6,325,000 Shares of Common Stock ($0.03 par value) EUROSEAS LTD. UNDERWRITING AGREEMENT
6,325,000
Shares of Common Stock
($0.03
par value)
_________________
November
6, 2007
WACHOVIA
CAPITAL MARKETS, LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
XXXXXXXXXXX
& CO. INC.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Euroseas
Ltd., a company formed under the laws of the Republic of the Xxxxxxxx Islands
(the “Company”),
confirms its agreement with Wachovia Capital Markets, LLC and Xxxxxxxxxxx &
Co. Inc. (together, the “Underwriters,”
or,
each, an “Underwriter”),
with
respect to the sale by the Company, and the purchase by the Underwriters, acting
severally and not jointly, of an aggregate of 5,825,000 shares
of the
Company’s common stock, par value $0.03 per share (“Common
Stock”).
In
addition, Friends Investment Company Inc. (the “Selling
Shareholder”)
confirms its agreement with the Underwriters, with respect to the sale by the
Selling Shareholder and the purchase by the Underwriters, acting severally
and
not jointly, of an aggregate of 500,000 shares of Common Stock. Such shares
of
Common Stock to be sold by the Company and the Selling Shareholder are
hereinafter collectively referred to as the “Firm
Shares.”
Upon
the request of the Underwriters, as provided in Section 2(c) hereof, the
Company shall also sell to the Underwriters, acting severally and not jointly,
up to 948,750 additional shares of Common Stock for the purpose of covering
over-allotments, if any (the “Option
Shares”).
The
Firm Shares and the Option Shares are hereinafter referred to as the
“Securities.”
The
Securities are more fully described in the Registration Statement, the
Preliminary Prospectus and the Prospectus referred to below.
|
1.
|
Representations
and Warranties.
|
|
(a)
|
The
Company represents and warrants to, and agrees with, each of the
Underwriters, as of the date hereof, as of the Closing Date referred
to in
Section 2(b) hereof, and as of each Option Closing Date (if
any) referred to in Section 2(d) hereof, as
follows:
|
1
|
(i)
|
The
Company has prepared and filed with the Securities and Exchange Commission
(the “Commission”)
a registration statement on Form F-3 (File No. 333-142794), as amended
by
Amendment No. 1 thereto, to be used in connection with the public
offering
and sale of the Securities under the Securities Act of 1933, as amended
(the “1933
Act”),
which registration statement, as amended, has been declared effective
by
the Commission on May 16, 2007. Such registration statement, in the
form
in which it was declared effective, as amended through the Applicable
Time
(as defined below), including all documents incorporated or deemed
to be
incorporated by reference therein through the Applicable Time, is
hereinafter referred to as the “Registration
Statement.”
Any registration statement filed pursuant to Rule 462(b) of the rules
and
regulations of the Commission under the 1933 Act (the “1933
Act Regulations”)
is herein referred to as the “Rule 462(b) Registration Statement,” and
after such filing the term “Registration
Statement”
shall include any Rule 462(b) Registration Statement. The Company
has
prepared and filed with the Commission a preliminary prospectus supplement
dated October 29, 2007 relating to the Securities. Such preliminary
prospectus supplement, together with the prospectus included in the
Registration Statement at the time it was declared effective and
all
documents incorporated or deemed incorporated therein by reference,
is
herein called the “Preliminary
Prospectus.”
Promptly after execution and delivery of this underwriting agreement
(the
“Agreement”),
the Company will prepare and file a final prospectus supplement relating
to the Securities in accordance with the provisions of Rule 424(b)
under
the 1933 Act Regulations. Such final prospectus supplement in the
form
first furnished to the Underwriters to confirm sales of the Securities,
together with the prospectus included in the Registration Statement
at the
time it was declared effective and all documents incorporated therein
by
reference, is herein called the “Prospectus.”
|
For
purposes of this Agreement, all references to the Registration Statement, the
Preliminary Prospectus, the Prospectus or any amendment or supplement to any
of
the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”).
In
addition, all references in this Agreement to financial statements and schedules
and other information which is “contained,” “included, “ “set forth” or “stated”
in the Registration Statement, the Preliminary Prospectus or the Prospectus
(and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement, the
Preliminary Prospectus, or the Prospectus, as the case may be (except for any
financial statements and schedules and other information incorporated or deemed
to be incorporated therein by reference to the extent modified or superseded
by
any financial statements, schedules or other information included in the
Registration Statement, the Preliminary Prospectus or the Prospectus); and
all
references in this Agreement to amendments or supplements to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be deemed to
mean
and include the filing of any document under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”),
which
is or is deemed to be incorporated by reference in the Registration Statement,
the Preliminary Prospectus, or the Prospectus, as the case may be (subject
to
the above exception for modified or superseded financial statements, schedules
and other information).
2
|
(ii)
|
The
Company meets the requirements for use of Form F-3. Neither the Commission
nor any state regulatory authority has issued any order suspending
the
effectiveness of the Registration Statement, any Rule
462(b) Registration Statement or any post-effective amendment
thereto, and no proceedings for a stop order suspending the effectiveness
of the Registration Statement have been instituted or are pending
or to
the Company’s knowledge, threatened.
|
|
(iii)
|
At
the respective times the Registration Statement became, any
Rule 462(b) Registration Statement and any post-effective
amendments thereto become effective (the “Effective
Date”),
at the Applicable Time and at the Closing Date (and, if any Option
Shares
are purchased, at the Option Closing Date), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with
the requirements of the 1933 Act and the 1933 Act Regulations and
did not
and will not contain an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary
to make
the statements therein not misleading. Neither the Prospectus nor
any
amendments or supplements thereto, at the respective times the Prospectus
or any such amendment or supplement was issued or will be issued
and at
the Closing Date (and, if any Option Shares are purchased, at the
Option
Closing Date), included or will include an untrue statement of a
material
fact or omitted or will omit to state a material fact necessary in
order
to make the statements therein, in the light of the circumstances
under
which they were made, not misleading. As of the Applicable Time,
the
Preliminary Prospectus did not include any 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 under which
they
were made, not misleading. For the purposes of this Agreement, the
“Applicable
Time”
is 7:00 p.m. (Eastern time) on the date of this Agreement. The
representations and warranties in this subsection shall not apply
to
statements in or omissions from the Registration Statement, the
Preliminary Prospectus or Prospectus made in reliance upon and in
conformity with written information furnished to the Company by the
Underwriters expressly for use in the Registration Statement (or
any
amendment thereto), the Preliminary Prospectus or the
Prospectus.
|
The
Preliminary Prospectus and the Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto complied
or
will comply when so filed in all material respects with the 1933 Act Regulations
and the Preliminary Prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was or will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to
XXXXX, except to the extent permitted by Regulation S-T and the 1933 Act
Regulations.
3
|
(iv)
|
The
documents incorporated or deemed to be incorporated by reference
in the
Registration Statement, the Preliminary Prospectus or the Prospectus,
at
the time they were or hereafter are filed with the Commission, as
the case
may be, complied in all material respects with the requirements of
the
1933 Act or the Exchange Act and, with the exception of information
in
such incorporated documents that was modified or superseded by information
in the Prospectus, when read together with (and as modified by) the
other
information in the Prospectus, at the time the Registration Statement
and
any amendments become effective or were filed with the Commission,
as the
case may be, will not contain an untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not
misleading;
|
|
(v)
|
Each
of the Company and its Subsidiaries (as hereinafter defined)
(A) has been duly organized and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation,
(B) other than as disclosed in the Registration Statement, owns no
interest in any corporation, partnership, trust, joint venture or
other
business entity, (C) is duly qualified to do business, and is in good
standing as a foreign corporation, in each jurisdiction in which
its
ownership or leasing of any properties or the character of its operations
requires such qualification, except for such failure to be so qualified
or
in good standing that would not, individually or in the aggregate,
have a
material adverse effect on the shareholders equity in, or the condition
(financial or otherwise), earnings, business prospects or properties
of
the Company and its Subsidiaries, taken as a whole (a “Material
Adverse Effect”),
(D) has all requisite corporate power and authority, and has obtained
any and all necessary authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental or regulatory
officials and bodies, to own or lease its properties and conduct
its
business as described in the Preliminary Prospectus and the Prospectus,
except for the failure to obtain such authorizations, approvals,
orders,
licenses, certificates and permits that would not, in the aggregate,
have
a Material Adverse Effect and (E) is and has been doing business in
compliance with all such authorizations, approvals, orders, licenses,
certificates, permits and all federal, state, local and foreign laws,
rules and regulations, and has not received any notice of proceedings
relating to the revocation or modification of any such authorization,
approval, order, license, certificate or permit which, if the subject
of
an unfavorable decision, ruling or finding, would, individually or
in the
aggregate, have a Material Adverse Effect. The disclosures in the
Registration Statement, the Preliminary Prospectus and the Prospectus
concerning the effects of federal, state, local and foreign laws,
rules
and regulations on each of the Company’s and the Subsidiaries’ business as
currently conducted and as contemplated are correct in all material
respects and do not omit to state a material fact necessary to make
the
statements contained therein not
misleading.
|
4
|
(vi)
|
To
the best of the Company’s knowledge, Eurobulk Ltd. (A) has been duly
organized and is validly existing as a corporation in good standing
under
the laws of Liberia, (B) is duly qualified to do business, and is in
good standing as a foreign corporation, in each jurisdiction in which
its
ownership or leasing of any properties or the character of its operations
requires such qualification, except for such failure to be so qualified
or
in good standing that would not, individually or in the aggregate,
have a
material adverse effect on its business, (C) has all requisite
corporate power and authority, and has obtained any and all necessary
authorizations, approvals, orders, licenses, certificates and permits
of
and from all governmental or regulatory officials and bodies, to
own or
lease its properties and conduct its business, except for the failure
to
obtain such authorizations, approvals, orders, licenses, certificates
and
permits that would not, in the aggregate, have a material adverse
effect
on its business and (D) is and has been doing business in compliance
with all such authorizations, approvals, orders, licenses, certificates,
permits and all federal, state local and foreign laws, rules and
regulations, and has not received any notice of proceedings relating
to
the revocation or modification of any such authorization, approval,
order,
license, certificate or permit which, if the subject of an unfavorable
decision, ruling or finding, would, individually or in the aggregate,
have
a material adverse effect on its
business.
|
|
(vii)
|
The
Company has a duly authorized equity capitalization as set forth
in the
Preliminary Prospectus under “Capitalization”
and will have the adjusted duly authorized equity capitalization
set forth
therein on the Closing Date, based upon the assumptions set forth
therein.
Neither the Company nor any of its Subsidiaries is a party to, or
bound
by, any instrument, agreement or other arrangement providing for
it to
issue any capital stock, rights, warrants, options or other securities,
except for this Agreement and as described in the Registration Statement,
the Preliminary Prospectus and the Prospectus. The Securities and
all
other securities issued or issuable by the Company conform or, when
issued
and paid for, will conform, in all respects to all statements with
respect
thereto contained in the Registration Statement, the Preliminary
Prospectus and the Prospectus. All issued and outstanding capital
stock of
the Company have been duly authorized and validly issued and are
fully
paid and nonassessable, and the holders thereof have no rights of
rescission with respect thereto and are not subject to personal liability
by reason of being such holders; and none of such securities were
issued
in violation of any preemptive rights of any holders of any security
of
the Company or similar contractual rights granted by the Company.
The
Securities (A) are not and will not be issued in violation of any
preemptive or other similar rights of any person, (B) have been duly
authorized for listing, subject to official notice of issuance on
the
NASDAQ Global Market, and (C) when issued, paid for and delivered
in
accordance with the terms hereof, will be validly issued, fully paid
and
non-assessable and will conform to the description thereof contained
in
the Preliminary Prospectus and the Prospectus. The holders of the
Securities will not be subject to any liability solely by reason
of being
such holders. All corporate action required to be taken by the Company
or
any of it Subsidiaries for the authorization, issue and sale of the
Securities has been duly and validly taken; and the certificates
representing the Securities will be in due and proper form according
to
applicable law. Upon the issuance and delivery, pursuant to the terms
hereof, of the Securities to be sold by the Company hereunder, and
payment
therefor, the Underwriters will acquire good and marketable title
to such
Securities, free and clear of any lien, charge, claim, encumbrance,
pledge, security interest, defect or other restriction or equity
of any
kind whatsoever except for any such lien, charge, claim, encumbrance,
pledge, security interest, defect, other restriction or equity created
by
the Underwriters or imposed upon the assets of the Underwriters.
|
5
|
(viii)
|
The
subsidiaries of the Company listed on Schedule B hereto (each, a
“Subsidiary”,
and together, the “Subsidiaries”) are
the only subsidiaries of the Company as defined by Rule 1-02 of Regulation
S-X (“Regulation
S-X”).
All the outstanding shares of capital stock of each Subsidiary have
been
duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Prospectus,
are
owned by the Company free and clear of any security interest, claim,
lien
or encumbrance.
|
|
(ix)
|
The
financial statements, including the related notes and schedules thereto,
included or incorporated by reference in the Registration Statement,
the
Preliminary Prospectus and the Prospectus, fairly present the financial
position, income, changes in cash flow, changes in shareholders equity,
and results of operations of the Company and its Subsidiaries at
the
respective dates and for the respective periods to which they apply.
Such
financial statements have been prepared in conformity with generally
accepted accounting principles in the United States, applied on a
consistent basis throughout the periods involved. The outstanding
debt,
the property, both tangible and intangible, and the business of the
Company and each of its Subsidiaries conform in all material respects
to
the descriptions thereof contained in the Registration Statement,
the
Preliminary Prospectus and the Prospectus. The other financial information
and summary financial information set forth in the Preliminary Prospectus
and the Prospectus fairly present, on the basis stated in the Preliminary
Prospectus and the Prospectus, the information set forth therein,
and have
been derived from, or compiled on, a basis consistent with that of
the
audited financial statements included in the Preliminary Prospectus
and
the Prospectus and the assumptions used in the preparation thereof
are
reasonable and the adjustments used therein are appropriate to give
effect
to the transactions and circumstances referred to therein. No other
financial statements are required to be included in the Registration
Statement, the Preliminary Prospectus or the Prospectus.
|
6
|
(x)
|
Each
of the Company and its Subsidiaries has filed all U.S. federal, state,
local and foreign tax returns that are required to be filed or has
requested extensions thereof, whether or not arising from transactions
in
the ordinary course of business, except as set forth in or contemplated
in
the Preliminary Prospectus or the Prospectus and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is (A) currently
being contested in good faith, whether or not arising from transactions
in
the ordinary course of business and as to which adequate reserves
have
been provided, (B) set forth in the Prospectus or (C) would not
individually or in the aggregate, have a Material Adverse
Effect.
|
|
(xi)
|
No
capital gains, income, withholding or other taxes are payable by
or on
behalf of the Underwriters to the Republic of the Xxxxxxxx Islands,
Cyprus, Panama, Liberia or Greece, or to any political subdivision
or
taxing authority thereof or therein in connection with the sale and
delivery by the Company of the Securities to or for the respective
accounts of the Underwriters or the sale and delivery by the Underwriters
of the Securities to the initial purchasers
thereof.
|
|
(xii)
|
The
Company and its Subsidiaries possess such permits, licenses, certificates,
approvals, consents and other authorizations (collectively, “Governmental
Licenses”) issued
by appropriate federal, state, local or foreign regulatory agencies
or
bodies necessary for the ownership of their respective assets and
to
conduct the business now operated by them, except where the failure
to
have obtained the same would not have a Material Adverse Effect;
the
Company and each Subsidiary are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
to
so comply would not singly or in the aggregate have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force
and
effect, except where the invalidity or the failure to be in full
force and
effect would not singly or in the aggregate have a Material Adverse
Effect; and none of the Company’s nor any of its Subsidiaries’ officers,
directors, or crew managers have received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding would result in a Material
Adverse
Effect.
|
7
|
(xiii)
|
The
Company and each of its Subsidiaries is conducting its business in
compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, except where failure
to
be so in compliance would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse
Effect.
|
|
(xiv)
|
The
Company and each of its Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts
as the Company reasonably considers adequate for the conduct of its
business and the value of its properties and as are customary in
the
businesses in which the Company and each of its Subsidiaries are
engaged;
all policies of insurance insuring the Company or any of its Subsidiaries
or their respective businesses, assets, employees, officers and directors
are in full force and effect; the Company and its Subsidiaries are
in
compliance with the terms of such policies in all material respects;
and
there are no material claims by the Company or any of its Subsidiaries
under any such policy or instrument as to which any insurance company
is
denying liability or defending under a reservation of rights clause;
neither the Company nor any Subsidiary has been refused any insurance
coverage sought or applied for or for which a renewal was sought
or
applied for since January 1, 2002, except where the Company or such
Subsidiary obtained similar coverage from similar insurers; and 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 at a cost that would not
have a
Material Adverse Effect, whether or not arising from transactions
in the
ordinary course of business.
|
|
(xv)
|
There
is no action, suit, proceeding, inquiry, arbitration or investigation
before or brought by any court or government agency or body, domestic
or
foreign, pending or to the Company’s knowledge, threatened against (or, to
the Company’s knowledge, circumstances that are reasonably likely give
rise to the same), or involving the properties or business of the
Company
or any of its Subsidiaries which (A) questions the validity of its
capital stock, this Agreement or any action taken or to be taken
by the
Company or its Subsidiaries pursuant to, or in connection with, this
Agreement, (B) is required to be disclosed in the Registration
Statement which is not so disclosed or (C) except for the matters
described in the Preliminary Prospectus and the Prospectus might,
individually or in the aggregate, have a Material Adverse Effect.
|
8
|
(xvi)
|
Except
as described in the Preliminary Prospectus and the Prospectus, and
except
as would not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect, (A) neither the Company nor any of
its
Subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common
law, including any judicial or administrative order, consent, decree
or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water,
groundwater, land surface or subsurface strata) or protected species,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
hazardous wastes, toxic substances, hazardous substances, petroleum
or
petroleum products, asbestos-containing materials or mold (collectively,
“Hazardous
Materials”) or
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
“Environmental
Laws”),
(B) the Company and its Subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and
are
each in compliance with their requirements, (C) there are no pending
or, to the knowledge of the Company, threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law or relating to any common law regarding
Hazardous Materials against the Company or any of its Subsidiaries,
(D) there are no events or circumstances that would reasonably be
expected to form the basis of an order for clean-up or remediation,
or an
action, suit or proceeding by any private party or governmental body
or
agency, against or affecting the Company or any of its Subsidiaries
relating to Hazardous Materials or any Environmental Laws, (E) neither
the
Company nor either of its Subsidiaries has been named as a “potentially
responsible party” under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, or any similar
state
statute, (F) there has been no storage, generation, transport,
handling, treatment, disposal, discharge, emission or other release
of any
kind of toxic or other wastes or other hazardous substances by, due
to, or
caused by the Company or any of its Subsidiaries (or, to the Company’s
knowledge, upon any other entity for whose acts or omissions the
Company
is or may liable) upon the seas, in any inland waters or port or
upon any
other property now or previously owned or leased by the Company or
any of
its Subsidiaries, or upon any other property or in any waters, which
would
be a violation of or give rise to any liability under any applicable
law,
rule, regulation, order, judgment, decree or permit (including any
applicable regulations and standards adopted by the International
Maritime
Organization) relating to pollution or protection of human health
and the
environment, (G) there has been no disposal discharge, emission or
other release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other hazardous
substances with respect to which the Company or any of its Subsidiaries
has knowledge and (H) neither the Company nor any of its Subsidiaries
has agreed to assume, undertake or provide indemnification for any
liability or any other person under any Environmental Law, including
any
obligation for cleanup or remedial action, other than by operation
of law
or due to the Company’s membership in any mutual protection and indemnity
association, in each case as described in the Registration Statement,
the
Preliminary Prospectus and the Prospectus.
|
9
|
(xvii)
|
The
Company has the corporate power and authority to authorize, issue,
deliver
and sell the Securities being sold by it hereunder, enter into this
Agreement and consummate the transactions provided for in this Agreement;
and this Agreement has been duly and properly authorized, executed
and
delivered by the Company and is a valid and binding agreement of
the
Company enforceable against it in accordance with its terms; subject
to
(A) applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting
creditors’ rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law) and (B) public policy, applicable law relating
to fiduciary duties and indemnification and an implied covenant of
good
faith and fair dealing.
|
|
(xviii)
|
None
of the Company’s issuance or sale of the Securities or the execution or
delivery of this Agreement by the Company, the Company’s performance
hereunder or the conduct of the Company’s or its Subsidiaries’ business as
described in the Registration Statement, the Preliminary Prospectus,
the
Prospectus, and any amendments or supplements thereto, (A) results in
or will result in any breach or violation of any of the terms or
provisions of, (B) constitutes or will constitute a default under, or
(C) results in or will result in the creation or imposition of any
lien, charge, claim, encumbrance, pledge, security interest, defect
or
other restriction of any kind whatsoever, upon any property or assets
(tangible or intangible) of the Company or any of its Subsidiaries
pursuant to the terms of any of the following: (1) charter or by-laws
of
the Company or its Subsidiaries, (2) any license, contract,
indenture, mortgage, deed of trust, voting trust agreement, stockholders
agreement, note, indebtedness, loan, lease, deed of trust, credit
agreement or any other agreement or instrument to which the Company
or its
Subsidiaries is a party or by which it is or may be bound or to which
any
of its properties or assets (tangible or intangible) is or may be
subject, or (3) to the best of the Company’s knowledge any statute,
judgment, decree, order, rule or regulation, applicable to the Company
or
its Subsidiaries, of any arbitrator, court, regulatory body or
administrative agency or other governmental agency or body, domestic
or
foreign, having jurisdiction over the Company, its Subsidiaries or
any of
their activities or properties, except in the case of clauses (2)
and (3)
for such breaches, violations, defaults, liens or other restrictions
that
do not or will not, individually or in the aggregate, have a Material
Adverse Effect.
|
10
|
(xix)
|
No
consent, approval, authorization or order of, and no filing with,
any
court, regulatory body, government agency or other body, domestic
or
foreign, is required in connection with the transactions contemplated
herein or the performance of this Agreement, except such as have
been or
may be obtained under the 1933 Act, the Exchange Act and the rules
and
regulations promulgated under these acts, or may be required under
state
securities or Blue Sky laws, the rules of the Financial
Industry Regulatory Authority (“FINRA”)
or the NASDAQ Global Market in connection with the Underwriters’ purchase
and distribution of the Securities, in the manner contemplated herein
and
in the Preliminary Prospectus and the
Prospectus.
|
|
(xx)
|
All
executed agreements, contracts or other documents or copies of executed
agreements, contracts or other documents filed as exhibits to the
Registration Statement to which the Company or any of its Subsidiaries
is
a party or by which it may be bound or to which any of its assets,
properties or business may be subject have been duly and validly
authorized, executed and delivered by it, and constitute the legal,
valid
and binding obligations of the Company or such Subsidiary, enforceable
against it in accordance with their respective terms. The descriptions
in
the Registration Statement, the Preliminary Prospectus and the Prospectus
of agreements, contracts and other documents are accurate in all
material
respects and fairly present the information required to be shown
with
respect thereto on Form F-3. There are no contracts or other documents
which are required by the 1933 Act or the 1933 Act Regulations to
be
described in the Registration Statement, the Preliminary Prospectus
or the
Prospectus or to be filed as exhibits to the Registration Statement
which
have not so been described and filed as required, and the exhibits
which
have been filed are in all material respects complete and correct
copies
of the documents of which they purport to be
copies.
|
|
(xxi)
|
Neither
the Company nor any of its Subsidiaries is in violation or default
of
(A) any provision of its charter or by-laws or (B) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement, management agreement, charter party agreement or
other
agreement, obligation, condition, covenant or instrument to which
it is a
party or bound or to which its property is subject except, in the
case of
clause (B), where such violation or default, individually or in the
aggregate, would not have a Material Adverse
Effect.
|
|
(xxii)
|
No
labor problem or dispute with the employees of the Company or any
of its
Subsidiaries exists or, to the knowledge of the Company, is threatened
or
imminent, and the Company is not aware of any existing or imminent
labor
disturbance by the employees of any of its or its Subsidiaries’ principal
suppliers, contractors or customers, that could have a Material Adverse
Effect, whether or not arising from transactions in the ordinary
course of
business. The Company is not aware that any key employee or significant
group of employees of the Company or any of its Subsidiaries plans
to
terminate employment with such
entity.
|
11
|
(xxiii)
|
Neither
the Company, its Subsidiaries nor, any of their respective directors
or
affiliates nor, to the knowledge of the Company, any of the Company’s or
its Subsidiaries’ employees, stockholders, partners or their affiliates of
any of the foregoing has taken or will take, directly or indirectly,
any
action designed to or which has constituted or which might be expected
to
cause or result in, under the Exchange Act and the rules and regulations
promulgated thereunder, stabilization or manipulation of the price
of any
security of the Company to facilitate the sale or resale of the Securities
or otherwise.
|
|
(xxiv)
|
The
Company and each of its Subsidiaries owns or has obtained licenses
for the
patent rights, licenses, inventions, copyrights, know-how (including
trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names and other intellectual property referenced or
described
in the Preliminary Prospectus and the Prospectus as being owned by
or
licensed to it (collectively, the “Intellectual
Property”).
To the knowledge of the Company, there are no rights of third parties
to
any such Intellectual Property; to the knowledge of the Company,
there is
no infringement by third parties of any such Intellectual Property;
there
is no pending or, to the knowledge of the Company, threatened action,
suit, proceeding or claim by others challenging the Company’s or its
Subsidiaries’ rights in or to any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis
for
any such claim; there is no domestic or foreign, pending or, to the
knowledge of the Company, threatened, action, suit, proceeding or
claim by
others challenging the validity or scope of any such Intellectual
Property, and the Company is unaware of any facts which would form
a
reasonable basis for any such claim; and there is no pending or,
to the
knowledge of the Company, threatened action, suit, proceeding or
claim by
others that the Company infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of
others,
and the Company is unaware of any other fact which would form a reasonable
basis for any such claim. The Company owns, possesses, licenses or
has
other rights to use, on reasonable terms, all Intellectual Property
necessary for the conduct of the Company’s business as now conducted or as
proposed in the Preliminary Prospectus and the Prospectus to be
conducted.
|
|
(xxv)
|
The
Company and each of its Subsidiaries has good and marketable title
to, or
valid and enforceable leasehold estates in, all items of real and
personal
property stated in the Registration Statement the Preliminary Prospectus
and the Prospectus to be owned or leased by it, free and clear of
all
liens, charges, claims, encumbrances, pledges, mortgages, security
interests, defects, or other restrictions or equities of any kind
whatsoever, other than those referred to in the Registration Statement,
the Preliminary Prospectus and the Prospectus and taxes, lessor’s
interests and liens for taxes not yet due and payable. All of the
leases
and subleases material to the business of the Company or its Subsidiaries,
are in full force and effect, and none of the Company’s, nor to the best
of the Company’s knowledge any of its Subsidiaries’ officers, directors or
crew managers have received any notice of any material claim of any
sort
that has been asserted by anyone adverse to the rights of the Company
or
any of its Subsidiaries under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or any
of its
Subsidiaries to the continued possession of the leased or subleased
premises under any such lease or
sublease.
|
12
|
(xxvi)
|
Deloitte,
Hadjipavlou, Sofianos & Cambanis S.A., which has certified certain
financial statements of the Company and delivered their reports with
respect to the audited financial statements and schedules included
in the
Registration Statement, the Preliminary Prospectus and the Prospectus,
is
(A) an independent certified public accountant as required by the
1933 Act and the 1933 Act Regulations, (B) in compliance with the
applicable requirements relating to the qualification of accountants
under
Rule 2-01 of Regulation S-X, and (C) a registered public accounting
firm as defined by the Public Company Accounting Oversight Board,
whose
registration has not been suspended or revoked and who has not requested
such registration to be withdrawn.
|
|
(xxvii)
|
Except
as described in the Preliminary Prospectus and the Prospectus under
“Underwriting,” there are no claims, payments, issuances, arrangements or
understandings, whether oral or written, of the Company for services
in
the nature of a finder’s or origination fee with respect to the sale of
the Securities by it hereunder or any other arrangements, agreements,
understandings, payments or issuances with respect to the Company
or, to
the Company’s knowledge, any of its officers, directors, stockholders,
partners, employees or affiliates that may affect the Underwriters’
compensation, as determined by the FINRA.
|
|
(xxviii)
|
Neither
the Company nor, to its knowledge, any of its officers, employees,
agents,
or any other person acting on behalf of the Company, has, directly
or
indirectly, given or agreed to give any money, gift or similar benefit
(other than legal price concessions to customers in the ordinary
course of
business) to any customer, supplier, employee or agent of a customer
or supplier, or official or employee of any governmental agency (domestic
or foreign) or instrumentality of any government (domestic or
foreign) or any political party or candidate for office (domestic or
foreign) or other person who was, is or may be in a position to help
or hinder the business of the Company or any of its Subsidiaries
(or
assist the Company in connection with any actual or proposed
transaction) which (A) might subject the Company, any of its
Subsidiaries, or any other such person, to any fine or penalty in
any
civil, criminal or governmental litigation or proceeding (domestic
or
foreign), (B) if not given in the past, might have had a Material
Adverse Effect, or (C) if not continued in the future, might have a
Material Adverse Effect.
|
13
|
(xxix)
|
The
operations of the Company and its Subsidiaries are and have been
conducted
at all times in compliance with applicable financial recordkeeping
and
reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder to which the
Company
is subject, and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively,
the “Money
Laundering Laws”),
and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company
or any
of its Subsidiaries with respect to the Money Laundering Laws is
pending
or, to the best knowledge of the Company,
threatened.
|
|
(xxx)
|
Neither
the Company nor, to the knowledge of the Company, any director, officer,
agent, employee, affiliate or person acting on behalf of the Company
is
currently subject to any U.S. sanctions administered by the Office
of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”),
and the Company will not directly or indirectly use the proceeds
of the
offering, or lend, contribute or otherwise make available such proceeds
to
any Subsidiary, joint venture partner or other person or entity,
for the
purpose of financing the activities of any person currently subject
to any
U.S. sanctions administered by
OFAC.
|
|
(xxxi)
|
Neither
the Company, its subsidiaries, nor any of their properties or assets
has
any immunity from the jurisdiction of any court or from any legal
process
(whether through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) under the laws of the
United
States, the Xxxxxxxx Islands, Cyprus, Greece, Liberia or Panama or
any
political subdivisions thereof.
|
|
(xxxii)
|
The
Company has established and will maintain disclosure controls and
procedures (as such is defined in Rule 13a-15 under the Exchange
Act),
which (a) are designed to ensure that information relating to the
Company is made known to the Company’s principal executive officer and its
principal financial officer, or persons performing similar functions,
by
others within the Company, particularly during the periods in which
the
periodic reports required under the Exchange Act are being prepared
and
(b) are effective in all material respects to perform the functions
for which they were established. With respect to the Company’s disclosure
controls and procedures described above, the Company is not aware
of
(i) any deficiency in the design or operation of internal controls
which could adversely affect the Company’s ability to record, process,
summarize and report financial data or any material weaknesses in
internal
controls 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.
|
14
|
(xxxiii)
|
The
Company and each of its Subsidiaries has established and will maintain
a
system of internal controls sufficient to provide reasonable assurances
that (A) transactions are executed in accordance with management’s
general or specific authorization, (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with
GAAP and to maintain accountability for assets, (C) access to assets
is permitted only in accordance with management’s general or specific
authorization and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. Except as described
in
the Registration Statement, the Preliminary Prospectus and the Prospectus,
since the
end of the Company’s most recent audited fiscal year,
there has been (1) no material weakness in the Company’s internal
controls over financial reporting (whether or not remediated) and
(2) no change in the Company’s internal controls over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal controls over financial
reporting.
|
|
(xxxiv)
|
The
minute books of the Company and each of its Subsidiaries have been
made
available to the Underwriters and counsel for the Underwriters, and
such
books (A) contain a complete summary of all meetings and actions of
the board of directors (including each board committee) and
stockholders (or analogous governing bodies and interest holders,
as
applicable) of the Company and each of its Subsidiaries since the
time of its respective incorporation through the date of the latest
meeting and action, and (B) accurately reflect in all material
respects all transactions referred to in such minutes.
|
|
(xxxv)
|
Each
of the vessels described in the Registration Statement, the Preliminary
Prospectus and the Prospectus as owned by certain of the Company’s
Subsidiaries has been duly registered in the name of the entity that
owns
it under the laws and regulations and flag of the nation of its
registration and no other action is necessary to establish and perfect
such entity’s title to and interest in any of the vessels as against any
charterer or third party and all of the vessels described in the
Registration Statement, the Preliminary Prospectus and the Prospectus
as
owned by a Subsidiary of the Company are owned directly by such Subsidiary
of the Company free and clear of all liens, claims, security interests
or
other encumbrances, except such as are described in or contemplated
by the
Registration Statement, the Preliminary Prospectus and the
Prospectus.
|
15
|
(xxxvi)
|
Except
as set forth in the Registration Statement, the Preliminary Prospectus
and
the Prospectus, the Company is not prohibited, directly or indirectly,
from paying any dividends, from making any other distribution, from
repaying any loans or advances or from transferring any of its property
or
assets. 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 any political
subdivisions thereof, be paid in United States dollars and may be
freely
transferred out of the Republic of the Xxxxxxxx Islands, and, under
current laws and regulations, all such dividends and other distributions
will not be subject to withholding or other taxes under the laws
and
regulations of the Republic of the Xxxxxxxx Islands and are otherwise
free
and clear of any other tax, withholding or deduction 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 in the Republic of the Xxxxxxxx
Islands.
|
|
(xxxvii)
|
No
Subsidiary of the Company is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such Subsidiary’s capital stock, from repaying to the
Company any loans or advances to such Subsidiary from the Company
or from
transferring any of such Subsidiary’s property or assets to the Company or
any other Subsidiary of the Company, except as described in the in
the
Registration Statement, the Preliminary Prospectus and the Prospectus.
|
|
(xxxviii)
|
There
are no restrictions on subsequent transfers of the Securities under
the
laws of the Republic of the Xxxxxxxx
Islands.
|
|
(xxxix)
|
No
forward-looking statement (within the meaning of Section 27A of the
1933
Act and Section 21E of the Exchange Act) contained in the
Registration Statement, the Preliminary Prospectus or the Prospectus
has
been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
|
|
(xl)
|
The
Company is in compliance with all applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations promulgated
thereunder or implementing the provisions thereof (the “Xxxxxxxx-Xxxxx
Act”) that
are currently applicable to the Company and is actively taking steps
to
ensure that it will be in compliance with other provisions of the
Xxxxxxxx-Xxxxx Act not currently applicable to the Company upon and
at all
times after the effectiveness of such provisions and when such provisions
become applicable to the Company.
|
|
(xli)
|
The
Company is not a passive foreign investment company (“PFIC”)
within the meaning of Section 1297(a) of the United States Internal
Revenue Code of 1986, as amended, was not a PFIC for its most recently
completed tax year (as determined for United States federal income
tax
purposes) and will not take any action that is likely to result in
it
becoming a PFIC.
|
16
|
(xlii)
|
Neither
the Company nor, to the knowledge of the Company, any director, officer,
agent, employee, affiliate or other person acting on behalf of the
Company
is aware of or has taken any action, directly or indirectly, that
would
result in a violation by such persons of the Foreign Corrupt Practices
Act
of 1977, as amended, and the rules and regulations thereunder (the
“FCPA”),
including, without limitation, making use of the mails or any means
or
instrumentality of interstate commerce corruptly in furtherance of
an
offer, payment, promise to pay or authorization of the payment of
any
money, or other property, gift, promise to give, or authorization
of the
giving of anything of value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official thereof
or
any candidate for foreign political office, in contravention of the
FCPA
and the Company and, to the knowledge of the Company, its affiliates
have
conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which
are
reasonably expected to continue to ensure, continued compliance
therewith.
|
|
(xliii)
|
The
Company is a “foreign private issuer” as defined in Rule 405 of the
1933 Act.
|
|
(xliv)
|
The
Company has taken all necessary actions to ensure that it is in compliance
with all applicable corporate governance requirements of the NASDAQ
Global
Market that are, or will be, applicable to the Company, except for
such
requirements that have been waived and disclosed in the Registration
Statement, the Preliminary Prospectus or the Prospectus, and is actively
taking steps to ensure that it will be in compliance with other applicable
corporate governance requirements of the NASDAQ Global Market not
currently in effect upon and all times after the effectiveness of
such
requirements and when such provisions become applicable to the
Company.
|
|
(xlv)
|
Neither
the Company nor any of its affiliates directly, or indirectly through
one
or more intermediaries, controls, or is controlled by, or is under
common
control with, or is a person associated with (within the meaning
of
Article I (dd) of the by-laws of the FINRA), any member firm of the
FINRA.
|
|
(xlvi)
|
No
relationship, direct or indirect, exists between or among any of
the
Company or its Subsidiaries, on the one hand, and any director, officer,
stockholder, customer or supplier of the Company, or its Subsidiaries
or
any affiliate of the Company, on the other hand, which is required
to be
described in the Registration Statement, the Preliminary Prospectus
or the
Prospectus which is not so described as required.
|
17
|
(xlvii)
|
There
are no outstanding loans, advances (except normal advances for business
expense in the ordinary course of business) or guarantees or
indebtedness by the Company, directly or indirectly, including through
a
Subsidiary, to or for the benefit of any of the officers or directors
of
the Company, except as disclosed in the Registration Statement, the
Preliminary Prospectus and the
Prospectus.
|
|
(xlviii)
|
There
are no transactions, arrangements or other relationships between
and/or
among the Company, any of its affiliates (as such term is defined
in Rule
405 of the 0000 Xxx) and any unconsolidated entity, including, but
not limited to, any structure finance, special purpose or limited
purpose
entity that could reasonably be expected to materially affect the
Company’s liquidity or the availability of or requirements for its capital
resources required to be described in the Preliminary Prospectus
and the
Prospectus which have not been described as
required.
|
|
(xlix)
|
Except
as described in the Preliminary Prospectus and the Prospectus, no
holders
of any securities of the Company or of any options, warrants or other
convertible or exchangeable securities of the Company have the right
to
include any securities issued by the Company in the Registration
Statement
or any registration statement to be filed by the Company or to require
the
Company to file a registration statement under the 1933 Act, other
than
those holders who have waived such rights. Except as described in
the
Preliminary Prospectus and the Prospectus, no holder of any securities
of
the Company or any other person has the right, contractual or otherwise,
which has not been satisfied or effectively waived, to cause the
Company
to sell or otherwise issue to them, or permit them to underwrite
the sale
of, any of the Securities.
|
|
(l)
|
Neither
the Company nor any of its Subsidiaries is, nor upon consummation
of the
transactions contemplated hereby will be, an “investment company” within
the meaning of such term under the Investment Company Act of 1940
(the
“Investment
Company Act”),
and the rules and regulations of the Commission promulgated
thereunder.
|
|
(li)
|
There
are no documentary, stamp or other issuance or transfer taxes or
duties or
similar fees or charges under U.S. federal law or the laws of any
U.S.
state, the Republic of the Xxxxxxxx Islands, Cyprus, Liberia, Greece
or
Panama or, or any political subdivision of any thereof, required
to be
paid in connection with the execution and delivery of this Agreement
or
the issuance by the Company of the Securities, or the sale and delivery
by
the Company of the Securities to or for the respective accounts of
the
Underwriters or the sale and delivery by the Underwriters of the
Securities to the initial purchasers thereof.
|
|
(lii)
|
Neither
the Company nor any of its officers, directors or 5% stockholders
nor any
of their respective affiliates (within the meaning of the Exchange
Act)
have taken and will not take, directly or indirectly, any action
which is
designed to or which has constituted or which might reasonably be
expected
to cause or result in stabilization or manipulation of the price
of the
Common Stock or any other reference security with respect to the
Common
Stock, to facilitate the sale or resale of the Securities or otherwise,
or
which is otherwise prohibited by Regulation M under the 1933 Act
(“Regulation
M”).
|
18
|
(b)
|
The
Selling Shareholder represents and warrants to, and agrees with,
each of
the Underwriters, as of the date hereof, and as of the Closing Date,
that:
|
|
(i)
|
All
information with respect to the Selling Shareholder included in the
Registration Statement, the Preliminary Prospectus or the Prospectus
complied and will comply with all applicable provisions of the 1933
Act.
|
|
(ii)
|
As
each relates to the Selling Shareholder, at the respective Effective
Dates, the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto and at the Applicable
Time and at the Closing Date, the Registration Statement, any Rule
462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did
not and
will not contain an untrue statement of a material fact or omit to
state a
material fact required to be stated therein or necessary to make
the
statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, in each case as they relate to
the
Selling Shareholder, at the respective times the Prospectus or any
such
amendment or supplement was issued or will be issued and at the Closing
Date, in each case as they relate to the Selling Shareholder, included
or
will include an untrue statement of a material fact or omitted or
will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not
misleading. As of the Applicable Time, the Preliminary Prospectus
as it
relates to the Selling Shareholder did not include any 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 under
which
they were made, not misleading.
|
|
(iii)
|
The
Selling Shareholder has not, prior to the execution of this Agreement,
offered or sold any shares of Common Stock by means of any “prospectus”
(within the meaning of the 1933 Act), or used any “prospectus” (within the
meaning of the 0000 Xxx) in connection with the offer or sale of
shares of
Common Stock, in each case other than the Preliminary
Prospectus.
|
19
|
(iv)
|
Neither
the execution, delivery and performance of this Agreement or the
custody
agreement (the “Custody
Agreement”)
between American Stock Transfer & Trust Company (the “Custodian”)
and the Selling Shareholder or Power of Attorney to which the Selling
Shareholder is a party nor the sale by the Selling Shareholder of
the Firm
Shares to be sold by the Selling Shareholder pursuant to this Agreement
nor the consummation of the transactions contemplated hereby or thereby
will conflict with, result in any breach or violation of or constitute
a
default under (or constitute any event which with notice, lapse of
time or
both would result in any breach or violation of or constitute a default
under) (A) the charter or by-laws or other organizational instruments
of
the Selling Shareholder, (B) any indenture, mortgage, deed of trust,
bank
loan or credit agreement, margin agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement
or
instrument to which the Selling Shareholder is a party or by which
the
Selling Shareholder or any of its properties may be bound or
affected,
the consequence of which breach, violation or default either individually
or in the aggregate, would prevent
or materially interfere with consummation of the transactions contemplated
hereby or by the Custody Agreement to which the Selling Shareholder
is a
party or the Power of Attorney to which the Selling Shareholder is
a
party, including the sale of the Firm Shares to be sold by the Selling
Shareholder, or (C) any decree, judgment or order applicable to the
Selling Shareholder or any of its properties. Neither the execution,
delivery or performance of this Agreement, the Custody Agreement
to which
the Selling Shareholder is party or the Power of Attorney to which
the
Selling Shareholder is a party by the Selling Shareholder, nor the
sale by
the Selling Shareholder of the Firm Shares to be sold by the Selling
Shareholder pursuant to this Agreement, will conflict with or result
in
any breach or violation of (or constitute any event which with notice,
lapse of time or both would result in any breach or violation of)
(1) any
U.S. federal, state, local or foreign law, regulation or rule or
(2) any
rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation,
the
rules and regulations of the
NASDAQ);
|
|
(v)
|
No
consent, approval, authorization or order of, and no filing with,
any
court, regulatory body, government agency or other body, domestic
or
foreign, is required in connection with the transactions contemplated
herein or the performance of this Agreement, except such as have
been or
may be obtained under the 1933 Act, the Exchange Act and the rules
and
regulations promulgated under these acts, or may be required under
state
securities or Blue Sky laws, the rules of the FINRA or the NASDAQ
Global
Market in connection with the Underwriters’ purchase and distribution of
the Firm Shares, in the manner contemplated herein and in the Preliminary
Prospectus and the Prospectus.
|
|
(vi)
|
Neither
the Company, its Subsidiaries nor, any of their respective directors
or
affiliates nor, to the knowledge of the Selling Shareholder, any
of the
Selling Shareholder’s employees, stockholders, partners or their
affiliates of any of the foregoing has taken or will take, directly
or
indirectly, any action designed to or which has constituted or which
might
be expected to cause or result in, under the Exchange Act and the
rules
and regulations promulgated thereunder, stabilization or manipulation
of
the price of any security of the Company to facilitate the sale or
resale
of the Securities or otherwise.
|
20
|
(vii)
|
The
Selling Shareholder is the sole beneficial owner of the Firm Shares
to be
sold by the Selling Shareholder hereunder, free and clear, of any
liens
other than pursuant to this Agreement; and, upon payment of the
consideration for the Firm Shares to be sold by the Selling Shareholders
as provided hereunder, the crediting of such Firm Shares to the “security
account” or “security accounts” (as defined in Section 8-501(a) of
the Uniform Commercial Code of the State of New York (the “UCC”))
of the Underwriters maintained with The Depository Trust Company
(“DTC”)
then, assuming that none of the Underwriters has “notice of an adverse
claim” (within the meaning of Section 8-105 of the UCC) with respect
to such Firm Shares, DTC will be a “protected purchaser” of such Firm
Shares within the meaning of Section 8--303 of the UCC, each of the
Underwriters will acquire a “security entitlement” (within the meaning of
UCC Section 8-102(a)(17)) with respect to the Firm Shares purchased
by such Underwriter from the Selling Shareholders, and no action
based on
any “adverse claim” (within the meaning of UCC Section 8-102(a)(1))
may be successfully asserted against such Underwriter with respect
to such
Firm Shares.
|
|
(viii)
|
The
Selling Shareholder had, at the time of execution of the Custody
Agreement
and Power of Attorney to which the Selling Shareholder is party,
and, at
the time of delivery of the Firm Shares to be sold by the Selling
Shareholder pursuant to this Agreement, will have full legal right,
power
and capacity and all authorizations and approvals required by law
(other
than those imposed by the 1933 Act and state securities or blue sky
laws),
to (A) enter into this Agreement and the Custody Agreement and to
execute
a Power of Attorney, (B) sell, assign, transfer and deliver the Firm
Shares to be sold by the Selling Shareholder pursuant to this Agreement
in
the manner provided in this Agreement and (C) make the representations,
warranties and agreements made by the Selling Shareholder
herein.
|
|
(ix)
|
This
Agreement, the Custody Agreement and the Power of Attorney to which
the
Selling Shareholder is a party have each been duly authorized, executed
and delivered by (or, in the case of this Agreement, on behalf of)
the
Selling Shareholder, and each is a legal, valid and binding agreement
of
the Selling Shareholder enforceable in accordance with its
terms.
|
|
(x)
|
The
Selling Shareholder has
duly and irrevocably authorized Xxxxxxxxx X. Xxxxxx (the “Attorney-in-Fact”),
on behalf of the Selling Shareholder, to negotiate, execute and deliver
this Agreement and any other documents necessary or desirable in
connection with the transactions contemplated hereby or thereby and
to
deliver the Firm Shares to be sold by the Selling Shareholder pursuant
to
this Agreement and receive payment therefor pursuant
hereto.
|
21
|
(xi)
|
The
sale of the Firm Shares to be sold by the Selling Shareholder pursuant
to
this Agreement is not prompted by any information concerning the
Company
or any Subsidiary which is not set forth in the Registration Statements
(excluding the exhibits thereto), the Preliminary Prospectus and
the
Prospectus.
|
|
(xii)
|
At
the Closing Date, all stock transfer or other taxes (other than income
taxes), if any, that are required to be paid in connection with the
sale
and transfer of the Firm Shares to be sold by the Selling Shareholder
to
each Underwriter hereunder will be fully paid or provided for by
the
Selling Shareholder, and all laws imposing such taxes will be fully
complied with.
|
|
(xiii)
|
In
order to document the Underwriters’ compliance with the reporting and
withholding provisions of U.S. law with respect to the transactions
herein
contemplated, the Selling Shareholder will deliver to the Underwriters
prior to or at the Closing Date a properly completed and executed
United
States Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu
thereof).
|
|
(xiv)
|
Pursuant
to the Custody Agreement, irrevocable instructions, subject to the
terms
and conditions of this Agreement, have been given for the delivery
of the
Firm Shares in accordance with this Agreement; the Selling Shareholder
agrees that (A) the Firm Shares to be sold by the Selling Shareholder
covered by such irrevocable instructions are
for the benefit of, and coupled with and subject to the interest
of, the
Custodian, the Attorney-in-Fact, the Underwriters and the Company,
(B) the
arrangements made by the Selling Shareholder for custody and for
the
appointment of the Custodian and the Attorney-in-Fact by the Selling
Shareholder are irrevocable, and (C) the obligations of the Selling
Shareholder hereunder shall not be terminated by operation of law,
whether
by the death, disability or incapacity of the Selling Shareholder
(or, if
the Selling Shareholder is not an individual, the liquidation,
dissolution, merger or consolidation of the Selling Shareholder)
or the
occurrence of any other event (each, an “Event”);
if an Event occurs before the delivery of the Firm Shares hereunder,
the
Firm Shares shall be delivered by the Custodian in accordance with
the
terms and conditions of the Power of Attorney to which the Selling
Shareholder is a party, the Custody Agreement to which the Selling
Shareholder is a party and this Agreement, and actions taken by the
Custodian and the Attorney-in-Fact pursuant to such Custody Agreement
or
such Power or Attorney shall be as valid as if such Event had not
occurred, regardless of whether or not the Custodian or the
Attorney-in-Fact, or either of them, shall have received notice
thereof.
|
|
(c)
|
Any
certificate signed by any officer of the Company or any officer of
the
Selling Shareholder, respectively, and delivered to the Underwriters
or to
Xxxxxx, Xxxxx & Xxxxxxx LLP (“Underwriters’
Counsel”),
shall be deemed a representation and warranty by the Company or the
Selling Shareholder, as the case may be, to the Underwriters as to
the
matters covered thereby. The Company and the Selling Shareholder
each
acknowledge that the Underwriters, and, for purposes of the opinions
to be
delivered pursuant to Section 6(d)(i) and Section 6(d)(viii) hereof,
Underwriters’ Counsel will rely on the accuracy and truthfulness of the
foregoing representations and warranties and hereby consents to such
reliance.
|
22
|
2.
|
Purchase,
Sale and Delivery of the Securities.
|
|
(a)
|
On
the basis of the representations, warranties, covenants and agreements
herein contained, but subject to the terms and conditions herein
set
forth, the Company and the Selling Shareholder agree to sell to each
Underwriter, and each Underwriter, severally and not jointly, agrees
to
purchase from the Company and the Selling Shareholder at a price
of
$16.1075 per share of Common Stock, that number of Firm Shares set
forth
in Schedule A opposite the name of each
Underwriter.
|
|
(b)
|
Payment
of the purchase price and delivery of certificates for the Firm Shares
shall be made at the offices of Xxxxxx, Xxxxx & Bockius LLP, 000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, or at such other place as shall be agreed
upon
by the Underwriters, the Company and the Selling Shareholder. Such
delivery and payment shall be made at 10:00 a.m. (New York City time)
on
November 9, 2007, or at such other time and date as shall be agreed
upon
by the Underwriters, the Company and the Selling Shareholder, but
not more
than three business days after the foregoing date (such time and
date of
payment and delivery being herein called the “Closing
Date”).
Delivery of the Firm Shares shall be made to the Underwriters for
their
respective accounts against payment by each Underwriter of the respective
aggregate purchase prices of the Firm Shares being sold by the Company
and
the Selling Shareholder to, or upon the order of, the Company and
the
Selling Shareholder by wire transfer payable in same day funds to
the
respective accounts specified by each of the Company and the Selling
Shareholder. Delivery of the Firm Shares shall be made through the
facilities of The Depository Trust Company unless the Underwriters
shall
otherwise instruct.
|
|
(c)
|
In
addition, on the basis of the representations, warranties, covenants
and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Company hereby grants an option to the Underwriters
to purchase all or any part of the Option Shares at the same purchase
price per share as the Underwriters shall pay for the Firm Shares.
Said
option may be exercised only to cover over-allotments in the sale
of the
Firm Shares by the Underwriters. The option hereby granted may be
exercised from time to time on or before the 30th day after the date
of
the Prospectus upon written or telegraphic notice by the Underwriters
to
the Company setting forth the number of shares of the Option Shares
as to
which each Underwriter is exercising the option and any Option Closing
Date (as defined below). The number of the Option Shares to be purchased
by each Underwriter shall be the same percentage of the total number
of
shares of the Option Shares to be purchased by each Underwriter as
such
Underwriter is purchasing of the Firm Shares, subject to such adjustments
as the Underwriters in its absolute discretion shall make to eliminate
any
fractional shares. The maximum number of Option Shares to be sold
by the
Company is 948,750 shares.
|
23
|
(d)
|
If
the option provided for in Section (c) hereof is exercised after
the third
business day prior to the Closing Date, the Company will deliver
the
Option Shares (at the expense of the Company) to the Underwriters
at the
offices of Xxxxxx, Xxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000, on the date specified by the Underwriters which shall be within
three business days after exercise of said option (each such date
and time
of payment and delivery being herein called an “Option
Closing Date”),
against payment by each Underwriter, to, or upon the order of, the
Company
by wire transfer payable in same day funds to the account specified
by the
Company. Delivery of the Option Shares shall be made through facilities
of
The Depository Trust Company unless the Underwriters shall otherwise
instruct. If settlement for the Option Shares occurs after the Closing
Date, the Company will deliver to the Underwriters on any settlement
date
for the Option Shares, and the obligation of the Underwriters to
purchase
the Option Shares shall be conditioned upon receipt of, supplemental
opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date
pursuant
to Section 6 hereof.
|
|
3.
|
Public
Offering of the Securities.
It is understood that each Underwriter proposes to offer the Securities
for sale to the public as set forth in the
Prospectus.
|
|
4.
|
Covenants
and Agreements.
|
|
(a)
|
The
Company agrees with each of the Underwriters
that:
|
|
(i)
|
Prior
to the termination of the offering of the Securities, the Company
will not
file any amendment to the Registration Statement or supplement to
the
Preliminary Prospectus or the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished the
Underwriters a copy for their review prior to filing and will not
file any
such proposed amendment or supplement to which the Underwriters reasonably
objects. Subject to the foregoing sentence, if the filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause
the Prospectus, properly completed, and any supplement thereto to
be filed
with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed therein and will provide
evidence satisfactory to the Underwriters of such timely filing.
The
Company will promptly advise the Underwriters (A) when the
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when
any Rule 462(b) Registration Statement shall have been filed with the
Commission, (B) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been
filed or become effective, (C) of any request by the Commission or
its staff for any amendment of the Registration Statement, or any
Rule
462(b) Registration Statement, or for any supplement to the
Prospectus or of any additional information, (D) of the issuance by
the Commission of any stop order suspending the effectiveness of
the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will use its reasonable
best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as
soon as
possible the withdrawal thereof.
|
24
|
(ii)
|
If,
at any time when a prospectus relating to the Securities is required
to be
delivered under the 1933 Act and the 1933 Act Regulations promulgated
thereunder, any event occurs as a result of which the Prospectus
as then
supplemented would include any untrue statement of a material fact
or omit
to state any material fact necessary to make the statements therein
in the
light of the circumstances under which they were made not misleading,
or
if it shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the 1933 Act and the 1933 Act Regulations
promulgated thereunder, the Company promptly will (A) notify the
Underwriters of any such event, (B) prepare and file with the
Commission, subject to Section 4(a)(i), an amendment or supplement
which
will correct such statement or omission or effect such compliance
and
(C) supply any supplemented Prospectus to each of the Underwriters in
such quantities as each such Underwriter may reasonably
request.
|
|
(iii)
|
The
Company will endeavor in good faith, in cooperation with the Underwriters,
to qualify the Securities for offering and sale under the securities
laws
of such jurisdictions as the Underwriters may designate to permit
the
continuance of sales and dealings therein for as long as may be necessary
to complete the distribution, and shall make such applications, file
such
documents and furnish such information as may be required for such
purpose; provided, however, the Company shall not be required to
qualify
as a foreign corporation or file a general or limited consent to
service
of process in any such jurisdiction. In each jurisdiction where such
qualification shall be effected, the Company will, unless the Underwriters
agrees that such action is not at the time necessary or advisable,
use all
reasonable efforts to file and make such statements or reports at
such
times as are or may reasonably be required by the laws of such
jurisdiction to continue such
qualification.
|
|
(iv)
|
As
soon as practicable, but in any event not later than 45 days after
the end
of the 12-month period beginning on the day after the end of the
fiscal
quarter of the Company during which the Effective Date occurs (90
days in
the event that the end of such fiscal quarter is the end of the Company’s
fiscal year), the Company shall make generally available to its security
holders, in the manner specified in Rule 158 under the 1933 Act,
and to
the Underwriters, an earnings statement which will be in the detail
required by, and will otherwise comply with, the provisions of Section
11(a) of the 1933 Act and Rule 158 under the 1933
Act.
|
25
|
(v)
|
During
a period of two years from the date hereof, the Company will furnish
to
its stockholders annual reports (including financial statements audited
by
independent public accountants) and will deliver to the
Underwriters:
|
|
(A)
|
concurrently
with furnishing the above-mentioned annual reports to its stockholders,
statements of income of the Company for each year, in the form furnished
to the Company’s stockholders and certified by the Company’s principal
financial or accounting officer;
|
|
(B)
|
concurrently
with furnishing the above mentioned annual reports to its stockholders,
a
balance sheet of the Company as at the end of the preceding fiscal
year,
together with statements of operations, stockholders’ equity, and cash
flows of the Company for such fiscal year, accompanied by a copy
of the
report thereon of independent certified public
accountants;
|
|
(C)
|
after
the end of each fiscal quarter (excluding the fourth fiscal quarter),
a
balance sheet of the Company as of March 31, June 30 and September
30 of
each year, together with statements of income, stockholders’ equity, and
cash flows of the Company for the corresponding fiscal quarter or
quarters, as the case may be;
|
|
(D)
|
as
soon as they are available, copies of all reports (financial or
other) mailed to stockholders;
|
|
(E)
|
as
soon as they are available, copies of all reports and financial statements
furnished to or filed with the Commission or securities exchange
on which
any class of securities of the Company is listed; and
|
|
(F)
|
every
press release and every news item or article of interest to the financial
community in respect of the Company or its affiliates which was released
and prepared by or on behalf of the Company.
|
Delivery
to the Underwriters will be deemed to have been made to the extent the Company
has filed the above-referenced materials (including those in
Section 4(a)(iv) above) with the Commission.
|
(vi)
|
For
a period of one year from the Closing Date, the Company shall use
its best
efforts to furnish to the Underwriters, at the Underwriters’ request and
at the Company’s sole expense, on a quarterly basis (i) a readily
available list of the securities positions of participants in the
Depository Trust Company in the Common Stock and (ii) as provided
from the
transfer agent to the Company, a list of holders of all of the Company’s
securities.
|
26
|
(vii)
|
The
Company will furnish to the Underwriters and Underwriters’ Counsel,
without charge, at such place as the Underwriters may designate,
signed
copies of the Registration Statement (including exhibits thereto)
and to
each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the 1933 Act and the 1933
Act
Regulations promulgated thereunder, as many copies of the Preliminary
Prospectus and the Prospectus and any supplement thereto as the
Underwriters may reasonably request.
|
|
(viii)
|
At
the Execution Time, the Underwriter shall have received an agreement
substantially in the form of Exhibit A hereto signed by the persons
listed
on Schedule C hereto (the “Lock-Up
Agreements”).
On or before the Closing Date, the Company shall deliver instructions
to
the Transfer Agent authorizing it to place appropriate stop transfer
orders on the Company’s ledgers, subject to the terms and conditions of
the Lock-Up Agreements.
|
|
(ix)
|
The
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the 1933 Act relating to, any shares
of
Common Stock or securities convertible into or exchangeable or exercisable
for any shares of Common Stock, or publicly disclose the intention
to make
any offer, sale, pledge, disposition or filing, without the prior
written
consent of the Underwriters for a period of 90 days (“Lock-Up
Period”)
after the Execution Date (as defined herein); provided, however,
that if
(A) 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
(B)
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 foregoing restrictions will 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 the Underwriters waive, in writing, such extension;
the
Company will provide the Underwriters and each stockholder subject
to the
Lock-Up Period pursuant to the lock-up letters described in Section
4(a)(viii) with prior notice of any such announcement that gives
rise to
an extension of the Lock-Up Period. In addition, the foregoing restriction
will not apply to the filing of a registration statement on Form
S-8 under
the 1933 Act to register securities issuable under the Company’s existing
employee benefit plans, issuance of Common Stock upon exercise of
an
existing option or warrant or conversion of existing preferred stock,
or
the Company’s granting of awards pursuant to the Company’s existing
employee benefit plans.
|
27
|
(x)
|
Prior
to the completion of the distribution of the Securities by the
Underwriters, neither the Company nor any of its officers or directors
nor
any of their respective affiliates (within the meaning of the Exchange
Act) will take, and the Company will use its reasonable best efforts
to prevent any 5% stockholder from taking, directly or indirectly,
any
action designed to, or which might in the future reasonably be expected
to, cause or result in, under the Exchange Act and the rules and
regulations thereunder or otherwise, stabilization or manipulation
of the
price of the Common Stock or any other reference security with respect
to
the Common Stock, whether to facilitate the sale or resale of the
Securities or otherwise, and the Company will, and will use reasonable
efforts to cause each of its affiliates to, comply with all applicable
provisions of Regulation M in connection with the distribution of
the
Securities.
|
|
(xi)
|
The
Company shall apply the net proceeds from the sale of the Securities
in
the manner, and subject to the conditions, set forth under “Use of
Proceeds” in the Prospectus. Except as described in the Prospectus, no
portion of the net proceeds will be used, directly or indirectly,
to
acquire any securities issued by the
Company.
|
|
(xii)
|
The
Company shall timely file all such reports, forms or other documents
as
may be required from time to time, under the 1933 Act, the Exchange
Act
and the rules and regulations promulgated thereunder and all such
reports,
forms and documents filed will comply as to form and substance in
all
material respects with the applicable requirements under the 1933
Act, the
Exchange Act and the rules and regulations promulgated
thereunder.
|
|
(xiii)
|
The
Company shall cause the Securities to be listed, subject to notice
of
issuance, on the NASDAQ Global Market and shall use its reasonable
best
efforts to maintain the listing of the Common Stock by the NASDAQ
Global
Market for so long as shares of Common Stock are listed on the NASDAQ
Global Market.
|
|
(xiv)
|
The
Company has not made and will not make, without the prior written
consent
of the Underwriters, any offer relating to the Securities using
supplementary
offering materials, including any materials
that would constitute an “issuer free writing prospectus”, as defined in
Rule 405 under the 1933 Act.
|
|
(b)
|
The
Selling Shareholder agrees with each of the Underwriters
that:
|
|
(i)
|
The
Selling Shareholder will not take, directly or indirectly, any action
designed, or which will constitute, or has constituted, or might
reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate
the
sale or resale of the Securities.
|
28
|
(ii)
|
The
Selling Shareholder will pay or cause to be paid all taxes, if any,
on the
transfer and sale of the Shares being sold by the Selling
Shareholder.
|
|
(iii)
|
Prior
to or concurrently with the execution and delivery of this Agreement,
to
execute and deliver to the Underwriters a Power of Attorney, a Custody
Agreement and a Lock-Up Agreement.
|
|
5.
|
Payment
of Expenses.
The Company will pay all costs and expenses in connection with the
proposed public offering of the Securities, including, but not limited
to
the following: fees and expenses of filing with the FINRA and the
Commission, printing and duplicating costs, all postage and mailing
expenses with respect to the transmission of prospectuses, registrar
and
transfer agent fees, “road show” travel related expenses for Company
personnel, including the full cost of any aircraft or other transportation
chartered in connection with the road show, its own counsel and accounting
fees, costs of independent due diligence investigations, bound volumes,
issue and transfer taxes, if any, “blue sky” filing fees, “blue sky” and
FINRA counsel fees and expenses, provided such “blue sky” and FINRA
counsel fees and expenses shall not exceed $10,000, and expenses
incurred
in connection with the listing of the Securities on the NASDAQ Global
Market. It is agreed that Underwriters’ Counsel shall perform the required
blue-sky legal services, if necessary. The Underwriters are authorized
upon consummation of the proposed offering to place customary “tombstone”
advertisements in publications of its choice at its expense.
|
|
6.
|
Conditions
of the Underwriters’ Obligations.
The obligations of the Underwriters hereunder shall be subject to
(A) the continuing accuracy of the representations and warranties of
the Company and the Selling Shareholder herein, as of the date hereof
and
as of the Closing Date as if such representations and warranties
had been
made on and as of the Closing Date, (B) the continuing accuracy of
the representations and warranties of the Company herein, as of the
date
hereof and as of any Option Closing Date, as if such representations
and
warranties had been made on and as of the Option Closing Date, (C)
the accuracy on and as of the Closing Date or any Option Closing
Date, if
applicable, of the statements of the officers of the Company and
the
Selling Shareholders made pursuant to the provisions hereof, (D) the
performance by the Company and the Selling Shareholder on and as
of the
Closing Date and any Option Closing Date, if applicable, of its covenants
and obligations hereunder, (E) the accuracy of the statements of the
Company and the Selling Shareholder made in any certificates pursuant
to
the provisions hereof, and (F) the following further
conditions:
|
|
(a)
|
The
Registration Statement, including any Rule 462(b) Registration Statement,
shall remain effective and on the Closing Date and, if applicable,
the
Option Closing Date, no stop order suspending the effectiveness of
the
Registration Statement shall have been issued under the 1933 Act
or
proceedings therefor initiated or threatened by the Commission, and
any
request on the part of the Commission for additional information
shall
have been complied with to the reasonable satisfaction of counsel
to the
Underwriters. The Prospectus shall be filed in the manner and within
the
time period required by Rule 424(b); and no stop order suspending
the
effectiveness of the Registration Statement shall have been issued
and no
proceedings for that purpose shall have been instituted or
threatened.
|
29
|
(b)
|
The
Underwriters shall not have advised the Company and the Selling
Shareholder that the Registration Statement, or any amendment thereto,
contains an untrue statement of fact which, in the Underwriters’
reasonable opinion, after consultation with legal counsel, is material
or
omits to state a fact which, in the Underwriters’ opinion, is material and
is required to be stated therein or is necessary to make the statements
therein not misleading, or that the Preliminary Prospectus, the
Prospectus, or any supplement thereto, contains an untrue statement
of
fact which, in the Underwriters’ opinion, is material, or omits to state a
fact which, in the Underwriters’ opinion, is material and is required to
be stated therein or is necessary to make the statements therein,
in light
of the circumstances under which they were made, not
misleading.
|
|
(c)
|
On
or prior to the Closing Date, the Underwriters shall have received
from
Underwriters’ Counsel, an opinion and letter with respect to the
Registration Statement, the Preliminary Prospectus, the Prospectus
and
other related matters as the Underwriters may reasonably request.
Underwriters’ Counsel shall have received such papers and information as
it requests to enable it to pass upon such
matters.
|
|
(d)
|
At
the Closing Date and, if applicable, the Option Closing Date, each
of the
Underwriters shall have received, the favorable opinions, in form
and
substance satisfactory to Underwriters’ Counsel, of each of the
following:
|
|
(i)
|
The
Company shall furnish an opinion of Xxxxxx & Xxxxxx LLP, U.S. counsel
for the Company, to the effect set forth in Exhibit B-I hereto and to
such further effect as Underwriters’ Counsel may reasonably
request;
|
|
(ii)
|
The
Company shall furnish an opinion of Xxxxxx & Xxxxxx LLP, special
counsel for the Company with respect to matters of Xxxxxxxx Islands
law,
to the effect set forth in Exhibit B-II hereto and to such further
effect as Underwriters’ Counsel may reasonably
request;
|
|
(iii)
|
The
Company shall furnish an opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxxxxx,
special counsel to the Company with respect to matters of Cypriot
law, to
the effect set forth in Exhibit B-III hereto and to such further
effect as Underwriters’ Counsel may reasonably request;
|
|
(iv)
|
The
Company shall furnish an opinion of Potamitis, Iliadou, Vekris,
Paparrigopoulos Law Partnership, special counsel to the Company with
respect to matters of Greek law, to the effect set forth in
Exhibit B-IV hereto and to such further effect as Underwriters’
Counsel may reasonably request;
|
|
(v)
|
The
Company shall furnish an opinion of Xxxxxx & Xxxxxx LLP, special
counsel to the Company with respect to matters of Liberian law, to
the
effect set forth in Exhibit B-V hereto and to such further effect as
Underwriters’ Counsel may reasonably request;
|
30
|
(vi)
|
The
Company shall furnish an opinion of Xxxxxxx & Associates, special
counsel to the Company with respect to matters of Panama law, to
the
effect set forth in Exhibit B-VI hereto and to such further effect as
Underwriters’ Counsel may reasonably request; and
|
|
(vii)
|
The
Selling Shareholder shall furnish on the Closing Date an opinion
of Xxxxxx
& Xxxxxx LLP, U.S. counsel for the Selling Shareholder, to the effect
set forth in Exhibit B-VII hereto and to such further effect as
Underwriters’ Counsel may reasonably
request.
|
|
(e)
|
At
any Option Closing Date, the Underwriters shall have received the
favorable opinions of the firms described in Section 6(d)(i)-(vi),
dated
such Option Closing Date, addressed to the Underwriters and in form
and
substance satisfactory to Underwriters’ Counsel, confirming, as of such
Option Closing Date, the statements made by such counsel in its opinion
dated the Closing Date.
|
|
(f)
|
Prior
to each of the Closing Date and any Option Closing Date, other than
as set
forth in the Registration Statement, the Preliminary Prospectus or
the
Prospectus, (i) there shall have been no adverse change nor
development involving a prospective adverse change in the condition,
financial or otherwise, prospects, stockholders’ equity or the business
activities of the Company and any of its Subsidiaries taken as a
whole,
whether or not in the ordinary course of business, from the latest
dates
as of which such condition is set forth in the Registration Statement,
the
Preliminary Prospectus and the Prospectus; (ii) there shall have been
no transaction, not in the ordinary course of business, entered into
by
the Company or any of its Subsidiaries, from the latest date as of
which
the financial condition of the Company and its Subsidiaries, taken
as a
whole, is set forth in the Registration Statement, the Preliminary
Prospectus and the Prospectus which is adverse to the Company and
its
Subsidiaries, taken as a whole; (iii) neither the Company or any of
its Subsidiaries, shall be in default under any provision of any
instrument relating to any outstanding indebtedness; (iv) since the
date of the Prospectus, neither the Company nor any of its Subsidiaries
shall have issued any securities (other than the Securities);
(v) since the date of the Prospectus, there shall have been no change
in the capital stock of the Company, or any material change in the
debt
(long or short term) or liabilities or obligations of the Company or
any of its Subsidiaries (contingent or otherwise); (vi) since the
date of the Prospectus, no amount of the assets of the Company or
any of
its Subsidiaries shall have been pledged or mortgaged; (vii) no
actions, suits or proceedings, at law or in equity, shall have been
pending or, to the best knowledge of the Company, threatened (or
circumstances giving rise to same) against the Company or any of its
Subsidiaries, or affecting any of its properties or business, before
or by
any court or federal, state or foreign commission, board or other
administrative agency wherein unfavorable decisions, rulings or findings
may have, individually or in the aggregate, a Material Adverse Effect;
and
(vii) no stop order shall have been issued under the 1933 Act and no
proceedings therefor shall have been initiated or, to the best knowledge
of the Company, threatened or contemplated by the Commission.
|
31
|
(g)
|
At
each of the Closing Date and any Option Closing Date, the Underwriters
shall have received a certificate of the Company signed by the principal
executive officer and by the principal financial officer of the Company,
dated the Closing Date or such Option Closing Date, as the case may
be, to
the effect that each such person has carefully examined the Registration
Statement, the Preliminary Prospectus, the Prospectus and this Agreement,
and that:
|
|
(i)
|
the
representations and warranties of the Company in this Agreement are
true
and correct in all respects as if made on and as of such Closing
Date or
Option Closing Date, as the case may be, and the Company has complied
with
all agreements and covenants and satisfied all conditions contained
in
this Agreement on its part to be performed or satisfied at or prior
to
such Closing Date or Option Closing Date, as the case may be;
|
|
(ii)
|
no
stop order suspending the effectiveness of the Registration Statement
or
any part thereof has been issued, and no proceedings for that purpose
have
been instituted or are pending or, to the best of each of such person’s
knowledge, after due inquiry, are contemplated or
threatened;
|
|
(iii)
|
the
Registration Statement, the Preliminary Prospectus and the Prospectus
and,
if any, each amendment and each supplement thereto, contain all statements
and information required to be included therein, and (A) neither
the
Registration Statement nor any amendment or supplement thereto includes
any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, (B) neither the Prospectus nor any supplement
thereto included any untrue statement of a material fact or omitted
to
state any material fact required to be stated therein or necessary
to make
the statements therein, in light of the circumstances under which
they
were made, not misleading and (C) as of the Applicable Time, the
Preliminary Prospectus did not include any 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 under which
they
were made, not misleading; and
|
|
(iv)
|
since
the date of the most recent financial statements included in the
Preliminary Prospectus and the Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or otherwise), earnings, business, prospects or properties
of
the Company and its Subsidiaries, taken as a whole, whether or not
arising
from transactions in the ordinary course of
business.
|
32
|
(h)
|
At
the Closing Date the Underwriters shall have received a certificate
of the
Selling Shareholder to the effect that the representations and warranties
of the Selling Shareholder in this Agreement are true and correct
in all
respects as if made on and as of the Closing Date and the Selling
Shareholder has complied with all agreements and covenants and satisfied
all conditions contained in this Agreement on its part to be performed
or
satisfied at or prior to the Closing
Date.
|
|
(i)
|
The
Company shall have requested and caused Deloitte, Hadjipavlou, Sofianos
& Cambanis S.A. to have furnished to the Underwriters letters, at the
Execution Time, the Closing Date and Option Closing Date, as the
case may
be, dated respectively as of the Execution Time, the Closing Date
and
Option Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, containing statements and information
of
the type ordinarily included in accountant’s “comfort letters” with
respect to the financial statements and certain financial information
contained in the Registration Statement, the Preliminary Prospectus
and
the Prospectus.
|
|
(j)
|
On
each of the Closing Date any Option Closing Date, there shall have
been
duly tendered to the Underwriters for their accounts the appropriate
number of Securities upon payment therefor by or on behalf of the
Underwriters.
|
|
(k)
|
No
order suspending the sale of the Securities in any jurisdiction designated
by the Underwriters pursuant to Section 4(a)(iii) hereof shall have
been
issued on either the Closing Date or any Option Closing Date, and
no
proceedings for that purpose shall have been instituted or shall
be
contemplated.
|
|
(l)
|
At
the Closing Date, the Securities shall have been approved for listing,
and
admitted to trading, on the NASDAQ Global Market, subject only to
official
notice of issuance.
|
|
(m)
|
If
required under its regulations, the FINRA shall have confirmed that
it has
not raised any objection with respect to the fairness and reasonableness
of the underwriting terms and
arrangements.
|
|
(n)
|
On
or prior to the date of this Agreement, each of the individuals identified
on Schedule
C
shall have executed and delivered to the Underwriters an agreement
substantially in the form of Exhibit
A
hereto; such agreements shall not have been amended or revoked; and
such
agreements shall be in full force and
effect.
|
|
(o)
|
Prior
to the Closing Date, the Company and the Selling Shareholder shall
have
furnished to the Underwriters such further information, certificates
and
documents as the Underwriters may reasonably
request.
|
|
(p)
|
The
Selling Shareholder shall have delivered to the Underwriters a copy
of the
duly executed Power of Attorney and a copy of the duly executed Custody
Agreement, in each case in form and substance satisfactory to the
Underwriters.
|
33
If
any of
the conditions specified in this Section 6, if not otherwise qualified as to
materiality, shall not have been fulfilled in all material respects, and if
otherwise qualified as to materiality, shall not have been fulfilled in all
respects, when and as provided in this Agreement, or if any of the opinions
and
certificates mentioned above or elsewhere in this Agreement, if not otherwise
qualified as to materiality shall not be in all material respects, and if
otherwise qualified as to materiality shall not be, reasonably satisfactory
in
form and substance to the Underwriters and Underwriters’ Counsel, this Agreement
and all obligations of the Underwriters hereunder may be canceled at, or at
any
time prior to, the Closing Date by the Underwriters. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The
documents required to be delivered by this Section 6 shall be delivered at
the
offices of Xxxxxx, Xxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000,
on the Closing Date and, if applicable, any Option Closing Date.
|
7.
|
Indemnification
and Contribution.
|
|
(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 the 1933 Act or the Exchange
Act,
from and against any and all losses, claims, damages, expenses or
liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the Exchange Act or other federal or
state
statutory law or regulation, at common law or otherwise, insofar
as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any failure to comply
with or violation of Xxxxxxx 0 xx xxx 0000 Xxx, (xx) any failure
by the
Company to comply with or violation of any state securities or blue
sky
laws in connection with the offering and sale of the Securities;
or (iii)
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in
any
amendment thereof, or in the Preliminary Prospectus or the Prospectus,
or
in any amendment thereof or supplement thereto, or arise out of or
are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred
by
them in connection with investigating or defending any such loss,
claim,
damage, liability or action and for reasonable amounts paid in settlement;
provided, however, that the Company will not be liable in any such
case to
the extent that any such loss, claim, damage or liability arises
out of or
is based upon any such untrue statement or alleged untrue statement
or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or
on
behalf of either Underwriter specifically for inclusion therein.
This
indemnity agreement will be in addition to any liability which the
Company
may otherwise have.
|
34
|
(b)
|
The
Selling Shareholder 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 the 1933 Act
or the
Exchange Act, from and against any and all losses, claims, damages,
expenses or liabilities, joint or several, to which they or any of
them
may become subject under the 1933 Act, the Exchange Act or other
federal
or state statutory law or regulation, at common law or otherwise,
insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in
the
Preliminary Prospectus or the Prospectus, or in any amendment thereof
or
supplement thereto, in each case, insofar as information in such
document(s) relates to the Selling Shareholder, or arise out of or
are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred
by
them in connection with investigating or defending any such loss,
claim,
damage, liability or action and for reasonable amounts paid in settlement;
provided, however, that the Selling Shareholder will not be liable
in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged
untrue
statement or omission or alleged omission made therein in reliance
upon
and in conformity with written information furnished by or on behalf
of
either Underwriter specifically for inclusion
therein.
|
|
(c)
|
Each
Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company and the Selling Shareholder, each of their respective
directors, each of their respective officers who sign the Registration
Statement, and each person who controls the Company or the Selling
Shareholder within the meaning of either the 1933 Act or the Exchange
Act
to the same extent as the indemnities to each Underwriter set forth
in
Section 7(a)(iii), but only with reference to written information
relating
to such Underwriter furnished to the Company by or on behalf of such
Underwriter specifically for inclusion in the documents referred
to in the
foregoing indemnity. This indemnity agreement will be in addition
to any
liability which any Underwriter may otherwise have. The Company and
the
Selling Shareholder acknowledge that the statements set forth under
the
heading “Underwriting”, (i) the sentences related to concessions and
reallowances and (ii) the paragraphs related to the over-allotment
option, commissions and discounts and stabilization
and short positions in
any Prospectus or the Registration Statement constitute the only
information furnished in writing by or on behalf of each Underwriter
for
inclusion in any Prospectus or the Registration
Statement.
|
35
|
(d)
|
Promptly
after receipt by an indemnified party under this Section 7 of notice
of
the commencement of any action, such indemnified party will, if a
claim in
respect thereof is to be made against the indemnifying party under
this
Section 7, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraphs (a), (b) or (c) above
unless and to the extent it did not otherwise learn of such action
and
such failure results in the forfeiture by the indemnifying party
of
substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraphs
(a), (b) or (c) above. The indemnifying party shall be entitled to
appoint
counsel of the indemnifying party’s choice at the indemnifying party’s
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not
thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set
forth
below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel to represent the indemnified party
in
an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall
bear
the reasonable fees, costs and expenses of such separate counsel
if
(A) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict
of
interest, (B) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there
may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party, (C) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent
the
indemnified party within a reasonable time after notice of the institution
of such action or (D) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise
or
consent to the entry of any judgment with respect to any pending
or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether
or not
the indemnified parties are actual or potential parties to such claim
or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising
out of such claim, action, suit or proceeding.
|
36
|
(e)
|
In
the event that the indemnity provided in paragraphs (a), (b) or (c)
of
this Section 7 is unavailable to or insufficient to hold harmless
an
indemnified party for any reason, the Company, the Selling Shareholder
and
the Underwriters agree to contribute to the aggregate losses, claims,
damages, expenses and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending
same) (collectively “Losses”) to
which the Company, the Selling Shareholder and one or both of the
Underwriters may be subject in such proportion as is appropriate
to
reflect the relative benefits received by the Company, the Selling
Shareholder and by the Underwriters from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except
as may be
provided in any agreement among underwriters relating to the offering
of
the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities
purchased
by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company,
the Selling Shareholder and the Underwriters shall contribute in
such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company, of the Selling Shareholder
and
of the Underwriters in connection with the statements or omissions
which
resulted in such Losses, or in connection with any failure to comply
with
or any violation of Section 5 of the 1933 Act (which shall be deemed
the
responsibility of the Company), or in connection with any failure
by the
Company to comply with or any violation any state securities or blue
sky
laws, as well as any other relevant equitable considerations. Benefits
received by each of the Company and the Selling Shareholder shall
be
deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by each of them and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover
page of
the Prospectus. Relative fault shall be determined by reference to,
among
other things, whether any untrue or any alleged untrue statement
of a
material fact or the omission or alleged omission to state a material
fact
relates to information provided by the Company, the Selling Shareholder
or
the Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
untrue
statement or omission, or in the case of any failure to comply with
or any
violation of Section 5 of the 1933 Act or of any state securities
or blue
sky laws, any such non-compliance or violation shall be deemed the
responsibility of the Company. The Company, the Selling Shareholder
and
the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other
method of
allocation that does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph
(e),
no person guilty of fraudulent misrepresentation (within the meaning
of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person who controls an Underwriter
within the meaning of either the 1933 Act or the Exchange Act and
each
director, officer, employee and agent of an Underwriter shall have
the
same rights to contribution as such Underwriter, and each person
who
controls the Company or the Selling Shareholder, respectively, within
the
meaning of either the 1933 Act or the Exchange Act, each officer
of the
Company or the Selling Shareholder and each director of the Company
or the
Selling Shareholder shall have the same rights to contribution as
the
Company, subject in each case to the applicable terms and conditions
of
this subsection 7(e).
|
|
8.
|
Representations
and Indemnities to Survive Delivery.
All representations, warranties, agreements, indemnities and other
statements of the Company or its officers, of the Selling Shareholder
or
its officers and of the Underwriters, contained in this Agreement
or
contained in certificates of officers of the Company and the Selling
Shareholder, as the case may be, submitted pursuant hereto, shall
be
deemed to be representations, warranties and agreements as of the
Closing
Date and as of any Option Closing Date, if applicable, and such
representations, warranties and agreements and the indemnity agreements
contained in Section 7 hereof, shall remain operative and in full
force
and effect regardless of any investigation made by or on behalf of
each
Underwriter, the Company and the Selling Shareholder or any controlling
person of any Underwriter, the Company or the Selling Shareholder,
and
shall survive the termination of this Agreement or the issuance,
sale and
delivery of the Securities to the
Underwriters.
|
37
|
9.
|
Termination.
This Agreement shall be subject to termination in the absolute discretion
of the Underwriters, by notice given to the Company and the Selling
Shareholder prior to delivery of and payment for the Securities,
if at any
time prior to such time (a) trading in any securities of the Company
shall have been suspended by the Commission or the NASDAQ Global
Market or
trading in securities generally on the New York Stock Exchange, the
NASDAQ
Global Market or American Stock Exchange shall have been suspended
or
limited or minimum prices shall have been established on any of such
exchanges or by such system or by order of the Commission, the FINRA
or
any governmental authority, (b) the Company shall have sustained a
loss material or substantial to the Company by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious
act
which, whether or not such loss shall have been insured, will, in
the
Underwriters’ opinion, make it impracticable or inadvisable to proceed
with the delivery of the Securities, (c) a banking moratorium shall
have
been declared either by U.S. federal, New York state or Xxxxxxxx
Islands
authorities, (d) any domestic or international event or act or
occurrence has materially disrupted, or in the Underwriters’ opinion, will
in the immediate future materially adversely disrupt, the financial
markets, (e) any material adverse change in the financial markets
shall have occurred, or (f) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a
national
emergency or war, or other calamity or crisis the effect of which
on
financial markets is such as to make it, in the sole judgment of
the
Underwriters, impractical or inadvisable to proceed with the offering
or
delivery of the Securities as contemplated by the
Prospectus.
|
If
this
Agreement shall be terminated pursuant to any of the provisions hereof
(otherwise than pursuant to Section 10 or 11 hereof), or if the sale of the
Securities provided for herein is not consummated because any condition to
the
obligations of the Underwriters set forth herein is not satisfied or because
of
any refusal, inability or failure on the part of the Company or the Selling
Shareholder to perform any agreement herein or comply with any provision hereof,
the Company and the Selling Shareholder will, subject to demand by the
Underwriters, reimburse the Underwriters for all reasonable out-of-pocket
expenses (including the reasonable fees and expenses of their counsel), incurred
by the Underwriters in connection herewith.
|
10.
|
Default
by an Underwriter.
If one of Underwriters shall fail to purchase and pay for any of
the
Securities agreed to be purchased by such Underwriter hereunder and
such
failure to purchase shall constitute a default in the performance
of its
obligations under this Agreement, the remaining Underwriter shall
be
obligated to take up and pay for (in the respective proportions which
the
amount of Securities set forth opposite its name in Schedule A hereto
bears to the aggregate amount of Securities set forth opposite the
name of
the remaining Underwriter) the Securities which the defaulting
Underwriter agreed but failed to purchase; provided, however, that
in the
event that the aggregate amount of Securities which the defaulting
Underwriter agreed but failed to purchase shall exceed 10% of the
aggregate amount of Securities set forth in Schedule A hereto, the
remaining Underwriter shall have the right to purchase all, but shall
not
be under any obligation to purchase any, of the Securities, and if
such
nondefaulting Underwriter does not purchase all the Securities, this
Agreement will terminate without liability to any non-defaulting
Underwriter, the Company or the Selling Shareholder. In the event
of a
default by an Underwriter as set forth in this Section 10, the Closing
Date shall be postponed for such period, not exceeding seven business
days, as the nondefaulting Underwriter shall determine in order that
the
required changes in the Registration Statement, the Preliminary Prospectus
and the Prospectus or in any other documents or arrangements may
be
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and the Selling
Shareholder and any nondefaulting Underwriter for damages occasioned
by
its default hereunder.
|
38
|
11.
|
Default
by the Company.
If the Company shall fail on the Closing Date or on any Option Closing
Date, as applicable, to sell and deliver the number of Securities
which it
is obligated to sell hereunder on such date, then this Agreement
shall
terminate (or, if such default shall occur with respect to any Option
Shares to be purchased on an Option Closing Date, the Underwriters
may, at
the Underwriters’ option, by notice from the Underwriters to the Company,
terminate the Underwriters’ obligation to purchase Option Shares from the
Company on such date) without any liability on the part of any
non-defaulting party other than pursuant to Sections 5 and 7 hereof.
No
action taken pursuant to this Section 11 shall relieve the Company
from
liability, if any, in respect of such
default.
|
|
12.
|
Tax
Disclosure.
Notwithstanding any other provision of this Agreement, immediately
upon
commencement of discussions with respect to the transactions contemplated
hereby, the Company and the Selling Shareholder (and each employee,
representative or other agent of the Company and the Selling Shareholder)
may disclose to any and all persons, without limitation of any kind,
the
tax treatment and tax structure of the transactions contemplated
by this
Agreement and all materials of any kind (including opinions or other
tax
analyses) that are provided to the Company and the Selling Shareholder
relating to such tax treatment and tax structure. For purposes of
the
foregoing, the term “tax treatment” is the purported or claimed federal
income tax treatment of the transactions contemplated hereby, and
the term
“tax structure” includes any fact that may be relevant to understanding
the purported or claimed federal income tax treatment of the transactions
contemplated hereby.
|
|
13.
|
Notices.
All notices and communications hereunder, except as herein otherwise
specifically provided, 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 directed
to
Wachovia Capital Markets, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000,
Attention: Xxxx X. Xxxxxxx (facsimile number: (000) 000-0000), and
Xxxxxxxxxxx & Co. Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx X. Xxxxxxxx, (Facsimile Number: (000) 000-0000),
with a copy to Xxxxxx, Xxxxx & Bockius LLP, 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxxxxx X. Xxxxxxx, Esq. (Facsimile Number:
(000) 000-0000). Notices to the Company shall be directed to the
Company at Euroseas Ltd., Aethrion Center, 40 Xx. Xxxxxxxxxxxx Xxxxxx,
000
00 Xxxxxxxx, Xxxxxx, Attention: Xxxxxxxxx
Xxxxxxx,
(Facsimile Number: 011
30 211 1804097). Notices to the Selling Shareholder
shall be directed to x/x Xxxxxxxx Xxx., Xxxxxxxx Xxxxxx, 00 Xx.
Xxxxxxxxxxxx Xxxxxx, 000 00 Xxxxxxxx, Xxxxxx, Attention: Xxxxxxxxx
Xxxxxxx,
(Facsimile Number: 011
30 211 1804097). Copies
of the notices to the Company and the Selling Shareholder shall be
directed to Xxxxxx & Xxxxxx LLP, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, XX,
00000, Attention: Xxxxxxxx Xxxxxxxxx, Esq. (Facsimile Number:
(000) 000-0000).
|
39
|
14.
|
No
Advisory or Fiduciary Relationship.
Each of the Company and the Selling Shareholder acknowledges and
agrees
that (a) the purchase and sale of the Securities pursuant to this
Agreement, including the determination of the public offering price
of the
Securities and any related discounts and commissions, is an arm’s length
commercial transaction among the Company, the Selling Shareholder
and the
Underwriters, (b) in connection with the offering contemplated hereby
and the process leading to such transaction each Underwriter is and
has
been acting solely as a principal and is not the agent or fiduciary
of the
Company or the Selling Shareholder or their respective shareholders,
creditors, employees or any other party, (c) no Underwriter has
assumed or will assume an advisory or fiduciary responsibility in
favor of
the Company or the Selling Shareholder 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
or the Selling Shareholder on other matters) and no Underwriter has
any
obligation to the Company with respect to the offering contemplated
hereby
except the obligations expressly set forth in this Agreement, (d) the
Underwriters and their respective affiliates may be engaged in a
broad
range of transactions that involve interests that differ from those
of the
Company and the Selling Shareholder and (e) the Underwriters have not
provided any legal, accounting, regulatory or tax advice with respect
to
the offering contemplated hereby.
|
|
15.
|
Parties.
This Agreement shall inure solely to the benefit of and shall be
binding
upon, the Underwriters, the Selling Shareholder, the Company and
the
controlling persons, directors and officers referred to in Section
7
hereof, and their respective successors, legal representatives and
assigns, and no other person shall have or be construed to have any
legal
or equitable right, remedy or claim under or in respect of or by
virtue of
this Agreement or any provisions herein contained. No purchaser of
Securities from any Underwriter shall be deemed to be a successor
by
reason merely of such purchase.
|
|
16.
|
Applicable
Law; Consent to Jurisdiction.
This Agreement shall be governed by, and construed in accordance
with, the
internal laws of the State of New York without regard to the principles
of
conflicts of laws. Each of the parties hereto irrevocably (i) agrees
that
any legal suit, action or proceeding arising out of or based upon
this
Agreement or the transactions contemplated hereby may be instituted
in any
state or federal court located in the Borough of Manhattan, The City
of
New York, New York (each a “New
York Court”),
(ii) waives, to the fullest extent it may effectively do so, any
objection
which it may now or hereafter have to the laying of venue of any
such
proceeding and (iii) submits to the exclusive jurisdiction of such
courts
in any such suit, action or proceeding. The Company and the Selling
Shareholder have appointed Xxxxxx & Xxxxxx LLP, New York, New York, as
its authorized agent (the “Authorized
Agent”)
upon whom process may be served in any such action arising out of
or based
on this Agreement or the transactions contemplated hereby which may
be
instituted in any New York Court by the Underwriters or by any person
who
controls the Underwriters, 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 and the
Selling Shareholder represent and warrant 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 or the Selling
Shareholder shall be deemed, in every respect, effective service
of
process upon the Company or the Selling Shareholder, as the case
may
be.
|
40
|
17.
|
Counterparts.
This Agreement may be executed in any number of counterparts, each
of
which shall be deemed to be an original, and all of which taken together
shall be deemed to be one and the same agreement.
|
|
18.
|
Headings.
The section headings used herein are for convenience only and shall
not
affect the construction hereof.
|
|
19.
|
Entire
Agreement; Amendments.
This Agreement constitutes the entire agreement of the parties hereto
and
supersedes all prior written or oral agreements, understandings and
negotiations with respect to the subject matter hereof. This Agreement
may
not be amended except in a writing, signed by the Underwriters, the
Company and the Selling
Shareholder.
|
[Remainder
of this page intentionally left blank.]
41
If
the
foregoing correctly sets forth the understanding among the Underwriters, the
Company and the Selling Shareholder, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among us.
Very
truly yours,
By: /s/
Xxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxx X. Xxxxxx
Title:
Chairman and Chief Executive Officer
Confirmed
and accepted as of
the
date
first above written.
WACHOVIA
CAPITAL MARKETS, LLC.
By:_/s/
Xxxx Beyer__________________
Name:
Xxxx Xxxxx
Title:
Managing Director
XXXXXXXXXXX
& CO. INC.
By:_/s/
Xxxxx X. Williams_____________
Name:
Xxxxx X. Xxxxxxxx
Title:
Managing Director
FRIENDS
INVESTMENT COMPANY INC.
By:
Arisitdes X. Xxxxxx, as Attorney-in-Fact
/s/
Xxxxxxxxx X. Xxxxxx
SCHEDULE
A
|
|
No.
of Securities
|
|
to
be Purchased
|
|
|
Wachovia
Capital Markets, LLC
|
3,478,750
|
|
Xxxxxxxxxxx
& Co. Inc.
|
2,846,250
|
|
TOTAL:
|
6,325,000
|
A-1
SCHEDULE
B
Subsidiaries
|
Name
|
Jurisdiction
|
|
Alcinoe
Shipping Limited
|
Republic
of Cyprus
|
|
Allendale
Investments S.A.
|
Republic
of Panama
|
|
Alterwall
Business Inc.
|
Republic
of Panama
|
|
Cove
Apparel, Inc.
|
Delaware
|
|
Xxxxx
Trading Ltd.
|
Republic
of the Xxxxxxxx Islands
|
|
Emmentaly Business
Inc.
|
Republic
of Panama
|
|
Eternity
Shipping Ltd.
|
Republic
of the Xxxxxxxx Islands
|
|
Xxxxxx
Shipping Limited
|
Republic
of the Xxxxxxxx Islands
|
|
Manolis
Shipping Ltd.
|
Republic
of the Xxxxxxxx Islands
|
|
Oceanpride
Shipping Limited
|
Republic
of Cyprus
|
|
Oceanopera
Shipping Limited
|
Republic
of Cyprus
|
|
Pilory
Associates Corp.
|
Republic
of Panama
|
|
Prospero
Maritime Inc.
|
Republic
of the Xxxxxxxx Islands
|
|
Salina
Shipholding Corp.
|
Republic
of the Xxxxxxxx Islands
|
|
Searoute
Maritime Limited
|
Republic
of Cyprus
|
|
Tiger
Navigation Corp.
|
Republic
of the Xxxxxxxx Islands
|
|
Trust
Navigation Corp.
|
Republic
of Liberia
|
|
Xenia
International Corporation
|
Republic
of the Xxxxxxxx Islands
|
|
Xingang
Shipping Ltd.
|
Republic
of Liberia
|
B-1
SCHEDULE
C
List
of Person Subject to the Lock-Up
C-1
EXHIBIT
A
Form
of Lock-Up Agreement
Exhibit
A-1
EXHIBIT
B-I
Matters
to be covered by U.S. Company Counsel Opinion
Exhibit
B-1
EXHIBIT
B-II
Matters
to be covered by Xxxxxxxx Islands Company Counsel Opinion
Exhibit
B-2
EXHIBIT
B-III
Matters
to be covered by Cypriot Company Counsel Opinion
Exhibit
B-3
EXHIBIT
B-IV
Matters
to be covered by Greek Company Counsel Opinion
Exhibit
B-4
EXHIBIT
B-V
Matters
to be covered by Liberian Company Counsel Opinion
Exhibit
B-5
EXHIBIT
B-VI
Matters
to be covered by Panamanian Company Counsel Opinion
Exhibit
B-6
EXHIBIT
B-VII
Matters
to be covered by the Selling Shareholder’s Counsel Opinion
Exhibit
B-7
