SALES AGREEMENT
December 6, 2004
CANTOR XXXXXXXXXX & CO.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs/Ladies:
Excel Maritime Carriers Ltd., a corporation incorporated under the laws of
the Republic of Liberia (the "Company"), confirms its agreement (this
"Agreement") with Cantor Xxxxxxxxxx & Co. ("CF&Co"), as follows:
1. Issuance and Sale of Shares. The Company agrees that, from time to time
during the term of this Agreement, on the terms and subject to the conditions
set forth herein, it will issue and sell through CF&Co, acting as agent and/or
principal, up to 2,200,000 shares (the "Shares") of the Company's Class A common
stock, $0.01 par value ("Common Stock"); provided, however, that with respect to
"At-The-Market" sales (as defined in Section 3 hereof), the aggregate sales
price shall not exceed $32,110,000, which represents less than ten percent (10%)
of the aggregate market value of the outstanding Common Stock held by
non-affiliates of the Company in accordance with Rule 415 of the Securities Act
of 1933, as amended (the "Act"). Notwithstanding anything to the contrary
contained herein, the parties hereto agree that compliance with the limitations
set forth in this Section 1 on the number and aggregate sales price of Shares
issued and sold under this Agreement shall be the sole responsibility of the
Company, and CF&Co shall have no obligation in connection with such compliance.
The issuance and sale of Shares through CF&Co will be effected pursuant to the
Registration Statement (as defined below) filed by the Company and declared
effective by the Securities and Exchange Commission (the "Commission").
2. Placements. Each time that the Company wishes to issue and sell Shares
hereunder (each, a "Placement"), it will notify CF&Co of the proposed terms of
such Placement. If CF&Co wishes to accept such proposed terms (which it may
decline to do for any reason in its sole discretion) or, following discussions
with the Company, wishes to accept amended terms, CF&Co will issue to the
Company a written notice setting forth the terms that CF&Co is willing to
accept, including without limitation the number of Shares ("Placement Shares")
to be issued, the manner(s) in which sales are to be made, the date or dates on
which such sales are anticipated to be made, any minimum price below which sales
may not be made, and the capacity in which CF&Co may act in selling Shares
hereunder (as principal, agent or both) (a "Placement Notice"), the form of
which is attached hereto as Schedule 1. Subject to paragraph 3 below relating to
privately negotiated transactions for which the amount of compensation payable
to CF&Co shall be higher, the amount of compensation to be paid by the Company
to CF&Co with respect to each Placement shall be three percent (3%) of gross
proceeds for each Placement. The terms set forth in a Placement Notice will not
be binding on the Company or CF&Co unless and until the Company delivers written
notice of its acceptance of all of the terms of such Placement Notice (an
"Acceptance"); provided, however, that neither the Company nor CF&Co will be
bound by the terms of a Placement Notice unless the Company delivers to CF&Co an
Acceptance with respect thereto prior to 4:30 p.m. (New York time) on the
Business Day (as defined below) following the Business Day on which such
Placement Notice is delivered to the Company. It is expressly acknowledged and
agreed that neither the Company nor CF&Co will have any obligation whatsoever
with respect to a Placement or any Placement Shares unless and until CF&Co
delivers a Placement Notice to the Company and the Company accepts such
Placement Notice by means of an Acceptance, and then only upon the terms
specified therein and herein. In the event of a conflict between the terms of
this Agreement and the terms of a Placement Notice, the terms of the Placement
Notice will control.
3. Sale of Placement Shares by CF&Co. Subject to the terms and conditions
of this Agreement and the applicable Placement Notice, upon the Acceptance of a
Placement Notice, and unless the sale of the Placement Shares described therein
has been suspended or otherwise terminated in accordance with the terms of this
Agreement, CF&Co will use its commercially reasonable efforts consistent with
its normal trading and sales practices to sell such Placement Shares up to the
amount specified, and otherwise in accordance with the terms of such Placement
Notice. CF&Co will provide written confirmation to the Company no later than the
opening of the Trading Day next following the Trading Day on which it has made
sales of Placement Shares hereunder setting forth the number of Placement Shares
sold on such day, the compensation payable by the Company to CF&Co with respect
to such sales, and the Net Proceeds (as defined below) payable to the Company.
CF&Co may sell Placement Shares by any method permitted by law deemed to be an
"At the Market" offering as defined in Rule 415 of the Act, including without
limitation sales made directly on the American Stock Exchange (the "Exchange"),
on any other existing trading market for the Common Stock or to or through a
market maker. CF&Co may also sell Placement Shares in privately negotiated
transactions, for which the amount of compensation to be paid by the Company to
CF&Co shall be five and three-quarter percent (5 3/4%) of the gross proceeds
with respect to such privately negotiated sales. Notwithstanding anything to the
contrary set forth in this Agreement or a Placement Notice, the Company
acknowledges and agrees that (i) there can be no assurance that CF&Co will be
successful in selling any Placement Shares or as to the price at which any
Placement Shares are sold, if at all, and (ii) CF&Co will incur no liability or
obligation to the Company or any other person or entity if it does not sell
Placement Shares for any reason other than a failure by CF&Co to use its
commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Placement Shares as provided under this Section 3. For
the purposes hereof, "Trading Day" means any day on which Common Stock is
purchased and sold on the principal market on which the Common Stock is listed
or quoted.
4. Suspension of Sales. The Company or CF&Co may, upon notice to the other
party in writing or by telephone (confirmed immediately by verifiable facsimile
transmission), suspend any sale of Placement Shares; provided, however, that
such suspension shall not affect or impair either party's obligations with
respect to any Placement Shares sold hereunder prior to the receipt of such
notice. The Company agrees that no such notice shall be effective against CF&Co
unless it is made to one of the individuals named on Schedule 2 hereto, as such
Schedule may be amended from time to time.
5. Settlement.
(a) Settlement of Placement Shares. Unless otherwise specified in the
applicable Placement Notice, settlement for sales of Placement Shares will occur
on the third (3rd) Business Day (or such earlier day as is industry practice for
regular-way trading) following the date on which such sales are made (each a
"Settlement Date"). The amount of proceeds to be delivered to the Company on a
Settlement Date against the receipt of the Placement Shares sold ("Net
Proceeds") will be equal to the aggregate sales price at which such Placement
Shares were sold, after deduction for (i) CF&Co's commission, discount, or other
compensation for such sales payable by the Company pursuant to Section 2 or
Section 3 hereof, as the case may be, (ii) any other amounts due and payable by
the Company to CF&Co hereunder pursuant to Section 7(h) hereof, and (iii) any
transaction fees imposed by any governmental or self-regulatory organization in
respect of such sales.
(b) Delivery of Shares. On or before each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Placement
Shares being sold by crediting CF&Co's or its designee's account at The
Depository Trust Company through its Deposit Withdrawal Agent Commission System
or by such other means of delivery as may be mutually agreed upon by the parties
hereto and, upon receipt of such Placement Shares, which in all cases shall be
freely tradeable, transferable, registered shares in good deliverable form,
CF&Co will deliver the related Net Proceeds in same day funds delivered to an
account designated by the Company prior to the Settlement Date. If the Company
defaults in its obligation to deliver Placement Shares on a Settlement Date, the
Company agrees that in addition to and in no way limiting the rights and
obligations set forth in Section 10 hereto, it will (i) hold CF&Co harmless
against any loss, claim, damage, or expense (including reasonable legal fees and
expenses), as incurred, arising out of or in connection with such default by the
Company and (ii) pay to CF&Co any commission, discount, or other compensation to
which it would otherwise have been entitled absent such default.
6. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, CF&Co that:
(a) The Common Stock is registered pursuant to Section 12(b) of the
Exchange Act (as hereinafter defined) and the Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the Commission (the "Commission Documents") for the past two (2) years, and all
of such filings have been made on a timely basis. The Common Stock is currently
listed on the Exchange under the trading symbol "EXM". The Company meets the
requirements of Form F-3 under the Act and the rules and regulations thereunder
("Rules and Regulations") including but not limited to the transactions
requirements for an offering made by the issuer set forth in Instruction I.B.1
to Form F-3. The Company has filed a registration statement on Form F-3
(Registration Statement No. 333-120259) with respect to an aggregate of
$200,000,000 of securities of the Company, which was declared effective by the
Commission on November 19, 2004 (as amended or supplemented, the "Registration
Statement"). The Registration Statement, including the base prospectus contained
therein (the "Base Prospectus") was prepared by the Company in conformity with
the requirements of the Act and all applicable Rules and Regulations. A
prospectus supplement (the "Prospectus Supplement", and together with the Base
Prospectus and any amendment thereto and all documents incorporated therein by
reference, the "Prospectus") will be prepared by the Company in conformity with
the requirements of the Act and all applicable Rules and Regulations and will be
filed with the Commission in the manner and time frame required by the Act and
the Rules and Regulations. Any amendment or supplement to the Registration
Statement or Prospectus required by this Agreement will be so prepared and filed
by the Company, and, as applicable, the Company will use its best reasonable
efforts to cause it to become effective as soon as reasonably practicable. No
stop order suspending the effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been instituted or threatened by
the Commission. Copies of all filings made by the Company under the Act and all
Commission Documents that were filed with the Commission on or within the two
years prior to the date of this Agreement have either been delivered to CF&Co or
made available to CF&Co on the Commission's Electronic Data Gathering, Analysis,
and Retrieval system ("XXXXX"). Any reference herein to the Registration
Statement, the Prospectus, or any amendment or supplement thereto shall be
deemed to refer to and include the documents incorporated (or deemed to be
incorporated) by reference therein, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement
or Prospectus shall be deemed to refer to and include the filing after the
execution hereof of any document with the Commission deemed to be incorporated
by reference therein.
(b) Each part of the Registration Statement, when such part became or
becomes effective, and the Prospectus, on the date of filing thereof with the
Commission and at each Settlement Date, conformed or will conform in all
material respects with the requirements of the Act and the Rules and
Regulations; each part of the Registration Statement, when such part became or
becomes effective, did not or 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 not misleading; and the Prospectus, on the date
of filing thereof with the Commission and at each Settlement Date, did not or
will not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; except that the
foregoing shall not apply to statements or omissions in any such document made
in reliance on information furnished to the Company by CF&Co specifically
stating that it is intended for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto.
(c) The documents incorporated by reference in the Registration Statement
or the Prospectus, or any amendment or supplement thereto (the "Disclosure
Documents"), when they became effective under the Act or were filed with the
Commission under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as the case may be, conformed 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 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 Registration Statement or 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 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 not misleading; except that the foregoing will not apply to
statements or omissions in any such document made in reliance on information
furnished to the Company by CF&Co specifically stating that it is intended for
use in any such document
(d) The consolidated financial statements and financial schedules of the
Company and the subsidiaries of the Company listed on Schedule 3 hereto
(collectively, the "Subsidiaries", and each, individually, a "Subsidiary"),
together with the related notes set forth or incorporated by reference in the
Registration Statement and Prospectus, have been and will be prepared in
accordance with Regulation S-X under the Act and with United States generally
accepted accounting principles consistently applied at the times and during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present and will fairly present the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end adjustments).
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Liberia with full corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and Prospectus; and the
Company is duly qualified as a foreign entity to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure, individually or in the aggregate, to be so
qualified and be in good standing would not have a material adverse effect on
(i) the consolidated business, operations, properties, financial condition,
reputation, prospects or results of operations of the Company and its
Subsidiaries taken as a whole, or (ii) the ability of the Company to perform its
obligations under this Agreement and consummate the transactions contemplated
hereunder (collectively, a "Material Adverse Effect").
(f) Each Subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has full corporate power and authority to
own, lease and operate its properties and conduct its business as described in
the Registration Statement and Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to be
so qualified would not have a Material Adverse Effect.
(g) Except as described in the Prospectus, all of the vessels described in
the Prospectus as owned by the Company or by a Subsidiary of the Company are
owned directly by Subsidiaries of the Company. The Subsidiaries listed on
Schedule 3 hereto are the only subsidiaries of the Company and except for the
Subsidiaries and as otherwise listed on Schedule 3 hereto, the Company owns no
beneficial interest, directly or indirectly, in any corporation, partnership,
joint venture, limited liability company or other entity.
(h) Each of the Company and its Subsidiaries has (i) good and marketable
title to all of the properties and assets owned by it, free and clear of all
liens, charges, claims, security interests or encumbrances (collectively,
"Encumbrances"), other than Encumbrances that would not have a Material Adverse
Effect, and (ii) possession under all material leases to which it is party as
lessee. All leases to which the Company or any of its Subsidiaries is a party
are valid and binding and no material default has occurred and is continuing
thereunder, and no event or circumstance that with the passage of time or giving
of notice, or both, would constitute such a material default has occurred and is
continuing, and, to the best knowledge of the Company, no defaults by the
landlord exist under any such leases.
(i) The Company has authorized and outstanding capitalization as set forth
in the Prospectus under the caption "Capitalization" as of the dates indicated
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 and have been issued in compliance with all applicable United
States federal, state and foreign securities laws; and all of the issued shares
of capital stock of each Subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and the shares of
such Subsidiary are owned directly or indirectly by the Company, are held free
and clear of all Encumbrances.
(j) The Shares have been duly authorized and, when issued, delivered and
paid for pursuant to this Agreement, will be validly issued and fully paid and
non-assessable, free and clear of all Encumbrances and will be issued in
compliance with all applicable United States federal, state and foreign
securities laws; the capital stock of the Company, including the Common Stock,
conforms in all material respects to the description thereof contained in the
Registration Statement and the Common Stock, including the Placement Shares,
will conform to the description thereof contained in the Prospectus as amended
or supplemented. Neither the stockholders of the Company, nor any other person
or entity have any preemptive rights or rights of first refusal with respect to
the Placement Shares or other rights to purchase or receive any of the Placement
Shares or any other securities or assets of the Company, and no person has the
right, contractual or otherwise, to cause the Company to issue to it, or
register pursuant to the Act, any shares of capital stock or other securities or
assets of the Company upon the issuance or sale of the Placement Shares.
(k) Neither the Company nor any of its Subsidiaries has sustained since the
date of the latest audited financial statements included in its most recent
Annual Report on Form 20-F (and after the date hereof included or incorporated
by reference in the Prospectus) any material loss or interference with the
business of the Company and its Subsidiaries, taken as a whole, including
without limitation, 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; subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, (i)
neither the Company nor any of its Subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into any transactions, not in the
ordinary course of business, that are material to the Company and its
Subsidiaries taken as a whole, and (ii) since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus
there has not been any material change, on a consolidated basis, in the
authorized capital stock of the Company and its Subsidiaries, any material
increase in the short-term debt or long-term debt of the Company and its
Subsidiaries, on a consolidated basis, or any Material Adverse Effect, or any
development reasonably likely to cause a Material Adverse Effect.
(l) On the date hereof, and except as set forth in the Prospectus, there is
no legal, governmental, administrative or other claim, proceeding,
investigation, action, suit or inquiry pending, or, to the Company's knowledge,
threatened against or affecting the Company or any of its Subsidiaries or any of
their respective properties or to which the Company or any of its Subsidiaries
is or may be a party or to which any property of the Company or any of its
Subsidiaries is or may be the subject, or against any officer, director or
employee of the Company or any such Subsidiary in connection with such person's
employment therewith that, if determined adversely to the Company or any of its
Subsidiaries, could individually or in the aggregate have, or reasonably be
expected to have, a Material Adverse Effect on the general affairs, business,
prospects, management, consolidated financial position, stockholders' equity or
results of operations of the Company and its Subsidiaries taken as a whole.
Neither the Company nor any of its Subsidiaries is a party to or subject to the
provisions of, any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality which could have a Material Adverse Effect.
(m) There are no legal or governmental proceedings, contracts or documents
of the Company or any of its Subsidiaries that are required to be described in
or filed as exhibits to the Commission Documents, Registration Statement or any
of the documents incorporated by reference therein by the Act or the Exchange
Act or by the rules and regulations of the Commission thereunder that have not
been so described or filed as required.
(n) All necessary action has been duly and validly taken by the Company to
authorize the execution, delivery and performance of this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnification and contribution hereunder may be limited by applicable law
and except as enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether applied
in a proceeding in law or equity).
(o) Neither the Company nor any of its Subsidiaries is in violation of any
provisions of its charter, bylaws or any other governing document as amended and
in effect on and as of the date hereof or in default (and no event has occurred
which, with notice or lapse of time or both, would constitute a default) under
any indenture, mortgage, deed of trust, loan or credit agreement or any
provision of any instrument or contract to which it is a party or by which it is
bound that, individually or in the aggregate, could have a Material Adverse
Effect.
(p) Executing and delivering this Agreement and the issuance 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 contemplated herein will not
result in (i) a breach or violation of any of the terms and provisions of, or
constitute a default under, any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan or credit agreement or
other agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which any of them is bound or to which any of the property of the
Company or any of its Subsidiaries is subject, (ii) a violation of the Company's
charter or by-laws, 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 its properties or (iii) the creation of any material
Encumbrance upon any assets of the Company or of any of its Subsidiaries or the
triggering, solely as a result of the Company's execution and delivery of this
Agreement, of any preemptive or anti-dilution rights or rights of first refusal
or first offer, or any similar rights (whether pursuant to a "poison pill"
provision or otherwise), on the part of holders of the Company's securities or
any other person. Neither the Company nor any of its Subsidiaries or affiliates,
nor any person acting on its or their behalf, has issued or sold any shares of
Common Stock or securities or instruments convertible into, exchangeable for
and/or otherwise entitling the holder thereof to acquire shares of Common Stock
which would be integrated with the offer and sale of the Shares hereunder.
(q) The Company and its Subsidiaries have not violated and are in
compliance with all laws, statutes, ordinances, regulations, rules and orders of
any foreign, federal, state or local government and any other governmental
department or agency, and any judgment, decision, decree or order of any court
or governmental agency, department or authority, except for such violations or
noncompliance which, individually or in the aggregate, would not have a Material
Adverse Effect.
(r) The Company and its Subsidiaries possess all such licenses, permits,
consents, orders, certificates or authorizations issued by the appropriate
federal, state, foreign or local regulatory agencies or judicial or governmental
bodies that are necessary to conduct their business as described in the
Prospectus except for licenses, permits, consents, orders, certificates,
authorizations, approvals, franchises or rights, the absence of which,
individually or in the aggregate, would not have a Material Adverse Effect; the
Company and its Subsidiaries have not received any notice of proceedings or
investigations relating to the revocation or modification of any such licenses,
permits, consents, orders, certificates, authorizations, approvals, franchises
or rights which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect. No consent,
approval, authorization, permit, or order of, or filing with, any court or
governmental or self regulatory agency or body is required for the issue and
sale of the Shares and the consummation by the Company of the transactions
contemplated by this Agreement, except the filing with the Commission of the
Registration Statement (including the Prospectus) and amendments and supplements
to the Registration Statement and Prospectus related to the issue and sale of
the Shares and such consents, approvals, authorizations, registrations or
qualifications as have already been obtained or made or as may be required under
state securities or Blue Sky laws.
(s) On the date hereof, and after the date hereof other than as set forth
in the Prospectus, the Company and its Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is prudent, reasonable and
customary for companies engaged in similar businesses in similar industries;
neither the Company nor any of its Subsidiaries has received notice from any
insurer or agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance; all such
insurance is outstanding and in full force and effect and neither the Company
nor any Subsidiary has received any notice of cancellation or proposed
cancellation relating to such insurance.
(t) On the date hereof, and after the date hereof other than as set forth
in the Prospectus, the Company and each of its Subsidiaries have obtained all
environmental permits, licenses and other authorizations required by federal,
state, foreign and local law, 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"), in order to conduct
their businesses as described in the Prospectus except where the failure to
obtain a particular environmental permit, license, or authorization, has not or
could not reasonably be expected to, either individually or in the aggregate,
result in a Material Adverse Effect; the Company and each of its Subsidiaries
are conducting their businesses in compliance with such permits, licenses and
authorizations and with applicable environmental laws, except where the failure
to be in compliance would not have a Material Adverse Effect; and, except as
described in the Prospectus, the Company is not in violation of any federal,
state, foreign or local law or regulation relating to the storage, handling,
disposal, release or transportation of hazardous or toxic materials except for
such violations or noncompliance which, individually or in the aggregate, would
not have a Material Adverse Effect.
(u) In the ordinary course of its business, the Company conducts a periodic
review of the effect of Environmental Laws on the business, operations and
properties of the Company and its Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities which, individually or in
the aggregate, would not have a Material Adverse Effect.
(v) Ernst & Young, which has audited the financial statements of the
Company and its Subsidiaries included in the Prospectus, is an independent
public accountant as required by the Act and the Rules and Regulations.
(w) No forward looking statement within the meaning of Section 27A of the
Act and Section 21E of the Exchange Act contained in the Commission Documents,
the Registration Statement or the Prospectus has been made or reaffirmed without
a reasonable basis or has been disclosed other than in good faith.
(x) The Company and each of its Subsidiaries own or possess sufficient
legal rights to all patents, trademarks, service marks, tradenames, copyrights,
trade secrets, licenses, information and proprietary rights and processes
necessary for their respective businesses as now conducted (collectively, the
"Company Intellectual Property Rights") without any conflict with, or
infringement of, the rights of others, except where the failure to own or
possess such Company Intellectual Property Rights, individually or in the
aggregate, would not have a Material Adverse Effect. Neither the Company nor any
of its Subsidiaries has received any written communications alleging that the
Company or any of its Subsidiaries has violated or, by conducting its business,
would violate any of the patents, trademarks, service marks, service marks,
tradenames, copyrights, trade secrets or other proprietary rights or processes
of any other person or entity. All Company Intellectual Property Rights are
enforceable and there is no existing infringement by any person of such Company
Intellectual Property Rights. All patent applications that have been filed by
the Company or any of its Subsidiaries with the Patent and Trademark Office have
been duly filed by the Company or such Subsidiary, as applicable, has taken all
actions reasonably necessary to maintain the prosecution of such patent
applications.
(y) On each Settlement Date and each Filing Date (as defined in Section
7(m) below), the Company shall be deemed to have confirmed (i) the accuracy and
completeness, as of such date, of each representation and warranty made by it in
this Agreement, as if each such representation and warranty were made on and as
of such date, and (ii) that the Company has complied with all of the agreements
to be performed by it hereunder at or prior to such date.
(z) The Company was not, for the immediately preceding taxable year,
treated as, will not, for the current taxable year, be treated as, and does not
anticipate that, for any subsequent taxable year, it will be treated as a
"passive foreign investment company," a "foreign investment company" or a
"foreign personal holding company" for United States federal income tax
purposes.
(aa) The Company has filed all United States federal, state and local and
foreign income tax returns which have been required to be filed, except in any
case in which the failure to so file would not have a Material Adverse Effect.
(bb) The Company has paid all United States federal, state and local and
foreign taxes required to be paid and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing would otherwise be
delinquent, except, in all cases, for any such tax, assessment, fine or penalty
that is being contested in good faith and except in any case in which the
failure to so pay would not result in a Material Adverse Effect.
(cc) The Company is not a party to any agreement with an agent or
underwriter for any other "At-the-Market" or continuous equity transaction.
(dd) The Company acknowledges and agrees that CF&Co has informed the
Company that CF&Co may, to the extent permitted under the Act and the Exchange
Act, purchase and sell shares of Common Stock for its own account while this
Agreement is in effect provided that (i) no such purchase or sales shall take
place while a Placement Notice is in effect (except to the extent CF&Co may
engage in sales of Placement Shares purchased or deemed purchased from the
Company as a "riskless principal" or in a similar capacity) and (ii) the Company
shall not be deemed to have authorized or consented to any such purchases or
sales by CF&Co.
7. Covenants of the Company. The Company covenants and agrees with CF&Co
that:
(a) After the date of this Agreement and during the period in which a
prospectus relating to the Shares is required to be delivered by CF&Co under the
Act, the Company will notify CF&Co promptly of the time when any subsequent
amendment to the Registration Statement has been filed with the Commission and
has become effective or any subsequent supplement to the Prospectus has been
filed and of any request by the Commission for any amendment or supplement to
the Registration Statement or Prospectus or for additional information; it will
prepare and file with the Commission, promptly upon CF&Co's request, any
amendments or supplements to the Registration Statement or Prospectus that, in
CF&Co's reasonable opinion, may be necessary or advisable in connection with the
distribution of the Shares by CF&Co (provided, however that the failure of CF&Co
to make such request shall not relieve the Company of any obligation or
liability hereunder, or affect CF&Co's right to rely on the representations and
warranties made by the Company in this Agreement); the Company will submit to
CF&Co a copy of any amendment or supplement to the Registration Statement or
Prospectus relating to the Common Stock of the Company or a security convertible
into the Common Stock of the Company a reasonable period of time before the
filing; and it will furnish to CF&Co at the time of filing thereof a copy of any
document that upon filing is deemed to be incorporated by reference in the
Registration Statement or Prospectus; and the Company will cause each amendment
or supplement to the Prospectus to be filed with the Commission as required
pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations
or, in the case of any document to be incorporated therein by reference, to be
filed with the Commission as required pursuant to the Exchange Act, within the
time period prescribed.
(b) The Company will advise CF&Co, promptly after it receives notice or
obtains knowledge thereof, of the issuance or threatened issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceeding
for any such purpose; and it will promptly use its commercially reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such a stop order should be issued.
(c) Within the time during which a prospectus relating to the Shares is
required to be delivered by CF&Co under the Act, the Company will comply with
all requirements imposed upon it by the Act and by the Rules and Regulations, as
from time to time in force, and will file on or before their respective due
dates all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Sections 13(a), 13(c),
14, 15(d), if applicable, or any other provision of or under the Exchange Act.
If during such period any event occurs 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 a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, or if during
such period it is necessary to amend or supplement the Registration Statement or
Prospectus to comply with the Act, the Company will immediately notify CF&Co to
suspend the offering of Shares during such period and the Company will promptly
amend or supplement the Registration Statement or Prospectus (at the expense of
the Company) so as to correct such statement or omission or effect such
compliance.
(d) The Company will use its commercially reasonable efforts to cause the
Shares to be listed on the Exchange and to qualify the Shares for sale under the
securities laws of such jurisdictions as CF&Co designates and to continue such
qualifications in effect so long as required for the distribution of the Shares;
provided that the Company shall not be required in connection therewith to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction.
(e) The Company will furnish to CF&Co and its counsel (at the expense of
the Company) copies of the Registration Statement, the Prospectus (including all
documents incorporated by reference therein) and all amendments and supplements
to the Registration Statement or Prospectus that are filed with the Commission
during the period in which a prospectus relating to the Shares is required to be
delivered under the Act (including all documents filed with the Commission
during such period that are deemed to be incorporated by reference therein), in
each case as soon as reasonably practicable and in such quantities as CF&Co may
from time to time reasonably request and, at CF&Co's request, will also furnish
copies of the Prospectus to each exchange or market on which sales of Shares may
be made.
(f) The Company will furnish to CF&Co for a period of three (3) years from
the date of this Agreement such information as reasonably requested by CF&Co
regarding the Company or its Subsidiaries.
(g) The Company will make generally available to its security holders as
soon as practicable, but in any event not later than 15 months after the end of
the Company's current fiscal quarter, an earnings statement covering a 12-month
period that satisfies the provisions of Section 11(a) of the Act and Rule 158 of
the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, will pay all expenses incident to
the performance of its obligations hereunder, not including fees of counsel for
CF&Co, but including expenses relating to (i) the preparation, printing and
filing of the Registration Statement and each amendment and supplement thereto,
of each Prospectus and of each amendment and supplement thereto, (ii) the
preparation, issuance and delivery of the Shares, (iii) the fees and
disbursements of the Company's counsel and accountants in connection with
negotiating this agreement and performing its obligations hereunder, (iv) the
qualification of the Shares under securities laws in accordance with the
provisions of Section 7(d) of this Agreement, including filing fees in
connection therewith, (v) the printing and delivery to CF&Co of copies of the
Prospectus and any amendments or supplements thereto, and of this Agreement,
(vi) the fees and expenses incurred in connection with the listing or
qualification of the Shares for trading on the Exchange, or (vii) filing fees
and expenses, if any, of the Commission and the National Association of
Securities Dealers, Inc. Corporate Finance Department or (viii) the cost of
publication of a tombstone ad in The Wall Street Journal.
(i) The Company will use the Net Proceeds as described in the Prospectus.
(j) Without the written consent of CF&Co, the Company will not, directly or
indirectly, offer to sell, sell, contract to sell, grant any option to sell or
otherwise dispose of any shares of Common Stock (other than the Shares offered
pursuant to the provisions of this Agreement) or securities convertible into or
exchangeable for Common Stock, warrants or any rights to purchase or acquire,
Common Stock during the period beginning on the fifth (5th) Trading Day
immediately prior to the date on which any Acceptance of a Placement Notice is
delivered to CF&Co hereunder and ending on the fifth (5th) Trading Day
immediately following the final Settlement Date with respect to Shares sold
pursuant to such Placement Notice; and without the written consent of CF&Co, the
Company will not directly or indirectly in any other "at-the-market" or
continuous equity transaction offer to sell, sell, contract to sell, grant any
option to sell or otherwise dispose of any shares of Common Stock (other than
the Shares offered pursuant to the provisions of this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any rights to
purchase or acquire, Common Stock prior to the later of the termination of this
Agreement and the thirtieth (30th) day immediately following the final
Settlement Date with respect to Shares sold pursuant to such Placement Notice;
provided, however, that such restrictions will not be applicable to the
Company's issuance or sale of (i) Common Stock, options to purchase shares of
Common Stock or Common Stock issuable upon the exercise of options, pursuant to
any employee or director stock option or benefits plan, stock ownership plan or
dividend reinvestment plan (but not shares subject to a waiver to exceed plan
limits in its dividend reinvestment plan) of the Company whether now in effect
or hereafter implemented, and (ii) Common Stock issuable upon conversion of
securities or the exercise of warrants, options or other rights in effect or
outstanding on the date hereof, and disclosed in writing to CF&Co.
(k) The Company will, at any time during the term of this Agreement, as
supplemented from time to time, advise CF&Co immediately after it shall have
received notice or obtained knowledge thereof, of any information or fact that
would alter or affect any opinion, certificate, letter or other document
provided to CF&Co pursuant to this Agreement.
(l) The Company will cooperate with any bring-down due diligence review
conducted by CF&Co or its agents, including, without limitation, providing
information and making available documents and senior corporate officers, as
CF&Co may reasonably request; provided, however, that the Company shall be
required to make available senior corporate officers only (i) at the Company's
principal offices and (ii) during the Company's ordinary business hours.
(m) The Company agrees that on such dates as the Rules and Regulations
shall require, the Company will (i) file a prospectus supplement with the
Commission under the applicable paragraph of Rule 424(b) under the Act (each and
every filing under Rule 424(b), a "Filing Date"), which prospectus supplement
will set forth, within the relevant period, the amount of Shares sold through
CF&Co, the Net Proceeds to the Company and the compensation payable by the
Company to CF&Co and (ii) deliver such number of copies of each such prospectus
supplement to each exchange or market on which such sales were effected as may
be required by the rules or regulations of such exchange or market.
(n) On the date that the Registration Statement is declared effective or on
each Filing Date and each time that (i) the Registration Statement shall be
amended or the Prospectus supplemented (other than a supplement filed pursuant
Rule 424(b) under the Act that contains solely the information confirmed to the
Company by CF&Co pursuant to Section 7(m) above) or (ii) there is filed with the
Commission any document incorporated by reference into the Registration
Statement or the Prospectus, the Company shall furnish or cause to be furnished
to CF&Co forthwith a certificate dated the date of filing with the Commission of
such supplement, or other document, or the date of the effectiveness of the
Registration Statement or such amendment, as the case may be, in the form
attached hereto as Exhibit 8(i) to the effect that the representations and
warranties made by the Company in this Agreement are true and correct on such
date as though made at and as of such date (except that such statements shall be
deemed to relate to the Registration Statement or the Prospectus as amended and
supplemented to such time) and that the Company has complied with all of the
agreements to be performed by it at or prior to such date.
(o) On the date that the Registration Statement is declared effective or,
in connection with the Initial Placement, such date thereafter as CF&Co shall
request, and each time that (i) the Registration Statement is amended or the
Prospectus supplemented (other than a supplement filed pursuant Rule 424(b)
under the Act that contains solely the information confirmed to the Company by
CF&Co pursuant to Section 7(m) above) or (ii) there is filed with the Commission
any document incorporated by reference into the Prospectus, the Company shall
furnish or cause to be furnished forthwith to CF&Co and to counsel to CF&Co a
written opinion of Xxxxxx & Xxxxxx LLP, counsel to the Company ("Company
Counsel"), or other counsels satisfactory to CF&Co, and Liberian counsel to the
Company and such other counsel to be determined and reasonably satisfactory to
CF&Co practicing law in jurisdictions in which subsidiaries of the Company may
then be organized ("Special Counsel"), dated the date of effectiveness of the
Registration Statement or amendment, or the date of filing with the Commission
of such supplement or other document, as the case may be, in form and substance
satisfactory to CF&Co and its counsel, in substantially the forms attached
hereto as Exhibits 8(e)(1) and 8(f)(1) respectively (for the date of
effectiveness of the Registration Statement) and Exhibits 8(e)(2) and 8(f)(2)
respectively (for subsequent dates), but modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion.
(p) On the date that the Registration Statement is declared effective or,
in connection with the Initial Placement, such date thereafter as CF&Co shall
request, and each time that the Registration Statement is amended or the
Prospectus supplemented to include additional amended financial information or
there is filed with the Commission any document incorporated by reference into
the Registration Statement or the Prospectus which contains additional amended
financial information, the Company shall cause its independent accountants
reasonably satisfactory to CF&Co, forthwith to furnish CF&Co letters (the
"Comfort Letters"), dated the date of effectiveness of the Registration
Statement or such amendment, or the date of filing of such supplement or other
document with the Commission, as the case may be, in form and substance
satisfactory to CF&Co, (i) confirming that they are independent public
accountants within the meaning of the Act and are in compliance with the
applicable requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of such date, the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings (the first such
letter, the "Initial Comfort Letter") and (iii) updating the Initial Comfort
Letter with any information which would have been included in the Initial
Comfort Letter had it been given on such date and modified as necessary to
relate to the Registration Statement and the Prospectus, as amended and
supplemented to the date of such letter.
(q) The Company will not, directly or indirectly, (i) take any action
designed to cause or result in, or that constitutes or might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares or (ii)
sell, bid for, or purchase the Shares, or pay anyone any compensation for
soliciting purchases of the Shares other than CF&Co.
Notwithstanding anything to the contrary contained herein, the parties
hereto agree that the obligations of the Company under Sections 7(n), 7(o) and
7(p) shall terminate at the earlier of (i) the termination of the Agreement
pursuant to Section 12 and (ii) upon the issuance, sale, placement and
settlement of all of the Shares hereunder.
8. Covenants of CF&Co. The Company covenants and agrees with CF&Co that:
(a) CF&Co will not issue any press release or place any tombstone ad
related to a Placement made under this Agreement unless a copy thereof has been
submitted to the Company and the Company has not reasonably objected thereto.
(b) CF&Co acknowledges that from time to time, in its capacity as sales
agent under this Agreement, CF&Co may be in possession of material non-public
information with respect to the Company or its securities, and that it is aware
of the applicable provisions of the United States securities laws and the rules
and regulations of the Securities and Exchange Commission promulgated thereunder
applicable to purchases and sales of securities of the Company for its own
account at such times. CF&Co agrees that is shall not, directly or indirectly,
for its own account, purchase, sell or otherwise engage in transactions
involving, relating to or based upon any Company securities at any such time
when it is in receipt of material non-public information.
9. Conditions to CF&Co's Obligations. The obligations of CF&Co hereunder
with respect to a Placement will be subject to the continuing accuracy and
completeness of the representations and warranties made by the Company herein
and in the applicable Placement Notices, to the due performance by the Company
of its obligations hereunder, to the completion by CF&Co of a due diligence
review satisfactory to CF&Co in its reasonable judgment, and to the continuing
satisfaction (or waiver by CF&Co in its sole discretion) of the following
additional conditions:
(a) The Registration Statement shall have become effective and shall be
available for the resale of (i) all Placement Shares issued pursuant to all
prior Placements and not yet sold by CF&Co and (ii) all Placement Shares
contemplated to be issued by the Placement Notice relating to such Placement.
(b) None of the following events shall have occurred and be continuing: (i)
receipt by the Company of any request for additional information from the
Commission or any other federal or state governmental, administrative or self
regulatory authority during the period of effectiveness of the Registration
Statement, the response to which would require any amendments or supplements to
the Registration Statement or the Prospectus; (ii) the issuance by the
Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; (iii) receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; (iv) the
occurrence of any event that makes any statement made in the Registration
Statement or the Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in the Registration Statement, related
prospectus or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and (v) the Company's reasonable determination that a post-effective amendment
to the Registration Statement would be appropriate.
(c) CF&Co shall not have advised the Company that the Registration
Statement or Prospectus, or any amendment or supplement thereto, contains an
untrue statement of fact that in CF&Co's opinion is material, or omits to state
a fact that in CF&Co's opinion is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(d) Except as contemplated and appropriately disclosed in the Prospectus,
or disclosed in the Company's reports filed with the Commission, in each case at
the time the applicable Placement Notice is delivered, there shall not have been
any material change, on a consolidated basis, in the authorized capital stock of
the Company and its Subsidiaries, or any Material Adverse Effect, or any
development that may reasonably be expected to cause a Material Adverse Effect,
or a downgrading in or withdrawal of the rating assigned to any of the Company's
securities by any rating organization or a public announcement by any rating
organization that it has under surveillance or review its rating of any of the
Company's securities, the effect of which, in the sole judgment of CF&Co
(without relieving the Company of any obligation or liability it may otherwise
have), is so material as to make it impracticable or inadvisable to proceed with
the offering of the Placement Shares on the terms and in the manner contemplated
in the Prospectus.
(e) CF&Co shall have received the opinions of Company Counsel required to
be delivered pursuant Section 7(o) on or before the date on which such delivery
of such opinion is required pursuant to Section 7(o).
(f) CF&Co shall have received the opinion of Special Counsel required to be
delivered pursuant to Section 7(o) on or before the date on which such delivery
of such opinion is required pursuant to Section 7(o).
(g) CF&Co shall have received the Comfort Letter required to be delivered
pursuant Section 7(p) on or before the date on which such delivery of such
letter is required pursuant to Section 7(p).
(h) CF&Co shall have received the certificate required to be delivered
pursuant to Section 7(n) on or before the date on which delivery of such
certificate is required pursuant to Section 7(n).
(i) The Shares shall have been duly listed, subject to notice of issuance,
on the Exchange, and trading in the Common Stock shall not have been suspended
on such market.
(j) In connection with the Initial Placement, and on each date on which the
Company is required to deliver a certificate pursuant to Section 7(n), the
Company shall have furnished to CF&Co such appropriate further information,
certificates, opinions and documents as CF&Co may reasonably request. All such
opinions, certificates, letters and other documents will be in compliance with
the provisions hereof. The Company will furnish CF&Co with such conformed copies
of such opinions, certificates, letters and other documents as CF&Co shall
reasonably request.
(k) There shall not have occurred any event that would permit CF&Co to
terminate this Agreement pursuant to Section 12(a).
10. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless CF&Co, the directors,
officers, partners, employees and agents of CF&Co and each person, if any, who
(i) controls CF&Co within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, or (ii) is controlled by or is under common control with CF&Co
(a "CF&Co Affiliate") from and against any and all losses, claims, liabilities,
expenses and damages (including, but not limited to, any and all investigative,
legal and other expenses reasonably incurred in connection with, and any and all
amounts paid in settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when
incurred, to which CF&Co, or any such person, may become subject under the Act,
the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities, expenses
or damages arise out of or are based, directly or indirectly, on (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus, or in any application or other
document executed by or on behalf of the Company or based on written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Shares under the securities laws thereof or filed with the
Commission, (ii) the omission or alleged omission to state in such document a
material fact required to be stated in it or necessary to make the statements in
it not misleading or (iii) any breach by the Company of any of its
representations, warranties and agreements contained in this Agreement; provided
that this indemnity agreement shall not apply to the extent that such loss,
claim, liability, expense or damage arises from the sale of the Shares pursuant
to this Agreement and is caused directly by an untrue statement or omission made
in reliance on and in conformity with information relating to CF&Co and
furnished in writing to the Company by CF&Co expressly stating that such
information is intended for inclusion in any document described in clause (a)(i)
above. This indemnity agreement will be in addition to any liability that the
Company might otherwise have.
(b) CF&Co agrees to indemnify and hold harmless the Company and its
directors and each officer of the Company who signed the Registration Statement,
and each person, if any, who (i) controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act or (ii) is controlled by
or is under common control with the Company (a "Company Affiliate") against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in Section 10(a), as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendments thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information relating to CF&Co furnished to the
Company by CF&Co expressly stating that such information is intended for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Any party that proposes to assert the right to be indemnified under
this Section 10 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 10, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve the indemnifying party from (i) any liability that it might have to any
indemnified party otherwise than under this Section 10 and (ii) any liability
that it may have to any indemnified party under the foregoing provision of this
Section 10 unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be entitled
to participate in and, to the extent that it elects by delivering written notice
to the indemnified party promptly after receiving notice of the commencement of
the action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the employment of
counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based on
advice of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction at any one time for all such indemnified party or parties. All such
fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not, in any
event, be liable for any settlement of any action or claim effected without its
written consent. No indemnifying party shall, without the prior written consent
of each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to
the matters contemplated by this Section 10 (whether or not any indemnified
party is a party thereto), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising or that may arise out of such claim, action or proceeding.
Notwithstanding any other provision of this Section 10(c), if at any time an
indemnified party shall have properly requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for which it is
entitled to reimbursement pursuant to this Section 10(c), such indemnifying
party agrees that it shall be liable for any settlement effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into, and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement; provided that
an indemnifying party shall not be liable for any such settlement effected
without its consent if such indemnifying party, at least five days prior to the
date of such settlement, (1) reimburses such indemnified party in accordance
with such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 10 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or CF&Co, the Company and
CF&Co will contribute to the total losses, claims, liabilities, expenses and
damages (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution
received by the Company from persons other than CF&Co, such as persons who
control the Company within the meaning of the Act, officers of the Company who
signed the Registration Statement and directors of the Company, who also may be
liable for contribution) to which the Company and CF&Co may be subject in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company on the one hand and CF&Co on the other. The relative benefits
received by the Company on the one hand and CF&Co on the other hand shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
compensation (before deducting expenses) received by CF&Co from the sale of
Shares on behalf of the Company. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and CF&Co, on the other, with
respect to the statements or omission which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or CF&Co, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and CF&Co agree that it would not be just and equitable if
contributions pursuant to this Section 10(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability, expense, or
damage, or action in respect thereof, referred to above in this Section 10(d)
shall be deemed to include, for the purpose of this Section 10(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim to the extent consistent
with Section 10(c) hereof. Notwithstanding the foregoing provisions of this
Section 10(d), CF&Co shall not be required to contribute any amount in excess of
the commissions received by it under this Agreement and no person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 10(d), any person who
controls a party to this Agreement within the meaning of the Act, and any
officers, directors, partners, employees or agents of CF&Co, will have the same
rights to contribution as that party, and each officer of the Company who signed
the Registration Statement will have the same rights to contribution as the
Company, subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 10(d), will notify any such party or parties from whom
contribution may be sought, but the omission to so notify will not relieve that
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 10(d) except to the extent that the
failure to so notify such other party materially prejudiced the defenses of the
party from whom contribution is sought. Except for a settlement entered into
pursuant to the last sentence of Section 10(c) hereof, no party will be liable
for contribution with respect to any action or claim settled without its written
consent if such consent is required pursuant to Section 10(c) hereof.
11. Representations and Agreements to Survive Delivery. All representations
and warranties of the Company herein or in certificates delivered pursuant
hereto shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of CF&Co, any controlling persons, or the
Company (or any of their respective officers, directors or controlling persons),
(ii) delivery and acceptance of the Shares and payment therefor or (iii) any
termination of this Agreement.
12. Termination.
(a) CF&Co shall have the right by giving notice as hereinafter specified at
any time to terminate this Agreement if (i) any Material Adverse Effect, or any
development that has actually occurred and that is reasonably expected to cause
a Material Adverse Effect has occurred which, in the reasonable judgment of
CF&Co, may materially impair the investment quality of the Shares, (ii) the
Company shall have failed, refused or been unable, at or prior to any Settlement
Date, to perform any agreement on its part to be performed hereunder, (iii) any
other condition of CF&Co's obligations hereunder is not fulfilled, or (iv) any
suspension or limitation of trading in the Shares or in securities generally on
the Exchange shall have occurred. Any such termination shall be without
liability of any party to any other party except that the provisions of Section
7(f), Section 7(h), Section 7(j), Section 10, Section 11, Section 17 and Section
18 hereof shall remain in full force and effect notwithstanding such
termination. If CF&Co elects to terminate this Agreement as provided in this
Section 12, CF&Co shall provide the required notice as specified herein.
(b) The Company shall have the right, by giving twenty (20) days' notice as
hereinafter specified to terminate this Agreement in its sole discretion at any
time following the period of six (6) months after the date of this Agreement.
Any such termination shall be without liability of any party to any other party
except that the provisions of Section 7(f), Section 7(h), Section 7(j), Section
10, Section 11, Section 17 and Section 18 hereof shall remain in full force and
effect notwithstanding such termination.
(c) In addition to, and without limiting CF&Co's rights under Section
12(a), CF&Co shall have the right, by giving twenty (20) days' notice as
hereinafter specified to terminate this Agreement in its sole discretion at any
time following the period of six (6) months after the date of this Agreement.
Any such termination shall be without liability of any party to any other party
except that the provisions of Section 7(f), Section 7(h), Section 7(j), Section
10, Section 11, Section 17 and Section 18 hereof shall remain in full force and
effect notwithstanding such termination.
(d) This Agreement shall remain in full force and effect unless terminated
pursuant to Sections 12(a), 12(b) or 12(c) above or otherwise by mutual
agreement of the parties; provided that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 7(f), Section 7(h), Section
7(j), Section 10, Section 11, Section 17 and Section 18 shall remain in full
force and effect.
(e) Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt of such
notice by CF&Co or the Company, as the case may be. If such termination shall
occur prior to the Settlement Date for any sale of Placement Shares, such
Placement Shares shall settle in accordance with the provisions of this
Agreement.
13. Notices. All notices or other communications required or permitted to
be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and if sent to CF&Co, shall be delivered to CF&Co at Cantor
Xxxxxxxxxx & Co., 000 Xxxx 00 Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no. (212)
000-0000, Attention: Xxxx Xxxxxx, Managing Director, ITD-Investment Banking,
with a copy to Xxxxxx X. Xxxxxx, President and Chief Executive Officer,
Institutional Equities, at the same address, with a copy to Xxxxxx, Xxxxx &
Bockius LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no. (000) 000-0000,
Attention: Xxxxxxx X. Xxxxxxx, Esq.; or if sent to the Company, shall be
delivered to Excel Maritime Carriers Ltd., Par La Ville Road, Xxxxxxxx XX JX,
Bermuda, fax no. 00 000 00 00 000, Attention: Xxxxxxxxxxxxx Xxxxxxxxx, President
and Chief Executive Officer, with a copy to Xxxxxx & Xxxxxx LLP, Xxx Xxxxxxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no. (000) 000-0000, Attention: Xxxx X.
Xxxxx, Esq. Each party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new address for
such purpose. Each such notice or other communication shall be deemed given (i)
when delivered personally or by verifiable facsimile transmission (with an
original to follow) on or before 4:30 p.m., eastern time, on a Business Day or,
if such day is not a Business Day, on the next succeeding Business Day, (ii) on
the next Business Day after timely delivery to a nationally-recognized overnight
courier and (iii) on the Business Day actually received if deposited in the U.S.
mail (certified or registered mail, return receipt requested, postage prepaid).
For purposes of this Agreement, "Business Day" shall mean any day on which the
Exchange and commercial banks in the city of New York are open for business.
14. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company and CF&Co and their respective successors and
the affiliates, controlling persons, officers and directors referred to in
Section 10 hereof. References to any of the parties contained in this Agreement
shall be deemed to include the successors and permitted assigns of such party.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement. Neither party
may assign its rights or obligations under this Agreement without the prior
written consent of the other party, provided, however, that CF&Co may assign its
rights and obligations hereunder to an affiliate of CF&Co without obtaining the
Company's consent.
15. Adjustments for Stock Splits. The parties acknowledge and agree that
all share related numbers contained in this Agreement shall be adjusted to take
into account any stock split, stock dividend or similar event effected with
respect to the Shares.
16. Entire Agreement; Amendment; Severability. This Agreement (including
all schedules and exhibits attached hereto and placement notices issued pursuant
hereto) constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, among the
parties hereto with regard to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended except pursuant to a written instrument
executed by the Company and CF&Co. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
17. Applicable Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York without regard to the principles of conflicts of laws. Each party
hereby irrevocably submits to the non-exclusive jurisdiction of the state and
federal courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection with any transaction
contemplated hereby, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof (certified or registered mail, return
receipt requested) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
18. Waiver of Jury Trial. The Company and CF&Co each hereby irrevocably
waives any right it may have to a trial by jury in respect of any claim based
upon or arising out of this agreement or any transaction contemplated hereby.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed
Agreement by one party to the other may be made by facsimile transmission.
[Remainder of Page Intentionally Blank]
If the foregoing correctly sets forth the understanding between the Company
and CF&Co, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and CF&Co.
Very truly yours,
EXCEL MARITIME CARRIERS LTD.
By:
-------------------------------
Name: Xxxxxxxxxxxxx Xxxxxxxxx
Title: President and Chief
Executive Officer
ACCEPTED as of the date
first-above written:
CANTOR XXXXXXXXXX & CO.
By:
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer, Institutional Equities
SCHEDULE 1
CANTOR XXXXXXXXXX & CO.
000 Xxxx 00 Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Date
Xx. Xxxxxxxxxxxxx Xxxxxxxxx
President and Chief Executive Officer
Excel Maritime Carriers Ltd.
Par La Ville Road
Xxxxxxxx XX JX, Bermuda
VIA FACSIMILE
FORM OF PLACEMENT NOTICE
Dear _________:
This confirms our agreement to sell up to [Insert Number] shares of Common
Stock, par value $0.01 per share, of Excel Maritime Ltd., a corporation
incorporated under the laws of the Republic of Liberia (the "Company"), pursuant
to the SALES AGREEMENT between the Company and Cantor Xxxxxxxxxx & Co.("CF&Co"),
dated December 6, 2004 (the "Agreement"). Terms used herein but not defined
herein shall have the meanings set forth in the Agreement.
Number of Shares to be Sold:
-----------------------------------------
Minimum Price at which
Shares may be Sold:
-----------------------------------------
Date(s) on which Shares
may be Sold:
-----------------------------------------
Underwriting Discount/
Commission:
-----------------------------------------
Manner and capacity in which
shares are to be Sold:
-----------------------------------------
By executing this draw down notice, the parties agree to comply with the
aforementioned agreements, and to execute the transaction as described herein:
Placements. The terms set forth in this Placement Notice will not be binding on
the Company or CF&Co unless and until the Company delivers written notice of its
acceptance of all of the terms of such Placement Notice (an "Acceptance");
provided, however, that neither the Company nor CF&Co will be bound by the terms
of a Placement Notice unless the Company delivers to CF&Co an Acceptance with
respect thereto prior to 4:30 p.m. (New York time) on the Business Day following
the Business Day on which such Placement Notice is delivered to the Company. In
the event of a conflict between the terms of the Agreement and the terms of a
Placement Notice, the terms of this Placement Notice will control.
Sale of Placement Shares by CF&Co. Subject to the terms and conditions of the
Agreement, upon the Acceptance of a Placement Notice, and unless the sale of the
Placement Shares described therein has been suspended or otherwise terminated in
accordance with the terms of the Agreements, CF&Co will use its commercially
reasonable efforts consistent with its normal trading and sales practices to
sell such Placement Shares up to the amount specified, and otherwise in
accordance with the terms of this Placement Notice.
CF&Co will provide written confirmation to the Company no later than the opening
of the Trading Day next following the Trading Day on which it has made sales of
Placement Shares hereunder setting forth the number of Placement Shares sold on
such day, the compensation payable by the Company to CF&Co with respect to such
sales, and the Net Proceeds (as defined below) payable to the Company.
Notwithstanding anything to the contrary set forth in herein or in the
Agreement, the Company acknowledges and agrees that (i) there can be no
assurance that CF&Co will be successful in selling Placement Shares, and (ii)
CF&Co will incur no liability or obligation to the Company or any other person
or entity if it does not sell Placement Shares for any reason other than a
failure by CF&Co to use its commercially reasonable efforts consistent with its
normal trading and sales practices to sell such Placement Shares. For the
purposes hereof, "Trading Day" means any day on which the Common Stock is
purchased and sold on the principal market on which the Common Stock is listed
or quoted.
Suspension of Sales. The Company or CF&Co may, upon notice to the other party in
writing or by telephone (confirmed immediately by verifiable facsimile
transmission), suspend any sale of Placement Shares; provided, however, that
such suspension shall not affect or impair either party's obligations with
respect to any Placement Shares sold hereunder prior to the receipt of such
notice. The Company agrees that no such notice shall be effective against CF&Co
unless it is made to one of the individuals named on Schedule 2 to the
Agreement, as such Schedule may be amended from time to time.
Settlement of Placement Shares. Unless otherwise specified herein, settlement
for sales of Placement Shares will occur on the third (3rd) Business Day (or
such earlier day as is industry practice for regular-way trading) following the
date on which such sales are made (each a "Settlement Date"). The amount of
proceeds to be delivered to the Company on a Settlement Date against the receipt
of the Placement Shares sold ("Net Proceeds") will be equal to the aggregate
sales price at which such Shares were sold, after deduction for (i) CF&Co's
commission, discount, or other compensation for such sales payable by the
Company pursuant to Section 2 or Schedule 3 of the Agreement, (ii) any other
amounts due and payable by the Company to CF&Co pursuant to Section 7(h) of the
Agreement, and (iii) any transaction fees imposed by any governmental or
self-regulatory organization in respect of such sales.
Delivery of Shares. On or before each Settlement Date, the Company will, or will
cause its transfer agent to, electronically transfer the Placement Shares being
sold by crediting CF&Co's or its designee's account at The Depository Trust
Company through its Deposit Withdrawal Agent Commission System or by such other
means of delivery as may be mutually agreed upon by the parties hereto and, upon
receipt of such Shares, which in all cases shall be freely tradeable,
transferable, registered shares in good deliverable form, CF&Co will deliver the
related Net Proceeds in same day funds delivered to an account designated by the
Company prior to the Settlement Date. If the Company defaults in its obligation
to deliver Shares on a Settlement Date, the Company agrees that in addition to
and in no way limiting the rights and obligations set forth in Section 10 of the
Agreement, it will (i) hold CF&Co harmless against any loss, claim, damage, or
expense (including reasonable legal fees and expenses), as incurred, arising out
of or in connection with such default by the Company and (ii) pay to CF&Co any
commission, discount, or other compensation to which it would otherwise have
been entitled absent such default.
Very truly yours,
CANTOR XXXXXXXXXX & CO
By:
--------------------------------
Name:
Title:
By executing this Acceptance the undersigned certifies that (i) all of the
representations and warranties contained in the Agreement are true and correct
on the date hereof as if made on the date hereof, (ii) the Board of Directors of
the Undersigned has approved the terms and conditions of this Placement Notice,
(iii) the Company is in full compliance with its obligations under the Agreement
and (iv) all of the conditions precedent to the consummations of the sales
contemplated by this Placement Notice has been satisfied. The undersigned
undertakes to promptly notify CF&Co in the event that the above certification
shall cease to be true and correct during any period in which sales may be made
under this Placement Notice.
ACCEPTED as of the date first-above written:
EXCEL MARITIME CARRIERS LTD.
By:
------------------------------
Name: Xxxxxxxxxxxxx Xxxxxxxxx
Title: President and Chief
Executive Officer
SCHEDULE 2
CANTOR XXXXXXXXXX & CO.
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxx Xxxxx
Xxxxxxx XxXxxxxx
SCHEDULE 3
Subsidiaries of the Company
---------------------------
Point Holdings Ltd
Maryville Maritime Inc.
Metropolis Maritime Inc.
Permoflex Corporation
Embroidered Shipping Inc.
King Tut Finance Inc.
Xxxxxxx Int. Ltd
Storler Shipping Company Limited
Becalm Shipping Company Limited
Maldex Shipping Company Limited
Tortola Shipping Company Limited
Centel Shipping Company Limited
Exhibit 8(e)(1)
Matters to be covered by initial Company Counsel Opinion
--------------------------------------------------------
(i) The Company and each of its [Liberian] Subsidiaries
[_______________________] (each a "Subsidiary" and collectively, the
"Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the of the Republic of Liberia
with all requisite corporate power and authority to own, lease and operate its
properties and other assets and to conduct its business as described in the
Registration Statement or Prospectus;
(ii) The authorized capital stock of the Company and each Subsidiary
conforms as to legal matters to the description thereof contained in the
Registration Statement or Prospectus;
(iii) The Sales Agreement (the "Sales Agreement") between the Company and
Cantor Xxxxxxxxxx & Co. ("CF&Co") has been duly authorized, executed, and
delivered by the Company;
(iv) The Company's execution and delivery of, and performance of its
obligations under the Sales Agreement do not (i) violate or breach the Articles
of Incorporation or By-laws or any similar governing instrument of the Company
or any [Liberian] Subsidiary, (ii) violate, breach or result in a default under,
any existing obligation of the Company or any Liberian Subsidiary under any
agreement filed as an exhibit to or incorporated by reference in the Company's
most recent report on Form 20-F or in the Registration Statement, or (iii)
breach or otherwise violate any existing obligation of the Company or any
Liberian Subsidiary under any order, judgment or decree of any Liberian or
United States federal court, governmental entity or administrative agency
binding on the Company or any Liberian Subsidiary or breach or violate any law,
statute, rule, regulation or ordinance of the Republic of Liberia, the United
States or the State of New York, or (iv) result in the creation or imposition of
any lien, charge, claim or encumbrance upon any property or assets of the
Company or any Liberian Subsidiary, except, with respect to (ii) and (iv) above,
for breaches, violations, defaults, liens, charges, claims or encumbrances that
would not reasonably be expected to have a material adverse effect on the
assets, business, operations, earnings, properties or condition of the Company
or any Liberian Subsidiary;
(v) No consent, approval, authorization, order, license, registration or
qualification of or filing with, any Liberian, United States federal or New York
State court or governmental agency or body is required for the consummation of
the issuance and sale of the Shares and the transactions contemplated by the
Sales Agreement by the Company, except such as have been obtained under the
Securities Act and such as may be required under state securities laws;
(vi) The Shares to be issued and sold by the Company pursuant to the
Placement Notice have been duly authorized, and, when issued and delivered to
and paid for by the purchasers thereof in accordance with the terms of the Sales
Agreement and a Placement Notice, will be validly issued, fully paid and
nonassessable and, to the best of our knowledge, free of preemptive rights;
(vii) The Registration Statement has become effective under the Securities
Act and, to the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted by the Commission;
(viii) The Registration Statement, when it became effective, and the
Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission, complied as to form in all material respects with
the requirements for registration statements on Form F-3 under the Securities
Act and the rules and regulations of the Commission thereunder, and each of the
documents incorporated by reference in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, on the date of filing
thereof with the Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; it being understood, however, that we express no opinion
with respect to the financial statements, schedules or other financial data
included or incorporated by reference in, or omitted from, the Registration
Statement or the Prospectus or any other document;
(ix) The statements set forth in the Prospectus under the captions "Risk
Factors," "Description of Capital Stock," "Tax Considerations" and in the
Registration Statement in Item 8, insofar as such statements constitute a
summary of legal matters or legal conclusions, are accurate in all material
respects;
(x) To the best of our knowledge and other than as set forth in the
Prospectus, there are no legal or governmental investigations, actions, suits or
proceedings pending or threatened or affecting the Company or any Liberian
Subsidiary or any of their properties or to which the Company or any Liberian
Subsidiary is or may be a party or to which any property of the Company or any
Liberian Subsidiary is or may be the subject that are required to be described
in the Prospectus that are not described as required;
(xi) To the best of our knowledge, there is no document or contract of a
character required to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits thereto by the Securities Act other
than those described or referred to in the Registration Statement or the
Prospectus or filed as exhibits thereto, and the descriptions thereof or
references thereto are accurate in all material respects;
(xii) 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 CF&Co
to Liberia or to any political subdivision or taxing authority thereof or
therein in connection with the sale and delivery by the Company of the Shares to
or for the respective accounts of CF&Co;
(xiii) Neither the Company nor any of the Liberian Subsidiaries is, or
following consummation of the transactions contemplated by Sales Agreement and
the application of the proceeds of the sale of an any Placement Shares will be,
an "investment company," as such term is defined in the Investment Company Act
of 1940, as amended.
In addition, we have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, and your representatives, at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement and the Prospectus and
have not made any independent check or verification thereof, during the course
of such participation, no facts came to our attention that caused us to believe
that the Registration Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, as of its date, 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; it being understood that we express no belief with respect
to the financial statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement or the
Prospectus.
* Note: "Registration Statement" and "Prospectus" will be defined to
include documents incorporated by reference therein ("Incorporated Documents").
Exhibit 8(e)(2)
Matters to be covered by subsequent Company Counsel Opinions
------------------------------------------------------------
(i) The Company and each of its Liberian Subsidiaries
[_______________________] (each a "Subsidiary" and collectively, the
"Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the of the Republic of Liberia
with all requisite corporate power and authority to own, lease and operate its
properties and other assets and to conduct its business as described in the
Registration Statement or Prospectus;
(ii) The authorized capital stock of the Company and each Subsidiary
conforms as to legal matters to the description thereof contained in the
Registration Statement or Prospectus;
(iii) The Sales Agreement (the "Sales Agreement") between the Company and
Cantor Xxxxxxxxxx & Co. ("CF&Co") has been duly authorized, executed, and
delivered by the Company;
(iv) The Company's execution and delivery of, and performance of its
obligations under the Sales Agreement do not (i) violate or breach the Articles
of Incorporation or By-laws or any similar governing instrument of the Company
or any Liberian Subsidiary, (ii) violate, breach or result in a default under,
any existing obligation of the Company or any Liberian Subsidiary under any
agreement filed as an exhibit to or incorporated by reference in the Company's
most recent report on Form 20-F or in the Registration Statement, or (iii)
breach or otherwise violate any existing obligation of the Company or any
Liberian Subsidiary under any order, judgment or decree of any Liberian or
United States federal court, governmental entity or administrative agency
binding on the Company or any Liberian Subsidiary or breach or violate any law,
statute, rule, regulation or ordinance of the Republic of Liberia, the United
States or the State of New York, or (iv) result in the creation or imposition of
any lien, charge, claim or encumbrance upon any property or assets of the
Company or any Liberian Subsidiary, except, with respect to (ii) and (iv) above,
for breaches, violations, defaults, liens, charges, claims or encumbrances that
would not reasonably be expected to have a material adverse effect on the
assets, business, operations, earnings, properties or condition of the Company
or any Liberian Subsidiary;
(v) No consent, approval, authorization, order, license, registration or
qualification of or filing with, any Liberian, United States federal or New York
State court or governmental agency or body is required for the consummation of
the issuance and sale of the Shares and the transactions contemplated by the
Sales Agreement by the Company, except such as have been obtained under the
Securities Act and such as may be required under state securities laws;
(vi) The Shares to be issued and sold by the Company pursuant to the
Placement Notice have been duly authorized, and, when issued and delivered to
and paid for by the purchasers thereof in accordance with the terms of the Sales
Agreement and a Placement Notice, will be validly issued, fully paid and
nonassessable and, to the best of our knowledge, free of preemptive rights;
(vii) The Registration Statement has become effective under the Securities
Act and, to the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted by the Commission;
(viii) The Registration Statement, when it became effective, and the
Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission, complied as to form in all material respects with
the requirements for registration statements on Form F-3 under the Securities
Act and the rules and regulations of the Commission thereunder, and each of the
documents incorporated by reference in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, on the date of filing
thereof with the Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; it being understood, however, that we express no opinion
with respect to the financial statements, schedules or other financial data
included or incorporated by reference in, or omitted from, the Registration
Statement or the Prospectus or any other document;
(ix) The statements set forth in the Prospectus under the captions "Risk
Factors," "Description of Capital Stock," "Tax Considerations" and in the
Registration Statement in Item 8, insofar as such statements constitute a
summary of legal matters or legal conclusions, are accurate in all material
respects;
(x) To the best of our knowledge and other than as set forth in the
Prospectus, there are no legal or governmental investigations, actions, suits or
proceedings pending or threatened or affecting the Company or any Liberian
Subsidiary or any of their properties or to which the Company or any Liberian
Subsidiary is or may be a party or to which any property of the Company or any
Liberian Subsidiary is or may be the subject that are required to be described
in the Prospectus that are not described as required;
(xi) To the best of our knowledge, there is no document or contract of a
character required to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits thereto by the Securities Act other
than those described or referred to in the Registration Statement or the
Prospectus or filed as exhibits thereto, and the descriptions thereof or
references thereto are accurate in all material respects;
(xii) 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 CF&Co
to Liberia or to any political subdivision or taxing authority thereof or
therein in connection with the sale and delivery by the Company of the Shares to
or for the respective accounts of CF&Co;
(xiii) Neither the Company nor any of the Liberian Subsidiaries is, or
following consummation of the transactions contemplated by Sales Agreement and
the application of the proceeds of the sale of an any Placement Shares will be,
an "investment company," as such term is defined in the Investment Company Act
of 1940, as amended.
In addition, we have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, and your representatives, at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement and the Prospectus and
have not made any independent check or verification thereof, during the course
of such participation, no facts came to our attention that caused us to believe
that the Registration Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, as of its date, 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; it being understood that we express no belief with respect
to the financial statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement or the
Prospectus.
* Note: "Registration Statement" and "Prospectus" will be defined to
include documents incorporated by reference therein ("Incorporated Documents").
Exhibit 8(f)(1)
Matters to be covered by Special Counsel Opinion (Cyprus)
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(i) Each of the Company's Cypriot Subsidiaries has been duly incorporated
and is validly existing as a limited liability company under the laws of Cyprus,
is in good standing, is duly qualified and authorized to do business and has all
requisite power and authority necessary to own and operate its respective vessel
and to conduct its business as described in the Registration Statement or
Prospectus (except where the failure to so qualify would not in the aggregate,
have a material adverse effect on the Company and the Company's Cypriot
Subsidiaries taken as a whole); and all of the authorized share capital of each
Cypriot Subsidiary has been duly and validly issued, is fully paid, and is owned
directly or indirectly by the Company, free and clear of any liens or statutory
pledge (such counsel being entitled to rely in respect of matters of fact upon
certificates of officers of the Company or its Cypriot Subsidiaries, provided
that such counsel shall state that they believe that both CF&Co and they are
justified in relying upon such certificates);
(ii) Each of the vessels listed on a schedule to such opinion (being the
vessels owned by the Company's Cypriot Subsidiaries) is duly and validly
registered as a vessel in the sole ownership of the entity indicated as the
"Owning Entity" of such vessel on such schedule under the laws of Cyprus; that
each of said entities has good and marketable title thereto, free of defects of
title of record and free of registered encumbrances, except as indicated on such
schedule or as disclosed in the Registration Statement or Prospectus; and that
each such vessel is in good standing with respect to the payment of past and
current taxes, fees and other amounts payable under the laws of Cyprus as would
affect its registry with the Registrar of Cyprus Ships;
(iii) To the best knowledge of such counsel, there are no legal or
governmental actions, suits, proceedings or investigations pending or
threatened, against the Cypriot Subsidiaries, or as to which the business,
assets, or property of such Subsidiaries would be subject or bound that are
required to be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement that are not described or filed
as required; and
(iv) The issuance and sales of the Shares by the Company pursuant to the
Sales Agreement and the consummation of the transactions contemplated therein
will not result in the violation by any Cypriot Subsidiary of the Company of its
Memorandum and Articles of Association or any Cypriot statute, rule or
regulation known to such counsel to be applicable to any such Subsidiary.
Exhibit 8(f)(2)
Matters to be covered by Subsequent Special Counsel Opinion (Cyprus)
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(i) Each of the Company's Cypriot Subsidiaries has been duly incorporated
and is validly existing as a limited liability company under the laws of Cyprus,
is in good standing, is duly qualified and authorized to do business and has all
requisite power and authority necessary to own and operate its respective vessel
and to conduct its business as described in the Registration Statement or
Prospectus (except where the failure to so qualify would not in the aggregate,
have a material adverse effect on the Company and the Company's Cypriot
Subsidiaries taken as a whole); and all of the authorized share capital of each
Cypriot Subsidiary has been duly and validly issued, is fully paid, and is owned
directly or indirectly by the Company, free and clear of any liens or statutory
pledge (such counsel being entitled to rely in respect of matters of fact upon
certificates of officers of the Company or its Cypriot Subsidiaries, provided
that such counsel shall state that they believe that both CF&Co and they are
justified in relying upon such certificates)
(ii) Each of the vessels listed on a schedule to such opinion (being the
vessels owned by the Company's Cypriot Subsidiaries) is duly and validly
registered as a vessel in the sole ownership of the entity indicated as the
"Owning Entity" of such vessel on such schedule under the laws of Cyprus; that
each of said entities has good and marketable title thereto, free of defects of
title of record and free of registered encumbrances, except as indicated on such
schedule or as disclosed in the Registration Statement or Prospectus; and that
each such vessel is in good standing with respect to the payment of past and
current taxes, fees and other amounts payable under the laws of Cyprus as would
affect its registry with the Registrar of Cyprus Ships;
(iii) To the best knowledge of such counsel, there are no legal or
governmental actions, suits, proceedings or investigations pending or
threatened, against the Cypriot Subsidiaries, or as to which the business,
assets, or property of such Subsidiaries would be subject or bound that are
required to be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement that are not described or filed
as required; and
(iv) The issuance and sales of the Shares by the Company pursuant to the
Sales Agreement and the consummation of the transactions contemplated therein
will not result in the violation by any Cypriot Subsidiary of the Company of its
Memorandum and Articles of Association or any Cypriot statute, rule or
regulation known to such counsel to be applicable to any such Subsidiary.
Exhibit 8(i)
OFFICER'S CERTIFICATE
I, Xxxxxxxxxxxxx Xxxxxxxxx, the President and Chief Executive Officer of
Excel Maritime Carriers Ltd. ("Company"), a Liberian corporation, do hereby
certify in such capacity and on behalf of the Company, pursuant to Section 7(n)
of the Sales Agreement dated December 6, 2004 (the "Sales Agreement") between
the Company and Cantor Xxxxxxxxxx & Co., to the best of my knowledge that:
(i) The representations and warranties of the Company in Section 6 of the
Sales Agreement are true and correct on and as of the date hereof, with the same
force and effect as if expressly made on and as of the date hereof; and
(ii) The Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied pursuant to the Sales
Agreement at or prior to the date hereof.
By:
--------------------------
Xxxxxxxxxxxxx Xxxxxxxxx
President and Chief
Executive Officer
December ___, 2004
02545.0001 #532092
