EXHIBIT 10.1
COMMON STOCK PURCHASE AGREEMENT
DATED AS OF NOVEMBER 13, 2003
BY AND BETWEEN
OMI CORPORATION
AND
ACQUA WELLINGTON NORTH AMERICAN EQUITIES FUND, LTD.
TABLE OF CONTENTS
PAGE
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ARTICLE I Definitions.............................................................................................1
Section 1.1 Definitions............................................................................1
ARTICLE II Purchase and Sale of Common Stock......................................................................5
Section 2.1 Purchase and Sale of Stock.............................................................5
Section 2.2 The Shares.............................................................................5
Section 2.3 Registration Statements................................................................6
Section 2.4 Purchase Price and Closing.............................................................6
ARTICLE III Representations and Warranties........................................................................6
Section 3.1 Representations and Warranties of the Company..........................................6
Section 3.2 Representations and Warranties of the Purchaser.......................................13
Article Iv Covenants.............................................................................................15
Section 4.1 Securities Compliance.................................................................15
Section 4.2 Registration and Listing..............................................................15
Section 4.3 Registration Statement................................................................15
Section 4.4 Compliance With Laws..................................................................15
Section 4.5 Keeping of Records and Books of Account...............................................16
Section 4.6 Limitations On Holdings and Issuances.................................................16
Section 4.7 Amendment to Registration Statement...................................................16
Section 4.8 Other Agreements and Other Financings.................................................16
Section 4.9 Stop Orders...........................................................................17
Section 4.10 Amendments to the Registration Statement..............................................18
Section 4.11 Prospectus Delivery...................................................................18
Section 4.12 Selling Restriction...................................................................18
Section 4.13 Non-public Information................................................................19
Section 4.14 Effective Registration Statement......................................................19
Section 4.15 Disclosure of Draw Down Notice........................................................19
Section 4.16 Broker-dealer.........................................................................19
ARTICLE V Conditions to Closing, Draw Downs and Call Options.....................................................19
Section 5.1 Conditions Precedent to Closing by the Company and to the Company's Obligation
to Sell the Shares....................................................................19
Section 5.2 Conditions Precedent to the Closing by the Purchaser..................................20
Section 5.3 Conditions Precedent to the Obligation of the Purchaser to Accept a Draw Down
or Call Option Grant and Purchase the Shares..........................................21
ARTICLE VI Draw Down Terms; Call Option..........................................................................22
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TABLE OF CONTENTS
(continued)
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Section 6.1 Draw Down Terms.......................................................................22
Section 6.2 Purchaser's Call Option...............................................................25
Section 6.3 Aggregate Limit.......................................................................26
ARTICLE VII Termination..........................................................................................26
Section 7.1 Term; Termination by Mutual Consent...................................................26
Section 7.2 Other Termination.....................................................................26
Section 7.3 Effect of Termination.................................................................26
ARTICLE VIII Indemnification.....................................................................................27
Section 8.1 General Indemnity.....................................................................27
Section 8.2 Indemnification Procedures............................................................28
ARTICLE IX Miscellaneous.........................................................................................29
Section 9.1 Fees and Expenses.....................................................................29
Section 9.2 Specific Enforcement, Consent to Jurisdiction.........................................29
Section 9.3 Entire Agreement; Amendment...........................................................30
Section 9.4 Notices...............................................................................30
Section 9.5 Waivers...............................................................................31
Section 9.6 Headings..............................................................................31
Section 9.7 Successors and Assigns................................................................31
Section 9.8 Governing Law.........................................................................32
Section 9.9 Survival..............................................................................32
Section 9.10 Counterparts..........................................................................32
Section 9.11 Publicity.............................................................................32
Section 9.12 Severability..........................................................................32
Section 9.13 Further Assurances....................................................................32
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COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (this "AGREEMENT"), is dated as of
November 13, 2003 by and between OMI Corporation, a ▇▇▇▇▇▇▇▇ Islands Corporation
(the "COMPANY") and Acqua Wellington North American Equities Fund, Ltd., an
international business company incorporated under the laws of the Commonwealth
of The Bahamas (the "Purchaser").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS.
(a) "ACCEPTABLE FINANCING" shall have the meaning assigned to
such term in Section 4.8(b) hereof.
(b) "AGGREGATE LIMIT" shall have the meaning assigned to such
term in Section 2.1 hereof.
(c) "ALTERNATE MARKET" shall mean the Nasdaq National Market,
Nasdaq Small Cap Market, the American Stock Exchange or the OTC Bulletin Board,
whichever is at the time the principal trading exchange or market for the Common
Stock.
(d) "AMENDMENT" shall have the meaning assigned to such term
in Section 4.7 hereof.
(e) "ARTICLES" shall have the meaning assigned to such term in
Section 3.1(c) hereof.
(f) "BELOW THRESHOLD AMOUNT" shall have the meaning assigned
to such term in Section 6.1(i) hereof.
(g) "BROKER-DEALER" shall have the meaning assigned to such
term in Section 8.1(A) hereof.
(h) "BYLAWS" shall have the meaning assigned to such term in
Section 3.1(c) hereof.
(i) "CALL OPTION" means the transactions contemplated under
Section 6.2 of this Agreement.
(j) "CALL OPTION AMOUNT" shall mean the actual amount of
proceeds received by the Company by a Call Option under this Agreement.
(k) "CALL OPTION AMOUNT REQUESTED" shall mean the amount of a
Call Option requested by the Company as provided in Section 6.2 hereof.
(l) "CALL OPTION NOTICE" shall mean a notice sent to the
Company on the Trading Day the Purchaser elects to exercise a Call Option, as
provided in Section 6.2(e) hereof, and substantially in the form attached hereto
as Exhibit F.
(m) "CLOSING" shall have the meaning assigned to such term in
Section 2.4 hereof.
(n) "CLOSING DATE" shall have the meaning assigned to such
term in Section 2.4 hereof.
(o) "COMMISSION" shall mean the Securities and Exchange
Commission or any successor entity.
(p) "COMMISSION DOCUMENTS" shall mean all reports, schedules,
forms, statements and other documents filed by the Company with the Commission
pursuant to the reporting requirements of the Exchange Act, including material
filed pursuant to Section 13(a) or 15(d) of the Exchange Act, which have been
previously filed by the Company and which shall be filed by the Company in the
future during the Investment Period, including, without limitation the Annual
Report on Form 10-K filed by the Company for the year ended December 31, 2002,
the Quarterly Reports on Form 10-Q and the Current Reports on Form 8-K filed by
the Company after December 31, 2002.
(q) "COMMISSION FILINGS" means the Registration Statement, as
the same has been and may be amended from time to time, and all other filings
made by the Company with the Commission prior to or after the date hereof
pursuant to the Exchange Act.
(r) "COMMON STOCK" means the Company's common stock, $0.50 par
value per share.
(s) "DTC" shall have the meaning assigned to such term in
Section 6.1(l).
(t) "DWAC" shall have the meaning assigned to such term in
Section 6.1(l).
(u) "DRAW DOWN" means the transactions contemplated under
Section 6.1 of this Agreement.
(v) "DRAW DOWN AMOUNT" means the actual amount of proceeds
received by the Company by a Draw Down under this Agreement.
(w) "DRAW DOWN AMOUNT REQUESTED" shall mean the amount of a
Draw Down requested by the Company in its Draw Down Notice as provided in
Section 6.1(j) hereof.
(x) "DRAW DOWN DISCOUNT PRICE" shall have the meaning assigned
to such term in Section 6.1(b) hereof.
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(y) "DRAW DOWN EXERCISE DATE" shall have the meaning assigned
to such term in Section 6.1(a) hereof.
(z) "DRAW DOWN NOTICE" shall mean a notice sent by the Company
to exercise a Draw Down as provided in Section 6.1(j) hereof.
(aa) "DRAW DOWN PRICING PERIOD" shall mean a period of twenty
(20) consecutive Trading Days commencing on the first Trading Day designated as
the start date of such draw down pricing period in the Draw Down Notice, or such
other period mutually agreed upon by the Purchaser and the Company.
(bb) "ENVIRONMENTAL LAWS" shall have the meaning assigned to
such term in Section 3.1(r) hereof.
(cc) "ERISA AFFILIATE" shall have the meaning assigned to such
term in Section 3.1(y) hereof.
(dd) "EVENT PERIOD" shall have the meaning assigned to such
term in Section 7.2 hereof.
(ee) "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder.
(ff) "GAAP" shall mean generally accepted accounting
principles in the United States of America as applied by the Company.
(gg) "INDEBTEDNESS" shall have the meaning assigned to such
term in Section 3.1(k) hereof.
(hh) "INVESTMENT PERIOD" shall have the meaning assigned to
such term in Section 7.1 hereof.
(ii) "KNOWLEDGE" shall mean actual knowledge of any officers
or directors of the Company and the knowledge that such officers and directors
should have had after reasonable inquiry.
(jj) "MATERIAL ADVERSE EFFECT" shall mean any effect on the
business, prospects, operations, properties or financial condition of the
Company that is material and adverse to the Company and its subsidiaries and
affiliates, taken as a whole, and/or any condition, circumstance, or situation
that would prohibit or otherwise interfere with the ability of the Company to
enter into and perform any of its obligations under this Agreement in any
material respect.
(kk) "MATERIAL AGREEMENTS" shall have the meaning assigned to
such term in Section 3.1(s) hereof.
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(ll) "MATERIAL CHANGE IN OWNERSHIP" shall mean that the
officers, directors and significant investors of the Company shall beneficially
own in the aggregate less than 1.5% of the outstanding Common Stock.
(mm) "NYSE" means the New York Stock Exchange or any successor
thereto.
(nn) "OTHER FINANCING" shall have the meaning assigned to such
term in Section 4.8(b) hereof.
(oo) "OTHER FINANCING NOTICE" shall have the meaning assigned
to such term in Section 4.8(b) hereof.
(pp) "PERMITTED TRANSACTION" shall have the meaning assigned
to such term in Section 4.8(b) hereof.
(qq) "PRO-RATA AMOUNT" shall equal the Draw Down Amount
Requested multiplied by a fraction, the numerator of which is one (1) and the
denominator of which equals the number of Trading Days in the Draw Down Pricing
Period.
(rr) "PROSPECTUS" as used in this Agreement means the
prospectus with respect to this Agreement in the form included in the
Registration Statement as supplemented by any supplement to the Prospectus filed
with the Commission pursuant to Rule 424(b) promulgated under Securities Act,
or, if the prospectus included in the Registration Statement omits information
in reliance on Rule 430A under the Securities Act, and such information is
included in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Securities Act, the term "PROSPECTUS" as used in this Agreement means the
prospectus in the form included in the Registration Statement, as amended, as
supplemented by the addition of the Rule 430A information contained in the
Prospectus filed with the Commission pursuant to Rule 424(b).
(ss) "REGISTRATION STATEMENT" shall mean the registration
statement on Form S-3, Commission File Number 333-105195 under the Securities
Act, filed with the Securities and Exchange Commission for the registration of
the Shares, as such Registration Statement may be amended from time to time,
including by the Amendment.
(tt) "SECURITIES ACT" shall mean the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder.
(uu) "SETTLEMENT DATE" shall have the meaning assigned to such
term in Section 6.1(e) hereof.
(vv) "SHARES" shall mean, collectively, the shares of Common
Stock of the Company issuable to the Purchaser upon exercise of any Draw Down
and those shares of Common Stock issuable to the Purchaser upon exercise of any
Call Option.
(ww) "THRESHOLD PRICE" is the lowest price at which the
Company may set in the Draw Down Notice to sell Shares during each Draw Down
Pricing Period (not taking into account the Draw Down Discount Price during such
Draw Down Pricing Period); provided, however, that at no time shall the
Threshold Price be set below two dollars ($2.00) (as adjusted
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for stock splits, reverse stock splits, recapitalizations and the like) per
share unless the Company and the Purchaser mutually agree.
(xx) "TRADING DAY" shall mean a trading day on the NYSE.
(yy) "TRADING DAY NUMBER" shall have the meaning assigned to
such term in Section 6.1(m) hereof.
(zz) "TRUNCATE NOTICE" shall have the meaning assigned to such
term in Section 6.1(m) hereof.
(aaa) "TRUNCATED DRAW DOWN ALLOCATION AMOUNT" shall mean the
portion of the Draw Down Amount Requested that is allocated to the purchase of
Shares in accordance with Section 6.1 hereof for each Trading Day in a Truncated
Pricing Period (as provided in Section 6.1(m) hereof) that (i) the VWAP equals
or exceeds the Threshold Price, and (ii) the VWAP is below the Threshold Price
and the Purchaser elects to purchase the Common Stock at the Threshold Price in
accordance with clauses (i) and (m) of Section 6.1 hereof.
(bbb) "TRUNCATED PRICING PERIOD" shall have the meaning
assigned to such term in Section 6.1(m) hereof.
(ccc) "UNALLOCATED DAY" shall have the meaning assigned to
such term in Section 6.1 (i) hereof.
(ddd) "VWAP" shall mean the daily volume weighted average
price (based on a Trading Day from 9:30 a.m. to 4:00 p.m. (New York time)) of
the Company's Common Stock on the NYSE or an Alternate Market as reported by
Bloomberg Financial LP using the AQR function.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
Section 2.1 PURCHASE AND SALE OF STOCK. Subject to the terms and
conditions of this Agreement, the Company shall issue and sell to the Purchaser
and the Purchaser shall purchase from the Company during the Investment Period
up to a maximum of $57,000,000 of Common Stock (the "AGGREGATE LIMIT") through
(i) up to eighteen (18) monthly Draw Downs during the Investment Period as
provided in Section 6.1 hereof and (ii) one (1) or more Call Options which the
Company may in its discretion grant to the Purchaser and which may be exercised
by the Purchaser during the applicable Draw Down Pricing Period, as provided in
Section 6.2 hereof. The aggregate dollar amount of all Draw Down Amounts and
Call Option Amounts pursuant to the terms and conditions of this Agreement shall
not exceed the Aggregate Limit.
Section 2.2 THE SHARES. The Company has authorized and has reserved and
covenants to continue to reserve, subject to Section 4.4(b) hereof, free of
preemptive rights and other similar contractual rights of stockholders, a
sufficient number of its authorized but unissued shares of its Common Stock to
cover the Shares to be issued in connection with all Draw Downs and Call
Options.
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Section 2.3 REGISTRATION STATEMENTS. The Company has prepared and filed
with the Commission in accordance with the provisions of the Securities Act, the
Registration Statement, including a Prospectus. The Registration Statement was
declared effective by the Commission on May 15, 2003. Pursuant to Section 4.7,
the Company will file with the Commission a post-effective amendment (the
"AMENDMENT") to the Registration Statement relating to this Agreement.
Section 2.4 PURCHASE PRICE AND CLOSING. In consideration of and in
express reliance upon the representations, warranties, covenants, terms and
conditions of this Agreement, the Company agrees to issue and sell to the
Purchaser, and the Purchaser agrees to purchase, that number of the Shares to be
issued in connection with each Draw Down and exercise of each Call Option in
accordance with the terms and conditions of this Agreement. The execution of
this Agreement shall take place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "CLOSING")
at 10:00 a.m. (New York time) on (i) November 13, 2003 or (ii) such other time
and place or on such date as the Purchaser and the Company may agree upon (the
"CLOSING DATE"). Each party shall deliver all documents, instruments and
writings required to be delivered by such party pursuant to this Agreement at or
prior to the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby makes the following representations and warranties to the Purchaser:
(a) ORGANIZATION, GOOD STANDING AND POWER. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the ▇▇▇▇▇▇▇▇ Islands and has the requisite corporate power to own, lease
and operate its properties and assets and to conduct its business as it is now
being conducted. As of the date hereof, the Company does not have any
subsidiaries (as defined in Section 3.1(g)) except as set forth in the
Commission Documents, the Commission Filings or on Schedule 3.1(a) attached
hereto. The Company and each such subsidiary is duly qualified as a foreign
corporation to do business and is in good standing in every jurisdiction in
which the nature of the business conducted or property owned by it makes such
qualification necessary except for any jurisdiction in which the failure to be
so qualified will not result in a Material Adverse Effect.
(b) AUTHORIZATION; ENFORCEMENT. The Company has the requisite
corporate power and authority to enter into and perform this Agreement and to
issue and sell the Shares in accordance with the terms hereof. The execution,
delivery and performance of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action, and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required. This Agreement has been duly executed and delivered by the Company.
This Agreement constitutes, or shall constitute when executed and delivered, a
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
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conservatorship, receivership or similar laws relating to, or affecting
generally the enforcement of, creditor's rights and remedies or by other
equitable principles of general application.
(c) CAPITALIZATION. The authorized capital stock of the
Company and the shares thereof issued and outstanding as of November 13, 2003
are set forth in the Registration Statement or on Schedule 3.1(c) attached
hereto. All of the outstanding shares of Common Stock have been duly and validly
authorized, and are fully paid and nonassessable. Except as set forth in the
Commission Documents, the Commission Filings or on Schedule 3.1(c) attached
hereto, as of the date hereof, there are no outstanding options or warrants of
any character whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company. Furthermore, except as set forth in
the Commission Documents, the Commission Filings or Schedule 3.1(c) attached
hereto, as of the date hereof, there are no contracts, commitments,
understandings, or arrangements by which the Company is or may become bound to
issue additional shares of the capital stock of the Company or options,
securities or rights convertible into shares of capital stock of the Company.
Except for customary transfer restrictions contained in agreements entered into
by the Company in order to sell restricted securities or as set forth in the
Commission Documents, the Commission Filings or Schedule 3.1(c) attached hereto,
as of the date hereof, the Company is not a party to, and it has no knowledge
of, any agreement restricting the voting or transfer of any shares of the
capital stock of the Company. Except as set forth in the Commission Documents,
the Commission Filings or Schedule 3.1(c) attached hereto, as of the date hereof
the Company is not a party to any agreement granting registration rights,
preemptive rights or subscription rights to any person with respect to any
shares of its capital stock. Except as set forth on Schedule 3.1(c) attached
hereto, the offer and sale of all capital stock, convertible securities, rights,
warrants, or options of the Company issued prior to the Closing complied with
all applicable federal and state securities laws, and no stockholder has a right
of rescission or damages with respect thereto which would result in a Material
Adverse Effect. The Company has furnished or made available to the Purchaser
true and correct copies of the Company's Articles of Incorporation as in effect
on the date hereof (the "ARTICLES"), and the Company's Bylaws as in effect on
the date hereof (the "BYLAWS").
(d) ISSUANCE OF SHARES. The Shares to be issued under this
Agreement have been duly authorized by all necessary corporate action and, when
paid for and issued in accordance with the terms hereof, the Shares shall be
validly issued and outstanding, fully paid and nonassessable, and the Purchaser
shall be entitled to all rights accorded to a holder of Common Stock.
(e) NO CONFLICTS. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated herein do not (i) violate any provision of the
Company's Articles or Bylaws, (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any material agreement, mortgage, deed of trust, indenture,
note, bond, license, lease agreement, instrument or obligation to which the
Company is a party, (iii) create or impose a lien, charge or encumbrance on any
property of the Company under any agreement or any commitment to which the
Company is a party or by which the Company is bound or by which any of its
respective properties or assets are bound, or (iv) result in a violation of any
federal,
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state, local or foreign statute, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations) applicable to the
Company or any of its subsidiaries or by which any property or asset of the
Company or any of its subsidiaries are bound or affected, except, in all cases
(other than violations of federal securities laws), for such conflicts,
defaults, terminations, amendments, acceleration, cancellations and violations
as would not, individually or in the aggregate, result in a Material Adverse
Effect. The Company is not required under federal, state or local law, rule or
regulation to obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency in order for it to
execute, deliver or perform any of its obligations under this Agreement, or
issue and sell the Shares to the Purchaser in accordance with the terms hereof
(other than any filings which may be required to be made by the Company with the
Commission or NYSE subsequent to the Closing and the Amendment); provided,
however, that, for purposes of the representation made in this sentence, the
Company is assuming and relying upon the accuracy of the representations,
warranties and agreements of the Purchaser herein.
(f) COMMISSION DOCUMENTS, FINANCIAL STATEMENTS. The Common
Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act and,
except as disclosed in the Commission Documents, the Commission Filings or on
Schedule 3.1(f) attached hereto, as of the date hereof the Company has timely
filed all Commission Documents. The Company has not provided to the Purchaser
any information which, according to applicable law, rule or regulation, should
have been disclosed publicly by the Company but which has not been so disclosed,
other than with respect to the transactions contemplated by this Agreement. As
of their respective dates, the Commission Documents complied in all material
respects with the requirements of the Exchange Act and other federal, state and
local laws, rules and regulations applicable to them, and, as of their
respective dates, such Commission Documents did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the Commission Documents comply as to form
in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission or other applicable rules and
regulations with respect thereto as of the date of filing. Such financial
statements have been prepared in accordance with GAAP applied on a consistent
basis during the periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may not include footnotes or may be
condensed or summary statements), and fairly present in all material respects
the financial position of the Company and its subsidiaries as of the dates
thereof and the results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments).
(g) SUBSIDIARIES. The Commission Documents, the Commission
Filings or Schedule 3.1(g) attached hereto set forth each subsidiary of the
Company as of the date hereof, showing the jurisdiction of its incorporation or
organization and showing the percentage of the Company's ownership of the
outstanding stock or other interests of such subsidiary. For the purposes of
this Agreement, "subsidiary" shall mean any corporation or other entity of which
at least a majority of the securities or other ownership interest having
ordinary voting power (absolutely or contingently) for the election of directors
or other persons performing similar functions are at the time owned directly or
indirectly by the Company and/or any of its other
8
subsidiaries. Except as set forth in the Commission Documents or the Commission
Filings, none of such subsidiaries is a "significant subsidiary" as defined in
Regulation S-X.
(h) NO MATERIAL ADVERSE EFFECT. Since December 31, 2002, the
Company has not experienced or suffered any Material Adverse Effect.
(i) NO UNDISCLOSED LIABILITIES. Except as disclosed in the
Commission Documents, the Commission Filings or on Schedule 3.1(i) attached
hereto, neither the Company nor any of its subsidiaries has any liabilities,
obligations, claims or losses (whether liquidated or unliquidated, secured or
unsecured, absolute, accrued, contingent or otherwise) that would be required to
be disclosed on a balance sheet of the Company or any subsidiary (including the
notes thereto) in conformity with GAAP and are not disclosed in the Commission
Documents or Commission Filings, other than those incurred in the ordinary
course of the Company's or its subsidiaries respective businesses since December
31, 2002 and which, individually or in the aggregate, do not or would not result
in a Material Adverse Effect.
(j) NO UNDISCLOSED EVENTS OR CIRCUMSTANCES. No event or
circumstance has occurred or exists with respect to the Company or its
subsidiaries or their respective businesses, properties, prospects, operations
or financial condition, which, under applicable law, rule or regulation,
requires public disclosure or announcement by the Company but which, at the time
the Amendment is declared effective by the Commission, will not have been so
publicly announced or disclosed except for events or circumstances which
individually or in the aggregate, do not or would not result in a Material
Adverse Effect.
(k) INDEBTEDNESS. Except as set forth on Schedule 3.1(k)
attached hereto, the Commission Documents or Commission Filings set forth all
outstanding secured and unsecured Indebtedness of the Company or any subsidiary,
or for which the Company or any subsidiary has commitments. For the purposes of
this Agreement, "INDEBTEDNESS" shall mean (a) any liabilities for borrowed money
or amounts owed in excess of $1,000,000 (other than trade accounts payable
incurred in the ordinary course of business), (b) all guaranties, endorsements
and other contingent obligations in respect of Indebtedness of others, whether
or not the same are or should be reflected in the Company's balance sheet (or
the notes thereto), except guaranties by endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of
business; and (c) the present value of any lease payments in excess of
$1,000,000 due under leases required to be capitalized in accordance with GAAP.
Neither the Company nor any subsidiary is in default with respect to any
Indebtedness.
(l) TITLE TO ASSETS. Each of the Company and its subsidiaries
has good and marketable title to all of their respective real and personal
property reflected in the Commission Documents or the Commission Filings, free
of any mortgages, pledges, charges, liens, security interests or other
encumbrances, except for those indicated in the Commission Documents, the
Commission Filings or on Schedule 3.1(l) attached hereto or those that do not or
would not result in a Material Adverse Effect. All said real property leases of
the Company and each of its subsidiaries are valid and subsisting and in full
force and effect in all material respects.
(m) ACTIONS PENDING. There is no action, suit, claim,
investigation or proceeding pending or, to the Knowledge of the Company,
threatened against the Company or
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any subsidiary which questions the validity of this Agreement or the
transactions contemplated hereby or any action taken or to be taken pursuant
hereto or thereto. Except as set forth in the Commission Documents, the
Commission Filings or on Schedule 3.1(m) attached hereto, there is no action,
suit, claim, investigation or proceeding pending or, to the Knowledge of the
Company, threatened, against or involving the Company, any subsidiary or any of
their respective properties or assets and which, if determined adversely to the
Company or its subsidiary, would result in a Material Adverse Effect.
(n) COMPLIANCE WITH LAW. The business of the Company and the
subsidiaries has been and is presently being conducted in all material respects
in accordance with all applicable federal, state and local governmental laws,
rules, regulations and ordinances, except as set forth in the Commission
Documents, the Commission Filings or on Schedule 3.1(n) attached hereto, and
except as, individually or in the aggregate, do not or would not result in a
Material Adverse Effect. The Company and each of its subsidiaries have all
franchises, permits, licenses, consents and other governmental or regulatory
authorizations and approvals necessary for the conduct of its business as now
being conducted by it, except where the failure to possess such franchises,
permits, licenses, consents and other governmental or regulatory authorizations
and approvals, individually or in the aggregate, do not or would not result in a
Material Adverse Effect.
(o) CERTAIN FEES. Except for the placement fee paid by the
Company to Credit Lyonnais, no brokers, finders or financial advisory fees or
commissions will be payable by the Company or any subsidiary with respect to the
transactions contemplated by this Agreement.
(p) DISCLOSURE. Neither this Agreement , the Schedules hereto
or the certificates delivered pursuant to Sections 5.2(g) and 5.3(d) nor, to the
Company's Knowledge, any other documents or instruments furnished to the
Purchaser by or on behalf of the Company or any subsidiary in connection with
the transactions contemplated by this Agreement, taken as a whole, contain any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements made herein or therein, in the light of the
circumstances under which they were made herein or therein, not misleading.
(q) OPERATION OF BUSINESS. The Company or one or more of its
subsidiaries owns or controls all patents, trademarks, service marks, trade
names, copyrights, licenses and authorizations, and all rights with respect to
the foregoing, which are necessary for the conduct of its business as now
conducted without, to the Company's Knowledge, any conflict with the rights of
others, except to the extent set forth in the Commission Documents or the
Commission Filings and except to the extent that any such conflict would not
result in a Material Adverse Effect.
(r) ENVIRONMENTAL COMPLIANCE. Except as disclosed in the
Commission Documents, Commission Filings or on Schedule 3.1(r) attached hereto,
the Company and each of its subsidiaries have obtained all material approvals,
authorization, certificates, consents, licenses, orders and permits or other
similar authorizations of all governmental authorities, or from any other
person, that are required under any Environmental Laws, except for any
approvals, authorization, certificates, consents, licenses, orders and permits
or other similar authorizations the failure of which to obtain does not or would
not result in a Material Adverse
10
Effect. "ENVIRONMENTAL LAWS" shall mean all applicable laws relating to the
protection of the environment including, without limitation, all requirements
pertaining to reporting, licensing, permitting, controlling, investigating or
remediating emissions, discharges, releases or threatened releases of hazardous
substances, chemical substances, pollutants, contaminants or toxic substances,
materials or wastes, whether solid, liquid or gaseous in nature, into the air,
surface water, groundwater or land, or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
hazardous substances, chemical substances, pollutants, contaminants or toxic
substances, material or wastes, whether solid, liquid or gaseous in nature.
Except for such instances as would not individually or in the aggregate result
in a Material Adverse Effect, to the best of the Company's Knowledge, there are
no past or present events, conditions, circumstances, incidents, actions or
omissions relating to or in any way affecting the Company or its subsidiaries
that violate or could reasonably be expected to violate any Environmental Law
after the Closing or that could reasonably be expected to give rise to any
environmental liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study or investigation (i) under any
Environmental Law, or (ii) based on or related to the manufacture, processing,
distribution, use, treatment, storage (including without limitation underground
storage tanks), disposal, transport or handling, or the emission, discharge,
release or threatened release of any hazardous substance.
(s) MATERIAL AGREEMENTS. Except for such instruments which are
described in the Commission Documents, filed with the Commission Filings or
otherwise set forth on Schedule 3.1(s) attached hereto, neither the Company nor
any subsidiary of the Company is a party to any written or oral contract,
instrument, agreement, commitment, obligation, plan or arrangement, a copy of
which would be required to be filed with the Commission as an exhibit to a
registration statement on Form S-1 or an annual report on Form 10-K
(collectively, "MATERIAL AGREEMENTS") if the Company or any subsidiary were
registering securities under the Securities Act. The Company and each of its
subsidiaries has in all material respects performed all the obligations required
to be performed by them to date under the Material Agreements, have received no
notice of default by the Company thereunder and are not in default under any
Material Agreement now in effect, the result of which would result in a Material
Adverse Effect.
(t) TRANSACTIONS WITH AFFILIATES. Except as set forth in the
Commission Documents, the Commission Filings or on Schedule 3.1(t) attached
hereto, there are no loans, leases, agreements, contracts, royalty agreements,
management contracts or arrangements or other continuing transactions exceeding
$60,000 between (a) the Company or any subsidiary, on the one hand, and (b) on
the other hand, any officer, employee or director of the Company, or any of its
subsidiaries, or any person who would be covered by Item 404(a) of Regulation
S-K or any corporation or other entity controlled by such officer, employee,
director or person.
(u) SECURITIES ACT. The Company has complied in all material
respects with all applicable federal and state securities laws in connection
with the offer, issuance and sale of the Shares hereunder.
(i) Each Prospectus included as part of the Registration
Statement as originally filed or as part of any amendment or supplement thereto,
including the Amendment, or filed pursuant to Rule 424 under the Securities Act,
complied and will comply, as applicable,
11
when so filed in all material respects with the applicable provisions of the
Securities Act. The Commission has not issued any order preventing or suspending
the use of any Prospectus.
(ii) The Company meets the requirements for the use of
Form S-3 under the Securities Act. The Registration Statement in the form in
which it became effective, the Amendment in the form in which it will become
effective and also in such form as the Registration Statement, as so amended,
may be further amended or supplemented from time to time, and the Prospectus and
any supplement or amendment thereto when filed with the Commission under Rule
424(b) under the Securities Act, complied and will comply, as the case may be,
in all material respects with the provisions of the Securities Act and did not
and will not at any such times 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
and are made, not misleading, except that this representation and warranty does
not apply to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information relating to
the Purchaser furnished to the Company in writing by or on behalf of the
Purchaser expressly for use therein.
(iii) The Company has not distributed and, prior to the
completion of the distribution of the Shares, will not distribute any offering
material in connection with the offering and sale of the Shares other than the
Registration Statement, the Amendment, the related prospectus or other
materials, if any, permitted by the Securities Act.
(v) EMPLOYEES. As of the date hereof, neither the Company nor
any subsidiary of the Company has any collective bargaining arrangements or
agreements covering any of its employees, except as set forth in the Commission
Documents, the Commission Filings or on SCHEDULE 3.1(v) attached hereto. Except
as set forth in the Commission Filings, Commission Documents or on SCHEDULE
3.1(V) attached hereto, as of the date hereof the Company has no employment
contract or any other similar contract or restrictive covenant, relating to the
right of any officer, employee or consultant to be employed or engaged by the
Company. Each of the Company and its subsidiaries requires its officers,
technical employees and certain consultants to enter into agreements regarding
proprietary information and assignment of inventions, or other similar
agreements containing restrictive covenants. As of the date hereof, except as
disclosed in the Registration Statement, the Commission Documents, the
Commission Filings or SCHEDULE 3.1(V), no officer, consultant or key employee of
the Company or any subsidiary whose termination, either individually or in the
aggregate, would result in a Material Adverse Effect, has terminated or, to the
knowledge of the Company, has any present intention of terminating his or her
employment or engagement with the Company or any subsidiary.
(w) USE OF PROCEEDS. The proceeds from the sale of the Shares
will be used by the Company and its subsidiaries as set forth in the
Registration Statement.
(x) PUBLIC UTILITY HOLDING COMPANY ACT AND INVESTMENT COMPANY
ACT Status. The Company is not a "holding company" or a "public utility company"
as such terms are defined in the Public Utility Holding Company Act of 1935, as
amended. The Company is not, and as a result of and immediately upon Closing
will not be, an "investment company" or a
12
company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
(y) ERISA. Neither the Company nor any ERISA Affiliate (as
defined below) has ever sponsored, maintained, contributed to or been obligated
to contribute to a Plan (as defined below) subject to Title IV of ERISA or
Section 412 of the Code. The Company and each ERISA Affiliate, with respect to
each Plan is, and each such Plan is, in compliance in all material respects with
ERISA, the Code, and any other applicable legal requirements. Neither the
Company nor any ERISA Affiliate nor, to the Company's knowledge, any fiduciary
of any Plan which covers or has covered employees or former employees of the
Company or any ERISA Affiliate has engaged in any non-exempt transaction in
violation of ERISA ▇▇.▇▇. 404 or 406 or any "prohibited transaction," as defined
in Code ss. 4975(c)(1), or has otherwise violated in any material respect any of
the provisions of ERISA. As used in this Section 3.1(y) the term "ERISA
AFFILIATE" shall mean any other person that, together with the Company, would be
treated as a single employer under Code ss. 414(b) or (c), and solely for the
purposes of potential liability under ERISA ss. 302(c)(ii) and Code ss.
412(c)(ii) and the lien created under ERISA ss. 302(f) and Code ss. 412(n),
under Code ss. 414(m) or (o). As used in this Section 3.1(y) the term "Plan"
shall mean an "employee pension benefit plan" as defined in Section 3(3) of
ERISA that is, or at any time was, sponsored, maintained, or contributed to by
the Company or any ERISA Affiliate or to which the Company or any ERISA
Affiliate has ever been obligated to contribute.
(z) INSURANCE. The Company is insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which it is engaged;
the Company has not been refused any insurance coverage sought or applied for;
and the Company does not have any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a Material Adverse Effect, except as
described in or contemplated by the Prospectus or in a document incorporated by
reference in the Prospectus.
(aa) ACKNOWLEDGMENT REGARDING PURCHASER'S PURCHASE OF SHARES.
The Company acknowledges and agrees that the Purchaser is acting solely in the
capacity of an arm's length purchaser with respect to this Agreement and the
transactions contemplated hereunder. The Company further acknowledges that the
Purchaser is not acting as a financial advisor or fiduciary of the Company (or
in any similar capacity) with respect to this Agreement and the transactions
contemplated hereunder and any advice given by the Purchaser or any of its
representatives or agents in connection with this Agreement and the transactions
contemplated hereunder is merely incidental to the Purchaser's purchase of the
Shares.
(bb) MARKET VALUE OF STOCK HELD BY NON-AFFILIATES. As of
September 16, 2003, the Company's outstanding voting stock held by
non-affiliates of the Company was 76,922,281, which had an aggregate market
value in excess of $572,301,771.
Section 3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser hereby makes the following representations and warranties to the
Company:
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(a) ORGANIZATION AND STANDING OF THE PURCHASER. The Purchaser
is an international business company duly incorporated, validly existing and in
good standing under the laws of the Commonwealth of The Bahamas.
(b) AUTHORIZATION AND POWER. The Purchaser has the requisite
corporate power and authority to enter into and perform this Agreement and to
purchase the Shares in accordance with the terms hereof. The execution, delivery
and performance of this Agreement by Purchaser and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action, and no further consent or authorization of the Purchaser, its
Board of Directors or stockholders is required. This Agreement has been duly
executed and delivered by the Purchaser. This Agreement constitutes, or shall
constitute when executed and delivered, a valid and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership, or
similar laws relating to, or affecting generally the enforcement of, creditor's
rights and remedies or by other equitable principles of general application.
(c) NO CONFLICTS. The execution, delivery and performance of
this Agreement and the consummation by the Purchaser of the transactions
contemplated hereby and thereby or relating hereto do not and will not (i)
result in a violation of such Purchaser's charter documents or bylaws or (ii)
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material agreement,
mortgage, deed of trust, indenture, note, bond, license, lease agreement,
instrument or obligation to which the Purchaser is a party, (iii) create or
impose or lien, charge or encumbrance on any property of the Purchaser under any
agreement or any commitment to which the Purchaser is party or by which the
Purchaser is bound or by which any of its respective properties or assets are
bound, or (iv) result in a violation of any law, rule, or regulation, or any
order, judgment or decree of any court or governmental agency applicable to the
Purchaser or its properties, except for such conflicts, defaults and violations
as would not, individually or in the aggregate, prohibit or otherwise interfere
with the ability of the Purchaser to enter into and perform its obligations
under this Agreement in any material respect. The Purchaser is not required to
obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or to purchase
the Shares in accordance with the terms hereof; provided, however, that for
purposes of the representation made in this sentence, the Purchaser is assuming
and relying upon the accuracy of the representations, warranties and agreements
of the Company herein.
(d) INFORMATION. The Purchaser and its advisors, if any, have
been furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of the
Shares which have been requested by the Purchaser. The Purchaser and its
advisors, if any, have been afforded the opportunity to ask questions of the
Company. The Purchaser has sought such accounting, legal and tax advice as it
has considered necessary to make an informed investment decision with respect to
its acquisition of the Shares. The Purchaser understands that it (and not the
Company) shall be responsible for its own tax liabilities that may arise as a
result of this investment or the transactions contemplated by this Agreement.
14
ARTICLE IV
COVENANTS
The Company covenants with the Purchaser, and the Purchaser covenants
with the Company, as follows, which covenants of one party are for the benefit
of the other party, during the Investment Period.
Section 4.1 SECURITIES COMPLIANCE. The Company shall notify the
Commission and NYSE, if applicable, in accordance with their rules and
regulations, of the transactions contemplated by this Agreement, and shall take
all other necessary action and proceedings as may be required and permitted by
applicable law, rule and regulation, for the legal and valid issuance of the
Shares to the Purchaser.
Section 4.2 REGISTRATION AND LISTING. The Company will take all action
necessary to cause its Common Stock to continue to be registered under Sections
12(b) or 12(g) of the Exchange Act, will comply in all respects with its
reporting and filing obligations under the Exchange Act, and will not take any
action or file any document (whether or not permitted by the Securities Act) to
terminate or suspend such registration or to terminate or suspend its reporting
and filing obligations under the Exchange Act or Securities Act, except as
permitted herein. The Company will take all action necessary to continue the
listing or trading of its Common Stock and the listing of the Shares purchased
by Purchaser hereunder on NYSE or any Alternate Market, if applicable, and will
comply in all respects with the Company's reporting, filing and other
obligations under the bylaws or rules of the NYSE or any Alternate Market.
Section 4.3 REGISTRATION STATEMENT. Before the Company shall issue a
Draw Down Notice, the Company shall have caused a sufficient number of shares of
Common Stock to be registered to cover the maximum number of Shares to be issued
in connection with this Agreement and the Amendment to be declared effective by
the Commission.
Section 4.4 COMPLIANCE WITH LAWS.
(a) The Company shall comply, and cause each subsidiary to
comply, with all applicable laws, rules, regulations and orders (including
without limitation Rule 415(a)(4) under the Securities Act), noncompliance with
which would result in a Material Adverse Effect.
(b) In addition to the limitations set forth in Section 4.6
hereof, the Company will not be obligated to issue and the Purchaser will not be
obligated to purchase any shares of the Company's Common Stock which would
result in the issuance under this Agreement of more than nineteen and
nine-tenths percent (19.9%) of the issued and outstanding shares of the
Company's Common Stock, unless permitted by the NYSE or an Alternative Market.
(c) The Purchaser shall comply with all applicable laws,
rules, regulations and orders in connection with this Agreement and the
transactions contemplated hereby. Without limiting the foregoing, the Purchaser
shall comply with the requirements of the Securities Act and the Exchange Act
including without limitation Rule 415(a)(4) under the Securities Act and Rule
10b-5 and Regulation M under the Exchange Act.
15
Section 4.5 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Company shall
keep and cause each subsidiary to keep adequate records and books of account, in
which complete entries will be made in accordance with GAAP consistently
applied, reflecting all financial transactions of the Company and its
subsidiaries, and in which, for each fiscal year, all proper reserves for
depreciation, depletion, obsolescence, amortization, taxes, bad debts and other
purposes in connection with its business shall be made.
Section 4.6 LIMITATIONS ON HOLDINGS AND ISSUANCES. At no time during
the term of this Agreement shall the Purchaser directly or indirectly own more
than fourteen and nine-tenths percent (14.9%), less the unsold portion of the
Aggregate Limit the Purchaser is obligated to purchase hereunder, of the issued
and outstanding shares of Common Stock. The Company will not be obligated to
issue and the Purchaser will not be obligated to purchase any shares of the
Common Stock which would result in the issuance under this Agreement to
Purchaser at any time of more than fourteen and nine-tenths percent (14.9%) of
the issued and outstanding shares of the Common Stock.
Section 4.7 AMENDMENT TO REGISTRATION STATEMENT. The Company will cause
a post-effective amendment to the Registration Statement with respect to this
Agreement (the "AMENDMENT"), which Amendment must be reasonably satisfactory in
form and substance to Purchaser, to be filed and declared effective as soon as
reasonably practicable and will advise the Purchaser promptly and, if requested
by the Purchaser, will confirm such advice in writing, when it receives notice
that the Amendment has become effective.
Section 4.8 OTHER AGREEMENTS AND OTHER FINANCINGS. The Company shall
not enter into any agreement in which the terms of such agreement would restrict
or impair the right to perform of the Company or any subsidiary under this
Agreement or the Articles.
(a) If the Company enters into any definitive agreement with a
third party, the principal purpose of which is to secure an Other Financing (as
defined below) during a Draw Down Pricing Period, the Company shall notify the
Purchaser of the material terms of such Other Financing (the "OTHER FINANCING
NOTICE") and the Purchaser shall have, within five (5) Trading Days following
the receipt of the Other Financing Notice, the option to purchase Shares of the
Draw Down Amount Requested and the Call Option Amounts Requested by the Company
for such Draw Down Pricing Period at (i) the Purchaser's price as provided in
this Agreement, (ii) the Third Party's Price (as defined below) or (iii) the
Purchaser may elect to not purchase Common Stock for that Draw Down Pricing
Period.
As used herein, "Other Financing" shall mean any issuance of
Common Stock or securities convertible into, exercisable for, or exchangeable
for Common Stock for the purpose of raising capital; provided, however, without
limiting the foregoing, Other Financing shall not include the Company (i)
entering into a loan, credit or lease facility with a bank, financing
institution or other creditor (including any equity component thereof), (ii)
establishing or amending an employee, director or
16
officer option plan or stock purchase plan, or establishing or amending a
stockholders' rights plan (the primary purpose of which is not to raise
capital), (iii) issuing shares of Common Stock in connection with the Company's
current or future employee, director or officer option plans, or stock purchase
plans or in connection with the Company' current or future stockholders' rights
plans, (iv) increasing the number of shares available under plans referred to in
(iii) above, (v) issuing securities upon exercise or conversion of currently
outstanding warrants, options, debt securities or other convertible securities
of the Company; and (vi) issuing securities in connection with the formation and
maintenance of strategic partnerships, alliances, or joint ventures, commercial
credit arrangements, equipment financings and vessel purchases, the acquisition
of products, licenses, other assets or acquisitions or mergers (each a
"PERMITTED TRANSACTION").
"THIRD PARTY'S PRICE" shall mean a third party's purchase
price, net of third party discounts and fees; if the Other Financing is a
convertible securities financing, then the Third Party's Price shall be the
lesser of (i) the conversion price of the convertible financing and (ii) the
Company's valuation of the average price per share of the common stock for
convertible financing, after taking into account any other securities issued in
conjunction with such convertible financing.
(b) If the Company enters into any Other Financing between
Draw Down Pricing Periods, the Purchaser shall have the option, which option
shall be exercised no later than five (5) Trading Days after receipt by the
Purchaser of the Other Financing Notice, to purchase up to the Draw Down Amount
that would be applicable under this Agreement using the gross price per share to
be paid for the Common Stock in the Other Financing as the Threshold Price at
the Third Party's Price and on the same terms and conditions contemplated in the
Other Financing, or, if the applicable share price is below the Minimum
Threshold Price, up to 20% of the aggregate total amount to be raised by the
Company in the Other Financing; except the Purchaser shall not have such option
if the Other Financing is an underwritten or best efforts public offering with
net proceeds in excess of $25,000,000. If the Purchaser does not exercise its
purchase option in writing before 8:00 p.m. (New York time) on the fifth (5th)
Trading Day after its receipt of the Other Financing Notice, the Company shall
have the right to close the Other Financing on the scheduled closing date with a
third party, provided that all of the terms and conditions of such closing are
the same in all material respects to those provided to the Purchaser in the
Other Financing Notice.
Section 4.9 STOP ORDERS. The Company will advise the Purchaser promptly
and, if requested by the Purchaser, will confirm such advice in writing: (i) of
the Company's receipt of notice of any request by the Commission for amendment
of or a supplement to the Registration Statement, any Prospectus or for
additional information; (ii) of the Company's receipt of notice of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) of the Company having Knowledge of the happening of any
event, which makes any statement of a material fact made in the Registration
Statement or the Prospectus (as then amended or supplemented) untrue or which
requires the making of any additions to or changes in the Registration Statement
or the Prospectus (as then amended or supplemented) in order to state a material
fact required by the Securities Act to be stated therein or necessary in order
to make the statements therein not misleading, or of the necessity to amend or
supplement the Registration Statement (as then amended or supplemented) to
comply with the Securities Act or any other law. If at any time the Commission
shall issue any stop order suspending the effectiveness of the Registration
17
Statement, the Company will make commercially reasonable efforts to obtain the
withdrawal of such order at the earliest possible time.
Section 4.10 AMENDMENTS TO THE REGISTRATION STATEMENT. Except as
provided in Section 4.7 and Section 4.11 hereof, the Company will not file any
amendment to the Registration Statement that relates to the Purchaser, this
Agreement or the transactions contemplated hereby or make any amendment or
supplement to the Prospectus that relates to the Purchaser, this Agreement or
the transactions contemplated hereby of which, in either case, the Purchaser
shall not previously have been advised or to which the Purchaser shall
reasonably object after being so advised within forty-eight (48) hours of
receipt of such amendment or supplement to the Prospectus. In addition, for so
long as, in the reasonable opinion of counsel for the Purchaser and counsel for
the Company, a Prospectus is required to be delivered in connection with any
purchase of Shares by the Purchaser, the Company will not file any Prospectus or
Prospectus supplement with respect to the Shares without delivering a copy of
such Prospectus or Prospectus supplement, to the Purchaser promptly following
such filing. It is understood that the Company may file amendments to the
Registration Statement and make amendments and supplements to the Prospectus in
connection with offerings pursuant to the Registration Statement to parties
other than the Purchaser, and that such amendments and supplements shall not be
covered by the first two (2) sentences of this SECTION 4.10.
Section 4.11 PROSPECTUS DELIVERY. The Company shall file with the
Commission a Prospectus supplement no later than the first Trading Day
immediately following the end of each Draw Down Pricing Period during which a
Purchase has been made, which Prospectus supplement must be reasonably
satisfactory to Purchaser, and will deliver to the Purchaser, without charge, in
such quantities as reasonably requested by the Purchaser, copies of each form of
Prospectus and Prospectus supplement on each Settlement Date. The Company
consents to the use of the Prospectus (and of any amendment or supplement
thereto) in accordance with the provisions of the Securities Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares may be sold
by the Purchaser, in connection with the offering and sale of the Shares and for
such period of time thereafter as the Prospectus is required by the Securities
Act to be delivered in connection with sales of the Shares. If during such
period of time any event shall occur that in the judgment of the Company and its
counsel or in the opinion of counsel for the Purchaser is required to be set
forth in the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus to comply with the Securities Act or any
other applicable law or regulation, the Company will forthwith prepare and,
subject to Section 4.9 above, file with the Commission an appropriate supplement
or amendment to such Prospectus, and will expeditiously furnish to the Purchaser
a reasonable number of copies thereof.
Section 4.12 SELLING RESTRICTION. The Purchaser has the right to sell
shares of the Stock during the Investment Period. However, the Purchaser
covenants that prior to and during the term of the Investment Period, neither
the Purchaser nor any affiliates of the Purchaser nor any entity managed by the
Purchaser will sell shares of the Company's Common Stock other than shares that
the Purchaser (or the respective affiliate or managed entity) owns at the time
of the sale, or any shares that the Purchaser is obligated to purchase under a
pending Draw Down Notice.
18
Section 4.13 NON-PUBLIC INFORMATION. Neither the Company nor any of its
directors, officers or agents shall disclose any material non-public information
about the Company to the Purchaser.
Section 4.14 EFFECTIVE REGISTRATION STATEMENT. The Company will use
reasonable efforts to keep the Registration Statement continuously effective
until the later of (i) one (1) year after the expiration of the Investment
Period and (ii) such time as the Purchaser is no longer required to deliver a
prospectus with respect to the Shares.
Section 4.15 DISCLOSURE OF DRAW DOWN NOTICE. Other than disclosure in a
Prospectus Supplement, press release or filing under the Securities Act or
Exchange Act of the number of Shares sold to the Purchaser and the purchase
price, the Company shall not disclose any Draw Down Notice or any information
contained in any Draw Down Notice (other than to its legal and accounting
advisors) unless such disclosure is required by applicable law, rule or court
order; provided that the Company shall notify the Purchaser if such disclosure
during the Draw Down Pricing Period is required by law, rule, regulation or
court order.
Section 4.16 BROKER-DEALER. Except as set forth below, the Purchaser
shall use ▇▇▇▇▇▇ Equities Corporation as its broker-dealer to effectuate all
sales, if any, of shares of Common Stock that the Purchaser will purchase from
the Company pursuant to this Agreement. In the event that the Purchaser desires
to use a different broker-dealer, the Purchaser shall notify the Company, and
the Purchaser shall not use such new broker-dealer until the Company has filed
with the Commission and the Commission shall have declared effective an
appropriate amendment to the Registration Statement to disclose such
broker-dealer's participation. No broker-dealer used by the Purchaser to
effectuate sales of shares of Common Stock purchased pursuant to this Agreement
will be an affiliate of the Purchaser, and the commission received by any such
broker-dealer from the Purchaser will not exceed customary brokerage
commissions.
ARTICLE V
CONDITIONS TO CLOSING, DRAW DOWNS AND CALL OPTIONS
Section 5.1 CONDITIONS PRECEDENT TO CLOSING BY THE COMPANY AND TO THE
COMPANY'S OBLIGATION TO SELL THE SHARES. The execution of this Agreement by the
Company and the obligation of the Company to issue and sell Shares to the
Purchaser pursuant to a Draw Down Notice is subject to the satisfaction or
waiver, at or before the Closing and with respect to each Draw Down and Call
Option, at or before each Draw Down Exercise Date and Settlement Date, as
applicable, of each of the conditions set forth below. These conditions are for
the Company's sole benefit and may be waived by the Company at any time in its
sole discretion.
(a) ACCURACY OF THE PURCHASER'S REPRESENTATIONS AND
WARRANTIES. Except for representations and warranties that are expressly made as
of a particular date, the representations and warranties of the Purchaser in
this Agreement shall be true and correct in all material respects as of the date
when made and as of each Draw Down Exercise Date and each Settlement Date as
though made at that time.
19
(b) PERFORMANCE BY THE PURCHASER. The Purchaser shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Purchaser at or prior to the Closing, each Draw Down
Exercise Date and each Settlement Date, as applicable.
(c) NO INJUNCTION. No statute, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
(d) NO PROCEEDINGS OR LITIGATION. No action, suit or
proceeding before any arbitrator or any governmental authority shall have been
commenced, and no investigation by any governmental authority shall have been
threatened, against the Company or any subsidiary, or any of the officers,
directors or affiliates of the Company or any subsidiary seeking to restrain,
prevent or change the transactions contemplated by this Agreement, or seeking
damages in connection with such transactions.
(e) EFFECTIVE REGISTRATION STATEMENT AND AMENDMENT. With
respect to the Closing, the Registration Statement shall have been declared
effective by the Commission prior to the Closing Date and there shall be no stop
order suspending the effectiveness thereof. With respect to each Draw Down and
Call Option, the Registration Statement and the Amendment shall have been
declared effective by the Commission at or before each Draw Down Exercise Date
or Settlement Date, as applicable, and there shall be no stop order suspending
the effectiveness thereof.
Section 5.2 CONDITIONS PRECEDENT TO THE CLOSING BY THE PURCHASER. The
execution of this Agreement by the Purchaser is subject to the satisfaction or
waiver, at or before the Closing, of eac\h of the conditions set forth below.
These conditions are for the Purchaser's sole benefit and may be waived by the
Purchaser at any time in its sole discretion.
(a) ACCURACY OF THE COMPANY'S REPRESENTATIONS AND WARRANTIES.
Except for representations and warranties that are expressly made as of a
particular date, the representations and warranties of the Company in this
Agreement shall be true and correct in all material respects as of the date when
made and as of the Closing as though made at that time, including, without
limitation, under Section 3.1(h).
(b) PERFORMANCE BY THE COMPANY. The Company shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing.
(c) NO INJUNCTION. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement.
(d) NO SUSPENSION, ETC. Trading in the Common Stock shall not
have been suspended by the Commission or the NYSE (except for any suspension of
trading of limited
20
duration agreed to by the Company, which suspension shall be terminated prior to
Closing), and, at any time prior to the Closing, trading in securities generally
as reported on the NYSE shall not have been suspended or limited, nor shall a
banking moratorium have been declared either by the United States or New York
State authorities, nor shall there have occurred any material outbreak or
escalation of hostilities or other national or international calamity or crisis
of such magnitude in its effect on, or any material adverse change in any
financial market which, in each case, in the reasonable judgment of the
Purchaser, makes it impracticable or inadvisable to purchase the Shares.
(e) NO PROCEEDINGS OR LITIGATION. No action, suit or
proceeding before any arbitrator or any governmental authority shall have been
commenced, and no investigation by any governmental authority shall have been
threatened, against the Company or any subsidiary, or any of the officers,
directors or affiliates of the Company or any subsidiary seeking to restrain,
prevent or change the transactions contemplated by this Agreement, or seeking
damages in connection with such transactions.
(f) EFFECTIVE REGISTRATION STATEMENT. The Registration
Statement shall have been declared effective by the Commission prior to the
Closing Date and there shall be no stop order suspending the effectiveness
thereof.
(g) OPINION OF COUNSEL, SECRETARY'S CERTIFICATE AND CLOSING
CERTIFICATE. At the Closing, the Purchaser shall have received (i) an opinion of
Coudert Brothers, LLP, counsel to the Company, dated the date of Closing, in the
form and with respect to such matters as are reasonably acceptable to the
Purchaser, (ii) an opinion of the Company's General Counsel dated the date of
Closing, in the form and with respect to such matters as are reasonably
acceptable to the Purchaser, (iii) a Secretary's Certificate from the Company,
dated the date of Closing, in the form of Exhibit B hereto, and (iv) a Closing
Certificate, dated the Closing Date, in the form of Exhibit C hereto.
Section 5.3 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE PURCHASER TO
ACCEPT A DRAW DOWN OR CALL OPTION GRANT AND PURCHASE THE SHARES. The obligation
hereunder of the Purchaser to accept a Draw Down or Call Option grant is subject
to the satisfaction or waiver, as of such Draw Down Exercise Date, of each of
the conditions set forth below. In addition, the obligation hereunder of the
Purchaser to acquire and pay for the Shares is subject to the satisfaction or
waiver, as of such Settlement Date, of each of the conditions set forth below.
The conditions are for the Purchaser's sole benefit and may be waived by the
Purchaser at any time in its sole discretion.
(a) ACCURACY OF THE COMPANY'S REPRESENTATIONS AND WARRANTIES.
Except for representations and warranties that are expressly made as of a
particular date, each of the representations and warranties of the Company shall
be true and correct in all material respects as of the date when made and as of
each Draw Down Exercise Date and each Settlement Date, as though made at that
time, including, without limitation, under Section 3.1(h) hereof.
(b) REGISTRATION STATEMENT. The Company shall have a dollar
amount of Shares registered under the Registration Statement which are in an
amount equal to or in excess of the maximum dollar amount worth of Shares
issuable pursuant to such Draw Down Notice or
21
Call Option. The Registration Statement and the Amendment shall have been
declared effective by the Commission prior to each Draw Down Exercise Date and
Settlement Date and shall have been amended or supplemented, as required, to
disclose the sale of the Shares prior to each Settlement Date, as applicable.
(c) NO SUSPENSION. Trading in the Common Stock shall not have
been suspended by the Commission or the NYSE at any time from the applicable
Draw Down Exercise Date through the corresponding Settlement Date, and trading
in securities generally as reported on the NYSE shall not have been suspended or
limited, nor shall a banking moratorium have been declared either by the United
States or New York State authorities, nor shall there have occurred any material
outbreak or escalation of hostilities or other national or international
calamity or crisis of such magnitude in its effect on, or any material adverse
change in, any financial market which, in each case, in the reasonable judgment
of the Purchaser, makes it impracticable or inadvisable to issue the Shares at
any time from the applicable Draw Down Exercise Date through the corresponding
Settlement Date.
(d) PERFORMANCE BY THE COMPANY. The Company shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to each Draw Down Exercise Date and
each Settlement Date, and shall have delivered the Compliance Certificate
substantially in the form attached hereto as Exhibit D.
(e) SETTLEMENT OF PRIOR DRAW DOWNS AND CALL OPTIONS. All prior
Draw Downs and Call Options shall have settled.
(f) AGGREGATE LIMIT. The Draw Down Amount Requested and any
Call Option Amount Requested in the Draw Down Notice Issued by the Company, when
aggregated with all prior Draw Down Amounts and exercised Call Options, shall
not exceed the Aggregate Limit.
(g) DELIVERY OF OPINIONS. The Company shall have delivered to
Purchaser (i) an opinion of counsel authorized to practice in the ▇▇▇▇▇▇▇▇
Islands (such opinion and such counsel to be reasonably satisfactory to
Purchaser) opining as to each of the opinions set forth in numbered paragraphs
1, 4, 6 and 7(a) of the opinion of ▇▇▇▇▇▇▇ London, Esq. delivered at the
Closing, (ii) subsequent to the effective date of the Amendment, an opinion of
Coudert Brothers, LLP, counsel to the Company in the form and with respect to
such matters as are reasonably acceptable to the Purchaser, and (iii) subsequent
to the effective date of the Amendment, an opinion of the Company's General
Counsel in the form and with respect to such matters as are reasonably
acceptable to the Purchaser.
ARTICLE VI
DRAW DOWN TERMS; CALL OPTION
Section 6.1 DRAW DOWN TERMS. Subject to the satisfaction of the
conditions set forth in this Agreement, and subject to Section 6.3 below, the
parties agree as follows, unless otherwise mutually agreed upon:
22
(a) Beginning on the effective date of the Amendment, the
Company may, in its sole discretion, issue a Draw Down Notice (as defined in
Section 6.1(j) hereof) for a specified Draw Down Amount Requested of (i) up to
$3,000,000 if the Threshold Price for the Draw Down Amount as set forth in such
Draw Down Notice is equal to or greater than $2.00 and less than $3.00, and (ii)
increased by up to $1,000,000 incrementally for every $1.00 increase in the
Threshold Price above $2.00 and up to and including $10.00, which Draw Down the
Purchaser will be obligated to accept. The date the Company issues any Draw Down
Notice in accordance with this Section 6.1 shall be a "Draw Down Exercise Date"
for purposes of this Agreement.
(b) Subject to Section 6.1(i) below, the number of Shares to
be issued by the Company to the Purchaser in connection with the Draw Down
Amount Requested in each Draw Down shall be equal to the sum of the Daily
Shares. The "Daily Shares" shall equal (x) the Pro-Rata Amount, divided by (y)
the VWAP multiplied by the Draw Down Discount Price set forth in Section 6.1(k),
for each Trading Day of the Draw Down Pricing Period for which the VWAP equals
or exceeds the Threshold Price.
(c) Only one Draw Down shall be allowed in each Draw Down
Pricing Period.
(d) Intentionally Omitted.
(e) Each Draw Down shall be settled on the second Trading Day
after the end of each Draw Down Pricing Period (the "SETTLEMENT DATE").
(f) There shall be a minimum of five (5) Trading Days between
the end of a Draw Down Pricing Period and the commencement of the next Draw Down
Pricing Period.
(g) There shall be a maximum of eighteen (18) monthly Draw
Downs during the Investment Period.
(h) Each Draw Down will automatically expire immediately after
the last Trading Day of each Draw Down Pricing Period.
(i) If the VWAP on a given Trading Day in the Draw Down
Pricing Period is less than the Threshold Price, then the total amount of the
Draw Down Amount Requested will be reduced by a Pro-Rata Amount for each such
Trading Day and no Shares will be purchased or sold with respect to such Trading
Day, except as provided below. The aggregate amount by which the Draw Down
Amount Requested is reduced shall be referred to herein as the "BELOW THRESHOLD
AMOUNT." At no time shall the Threshold Price be set below two dollars ($2.00)
per share (as adjusted for stock splits, reverse stock splits, recapitalizations
and the like). If trading in the Common Stock is suspended for any reason for
three (3) hours or more in any Trading Day or trading is suspended in the
markets of the United States for any reason, such day shall be deemed an
"UNALLOCATED DAY". For each Unallocated Day during the Draw Down Pricing Period
the Purchaser may, at its option, purchase up to a Pro-Rata Amount of Shares at
the previous Trading Day's VWAP. For each Trading Day during a Draw Down Pricing
Period that the VWAP is below the Threshold Price, the Purchaser may elect in
its sole discretion to purchase the Common Stock at the Threshold Price
multiplied by the applicable percentage set forth in Section 6.1(k) at the end
of such Draw Down Pricing Period. The Purchaser will inform the
23
Company via facsimile transmission no later than 8:00 p.m. (New York time) on
the last Trading Day of such Draw Down Pricing Period as to the number of
Shares, if any, the Purchaser chooses to purchase under such circumstances.
(j) As a condition to exercise of any Draw Down, the Company
must provide a notice to the Purchaser of the Company's exercise of any Draw
Down via facsimile transmission before the first Trading Day of the Draw Down
Pricing Period covered by such notice (the "DRAW DOWN NOTICE"), substantially in
the form attached hereto as Exhibit E. The Draw Down Notice shall specify the
Draw Down Amount Requested, set the Threshold Price for such Draw Down and Call
Option, designate the first Trading Day of the Draw Down Pricing Period and
specify the Call Option(s), if any, that the Company wishes to grant to the
Purchaser during the Draw Down Pricing Period. If the Company wishes the date of
the Draw Down notice to be the first Trading Day of the Draw Down Pricing
Period, such notice must be delivered to the Purchaser and such receipt
confirmed, before 9:30 a.m. (New York time) on such Trading Day.
(k) With respect to any Draw Down, the draw down discount
price shall be 95% of the VWAP ("the DRAW DOWN DISCOUNT PRICE").
(l) On each Settlement Date, the Company shall deliver the
Shares purchased by the Purchaser to the Purchaser or to The Depositary Trust
Company ("DTC") on the Purchaser's behalf via the Deposit Withdrawal Agent
Commission system ("DWAC"), and upon receipt of the Shares, the Purchaser shall
cause payment therefor to be made to the account designated by the Company by
wire transfer of immediately available funds, provided that the Shares are
received by the Purchaser no later than 1:00 p.m., New York time, or of next day
available funds if the Shares are received thereafter. In certain circumstances
and as set forth in Section 9.1(b), a failure by the Company to deliver such
Shares may result in the payment of liquidated damages by the Company to the
Purchaser.
(m) If during any Draw Down Pricing Period the Company
reasonably believes an event may occur which would result in or may require the
suspension of the effectiveness of the Registration Statement prior to the
applicable Settlement Date, including, without limitation, entering into an
extraordinary transaction in which the Company is not the surviving entity, the
Company shall notify the Purchaser before 9:30 a.m. (New York time) on any
Trading Day (a "TRUNCATE NOTICE") and truncate the number of Trading Days in
such Draw Down Pricing Period (a "TRUNCATED PRICING PERIOD"). If the Company
delivers the Truncate Notice (i) before 9:30 a.m. (New York time) on a Trading
Day, the last Trading Day of such Truncated Pricing Period shall be the Trading
Day preceding the receipt of the Truncate Notice between, or (ii) between 9:30
a.m. and 4:00 p.m. (New York time) on a Trading Day, then the last Trading Day
of such Truncated Pricing Period shall be the Trading Day on which the Truncate
Notice was received by the Purchaser.
The Purchaser will purchase the Truncated Draw Down Allocation Amount
for each of the Trading Days in a Truncated Pricing Period, for an aggregate
purchase price determined in accordance with Section 6.1(b) and Section 6.1(i).
24
In addition, the Purchaser may, at its option, elect to purchase Shares
in an additional dollar amount equal the difference between (i) the Draw Down
Amount Requested and (ii) the Truncated Draw Down Allocation Amount. The price
per share for such additional dollar amount shall equal the aggregate of (i) the
Truncated Draw Down Allocation Amounts and the total Call Options exercised
during the Truncated Pricing Period divided by (ii) the number of Shares to be
purchased during such Truncated Pricing Period, excluding any Shares purchased
pursuant to this paragraph of Section 6.1(m).
Upon receipt of the Truncate Notice, the Purchaser may (x) elect to
purchase the Common Stock at the Threshold Price for any Trading Day that the
VWAP was below the Threshold Price during the Truncated Pricing Period in
accordance with Section 6.1(i) hereof, (y) elect to purchase the Common Stock in
the additional amount as set forth in the preceding paragraph of this Section
6.1(m), and (z) elect to exercise any unexercised Call Options by issuing a Call
Option Notice to the Company, in each such case, no later than 10:00 a.m. (New
York time) on the first Trading Day after the end of the Truncated Pricing
Period. The exercise price of the Call Option shall be the applicable percentage
set forth in Section 6.1(k) multiplied by the greater of (A) the VWAP for the
Common Stock on the day the Purchaser issues its Call Option Notice or (B) the
Threshold Price.
(n) The Settlement Date for any Truncated Pricing Period shall
be the second business day after the last Trading Day of the applicable
Truncated Pricing Period.
Section 6.2 PURCHASER'S CALL OPTION. Subject to the satisfaction of the
conditions set forth in his Agreement, and subject to Section 6.3 below, the
parties agree as follows:
(a) The Company may, in its sole discretion, grant to the
Purchaser the right to exercise one (1) or more call options during each Draw
Down Pricing Period for a specified Call Option Amount Requested (the "CALL
OPTION"). The Call Option Amount Requested and the Threshold Price shall be set
forth in the Draw Down Notice.
(b) The number of shares of Common Stock to be issued in
connection with each Call Option shall equal (i) the Call Option Amount divided
by (ii) the applicable percentage set forth in Section 6.1(k) multiplied by the
greater of (A) the VWAP for the Common Stock on the day the Purchaser issues its
Call Option Notice or (B) the Threshold Price.
(c) Each Call Option exercised shall be settled on the next
Settlement Date.
(d) The Threshold Price designated by the Company in its Draw
Down Notice shall apply to each Call Option.
(e) For each Call Option that the Purchaser exercises pursuant
to this Section 6.2, as a condition to such exercise the Purchaser must issue a
Call Option Notice (as defined in Section 1.1(j) hereof) to the Company no later
than 8:00 p.m. (New York time) on the day such Call Option is exercised. If the
Purchaser does not exercise a Call Option by 8:00 p.m. (New York time) on the
last day of the applicable Draw Down Pricing Period, the Purchaser's Call
Options with respect to that Draw Down Pricing Period shall automatically
terminate.
25
Section 6.3 AGGREGATE LIMIT. Notwithstanding anything to the contrary
herein, in no event may the Company issue a Draw Down Notice or grant a Call
Option to the extent that the sale of shares of Common Stock pursuant thereto
and pursuant to all prior Draw Down Notices or Call Options issued hereunder
would cause the Company to sell or the Purchaser to purchase shares of Common
Stock which in the aggregate are in a dollar amount in excess of the Aggregate
Limit.
ARTICLE VII
TERMINATION
Section 7.1 TERM; TERMINATION BY MUTUAL CONSENT. The term of this
Agreement shall expire on the earlier of (i) twenty one (21) months from the
date hereof (the "INVESTMENT PERIOD"), (ii) the date that the entire number of
Shares registered under the Registration Statement have been issued and sold and
(iii) the date the Purchaser shall have purchased $57,000,000 of Common Stock.
Either party may terminate this agreement if the Company enters into a
definitive agreement with respect to a merger or acquisition of the Company as a
result of which more than fifty percent (50%) of the voting power of the Company
is acquired or the Company would not be the surviving entity so long as such
termination does not occur during a Draw Down Pricing Period, or during a
Truncated Pricing Period, or prior to a Settlement Date of any Draw Down Pricing
Period or Truncated Pricing Period. This Agreement may be terminated at any time
by mutual written consent of the parties.
Section 7.2 OTHER TERMINATION. The Company shall inform the Purchaser,
and the Purchaser shall have the right to terminate this Agreement within the
subsequent thirty (30) days (the "EVENT PERIOD"), if (x) the Company enters into
an Other Financing without the prior consent of the Purchaser, which consent
will not be unreasonably delayed, conditioned or withheld, which provides for
(i) the issuance of Common Stock or securities convertible, exercisable or
exchangeable into Common Stock at a discount to the then current market price of
the Common Stock, including, without limitation, an equity line of credit
transaction, (ii) a mechanism for the reset of the purchase price of the Common
Stock to below the then current market price of the Common Stock, or (iii) the
issuance of Common Stock with warrants, which have an exercise price such that
together with the price of the Common Stock would result in the issuance of
shares of Common Stock at a per share price below the then current market price
of the Common Stock, or (y) an event resulting in a Material Adverse Effect or
Material Change in Ownership has occurred. The Purchaser may terminate this
Agreement upon one (1) business day's prior written notice during the Event
Period.
Section 7.3 EFFECT OF TERMINATION. In the event of termination by the
Company or the Purchaser, written notice thereof shall forthwith be given to the
other party and the transactions contemplated by this Agreement shall be
terminated without further action by either party, provided, however, that if a
Draw Down and/or a Call Option has not yet settled, the parties shall still be
obligated to settle such Draw Down and/or Call Option on the terms set forth in
this Agreement. If this Agreement is terminated as provided in Section 7.1 or
7.2 herein, this Agreement shall become void and of no further force and effect,
except as provided in the first sentence of this Section 7.3, Section 9.1 and
Section 9.9 hereof. Nothing in this Section 7.3 shall be deemed to release the
Company or the Purchaser from any liability for any breach under this
26
Agreement, or to impair the rights of the Company and the Purchaser to compel
specific performance by the other party of its obligations under this Agreement.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 GENERAL INDEMNITY.
(a) INDEMNIFICATION BY THE COMPANY. The Company will indemnify
and hold harmless the Purchaser, any broker-dealer named in the Registration
Statement, as amended, (the "BROKER-DEALER") and each person, if any, who
controls the Purchaser or the Broker-Dealer within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act from and against any
losses, claims, damages, liabilities and expenses (including reasonable costs of
defense and investigation and all attorneys' fees) to which the Purchaser, the
Broker-Dealer and each such controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities and expenses (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained, or incorporated by reference, in the Registration Statement
(including any Prospectus or Prospectus supplement which are a part of it), or
any amendment or supplement to it, or (ii) the omission or alleged omission to
state in the Registration Statement (including any Prospectus or Prospectus
supplement which are a part of it), or any amendment or supplement to it, or any
document incorporated by reference in the Registration Statement, a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
The Company will reimburse the Purchaser, the Broker-Dealer and each
such controlling person promptly upon demand for any reasonable legal or other
costs or expenses reasonably incurred by the Purchaser, the Broker-Dealer or
such controlling person in investigating, defending against, or preparing to
defend against any such claim, action, suit or proceeding, except that the
Company will not be liable to the extent any loss, claim, damage, liability or
expense arises out of, or is based upon, an untrue statement, alleged untrue
statement, omission or alleged omission, included in any Prospectus or
Prospectus supplement or any amendment or supplement to the Prospectus or
Prospectus supplement in reliance upon, and in conformity with, written
information furnished by either the Purchaser or the Broker-Dealer to the
Company for inclusion in the Prospectus or Prospectus supplement.
(b) INDEMNIFICATION BY THE PURCHASER. The Purchaser will
indemnify and hold harmless the Company, each of its directors and officers, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act from and against any
expenses (including reasonable costs of defense and investigation and all
attorneys fees) to which the Purchaser and each such controlling person may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages, liabilities and expenses (or actions in respect thereof) arise
out of or are based upon (i) an untrue statement, alleged untrue statement,
omission or alleged omission, included in any Prospectus or Prospectus
supplement or any amendment or supplement to the Prospectus or Prospectus
supplement in reliance upon, and in conformity with, written information
furnished by the
27
Purchaser to the Company for inclusion in the Prospectus or Prospectus
supplement, or (ii) the omission or alleged omission to state in any Prospectus
or Prospectus supplement or any amendment or supplement to it a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, the untrue statement, alleged
untrue statement, omission or alleged omission was made in reliance upon, and in
conformity with, written information furnished by the Purchaser to the Company
for inclusion in the Prospectus or Prospectus supplement or an amendment or
supplement to it. The Purchaser will reimburse the Company and each such
director, officer or controlling person promptly upon demand for any legal or
other costs or expenses reasonably incurred by the Company or the other person
in investigating, defending against, or preparing to defend against any loss,
claim, damage, liability or expense arising out of, or based upon, an untrue
statement, alleged untrue statement, omission or alleged omission, included in
any Prospectus or Prospectus supplement or any amendment or supplement to the
Prospectus or Prospectus supplement in reliance upon, and in conformity with,
written information furnished by the Purchaser to the Company for inclusion in
the Prospectus or Prospectus supplement.
Section 8.2 INDEMNIFICATION PROCEDURES. Promptly after a person
receives notice of a claim or the commencement of an action for which the person
intends to seek indemnification under Section 8.1, the person will notify the
indemnifying party in writing of the claim or commencement of the action, suit
or proceeding; provided, however, that failure to notify the indemnifying party
will not relieve the indemnifying party from liability under Section 8.1, except
to the extent it has been materially prejudiced by the failure to give notice.
The indemnifying party will be entitled to participate in the defense of any
claim, action, suit or proceeding as to which indemnification is being sought,
and if the indemnifying party acknowledges in writing the obligation to
indemnify the party against whom the claim or action is brought, the
indemnifying party may (but will not be required to) assume the defense against
the claim, action, suit or proceeding with counsel satisfactory to the
indemnified party. After an indemnifying party notifies an indemnified party
that the indemnifying party wishes to assume the defense of a claim, action,
suit or proceeding, the indemnifying party will not be liable for any legal or
other expenses incurred by the indemnified party in connection with the defense
against the claim, action, suit or proceeding except that if, in the opinion of
counsel to the indemnified party, one or more of the indemnified parties should
be separately represented in connection with a claim, action, suit or
proceeding, the indemnifying party will pay the reasonable fees and expenses of
one separate counsel for the indemnified parties. Each indemnified party, as a
condition to receiving indemnification as provided in Section 8.1, will
cooperate in all reasonable respects with the indemnifying party in the defense
of any action or claim as to which indemnification is sought. No indemnifying
party will be liable for any settlement of any action effected without its prior
written consent. No indemnifying party will, without the prior written consent
of the indemnified party, effect any settlement of a pending or threatened
action with respect to which an indemnified party is, or is informed that it may
be, made a party and for which it would be entitled to indemnification, unless
the settlement includes an unconditional release of the indemnified party from
all liability and claims which are the subject matter of the pending or
threatened action.
If for any reason the indemnification provided for in this Agreement is
not available to, or is not sufficient to hold harmless, an indemnified party in
respect of any loss or liability referred to in Section 8.1 as to which it is
entitled to indemnification thereunder, each indemnifying party
28
will, in lieu of indemnifying the indemnified party, contribute to the amount
paid or payable by the indemnified party as a result of such loss or liability,
(i) in the proportion which is appropriate to reflect the relative benefits
received by the indemnifying party on the one hand and by the indemnified party
on the other from the sale of Shares which is the subject of the claim, action,
suit or proceeding which resulted in the loss or liability or (ii) if that
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits of the sale of such
Shares, but also the relative fault of the indemnifying party and the
indemnified party with respect to the statements or omissions which are the
subject of the claim, action, suit or proceeding that resulted in the loss or
liability, as well as any other relevant equitable considerations.
ARTICLE IX
MISCELLANEOUS
Section 9.1 FEES AND EXPENSES.
(a) Each party shall bear its own fees and expenses related to
the transactions contemplated by this Agreement; provided, however, that the
Company shall pay, at the Closing, all fees and expenses, including attorneys'
fees, incurred by the Purchaser up to $50,000 in connection with the
preparation, negotiation, execution and delivery of this Agreement. In addition,
the Company shall pay all reasonable fees and expenses, including attorneys'
fees, incurred by the Purchaser in connection with any amendments, modifications
or waivers of this Agreement. The Company shall pay all stamp or other similar
taxes and duties levied in connection with issuance of the Shares pursuant
hereto.
(b) If the Company issues a Draw Down Notice and fails to
deliver the Shares on the applicable Settlement Date, and such failure continues
for ten (10) Trading Days, the Company shall pay the Purchaser in cash or
restricted shares of Common Stock, at the option of the Purchaser, as liquidated
damages for such failure and not as a penalty an amount equal to two percent
(2%) of the payment required to be paid by the Purchaser on such Settlement Date
(i.e., the sum of the Draw Down Amount and the Call Option Amount) for the
initial thirty (30) days following such Settlement Date until the Shares have
been delivered, and an additional two percent (2%) for each additional thirty
(30) day period thereafter until the Shares have been delivered, which amount
shall be prorated for such periods less than thirty (30) days.
(c) On each Settlement Date, the Company shall pay Credit
Lyonnais Securities (USA) Inc., a placement fee in the amount of two percent
(2%) of the corresponding Draw Down Amount or Call Option Amount.
Section 9.2 SPECIFIC ENFORCEMENT, CONSENT TO JURISDICTION.
(a) The Company and the Purchaser acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that either party shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Agreement by the other party and to enforce specifically the
29
terms and provisions hereof, this being in addition to any other remedy to which
either party may be entitled by law or equity.
(b) Each of the Company and the Purchaser (i) hereby
irrevocably submits to the jurisdiction of the United States District Court and
other courts of the United States sitting in the State of New York for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement, and (ii) hereby waives, and agrees not to assert in any such suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Each of the Company and the Purchaser consents to process being served
in any such suit, action or proceeding by mailing a copy thereof to such party
at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing in this Section shall affect or limit any right to serve
process in any other manner permitted by law.
Section 9.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement represents the
entire agreement of the parties with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by either
party relative to subject matter hereof not expressly set forth herein. No
provision of this Agreement may be amended other than by a written instrument
signed by both parties hereto.
Section 9.4 NOTICES. Any notice, demand, request, waiver or other
communication required or permitted to be given hereunder shall be in writing
and shall be effective (a) upon hand delivery or by facsimile (with facsimile
machine confirmation of delivery received) at the address or number designated
below (if delivered on a business day during normal business hours where such
notice is to be received), or the first business day following such delivery (if
delivered other than on a business day during normal business hours where such
notice is to be received) or (b) on the second business day following the date
of mailing by express courier service, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first occur. The address
for such communications shall be:
If to the Company: OMI Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With copies to:
30
Coudert Brothers LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III, Esq.
If to the Purchaser: Acqua Wellington North American Equities
Fund, Ltd.
c/o Fortis Fund Services (Bahamas) Ltd.
Montage Sterling Centre
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
With copies to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Either party hereto may from time to time change its address or other
information for notices by giving at least ten (10) days advance written notice
of such changed address to the other party hereto.
Section 9.5 WAIVERS. No waiver by either party of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provisions, condition or requirement hereof, nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter. No provision of this Agreement may be
waived other than in a written instrument signed by the party against whom
enforcement of such waiver is sought.
Section 9.6 HEADINGS. The article, section and subsection headings in
this Agreement are for convenience only and shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to limit or affect any
of the provisions hereof.
Section 9.7 SUCCESSORS AND ASSIGNS. The Purchaser may not assign this
Agreement to any person without the prior consent of the Company, in the
Company's sole discretion. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and assigns. After Closing, the
assignment by a party to this Agreement of any rights hereunder shall not affect
the obligations of such party under this Agreement.
31
Section 9.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to the choice of law provisions.
Section 9.9 SURVIVAL. The representations and warranties of the Company
and the Purchaser contained in Article III and the covenants contained in
Article IV shall survive the execution and delivery hereof and the Closing until
the termination of this Agreement, and the agreements and covenants set forth in
Article VIII of this Agreement shall survive the execution and delivery hereof
and the Closing hereunder.
Section 9.10 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and shall become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being understood that all
parties need not sign the same counterpart. In the event any signature is
delivered by facsimile transmission, the party using such means of delivery
shall cause four additional executed signature pages to be physically delivered
to the other parties within five days of the execution and delivery hereof.
Section 9.11 PUBLICITY. Except as otherwise provided in Section 4.7 and
Section 4.11, prior to the Closing, neither the Company nor the Purchaser shall
issue any press release or otherwise make any public statement or announcement
with respect to this Agreement or the transactions contemplated hereby or the
existence of this Agreement without the prior written consent of the other party
to such disclosure, except that if the Company is required by law, based upon an
opinion of the Company's counsel, to issue a press release or otherwise make a
public statement or announcement with respect to this Agreement prior to the
Closing, the Company may do so and shall consult with the Purchaser in advance
on the form and substance of such press release. After the Closing, the Company
may issue a press release or otherwise make a public statement or announcement
with respect to this Agreement or the transactions contemplated hereby or the
existence of this Agreement; provided, however, that prior to issuing any such
press release, making any such public statement or announcement, the Company
shall consult with the Purchaser on the form and substance of such press release
or other disclosure.
Section 9.12 SEVERABILITY. The provisions of this Agreement are
severable and, in the event that any court of competent jurisdiction shall
determine that any one or more of the provisions or part of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement, and this Agreement shall be reformed and construed as if such
invalid or illegal or unenforceable provision, or part of such provision, had
never been contained herein, so that such provisions would be valid, legal and
enforceable to the maximum extent possible.
Section 9.13 FURTHER ASSURANCES. From and after the date of this
Agreement, upon the request of the Purchaser or the Company, each of the Company
and the Purchaser shall execute and deliver such instrument, documents and other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officer as of the date first above
written.
OMI CORPORATION
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ACQUA WELLINGTON NORTH AMERICAN
EQUITIES FUND, LTD.
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
33
EXHIBIT A TO THE
COMMON STOCK PURCHASE AGREEMENT
[Reserved]
EXHIBIT B TO THE
COMMON STOCK PURCHASE AGREEMENT
SECRETARY'S CERTIFICATE
November 13, 2003
In connection with the Common Stock Purchase Agreement dated as of
November 13, 2003, (the "AGREEMENT") by and among OMI CORPORATION (the
"Company") and Acqua Wellington North American Equities Fund, Ltd., (the
"Purchaser") the undersigned hereby certifies as follows: (capitalized terms
used herein without definition have the meanings assigned to them in the
Agreement):
1. Attached hereto as EXHIBIT A is a true, complete and correct copy of
the Articles of Incorporation of the Company as filed with the Registrar of
Corporations of the ▇▇▇▇▇▇▇▇ Islands. The Articles of Incorporation of the
Company has not been further amended or restated, and no document with respect
to any amendment to the Articles of Incorporation of the Company has been filed
in the office of the Registrar of Corporations of the ▇▇▇▇▇▇▇▇ Islands since
__________, 2003, the date shown on the face of the certification relating to
the Company's Articles of Incorporation, which is in full force and effect on
the date hereof, and no action has been taken by the Company in contemplation of
any such amendment or the dissolution, merger or consolidation of the Company
which would require disclosure in the Prospectus.
2. Attached hereto as EXHIBIT B is a true and complete copy of the
By-laws of the Company, as amended and restated, and as in full force and effect
on, the date hereof, and no proposal for any amendment, repeal or other
modification to the By-laws of the Company has been taken or is currently
pending before the Board of Directors or stockholders of the Company.
3. Attached hereto as EXHIBIT C is a true and correct copy of all
written actions and resolutions of the Board of Directors (including any
committees thereof) of the Company relating to the Agreement and the
transactions contemplated thereby; said actions and resolutions have not been
amended, rescinded or modified since their adoption and remain in full force and
effect as of the date hereof; said actions and resolutions are the only
resolutions adopted by the Board of Directors of the Company, or any committee
thereof, pertaining to (A) the offering of the Common Stock to be sold by the
Company pursuant to the Agreement, (B) the execution and delivery of the
Agreement and (C) all other transactions in connection with the foregoing.
4. Each person who, as an officer of the Company, or as
attorney-in-fact of an officer of the Company, signed (A) the Agreement, (B) the
Registration Statement and (C) any other document delivered prior hereto or on
the date hereof in connection with the transactions contemplated by the
Agreement, was duly elected, qualified and acting as such officer or duly
appointed and acting as such attorney-in-fact, and the signature of each such
person appearing on any such document is such person's genuine signature.
5. The Agreement as executed and delivered on behalf of the Company has
been approved by the Company.
6. All records and other documents of the Company made available to the
Purchaser and its counsel were true and complete in all respects. There have
been no material changes, additions or alterations in said records and other
documents that have not been disclosed to the Purchaser.
IN WITNESS WHEREOF, I have signed my name as of the date first above
written.
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
I, [NAME] Chief Financial Officer of OMI CORPORATION, do hereby certify
that [NAME] is the duly elected, qualified and acting Secretary of the above
mentioned company, and that the signature set forth above is his true and
genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first
above written.
By:
----------------------------------------
Name:
Title: Chief Financial Officer
EXHIBIT C TO THE
COMMON STOCK PURCHASE AGREEMENT
CLOSING CERTIFICATE
In connection with the Common Stock Purchase Agreement dated as of
November 13, 2003, (the "AGREEMENT") by and among OMI Corporation (the
"Company") and Acqua Wellington North American Equities Fund, Ltd., the
undersigned hereby certifies as follows:
1. The undersigned is the duly elected Chief Financial Officer of the
Company.
2. Except as set forth in the attached Schedule or the Schedule to the
Agreement, the representations and warranties of the Company set forth in
Section 3.1 of the Agreement are true and correct in all material respects as
though made on and as of the date hereof, except for representations and
warranties that speak as of a particular date.
3. The Company has performed in all material respects all covenants and
agreements to be performed by the Company on or prior to the Closing Date and
has complied in all material respects with all obligations and conditions
contained in the Agreement.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Agreement.
The undersigned has executed this Certificate this 13th day of
November, 2003.
By:
----------------------------------------
Name:
Title: Chief Financial Officer
35
EXHIBIT D TO THE
COMMON STOCK PURCHASE AGREEMENT
COMPLIANCE CERTIFICATE
In connection with the issuance of shares of common stock of OMI
Corporation (the "Company") pursuant to the Draw Down Notice, dated ___________
delivered by the Company to Acqua Wellington North American Equities Fund, Ltd.
(the "Purchaser") pursuant to Article VI of the Common Stock Purchase Agreement
dated November 13, 2003, by and between the Company and the Purchaser (the
"AGREEMENT"), the undersigned hereby certifies as follows:
1. The undersigned is the duly elected Chief Financial Officer of the
Company.
2. Except as set forth in the attached Schedule or the Schedule to the
Agreement, the representations and warranties of the Company set forth in
Section 3.1 of the Agreement are true and correct in all material respects as
though made on and as of the date hereof, except for representations and
warranties that speak as of a particular date.
3. The Company has performed in all material respects all covenants and
agreements to be performed by the Company on or prior to the Draw Down Exercise
Date and the Settlement Date related to the Draw Down Notice and has complied in
all material respects with all obligations and conditions contained in Section
5.3 of the Agreement.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Agreement.
The undersigned has executed this Certificate this _____ day of
_________, 2003.
By:
----------------------------------------
Name:
Title: Chief Financial Officer
EXHIBIT E TO THE
COMMON STOCK PURCHASE AGREEMENT
FORM OF DRAW DOWN NOTICE
Reference is made to the Common Stock Purchase Agreement dated as of
November13, 2003, (the "PURCHASE AGREEMENT") between OMI Corporation (the
"COMPANY"), and Acqua Wellington North American Equities Fund, Ltd. Capitalized
terms used and not otherwise defined herein shall have the meanings given such
terms in the Purchase Agreement.
In accordance with and pursuant to Section 6.1 of the Purchase
Agreement, the Company hereby issues this Draw Down Notice to exercise a Draw
Down request for the Draw Down Amount indicated below.
Draw Down Amount:
------------------------------------------------------
Call Option Amount Requested:
----------------------------------------
Draw Down Pricing Period start date:
-----------------------------------
Draw Down Pricing Period end date:
-------------------------------------
Settlement Date:
-------------------------------------------------------
Threshold Price:
-------------------------------------------------------
Minimum Threshold Price: $2.00
-----------------------------------------------
Dollar Amount and/or Number of Shares
of Common Stock Currently Unissued
under the Registration Statement:
--------------------------------------
Dollar Amount of Common Stock
Currently Available under the
Aggregate Limit:
-------------------------------------------------------
Dated:
-----------------------------
By:
----------------------------------------
Name:
Title: Chief Financial Officer
Address:
-----------------------------------
Facsimile No.:
-----------------------------
Wire Instructions:
-------------------------
Contact Name:
------------------------------
EXHIBIT F TO THE
COMMON STOCK PURCHASE AGREEMENT
FORM OF CALL OPTION NOTICE
To:
------------
Fax#:
Reference is made to the Common Stock Purchase Agreement effective as
of November13, 2003 (the "PURCHASE AGREEMENT") between OMI Corporation, a
▇▇▇▇▇▇▇▇ Islands corporation (the "COMPANY"), and Acqua Wellington North
American Equities Fund, Ltd. Capitalized terms used and not otherwise defined
herein shall have the meanings given such terms in the Purchase Agreement.
In accordance with and pursuant to Section 6.2 of the Purchase
Agreement, the Purchaser hereby issues this Call Option Notice to exercise a
Call Option for the Call Option Amount indicated below.
Call Option Amount Exercised:
------------------------------------------
Number of Shares to be purchased:
--------------------------------------
VWAP on the date hereof:
-----------------------------------------------
Draw Down Discount Price:
----------------------------------------------
Settlement Date:
-------------------------------------------------------
Threshold Price:
-------------------------------------------------------
Minimum Threshold Price: $2.00
-----------------------------------------------
Dated:
----------------
Acqua Wellington North American Equities Fund, Ltd.
By:
------------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------