3,500,000 Shares OVERSEAS SHIPHOLDING GROUP, INC. Common Stock, Par Value $1.00 Per Share Underwriting Agreement
EXECUTION
COPY
3,500,000
Shares
OVERSEAS
SHIPHOLDING GROUP, INC.
Common
Stock, Par Value $1.00 Per Share
March 4,
2010
▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Overseas Shipholding Group, Inc., a
Delaware corporation (the “Company”), proposes to issue and sell to ▇▇▇▇▇▇▇,
Sachs & Co. (the “Underwriter”), an aggregate of 3,500,000 shares of common
stock, par value $1.00 per share, of the Company (the “Shares”). The shares of
common stock of the Company to be outstanding after giving effect to the sale of
the Shares are referred to herein as the “Stock.”
The
Company hereby confirms its agreement with the Underwriter concerning the
purchase and sale of the Shares, as follows:
1. Registration
Statement. The Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
“Securities Act”), a registration statement on Form S-3 (File No. 333-165213),
including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it became effective, including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time of its
effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term “Preliminary Prospectus”
means each prospectus included in such registration statement (and any
amendments thereto) before its effectiveness, any prospectus filed with the
Commission pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its effectiveness that
omits Rule 430 Information, and the term “Prospectus” means the prospectus in
the form first used (or made available upon request of purchasers pursuant to
Rule 173 under the Securities Act) in connection with confirmation of sales of
the Shares. Any reference in this Agreement to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to “amend”, “amendment” or
“supplement” with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Exchange Act”) that are deemed to be incorporated by
reference therein. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the
Prospectus.
At or prior to the Applicable Time (as
defined below), the Company had prepared the following information
(collectively, the “Pricing Disclosure Package”): a Preliminary Prospectus dated
March 4, 2010, and each “free-writing prospectus” (as defined pursuant to Rule
405 under the Securities Act) listed on Annex B hereto. “Applicable Time” means
6:00 P.M., New York City time, on March 4, 2010.
2. Purchase of the
Shares by the
Underwriter. (a) The Company agrees to issue and
sell the Shares to the Underwriter as provided in this Agreement, and the
Underwriter, on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein, agrees to purchase
from the Company the Shares at the purchase price per share (the “Purchase
Price”) of $45.33.
(b) The
Underwriter hereby informs the Company that it intends to make a public offering
of the Shares as soon after the effectiveness of this Agreement as in the
judgment of the Underwriter is advisable, and initially to offer the Shares on
the terms set forth in the Prospectus. The Company acknowledges and
agrees that the Underwriter may offer and sell Shares to or through any
affiliate of the Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Underwriter at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP at 10:00 A.M., New York City time, on March
9, 2010, or at such other time or place on the same or such other date, not
later than the fifth business day thereafter, as the Underwriter and the Company
may agree upon in writing. The time and date of such payment is referred to
herein as the “Closing Date.”
(d) Payment
for the Shares shall be made against delivery to the Underwriter for the account
of the Underwriter of the Shares in definitive form registered in such names and
in such denominations as the Underwriter shall request in writing not later than
two full business days prior to the Closing Date with any transfer taxes payable
in connection with the sale of such Shares duly paid by the Company. Delivery of
the Shares shall be made through the facilities of The Depository Trust Company
(“DTC”) unless the Underwriter shall otherwise instruct. The certificates for
the Shares will be made available for inspection and packaging by the
Underwriter at the office of DTC or its designated custodian no later than 1:00
P.M., New York City time, on the business day prior to the Closing
Date.
(e) The
Company acknowledges and agrees that the Underwriter is acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect
to the offering of Shares contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other person. Additionally, the
Underwriter is not advising the Company or any other person as to any legal,
tax, investment, accounting or regulatory matters in any jurisdiction. The
Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriter shall have no
responsibility or liability to the Company with respect thereto. Any review by
the Underwriter of the Company, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of the Underwriter and shall not be on behalf of the Company.
2
3. Representations and
Warranties of the Company. The
Company represents and warrants to the Underwriter that:
(a) Preliminary
Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus included in the Pricing Disclosure Package, at the time of filing
thereof, complied in all material respects with the Securities Act, and no
Preliminary Prospectus, at the time of filing thereof, contained 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; provided
that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use in any Preliminary Prospectus, it being understood
and agreed that only such information furnished by the Underwriter consists of
the information described as such in Section 7(b) hereof.
(b) Pricing Disclosure Package.
The Pricing Disclosure Package as of the Applicable Time did not, and as
of the Closing Date, will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
the Underwriter furnished to the Company in writing by the Underwriter expressly
for use in such Pricing Disclosure Package, it being understood and agreed that
the only such information furnished by the Underwriter consists of the
information described as such in Section 7(b) hereof. No statement of material
fact included in the Prospectus has been omitted from the Pricing Disclosure
Package and no statement of material fact included in the Pricing Disclosure
Package that is required to be included in the Prospectus has been omitted
therefrom.
3
(c) Issuer Free Writing
Prospectus. The Company (including its agents and
representatives, other than the Underwriter in its capacity as such) has not
prepared, used, authorized, approved or referred to and will not prepare, use,
authorize, approve or refer to any “written communication” (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Shares (each such communication by the Company or its
agents and representatives (other than a communication referred to in clauses
(i) (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i)
any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary
Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex B hereto
and (v) other written communications, in each case approved in writing in
advance by the Underwriter. Each such Issuer Free Writing Prospectus
complied in all material respects with the Securities Act, has been or will be
(within the time period specified in Rule 433) filed in accordance with the
Securities Act (to the extent required thereby) and, when taken together with
the Preliminary Prospectus accompanying, or delivered prior to delivery of, or
filed prior to the first use of such Issuer Free Writing Prospectus, did not,
and as of the Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with
respect to any statements or omissions made in each such Issuer Free Writing
Prospectus or Preliminary Prospectus in reliance upon and in conformity with
information relating to the Underwriter furnished to the Company in writing by
the Underwriter expressly for use in such Issuer Free Writing Prospectus or
Preliminary Prospectus, it being understood and agreed that the only such
information furnished by the Underwriter consists of the information described
as such in Section 7(b) hereof.
(d) Registration Statement and
Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has
been filed with the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been issued by
the Commission and no proceeding for that purpose or pursuant to Section
8A of the Securities Act against the Company or related to the
offering of the Shares has been initiated or threatened by the Commission; as of
the applicable effective date of the Registration Statement and any
post-effective amendment thereto, the Registration Statement and any such
post-effective amendment complied and will comply in all material respects with
the Securities Act, and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and as of the
date of the Prospectus and any amendment or supplement thereto and as of the
Closing Date, the Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided
that the Company makes no representation and warranty with
respect to any statements or omissions made in reliance upon and in conformity
with information relating to the Underwriter furnished to the Company in writing
by the Underwriter expressly for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto, it being understood and
agreed that the only such information furnished by the Underwriter consists of
the information described as such in Section 7(b) hereof.
(e) Incorporated
Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Pricing Disclosure Package, when
they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act, as applicable, and none of such documents
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,
in the light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in the
Registration Statement, the Prospectus or the Pricing Disclosure Package, when
such documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act, and 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, in the light of
the circumstances under which they were made, not misleading.
4
(f) Financial
Statements. The financial statements and the related notes
thereto included or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus comply in all material respects
with the applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the Company and its
subsidiaries on a consolidated basis as of the dates indicated and the results
of their operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States applied on a
consistent basis throughout the periods covered thereby, and any supporting
schedules included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein; and the other
financial information included or incorporated by reference in each of the
Registration Statement, the Pricing Disclosure Package and the Prospectus has
been derived from the accounting records of the Company and its subsidiaries and
presents fairly in all material respects the information shown
thereby.
(g) No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus (i) there has not
been any change in the capital stock (other than the issuance of shares of the
Company’s common stock upon exercise of stock options, awards and warrants
described as outstanding in, and the grant of options and awards under existing
equity incentive plans described in, the Registration Statement, the Pricing
Disclosure Package and the Prospectus), long-term debt of the Company or any of
its subsidiaries (other than borrowings pursuant to existing credit facilities
in the ordinary course of the business of the Company or any of its
subsidiaries), or any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, management, financial
condition, stockholders’ equity, or results of operations of the Company and its
subsidiaries taken as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries taken as a
whole; and (iii) the Company and its subsidiaries taken as a whole have not
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor disturbance or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority; except in the case of
clauses (i) through (iii) above as otherwise disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
5
(h) Organization and Good
Standing. The Company and each of its subsidiaries have been
duly organized and are validly existing and in good standing under the laws of
their respective jurisdictions of organization, are duly qualified to do
business and are in good standing in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority necessary to own
or hold their respective properties and to conduct the businesses in which they
are engaged, except where the failure to be so qualified, in good standing or
have such power or authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management, financial
condition, stockholders’ equity or results of operations of the Company and its
subsidiaries taken as a whole or on the performance by the Company of its
obligations under this Agreement (a “Material Adverse Effect”).
(i) Capitalization. The
Company has an authorized capitalization as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable and are not subject to any pre-emptive or similar rights; except
as described in or expressly contemplated by the Pricing Disclosure Package and
the Prospectus, there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity interest
in the Company or any of its subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the issuance of
any capital stock of the Company or any subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options; the capital
stock of the Company conforms in all material respects to the description
thereof contained in the Registration Statement, the Pricing Disclosure Package
and the Prospectus; and all the outstanding shares of capital stock or other
equity interest of each subsidiary owned, directly or indirectly, by the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable (except, in the case of any foreign subsidiary, for directors’
qualifying shares and except as otherwise described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus) and are owned
directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or any other
claim of any third party.
(j) Stock
Options. With respect to the stock options (the “Stock
Options”) granted pursuant to the stock-based compensation plans of the Company
and its subsidiaries (the “Company Stock Plans”), (i) each Stock Option intended
to qualify as an “incentive stock option” under Section 422 of the Code so
qualifies, (ii) each grant of a Stock Option was duly authorized no later than
the date on which the grant of such Stock Option was by its terms to be
effective (the “Grant Date”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company (or a duly
constituted and authorized committee thereof) and any required stockholder
approval by the necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and delivered by each
party thereto, (iii) each such grant was made in accordance with the terms of
the Company Stock Plans, the Exchange Act and all other applicable laws and
regulatory rules or requirements, including the rules of the New York Stock
Exchange, and (iv) each such grant was properly accounted for in accordance with
GAAP in the financial statements (including the related notes) of the Company
and disclosed in the Company's filings with the Commission in accordance with
the Exchange Act and all other applicable laws. The Company has not knowingly
granted, and there is no and has been no policy or practice of the Company of
granting, Stock Options prior to, or otherwise coordinating the grant of Stock
Options with, the release or other public announcement of material information
regarding the Company or its subsidiaries or their results of operations or
prospects.
6
(k) Due Authorization. The
Company has full right, power and authority to execute and deliver this
Agreement, and to perform its obligations hereunder; and all action required to
be taken for the due and proper authorization, execution and delivery by it of
this Agreement and the consummation by it of the transactions contemplated
hereby has been duly and validly taken.
(l) The Shares. The
Shares to be issued and sold by the Company hereunder have been duly authorized
and, when issued and delivered and paid for as provided herein, will be duly and
validly issued, will be fully paid and non-assessable and will conform to the
descriptions thereof in the Registration Statement, the Pricing Disclosure
Package and the Prospectus; and the issuance of the Shares is not subject to any
preemptive or similar rights
(m) Underwriting
Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(n) No Violation or
Default. Neither the Company nor any of its subsidiaries is
(i) in violation of its charter or by-laws or similar organizational documents;
(ii) in default, and no event has occurred that, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject; or (iii) in violation of any law or
statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority (including, without limitation, the NYSE),
except, in the case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a Material
Adverse Effect.
(o) No Conflicts. The
execution, delivery and performance of this Agreement, the issuance and sale of
the Shares by the Company, and the consummation of the transactions contemplated
hereby will not (i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) result in any violation
of the provisions of the charter or by-laws or similar organizational documents
of the Company or any of its subsidiaries or (iii) result in the violation of
any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority (including, without
limitation, the NYSE), except, in the case of clauses (i) and (iii) above, for
any such conflict, breach, violation, default, lien, charge or encumbrance that
would not, individually or in the aggregate, have a Material Adverse
Effect.
7
(p) No Consents
Required. No consent, approval, authorization, order,
license, registration or qualification of or with any court or
arbitrator or governmental or regulatory authority is required for the
execution, delivery and performance by the Company of this Agreement, the
issuance and sale of the Shares and the consummation of the transactions
contemplated hereby, except for the registration of the Shares under the
Securities Act, which has been effected, and such consents, approvals,
authorizations, orders and registrations or qualifications as may be required by
the Financial Industry Regulatory Authority, Inc. (“FINRA”) and under applicable
state securities laws in connection with the purchase and distribution of the
Shares by the Underwriter.
(q) Legal
Proceedings. Except as otherwise described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, there are no
legal, governmental or regulatory investigations, actions, suits or proceedings
pending to which the Company or any of its subsidiaries is or may be a party or
to which any property of the Company or any of its subsidiaries is or may be the
subject that, individually or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, could reasonably be expected to have a
Material Adverse Effect; and, to the knowledge of the Company, no such
investigations, actions, suits or proceedings are threatened or contemplated by
any governmental or regulatory authority or threatened by others.
(r) Independent
Accountants. PricewaterhouseCoopers LLP and Ernst & Young
LLP, who have certified certain financial statements of the Company and its
subsidiaries, are each an independent registered public accounting firm with
respect to the Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company Accounting
Oversight Board (United States) and as required by the Securities
Act.
(s) Title to Real and Personal
Property. The Company and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise
use, all items of real and personal property that are material to the respective
businesses of the Company and its subsidiaries, in each case free and clear of
all liens, encumbrances, claims and defects and imperfections of title except
those that (i) do not materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries or (ii) could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(t)
Title to Intellectual
Property. The Company and its subsidiaries own or possess
adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service ▇▇▇▇ registrations,
copyrights, licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective businesses; and the
Company and its subsidiaries have not received any notice of any claim of
infringement or conflict with any such rights of others which, individually or
in aggregate, would reasonably be expected to have a Material Adverse
Effect.
(u) Investment Company
Act. The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, will not be an “investment company” or an entity “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Investment Company Act”).
8
(v) Taxes. Except as
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, the Company and its subsidiaries have paid all federal,
state, local and foreign taxes, other than those being contested in good faith
and for which adequate reserves have been provided, and filed all tax returns
required to be paid or filed through the date hereof; and there is no tax
deficiency that has been, or would reasonably be expected to be, asserted
against the Company or any of its subsidiaries or any of their respective
properties or assets that would, individually or in the aggregate, have a
Material Adverse Effect. All material tax liabilities have been adequately
provided for in the financial statements of the Company to the extent required
under generally accepted accounting principles and the Securities Act and
Exchange Act.
(w) Licenses and
Permits. The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, except where the failure to possess or
make the same would not, individually or in the aggregate, have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries has received
notice of any revocation or modification of any such license, certificate,
permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course,
which could reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(x) No Labor
Disputes. No labor disturbance by or dispute with employees of
the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is contemplated or threatened, in each case that would reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect.
(y) Compliance With Environmental
Laws. Except as otherwise disclosed in the Registration
Statement, the Prospectus or the Pricing Disclosure Package, the Company and its
subsidiaries (i) are in compliance with, and have not violated, any and all
applicable federal, state, local and foreign and international laws, rules,
regulations, decisions and orders relating to the protection of human health and
safety, the environment or natural resources or to hazardous or toxic substances
or wastes, pollutants or contaminants (collectively, “Environmental Laws”);
(ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses; and (iii) have not received notice of any
actual or potential liability under or relating to any Environmental Laws,
including for the investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or contaminants, except in
any such case for any such failure to comply with, or failure to receive
required permits, licenses or approvals, or liability, as would not,
individually or in the aggregate, have a Material Adverse Effect. Except as
otherwise disclosed in the Registration Statement, the Prospectus or the Pricing
Disclosure Package, there are no proceedings that are pending or, to the
knowledge of the Company, contemplated against the Company or any of its
subsidiaries under any Environmental Laws in which a governmental entity is also
a party, other than such proceedings regarding which it is reasonably believed
no monetary sanctions of $100,000 or more will be imposed, and none of the
Company and its subsidiaries anticipates material capital expenditures relating
to any Environmental Laws.
9
(z) Compliance With
ERISA. Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), for which the Company or any member of its Controlled Group” (defined
as any organization which is a member of a controlled group of corporations
within the meaning of Section 414 of the Internal Revenue Code of 1986, as
amended (the “Code”)) would have any liability (each, a “Plan”) has
been maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to
ERISA and the Code, except where the failure to be in compliance would not,
individually or in the aggregate, have a Material Adverse Effect; no
“reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred
or is reasonably expected to occur and no prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with
respect to any such Plan excluding transactions effected pursuant to a statutory
or administrative exemption; for each such Plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA, no Plan has failed, or
is reasonably expected to fail, to satisfy the minimum funding standards (within
the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not
waived, and the fair market value of the assets of each such Plan (excluding for
these purposes accrued but unpaid contributions) exceeds the present value of
all benefits accrued under such Plan determined based on those actuarial
assumptions used to fund such Plan; neither the Company or any member
of its Controlled Group has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA (other than contributions to the plan or
premiums to the PBGC in the ordinary course and without default) in respect of a
Plan (including a “multiemployer plan”, within the meaning of Section 4001(c)(3)
of ERISA); and each Plan that is intended to be qualified under Section 401(a)
of the Code is so qualified and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(aa) Disclosure
Controls. The Company and its subsidiaries maintain an
effective system of “disclosure controls and procedures” (as defined in Rule
13a-15(e) of the Exchange Act) that is designed to ensure that information
required to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure. The Company and its
subsidiaries have carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 13a-15 of the Exchange
Act.
10
(bb) Accounting
Controls. The Company and its subsidiaries maintain systems of
“internal control over financial reporting” (as defined in Rule 13a-15(f) of the
Exchange Act) that comply with the requirements of the Exchange Act and have
been designed by, or under the supervision of, their respective principal
executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. The
Company and its subsidiaries maintain internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences. There are no material weaknesses or significant
deficiencies in the Company’s internal controls.
(cc) Insurance. The
Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including protection and
indemnity and business interruption insurance, which insurance is in amounts and
insures against such losses and risks as are adequate to protect the Company and
its subsidiaries taken as a whole and their respective businesses as consistent
with industry practice; and neither the Company nor any of its subsidiaries has
(i) received notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made in order
to continue such insurance or (ii) any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(dd) No Unlawful
Payments. Neither the Company nor any of its subsidiaries nor,
to the knowledge of the Company, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any of its
subsidiaries has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv)
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(ee) Compliance with Money Laundering
Laws. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company threatened.
11
(ff) Compliance with OFAC and other
sanctions authorities. None of the Company, any of its
subsidiaries or, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is (i) currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury (“OFAC”), the United Nations
Security Council, the European Union, Her Majesty’s Treasury, or other relevant
sanctions authority (collectively, “Sanctions”), nor (ii) 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);
and the Company will not use the proceeds of the offering of the Shares
hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity in any 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). Except as otherwise described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, the Company represents and
covenants that, to the best of the Company’s knowledge, it has not, within the
past 5 years, engaged in and is not now engaged 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, except as described in the
Company’s September 19, 2008 letter to OFAC. The Company further
represents that it 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 the subject of Sanctions, except as otherwise described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(gg) No
Restrictions on Subsidiaries. No subsidiary of the Company is
currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends to
the Company, from making any other distribution on such subsidiary’s capital
stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s properties or
assets to the Company or any other subsidiary of the Company.
(hh) No Broker’s
Fees. Neither the Company nor any of its subsidiaries is a
party to any contract agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against the Company or any
of its subsidiaries or the Underwriter for a brokerage commission, finder’s fee
or like payment in connection with the offering and sale of the
Shares.
(ii) No Registration
Rights. No person has the right to cause the Company or any of
its subsidiaries to register any securities for sale under the Securities Act by
reason of the filing of the Registration Statement with the Commission or the
issuance and sale of the Shares.
(jj) No
Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the
Shares.
(kk) Business with
Cuba. The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida, as amended) relating
to doing business with the Government of Cuba or with any person or affiliate
located in Cuba.
(ll) Margin Rules. The
application of the proceeds received by the Company from the issuance, sale and
delivery of the Shares as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus will not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System or any other regulation of
such Board of Governors.
12
(mm) Forward-Looking
Statements. No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act)
included or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package or the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(nn) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act. There is and has been no failure on the part of the
Company or, to the knowledge of the Company, 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 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including
Section 402 related to loans and Sections 302 and 906 related to
certifications.
(oo) Status under the Securities
Act. The Company is not an “ineligible issuer,” and is a
well-known seasoned issuer, in each case as defined in Rule 405 under the
Securities Act.
(pp) NYSE Listing. The
outstanding shares of the Company’s common stock are listed on the New York
Stock Exchange (the “NYSE”) and the Company will apply to have the Shares
approved for listing on the NYSE.
(qq) Vessels. Each of
the vessels owned by the Company or one of its subsidiaries has been duly
registered in the name of the subsidiary of the Company that owns it under the
laws and regulations and the flag of the nation of its registration and no other
action is necessary to establish and perfect such subsidiary’s title to and
interest in such vessels as against any charterer or third party.
4. Further Agreements of the
Company. The
Company covenants and agrees with the Underwriter that:
(a) Required
Filings. The Company will file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B
or 430C under the Securities Act, will file any Issuer Free Writing Prospectus
to the extent required by Rule 433 under the Securities Act; and will file
promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; and the Company will furnish copies of the
Prospectus and each Issuer Free Writing Prospectus (to the extent not previously
delivered) to the Underwriter in New York City prior to 10:00 A.M., New York
City time, on the business day next succeeding the date of this Agreement in
such quantities as the Underwriter may reasonably request. The Company will pay
the registration fee for this offering within the time period required by Rule
456(b)(1) under the Securities Act (without giving effect to the proviso
therein) and in any event prior to the Closing Date.
13
(b) Delivery of Copies. The
Company will deliver, without charge, (i) to the Underwriter, two signed copies
of the Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith and documents
incorporated by reference therein; and (ii) to the Underwriter (A) a conformed
copy of the Registration Statement as originally filed and each amendment
thereto, in each case including all exhibits and consents filed therewith and
(B) during the Prospectus Delivery Period (as defined below), as many copies
(including electronic copies) of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) and each
Issuer Free Writing Prospectus as the Underwriter may reasonably
request. As used herein, the term “Prospectus Delivery Period” means
such period of time after the first date of the public offering of the Shares as
in the opinion of counsel for the Underwriter a prospectus relating to the
Shares is required by law to be delivered (or required to be delivered but for
Rule 172 under the Securities Act) in connection with sales of the Shares by the
Underwriter or dealer.
(c) Amendments or Supplements; Issuer
Free Writing Prospectus. Before making, preparing, using,
authorizing, approving or referring to or filing any Issuer Free Writing
Prospectus, and before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time that the
Registration Statement becomes effective, the Company will furnish to the
Underwriter and counsel for the Underwriter a copy of the proposed Issuer Free
Writing Prospectus, amendment or supplement for review and will not make,
prepare, use, authorize, approve or refer to or file any such Issuer Free
Writing Prospectus or file any such proposed amendment or supplement
to which the Underwriter reasonably objects.
(d) Notice to the
Underwriter. The Company will advise the Underwriter promptly,
and confirm such advice in writing, (i) when the Registration Statement has
become effective; (ii) when any amendment to the Registration Statement has been
filed or becomes effective; (iii) when any supplement to the Prospectus or any
Issuer Free Writing Prospectus or any amendment to the Prospectus has been
filed; (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information;
(v) of the issuance by the Commission of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus
or the initiation or threatening of any proceeding for that purpose or pursuant
to Section 8A of the Securities Act; (vi) of the occurrence of any event within
the Prospectus Delivery Period as a result of which the Prospectus, the Pricing
Disclosure Package or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances existing when the
Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; (vii) of the
receipt by the Company of any 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; and (viii) of the receipt by the
Company of any notice with respect to any suspension of the qualification of the
Shares for offer and sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and the Company will use its reasonable best
efforts to prevent the issuance of any such order suspending the effectiveness
of the Registration Statement, preventing or suspending the use of any
Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus
or suspending any such qualification of the Shares and, if any such order is
issued, will obtain as soon as possible the withdrawal thereof.
14
(e) Ongoing
Compliance. If during the Prospectus Delivery Period (i) any
event shall occur or condition shall exist as a result of which the Prospectus
as then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, the Company will immediately notify the Underwriter thereof and
forthwith prepare and, subject to paragraph (c) above, file with the Commission
and furnish to the Underwriter and to such dealers as the Underwriter may
designate, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law.
(f) Blue Sky
Compliance. The Company will qualify the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriter shall reasonably request and will continue such qualifications in
effect so long as required for distribution of the Shares; provided that the
Company shall not be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g) Earning
Statement. The Company will make generally available to its
security holders and the Underwriter as soon as practicable an earnings
statement that satisfies the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the “effective date” (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. For
a period of 90 days after the date of the Prospectus, the Company will not (i)
offer, pledge, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any shares of Stock or any securities convertible into
or exercisable or exchangeable for Stock or (ii) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Stock or such other securities, in
cash or otherwise, without the prior written consent of the Underwriter, other
than the Shares to be sold hereunder and any shares of Stock of the Company
issued upon the exercise of options granted under Company Stock Plans.
Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day
restricted period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to the expiration of
the 90-day restricted period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the
90-day period, the restrictions imposed by this Agreement shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material
event.
15
(i)
Use of
Proceeds. The Company will apply the net proceeds from the
sale of the Shares as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus under the heading “Use of
Proceeds”.
(j) No
Stabilization. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the
Stock.
(k)
Exchange Listing. The
Company will use its best efforts to list, subject to notice of issuance, the
Shares on the NYSE.
(l) Reports. So long
as the Shares are outstanding, the Company will furnish to the Underwriter, as
soon as they are available, copies of all reports or other communications
(financial or other) furnished to all holders of the Shares, and copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange or automatic quotation system; provided the
Company will be deemed to have furnished such reports and financial statements
to the Underwriter to the extent they are filed on the Commission’s Electronic
Data Gathering, Analysis, and Retrieval system.
(m) Record
Retention. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with Rule 433 under the
Securities Act.
5. Certain Agreements of the
Underwriter. The
Underwriter hereby represents and agrees that: (a) It has not and will not use,
authorize use of, refer to, or participate in the planning for use of, any “free
writing prospectus”, as defined in Rule 405 under the Securities Act (which term
includes use of any written information furnished to the Commission by the
Company and not incorporated by reference into the Registration Statement and
any press release issued by the Company) other than (i) a free writing
prospectus that contains no “issuer information” (as defined in Rule 433(h)(2)
under the Securities Act) that was not included (including through incorporation
by reference) in the Preliminary Prospectus or a previously filed Issuer Free
Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Annex B or
prepared pursuant to Section 3(c) or Section 4(c) above (including any
electronic road show), or (iii) any free writing prospectus prepared by such
underwriter and approved by the Company in advance in writing (each such free
writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free
Writing Prospectus”).
(b) It
has not and will not, without the prior written consent of the Company, use any
free writing prospectus that contains the final terms of the Shares unless such
terms have previously been included in a free writing prospectus filed with the
Commission.
(c) It
is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such
proceeding against it is initiated during the Prospectus Delivery
Period).
16
6. Conditions of Underwriter’s
Obligations. The
obligation of the Underwriter to purchase the Shares on the Closing Date as
provided herein is subject to the performance by the Company of its covenants
and other obligations hereunder and to the following additional
conditions:
(a) Registration Compliance; No Stop
Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose,
pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act
shall be pending before or threatened by the Commission; the Prospectus and each
Issuer Free Writing Prospectus shall have been timely filed with the Commission
under the Securities Act (in the case of an Issuer Free Writing Prospectus, to
the extent required by Rule 433 under the Securities Act) and in accordance with
Section 4(a) hereof; and all requests by the Commission for additional
information shall have been complied with to the reasonable satisfaction of the
Underwriter.
(b) Representations and
Warranties. The representations and warranties of the Company
contained herein shall be true and correct in all material respects (or true and
correct in all respects in the case of representations and warranties qualified
by materiality or Material Adverse Effect) on the date hereof and on and as of
the Closing Date; and the statements of the Company and its officers made in any
certificates delivered pursuant to this Agreement shall be true and correct in
all material respects (or true and correct in all respects in the case of
representations and warranties qualified by materiality or Material Adverse
Effect) on and as of the Closing Date.
(c) No Material Adverse
Change. No event or condition of a type described in Section
3(g) hereof shall have occurred or shall exist, which event or condition is not
described in the Pricing Disclosure Package (excluding any amendment or
supplement thereto) and the Prospectus (excluding any amendment or supplement
thereto) and the effect of which in the judgment of the Underwriter makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Shares on the Closing Date on the terms and in the manner contemplated by
this Agreement, the Pricing Disclosure Package and the Prospectus.
(d) Officer’s
Certificate. The Underwriter shall have received on and as of
the Closing Date, a certificate of an executive officer of the Company who has
specific knowledge of the Company’s financial matters and is reasonably
satisfactory to the Underwriter (i) confirming that such officer has carefully
reviewed the Registration Statement, the Pricing Disclosure Package and the
Prospectus and, to the knowledge of such officer, the representations set forth
in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the
other representations and warranties of the Company in this Agreement are true
and correct in all material respects (or true and correct in all respects in the
case of representations and warranties qualified by materiality or Material
Adverse Effect) and that the Company has complied in all material respects (or
true and correct in all respects in the case of representations and warranties
qualified by materiality or Material Adverse Effect) with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date, and (iii) to the effect set forth in paragraphs
(a), (c) and (d) above.
17
(e) Comfort
Letters. On the date of this Agreement and on the Closing
Date, PricewaterhouseCoopers LLP and Ernst & Young LLP shall have furnished
to the Underwriter, at the request of the Company, letters, dated the respective
dates of delivery thereof and addressed to the Underwriter, in form and
substance reasonably satisfactory to the Underwriter, containing statements and
information of the type customarily included in accountants’ “comfort letters”
to underwriters with respect to the financial statements and certain financial
information of the Company and its consolidated subsidiaries contained or
incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus; provided that the
letter delivered on the Closing Date, shall use a “cut-off” date no more than
three business days prior to such Closing Date.
(f) Opinion and 10b-5 Statement of
Counsel for the Company. Proskauer Rose LLP, U.S. counsel for
the Company, shall have furnished to the Underwriter, at the request of the
Company, their written opinion and 10b-5 statement, dated the Closing Date and
addressed to the Underwriter, in form and substance reasonably satisfactory to
the Underwriter, to the effect substantially as set forth in Annex A-1
hereto.
(g) Opinion of the General Counsel of
the Company. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company, shall have
furnished to Underwriter such counsel's written opinion, dated the Closing Date
and addressed to the Underwriter, in form and substance reasonably satisfactory
to the Underwriter, to the effect substantially as set forth in Annex A-2
hereto.
(h) Opinion and 10b-5 Statement of
Counsel for the Underwriter. The Underwriter shall have
received on and as of the Closing Date an opinion and 10b-5 statement of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, with respect to such
matters as the Underwriter may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to enable
them to pass upon such matters.
(i) No Legal Impediment to
Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any
federal, state or foreign governmental or regulatory authority that would, as of
the Closing Date, prevent the issuance or sale of the Shares; and no injunction
or order of any federal, state or foreign court shall have been issued that
would, as of the Closing Date, prevent the issuance or sale of the
Shares.
(j)
Exchange
Listing. The Shares to be delivered on the Closing Date shall
have been approved for listing on the NYSE, subject to official notice of
issuance.
(k) Lock-Up Agreements. The
“lock-up” agreements, each substantially in the form of Annex C-1 hereto,
between you and certain officers of the Company listed on Annex C-2 hereto
relating to sales and certain other dispositions of shares of Stock or certain
other securities, delivered to you on or before the date hereof, shall be full
force and effect on the Closing Date.
All
opinions, letters, certificates and evidence mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriter.
18
7. Indemnification and
Contribution.
(a) Indemnification of the
Underwriter. The Company agrees to indemnify and hold harmless
the Underwriter, its affiliates, directors and officers and each person, if any,
who controls the Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, legal fees and
other expenses incurred in connection with any suit, action or proceeding or any
claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary in order to make the statements therein, not
misleading, (ii) or any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus, any
“issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or any Pricing Disclosure Package (including any Pricing
Disclosure Package that has subsequently been amended), or caused by any
omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to the Underwriter furnished to the
Company in writing by the Underwriter through the Underwriter expressly for use
therein, it being understood and agreed that the only such information furnished
by the Underwriter consists of the information described as such in subsection
(b) below.
(b) Indemnification of the
Company. The Underwriter agrees to indemnify and hold harmless
the Company, its directors and officers who signed the Registration Statement
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to the Underwriter
furnished to the Company in writing by the Underwriter through the Underwriter
expressly for use in the Registration Statement, the Prospectus (or
any amendment or supplement thereto), any Issuer Free Writing Prospectus or any
Pricing Disclosure Package, it being understood and agreed that the only such
information furnished by the Underwriter consists of the following information
in the Prospectus furnished on behalf of the Underwriter: the statements
concerning the Underwriter contained in the first and second paragraph under the
subsection “Price stabilization and Short Positions” under the heading
“Underwriting” in the Prospectus.
19
(c) Notice and
Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the “Indemnified
Person”) shall promptly notify the person against whom such indemnification may
be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 7 except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this
Section 7. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying Person
thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to
the Indemnified Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified
Person and any others entitled to indemnification pursuant to Section 7 that the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding, as incurred. In any such proceeding, any
Indemnified Person 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 Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to
those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interest
between them. It is understood and agreed that the Indemnifying
Person shall not, 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 Indemnified Persons,
and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriter, its affiliates,
directors and officers and any control persons of the Underwriter shall be
designated in writing by the Underwriter and any such separate firm for the
Company and its directors and officers who signed the Registration Statement and
any control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person 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 Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested that an Indemnifying Person reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by this paragraph, the Indemnifying
Person 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 the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
20
(d) Contribution. If
the indemnification provided for in paragraphs (a) and (b) above is unavailable
to an Indemnified Person or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriter on the other from the offering of the Shares or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company on
the one hand and the Underwriter on the other 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
benefits received by the Company on the one hand and the Underwriter on the
other shall be deemed to be in the same proportion as (x) the total net proceeds
from the Public Offering (before deducting expenses) received by the Company
bears to (y) the product of (1) the difference between the average price at
which the Shares are sold by the Underwriter to the public and the price per
share paid by the Underwriter to the Company hereunder and (2) the total number
of Shares sold by the Company to the Underwriter hereunder. The
relative fault of the Company on the one hand and the Underwriter on the other
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 and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) Limitation on
Liability. The Company and the Underwriter agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even
if the Underwriter was treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or
claim. Notwithstanding the provisions of this Section 7, in no event
shall the Underwriter be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received by the
Underwriter with respect to the offering of the Shares exceeds the amount of any
damages that the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriter’s obligations to
contribute pursuant to this Section 7 are several in proportion to their
respective purchase obligations hereunder and not joint.
(f) Non-Exclusive
Remedies. The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any Indemnified Person at law or in equity.
8. Effectiveness of
Agreement. This
Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
21
9. Termination. This
Agreement may be terminated in the absolute discretion of the Underwriter, by
notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on the New York Stock Exchange or the over-the-counter
market; (ii) trading of any securities issued or guaranteed by the Company shall
have been suspended on any exchange or in any over the counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; (iv) a material disruption in commercial
banking or securities settlement or clearance services in the United States
shall have occurred; or (v) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the
Underwriter, is material and adverse and makes it impracticable or inadvisable
to proceed with the offering, sale or delivery of the Shares on the Closing Date
on the terms and in the manner contemplated by this Agreement, the Pricing
Disclosure Package and the Prospectus.
10. Payment of
Expenses.
(a) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Company agrees to pay or
cause to be paid all costs and expenses incident to the performance of its
obligations hereunder, including without limitation, (i) the costs incident to
the authorization, issuance, sale, preparation and delivery of the Shares and
any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus, any Pricing Disclosure Package and the
Prospectus (including all exhibits, amendments and supplements
thereto) and the distribution thereof; (iii) the costs of reproducing and
distributing this Agreement; (iv) the fees and expenses of the Company’s counsel
and independent accountants; (v) the fees and expenses incurred in connection
with the registration or qualification of the Shares under the laws of such
jurisdictions as the Underwriter may designate and the preparation, printing and
distribution of a Blue Sky Memorandum (including the related fees and expenses
of counsel for the Underwriter); (vi) the costs of preparing stock certificates;
(vii) the costs and charges of any transfer agent, registrar or depository;
(viii) all expenses incurred by the Company in connection with any “road show”
presentation to potential investors; (ix) all expenses and application fees
incurred in connection with any filing with, and clearance of the offering by,
FINRA and (x) all expenses and application fees related to the listing of the
Shares on the New York Stock Exchange.
(b) If
(i) this Agreement is terminated pursuant to Section 9, (ii), the Company for
any reason fails to tender the Shares for delivery to the Underwriter or (iii)
the Underwriter decline to purchase the Shares for any reason permitted under
this Agreement, the Company agrees to reimburse the Underwriter for all
out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriter in connection with this
Agreement and the offering contemplated hereby.
11.
Persons Entitled to Benefit
of Agreement. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers and directors and any
controlling persons referred to herein, and the affiliates of the Underwriter
referred to in Section 7 hereof. Nothing in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein. No purchaser of Shares from the
Underwriter shall be deemed to be a successor merely by reason of such
purchase.
22
12. Survival. The
respective indemnities, rights of contribution, representations, warranties and
agreements of the Company and the Underwriter and the provisions set forth in
Section 11(b), 12 and 15 hereof, contained in this Agreement or made by or on
behalf of the Company or the Underwriter pursuant to this Agreement or any
certificate delivered pursuant hereto shall survive the delivery of and payment
for the Shares and shall remain in full force and effect, regardless of any
termination of this Agreement or any investigation made by or on behalf of the
Company or the Underwriter.
13. Certain Defined
Terms. For
purposes of this Agreement, (a) except where otherwise expressly provided, the
term “affiliate” has the meaning set forth in Rule 405 under the Securities Act;
(b) the term “business day” means any day other than a day on which banks are
permitted or required to be closed in New York City; (c) the term “subsidiary”
has the meaning set forth in Rule 405 under the Securities Act and (d) the term
“written communication” has the meaning set forth in Rule 405 under the
Securities Act.
14. Miscellaneous. (a) Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any
standard form of telecommunication. Notices to the Underwriter shall
be given to ▇▇▇▇▇▇▇, Sachs & Co. c/o ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇. Notices to the Company shall be given to them at Overseas
Shipholding Group, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (fax:
▇▇▇-▇▇▇-▇▇▇▇); Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
(b)
Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflict of laws that would apply the law of another
jurisdiction.
(c) Judgment Currency. The
Company agrees to indemnify the Underwriter, its affiliates, directors and
officers and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
against any loss incurred, as incurred, as a result of any judgment being given
in connection with this Agreement for which indemnification is provided by any
such person and any such judgment or order being paid in a currency (the
“Judgment Currency”) other than U.S. dollars
as a result of any variation as between (i) the spot rate of exchange in New
York at which the Judgment Currency would have been convertible into U.S.
dollars as of the date such judgment or order is entered, and (ii) the spot rate
of exchange at which the indemnified party is first able to purchase U.S.
dollars with the amount of Judgment Currency actually received by the
indemnified party. The foregoing indemnity shall constitute a separate and
independent, several and not joint, obligation of the Company, on the one hand,
and the Underwriter, on the other, and shall continue in full force and effect
notwithstanding any such judgment or order. The term “spot rate of
exchange” shall
include any premiums and costs of exchange payable in connection with the
purchase of, or conversion or, the relevant currency.
(d) Patriot Act. In accordance
with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriter is required to obtain,
verify and record information that identifies its respective clients, including
the Company, which information may include the name and address of its
respective clients, as well as other information that will allow the underwriter
to properly identify its respective clients.
23
(e) Jury Trial. The Company and
the Underwriter hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
(f) Counterparts. This Agreement
may be signed in counterparts (which may include counterparts delivered by any
standard form of telecommunication), each of which shall be an original and all
of which together shall constitute one and the same instrument.
(g) Amendments or
Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(h) Headings. The
headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
24
If the
foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided
below.
|
Very
truly yours,
|
|
|
OVERSEAS
SHIPHOLDING GROUP, INC.
|
|
|
By
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
Title:
Executive Vice President,
Chief Financial Officer and
Treasurer
|
|
|
Accepted:
March 4, 2010
|
|
|
▇▇▇▇▇▇▇,
SACHS & CO.
|
|
|
By
|
/s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. |
|
(▇▇▇▇▇▇▇
Sachs & Co.)
|
|
Annex
A-1
Form
of Opinion of Counsel for the Company
a) The
Registration Statement is an “automatic shelf registration statement” as defined
under Rule 405 of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date of the Underwriting Agreement; each
of the Preliminary Prospectus and the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) under the Securities Act on the date
specified therein; and, in each of the following cases, to the knowledge of such
counsel, no order suspending the effectiveness of the Registration Statement has
been issued , no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act has been received by the Company and no
proceeding for that purpose or pursuant to Section 8A of the Securities Act
against the Company or in connection with the offering is pending or threatened
by the Commission.
b) The
Registration Statement, the Preliminary Prospectus, each Issuer Free Writing
Prospectus included in the Pricing Disclosure Package and the Prospectus (other
than the financial statements and the notes and related schedules therein, as to
which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act.
c) The
Company has been duly organized and is validly existing and in good standing
under the laws of the state of Delaware, is duly qualified to do business and
are in good standing in the jurisdictions listed on Annex A attached
hereto, and has all corporate power and authority necessary to own or hold its
properties and to conduct the businesses in which it is engaged.
d) The
Company has an authorized capitalization as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; and the Common Stock of the Company conforms in all material
respects to the description thereof contained in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
e) The
Company has full corporate right, power and authority to execute and deliver the
Underwriting Agreement and to perform its obligations thereunder; and all action
required to be taken for the due and proper authorization, execution and
delivery by the Company of the Underwriting Agreement and the consummation by
the Company of the transactions contemplated thereby or by the Pricing
Disclosure Package and the Prospectus has been duly and validly
taken.
f) The
Underwriting Agreement has been duly authorized, executed and delivered by the
Company.
g) The
Shares to be issued and sold by the Company hereunder have been duly authorized,
and when delivered to and paid for by the Underwriter in accordance with the
terms of the Underwriting Agreement, will be validly issued, fully paid and
non-assessable and the issuance of the Shares is not subject to any preemptive
or similar rights arising under the DGCL or the Company’s Charter or
By-laws.
A-1
h) The
execution, delivery and performance by the Company of the Underwriting
Agreement, the compliance by the Company with the terms thereof, the issuance
and sale of the Shares being delivered on the Closing Date or the Additional
Closing Date, as the case may be, and the consummation of the transactions
contemplated by the Underwriting Agreement will not (i) conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument filed as an exhibit to the Company’s annual
report on Form 10-K for the fiscal year ended December 31, 2009, (ii) result in
any violation of the provisions of the Charter or By-laws of the Company or
(iii) result in the violation of the DGCL or any federal law or statute or any
judgment, order or regulation of any court or arbitrator or governmental or
regulatory authority known to us.
i) No
consent, approval, authorization, order, registration or qualification of or
with any New York or federal court or arbitrator or governmental or regulatory
authority, or with any Delaware court or arbitrator or governmental or
regulatory authority pursuant to the DGCL, is required for the execution,
delivery and performance by the Company of the Underwriting Agreement, the
compliance by the Company with the terms thereof, the issuance and sale of the
Shares being delivered on the Closing Date, and the consummation of the
transactions contemplated by the Underwriting Agreement, except for the
registration of the Shares under the Securities Act and such consents,
approvals, authorizations, orders and registrations or qualifications as may be
required under applicable state securities laws in connection with the purchase
and distribution of the Shares by the Underwriter.
j) The
statements set forth in the Registration Statement, the Pricing Disclosure
Package and the Prospectus under the captions “Material U.S. Federal Income Tax
Consequences for Non-U.S. Holders” and “Description of Capital Stock,” insofar
as such statements constitute summaries of documents or legal proceedings or
refer to matters of law or legal conditions, are accurate and complete in all
material respects.
k) After
giving effect to the application of the proceeds received by the Company from
the offering and sale of the Shares as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, the Company will not be
required to register as an “investment company” or an entity “controlled” by an
“investment company” within the meaning of the Investment Company
Act.
l) The
documents incorporated by reference in the Pricing Disclosure Package and the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the Closing Date (other than the financial statements and the notes
related thereto and related schedules therein, as to which such counsel need
express no opinion), when they were filed with the Commission, complied as to
form in all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder.
m) Neither
the issuance, sale and delivery of the Shares nor the application of the
proceeds thereof by the Company as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus will violate Regulation T, U or X
of the Board of Governors of the Federal Reserve System or any other regulation
of such Board of Governors.
A-2
Such
counsel shall also state that they have participated in conferences with
representatives of the Company and with representatives of its independent
accountants and counsel at which conferences the contents of the Registration
Statement, the Pricing Disclosure Package and the Prospectus and any amendment
and supplement thereto and related matters were discussed and, although such
counsel assume no responsibility for the accuracy, completeness or fairness of
the Registration Statement, the Pricing Disclosure Package, the Prospectus and
any amendment or supplement thereto (except as expressly provided above),
nothing has come to the attention of such counsel to cause such counsel to
believe that the Registration Statement, at the time of its effective date
(including the information, if any, deemed pursuant to Rule 430A, 430B or 430C
to be part of the Registration Statement at the time of effectiveness),
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, that the Pricing Disclosure Package, as of the Applicable Time
(which such counsel may assume to be the date of the Underwriting Agreement)
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or that the Prospectus or any
amendment or supplement thereto as of its date and the Closing Date contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (other than the financial statements and the
notes related thereto and other financial information contained therein, as to
which such counsel need express no belief).
In
rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
The
opinion of Proskauer Rose LLP described above shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
▇-▇
▇▇▇▇▇
▇-▇
Form
of Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
March 9,
2010
Ladies
and Gentlemen:
I am the
General Counsel of Overseas Shipholding Group, Inc., a Delaware corporation (the
"Company"), and acted as counsel to the Company in connection with a public
offering by the Company of an aggregate of 3,500,000 shares of its common stock,
par value $1.00 per share (the “Shares”). This opinion is being rendered
pursuant to Section 6(g) of the Underwriting Agreement (the "Agreement"),
dated March 4, 2010, between you and the Company. I have been the Associate
General Counsel since February 2000, and General Counsel since [●]. Capitalized
terms used but not defined herein have the meanings assigned to them in the
Agreement.
I have
examined originals, or copies certified or otherwise identified to my
satisfaction, of such documents, corporate records and other instruments as I
have deemed necessary or appropriate for the purposes of this opinion,
including: (a) the Amended and Restated Certificate of Incorporation of the
Company; (b) the Amended and Restated By-laws of the Company;
(c) resolutions adopted by the Board of Directors of the Company on March
2, 2010 and the Pricing Committee on March [4], 2010, authorizing the filing of
the Registration Statement, the entry into the Agreement and the pricing of the
Shares to be sold pursuant thereto; (d) the Registration Statement on Form
S-3 (Registration No. 333-165213) filed with the Securities and Exchange
Commission (the "Commission") on March 4, 2010, with respect to the registration
of the Shares under the Securities Act of 1933, as amended (the "Securities
Act") (such Registration Statement, as amended by final Prospectus dated March
[●], 2010 forming a part thereof, as filed with the Commission pursuant to Rule
424(b)(5) under the Securities Act (together, the "Prospectus"), including the
documents incorporated by reference in the Prospectus, being hereinafter
referred to as the "Registration Statement"); (e) the Pricing Disclosure
Package; (f) the Prospectus; (g) the Agreement; and (h) a
specimen certificate representing the Common Stock. The Registration Statement
was declared effective on March 4, 2010.
As to
various questions of fact material to my opinion, I have relied upon the
representations made in the Agreement, upon certificates of officers of the
Company and upon certificates of public officials. I believe that you and I are
justified in relying upon such certificates. I have also made such
investigations, as I have deemed necessary in order to render the opinion
hereinafter set forth. I have assumed the authenticity of all documents
submitted to me as originals, the genuineness of all signatures, the legal
capacity of natural persons and conformity to the originals of all documents
submitted to me as copies. I have also assumed that all documents examined by me
have been duly and validly authorized, executed and delivered by each of the
parties thereto (other than the Company).
A-4
Based
upon and subject to the foregoing, I render the following opinion:
|
|
i.
|
Based
solely on certificates of public officials in the appropriate
jurisdictions, the Company has been duly qualified for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction.
|
|
|
ii.
|
The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Delaware, with
all requisite corporate power and authority to own its properties and
conduct its business as described in the
Prospectus.
|
|
|
iii.
|
The
Company has an authorized capitalization as set forth in the Prospectus.
The capital stock of the Company conforms in all material respects to the
description thereof contained in the Registration Statement, the Pricing
Disclosure Package and the
Prospectus.
|
|
|
iv.
|
Each
subsidiary of the Company listed on Schedule 1 hereto has been duly formed
or incorporated and is validly existing as a corporation or limited
liability company in good standing under the laws of its jurisdiction of
incorporation or formation; and all of the issued shares of capital stock
or membership interests, as the case may be, of each such subsidiary have
been duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares and except as
otherwise set forth in the Prospectus) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims.
|
|
|
v.
|
Except
as set forth in the Prospectus, there are no legal or governmental
proceedings pending or, to the best of my knowledge, threatened or
contemplated to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect on the Company and its subsidiaries, taken as a
whole.
|
|
|
vi.
|
The
Agreement has been duly authorized, executed and delivered by the
Company.
|
|
|
vii.
|
The
compliance by the Company with all of the provisions of the Agreement and
the consummation of the transactions therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to me
to which the Company is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation,
Articles of Organization or By-laws of the Company and its subsidiaries or
any statute or any order, rule or regulation known to me of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their
properties.
|
A-5
|
|
viii.
|
Neither
the Company nor any of its subsidiaries is (a) in violation of its
Certificate of Incorporation, Articles of Organization, or By-laws or
(b) in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, or lease or other agreement or
instrument known to me to which it is a party or by which it or any of its
properties may be bound.
|
|
|
ix.
|
The
documents incorporated by reference in the Prospectus or any further
amendment or supplement thereto made by the Company prior to the date
hereof (other than the financial statements and related financial data and
schedules contained therein or omitted therefrom, as to which I 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.
|
I have
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the Company,
representatives of the Underwriter and counsel to the Underwriter at which the
contents of the Registration Statement and the Pricing Disclosure Package and
the Prospectus and related matters were discussed and, although I am not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Pricing Disclosure Package and the Prospectus, no facts have come to my
attention that lead me to believe either that the Registration Statement at the
time the Registration Statement became effective or on the date hereof contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Pricing Disclosure Package and the Prospectus as of its
date or on the date hereof contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that I express no comment or opinion with
respect to the financial statements and schedules and other financial data
included or incorporated by reference in the Registration Statement or the
Pricing Disclosure Package and the Prospectus). I do not know of any amendment
to the Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the Prospectus or
required to be described in the Registration Statement or the Pricing Disclosure
Package and the Prospectus which are not filed or incorporated by reference or
described as required.
The
opinion set forth herein is limited to the internal law of the State of New
York, the corporate law of the State of Delaware and the federal laws of the
United States (excluding any admiralty or maritime laws or
regulations).
This
opinion is rendered to you and is solely for your benefit in connection with the
transactions contemplated by the Agreement. This opinion may not be relied upon
by you for any other purpose or furnished to, quoted or relied upon by any
person, firm, corporation or other entity for any purpose without my prior
written consent.
|
Very
truly yours,
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
A-6
Schedule
1
|
SUBSIDIARY
|
JURISDICTION OF
ORGANIZATION
|
|
|
OSG
International, Inc.
|
▇▇▇▇▇▇▇▇
Islands
|
|
|
Overseas
Bulk Ships, Inc.
|
New
York
|
A-7
Annex
B
Pricing
Disclosure Package
|
a.
|
Free Writing
Prospectus
|
None.
|
b.
|
Pricing Information Provided
Orally by Underwriters
|
Price to
the Public: Variable, Number of Shares: 3,500,000
▇-▇
▇▇▇▇▇
▇-▇
▇▇▇▇
▇▇ ▇▇▇▇-▇▇ Agreement
March 4,
2010
▇▇▇▇▇▇▇,
Sachs & Co.
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Re: Overseas Shipholding Group,
Inc. — Public Offering
Ladies
and Gentlemen:
The
undersigned understands that you, as Underwriter, proposes to enter into an
Underwriting Agreement (the “Underwriting Agreement”) with Overseas Shipholding
Group, Inc., a Delaware corporation (the “Company”), providing for the public
offering (the “Public Offering”) by you, of an aggregate of 3,500,000 shares of
its common stock, par value $1.00 per share (the “Securities”). Capitalized
terms used herein and not otherwise defined shall have the meanings set forth in
the Underwriting Agreement.
In
consideration of the Underwriter’s agreement to purchase and make the Public
Offering of the Securities, and for other good and valuable consideration
receipt of which is hereby acknowledged, the undersigned hereby agrees that,
without the prior written consent of the Underwriter, the undersigned will not,
during the period ending 90 days after the date of the prospectus relating to
the Public Offering (the “Prospectus”), (1) offer, pledge, announce the
intention to sell, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock, par value $1 per share, of the Company
(the “Common Stock”) or any securities convertible into or exercisable or
exchangeable for Common Stock (including without limitation, Common Stock which
may be deemed to be beneficially owned by the undersigned in accordance with the
rules and regulations of the Securities and Exchange Commission and securities
which may be issued upon exercise of a stock option or warrant) or (2) enter
into any swap or other agreement that transfers, 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) make any
demand for or exercise any right with respect to the registration of any shares
of Common Stock or any security convertible into or exercisable or exchangeable
for Common Stock without the prior written consent of the Underwriter, in each
case other than (A) the Securities to be sold by the undersigned pursuant to the
Underwriting Agreement, (B) transfers of shares of Common Stock as a bona fide
gift or gifts, and (C) distributions of shares of Common Stock to members
or stockholders of the undersigned; provided that in the
case of any transfer or distribution pursuant to clause (B) or (C), each donee
or distributee shall execute and deliver to the Underwriter a lock-up letter in
the form of this paragraph; and provided, further, that in the
case of any transfer or distribution pursuant to clause (B) or (C), no filing by
any party (donor, donee, transferor or transferee) under the Securities Exchange
Act of 1934, as amended, or other public announcement shall be required or shall
be made voluntarily in connection with such transfer or distribution (other than
a filing on a Form 5 made after the expiration of the 90-day period referred to
above), and (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
restricted period. In addition, the undersigned agrees that, without
the prior written consent of the Underwriter, it will not, during the period
ending 90 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common
Stock. Notwithstanding the foregoing, if (1) during the last 17 days
of the 90-day restricted period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (2) prior
to the expiration of the 90-day restricted period, the Company announces that it
will release earnings results during the 16-day period beginning on the last day
of the 90-day period, the restrictions imposed by this Letter Agreement shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event.
C-1
In
furtherance of the foregoing, the Company, and any duly appointed transfer agent
for the registration or transfer of the securities described herein, are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Letter Agreement.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Letter Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The
undersigned understands that, if the Underwriting Agreement does not become
effective, or if the Underwriting Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment for
and delivery of the Common Stock to be sold thereunder, the undersigned shall be
released from, all obligations under this Letter Agreement. The
undersigned understands that the Underwriter are entering into the Underwriting
Agreement and proceeding with the Public Offering in reliance upon this Letter
Agreement.
This
Letter Agreement shall be governed by and construed in accordance with the laws
of the State of New York, without regard to the conflict of laws principles
thereof that would apply the law of another jurisdiction.
|
Very
truly yours,
|
|
|
[NAME OF
STOCKHOLDER]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
▇-▇
▇▇▇▇▇
▇-▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Mats
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇
C-3