Exhibit 1.1
[Form of Underwriting Agreement]
CAPITAL MARITIME
&
TRADING CORP.
COMMON STOCK, PAR VALUE $0.001 PER SHARE
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UNDERWRITING AGREEMENT
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_________________, 2005
Xxxxxxx Xxxxx International,
Bear, Xxxxxxx & Co. Inc.,
Xxxxxxxxx & Company, Inc.,
HSBC Securities (USA) Inc.,
National Bank of Greece SA,
As representatives of the several Underwriters
named in Schedule I hereto (the "Representatives"),
c/o Goldman Sachs International,
Xxxxxxxxxxxx Xxxxx,
000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX.
Ladies and Gentlemen:
Capital Maritime & Trading Corp., a Xxxxxxxx Islands corporation (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 [_] shares (the "FIRM SHARES") and, at the
election of the Underwriters, up to [_] additional shares (the "OPTIONAL
SHARES") of Common Stock, par value $0.001 per share ("STOCK"), of the Company.
The Firm Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called the "SHARES".
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form F-1 (File No. 33-[_]) (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 (for you and for each of the other
underwriters), have been declared effective by the Commission in such form;
other than 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, no other document with respect to the Initial
Registration Statement 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 (any preliminary
prospectus included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "PRELIMINARY PROSPECTUS");
the various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 6(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "REGISTRATION STATEMENT"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "PROSPECTUS";
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; 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 International expressly for use therein;
(c) 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 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 International expressly for use
therein;
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(d) Each consolidated subsidiary of the Company listed on SCHEDULE II
(each, a "SUBSIDIARY")is wholly-owned by the Company; other than the equity
interests in the Subsidiaries, the Company does not own (directly or
indirectly) any equity interest (voting or otherwise) in any other entity;
the Company has good and marketable title in fee simple to all of the
outstanding shares of each Subsidiary, free and clear of liens,
encumbrances, equities, claims or defects except such as are described in
the Prospectus or such as do not materially affect the value of such
shares; there are no agreements in force, or contemplated by the Company,
which provide, or would provide, for the present or future issue,
allotment, or transfer of, or grant to any person of the right (whether
conditional or otherwise) to call for the issue, allotment, or transfer of,
any share of any Subsidiary (including any option or right of pre-emption
or conversion with respect to any Subsidiary); there are no outstanding
securities convertible into or exchangeable for, or warrants, rights or
options to purchase from any Subsidiary, or obligations of any Subsidiary
to issue, any class of capital stock of such Subsidiary; the Company and
the Subsidiaries taken as a whole are hereinafter called the "COMPANY
GROUP";
(e) Since the date of the most recent audited financial statements
included in the Prospectus, neither the Company nor any of the Subsidiaries
has 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 dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, and other than as set forth in
the Prospectus, there has not been any change in the capital stock,
stockholders' equity or long-term debt of the Company or any of the
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 the Subsidiaries, otherwise than as set forth
or contemplated in the Prospectus;
(f) The Company and the Subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property (including the vessels described in the Prospectus)
described in the Prospectus as being owned by them, free and clear of all
liens, encumbrances, equities, claims or defects except such as are
described in the Prospectus or such as do not materially affect the value
of such property and do not materially interfere with the use proposed to
be made of such property by the Company or any Subsidiaries except as
described in the Prospectus, each of the vessels described in the
Prospectus are owned directly by a Subsidiary; SCHEDULE II lists next to
the name of the relevant Subsidiary each of the vessels currently owned by
each such Subsidiary; any real property and buildings held under lease by
the Company or the Subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
materially interfere with the use proposed to be made of such property and
buildings by the Company and the Subsidiaries;
(g) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the Xxxxxxxx Islands, 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 as
a foreign corporation 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
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qualification, except to the extent that the failure to be so qualified or
in good standing could not reasonably be expected to result in a material
adverse change in, or effect on, the business, operations, properties or
condition (financial or otherwise) of the Company (a "COMPANY MATERIAL
ADVERSE EFFECT"); and the Company is a "foreign private issuer" (as such
term is defined in Rule 405 under the Act);
(h) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction listed
on SCHEDULE II next to the name of such Subsidiary, 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 as a
foreign corporation 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,
except to the extent that the failure to be so qualified or in good
standing could not reasonably be expected to result in a material adverse
change in, or effect on, the business, operations, properties or condition
(financial or otherwise) of any such Subsidiary (each a "SUBSIDIARY
MATERIAL ADVERSE EFFECT"); reference in this agreement to a "MATERIAL
ADVERSE EFFECT" shall mean a material adverse change in, or effect on, the
business, operations, properties or condition (financial or otherwise) of
the Company Group;
(i) 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, are fully paid and
non-assessable and conform to the description of the Stock contained in the
Prospectus; and all of the issued shares of capital stock of each
Subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable; all of the Stock have been duly listed and admitted for
trading on the New York Stock Exchange (the "NEW YORK STOCK EXCHANGE"); the
holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to acquire the Shares; there are no
outstanding securities convertible into or exchangeable for, or warrants,
rights or options to purchase from the Company, or obligations of the
Company to issue, the Stock or any other class of capital stock of the
Company; and there are no restrictions on subsequent transfers of the
Shares under the laws of the Xxxxxxxx Islands, Greece, or the United
States;
(j) 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;
(k) No consent, approval, authorization, order, registration,
clearance or qualification of or with any court or governmental agency or
body or any stock exchange authorities (hereinafter referred to as a
"GOVERNMENTAL AGENCY") having jurisdiction over the Company or any of its
Subsidiaries or any of their properties or any stock exchange authorities
(hereinafter referred to as "GOVERNMENTAL AUTHORIZATIONS"), is required for
the execution and delivery by the Company of this Agreement to be duly and
validly authorized;
(l) All dividends and other distributions declared and payable on the
shares of capital stock of the Company may under the current laws and
regulations of the Xxxxxxxx Islands and Greece be paid in United States
Dollars that may be freely transferred out of the Xxxxxxxx Islands and
Greece, and all such dividends and other distributions will not be subject
to withholding or other taxes under the laws and regulations of the
Xxxxxxxx Islands or Greece and are otherwise free and clear of any
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other tax, withholding or deduction in the Xxxxxxxx Islands or Greece and
without the necessity of obtaining any Governmental Authorization in the
Xxxxxxxx Islands or Greece;
(m) The issue and sale of the Shares to be sold by the Company
hereunder and the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein contemplated
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, 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 the 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 Amended and Restated Articles of
Incorporation or By-laws of the Company, or (iii) result in any violation
of any statute or any order, rule or regulation of any Governmental Agency
having jurisdiction over the Company or any of its Subsidiaries or any of
their properties, except, in the case of clauses (i) or (iii) of this
paragraph (m), for any such conflict, breach or violation that could not
reasonably be expected to have a Material Adverse Effect; and no consent,
approval, authorization, order, registration or qualification of or with
any such Governmental Agency is required for the issue and sale of the
Shares or the consummation by the Company of the transactions contemplated
by this Agreement, except (A) the registration under the Act of the Shares,
(B) such Governmental Authorizations as may be required under state
securities or Blue Sky laws and the United States in connection with the
purchase and distribution of the Shares by or for the account of the
Underwriters, or (C) for any such consent, approval, authorization, order,
registration or qualification (other than those in the immediately
preceding clauses (A) and (B)) the failure of which to obtain could not
reasonably be expected to have a Material Adverse Effect;
(n) Neither the Company nor any of the Subsidiaries is (i) in
violation of its Amended and Restated Articles of Incorporation or By-laws,
in the case of the Company, or the equivalent constitutive documents, in
the case of each Subsidiary, 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, except, in the case of the foregoing
clause (i), for violations of the constitutive documents of any Subsidiary,
or, in the case of the foregoing clause (ii), for defaults, as could not
reasonably be expected to result in a Material Adverse Effect ;
(o) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the Xxxxxxxx Islands or Greece, or any
political subdivision or taxing authority of or in either the Xxxxxxxx
Islands or Greece in connection with (A) the sale and delivery by the
Company of the Shares to or for the respective accounts of the Underwriters
or (B) the sale and delivery outside the Xxxxxxxx Islands and Greece by the
Underwriters of the Shares to the initial purchasers thereof;
(p) Neither the Company nor any of the Subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
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(q) The statements set forth in the Prospectus (i) under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, (ii) under the caption "Tax
Considerations" and under the caption "Plan of Distribution", insofar as
they purport to describe the provisions of the laws and documents (other
than the agreement between Bear, Xxxxxxx & Co. Inc. and a Greek national)
referred to therein, and (iii) under the caption "Related Party
Transactions", insofar as it purports to describe the laws, documents and
transactions described therein, are accurate, complete and fair; no
relationship, direct or indirect, exists (or was entered into since January
1, 2002) between or among the Company or any of the Subsidiaries on the one
hand, and the directors, officers, stockholders, customers or suppliers of
any member of the Company Group on the other hand, which is required by the
Act (or the applicable rules and regulations thereunder) to be described in
the Registration Statement and the Prospectus which is not so described in
the Prospectus;
(r) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company Group (or any part of
it) is a party or of which any property of the Company Group is the subject
which, if determined adversely to the Company Group, 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
any Governmental Agency or threatened by others;
(s) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof, will not be
an "investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended (the "INVESTMENT COMPANY ACT");
(t) Each of the Company and its Subsidiaries has all licenses,
franchises, permits, authorizations, approvals and orders and other
concessions of and from all Governmental Agencies that are necessary to own
or lease its properties and conduct the Company's business as described in
the Prospectus, except for any such licenses, franchises, permits,
authorizations, approvals and orders and other concessions the failure of
which to have could not reasonably be expected to have a Material Adverse
Effect;
(u) The Company is not a Passive Foreign Investment Company ("PFIC")
within the meaning of Section 1297 of the United States Internal Revenue
Code of 1986, as amended (the "CODE"), and, to the Company's knowledge, the
Company is not likely to become a PFIC; the Company is not currently and
has never previously been either a "personal holding company" or a "foreign
personal holding company" (as such terms are defined in the Code);
(v) Neither the Company nor any of the Subsidiaries currently 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)
or with the governments of Burma, Iran, North Korea, Sudan and Syria; and
neither the Company nor any of its affiliates will use any proceeds it
receives from the sale of the Shares to fund any operations or finance any
investments in, or make any payments to, any country or person targeted by
any of the economic sanctions of the United States administered by the
United States Treasury Department's Office of Foreign Assets Controls;
(w) Ernst & Young (Hellas), who have certified certain financial
statements of the Company and the Subsidiaries are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
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(x) The consolidated financial statements of the Company and the
Subsidiaries included in the Registration Statement present fairly in all
material respects the consolidated financial condition of the Company and
the Subsidiaries as at the dates at which they were prepared in accordance
with generally accepted accounting principles in the United States ("U.S.
GAAP") applied on a consistent basis (except as otherwise noted therein)
and the consolidated results of operations of the Company and the
Subsidiaries in respect of the periods for which they were prepared;
(y) The Company is not aware of (i) any material weaknesses in its
internal control over financial reporting (as such term is defined in Rule
13a-15(f) of the U.S. Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")), or (ii) any change in the Company's internal control over
financial reporting that has materially adversely affected, or is
reasonably like to materially adversely affect, the Company's internal
control over financial reporting;
(z) The Company is in compliance in all material respects with
provisions of the Xxxxxxxx-Xxxxx Act of 2002 that are currently effective
and are applicable to it immediately following the effectiveness of the
Registration Statement. The Company (i) is actively taking steps to ensure
that it will be in compliance in all material respects with other
applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 at the time such
provisions will be applicable to the Company, and (ii) has no reason to
believe that it will not be in compliance with such provisions as of the
date on which they become applicable to the Company;
(aa) The Company and the Subsidiaries have duly filed, or caused to be
filed, with the appropriate taxing authorities all tax returns, reports and
other information required to be filed with respect to the Company and the
Subsidiaries through the date hereof or have requested extensions thereof
(and such extensions have been or will be granted) and have paid all taxes
required to be paid to the extent due and payable, except as is currently
being contested in good faith or except for the failure to pay such taxes
as could not reasonably be expected to have a Material Adverse Effect;
(bb) Each of the agreements listed on SCHEDULE III (the "IPO
REORGANIZATION AGREEMENTS") has been duly authorized, executed and
delivered by the Company and each counter-party to such agreements; each of
the IPO Reorganization Agreements is a valid and binding agreement
enforceable against the Company and each other party thereto in accordance
with its terms; each of the IPO Reorganization Agreements is in full force
and effect; all transactions and events contemplated by each of the IPO
Reorganization Agreements have been completed; no party to any of the IPO
Reorganization Agreements is in breach of, or default under, any of the IPO
Reorganization Agreements and no party to any of the IPO Reorganization
Agreements has notified any other party to such agreements that such other
party (or parties) is in default of, or has not complied with the terms and
conditions of, any such IPO Reorganization Agreements, except for any
breach, default or notice, in each case, as could not reasonably be
expected to have a Material Adverse Effect;
(cc) Except as disclosed in the Prospectus, no labor disturbance by
the employees of the Company or any of its Subsidiaries exists or, to the
knowledge of the Company, is threatened which could reasonably be expected
to have a Material Adverse Effect;
(dd) The Company Group maintains or is covered by insurance that is
adequate in accordance with the Company's reasonable business judgment for
the conduct of the
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businesses conducted by the Company Group, the value of the properties
(including the vessels owned by the Company Group described in the
Prospectus) of the Company Group, and the potential third party liability
to which the Company Group may reasonably be subject, in each case, as is
customary for companies engaged in similar businesses in similar
industries; in each case, the Company has no reason to believe that it will
not be able to renew the existing insurance coverage for the Company Group
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business;
(ee) The Company Group (i) is in compliance in all material respects
with any and all applicable foreign, federal, provincial, state and local
laws and regulations, including any applicable foreign, federal,
provincial, state and local laws and regulations (including any applicable
regulations and standards adopted by the International Maritime
Organization) relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) has received all permits,
licenses or other approvals required of it under applicable Environmental
Laws to conduct its businesses, and (iii) is in compliance with all terms
and conditions of any such permit, license or approval, except with respect
to clauses (i) and (ii), for any non-compliance or failure to receive such
permits, licenses or other approvals as could not reasonably be expected to
result in a Material Adverse Effect; no member of the Company Group has
been named as a "potentially responsible party" or as a "responsible party"
under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, or the Oil Pollution Act of 1990, as amended,
respectively, or under any analogous state or foreign law;
(ff) In the ordinary course of business in accordance with its
reasonable business judgment, the Company periodically reviews the effect
of Environmental Laws on the business, operations and properties of the
Company Group, in the course of which the Company has, in accordance with
its reasonable business judgment, identified and evaluated associated costs
and liabilities (including, without limitation, such costs required for
compliance with Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential liabilities
to third parties);
(gg) No unlawful payments or inducements have been made or given,
directly or indirectly, to any federal or local official or candidate for,
any Federal or state office in the United States or foreign offices by the
Company Group, or, to the knowledge of the Company, by any officer,
director, employee or agent of the Company Group (such officers, directors,
employees, or agents, a "COMPANY GROUP MEMBER") or, to the knowledge of the
Company, by any other person in connection with any opportunity, permit,
certificate, consent, order, approval, waiver or other authorization
relating to the business of the Company Group, except for such payments or
inducements as were lawful under applicable laws, rules and regulations;
neither the Company Group nor, to the knowledge of the Company, any Company
Group Member or, to the knowledge of the Company, any person associated
with or acting on behalf of the Company Group, (i) has 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 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, unlawful rebate,
payoff, influence payments, kickback or other unlawful payment in
connection with the business of the Company Group;
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(ii) No Subsidiary is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock, from repaying to the
Company or any third party any loans or advances to such Subsidiary or from
transferring any of such Subsidiary's property or assets to the Company,
any other Subsidiary, or to any other third party; and
(jj) To the Company's knowledge, the statistical and market-related
data included in the Prospectus is based on, or derived from, sources that
are reliable and accurate in all material respects.
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 $[_], the number of Firm Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of
Firm Shares to be sold by the Company by a fraction, the numerator of which is
the aggregate number of Firm Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in SCHEDULE I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from the Company hereunder and (b) in the event and to
the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, 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 the purchase price per Share set forth in clause
(a) of this Section 2, that portion of the number of Optional Shares as to which
such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in SCHEDULE I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are entitled
to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 2,500,500 Optional Shares, at the purchase price per Share
set forth in the paragraph above, for the sole purpose of covering sales of
shares in excess of the number of Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 5
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. The Company hereby confirms its engagement of Xxxxxxx, Xxxxx & Co. as,
and Xxxxxxx, Sachs & Co. hereby confirms its agreement with the Company to
render services as, a "qualified independent underwriter" within the meaning of
Rule 2720(b)(15) of the NASD, Inc. (the "NASD") with respect to the offering and
sale of the Shares. Xxxxxxx, Xxxxx & Co., in its capacity as qualified
independent underwriter and not otherwise, is referred to herein as the "QIU".
As compensation for the services of the QIU hereunder, the Company agrees to pay
the QIU $10,000 on the First Time of Delivery (as defined below).
4. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
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5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' notice
to the Company prior to a Time of Delivery (as defined below) (the "NOTIFICATION
TIME"), shall be delivered by or on behalf of the Company to the
Representatives, 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 Sachs
International at least forty-eight hours in advance. The Company will cause the
certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of DTC or its designated custodian
(the "DESIGNATED OFFICE").
The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on [_], 2005 or such other
time and date as Xxxxxxx Xxxxx International and the Company may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York City
time, on the date specified by Xxxxxxx Sachs International in the written notice
given by Xxxxxxx Xxxxx International of the Underwriters' election to purchase
such Optional Shares, or such other time and date as Xxxxxxx Sachs International
and the Company may agree upon in writing. Such time and date for delivery of
the Firm Shares is herein called the "FIRST TIME OF DELIVERY", such time and
date for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called the "SECOND TIME OF DELIVERY", and each such time and date for
delivery is herein called a "TIME OF DELIVERY".
(b) The documents to be delivered each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 8(p) hereof, will be delivered at the offices
of Xxxxxxxx & Xxxxxxxx XXX, 0 Xxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX (the "CLOSING
LOCATION"), and the Shares will be delivered as specified in Section (a) above,
all at such Time of Delivery. A meeting will be held at the Closing Location at
3:00 p.m., London time, on the New York Business Day next preceding such 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 Section 5, "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.
6. 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 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; 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 copies thereof; 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
Preliminary Prospectus or Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding
10
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
Preliminary Prospectus or 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 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) Prior to 5:00 p.m., New York City time, 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 in order to comply with the Act, to notify you and upon
your request, 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 180 days after the date of the
Prospectus (the initial "LOCK-UP PERIOD"), not to offer, sell,
contract to 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
(other than the grant by the Company of options to
11
purchase Stock pursuant to employee stock option plans existing on, or
upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), without
your prior written consent; provided, however, that if (1) during the
last 17 days of the initial Lock-Up Period, the Company releases
earnings results or announces material news or a material event or (2)
prior to the expiration of the initial Lock-Up period, the Company
announces that it will release earnings results during the 15-day
period following the last day of the initial Lock-Up Period, then in
each case the Lock-Up Period will be automatically extended until the
expiration of the 18-day period beginning on the date of release of
the earnings results or the announcement of the material news or
material event, as applicable, unless Xxxxxxx Xxxxx International
waives, in writing, such extension. The Company will provide the
Representatives and any co-managers with prior notice of any such
announcement that gives rise to an extension of the Lock-up Period;
(f) To furnish to its stockholders as soon as practicable after
the end of each fiscal year an annual report (in English) (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 prepared in conformity with U.S.
GAAP), and, as soon as practicable after the end of each of the first
three quarters of each fiscal year prepared in accordance with U.S.
GAAP (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 three 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
generally, 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) Not to take, directly or indirectly, any action which is
designed to or which constitutes or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of
any security of the Company or facilitate the sale or resale or the
Shares;
(j) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange;
(k) 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
12
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;
(l) To file with the Commission such information on Form 20-F as
may be required by Rule 463 under the Act; and
(m) 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.
7. 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, any
Preliminary Prospectus 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 any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, if any, closing documents
(including 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 6(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey, if any; (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 NASD, Inc. of the terms of the sale of the Shares; (vi) the fees and
expenses of the Authorized Agent (as defined in Section 16 hereof); (vii) the
cost of preparing stock certificates; (viii) the cost and charges of any
transfer agent or registrar; (ix) the compensation of the QIU, limited to the
amount set forth in Section 3 hereof; and (x) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 13 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.
8. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such 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:
(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
6(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
13
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to
your reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Underwriters, shall
have furnished to you such written opinion or opinions (a draft of each
such opinion is attached as ANNEX II(A) hereto) and negative assurance
statement with respect to such matters as you may reasonably request, dated
such Time of Delivery, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Cravath, Swaine & Xxxxx LLP, U.S. counsel for the Company, shall
have furnished to you their written opinion, dated such Time of Delivery,
in form and substance satisfactory to you, substantially to the effect set
forth in ANNEX II(B) hereto;
(d) Xxxxx & Baillie, LLP, Xxxxxxxx Islands counsel for the Company,
shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, substantially to the
effect set forth in ANNEX II(C);
(e) Gr. J. Timagenis Law Office, Greek counsel for the Company, shall
have furnished to you his written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, substantially to the effect set
forth in ANNEX II(D);
(f) Ganado & Associates-Advocates, Maltese counsel for the Company,
shall have furnished to you his written opinion dated such Time of
Delivery, in form and substance satisfactory to you, substantially to the
effect set forth in ANNEX II(E);
(g) Xxxxxx, Xxxxxx & Asvat, British Virgin Islands counsel for the
Company, shall have furnished to you his written opinion, dated such Time
of Delivery, in form and substance satisfactory to you, substantially to
the effect set forth in ANNEX II(F);
(h) Chrysses Xxxxxxxxxxx and Co. Law Office, Cypriot counsel for the
Company, shall have furnished to you his written opinion, dated such Time
of Delivery, in form and substance satisfactory to you, substantially to
the effect set forth in ANNEX II (G);
(i) Xxxxxx, Xxxxxx & Asvat, Panamanian counsel for the Company, shall
have furnished to you his written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, substantially to the effect set
forth in ANNEX II(H);
(j) Xxxxx & Xxxxxxx, LLP, Liberian counsel for the Company, shall have
furnished to you his written opinion, dated such Time of Delivery, in form
and substance satisfactory to you, substantially to the effect set forth in
ANNEX II(I);
(k) On the date of the Prospectus of 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 each Time of Delivery, Ernst &
Young (Hellas) shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to
you, to the effect set forth in ANNEX I hereto (the executed copy of the
letter delivered prior to the execution of this Agreement is attached as
ANNEX I(A) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as ANNEX I(B)
hereto);
14
(l) (i) Neither the Company nor any of the Subsidiaries shall have
sustained since the date of the latest audited financial statements
included 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 capital stock,
stockholders' equity or long-term debt of the Company or any of the
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
the 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 the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(m) 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 New York
Stock Exchange; (iii) a general moratorium on commercial banking activities
in New York or Athens, Greece declared by the relevant authorities, or a
material disruption in commercial banking or securities settlement or
clearance services in the United States or Greece; (iv) a change or
development involving a prospective change in U.S. or Xxxxxxxx Islands
taxation affecting the Company, the Shares or the transfer thereof; (v) the
outbreak or escalation of hostilities involving the United States or Greece
or the declaration by the United States or Greece of a national emergency
or war; or (vi) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States,
Greece or elsewhere, if the effect of any such event specified in clause
(v) or (vi) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(n) The Shares to be sold by the Company at such Time of Delivery
shall have been duly listed, subject to notice of issuance, on the New York
Stock Exchange;
(o) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of prospectuses by the second
New York Business Day next succeeding the date of this Agreement; and
(p) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, 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 (l) of this Section, and as to such other
matters as you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or
15
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, 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, 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 any Preliminary
Prospectus, 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 Sachs International
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 any
Preliminary Prospectus, 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 any Preliminary
Prospectus, 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 Xxxxx International
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 an 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 (which 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
16
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 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 of the Shares purchased under this Agreement (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, in each case as set forth in the table on
the cover page of the U.S. 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. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 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 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms 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.
17
10. (a) The Company will indemnify and hold harmless Xxxxxxx, Xxxxx & Co.,
in its capacity as QIU, against any losses, claims, damages or liabilities,
joint or several, to which the QIU 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 (i) an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or omission to act or any alleged act or
omission to act by Xxxxxxx, Sachs & Co. as QIU in connection with any
transaction contemplated by this Agreement or undertaken in preparing for the
purchase, sale and delivery of the Shares, except as to this clause (iii) to the
extent that any such loss, claim, damage or liability results from the gross
negligence or bad faith of Xxxxxxx, Xxxxx & Co. in performing the services as
QIU, and will reimburse the QIU for any legal or other expenses reasonably
incurred by the QIU in connection with investigating or defending any such
action or claim as such expenses are incurred.
(b) Promptly after receipt by the QIU under subsection (a) above of notice
of the commencement of any action, the QIU shall, if a claim in respect thereof
is to be made against the Company under such subsection, notify the Company in
writing of the commencement thereof; but the omission so to notify the Company
shall not relieve it from any liability which it may have to the QIU otherwise
than under such subsection. In case any such action shall be brought against the
QIU and it shall notify the Company of the commencement thereof, the Company
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 the QIU (who shall not, except
with the consent of the QIU, be counsel to the Company), and, after notice from
the indemnifying party to the QIU of its election so to assume the defense
thereof, the indemnifying party shall not be liable to the QIU under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by the QIU, in connection with the defense
thereof other than reasonable costs of investigation. The Company shall not,
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 QIU is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the QIU from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
QIU.
(c) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless Xxxxxxx, Sachs & Co., in its capacity as
QIU, under subsection (a) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then the
Company shall contribute to the amount paid or payable by the QIU 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 QIU 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 QIU failed to give the
notice required under subsection (b) above, then the Company shall contribute to
such amount paid or payable by the QIU 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 QIU 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 QIU on the other shall be deemed to be in the same proportion
as the total net proceeds from the
18
offering (before deducting expenses) received by the Company, as set forth in
the table on the cover page of the Prospectus, bear to the fee payable to the
QIU pursuant to Section 3 hereof. 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 QIU 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 QIU agree that it would not be just and equitable if contributions pursuant
to this subsection (c) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (c). The amount paid or payable by the QIU
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (c) 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. 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.
(d) The obligations of the Company under this Section 10 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 the QIU
within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a 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 the Company 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 it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such 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
of the Shares to be purchased at such 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 such 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-
19
eleventh of the aggregate number of all of the Shares to be purchased at such
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 (or, with
respect to the Second Time of Delivery, the obligations of the Underwriters to
purchase and of the Company to sell the Optional Shares) 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 7 hereof and the indemnity and contribution
agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the 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 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, or any
controlling person, and shall survive delivery of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 7 and 9 hereof; but, if for any other reason any Shares are
not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters 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 any Underwriter in respect of the Shares not so
delivered except as provided in Sections 7 and 9 hereof.
14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly as the Representatives or by Xxxxxxx, Xxxxx & Co. on behalf
of you as the Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx Sachs
International, Peterborough Court, 000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx,
Attention: Equity Capital Markets; 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; provided, however,
that any notice to an Underwriter pursuant to Section 9(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
by you upon request; provided, however, that notices under subsection 7(e) shall
be in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the representatives at Xxxxxxx Xxxxx
International, Peterborough Court, 000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx,
Attention: Equity Capital Markets, Telephone: x00 000 000 0000, Fax: x00 000 000
1550. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the QIU, the Company and, to the extent provided in
Sections 9 and 12 hereof, the officers and directors of the Company and each
person who controls the Company or the QUI or any Underwriter, and their
respective heirs, executors, administrators, successors and
20
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 any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
16. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York court, (ii)
waives, to the fullest extent it may effectively do so, any objection which it
may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company has appointed CT Corporation System, New York,
New York, as its authorized agent (the "Authorized Agent") upon whom process may
be served in any such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New York Court
by any Underwriter or by any person who controls any Underwriter, expressly
consents to the jurisdiction of any such court in respect of any such action,
and waives any other requirements of or objections to personal jurisdiction with
respect thereto. Such appointment shall be irrevocable. The Company represents
and warrants that the Authorized Agent has agreed to act as such agent for
service at process and 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 as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
17. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "JUDGMENT CURRENCY")
other than United States dollars, the Company, as the case may be, will
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which an Underwriter is
able to purchase United States dollars with the amount of the judgment currency
actually received by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Company and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "RATE OF EXCHANGE" shall include any premiums and costs of exchange payable
in connection with the purchase of or conversion into United States dollars.
18. 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.
19. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
21. 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.
22. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction, and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Underwriters imposing any
limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us [5] counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the
21
Underwriters, this letter and such acceptance hereof shall constitute a binding
agreement among each of the Underwriters and the Company. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is pursuant
to the authority set forth in a form of Agreement among Underwriters, the form
of which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
22
Exhibit 1.1
[Form of Underwriting Agreement]
Very truly yours,
CAPITAL MARITIME & TRADING CORP.
By:
-----------------------------------
Name:
Title:
Accepted as of the date hereof at London,
England:
XXXXXXX SACHS INTERNATIONAL
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX & COMPANY, INC.
HSBC SECURITIES (USA) INC.
NATIONAL BANK OF GREECE SA
By:
----------------------------------
(Xxxxxxx Xxxxx International)
On behalf of each of the Underwriters
Accepted solely in its capacity as QIU
with respect to Section 3
and Section 10 of this Agreement
as of the date hereof at New York,
New York:
XXXXXXX, SACHS & CO.
By:
----------------------------------
(Xxxxxxx, Xxxxx & Co.)
SCHEDULE I
NUMBER OF OPTIONAL
SHARES
TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ------------------
Xxxxxxx Sachs International ...........
Bear, Xxxxxxx & Co. Inc ...............
Xxxxxxxxx & Company, Inc ..............
HSBC Securities (USA) Inc .............
National Bank of Greece SA ............
[NAMES OF OTHER UNDERWRITERS] .........
--------------- ------------------
Total
=============== ==================
2
SCHEDULE II
3
ANNEX I
Pursuant to Section 8(k) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included in the Prospectus or the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the representatives
of the Underwriters (the "Representatives")[and are attached hereto];
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus as
indicated in their reports thereon copies of which [are attached hereto];
and on the basis of specified procedures including inquiries of officials
of the Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations, nothing came to their attention
that caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the [three] most recent fiscal years included in the Prospectus agrees
with the corresponding amounts (after restatements where applicable) in the
audited consolidated financial statements for such [three] fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 8 and 11 of Form 20-F and of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived any unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest financial statements
included in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in clause (E) there were any decreases in consolidated net revenues
or operating profit or the total or per share amounts of consolidated
net income or other items specified by the
F-2
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
decreases or increases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and
(vi) above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus, or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
F-3