DRYSHIPS INC. Common Stock ($0.01 par value) SALES AGREEMENT

Exhibit 1
EXECUTION COPY
Common Stock
($0.01 par value)
September 7, 2010
DEUTSCHE BANK SECURITIES, INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
     DryShips, Inc., a ▇▇▇▇▇▇▇▇ Islands corporation (the “Company”), wishes to confirm its agreement with Deutsche Bank Securities Inc. (the “Agent”) as follows:
     Section 1. Issuance and Sale of Shares. On the terms and subject to the conditions of this Sales Agreement (this “Agreement”), the Company may issue and sell through you from time to time, as sales agent (the “Agent”), shares (the “Shares”) of the Company’s common stock, $0.01 par value per share (the “Common Stock”), having an aggregate offering price of up to $350,000,000.
     Section 2. Representations and Warranties. The Company represents and warrants to the Agent that as of the date of this Agreement, any applicable Registration Statement Amendment Date (as defined in Section 4 below), each Company Periodic Report Date (as defined in Section 4 below), each Applicable Time (as defined in Section 2(b) below) and each Settlement Date (as defined in Section 4 below):
     (a) Compliance with Registration Requirements. The Company is a “foreign private issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the “1933 Act”). The Company’s Common Stock has been registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and is listed on the Nasdaq Global Select Market (“Nasdaq”) under the trading symbol “DRYS”. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “Commission”). The Company filed an “automatic shelf registration statement” as defined in Rule 405 under the 1933 Act on Form F-3 in respect of the Company’s securities (including the Shares) on September 7, 2010. Such registration statement became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by the Commission, and no notice of objection of the Commission to the use of such form of registration statement pursuant to Rule 401(g)(2) under the 1933 Act has been received by the Company.. The base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Base Prospectus”; the various parts of such registration statement, excluding any Form T-1 but including all exhibits thereto and any prospectus supplement relating to the Shares that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the prospectus supplement specifically relating to the Shares prepared and filed with the Commission pursuant to Rule 424(b) under

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the 1933 Act is hereinafter called the “Prospectus Supplement”; the Base Prospectus, as amended and supplemented by the Prospectus Supplement, is hereinafter called the “Prospectus”; any reference herein to the Base Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the 1933 Act; any reference to any amendment or supplement to the Base Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Shares filed with the Commission pursuant to Rule 424(b) under the 1933 Act and any documents filed under the 1934 Act, and incorporated therein, in each case after the date of the Base Prospectus, the Prospectus Supplement or the Prospectus, as the case may be; 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 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the 1933 Act relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”).
     (b) No order preventing or suspending the use of the Base Prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission; the Base Prospectus and the Prospectus Supplement, at the time of filing thereof, conformed in all material respects to the requirements of the 1933 Act and the rules and regulations of the Commission thereunder (the “1933 Act Regulations”) and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Prospectus and any applicable Issuer Free Writing Prospectus(es) issued at or prior to each Applicable Time, taken together (collectively, and, with respect to any Shares, together with the public offering price of such Shares, the “General Disclosure Package”) as of each Applicable Time and each Settlement Date, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any applicable Issuer Free Writing Prospectus will not conflict with the information contained in the Registration Statement, the Prospectus Supplement or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the General Disclosure Package as of such Applicable Time, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For the purposes of this Agreement, the “Applicable Time” means, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement.
     (c) Incorporation of Documents by Reference. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and, when read together with the other information in the Prospectus, (a) at the time the Registration Statement became effective, (b) at the time the Prospectus was issued and (c) on the date of this Agreement, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
     (d) Independent Accountants. Each independent registered public accounting firm (the “Independent Accountants”) whose report is included in the Company’s most recent Annual Report on Form 20-F, which are included in or incorporated by reference into the Registration Statement, is a registered independent public accounting firm as required by the 1933 Act and the 1933 Act Regulations.
     (e) Financial Statements. The financial statements included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related

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schedules and notes, present fairly the financial position of the Company and its consolidated Subsidiaries (as defined in Section 2(h) below) at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries for the periods specified; said financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved. The supporting schedules, if any, present fairly in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information, if any, included in the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement.
     (f) No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the Company or any of its Subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its Subsidiaries considered as one enterprise, and (C) except for regular quarterly dividends with respect to Common Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
     (g) Good Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect.
     (h) Good Standing of Subsidiaries. Each subsidiary of the Company (each a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except as disclosed on Schedule I hereto and except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect; except as otherwise disclosed in the Registration Statement or the Prospectus, all of the issued and outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through another Subsidiary free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital stock of any Subsidiary was issued in violation of the preemptive or similar rights, if any, of any securityholder of such Subsidiary. The only active Subsidiaries of the Company are listed on Schedule I hereto.
     (i) Capitalization. The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under the caption “Capitalization” (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus). The shares of issued and outstanding Common Stock have been duly authorized and validly

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issued and are fully paid and non-assessable; none of the outstanding shares of capital stock was issued in violation of the preemptive or other similar rights, if any, of any securityholder of the Company. The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock from NASDAQ, nor has the Company received any notification that the Commission or NASDAQ is contemplating terminating such registration or listing.
     (j) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
     (k) Authorization and Description of Securities. The Shares have been duly authorized and reserved for issuance and sale pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable; the Common Stock conforms to all statements relating thereto contained in the Prospectus and such description conforms to the rights set forth in the instruments defining the same; no holder of the Shares will be subject to personal liability by reason of being such a holder; and the issuance of the Shares is not subject to any preemptive or other similar rights of any securityholder of the Company.
     (l) Shareholder Rights Agreement. The Shareholder Rights Agreement between the Company and the rights agent party thereto constitutes a valid and binding agreement of each such party enforceable against each such party in accordance with its terms; and when issued in accordance with the terms of the Shareholder Rights Agreement, the preferred stock purchase rights, including those associated with the Shares, constitute valid and binding obligations of the Company and the Disclosure Package and the Prospectus contain a summary of the terms of the Shareholder Rights Agreement, which summary is accurate and fair in all material respects.
     (m) Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter or by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect or have been waived by a party authorized to issue such waiver or described in the Registration Statement or Prospectus; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right under the terms of such note, debenture or other evidence of indebtedness to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any subsidiary.

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     (n) Absence of Labor Dispute. No labor dispute with the employees of the Company or any Subsidiary exists or, to the knowledge of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any Subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in either case, would result in a Material Adverse Effect.
     (o) Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, U.S. domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any Subsidiary, which is required to be disclosed in the Registration Statement (other than as disclosed therein), or which might result in a Material Adverse Effect, or which might materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder; the Company does not expect that the aggregate of all pending legal or governmental proceedings to which the Company or any Subsidiary is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, could result in a Material Adverse Effect.
     (p) Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required.
     (q) Possession of Intellectual Property. The Company and its Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by them, and neither the Company nor any of its Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its Subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.
     (r) Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any U.S. domestic or foreign court or governmental authority or agency is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering, issuance or sale of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws.
     (s) Absence of Manipulation. Neither the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate take, directly or indirectly, any action which is designed to or which has constituted or which would be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares. The foregoing shall not include any actions taken by the Agent.
     (t) Possession of Licenses and Permits. The Company and its Subsidiaries possess all such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies as are necessary to conduct the business now operated by them, except where the failure to so possess would not, singly or in

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the aggregate, result in a Material Adverse Effect; the Company and its Subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
     (u) Title to Property. Except as described in the Prospectus, neither the Company nor any of its Subsidiaries owns any interest in real property. The Company and its Subsidiaries have good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (a) are described in the Prospectus or (b) do not, singly or in the aggregate, 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 or any of its Subsidiaries; and all of the leases, subleases and charterparties material to the business of the Company and its Subsidiaries, and under which the Company or any of its Subsidiaries holds properties described in the Prospectus, are in full force and effect, and neither the Company nor any Subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any Subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or such Subsidiary to the continued possession of the leased, subleased or chartered property under any such lease, sublease or charterparty.
     (v) Investment Company Act. The Company is not required, and upon the issuance of the Shares as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be required, to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “1940 Act”).
     (w) Environmental Laws. Except as described in the Registration Statement and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including, without limitation, (i) the applicable regulations and standards adopted by the International Maritime Organization, and (ii) any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and its Subsidiaries have all permits, licenses, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of its Subsidiaries and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of its Subsidiaries relating to Hazardous Materials or any Environmental Laws.

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     (x) Registration Rights. Except as disclosed in the Prospectus, there are no persons with registrations rights or other similar rights to have any securities registered pursuant to the Registration Statement or otherwise registered by the Company under the ▇▇▇▇ ▇▇▇.
     (y) Accounting Controls and Disclosure Controls. (A) The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (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. Since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
          (B) The Company and its consolidated Subsidiaries employ disclosure controls and procedures that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
     (z) Well-Known Seasoned Issuer. (A)(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), and (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the ▇▇▇▇ ▇▇▇) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the 1933 Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the 1933 Act; and (B) at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the ▇▇▇▇ ▇▇▇) of the Shares, the Company was not an “ineligible issuer” as defined in Rule 405 under the 1933 Act.
     (aa) No Commissions. Except as described in the Prospectus, neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person (other than as contemplated by this Agreement) that would give rise to a valid claim against the Company or any of its Subsidiaries or the Agent for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Shares.
     (bb) Actively-Traded Security. The Common Stock is an “actively-traded security” exempted from the requirements of Rule 101 of Regulation M under the 1934 Act by subsection (c)(1) of such rule.
     (cc) Deemed Representation. Any certificate signed by any officer of the Company delivered to the Agent or to counsel for the Agent pursuant to or in connection with this Agreement shall be deemed a representation and warranty by the Company to the Agent as to the matters covered thereby as of the date or dates indicated in such certificate.
     (dd) Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations

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promulgated in connection therewith that are applicable to the Company (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
     (ee) Payment of Taxes. All United States federal income tax returns of the Company and its Subsidiaries required by law to be filed have been filed or extensions have been obtained and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided. The United States federal income tax returns of the Company through the fiscal year ended December 31, 2008 have been filed and no assessment in connection therewith has been made against the Company. The Company and its Subsidiaries have filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other law except insofar as the failure to file such returns would not result in a Material Adverse Effect, and has paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company and its Subsidiaries, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided. The charges, accruals and reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would not result in a Material Adverse Effect.
     (ff) PFIC Status. The Company believes that it did not qualify as a “passive foreign investment company” (“PFIC”) within the meaning of Section 1296 of the United States Internal Revenue Code of 1986, as amended, for its most recently completed taxable year, if any, and believes that it is not likely to qualify as a PFIC in its current or a subsequent taxable year.
     (gg) Insurance. The Company and its Subsidiaries carry or are entitled to the benefits of insurance in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect. The term “insurance” shall include a mutual protection and indemnity association or club. The Company has no reason to believe that any insurer providing coverage to the Company or a Subsidiary is not financially sound or that it or any subsidiary will not be able (A) to renew its existing insurance coverage as and when such policies expire, or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect. Neither of the Company nor any subsidiary has been denied any insurance coverage which it has sought or for which it has applied.
     (hh) Statistical and Market-Related Data. Any statistical and market-related data included in the Registration Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate.
     (ii) Foreign Corrupt Practices Act. Neither the Company nor any of its Subsidiaries, to the knowledge of the Company, any director, officer, agent (which term shall not include the Agent), employee, affiliate or other person acting on behalf 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 and its Subsidiaries, and, to the knowledge of the Company, its and their affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and

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procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
     (jj) Money Laundering Laws. 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 with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
     (kk) OFAC. Neither the Company nor any of its Subsidiaries nor to the knowledge of the Company, any director, officer, agent (which term shall not include the Agent), employee, affiliate or person acting on behalf 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.
     (ll) Vessels. (A) All of the vessels (including, for the avoidance of doubt, drill rigs and drill ships) described in the Registration Statement, the General Disclosure Package and the Prospectus, except for the vessels which the Company or a Subsidiary has contracted to acquire or to have constructed, are owned directly by Subsidiaries; each of the vessels listed on Schedule 2 hereto and specified as being owned (the “Owned Vessels”) by a Subsidiary except for the vessels which the Company or a Subsidiary has contracted to acquire or to have constructed has been duly registered as a vessel under the laws and regulations and flag of the jurisdiction set forth opposite its name on Schedule 2 in the sole ownership of the Subsidiary set forth opposite its name on Schedule 2 and no other action is necessary to establish and perfect such entity’s title to and interest in such vessel as against any charterer or third party; each such Subsidiary has good title to the applicable Owned Vessel, free and clear of all mortgages, pledges, liens, security interests and claims and all defects of the title of record except for those liens arising under credit facilities as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and such other encumbrances which would not, in the aggregate, result in a Material Adverse Effect; and each such Owned 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 jurisdiction where it is registered as would affect its registry with the ship registry of such jurisdiction except for failures to be in good standing which would not, in the aggregate, result in a Material Adverse Effect. Upon delivery to and acceptance by the relevant Subsidiary under the memoranda of agreement or the new building contracts described in the Registration Statement, General Disclosure Package and Prospectus, each of the vessels listed on Schedule 2 hereto and specified as being under contract (the “Contracted Vessels”) for delivery to and acceptance by a Subsidiary will be duly registered as a vessel under the laws of the jurisdiction set forth opposite its name on Schedule 2 in the sole ownership of the Subsidiary set forth opposite its name on Schedule 2, on such date, each such Subsidiary will have good title to the applicable Contracted Vessel, free and clear of all mortgages, pledges, liens, security interests, claims and all defects of the title of record, except for any mortgages, pledges, liens, security interests or claims arising from any financing arrangement which the Company or a Subsidiary may enter to finance the acquisition of the Contracted Vessel and except such encumbrances which would not, in the aggregate, result in a Material Adverse Effect; and each such Contracted Vessel will be in good standing with respect to the payment of past and current taxes, fees and other amounts payable under the laws of the jurisdiction where it is registered as would affect its registry with the ship registry of such jurisdiction.

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          (B) Each Owned Vessel is, and the Company will use reasonable commercial efforts to ensure that each Contracted Vessel will be, operated in compliance with the rules, codes of practice, conventions, protocols, guidelines or similar requirements or restrictions imposed, published or promulgated by any governmental authority or agency, classification society or insurer applicable to the respective vessel (collectively, “Maritime Guidelines”) and all applicable international, national, state and local conventions, laws, regulations, orders, Governmental Licenses and other requirements (including, without limitation, all Environmental Laws), except where such failure to be in compliance would not have, individually or in the aggregate, a Material Adverse Effect. The Company and each applicable subsidiary are, and with respect to the Contracted Vessels will be, qualified to own or lease, as the case may be, and operate such vessels under all applicable international, national, state and local conventions, laws, regulations, orders, Governmental Licenses and other requirements (including, without limitation, all Environmental Laws) and Maritime Guidelines, including the laws, regulations and orders of each such vessel’s flag state, except where such failure to be so qualified would not have, individually or in the aggregate, a Material Adverse Effect.
          (C) Each Owned Vessel is, and each Contracted Vessel will be, classed by any of Lloyd’s Register of Shipping, American Bureau of Shipping, Det Norske Veritas or a classification society which is a full member of the International Association of Classification Societies and each Owned Vessel is, and the Company will use reasonable commercial efforts to ensure each Contracted Vessel will be, in class with valid class and trading certificates, without any overdue recommendations.
     (mm) Issuer Taxes. There are no documentary, stamp or other issuance or transfer taxes or duties or similar fees or charges under U.S. federal law or the laws of any U.S. state, the Republic of Greece or the Republic of the ▇▇▇▇▇▇▇▇ Islands (assuming that the Agent is not a citizen or resident of the Republic of Greece or the Republic of the ▇▇▇▇▇▇▇▇ Islands or is carrying on business or conducting transactions in the Republic of Greece or the Republic of the ▇▇▇▇▇▇▇▇ Islands), or any political subdivision of any thereof, required to be paid in connection with the execution and delivery of this Agreement or the sale and delivery of Shares pursuant hereto.
     Section 3. Sale and Delivery of Shares.
     (a) Subject to the terms and conditions set forth herein, the Company agrees to issue and sell through the Agent acting as sales agent from time to time, and the Agent agrees to use its commercially reasonable efforts to sell as sales agent for the Company, the Shares. Sales of the Shares, if any, through the Agent acting as sales agent will be made by means of ordinary brokers’ transactions on Nasdaq or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices.
     (b) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any trading day (other than a day on which Nasdaq is scheduled to close prior to its regular weekday closing time, each, a “Trading Day”) that the Company has satisfied its obligations under Section 7 of this Agreement and that the Company has instructed the Agent to make such sales. On any Trading Day, the Company may instruct the Agent in the form of written notice reasonably satisfactory to the Agent (or, in the discretion of the Agent, orally if confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by the Agent) as to the maximum number of Shares to be sold by the Agent on such day (in any event not in excess of the number available for issuance under the Prospectus and the currently effective Registration Statement) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell as sales agent all of the Shares so designated by the Company. The Company and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling the Shares, and (B) the Agent will incur no liability or

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obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required by this Agreement.
     (c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in a number in excess of the number of Shares authorized from time to time to be issued and sold under this Agreement, in each case, by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, the Company or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
     (d) The gross sales price of any Shares sold pursuant to this Agreement by the Agent acting as sales agent of the Company shall be the market price prevailing at the time of sale for shares of the Company’s Common Stock sold by the Agent on Nasdaq or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Shares shall be equal to 2% of the gross sales price of the Shares for amounts of Shares sold pursuant to this Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required.
     (e) The Agent shall provide written confirmation to the Company following the close of trading on Nasdaq each day in which Shares are sold under this Agreement setting forth the number of Shares sold on such day, the aggregate gross sales proceeds of the Shares, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to such sales.
     (f) Under no circumstances shall the aggregate offering price or number, as the case may be, of Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Shares of Common Stock (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement or (iii) authorized from time to time to be issued and sold under this Agreement under the Company’s then effective Articles of Incorporation and the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Shares be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing.
     (g) If either party believes that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act (applicable to securities with an average daily trading volume of $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) are not satisfied with respect to the Company or the Shares, it shall promptly notify the other party and sales of Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
     (h) Settlement for sales of the Shares pursuant to this Section 3 will occur on the third business day that is also a Trading Day following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Agent for settlement on such date shall be delivered by

11

 

the Company to the Agent against payment of the Net Proceeds from the sale of such Shares. Settlement for all Shares shall be effected by book-entry delivery of Shares to the Agent’s account at The Depository Trust Company against payments by the Agent of the Net Proceeds from the sale of such Shares in same day funds delivered to an account designated by the Company. If the Company shall default on its obligation to deliver Shares on any Settlement Date, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the applicable Net Proceeds on any Settlement Date for Shares delivered by the Company, the Agent will pay the Company interest based on the effective overnight federal funds rate until such proceeds, together with such interest, have been fully paid.
     (i) Notwithstanding any other provision of this Agreement, the Company and the Agent agree that no sales of Shares shall take place, and the Company shall not request the sale of any Shares that would be sold, and the Agent shall not be obligated to sell, during the period beginning 10 days prior to an earnings announcement, or during any other period in which the Company is, or could be deemed to be, in possession of material non-public information; provided that, unless otherwise agreed between the Company and the Agent, for purposes of this paragraph (i) such period shall be deemed to end on the second trading day following the date on which the Company’s next subsequent Annual Report on Form 20-F or Report on Form 6-K containing interim financial statements (which are incorporated by reference into the registration statement), as the case may be, is filed with the Commission.
     (j) At each Applicable Time, Settlement Date, Registration Amendment Date and each Company Periodic Report Date, the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Agent to use its commercially reasonable efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 7 of this Agreement.
     Section 4. Covenants. The Company agrees with the Agent:
     (a) During any period when the delivery of a prospectus is required in connection with the offering or sale of Shares (whether physically or through compliance with Rule 153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the 1933 Act), (i) to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to any Settlement Date which shall be reasonably disapproved by the Agent promptly after reasonable notice thereof and to advise the Agent, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish the Agent with copies thereof, (ii) to file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the 1933 Act, (iii) to file promptly all reports required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act, (iv) to advise the Agent, 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 the Prospectus or other prospectus in respect of the Shares, of any notice of objection of the Commission to the use of the form of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, 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 form of the Registration Statement or the Prospectus or for additional information, and (v) in the event of the issuance of any such stop order or of any such order preventing or suspending the use of the Prospectus in respect of the Shares or suspending any such qualification, to promptly use its commercially reasonable efforts to obtain the withdrawal of

12

 

such order; and in the event of any such issuance of a notice of objection, promptly to take such reasonable steps as may be necessary to permit offers and sales of the Shares by the Agent, which may include, without limitation, amending the Registration Statement or filing a new registration statement, at the Company’s expense (references in this Agreement to the Registration Statement shall include any such amendment or new registration statement).
     (b) Promptly from time to time to take such action as the Agent may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as the Agent 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 sale 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; and to promptly advise the Agent of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
     (c) During any period when the delivery of a prospectus is required (whether physically or through compliance with Rules 153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the ▇▇▇▇ ▇▇▇) in connection with the offering or sale of Shares, the Company will make available to the Agent, as soon as practicable after the execution of this Agreement, and thereafter from time to time furnish to the Agent, copies of the most recent Prospectus in such quantities and at such locations as the Agent may reasonably request for the purposes contemplated by the 1933 Act. During any period when the delivery of a prospectus is required (whether physically or through compliance with Rules 153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the ▇▇▇▇ ▇▇▇) in connection with the offering or sale of Shares, and if at such time any event 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 same period to amend or supplement the Prospectus or to file under the 1934 Act any document incorporated by reference in the Prospectus in order to comply with the 1933 Act or the 1934 Act, to notify the Agent and to file such document and to prepare and furnish without charge to the Agent as many written and electronic copies as the Agent 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.
     (d) To make generally available to its securityholders as soon as practicable, but in any event not later than sixteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the 1933 Act), an earnings statement of the Company and its Subsidiaries (which need not be audited) complying with Section 11(a) of the 1933 Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158).
     (e) To pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1) under the 1933 Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the 1933 Act.
     (f) To use the Net Proceeds received by it from the sale of the Shares pursuant to this Agreement in the manner specified in the Disclosure Package.
     (g) In connection with the offering and sale of the Shares, the Company will file with NASDAQ all documents and notices, and make all certifications, required by NASDAQ of companies that have securities that are listed on NASDAQ, and will use it commercially reasonable efforts to maintain such listing.

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     (h) To not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Shares.
     (i) At each Applicable Time, each Settlement Date, each Registration Statement Amendment Date (as defined below), each Company Earnings Report Date (as defined below) and each Company Periodic Report Date (as defined below), the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. In each Annual Report on Form 20-F or Report on Form 6-K (containing financial statements, supporting schedules or other financial data and incorporated by reference into the registration statement) filed by the Company in respect of any quarter in which sales of Shares were made by or through the Agent under this Agreement (each date on which any such document is filed, and any date on which an amendment to any such document is filed, a “Company Periodic Report Date”), the Company shall set forth with regard to such quarter the number of Shares sold through the Agent under this Agreement, the Net Proceeds received by the Company and the compensation paid by the Company to the Agent with respect to sales of Shares pursuant to this Agreement.
     (j) Upon commencement of the offering of Shares under this Agreement and on each tenth business day after the commencement of the offering of Shares under this Agreement, promptly after each (i) date the Registration Statement or the Prospectus shall be amended or supplemented (other than (1) by an amendment or supplement providing solely for the determination of the terms of the Shares, (2) in connection with the filing of a prospectus supplement that contains solely the information set forth in Section 4(i), (3) in connection with the filing of any reports on Form 6-K (other than any reports on Form 6-K which contain financial statements, supporting schedules or other financial data, and are incorporated by reference into the registration statement, or (4) by a prospectus supplement relating to the offering of other securities (including, without limitation, other shares of Common Stock)) (each such date, a “Registration Statement Amendment Date”), (ii) date on which a report on Form 6-K shall be furnished by the Company in respect of a public disclosure of material non-public information regarding the Company’s results of operations or financial condition for a completed quarterly or annual fiscal period (a “Company Earnings Report Date”) and (iii) each Company Periodic Report Date, and on such other dates as the Agent shall reasonably request, the Company will furnish or cause to be furnished forthwith to the Agent a certificate dated the date of effectiveness of such amendment or the date of filing with the Commission of such supplement or other document or such other appropriate date, as the case may be, in a form reasonably satisfactory to the Agent to the effect that the statements contained in the certificate referred to in Section 7(g) of this Agreement which were last furnished to the Agent are true and correct at the time of such amendment, supplement or filing, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement, the Disclosure Package and the Prospectus as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 7(g), but modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented, or to the document incorporated by reference into the Prospectus, to the time of delivery of such certificate. As used in this paragraph, to the extent there shall be an Applicable Time on or following the date referred to in clause (i) or (ii) above, “promptly” shall be deemed to be on or prior to the next succeeding Applicable Time.
     (k) On or prior to the date of the first instruction to sell Shares made by the Company to the Agent pursuant to Section 3(b), and on each thirtieth calendar day thereafter, promptly after each (i) Registration Statement Amendment Date, (ii) Company Earnings Report Date, and (iii) Company Periodic Report Date, and on such other dates as the Agent shall reasonably request, the Company will furnish or cause to be furnished to the Agent and to counsel to the Agent the written opinion and letter of each Company counsel or other counsel reasonably satisfactory to the Agent, dated the date of

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effectiveness of such amendment or the date of filing with the Commission of such supplement or other document, as the case may be, in a form and substance reasonably satisfactory to the Agent and its counsel, of the same tenor as the opinions and letters referred to in Section 7(c) of this Agreement, but modified as necessary to relate to the Registration Statement, the Disclosure Package and the Prospectus as amended and supplemented, or to the document incorporated by reference into the Prospectus, to the time of delivery of such opinion and letter or, in lieu of such opinion and letter, counsel last furnishing such letter to the Agent shall furnish such Agent with a letter substantially to the effect that the Agent may rely on such last opinion and letter to the same extent as though each were dated the date of such letter authorizing reliance (except that statements in such last letter shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance). As used in this paragraph, to the extent there shall be an Applicable Time on or following the date referred to in clause (i) or (ii) above, promptly shall be deemed to be on or prior to the next succeeding Applicable Time.
     (l) Upon commencement of the offering of Shares under this Agreement, on each thirtieth calendar day thereafter, promptly after each (i) Registration Statement Amendment Date, and (ii) Company Periodic Report Date, and on such other dates as the Agent shall reasonably request, the Company will cause each of the Independent Accountants, or other independent accountants reasonably satisfactory to the Agent, to furnish to the Agent a letter, dated the date of effectiveness of such amendment or the date of filing of such supplement or other document with the Commission, as the case may be, in form reasonably satisfactory to the Agent and its counsel, of the same tenor as the letter referred to in Section 7(e) hereof, but modified as necessary to relate to the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented, or to the document incorporated by reference into the Prospectus, to the date of such letter. As used in this paragraph, to the extent there shall be an Applicable Time on or following the date referred to in clause (i) or (ii) above, promptly shall be deemed to be on or prior to the next succeeding Applicable Time.
     (m) The Company consents to the Agent’s trading in the Company’s Common Stock for the Agent’s own account and for the account of its clients at the same time as sales of Shares occur pursuant to this Agreement.
     (n) If, to the knowledge of the Company, all filings required by Rule 424 in connection with this offering shall not have been made or if the information that is required to be included in a filing under Rule 424 has not been incorporated by reference in the Registration Statement, or the representations in Section 2(a) shall not be true and correct on the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result of an offer to purchase solicited by the Agent the right to refuse to purchase and pay for such Shares.
     (o) The Company will cooperate timely with any reasonable due diligence review conducted by the Agent or its counsel from time to time in connection with the transactions contemplated hereby, including, without limitation, and upon reasonable notice providing information and making available documents and appropriate corporate officers, during regular business hours and at the Company’s principal offices, as the Agent may reasonably request.
     (p) During a period of 45 days from the date of this Agreement, the Company will not, without the prior written consent of the Agent, (x) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act with respect to any of the foregoing or (y) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic

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consequence of ownership of the Common Stock, or any securities convertible into or exchangeable or exercisable for or repayable with Common Stock, whether any such swap or transaction described in clause (x) or (y) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. Notwithstanding the foregoing, if (1) during the last 17 days of the 45-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 45-day restricted period, the Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the 45-day restricted period, the restrictions imposed in this Section 4(p) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The first sentence of this paragraph shall not apply to (y) the Shares to be offered and sold through the Agent pursuant to this Agreement, and (z) equity incentive awards approved by the board of directors of the Company or the compensation committee thereof or the issuance of Common Stock upon exercise thereof.
     (q) Subject to Section 4(p) of this Agreement, the Company will not, without (i) giving the Agent at least five business days’ prior written notice specifying the nature of the proposed sale and the date of such proposed sale and (ii) the Agent’s suspending activity under this program for such period of time as requested by the Company or as deemed appropriate by the Agent in light of the proposed sale, (A) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, lend or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exchangeable or exercisable for or repayable with Common Stock, or file any registration statement under the 1933 Act with respect to any of the foregoing (other than a shelf registration statement under Rule 415 under the 1933 Act, a registration statement on Form S-8 or post-effective amendment to the Registration Statement) or (B) enter into any swap or other agreement or any transaction that transfers in whole or in part, directly or indirectly, any of the economic consequence of ownership of the Common Stock, or any securities convertible into or exchangeable or exercisable for or repayable with Common Stock, whether any such swap or transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (y) the Shares to be offered and sold through the Agent pursuant to this Agreement, and (z) equity incentive awards approved by the board of directors of the Company or the compensation committee thereof or the issuance of Common Stock upon exercise thereof.
     (r) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Shares remain unsold and this Agreement has not been terminated for any reason, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to the Agent. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to the Agent, and will use its best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the issuance and sale of the Shares to continue as contemplated in the expired registration statement relating to the Shares. References in this Agreement to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
     Section 5. Free Writing Prospectus.
     (a) (i) The Company represents and agrees that without the prior consent of the Agent, it has not made and will not make any offer relating to the Shares (which are to be sold pursuant hereto) that would constitute a “free writing prospectus” as defined in Rule 405 under the 1933 Act; and

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     (ii) the Agent represents and agrees that, without the prior consent of the Company, it has not made and will not make any offer relating to the Shares that would constitute a free writing prospectus required to be filed with the Commission.
     (b) The Company has complied and will comply with the requirements of Rule 433 under the 1933 Act applicable to any Issuer Free Writing Prospectus (including any free writing prospectus identified in Section 5(a) hereof), including timely filing with the Commission or retention where required and legending.
     Section 6. Payment of Expenses.
     (a) The Company covenants and agrees with the Agent 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 1933 Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, the Base Prospectus, Prospectus Supplement, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Agents; (ii) the cost of printing or producing this Agreement, any Blue Sky and Legal Investment Memoranda, 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 4(b) hereof; (iv) any filing fees incident to any required review by Financial Industry Regulatory Authority, Inc. of the terms of the sale of the Shares; (v) all fees and expenses in connection with listing the Shares on the Nasdaq Global Select Market; (vi) the cost of preparing the Shares; (vii) the costs and charges of any transfer agent or registrar or any dividend distribution agent; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, and Section 8 hereof, the Agent will pay all of its own costs and expenses, including the fees of its counsel, transfer taxes on resale of any of the Shares by it, and any advertising expenses connected with any offers it may make.
     (b) If the lesser of (i) an aggregate of 1,000,000 Shares or (ii) a lesser number of Shares having an aggregate offering price of $10,000,000 have not been offered and sold under this Agreement by November 10, 2010 (or such earlier date on which the Company terminates this Agreement), the Company shall reimburse the Agent for all of its reasonable out-of-pocket expenses up to a maximum amount of $50,000, including the reasonable fees and disbursements of a single counsel for the Agent incurred by it in connection with the offering contemplated by this Agreement.
     Section 7. Conditions of Agent’s Obligation. The obligations of the Agent hereunder shall be subject, in its discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are true and correct as of the time of the execution of this Agreement, and as of each Registration Statement Amendment Date, Company Earnings Report Date, Company Periodic Report Date, Applicable Time and Settlement Date, to 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 Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the 1933 Act on or prior to the date hereof and in accordance with Section 4(a) hereof, any other material required to be filed by the Company pursuant to Rule 433(d) under the 1933 Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; 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

17

 

Commission and no notice of objection of the Commission to the use of the form of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Agent.
     (b) On every date specified in Section 4(k) hereof, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Agent, shall have furnished to the Agent such written opinion or opinions, dated as of such date, with respect to such matters as the Agent 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) On every date specified in Section 4(k) hereto, the Agent shall have received favorable opinions (or, in lieu thereof and as provided for in Section 4(k), a reliance letter from counsel), each dated as of such date, in form and substance satisfactory to counsel for the Agent, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇ Islands counsel and U.S. counsel for the Company, or other counsel satisfactory to the Agent, to the effect set forth in Exhibit A-1 and Exhibit A-2 hereto, and to such further effect as counsel for the Agent may reasonably request.
     (d) On or prior to the first Settlement Date, the Agent shall have received favorable opinions, each dated as of such date, in form and substance satisfactory to counsel for the Agent, of each of the counsel to the Company in Greece, to the effect set forth in Exhibit A-3 hereto, and in Malta, Norway, UK, Ghana, The Netherlands, Canada and Cyprus, and for any other jurisdiction in which a Subsidiary is incorporated or where a vessel or rig owned by a Subsidiary is registered each to the effect set forth in Exhibit A-4 and Exhibit A-5 hereto, and to such further effect as counsel for the Agent may reasonably request;
     (e) On every date specified in Section 4(l) hereof, the independent accountants of the Company who have certified the financial statements of the Company and its Subsidiaries included or incorporated by reference in the Registration Statement shall have furnished to the Agent (i) a letter dated as of the date of delivery thereof and addressed to the Agent in form and substance reasonably satisfactory to the Agent and its counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its Subsidiaries included or incorporated by reference in the Registration Statement, or (ii) for the purposes of the letters to be delivered on each tenth business day thereafter or on such other dates as the Agent shall reasonably request, in lieu of the letter referred to in clause (i) of this Section 7(e), a letter as of each tenth business day thereafter or such later date confirming, as of such date, the statements made in the letter furnished upon commencement of the offering of Shares under this Agreement pursuant to this Section 7(e).
     (f) On the first Settlement Date, the Agent shall have received from each of the Independent Accountants a letter, dated as of such Settlement Date, to the effect that they reaffirm the statements made in the letter furnished upon commencement of the offering of Shares under this Agreement pursuant to Section 7(e) hereof.
     (g) (i) Upon commencement of the offering of Shares under this Agreement, the Company will furnish or cause to be furnished promptly to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum price for the sale of such Shares pursuant to this Agreement and the maximum number of Shares that may be issued and sold pursuant to this Agreement or, alternatively, maximum gross proceeds from such sales, as authorized from time to time by the Company’s board of directors or a duly authorized committee thereof or, which certificate may be amended by the Company

18

 

upon the delivery of the instructions contemplated by Section 3(b) of this Agreement and (ii) on each date specified in Section 4(j) and on such other dates as the Agent shall reasonably request, the Agent shall have received a certificate of the chief executive officer or chief financial officer of the Company to the effect that (A) there has been no Material Adverse Effect since the date as of which information is given in the Prospectus as then amended or supplemented, (B) the representations and warranties in Section 2 hereof are true and correct as of such date as though made at and as of such date, and (C) the Company has complied with all of the agreements entered into in connection with the transaction contemplated herein and satisfied all conditions on its part to be performed or satisfied.
     (h) Prior to the filing of the Prospectus Supplement, the Agent shall have received an agreement dated as of the date of this Agreement substantially in the form of Exhibit B hereto signed by the persons listed on Schedule 3 hereto.
     (i) Since the date of the latest audited financial statements then included or incorporated by reference in the Prospectus and the Disclosure Package, no Material Adverse Effect shall have occurred.
     (j) The Company shall have complied with the provisions of Section 4(c) hereof with respect to the timely furnishing of prospectuses.
     (k) On such dates as reasonably requested by the Agent, the Company shall have conducted due diligence sessions, in form and substance satisfactory to the Agent.
     (l) All filings with the Commission required by Rule 424 under the 1933 Act to have been filed by each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
     (m) The Shares shall have received approval for listing on Nasdaq prior to the first Settlement Date.
     Section 8. Indemnification.
     (a) The Company agrees:
     (i) to indemnify and hold harmless the Agent and each person, if any, who controls the Agent, within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any losses, claims, damages or liabilities, joint or several, to which they may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the 1933 Act, or (ii) 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 light of the circumstances under which they were made; provided, however, that the Company will not be liable in any such case to the extent that 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, the Base Prospectus, the Prospectus Supplement or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by or through the Agent specifically for use therein; and

19

 

     (ii) to reimburse the Agent and each such controlling person upon demand for any legal or other out-of-pocket expenses reasonably incurred by the Agent or such controlling person in connection with investigating or defending any such loss, claim, damage or liability, action or proceeding or in responding to a subpoena or governmental inquiry related to the offering of the Shares whether or not the Agent or such controlling person is a party to any action or proceeding.
     (b) The Agent will indemnify and hold harmless the Company, its directors, each of its officers who have signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is controlled by or is in common control with the Company, against any losses, claims, damages or liabilities to which they may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or (ii) 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 light of the circumstances in which they were made; and will reimburse any legal or other expenses reasonably incurred by the Company and any such director, officer or controlling person in connection with the investigating or defending any such loss, claim, damage, liability action or proceeding, provided, however, that the Agent will be liable in each case to the extent, but only to the extent, such untrue statement or alleged untrue statement or omission or alleged omission has been made in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Agent expressly for use therein.
     (c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Section 8, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing. No indemnification provided for in Sections 8 (a) or (b) shall be available to any party who shall fail to give notice as provided in this Section 8(c) if the party to whom notice was not given was unaware of the proceeding to which such notice would have related and was materially prejudiced by the failure to give such notice, but the failure to give such notice shall not relieve the indemnifying party or parties from any liability which it or they may have to the indemnified party for contribution or otherwise than on account of the provisions of Sections 8(a) or (b). In case any such proceeding 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 and shall pay as incurred the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the indemnifying party shall pay as incurred (or within 30 days of presentation) the fees and expenses of the counsel retained by the indemnified party in the event (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the indemnifying party shall have failed to assume the defense and employ counsel acceptable to the indemnified party within a reasonable period of time after notice of commencement of the action. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such firm shall be designated in writing by the Company in the case of parties indemnified pursuant to Sections 8(a)

20

 

or (b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. In addition, the indemnifying party will not, without the prior written consent of the indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party to such claim, action or proceeding) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action or proceeding.
     (d) To the extent the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under Sections 8(a) or (b) above in respect of any losses, claims, damages or liabilities (or actions or proceedings 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 or proceedings in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Agent on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law 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 Agent on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Agent on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total commissions received by the Agent. 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 Agent 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 Agent agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to above in this Section 8(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), (i) the Agent shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares sold by it to the public exceeds the amount of any damages which the Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and (ii) 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) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section 8 shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The indemnity and contribution agreements contained in this Section 8 and the representations and warranties of the Company set forth in this Agreement shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of the Agent or any person controlling the Agent, the Company,

21

 

its directors or officers or any persons controlling the Company, (ii) acceptance of any Shares and payment therefor hereunder, and (iii) any termination of this Agreement. A successor to the Agent, or any person controlling the Agent, or to the Company, its directors or officers, or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in this Section 8.
     Section 9. Representations, Warranties and Agreements to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company and the Agent, 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 the Agent or any controlling person of the Agent, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Shares.
     Section 10. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) the Agent is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of such offering) and (ii) the Agent has not assumed an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Agent has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iii) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Agent has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
     Section 11. Termination.
     (a) The Company shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time. Any such termination shall be without liability of any party to any other party, except that (i) with respect to any pending sale through the Agent for the Company, the obligations of the Company, including in respect of compensation of the Agent, shall remain in full force and effect notwithstanding such termination; and (ii) the provisions of Section 2, Section 4(p), Section 6(b), Section 8 and Section 9 of this Agreement shall remain in full force and effect notwithstanding such termination.
     (b) The Agent shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time. Any such termination shall be without liability of any party to any other party except that the provisions of Section 2, Section 4(p), Section 6(b), Section 8 and Section 9 of this Agreement shall remain in full force and effect notwithstanding such termination.
     (c) This Agreement shall remain in full force and effect until and unless terminated pursuant to Section 11(a) or (b) above or otherwise by mutual agreement of the parties hereto; provided that any such termination by mutual agreement or pursuant to this clause (c) shall in all cases be deemed to provide that Section 2, Section 4(p), Section 6(b), Section 8 and Section 9 of this Agreement shall remain in full force and effect.
     (d) Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case may be. If such termination shall

22

 

occur prior to the Settlement Date for any sale of Shares, such sale shall settle in accordance with the provisions of Section 3(h) hereof.
     Section 12. Notices. All statements, requests, notices and agreements hereunder shall be in writing, and if to the Agent shall be delivered or sent by mail, telex or facsimile transmission to:
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ECM Syndicate Desk
with copies to:
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
and
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
and if to the Company to:
DryShips Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
     Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
     Section 13. Parties. This Agreement shall be binding upon, and inure solely to the benefit of, the Agent and the Company and, to the extent provided in Sections 8 and 9 hereof, the officers and directors of the Company and the Agent and each person who controls the Company or the Agent, 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 Shares through the Agent shall be deemed a successor or assign by reason merely of such purchase.

23

 

     Section 14. Time of the Essence. 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.
     Section 15. Waiver of Jury Trial. The Company and the Agent hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to jury trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
     Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAW.
     Section 17. Jurisdiction. The Company agrees that any suit, action or proceeding against the Company brought by the Agent, the directors, officers, partners, employees and agents of the Agent and each Agent Affiliate, arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any court located in the City and County of New York (a “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 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 this Agreement or the transactions contemplated herein which may be instituted in any New York Court, by the Agent the directors, officers, partners, employees and agents of the Agent and each Agent Affiliate, 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 each of 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 this Agreement may be instituted by the Agent, the directors, officers, partners, employees and agents of the Agent and each Agent Affiliate, in any court of competent jurisdiction in the Republic of the ▇▇▇▇▇▇▇▇ Islands.
     The provisions of this Section 17 shall survive any termination of this Agreement, in whole or in part.
     Section 18. Counterparts. This Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. This Agreement may be delivered by any party by facsimile or other electronic transmission.
     Section 19. Severability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.

24

 

     If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Agent and the Company in accordance with its terms.
                     
            Very truly yours,    
 
                    
            DryShips Inc.    
 
                   
 
          By:   /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇    
                     
 
              Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇    
 
              Title: Chief Executive Officer    
 
                   
Accepted as of the date hereof:                
 
                    
Deutsche Bank Securities Inc.                
 
                    
By:
  /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇                
                     
 
  Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇                
 
  Title: Managing Director                
 
                    
By:
  /s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇                
                     
 
  Name: Isobel Van                
 
  Title: Director                

25

 

Schedule 1
Subsidiaries
Note: The list below includes active subsidiaries and not intermediate holding companies.
             
            Country of
        Ship-Owning Subsidiaries with Vessels in Operations   Incorporation
  1.    
Malvina Shipping Company Limited
  Malta
  2.    
Arleta Navigation Company Limited
  Malta
  3.    
Selma Shipping Company Limited
  Malta
  4.    
Samsara Shipping Company Limited
  Malta
  5.    
Farat Shipping Company Limited
  Malta
  6.    
Borsari Shipping Company Limited
  Malta
  7.    
Onil Shipping Company Limited
  Malta
  8.    
Fabiana Navigation Company Limited
  Malta
  9.    
▇▇▇▇▇▇ Shipping Company Limited
  Malta
  10.    
▇▇▇▇▇▇ Shipping Company Limited
  Malta
  11.    
Celine Shipping Company Limited
  Malta
  12.    
Tempo Marine Co.
  ▇▇▇▇▇▇▇▇ Islands
  13.    
Star Record Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  14.    
Argo Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  15.    
Rea Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  16.    
Gaia Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇.    
▇▇▇▇▇▇ Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  18.    
Trojan Maritime Co.
  ▇▇▇▇▇▇▇▇ Islands
  19.    
Dione Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  20.    
Phoebe Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  21.    
Uranus Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  22.    
Selene Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  23.    
Tethys Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  24.    
Ioli Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  25.    
Iason Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  26.    
Orpheus Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  27.    
Team up Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  28.    
Iokasti Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  29.    
▇▇▇▇▇ Star Owners Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇.    
▇▇▇▇▇▇▇ Star Owners Inc.
  ▇▇▇▇▇▇▇▇ Islands
  31.    
Ionian Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  32.    
NT LLC Investors Ltd.
  ▇▇▇▇▇▇▇▇ Islands
  33.    
Dalian Star Owners Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇.    
▇▇▇▇▇▇ Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  35.    
Cretan Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  36.    
Roscoe Marine Ltd.
  ▇▇▇▇▇▇▇▇ Islands
  37.    
Monteagle Shipping ▇.▇.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇.    
▇▇▇▇▇▇▇ Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
       
 
    
             
        Ship-Owning Subsidiaries with Vessels under Construction    
  39    
Drillship Kithira Owners Inc.
  ▇▇▇▇▇▇▇▇ Islands
  40    
Drillship Skopelos Owners Inc.
  ▇▇▇▇▇▇▇▇ Islands
  41    
Drillship Hydra Owners Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇    
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Owners Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇    
▇▇▇▇▇▇▇▇ Owning Company Limited.
  ▇▇▇▇▇▇▇▇ Islands
  44    
Anathus Owning Company Limited.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
       
 
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
       
 
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

 

 

             
        Ship-Owning Subsidiaries with Vessels Sold    
  45.    
▇▇▇▇▇▇▇ Navigation Company Limited
  Malta
  46.    
Zatac Shipping Company Limited
  Malta
  47.    
Atlas Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  48.    
Maternal Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  49.    
Royerton Shipping Company Limited
  Malta
  50.    
Lancat Shipping Company Limited
  Malta
  51.    
Paternal Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  52.    
▇▇▇▇ Shipping Company Limited
  Malta
  53.    
Hydrogen Shipping Company Limited
  Malta
  54.    
Madras Shipping Company Limited
  Malta
  55.    
Seaventure Shipping Limited
  ▇▇▇▇▇▇▇▇ Islands
  56.    
Classical Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  57.    
Oxygen Shipping Company Limited
  Malta
  58.    
Human Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  59.    
Lotis Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  60.    
Iguana Shipping Company Limited
  Malta
  61.    
Helium Shipping Company Limited
  Malta
  62.    
Blueberry Shipping Company Limited
  Malta
  63.    
Platan Shipping Company Limited
  Malta
  64.    
Silicon Shipping Company Limited
  Malta
  65    
▇▇▇▇▇ Shipping Company Limited
  Malta
  66.    
Lansat Shipping Company Limited
  Malta
  67.    
Annapolis Shipping Company Limited
  Malta
             
        Ocean Rig’s Subsidiaries    
  68.    
Ocean Rig ASA*
  Norway
  69.    
Ocean Rig Norway AS*
  Norway
  70.    
Ocean Rig AS
  Norway
  71.    
Ocean Rig UK Ltd
  United Kingdom
  72.    
Ocean Rig Ltd
  United Kingdom
  73.    
Ocean Rig Ghana Ltd
  Ghana
  74.    
Ocean Rig USA AS
  Norway
  75.    
Ocean Rig 1 AS*
  Norway
  76.    
Ocean Rig 2 AS*
  Norway
  77.    
Ocean Rig Canada Inc.
  Canada
  78.    
Ocean Rig North Sea AS
  Norway
  79.    
Ocean Rig 1 Inc.
  ▇▇▇▇▇▇▇▇ Islands
  80    
Ocean Rig 2 Inc.
  ▇▇▇▇▇▇▇▇ Islands
  81    
Drill Rigs Holding Inc.
  ▇▇▇▇▇▇▇▇ Islands
  82    
Ocean Rig Operations Inc.
  ▇▇▇▇▇▇▇▇ Islands
  83    
Ocean Rig 1 Shareholders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  84    
Ocean Rig 2 Shareholders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  85    
Drillships Holdings Inc.
  ▇▇▇▇▇▇▇▇ Islands
  86    
Kithira Shareholders Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇    
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Inc.
  ▇▇▇▇▇▇▇▇ Islands
  88    
Drillship Hydra Shareholders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  89    
Drillship Paros Shareholders Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇    
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ Coop.
  The Netherlands
  91    
Ocean Rig Black Sea Operations BV
  The Netherlands
  92    
Ocean Rig Drilling Services Coop.
  The Netherlands

2

 

             
        Ocean Rig’s Subsidiaries    
  93    
Ocean Rig Drilling Operations BV
  The Netherlands
  94    
Ocean Rig Deepwater Drilling Ltd.
  Nigeria
  95    
Primelead Limited
  Cyprus
  96    
Drillships Investment Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇    
▇▇▇▇▇ ▇▇▇ ▇▇▇ Inc.
  ▇▇▇▇▇▇▇▇ Islands
             
        Other Subsidiaries    
  98    
Wealth Management Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇    
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Ltd.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇▇    
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Ltd.
  ▇▇▇▇▇▇▇▇ Islands
  101    
Ialysos Shareholders Limited.
  ▇▇▇▇▇▇▇▇ Islands
  102    
Cratylus Challenge Inc.
  ▇▇▇▇▇▇▇▇ Islands
  103    
Sunlight Shipholding One Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇▇    
▇▇▇▇▇▇ Shareholders Limited.
  ▇▇▇▇▇▇▇▇ Islands
  105    
Belulu Shareholders Limited
  ▇▇▇▇▇▇▇▇ Islands
  106    
Iktinos Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands
  107    
Kallikrates Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
  ▇▇▇    
▇▇▇▇▇▇▇ Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  109    
Hippias Challenge Inc.
  ▇▇▇▇▇▇▇▇ Islands
  110    
Prodicus Challenge Inc.
  ▇▇▇▇▇▇▇▇ Islands
  111    
Gorgias Challenge Inc.
  ▇▇▇▇▇▇▇▇ Islands
  112    
Callicles Challenge Inc.
  ▇▇▇▇▇▇▇▇ Islands
  113    
Antiphon Challenge Inc.
  ▇▇▇▇▇▇▇▇ Islands
  114    
Protagoras Challenge Inc.
  ▇▇▇▇▇▇▇▇ Islands
  115    
Lycophron Challenge Inc.
  ▇▇▇▇▇▇▇▇ Islands
  116    
Tinos Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  117    
Sifnos Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  118    
Thassos Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  119    
Milos Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  120    
Pounta Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands
  121    
Thrasymachus Challenge Inc.
  ▇▇▇▇▇▇▇▇ Islands
 
    *Under liquidation

3

 

Schedule 2
     Vessels
                     
            Country of        
        Ship-Owning Subsidiaries with Vessels in Operations   Incorporation   Vessel   Flag State
  1.    
Malvina Shipping Company Limited
  Malta   Coronado   Malta
  2.    
Arleta Navigation Company Limited
  Malta   Xanadu   Malta
  3.    
Selma Shipping Company Limited
  Malta   La Jolla   Malta
  4.    
Samsara Shipping Company Limited
  Malta   Ocean Crystal   Malta
  5.    
Farat Shipping Company Limited
  Malta   Toro   Malta
  6.    
Borsari Shipping Company Limited
  Malta   Catalina   Malta
  7.    
Onil Shipping Company Limited
  Malta   Padre   Malta
  8.    
Fabiana Navigation Company Limited
  Malta   Alameda   Malta
  9.    
▇▇▇▇▇▇ Shipping Company Limited
  Malta   Sonoma   Malta
  10.    
▇▇▇▇▇▇ Shipping Company Limited
  Malta   Manasota   Malta
  11.    
Celine Shipping Company Limited
  Malta   Mendocino   Malta
  12.    
Tempo Marine Co.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Star Record Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Argo Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands   Redondo   Malta
  15.    
Rea Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Gaia Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands   Samsara   Malta
  17.    
Kronos Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Trojan Maritime Co.
  ▇▇▇▇▇▇▇▇ Islands   Brisbane   Malta
  19.    
Dione Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Phoebe Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Uranus Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands   Levanto (ex. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇)   Malta
  22.    
Selene Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Tethys Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Ioli Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands   Paros I   Malta
  25.    
Iason Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Orpheus Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands   Avoca   Malta
  27.    
Team up Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Iokasti Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands   Pachino (ex. VOC Galaxy)   Malta
  29.    
▇▇▇▇▇ Star Owners Inc.
  ▇▇▇▇▇▇▇▇ Islands   Samatan   ▇▇▇▇▇
  ▇▇.    
▇▇▇▇▇▇▇ Star Owners Inc.
  ▇▇▇▇▇▇▇▇ Islands   Capri   Malta
  31.    
Ionian Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands   Positano   Malta
  32.    
NT LLC Investors Ltd.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Dalian Star Owners Inc.
  ▇▇▇▇▇▇▇▇ Islands   Mystic   Malta
  34.    
Aegean Traders Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Cretan Traders Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Monteagle Shipping ▇.▇.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Roscoe Marine Ltd.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇   ▇▇▇▇▇
  ▇▇.    
Ialysos Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands   Amalfi   Malta
                     
        Ship-Owning Subsidiaries with Vessels under            
        Construction            
  39.    
Drillship Hydra Owners Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇    
  40.    
Drillship Paros Owners Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇    

 

 

                     
        Ship-Owning Subsidiaries with Vessels under            
        Construction            
  41.    
Drillship Kithira Owners Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇    
  42.    
Drillship Skopelos Owners Inc.
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇    
  43.    
Pergamos Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇    
  ▇▇.    
Amathus Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands   Hudong Hull no. 1638A    
                     
        Ship-Owning Subsidiaries with Vessels Sold            
  45.    
▇▇▇▇▇▇▇ Navigation Company Limited
  Malta   Solana    
  46.    
Zatac Shipping Company Limited
  Malta   ▇▇▇▇▇▇▇    
  ▇▇.    
Atlas Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands   Menorca    
  48.    
Maternal Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇▇    
  ▇▇.    
Royerton Shipping Company Limited
  Malta   Netadola    
  50.    
Lancat Shipping Company Limited
  ▇▇▇▇▇   ▇▇▇▇▇▇    
  ▇▇.    
Paternal Owning Company Limited
  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇   ▇▇▇▇▇▇▇▇▇▇    
  ▇▇.    
▇▇▇▇ Shipping Company Limited
  Malta   Lanikai    
  53.    
Hydrogen Shipping Company Limited
  Malta   Mostoles    
  54.    
Madras Shipping Company Limited
  Malta   Alona    
  55.    
Seaventure Shipping Limited
  ▇▇▇▇▇▇▇▇ Islands   ▇▇▇▇▇ Oldendorff    
  56.    
Classical Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands   Delray    
  57.    
Oxygen Shipping Company Limited
  Malta   Shibumi    
  58.    
Human Owning Company Limited
  ▇▇▇▇▇▇▇▇ Islands   Estepona    
  59.    
Helium Shipping Company Limited
  Malta   Striggla    
  60.    
Blueberry Shipping Company Limited
  Malta   Panormos    
  61.    
Platan Shipping Company Limited
  Malta   Daytona    
  62.    
Silicon Shipping Company Limited
  Malta   ▇▇▇▇▇▇    
  ▇▇.    
▇▇▇▇▇ Shipping Company Limited
  Malta   Tonga    
  64.    
Lansat Shipping Company Limited
  Malta   Paragon    
  65.    
Annapolis Shipping Company Limited
  Malta   Lanikai (ex Lacerta)    
  66.    
Iguana Shipping Company Limited
  Malta   Iguana    
  67.    
Lotis Traders Inc.
  ▇▇▇▇▇▇▇▇ Islands   Delray (ex Lanikai
ex Lacerta)		    
                     
        Ocean Rig’s Subsidiaries            
  68.    
Ocean Rig 1 Inc.
  ▇▇▇▇▇▇▇▇ Islands   ▇▇▇▇ ▇▇▇▇▇▇▇▇▇   Bahamas
  69.    
Ocean Rig 2 Inc.
  ▇▇▇▇▇▇▇▇ Islands   ▇▇▇▇▇ ▇▇▇▇▇   Bahamas

2

 

Schedule 3
List of Persons and Entities
Subject to Lock-up Agreements
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

 

 

Exhibit A-1
FORM OF OPINION OF ▇▇▇▇▇▇▇▇ ISLANDS COUNSEL
[OMITTED]

 

 

Exhibit ▇-▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ COUNSEL
[OMITTED]

 

 

Exhibit A-3
FORM OF OPINION OF GREEK COUNSEL
[OMITTED]

 

 

Exhibit A-4
FORM OF OPINION OF MALTESE, NORWEGIAN, UK, GUYANESE, CANADIAN, CYPRIOT,
UNITED STATES, DUTCH AND ▇▇▇▇▇▇▇▇ ISLANDS COUNSEL
[OMITTED]

 

 

Exhibit A-5
FORM OF OPINION OF ▇▇▇▇▇▇▇▇ ISLANDS, MALTESE, COUNSEL
[OMITTED]

 

 

Exhibit B
Form of Lock-Up Agreement
                              , 2010
DEUTSCHE BANK SECURITIES, INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
     Re: Proposed Offering by DryShips Inc.
Ladies and Gentlemen:
     The undersigned, a stockholder, officer and director of DryShips Inc., a ▇▇▇▇▇▇▇▇ Islands corporation (the “Company”), understands that Deutsche Bank Securities Inc. (“Deutsche Bank”) proposes to enter into a Sales Agreement (the “Sales Agreement”) with the Company providing for the public offering of shares (the “Securities”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”), pursuant to a Registration Statement on Form F-3. In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder, officer and director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with Deutsche Bank that, during a period of 90 days from the date of the most recently filed Prospectus Supplement (as defined in the Sales Agreement), the undersigned will not, without the prior written consent of Deutsche Bank, directly or indirectly (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, lend or otherwise dispose of or transfer any shares of the Company’s Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or file, or cause to be filed, any registration statement under the Securities Act of 1933, as amended, with respect to any of the foregoing (collectively, the “Lock-Up Securities”) or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise.
     Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of Deutsche Bank, provided that (1) Deutsche Bank receives a signed lock-up agreement for the balance of the lockup period from each donee, trustee or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be reported in any public report or filing with the Securities and Exchange Commission, or otherwise and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers:
          (1) as a bona fide gift or gifts; or
          (2) to any trust or other entity for the direct or indirect benefit of, or wholly-owned by, the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin).

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     Notwithstanding the foregoing, if:
     (1) during the last 17 days of the 90-day lock-up period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or
     (2) prior to the expiration of the 90-day lock-up period, the Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the 90-day lock-up period,
the restrictions imposed by this lock-up agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, as applicable, unless Deutsche Bank waives, in writing, such extension.
     The undersigned hereby acknowledges and agrees that written notice of any extension of the 90-day lock-up period pursuant to the previous paragraph will be delivered by Deutsche Bank to the Company (in accordance with Section 12 of the Sales Agreement) and that any such notice properly delivered will be deemed to have been given to, and received by, the undersigned. The undersigned further agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this lock-up agreement during the period from the date of this lock-up agreement to and including the 34th day following the expiration of the initial 90-day lock-up period, it will give notice thereof to the Company and will not consummate such transaction or take any such action unless it has received confirmation from the Company that the 90-day lock-up period (as may have been extended pursuant to the previous paragraph) has expired.
     The undersigned hereby waives, until the expiration of this agreement, any rights of the undersigned to sell any Lock-Up Securities or any other security issued by the Company pursuant to the Registration Statement and acknowledges and agrees that until the expiration of this agreement, the undersigned will not request the Company to register under the Securities Act of 1933 such Lock-Up Securities or other securities beneficially owned by the undersigned.
     The undersigned understands and agrees that the agreements of the undersigned are irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
     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 Lock-Up Securities except in compliance with the foregoing restrictions.
     Notwithstanding the foregoing, this agreement shall terminate and be of no further force and effect upon a decision by Deutsche Bank Securities Inc or the Company not to proceed with the sale of any Securities prior to the first sale of Securities under the Sales Agreement, which decision shall be set forth in writing and delivered to each of the parties hereto and to the Company.
[signature page follows]

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    Very truly yours,    
 
            
 
  Signature:        
             
 
           
 
  Print Name:        
             

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Document Metadata

Filed: September 7th, 2010