STEALTHGAS INC.
[7,700,000] SHARES(1)
COMMON STOCK
Underwriting Agreement
September [o], 2005
Cantor Xxxxxxxxxx & Co.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx & Company, Inc.
0000 Xxxx Xxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxxxx Xxxx & Company L.L.C.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Hibernia Southcoast Capital, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Harrisdirect, LLC
10002 Harborside
000 Xxxxxxxxx Xxxxxx, Xxxxx XX
Xxxxxx Xxxx, XX 00000
As representatives of the several Underwriters listed in Schedule I hereto
c/o Cantor Xxxxxxxxxx & Co.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
-----------------------
(1) Plus an option to purchase from the Company up to an aggregate of [o]
Option Shares to cover over-allotments.
StealthGas Inc., a Xxxxxxxx Islands company (the "COMPANY"), proposes to
issue and sell to the several Underwriters listed in Schedule I hereto (the
"UNDERWRITERS") an aggregate of [7,700,000] shares of common stock, par value
$.01 per share (the "COMMON STOCK"), of the Company (the "UNDERWRITTEN SHARES")
and, for the sole purpose of covering over-allotments in connection with the
sale of the Underwritten Shares, at the option of the Underwriters, the Company
has also agreed to sell up to an aggregate of [1,155,000] shares of Common Stock
of the Company (the "OPTION SHARES"). The Underwritten Shares and the Option
Shares are herein referred to as the "SHARES". The Shares of Common Stock of the
Company to be outstanding after giving effect to the sale of the Shares are
herein referred to as the "STOCK".
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement (Registration No. 333-[o]), including a prospectus, relating to the
Shares. The registration statement, as amended at the time when it shall become
effective including information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act, is referred to in this Agreement as the "REGISTRATION
STATEMENT," and the prospectus in the form first used to confirm sales of the
Shares is referred to in this Agreement as the "PROSPECTUS." If the Company has
filed an abbreviated registration statement to register additional Shares
pursuant to Rule 462(b) under the Securities Act, then any reference herein to
the term "Registration Statement" shall be deemed to include such Rule 462
registration statement.
Section 1. Purchase of the Shares. The Company hereby agrees with the
Underwriters as follows:
(a) The Company agrees to issue and sell the Underwritten Shares
to the several Underwriters as hereinafter provided, and each Underwriter, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase from the Company the
respective number of Underwritten Shares set forth opposite such Underwriter's
name in Schedule I hereto at a purchase price per share (the "PURCHASE PRICE")
of $[o].
In addition, the Company agrees to issue and sell the Option Shares to the
several Underwriters as hereinafter provided, and the Underwriters on the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, shall have the option to purchase from the
Company up to the respective number of Option Shares set forth opposite their
names on Schedule I, aggregating [o], at the Purchase Price, for the sole
purpose of covering over-allotments (if any) in the sale of Underwritten Shares
by the several Underwriters.
If any Option Shares are to be purchased, the number of Option Shares to be
purchased by each Underwriter shall be the number of Option Shares which bears
the same ratio to the aggregate number of Option Shares being purchased as the
number of Underwritten Shares set forth opposite the name of such Underwriter in
Schedule I hereto
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(or such number increased as set forth in Section 7 hereof) bears to the
aggregate number of Underwritten Shares being purchased from the Company by the
several Underwriters, subject, however, to such adjustments to eliminate any
fractional Shares as the Underwriters in their sole discretion shall make.
The Underwriters may exercise the option to purchase the Option Shares at
any time and from time to time on or before the thirtieth day following the date
of this Agreement, by written notice from the Underwriters to the Company. Such
notice shall set forth the aggregate number of Option Shares as to which the
option is being exercised and the date and time when the Option Shares are to be
delivered and paid for, which may be the same date and time as the Closing Date
(as hereinafter defined) but shall not be earlier than the Closing Date nor
later than the tenth full Business Day (as hereinafter defined) after the date
of such notice (unless such time and date are postponed in accordance with the
provisions of Section 7 hereof). Any such notice shall be given at least two
Business Days prior to the date and time of delivery specified therein.
(b) The Company understands that the Underwriters intend (i) to
make a public offering of the Shares as soon after (A) the Registration
Statement has become effective and (B) the parties hereto have executed and
delivered this Agreement, as in the judgment of the Underwriters is advisable
and (ii) initially to offer the Shares upon the terms set forth in the
Prospectus.
(c) Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Underwriters, in the case of the Underwritten Shares, on September [o], 2005, or
at such other time on the same or such other date, not later than the fifth
Business Day thereafter, as the Underwriters and the Company may agree upon in
writing or, in the case of the Option Shares, on the date and time specified by
the Underwriters in the written notice of the Underwriters' election to purchase
such Option Shares. The time and date of such payment for the Underwritten
Shares is referred to herein as the "CLOSING Date" and the time and date for
such payment for the Option Shares, if other than the Closing Date, is herein
referred to as the "ADDITIONAL CLOSING DATE." As used herein, the term "BUSINESS
DAY" means any day other than a day on which banks are permitted or required to
be closed in New York City.
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Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Underwriters for the respective accounts of the several Underwriters of the
Shares to be purchased on such date registered in such names and in such
denominations as the Underwriters shall request in writing not later than two
full Business Days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the transfer
to the Underwriters of the Shares duly paid by the Company. The certificates for
the Shares will be made available for inspection by the Underwriters at the
office of Cantor Xxxxxxxxxx & Co. set forth above not later than 1:00 P.M., New
York City time, on the Business Day prior to the Closing Date or the Additional
Closing Date, as the case may be.
Section 2. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary prospectus
filed as part of the Registration Statement, as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act, and did
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,
in the light of the circumstances under which they were made, not misleading;
provided that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter
expressly for use therein;
(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) comply, or will comply at the time of the applicable effective date in
the case of the Registration Statement or the filing date in the case of the
Prospectus, as the case may be, in all material respects with the Securities
Act; and the Registration Statement does not and will not, as of the applicable
effective date of the Registration Statement and any amendment thereto, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented, if applicable, at
the Closing Date or Additional Closing Date, as the case may be, will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the foregoing
representations and warranties shall not apply to statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing
by such Underwriter expressly for use therein;
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(c) the financial statements, and the related notes and
supporting schedules, included in the Registration Statement and the Prospectus
present fairly, on a consolidated basis, the financial position of the Company
and its consolidated Subsidiaries (as hereinafter defined) as of the dates
indicated and the results of their operations, cash flows and changes in
stockholders' equity for the periods specified; and those financial statements
have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included in the Registration Statement present fairly the information
required to be stated therein; and (ii) there are no material off-balance sheet
arrangements (as defined in Regulation S-K Item 303(a)(4)(ii)) that may have a
material current or future effect on the Company's financial condition, results
of operations, liquidity, capital expenditures or capital resources;
(d) since the respective dates as of which information is given
in the Registration Statement and the Prospectus (exclusive of any amendment or
supplement thereto), there has not been any change in the capital stock or
long-term debt of the Company or any of its Subsidiaries, or any material
change, or any development involving a prospective material change, in or
affecting the general affairs, business, prospects, management, consolidated
financial position, stockholders' equity or results of operations of the Company
and its Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus (exclusive of any amendment or supplement
thereto); and except as set forth or contemplated in the Prospectus (exclusive
of any amendment or supplement thereto), neither the Company nor any of its
Subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) material to the Company and its Subsidiaries
taken as a whole;
(e) the Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the Republic of the Xxxxxxxx
Islands, with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than those jurisdictions where the failure to be so
qualified or in good standing would not have a material adverse effect on the
Company and its Subsidiaries taken as a whole;
(f) each of the Company's Subsidiaries has been duly organized
and is validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification, other
than where the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its Subsidiaries taken as a whole;
and all the outstanding shares of capital stock of each Subsidiary of the
Company have been duly authorized and validly issued, are fully-paid and
non-
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assessable, and are owned by the Company, directly or indirectly, free and clear
of all liens, encumbrances, security interests and claims;
(g) all of the vessels described in the Prospectus as being owned
by the Company or any of its Subsidiaries are owned directly by Subsidiaries of
the Company; other than its Subsidiaries, the Company does not hold any equity
interest in any other Person;
(h) this Agreement has been duly authorized, executed and
delivered by the Company;
(i) (i) each of (x) the management agreement dated [?], 2005
between the Company and Stealth Maritime Corporation S.A. (the "MANAGEMENT
AGREEMENT") and (y) the agreements set forth in Schedule II of this Agreement
(the "MOAS") to purchase the Identified Vessels (as defined in the Prospectus)
has been duly authorized, executed and delivered by the respective parties
thereto, and is a valid and binding agreement of each such party enforceable
against each such party in accordance with its terms; and (ii) each of the
Management Agreement and the MOAs conforms in all material respects to the
description thereof in the Prospectus;
(j) the Company has an authorized capitalization as set forth in
the Prospectus and its authorized capital stock conforms as to legal matters to
the description thereof set forth in the Prospectus, and all of the outstanding
shares of capital stock of the Company have been duly authorized and validly
issued, are fully-paid and non-assessable and are not subject to any pre-emptive
or similar rights; and, except as described in or expressly contemplated by the
Prospectus, there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity interests
in the Company or in any of its Subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the issuance of
any capital stock of the Company or any such Subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options and there are no
restrictions on subsequent transfers of the Shares under the laws of the
Republic of the Xxxxxxxx Islands or of Greece;
(k) the Shares to be issued and sold by the Company hereunder
have been duly authorized and, when issued and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be duly and
validly issued and will be fully paid and non-assessable with no personal
liability attaching to the ownership thereof and will conform to the
descriptions thereof in the Prospectus; and the issuance of the Shares is not
subject to any preemptive or other comparable rights;
(l) all material consents, approvals, authorizations, orders,
licenses, registrations, clearances and qualifications of or with any court or
governmental agency or body or any stock exchange authorities or self-regulatory
organizations having
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jurisdiction over the Company or any of its Subsidiaries or any of its or their
properties required for the execution and delivery by the Company of this
Agreement to be duly and validly authorized and for the issuance and sale of the
Shares have been obtained or made and are in full force and effect;
(m) all dividends and other distributions declared and payable on
the shares of capital stock of the Company may under the current laws and
regulations of the Republic of the Xxxxxxxx Islands and Greece be paid in United
States dollars and may be freely transferred out of the Xxxxxxxx Islands or
Greece, and all such dividends and other distributions are not subject to
withholding or other taxes under the current laws and regulations of the
Republic of the Xxxxxxxx Islands or Greece and are otherwise free and clear of
any other tax, withholding or deduction in, and 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 Republic
of the Xxxxxxxx Islands or Greece;
(n) (i) neither the Company nor any of its Subsidiaries (x) is in
violation of its respective Articles of Incorporation or By-laws (or similar
organizational or charter documents) or (y) is, or with the giving of notice or
lapse of time or both would be, in violation of or in default under any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which it or any of them or any of their respective properties is bound, except
for violations and defaults of the kind referred to in clause (y) which
individually or in the aggregate are not material to the Company and its
Subsidiaries taken as a whole; (ii) the issue and sale of the Shares and the
performance by the Company of its other obligations under this Agreement and the
consummation of the transactions contemplated herein will not conflict with its
Articles of Incorporation or By-laws (or similar organizational or charter
documents) or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound or to which any of the property or assets of the Company or any of its
Subsidiaries is subject, nor will any such action result in any violation of the
provisions of the Articles of Incorporation or the By-laws (or similar
organizational or charter documents) of the Company or any of its Subsidiaries
or any applicable law or statute or any order, rule or regulation of any court
or governmental agency or body or self-regulatory organization having
jurisdiction over the Company, any of its Subsidiaries or any of their
respective properties; and (iii) no consent, approval, authorization, order,
license, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this Agreement,
except such consents, approvals, authorizations, orders, licenses, registrations
or qualifications (x) as have been obtained under the Securities Act, the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "EXCHANGE ACT") and as may be
required under state securities or Blue Sky Laws in connection with the purchase
and distribution of the Shares by the Underwriters or such as may be required by
the National Association of Securities Dealers, Inc. (the "NASD"), or (y) which
individually or in the aggregate are
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not material to the Company and its Subsidiaries taken as a whole or to the
issue and sale of the Shares and the performance by the Company of its other
obligations under this Agreement and the consummation of the transactions
contemplated herein;
(o) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or affecting the
Company or any of its Subsidiaries or any of their respective properties or to
which the Company or any of its Subsidiaries is or may be a party or to which
any property of the Company or any of its Subsidiaries is or may be the subject
which, if determined adversely to the Company or any of its Subsidiaries, would
individually or in the aggregate have, or could reasonably be expected to have,
a material adverse effect on the general affairs, business, prospects,
management, consolidated financial position, stockholders' equity or results of
operations of the Company and its Subsidiaries taken as a whole, and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and there are
no statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as required;
(p) the Company and its Subsidiaries have good title to all items
of personal property owned by each of them, in each case free and clear of all
liens, encumbrances and defects except such as are described or referred to in
the Prospectus or such as do not materially interfere with the use made or
proposed to be made of such property by the Company and its Subsidiaries (as
described in the Registration Statement and Prospectus); the Company leases all
such properties as are necessary to the conduct of its operations as currently
conducted;
(q) no relationship, direct or indirect, exists between or among
the Company or any or its Subsidiaries on the one hand, and the directors,
officers, shareholders, customers or suppliers of the Company or any of its
Subsidiaries on the other hand, which is required by the Securities Act to be
described in the Prospectus which is not so described. Since the date of its
incorporation, the Company has not, directly or indirectly, including through
any Subsidiary, extended or maintained credit, or arranged for the extension of
credit, or renewed or amended any extension of credit, in the form of a personal
loan to or for any of its directors or executive officers;
(r) except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act. The holders of
outstanding shares of the Common Stock are not entitled to preemptive rights,
co-sale rights, rights of first refusal or other rights to subscribe for or
purchase any shares of the Common Stock, and there are no contracts, agreements
or
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understandings between the Company and any person granting such person such
preemptive rights, co-sale rights, rights of first refusal or other rights to
subscribe for or purchase the Shares.
(s) the Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT");
(t) the Company does not believe it is a Passive Foreign
Investment Company ("PFIC") within the meaning of Section 1296 of the United
States Internal Revenue Code of 1986, as amended, and does not believe it is
likely to become a PFIC;
(u) Deloitte & Touche Tohmatsu ("DELOITTE & TOUCHE"), who have
certified certain financial statements of the Company and its Subsidiaries, are
independent public accountants as required by the Securities Act and as
preapproved in accordance with the requirements set forth in Section 10A of the
Exchange Act, Deloitte & Touche have not engaged in any "Prohibited Activities"
(as defined in Section 10A of the Exchange Act) on behalf of the Company;
(v) the Company and its Subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be filed and
have paid all taxes shown thereon and all assessments received by them or any of
them to the extent that such taxes have become due and are not being contested
in good faith; and, except as disclosed in the Registration Statement and the
Prospectus, there is no tax deficiency which has been or might reasonably be
expected to be asserted or threatened against the Company or any Subsidiary;
(w) the Company has not taken, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Common Stock;
(x) neither the Company nor any of its Subsidiaries has
sustained, since the date of the latest audited financial statements included in
the Prospectus, any material loss or interference with its 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, otherwise
than as set forth or contemplated in the Prospectus.
(y) each of the Company and its Subsidiaries owns, possesses or
has obtained, all licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business as conducted as of
the date hereof, other than such licenses, permits, certificates,
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consents, orders, approvals, other authorizations, declarations and filings
which individually or in the aggregate are not material to the Company and its
Subsidiaries taken as a whole, and neither the Company nor any such Subsidiary
has received any actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order, approval
or other authorization, except as described in the Registration Statement and
the Prospectus; and each of the Company and its Subsidiaries is in compliance
with all laws and regulations relating to the conduct of its business as
conducted as of the date hereof other than any failure to so comply that would
not have a material adverse effect on the financial condition and operations or
the business of the Company and its Subsidiaries taken as a whole;
(z) there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the Company or any of
its Subsidiaries which are likely to have a material adverse effect on the
financial condition and operations or the business of the Company and its
Subsidiaries taken as a whole;
(aa) each of the Company and its Subsidiaries (i) is in
compliance with any and all applicable foreign, federal, provincial, state and
local laws and regulations, including any applicable regulations and standards
adopted by the International Maritime Organization, relating to the protection
of human health and safety, the environment or hazardous or toxic substances or
wastes, petroleum pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) has
received all permits, licenses, other approvals, authorizations and certificates
of financial responsibility required of it under applicable Environmental Laws
to conduct its business and (iii) is in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not have a material adverse effect on the Company
and its Subsidiaries taken as a whole;
(bb) each of the Company and its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are customary and in accordance with standard industry
practice in the businesses in which they are engaged; neither the Company nor
any such Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business, except as described in or contemplated by the Prospectus;
(cc) the Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), which (i) are designed to ensure that material information
relating to the Company, including its consolidated Subsidiaries, is made known
to the Company's principal executive officer and its principal financial officer
by others within those entities, particularly during the preparation of the
Registration Statement; (ii) have been evaluated for effectiveness as of the
date of the filing of the Registration Statement with the
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Commission; and (iii) are effective in all material respects to perform the
functions for which they were established;
(dd) based on the evaluation of its internal controls over
financial reporting, the Company is not aware of (i) any significant deficiency
or material weakness in the design or operation of internal controls over
financial reporting which are reasonably likely to adversely affect the
Company's ability to record, process, summarize and report financial
information; or (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company's
internal controls over financial reporting;
(ee) no stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or on behalf
of the Underwriters to Greece, Malta or the Xxxxxxxx Islands or any political
subdivision or taxing authority thereof or therein in connection with the sale
and delivery by the Company of the Shares to or for the respective accounts of
the Underwriters or the sale and delivery by the Underwriters of the Shares to
the initial purchasers thereof; and
(ff) neither the Company nor any of its Subsidiaries has
outstanding, or guarantees, any securities accorded a rating by any "nationally
recognized statistical rating organization", as such term is defined in Rule
436(g)(2) under the Securities Act.
(gg) the Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(hh) neither the Company nor any of its Subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds,
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
As used herein, the term "SUBSIDIARY" means a corporation, company or other
entity (i) more than 50% of whose outstanding securities (representing the right
to vote for the election of directors or other managing authority) are, or (ii)
which does not have outstanding shares or securities (as may be the case in a
partnership, joint venture or unincorporated association), but more than 50% of
whose ownership interest representing the right to make decisions for such other
entity is owned or controlled, directly or
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indirectly, by the Company. The only Subsidiaries of the Company are those
listed on Exhibit 21 to the Registration Statement.
Section 3. Agreements of the Company. The Company covenants and agrees
with each of the several Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement
to become effective at the earliest possible time and, if required, to file the
final Prospectus with the Commission within the time periods specified by Rule
424(b) and Rule 430A under the Securities Act and, in any event, to furnish
copies of the Prospectus to the Underwriters in New York City prior to 10:00
a.m., New York City time, on the Business Day next succeeding the date of this
Agreement in such quantities as the Underwriters may reasonably request;
(b) to deliver, at the expense of the Company, to Cantor
Xxxxxxxxxx & Co. a signed copy of the final amendment to the Registration
Statement in the form as declared effective by the Commission, including
exhibits and to each other Underwriter a conformed copy of the Registration
Statement (as originally filed) and each amendment thereto, in each case without
exhibits and, during the period mentioned in Section 3(e) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments and
supplements thereto) as the Underwriters may reasonably request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the Registration
Statement becomes effective, to furnish to the Underwriters a copy of the
proposed amendment or supplement for review and not to file any such proposed
amendment or supplement to which the Underwriters reasonably object;
(d) to advise the Underwriters promptly when the Registration
Statement has become effective, when any amendment to the Registration Statement
has been filed or becomes effective, when any supplement to the Prospectus or
any amended Prospectus has been filed and, at the expense of the Company, to
furnish the Underwriters with copies thereof, of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus or the initiation or threatening of any proceeding
for that purpose, of the occurrence of any event, within the period referenced
in Section 3(e) below, as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, and of the receipt by the Company of any notification with
respect to any suspension of the qualification of the Shares for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such stop
order, or of any order preventing or suspending the use of any
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preliminary prospectus or the Prospectus, or of any order suspending any such
qualification of the Shares, or notification of any such order thereof and, if
issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the Underwriters
a prospectus relating to the Shares is required by law to be delivered in
connection with sales by the Underwriters or any dealer, any event shall occur
as a result of which it is necessary to amend or supplement the Prospectus in
order to ensure that the Prospectus as then amended or supplemented does 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 when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses the Underwriters will
furnish to the Company) to which Shares may have been sold by the Underwriters
on behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that the
Prospectus as so amended or supplemented 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 when the Prospectus is
delivered to a purchaser, not misleading or so that the Prospectus will comply
with law;
(f) to endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Underwriters shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Shares; provided that the Company
shall not be required to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders and to
the Underwriters as soon as practicable an earnings statement covering a period
of at least twelve months beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration Statement, which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder;
(h) during a period of three years from the effective date of the
Registration Statement, to furnish to the Underwriters copies of all reports or
other communications (financial or other) furnished to holders of the Shares,
and copies of any reports and financial statements furnished to or filed with
the Commission or any national securities exchange or the Nasdaq Stock Market
("Nasdaq"); it being understood and agreed that posting such reports on the
Commission's XXXXX website and/or on the Company's website shall be sufficient;
(i) (i) for a period of 180 days after the effective date of the
Registration Statement (the "LOCK-UP PERIOD") not to (x) offer, pledge, announce
the intention to sell, sell, contract to sell any option or contract to purchase
any option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of, directly or indirectly, any shares of Stock
or any securities convertible into or
-13-
exercisable or exchangeable for Stock or (y) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the Stock, whether any such transaction described in clause (x)
or (y) above is to be settled by delivery of Stock or such other securities, in
cash or otherwise without the prior written consent of the Underwriters, other
than the Shares to be sold hereunder and any shares of Stock of the Company
issued upon the exercise of options granted and grants of additional options
under existing employee stock option plans; provided, however, if (1) the
Company issues an earnings release or material news, or a material event
relating to the Company occurs, during the last 17 days of the Lock-Up Period,
or (2) prior to the expiration of the Lock-Up Period, the Company announces that
it will release earnings results during the 16-day period beginning on the last
day of the Lock-Up Period, the restrictions imposed by this paragraph shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event, unless Cantor Xxxxxxxxxx & Co. waives, in writing, such
extension; and (ii) to provide written notice to the Underwriters of any event
that would result in an extension of the Lock-Up Period pursuant to the
foregoing.
(j) to use the net proceeds received by the Company from the sale
of the Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(k) to use its best efforts to list, subject to notice of
issuance, the Shares on the Nasdaq;
(l) not to (and to cause its Subsidiaries not to) take, directly
or indirectly, any action designed to, or that might reasonably be expected to,
cause or result in stabilization or manipulation of the Shares;
(m) to file timely with the Commission such reports on Form 20-F
and Form 6-K as may be required by Rule 463 under the Securities Act; and
(n) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all costs
and expenses incident to the preparation, issuance, execution and delivery of
the Shares, incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), incurred in connection with the registration or qualification of the
Shares under the laws of such jurisdictions as the Underwriters may designate
(including fees of counsel for the Underwriters and its disbursements), in
connection with the listing of the Shares on the Nasdaq, related to the filing
with, and clearance of the offering by, the NASD (including fees of counsel for
the Underwriters and its disbursements), in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Preliminary and Supplemental Blue Sky Memoranda and the
furnishing to the Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, any expenses
-14-
incurred by the Company in connection with a "road show" presentation to
potential investors, the cost of preparing stock certificates and the cost and
charges of any transfer agent and any registrar.
Section 4. Conditions of the Underwriters' Obligations. The several
obligations of the Underwriters hereunder to purchase the Shares on the Closing
Date or the Additional Closing Date, as the case may be, are subject to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) the Registration Statement shall have become effective (or if
a post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective) not later than 5:00
P.M., New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 3(a) hereof; and all requests for additional information
shall have been complied with to the satisfaction of the Underwriters.
(b) the representations and warranties of the Company contained
herein shall be true and correct on and as of the Closing Date or the Additional
Closing Date, as the case may be, as if made on and as of the Closing Date or
the Additional Closing Date, as the case may be, and the Company shall have
complied with all agreements and all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date or the Additional Closing
Date, as the case may be.
(c) since the respective dates as of which information is given
in the Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its Subsidiaries or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, business, prospects, management, consolidated
financial position, results of operations, cash flows or stockholders' equity of
the Company and its Subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus (exclusive of any amendment or supplement
thereto), the effect of which in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares on the Closing Date or the Additional Closing Date, as the case
may be, on the terms and in the manner contemplated in the Prospectus; and
neither the Company nor any of its Subsidiaries shall have sustained since the
date of the latest audited financial statements included in the Prospectus any
material loss or interference with its 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, otherwise than as set forth or
contemplated in the Prospectus (exclusive of any amendment or supplement
thereto).
-15-
(d) the Underwriters shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, a certificate signed by
the Chief Executive Officer or Chief Financial Officer of the Company, to the
effect set forth in paragraphs (a), (b) and (c) of this Section 4, and (with
respect to the respective representations, warranties, agreements and conditions
of the Company) to the further effect that there has not occurred any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects, management,
consolidated financial position, stockholders' equity or results of operations
of the Company and its Subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement.
(e) Xxxxxx, Xxxxx & Bockius LLP, United States counsel for the
Company, shall have furnished to the Underwriters their written opinion, dated
the Closing Date or the Additional Closing Date, as the case may be, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) other than as set forth or contemplated in the
Prospectus and insofar as matters of United States federal and New York state
law are concerned, to the best of such counsel's knowledge, there are no legal
or governmental investigations, actions, suits or proceedings pending or
threatened against or affecting the Company or any of its Subsidiaries or any of
their respective properties or to which the Company or any of its Subsidiaries
is or may be a party or to which any property of the Company or its Subsidiaries
is or may be the subject which, if determined adversely to the Company or any of
its Subsidiaries, would individually or in the aggregate have, or could
reasonably be expected to have, a material adverse effect on the financial
position or results of operations of the Company and its Subsidiaries taken as a
whole; and such counsel does not know of any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement that are
not described or filed as required;
(ii) to the extent governed by the laws of the State of New
York, this Agreement has been duly executed and delivered by the Company;
(iii) under the laws of the State of New York relating to
personal jurisdiction, the Company has, pursuant to Section 11 of this
Agreement, validly and irrevocably submitted to the personal jurisdiction of any
state or federal court located in the Borough of Manhattan, The City of New
York, New York (each a "NEW YORK COURT") in any action arising out of or
relating to this Agreement or the transactions contemplated hereby, has validly
and irrevocably waived any objection to the venue of a proceeding in any such
court, and has validly and irrevocably appointed the Authorized Agent (as
defined herein) as its authorized agent for the purpose described in Section 11
hereof; and service of process effected on such agent in the manner set forth in
Section 11 hereof will be effective to confer valid personal jurisdiction over
the Company;
(iv) the statements in the Prospectus under "Enforceability
of Civil Liabilities," "Management," "Description of Indebtedness" and "Related
Party Transactions" and in the Registration Statement in Item 7, insofar as such
-16-
statements constitute a summary of the terms of legal matters, documents or
proceedings referred to therein, and the statements in the Prospectus under "Tax
Considerations -United States Federal Income Tax Considerations" insofar as such
statements describe United States federal income tax law, fairly summarize the
information called for with respect to such terms, legal matters, documents,
proceedings or descriptions;
(v) the issue and sale of the Shares being delivered on the
Closing Date or the Additional Closing Date, as the case may be, and the
performance by the Company of its obligations under this Agreement and the
consummation of the transactions contemplated herein will not result in a
material breach of any of the terms or provisions of, or constitute a default
under, any agreement or instrument, known to such counsel, to which the Company
or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of the Company
or any of its Subsidiaries is subject;
(vi) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental agency or
body is required for the issue and sale of the Shares or the consummation of the
other transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications (A)
as have been obtained under the Securities Act and the Exchange Act and as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters or such as may be
required by the NASD, and (B) as may be required in connection with the
acquisition of any vessel as contemplated in the Prospectus; and
(vii) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act.
In rendering such opinions, such counsel may (A) limit its opinions to
matters involving the application of laws of the United States and the State of
New York and (B) rely as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and certificates
or other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the Company.
The opinion of such counsel for the Company shall state that the opinion of any
such other counsel upon which they relied is in form satisfactory to such
counsel and, in such counsel's opinion, the Underwriters and they are justified
in relying thereon.
The opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP described above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
Such counsel shall also state that, although they do not assume any
responsibility for, and shall not be deemed to have independently ascertained or
verified, the accuracy, completeness or fairness of the statements made in the
Registration
-17-
Statement or the Prospectus, except to the extent required by subsection (iv) of
this Section 4(e), nothing has come to their attention in the course of
participating with officers and Underwriters of the Company in the preparation
of the Registration Statement that have led them to believe that, insofar as
relevant to the offering of the Shares, (other than the financial statements and
related schedules and other financial and other statistical data contained
therein, as to which such counsel need make no statement) the Registration
Statement, as of its effective date, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date and as of the Closing Date, as amended or
supplemented, if applicable, contained or contains any untrue statement of a
material fact or omitted or omits 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.
(f) Xxxxxx, Xxxxxx & Xxxxxxxx (New York) LLP, Xxxxxxxx Islands
counsel for the Company, shall have furnished to the Underwriters their written
opinion, dated the Closing Date or the Additional Closing Date, as the case may
be, in form and substance satisfactory to the Underwriters, substantially to the
effect set forth in Annex A hereto.
In rendering opinions, such counsel may (A) limit its opinion to matters
involving the application of the Xxxxxxxx Islands laws and (B) rely as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and certificates or other written statements
of officials of jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company. The opinion of such counsel
for the Company shall state that the opinion of any such other counsel upon
which they relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriters and they are justified in relying thereon.
The opinion of Xxxxxx, Xxxxxx & Xxxxxxxx (New York) LLP described herein
shall be rendered to the Underwriters at the request of the Company and shall so
state therein.
(g) The Potamitis Vekris Paparrigopoulos Law Partnership, Greek
counsel for the Company, shall have furnished to the Underwriters their written
opinion, dated the Closing Date or the Additional Closing Date, as the case may
be, in form and substance satisfactory to the Underwriters, to the effect that:
(i) no consent or other form of authorization is required
from any court or governmental agency or body or any stock exchange authority in
Greece in connection with the valid execution and delivery by the Company of
this Agreement or the sale of the Shares by the Company or the consummation by
the Company of the transactions contemplated by this Agreement;
(ii) all dividends and other distributions declared and
payable on the shares of capital stock of the Company may under the current laws
and regulations of Greece be paid in United States dollars and may be freely
transferred out
-18-
of Greece, and all such dividends and other distributions will not be subject to
withholding or other taxes under the laws and regulations of Greece and are
otherwise free and clear of any other tax, withholding or deduction in and
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
Greece;
(iii) to the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened in Greece to which the
Company or any of its Subsidiaries is a party or to which any property of the
Company or any of its Subsidiaries is the subject;
(iv) to the best of such counsel's knowledge, the compliance
by the Company with all of the provisions of this Agreement and the consummation
of the transactions contemplated herein will not conflict in any material
respect with any Greek law;
(v) the Company and its Subsidiaries are not required to
file tax returns or pay any taxes in Greece, except in relation to the
registration of the vessels listed in a schedule to such opinion with the Greek
Ships Register;
(vi) to the best of such counsel's knowledge, each of the
Company and its Subsidiaries has obtained any licenses and other forms of
authorization from, and has made all declarations and filings with, any
governmental authorities, self-regulatory organizations and any courts and other
tribunals, in Greece, necessary to own or lease, as the case may be, and to
operate the vessel owned by each of its Subsidiaries and to carry on its
business as conducted as of the date of the Prospectus (other than such licenses
or other forms of authorization the failure to obtain would not in the aggregate
have a material adverse effect on the Company and its Subsidiaries taken as a
whole), and neither the Company nor any such Subsidiary has received any actual
notice of any proceeding relating to revocation or modification of any such
license or other form of authorization; and each of the Company and its
Subsidiaries is in compliance in all material respects with all laws and
regulations in Greece relating to the ownership or lease, as the case may be,
and the operation of the vessel owned by each of the Subsidiaries and the
conduct of its business as conducted as of the date of the Prospectus; and
(vii) there are no taxes or duties payable in Greece by or
on behalf of the Underwriters in connection with the sale and delivery by the
Company of the Shares to or for the respective accounts of the Underwriters or
the sale and delivery by the Underwriters of the Shares to the initial
purchasers thereof.
In rendering such opinions, counsel may (A) limit their opinions as to
matters involving the application of Greek laws and (B) rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The
-19-
opinion of such counsel for the Company shall state that the opinion of any such
other counsel upon which they relied is in form satisfactory to such counsel
and, in such counsel's opinion, the Underwriters and they are justified in
relying thereon.
The opinion of Potamitis Vekris Paparrigopoulos Law Partnership described
above shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(h) Messrs GM International, Maltese counsel for the Company,
shall have furnished to the Underwriters their written opinion, dated the
Closing Date or the Additional Closing Date, as the case may be, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) each of the [insert Maltese Subsidiaries] has been duly
organized, has duly issued its shares of capital stock and is validly
existing as a corporation under the laws of Malta, with corporate power
and authority to own its properties and conduct its business as
described in the Prospectus; and all of the outstanding shares of
capital stock of [insert Maltese Subsidiaries] have been duly and
validly authorized and issued, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
the 20% payment on the shares is in accordance with the laws of Malta
and does not affect the ownership of the shares of each of the [insert
Maltese Subsidiaries];
(ii) each of the vessels listed on a schedule to such opinion is
duly and validly registered as a vessel in the sole ownership of the
entity indicated as the "Owning Entity" of such vessel on such schedule
under the laws of Malta; each of said entities has good and marketable
title thereto, free and clear of all liens, claims, debts or
encumbrances and defects of title of record, except as indicated on
such schedule or as described in the Prospectus; and each such vessel
is in good standing with respect to the payment of past and current
taxes, fees and other amounts payable under the laws of Malta as would
affect its registry with the Malta Maritime Authority.
In rendering such opinions, such counsel may (A) limit its opinion to
matters involving the application of Maltese laws and (B) rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinion of such counsel for the
Company shall state that the opinion of any such other counsel upon which they
relied is in form satisfactory to such counsel and, in such counsel's opinion,
the Underwriters and they are justified in relying thereon.
The opinion of Messrs GM International described above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
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(i) on the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment to the
Registration Statement and also on the Closing Date or Additional Closing Date,
as the case may be, Deloitte & Touche shall have furnished to you letters, dated
the respective dates of delivery thereof, in form and substance satisfactory to
you and your counsel, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(j) the Underwriters shall have received on and as of the Closing
Date or Additional Closing Date, as the case may be, an opinion of Milbank,
Tweed, Xxxxxx & XxXxxx LLP, counsel to the Underwriters, with respect to the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters.
(k) the Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for quotation on the
Nasdaq, subject to official notice of issuance.
(l) The "lock-up" agreements, substantially in the form of
Exhibit A hereto, between you and certain shareholders, officers and directors
of the Company relating to sales and certain other dispositions of shares of
Stock or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date or Additional
Closing Date, as the case may be.
(m) on or prior to the Closing Date or Additional Closing Date,
as the case may be, the Company shall have furnished to the Underwriters such
further certificates and documents as the Underwriters shall reasonably request.
(n) Xxxxxx Xxxxxx & Asvat, Panamanian counsel for the Company,
shall have furnished to the Underwriters their written opinion, dated the
Closing Date or the Additional Closing Date, as the case may be, in form and
substance satisfactory to the Underwriters, to the effect that: each of the
vessels listed on a schedule to such opinion is duly and validly registered as a
vessel in the sole ownership of the entity indicated as the "Owning Entity" of
such vessel on such schedule under the laws of Panama; each of said entities has
good and marketable title thereto, free and clear of all liens, claims, debts or
encumbrances and defects of title of record, except as indicated on such
schedule or as described in the Prospectus; and each such vessel is in good
standing with respect to the payment of past and current taxes, fees and other
amounts payable under the laws of Panama as would affect its registry with the
relevant Panamanian governmental or regulatory authorities or self-regulatory
organizations.
In rendering such opinions, such counsel may (A) limit its opinion to
matters involving the application of Panamanian laws and (B) rely as to matters
of fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and certificates or other written statements of
officials of jurisdictions having custody of
-21-
documents respecting the corporate existence or good standing of the Company.
The opinion of such counsel for the Company shall state that the opinion of any
such other counsel upon which they relied is in form satisfactory to such
counsel and, in such counsel's opinion, the Underwriters and they are justified
in relying thereon.
The opinion of Xxxxxx Xxxxxx & Asvat described above shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
(o) [o], Cypriot counsel for the Company, shall have furnished to
the Underwriters their written opinion, dated the Closing Date or the Additional
Closing Date, as the case may be, in form and substance satisfactory to the
Underwriters, to the effect that: each of the vessels listed on a schedule to
such opinion is duly and validly registered as a vessel in the sole ownership of
the entity indicated as the "Owning Entity" of such vessel on such schedule
under the laws of Cyprus; each of said entities has good and marketable title
thereto, free and clear of all liens, claims, debts or encumbrances and defects
of title of record, except as indicated on such schedule or as described in the
Prospectus; and each such vessel is in good standing with respect to the payment
of past and current taxes, fees and other amounts payable under the laws of
Cyprus as would affect its registry with the relevant Cypriot governmental or
regulatory authorities or self-regulatory organizations.
In rendering such opinions, such counsel may (A) limit its opinion to
matters involving the application of Cypriot laws and (B) rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinion of such counsel for the
Company shall state that the opinion of any such other counsel upon which they
relied is in form satisfactory to such counsel and, in such counsel's opinion,
the Underwriters and they are justified in relying thereon.
The opinion of [?] described above shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
Section 5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each affiliate of any Underwriter, their respective directors,
officers, employees and agents, and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted), as incurred, caused by (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus or in any amendment or supplement thereto or any preliminary
prospectus or (ii) the omission or alleged omission to state in any preliminary
prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein
-22-
not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter
expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, officers, employees and
agents and each person who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any loss, claim, damage or liability, as incurred, caused by (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or any preliminary prospectus, or (ii) the omission or alleged omission
to state in any preliminary prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
(c) If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to any
of the two preceding paragraphs, such person (the "INDEMNIFIED PERSON") shall
promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Shares and such control persons of Underwriters shall be
designated in writing by Cantor Xxxxxxxxxx & Co. and any such separate firm for
the Company, its directors, its officers who sign the Registration Statement,
its employees and agents and such control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement
-23-
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
Indemnifying Person 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 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in the first or second
paragraphs of this Section 5 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand shall be
deemed to be in the same respective proportions as the net proceeds from the
offering (before deducting expenses) received by the Company and the total
underwriting discounts and the commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate public offering price of the Shares. The relative fault of the Company
on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters (in the
case of any Underwriter, such information shall be deemed to be the information
relating to such Underwriter referred to in Section 5(b) hereof) and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Each of the Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section were
determined
-24-
by pro rata allocation (even if the Underwriters were treated as one entity for
such purposes) or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5(e), in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section are several in proportion to the respective
number of Shares set forth opposite their names in Schedule I hereto, and not
joint.
(f) The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any Indemnified Party at law or in equity.
(g) The indemnity and contribution agreements contained in this
Section and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
Section 6. Termination. Notwithstanding anything herein contained, this
Agreement (or the obligations of the several Underwriters with respect to the
Option Shares) may be terminated in the absolute discretion of the Underwriters,
by notice given to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (or, in the case of the Option Shares,
prior to the Additional Closing Date) (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange or the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange, the Chicago Board of Trade, or the Nasdaq National Market,
(ii) trading of any securities of or guaranteed by the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Underwriters, is
material and adverse and which, in the judgment of the Underwriters, makes it
impracticable to market the Shares being delivered at the
-25-
Closing Date or the Additional Closing Date, as the case may be, on the terms
and in the manner contemplated in the Prospectus.
Section 7. Defaulting Underwriters. This Agreement shall become
effective upon the later of (x) execution and delivery hereof by the parties
hereto and (y) release of notification of the effectiveness of the Registration
Statement (or, if applicable, any post-effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares to be purchased on such date by all Underwriters, the
other Underwriters shall be obligated severally in the proportions that the
number of Shares set forth opposite their respective names in Schedule I bears
to the aggregate number of Underwritten Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Underwriters may specify, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 7 by an amount in excess of one-tenth of such number of Shares without
the written consent of such Underwriter. If on the Closing Date or the
Additional Closing Date, as the case may be, any Underwriter or Underwriters
shall fail or refuse to purchase Shares which it or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares to
be purchased on such date, and arrangements satisfactory to the Underwriters and
the Company for the purchase of such Shares are not made within 36 hours after
such default, this Agreement (or the obligations of the several Underwriters to
purchase the Option Shares, as the case may be) shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either Cantor Xxxxxxxxxx & Co. or the Company shall have the right to
postpone the Closing Date (or, in the case of the Option Shares, the Additional
Closing Date), but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
Section 8. Reimbursement of Underwriters' Expenses. If this Agreement
shall be terminated by the Underwriters, or any of them, because of any failure
or refusal on the part of the Company to comply with the terms or to fulfill any
of the conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Company agrees to reimburse
the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and expenses of its counsel)
-26-
reasonably incurred by such Underwriter in connection with this Agreement or the
offering contemplated hereunder.
Section 9. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Company, the Underwriters,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Shares, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Shares from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 10. Notices, etc. Any action by the Underwriters hereunder may
be taken by the Underwriters jointly or by Cantor Xxxxxxxxxx & Co. alone on
behalf of the Underwriters, and any such action taken by the Underwriters
jointly or by Cantor Xxxxxxxxxx & Co. alone shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be given
c/o Cantor Xxxxxxxxxx & Co., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(telefax: 212-829-4972); Attention: Xxxx Xxxxxx. Notices to the Company shall be
given to it at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx #0, 000 00 Xxxxxxxx, Xxxxxx
(telefax: 011-30210-625-0018); Attention: Chief Executive Officer.
Section 11. Submission to Jurisdiction. Each of the parties hereto
irrevocably (i) agrees that any legal suit, action or proceeding arising out of
or based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York Court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
has appointed CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as
its authorized agent (the "AUTHORIZED Agent") upon whom process may be served in
any such action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company. The
foregoing provisions shall remain operative and in full force and effect
regardless of any termination of this Agreement.
-27-
Section 12. Currency. In respect of any judgment or order given or made
for any amount due hereunder that is expressed and paid in a currency (the
"JUDGMENT CURRENCY") other than United States dollars, the Company will
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which an Underwriter is
able to purchase United States dollars with the amount of the judgment currency
actually received by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Company and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term rate of exchange shall include any premiums and costs of exchange payable
in connection with the purchase of or conversion into United States dollars. The
foregoing provisions shall remain operative and in full force and effect
regardless of any termination of this Agreement.
Section 13. Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original and all of which together shall constitute
one and the same instrument.
Section 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
Section 15. No Fiduciary Duty. The Company acknowledges and agrees that
(i) the purchase and sale of the Shares pursuant to this Agreement is an
arm's-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other, (ii) in connection therewith and with
the process leading to such transaction each Underwriter is acting solely as a
principal and not the agent or fiduciary of the Company, (iii) no Underwriter
has assumed an advisory or fiduciary responsibility in favor of the Company with
respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has
consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the Underwriters, or
any of them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
Section 16. Entire Agreement. This Agreement supersedes all prior
agreements and understandings (whether written or oral) between the Company and
the Underwriters, or any of them, with respect to the subject matter hereof.
Section 17. Waiver of Jury Trial. The Company and each of the
Underwriters hereby irrevocably waives, to the fullest extent permitted by
applicable law,
-28-
any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
-29-
If the foregoing is in accordance with your understanding, please sign
and return six counterparts hereof.
Very truly yours,
STEALTHGAS INC.
By:
--------------------------------
Name:
Title:
Accepted:
Cantor Xxxxxxxxxx & Co.
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxxx Rice & Company L.L.C.
Hibernia Southcoast Capital, Inc.
Harrisdirect, LLC
By: Cantor Xxxxxxxxxx & Co.
By:
-----------------------------------
Name:
Title:
SCHEDULE I
<TABLE>
NUMBER OF UNDERWRITTEN SHARES TO
UNDERWRITER BE PURCHASED NUMBER OF
OPTION SHARES
Cantor Xxxxxxxxxx & Co. [o] [o]
Xxxxxx Xxxxxx & Company, Inc. [o] [o]
Xxxxxxx Xxxx & Company L.L.C. [o] [o]
Hibernia Southcoast Capital, Inc. [o] [o]
Harrisdirect, LLC [o] [o]
Total [7,700,000] [1,155,000]
===================== ==================
</TABLE>
SCHEDULE II
Memorandum of Agreement relating to Gas Prodigy
Memorandum of Agreement relating to Gas Oracle
Memorandum of Agreement relating to Sweet Dream
Memorandum of Agreement relating to Gas Crystal
Memorandum of Agreement relating to Gas Chios
Memorandum of Agreement relating to Gas Cathar
Memorandum of Agreement relating to Gas Legacy
Memorandum of Agreement relating to Gas Marathon
Memorandum of Agreement relating to Gas Eternity
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
September [o], 2005
Cantor Xxxxxxxxxx & Co.
Cantor Xxxxxxxxxx & Co.
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxxx Rice & Company L.L.C.
Hibernia Southcoast Capital, Inc.
Harrisdirect, LLC
c/o Cantor Xxxxxxxxxx & Co.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned wishes to facilitate the public offering (the "Offering")
of shares of common stock (the "Common Stock") of StealthGas Inc. (the
"Company") pursuant to a Registration Statement on Form F-1.
In order to induce you to act as underwriters in the Offering, the
undersigned hereby irrevocably agrees that it will not, directly or indirectly,
offer, sell, contract to sell, transfer the economic risk of ownership in, make
any short sale of, pledge or otherwise dispose (a "Disposition") of any shares
of Common Stock, options or warrants to acquire any shares of Common Stock or
any securities convertible into or exchangeable or exercisable for or any other
rights to purchase or acquire any shares of Common Stock (including Common Stock
and options, warrants, securities and rights acquired in, before or after the
Offering, collectively, the "Securities") without the prior written consent of
Cantor Xxxxxxxxxx & Co., acting alone, or of the Underwriters acting jointly,
for a period of 180 days from the effective date of the Registration Statement
(the "Lock-Up Period").
The foregoing paragraph shall not apply to Dispositions by the undersigned
to (i) any shareholder of the Company who has executed a lock-up agreement
substantially in the form of this letter, (ii) any donee who receives such
Securities as a bona fide gift and who has executed a lock-up agreement
substantially in the form of this letter, or (iii) any affiliate of the
undersigned who has executed a lock-up agreement substantially in the form of
this letter.
In addition, and notwithstanding anything to the contrary set forth herein,
if the undersigned is an individual, he or she may transfer any Securities
either during his or her
lifetime or on death by will or intestacy to his or her immediate family or to a
trust, the beneficiaries of which are exclusively the undersigned and/or a
member or members of his or her immediate family; provided, however, that, prior
to any such transfer, each transferee shall execute an agreement, satisfactory
to Cantor Xxxxxxxxxx & Co., pursuant to which each transferee shall agree to
receive and hold such securities subject to the provisions hereof. For the
purposes of this paragraph, "immediate family" shall mean the spouse, lineal
descendant, father, mother, brother or sister of the transferor.
The undersigned hereby waives any rights of the undersigned to sell any
Securities or any other security issued by the Company pursuant to the
Registration Statement and acknowledges and agrees that, during the Lock-Up
Period, the undersigned has no right to require, and will not request, the
Company to register under the Securities Act of 1933, as amended, such
Securities or other securities beneficially owned by the undersigned.
If (i) the Company issues an earnings release or material news, or a
material event relating to the Company occurs, during the last 17 days of the
Lock-Up Period, or (ii) prior to the expiration of the Lock-Up Period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period, the restrictions imposed by
this agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event, unless Cantor Xxxxxxxxxx & Co. waives, in
writing, such extension. The undersigned hereby acknowledges that the Company
has agreed in the underwriting agreement relating to the Offering to provide
written notice of any event that would result in an extension of the Lock-Up
Period pursuant to the foregoing to the undersigned (in accordance with Section
3(i) of the Underwriting Agreement) and agrees that any such notice properly
delivered will be deemed to have given to, and received by, the undersigned. The
undersigned hereby further agrees that, prior to engaging in any transaction or
taking any other action that is subject to the terms of this agreement during
the period from the date of this agreement to and including the 34th day
following the expiration of the initial Lock-Up Period, it will give notice
thereof to the Company and will not consummate such transaction or take any such
action unless it has received written confirmation from the Company that the
Lock-Up Period (as such may have been extended pursuant to the foregoing) has
expired.
Whether or not the Offering actually occurs depends on a number of factors,
including market conditions. Any Offering will only be made pursuant to an
underwriting agreement, the terms of which are subject to negotiation between
you and the Company.
The undersigned understands that the agreements of the undersigned are
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns. The undersigned agrees and consents to
the entry of stop transfer instructions with the Company's transfer agent
against the transfer of any Securities held by the undersigned except in
compliance with this agreement.
This agreement shall terminate and be of no further force and effect if the
Registration Statement is not declared effective on or before [o], 2005.
Very truly yours,
By:
-------------------------------
Name:
Title:
ANNEX A
[XXXXXX, XXXXXX & XXXXXXXX (NEW YORK) LLP LETTERHEAD]
[We have acted as special counsel for StealthGas Inc., a Xxxxxxxx Islands
corporation (the "Company"), and each of the Xxxxxxxx Islands subsidiaries of
the Company listed on Schedule 1 attached hereto (the "Xxxxxxxx Islands
Subsidiaries") on matters of Xxxxxxxx Islands law in connection with the
issuance and sale by the Company of [o] shares of common stock (the "Common
Stock"). The Common Stock is being issued and sold by the Company pursuant to
the Company's Registration Statement on Form F-1 (No. 333-[o]) (the
"Registration Statement"), and the prospectus included therein (the
"Prospectus"), which Registration Statement was declared effective by the
Securities and Exchange Commission on [o], 2005.
This opinion is being delivered to you at the request of the Company in
accordance with the requirements of Section 4(f) of the Underwriting Agreement
dated [o], 2005 (the "Underwriting Agreement") between you and the Company.
Capitalized terms used and not defined herein have the meanings assigned to them
in the Underwriting Agreement.
As such counsel, we have examined the following documents:
(i) The Registration Statement and the Prospectus;
(ii) The Underwriting Agreement; and
(iii) Such other papers, documents, agreements, certificates of public
officials and certificates of representatives of the Company and the
Xxxxxxxx Islands Subsidiaries (collectively, the "Xxxxxxxx Islands
Entities") as we have deemed relevant and necessary as the basis for
the opinions hereafter expressed.
In such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as conformed or photostatic
copies. We have further assumed the validity and enforceability of such
documents under all applicable laws other than Xxxxxxxx Islands law.
This opinion is limited to the law of the Republic of The Xxxxxxxx Islands. In
rendering our opinion as to the valid existence in good standing of each of the
Xxxxxxxx Islands Entities, we have relied solely on Certificates of Goodstanding
issued by the Registrar of Corporations of the Republic of The Xxxxxxxx Islands,
in each case on [o], 2005.
As used herein, the phrase "to our knowledge" means the actual knowledge, based
on conscious awareness of facts or other information, by any lawyer in our firm
involved in the preparation of this opinion or actively involved in advising or
assisting any of the Xxxxxxxx Islands Entities in the transactions contemplated
by the Registration Statement, the Prospectus and the Underwriting Agreement.
Based on the foregoing and having regard to legal considerations which we deem
relevant, we are of the opinion that:
1. Each of the Xxxxxxxx Islands Entities has been incorporated and is
validly existing as a corporation in good standing under the law of the
Xxxxxxxx Islands with corporate power and authority to own its
properties and conduct its business as described in the Prospectus.
2. The Company's authorized share capital is [o].
3. All issued and outstanding shares of each of the Xxxxxxxx Islands
Entities have been duly authorized and are validly issued, fully paid
and non-assessable and are not subject to any statutory preemptive
rights or preemptive rights pursuant to the organizational documents or
bylaws of any of the Xxxxxxxx Islands Entities.
4. The Common Stock to be issued and sold by the Company has been duly
authorized and, when issued and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and nonassessable, and
the issuance of the Common Stock is not subject to any statutory
preemptive rights or preemptive rights pursuant to the organizational
documents or bylaws of the Company.
5. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the Republic of The Xxxxxxxx Islands is required for the execution and
delivery by the Company of the Underwriting Agreement in order for it
to be duly and validly authorized.
6. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
7. Other than as set forth or contemplated in the Prospectus and insofar
as matters of Xxxxxxxx Islands law are concerned, to our knowledge
there are no legal or governmental investigations, actions, suits or
proceedings pending or threatened in the Republic of The Xxxxxxxx
Islands against or affecting any of the Xxxxxxxx Islands Entities or
any of their properties or to which any of the Xxxxxxxx Islands
Entities is or may be a party or to which any of their properties is or
may be the subject.
8. The compliance by the Company with all of the provisions of the
Underwriting Agreement and the consummation of the transactions herein
contemplated will not result in any violation of the provisions of the
Articles of Incorporation or By-laws of the Company or any of the
Xxxxxxxx Islands Subsidiaries or any Xxxxxxxx Islands statute or any
order, rule or regulation known to us of any court or governmental
agency or body in the Xxxxxxxx Islands having jurisdiction over the
Company or the Xxxxxxxx Islands Subsidiaries or any of their
properties.
9. No licenses, permits, certificates, consents, orders, approvals and
other authorizations of, or declarations and filings with, any
governmental or regulatory authorities of the Republic of The Xxxxxxxx
Islands are required for any of the Xxxxxxxx Islands Entities to own or
lease, as the case may be, and to operate, its properties and to carry
on its business as conducted as of the date hereof in the manner
described in the Prospectus (other than such licenses, permits,
certificates, consents, orders, approvals and other authorizations the
failure to obtain would not in the aggregate have a material adverse
effect on the Company).
10. No consent, approval, authorization, order, license, registration or
qualification of or with any court or governmental agency or body the
Republic of The Xxxxxxxx Islands is required for the issuance and sale
of the Common Stock by the Company or the consummation by the Company
of the transactions contemplated by the Underwriting Agreement, except
(A) which have been duly obtained and are in full force and effect or
(B) as may be required in connection with the acquisition of any vessel
as contemplated in the Prospectus and the registration of any such
vessel under the law and flag of the Xxxxxxxx Islands.
11. The statements in the Prospectus under "Enforceability of Civil
Liabilities", "Dividend Policy," "Description of Capital Stock" and
"Xxxxxxxx Islands Company Considerations," insofar as such statements
constitute a summary of the terms of the capital stock of the Company,
Xxxxxxxx Islands legal matters, documents or proceedings referred to
therein, and the statements in the Prospectus under "Tax
Considerations--Xxxxxxxx Islands Tax Considerations," insofar as such
statements describe Xxxxxxxx Islands tax law, fairly present in all
material respects the information called for with respect to such
terms, legal matters under Xxxxxxxx Islands law, documents or
proceedings.
12. Assuming that none of the Underwriters is carrying on business or
conducting transactions in the Republic of The Xxxxxxxx Islands, no
stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes are payable by or on behalf
of the Underwriters to the Republic of The Xxxxxxxx Islands or to any
political subdivision or taxing authority thereof or therein in
connection with the sale and delivery by the Company of the Common
Stock to or for the respective accounts of the Underwriters.
13. Insofar as matters of Xxxxxxxx Islands law are concerned, the
Registration Statement and the filing of the Registration Statement
with the Commission have been duly authorized by and on behalf of the
Company, and the Registration Statement has been duly executed pursuant
to such authorization by and on behalf of the Company.
14. The agreement of the Company to the choice of law provisions set forth
in Section 11 of the Underwriting Agreement will be recognized by the
courts of the Xxxxxxxx Islands; the Company can xxx and be sued in its
own name under the law of the
Xxxxxxxx Islands; the irrevocable submission of the Company to the
exclusive jurisdiction of a New York Court, the waiver by the Company
of any objection to the venue of a proceeding of a New York Court and
the agreement of the Company that the Underwriting Agreement shall be
governed by and construed in accordance with the law of the State of
New York are legal, valid and binding; service of process effected in
the manner set forth in Section 11 of the Underwriting Agreement will
be effective, insofar as the law of the Xxxxxxxx Islands is concerned,
to confer valid personal jurisdiction over the Company; and a final
non-appealable judgment against the Company entered by a court in any
United States or foreign jurisdiction in any suit, action or proceeding
would be enforceable against the Company in the courts of the Republic
of The Xxxxxxxx Islands without a retrial of the merits of the matter,
provided that: (a) the judgment was for a sum of money and was final in
the jurisdiction granting the judgment, (b) the court granting the
judgment had jurisdiction under the laws of the place where it sat and
the judgment did not offend principles of the Republic of The Xxxxxxxx
Islands as to due process, propriety or public order, and (c) the
defendant was actually present in person or by duly appointed
representative, and the judgment did not constitute in effect a default
judgment.
15. Assuming that the recipient thereof is not carrying on business or
conducting transactions in the Republic of the Xxxxxxxx Islands, all
dividends and other distributions declared and payable on the shares of
capital stock of the Company and the Xxxxxxxx Islands Subsidiaries will
not be subject to withholding taxes under the law and regulations of
the Xxxxxxxx Islands.
16. Each of the vessels listed on Schedule 2 attached hereto is registered
in the sole ownership of the entity indicated as the "Owning Entity" of
such vessel on such schedule under the law of the Xxxxxxxx Islands;
each Owning Entity has record title thereto, free and clear of all
liens, claims, debts or encumbrances and defects of title of record,
except as indicated on such schedule or as described in the Prospectus;
and each such vessel is in good standing with respect to the payment of
past and current taxes, fees and other amounts payable under the law of
the Xxxxxxxx Islands as would affect its registration under Xxxxxxxx
Islands law.](2)
--------------------
(2) Subject to final negotiation.
