FORM 6-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16 of
the Securities Exchange Act of 1934
For the month of April 2007
Commission File Number: 001-32458
DIANA SHIPPING INC.
(Translation of registrant's name into English)
Diana Shipping Inc.
Pendelis 16
175 64 Palaio Faliro
Athens, Greece
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports
under cover of Form 20-F or Form 40-F.
Form 20-F [ X ] Form 40-F [ ]
Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)(1): ___
Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)7: ___
Indicate by check mark whether the registrant by furnishing the information
contained in this Form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes [ ] No [ X ]
If "Yes" is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b): ________.
INFORMATION CONTAINED IN THIS FORM 6-K REPORT
Attached to this Report on Form 6-K as Exhibit 99.1 is the underwriting
agreement relating to an underwritten public offering of Diana Shipping Inc.'s
(the "Company") common stock being offered by the Company and certain of its
selling stockholders (the "Offering"), which is incorporated by reference into
the Company's Registration Statement on Form F-3 filed on December 13, 2006
(file no. 333-139306) as Exhibit 1.1 thereunder.
Attached to this Report on Form 6-K as Exhibit 99.2 is a press release
issued by the Company on March 29, 2007 announcing the pricing of the Offering.
Attached to this Report on Form 6-K as Exhibit 99.3 is a schedule of the
expenses relating to the Offering.
Exhibit 99.1
EXECUTION COPY
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DIANA SHIPPING INC.
10,500,000 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: March 28, 2007
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TABLE OF CONTENTS
Page
1. Representations and Warranties of the Company, the Management
Selling Stockholders and the Principal.................................1
2. Additional Representations and Warranties of the Management
Selling Stockholders and the Principal................................14
3. Representations and Warranties of the Additional Selling Stockholder..17
4. Purchase, Sale and Delivery of the Shares.............................21
5. Offering..............................................................23
6. Certain Covenants of the Parties......................................24
7. Payment of Expenses...................................................30
8. Conditions of Underwriters' Obligations...............................31
9. Indemnification.......................................................35
10.Contribution..........................................................38
11.Underwriter Default...................................................40
12.Company or Selling Stockholders' Default..............................40
13.Survival of Representations and Agreements............................41
14.Effective Date of Agreement; Termination..............................42
15.Notices...............................................................42
16.Parties...............................................................43
17.Governing Law and Jurisdiction; Waiver of Jury Trial..................43
18.Acknowledgement of Information Provided...............................43
19.Counterparts..........................................................44
20.Amendments or Waivers.................................................44
21.Headings..............................................................44
22.Time is of the Essence................................................44
SCHEDULES
Schedule I - Underwriters................................................Sch I-1
Schedule II - Management Selling Stockholders...........................Sch II-1
Schedule III - Additional Selling Stockholder..........................Sch III-1
Schedule IV - Subsidiaries..............................................Sch IV-1
Schedule V - Persons Subject to Lock-up..................................Sch V-1
Schedule VI - Issuer Free Writing Prospectuses..........................Sch VI-1
ANNEXES
Annex I - Form of Opinion of U.S. Counsel to the Company, the
Management Selling Stockholders and the
Principal ....................................................A-I-1
Annex II - Form of Reliance Letter of the Company's
U.S. Tax Counsel.............................................A-II-1
Annex III - Form of Opinion of the Company's Marshall Islands Counsel...A-III-1
Annex IV - Form of Opinion of the Company's Panamanian Counsel and
Counsel to Corozal Compania Naviera S.A..................... A-IV-1
Annex V - Form of Opinion of the Company's Greek Counsel................A-V-1
Annex VI - Form of Opinion of the Company's Bahamas Counsel.............A-VI-1
Annex VII - Form of Opinion of the Company's Special Marshall Islands
Counsel......................................................A-VII-1
Annex VIII - Form of Opinion of the Additional Selling Stockholder's
Bahamian Counsel...........................................A-VIII-1
Annex IX - Form of Opinion of the Additional Selling Stockholder's
U.S. Counsel.................................................A-IX-1
Annex X - Form of Opinion of Liberian Counsel to Ironwood
Trading Corp..................................................A-X-1
Annex XI - Form of Lock-Up Agreement....................................A-XI-l
EXHIBITS
Exhibit I - Form of Custody Agreement...................................E - I-1
Exhibit II - Form of Power of Attorney..................................E - II-1
DIANA SHIPPING INC.
UNDERWRITING AGREEMENT
March 28, 2007
J.P. MORGAN SECURITIES INC.
WACHOVIA CAPITAL MARKETS, LLC
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, New York 10172
and
c/o Wachovia Capital Markets, LLC
375 Park Avenue
New York, New York 10152
Ladies and Gentlemen:
Diana Shipping Inc., a corporation existing under the laws of the Republic
of the Marshall Islands (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several underwriters named in
Schedule I hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section 11
hereof), for whom J.P. Morgan Securities Inc. and Wachovia Capital Markets LLC
are acting as representatives (the "Representatives"), an aggregate of 8,250,000
shares of common stock, par value $0.01 per share, of the Company (the "Common
Stock") and, at the option of the Underwriters, up to an additional 1,575,000
shares of the Common Stock, and the stockholders of the Company named in
Schedule II hereto (the "Management Selling Stockholders") and the stockholder
of the Company named in Schedule III hereto (the "Additional Selling
Stockholder" and, together with the Management Selling Stockholders, the
"Selling Stockholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of 2,250,000 shares of Common
Stock. The aggregate 10,500,000 of Common Shares to be sold by the Company and
the Selling Stockholders is herein called the "Firm Shares" and the aggregate of
1,575,000 additional Common Shares to be sold by the Company is herein called
the "Additional Shares." The Firm Shares and the Additional Shares are herein
referred to as the "Shares." The Shares are more fully described in the
Registration Statement and Prospectus referred to below. The offering and sale
of the Shares contemplated hereby is referred to herein as the "Offering."
The Management Selling Stockholders are directly or indirectly owned by Mr.
Simeon Palios (the "Principal") and the Principal has joined this Agreement for
the purposes indicated herein.
1. Representations and Warranties of the Company, the Management Selling
Stockholders and the Principal. The Company, each Management Selling Stockholder
and the Principal jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), relating to the Shares on Form F-3 (No.
333-139306) (the "Initial Registration Statement"); and such Initial
Registration Statement, and any post-effective amendment thereto, each in the
form previously delivered to the Representatives, have been declared effective
by the Commission, in such form. Other than a registration statement, if any,
increasing the size of the Offering (a "Rule 462(b) Registration Statement")
filed pursuant to Rule 462(b) under the Securities Act, which will become
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission. The
various parts of the Initial Registration Statement and the 462(b) Registration
Statement, if any, including all exhibits thereto and including (i) the
information contained in the form of final prospectus supplement filed with the
Commission pursuant to Rule 424(b) under the Securities Act in accordance with
Section 6(a) hereof and deemed by virtue of Rule 430A, 430B or 430C under the
Securities Act to be part of the Initial Registration Statement at the time it
became effective under the Securities Act with respect to the Underwriters and
(ii) the documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Registration
Statement became or hereafter becomes effective under the Securities Act with
respect to the Underwriters, each as amended at the time such part of the
Initial Registration Statement or Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective under the Securities Act with respect to
the Underwriters, are hereafter collectively referred to as the "Registration
Statement." Any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the effective date of the Initial
Registration Statement that is incorporated by reference therein. No stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission.
The final prospectus supplement relating to the Shares, in the form first
filed with the Commission pursuant to Rule 424(b) under the Securities Act, is
hereafter referred to as the "Prospectus." Any preliminary prospectus supplement
relating to the Shares included in the Initial Registration Statement or filed
with the Commission pursuant to Rule 424 under the Securities Act is hereafter
referred to as a "Preliminary Prospectus"; and the Preliminary Prospectus
relating to the Shares, as amended or supplemented immediately prior to the
Applicable Time (as defined below), is hereafter referred to as the "Pricing
Prospectus." Any "issuer free writing prospectus" (as defined in Rule 433 under
the Securities Act) relating to the Shares is hereafter referred to as an
"Issuer Free Writing Prospectus"; and the Pricing Prospectus, as supplemented by
the Issuer Free Writing Prospectuses, if any, attached and listed in Schedule VI
hereto, taken together, are hereafter referred to collectively as the "Pricing
Disclosure Package." Any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 6 of Form F-3 that were filed under the
Exchange Act on or before the date of such Preliminary Prospectus or Prospectus,
as the case may be, and expressly incorporated by reference therein; and any
reference herein to any "amendment" or "supplement" to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include (i) the
filing of any document under the Exchange Act after the date of such Preliminary
Prospectus or Prospectus, as the case may be, which is incorporated therein by
reference and (ii) any such "amendment" or "supplement" so filed.
The Company was not an "ineligible issuer" (as defined in Rule 405 under
the Securities Act) as of the eligibility determination date for purposes of
Rules 164 and 433 under the Securities Act with respect to the offering of the
Shares contemplated hereby.
All references in this Agreement to the Registration Statement, the Rule
462(b) Registration Statement, any Preliminary Prospectus, Issuer Free Writing
Prospectus or the Prospectus, or any amendments or supplements to any of the
foregoing, shall be deemed to include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System
("EDGAR") as superseded by a subsequent filing, if applicable.
(b) The Registration Statement complies, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will comply, in all material respects with the applicable provisions
of the Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder (the "Rules and Regulations"), and do not and will not, as
of the applicable effective date as to each part of the Registration Statement
and as of the applicable filing date as to the Prospectus and any amendment
thereof or supplement thereto and as of the Closing Date (as hereinafter
defined) and any Additional Closing Date (as hereinafter defined), if any,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; provided, however, that this representation and warranty
shall not apply to any information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter specifically for use therein. The
parties hereto agree that such information provided by or on behalf of any
Underwriter consists solely of the material referred to in Section 18 hereof.
(c) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing thereof,
complied in all material respects with the applicable provisions of the
Securities Act, the Exchange Act and the Rules and Regulations, and did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
information contained in or omitted from any Preliminary Prospectus or any
Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter specifically for use therein. The parties hereto agree that such
information provided by or on behalf of any Underwriter consists solely of the
material referred to in Section 18 hereof.
(d) For purposes of this Agreement, the "Applicable Time" is 6:00 P.M.
(New York City time) on the date of this Agreement. The Pricing Disclosure
Package, as of the Applicable Time, did not, and as of the Closing Date and the
Additional Closing Date, if any (each as hereinafter defined), will not, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Each Issuer Free
Writing Prospectus complies in all material respects with the applicable
provisions of the Securities Act and the Rules and Regulations, and does not
include information that conflicts with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus, and each
Issuer Free Writing Prospectus listed in Schedule VI hereto, as supplemented by
and taken together with the Pricing Disclosure Package as of the Applicable
Time, did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. No representation and warranty is made in this Section 1(d) with
respect to any information contained in or omitted from the Pricing Disclosure
Package or any Issuer Free Writing Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Underwriter specifically for use therein. The parties hereto agree that such
information provided by on behalf of any Underwriter consists solely of the
material referred to in Section 18 hereof.
(e) Ernst & Young (Hellas) Certified Auditor Accountants S.A., who
have certified the financial statements included or incorporated by reference in
the Registration Statement, the Pricing Prospectus or the Prospectus, are an
independent registered public accounting firm as required by the Securities Act,
the Exchange Act and the Rules and Regulations.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Pricing Prospectus, except as
disclosed in the Pricing Prospectus, the Company has not declared, paid or made
any dividends or other distributions of any kind on or in respect of its capital
stock and there has been no material adverse change or any development involving
a prospective material adverse change, whether or not arising from transactions
in the ordinary course of business, in or affecting (i) the business, condition
(financial or otherwise), results of operations, stockholders' equity or
properties of the Company and each subsidiary of the Company listed in Schedule
IV hereto (the "Subsidiaries" and each, a "Subsidiary"), individually or taken
as a whole; (ii) the long-term debt or capital stock of the Company or any of
its Subsidiaries; or (iii) the Offering or the consummation of any other
transaction contemplated by this Agreement, the Registration Statement or the
Prospectus (a "Material Adverse Change"). Since the date of the latest balance
sheet included, or incorporated by reference, in the Registration Statement and
the Pricing Prospectus, neither the Company nor any Subsidiary has incurred or
undertaken any liabilities or obligations, whether direct or indirect,
liquidated or contingent, matured or unmatured, or entered into any
transactions, including any acquisition or disposition of any business or asset,
which are material to the Company and the Subsidiaries, individually or taken as
a whole, except for liabilities, obligations and transactions which are
disclosed in the Registration Statement and the Pricing Prospectus.
(g) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Pricing Prospectus in the column headed "Actual,"
the column headed "As Adjusted" and, after giving effect to the sale of Firm
Shares, the column headed "As Further Adjusted" under the caption
"Capitalization." All of the issued and outstanding shares of capital stock of
the Company are fully paid and non-assessable and have been duly and validly
authorized and issued, in compliance with all applicable state, federal and
foreign securities laws and not in violation of or subject to any preemptive or
similar right that does or will entitle any person, upon the issuance or sale of
any security, to acquire from the Company, any Subsidiary or any of the Selling
Stockholders any Common Stock or other security of the Company or any of its
subsidiaries or any security convertible into, or exercisable or exchangeable
for, Common Stock or any other such security (any "Relevant Security"), except
for such rights as may have been fully satisfied or waived prior to the
effectiveness of the Registration Statement.
(h) The Shares to be delivered on the Closing Date and the Additional
Closing Date, if any, by the Company will be, as of such date, duly and validly
issued, fully paid and non-assessable, and issued in compliance with all
applicable state, federal and foreign securities laws and will not have been
issued in violation of or subject to any preemptive or similar right that
entitles any person to acquire any Relevant Security from the Company, any
Subsidiary or any of the Selling Stockholders upon a sale of Shares in the
Offering. The Shares to be delivered on the Closing Date by the Selling
Stockholders have been duly and validly issued, are fully paid and
non-assessable, and have been issued in compliance with all applicable state,
federal and foreign securities laws and have not been issued in violation of or
subject to any preemptive or similar right that entitles any person to acquire
any Relevant Security from the Company, any Subsidiary or any of the Selling
Stockholders upon a sale of Shares in the Offering. The Common Stock and the
Shares conform in all material respects to the descriptions thereof contained in
the Registration Statement and the Pricing Prospectus. Except as disclosed in
the Pricing Prospectus, the Company does not have outstanding warrants, options
to purchase, or any preemptive rights or other rights to subscribe for or to
purchase, or any contracts or commitments to issue or sell, any Relevant
Security.
(i) The Subsidiaries are the only "subsidiaries" of the Company
(within the meaning of Rule 405 under the Securities Act). Each of the Company
and each Subsidiary has been duly organized and validly exists as a corporation
in good standing under the laws of its jurisdiction of organization. The Company
and each Subsidiary is duly qualified to do business and is in good standing as
a foreign corporation in each jurisdiction in which the character or location of
its properties (owned leased or licensed) or the nature or conduct of its
business makes such qualification necessary, except for those failures to be so
qualified or in good standing which (individually and in the aggregate) would
not have a material adverse effect on (i) the business, condition (financial or
otherwise), results of operations, stockholders' equity, properties or prospects
of the Company and the Subsidiaries, individually or taken as a whole; or (ii)
the long term debt or capital stock; or (iii) the ability of the Company or any
of its Subsidiaries to consummate the Offering or any other transaction
contemplated by this Agreement or the Pricing Prospectus (a "Material Adverse
Effect").
(j) Except for the Subsidiaries, the Company holds no ownership or
other interest, nominal or beneficial, direct or indirect, in any corporation,
partnership, joint venture or other business entity. All of the issued shares of
capital stock of or other ownership interests in each Subsidiary have been duly
and validly authorized and issued and are fully paid and non-assessable and
(except as otherwise set forth in the Pricing Prospectus) are owned directly or
indirectly by the Company free and clear of any lien, charge, mortgage, pledge,
security interest, claim, equity, trust or other encumbrance, preferential
arrangement, defect or restriction of any kind whatsoever (any "Lien").
(k) Each of the Company and the Subsidiaries has all requisite power
and authority, and all necessary consents, approvals, authorizations, orders,
registrations, certifications, qualifications, licenses, filings and permits of,
with and from all judicial, regulatory and other legal or governmental agencies
and bodies and all third parties, foreign and domestic (collectively, the
"Consents"), to own, lease and operate its properties and conduct its business
as it is now being conducted and as disclosed in the Registration Statement and
the Pricing Prospectus, except for those failures to have Consents which
(individually and in the aggregate) would not have a Material Adverse Effect.
Each such Consent is valid and in full force and effect, and neither the Company
nor any Subsidiary has received notice of any investigation or proceedings which
results in or, if decided adversely to the Company or any Subsidiary, would
result in, the revocation of, or imposition of a materially burdensome
restriction on, any such Consent. No Consent contains a materially burdensome
restriction not adequately disclosed in the Registration Statement and the
Pricing Prospectus.
(l) The Company has full right, power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated by this Agreement, the Registration Statement and
the Pricing Prospectus. This Agreement and the transactions contemplated by this
Agreement, the Registration Statement and the Pricing Prospectus have been duly
and validly authorized by the Company. This Agreement has been duly and validly
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(m) The execution, delivery, and performance of this Agreement and
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Pricing Prospectus, including the sale of the
Shares, do not and will not (i) conflict with, require consent under or result
in a breach of any of the terms and provisions of, or constitute a default (or
an event which with notice or lapse of time, or both, would constitute a
default) under, or result in the creation or imposition of any Lien upon any
property or assets of the Company or any Subsidiary pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement, instrument,
franchise, license or permit to which the Company or any Subsidiary is a party
or by which the Company or any Subsidiary or their respective properties,
operations or assets may be bound or (ii) violate or conflict with any provision
of the certificate or articles of incorporation, by-laws, articles of
domestication or other organizational documents of the Company or any Subsidiary
or (iii) violate or conflict with any applicable law, rule, regulation,
ordinance, directive, judgment, decree or order of any judicial, regulatory or
other legal or governmental agency or body, domestic or foreign, except (in the
case of clauses (i) and (iii) above) as would not have a Material Adverse
Effect.
(n) No Consent of, with or from any judicial, regulatory or other
legal or governmental agency or body or any third party, foreign or domestic, is
required for the execution, delivery and performance of this Agreement or
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Pricing Prospectus, including the sale and
delivery of the Shares, except the registration under the Securities Act of the
Shares and such Consents as may be required (i) under state securities rules or
blue sky laws, (ii) under the by-laws and rules of the National Association of
Securities Dealers, Inc. (the "NASD") or NASD Regulation, Inc. in connection
with the purchase and distribution of the Shares by the Underwriters, each of
which has been obtained and is in full force and effect.
(o) Except as disclosed in the Registration Statement and the Pricing
Prospectus, there is no judicial, regulatory, arbitral or other legal or
governmental proceeding or other litigation or arbitration, domestic or foreign,
pending to which the Company or any Subsidiary is a party or of which any
property, operations or assets of the Company or any Subsidiary is the subject
which (individually or in the aggregate), if determined adversely to the Company
or any Subsidiary, would have a Material Adverse Effect; to the best of the
Company's knowledge, no such proceeding, litigation or arbitration is threatened
or contemplated; and the defense of all such proceedings, litigation and
arbitration against or involving the Company or any Subsidiary would not have a
Material Adverse Effect.
(p) No stamp duty, stock exchange tax, value-added tax, withholding or
any other similar duty or tax is payable in the Republic of Panama, the Republic
of Greece or any other jurisdiction in which the Company is subject to taxation
or any political subdivision thereof or any authority having power to tax, in
connection with the execution, delivery or performance of this Agreement by the
Company or the sale or delivery to the Underwriters of the Firm Shares and
Additional Shares, if any, by the Company or the initial resales thereof by the
Underwriters in the manner contemplated by this Agreement, the Pricing
Prospectus and the Prospectus.
(q) The financial statements and pro forma data, including the notes
thereto, and the supporting schedules included or incorporated by reference in
the Registration Statement and the Pricing Prospectus present fairly the
financial position as of the dates indicated and the cash flows and results of
operations for the periods specified of the Company and its Subsidiaries; except
as otherwise stated in the Registration Statement and the Pricing Prospectus,
said financial statements have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods involved; and the supporting schedules included in the
Registration Statement and the Pricing Prospectus present fairly the information
required to be stated therein. No other financial statements or supporting
schedules are required to be included in the Registration Statement or the
Pricing Prospectus by the Securities Act, the Exchange Act or the Rules and
Regulations. The other financial and statistical information, including pro
forma and as adjusted financial information, included or incorporated by
reference in the Registration Statement and the Pricing Prospectus present
fairly the information included therein and have been prepared on a basis
consistent with that of the financial statements that are included or
incorporated by reference in the Registration Statement and the Pricing
Prospectus and the books and records of the respective entities presented
therein. The assumptions used in preparing the pro forma and as adjusted
financial information included in the Registration Statement and the Pricing
Prospectus provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein; the
related adjustments made in the preparation of such pro forma and as adjusted
financial information give appropriate effect to those assumptions; and such pro
forma and as adjusted financial information reflect the proper application of
those adjustments to the corresponding historical financial statement amounts.
(r) There are no pro forma or as adjusted financial statements that
are required to be included or incorporated by reference in the Registration
Statement and the Pricing Prospectus in accordance with Regulation S-X of the
Exchange Act which have not been included as so required.
(s) The statistical, industry-related and market-related data included
or incorporated by reference into the Registration Statement and the Pricing
Prospectus are based on or derived from sources which the Company reasonably and
in good faith believes are reliable and accurate, and such data agree with the
sources from which they are derived.
(t) The Common Stock has been registered pursuant to Section 12(b) of
the Exchange Act. The outstanding shares of Common Stock are listed on the New
York Stock Exchange (the "NYSE") and the Company has taken no action designed
to, or likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act or de-listing the Common Stock from the NYSE, nor
has the Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
(u) The Company and its Subsidiaries maintain a system of internal
accounting and other controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with United States generally
accepted accounting principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accounting for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(v) Neither the Company nor any of its affiliates (within the meaning
of Rule 144 under the Securities Act) has taken, directly or indirectly, any
action which constitutes or is designed to cause or result in, or which would
constitute, cause or result in, the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Shares.
(w) Neither the Company nor any of its affiliates (within the meaning
of Rule 144 under the Securities Act) has, prior to the date hereof, made any
offer or sale of any securities that could be "integrated" (within the meaning
of the Securities Act and the Rules and Regulations) with the offer and sale of
the Shares pursuant to the Registration Statement. Except as disclosed in the
Registration Statement and the Prospectus, neither the Company nor any of its
affiliates has sold or issued any Relevant Security during the six-month period
preceding the date of the Prospectus, including but not limited to any sales
pursuant to Rule 144A or Regulation D or S under the Securities Act.
(x) Except as disclosed in the Registration Statement and the
Prospectus, no holder of any Relevant Security has any rights to require
registration of any Relevant Security as part or on account of, or otherwise in
connection with, the offer and sale of the Shares contemplated hereby, and any
such rights so disclosed have either been fully complied with by the Company or
effectively waived by the holders thereof, and any such waivers remain in full
force and effect.
(y) The Company is subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act and files periodic reports with the Commission, and
the conditions for use of Form F-3 to register the Shares under the Securities
Act have been satisfied. The documents incorporated or deemed to be incorporated
by reference in the Pricing Prospectus and the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Securities Act, the Exchange Act
and the Rules and Regulations, and, when read together with the other
information in the Pricing Prospectus or the Prospectus, as applicable, do not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(z) The statements set forth or incorporated by reference in the
Pricing Prospectus and Prospectus under the caption "Description of Capital
Stock", insofar as it purports to constitute a summary of the terms of the
Common Stock, and under the captions "Tax Considerations" and "Underwriting",
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate and complete in all material respects.
(aa) The Company is not and, at all times up to and including
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Pricing Prospectus, and after giving effect to
application of the net proceeds of the Offering, will not be required to
register as an "investment company" under the Investment Company Act of 1940, as
amended, and is not and will not be an entity "controlled" by an "investment
company" or a "business development company" within the meaning of such act.
(bb) There are no current or pending judicial, regulatory or other
legal or governmental proceedings that are required to be described in the
Registration Statement and the Pricing Prospectus and that are not so described
or any statutes, regulations, contracts or other documents that are required
under the Securities Act, the Exchange Act or the Rules and Regulations to be
described in the Registration Statement or Pricing Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed.
(cc) No relationship, direct or indirect, exists between or among any
of the Company or any affiliate of the Company, on the one hand, and any
director, officer, stockholder, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by the Securities
Act, the Exchange Act or the Rules and Regulations to be described in the
Registration Statement or the Pricing Prospectus which is not so described and
described as required.
(dd) Except as disclosed in the Pricing Prospectus, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with the
transactions contemplated by this Agreement, the Registration Statement and the
Pricing Prospectus or, to the knowledge of the Company, the Management Selling
Stockholder or the Principal, any arrangements, agreements, understandings,
payments or issuance with respect to the Company or any of its officers,
directors, stockholders, partners, employees, Subsidiaries or affiliates that
may affect the Underwriters' compensation as determined by the NASD.
(ee) The Company and each Subsidiary owns or leases all such
properties as are necessary to the conduct of its business as presently operated
and as proposed to be operated as described in the Pricing Prospectus. The
Company and the Subsidiaries have good and marketable title to all personal
property owned by them in each case free and clear of any and all Liens except
for maritime liens and other liens incurred in the ordinary course of the
Company's shipping business and except such as are described in the Pricing
Prospectus or such as do not (individually and in the aggregate) materially
affect the value of such property or interfere with the use made or proposed to
be made of such property by the Company and the Subsidiaries; and any real
property and buildings held under lease or sublease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as would not (individually and in the aggregate) have a
Material Adverse Effect. Neither the Company nor any Subsidiary has received any
notice of any claim adverse to its ownership of any real or personal property or
of any claim against the continued possession of any real property, whether
owned or held under lease or sublease by the Company or any Subsidiary that
would (individually or in the aggregate) have a Material Adverse Effect.
(ff) The Company and the Subsidiaries maintain insurance or
participate in mutual protection and indemnity associations in such amounts and
covering such risks as the Company reasonably considers adequate for the conduct
of its business and the value of its properties and as is customary for
companies engaged in similar businesses in similar industries, all of which
insurance is in full force and effect, except where the failure to maintain such
insurance would not (individually and in the aggregate) have a Material Adverse
Effect. There are no material claims by the Company or any Subsidiary under any
such policy or instrument as to which any insurance company or mutual protection
and indemnity association is denying liability or defending under a reservation
of rights clause and neither the Company nor any of the Subsidiaries is
currently required to make any payment, or is aware of any facts which would
require the Company or any Subsidiary to make any payment, in respect of a call
by, or a contribution to, any mutual protection and indemnity association.
(gg) Each of the Company and the Subsidiaries has accurately prepared
and timely filed all federal, state, foreign and other tax returns that are
required to be filed by it and has paid or made provision for the payment of all
taxes, assessments, governmental or other similar charges, including without
limitation, all sales and use taxes and all taxes which the Company or any
Subsidiary is obligated to withhold from amounts owing to employees, creditors
and third parties, with respect to the periods covered by such tax returns
(whether or not such amounts are shown as due on any tax return), except for
such failures which (individually and in the aggregate) would not have a
Material Adverse Effect. No deficiency assessment with respect to a proposed
adjustment of the Company's or any Subsidiary's federal, state, local or foreign
taxes is pending or, to the best knowledge of the Company, the Management
Selling Stockholder or the Principal, threatened. The accruals and reserves on
the books and records of the Company and the Subsidiaries in respect of tax
liabilities for any taxable period not finally determined are adequate to meet
any assessments and related liabilities for any such period and, since December
31, 2006, the Company and the Subsidiaries have not incurred any liability for
taxes other than in the ordinary course of its business. There is no tax lien,
whether imposed by any federal, state, foreign or other taxing authority,
outstanding against the assets, properties or business of the Company or any
Subsidiary. Neither the Company nor any of its Subsidiaries is required to file
tax returns or is subject to taxation in the Republic of Greece (except that
Subsidiaries owning vessels that fly the Greek flag are required to file annual
tax returns with the Greek shipping tax authority in connection with a fixed tax
calculated on the basis of the tonnage of the relevant vessel) and the Company
is not aware of any facts or circumstances that could cause it or any of its
Subsidiaries to file tax returns or become subject to taxation in the Republic
of Greece (other than in connection with a fixed tax calculated on the basis of
the tonnage of vessels flying the Greek flag).
(hh) No labor disturbance by the employees of the Company or any
Subsidiary exists or, to the best knowledge of the Company, the Management
Selling Stockholder or the Principal, is imminent and the Company is not aware
of any existing or imminent labor disturbances by the employees of any of its or
any Subsidiary's principal suppliers, shipyards, manufacturers', customers or
contractors, which, in either case (individually or in the aggregate), would
have a Material Adverse Effect.
(ii) Neither the Company nor any entity, whether or not incorporated,
that is under common control with the Company within the meaning of Section 4001
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
is part of a group that includes the Company and that is treated as a single
employer under Section 414 of the Internal Revenue Code of 1986, as amended (the
"Code") has, within the five year period prior to the date on which this
representation is made or deemed made, sponsored, contributed to, or has or had
any liability or obligation in respect of, any "employee benefit plan" (within
the meaning of Section 3(3) of ERISA) subject to ERISA or any plan subject to
Section 4975 of the Code.
(jj) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind of toxic
or other wastes or other hazardous substances by, due to, or caused by the
Company or any Subsidiary (or, to the knowledge of the Company, the Management
Selling Stockholder or the Principal, any other entity for whose acts or
omissions the Company is or may be liable) upon any other property now or
previously owned or leased by the Company or any Subsidiary, or upon any other
property, which would be a violation of or give rise to any liability under any
applicable law, rule, regulation, order, judgment, decree or permit (including
any applicable regulations and standards adopted by the International Maritime
Organization) relating to pollution or protection of human health and the
environment ("Environmental Law"), except for violations and liabilities which
(individually and in the aggregate) would not have a Material Adverse Effect.
There has been no disposal discharge, emission or other release of any kind onto
such property or into the environment surrounding such property of any toxic or
other wastes or other hazardous substances with respect to which the Company or
any Subsidiary has knowledge, which (individually or in the aggregate) would
have a Material Adverse Effect. Neither the Company nor any Subsidiary has
agreed to assume, undertake or provide indemnification for any liability of any
other person under any Environmental Law, including any obligation for cleanup
or remedial action, other than by operation of law or due to the Company's
membership in any mutual protection and indemnity association, in each case as
described in the Registration Statement and the Pricing Prospectus, and except
as would not (individually and in the aggregate) have a Material Adverse Effect.
There is no pending or, to the best knowledge of the Company, the Management
Selling Stockholder or the Principal, threatened administrative, regulatory or
judicial action, claim or notice of noncompliance or violation, investigation or
proceedings relating to any Environmental Law against the Company or any
Subsidiary.
(kk) None of the Company, any Subsidiary or, to the knowledge of the
Company, the Management Selling Stockholder or the Principal, any of its or
their respective employees or agents has at any time during the last five years
(i) made any unlawful contribution to any candidate for foreign office, or
failed to disclose fully any contribution in violation of law, or (ii) made any
payment to any federal or state governmental officer or official, or other
person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any jurisdiction
thereof. The operations of the Company are and have been conducted at all times
in compliance with applicable financial record-keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes or all applicable jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations
or guidelines issued, administered or enforced by any governmental agency
(collectively, the "Money Laundering Laws") and no action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator
involving the Company with respect to the Money Laundering Laws is pending or,
to the best knowledge of the Company, the Management Selling Stockholder or the
Principal, threatened. Neither the Company nor any of the Subsidiaries, nor, to
the knowledge of the Company, the Management Selling Stockholder or the
Principal, any director, officer, agent, employee or affiliate of the Company or
any of its Subsidiaries, is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department
("OFAC"); and the Company will not directly or indirectly use the proceeds of
the Offering, or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other person or entity, for the purpose
of financing the activities of any person known by the Company to be subject to
any U.S. sanctions administered by OFAC at such time.
(ll) Neither the Company nor any Subsidiary (i) is in violation of its
certificate or articles of incorporation, by-laws, articles of domestication or
other organizational documents, (ii) is in default under, and no event has
occurred which, with notice or lapse of time or both, would constitute a default
under or result in the creation or imposition of any Lien upon any property or
assets of the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property or
assets is subject or (iii) is in violation in any respect of any applicable law,
rule, regulation, ordinance, directive, judgment, decree or order of any
judicial, regulatory or other legal or governmental agency or body, foreign or
domestic, except (in the case of clauses (ii) and (iii) above) violations or
defaults which (individually and in the aggregate) would not have a Material
Adverse Effect and except (in the case of clause (ii) alone) for any lien,
charge or encumbrance disclosed in the Registration Statement and the Pricing
Prospectus or any maritime lien or other lien incurred in the ordinary course of
the Company's shipping business.
(mm) The Company has complied with the requirements of Rule 433 under
the Securities Act with respect to each Issuer Free Writing Prospectus
including, without limitation, all prospectus delivery, filing, record retention
and legending requirements applicable to any such Issuer Free Writing
Prospectus. The Company has not (i) distributed any offering material in
connection with the Offering other than the Pricing Prospectus, the Prospectus,
and any Issuer Free Writing Prospectus set forth on Schedule VI hereto, or (ii)
filed, referred to, approved, used or authorized the use of any "free writing
prospectus" as defined in Rule 405 under the Securities Act with respect to the
Offering or the Shares, except for any Issuer Free Writing Prospectus set forth
in Schedule VI hereto and any electronic road show previously approved by the
Underwriters.
(nn) The Company is in compliance in all material respects with the
provisions of the Sarbanes-Oxley Act and the rules and regulations promulgated
in connection therewith (the "Sarbanes-Oxley Act") that are applicable to it and
effective and are actively taking steps to ensure that it will be in compliance
in all material respects with other applicable provisions of the Sarbanes-Oxley
Act upon the effectiveness of and applicability to the Company of such
provisions.
(oo) The Company has established and maintains "disclosure controls
and procedures" (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange
Act); the Company's "disclosure controls and procedures" are designed to ensure
that material information relating to the Company is made known to the Company's
Chief Executive Officer and Chief Financial Officer by others within the
Company, particularly during the period that the Registration Statement and the
Prospectus were being prepared. The Company maintains a system of "internal
control over financial reporting" (as such term is defined in Rule 13a-15(f)
under the Exchange Act) that complies with the requirements of the Exchange Act
and has been designed by the Company's Chief Executive Officer and Chief
Financial Officer, or under their supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted
accounting principles. The Company's "internal control over financial reporting"
is effective and the Company is not aware of any material weaknesses in its
"internal control over financial reporting."
(pp) Except as disclosed in the Registration Statement and the Pricing
Prospectus, there are no outstanding guarantees or other contingent obligations
of the Company or any Subsidiary that would have a Material Adverse Effect.
(qq) The Company is a "foreign private issuer" as defined in Rule 405.
(rr) The Company is not a "passive foreign investment company" (a
"PFIC") within the meaning of Section 1297 of the Code and expects to continue
its operations in such a manner that it will not become a PFIC in the future.
(ss) All dividends and other distributions declared and payable on the
shares of Common Stock of the Company or on the shares of common stock or other
equity securities of each Subsidiary may under the current laws and regulations
of the Republic of the Marshall Islands, the Republic of Greece and the Republic
of Panama be paid in United States dollars and may be freely transferred out of
the Republic of the Marshall Islands, the Republic of Greece and the Republic of
Panama, as the case may be, and all such dividends and other distributions are
not subject to withholding or other taxes under the current laws and regulations
of the Republic of the Marshall Islands, the Republic of Greece and the Republic
of Panama and are otherwise free and clear of any withholding, stamp, transfer,
excise or other tax and may be declared and paid without the necessity of
obtaining any consents, approvals, authorizations, orders, licenses,
registrations, clearances and qualifications of or with any court or
governmental agency or body or any stock exchange authorities in the Republic of
the Marshall Islands, the Republic of Greece and the Republic of Panama.
Any certificate signed by or on behalf of the Company and delivered to the
Underwriters or to Underwriters' Counsel (as defined in Section 4(d) hereof)
shall be deemed to be a joint and several representation and warranty by the
Company, each Management Selling Stockholder and the Principal to each
Underwriter as to the matters covered thereby.
2. Additional Representations and Warranties of the Management Selling
Stockholders and the Principal. Each Management Selling Stockholder and the
Principal hereby jointly and severally represent and warrant to, and agree with,
each of the Underwriters that:
(a) The Management Selling Stockholders have full right, power and
authority to execute and deliver this Agreement, to perform their obligations
hereunder and to consummate the transactions contemplated by this Agreement, the
Registration Statement and the Pricing Prospectus. This Agreement and the
transactions contemplated by this Agreement, the Registration Statement and the
Pricing Prospectus have been duly and validly authorized by each of the
Management Selling Stockholders. This Agreement has been duly and validly
executed and delivered by the Management Selling Stockholders and the Principal
and constitutes the legal, valid and binding obligations of the Management
Selling Stockholders and the Principal, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(b) The Management Selling Stockholders have full right, power and
authority to execute and deliver the Custody Agreements and Powers of Attorney,
each substantially in the forms of Exhibits I and II hereto, respectively (the
"Custody Agreements" and "Powers of Attorney," respectively), to perform their
obligations thereunder and to consummate the transactions contemplated thereby.
The Custody Agreements and Powers of Attorney of the Management Selling
Stockholders and the transactions contemplated thereby have been duly and
validly authorized by the Management Selling Stockholders. Such Custody
Agreements and Powers of Attorney have each been duly and validly executed and
delivered by the Management Selling Stockholders and constitute the legal, valid
and binding obligations of the Management Selling Stockholders, enforceable in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Counterparts
of each of the Management Selling Stockholders' Custody Agreements, duly signed
by (i) Computershare Shareholder Services, Inc., a federally chartered trust
company, as custodian (in such capacity, the "Custodian") and (ii) each of the
Management Selling Stockholders have been delivered to the Company and a copy of
each has been shown to the Underwriters, on or prior to the date of this
Agreement.
(c) The Management Selling Stockholders agree that the Firm Shares to
be sold by the Management Selling Stockholders, whether or not on deposit with
the Custodian, are subject to the interests of the Underwriters, that the
arrangements made for such custody are to that extent irrevocable, and that the
obligations of the Management Selling Stockholders hereunder shall not be
terminated, except as provided in this Agreement or in the Custody Agreements
and Powers of Attorney, by any act of any Management Selling Stockholder, by
operation of law or by the occurrence of any other event. If any event should
occur affecting the legal status or capacity of any Management Selling
Stockholder before the delivery of the Firm Shares to be sold by such Management
Selling Stockholder hereunder, the documents evidencing the Firm Shares to be
sold by such Management Selling Stockholder then on deposit with the Custodian
shall be delivered by the Custodian in accordance with the terms and conditions
of this Agreement as if such event had not occurred, regardless of whether or
not the Custodian shall have received notice thereof.
(d) The Management Selling Stockholders have, and on the Closing Date
will have, good and valid title to and are and will be the lawful owners of the
Firm Shares to be sold by the Management Selling Stockholders hereunder, and
upon sale and delivery of, and payment for, such Firm Shares by the Management
Selling Stockholders as provided herein the Management Selling Stockholders will
convey to the Underwriters good and marketable title to such Firm Shares, free
and clear of all Liens. Certificates for all of the Firm Shares to be sold by
the Management Selling Stockholders pursuant to this Agreement, in suitable form
for transfer by delivery or accompanied by duly executed instruments of transfer
or assignment in blank with signatures guaranteed, have been placed in custody
with the Custodian with irrevocable conditional instructions to deliver such
Firm Shares to the Underwriters pursuant to this Agreement.
(e) No Consent of, from or with any judicial, regulatory or other
legal or governmental agency or body or any third party, foreign or domestic, is
required for the execution, delivery and performance by the Management Selling
Stockholders and the Principal of this Agreement or, in the case of a Management
Selling Stockholder, its Custody Agreement and Power of Attorney, or
consummation by the Management Selling Stockholders and the Principal of the
transactions contemplated herein or therein, except such as have been obtained
under the Securities Act and such as may be required under the state or foreign
securities laws or the blue sky laws of any jurisdiction or the by-laws and
rules of the NASD or NASD Regulation, Inc. in connection with the purchase and
distribution of the Management Selling Stockholders' Firm Shares by the
Underwriters.
(f) The execution, delivery and performance of this Agreement by the
Management Selling Stockholders and the Principal, the execution, delivery and
performance of the Powers of Attorney and the Custody Agreements by the
Management Selling Stockholders and the consummation of any of the other
transactions contemplated herein and therein by the Management Selling
Stockholders and the Principal or the fulfillment of the terms hereof by the
Management Selling Stockholders and the Principal will not (i) conflict with,
result in a breach or violation of, or constitute a default (or an event that
with notice or lapse of time, or both, would constitute a default) under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of a Management Selling Stockholder or the Principal pursuant
to any law, statute, rule or regulation or the terms of any indenture or other
agreement or instrument to which a Management Selling Stockholder or the
Principal is party or bound, or to which any of the property or assets of a
Management Selling Stockholder or the Principal is subject, (ii) result in any
violation of the provisions of any charter or by-laws or certificate of
formation or other organizational documents, as applicable, of a Management
Selling Stockholder or (iii) result in any violation or breach of any judgment,
order, decree statute, rule or regulation applicable to a Management Selling
Stockholder or the Principal of any court or any public, governmental or
regulatory agency or body, administrative agency or arbitrator having
jurisdiction over a Management Selling Stockholder or the Principal, except (in
the case of clauses (i) and (iii) above) as would not (individually and in the
aggregate) have a material adverse effect on the Offering or the consummation of
any other transaction contemplated by this Agreement or the Powers of Attorney
or the Custody Agreements of the Management Selling Stockholders.
(g) The Management Selling Stockholders and the Principal do not have
any registration or other similar rights to have any equity or debt securities
registered for sale by the Company under the Registration Statement or included
in the offering of the Firm Shares, except for such rights as have been waived
or which are described in the Prospectus.
(h) No stamp duty, stock exchange tax, value-added tax, withholding or
any other similar duty or tax is payable in the Republic of Panama, the Republic
of Greece or any other jurisdiction in which a Management Selling Stockholder or
the Principal is subject to taxation or, in each case, any political subdivision
thereof or any authority having power to tax, in connection with the execution,
delivery or performance of this Agreement by the Management Selling Stockholders
and the Principal or the Custody Agreements by the Management Selling
Stockholders or the sale or delivery of the Firm Shares by the Management
Selling Stockholders to the Underwriters or the initial resales thereof by the
Underwriters in the manner contemplated by this Agreement, the Powers of
Attorney and the Custody Agreements of the Management Selling Stockholders, the
Pricing Prospectus and the Prospectus.
(i) Except as disclosed in the Pricing Prospectus, there are no
contracts, agreements or understandings between a Management Selling Stockholder
or the Principal and any person that would give rise to a valid claim against
the Company or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering or, to the knowledge of the
Management Selling Stockholders and the Principal, any other arrangements,
agreements, understandings, payments or issuance with respect to the Company or
any of its officers, directors, shareholders, partners, employees, Subsidiaries
or affiliates that may affect the Underwriters' compensation as determined by
the NASD.
(j) The Management Selling Stockholders and the Principal are not
prompted to sell the Firm Shares to be sold by the Management Selling
Stockholders by any non-public information concerning the Company or any
Subsidiary.
(k) None of the Management Selling Stockholders or the Principal has
taken or will take, directly or indirectly, any action designed to, or that
could be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Firm Shares or Additional Shares, if any.
(l) The Management Selling Stockholders and the Principal have not
distributed, and will not distribute, prior to the completion of the
Underwriters' distribution of the Shares, any offering material in connection
with the offering and sale of the Shares other than the Pricing Prospectus and
the Prospectus.
(m) The representations and warranties of the Management Selling
Stockholders in their Custody Agreements and Powers of Attorney are, and on the
Closing Date will be, true and correct.
Any certificate signed by or on behalf of a Management Selling Stockholder
or the Principal and delivered to the Underwriters or to Underwriters' Counsel
shall be deemed to be a joint and several representation and warranty by the
Management Selling Stockholders and the Principal to each Underwriter as to the
matters covered thereby.
3. Representations and Warranties of the Additional Selling Stockholder.
The Additional Selling Stockholder represents and warrants to, and agrees with,
each of the Underwriters that:
(a) The Additional Selling Stockholder has full right, power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated by this Agreement, the
Registration Statement and the Pricing Prospectus. This Agreement and the
transactions contemplated by this Agreement, the Registration Statement and the
Pricing Prospectus have been duly and validly authorized by the Additional
Selling Stockholder. This Agreement has been duly and validly executed and
delivered by the Additional Selling Stockholder and constitutes the legal, valid
and binding obligation of the Additional Selling Stockholder, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(b) The Additional Selling Stockholder has full right, power and
authority to execute and deliver a Custody Agreement and Power of Attorney
substantially in the forms of Exhibits I and II hereto, respectively, to perform
its obligations thereunder and to consummate the transactions contemplated
thereby. Such Custody Agreement and Power of Attorney and the transactions
contemplated thereby have been duly and validly authorized by the Additional
Selling Stockholder. Such Custody Agreement and Power of Attorney have each been
duly and validly executed and delivered by the Additional Selling Stockholder
and constitute the legal, valid and binding obligation of the Additional Selling
Stockholder, enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
Counterparts of the Additional Selling Stockholder's Custody Agreement, duly
signed by (i) the Custodian and (ii) Gary J. Wolfe, Charalampos Antiniou,
Karianne Tieleman and Cornelis Egbert Kamphof as the Additional Selling
Stockholder's attorneys-in-fact, have been delivered to the Company and the
Underwriters on or prior to the date of this Agreement.
(c) The Additional Selling Stockholder agrees that the Firm Shares to
be sold by the Additional Selling Stockholder, whether or not on deposit with
the Custodian, are subject to the interests of the Underwriters, that the
arrangements made for such custody are to that extent irrevocable, and that the
obligations of the Additional Selling Stockholder hereunder shall not be
terminated, except as provided in this Agreement or in the Custody Agreement and
Power of Attorney of the Additional Selling Stockholder, by any act of the
Additional Selling Stockholder, by operation of law or by the occurrence of any
other event. If any event should occur affecting the legal status or capacity of
the Additional Selling Stockholder before the delivery of the Firm Shares to be
sold by the Additional Selling Stockholder hereunder, the documents evidencing
the Firm Shares to be sold by the Additional Selling Stockholder then on deposit
with the Custodian shall be delivered by the Custodian in accordance with the
terms and conditions of this Agreement as if such event had not occurred,
regardless of whether or not the Custodian shall have received notice thereof.
(d) The Additional Selling Stockholder has and, on the Closing Date
will have, good and valid title to and is and will be the lawful owner of the
Firm Shares to be sold by the Additional Selling Stockholder hereunder, and upon
sale and delivery of, and payment for, such Firm Shares as provided herein the
Additional Selling Stockholder will convey to the Underwriters good and
marketable title to such Firm Shares, free and clear of all Liens. Certificates
for all of the Firm Shares to be sold by the Additional Selling Stockholder
pursuant to this Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment in blank with
signatures guaranteed, have been placed in custody with the Custodian with
irrevocable conditional instructions to deliver such Firm Shares to the
Underwriters pursuant to this Agreement.
(e) No Consent of, from or with any judicial, regulatory or other
legal or governmental agency or body or any third party, foreign or domestic, is
required for the execution, delivery and performance by the Additional Selling
Stockholder of this Agreement or its Custody Agreement and Power of Attorney, or
consummation by the Additional Selling Stockholder of the transactions
contemplated herein or therein, except such as have been obtained under the
Securities Act and such as may be required under the state or foreign securities
laws or the blue sky laws of any jurisdiction or the by-laws and rules of the
NASD or NASD Regulation, Inc. in connection with the purchase and distribution
of the Additional Selling Stockholder's Firm Shares by the Underwriters.
(f) The execution, delivery and performance of this Agreement and the
Power of Attorney and the Custody Agreement of the Additional Selling
Stockholder by the Additional Selling Stockholder and consummation of any of the
other transactions contemplated herein and therein by the Additional Selling
Stockholder or the fulfillment of the terms hereof by the Additional Selling
Stockholder will not (i) conflict with, result in a breach or violation of, or
constitute a default (or an event that with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Additional
Selling Stockholder pursuant to any law, statute, rule or regulation or the
terms of any indenture or other agreement or instrument to which the Additional
Selling Stockholder is party or bound, or to which any of the property or assets
of the Additional Selling Stockholder is subject, (ii) result in any violation
of the provisions of any charter or by-laws or certificate of formation or other
organizational documents, as applicable, of the Additional Selling Stockholder,
or (iii) result in any violation or breach of any judgment, order, decree
statute, rule or regulation applicable to the Additional Selling Stockholder of
any court or any public, governmental or regulatory agency or body,
administrative agency or arbitrator having jurisdiction over the Additional
Selling Stockholder, except (in the case of clauses (i) and (iii) above) as
would not (individually and in the aggregate) have a material adverse effect on
the Offering or the consummation of any other transaction contemplated by this
Agreement or the Power of Attorney or the Custody Agreement of the Additional
Selling Stockholder.
(g) The Additional Selling Stockholder does not have any registration
or other similar rights to have any equity or debt securities registered for
sale by the Company under the Registration Statement or included in the offering
of the Firm Shares, except for such rights as have been waived or which are
described in the Prospectus (and which have been complied with).
(h) No stamp duty, stock exchange tax, value-added tax, withholding or
any other similar duty or tax is payable in The Bahamas or any other
jurisdiction in which the Additional Selling Stockholder is subject to taxation
or, in each case, any political subdivision thereof or any authority having
power to tax, in connection with the execution, delivery or performance of this
Agreement or the Custody Agreement by the Additional Selling Stockholder or the
sale or delivery of the Firm Shares by the Additional Selling Stockholder to the
Underwriters or the initial resales thereof by the Underwriters in the manner
contemplated by this Agreement, the Power of Attorney and the Custody Agreement
of the Additional Selling Stockholder and the Pricing Prospectus and the
Prospectus.
(i) Except as disclosed in the Pricing Prospectus, there are no
contracts, agreements or understandings between the Additional Selling
Stockholder and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering or, to the knowledge of the
Additional Selling Stockholder, any other arrangements, agreements,
understandings, payments or issuance with respect to the Company or any of its
officers, directors, shareholders, partners, employees, Subsidiaries or
affiliates that may affect the Underwriters' compensation as determined by the
NASD.
(j) The Additional Selling Stockholder has reviewed and is familiar
with the Registration Statement, the Pricing Prospectus and the Prospectus and
(i) has no knowledge of any material adverse information with regard to the
Company or the Subsidiaries which is not disclosed in the Registration
Statement, the Pricing Prospectus and the Prospectus, (ii) has no knowledge of
any misstatement of a material fact or failure to state a material fact
necessary to make the statements in the Pricing Prospectus and the Prospectus,
in light of the circumstances under which they were made, not misleading, (iii)
is not prompted to sell the Firm Shares to be sold by the Additional Selling
Stockholder by any information concerning the Company or any Subsidiary which is
not set forth in the Registration Statement, the Pricing Prospectus and the
Prospectus and (iv) has no reason to believe that any representation or warranty
of the Company set forth in Section 1 above is untrue.
(k) At the time of the effectiveness of the Registration Statement,
any Rule 462(b) Registration Statement or the effectiveness of any
post-effective amendment to the Registration Statement, when the Prospectus is
first filed with the Commission pursuant to Rule 424(b), when any supplement to
or amendment of the Prospectus is filed with the Commission and at the Closing
Date and the Additional Closing Date, if any, the Registration Statement and the
Prospectus and any amendments thereof and supplements thereto complied or will
comply in all material respects with the applicable provisions of the Securities
Act, the Exchange Act and the Rules and Regulations and did not and will not
contain an untrue statement of a material fact and did not and will not omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein (x) in the case of the Registration Statement, not
misleading and (y) in the case of the Prospectus, the Pricing Disclosure Package
or any related Preliminary Prospectus in light of the circumstances under which
they were made, not misleading. When any related Preliminary Prospectus was
first filed with the Commission (whether filed as part of the registration
statement for the registration of the Shares or any amendment thereto or
pursuant to Rule 424(a) under the Securities Act) and when any amendment thereof
or supplement thereto was first filed with the Commission, such Preliminary
Prospectus and any amendments thereof and supplements thereto complied in all
material respects with the applicable provisions of the Securities Act and the
Rules and Regulations and did not contain an untrue statement of a material fact
and did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The representations and warranties
in this Section 3(k) apply only to the extent that any such misstatements or
omissions are based upon information furnished in writing to the Company by or
on behalf of the Additional Selling Stockholder specifically for use therein.
The parties hereto agree that such information provided by or on behalf of the
Additional Selling Stockholder consists solely of the material referred to in
Section 18 hereof.
(l) The Additional Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to, or that could be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of the Shares.
(m) The Additional Selling Stockholder has not distributed, and will
not distribute, prior to the completion of the Underwriters' distribution of the
Shares, any offering material in connection with the offering and sale of the
Firm Shares by the Additional Selling Stockholder other than the Pricing
Prospectus and the Prospectus.
(n) The representations and warranties of the Additional Selling
Stockholder in its Custody Agreement and Power of Attorney are, and on the
Closing Date will be, true and correct.
Any certificate signed by or on behalf of the Additional Selling
Stockholder and delivered to the Underwriters or to Underwriters' Counsel shall
be deemed to be a representation and warranty by the Additional Selling
Stockholder to each Underwriter as to the matters covered thereby.
4. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees that it shall sell to each Underwriter and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
a purchase price of $16.235 per Share, that number of Firm Shares obtained by
multiplying the number of Firm Shares to be sold by the Company by a fraction,
the numerator of which is the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto (or such number increased as set forth
in Section 12 hereof) and the denominator of which is the total number of Firm
Shares. In addition, on the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Management Selling Stockholders and the Principal jointly and
severally agree that each Management Selling Stockholder shall sell to each
Underwriter and each Underwriter, severally and not jointly, agrees to purchase
from such Management Selling Stockholder, at a purchase price of $16.235 per
Share, that number of Firm Shares obtained by multiplying the number of Firm
Shares set forth opposite the name of such Management Selling Stockholder in
Schedule II hereto by a fraction, the numerator of which is the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number increased as set forth in Section 12 hereof) and the denominator of
which is the total number of Firm Shares. Further, on the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Additional Selling
Stockholder agrees to sell to each Underwriter and each Underwriter, severally
and not jointly, agrees to purchase from the Additional Selling Stockholder, at
a purchase price of $16.235 per Share, that number of Firm Shares obtained by
multiplying the number of Firm Shares set forth opposite the name of the
Additional Selling Stockholder in Schedule III hereto by a fraction, the
numerator of which is the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto (or such number increased as set forth in
Section 12 hereof) and the denominator of which is the total number of Firm
Shares.
(b) Payment of the purchase price for the Firm Shares shall be made by
wire transfer in same day funds to the Company, in the case of Firm Shares sold
by the Company, and to the Custodian, or pursuant to such other instructions as
provided by each Selling Stockholder, for the account of the Selling
Stockholders, in the case of Firm Shares sold by the Selling Shareholders, in
each case, upon delivery of certificates for the Firm Shares to the Underwriters
through the facilities of The Depository Trust Company for the respective
accounts of the several Underwriters at 10:00 A.M., New York City time, on the
third or (as permitted under Rule 15c6-1 under the Exchange Act) the fourth
business day after the determination of the public offering price of the Shares
or such other time not later than ten business days after such date as shall be
agreed upon by the Underwriters, the Company and the Selling Stockholders (such
time and date of payment and delivery being herein called the "Closing Date").
Certificates for the Firm Shares shall be registered in such name or names and
shall be in such denominations as the Representatives may request at least two
business days before the Closing Date. The Company and the Custodian will permit
the Underwriters to examine and package such certificates for delivery at least
one full business day prior to the Closing Date.
(c) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Underwriters shall have the option to purchase
up to 1,575,000 Additional Shares at the purchase price per Share to be paid by
the Underwriters to the Company for the Firm Shares as set forth in Section 4(a)
above, for the sole purpose of covering over-allotments in the sale of Firm
Shares. This option may be exercised at any time, in whole or in part, on or
before the thirtieth day following the date of the Prospectus, by written notice
by the Underwriters to the Company. Such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised and the
date and time, as reasonably determined by the Underwriters, when the Additional
Shares are to be delivered (any such date and time being herein referred to as
the "Additional Closing Date," except as otherwise provided herein); provided,
however, that the Additional Closing Date shall not be earlier than the Closing
Date or earlier than the second full business day after the date on which the
option shall have been exercised nor later than the eighth full business day
after the date on which the option shall have been exercised (unless such time
and date are postponed in accordance with the provisions of Section 11 hereof).
The Company agrees that, if the option is exercised as to all or any
portion of the Additional Shares, the Company shall sell to the Underwriters
that number of Additional Shares obtained by multiplying the number of
Additional Shares with respect to which the option has been exercised by a
fraction, the numerator of which is the number of Additional Shares set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the total number of Additional Shares. If the option is exercised as
to all or any portion of the Additional Shares, each Underwriter, acting
severally and not jointly, will purchase from the Company that proportion of the
number of Additional Shares then being purchased from the Company as the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto (or such number increased as set forth in Section 12 hereof) bears to the
total number of Firm Shares that the Underwriters have agreed to purchase
hereunder, subject, however, to such adjustments to eliminate any fractional
shares as the Underwriters in their sole discretion shall make.
Payment of the purchase price for the Additional Shares shall be made by
wire transfer in Federal (same day) funds to the Company upon delivery of the
Additional Shares to the Underwriters through the facilities of The Depository
Trust Company for the respective accounts of the Underwriters at 10:00 A.M., New
York City time, on the Additional Closing Date, or such other time as shall be
agreed upon by the Underwriters and the Company. Certificates for Additional
Shares shall be registered in such name or names and shall be in such
denominations as the Representatives may request at least two business days
prior to the Additional Closing Date. The Company and the Custodian will permit
the Underwriters to examine and package such certificates for delivery at least
one full business day prior to the Additional Closing Date.
(d) Deliveries of the documents described in Section 8 hereof with
respect to the purchase of Firm Shares or Additional Shares, as the case may be,
shall be made at 10:00 A.M., New York City time, at the office of Simpson,
Thacher & Bartlett LLP ("Underwriters' Counsel"), or at such other place and
time as shall be agreed upon by the Representatives, the Company and the Selling
Stockholders on the Closing Date, or by the Representatives and the Company on
the Additional Closing Date, as the case may be.
(e) The Company, the Selling Stockholders and the Principal
acknowledge and agree that (i) the terms of this Agreement and the Offering
(including the price of the Shares) were negotiated at arm's length between
sophisticated parties represented by counsel; (ii) no fiduciary, advisory or
agency relationship between the Company, the Selling Stockholders and the
Principal, on the one hand, and the Underwriters, on the other hand, has been
created as a result of any of the transactions contemplated by this Agreement or
the process leading to such transactions, irrespective of whether any
Underwriter has advised or is advising any such party on other matters, (iii)
the Underwriters' obligations to the Company, the Selling Stockholders and the
Principal in respect of the Offering are set forth in this Agreement in their
entirety; and (iv) they have obtained such legal, tax, accounting and other
advice as they deem appropriate with respect to this Agreement and the
transactions contemplated hereby and any other activities undertaken in
connection therewith, and they are not relying on the Underwriters with respect
to any such matters.
(f) The Company agrees that the Company will pay all stock transfer
taxes, stamp duties and other similar taxes, if any, payable upon the sale or
delivery of the Firm Shares or Additional Shares, if any, to be sold by the
Company to the several Underwriters or otherwise in connection with the
performance of the obligations of the Company hereunder. In addition, the
Management Selling Stockholders and the Principal jointly and severally agree
that (i) the Management Selling Stockholders will pay all stock transfer taxes,
stamp duties and other similar taxes, if any, payable upon the sale or delivery
of the Firm Shares to be sold by the Management Selling Stockholders to the
Underwriters or otherwise in connection with the performance of the obligations
of the Management Selling Stockholders and the Principal hereunder and (ii) the
Custodian is authorized to deduct for such payment any such amounts from the
proceeds to the Management Selling Stockholders hereunder and to hold such
amounts for the account of the Management Selling Stockholders with the
Custodian under the Custody Agreements and Powers of Attorney. Further, the
Additional Selling Stockholder agrees that (i) the Additional Selling
Stockholder will pay all stock transfer taxes, stamp duties and other similar
taxes, if any, payable upon the sale or delivery of the Firm Shares to be sold
by the Additional Selling Stockholder to the several Underwriters or otherwise
in connection with the performance of the obligations of the Additional Selling
Stockholder hereunder and (ii) the Custodian is authorized to deduct for such
payment any such amounts from the proceeds to the Additional Selling Stockholder
hereunder and to hold such amounts for the account of the Additional Selling
Stockholder with the Custodian under the Custody Agreement and Power of Attorney
of the Additional Selling Stockholder.
5. Offering. Upon authorization of the release of the Firm Shares or the
Additional Shares, as the case may be, the Underwriters propose to offer the
Shares for sale to the public upon the terms and conditions set forth in the
Prospectus. The Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter and any such affiliate may offer and sell Shares
purchased by it to or through the Underwriter.
6. Certain Covenants of the Parties.
(a) The Company covenants and agrees with the Underwriters that:
(i) The Company shall prepare the Prospectus in a form reasonably
approved by the Representatives and file such Prospectus pursuant to, and within
the time period specified in, Rule 424(b) and Rule 430A, 430B or 430C, as
applicable, under the Securities Act; prior to the last date on which an
Additional Closing Date, if any, may occur, the Company shall file no further
amendment to the Registration Statement or amendment or supplement to the
Prospectus to which the Representatives shall reasonably object in writing after
being furnished in advance a copy thereof and given a reasonable opportunity to
review and comment thereon; the Company shall notify the Representatives
promptly (and, if requested by the Underwriters, will confirm such notice in
writing) (i) when any amendment to the Registration Statement becomes effective,
(ii) of any request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for any additional information,
(iii) of the Company's intention to file or prepare any supplement or amendment
to the Registration Statement, any Preliminary Prospectus, the Prospectus or any
Issuer Free Writing Prospectus (including documents filed under the Exchange Act
if such document would be deemed to be incorporated by reference into the
Registration Statement, any Preliminary Prospectus or the Prospectus), (iv) of
the mailing or the delivery to the Commission for filing of any amendment of or
supplement to the Registration Statement or the Prospectus, including but not
limited to Rule 462(b) under the Securities Act, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto, or suspending the use of any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or,
in each case, of the initiation, or the threatening, of any proceedings
therefor, it being understood that the Company shall make every effort to avoid
the issuance of any such stop order, (vi) of the receipt of any comments from
the Commission, and (vii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time, the
Company will make every reasonable effort to prevent the issuance of any such
stop order and, if issued, to obtain the lifting of such order as soon as
possible.
(ii) The Company shall comply with the Securities Act and the
Exchange Act to permit completion of the distribution of the Shares by the
Underwriters as contemplated in this Agreement, the Registration Statement, the
Pricing Prospectus and the Prospectus. If at any time when a prospectus relating
to the Shares (or, in lieu thereof, the notice referred to in Rule 173(a) under
the Securities Act) is required to be delivered under the Securities Act, any
event shall have occurred as a result of which the Pricing Disclosure Package
(prior to the availability of the Prospectus) or the Prospectus as then amended
or supplemented would, in the judgment of the Underwriters or the Company,
include an 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 light of the circumstances existing at the time of delivery of such Pricing
Disclosure Package or Prospectus (or, in lieu thereof, the notice referred to in
Rule 173(a) under the Securities Act) to the purchaser, not misleading, or if to
comply with the Securities Act, the Exchange Act or the Rules and Regulations it
shall be necessary at any time to amend or supplement the Pricing Disclosure
Package, the Prospectus or the Registration Statement, or to file any document
incorporated by reference in the Registration Statement or the Prospectus or in
any amendment thereof or supplement thereto, the Company will notify the
Representatives promptly and prepare and file with the Commission an appropriate
amendment, supplement or document (in form and substance reasonably satisfactory
to the Underwriters) that will correct such statement or omission or effect such
compliance and will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
(iii) The Company shall retain, in accordance with the Rules and
Regulations, all Issuer Free Writing Prospectuses not required to be filed
pursuant to the Rules and Regulations. The Company will not, without the prior
consent of the Underwriters, (i) make any offer relating to the Shares that
would constitute a "free writing prospectus" as defined in Rule 405 under the
Securities Act, except for any Issuer Free Writing Prospectus set forth in
Schedule VI hereto and any electronic road show previously approved by the
Underwriters, or (ii) file, refer to, approve, use or authorize the use of any
"free writing prospectus" as defined in Rule 405 under the Securities Act with
respect to the Offering or the Shares. If at any time any event shall have
occurred as a result of which any Issuer Free Writing Prospectus as then amended
or supplemented would, in the judgment of the Underwriters or the Company,
conflict with the information in the Registration Statement, the Pricing
Prospectus or the Prospectus as then amended or supplemented or would, in the
judgment of the Underwriters or the Company, include an 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
existing at the time of delivery to the purchaser, not misleading, or if to
comply with the Securities Act or the Rules and Regulations it shall be
necessary at any time to amend or supplement any Issuer Free Writing Prospectus,
the Company will notify the Underwriters promptly and, if requested by the
Underwriters, prepare and furnish an appropriate amendment or supplement (in
form and substance reasonably satisfactory to the Underwriters) that will
correct such statement, omission or conflict or to effect such compliance.
(iv) The Company has complied with and will comply with the
requirements of Rule 433 with respect to each Issuer Free Writing Prospectus
including, without limitation, all prospectus delivery, filing, record retention
and legending requirements applicable to each such Issuer Free Writing
Prospectus; and the Company has caused there to be made available at least one
version of a "bona fide electronic road show" (as defined in Rule 433 under the
Securities Act) in a manner that causes the Company not to be required, pursuant
to Rule 433(d) under the Securities Act, to file with the Commission any road
show.
(v) The Company will promptly deliver to each Underwriter and
Underwriters' Counsel a signed copy of the Registration Statement, as initially
filed and all amendments thereto, including all consents and exhibits filed
therewith, and will maintain in the Company's files manually signed copies of
such documents for at least five years after the date of filing. The Company
will promptly deliver to each of the Underwriters such number of copies of any
Preliminary Prospectus, the Prospectus, the Registration Statement, and all
amendments of and supplements to such documents, if any, and all documents
incorporated by reference in the Registration Statement and Prospectus or any
amendment thereof or supplement thereto, as the Representatives may reasonably
request. Prior to 12:00 P.M., New York City time, on the business day next
succeeding the date of this Agreement and from time to time thereafter, the
Company will furnish the Underwriters with copies of the Prospectus in New York
City in such quantities as the Representatives may reasonably request.
(vi) The Company will use its reasonable best efforts, in
cooperation with the Underwriters, to qualify the Shares for offering and sale
under the securities laws relating to the offering or sale of the Shares of such
jurisdictions, domestic or foreign, as the Underwriters may designate and to
maintain such qualification in effect for so long as required for the
distribution thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction.
(vii) The Company will make generally available to its security
holders and to the Underwriters as soon as practicable, but in any event not
later than twelve months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Securities Act), an earnings statement of
the Company and the Subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158).
(viii) During the period of 90 days from the date of the
Prospectus, without the prior written consent of J.P. Morgan Securities Inc.,
the Company (A) will not, directly or indirectly, issue, offer, sell, agree to
issue, offer or sell, solicit offers to purchase, grant any call option, warrant
or other right to purchase, purchase any put option with respect to, pledge,
borrow or otherwise dispose of any Relevant Security, or make any announcement
of any of the foregoing, (B) will not establish or increase any "put equivalent
position" or liquidate or decrease any "call equivalent position" (in each case
within the meaning of Section 15 of the Exchange Act Rules and Regulations) with
respect to any Relevant Security, and (C) will not otherwise enter into any
swap, derivative or other transaction or arrangement that transfers to another,
in whole or in part, any economic consequence of ownership of a Relevant
Security, whether or not such transaction is to be settled by delivery of
Relevant Securities, other securities, cash or other consideration; and the
Company will cause each person listed in Schedule V attached hereto to execute
and deliver an agreement, substantially in the form of Annex XI hereto (a
"Lock-Up Agreement"), not to engage in any of the aforementioned transactions on
such person's own behalf, other than the sale by the Selling Stockholders of
Shares as contemplated by this Agreement and the grant and exercise of options
under, or the issuance and sale of shares of Common Stock pursuant to, employee
stock option plans in effect on the date hereof, each as described in the
Registration Statement and the Pricing Prospectus. The Company will provide the
Underwriters and each stockholder subject to the "Lock-Up Period" (as defined in
the Lock-Up Agreement) pursuant to the Lock-Up Agreements with prior notice of
any announcement that gives rise to an extension of the Lock-Up Period under the
terms of its Lock-Up Agreement. The Company will not file with, or submit to,
the Commission a registration statement under the Securities Act in connection
with any transaction by the Company or any person that is prohibited pursuant to
the foregoing, except for registration statements on Form S-8 relating to
employee benefit plans.
If (A) during the period that begins on the date that is 15 calendar days
plus 3 business days before the last day of the 90-day Lock-Up Period referred
to in the immediately preceding paragraph and ends on the last day of such
90-day Lock-Up Period, the Company issues an earnings release or material news
or a material event relating to the Company occurs or (B) prior to the
expiration of such 90-day Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
such 90-day Lock-Up Period, the restrictions imposed by the immediately
preceding paragraph shall continue to apply until the expiration of the date
that is 15 calendar days plus 3 business days after the date on which the
issuance of the earnings release or the material news or material event occurs
unless J.P. Morgan Securities Inc. waives, in writing, such extension. J.P.
Morgan Securities Inc. may, in its sole discretion and at any time or from time
to time before the expiration of the Lock-Up Period, without notice, release all
or any portion of the securities subject to the Lock-Up Agreements.
Notwithstanding the foregoing, nothing contained in this Agreement shall
prohibit the Company from issuing, offering, selling, exchanging or otherwise
transferring, or agreeing to issue, sell, exchange or otherwise transfer, up to
5,200,000 shares of Common Stock, or any securities convertible into, or
exercisable or exchangeable for, such shares of Common Stock, in any transaction
or series of transactions in which the consideration therefor consists solely of
the direct or indirect ownership interests in one or more dry bulk carriers or
newbuilding contracts for dry bulk carriers or the capital stock or ownership
interests in any organization whose assets consist principally of such dry bulk
carriers or newbuilding contracts; provided, that the person to whom any such
shares or other securities are issued, sold or otherwise transferred executes
and delivers to the Underwriters a Lock-Up Agreement and provided further that
such issuance, offer, sale or transfer does not involve a public offering of
securities in the United States or elsewhere.
(ix) The Company will make available to the Representatives (A)
during the period of five years from the effective date of the Registration
Statement, copies of all reports or other communications (financial or other)
furnished to security holders or from time to time published or publicly
disseminated by the Company and, as soon as they are available, copies of any
reports, financial statements and proxy or information statements furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (B), during the period of two
years from the effective date of the Registration Statement, such additional
information concerning the business and financial condition of the Company as
the Representatives may from time to time reasonably request (such financial
information to be on a consolidated basis to the extent the accounts of the
Company and the Subsidiaries are consolidated in reports furnished to its
security holders generally or to the Commission); provided, that any information
or documents available on EDGAR shall be considered sufficiently made available
for the purposes of this Section 6(a)(ix); and provided further, that the
Underwriters shall sign a confidentiality agreement, containing such customary
terms and conditions as the Company shall reasonably request, regarding any
additional information made available pursuant to clause (B) of this Section
6(a)(ix).
(x) The Company will use its best efforts either (i) to maintain
the listing of the Common Stock on the NYSE, (ii) to list, and to maintain the
listing of, the Common Stock on any other national securities exchange
registered pursuant to Section 6(a) of the Exchange Act or (iii) to arrange for
the quotation, and to maintain the quotation of, the Common Stock in an
automated interdealer quotation system of a national securities association
registered pursuant to Section 15A(a) of the Exchange Act.
(xi) The Company, during the period when a prospectus (or, in
lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is
required to be delivered under the Securities Act in connection with the offer
or sale of the Shares, will file all reports and other documents required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act and the Rules and Regulations within the time periods
required thereby.
(xii) If the Company elects to rely upon Rule 462(b) under the
Securities Act, the Company shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462 by 10:00 P.M. (New York City time),
on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the Securities Act.
(xiii) The Company will use its best efforts to do and perform
all things required to be done or performed under this Agreement by the Company
prior to the Closing Date or the Additional Closing Date, as the case may be,
and to satisfy all conditions precedent to the delivery of the Firm Shares and
the Additional Shares.
(xiv) The Company will not take, and will cause its affiliates
(within the meaning of Rule 144 under the Securities Act) not to take, directly
or indirectly, any action which constitutes or is designed to cause or result
in, or which would constitute, cause or result in, the stabilization or
manipulation of the price of any security to facilitate the sale or resale of
the Shares.
(xv) The Company will apply the net proceeds from the sale of the
Shares as described in the Registration Statement and the Prospectus under the
heading "Use of proceeds."
(b) The Management Selling Stockholders and the Principal hereby
jointly and severally covenant and agree with each Underwriter:
(i) To deliver to the Custodian prior to the Closing Date,
properly completed and executed United States Treasury Department Form W-8 (if
such Selling Stockholder is a non-United States Person) or Form W-9 (if such
Selling Stockholder is a United States Persons), which in each case may be
replaced by any other applicable form or statement specified by Treasury
Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Underwriters if, at
any time prior to the date on which the distribution of the Shares as
contemplated herein and in the Prospectus has been completed, as determined by
the Underwriters, such Selling Stockholder has knowledge of the occurrence of
any event as a result of which the Pricing Disclosure Package (prior to the
availability of the Prospectus) or the Prospectus or the Registration Statement,
in each case as then amended or supplemented, would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(iii) To cooperate to the extent necessary to cause the
Registration Statement or any post-effective amendment thereto to become
effective at the earliest possible time and to do and perform all things to be
done and performed under this Agreement prior to the Closing Date and the
Additional Closing Date, if any, and to satisfy all conditions precedent to the
delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp
duties and other similar taxes with respect to the Shares, if any, to be sold by
such Selling Stockholder; and
(v) To deliver to the Underwriters on or prior to the date of
this Agreement the lock-up agreement referred to in Section 8(p) hereof; and
(vi) Such Selling Stockholder has not, prior to the execution of
this Agreement, distributed any "prospectus" (within the meaning of the
Securities Act) or offering material in connection with the offering or sale of
the Shares other than the Pricing Prospectus, and will not, at any time on or
after the execution of this Agreement, distributed any "prospectus" (within the
meaning of the Securities Act) of offering material in connection with the
offering or sale of the Shares other than the Pricing Prospectus and the then
most recent Prospectus.
(c) The Additional Selling Stockholder covenants and agrees with each
Underwriter:
(i) To deliver to the Custodian prior to the Closing Date,
properly completed and executed United States Treasury Department Form W-8 (if
such Selling Stockholder is a non-United States Person) or Form W-9 (if such
Selling Stockholder is a United States Persons), which in each case may be
replaced by any other applicable form or statement specified by Treasury
Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Underwriters if, at
any time prior to the date on which the distribution of the Shares as
contemplated herein and in the Prospectus has been completed, as determined by
the Underwriters, such Selling Stockholder has knowledge of the occurrence of
any event as a result of which the Pricing Disclosure Package (prior to the
availability of the Prospectus) or the Prospectus or the Registration Statement,
in each case as then amended or supplemented, would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(iii) To cooperate to the extent necessary to cause the
Registration Statement or any post-effective amendment thereto to become
effective at the earliest possible time and to do and perform all things to be
done and performed under this Agreement prior to the Closing Date and the
Additional Closing Date, if any, and to satisfy all conditions precedent to the
delivery of the Shares pursuant to this Agreement;
(iv) To pay or to cause to be paid all transfer taxes, stamp
duties and other similar taxes with respect to the Shares, if any, to be sold by
such Selling Stockholder; and (v) To deliver to the Underwriters on or prior to
the date of this Agreement the lock-up agreement referred to in Section 8(p)
hereof; and
(vi) Such Selling Stockholder has not, prior to the execution of
this Agreement, distributed any "prospectus" (within the meaning of the
Securities Act) or offering material in connection with the offering or sale of
the Shares other than the Pricing Prospectus, and will not, at any time on or
after the execution of this Agreement, distributed any "prospectus" (within the
meaning of the Securities Act) of offering material in connection with the
offering or sale of the Shares other than the Pricing Prospectus and the then
most recent Prospectus.
(d) Each Underwriter, severally and not jointly, covenants and agrees
with the Company that such Underwriter will not use or refer to any "free
writing prospectus" (as defined in Rule 405 under the Securities Act) without
the prior written consent of the Company if such Underwriter's use of or
reference to such free writing prospectus would require the Company to file with
the Commission any "issuer information" (as defined in Rule 433 under the
Securities Act).
7. Payment of Expenses
(a) Except as otherwise agreed in writing, whether or not the
transactions contemplated by this Agreement, the Registration Statement and the
Pricing Prospectus are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of its
obligations hereunder, including the following: (i) all expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Issuer Free Writing Prospectus, any Preliminary Prospectus, the Prospectus and
any and all amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Securities Act and the Offering; (iii) the
cost of producing this Agreement, closing documents and other instruments,
agreements or documents (including any compilations thereof) in connection with
the Offering; (iv) all expenses in connection with the qualification of the
Shares for offering and sale under state or foreign securities or blue sky laws
as provided in Section 6(a)(vi) hereof, including the fees and disbursements, in
an amount not to exceed $20,000, of counsel for the Underwriters in connection
with such qualification and in connection with any blue sky survey; (v) the
filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the NASD of the
terms of the Offering; (vi) all fees and expenses in connection with listing the
Shares on the NYSE; and (vii) all travel expenses of the Company's officers and
employees and any other expense of the Company incurred in connection with
attending or hosting meetings with prospective purchasers of the Shares
(including, without limitation, all expenses incurred by the Company in
connection with any "road show" presentation to potential investors). The
Company also will pay or cause to be paid: (a) the cost of preparing stock
certificates representing the Shares; (b) the cost and charges of any transfer
agent or registrar for the Shares; and (c) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 7. It is understood, however, that
except as provided in this Section 7, and Sections 9, 10 and 14 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
and expenses of their counsel and stock transfer taxes on resale of any of the
Shares by them. The Underwriters will reimburse the Company on the Closing Date
for (x) the expenses set forth in clause (vii) above for the period from March
17, 2007 through and including March 28, 2007 and (y) the fees and expenses of
counsel to the Company, printer fees and the cost of producing any blue sky
surveys pursuant to clause (iv) above, in each case incurred in connection with
the Offering, up to $360,000 in the aggregate. Notwithstanding anything to the
contrary in this Section 7, in the event that this Agreement is terminated
pursuant to Section 8 or 14(b) hereof, or subsequent to a Material Adverse
Change, the Company will pay all out-of pocket expenses of the Underwriters
(including but not limited to fees and expenses of counsel to the Underwriters)
incurred in connection herewith.
(b) Except as otherwise agreed in writing, whether or not the
transactions contemplated by this Agreement, the Registration Statement and the
Pricing Prospectus are consummated or this Agreement is terminated, the
Management Selling Stockholders and the Principal hereby jointly and severally
agree to pay all fees and expenses related to the offering of the Firm Shares to
be sold by the Management Selling Stockholders, including (i) the fees and
expenses of their respective counsel, if any, and (ii) any applicable stock
transfer or other taxes related to the offering of such Firm Shares.
(c) Except as otherwise agreed in writing, whether or not the
transactions contemplated by this Agreement, the Registration Statement and the
Pricing Prospectus are consummated or this Agreement is terminated, the
Additional Selling Stockholder hereby agrees to pay all fees and expenses
related to the offering of the Firm Shares to be sold by the Additional Selling
Stockholder, including (i) the fees and expenses of its counsel, if any, and
(ii) any applicable stock transfer or other taxes related to the offering of
such Firm Shares.
(d) Notwithstanding the foregoing, nothing herein shall affect any
agreement that any of the Company, the Management Selling Stockholders, the
Principal and the Additional Selling Stockholder may make with one another for
the sharing or allocation of such costs and expenses.
8. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company, the Selling Stockholders and the Principal herein
contained, as of the date hereof and as of the Closing Date (for purposes of
this Section 8, "Closing Date" shall refer to the Closing Date for the Firm
Shares and any Additional Closing Date, if different, for the Additional
Shares), to the absence from any opinions furnished to the Representatives or to
Underwriters' Counsel pursuant to this Section 8 of any misstatement or
omission, to the absence from any certificates, written statements or letters
furnished to the Representatives or to Underwriters' Counsel pursuant to this
Section 8 of any misstatement or omission in the case of any statement that is
qualified as to materiality and any material misstatement or omission in the
case of any statement that is not qualified as to materiality, to the
performance by the Company, the Selling Stockholders and the Principal of their
respective obligations hereunder, and to each of the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 6(a)(i) hereof; no stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto and no stop order suspending or preventing the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus,
shall have been issued by the Commission and no proceedings therefor shall have
been initiated or threatened by the Commission; all requests for additional
information on the part of the Commission shall have been complied with to the
reasonable satisfaction of the Representatives; if the Company has elected to
rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M. (New York City time) on the
date of this Agreement; and all necessary foreign and domestic regulatory or
stock exchange approvals shall have been received.
(b) At the Closing Date, the Representatives shall have received the
written opinion of Seward & Kissel LLP, United States counsel for the Company,
the Management Selling Stockholders and the Principal, dated the Closing Date,
addressed to the Underwriters, in the form attached hereto as Annex I.
(c) At the Closing Date, the Representatives shall have received a
reliance letter, dated the Closing Date, addressed to the Underwriters,
permitting the Underwriters to rely on the written opinion of Seward & Kissel
LLP, United States tax counsel for the Company, dated the Closing Date,
addressed to the Company, as if such written opinion were rendered to them, in
each case, in the form attached hereto as Annex II.
(d) At the Closing Date, the Representatives shall have received the
written opinion of Seward & Kissel LLP, Marshall Islands counsel for the
Company, dated the Closing Date, addressed to the Underwriters, in the form
attached hereto as Annex III.
(e) At the Closing Date, the Representatives shall have received the
written opinion of Galindo, Arias & Lopez, Panamanian counsel for the Company
and Corozal Compania Naviera S.A., dated the Closing Date, addressed to the
Underwriters, in the form attached hereto as Annex IV.
(f) At the Closing Date, the Representatives shall have received the
written opinion of the GR. J. Timagenis Law Office, Greek counsel for the
Company and the Principal, dated the Closing Date, addressed to the
Underwriters, in the form attached hereto as Annex V.
(g) At the Closing Date, the Representatives shall have received the
written opinion of Lennox Paton, Bahamas counsel for the Company, dated the
Closing Date, addressed to the Underwriters, in the form attached hereto as
Annex VI.
(h) At the Closing Date, the Representatives shall have received the
written opinion of Dennis J. Reeder, special Marshall Islands Counsel to the
Company, dated the Closing Date, addressed to the Underwriters, in the form
attached hereto as Annex VII.
(i) At the Closing Date, the Representatives shall have received the
written opinion of Lennox Paton, Bahamas counsel for the Additional Selling
Stockholder, dated the Closing Date, addressed to the Underwriters, in the form
attached hereto as Annex VIII.
(j) At the Closing Date, the Representatives shall have received the
written opinion of Norton Rose, United States counsel for the Additional Selling
Stockholder, dated the Closing Date, addressed to the Underwriters, in the form
attached hereto as Annex IX.
(k) At the Closing Date, the Representatives shall have received the
written opinion of Seward & Kissel, LLP, special Liberian counsel for Ironwood
Trading Corp., dated the Closing Date, addressed to the Underwriters, in the
form attached hereto as Annex X.
(l) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be satisfactory in
form and substance to the Underwriters and to Underwriters' Counsel, and the
Underwriters shall have received from Underwriters' Counsel a written opinion,
dated as of the Closing Date, with respect to the sale of the Shares, the
Registration Statement, the Pricing Disclosure Package and the Prospectus and
such other related matters as the Underwriters may require, and the Company
shall have furnished to Underwriters' Counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(m) At the Closing Date, the Representatives shall have received a
certificate of the Chief Executive Officer and Chief Financial Officer of the
Company, dated the Closing Date, to the effect that (i) the condition set forth
in subsection (a) of this Section 8 has been satisfied, (ii) as of the date
hereof and as of the Closing Date, the representations and warranties of the
Company set forth in Section 1 hereof are accurate, (iii) as of the Closing Date
all agreements, conditions and obligations of the Company to be performed or
complied with hereunder on or prior thereto have been duly performed or complied
with, (iv) the Company and the Subsidiaries have not sustained any material loss
or interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, (v) no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof, or suspending the use of any Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been issued
and, in each case, no proceedings therefor have been initiated or threatened by
the Commission, (vi) there are no pro forma or as adjusted financial statements
that are required to be included in the Registration Statement and the Pricing
Prospectus pursuant to the Rules and Regulations that have not been included or
incorporated therein as so required and (vii) subsequent to the respective dates
as of which information is given in the Pricing Prospectus (exclusive of any
amendment or supplement thereto) there has not been any material adverse change
or any development involving a prospective material adverse change, whether or
not arising from transactions in the ordinary course of business, in or
affecting (x) the business, condition (financial or otherwise), results of
operations, stockholders' equity or properties of the Company and the
Subsidiaries, individually or taken as a whole; (y) the long-term debt or
capital stock of the Company or any of its Subsidiaries; or (z) the Offering or
consummation of any of the other transactions contemplated by this Agreement,
the Registration Statement and the Pricing Prospectus.
(n) At the time this Agreement is executed and at the Closing Date,
the Representatives shall have received a comfort letter, from Ernst & Young
(Hellas) Certified Auditor Accountants S.A., independent registered public
accountants for the Company, dated, respectively, as of the date of this
Agreement and as of the Closing Date, addressed to the Underwriters and in form
and substance satisfactory to the Underwriters and Underwriters' Counsel.
(o) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Pricing Prospectus
(exclusive of any supplement thereto), there shall not have been any change in
the capital stock or long-term debt of the Company or any Subsidiary or any
change or development involving a change, whether or not arising from
transactions in the ordinary course of business, in the business, condition
(financial or otherwise), results of operations, stockholders' equity or
properties of the Company and the Subsidiaries, individually or taken as a
whole, including but not limited to the occurrence of any fire, flood, storm,
explosion, accident or other calamity at any of the properties owned or leased
by the Company or any of its Subsidiaries, the effect of which, in any such case
described above, is, in the judgment of the Underwriters, so material and
adverse as to make it impracticable or inadvisable to proceed with the Offering
on the terms and in the manner contemplated in the Pricing Prospectus (exclusive
of any supplement).
(p) At the time this Agreement is executed, the Representatives shall
have received a duly executed Lock-Up Agreement from each person listed in
Schedule V attached hereto, in each case substantially in the form attached
hereto as Annex XI.
(q) At the Closing Date, the Shares shall be listed on the NYSE.
(r) At the Closing Date, the NASD shall have confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements with respect to the Offering.
(s) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any federal, state or
foreign governmental or regulatory authority that would, as of the Closing Date,
prevent the sale and delivery of the Shares; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Shares.
(t) At the Closing Date, the Representatives shall have received a
certificate of an authorized representative of each Management Selling
Stockholder, dated the Closing Date, to the effect that the representations and
warranties of such Selling Stockholder set forth in Section 3 hereof are
accurate and that such Selling Stockholder has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date.
(u) At the Closing Date, you shall have received a certificate of an
authorized representative of the Additional Selling Stockholder, dated the
Closing Date, to the effect that the representations and warranties of such
Selling Stockholder set forth in Section 4 hereof are accurate and that such
Selling Stockholder has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date.
(v) On or prior to the Closing Date, the Custodian shall have received
from each Selling Stockholder a properly completed and executed United States
Treasury Department Form W-8 (if such Selling Stockholder is a non-United States
Person) or Form W-9 (if such Selling Stockholder is a non-United States Person),
which in each case may be replaced by any other applicable form or statement
specified by Treasury Department regulations in lieu thereof.
(w) The Company and the Selling Stockholders shall have furnished to
the Underwriters and to Underwriters' Counsel such other certificates, opinions
or other documents as they may have reasonably requested.
If any of the conditions specified in this Section 8 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to the Representatives or to
Underwriters' Counsel pursuant to this Section 8 shall not be satisfactory in
form and substance to the Underwriters and to Underwriters' Counsel, all
obligations of the Underwriters hereunder may be cancelled by the Underwriters
at, or at any time prior to, the Closing Date and the obligations of the
Underwriters to purchase the Additional Shares may be cancelled by the
Underwriters at, or at any time prior to, the Additional Closing Date. Notice of
such cancellation shall be given to the Company in writing or by telephone. Any
such telephone notice shall be confirmed promptly thereafter in writing.
9. Indemnification.
(a) The Company, the Management Selling Stockholders and the
Principal, jointly and severally, shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each affiliate of any Underwriter within the meaning of Rule 405 under the
Securities Act from and against any and all losses, liabilities, claims, damages
and expenses whatsoever as incurred (including but not limited to attorneys'
fees and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue statement of
a material fact contained (A) in the Registration Statement as originally filed
or any amendment thereof, or in any Preliminary Prospectus or the Prospectus, or
in any supplement thereto or amendment thereof, or in any Issuer Free Writing
Prospectus, or in any "issuer information" (as defined in Rule 433(h)(2) under
the Securities Act) filed or required to be filed pursuant to Rule 433(d) under
the Securities Act, or (B) in any "road show" (as defined in Rule 433 under the
Securities Act) for the Offering that is a "written communication" (as defined
in Rule 405 under the Securities Act) ("Marketing Materials"), or (ii) the
omission or alleged omission to state in the Registration Statement, as
originally filed or any amendment thereof, or in any Preliminary Prospectus or
the Prospectus, or in any supplement thereto or amendment thereof, or in any
Issuer Free Writing Prospectus, or in any "issuer information" (as defined in
Rule 433(h)(2) under the Securities Act) filed or required to be filed pursuant
to Rule 433(d) under the Securities Act, or in any Marketing Materials, a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, the Company, the Management Selling
Stockholders and the Principal will not be liable in any such case to the extent
but only to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon (x) any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by the Underwriters
expressly for use therein or (y) any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with the information furnished to the Company by or on behalf of the
Additional Selling Stockholder expressly for use therein; and provided further,
however, that in no case shall the Management Selling Stockholders and the
Principal be liable or responsible for any amount in excess of the product of
(i) the aggregate number of Shares sold by the Management Selling Stockholders
and (ii) the purchase price per Share set forth in Section 4(a) hereof. The
parties agree that such information provided by or on behalf of any Underwriter
and the Additional Selling Stockholder consists solely of the material referred
to in Section 18 hereof. This indemnity agreement will be in addition to any
liability which the Company may otherwise have, including but not limited to
other liability under this Agreement.
(b) The Additional Selling Stockholder shall indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and each affiliate of any Underwriter within the meaning of Rule
405 under the Securities Act from and against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but not limited
to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in the Registration Statement,
as originally filed or any amendment thereof, or in any Preliminary Prospectus
or the Prospectus, or in any supplement thereto or amendment thereof, or in any
Issuer Free Writing Prospectus, or in any "issuer information" (as defined in
Rule 433(h)(2) under the Securities Act) filed or required to be filed pursuant
to Rule 433(d) under the Securities Act, or (B) in any Marketing Materials, or
(ii) the omission or alleged omission to state in the Registration Statement, as
originally filed or any amendment thereof, or in any Preliminary Prospectus or
the Prospectus, or in any supplement thereto or amendment thereof, or in any
Issuer Free Writing Prospectus, or in any "issuer information" (as defined in
Rule 433(h)(2) under the Securities Act) filed or required to be filed pursuant
to Rule 433(d) under the Securities Act, or in any Marketing Materials, a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Additional Selling
Stockholder will be liable in each case to the extent but only to the extent
that any such loss, liability, claim, damage or expense arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Additional Selling Stockholder
expressly for use therein; and provided further, however, that in no case shall
the Additional Selling Stockholder be liable or responsible for any amount in
excess of the product of (i) the aggregate number of Shares sold by the
Additional Selling Stockholder and (ii) the purchase price per Share set forth
in Section 4(a) hereof. The parties agree that such information provided by or
on behalf of the Additional Selling Stockholder consists solely of the material
referred to in Section 18 hereof. This indemnity agreement will be in addition
to any liability which the Additional Selling Stockholder may otherwise have,
including but not limited to other liability under this Agreement.
(c) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration Statement, each
other person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, each Selling
Stockholder and the Principal against any losses, liabilities, claims, damages
and expenses whatsoever as incurred (including but not limited to attorneys'
fees and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed or
any amendment thereof, or in any Preliminary Prospectus or the Prospectus, or in
any amendment thereof or supplement thereto or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Underwriter specifically for use therein; provided, however, that in no case
shall any Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares to be purchased by such
Underwriter hereunder. The parties agree that such information provided by or on
behalf of any Underwriter and the Additional Selling Stockholder consists solely
of the material referred to in Section 18 hereof. This indemnity will be in
addition to any liability which any Underwriter may otherwise have, including
but not limited to other liability under this Agreement.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of any claims or the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party against
whom indemnification is to be sought in writing of the claim or the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve
the indemnifying party from any liability which it may have under this Section 9
(except to the extent that the indemnifying party is materially prejudiced as a
result thereof and is not otherwise aware of the claim or litigation in respect
of which indemnification is sought) and in any event shall not relieve it from
any liability that such indemnifying party may have otherwise than on account of
the indemnity agreement hereunder). In case any such claim or action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate, at
its own expense in the defense of such action, and to the extent it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party; provided however, that counsel
to the indemnifying party shall not (except with the written consent of the
indemnified party) also be counsel to the indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to have charge of the
defense of such action within a reasonable time after notice of commencement of
the action, (iii) the indemnifying party does not diligently defend the action
after assumption of the defense, or (iv) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. No indemnifying party shall, without the prior written
consent of the indemnified parties, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
claim, investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an indemnified party under this
Section 9 or Section 10 hereof (whether or not the indemnified party is an
actual or potential party thereto), unless (x) such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such claim, investigation, action or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or
any failure to act, by or on behalf of the indemnified party, and (y) the
indemnifying party confirms in writing its indemnification obligations hereunder
with respect to such settlement, compromise or judgment.
10. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 9 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company, the Selling Stockholders
and the Principal, on the one hand, and the Underwriters, on the other hand,
shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company, the Selling Stockholders and
the Principal, any contribution received by the Company, the Selling
Stockholders and the Principal from persons, other than the Underwriters, who
may also be liable for contribution, including persons who control the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, officers of the Company who signed the Registration Statement and
directors of the Company) as incurred to which the Company, the Selling
Stockholders and the Principal and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company, the Selling Stockholders and the Principal, on the one
hand, and the Underwriters, on the other hand, from the Offering or, if such
allocation is not permitted by applicable law, in such proportions as are
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company, the Selling Stockholders and the Principal,
on the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, the Selling Stockholders and the
Principal, on the one hand and the Underwriters, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the Offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company, the Selling Stockholders and the Principal bears to (y)
the underwriting discount or commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company, the Selling Stockholders and the Principal, on the one
hand, and of the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders and the
Principal, on the one hand, or the Underwriters, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Stockholders and the Principal and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 10 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 10. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 10 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any judicial, regulatory or other legal or
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission. Notwithstanding the provisions of this Section 10, (i) no Underwriter
shall be required to contribute any amount in excess of the amount by which the
discounts and commissions applicable to the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission; (ii) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation; (iii) the Management Selling
Stockholders and the Principal shall not be required to contribute an amount in
excess of the product of (A) the aggregate number of Shares sold by the
Management Selling Stockholders and (B) the purchase price per Share set forth
in Section 4(a) hereof; and (iv) the Additional Selling Stockholder in excess of
the product of (A) the aggregate number of Shares sold by the Additional Selling
Stockholder and (B) the purchase price per Share set forth in Section 4(a)
hereof. For purposes of this Section 10, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act shall have the same rights to contribution as
such Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i), (ii), (iii) and (iv) of the
immediately preceding sentence. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 10 or otherwise. The
obligations of the Company, the Selling Stockholders and the Principal to
contribute pursuant to this Section 10 or otherwise shall be joint and several
as among the Company, the Management Selling Stockholders and the Principal and
several and not joint as between the Additional Selling Stockholder, on the one
hand, and the Company, the Management Selling Stockholders and the Principal, on
the other hand. The obligations of the Underwriters to contribute pursuant to
this Section 10 are several in proportion to the respective number of Shares to
be purchased by each of the Underwriters hereunder and not joint.
11. Underwriter Default.
(a) If an Underwriter shall default in its obligation to purchase Firm
Shares or Additional Shares hereunder, and if the Firm Shares or Additional
Shares with respect to which such default relates (the "Default Shares") do not
(after giving effect to arrangements, if any, made by the Underwriters pursuant
to subsection (b) below) exceed in the aggregate 10% of the number of Firm
Shares or Additional Shares, the non-defaulting Underwriters agree to purchase
from the Selling Stockholders the Default Shares.
(b) In the event that the aggregate number of Default Shares exceeds
10% of the number of Firm Shares or Additional Shares, as the case may be, the
non-defaulting Underwriters may in their discretion arrange for themselves or
for another party or parties to purchase the Default Shares on the terms
contained herein. In the event that within five calendar days after such a
default the non-defaulting Underwriters do not arrange for the purchase of the
Default Shares as provided in this Section 11, this Agreement, or, in the case
of a default with respect to the Additional Shares, the obligations of the
Underwriters to purchase and of the Selling Stockholders to sell the Additional
Shares, shall thereupon terminate, without liability on the part of the Company,
the Selling Stockholders or the Principal with respect thereto (except in each
case as provided in Sections 7, 9, 10, 13 and 14) or the Underwriters, but
nothing in this Agreement shall relieve the defaulting Underwriter of its
liability, if any, to the other Underwriters, the Company, the Selling
Stockholders or the Principal for damages occasioned by its default hereunder.
(c) In the event that any Default Shares are to be purchased by the
non-defaulting Underwriters, or are to be purchased by another party or parties
as aforesaid, the Underwriters or the Company shall have the right to postpone
the Closing Date or Additional Closing Date, as the case may be, for a period
not exceeding five business days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents and arrangements, and the Company agrees to file promptly
any amendment or supplement to the Registration Statement or the Prospectus
which, in the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 11 with like effect as if it had originally
been a party to this Agreement with respect to such Firm Shares and Additional
Shares.
12. Company or Selling Stockholders' Default.
(a) If the Company or any Selling Stockholder shall default in its
obligation to sell and deliver any Firm Shares hereunder on the Closing Date,
then the Underwriters may, by notice to the Company and the non-defaulting
Selling Stockholders, terminate this Agreement without any liability on the part
of any non-defaulting party except that the provisions of Sections 1, 2, 3, 4,
8, 10, 11, 13 and 14 hereof shall remain in full force and effect. If the
Company shall default in its obligation to sell and deliver any Additional
Shares hereunder at any time after the Closing Date, then the Underwriters may,
by notice to the Company, terminate this Agreement except that the provisions of
Sections 1, 2, 3,4, 6, 8, 10, 11, 13 and 14 hereof, and the provisions of
Section 4 hereof that relate to the purchase of the Firm Shares by the
Underwriters and the provisions of Section 8 hereof that relate to the
conditions to the Underwriters' obligations to purchase and pay for the Firm
Shares, shall remain in full force and effect. No action taken pursuant to this
Section 12 shall relieve the defaulting Selling Stockholder or the Company, in
the case of its default, from liability, if any, in respect of such default.
(b) In the event that the Company or a Selling Stockholder shall
default in its obligation to sell and deliver any Firm Shares or Additional
Shares hereunder and the Company and the Underwriters agree to proceed with the
Offering, then the Underwriters may, at their option, or the Company shall have
the right, in each case by notice to the other, to postpone the Closing Date or
Additional Closing Date, as the case may be, for a period not exceeding five
business days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement, the Prospectus, the Pricing Prospectus, any
Issuer Free Writing Prospectus or in any other documents and arrangements, and
the Company agrees to file promptly any amendment or supplement thereto in form
and substance reasonably satisfactory to Underwriters' Counsel that may thereby
be made necessary or advisable; and in no event shall the other Selling
Stockholders be obligated to increase the number of Shares they are required to
sell hereunder.
13. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters, the Company, the
Selling Stockholders and the Principal contained in this Agreement or in
certificates of officers of the Company, a Selling Stockholder or the Principal
submitted pursuant hereto, including the agreements contained in Section 7, the
indemnity agreements contained in Section 9 and the contribution agreements
contained in Section 10 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person thereof or by or on behalf of the Company, any of the Selling
Stockholders, any of their officers and directors or any controlling person
thereof or the Principal, and shall survive delivery of and payment for the
Shares to and by the Underwriters. The representations contained in Sections 1,
2 and 3 and the agreements contained in Sections 7, 9, 10, 13 and 14 hereof
shall survive any termination of this Agreement, including termination pursuant
to Section 11, 12 or 14 hereof.
14. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution and
delivery of this Agreement. Notwithstanding any termination of this Agreement
pursuant to this Section 14, the provisions of this Section 14 and of Sections
1, 2, 3, 7, 9, 10 and 13 and 15 through 22, inclusive, shall be in full force
and effect at all times after the execution and delivery hereof.
(b) The Underwriters shall have the right to terminate this Agreement
at any time prior to the Closing Date or to terminate the obligations of the
Underwriters to purchase the Additional Shares at any time prior to the
Additional Closing Date, as the case may be, if (i) any domestic or
international event or act or occurrence has materially disrupted, or in the
opinion of the Underwriters will in the immediate future materially disrupt, the
market for the Company's securities or securities in general; or (ii) if trading
on or by the NYSE (the "Exchange") shall have been suspended or been made
subject to material limitations, or minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices for securities shall have been
required, on the Exchange or by order of the Commission or any other
governmental authority having jurisdiction; or (iii) if a banking moratorium has
been declared by any state or federal authority or if any material disruption in
commercial banking or securities settlement or clearance services shall have
occurred; or (iv) in the judgment of the Underwriters, any Material Adverse
Change shall have occurred since the respective dates as of which information is
given in the Pricing Prospectus (exclusive of any amendment or supplement
thereto since the date hereof); or (v) (A) if there shall have occurred any
outbreak or escalation of hostilities or acts of terrorism involving the United
States or there is a declaration of a national emergency or war by the United
States or (B) if there shall have been any other calamity or crisis or any
change in political, financial or economic conditions if the effect of any such
event in (A) or (B), in the judgment of the Underwriters, makes it impracticable
or inadvisable to proceed with the offering, sale and delivery of the Firm
Shares or the Additional Shares, as the case may be, on the terms and in the
manner contemplated by the Pricing Prospectus.
(c) Any notice of termination pursuant to this Section 14 shall be in
writing.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than pursuant to (i) notification by the Underwriters
as provided in subsection (a) of this Section 14 or (ii) Section 11(b) hereof),
or if the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by the Underwriters, reimburse the Underwriters
for all out-of-pocket expenses (including the fees and expenses of their
counsel), incurred by the Underwriters in connection herewith.
15. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to the Underwriters, shall be mailed, delivered, or faxed
and confirmed in writing, to J.P. Morgan Securities Inc. at the following
address: J.P. Morgan Securities Inc., 277 Park Avenue, New York, New York 10172
(fax: (212) 622-8358), Attention: Equity Syndicate Desk, with a copy to
Underwriters' Counsel at Simpson Thacher & Bartlett LLP, 425 Lexington Avenue,
New York, New York 10017, Attention: Michael Nathan, Esq., and
(b) if sent to the Company, a Management Selling Stockholder or the
Principal, shall be mailed, delivered, or faxed and confirmed in writing to the
Company and its counsel at the following address: Diana Shipping Inc., Pendelis
16, 175 64 Palaio Faliro, Athens, Greece, Attention: Mr. Anastassis Margaronis,
President, with a copy to the Company's counsel, Seward & Kissel LLP, One
Battery Park Plaza, New York, New York 10004, Attention: Gary Wolfe.
(c) if sent to the Additional Selling Stockholder, shall be mailed,
delivered, or faxed and confirmed in writing to Fortis Bank (Nederland) N.V.
Coolsingel 93, 3012 AE Rotterdam, Netherlands, Attention: Karianne Tieleman,
with a copy to Norton Rose, Kempson House, Camomile Street, London EC3A 7AN,
United Kingdom.
16. Parties. This Agreement shall inure solely to the benefit of, and shall
be binding upon, the Underwriters, the Company, the Selling Stockholders and the
Principal and the controlling persons, directors, officers, employees and agents
referred to in Sections 9 and 10 hereof, and their respective successors and
assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of
the parties hereto and said controlling persons and their respective successors,
officers, directors, heirs and legal representatives, and it is not for the
benefit of any other person, firm or corporation. The term "successors and
assigns" shall not include a purchaser, in its capacity as such, of Shares from
any of the Underwriters.
17. Governing Law and Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York. Each of the Company, the Selling Stockholders and the Principal
irrevocably (a) submits to the jurisdiction of any court of the State of New
York or the United State District Court for the Southern District of the State
of New York for the purpose of any suit, action, or other proceeding arising out
of this Agreement, or any of the agreements or transactions contemplated by this
Agreement, the Registration Statement and the Pricing Prospectus (each, a
"Proceeding"), (b) agrees that all claims in respect of any Proceeding may be
heard and determined in any such court, (c) waives, to the fullest extent
permitted by law, any immunity from jurisdiction of any such court or from any
legal process therein, (d) agrees not to commence any Proceeding other than in
such courts, and (e) waives, to the fullest extent permitted by law, any claim
that such Proceeding is brought in an inconvenient forum. Each of the Company,
the Selling Stockholders and the Principal hereby irrevocably designates Seward
& Kissel LLP, One Battery Park Plaza, New York, New York 10004 as agent upon
whom process against it may be served. EACH OF THE COMPANY, THE SELLING
STOCKHOLDERS AND THE PRINCIPAL HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY
LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
18. Acknowledgement of Information Provided. The parties acknowledge and
agree that, for purposes of Sections 1(b), 1(c), 1(d) and 9 hereof, such
information provided by or on behalf of any Underwriter consists solely of the
following information in the Prospectus: (i) the concession and reallowance
figures appearing in the first and second sentences of the fourth paragraph
under the caption "Underwriting," (ii) the third and fourth sentences of the
fourth paragraph under the caption "Underwriting," (iii) the eighth, fifteenth
and sixteenth paragraphs under the caption "Underwriting" and (iv) the second
and third sentences of the seventeenth paragraph under the caption
"Underwriting." The parties acknowledge and agree that, for purposes of Sections
1(b), 1(c), 1(d), 3(k) and 9 hereof, such information provided by or on behalf
of the Additional Selling Stockholder consists solely of (i) the information
included in the Pricing Prospectus under the caption "Selling Stockholders" and
(ii) the information included in the Prospectus under the caption "Selling
Stockholders."
19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. Delivery of
a signed counterpart of this Agreement by facsimile transmission shall
constitute valid and sufficient delivery thereof.
20. Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
21. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
22. Time is of the Essence. Time shall be of the essence of this Agreement.
As used herein, except where otherwise expressly provided, (i) the term
"affiliate" has the meaning set forth in Rule 405 under the Securities Act; and
(ii) the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business other than days when banking institutions
in the City of New York are authorized by law, regulation or executive order to
be closed.
[Signature pages follow.]
If the foregoing correctly sets forth your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us.
Very truly yours,
DIANA SHIPPING INC.
By: /s/ Simeon Palios
-------------------------------------------
Name: Simeon Palios
Title: Chief Executive Officer
COROZAL COMPANIA NAVIERA S.A.
By: /s/ Simeon Palios
-------------------------------------------
Name: Simeon Palios
Title: Authorized Signatory
IRONWOOD TRADING CORP.
By: /s/ Simeon Palios
-------------------------------------------
Name: Simeon Palios
Title: Authorized Signatory
ZOE S. COMPANY LTD.
By: /s/ Don A. Stubbs / /s/ Gersham Pratt
-------------------------------------------
Name: Don A. Stubbs / Gersham Pratt
Title: Directors
SIMEON PALIOS
By: /s/ Simeon Palios
-------------------------------------------
Name: Simeon Palios
Accepted as of the date first above written, for themselves and on behalf of the
several Underwriters listed in Schedule I hereto.
J.P. MORGAN SECURITIES INC.
By: /s/ N. Goksu Yolac
-------------------------------------------
Authorized Signatory
Name: N. Goksu Yolac
Title: Vice President
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ J. Andrew Sanford
-------------------------------------------
Authorized Signatory
Name: J. Andrew Sanford
Title: Managing Director
SCHEDULE I
Number of Additional Shares to
Total Number of Firm be Purchased if Over-Allotment
Underwriters Shares to be Purchased Option is Fully Exercised
------------ ---------------------- ------------------------------
J.P. Morgan Securities Inc...................... 5,775,000 866,250
Wachovia Capital Markets, LLC................... 3,150,000 472,500
BB&T Capital Markets, a division of Scott &
Stringfellow, Inc........................... 525,000 78,750
Dahlman Rose & Company, LLC..................... 525,000 78,750
Morgan Keegan & Company, Inc.................... 525,000 78,750
Total...................................... 10,500,000 1,575,000
SCHEDULE II
Total Number of Firm Shares
Management Selling Stockholders to be Sold
------------------------------- -----------------------------
Corozal Compania Naviera S.A................ 419,070
Ironwood Trading Corp....................... 838,140
Total.................................. 1,257,210
SCHEDULE III
Total Number of Firm Shares
Additional Selling Stockholder to be Sold
------------------------------ ----------------------------
Zoe S. Company Ltd................................. 992,790
Total.............................................. 992,790
SCHEDULE IV
Subsidiaries
------------
Husky Trading S.A.
Panama Compania Armadora S.A.
Skyvan Shipping Company S.A.
Buenos Aires Compania Armadora S.A.
Eaton Marine S.A.
Chorrera Compania Armadora S.A.
Cypres Enterprises Corp.
Urbina Bay Trading S.A.
Darien Compania Armadora S.A.
Texford Maritime S.A.
Changame Compania Armadora S.A.
Cerada International S.A.
Vesta Commercial S.A.
Ailuk Shipping Company, Inc.
Bikini Shipping Company Inc.
Eniwetok Shipping Company Inc.
Jaluit Shipping Company Inc.
Kili Shipping Company Inc.
Knox Shipping Company Inc.
Lib Shipping Company Inc.
Majuro Shipping Company Inc.
Taka Shipping Company Inc.
Diana Shipping Services S.A.
Bulk Carriers (USA) LLC
SCHEDULE V
Persons Subject to Lock-Up Agreement
------------------------------------
Corozal Compania Naviera S.A
Ironwood Trading Corp.
Zoe S. Company Ltd.
Simeon Palios
Anastassis Margaronis
Andreas Michalopoulos
Konstantinos Koutsomitopoulos
Ioannis Zafirakis
Maria Dede
Boris Nachamkin
Apostolos Kontoyannis
Konstantinos Psaltis
William Lawes
SCHEDULE VI
Issuer Free Writing Prospectuses
--------------------------------
None.
Exhibit 99.2
Corporate Contact:
Ioannis Zafirakis
Director and Vice-President
Telephone: + 30-210-9470100
izafirakis@dianashippinginc.com
For Immediate Release
Investor and Media Relations:
Edward Nebb
Euro RSCG Magnet
Telephone: + 1-212-367-6848
ed.nebb@eurorscg.com
Diana Shipping Inc. Announces Pricing of Follow-On Offering
ATHENS, GREECE, March 29, 2007 - Diana Shipping Inc. (NYSE: DSX) today announced
the pricing of the previously announced underwritten public offering of
10,500,000 shares of common stock at $17.00 per share. The offering consists of
8,250,000 shares of common stock that will be sold by the Company, and 2,250,000
shares of common stock that will be sold by certain of the Company's
stockholders.
J.P. Morgan Securities Inc. and Wachovia Capital Markets, LLC are acting as
joint bookrunning managers. In connection with the offering, the underwriters
have been granted a 30-day option to purchase from the Company up to 1,575,000
additional shares of common stock to cover any over-allotments.
A registration statement relating to these securities has been filed with and
declared effective by the Securities and Exchange Commission. This communication
shall not constitute an offer to sell or the solicitation of an offer to buy,
nor shall there be any sale of these securities in any jurisdiction in which
such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of such jurisdiction. The offering of
these securities will be made only by means of a prospectus and related
prospectus supplement. Copies of the prospectus and prospectus supplement
relating to the offering may be obtained from J.P. Morgan Securities Inc. at
National Statement Processing, Prospectus Library, 4 Chase Metrotech Center, CS
Level, Brooklyn, NY 11245, telephone: 718-242-8002 or Wachovia Capital Markets,
LLC at 375 Park Avenue, New York, NY 10152, telephone: 800-326-5897.
About Diana Shipping Inc.
Diana Shipping Inc. is a global provider of shipping transportation services.
The Company specializes in transporting dry bulk cargoes, including such
commodities as iron ore, coal, grain and other materials along worldwide
shipping routes.
# # #
Exhibit 99.3
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
We estimate the expenses in connection with the issuance and
distribution of our common stock in the underwritten public offering of
10,500,000 shares of common stock (assuming no exercise of the underwriters'
over-allotment option) as further described in the prospectus supplement dated
March 28, 2007 and accompanying base prospectus, other than underwriting
discounts and commissions, to be as follows:
Printing and Engraving Expenses........................... 200,000
Legal Fees and Expenses................................... 150,000
Accountants' Fees and Expenses............................ 50,000
NYSE Supplemental Listing Fee............................. 25,000
Blue Sky Fees and Expenses................................ 25,000
Transfer Agent's Fees and Expenses........................ 20,000
Miscellaneous Costs....................................... 30,000
Total..................................................... $500,000
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
DIANA SHIPPING INC.
(registrant)
Dated: April 2, 2007 By: /s/ Anastassis Margaronis
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Anastassis Margaronis
President
SK 23159 0002 760800