EXHIBIT 99.1
EXECUTION COPY
OMI CORPORATION
COMMON STOCK
(PAR VALUE $.50 PER SHARE)
--------------------------------------------------------------------------------
UNDERWRITING AGREEMENT
June 24, 2004
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
As representative of the several Underwriters named
in Schedule I hereto
▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
OMI Corporation, a corporation incorporated under the laws of the Republic
of the ▇▇▇▇▇▇▇▇ Islands (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") an aggregate of 9,000,000 shares
and, at the election of the Underwriter, up to 1,350,000 additional shares
of Common Stock, par value $.50 per share (the "Stock"), of the Company.
The aggregate of 9,000,000 shares to be sold by the Company is herein
called the "Firm Shares" and the aggregate of up to 1,350,000 additional
shares to be sold by the Company is herein called the "Optional Shares".
The Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are herein collectively called the
"Shares".
1. (a) The Company represents and warrants to, and agrees with the
Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-105195) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered to you, and, excluding exhibits thereto but
including all documents incorporated by reference in the prospectus
contained therein, have been declared effective by the Commission in such
form; other than (i) a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing, and (ii) prospectus supplements filed
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to you, no other
document with respect to the Initial Registration Statement as amended
through the date hereof or document incorporated by reference therein has
heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, each as amended at the time such
part of the Initial Registration Statement became effective as amended
through the date of this Agreement or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; the
prospectus supplement specifically relating to the Shares in the form first
filed pursuant to Rule 424(b) under the Act, together with the prospectus
included in the Registration Statement, is hereinafter called the
"Prospectus"; any reference herein to any Prospectus shall be deemed to
refer to and include the documents filed after the date of such prospectus
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference therein; and any reference to any amendment
to the Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d) of
the Exchange Act after the effective date of the Initial Registration
Statement that is incorporated by reference in the Registration Statement);
(ii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they were
made) not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the
2
Prospectus, in light of the circumstances under which they were made) not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
(iv) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus material to the Company and its subsidiaries taken as a whole;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in
the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect"), otherwise than as set forth or contemplated in
the Prospectus;
(v) Each of the Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property (including each of the vessels listed in the
Prospectus) owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries taken as a
whole;
(vi) Each of the Company and its subsidiaries have been duly
incorporated or formed and is validly existing in good standing under the
laws of its jurisdiction of incorporation or formation with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdictions;
(vii) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; Schedule II hereto constitutes a full and complete list of
each direct or indirect subsidiary of the Company; and all of the issued
shares of capital stock of each subsidiary of the Company or membership
interests, as the case may be, have been duly and validly authorized and
3
issued, are fully paid and non-assessable and (except as set forth on
Schedule II and except for directors' qualifying shares or interests where
applicable) are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims other than those related to
pledges of membership interests under the Credit Agreements (as defined in
Annex A of this Agreement);
(viii) The Shares have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus;
(ix) The issue and sale of the Shares and the compliance by the
Company with all of the provisions of this Agreement and the consummation
of the transactions herein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or By-laws of the
Company or organizational documents of any of its subsidiaries, or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the Act of
the Shares and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
(x) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation, Certificate of Formation,
By-laws or Limited Liability Company Agreement (as applicable) or (ii) in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(xi) The Company and each of its subsidiaries carry insurance covering
their respective vessels (including those vessels participating in
commercial alliances), properties, operations, personnel and businesses, in
such amounts and covering such risks as is adequate for the conduct of its
business and is customary to its business. The Company and each of its
subsidiaries also maintain appropriate levels of environmental damage and
pollution insurance coverage, consistent with standard industry practice.
None of the Company or any of its subsidiaries has received written notice
from any insurer or agent of such insurer that any material capital
improvements or other material expenditures are required or necessary to be
made in order to continue such insurance;
4
(xii) The Company and each of its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations, international conventions and treaties relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants (including petroleum
and petroleum byproducts) ("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permits, licenses,
authorizations or approvals, except for such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses, authorizations or approvals that would not, individually
or in the aggregate, have a Material Adverse Effect;
(xiii) There has been no event in connection with the storage,
transportation or handling of, and no treatment, generation, disposal,
discharge, emission or other release of, any kind of any toxic or hazardous
substances or wastes, including petroleum and any petroleum products or
byproducts, due to, caused by or otherwise relating to the operations of
the Company or any of its subsidiaries or, to the best knowledge of the
Company, any other entity (including any predecessor) for whose acts or
omissions the Company or any of its subsidiaries is or could reasonably be
expected to be liable, except as, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect;
(xiv) In the ordinary course of its business, the Company identifies
and evaluates costs and liabilities associated with the effect of
Environmental Laws on the business, operations, and properties of the
Company and its subsidiaries (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities
to third parties). The Company has reasonably concluded that such
associated costs and liabilities would not, individually or in the
aggregate, have a Material Adverse Effect;
(xv) There are no holders of securities of the Company which by reason
of the filing of the Registration Statement or otherwise in connection with
the sale of the Shares contemplated hereby, have the right to request or
demand that the Company register under the Act any of their securities in
connection with the Registration Statement, except for any such rights that
have been effectively waived in writing so as not to be exercisable in
connection with the registration, offer or sale of the Shares;
(xvi) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, and under the caption "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(xvii) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject
5
which, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect; and,
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(xviii) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"); (xix) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes;
(xx) Deloitte & Touche LLP, which has certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xxi) The financial statements included or incorporated by reference in
the Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
and the schedules included in the Registration Statement present fairly the
information required to be stated therein. All non-GAAP financial
information included in the Registration Statement and the Prospectus
complies with the requirements of Regulation G and Item 10 of Regulation
S-K under the Securities Act; and
(xxii) Each of the Company and 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 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. The Company
maintains disclosure controls and procedures (as such term is defined in
Rule 13a-14 under the Exchange Act) that are effective in ensuring that
information required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the rules and forms of
the Commission, including, without limitation, controls and procedures
designed to ensure that information required to be disclosed by the Company
in the reports that it files or submits under the Exchange Act is
accumulated and communicated to the Company's management, including its
principal executive officer or officers and its principal financial officer
or officers, as appropriate to allow timely decisions regarding required
disclosure.
6
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Company at a purchase price per share of $11.34, the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto and
(b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
purchase price per share set forth in clause (a) of this Section 2, that
portion of the number of Optional Shares as to which such election shall
have been exercised (to be adjusted by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. so as to
eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction the numerator of which is the maximum number
of Optional Shares which such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of
the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 1,350,000 Optional Shares, at the purchase price per
share set forth in the paragraph above, for the sole purpose of covering
sales of shares in excess of the number of Firm Shares, provided that the
purchase price per Optional Share shall be reduced by an amount per share
equal to any dividends or distributions declared by the Company and payable
on the Firm Shares but not payable on the Optional Shares. Any such
election to purchase Optional Shares may be exercised only by written
notice from you to the Company, given within a period of 30 calendar days
after the date of this Agreement and setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares
are to be delivered, as determined by you but in no event earlier than the
First Time of Delivery (as defined in Section 4 hereof) or, unless you and
the Company otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus, including the terms set
forth under "Description of Capital Stock."
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as ▇▇▇▇▇▇▇, Sachs & Co. may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of
the Company to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., through the facilities of the
Depository Trust Company ("DTC") for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of Federal (same-day) funds to the account
specified by the Company to ▇▇▇▇▇▇▇, Sachs & Co. at least forty-eight hours
in advance. The time and date of such delivery and payment shall be, with
respect to the Firm Shares, 9:30 a.m., New York time, on June 29, 2004 or
such other time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Company may agree
upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New
York time, on the date specified by ▇▇▇▇▇▇▇, Sachs & Co. in the written
notice
7
given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. of the Underwriters' election to purchase
such Optional Shares, or such other time and date as ▇▇▇▇▇▇▇, Sachs & Co.
and the Company may agree upon in writing. Such time and date for delivery
of the Firm Shares is herein called the "First Time of Delivery", such time
and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such
time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7 hereof, will be delivered at the offices
of Cravath, Swaine & ▇▇▇▇▇ LLP, Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Closing Location"), and the Shares will be delivered
at the office of DTC or its designated custodian (the "Designated Office"),
all at such Time of Delivery. A meeting will be held at the Closing
Location at 5:00 p.m., New York City time, on the New York Business Day
next preceding such Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this
Agreement, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 424(b); without your prior approval after
reasonable notice, to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last Time of Delivery; to
advise you, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective
or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any prospectus or suspending any
such qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
8
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such U.S. jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) As soon as practicable, on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with written and electronic copies of the Prospectus in New
York City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with
the offering or sale of the Shares and if at such time any events shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Exchange
Act, to notify you and upon your request to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as you may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus
in connection with sales of any of the Shares at any time nine months or
more after the time of issue of the Prospectus, upon your request but at
the expense of such Underwriter, to prepare and deliver to such Underwriter
as many written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to
the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities without the
prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.; provided that such
restriction shall not apply to (i) securities issued pursuant to employee
stock option or incentive plans (including, as applicable, pursuant to an
effective sales plan under Rule 10b5-1 of the Securities Exchange Act of
1934)
9
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date hereof, (ii) offers
made to the shareholders of ▇▇▇▇▇▇▇ Shipping Ltd. ("▇▇▇▇▇▇▇") pursuant to a
tender or exchange offer or merger for all or substantially all of the
capital stock of ▇▇▇▇▇▇▇, (iii) the transactions contemplated by that
certain underwriting agreement dated as of the date hereof between the
Company and the Underwriters in connection with the issue and sale by the
Company of 2,000,000 shares of Stock and (iv) securities issued in
connection with the purchase of assets or stock by the Company or any of
its subsidiaries to the extent that the aggregate market value of such
securities does not exceed 10% of the market capitalization of the Company
as of the date hereof (giving effect to the offering contemplated hereby);
provided further that in the case of clause (iv), the recipients of such
securities shall have entered into a lock-up agreement substantially in the
form of Exhibit A hereto;
(f) To furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter
ending after the effective date of the Registration Statement), to make
available to its stockholders consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to
time reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally or to the
Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of issuance,
the Shares on the New York Stock Exchange;
(j) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; and
10
(k) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); PROVIDED, HOWEVER, that the License
shall be used solely for the purpose described above, is granted without
any fee and may not be assigned or transferred.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing this
Agreement, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
survey; (iv) all fees and expenses in connection with listing the Shares on
the New York Stock Exchange; (v) the filing fees incident to, and the fees
and disbursements of counsel for the Underwriters in connection with,
securing any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost of
preparing stock certificates; (vii) the cost and charges of any transfer
agent or registrar and (viii) all other costs and expenses in connection
with the issuance and distribution of the securities being registered not
otherwise specifically provided for in this Section. ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
agrees to pay New York State stock transfer tax, and the Company agrees to
reimburse ▇▇▇▇▇▇▇, Sachs & Co. for associated carrying costs if such tax
payment is not rebated on the day of payment and for any portion of such
tax payment not rebated. It is understood that except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares
to be delivered at each Time of Delivery, shall be subject, in its
discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement;
11
no stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests
for additional information relating to the Registration Statement on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, shall
have furnished to you such written opinion or opinions, dated such Time of
Delivery, in a customary form and substance as you may reasonably request,
and such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(c) Coudert Brothers LLP, counsel for the Company, shall have
furnished to you its written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, substantially to the effect that:
(i) Based solely on certificates of public officials in the
appropriate jurisdiction, the Company has been duly qualified for the
transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, or is subject to no material liability
or disability by reason of the failure to be so qualified in any such
jurisdiction;
(ii) To such counsel's knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position stockholders' equity or
results of operations of the Company and its subsidiaries; and, to such
counsel's knowledge, no such proceedings are threatened by governmental
authorities;
(iii) Each subsidiary of the Company listed on Annex A to this opinion
is validly existing as a corporation or limited liability company in good
standing under the laws of its jurisdiction of incorporation or formation;
(iv) The issue and sale of the Shares being delivered at such Time of
Delivery and the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any of the Credit
Agreements to which the Company or by which the Company is bound;
(v) No consent, approval, authorization, order, registration or
qualification of or with any New York, Delaware or U.S. federal court or
governmental agency or body (except for any maritime or admiralty agency or
body) is required for the issue and sale of the Shares or the consummation
by the Company of the transactions contemplated by this Agreement, except
the registration under the Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state
12
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(vi) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, and under the caption "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(vii) The Company is not an "investment company", as such term is
defined in the Investment Company Act of 1940;
(viii) The documents incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company prior to the
date hereof (other than the financial statements and related schedules and
other financial data included therein or omitted therefrom and the
statistical information relating to the tanker industry included therein,
or omitted therefrom, in each case, as to which we express no belief), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and
(ix) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules and
other financial data included therein or omitted therefrom and the
statistical information relating to the tanker industry included therein,
or omitted therefrom, in each case, as to which such counsel expresses no
belief) comply as to form in all material respects with the requirements of
the Act and the rules and regulations thereunder; although they do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection (vi) of this
Section 7(c), they have no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial data included therein
or omitted therefrom and the statistical information relating to the tanker
industry included therein, or omitted therefrom, in each case, as to which
such counsel expresses no belief) 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,
as of its date, the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial data
included therein or omitted therefrom and the statistical information
relating to the tanker industry included therein, or omitted therefrom, in
each case, as to which such counsel expresses no belief) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of such Time of
13
Delivery, either the Registration Statement or the Prospectus or any
further amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related schedules
and other financial data included therein or omitted therefrom and the
statistical information relating to the tanker industry included therein,
or omitted therefrom, in each case, as to which such counsel expresses no
belief) contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and they do not
know of any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to be described
in the Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required.
(d) ▇▇▇▇▇▇▇ ▇. London, general counsel for the Company, shall have
furnished to you his written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The issue and sale of the Shares and the compliance by the
Company with all of the provisions of the Agreement and the consummation of
the transactions therein contemplated will not conflict with or result in
any breach of or violation of any of the terms or provisions of, or
constitute a default under (i) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to me to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) the provisions of the
Articles of Incorporation, Certificate of Formation, By-laws, Limited
Liability Company Agreement, or similar organizational document, as
applicable, of the Company or any of the subsidiaries; or (iii) to the best
of such counsel's knowledge, any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and
(ii) To the best of such counsel's knowledge, neither the Company nor
any of its subsidiaries is (i) in violation of its Certificate of
Incorporation, Certificate of Formation, By-laws or Limited Liability
Company Agreement or (ii) in default in the performance or observance of
any material obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties
may be bound.
(e) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Attorney-At-Law, counsel for the Company, shall
have furnished to you his written opinion, dated the Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the Republic of the
▇▇▇▇▇▇▇▇ Islands, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company's authorized capitalization is 150,000,000 shares and
all of the issued shares of capital stock of the Company (including the
Shares being delivered at
14
such Time of Delivery) have been duly and validly authorized and issued and
are fully paid and non-assessable; and the Shares conform to the
description of the Stock contained in the Prospectus.
(iv) Each subsidiary of the Company formed under the laws of the
Republic of the ▇▇▇▇▇▇▇▇ Islands (the "M.I. Subsidiaries") has been duly
formed and is validly existing as a limited liability company in good
standing under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands; and all of
the membership interests of each such subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims other than those related to pledges of
membership interests under the Credit Agreements;
(v) This Agreement, has been duly authorized, executed and delivered
by the Company;
(vi) The issue and sale of the Shares and the compliance by the
Company and the M.I. Subsidiaries with all of the provisions this Agreement
and the consummation of the transactions herein contemplated will not
conflict with or result in any violation of the provisions of the Articles
of Incorporation, Certificate of Formation, By-laws, Limited Liability
Company Agreement, or similar organizational document, as applicable, of
the Company or any of the M.I. Subsidiaries.
(vii) The laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands applicable
therein permit an action to be brought in a court of competent jurisdiction
in the Republic of the ▇▇▇▇▇▇▇▇ Islands on a final and conclusive judgment
in personam of a United States Federal court or a court of the State of New
York sitting in the Borough of Manhattan in The City of New York (the "New
York Court"), respecting the enforcement of the Shares or this Agreement,
that is not impeachable as void or voidable under the laws of the State of
New York and that is for a sum certain in money if:
(A) the New York Court that rendered such judgment has jurisdiction over
the judgment debtor, as recognized by the courts of the Republic of the
▇▇▇▇▇▇▇▇ Islands and in accordance with its conflict of laws rules (and
submission by the Company in the Underwriting Agreement to the jurisdiction
of the New York Court will be sufficient for this purpose);
(B) such judgment was not obtained by fraud or in a manner contrary to
natural justice and the enforcement thereof would not be inconsistent with
public policy, as such term is understood under the laws of the Republic of
the ▇▇▇▇▇▇▇▇ Islands applicable therein;
(C) the enforcement of such judgment does not constitute, directly or
indirectly, the enforcement of foreign revenue, expropriatory, public or
penal laws;
(D) no new admissible evidence relevant to the action is discovered prior
to the rendering of judgment by the court in the Republic of the ▇▇▇▇▇▇▇▇
Islands; and
15
(E) the action to enforce such judgment is commenced within six years after
the date of such judgment.
To the best of such counsel's knowledge, under present laws of the Republic
of the ▇▇▇▇▇▇▇▇ Islands there is no reason to believe that a court in the
Republic of the ▇▇▇▇▇▇▇▇ Islands would avoid recognition of a judgment of a
New York Court under this Agreement or on the Shares based upon a
reasonable interpretation of public policy.
(f) There shall have been delivered to you agreements executed by all
the directors and executive officers of the Company in the form of the
lock-up agreement attached hereto as Exhibit A;
(g) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, Deloitte &
Touche LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to
you;
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been
any change in the consolidated capital stock, or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of ▇▇▇▇▇▇▇, Sachs & Co.
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(j) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the exchanges
on which such securities trade; (iii) a general
16
moratorium on commercial banking activities declared by either Federal or
New York State authorities or a material disruption in commercial banking
or securities settlement or clearance services in the United States; (iv)
the outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war or (v)
the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment of
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at such
Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(k) The Shares at such Time of Delivery shall have been duly listed,
subject to notice of issuance, on the New York Stock Exchange;
(l) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(m) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery a certificate of an officer of the Company,
satisfactory to you as to the accuracy of the representations and
warranties of the Company, herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery in all material respects,
and as to such other matters as you may reasonably request, and the Company
shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (h) of this Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
from and against any losses, claims, damages or liabilities to which any
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus, or any amendment 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 will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses
are incurred; PROVIDED, HOWEVER, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
any Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in
17
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus, or any amendment 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, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; and
will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding
18
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party 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 the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering received by the
Company bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were
determined by PRO RATA allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or
other parties to purchase such Shares on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Shares, then you shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties
19
satisfactory to you to purchase such Shares on such terms. In the event
that, within the respective prescribed periods, you notify the Company that
you have so arranged for the purchase of such Shares, or the Company
notifies you that they have arranged for the purchase of such Shares, you
or the Company shall have the right to postpone a Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement or the Prospectus
which in your opinion may thereby be made necessary. The term "Underwriter"
as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to
this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one eleventh of the
aggregate number of all the Shares to be purchased at such Time of
Delivery, then the Company shall have the right to require each non
defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non defaulting Underwriter to purchase its pro
rata share (based on the number of Shares which such Underwriter agreed to
purchase hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one eleventh of the aggregate
number of all of the Shares to be purchased at such Time of Delivery, or if
the Company shall not exercise the right described in subsection (b) above
to require non defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the
Second Time of Delivery, the obligations of the Underwriters to purchase
and of the Company to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non defaulting Underwriter or the
Company except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and
payment for the Shares.
20
11. If for any reason any Shares are not delivered by or on behalf of
the Company as provided herein, the Company will reimburse you for all
out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred by you in making preparations for the purchase, sale
and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to you in respect of the Shares not so delivered
except as provided in Sections 6 and 8 hereof.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriter shall be delivered or sent by mail,
telex or facsimile transmission to you at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, Attention: Registration Department; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
Secretary. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriter, and the Company and, to the extent provided in
Section 8 hereof, the officers and directors of the Company and each person
who controls the Company or the Underwriters, and their respective heirs,
executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from the Underwriters shall be deemed a
successor or assign by reason merely of such purchase.
13. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to the conflict of
law principles thereof.
15. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together constitute one and
the same instrument.
16. The Company irrevocably submits to the non-exclusive jurisdiction
of any New York State or United States federal court sitting in The City of
New York over any suit, action or proceeding arising out of or relating to
this Agreement, the Prospectus, the Registration Statement or the offering
of the Shares. The Company irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding brought in such a
court and any claim that any such suit, action or proceeding brought in
such a court has been brought in an inconvenient forum.
21
17. The Company hereby irrevocably appoints CT Corporation System,
with offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, as its agent for
service of process in any suit, action or proceeding described in the
preceding paragraph. The company agrees that service of process in any such
suit, action or proceeding may be made upon it at the office of its agent.
The Company waives, to the fullest extent permitted by law, any other
requirements of or objections to personal jurisdiction with respect
thereto. The Company represents and warrants that its agent has agreed to
act as agent for service of process, and each agrees to take any and all
action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect.
22
If the foregoing is in accordance with your understanding,
please sign and return to us one counterpart hereof for the Company plus
one counterpart hereof for each counsel, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding
agreement between you and the Company.
Very truly yours,
OMI CORPORATION,
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and Treasurer
Accepted as of the date hereof:
/s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
-----------------------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
23
================================================================================
SCHEDULE I
NUMBER OF
OPTIONAL
TOTAL SHARES TO BE
NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM
TO BE OPTION
UNDERWRITER PURCHASED EXERCISED
----------- ---------- ----------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co............................................ 7,875,000 1,181,250
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, LLC........................................ 1,125,000 168,750
--------- ---------
Total.......................................................... 9,000,000 1,350,000
========= =========
24
SCHEDULE II
(All subsidiaries are 100% owned directly or indirectly except as indicated)
COMPANY JURISDICTION
------- ------------
Alliance Chartering LLC (50%) ▇▇▇▇▇▇▇▇ Islands
▇▇▇▇ Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Amazon Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Amazon Transport Inc. Liberia
Ashley Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Bandar Ayu Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Charente Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Colorado Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Columbia Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Dakota Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Danube Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Delaware Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Elbe Shipping LLC Delaware, USA
Elbe Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Fox Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Ganges Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Garonne Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Gemini Tankers LLC ▇▇▇▇▇▇▇▇ Islands
▇▇▇▇▇▇▇▇▇ Shipping LLC ▇▇▇▇▇▇▇▇ Islands
▇▇▇▇▇▇ Shipping LLC ▇▇▇▇▇▇▇▇ Islands
International Product Carriers LLC Delaware, USA
(50%)
International Product Carriers Ltd. Bermuda
(50%)
Isere Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Laurel Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Limar Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Loire Shipping LLC ▇▇▇▇▇▇▇▇ Islands
25
COMPANY JURISDICTION
------- ------------
Madison Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Marne Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Mendala II Transport Inc. Liberia
Moselle Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Neches Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Nile Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Ohio Shipping LLC ▇▇▇▇▇▇▇▇ Islands
OMI Marine Services LLC Delaware, USA
Orontes Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Orontes Shipping Ltd. Malta
Ottawa Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Pagoda Shipping LLC ▇▇▇▇▇▇▇▇ Islands
▇▇▇▇▇▇▇▇ Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Paulina Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Pecos Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Potomac Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Racer Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Radiance Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Rain Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Rhine Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Rhone Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Roanoke Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Rosetta Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Ruby Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Sabine Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Sacramento Shipping LLC ▇▇▇▇▇▇▇▇ Islands
San Jacinto Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Saone Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Seine Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Settebello Shipping LLC Liberia
Severn Shipping LLC ▇▇▇▇▇▇▇▇ Islands
▇▇▇▇▇▇▇ Shipping LLC Delaware, USA
26
COMPANY JURISDICTION
------- ------------
▇▇▇▇▇▇▇ Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Somjin Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Soyang Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Tamar Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Tandjung Ayu Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Tevere Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Thames Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Tiber Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Trent Shipping LLC ▇▇▇▇▇▇▇▇ Islands
Trinity Shipping LLC ▇▇▇▇▇▇▇▇ Islands
UBC Chartering Ltd. Liberia
Volga Shipping LLC ▇▇▇▇▇▇▇▇ Islands
27
ANNEX A
DEFINITION
"Credit Agreements" means the secured reducing revolving credit facility in
the original amount of $348 million by Den Norske Bank, ASA and the banks
and financial institutions identified therein as lenders, dated as of July
27, 2001; the secured term loan facility in the original amount of $40
million by Deutsche Schiffsbank Aktiengesellschaft and the banks and
financial institutions identified therein, dated as of September 7, 2001;
the secured term loan facility in the original amount of $44 million by ING
Bank NV and the banks and financial institutions identified therein, dated
as of December 13, 2001; the amended and restated secured reducing
revolving credit facility in the original amount of $245 million by Nordea
Bank Finland PLC and the banks and financial institutions identified
therein as lenders, dated as of March 14, 2003; the senior secured term
loan in the original amount of $64.8 million by ING Bank NV and the banks
and financial institutions identified therein as lenders, dated as of June
10, 2003; the senior secured loan facility in the original amount of
$34.475 million by Nordea Bank Finland PLC and the banks and financial
institutions identified therein as lenders, dated as of August 11, 2003;
the secured term loan facility in the original amount of $34.3 million by
Deutsche Schiffsbank Aktiengesellschaft and the banks and financial
institutions identified therein, dated as of August 12, 2003; the senior
secured term loan facility in the original amount of $50.4 million by
Societe Generale and the banks and financial institutions identified
therein as lenders, dated December 8, 2003; the senior secured term loan
facility in the original amount of $24 million by NIB Capital Bank NV,
dated December 18, 2003; and the senior secured term loan facility in the
original amount of up to $70.828 million by ING Bank NV and the banks and
financial institutions identified therein, dated as of May 27, 2004.
28
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
OMI CORPORATION
LOCK-UP AGREEMENT
JUNE 24, 2004
▇▇▇▇▇▇▇, Sachs & Co.
As representatives of the several underwriters
named in the Underwriting Agreement
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: OMI Corporation - LOCK-UP AGREEMENT
Ladies and Gentlemen:
The undersigned understands that the underwriters propose to enter into
an Underwriting Agreement with OMI Corporation, a corporation incorporated
under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands (the "Company"),
providing for the sale of the Common Stock of the Company (the "Shares")
pursuant to a Registration Statement on Form S-3 filed with the Securities
and Exchange Commission (the "SEC").
In consideration of the agreement by the underwriters to offer and sell
the Shares, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that,
during the period beginning from the date hereof and continuing to and
including the date 90 days after the date hereof, the undersigned will not
offer, sell, contract to sell, pledge, grant any option to purchase, make
any short sale or otherwise dispose of any shares of Common Stock of the
Company, or any options or warrants to purchase any shares of Common Stock
of the Company, or any securities convertible into, exchangeable for or
that represent the right to receive shares of Common Stock of the Company,
whether now owned or hereinafter acquired, owned directly by the
undersigned (including holding as a custodian) or with respect to which the
undersigned has beneficial ownership within the rules and regulations of
the SEC (collectively the "Undersigned's Shares").
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is
designed to or which reasonably could be expected to lead to or result in a
sale or disposition of the Undersigned's Shares even if such Shares would
be disposed of by someone other than the undersigned. Such prohibited
hedging or other transactions would include without limitation any short
sale or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to any of the Undersigned's
Shares or with respect to any security that includes, relates to, or
derives any significant part of its value from such Shares.
A-1
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a BONA FIDE gift or gifts, provided that the
donee or donees thereof agree to be bound in writing by the restrictions
set forth herein, (ii) to any trust for the direct or indirect benefit of
the undersigned or the immediate family of the undersigned, provided that
the trustee of the trust agrees to be bound in writing by the restrictions
set forth herein, and provided further that any such transfer shall not
involve a disposition for value, (iii) if the undersigned is a corporation,
the undersigned may transfer the Undersigned's Shares to any of its
subsidiaries or affiliates; provided, in each case, that the transferee
agrees to be bound in writing by the restrictions set forth herein, and
provided further that any such transfer shall not involve a disposition for
value, (iv) pursuant to an effective sales plan under Rule 10b5-1 of the
Securities Exchange Act of 1934 that is existing on the date hereof, or (v)
with the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. For purposes of this
Lock-Up Agreement, "immediate family" shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin. In addition,
notwithstanding the foregoing, if the undersigned is a corporation, the
corporation may transfer the capital stock of the Company to any
wholly-owned subsidiary of such corporation; PROVIDED, HOWEVER, that in any
such case, it shall be a condition to the transfer that the transferee
execute an agreement stating that the transferee is receiving and holding
such capital stock subject to the provisions of this Agreement and there
shall be no further transfer of such capital stock except in accordance
with this Agreement, and provided further that any such transfer shall not
involve a disposition for value. No other person now has, or at any time
during the duration of this Lock-Up Agreement will have, the right to cause
a sale or other disposition of any of the Undersigned's Shares other than
in connection with any rights held by the Company pursuant to the
instruments evidencing the grant or sale of the Shares to the Undersigned.
The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the Undersigned's Shares except in compliance with the
foregoing restrictions.
The undersigned understands that the Company and the underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of
the offering. The undersigned further understands that this Lock-Up
Agreement is irrevocable and shall be binding upon the undersigned's heirs,
legal representatives, successors, and assigns.
Very truly yours,
----------------------------------------------
Exact Name of Shareholder or Executive Officer
----------------------------------------------
Authorized Signature
----------------------------------------------
Title
A-2