10,000,000 SHARES DRYSHIPS INC. Common Stock ($0.01 Par Value) EQUITY UNDERWRITING AGREEMENT
Exhibit 2
EXECUTION
COPY
April
21, 2010
Deutsche
Bank AG, London Branch
Winchester
House
1 Great
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇ ▇▇▇
Deutsche
Bank Securities Inc.
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▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
DryShips Inc., a ▇▇▇▇▇▇▇▇ Islands
corporation (the "Company"), subject to the
terms and conditions stated herein and pursuant to the Share Lending Agreement,
dated as of April 21, 2010 (the "Share Lending Agreement"),
between the Company and Deutsche Bank AG, London Branch (the "Share Borrower"), proposes to
sell and lend to the Share Borrower as a share loan, pursuant to and upon the
terms set forth in the Share Lending Agreement, up to an aggregate of 10,000,000
shares (the "Shares") of
the Company's common stock, $0.01 par value (the "Common Stock"). The
Company has been advised that the Share Borrower will lend the borrowed shares
to Deutsche Bank Securities Inc., which will sell the borrowed shares to the
public as an underwriter (the "Underwriter"). The
Company previously has loaned 26,100,000 shares of Common Stock to Deutsche Bank
Securities Inc. under the Share Lending Agreement, dated November 25, 2009,
between the Company and the Share Borrower.
Concurrently with the issuance of the
Shares, the Company is offering (the "Note Offering") in an offering
registered under the Securities Act of 1933, as amended (the "Securities Act"), by means of
a prospectus supplement, $220,000,000 aggregate principal amount of its 5.00%
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Convertible
Senior Notes due December 1, 2014 (the "Senior
Notes"). Deutsche Bank Securities Inc. is acting as the
underwriter in the Note Offering. The Company has granted the
underwriter an option to purchase up to an additional $20,000,000 aggregate
principal amount of the Senior Notes to cover over-allotments, if
any. The Company issued $460,000,000 in aggregate principal amount of
notes of the same series on November 25, 2009.
In consideration of the mutual
agreements contained herein and of the interests of the parties in the
transactions contemplated hereby, the parties hereto agree as
follows:
1. Representations and
Warranties. The Company represents and warrants to and agrees with each
of the Underwriter and the Share Borrower that:
(a) The
Company has filed with the Securities and Exchange Commission (the "Commission") a registration
statement on Form F-3ASR (File No. 333-146540), including a prospectus, and has
filed post-effective amendments No. 1 and No. 2 thereto, relating to securities
(the "Shelf
Securities"), including the Shares to be issued from time to time by the
Company. The registration statement as amended to the date of this Agreement,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under
the Securities Act, is hereinafter referred to as the "Registration Statement," and
the related prospectus covering the Shelf Securities dated October 17, 2008 in
the form first used to confirm lending of the Shares (or in the form first made
available to the Underwriter by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the
"Basic
Prospectus."
The Basic Prospectus, as supplemented
by the prospectus supplement specifically relating to the Shares in the form
first used to confirm lending of the Shares (or in the form first made available
to the Underwriter by the Company to meet requests of purchasers pursuant to
Rule 173 under the Securities Act) is hereinafter referred to as the "Prospectus," and the term
"preliminary prospectus"
means any preliminary form of the Prospectus. For purposes of this Agreement,
"free writing
prospectus" has the meaning set forth in Rule 405 under the Securities
Act, "Time of Sale
Prospectus" means the preliminary prospectus together with the free
writing prospectuses each identified in Schedule I hereto, and "broadly available road show"
means a "bona fide electronic road show" as defined in Rule 433(h)(5) under the
Securities Act that has been made available without restriction to any
person.
As used herein, the terms "Registration
Statement," "Basic Prospectus," "preliminary prospectus," "Time of Sale
Prospectus" and "Prospectus" shall include the documents, if any, incorporated
by reference therein. The terms "supplement," "amendment," and "amend" as used herein with
respect to the Registration Statement, the Basic Prospectus, the Time of Sale
Prospectus, any preliminary prospectus or free writing prospectus shall include
all documents subsequently filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
deemed to be incorporated by reference therein.
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(b) The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or, to the knowledge of the Company, threatened
by the Commission.
(c) (i)
Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective, did
not contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement as of the date hereof does not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iv) the Registration Statement and the Prospectus comply, and as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time
of each issuance of the Shares in connection with the offering when the
Prospectus is not yet available to prospective purchasers and at the Closing
Date (as defined in Section 4), the Time
of Sale Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, (vi) each broadly
available road show, if any, when considered together with the Time of Sale
Prospectus, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading and (vii) the
Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in the Registration Statement, the Time of Sale Prospectus or the Prospectus
based upon information relating to the Underwriter furnished to the Company in
writing by such Underwriter expressly for use therein.
(d) The
financial statements included or incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, together with the
related schedules and notes, present fairly the financial position of the
Company and its consolidated Subsidiaries (as defined in Section 2(f) below)
at the dates indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated Subsidiaries for the periods
specified; said financial statements have been prepared in conformity with U.S.
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules, if
any, present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included or incorporated by reference in the Registration
Statement.
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(e) The
Company is a foreign private issuer and a well-known seasoned issuer (each as
defined in Rule 405 under the Securities Act) eligible to use the Registration
Statement as an automatic shelf registration statement and the Company has not
received notice that the Commission objects to the use of the Registration
Statement as an automatic shelf registration statement. The Company
is not an "ineligible issuer" in connection with the offering pursuant to Rules
164, 405 and 433 under the Securities Act. Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the Securities Act has
been, or will be, filed with the Commission in accordance with the requirements
of the Securities Act and the applicable rules and regulations of the Commission
thereunder. Each free writing prospectus that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or behalf of or used or referred to by the Company complies or will
comply in all material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder. Except for
the free writing prospectuses, if any, identified in Schedule I hereto, and
electronic road shows each furnished to you before first use, the Company has
not prepared, used or referred to, and will not, without your prior consent,
prepare, use or refer to, any free writing prospectus.
(f) The
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the business,
property, management, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole ("Material Adverse
Effect").
(g) Each
subsidiary of the Company has been duly incorporated or organized, is validly
existing as a corporation or other legal entity in good standing under the laws
of the jurisdiction of its incorporation or organization, has the corporate or
other power and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a Material Adverse Effect; all of the issued shares
of capital stock or other equity interests of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and (except for minority interests set forth in a schedule
previously provided by the Company to the Underwriter and Share Borrower) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(h) This
Agreement has been duly authorized, executed and delivered by the
Company.
(i) The
authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the
Prospectus.
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(j) The
Share Lending Agreement has been duly authorized, executed and delivered by the
Company and constitutes a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that
enforceability of the Share Lending Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity, regardless
of whether considered in a proceeding in equity or at law.
(k) The
Company has the authorized equity capitalization set forth in the Time of Sale
Prospectus. All of the outstanding capital stock of the Company has
been duly authorized and validly issued and is fully paid and nonassessable and
was not issued in violation of any preemptive or similar rights. The
Shares have been duly authorized and when issued in accordance with the terms of
the Share Lending Agreement and this Agreement, will be validly issued, fully
paid and nonassessable and will not have been issued in violation of any
preemptive or similar rights.
(l) The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement and the Share Lending Agreement will not
will not result in a breach or violation of any of the terms and provisions of,
or require the consent of any person, or constitute a default or a Debt
Repayment Triggering Event (as defined below) under, or result in the imposition
of any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement or the Share
Lending Agreement, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and lending of the
Shares and with respect to the approval of the listing of the Shares on the
Nasdaq Global Select Market ("Nasdaq"). A "Debt Repayment Triggering
Event" means any event or condition that gives, or with the giving of
notice or lapse of time would give, the holder of any loan, note, debenture, or
other evidence of indebtedness (or any person acting on such holder's behalf)
the right to accelerate the due date of any payment of, or to require the
repurchase, redemption or repayment of all, or a portion of such indebtedness by
the Company or any of its subsidiaries.
(m) There
has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Time of Sale
Prospectus.
(n) No
labor dispute with the employees of the Company or any Subsidiary exists or, to
the knowledge of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or any
Subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, would result in a Material Adverse Effect.
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(o) There
are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its subsidiaries is
subject (i) other than proceedings accurately described in all material respects
in the Time of Sale Prospectus and proceedings that would not have a Material
Adverse Effect, or materially adversely affect the power or ability of the
Company to perform its obligations under this Agreement or the Share Lending
Agreement or to consummate the transactions contemplated by the Prospectus or
(ii) that are required to be described in the Registration Statement or the
Prospectus and are not so described; and there are no statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(p) Each
preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(q) The
Company is not, and after giving effect to the offering of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be,
an "investment company" as such term is defined in the Investment Company Act of
1940, as amended.
(r) The
Company and its subsidiaries own or possess or can acquire on commercially
reasonable terms adequate licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights, mask work rights, technology
and know how necessary to conduct the business now or proposed to be conducted
by the Company and its subsidiaries as described in the Time of Sale Prospectus,
except where the failure to own, possess or acquire such rights would not have a
Material Adverse Effect, and except as disclosed in the Time of Sale Prospectus,
the Company has not received any notice of infringement of or conflict with (and
knows of no such infringement of or conflict with) asserted rights of others
with respect to any patents, trademarks, service marks, trade names, copyrights,
mask work rights or know how which would have a Material Adverse
Effect.
(s) No
filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any U.S. domestic or foreign court or governmental
authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or loan
of the Shares hereunder or the consummation of the transactions contemplated by
this Agreement, except such as have been already obtained or as may be required
under the 1933 Act or the 1933 Act Regulations or state securities
laws.
(t) Neither
the Company nor any affiliate of the Company has taken, nor will the Company or
any affiliate take, directly or indirectly, any action which is designed to or
which has constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
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(u) The
Company and its Subsidiaries possess all such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, local or foreign regulatory agencies or
bodies as are necessary to conduct the business now operated by them, except
where the failure to so possess would not, singly or in the aggregate, result in
a Material Adverse Effect; the Company and its Subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and effect would
not, singly or in the aggregate, result in a Material Adverse Effect; and
neither the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(v) Neither
the Company nor any of its Subsidiaries owns any interest in real
property. The Company and its Subsidiaries have good title to all
other properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectus or (b) do not, singly or
in the aggregate, have a Material Adverse Effect and do not interfere with the
use made and proposed to be made of such property by the Company or any of its
Subsidiaries; and all of the leases, subleases and charterparties material to
the business of the Company and its Subsidiaries, and under which the Company or
any of its Subsidiaries holds properties described in the Prospectus, are in
full force and effect, and neither the Company nor any Subsidiary has any notice
of any material claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
Subsidiary to the continued possession of the leased, subleased or chartered
property under any such lease, sublease or charterparty.
(w) The
Company and its Subsidiaries (i) are in compliance with any and all applicable
international, foreign, federal, state and local conventions, laws, regulations,
orders and other requirements or rules of law (including common law), or
decisions or orders of any domestic or foreign governmental agency or
governmental body or court applicable to them relating to the protection of
human health and safety, the protection or restoration of the environment, and
the use, handling, transportation, treatment, storage, discharge, disposal or
release of hazardous or toxic substances, wastes, pollutants or contaminants
("Environmental Laws"),
(ii) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a Material Adverse
Effect.
(x) There
are no costs or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related
7
constraints
on operating activities and any potential liabilities to third parties) which
would, singly or in the aggregate, have a Material Adverse Effect.
(y) Except
as set forth in the Time of Sale Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company, or, except as have
been waived, to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(z) The
statements set forth in each of the Time of Sale Prospectus and the Prospectus
under the caption "Description of Capital Stock and "Description of Share
Lending Agreement and Concurrent Offering of Our Convertible Notes," insofar as
they purport to constitute a summary of the terms of the Share Lending Agreement
and the Shares, fairly summarize such terms in all material
respects.
(aa) Each
of the independent, registered public accounting firms whose report is included
in the Company's Annual Report on Form 20F, filed with the Commission on April
9, 2010, which are included in or incorporated by reference in the Registration
Statement, is a registered independent public accounting firm as required by the
1933 Act and the 1933 Act Regulations.
(bb) The
Company maintains a system of internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company's
principal executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with accounting principles generally accepted in the
United States of America. Except as disclosed in the Time of Sale
Prospectus, the Company's internal control over financial reporting was
effective as of December 31, 2009 and the Company is not aware of any material
weaknesses in its internal control over financial reporting.
(cc) Except
as disclosed in the Time of Sale Prospectus, since the date of the latest
audited financial statements included or incorporated by reference in the Time
of Sale Prospectus, there has been no change in the Company's internal control
over financial reporting that has materially affected, or is reasonably likely
to materially affect, the Company's internal control over financial
reporting.
(dd) The
Company maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been designed to
ensure that material information relating to the Company and its subsidiaries is
made known to the Company's principal executive officer and principal financial
officer by others within those entities; and such disclosure controls and
procedures were effective as of December 31, 2009.
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(ee) Any
certificate signed by any officer of the Company delivered to the Underwriter or
Share Borrower or to counsel for the Underwriter or Share Borrower pursuant to
or in connection with this Agreement shall be deemed a representation and
warranty by the Company to the Underwriter and the Share Borrower as to the
matters covered thereby as of the date or dates indicated in such
certificate.
(ff) There
is and has been no failure on the part of the Company or any of the Company's
directors or officers, in their capacities as such, to comply in all material
respects with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection therewith that are applicable to the
Company (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act"), including Section 402 related to loans and Sections 302 and 906
related to certifications.
(gg) Neither
the Company nor any of its subsidiaries or affiliates, nor any director or
officer, nor, to the Company's knowledge, any employee, agent or representative
of the Company or of any of its subsidiaries or affiliates, has taken or will
take any action in furtherance of an offer, payment, promise to pay, or
authorization or approval of the payment or giving of money, property, gifts or
anything else of value, directly or indirectly, to any "government official"
(including any officer or employee of a government or government-owned or
controlled entity or of a public international organization, or any person
acting in an official capacity for or on behalf of any of the foregoing, or any
political party or party official or candidate for political office) to
influence official action or secure an improper advantage; and the Company and
its subsidiaries and affiliates have conducted their businesses in compliance
with applicable anti-corruption laws and have instituted and maintain and will
continue to maintain policies and procedures designed to promote and achieve
compliance with such laws and with the representation and warranty contained
herein.
(hh) All
United States federal income tax returns of the Company and its Subsidiaries
required by law to be filed have been filed and all taxes shown by such returns
or otherwise assessed, which are due and payable, have been paid, except
assessments against which appeals have been or will be promptly taken and as to
which adequate reserves have been provided. The United States federal
income tax returns of the Company through the fiscal year ended December 31,
2009 have been filed and no assessment in connection therewith has been made
against the Company. The Company and its Subsidiaries have filed all other tax
returns that are required to have been filed by them pursuant to applicable
foreign, state, local or other law except insofar as the failure to file such
returns would not result in a Material Adverse Effect, and has paid all taxes
due pursuant to such returns or pursuant to any assessment received by the
Company and its Subsidiaries, except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided and
except as would not, singly or in the aggregate, have a Material Adverse
Effect. The charges, accruals and reserves on the books of the
Company in respect of any income and corporation tax liability for any years not
finally determined are adequate to meet any assessments or re-assessments for
additional income tax for any years not finally determined, except to the extent
of any inadequacy that would not result in a Material Adverse
Effect.
(ii) The
Company believes that it did not qualify as a "passive foreign investment
company" ("PFIC") within
the meaning of
9
Section
1296 of the United States Internal Revenue Code of 1986, as amended, for its
most recently completed taxable year, if any, and believes that it is not likely
to qualify as a PFIC in its current or a subsequent taxable year.
(jj) The
Company and its Subsidiaries carry or are entitled to the benefits of insurance
in such amounts and covering such risks as is generally maintained by companies
of established repute engaged in the same or similar business, and all such
insurance is in full force and effect. The Company has no reason to
believe that any insurer providing coverage to the Company or a Subsidiary is
not financially sound or that it or any subsidiary will not be able (A) to renew
its existing insurance coverage as and when such policies expire, or (B) to
obtain comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted and at a cost that would
not result in a Material Adverse Change. Neither of the Company nor
any subsidiary has been denied any insurance coverage which it has sought or for
which it has applied.
(kk) Any
statistical and market-related data included in the Registration Statement and
the Prospectus are based on or derived from sources that the Company believes to
be reliable and accurate.
(ll) Neither
the Company nor any of its Subsidiaries, to the knowledge of the
Company, any director, officer, agent, employee, affiliate or other person
acting on behalf of the Company or any of its Subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder (the "FCPA"), including, without
limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
"foreign official" (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA and the Company and its Subsidiaries, and,
to the knowledge of the Company, its and their affiliates have conducted their
businesses in compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(mm) The
operations of the Company and its subsidiaries are and have been conducted at
all times in material compliance with all applicable financial recordkeeping and
reporting requirements, including those of the Bank Secrecy Act, as amended by
Title III of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT
Act), and the applicable anti-money laundering statutes of jurisdictions where
the Company and its subsidiaries conduct business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the "Anti-Money Laundering Laws"),
and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to
the best knowledge of the Company, threatened.
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(nn) (i) Neither
the Company nor any of its Subsidiaries (collectively, the "Entity") or, to the knowledge
of the Entity, any director, officer, employee, agent, affiliate or
representative of the Entity, is an individual or entity ("Person") that is, or is owned
or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury's Office of Foreign Assets Control ("OFAC"), the United Nations
Security Council ("UNSC"), the European Union
("EU"), Her Majesty's
Treasury ("HMT"), or
other relevant sanctions authority (collectively, "Sanctions"), nor
(B) located, organized or resident in a country or territory that is
the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba,
Iran, North Korea, Sudan and Syria).
(ii) The Entity represents
and covenants that it will not, directly or indirectly, use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any
Person or in any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions
by any Person (including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
(iii) The Entity represents
and covenants that it has not knowingly engaged in, is not now knowingly engaged
in, and will not engage in, any dealings or transactions with any Person, or in
any country or territory, that at the time of the dealing or transaction is or
was the subject of Sanctions.
(oo) (i) All
of the vessels described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, except for the vessels which the Company or a
Subsidiary has contracted to acquire or to have constructed, are owned directly
by Subsidiaries; each of the vessels listed on Schedule II hereto and specified
as being owned (the "Owned
Vessels") by a Subsidiary has been duly registered as a vessel under the
laws and regulations and flag of the jurisdiction set forth opposite its name on
Schedule II in the sole ownership of the Subsidiary set forth opposite its name
on Schedule II and no other action is necessary to establish and perfect such
entity's title to and interest in such vessel as against any charterer or third
party; each such Subsidiary has good title to the applicable Owned Vessel, free
and clear of all mortgages, pledges, liens, security interests and claims and
all defects of the title of record except for those liens arising under credit
facilities as disclosed in the Registration Statement, the Time of Sale
Prospectus and the Prospectus and such other encumbrances which would not, in
the aggregate, result in a Material Adverse Effect; and each such Owned Vessel
is in good standing with respect to the payment of past and current taxes, fees
and other amounts
11
payable
under the laws of the jurisdiction where it is registered as would affect its
registry with the ship registry of such jurisdiction except for failures to be
in good standing which would not, in the aggregate, result in a Material Adverse
Effect. Upon delivery to and acceptance by the relevant Subsidiary
under the memoranda of agreement or the newbuilding contracts described in the
Registration Statement, the Time of Sale Prospectus and Prospectus, each of the
vessels listed on Schedule II hereto and specified as being under contract (the
"Contracted Vessels") for delivery to and acceptance by a Subsidiary will be
duly registered as a vessel under the laws of the jurisdiction set forth
opposite its name on Schedule II in the sole ownership of the Subsidiary set
forth opposite its name on Schedule II, on such date, each such Subsidiary will
have good title to the applicable Contracted Vessel, free and clear of all
mortgages, pledges, liens, security interests, claims and all defects of the
title of record, except for any mortgages, pledges, liens, security interests or
claims arising from any financing arrangement which the Company or a Subsidiary
may enter to finance the acquisition of the Contracted Vessel and except such
encumbrances which would not, in the aggregate, result in a Material Adverse
Effect; and each such Contracted Vessel will be in good standing with respect to
the payment of past and current taxes, fees and other amounts payable under the
laws of the jurisdiction where it is registered as would affect its registry
with the ship registry of such jurisdiction.
(ii) Each Owned Vessel has
been, and the Company will use reasonable commercial efforts to ensure that each
Contracted Vessel will be, operated in compliance with the rules, codes of
practice, conventions, protocols, guidelines or similar requirements or
restrictions imposed, published or promulgated by any governmental authority,
classification society or insurer applicable to the respective vessel
(collectively, "Maritime
Guidelines") and all applicable international, national, state and local
conventions, laws, regulations, orders, Governmental Licenses and other
requirements (including, without limitation, all Environmental Laws), except
where such failure to be in compliance would not have, individually or in the
aggregate, a Material Adverse Effect. The Company and each Subsidiary
are, and with respect to the Contracted Vessels will be, qualified to own or
lease, as the case may be, and operate such vessels under all applicable
international, national, state and local conventions, laws, regulations, orders,
Governmental Licenses and other requirements (including, without limitation, all
Environmental Laws) and Maritime Guidelines, including the laws, regulations and
orders of each such vessel's flag state, except where such failure to be so
qualified would not have, individually or in the aggregate, a Material Adverse
Effect.
(iii) Each Owned Vessel is,
and each Contracted Vessel will be, classed by any of Lloyd's Register of
Shipping, American Bureau of Shipping, Det Norske Veritas or a classification
society which is a full member of the International Association of
Classification Societies and each Owned Vessel is, and the Company will use
reasonable commercial efforts to ensure each Contracted Vessel will be, in class
with valid class and trading certificates, without any overdue
recommendations.
(pp) There
are no documentary, stamp or other issuance or transfer taxes or duties or
similar fees or charges under U.S. federal law or the laws of any U.S. state,
the Republic of Greece or the Republic of the ▇▇▇▇▇▇▇▇ Islands (assuming that
the Underwriter and Share Borrower are not citizens or residents of the Republic
of Greece or the Republic of the ▇▇▇▇▇▇▇▇ Islands or are carrying on business or
conducting transactions
12
in
the Republic of Greece or the Republic of the ▇▇▇▇▇▇▇▇ Islands), or any
political subdivision of any thereof, required to be paid in connection with the
execution and delivery of this Agreement or the Share Lending Agreement or the
issuance and delivery of Shares pursuant hereto.
2. Issuance and Transfer of the
Shares. On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth and in the
Share Lending Agreement, the Company agrees to issue to the Share Borrower in
exchange for payment of the Loan Fee (as defined in the Share Lending
Agreement), and the Share Borrower agrees to borrow from the Company, from time
to time pursuant to one or more Borrowing Notices (as defined in the Share
Lending Agreement), the Shares specified in such Borrowing Notice, and the
Underwriter, upon such issuance to the Share Borrower agree to purchase such
Shares from the Share Borrower.
3. Offering. It is
understood that the Underwriter proposes to offer the Shares from time to time
for sale to the public as set forth in the Prospectus.
4. Delivery. In accordance with
the Share Lending Agreement, delivery of up to 10,000,000 Shares shall be made
at 9:30 A.M., New York City time, on April 27, 2010, or such other time on the
same or such other date as the Share Borrower and the Company shall agree in
writing. The time and date of such delivery are hereinafter referred
to as the "Initial Closing
Date."
From time to time on or before the
Borrowing Termination Date (as defined in the Share Lending Agreement), the
Share Borrower may give one or more Borrowing Notices with respect to a number
of Shares specified in such Borrowing Notice, up to the Maximum Number of Shares
(as defined in the Share Lending Agreement). In accordance with the
Share Lending Agreement, delivery of the Shares specified in a Borrowing Notice
shall be made on or before the Cutoff Time (as defined in the Share Lending
Agreement) on the date specified in the Borrowing Notice), or at such other time
on the same or such other date as the Share Borrower and the Company shall agree
in writing. The time and date of each such delivery are herein
referred to as a "Subsequent
Closing Date" and with the Initial Closing Date and each other Subsequent
Closing Date, being sometimes referred to as a "Closing Date."
The documents to be delivered on any
Closing Date on behalf of the parties hereto pursuant to Section 5 of this
Agreement shall be delivered to the offices of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius, LLP
at the office specified in Schedule I thereto, and the Shares shall be delivered
at the office of the Depository Trust Company ("DTC"), all on the applicable
Closing Date.
5. Conditions to the Underwriter's and
the Share Borrower's Obligations. The obligations of the Underwriter and
the Share Borrower are subject to the following conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to each Closing
Date:
(i) there shall
not have occurred any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded
the Company or any of the securities of the Company or any of its subsidiaries
by any "nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have
occurred any change, or any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set forth in the
Time of Sale Prospectus that, in your judgment, is material and adverse and that
makes it, in your judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Time of Sale Prospectus.
(b) The
Underwriter and the Share Borrower shall have received on each Closing Date a
certificate, dated such Closing Date and signed by the Chief Executive Officer
of the Company, (i) to the effect set forth in Section 5(a)(i)
above; (ii) to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of such Closing Date and
that the Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on or before
such date; and (iii) covering such additional matters as the Underwriter or the
Share Borrower may request.
The
officer signing and delivering such certificate may rely upon the best of his or
her knowledge as to proceedings threatened.
(c) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Securities Act within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act; the final term
sheet substantially in the form of Schedule I hereto, and any material required
to be filed by the Company pursuant to Rule 433(d) under the Securities Act,
shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or, to the
Company's knowledge, threatened by the Commission and no notice of objection of
the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have
been received; no stop order suspending or preventing the use of the Prospectus
or any issuer free writing prospectus shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Underwriter's and Share
Borrower's reasonable satisfaction.
(d) (i)
The Underwriter and the Share Borrower shall have received on each Closing Date
an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇ Islands counsel and U.S. counsel
for the Company, dated the Closing Date or Option Closing Date, as the case may
be, substantially to the effect set forth in Exhibit A-1 and Exhibit A-2
hereto.
13
(ii) The Underwriter and the Share Borrower shall have received on each Closing
Date an opinion of counsel for the Company in Greece, Malta, Norway, UK, Ghana,
Canada and Cyprus, and for any other jurisdiction in which a Subsidiary is
incorporated or where a vessel or rig owned by a Subsidiary is registered, dated
such Closing Date, substantially to the effect set forth in Exhibit A-3 and
Exhibit A-4 hereto.
(e) The
Underwriter and the Share Borrower shall have received on each Closing Date an
opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriter, in form
and substance satisfactory to the Underwriter and the Share
Borrower.
The
opinions of counsel for the Company described in Section 5(d) above
shall be rendered to the Underwriter and the Share Borrower at the request of
the Company and shall so state therein.
(f) The
Underwriter shall have received, on each of the date hereof and each Closing
Date, a letter dated the date hereof or such Closing Date, as the case may be,
in form and substance satisfactory to the Underwriter and the Share Borrower,
from each of Deloitte, Hadjipavlou, Sofianos & Cambanis S.A., Ernst &
Young (Hellas) Certified Auditors Accountants S.A. and Ernst & Young AS,
independent public accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement, the Time of Sale Prospectus and the Prospectus;
provided that the
letters delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(h) The
"lock-up" agreement, substantially in the form of Exhibit B hereto, between the
Underwriter and the Chief Executive Officer of the Company relating to sales and
certain other dispositions of Common Stock or certain other securities shall be
in full force and effect on each Closing Date.
(i) The
Note Offering, substantially on the terms described in the Prospectus, shall
have been consummated on the Initial Closing Date.
6. Covenants of the Company. The
Company covenants with each of the Underwriter and the Share Borrower as
follows:
(a) To
furnish to you, without charge, a signed copy of the Registration Statement
(including exhibits thereto and documents incorporated by reference) and to
deliver to each of the Underwriter and the Share Borrower during the period
mentioned in Section
6(e) or 6(f) below, as many
copies of the Time of Sale Prospectus, the Prospectus, any documents
incorporated therein by reference therein and any supplements and amendments
thereto or to the Registration Statement as you may reasonably
request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably
14
object
and to file with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed pursuant to
such Rule.
(c) To
furnish to you a copy of each proposed free writing prospectus to be prepared by
or on behalf of, used by, or referred to by the Company and not to use or refer
to any proposed free writing prospectus to which you reasonably
object.
(d) Not
to take any action that would result in the Underwriter, the Share Borrower or
the Company being required to file with the Commission pursuant to Rule 433(d)
under the Securities Act a free writing prospectus prepared by or on behalf of
the Underwriter that the Underwriter otherwise would not have been required to
file thereunder.
(e) If
the Time of Sale Prospectus is being used to solicit offers to buy the Shares at
a time when the Prospectus is not yet available to prospective purchasers and
any event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then on
file, or if, in the opinion of counsel for the Underwriter and the Share
Borrower, it is necessary to amend or supplement the Time of Sale Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriter and the Share Borrower and to
any dealer upon request, either amendments or supplements to the Time of Sale
Prospectus so that the statements in the Time of Sale Prospectus as so amended
or supplemented will not, in the light of the circumstances when delivered to a
prospective purchaser, be misleading or so that the Time of Sale Prospectus, as
amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented,
will comply with applicable law.
(f) If,
during such period after the first date of the public offering of the Shares as
in the opinion of counsel for the Underwriter and the Share Borrower the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the
Securities Act) is required by law to be delivered in connection with sales by
the Underwriter or dealer, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) under the Securities
Act) is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriter and the Share Borrower, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the Underwriter and
to the dealers (whose names and addresses you will furnish to the Company) to
which Shares may have been sold by the Underwriter and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act) is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented,
will comply with applicable law.
15
(g) To
endeavor to qualify the Shares for offer and lending under the securities or
Blue Sky laws of such jurisdictions as you shall reasonably
request.
(h) To
make generally available to the Company's security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the date
of this Agreement which shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder.
(i) Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the Shares under
the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company
and amendments and supplements to any of the foregoing, including the filing
fees payable to the Commission relating to the Shares (within the time required
by Rule 456(b)(1), if applicable), all printing costs associated therewith, and
the mailing and delivering of copies thereof to the Underwriter and dealers, in
the quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriter and the Share Borrower,
including any transfer or other taxes payable thereon, (iii) the cost of
printing or producing any Blue Sky or legal investment memorandum in connection
with the offer and lending of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer and
lending under state securities laws as provided in Section 6(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriter and the Share Borrower in connection with such qualification and
in connection with the Blue Sky or legal investment memorandum, (iv) all filing
fees and the reasonable fees and disbursements of counsel to the Underwriter and
the Share Borrower incurred in connection with the review and qualification of
the offering of the Shares by the Financial Industry Regulatory Authority
(FINRA), (v) any fees charged by the rating agencies for the rating of the
Shares, (vi) the cost of the preparation, issuance and delivery of the Shares,
(vii) the costs and charges of any trustee, transfer agent, registrar or
depositary, (viii) the costs and expenses incident to listing the Shares on the
Nasdaq, (ix) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the preparation or dissemination of any electronic road show, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, (x) the document production charges and expenses associated with printing
this Agreement and (xi) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in this
Section, Section
8 entitled "Indemnity and Contribution," and the last paragraph of Section 10 below, the
Underwriter and the Share Borrower will pay all of their costs and expenses,
including
16
fees and
disbursements of their counsel, transfer taxes payable on resale of any of the
Shares by them and any advertising expenses connected with any offers they may
make.
(j) If
the third anniversary of the date hereof occurs before all the Shares have been
sold by the Underwriter, prior to the third anniversary to file a new shelf
registration statement and to take any other action necessary to permit the
public offering of the Shares to continue without interruption; references
herein to the Registration Statement shall include the new registration
statement declared effective by the Commission.
(k) The
Company also covenants with each of the Underwriter and the Share Borrower that,
without the prior written consent of the Underwriter and the Share Borrowers, it
will not, during the period ending 60 days after the date of the Prospectus, (1)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction described in clause
1 or 2 above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, or (3) file any registration statement with
the Commission relating to the offering of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock. The foregoing sentence shall not apply to (a) the Shares to be
sold hereunder or the Senior Notes or underlying shares related to the Senior
Notes to be sold pursuant to the Note Offering, (b) the issuance by the Company
of shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the Underwriter
has been advised in writing, (c) any shares of Common Stock issued, or options
to purchase Common Stock granted, pursuant to the Company's 2008 Equity
Incentive Plan, existing on the date hereof, or (d) the establishment of a
trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of
shares of Common Stock, provided that such plan does
not provide for the transfer of Common Stock during the 60-day restricted
period.
(l) To
prepare a final term sheet relating to the offering of the Shares, containing
only information that describes the final terms of the Shares or the offering in
a form consented to by the Share Borrower and Underwriter, and to file such
final term sheet within the period required by Rule 433(d)(5)(ii) under the
Securities Act following the date the final terms have been established for the
offering of the Shares.
(m) To
list the Shares on the Nasdaq.
(n) To
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
7. Covenants of the Underwriter and the
Share Borrower. Each of the Underwriter and the Share Borrower severally
covenants with the Company not to take any action that would result in the
Company being required to file with the Commission under Rule 433(d) a
17
free
writing prospectus prepared by or on behalf of the Underwriter or the Share
Borrower that otherwise would not be required to be filed by the Company
thereunder, but for the action of the Underwriter or the Share
Borrower.
8. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each of the Underwriter,
the Share Borrower, the directors, officers, employees and agents of the
Underwriter and the Share Borrower, and each person, if any, who controls the
Underwriter or the Share Borrower within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and each affiliate of the
Underwriter and the Share Borrower within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, any Company
information that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or the Prospectus or any amendment or supplement
thereto, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (other than with respect to the registration Statement, in the light of
the circumstances under which they were made) not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(b) Each
of the Underwriter and the Share Borrower agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter or Share Borrower, but only with reference to information
relating to such Underwriter or Share Borrower furnished to the Company in
writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus or the Prospectus or any amendment or supplement
thereto.
(c) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to Section
8(a) or 8(b), such person
(the "indemnified
party") shall promptly notify the person against whom such indemnity may
be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties
18
to any
such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in respect
of the legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the
Share Borrower and Underwriter in the case of parties indemnified pursuant to
Section 8(a), and by the Company, in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by, or on behalf of, any indemnified
party.
(d) To
the extent the indemnification provided for in Section 8(a) or Section 8(b) is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative fault of the Company on the one hand and
of the Underwriter or the Share Borrower on the other hand in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Underwriter or the
Share Borrower on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriter or the Share Borrower
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The
Company, the Underwriter and the Share Borrower agree that it would not be just
or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriter and the Share
Borrower were treated as one entity for such purpose)
19
or by any
other method of allocation that does not take account of the equitable
considerations referred to in Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, neither the
Underwriter nor the Share Borrower shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter or Share Borrower has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Underwriter or the Share Borrower, any person controlling the
Underwriter or the Share Borrower or any affiliate of the Underwriter or the
Share Borrower or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
9. Termination. The Underwriter
and the Share Borrower may terminate this Agreement by notice given by you to
the Company, if after the execution and delivery of this Agreement and prior to
any Closing Date (i) trading generally shall have been suspended or materially
limited on, or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the Nasdaq Stock Market, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall
have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, loan or delivery of the Shares on the terms and in the manner
contemplated in the Time of Sale Prospectus or the Prospectus.
If this
Agreement shall be terminated by the Underwriter and the Share Borrower, or
either of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement the Company will reimburse the Underwriter and the Share Borrower
or the Underwriter or the
20
Share
Borrower (if it has so terminated this Agreement) with respect to itself,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriter or the Share Borrower
in connection with this Agreement or the offering contemplated
hereunder.
10. Effectiveness. This
Agreement shall become effective upon the execution and delivery hereof by the
parties hereto.
11. Entire Agreement. (a) This
Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement) that relate
to the offering of the Shares, represents the entire agreement between the
Company, the Underwriter and the Share Borrower with respect to the preparation
of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the
conduct of the offering, issuance and loan of the Shares.
(b) The
Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriter and the Share Borrower have acted at arms length, are not agents of,
and owe no fiduciary duties to, the Company or any other person, (ii) the
Underwriter and the Share Borrower owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the
extent not superseded by this Agreement), if any, and (iii) the Underwriter and
the Share Borrower may have interests that differ from those of the Company. The
Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriter and the Share Borrower arising from an alleged
breach of fiduciary duty in connection with the offering of the
Shares.
12. Counterparts. This Agreement
may be signed in two or more counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
13. Applicable Law. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York.
14. Jurisdiction. The
Company agrees that any suit, action or proceeding against the Company brought
by the Underwriter, the Share Borrower, the directors, officers, partners,
employees and agents of the Underwriter and Share Borrower and each affiliate of
the Underwriter and Share Borrower, arising out of or based upon this Agreement
or the transactions contemplated hereby may be instituted in any court located
in the City and County of New York (a "New York Court"), and waives
any objection which it may now or hereafter have to the laying of venue of any
such proceeding, and irrevocably submits to the non-exclusive jurisdiction of
such courts in any suit, action or proceeding. The Company has
appointed ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, as its authorized agent (the "Authorized Agent") upon whom
process may be served in any suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated herein which may be
instituted in any New York Court, by the Underwriter, the Share Borrower, the
directors, officers, partners, employees and agents of the Underwriter and Share
Borrower and each affiliate of the Underwriter and Share Borrower, and expressly
accepts the non-exclusive jurisdiction of any such court in respect of any such
suit, action or proceeding. The Company hereby represents and
warrants that the
21
Authorized
Agent has accepted such appointment and has agreed to act as said agent for
service of process, and each of the Company agrees to take any and all action,
including the filing of any and all documents that may be necessary to continue
such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent shall be deemed, in every respect, effective
service of process upon the Company. Notwithstanding the foregoing,
any action arising out of or based upon this Agreement may be instituted by the
Underwriter, the Share Borrower, the directors, officers, partners, employees
and agents of the Underwriter and Share Borrower and each affiliate of the
Underwriter and Share Borrower, in any court of competent jurisdiction in the
Republic of the ▇▇▇▇▇▇▇▇ Islands.
The
provisions of this Section 14 shall survive any termination of this Agreement,
in whole or in part.
15. Headings. The headings of the
sections of this Agreement have been inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
16. Notices. All communications
hereunder shall be in writing and effective only upon receipt and if to the
Underwriter or the Share Borrower shall be delivered, mailed or sent to you at
the address set forth in Schedule I hereto; and if to the Company shall be
delivered, mailed or sent to the address set forth in Schedule I
hereto.
************
22
Please
confirm your agreement by signing a copy of this Underwriting Agreement in the
space set forth below.
|
Very
truly yours,
|
||
|
|
||
|
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title: Chief
Operating Officer
|
||
|
|
||
|
Accepted
as of the date hereof
|
||
|
DEUTSCHE
BANK SECURITIES INC.
|
||
|
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title: Managing
Director
|
||
|
|
||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
|
||
|
Title:
Managing Director
|
||
|
|
||
|
DEUTSCHE
BANK AG, LONDON BRANCH
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title: Managing
Director
|
||
|
|
||
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
|
||
|
Title:
Managing Director
|
||
SCHEDULE
I
|
Registration
Statement File No.:
|
Registration
Statement on Form F-3 (File No. 333-146540)
|
|
|
Time
of Sale Prospectus
|
· | Prospectus dated October 17, 2008 relating to the Shelf Securities |
| · |
The
preliminary prospectus supplement dated April 20, 2010 relating to
the
Shares
|
|
| · | Term Sheet dated April 21, 2010 | |
|
Securities
to be purchased:
|
10,000,000
shares of Common Stock
|
|
|
Closing
Date and Time:
|
April
27, 2010 10:00 a.m., New York City time
|
|
|
Closing
Location:
|
▇▇▇▇▇▇,
▇▇▇▇▇ & Bockius LLP
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
|
Address
for Notices to the Underwriter:
|
Deutsche
Bank Securities Inc.
▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Equity Capital Markets – Syndicate Desk
with
a copies to:
Deutsche
Bank Securities Inc.
▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
|
|
|
and
▇▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
|
||
|
and
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Esq.
|
||
|
Address
for Notices to the Share Borrower:
|
Deutsche
Bank AG, London Branch
Winchester
house
1
Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇ ▇▇▇
with
a copy to:
Deutsche
Bank Securities Inc.
▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
|
|
|
Address
for Notices to the Company:
|
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇
Attention: Chief
Executive Officer
|
Schedule
I- 1
|
with
a copy to:
▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇. ▇▇▇▇▇, Esq.
|
Schedule
I- 2
SCHEDULE
II
VESSELS
|
Ship-Owning
Subsidiaries with Vessels in Operations
|
Country
of Incorporation
|
Vessel
|
Flag
State
|
|||||
|
1.
|
Malvina
Shipping Company Limited
|
Malta
|
Coronado
|
Malta
|
||||
|
2.
|
Arleta
Navigation Company Limited
|
Malta
|
Xanadu
|
Malta
|
||||
|
3.
|
Selma
Shipping Company Limited
|
Malta
|
La
Jolla
|
Malta
|
||||
|
4.
|
Samsara
Shipping Company Limited
|
Malta
|
Ocean
Crystal
|
Malta
|
||||
|
5.
|
Farat
Shipping Company Limited
|
Malta
|
Toro
|
Malta
|
||||
|
6.
|
Borsari
Shipping Company Limited
|
Malta
|
Catalina
|
Malta
|
||||
|
7.
|
Onil
Shipping Company Limited
|
Malta
|
Padre
|
Malta
|
||||
|
8.
|
Fabiana
Navigation Company Limited
|
Malta
|
Alameda
|
Malta
|
||||
|
9.
|
▇▇▇▇▇▇
Shipping Company Limited
|
Malta
|
Sonoma
|
Malta
|
||||
|
10.
|
▇▇▇▇▇▇
Shipping Company Limited
|
Malta
|
Manasota
|
Malta
|
||||
|
11.
|
Celine
Shipping Company Limited
|
Malta
|
Mendocino
|
Malta
|
||||
|
12.
|
Tempo
Marine Co.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Star
Record Owning Company Limited
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Argo
Owning Company Limited
|
▇▇▇▇▇▇▇▇
Islands
|
Redondo
|
Malta
|
||||
|
15.
|
Rea
Owning Company Limited
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Gaia
Owning Company Limited
|
▇▇▇▇▇▇▇▇
Islands
|
Samsara
|
Malta
|
||||
|
17.
|
Kronos
Owning Company Limited
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Trojan
Maritime Co.
|
▇▇▇▇▇▇▇▇
Islands
|
Brisbane
|
Malta
|
||||
|
19.
|
Dione
Owning Company Limited
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Phoebe
Owning Company Limited
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Uranus Owning
Company Limited
|
▇▇▇▇▇▇▇▇
Islands
|
Levanto
(ex. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇)
|
Malta
|
||||
|
22.
|
Selene
Owning Company Limited
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Tethys
Owning Company Limited
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Ioli
Owning Company Limited
|
▇▇▇▇▇▇▇▇
Islands
|
Paros
I
|
Malta
|
||||
|
25.
|
Iason
Owning Company Limited
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Orpheus
Owning Company Limited
|
▇▇▇▇▇▇▇▇
Islands
|
Avoca
|
Malta
|
||||
|
27.
|
Team
up Owning Company Limited
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Iokasti
Owning Company Limited
|
▇▇▇▇▇▇▇▇
Islands
|
Pachino
(ex. VOC Galaxy)
|
Malta
|
||||
|
29.
|
▇▇▇▇▇
Star Owners Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
Samatan
|
▇▇▇▇▇
|
||||
|
▇▇.
|
▇▇▇▇▇▇▇
Star Owners Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
Capri
|
Malta
|
||||
|
31.
|
Ionian
Traders Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
Positano
|
Malta
|
||||
|
32.
|
NT
LLC Investors Ltd.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Dalian
Star Owners Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
Mystic
|
Malta
|
||||
|
34.
|
Aegean
Traders Inc.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Cretan
Traders Inc.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Monteagle
Shipping ▇.▇.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇
|
▇▇▇▇▇
|
||||
|
▇▇.
|
Roscoe
Marine Ltd.
|
▇▇▇▇▇▇▇▇
Islands
|
Rapallo
|
Malta
|
||||
Schedule
II- 1
|
Ship-Owning
Subsidiaries with Vessels under Construction
|
||||||||
|
38.
|
Drillship
Hydra Owners Inc.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
|
|||||
|
39.
|
Drillship
Paros Owners Inc.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
|
|||||
|
40.
|
Drillship Kithira
Owners Inc.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
|
|||||
|
41.
|
Drillship Skopelos
Owners Inc.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
|
|||||
|
42.
|
Pergamos
Owning Company Ltd.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇
|
|||||
|
43.
|
Anathus
Owning Company Ltd.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇
|
|||||
|
Ship-Owning
Subsidiaries with Vessels Sold
|
||||||||
|
44.
|
▇▇▇▇▇▇▇
Navigation Company Limited
|
Malta
|
Solana
|
|||||
|
45.
|
Zatac
Shipping Company Limited
|
Malta
|
▇▇▇▇▇▇▇
|
|||||
|
▇▇.
|
Atlas
Owning Company Limited
|
▇▇▇▇▇▇▇▇
Islands
|
Menorca
|
|||||
|
47.
|
Maternal
Owning Company Limited
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇
|
|||||
|
▇▇.
|
Royerton
Shipping Company Limited
|
Malta
|
Netadola
|
|||||
|
49.
|
Lancat
Shipping Company Limited
|
▇▇▇▇▇
|
▇▇▇▇▇▇
|
|||||
|
▇▇.
|
Paternal
Owning Company Limited
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇▇
|
|||||
|
▇▇.
|
▇▇▇▇
Shipping Company Limited
|
Malta
|
Lanikai
|
|||||
|
52.
|
Hydrogen
Shipping Company Limited
|
Malta
|
Mostoles
|
|||||
|
53.
|
Madras
Shipping Company Limited
|
Malta
|
Alona
|
|||||
|
54.
|
Seaventure
Shipping Limited
|
▇▇▇▇▇▇▇▇
Islands
|
▇▇▇▇▇
Oldendorff
|
|||||
|
55.
|
Classical
Owning Company Limited
|
▇▇▇▇▇▇▇▇
Islands
|
Delray
|
|||||
|
56.
|
Oxygen
Shipping Company Limited
|
Malta
|
Shibumi
|
|||||
|
57.
|
Human
Owning Company Limited
|
▇▇▇▇▇▇▇▇
Islands
|
Estepona
|
|||||
|
58.
|
Helium
Shipping Company Limited
|
Malta
|
Striggla
|
|||||
|
59.
|
Blueberry
Shipping Company Limited
|
Malta
|
Panormos
|
|||||
|
60.
|
Platan
Shipping Company Limited
|
Malta
|
Daytona
|
|||||
|
61.
|
Silicon
Shipping Company Limited
|
Malta
|
▇▇▇▇▇▇
|
|||||
|
▇▇.
|
▇▇▇▇▇
Shipping Company Limited
|
Malta
|
Tonga
|
|||||
|
63.
|
Lansat
Shipping Company Limited
|
Malta
|
Paragon
|
|||||
|
64.
|
Annapolis
Shipping Company Limited
|
Malta
|
Lanikai
(ex Lacerta)
|
|||||
|
65.
|
Iguana
Shipping Company Limited
|
Malta
|
Iguana
|
|||||
|
66.
|
Lotis
Traders Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
Delray
|
|||||
|
Ocean
Rig's Subsidiaries
|
||||||||
|
67.
|
Ocean
Rig ASA*
|
Norway
|
||||||
|
68.
|
Ocean
Rig Norway AS*
|
Norway
|
||||||
|
69.
|
Ocean
Rig AS*
|
Norway
|
||||||
|
70.
|
Ocean
Rig UK Ltd
|
United
Kingdom
|
||||||
|
71.
|
Ocean
Rig Ltd
|
United
Kingdom
|
||||||
|
72.
|
Ocean
Rig Ghana Ltd
|
Ghana
|
||||||
|
73.
|
Ocean
Rig USA AS
|
Norway
|
||||||
|
74.
|
Ocean
Rig 1 AS*
|
Norway
|
||||||
|
75.
|
Ocean
Rig 2 AS*
|
Norway
|
||||||
|
76.
|
Ocean
Rig Canada Inc.
|
Canada
|
||||||
|
77.
|
Ocean
Rig North Sea AS
|
Norway
|
Schedule
II- 2
|
78.
|
Ocean
Rig 1 Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
Bahamas
|
||||
|
79.
|
Ocean
Rig 2 Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
▇▇▇▇▇
▇▇▇▇▇
|
Bahamas
|
||||
|
80.
|
Drill
Rigs Holding Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
81.
|
Ocean
Rig Operations Inc.
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
||||||
|
▇▇.
|
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇ Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
83.
|
Ocean
Rig 1 Shareholders Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
84.
|
Ocean
Rig 2 Shareholders Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
85.
|
Primelead
Limited
|
Cyprus
|
||||||
|
86.
|
Ocean
Rig UDW Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
87.
|
Drillships
Investments Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
88.
|
Drillships
Holding Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
Other
Subsidiaries
|
||||||||
|
89.
|
Wealth
Management Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
90.
|
Kerkyra
Traders Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
91.
|
Thrasymachus
Challenge Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
92.
93.
94.
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
|
Hippias
Challenge Inc.
Prodicus
Challenge Inc.
Gorgias
Challenge Inc.
Callicles
Challenge Inc.
Antiphon
Challenge Inc.
Protagoras
Challenge Inc.
Lycophron
Challenge Inc.
Tinos
Traders Inc.
Sifnos
Traders Inc.
Thassos
Traders Inc.
Milos
Traders Inc.
Pounta
Traders Inc.
Kallikrates
Owning Company Limited
|
▇▇▇▇▇▇▇▇
Islands
▇▇▇▇▇▇▇▇
Islands
▇▇▇▇▇▇▇▇
Islands
▇▇▇▇▇▇▇▇
Islands
▇▇▇▇▇▇▇▇
Islands
▇▇▇▇▇▇▇▇
Islands
▇▇▇▇▇▇▇▇
Islands
▇▇▇▇▇▇▇▇
Islands
▇▇▇▇▇▇▇▇
Islands
▇▇▇▇▇▇▇▇
Islands
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
||||||
|
▇▇▇.
|
Iktinos
Owning Company Limited
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
106.
|
Kithira
Shareholders Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
107.
|
Skopelos
Shareholders Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
108.
|
Drillship
Hydra Shareholders Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
109.
|
Drillship
Paros Shareholders Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
110.
|
Mensa
Shareholings Ltd.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
111.
|
Mandarin
Shareholdings Ltd.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
112.
|
Ialysos
Shareholders Ltd.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
113.
|
Cratylus
Challenge Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
114.
|
Sunlight
Shipholding One Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
||||||
|
115.
|
Faedon
Shareholders Ltd.
|
▇▇▇▇▇▇▇▇
Islands
|
*Under
liquidation
Schedule
II- 3
EXHIBIT
A-1
FORM
OF OPINION OF ▇▇▇▇▇▇▇▇ ISLANDS COUNSEL
(i)
The Agreement has been duly
authorized, executed and delivered by the Company.
(ii) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the Republic of the ▇▇▇▇▇▇▇▇
Islands.
(iii) The
Company has corporate power and authority to own, lease and operate its
properties and to conduct its business in all material respects as described in
the Prospectus and to enter into and perform its obligations under the
Agreement.
(iv) Without
independent investigation, to our knowledge, the Company is qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification (except where the failure so to
qualify, would not, in the aggregate, have a Material Adverse Effect on the
Company and its subsidiaries taken as a whole).
(v) The
Share Lending Agreement has been duly and validly authorized, executed and
delivered by the Company.
(vi) The
Shares have been duly and validly authorized and executed by the Company and
will, when issued in accordance with the applicable terms of the Share Lending
Agreement and the Agreement, will be validly issued, fully paid and
non-assessable, free of all preemptive or similar rights.
(vii) To
our knowledge, and without independent investigation and other than as set forth
or contemplated in the Prospectus, we are not aware of any pending or threatened
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, which, if determined adversely to the Company or any
subsidiary, would individually or in the aggregate reasonably be expected to
have a Material Adverse Effect or that would reasonably be expected to
materially and adversely affect the properties or assets of the Company or the
consummation of the transactions contemplated in the Agreement or the
performance by the Company of its obligations thereunder.
(viii) The
information in (i) the Basic Prospectus under "Prospectus Summary," "Risk
Factors," "Description of Capital Stock," "Description of Debt Securities," and
"Enforcement of Civil Liabilities," (ii) the Prospectus Supplement under
"Summary," "Risk Factors," and "▇▇▇▇▇▇▇▇ Islands Tax Considerations," and (iii)
the Registration Statement under Item 8, to the extent that it describes matters
of the Republic of the ▇▇▇▇▇▇▇▇ Islands law, summaries of the Republic of the
▇▇▇▇▇▇▇▇ Islands legal matters, the Company's charter and by-laws or the
Republic of the ▇▇▇▇▇▇▇▇ Islands legal proceedings, or the Republic of the
▇▇▇▇▇▇▇▇ Islands legal conclusions, has been reviewed by us and is correct in
all material respects.
Exhibit
A-1 - 1
(ix) The
execution, delivery and performance by the Company of its obligations under the
Agreement and the Share Lending Agreement, and the consummation of the
transactions contemplated in the Time of Sale Prospectus and the Registration
Statement (including the issuance and loan of the Shares), do not and will not
result in any violation of the provisions of the charter or by-laws of the
Company or any subsidiary of the Company, or to our knowledge, any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court of the Republic of the ▇▇▇▇▇▇▇▇
Islands having jurisdiction over the Company or any such subsidiary or any of
their respective properties, assets or operations.
(x) Neither
the issue and loan of the Shares, nor the execution, delivery and performance of
the Agreement and the Share Lending Agreement, nor the consummation of any other
of the transactions contemplated in the Agreement or the Share Lending
Agreement, nor the fulfillment of the terms thereof, will conflict with, result
in a breach or violation of, or imposition of any lien, claim or encumbrance
under the Republic of the ▇▇▇▇▇▇▇▇ Islands law upon any property or assets of
the Company (except where such conflict, breach, violation, claim or encumbrance
would not, singly or in the aggregate, have a Material Adverse Effect on the
Company and its subsidiaries taken as a whole) pursuant to (i) the articles of
incorporation or by-laws of the Company or (ii) to our knowledge any statute,
law, rule, or regulation of general application of the Republic of the ▇▇▇▇▇▇▇▇
Islands to which to which the Company is subject.
(xi) No
licenses, permits, certificates, consents, orders, approvals, registration,
qualification or other authorizations of, or declarations or filings with, any
governmental or regulatory authorities of the Republic of the ▇▇▇▇▇▇▇▇ Islands
are required for (a) the execution and delivery of the Agreement or the Share
Lending Agreement, (b) the issuance and loan of the Shares by the Company or the
consummation of the transactions contemplated by the Agreement or the Share
Lending Agreement or (c) the Company to own or lease, as the case may be, or to
operate, its properties and carry on its business as conducted as of the date of
this Opinion in the manner described in the Time of Sale Prospectus and the
Prospectus.
(xii) Neither
the Republic of the ▇▇▇▇▇▇▇▇ Islands nor any political subdivision or taxing
authority thereof may impose any withholding tax or similar tax on payments by
the Company pursuant to the terms of either of Agreement or the Share Lending
Agreement or by virtue of the execution or delivery of either of the Agreement
or the Share Lending Agreement, provided that the Company:
|
|
(i)
|
is
not now, nor will be in the future, engaged in (i) the retailing,
wholesaling, trading or importing of goods or services for or with
residents of the Republic of the ▇▇▇▇▇▇▇▇ Islands; (ii) any extractive
industry in the Republic of the ▇▇▇▇▇▇▇▇ Islands; (iii) any regulated
professional service activity in the Republic of the ▇▇▇▇▇▇▇▇ Islands;
(iv) the export of any commodity or goods manufactured, processed, mined
or made in the Republic of the ▇▇▇▇▇▇▇▇ Islands; or (v) the ownership of
real property in the Republic of the ▇▇▇▇▇▇▇▇ Islands;
and
|
Exhibit
A-1 - 2
|
|
(ii)
|
is
not now, nor will be in the future, doing business in the Republic of the
▇▇▇▇▇▇▇▇ Islands except that the Company may have its registered office in
the Republic of the ▇▇▇▇▇▇▇▇ Islands and maintain its registered agent in
the Republic of the ▇▇▇▇▇▇▇▇ Islands as required by the provisions of the
▇▇▇▇▇▇▇▇ Islands Associations Law of 1990, as
amended.
|
(xiii) There
are no stamp or registration duties or similar taxes or charges payable in the
Republic of the ▇▇▇▇▇▇▇▇ Islands in respect of the execution, delivery,
performance, enforcement or admissibility into evidence of the Agreement or the
Share Lending Agreement other than (i) nominal documentary stamp taxes which
must be paid if either the Agreement or the Share Lending Agreement is submitted
to a court in the Republic of the ▇▇▇▇▇▇▇▇ Islands and (ii) court fees
contingent upon litigation in the Republic of the ▇▇▇▇▇▇▇▇ Islands.
(xiv) Insofar
as matters of the Republic of the ▇▇▇▇▇▇▇▇ Islands law are concerned, the
Registration Statement and the filing of the Registration Statement with the
Commission have been duly authorized by and on behalf of the Company, and the
Registration Statement has been duly executed pursuant to such authorization by
and on behalf of the Company.
(xv) A
final and conclusive judgment for a sum of money obtained in a court in any
United States or foreign jurisdiction arising out of or in relation to the
obligations of the Company under the Agreement or the Share Lending Agreement
would be enforceable against the Company in the courts of the Republic of the
▇▇▇▇▇▇▇▇ Islands provided that (i) such choice of law is not contrary to public
policy, as that term is understood under the laws of the Republic of the
▇▇▇▇▇▇▇▇ Islands; (ii) the judgment was not rendered in default or obtained by
fraud and the defendant appeared in the action or proceeding in person or by
duly authorized representative; (iii) enforcement of the judgment would not be
contrary to the Republic of the ▇▇▇▇▇▇▇▇ Islands public policy; (iv) the
judgment was rendered based on a personal claim; (v) the judgment is not
inconsistent with any judgment in the Republic of the ▇▇▇▇▇▇▇▇ Islands in
respect to the same matter; (vi) the judgment was rendered based on an
obligation which is not illicit in the Republic of the ▇▇▇▇▇▇▇▇ Islands; (vii)
the judgment is for a definite sum of money and the sum of money payable under
the judgment is not in respect of taxes or charges of a like nature or in
respect of a fine or other penalty; (viii) copy of the judgment be authenticated
and (ix) enforcement proceedings are instituted within six years after the date
of judgment.
(xvi) Assuming
neither the Company, nor any ▇▇▇▇▇▇▇▇ Islands Subsidiary nor any of their
parents, subsidiaries or affiliates is a division, bureau, office, agency,
department, committee or political subdivision of the government of the Republic
of the ▇▇▇▇▇▇▇▇ Islands or another sovereign jurisdiction, and assuming neither
the Company nor any ▇▇▇▇▇▇▇▇ Islands Subsidiary is regularly engaged in the
conduct of activities pursuant to contractual arrangements with the Republic of
the ▇▇▇▇▇▇▇▇ Islands or another sovereign jurisdiction or any division, bureau,
office, agency, department, committee or political subdivision thereof, neither
the Company nor any ▇▇▇▇▇▇▇▇ Islands Subsidiary is entitled to any immunity
under the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands whether characterized as
sovereign immunity or otherwise for any legal proceedings in the Republic of the
▇▇▇▇▇▇▇▇ Islands to enforce or to collect upon the Underwriting Agreement or the
Share Lending Agreement, and the Company and each ▇▇▇▇▇▇▇▇
Exhibit
A-1 - 3
Islands
Subsidiary is subject to civil and commercial law with respect to its
obligations under the Underwriting Agreement or the Share Lending Agreement,
which obligations constitute private and commercial acts rather than
governmental or public acts.
(xvii) All
dividends and other distributions declared and payable on the shares of the
capital stock of the Company and the ▇▇▇▇▇▇▇▇ Islands Subsidiaries may under the
current laws and regulations of the Republic of the ▇▇▇▇▇▇▇▇ Islands be paid in
United States dollars and may be freely transferred out of the Republic of the
▇▇▇▇▇▇▇▇ Islands and will not be subject to withholding taxes under the current
laws and regulations of the Republic of the ▇▇▇▇▇▇▇▇ Islands and are otherwise
free and clear of any other tax, withholding or deduction, and without the
necessity of obtaining any consents, approvals, authorization, orders, licenses,
registrations, clearances and qualifications of or with any court or
governmental agency or body or any stock exchange authorities, in the Republic
of the ▇▇▇▇▇▇▇▇ Islands.
Exhibit
A-1 - 4
EXHIBIT
▇-▇
▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ COUNSEL
(i) Assuming
that the Company's execution, delivery and performance of its obligations under
the Underwriting Agreement have been duly and validly authorized under the laws
of the Republic of the ▇▇▇▇▇▇▇▇ Islands and, insofar as it is governed by the
laws of the State of New York, the Underwriting Agreement has been duly executed
and delivered by the Company.
(ii) The
Share Lending Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms.
(iii) The
Registration Statement (including Post Effective Amendment Nos. 1 and 2 thereto)
became effective under the Act upon filing; any required filing of each
prospectus relating to the Shares (including the Prospectus) pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer
Free Writing Prospectus pursuant to Rule 433 has been made in the manner and
within the time period required by Rule 433(d); and, to the best of our
knowledge, (i) no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued under the Act and (ii) no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(iv) The
Registration Statement, including, without limitation information deemed to be
part of and included in such Registration Statement pursuant to Rule 430B, the
Prospectus, excluding the documents incorporated by reference therein, and each
amendment or supplement to the Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates, as of April __, 2010, and as of the date of
this Opinion, other than the financial statements, supporting schedules and
statistical information included therein or omitted therefrom, as to which we
express no opinion, complied as to form in all material respects with
the requirements of the Act and the rules and regulations of the Commission
thereunder.
(v) The
documents incorporated by reference in the Prospectus (other than the financial
statements and supporting schedules included therein or omitted therefrom, as to
which we need express no opinion), when they became effective or were filed with
the Commission, as the case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder.
(vi) Other
than as set forth or contemplated in the Prospectus and insofar as matters of
United States federal law and New York State law are concerned, to our
knowledge, there is not pending or threatened any regulatory or other legal or
governmental action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the Company or
any subsidiary is subject which, if
Exhibit
A-2 - 1
determined
adversely to the Company or any of its subsidiaries, would reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect,
or which would reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in the Agreement, the Share Lending Agreement and the Shares or the
performance by the Company of its obligations thereunder.
(vii) The
information in (i) the Basic Prospectus under "Prospectus Summary," "Risk
Factors," "Plan of Distribution," and "Taxation," (ii) in the Prospectus
Supplement under "Summary," "Risk Factors," and "Taxation- U.S. Federal Income
Tax Considerations," (iii) the Company's most recent annual report on Form 20-F
under "Part I - Environmental and Other Regulation" and under "Part I, Item 10 –
Taxation – United States Taxation," and (iv) the Registration Statement under
Item 8, insofar as such statements describe United States federal income tax
law, regulations and proceedings, fairly summarize such laws, regulations and
proceedings.
(viii) The
statements relating to legal matters, documents or proceedings included in (A)
the Prospectus under the captions "Description of Capital Stock" insofar as
relevant to the offering of the Shares, (B) the Time of Sale Prospectus under
the captions "Description of Indebtedness," "Description of Share Lending
Agreement" and "Description of Capital Stock" and (C) the Registration Statement
in Item 15, in each case fairly summarize in all material respects such matters,
documents or proceedings.
(ix) All
descriptions in the Registration Statement or in documents incorporated by
reference into the Registration Statement of material contracts and other
documents to which the Company or its Subsidiaries are a party are accurate in
all material respects; to our knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits to the Registration Statement or to documents incorporated by
reference into the Registration Statement other than those described or referred
to therein or filed as exhibits thereto or incorporated by reference
therein.
(x) No
consent, approval, authorization, order, registration, filing, qualification,
license or permit of or with any New York state or United States federal court,
or any judicial, regulatory or other legal or governmental agency or body is
required for the execution and delivery of, and the performance of the Company's
obligations under, the Agreement and the Share Lending Agreement or consummation
of the transactions contemplated by the Agreement, the Share Lending Agreement
and the Prospectus, except for (A) such as may be required under state
securities or blue sky laws in connection with the loan and delivery of the
Shares (as to which we express no opinion), (B) such as have been made or
obtained under the Securities Act (and the rules and regulations thereunder) and
the Exchange Act (and the rules and regulations thereunder), and (C) such as are
required by the Financial Industry Regulatory Authority (as to which we express
no opinion).
(xi) The
execution, delivery and performance by the Company of its obligations under the
Agreement and the Share Lending Agreement, the issuance and loan of the Shares
and the consummation of the transactions contemplated thereby in the Time of
Sale Prospectus and the
Exhibit
▇-▇ - ▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, do not and will not, whether with or without the giving of notice or
the lapse of time or both, (A) conflict with, result in a breach of any of the
terms and provisions of, or constitute a default or cause an acceleration of any
obligation under, or result in the creation or imposition of any lien, claim or
encumbrance (other than such liens as may arise by operation of law upon any
property or assets of the Company or any of its Subsidiaries, pursuant to, any
agreement or instrument known to us to which the Company or any of its
Subsidiaries, is a party or by which any of the Company or any of its
Subsidiaries, or their respective properties or assets are bound, except where
such conflicts, breaches, defaults, accelerations or imposition of a lien would
not, individually or in the aggregate, have a Material Adverse Effect or have a
material adverse effect on the Company's performance of its obligations under
the Underwriting Agreement or the consummation of the transactions contemplated
thereby, or (B) violate or conflict with any statute, rule or regulation of the
United States or the State of New York or, to our knowledge, any applicable
judgment, decree or order of any court or any judicial, regulatory or other
legal or governmental agency or body of the United States or the State of New
York.
(xii) The
Company is not required, and upon the issuance and loan of the Shares as herein
contemplated and the application of the net proceeds therefrom as described in
the Prospectus will not be required, to register as an "investment company"
under the 1940 Act.
(xiii) The
common stock of the Company is duly listed and admitted and authorized for
trading on the Nasdaq Global Select Market; the Underlying Shares have been
approved for listing on the Nasdaq Global Select Market upon official notice of
issuance.
(xiv) Under
the laws of the State of New York relating to submission to jurisdiction, the
Company has validly submitted to the jurisdiction of the New York courts in any
suit, action or proceeding arising out of or based on the Agreement and the
choice of New York law as the governing law of the Agreement will be recognized
by any court of the State of New York or the U.S. District Court for the
Southern District of the State of New York.
(xv) The
Company is a "foreign private issuer" as defined in Rule 405 of the
Act.
(xvi) The
discussion in the Time of Sale Prospectus and the Prospectus under the heading
"Taxation – U.S. Federal Income Tax Considerations", to the extent such
discussion summarizes matters of United States federal tax law, is accurate in
all material respects.
In addition, such counsel shall include
with its opinion a statement to the following effect:
Although
we do not assume any responsibility for, and shall not be deemed to have
independently ascertained or verified, the accuracy, completeness or fairness of
the statements made in the Registration Statement, the Time of Sale Prospectus
or the Prospectus, nothing has come to our attention in the course of
participating in conferences with officers and representatives of the Company
and representatives of the Company's independent accountants in the preparation
of the Registration Statement, the Time of Sale Prospectus and the Prospectus
that would lead us to believe, insofar as relevant to the offering of the
Shares, that (other than with respect to the financial statements and related
schedules and other
Exhibit
A-2 - 3
\
financial
data contained or incorporated by reference therein) (i) the Registration
Statement, as of its effective date, as of April __, 2010, and as of the date of
this Opinion (including the information in the Prospectus deemed to be part of
the Registration Statement at the time of effectiveness pursuant to Rule
430A(b)), contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) the Prospectus as of its date and as
of the date of this Opinion, contained or contains any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (iii) the Time of
Sale Prospectus contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
the light of circumstances under which they were made, not misleading, provided
that with respect to statements contained in such Time of Sale Prospectus, any
statement contained in any of the constituent documents shall be deemed to be
modified or superseded to the extent that any information contained in
subsequent constituent documents modifies or replaces such
statement.
Exhibit
▇-▇ - ▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF OPINION OF MALTESE, NORWEGIAN, UK, GHANESE, CANADIAN,
CYPRIOT, UNITED STATES AND ▇▇▇▇▇▇▇▇ ISLANDS COUNSEL1
CYPRIOT, UNITED STATES AND ▇▇▇▇▇▇▇▇ ISLANDS COUNSEL1
(xvii) Each
of [list each subsidiary incorporated in the relevant jurisdiction] (each
a ["Maltese/Norwegian/U.K./Ghanese/Canadian/Cypriot/United States/▇▇▇▇▇▇▇▇
Islands] Cypriot Subsidiary" and collectively the
["Maltese/Norwegian/U.K./Ghanese/Canadian/Cypriot/United States/▇▇▇▇▇▇▇▇
Islands] Subsidiaries"), has been duly incorporated and is validly existing as a
corporation in good standing under the laws of [●], has corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Time of Sale Prospectus[, as of each Applicable
Time (if any) prior to the date of this opinion,] and the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where
the failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the Time of Sale
Prospectus and the Prospectus, all of the issued and outstanding capital stock
of each [●]
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of our knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any [●] Subsidiary was
issued in violation of the preemptive or similar rights of any securityholder of
such [●]
Subsidiary.
(xviii) To
our knowledge, there is not pending or threatened any action, suit, proceeding,
inquiry or investigation, to which any [●] Subsidiary is a party, or to which
the property of any [●] Subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which would reasonably be
expected to result in a Material Adverse Effect, or which would reasonably be
expected to materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in the Agreement.
(xix) The
execution, delivery and performance of the Agreement and the consummation of the
transactions contemplated in the Agreement and in the Registration Statement
will not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or cause an acceleration of
any obligation under or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of any [●] Subsidiary pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to us, to which any [●]
Subsidiary is a party or by which any of them may be bound, or to which any of
the property or assets of any [●] Subsidiary is subject (except for such
conflicts, breaches, defaults or accelerations or liens, charges or encumbrances
that would not have a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or bylaws of any [●]
1 For clarity,
this form of opinion is to be delivered by counsel from each jurisdiction of
subsidiary incorporation. To the extent that there are additional opinions for
United States and ▇▇▇▇▇▇▇▇ Islands counsel in this form, they are to be added to
the opinion letters issued by such counsels.
Exhibit
A-3 - 1
Subsidiary, or any applicable law, statute, rule, regulation, judgment, order, writ or decree, known to [us] [me], of any government, government instrumentality or court, domestic or foreign, having jurisdiction over any [●] Subsidiary or any of their respective properties, assets or operations.
(xx) Each
ship management agreement to which a [●] Subsidiary is a party has been duly
authorized, executed and delivered by the appropriate [●]
Subsidiary.
(xxi)
None of the [●] Subsidiaries nor any of its or their respective properties or
assets will have an immunity from suit, execution, attachment or legal process
in any proceedings taken in [jurisdiction] in relation to the
Agreement.
(xxii) No
withholding tax (or any similar tax imposed by any political subdivision or
taxing authority of the relevant jurisdiction) is required to be deducted in
connection with the loan and delivery of the Shares to or for the account of the
Underwriter or Share Borrower or the sale and delivery by the Underwriter of the
Shares to the initial purchasers thereof. In addition, no documentary
stamp or other issuance or transfer taxes or duties and no capital gains, income
or other taxes, are payable by or on behalf of the Underwriter or Share Borrower
to the relevant jurisdiction or to any political subdivision or taxing authority
thereof or therein in connection with the loan and delivery of the Shares to or
for the respective accounts of the Underwriter or Share Borrower or the sale and
delivery by the Underwriter of the Shares to the initial purchasers
thereof.
(xxiii) All
dividends and other distributions declared and payable on the shares of capital
stock of any [●] Subsidiary may under the current laws and regulations of
[jurisdiction] be paid in United States dollars and may be freely transferred
out of [jurisdiction] and will not be subject to withholding taxes under the
laws and regulations of [jurisdiction], and are otherwise free and clear of any
other tax, withholding or deduction and without the necessity of obtaining any
consents, approvals, authorizations, orders, licenses, registrations, clearances
and qualifications of or with any court or governmental agency or body or any
stock exchange authorities in [jurisdiction].
Exhibit
A-3 - 2
EXHIBIT
A-4
FORM
OF OPINION OF ▇▇▇▇▇▇▇▇ ISLANDS, MALTESE, [OTHER
JURISDICTIONS] COUNSEL2
JURISDICTIONS] COUNSEL2
(i) Each
of [list vessels / rigs flagged in the relevant jurisdiction] is duly, validly
and permanently registered in the names of [list vessel-owning / rig-owning
subsidiaries], respectively (the "Owners") under the laws of [jurisdiction] with
the Registrar of [jurisdiction] Ships, under the [jurisdiction]
flag.
(ii) The
Owners are subsidiaries of the Company.
(iii) Except
as described in the Prospectus, the Owners have good and marketable title to the
vessels / rigs free and clear of any registered liens, charges or
encumbrances.
|
2
|
To
be added to opinions for vessel or rig owning
subsidiaries.
|
Exhibit
A-4 - 1