Exhibit 1.1
▇▇▇▇▇▇▇▇ Maritime Limited
16,700,000 Shares(1)
Common Stock
($.01 par value)
Underwriting Agreement
New York, New York
July , 2005
Citigroup Global Markets Inc.
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
As Representatives of the several Underwriters
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇ Maritime Limited, a corporation organized under the laws of
the Republic of the ▇▇▇▇▇▇▇▇ Islands (the "Company"), proposes to sell to the
several underwriters named in Schedule I hereto (the "Underwriters"), for whom
you (the "Representatives") are acting as representatives, Common Shares, no par
value ("Common Shares") of the Company (said shares to be issued and sold by the
Company being hereinafter called the "Underwritten Securities"). The Company
also proposes to grant to the Underwriters an option to purchase up to 2,505,000
additional Common Shares to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being hereinafter
called the "Securities"). To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. Certain terms
used herein are defined in Section 19 hereof.
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(1) Plus an option to purchase from the Company, up to 2,505,000
additional Securities to cover over-allotments.
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(1) Representations and Warranties. The Company represents and warrants to, and
agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company has prepared and filed with the Commission a
registration statement (file number 333-124576) on Form S-1, including a
related preliminary prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or more
amendments thereto, including a related preliminary prospectus, each of
which has previously been furnished to you. The Company will next file with
the Commission one of the following: either (1) prior to the Effective Date
of such registration statement, a further amendment to such registration
statement (including the form of final prospectus) or (2) after the
Effective Date of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b). In the case of clause (2), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the rules thereunder to be included in such registration
statement and the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and, except
to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made
therein.
It is understood that the form of prospectus to be used in
connection with the offering and sale of the Securities shall have a
Canadian "wrap-around" for purposes of distribution to Canadian Persons.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on any date on
which Option Securities are purchased, if such date is not the Closing Date
(a "settlement date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the Act
and the rules thereunder; on the Effective Date and at the Execution Time,
the Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any settlement date, the
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in conformity
with
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information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business in all material
respects as described in the Prospectus, and is duly registered or
qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification,
other than such jurisdictions in which the failure to be so registered or
qualified would not reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business (a "Material Adverse Effect").
(d) All the outstanding shares of capital stock of each subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Prospectus
(exclusive of any supplement thereto), all outstanding shares of capital
stock of the subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances.
Each subsidiary of the Company is listed on Annex A attached hereto.
(e) There are no restrictions on subsequent transfers of the
Securities under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands or
Greece.
(f) The Company's authorized equity capitalization is as set forth in
the Prospectus; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectus; the
outstanding Common Shares have been duly and validly authorized and issued
and are fully paid and nonassessable; the Securities have been duly and
validly authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the Securities are duly listed, and admitted and authorized
for trading, subject to official notice of issuance and evidence of
satisfactory distribution, on the Nasdaq National Market; the certificates
for the Securities are in valid and sufficient form; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and, except as
set forth in the Prospectus (exclusive of any supplement thereto), no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or exchange
any securities for, shares of capital stock of or ownership interests in
the Company are outstanding;
(g) To the best of the Company's knowledge there is no agreement,
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contract or other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required.
(h) This Agreement has been duly authorized, executed and delivered
by the Company.
(i) The Company is not and, after giving effect to the offering and
sale of the 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, as amended.
(j) No consent, approval, authorization, filing with or order of any
court or governmental agency or body in the United States, the Republic of
the ▇▇▇▇▇▇▇▇ Islands, Greece or any other foreign jurisdiction, including,
without limitation, the International Maritime Organization (the "IMO"), is
required in connection with the transactions contemplated herein, except
(i) such as have been obtained under the Act and the Exchange Act, (ii)
such as may be required under the federal and provincial securities laws of
Canada or the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the
manner contemplated herein and in the Prospectus and (iii) such as may be
required under the laws of the Republic of ▇▇▇▇▇▇▇▇ Islands in connection
with the change of ownership of the vessels set forth on Schedule II to
this Agreement.
(k) Neither the Company nor any subsidiary is (i) in violation or
default of any provision of its charter or bylaws, or similar
organizational documents (ii) in violation or default of the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement or instrument to which it is a party or bound
or to which its property is subject, or (iii) in violation of any statute,
law, rule, regulation, judgment, order or decree of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority including, without limitation, the IMO, having jurisdiction over
the Company or such subsidiary or any of its properties, as applicable,
except, in the case of clauses (ii) and (iii), for such defaults or
violations as would not, individually or in the aggregate, have a Material
Adverse Effect, or materially impair the ability of the Company to perform
its obligations under this Agreement.
(l) Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, (i) the charter or
by-laws of the Company or any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which the Company or any of its subsidiaries is a party or bound or to
which its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of
its
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subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority, including the IMO, having
jurisdiction over the Company or any of its subsidiaries or any of its or
their properties, except, in the case of clauses (ii) or (iii), for such
conflicts, breaches, violations, defaults or liens as would not
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, or materially impair the ability of the Company to perform
its obligations under this Agreement.
(m) Other than pursuant to that certain Registration Rights Agreement
dated April 8, 2005 (the "Registration Rights Agreement"), between ▇▇▇▇▇▇▇▇
Maritime Investors, LLC and the Company, a true and correct copy of which
has been provided to the Representatives, no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement.
(n) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the Prospectus
and the Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form in all
material respects with the applicable accounting requirements of the Act
and have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved
(except as otherwise noted therein). The selected financial data set forth
under the caption "Selected Consolidated Financial Data" in the Prospectus
and Registration Statement fairly present, on the basis stated in the
Prospectus and the Registration Statement, the information included
therein. The forward-looking statements contained under the caption
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Principal Factors that We Expect to Affect Our Business" in
the Prospectus reflect the Company's good faith beliefs and/or estimates
with respect to the matters described in such statements and are based upon
(A) the Company's analysis of such factors as it deemed relevant to such
statements and (B) such assumptions as the Company deemed reasonable with
respect to such statements.
(o) No action, suit or proceeding by or before any court or
governmental agency, authority or body, including the IMO, or any
arbitrator involving the Company or any of its subsidiaries or its or their
property is pending or, to the best knowledge of the Company, threatened
that (i) would reasonably be expected to have a material adverse effect on
the performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) would reasonably be expected to
have a Material Adverse Effect, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(p) As of the Closing Date, each of the Company and each of its
subsidiaries will own or lease all such properties as are necessary to the
conduct of its operations as described in the Prospectus.
(q) Deloitte. Hadjipavlou, Sofianos & Cambanis S.A., who have audited
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certain financial statements of the Company and its consolidated
subsidiaries and delivered their report with respect to the audited
consolidated financial statements and schedules included in the Prospectus,
are independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(r) There are no transfer taxes or other similar fees or charges
under federal law, the laws of any U.S. state, the Republic of the ▇▇▇▇▇▇▇▇
Islands or Greece, or any political subdivision thereof, required to be
paid in connection with the execution and delivery of this Agreement or the
issuance by the Company or sale by the Company of the Securities.
(s) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not reasonably be
expected to have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto)) and
has paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing is
due and payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not reasonably be
expected to have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(t) No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is
threatened or imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or its
subsidiaries' principal suppliers, contractors, or customers, that would
reasonably be expected to have a Material Adverse Effect, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(u) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are reasonably adequate and customary in the businesses in
which they are engaged; all policies of insurance and fidelity or surety
bonds insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force and
effect; the Company and its subsidiaries are in compliance with the terms
of such policies and instruments in all material respects; and there are no
claims by the Company or any of its subsidiaries under any such policy or
instrument as to which any insurance company or other institution is
denying liability or defending under a reservation of rights clause;
neither the Company nor any such subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect, except as
set forth in or contemplated in the
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Prospectus (exclusive of any supplement thereto).
(v) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as described in or contemplated
by the Prospectus (exclusive of any supplement thereto).
(w) The Company and its subsidiaries possess, or at the Closing Date
will possess, all licenses, certificates, permits and other authorizations
("Permits") issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses in the manner
described in the Prospectus, except as described in or contemplated by the
Prospectus (exclusive of any supplement thereto) and except for such
Permits, that if not obtained, would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and neither the
Company nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(x) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with U.S.
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Based on the evaluation of its internal controls over
financial reporting, the Company is not aware of (A) any significant
deficiency or material weakness in the design or operation of internal
controls over financial reporting that are reasonably likely to adversely
affect the Company's ability to record, process, summarize and report
financial information or (B) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
Company's internal controls over financial reporting.
(y) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
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(z) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations,
including those of the IMO, relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received and
are in compliance with all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or potential
liability under any environmental law, except where such non-compliance
with Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the aggregate,
have a Material Adverse Effect, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto). Except as set forth
in the Prospectus (exclusive of any supplement thereto), neither the
Company nor any of the subsidiaries has been named as a "potentially
responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(aa) The Company has reviewed the effect of Environmental Laws on the
business, operations and properties of the Company and its subsidiaries. On
the basis of such review, the Company has reasonably concluded that such
associated costs and liabilities would not, singly or in the aggregate,
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(bb) Each of the Company and the Company's directors and officers, in
their capacities as such, is in compliance in all material respects with
all applicable provisions of the Sarbanes Oxley Act of 2002 and the rules
and regulations promulgated in connection therewith (the "Sarbanes Oxley
Act") that are effective and applicable to the Company.
(cc) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a violation
by such persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the "FCPA"), including, without
limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise
to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value
to any "foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to
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ensure, continued compliance therewith.
(dd) The operations of the Company and its subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the "Money Laundering
Laws") and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering
Laws is pending or, to the best knowledge of the Company, threatened.
(ee) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department ("OFAC"); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(ff) As of the Closing Date, the Company and its subsidiaries own,
possess, license or have other rights to use, on reasonable terms, all
patents, patent applications, trade and service marks, trade and service
▇▇▇▇ registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of
the Company's business as now conducted or as proposed in the Prospectus to
be conducted, except where the failure to own, possess, license or have
such other rights to use the Intellectual Property would not, individually
or in the aggregate, have a Material Adverse Effect, and have no reason to
believe that the conduct of its businesses will conflict with, and have not
received any notice of any claim of conflict with, any such rights of
others.
(gg) Each of the agreements to purchase the [three] Panamax drybulk
carriers not delivered to the subsidiaries of the Company prior to the date
of this Agreement attached as Exhibits B-1 through B-[3] hereto has been
duly authorized, executed and delivered by the respective parties thereto,
and is a valid and binding agreement of each such party enforceable against
each such party in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (ii) public policy,
applicable law relating to fiduciary duties and indemnification and an
implied covenant of good faith and fair dealing.
(hh) The Company does not believe that it is a Passive Foreign
Investment
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Company ("PFIC") within the meaning of Section 1296 of the United States
Internal Revenue Code of 1986, as amended, and does not believe it is
likely to become a PFIC.
(ii) No documentary, stamp or other issuance or transfer taxes or
duties and no capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters to the Republic of the ▇▇▇▇▇▇▇▇ Islands
or Greece, or to any political subdivision or taxing authority thereof or
therein in connection with the sale and delivery by the Company of the
Securities to or for the respective accounts of the Underwriters or the
sale and delivery by the Underwriters of the Securities to the initial
purchasers thereof.
(jj) All dividends and other distributions declared and payable on
the shares of capital stock of the Company may, under the current laws and
regulations of the Republic of the ▇▇▇▇▇▇▇▇ Islands and Greece and any
political subdivisions thereof, be paid in United States dollars and may be
freely transferred out of the Republic of the ▇▇▇▇▇▇▇▇ Islands and Greece,
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 the ▇▇▇▇▇▇▇▇ Islands and Greece and are otherwise free and clear of any
other tax, withholding or deduction and without the necessity of obtaining
any consents, approvals, authorizations, orders, licenses, registrations,
clearances and qualifications of or with any court or governmental agency
or body in the Republic of the ▇▇▇▇▇▇▇▇ Islands and Greece; and
(kk) On the Closing Date, each of the vessels listed on Exhibit C
hereto will be duly registered as a vessel in the sole ownership of the
entity indicated as the "Owning Entity" of such vessel on such schedule
under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands; each of said
entities has good and marketable title thereto, free and clear of all
liens, claims, charges, debts or encumbrances and defects of the title of
record; and each such vessel is in good standing with respect to the
payment of past and current taxes, fees and other amounts payable under the
laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands as would affect its registry
with the ▇▇▇▇▇▇▇▇ Island Ships Registry except such liens, claims, charges,
debts or encumbrances, defects of the title of record, failure to pay such
taxes, fees and other amounts (i) as described in the Prospectus (exclusive
of any supplement thereto) or (ii) as do not, individually or in the
aggregate, materially affect the value of any such vessel and do not
materially interfere with the use of any such vessel as it has been used in
the past and is proposed to be used in the future, as described in the
Prospectus.
Any certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
(2) Purchase and Sale. (a) Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each
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Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $ per share, the number of
Underwritten Securities set forth opposite such Underwriter's name in Schedule I
hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
2,505,000 Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time on or before the 30th day after the date of the Prospectus upon
written or telegraphic notice by the Representatives to the Company setting
forth the number of Option Securities as to which the several Underwriters are
exercising the option and the settlement date. The number of Option Securities
to be purchased by each Underwriter shall be the same percentage of the total
number of Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
(3) Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on , 2005, or
at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company ("DTC")
unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date
12
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
(4) Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
(5) Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b),
the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed in a form approved by the Representatives
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company will promptly advise
the Representatives (1) when the Registration Statement, if not effective
at the Execution Time, shall have become effective, (2) when the
Prospectus, and any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (3) when,
prior to termination of the offering of the Securities, any amendment to
the Registration Statement shall have been filed or become effective, (4)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Prospectus or for any additional information, (5) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or
the suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act or the rules thereunder, the Company promptly will (1) notify
13
the Representatives of any such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section
5, an amendment or supplement which will correct such statement or omission
or effect such compliance; and (3) supply any supplemented Prospectus to
you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably designate and will maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
Citigroup Global Markets Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, offer,
sell, contract to sell, pledge, or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other Common Shares or any
securities convertible into, or exercisable, or exchangeable for, Common
Shares; or publicly announce an intention to effect any such transaction,
for a period of 180 days after the date of the Underwriting Agreement,
provided, however, that (i) the Company may issue and sell Common Shares
pursuant to any employee share option plan, share ownership plan or
dividend reinvestment plan of the Company in effect at the Execution Time
and described in the Prospectus (exclusive of any supplement thereto); (ii)
the Company may issue Common Shares issuable upon the conversion of
securities or the exercise of warrants outstanding at the Execution Time;
and
14
(iii) following the later of the settlement of any purchase by the
Underwriters of all or a portion of the Option Securities and the
expiration of the period during which the Underwriters may elect to
purchase Option Securities, the Company may issue Common Shares to ▇▇▇▇▇▇▇▇
Maritime Investors LLC in an amount equal to the unpurchased number of
Option Securities.
(g) The Company will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Sarbanes Oxley Act, and to use its best efforts to cause the Company's
directors and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions
of the Sarbanes Oxley Act.
(h) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the
Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Prospectus, and
all amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of any blue
sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (v) the registration of the Securities under the Exchange Act
and the listing of the Securities on the Nasdaq National Market; (vi) any
registration or qualification of the Securities for offer and sale under
the securities or blue sky laws of the several states (including filing
fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) any filings
required to be made with the National Association of Securities Dealers,
Inc. (including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such filings); (viii) the transportation
and other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Securities,
provided that the cost of any aircraft chartered in connection with such
presentations shall be apportioned pro rata between the Company and the
Underwriters according to the use of such aircraft by representatives of
the Company and the Underwriters; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; and (x) all other costs and expenses
incident
15
to the performance by the Company of its obligations hereunder. It is
understood, however, that except as provided in Sections 7, 8 and 5(h)(vii)
hereof, the Underwriters will pay all of their own costs and expenses,
including fees and disbursements of their counsel, transfer taxes payable
on the resale of any of the Securities by them, the transportation and
other expenses incurred by or on their behalf in connection with
presentations by Company representatives to prospective purchasers of
Securities and any advertising expenses connected with any offers they may
make.
(6) Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Underwritten Securities and the Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time,
the Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP,
United States counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the statements included in the Prospectus under the headings
"Risk Factors--We may earn United States source income that is
subject to tax, thereby reducing our earnings" and "Tax
Considerations --United States Federal Income Tax Considerations",
insofar as such statements summarize legal matters discussed
therein, are accurate and fair summaries in all material respects of
such legal matters;
(ii) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued
16
and no proceedings for that purpose have been instituted or
threatened; and the Registration Statement and the Prospectus (other
than the financial statements and other financial, accounting and
statistical information contained therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act, the Exchange Act and
the respective rules thereunder;
(iii) the description of the statutes and regulations set forth
in the Registration Statement and Prospectus under the captions
"Business-Environmental and Other Regulations-The United States"
fairly describe in all material respects the portions of the
statutes and regulations addressed thereby;
(iv) the Securities are duly listed, and admitted and authorized
for quotation, subject to official notice of issuance and evidence
of satisfactory distribution, on the Nasdaq National Market;
(v) insofar as matters of United States federal and New York
State law are concerned, to such counsel's knowledge, (i) there are
no legal or governmental proceedings pending or threatened against
the Company or to which the Company is a party or to which any of
its properties is subject that are required to be described in the
Prospectus but are not so described as required and (ii) there are
no agreements, contracts, indentures, leases or other instruments
that are required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required by the Act.
(vi) the Company is not and, after giving effect to the offering
and sale of the 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, as
amended;
(vii) no consent, approval, authorization, filing with or order
of any U.S. Federal or New York court or governmental agency or body
is required in connection with the transactions contemplated herein,
except such as may be required under the Act and the Exchange Act
and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities in the manner contemplated in this Agreement and in the
Prospectus and such other approvals (specified in such opinions) as
have been obtained;
(viii) the issue and sale of the Securities will not (i) result
in a breach or the imposition of any lien, charge or encumbrance
upon any property or assets of the Company or its subsidiaries
pursuant to, the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement or
instrument identified on the annexed
17
schedule to which the Company or its subsidiaries is a party or
bound or to which its or their property is subject, or (ii) violate
(A) any U.S. Federal or New York statute, law, rule or regulation
(other than U.S. Federal securities, state or foreign securities or
blue sky or anti-fraud statutes, laws, rules or regulations and the
rules and regulations of the National Association of Securities
Dealers, Inc.), or (B) any judgment, order or decree to the
knowledge of such counsel applicable to the Company or its
subsidiaries of any U.S. Federal or New York court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its subsidiaries
or any of its or their properties;
(ix) to the knowledge of such counsel, except pursuant to the
Registration Rights Agreement, no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement; and
(x) the Company is not a Passive Foreign Investment Company under
the United States Internal Revenue Code of 1986, as amended.
In addition, such counsel shall state that, in the course of such
counsel's participation, as United States counsel to the Company, in the
preparation of the Registration Statement and the Prospectus, such counsel has
participated in conferences with, among others, representatives of the
Underwriters, officers and other representatives of the Company and the
independent public accountants for the Company, at which conferences the
contents of the Registration Statement and the Prospectus were discussed, and
although such counsel has not independently verified, is not passing on, and is
not assuming any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the Prospectus
(except to the extent specified in paragraphs (i) and (iii) of the foregoing
opinion), based on the foregoing, no facts have come to such counsel's attention
that lead such counsel to believe that the Registration Statement (other than
(i) the financial statements and related schedules, including the notes thereto
and the auditor's report thereon or (ii) the other financial, accounting and
statistical data included in the Registration Statement or Prospectus, as to
which such counsel need not comment), as of its effective date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
or that the Prospectus (other than (i) the financial statements and related
schedules, including the notes thereto and the auditor's report thereon or (ii)
the other financial, accounting and statistical data included in the Prospectus,
as to which such counsel need not comment), as of its issue date or as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may (A) rely as to matters
involving the application of laws of any jurisdiction other than the State of
New York or the Federal
18
laws of the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe to
be reliable and who are satisfactory to counsel for the Underwriters, (B) rely
in respect of matters of fact upon certificates of officers and employees of the
Company and the Manager and upon information obtained from public officials, (C)
assume that all documents submitted to them as originals are authentic, that all
copies submitted to them conform to the originals thereof, and that the
signatures on all documents examined by them are genuine, and (D) state that
their opinion is limited to U.S. Federal and New York State laws. References to
the Prospectus in this paragraph (b) shall also include any supplements thereto
at the Closing Date.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP,
▇▇▇▇▇▇▇▇ Islands counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) each of the Company and its subsidiaries listed under the
heading "Owning Entity" of Exhibit C hereof (individually a
"Subsidiary" and collectively the "Subsidiaries") has been duly
incorporated or organized, as the case may be, and is validly
existing as a corporation or limited liability company, as the case
may be, in good standing under the laws of the Republic of the
▇▇▇▇▇▇▇▇ Islands, with full corporate power and authority to own or
lease, as the case may be, and to operate its properties and conduct
its business as described in the Prospectus.
(ii) all the outstanding membership interests of each Subsidiary
have been duly and validly authorized and issued and are fully paid
and nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding membership interests of the Subsidiaries
are owned by the Company either directly or through wholly owned
subsidiaries free and clear of any pledges registered in the
relevant subsidiary's share register, other than pledges granted to
the Security Trustee under the Credit Facility dated April 29, 2005
among the Company and the several Guarantors, Lenders, Arrangers,
and the Facility Agent and Security Trustee named therein, as may be
supplemented or amended from time to time (the "Senior Credit
Facility");
(iii) the Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms
in all material respects to the description thereof contained in the
Prospectus; the outstanding Common Shares have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Securities have been duly and validly authorized, and, when issued
and delivered to and paid for by the Underwriters against payment
therefor pursuant to this Agreement, will be fully paid and
nonassessable; the certificates for the Securities are in valid and
sufficient form; the holders of outstanding shares of capital stock
of the Company are not entitled to preemptive or other rights to
19
subscribe for the Securities; and, except as set forth in the
Prospectus, no securities convertible into Common Shares are
outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body of the Republic of the
▇▇▇▇▇▇▇▇ Islands or any arbitrator involving the Company or any of
its subsidiaries or its or their property of a character required to
be disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus; and the statements included in the
Prospectus under the headings "Enforceability of Civil Liberties",
"Tax Considerations -- ▇▇▇▇▇▇▇▇ Islands Tax Considerations",
"Environmental and Other Regulations", "Description of Capital
Stock", and "Certain ▇▇▇▇▇▇▇▇ Islands Company Considerations",
insofar as such statements summarize ▇▇▇▇▇▇▇▇ Islands legal matters,
documents or proceedings discussed therein, are accurate and fair
summaries of such legal matters, documents or proceedings;
(v) insofar as matters of ▇▇▇▇▇▇▇▇ Islands law are concerned, the
Registration Statement and the filing of the Registration Statement
with the Commission have been duly authorized by and on behalf of
the Company, and the Registration Statement has been duly executed
pursuant to such authorization by and on behalf of the Company;
(vi) the choice of law provision set forth in Section 14 hereof
is legal, valid and binding under the laws of the Republic of the
▇▇▇▇▇▇▇▇ Islands and such counsel knows of no reason why the courts
of the Republic of the ▇▇▇▇▇▇▇▇ Islands would not give effect to the
choice of New York law as the proper law of the Underwriting
Agreement; the Company has the legal capacity to ▇▇▇ and be sued in
its own name under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands;
the Company has the power to submit, and has irrevocably submitted,
to the non-exclusive jurisdiction of the New York Courts and has
validly and irrevocably appointed ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP as its
designee, appointee and authorized agent for the purpose described
in Section 15 hereof under the laws of the Republic of the ▇▇▇▇▇▇▇▇
Islands; the irrevocable submission of the Company to the
non-exclusive jurisdiction of the New York Courts, and assuming the
Company is not regularly engaged in the conduct of activities
pursuant to contractual arrangements with the Republic of the
▇▇▇▇▇▇▇▇ Islands or another sovereign jurisdiction or any division,
bureau, office, agency, department or political subdivision thereof,
the waivers by the Company of any immunity and any objection to the
venue of the proceeding in a New York Court in the Underwriting
Agreement are legal, valid and binding under the laws of the
Republic of the ▇▇▇▇▇▇▇▇ Islands and, assuming the foregoing, such
counsel knows of no reason why the courts of the Republic of the
▇▇▇▇▇▇▇▇ Islands would not give effect to the submission and
waivers; service of process in the manner set forth in
20
Section 15 of the Underwriting Agreement, will be effective to
confer valid personal jurisdiction over the Company under the laws
of the Republic of the ▇▇▇▇▇▇▇▇ Islands; and provided that:
(a) the judgment was for a sum of money and was final in the
jurisdiction;
(b) the court granting the judgment had jurisdiction under
the laws of the place where it sat and the judgment did
not offend principles of the Republic of the ▇▇▇▇▇▇▇▇
Islands as to due process, propriety or public order;
and
(c) the defendant was actually present in person or by a
duly appointed representative and the judgment did not
constitute in effect a default judgment;
a final and conclusive judgment against the Company obtained in a
New York Court arising out of or in relation to the obligations of
the Company under the Underwriting Agreement would be enforceable in
the courts of the Republic of the ▇▇▇▇▇▇▇▇ Islands without a retrial
on the merits;
(vii) the making of a dividend payment from the Company to any of
its shareholders will not result in the imposition of any income or
other tax by the Government of the ▇▇▇▇▇▇▇▇ Islands or any
sub-division or authority thereof, provided that neither the Company
nor such shareholder:
(A) is now, or will in the future be, engaged in (1) the
retailing, wholesaling, trading or importing of goods or
services for or with a resident of the Republic of the
▇▇▇▇▇▇▇▇ Islands; (2) any extractive industry in the Republic
of the ▇▇▇▇▇▇▇▇ Islands; (3) any regulated professional
service activity in the Republic of the ▇▇▇▇▇▇▇▇ Islands; (4)
the export of any commodity or goods manufactured, processed,
mined or made in the Republic of the ▇▇▇▇▇▇▇▇ Islands, or (5)
the ownership of real property in the Republic of the
▇▇▇▇▇▇▇▇ Islands; and
(B) is now, or will in the future be, doing business in the
Republic of the ▇▇▇▇▇▇▇▇ Islands except that such shareholder
may (1) have its registered office in the Republic of the
▇▇▇▇▇▇▇▇ Islands and maintain its registered agent in the
Republic of the ▇▇▇▇▇▇▇▇ Islands as required by the
provisions of the Associations Law of 1990, as amended; and
(2) secure and maintain registry in the Republic of the
▇▇▇▇▇▇▇▇ Islands solely related to the operation or
disposition of any vessel outside of the Republic of the
▇▇▇▇▇▇▇▇ Islands.
(viii) each of the vessels listed on a schedule to such opinion
is duly and validly registered as a vessel in the sole ownership of
record of the
21
entity indicated as the "Owning Entity" of such vessel on such
schedule under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands,
free and clear of all liens, claims, charges, debts or encumbrances
of record, except, in each case, first and second preferred
mortgages in favor of the Security Trustee under the Senior Credit
Facility; and each such vessel is in good standing with respect to
the payment of past and current taxes, fees and other amounts
payable to the Government of the Republic of the ▇▇▇▇▇▇▇▇ Islands as
would affect its registry with the ▇▇▇▇▇▇▇▇ Island Ships Registry;
(ix) this Agreement has been duly authorized, executed and
delivered by the Company;
(x) no consent, approval, authorization, filing with or order of
any court or governmental agency or body in the Republic of the
▇▇▇▇▇▇▇▇ Islands is required in connection with the transactions
contemplated herein;
(xi) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof will conflict with, result
in a breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its
subsidiaries pursuant to, (i) the articles of incorporation or
by-laws or similar organizational documents of the Company or its
subsidiaries, or (ii) any ▇▇▇▇▇▇▇▇ Islands statute, law, rule,
order, regulation of general application to which the Company or its
subsidiaries is subject;
(xii) assuming no execution or deliveries of documents within the
Republic of the ▇▇▇▇▇▇▇▇ Islands, no documentary, stamp or other
issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable by or on behalf of the
Underwriters to the Republic of the ▇▇▇▇▇▇▇▇ Islands or to any
political subdivision or taxing authority thereof or therein in
connection with the sale and delivery by the Company of the
Securities to or for the respective accounts of the Underwriters or
the sale and delivery by the Underwriters of the Securities to the
initial purchasers thereof; and
(xiii) each of the agreements to purchase the [three] Panamax
drybulk carriers attached as Exhibits B-1 through B-[3] hereto has
been duly authorized, executed and delivered by the respective
subsidiary party thereto, and is a valid and binding agreement of
each such subsidiary enforceable against each such subsidiary in
accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
22
law) and (ii) public policy, applicable law relating to fiduciary
duties and indemnification and an implied covenant of good faith and
fair dealing.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company
and public officials. References to the Prospectus in this paragraph (c) shall
also include any supplements thereto at the Closing Date.
(d) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇, Greek
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any Greek court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries or its or their
property of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus;
(ii) no consent, approval, authorization, filing with or order of
any Greek court or governmental agency or body is required in
connection with the transactions contemplated herein;
(iii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof will conflict with, result
in a breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or its
subsidiaries pursuant to any Greek statute, law, rule, regulation,
judgment, order or decree applicable to the Company or its
subsidiaries of any Greek court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its subsidiaries or any of its or
their properties; and
(iv) the execution, delivery and performance of this Agreement
and the consummation of the transactions herein contemplated 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 in Greece or body or
any court in Greece having jurisdiction over the Company or any of
its subsidiaries or their properties, or any agreement or instrument
identified on the annexed schedule to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties of the
Company or any of its subsidiaries is subject;
(v) the Company and its subsidiaries are not required to file tax
returns or pay any taxes in Greece with the exception of ▇▇▇▇▇▇▇▇
Management LLC which is exempted from income tax in Greece for
income deriving
23
from its ship management activities but may be required to file
returns as regards any transactions subject to value added tax,
social security and payroll taxes;
(vi) to the best of such counsel's knowledge and with the
exception of ▇▇▇▇▇▇▇▇ Management LLC, the Company and its
subsidiaries are not required to obtain any licenses or other forms
of authorization from any governmental authorities, self-regulatory
organizations and any courts and other tribunals, in Greece,
necessary to own or lease, as the case may be, and to operate the
vessel owned or leased by each of its subsidiaries and to carry on
its business as conducted as of the date of the Prospectus; ▇▇▇▇▇▇▇▇
Management LLC has duly established a representative office in
Greece and to the best of such counsel's knowledge is in compliance
with all laws and regulations in Greece relating to the conduct of
its business as conducted as of the date of the Prospectus;
(vii) no documentary, stamp or other issuance or transfer taxes
or duties and no capital gains, income, withholding or other taxes
are payable by or on behalf of the Underwriters to Greece or to any
political subdivision or taxing authority thereof or therein in
connection with the sale and delivery by the Company of the
Securities to or for the respective accounts of the Underwriters or
the sale and delivery by the Underwriters of the Securities to the
initial purchasers thereof; and
(viii) so long as ▇▇▇▇▇▇▇▇ Management LLC duly maintains a
representative office in Greece, all dividends and other
distributions declared and payable on the shares of capital stock of
the Company, to the extent that they derive exclusively from income
generated by vessels managed by ▇▇▇▇▇▇▇▇ Management LLC, may, under
the current laws and regulations of Greece or any political
subdivision thereof, be paid in United States dollars and may be
freely transferred out of Greece, and all such dividends and other
distributions will not be subject to withholding or other taxes
under the laws and regulations of Greece and are otherwise free and
clear of any other tax, withholding or deduction and without the
necessity of obtaining any consents, approvals, authorizations,
orders, licenses, registrations, clearances and qualifications of or
with any court or governmental agency or body in Greece.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company
and public officials. References to the Prospectus in this paragraph (d) shall
also include any supplements thereto at the Closing Date.
(e) The Representatives shall have received from Cravath, Swaine &
▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Prospectus (together with any
24
supplement thereto) and other related matters as the Representatives may
reasonably 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.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectus, any
supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(g) The Company shall have requested and caused Deloitte.
Hadjipavlou, Sofianos & Cambanis S.A. to have furnished to the
Representatives, at the Execution Time and at the Closing Date, letters,
dated respectively as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to the Representatives, confirming that
they are independent public accountants within the meaning of the Act and
the applicable rules and regulations adopted by the Commission thereunder
and that they have performed an audit of the unaudited interim financial
information of the Company for the period from January 13, 2005, to March
31, 2005 and as at March 31, 2005, in accordance with the standards of the
Public Company Accounting Oversight Board ("PCAOB") and stating in effect
that:
(i) in their opinion the audited financial statements included in
the Registration Statement and the Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Act and the related rules and
regulations adopted by the Commission;
25
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would
not necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the shareholders, directors and audit and compensation
committees of the Company and the Subsidiaries; and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries
as to transactions and events subsequent to March 31, 2005, nothing
came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with applicable accounting
requirements of the Act and with the related rules and
regulations adopted by the Commission with respect to
registration statements on Form S-1; and said unaudited
financial statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Registration Statement and the
Prospectus;
(2) with respect to the period subsequent to March 31,
2005, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or capital
stock of the Company or decreases in the shareholders' equity
of the Company, or decreases in cash or total assets of the
Company and its subsidiaries as compared with the amounts
shown on the March 31, 2005 consolidated balance sheet
included in the Registration Statement and the Prospectus, or
for the period from May 1, 2005 to such specified date there
were any decreases, as compared with the month ended April 30,
2005 in net revenues or income before income taxes or in total
or per share amounts of net income of the Company and its
subsidiaries, except in all instances for changes or decreases
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 Representatives; or
(3) the information included in the Registration
Statement and Prospectus in response to Regulation S-K, Item
301 (Selected Financial Data) is not in conformity with the
applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a
result
26
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 and its subsidiaries) set forth in
the Registration Statement and the Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation.
References to the Prospectus in this paragraph (g) include any supplement
thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (g) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries taken as a whole, whether or
not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(k) The Securities shall have been listed included for quotation on
the Nasdaq National Market, and satisfactory evidence of such actions shall
have been provided to the Representatives.
(l) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each person and entity listed on Annex B hereto addressed to the
Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably
27
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
(7) Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
Citigroup Global Markets Inc. on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
(8) Indemnification and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter, the directors, officers, employees, affiliates
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning
28
of either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company acknowledges that the statements set forth in
the last paragraph of the cover page regarding delivery of the Securities and,
under the heading "Underwriting", (i) the list of Underwriters and their
respective participation in the sale of the Securities, (ii) the sentences
related to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ one separate counsel (in addition to local
counsel), and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld, conditional or delayed), settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder
29
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b)
or (e) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall (i) any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder or (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (the "Independent
Underwriter") in its capacity as "qualified independent underwriter" (within the
meaning of National Association of Securities Dealers, Inc. Conduct Rule 2720)
be responsible for any amount in excess of the compensation received by the
Independent Underwriter for acting in such capacity. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Prospectus.
Benefits received by the Independent Underwriter in its capacity as "qualified
independent underwriter" shall be deemed to be equal to the compensation
received by the Independent Underwriter for acting in such capacity. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
30
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) Without limitation of and in addition to its obligations under
the other paragraphs of this Section 8, the Company agrees to indemnify and hold
harmless the Independent Underwriter, its directors, officers, employees and
agents and each person who controls Independent Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject, insofar as such losses, claims, damages or liabilities (or
action in respect thereof) arise out of or are based upon Independent
Underwriter's acting as a "qualified independent underwriter" (within the
meaning of National Association of Securities Dealers, Inc. Conduct Rule 2720)
in connection with the offering contemplated by this Agreement, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability results from the gross negligence or willful
misconduct of the Independent Underwriter.
(9) Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the number of Underwritten
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate number of Underwritten Securities set forth opposite the names of all
the remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate number of Underwritten Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate number of Underwritten Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
(10) Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to
delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's
31
Common Shares shall have been suspended by the Commission or the Nasdaq National
Market or trading in securities generally on the New York Stock Exchange or the
Nasdaq National Market shall have been suspended or limited or minimum prices
shall have been established on such Exchange or the Nasdaq National Market, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Prospectus (exclusive of any supplement thereto).
(11) Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
(12) Notices. All communications hereunder will be in writing and effective only
on receipt, and, if sent to the Representatives, will be mailed, delivered or
telefaxed to the Citigroup Global Markets Inc. General Counsel (fax no.: (212)
▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global Markets Inc.,
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel,
and to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed
to the Equity Capital Markets Syndicate Desk, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; or, if sent to the Company, will be mailed,
delivered or telefaxed to (▇▇▇) ▇▇▇-▇▇▇▇ and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention of the Legal Department.
(13) Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers, directors,
employees, agents and controlling persons referred to in Section 8 hereof, and
no other person will have any right or obligation hereunder.
(14) Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
(15) Jurisdiction. The Company agrees that any suit, action or proceeding
against the Company brought by any Underwriter, the directors, officers,
employees and agents of any Underwriter, or by any person who controls any
Underwriter, arising out of or based upon the Underwriting Agreement or the
transactions contemplated hereby may be instituted in any New York Court, and
waives any objection which it may now or hereafter have to the laying of venue
of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such courts in any suit, action or proceeding. The
32
Company has appointed ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP as its authorized agent (the
"Authorized Agent") upon whom process may be served in any suit, action or
proceeding arising out of or based upon the Underwriting Agreement or the
transactions contemplated herein which may be instituted in any New York Court,
by any Underwriter, the directors, officers, employees and agents of any.
Underwriter, or by any person who controls any Underwriter, and expressly
accepts the non-exclusive jurisdiction of any such court in respect of any such
suit, action or proceeding. The Company hereby represents and warrants that the
Authorized Agent has accepted such appointment and has agreed to act as said
agent for service of process, and the Company agrees to take any and all action,
including the filing of any and all documents that may be necessary to continue
such appointment in full force and effect as aforesaid. Service of process upon
the Authorized Agent shall be deemed, in every respect, effective service of
process upon the Company. Notwithstanding the foregoing, any action arising out
of or based upon the Underwriting Agreement may be instituted by any
Underwriter, the directors, officers, employees and agents of any Underwriter,
or by any person who controls any Underwriter, in any court of competent
jurisdiction in the Republic of the ▇▇▇▇▇▇▇▇ Islands.
The provisions of this Section 15 shall survive any termination of
the Underwriting Agreement, in whole or in part.
(16) Waiver of Immunity. To the extent that the Company has or hereafter may
acquire any immunity (sovereign or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal process
(whether service or notice, attachment in aid or otherwise) with respect to
itself or any of its property, the Company hereby irrevocably waives and agrees
not to plead or claim such immunity in respect of its obligations under the
Underwriting Agreement.
(17) Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
(18) Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
(19) Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Canadian Person" shall mean any person who is a national or
resident of Canada, any corporation, partnership, or other entity created
or organized in or under the laws of Canada or of any political
subdivision thereof, or any estate or trust the income of which is subject
to Canadian Federal income taxation,
33
regardless of its source (other than any non-Canadian branch of any
Canadian Person), and shall include any Canadian branch of a person other
than a Canadian Person.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"New York Courts" shall mean the U.S. Federal or State courts
located in the State of New York, County of New York.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Securities
that is first filed pursuant to Rule 424(b) after the Execution Time or,
if no filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
34
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
(20) Canada. Each of the Underwriters hereby covenants and agrees that it will
not distribute the Securities in such a manner as to require the filing of a
prospectus or similar document (excluding a private placement offering
memorandum) with respect to the Securities under the laws of any Province or
Territory in Canada.
35
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇▇▇ MARITIME LIMITED
By:
---------------------
Name:
Title:
36
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Citigroup Global Markets Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: Citigroup Global Markets Inc.
By:
---------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
---------------------------
Name:
Title:
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement.
SCHEDULE I
Number of Underwritten
Securities
Underwriters to be Purchased
------------ ---------------
Citigroup Global Markets Inc. .........
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated......
▇▇▇▇▇▇▇▇▇ & Company, Inc.
ABN AMRO Rothschild LLC
Cantor ▇▇▇▇▇▇▇▇▇▇ & Co.
Credit Suisse First Boston LLC
▇▇▇▇▇▇▇ ▇▇▇▇ & Company, LLC
Fortis Bank (Nederland) N.V.
----------
Total............................ 16,700,000
=========
[FORM OF LOCK-UP AGREEMENT] EXHIBIT A
[LETTERHEAD OF OFFICER, DIRECTOR OR MAJOR SHAREHOLDER OF
CORPORATION]
▇▇▇▇▇▇▇▇ Maritime Limited
Public Offering of Common Shares
, 2005
Citigroup Global Markets Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between ▇▇▇▇▇▇▇▇
Maritime Limited, a corporation organized under the laws of the Republic of the
▇▇▇▇▇▇▇▇ Islands (the "Company"), and each of you as representatives of a group
of Underwriters named therein, relating to an underwritten public offering of
Common Shares, $.01 par value (the "Common Shares"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Citigroup Global Markets Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the undersigned or any
affiliate of the undersigned or any person in privity with the undersigned or
any affiliate of the undersigned), directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the Securities
and Exchange Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Securities and Exchange Commission promulgated thereunder
(the "Exchange Act") with respect to, any shares of capital stock of the Company
or any securities convertible into, or exercisable or exchangeable for such
capital stock, or publicly announce an intention to effect any such transaction,
during the period commencing on the date hereof and ending 180 days after the
date of the Underwriting Agreement (the "Lock-up Period"), other than Common
Shares disposed of by gift to the undersigned's immediate family members, to
trusts established for the benefit of the undersigned's immediate family members
or to charitable organizations (provided that any such person, trust or
charitable organization agrees as a condition to receiving such gift to be bound
by the terms of the foregoing terms of this sentence, and provided further that
no filing by any party under the Exchange Act shall be required or shall be
voluntarily made in connection with such gift).
2
If for any reason the Underwriting Agreement shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
Notwithstanding the foregoing, the restrictions herein shall not
apply (i) to transfers of Common Shares by the undersigned to any of its
subsidiaries, affiliates, or, in the case of limited liability companies and
partnerships, to their members and partners, respectively, provided that the
transferee(s) agree to be bound in writing by the restrictions in this
agreement, and provided further that no filing by any party under the Exchange
Act shall be required or shall be voluntarily made in connection with such sales
and (ii) to transactions relating to Common Shares acquired in open market
transactions after the completion of the public offering, provided that with
respect to any proposed subsequent sales of Common Shares acquired in such open
market transactions, it shall be a condition to such proposed subsequent sales
that no filing by any party under the Exchange Act shall be required or shall be
voluntarily made in connection with such sales.
Yours very truly,
-----------------------------------
Name:
Address:
EXHIBITS B-1 - B-[3]
[SHIP ACQUISITION CONTRACTS]
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Coal Pride
EXHIBIT C
VESSEL OWNING ENTITY
------ -------------
King Coal King Coal Shipco LLC
Fearless I Fearless I Shipco LLC
Coal Glory Coal Glory Shipco LLC
Cool Age Cool Age Shipco LLC
[Iron Man [Iron Man Shipco LLC
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC
Coal Pride] Coal Pride Shipco LLC]
ANNEX A
SUBSIDIARIES
King Coal Shipco LLC
Fearless I Shipco LLC
Coal Glory Shipco LLC
Cool Age Shipco LLC
[Iron Man Shipco LLC
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC
Coal Pride Shipco LLC]
ANNEX B
LOCK-UP AGREEMENTS
▇▇▇▇▇▇▇▇ Maritime Investors LLC
AMCI Acquisition II, LLC
FR X Offshore, ▇.▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇