Exhibit 1.1
3,603,604 SHARES
XXXXXXX SHIPPING LTD.
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
April 16, 2002
XXXXXXXXX & COMPANY, INC.
LAZARD FRERES & CO. LLC
As Representatives of the Several Underwriters,
c/x Xxxxxxxxx & Company, Inc.,
00000 Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
1. INTRODUCTORY. Xxxxxxx Shipping Ltd., a corporation incorporated
under the laws of the Republic of Liberia ("COMPANY"), proposes to issue and
sell 3,603,604 shares ("FIRM SECURITIES") of its Common Stock ("SECURITIES") and
also proposes to issue and sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 540,540 additional shares ("OPTIONAL
SECURITIES") of its Securities as set forth below. The Firm Securities and the
Optional Securities are herein collectively called the "OFFERED SECURITIES". The
Company hereby agrees with the several Underwriters named in Schedule A hereto
("UNDERWRITERS") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the several Underwriters that:
(a) A registration statement on Form F-3 (No.333-85408)
relating to the Offered Securities, including a form of prospectus, has
been filed with the Securities and Exchange Commission ("COMMISSION")
and either (i) has been declared effective under the Securities Act of
1933 ("ACT") and is not proposed to be amended or (ii) is proposed to
be amended by amendment or post-effective amendment. If such
registration statement ("INITIAL REGISTRATION STATEMENT") has been
declared effective, either (i) an additional registration statement
("ADDITIONAL REGISTRATION STATEMENT") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule
462(b) ("RULE 462(B)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (ii) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(C)") under the
Act or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect
to the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional registration
statement means (i) if the Company has advised the Representatives that
it does not propose to amend such registration statement, the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c),
or (ii) if the Company has advised the Representatives that it proposes
to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with
respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
materials incorporated by reference therein, including all information
contained in the additional registration statement (if any) and deemed
to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(B)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(B)") under the Act or (if no such filing is
required), including all materials incorporated by reference therein,
as included in a Registration Statement, is hereinafter referred to as
the "PROSPECTUS". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (i)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) on the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed, or will conform, in all
respects to the requirements of the Act and the Rules and Regulations
and did not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective
Date of the Additional Registration Statement in which the Prospectus
is included, each Registration Statement and the Prospectus will
conform, in all respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all respects to the requirements of
the Act and the Rules and Regulations, neither of such documents will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do not
apply to statements in or omissions from a Registration Statement or
the Prospectus based upon written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(b) hereof.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Republic of Liberia,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification except where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the
business, condition (financial or otherwise), properties or results of
operations of the Company and its subsidiaries taken as a whole
("MATERIAL ADVERSE EFFECT").
(d) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except where the
failure to be so qualified would not have a Material Adverse Effect;
all of the issued and outstanding capital stock of each subsidiary of
the Company has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each subsidiary owned
by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(e) The Offered Securities and all other outstanding
securities of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date (as defined below), such Offered
Securities will have been, validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Offered Securities.
(f) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(g) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to a
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the Act.
(h) The Offered Securities have been approved for listing
subject to notice of issuance on the New York Stock Exchange.
(i) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
in connection with the issuance and sale of the Offered Securities by
the Company, except such as have been obtained and made under the Act
and such as may be required under state securities laws or for the
consummation of the transactions contemplated by the documents set
forth in Schedule B hereto ("TRANSACTION DOCUMENTS"), except for these
approvals required in connection with the delivery of any vessel as
contemplated therein and the registration of such vessels under the
laws and flag of Liberia, Cyprus or Panama, as the case may be, which
the Company expects to obtain upon delivery of such vessels.
(j) Except as disclosed in the Prospectus, under the current
laws and regulations of the Republic of Liberia and any political
subdivision thereof, all dividends and other distributions declared and
payable on the Offered Securities may be paid by the Company to the
holder thereof in United States dollars that may be converted into any
foreign currency and all such payments made to holders thereof or
therein who are non-residents of the Republic of Liberia will not be
subject to income, withholding or other taxes under the laws and
regulations of the Republic of Liberia or any political subdivision or
taxing authority thereof or therein and will otherwise be free and
clear of any other tax, duty, withholding or deduction in or any
political subdivision or taxing authority thereof or therein and
without the necessity of obtaining any governmental authorization in
the Republic of Liberia or any political subdivision or taxing
authority thereof or therein.
(k) The execution, delivery and performance of this Agreement
and any Transaction Documents, the issuance and sale of the Offered
Securities and the consummation of the transactions contemplated by the
Transaction Documents will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Company or any subsidiary of the Company or any of their properties, or
any material agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is
bound or to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company or any
such subsidiary, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement.
(l) This Agreement has been duly authorized, executed and
delivered by the Company.
(m) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all vessels and all
other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(n) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies ("PERMITS") necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(o) Neither the Company nor any of its subsidiaries is
involved in any labor dispute, disturbance, lockout, slowdown or
stoppage of employees, and no such dispute or disturbance is threatened
or imminent. The Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers,
including, but not limited to, suppliers of officers and crew to its
vessels that could reasonably be expected to result in a Material
Adverse Effect on the Company and its subsidiaries taken as a whole or
materially and adversely affect the ability of the Company to perform
its obligations under this Agreement.
(p) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any Intellectual Property Rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(q) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws (as defined
below) on the business, operations and properties of the Company and
its subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties, scrapping of vessels or compliance with Environmental Laws,
or any Permit, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review,
except as disclosed in the Prospectus the Company has reasonably
concluded that the Company and its subsidiaries (i) are in compliance
in all material respects with all applicable foreign, United States
federal, state and local environmental laws, rules, regulations,
treaties, statutes and codes relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants including petroleum, crude oil or any
fraction thereof ("ENVIRONMENTAL LAWS"), (ii) have received all Permits
required of them under applicable Environmental Laws to conduct their
business as currently conducted, (iii) are in compliance in all
material respects with all terms and conditions of any such Permit and
(iv) have not received notice of any actual or potential liability for
the investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or contaminants
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect. No action, proceeding, revocation proceeding, writ,
injunction or claim is pending or, to the knowledge of the Company,
threatened, relating to the Environmental Laws or to the Company's or
any of its subsidiaries' activities involving Hazardous Materials.
"Hazardous Materials" means any material or substance (i) that is
prohibited or regulated by any Environmental Law or (ii) that has been
designated or regulated by any domestic or foreign governmental body or
authority as radioactive, toxic, hazardous or otherwise a danger to
health, reproduction or the environment. Neither the Company nor any of
its subsidiaries has been named as a "potentially responsible party"
under the Comprehensive Environmental Response, Compensation and
Liability act of 1980, as amended.
(r) Neither the Company nor any of its subsidiaries has
engaged in the generation, use, manufacture, transportation or storage
of any Hazardous Materials on any of the Company's or any of its
subsidiaries' properties or former properties, except in compliance in
all material respects with all applicable Environmental Laws except
where failure to so comply would not have a Material Adverse Effect. No
Hazardous Materials have been treated or disposed of on any of the
Company's or any of its subsidiaries' properties or on properties
formerly owned or leased
by the Company or any of its subsidiaries during the time of such
ownership or lease, except in compliance in all material respects with
Environmental Laws.
(s) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings to the Company's knowledge are
threatened or contemplated.
(t) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis and the schedules included in each Registration
Statement present fairly the information required to be stated therein.
(u) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(v) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(w) Subject to the qualifications stated in the Prospectus,
the Company is not currently and has never previously been a passive
foreign investment company for purposes of Section 1297(a) of the
Internal Revenue Code of 1986, as amended (the "CODE").
(x) The Company is not currently and has never previously been
either a personal holding company or a foreign personal holding company
for U.S. Federal income tax purposes.
(y) The Company and each of its subsidiaries carry insurance
covering their respective vessels, properties, operations, personnel
and businesses, in such amounts and covering such risks as is adequate
for the conduct of its business and is customary to its business. They
also maintain appropriate levels of environmental damage and pollution
insurance coverage, consistent with standard industry practice. None of
the Company or any of its subsidiaries has received written notice from
any insurer or agent of such insurer that any material capital
improvements or other material expenditures are required or necessary
to be made in order to continue such insurance.
(z) No payments or inducements have been made or given,
directly or indirectly, to any federal or local official or candidate
for, any Federal or state office in the United States or foreign
offices by the Company or any of its subsidiaries, by any of their
officers, directors, employees or agents or, to the best knowledge of
the Company, by any other person in connection with any opportunity,
Permit, certificate, consent, order, approval, waiver or other
authorization relating to the business of the Company or any of its
subsidiaries, except for such payments or inducements as were lawful
under applicable written laws, rules and regulations. Neither the
Company nor any of its subsidiaries, nor any director, officer, agent,
employee or, to the knowledge of the Company,
other person associated with or acting on behalf of the Company or any
of its subsidiaries, (i) has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment
to any government official or employee from corporate funs; (iii)
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, unlawful rebate, payoff,
influence payments, kickback or other unlawful payment in connection
with the business of the Company or any of its subsidiaries.
(aa) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization, (ii) transactions are
appropriately recorded to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management's general or specific authorization,
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences and (v) assets are property accounted for
and safeguarded against loss from unauthorized use. The Company has not
received from its independent public accountants a letter describing or
been informed by them of, a substantial or material deficiency in the
Company's internal accounting controls in connection with their audit
of the Company's financial statements incorporated by reference in the
Registration Statement, the preliminary prospectus and the Prospectus.
(bb) There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company or any of its subsidiaries to
or for the benefit of any of the officers or directors or stockholders
of the Company or any of its subsidiaries or any of the members of the
families of any of them, except as disclosed in the Registration
Statement, the preliminary prospectus and the Prospectus.
(cc) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any material loss or interference with its
business from fire, explosion, flood, storm or other calamity, whether
or not covered by insurance.
(dd) The Company's only direct and indirect subsidiaries are
Ariel Shipping Corporation, Colmar Ltd., Nedimar Ltd., Kliomar Ltd.,
Polmar Ltd., Cleliamar Ltd., Jacamar Ltd., Primar Shipping Ltd., Palmar
Maritime Ltd., Keymar Ltd., Takamar Ltd., Rubymar Ltd., Rosemar Ltd.,
Pearlmar Ltd., Jademar Ltd., Luxmar Ltd., Xxxxx Ltd., Limar Ltd., Almar
Ltd., Xxxxx Ltd., Camar Ltd., Promar Ltd., Ermar Ltd., Allenmar Ltd.,
Capemar Ltd., Petromar Ltd., Ambermar Ltd. (collectively, "Ship-Holding
Subsidiaries"), Xxxxxxx Tankers (Management) Ltd., Xxxxxxx Tankers (UK)
Ltd. and Martank Shipping Holdings Ltd.
(ee) The statistical and market-related data included in the
Prospectus is based on or derived from sources which the Company
believes to be reliable and accurate in all material respects.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $____ per share, that number of Firm
Securities set forth opposite the names of the Underwriters in Schedule A
hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or
checks or wire transfer to an account at a bank acceptable to Jefferies &
Company, Inc. ("Jefferies") drawn to the order of the Company at the office of
Cravath, Swaine & Xxxxx, at 10:00 A.M., New York time, on April 19, 2002, or at
such other time not later than seven full business days thereafter as Jefferies
and the Company shall determine, such time being herein referred to as the
"FIRST CLOSING DATE". For purposes of Rule 15c6-1 under the Securities Exchange
Act of 1934, the First Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering. The
certificates for the Firm Securities so to be delivered will be in definitive
form, in such denominations and registered in such names as Jefferies requests
and will be made available for checking and packaging at the above office of
Cravath, Swaine & Xxxxx at least 24 hours prior to the First Closing Date.
In addition, upon written notice from Jefferies given to the Company
from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per Security to be paid for the Firm
Securities. The Company agrees to sell to the Underwriters the number of shares
of Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Securities set forth opposite such
Underwriter's name bears to the total number of shares of Firm Securities
(subject to adjustment by Jefferies to eliminate fractions) and may be purchased
by the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by Jefferies to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by
Jefferies but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representatives for the accounts of the several Underwriters, against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to
Jefferies drawn to the order of the Company, at the above office of Cravath,
Swaine & Xxxxx. The certificates for the Optional Securities being purchased on
each Optional Closing Date will be in definitive form, in such denominations and
registered in such names as Jefferies requests upon reasonable notice prior to
such Optional Closing Date and will be made available for checking and packaging
at the above office of Cravath, Swaine & Xxxxx at a reasonable time in advance
of such Optional Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by Jefferies, subparagraph (4)) of Rule 424(b) not later than the
earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Company will advise Jefferies promptly of any such filing pursuant
to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by Jefferies.
(b) The Company will advise Jefferies promptly of any proposal
to amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without Jefferies' consent; and the Company will also advise Jefferies
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify Jefferies of such event and will
promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither Jefferies'
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth
in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (two of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as Jefferies requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other documents shall be so furnished as
soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
Jefferies designates and will continue such qualifications in effect so
long as required for the distribution, provided however that the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to serve of process in any jurisdiction where it
is not so qualified or required to file such a consent.
(g) During the period of 5 years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Securities Exchange Act of 1934 or
mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as Jefferies may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, for any filing
fees and other expenses (including fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as Jefferies designates and
the printing of memoranda relating thereto, for the filing fee incident
to the review by the National Association of Securities Dealers, Inc.
of the Offered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(i) The Company will indemnify and hold harmless the
Underwriters against any documentary, stamp or similar issue tax,
including any interest and penalties, on the creation, issue and sale
of the Offered Securities and on the execution and delivery of this
Agreement. All payments to be made by the Company hereunder shall be
made without withholding or deduction for or on account of any present
or future taxes, duties or governmental charges whatsoever unless the
Company is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Company shall pay such additional amounts
as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made.
(j) For a period of 180 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of Jefferies.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of Xxxxxx Xxxxxxxx LLP
confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the audited financial statements
examined by them and included or incorporated by reference in
the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) based upon a reading of the latest unaudited
financial statements made available by the Company, the
procedures of the AICPA for a review of interim financial
information as described in Statement of Auditing Standards
No. 71, reading of minutes and inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters and certain other limited procedures
requested by the Underwriters and described in detail in such
letter, nothing came to their attention that caused them to
believe that (A) any unaudited financial statements included
or incorporated by reference in the Prospectus did not comply
as to form in all material respects with applicable accounting
requirements, (B) any material modifications needed to be made
to the unaudited financial statements included or incorporated
by reference in the Prospectus for them to be in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of any audited
financial statements included or incorporated by reference in
the Prospectus;
(iii) based upon the procedures detailed in such
letter with respect to the period subsequent to the date of
the last available balance sheet, including reading of minutes
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters, nothing
came to their attention that caused them to believe that (A)
at a specified date not more than three business days prior to
the date of such letter, there was any change in capital
stock, increase in long-term debt or decrease in net current
assets or decrease in total fixed assets as compared with the
amounts shown in the March 31, 2002 unaudited balance sheet
included or incorporated by reference in the Prospectus or
(B) for the period from March 31, 2002 to a specified date not
more than three business days prior to the date of such
letter, there were any decreases, as compared with the
corresponding period in the preceding year, in net sales,
income from operations, except in all instances for changes,
increases or decreases that the Prospectus disclosed as having
occurred or which are set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said explanation
is not deemed necessary by the Underwriters;
(iv) based upon the procedures detailed in such
letter with respect to the unaudited summarized interim
information for subsequent periods, nothing came to their
attention that caused them to believe that (A) any unaudited
summarized interim information does not comply as to form in
all material respects with generally accepted accounting
principles or (B) the dollar amounts were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited financial statements;
(v) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter; and
(vi) they performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company) set forth in the Prospectus agrees with the
accounting records of the Company, excluding any questions of
legal interpretation.
For purposes of this section, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement, "REGISTRATION STATEMENTS" shall mean the initial
registration statement as proposed to be amended by the amendment or
post-effective amendment to be filed shortly prior to its Effective
Time, (ii) if the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement but the
Effective Time of the Additional Registration is subsequent to such
execution and delivery, "REGISTRATION STATEMENTS" shall mean the
Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective
Time, and (iii) "PROSPECTUS" shall mean the prospectus included in the
Registration Statements. All financial statements and schedules
included in material incorporated by reference into the Prospectus
shall be deemed included in the Registration Statements for purposes of
this subsection.
(b) The Company shall have furnished to the Underwriters a
letter (the "Bring-Down Letter") of Xxxxxx Xxxxxxxx LLP, addressed to
the Initial Purchasers and dated the Closing Date (i) confirming that
they are independent public accountants with respect to the Company and
its subsidiaries within the meaning of Rule 101 of the Code of
Professional Conduct of the AICPA and its interpretations and rulings
thereunder, (ii) stating, as of the date of the Bring-Down Letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than three business days prior
to the date of the Bring-Down Letter), that the conclusions and
findings of such accountants with respect to the financial information
and other matters covered by its initial comfort letter are accurate
and (iii) confirming in all material respects the conclusions and
findings set forth in its initial comfort letter. At the time of
delivery of such letter, Xxxxxx Xxxxxxxx audit opinions shall continue
to be acceptable to the Securities and Exchange Commission, subject
only to compliance with the conditions set forth in SEC Release No.
33-8070.
(c) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by Jefferies. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by Jefferies. If the Effective
Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement, the Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations
and Section 5(a) of this Agreement. Prior to such Closing Date, no stop
order suspending the effectiveness of a Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Representatives,
shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal, New York, Liberian or Greek
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States, the Republic of Liberia or Greece is involved,
any declaration of war by either the U.S. Congress or any applicable
authority of Greece or Liberia, or any change in financial markets or
any other substantial national or international calamity or emergency
if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such outbreak,
escalation, declaration, change, calamity or emergency makes it
impractical or inadvisable to proceed with the completion of the public
offering or the sale of and payment for the Offered Securities.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx & Xxxxxx LLP, U.S. counsel for the
Company, to the effect that:
(i) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act;
(ii) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940;
(iii) The statements related to tax matters in the
Prospectus under the heading "Company Specific Risk Factors"
and the statements in Form 20-F filed with the Commission on
April 8, 2002 under the heading "Taxation" to the extent they
constitute summaries of matters of law or regulation, legal
conclusions or documents or proceedings referred to therein
fairly summarize the matters described therein in all material
respects and the Company should not be treated as a passive
foreign investment company within the meaning Section 1297(a)
of the Code;
(iv) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
of the United States or the State of New York is required for
the consummation of the transactions contemplated by this
Agreement in connection with the issuance or sale of the
Offered Securities by the Company, except such as have been
obtained and made under the Act and such as may be required
under state securities laws or for the consummation of the
transactions contemplated by any Transaction Documents, except
for those approvals required in connection with the delivery
of any vessel as contemplated therein and the registration of
such vessels under the law and flag of Liberia, Cyprus or
Panama, as the case may be;
(v) The execution, delivery and performance of this
Agreement and the Transaction Documents, the issuance and sale
of the Offered Securities and the consummation of the
transactions contemplated by the Transaction Documents will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any
material agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary, and the Company
has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement;
(vi) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, the Additional Registration Statement (if any)
was filed and became effective under the Act as of the date
and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and
each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; such counsel have no reason to believe that any
part of a Registration Statement or any amendment thereto, as
of its effective date or as of such Closing Date, contained
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 the light of the
circumstances under which they were made, not misleading or
that the Prospectus or any amendment or supplement thereto, as
of its issue date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; the descriptions in the
Registration Statements and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be
shown; and such counsel do not know of any legal or
governmental proceedings required to be described in a
Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in a Registration Statement
or the Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as
to the financial statements or other financial data contained
in the Registration Statements or the Prospectus;
(vii) This Agreement has been duly authorized,
executed and delivered by the Company;
(viii) The Company possesses all certificates,
authorities or permits issued by, and has made all filings
with, the appropriate governmental agency or body of the
United States and the State of New York, if any, necessary or
desirable to own its properties and to conduct the business
now operated by it or proposed to be operated by it as
described in the Prospectus;
(ix) No stamp or other issuance or transfer taxes or
duties and no capital gains, income, withholding or other
taxes are payable by or on behalf of the Underwriters to the
United States or the State of New York or to any political
subdivision or taxing authority thereof or therein in
connection with the sale and delivery by the Company of the
Offered Securities to or for the respective accounts of the
Underwriters; and
(x) Other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries would
individually or in the aggregate have a Material Adverse
Effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the
Company and any of its subsidiaries taken as a whole.
Furthermore, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by any governmental
agency or body or any court or threatened by others.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx & Xxxxxx LLP, Special Liberian counsel for
the Company, to the effect that:
(i) Each of the Company, the Ship-Holding
Subsidiaries and Xxxxxxx Tankers (Management) Ltd. has been
duly incorporated or organized, is validly existing in good
standing under the laws of the Republic of Liberia and has the
power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) The Offered Securities delivered on such Closing
Date and all other outstanding shares of the Common Stock of
the Company have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the
Securities;
(iii) All of the issued shares of capital stock of
each of the Ship-Holding Subsidiaries and Xxxxxxx Tankers
(Management) Ltd. are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims;
(iv) No stamp or other issuance or transfer taxes or
duties and no capital gains, income, withholding or other
taxes are payable by or on behalf of the Underwriters to the
Republic of Liberia or to any political subdivision or taxing
authority thereof or therein in connection with the sale and
delivery by the Company of the Offered Securities to or for
the accounts of the Underwriters;
(v) The statements in the Form 20-F filed with the
Commission on April 8, 2002 under the heading "Taxation" to
the extent they constitute summaries of matters of law or
regulation, legal conclusions or
documents referred to therein fairly summarize the matters
described therein in all material respects;
(vi) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
of the Republic of Liberia is required for the consummation of
the transactions contemplated by this Agreement in connection
with the issuance or sale of the Offered Securities by the
Company or for the consummation of the transactions
contemplated by the Transaction Documents, except for those
approvals required in connection with the delivery of any
vessel as contemplated therein and the registration of any
such vessels under the law and flag of the Republic of
Liberia;
(vii) The execution, delivery and performance of this
Agreement and the Transaction Documents, the issuance and sale
of the Offered Securities and the consummation of the
transactions contemplated by the Transaction Documents will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
or any court of the Republic of Liberia having jurisdiction
over the Company, the Ship-Holding Subsidiaries or Xxxxxxx
Tankers (Management) Ltd. or any of their properties; the
execution, delivery and performance of this Agreement and the
Transaction Documents, the issuance and sale of the Offered
Securities and the consummation of the transactions
contemplated by the Transaction Documents by the Company will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default under the charter or
by-laws of the Company, the Ship-Holding Subsidiaries or
Xxxxxxx Tankers (Management) Ltd. and the Company has full
corporate power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement;
(viii) The Company, the Ship-Holding Subsidiaries and
Xxxxxxx Tankers (Management) Ltd. have all franchises,
permits, authorizations, approvals and orders and other
licenses and concessions of and from any governmental agency
or body or any court of the Republic of Liberia that are
necessary to own or lease their other properties and conduct
their businesses as described in the Prospectus;
(ix) Insofar as matters of Liberian law are
concerned, the Registration Statement and the filing of the
Registration Statement with the Commission have been duly
authorized by and on behalf of the Company; and the
Registration Statement has been duly executed pursuant to such
authorization by and on behalf of the Company;
(x) The Company's agreement to the choice of law
provisions set forth in Section 14 hereof will be recognized
by the courts of the Republic of Liberia; the Company can xxx
and be sued in its own name under the laws of Liberia; the
irrevocable submission of the Company to the exclusive
jurisdiction of a New York Court, the waiver by the Company of
any objection to the venue of a proceeding of a New York Court
and the agreement of the Company that this Agreement shall be
governed by and construed in accordance with the laws of the
State of New York are legal, valid and binding; service of
process effected in the manner set forth in Section 14 hereof
will be effective, insofar as the law of the Republic of
Liberia is concerned, to confer valid personal jurisdiction
over the Company; and judgment obtained in a New York Court
arising out of or in relation to the obligations of the
Company under this Agreement would be enforceable against the
Company in the courts of Republic of Liberia;
(xi) Subject to the exception for criminal
proceedings, the indemnification and contribution provisions
set forth in Section 7 do not contravene the public policy or
laws of the Republic of Liberia;
(xii) 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
Liberia be paid in United States Dollars that may be freely
paid by the Company, and all such dividends and other
distributions will not be subject to withholding or other
taxes under the laws and regulations of the Republic of
Liberia and are otherwise free and clear of any other tax,
withholding or deduction in the Republic of Liberia and
without the necessity of obtaining any authorization of any
governmental agency or body or any court in the Republic of
Liberia;
(xiii) This Agreement has been duly authorized,
executed and delivered by the Company; and
(xiv) No governmental official or agency of the
Republic of Liberia has any retroactive veto with respect to
any of the transactions contemplated by this Agreement or any
obligations of the Company under this Agreement.
(g) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx Xxxx, Special U.K. counsel for the
Company, to the effect that:
(i) Xxxxxxx Tankers (UK) Ltd. has been duly
incorporated or organized, is validly existing in good
standing under the laws of the United Kingdom and has the
power and authority to lease its properties and conduct its
business as described in the Prospectus;
(ii) All of the issued shares of capital stock of
Xxxxxxx Tankers (UK) Ltd. are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances,
equities or claims of record;
(iii) There are no legal or governmental proceedings
pending before any governmental agency or body or any court in
the United Kingdom to which Xxxxxxx Tankers (UK) Ltd. is a
party or of which any property of Xxxxxxx Tankers (UK) Ltd. is
the subject;
(iv) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
of the United Kingdom is required for the consummation of the
transactions contemplated by this Agreement in connection with
the issuance or sale of the Offered Securities by the Company;
and
(v) Each of the Transaction Documents that states
that it is to be governed by English law and to which the
Company or any subsidiary of the Company is a party
constitutes a legal, valid and binding obligation of the
Company or any subsidiary of the Company, as the case may be,
enforceable against the Company or any subsidiary of the
Company, as the case may be, in accordance with its terms,
except as (A) such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, fraudulent
conveyance, reorganization, arrangement, moratorium or similar
laws relating to or affecting the enforcement of creditors'
rights generally and may be subject to general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and (B) the
availability of equitable remedies may be
limited by equitable principles of general applicability
(provided that such counsel need not express an opinion with
respect to Section 7).
(h) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx, Westwood & Riegels, Special British
Virgin Islands counsel for the Company, to the effect that:
(i) Each of Marship Tankers (Holdings) Ltd. and
Martank Shipping Holdings Ltd. has been duly incorporated
or organized, is validly existing in good standing under
the laws of the British Virgin Islands and has the power
and authority to own its properties and conduct its
business as described in the Prospectus; and
(ii) All of the issued shares of capital stock of
Marship Tankers (Holdings) Ltd. Martank Shipping Holdings
Ltd. are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(i) The Representatives shall have received from Xxxxxxx,
Xxxxx & Xxxxx, Special Panamanian counsel for the Company, such opinion
or opinions, dated such Closing Date, with respect to the ability of
Luxmar Ltd., Xxxxx Ltd., Limar Ltd., Almar Ltd., Xxxxx Ltd., Camar
Ltd., Promar Ltd., Ermar Ltd., Allenmar Ltd., Capemar Ltd., Petromar
Ltd., Jacamar Ltd. and Takamar Ltd. to register their vessels under the
laws and flag of Panama and other related matters as the
Representatives may require.
(j) The Representatives shall have received from Montanios &
Montanios, Special Cypriot counsel for the Company, such opinion or
opinions, dated such Closing Date, with respect to the ability of
Pearlmar Ltd., Jademar Ltd., Ambermar Ltd., Ariel Shipping Corporation,
Colmar Ltd., Kliomar Ltd., Polmar Ltd., Cleliamar Ltd., Primar Shipping
Ltd., Palmar Maritime Ltd. and Keymar Ltd. to register their vessels
under the laws and flag of Cyprus and other related matters as the
Representatives may require.
(k) The Representatives shall have received from Cravath,
Swaine & Xxxxx, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the validity of the Offered
Securities delivered on such Closing Date, the Registration Statements,
the Prospectus and other related matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters. In rendering such opinion, Cravath, Swaine & Xxxxx may
rely as to the incorporation of the Company and its subsidiaries and
all other matters governed by Liberian, U.K., British Virgin Islands,
Panamanian and Cypriot law upon the opinions of Xxxxxx & Xxxxxx LLP,
Norton Rose, Harney, Westwood & Riegels, Galindo, Xxxxx & Xxxxx, and
Montanios & Montanios.
(l) The Representatives shall have received a certificate,
dated such Closing Date, of the Chairman of the Board of Directors or
the Chief Executive Officer and a principal financial or accounting
officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are
true and correct; the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; such officer has no reason
to believe that the transactions contemplated by the Transaction
Documents will not be consummated in accordance with the terms set
forth as the date hereof in such Transaction Documents; no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; the Additional Registration Statement
(if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent to the
date of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(m) The Representatives shall have received a letter, dated
such Closing Date, of Xxxxxx Xxxxxxxx which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than five days prior to
such Closing Date for the purposes of this subsection.
(n) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters in a form reasonably
acceptable to the Representatives from the Company, its officers,
directors and any other stockholder of the Company.
(o) Each of the Transaction Documents shall have been duly
executed and delivered by the applicable parties thereto and shall have
been delivered to the Company in the forms in which they were
previously furnished to the Company, shall be in full force and effect
and no party hereunder shall be in breach of its obligations thereunder
in any material aspect.
(p) All representations and warranties in the Transaction
Documents shall be true, complete and accurate in all respects as of
the date when made and as of the Closing Date, as if made on each such
date; each of the Transaction Documents shall be in full force and
effect and no event, change, effect, or development shall have occurred
and not be waived that would allow any of the parties to the
Transaction Documents to terminate one or more of such Transaction
Documents in accordance with their terms.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
requests. Jefferies may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors, officers, affiliates,
employees and agents and each person, if any, who controls such Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934 ("1934 ACT") against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter or its partners,
directors, officers, affiliates, employees and agents may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter and its partners, directors, officers, affiliates,
employees and agents for any legal or other expenses reasonably incurred by such
Underwriter and its partners, directors, officers, affiliates, employees and
agents in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (b)
below.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors, officers, affiliates, employees and agents
and each person, if any who controls the Company within the meaning of either
Section 15 of the Act or Section 20 of the 1934 Act, against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fourth paragraph under the caption
"Underwriting".
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, Jefferies
may make arrangements satisfactory to the Company for the purchase of such
Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
Jefferies and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 9 (provided that if such default occurs
with respect to Optional Securities after the First Closing Date, this Agreement
will not terminate as to the Firm Securities or any Optional Securities
purchased prior to such termination). As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the
Underwriters pursuant to Section 7 shall remain in effect, and if any Offered
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 6(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives c/o Jefferies & Company, Inc., 00000 Xxxxx Xxxxxx
Xxxxxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx,
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at Xxxxxxx Shipping Ltd., Status Center, 2A Areos Street,
Xxxxxxxxxxx, XX, 00000, Xxxxxx, Xxxxxx, Attention: Xxxxx Xxxxxxxxxx; provided,
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. REPRESENTATION OF UNDERWRITERS. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives will be binding upon all the
Underwriters.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
The Company hereby submits to the exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby and the parties hereto agree not to commence any such suit
or proceeding relating hereto except in such courts. The Company irrevocably
appoints Xxxxxx & Xxxxxx LLP, as its authorized agent in the Borough of
Manhattan in The City of New York upon which process may be served in any such
suit or proceeding, and agrees that service of process upon such agent, and
written notice of said service to the Company by the person serving the same to
the address provided in Section 10, shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding. The Company
further agrees to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period
of seven years from the date of this Agreement.
The obligation of the Company in respect of any sum due to any
Underwriter shall, notwithstanding any judgment in a currency other than United
States dollars, not be discharged until the first business day, following
receipt by such Underwriter of any sum adjudged to be so due in such other
currency, on which (and only to the extent that) such Underwriter may in
accordance with normal banking procedures purchase United States dollars with
such other currency; if the United States dollars so purchased are less than the
sum originally due to such Underwriter hereunder, the Company agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss. If the United States dollars so purchased are
greater than the sum originally due to such Underwriter hereunder, such
Underwriter agrees to pay to the Company an amount equal to the excess of the
dollars so purchased over the sum originally due to such Underwriter hereunder.
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
XXXXXXX SHIPPING LTD.
By /s/ Xxxxx Xxxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxxx
Chief Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
JEFFERIES & COMPANY, INC.
LAZARD FRERES & CO. LLC
Acting on behalf of themselves and as the Representatives of the
several Underwriters.
By XXXXXXXXX & COMPANY, INC.
By /s/ Xxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Managing Director
By LAZARD FRERES & CO. LLC
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
SCHEDULE A
UNDERWRITERS
------------
NUMBER OF
FIRM SECURITIES
Jefferies & Co., Inc........................................... 1,693,694
Lazard Freres & Co. LLC........................................ 1,693,694
Hibernia Southcoast Capital.................................... 180,180
Alpha Finance U.S. Corporation................................. 36,036
TOTAL.......................................................... 3,603,604
SCHEDULE B
TRANSACTION DOCUMENTS
---------------------
1. Memorandum of Agreement ("MOA") between Bella Shipping SDN BHD, Malaysia
and Xxxxxxx Shipping Ltd. for the purchase of Xxxx Xxxxx.
2. MOA between MBC Berat SDN BHD, Malaysia and Xxxxxxx Shipping Ltd. for the
purchase of Alam Berkat.
3. MOA between LMZ Transoil Holding Ltd. and Xxxxxxx Shipping Ltd. for the
purchase of Hull No. 5218 at Daewoo Heavy Industries.
4. MOA between LMZ Transoil Holding Ltd. and Xxxxxxx Shipping Ltd. for the
purchase of Hull No. 5217 at Daewoo Heavy Industries.
