholder will be liable in each case to the extent but only to the extent
that any such loss, damage, expense, liability or claim arises out of or
is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission that relates to the Selling Stockholder; and provided further,
however, that in no case shall the Selling Stockholder be liable for any
amount
in excess of the product of (i) the aggregate number of Shares sold by the
Selling Stockholder hereunder and (ii) the purchase price per Share set forth
in
Section 1 hereof.
(c) The
Underwriter agrees to indemnify, defend and hold harmless the Company, its
directors and officers, the Selling Stockholder and any person who controls
the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons,
from and against any loss, damage, expense, liability or claim (including
the
reasonable cost of investigation) which, jointly or severally, the Company,
the
Selling Stockholder or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon (i) any untrue statement
or
alleged untrue statement of a material fact contained in, and in conformity
with
information concerning the Underwriter furnished in writing by or on behalf
of
the Underwriter to the Company expressly for use in, the Registration Statement
(or in the Registration Statement as amended by any post-effective amendment
thereof by the Company), or arises out of or is based upon any omission or
alleged omission to state a material fact in such Registration Statement
in
connection with such information, which material fact was not contained in
such
information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not misleading
or (ii) any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning the Underwriter
furnished in writing by or on behalf of the Underwriter to the Company expressly
for use in, a Prospectus or any Issuer Free Writing Prospectus, or arises
out of
or is based upon any omission or alleged omission to state a material fact
in
such Prospectus or Issuer Free Writing Prospectus in connection with such
information, which material fact was not contained in such information and
which
material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not
misleading.
-
26 -
(d) If
any action, suit or proceeding (each, a “Proceeding”) is brought against
a person (an “indemnified party”) in respect of which indemnity may be
sought against the Company, the Selling Stockholder or the Underwriter (as
applicable, the “indemnifying party”) pursuant to subsection (a), (b) or
(c), respectively, of this Section 11, such indemnified party shall promptly
notify such indemnifying party in writing of the institution of such Proceeding
and such indemnifying party shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however,
that the omission to so notify such indemnifying party shall not relieve
such
indemnifying party from any liability which such indemnifying party may have
to
any indemnified party or otherwise. The indemnified party or parties
shall have the right to employ its or their own counsel in any such case,
but
the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall
have
been authorized in writing by the indemnifying party in connection with the
defense of such Proceeding or the indemnifying party shall not have, within
a
reasonable period of time in light of the circumstances, employed counsel
to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded, based on the advice of counsel, that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to such indemnifying party (in which case such indemnifying
party shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties), in any of which events such
fees
and expenses shall be borne by such indemnifying party and paid as incurred
(it
being understood, however, that such indemnifying party shall not be liable
for
the expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any
settlement of any Proceeding effected without its written consent but, if
settled with its written consent, such indemnifying party agrees to indemnify
and hold harmless the indemnified party or parties from and against any loss
or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of
counsel as contemplated by the second sentence of this Section 11(d), then
the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying
party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to
the
date of such settlement and (iii) such indemnified party shall have given
the
indemnifying party at least 30 days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could
have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of
such Proceeding and does not include an admission of fault or culpability
or a
failure to act by or on behalf of such indemnified party.
(e) If
the indemnification provided for in this Section 11 is unavailable to an
indemnified party under subsections (a), (b) or (c) of this Section 11 or
insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party shall contribute to the amount paid or payable
by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect
the
relative benefits received by the Company and the Selling Stockholder on
the one
hand and the Underwriter on the other hand from the offering of the Shares
or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the
relative benefits referred to in clause (i) above but also the relative fault
of
the Company and the Selling Stockholder on the one hand and of the Underwriter
on the other in connection with the statements or omissions which resulted
in
such losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the
Company
and the Selling Stockholder on the one hand and the Underwriter on the other
shall be deemed to be in the same respective proportions as the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the Selling Stockholder,
and the
total underwriting discounts and commissions received by the Underwriter,
bear
to the aggregate
-
27 -
public
offering price of the Shares. The relative fault of the Company and
the Selling Stockholder on the one hand and of the Underwriter on the other
shall be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission relates to information supplied by the Company or the Selling
Stockholder or by the Underwriter and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend
or
defending any Proceeding.
(f) The
Company, the Selling Stockholder and the Underwriter agree that it would
not be
just and equitable if contribution pursuant to this Section 11 were determined
by pro rata allocation or by any other method of allocation that does not
take
account of the equitable considerations referred to in subsection (e)
above. Notwithstanding the provisions of this Section 11, (i) the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by the
Underwriter and distributed to the public were offered to the public exceeds
the
amount of any damage which the Underwriter has otherwise been required to
pay by
reason of such untrue statement or alleged untrue statement or omission or
alleged omission and (ii) the Selling Stockholder shall not be required to
contribute any amount in excess of the product of (x) the aggregate number
of
Shares sold by the Selling Stockholder hereunder and (y) the purchase price
per
Share set forth in Section 1 hereof. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(g) The
indemnity and contribution agreements contained in this Section 11 and the
covenants, warranties and representations of the Company and the Selling
Stockholder contained in this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf of the
Underwriter, its partners, directors or officers or any person (including
each
partner, officer or director of such person) who controls the Underwriter
within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or
by or
on behalf of the Company or the Selling Stockholder, their respective directors
or officers or any person who controls the Company or the Selling Stockholder
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act,
and shall survive any termination of this Agreement or the issuance and delivery
of the Shares pursuant hereto. The Company, the Selling Stockholder and the
Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Company or the Selling
Stockholder, against any of their officers or directors in connection with
the
issuance and sale of the Shares, or in connection with the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free
Writing
Prospectus.
(h) The
Company and the Selling Stockholder hereby acknowledge and agree between
themselves that the offer and sale of the Shares contemplated hereby has
been
registered under the Act pursuant to the Registration Rights Agreement, dated
October 18, 2005 (the “Registration Rights Agreement”), between the
Company and the Selling Stockholder, and that the indemnification and
contribution provisions contained in the Registration Rights Agreement shall
apply to the Company and the Selling Stockholder with respect to such offer
and
sale. The Company, the Selling Stockholder and the Underwriter hereby agree
that
such indemnification and contributions provisions shall not in any way affect
any obligations owed by the Company or the Selling Stockholder to the
Underwriter under this Agreement.
-
28 -
12. Information
Furnished by the Underwriter. The statements set forth in the
Prospectus under “Underwriting” in the [·]
paragraphs constitute the only information furnished by or on behalf of the
Underwriter as such information is referred to in Section 3 and Section 11
hereof.
13. Notices. Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriter,
shall be sufficient in all respects if delivered or sent to _________________
and, if to the Company, shall be sufficient in all respects if delivered
or sent
to the Company at the offices of the Company at 00 Xxx Xxxxxx, Xx. Xxxxxx,
Xxxxxx JE23RA, Attention: Chief Executive Officer, and if to the
Selling Stockholder, shall be sufficient in all respects if delivered or
sent to
the Selling Stockholder, c/o OSG Ship Management, Inc., 000 Xxxxx Xxxxxx,
Xxx
Xxxx, Xxx Xxxx 00000, Attention: General Counsel.
14. Governing
Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating
to this Agreement (“Claim”), directly or indirectly, shall be governed
by, and construed in accordance with, the laws of the State of New
York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this
Agreement.
15. Submission
to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of
the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts
shall
have jurisdiction over the adjudication of such matters, and the Company
and the
Selling Stockholder each consent to the jurisdiction of such courts and personal
service with respect thereto. The Company and the Selling Stockholder
each hereby consent to personal jurisdiction, service and venue in any court
in
which any Claim arising out of or in any way relating to this Agreement is
brought by any third party against any Underwriter or any indemnified
party. The Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and
affiliates) and the Selling Stockholder (on its behalf and, to the extent
permitted by applicable law, on behalf of its stockholders and affiliates)
each
waive all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) in any way arising out of
or
relating to this Agreement. The Company and the Selling Stockholder
each agree that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company
and
the Selling Stockholder and may be enforced in any other courts to the
jurisdiction of which the Company or the Selling Stockholder is or may be
subject, by suit upon such judgment. The Company hereby appoints,
without power of revocation, CT Corporation as its agent to accept and
acknowledge on its behalf of any and all process which may be served in any
action, proceeding or counterclaim in any way relating to or arising out
of this
Agreement. The Selling Stockholder hereby appoints, without power of revocation,
OSG Ship Management, Inc., at the address of the Selling Stockholder set
forth
above, as its agent to accept and acknowledge on its behalf of any and all
process which may be served in any action, proceeding or counterclaim in
any way
relating to or arising out of this Agreement.
-
29 -
16. Parties
at Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriter and the Company and the Selling
Stockholder and to the extent provided in Section 11 hereof the controlling
persons, partners, directors and officers referred to in such Section, and
their
respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from the Underwriter)
shall acquire or have any right under or by virtue of this
Agreement.
17. Counterparts. This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
18. Successors
and Assigns. This Agreement shall be binding upon the
Underwriter, the Company and the Selling Stockholder and their successors
and
assigns and any successor or assign of any substantial portion of the Company’s,
the Selling Stockholder’s or any of the Underwriter’s respective businesses
and/or assets.
19. No
Fiduciary Relationship. The Company and the Selling Stockholder hereby
acknowledge that the Underwriter is acting solely as an underwriter in
connection with the purchase and sale of the Company’s securities. The Company
and the Selling Stockholder further acknowledges that the Underwriter is
acting
pursuant to a contractual relationship created solely by this Agreement entered
into on an arm’s length basis and in no event do the parties intend that the
Underwriter act or be responsible as a fiduciary to the Company, the Selling
Stockholder, their respective management, stockholders or creditors or any
other
person in connection with any activity that the Underwriter may undertake
or
have undertaken in furtherance of the purchase and sale of the Company’s
securities either before or after the date hereof. The Underwriter hereby
expressly disclaims any fiduciary or similar obligations to the Company and
the
Selling Stockholder, either in connection with the transactions contemplated
by
this Agreement or any matters leading up to such transactions, and the Company
and the Selling Stockholder hereby confirm their understanding and agreement
to
that effect. The Company, the Selling Stockholder and the Underwriter agree
that
they are each responsible for making their own independent judgments with
respect to any such transactions, and that any opinions or views expressed
by
the Underwriter to the Company or the Selling Stockholder regarding such
transactions, including but not limited to any opinions or views with respect
to
the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company or the Selling Stockholder. The Company and
the
Selling Stockholder hereby waive and release, to the fullest extent permitted
by
law, any claims that the Company and the Selling Stockholder may have against
the Underwriter with respect to any breach or alleged breach of any fiduciary
or
similar duty to the Company or the Selling Stockholder in connection with
the
transactions contemplated by this Agreement or any matters leading up to
such
transactions.
[The
Remainder of This Page Intentionally Left Blank; Signature Pages
Follow]
-
30 -
If
the foregoing correctly sets forth
the understanding among the Company, the Selling Stockholder and the
Underwriter, please so indicate in the space provided below for that purpose,
whereupon this Agreement and the Underwriter’s acceptance shall constitute a
binding agreement among the Company, the Selling Stockholder and the
Underwriter.
Very
truly yours,
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
OSG
INTERNATIONAL, INC.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Accepted
and agreed as of the date
first
written above:
|
By:
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
SCHEDULE
A
PERMITTED
FREE WRITING PROSPECTUSES
[●]
SCHEDULE
B
CERTAIN
INFORMATION
[●]
SCHEDULE
C
SUBSIDIARIES
AND VESSELS
|
Subsidiary
|
Vessel
Owned
|
|
Xxx
Tanker Corporation
|
Overseas
Xxx
|
|
Xxxxx
Tanker Corporation
|
Overseas
Xxxxx
|
|
Regal
Unity Tanker Corporation
|
Overseas
Regal
|
|
Xxxxx
Tanker Corporation
|
Overseas
Xxxxx
|
|
Sophie
Tanker Corporation
|
Overseas
Sophie
|
|
Xxxxxxx
Tanker Corporation
|
Overseas
Xxxxxxx
|
|
Ania
Aframax Corporation
|
Overseas
Ania
|
SCHEDULE
D
PERSONS
REQUIRED TO DELIVER LOCK-UP AGREEMENTS
|
1.
|
Xxxx
X. Xxxx
|
|
2.
|
Xxxxxx
Day
|
|
3.
|
Xxxx
X. Wikborg
|
|
4.
|
Ole
Xxxxx Xxxxxx
|
|
5.
|
Eirik
Ubøe
|
|
6.
|
Xxx
Kjeldsberg
|
|
7.
|
OSG
International, Inc.
|
EXHIBIT
A
LOCK-UP
AGREEMENT
_________,
2007
___________________
Ladies
and Gentlemen:
This
Lock-Up Agreement is being
delivered to you in connection with the proposed Underwriting Agreement (the
“Underwriting Agreement”) to be entered into among Double Hull Tankers,
Inc. a Xxxxxxxx Islands corporation (the “Company”), [the Selling
Stockholder named therein]1 and you with respect to the public
offering (the “Offering”) of common stock, par value $0.01 per share, of
the Company (the “Common Stock”).
In
order to induce you to enter into
the Underwriting Agreement, the undersigned agrees that, for a period (the
“Lock-Up Period”) beginning on the date hereof and ending on, and
including, the date that is 90 days after the date of the final prospectus
relating to the Offering, the undersigned will not, without the prior written
consent of ___________________, (i) sell, offer to sell, contract or agree
to
sell, hypothecate, pledge, grant any option to purchase or otherwise dispose
of
or agree to dispose of, directly or indirectly, or file (or participate in
the
filing of) a registration statement with the Securities and Exchange Commission
(the “Commission”) in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder (the
“Exchange Act”) with respect to, any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants
or
other rights to purchase Common Stock or any such securities, (ii) enter
into
any swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants
or
other rights to purchase Common Stock or any such securities, whether any
such
transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise or (iii) publicly announce an intention
to
effect any transaction specified in clause (i) or (ii). The foregoing sentence
shall not apply to (a) the registration of or sale to the Underwriter (as
defined in the Underwriting Agreement) of any Common Stock pursuant to the
Offering and the Underwriting Agreement, (b) bona fide gifts, provided the
recipient thereof agrees in writing with the Underwriter to be bound by the
terms of this Lock-Up Agreement or (c) dispositions to any trust for the
direct
or indirect benefit of the undersigned and/or the immediate family of the
undersigned, provided that such trust agrees in writing with the Underwriter
to
be bound by the terms of this Lock-Up Agreement. For purposes of this
paragraph, “immediate family” shall mean the undersigned and the spouse, any
lineal descendent, father, mother, brother or sister of the
undersigned.
____________
1 In
the case
of the Selling Stockholder, the bracketed language shall be replaced with
“the
undersigned.”
In
addition, the undersigned hereby
waives any rights the undersigned may have to require registration of Common
Stock in connection with the filing of a registration statement relating
to the
Offering. The undersigned further agrees that, for the Lock-Up
Period, the undersigned will not, without the prior written consent of
___________________, make any demand for, or exercise any right with respect
to,
the registration of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other rights
to
purchase Common Stock or any such securities.
Notwithstanding
the above, if (a)
during the period that begins on the date that is fifteen (15) calendar days
plus three (3) business days before the last day of the Lock-Up Period and
ends
on the last day of the Lock-Up Period, the Company issues an earnings release
or
material news or a material event relating to the Company occurs; or (b)
prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on
the
last day of the Lock-Up Period, then the restrictions imposed by this Lock-Up
Agreement shall continue to apply until the expiration of the date that is
fifteen (15) calendar days plus three (3) business days after the date on
which
the issuance of the earnings release or the material news or material event
occurs.
In
addition, the undersigned hereby
waives any and all preemptive rights, participation rights, resale rights,
rights of first refusal and similar rights that the undersigned may have
in
connection with the Offering or with any issuance or sale by the Company
of any
equity or other securities before the Offering, except for any such rights
as
have been heretofore duly exercised.
The
undersigned hereby confirms that
the undersigned has not, directly or indirectly, taken, and hereby covenants
that the undersigned will not, directly or indirectly, take, any action
designed, or which has constituted or will constitute or might reasonably
be
expected to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the Company
to
facilitate the sale or resale of shares of Common Stock.
* * *
If
for any reason the Underwriting
Agreement shall be terminated prior to the “time of purchase” (as defined in the
Underwriting Agreement), this Lock-Up Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder.
Yours
very truly,
EXHIBIT
B
OPINION
OF CRAVATH, SWAINE & XXXXX LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
C
NEGATIVE
ASSURANCE LETTER OF CRAVATH, SWAINE & XXXXX LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
D
TAX
OPINION OF CRAVATH, SWAINE & XXXXX LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
E
OPINION
OF XXXXXXX & XXXXXX, PC
XXXXXXXX
ISLANDS COUNSEL TO THE COMPANY AND THE SELLING
STOCKHOLDER
EXHIBIT
F
OPINION
OF XXXXX X. XXXXXXX
GENERAL
COUNSEL OF OVERSEAS SHIPHOLDING GROUP, INC.
EXHIBIT
G
OFFICERS’
CERTIFICATE
EXHIBIT
H
CERTIFICATE
OF THE SELLING STOCKHOLDER
