EXHIBIT 99.2
EXECUTION COPY
OMI CORPORATION
COMMON STOCK
(PAR VALUE $.50 PER SHARE)
--------------------
Underwriting Agreement
June 24, 2004
Xxxxxxx, Xxxxx & Co.
As representative of the several Underwriters
named in Schedule I hereto
00 Xxxxx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
OMI Corporation, a corporation incorporated under the laws of the
Republic of the Xxxxxxxx Islands (the "Company"), proposes, subject to the terms
and conditions stated herein, to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") an aggregate of 2,000,000 shares (the
"Shares") of Common Stock, par value $.50 per share (the "Stock"), of the
Company.
1. (a) The Company represents and warrants to, and agrees with the
Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-105195)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto but including all
documents incorporated by reference in the prospectus contained
therein, have been declared effective by the Commission in such form;
other than (i) a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, and (ii) prospectus
supplements filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Act, each in the form heretofore delivered
to you, no other document with respect to the Initial Registration
Statement as amended through the date hereof or document incorporated
by reference therein has heretofore been filed with the Commission;
and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, each as amended at the time
such part of the Initial Registration Statement became effective as
amended through the date of this Agreement or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus supplement specifically relating to the
Shares in the form first filed pursuant to Rule 424(b) under the Act,
together with the prospectus included in the Registration Statement,
is hereinafter called the "Prospectus"; any reference herein to any
Prospectus shall be deemed to refer to and include the documents filed
after the date of such prospectus under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
therein; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Initial Registration Statement
that is incorporated by reference in the Registration Statement);
(ii) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were
made) not misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Xxxxxxx, Sachs & Co.
expressly for use therein;
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(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus material to the
Company and its subsidiaries taken as a whole; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as
a whole (a "Material Adverse Effect"), otherwise than as set forth or
contemplated in the Prospectus;
(v) Each of the Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property (including each of the
vessels listed in the Prospectus) owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries
taken as a whole;
(vi) Each of the Company and its subsidiaries have been duly
incorporated or formed and is validly existing in good standing under
the laws of its jurisdiction of incorporation or formation with power
and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus, and has been duly
qualified for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdictions;
(vii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; Schedule II hereto constitutes a full and
complete list of each direct or indirect subsidiary of the Company; and
all of the issued shares of capital stock of each subsidiary of the
Company or membership interests, as the case may be, have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except as set forth on Schedule II and except for directors'
qualifying shares or interests where applicable) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims other than those related to pledges of membership
interests under the Credit Agreements (as defined in Annex A of this
Agreement);
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(viii) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and non-assessable and will
conform to the description of the Stock contained in the Prospectus;
(ix) The issue and sale of the Shares and the compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Company or
organizational documents of any of its subsidiaries, or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the Act
of the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(x) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation, Certificate of
Formation, By-laws or Limited Liability Company Agreement (as
applicable) or (ii) in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(xi) The Company and each of its subsidiaries carry insurance
covering their respective vessels (including those vessels
participating in commercial alliances), properties, operations,
personnel and businesses, in such amounts and covering such risks as is
adequate for the conduct of its business and is customary to its
business. The Company and each of its subsidiaries also maintain
appropriate levels of environmental damage and pollution insurance
coverage, consistent with standard industry practice. None of the
Company or any of its subsidiaries has received written notice from any
insurer or agent of such insurer that any material capital improvements
or other material expenditures are required or necessary to be made in
order to continue such insurance;
(xii) The Company and each of its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations, international conventions and treaties
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
(including petroleum and petroleum byproducts) ("Environmental Laws"),
(ii) have received all permits, licenses or other approvals required of
them under applicable
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Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permits,
licenses, authorizations or approvals, except for such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions
of such permits, licenses, authorizations or approvals that would not,
individually or in the aggregate, have a Material Adverse Effect;
(xiii) There has been no event in connection with the storage,
transportation or handling of, and no treatment, generation, disposal,
discharge, emission or other release of, any kind of any toxic or
hazardous substances or wastes, including petroleum and any petroleum
products or byproducts, due to, caused by or otherwise relating to the
operations of the Company or any of its subsidiaries or, to the best
knowledge of the Company, any other entity (including any predecessor)
for whose acts or omissions the Company or any of its subsidiaries is
or could reasonably be expected to be liable, except as, individually
or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect;
(xiv) In the ordinary course of its business, the Company
identifies and evaluates costs and liabilities associated with the
effect of Environmental Laws on the business, operations, and
properties of the Company and its subsidiaries (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws
or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties).
The Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, have a
Material Adverse Effect;
(xv) There are no holders of securities of the Company which by
reason of the filing of the Registration Statement or otherwise in
connection with the sale of the Shares contemplated hereby, have the
right to request or demand that the Company register under the Act any
of their securities in connection with the Registration Statement,
except for any such rights that have been effectively waived in writing
so as not to be exercisable in connection with the registration, offer
or sale of the Shares;
(xvi) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair;
(xvii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
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(xviii)The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company",
as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(xix) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(xx) Deloitte & Touche LLP, which has certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xxi) The financial statements included or incorporated by
reference in the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis; and the schedules included in the Registration
Statement present fairly the information required to be stated therein.
All non-GAAP financial information included in the Registration
Statement and the Prospectus complies with the requirements of
Regulation G and Item 10 of Regulation S-K under the Securities Act;
and
(xxii) Each of the Company and its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 under
the Exchange Act) that are effective in ensuring that information
required to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the rules and forms of
the Commission, including, without limitation, controls and procedures
designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act
is accumulated and communicated to the Company's management, including
its principal executive officer or officers and its principal financial
officer or officers, as appropriate to allow timely decisions regarding
required disclosure.
2. Subject to the terms and conditions herein set forth, the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at a purchase price per
share of $11.75, the number of Shares set forth opposite the name of such
Underwriter in Schedule I hereto.
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3. Upon the authorization by you of the release of the Shares, the
several Underwriters propose to offer the Shares for sale upon the terms and
conditions set forth in the Prospectus, including the terms set forth under
"Description of Capital Stock."
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to
Xxxxxxx, Sachs & Co., through the facilities of the Depository Trust Company
("DTC") for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to Xxxxxxx, Xxxxx & Co.
at least forty-eight hours in advance. The time and date of such delivery and
payment shall be 9:30 a.m., New York time, on June 29, 2004 or such other time
and date as Xxxxxxx, Sachs & Co. and the Company may agree upon in writing. Such
time and date for delivery of the Shares is herein called the "Time of
Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7 hereof, will be delivered at the offices of
Cravath, Swaine & Xxxxx LLP, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX
00000 (the "Closing Location"), and the Shares will be delivered at the office
of DTC or its designated custodian (the "Designated Office"), all at the Time of
Delivery. A meeting will be held at the Closing Location at 5:00 p.m., New York
City time, on the New York Business Day next preceding the Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Agreement, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 424(b);
without your prior approval after reasonable notice, to make no further
amendment or any supplement to the Registration Statement or Prospectus
prior to the Time of Delivery; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish you with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus, of the suspension of the qualification of
the Shares for offering or sale in any
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jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
prospectus or suspending any such qualification, promptly to use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such U.S. jurisdictions as you may request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) As soon as practicable, on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish
the Underwriters with written and electronic copies of the Prospectus
in New York City in such quantities as you may reasonably request, and,
if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to
comply with the Act or the Exchange Act, to notify you and upon your
request to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the
time of issue of the Prospectus, upon your request but at the expense
of such Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to
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sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the
Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities without
the prior written consent of Xxxxxxx, Xxxxx & Co.; provided that such
restriction shall not apply to (i) securities issued pursuant to
employee stock option or incentive plans (including, as applicable,
pursuant to an effective sales plan under Rule 10b5-1 of the
Securities Exchange Act of 1934) existing on, or upon the conversion
or exchange of convertible or exchangeable securities outstanding as
of, the date hereof, (ii) offers made to the shareholders of Xxxxxxx
Shipping Ltd. ("Xxxxxxx") pursuant to a tender or exchange offer or
merger for all or substantially all of the capital stock of Xxxxxxx,
(iii) the transactions contemplated by that certain underwriting
agreement dated as of the date hereof between the Company and the
Underwriters in connection with the issue and sale by the Company of
9,000,000 shares of Stock and (iv) securities issued in connection
with the purchase of assets or stock by the Company or any of its
subsidiaries to the extent that the aggregate market value of such
securities does not exceed 10% of the market capitalization of the
Company as of the date hereof (giving effect to the offering
contemplated hereby); provided further that in the case of clause
(iv), the recipients of such securities shall have entered into a
lock-up agreement substantially in the form of Exhibit A hereto;
(f) To furnish to its stockholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the Registration
Statement), to make available to its stockholders consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange;
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(j) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act; and
(k) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if
any, operated by such Underwriter for the purpose of facilitating the
on-line offering of the Shares (the "License"); PROVIDED, HOWEVER, that
the License shall be used solely for the purpose described above, is
granted without any fee and may not be assigned or transferred.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing this Agreement, the Blue Sky
Memorandum, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the New York Stock Exchange; (v) the filing fees incident to, and the
fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Shares; (vi) the cost of preparing stock
certificates; (vii) the cost and charges of any transfer agent or registrar and
(viii) all other costs and expenses in connection with the issuance and
distribution of the securities being registered not otherwise specifically
provided for in this Section. Xxxxxxx, Xxxxx & Co. agrees to pay New York State
stock transfer tax, and the Company agrees to reimburse Xxxxxxx, Sachs & Co. for
associated carrying costs if such tax payment is not rebated on the day of
payment and for any portion of such tax payment not rebated. It is understood
that except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
its discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
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(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information relating
to the Registration Statement on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated the
Time of Delivery, in a customary form and substance as you may
reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters;
(c) Coudert Brothers LLP, counsel for the Company, shall have
furnished to you its written opinion, dated the Time of Delivery, in
form and substance satisfactory to you, substantially to the effect
that:
(i) Based solely on certificates of public officials in the
appropriate jurisdiction, the Company has been duly qualified for
the transaction of business and is in good standing under the
laws of each jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or
is subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction;
(ii) To such counsel's knowledge and other than as set forth
in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position stockholders' equity or results
of operations of the Company and its subsidiaries; and, to such
counsel's knowledge, no such proceedings are threatened by
governmental authorities;
(iii) Each subsidiary of the Company listed on Annex A to
this opinion is validly existing as a corporation or limited
liability company in good standing under the laws of its
jurisdiction of incorporation or formation;
(iv) The issue and sale of the Shares and the compliance by
the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any of the
Credit Agreements to which the Company or by which the Company is
bound;
11
(v) No consent, approval, authorization, order, registration
or qualification of or with any New York, Delaware or U.S.
federal court or governmental agency or body (except for any
maritime or admiralty agency or body) is required for the issue
and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except the
registration under the Act of the Shares, and such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters;
(vi) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport
to constitute a summary of the terms of the Stock, and under the
caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(vii) The Company is not an "investment company", as such
term is defined in the Investment Company Act of 1940;
(viii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by
the Company prior to the date hereof (other than the financial
statements and related schedules and other financial data
included therein or omitted therefrom and the statistical
information relating to the tanker industry included therein, or
omitted therefrom, in each case, as to which we express no
belief), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and
(ix) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company
prior to the Time of Delivery (other than the financial
statements and related schedules and other financial data
included therein or omitted therefrom and the statistical
information relating to the tanker industry included therein, or
omitted therefrom, in each case, as to which such counsel
expresses no belief) comply as to form in all material respects
with the requirements of the Act and the rules and regulations
thereunder; although they do not assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except
for those referred to in the opinion in subsection (vi) of this
Section 7(c), they have no reason to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules and other financial data included therein or omitted
therefrom and the statistical information relating to the tanker
industry included therein, or omitted therefrom, in each case, as
to which such counsel expresses no belief) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus or
any further amendment or supplement thereto made by the Company
prior to the Time of
12
Delivery (other than the financial statements and related
schedules and other financial data included therein or omitted
therefrom and the statistical information relating to the tanker
industry included therein, or omitted therefrom, in each case, as
to which such counsel expresses no belief) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that,
as of the Time of Delivery, either the Registration Statement or
the Prospectus or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules and other financial
data included therein or omitted therefrom and the statistical
information relating to the tanker industry included therein, or
omitted therefrom, in each case, as to which such counsel
expresses no belief) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and they do not know of any
contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which
are not filed or incorporated by reference or described as
required.
(d) Xxxxxxx X. London, general counsel for the Company, shall
have furnished to you his written opinion, dated the Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) The issue and sale of the Shares and the compliance by
the Company with all of the provisions of the Agreement and the
consummation of the transactions therein contemplated will not
conflict with or result in any breach of or violation of any of
the terms or provisions of, or constitute a default under (i) any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to me to which the Company or any
of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, (ii)
the provisions of the Articles of Incorporation, Certificate of
Formation, By-laws, Limited Liability Company Agreement, or
similar organizational document, as applicable, of the Company or
any of the subsidiaries; or (iii) to the best of such counsel's
knowledge, any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
and
(ii) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is (i) in violation of its
Certificate of Incorporation, Certificate of Formation, By-laws
or Limited Liability Company Agreement or (ii) in default in the
performance or observance of any material obligation, covenant or
condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be
bound.
13
(e) Xxxxxx X. Xxxxxx, Attorney-At-Law, counsel for the Company,
shall have furnished to you his written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Republic of the Xxxxxxxx Islands, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(ii) The Company's authorized capitalization is 150,000,000
shares and all of the issued shares of capital stock of the
Company (including the Shares) have been duly and validly
authorized and issued and are fully paid and non-assessable; and
the Shares conform to the description of the Stock contained in
the Prospectus.
(iv) Each subsidiary of the Company formed under the laws of
the Republic of the Xxxxxxxx Islands (the "M.I. Subsidiaries")
has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the Republic
of the Xxxxxxxx Islands; and all of the membership interests of
each such subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims other than those related to
pledges of membership interests under the Credit Agreements;
(v) This Agreement, has been duly authorized, executed and
delivered by the Company;
(vi) The issue and sale of the Shares and the compliance by
the Company and the M.I. Subsidiaries with all of the provisions
this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in any violation of
the provisions of the Articles of Incorporation, Certificate of
Formation, By-laws, Limited Liability Company Agreement, or
similar organizational document, as applicable, of the Company or
any of the M.I. Subsidiaries.
(vii) The laws of the Republic of the Xxxxxxxx Islands
applicable therein permit an action to be brought in a court of
competent jurisdiction in the Republic of the Xxxxxxxx Islands on
a final and conclusive judgment in personam of a United States
Federal court or a court of the State of New York sitting in the
Borough of Manhattan in The City of New York (the "New York
Court"), respecting the enforcement of the Shares or this
Agreement, that is not impeachable as void or voidable under the
laws of the State of New York and that is for a sum certain in
money if:
(A) the New York Court that rendered such judgment has
jurisdiction over the judgment debtor, as recognized by the
courts of the Republic of the Xxxxxxxx Islands and in accordance
with its conflict of laws rules (and submission
14
by the Company in the Underwriting Agreement to the
jurisdiction of the New York Court will be sufficient for
this purpose);
(B) such judgment was not obtained by fraud or in a
manner contrary to natural justice and the enforcement thereof
would not be inconsistent with public policy, as such term is
understood under the laws of the Republic of the Xxxxxxxx
Islands applicable therein;
(C) the enforcement of such judgment does not
constitute, directly or indirectly, the enforcement of foreign
revenue, expropriatory, public or penal laws;
(D) no new admissible evidence relevant to the action
is discovered prior to the rendering of judgment by the court
in the Republic of the Xxxxxxxx Islands; and
(E) the action to enforce such judgment is commenced
within six years after the date of such judgment.
To the best of such counsel's knowledge, under present laws of the
Republic of the Xxxxxxxx Islands there is no reason to believe that a
court in the Republic of the Xxxxxxxx Islands would avoid recognition
of a judgment of a New York Court under this Agreement or on the Shares
based upon a reasonable interpretation of public policy.
(f) There shall have been delivered to you agreements executed by
all the directors and executive officers of the Company in the form of
the lock-up agreement attached hereto as Exhibit A;
(g) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
the Time of Delivery, Deloitte & Touche LLP shall have furnished to you
a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you;
(h) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any change in the consolidated capital stock,
or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of Xxxxxxx, Sachs & Co. so material and
adverse as to make it impracticable
15
or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at the Time of Delivery on the terms and
in the manner contemplated in the Prospectus;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(j) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
exchanges on which such securities trade; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York
State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv)
the outbreak or escalation of hostilities involving the United States
or the declaration by the United States of a national emergency or war
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or
(v) in the judgment of Xxxxxxx, Xxxxx & Co. makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at the Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(k) The Shares at the Time of Delivery shall have been duly
listed, subject to notice of issuance, on the New York Stock Exchange;
(l) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(m) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery a certificate of an officer of the Company,
satisfactory to you as to the accuracy of the representations and
warranties of the Company, herein at and as of the Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to the Time of Delivery in all material
respects, and as to such other matters as you may reasonably request,
and the Company shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a) and (h) of
this Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
from and against any losses, claims, damages or liabilities to which any
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or any
amendment or
16
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; PROVIDED, HOWEVER, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does
17
not include a statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by PRO RATA allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms
18
and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at the Time of Delivery,
you may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then you shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that they have arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one eleventh of the aggregate number of all
the Shares to be purchased at the Time of Delivery, then the Company shall have
the right to require each non defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at the Time of
Delivery and, in addition, to require each non defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one eleventh of the aggregate number of all of the
Shares to be purchased at the Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part of
any non defaulting Underwriter or the Company except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
19
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Shares.
11. If for any reason any Shares are not delivered by or on behalf of
the Company as provided herein, the Company will reimburse you for all
out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred by you in making preparations for the purchase, sale and delivery of
the Shares not so delivered, but the Company shall then be under no further
liability to you in respect of the Shares not so delivered except as provided in
Sections 6 and 8 hereof.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriter shall be delivered or sent by mail, telex or
facsimile transmission to you at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Registration Department; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriter, and the Company and, to the extent provided in
Section 8 hereof, the officers and directors of the Company and each person who
controls the Company or the Underwriters, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from the Underwriters shall be deemed a successor or assign by reason
merely of such purchase.
13. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to the conflict of law
principles thereof.
15. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
16. The Company irrevocably submits to the non-exclusive jurisdiction
of any New York State or United States federal court sitting in The City of New
York over any suit, action or proceeding arising out of or relating to this
Agreement, the Prospectus, the Registration Statement or the offering of the
Shares. The Company irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of venue of any
such suit, action or proceeding brought in such a court and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum.
17. The Company hereby irrevocably appoints CT Corporation System, with
offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, as its agent for service of
process in any suit, action or proceeding described in the preceding paragraph.
The company agrees that service of process
20
in any such suit, action or proceeding may be made upon it at the office of its
agent. The Company waives, to the fullest extent permitted by law, any other
requirements of or objections to personal jurisdiction with respect thereto. The
Company represents and warrants that its agent has agreed to act as agent for
service of process, and each agrees to take any and all action, including the
filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect.
21
If the foregoing is in accordance with your understanding,
please sign and return to us one counterpart hereof for the Company plus one
counterpart hereof for each counsel, and upon the acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
you and the Company.
Very truly yours,
OMI CORPORATION,
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
Accepted as of the date hereof:
/s/ Xxxxxxx, Xxxxx & Co.
-----------------------------------------------
(Xxxxxxx, Sachs & Co.)
22
SCHEDULE I
TOTAL NUMBER OF
SHARES
UNDERWRITER TO BE PURCHASED
------------- ------------------
Xxxxxxx, Xxxxx & Co......................................... 1,750,000
Xxxxxxx Xxxx Xxxxx, LLC..................................... 250,000
---------
Total.............................................. 2,000,000
=========
23
SCHEDULE II
(All subsidiaries are 100% owned directly or indirectly except as indicated)
COMPANY JURISDICTION
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Alliance Chartering LLC (50%) Xxxxxxxx Islands
Xxxx Shipping LLC Xxxxxxxx Islands
Amazon Shipping LLC Xxxxxxxx Islands
Amazon Transport Inc. Liberia
Ashley Shipping LLC Xxxxxxxx Islands
Bandar Ayu Shipping LLC Xxxxxxxx Islands
Charente Shipping LLC Xxxxxxxx Islands
Colorado Shipping LLC Xxxxxxxx Islands
Columbia Shipping LLC Xxxxxxxx Islands
Dakota Shipping LLC Xxxxxxxx Islands
Danube Shipping LLC Xxxxxxxx Islands
Delaware Shipping LLC Xxxxxxxx Islands
Elbe Shipping LLC Delaware, USA
Elbe Shipping LLC Xxxxxxxx Islands
Fox Shipping LLC Xxxxxxxx Islands
Ganges Shipping LLC Xxxxxxxx Islands
Garonne Shipping LLC Xxxxxxxx Islands
Gemini Tankers LLC Xxxxxxxx Islands
Xxxxxxxxx Shipping LLC Xxxxxxxx Islands
Xxxxxx Shipping LLC Xxxxxxxx Islands
International Product Carriers LLC (50%) Delaware, USA
International Product Carriers Ltd. (50%) Bermuda
Isere Shipping LLC Xxxxxxxx Islands
Laurel Shipping LLC Xxxxxxxx Islands
Limar Shipping LLC Xxxxxxxx Islands
Loire Shipping LLC Xxxxxxxx Islands
Madison Shipping LLC Xxxxxxxx Islands
24
COMPANY JURISDICTION
------- ------------
Marne Shipping LLC Xxxxxxxx Islands
Mendala II Transport Inc. Liberia
Moselle Shipping LLC Xxxxxxxx Islands
Neches Shipping LLC Xxxxxxxx Islands
Nile Shipping LLC Xxxxxxxx Islands
Ohio Shipping LLC Xxxxxxxx Islands
OMI Marine Services LLC Delaware, USA
Orontes Shipping LLC Xxxxxxxx Islands
Orontes Shipping Ltd. Malta
Ottawa Shipping LLC Xxxxxxxx Islands
Pagoda Shipping LLC Xxxxxxxx Islands
Xxxxxxxx Shipping LLC Xxxxxxxx Islands
Paulina Shipping LLC Xxxxxxxx Islands
Pecos Shipping LLC Xxxxxxxx Islands
Potomac Shipping LLC Xxxxxxxx Islands
Racer Shipping LLC Xxxxxxxx Islands
Radiance Shipping LLC Xxxxxxxx Islands
Rain Shipping LLC Xxxxxxxx Islands
Rhine Shipping LLC Xxxxxxxx Islands
Rhone Shipping LLC Xxxxxxxx Islands
Roanoke Shipping LLC Xxxxxxxx Islands
Rosetta Shipping LLC Xxxxxxxx Islands
Ruby Shipping LLC Xxxxxxxx Islands
Sabine Shipping LLC Xxxxxxxx Islands
Sacramento Shipping LLC Xxxxxxxx Islands
San Jacinto Shipping LLC Xxxxxxxx Islands
Saone Shipping LLC Xxxxxxxx Islands
Seine Shipping LLC Xxxxxxxx Islands
Settebello Shipping LLC Liberia
Severn Shipping LLC Xxxxxxxx Islands
Xxxxxxx Shipping LLC Delaware, USA
Xxxxxxx Shipping LLC Xxxxxxxx Islands
25
COMPANY JURISDICTION
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Somjin Shipping LLC Xxxxxxxx Islands
Soyang Shipping LLC Xxxxxxxx Islands
Tamar Shipping LLC Xxxxxxxx Islands
Tandjung Ayu Shipping LLC Xxxxxxxx Islands
Tevere Shipping LLC Xxxxxxxx Islands
Thames Shipping LLC Xxxxxxxx Islands
Tiber Shipping LLC Xxxxxxxx Islands
Trent Shipping LLC Xxxxxxxx Islands
Trinity Shipping LLC Xxxxxxxx Islands
UBC Chartering Ltd. Liberia
Volga Shipping LLC Xxxxxxxx Islands
26
ANNEX A
Definition
"Credit Agreements" means the secured reducing revolving credit
facility in the original amount of $348 million by Den Norske Bank, ASA and the
banks and financial institutions identified therein as lenders, dated as of July
27, 2001; the secured term loan facility in the original amount of $40 million
by Deutsche Schiffsbank Aktiengesellschaft and the banks and financial
institutions identified therein, dated as of September 7, 2001; the secured term
loan facility in the original amount of $44 million by ING Bank NV and the banks
and financial institutions identified therein, dated as of December 13, 2001;
the amended and restated secured reducing revolving credit facility in the
original amount of $245 million by Nordea Bank Finland PLC and the banks and
financial institutions identified therein as lenders, dated as of March 14,
2003; the senior secured term loan in the original amount of $64.8 million by
ING Bank NV and the banks and financial institutions identified therein as
lenders, dated as of June 10, 2003; the senior secured loan facility in the
original amount of $34.475 million by Nordea Bank Finland PLC and the banks and
financial institutions identified therein as lenders, dated as of August 11,
2003; the secured term loan facility in the original amount of $34.3 million by
Deutsche Schiffsbank Aktiengesellschaft and the banks and financial institutions
identified therein, dated as of August 12, 2003; the senior secured term loan
facility in the original amount of $50.4 million by Societe Generale and the
banks and financial institutions identified therein as lenders, dated December
8, 2003; the senior secured term loan facility in the original amount of $24
million by NIB Capital Bank NV, dated December 18, 2003; and the senior secured
term loan facility in the original amount of up to $70.828 million by ING Bank
NV and the banks and financial institutions identified therein, dated as of May
27, 2004.
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
OMI CORPORATION
LOCK-UP AGREEMENT
JUNE 24, 2004
Xxxxxxx, Sachs & Co.
As representatives of the several underwriters
named in the Underwriting Agreement
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: OMI CORPORATION - LOCK-UP AGREEMENT
Ladies and Gentlemen:
The undersigned understands that the underwriters propose to enter into
an Underwriting Agreement with OMI Corporation, a corporation incorporated under
the laws of the Republic of the Xxxxxxxx Islands (the "Company"), providing for
the sale of the Common Stock of the Company (the "Shares") pursuant to a
Registration Statement on Form S-3 filed with the Securities and Exchange
Commission (the "SEC").
In consideration of the agreement by the underwriters to offer and sell
the Shares, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that, during
the period beginning from the date hereof and continuing to and including the
date 90 days after the date hereof, the undersigned will not offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of any shares of Common Stock of the Company, or any options
or warrants to purchase any shares of Common Stock of the Company, or any
securities convertible into, exchangeable for or that represent the right to
receive shares of Common Stock of the Company, whether now owned or hereinafter
acquired, owned directly by the undersigned (including holding as a custodian)
or with respect to which the undersigned has beneficial ownership within the
rules and regulations of the SEC (collectively the "Undersigned's Shares").
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is designed
to or which reasonably could be expected to lead to or result in a sale or
disposition of the Undersigned's Shares even if such Shares would be disposed of
by someone other than the undersigned. Such prohibited hedging or other
transactions would include without limitation any short sale or any purchase,
sale or grant of any right (including without limitation any put or call option)
with respect to any of the Undersigned's Shares or with respect to any security
that includes, relates to, or derives any significant part of its value from
such Shares.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a BONA FIDE gift or gifts, provided that the donee
or donees thereof agree to be bound in
A-1
writing by the restrictions set forth herein, (ii) to any trust for the direct
or indirect benefit of the undersigned or the immediate family of the
undersigned, provided that the trustee of the trust agrees to be bound in
writing by the restrictions set forth herein, and provided further that any such
transfer shall not involve a disposition for value, (iii) if the undersigned is
a corporation, the undersigned may transfer the Undersigned's Shares to any of
its subsidiaries or affiliates; provided, in each case, that the transferee
agrees to be bound in writing by the restrictions set forth herein, and provided
further that any such transfer shall not involve a disposition for value, (iv)
pursuant to an effective sales plan under Rule 10b5-1 of the Securities Exchange
Act of 1934 that is existing on the date hereof, or (v) with the prior written
consent of Xxxxxxx, Xxxxx & Co. For purposes of this Lock-Up Agreement,
"immediate family" shall mean any relationship by blood, marriage or adoption,
not more remote than first cousin. In addition, notwithstanding the foregoing,
if the undersigned is a corporation, the corporation may transfer the capital
stock of the Company to any wholly-owned subsidiary of such corporation;
PROVIDED, HOWEVER, that in any such case, it shall be a condition to the
transfer that the transferee execute an agreement stating that the transferee is
receiving and holding such capital stock subject to the provisions of this
Agreement and there shall be no further transfer of such capital stock except in
accordance with this Agreement, and provided further that any such transfer
shall not involve a disposition for value. No other person now has, or at any
time during the duration of this Lock-Up Agreement will have, the right to cause
a sale or other disposition of any of the Undersigned's Shares other than in
connection with any rights held by the Company pursuant to the instruments
evidencing the grant or sale of the Shares to the Undersigned. The undersigned
also agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of the Undersigned's
Shares except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
offering. The undersigned further understands that this Lock-Up Agreement is
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors, and assigns.
Very truly yours,
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Exact Name of Shareholder or Executive Officer
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Authorized Signature
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Title
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