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 December 2007
Commission
File Number
TOP
TANKERS INC.
(Translation
of registrant’s name into English)
1
VAS. SOFIAS & MEG.
ALEXANDROU
STREET
151
24, MAROUSSI
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 1.1 is the underwriting agreement dated
December 5, 2007 (the “Underwriting Agreement”), between Top Tankers Inc. (the
“Company”) and Deutsche Bank Securities Inc. (“Deutsche
Bank”). Pursuant to the Underwriting Agreement, Deutsche Bank acts as
representative for an underwriting syndicate consisting of itself, DVB Capital
Markets LLC, Cantor Fitzgerald & Co. and Oppenheimer & Co. Inc., in
connection with the Company’s public offering of 24,150,000 shares of its common
stock. The information contained in this filing is hereby
incorporated by reference as Exhibit 1.1 to the Company’s registration
statement filed on Form F-3 on August 1, 2005 (File No.
333-127086).
EXHIBIT
1.1
TOP
Tankers, Inc.
21,000,000
shares of Common Stock
($0.01
Par Value)
UNDERWRITING
AGREEMENT
December
5, 2007
Ladies
and Gentlemen:
TOP
Tankers, Inc., a Marshall Islands corporation (the “
Company
”), proposes
to sell to the several underwriters (the “
Underwriters
”) named in
Schedule I hereto for whom you are acting as representative (the
“
Representative
”) an aggregate of 21,000,000 shares (the “
Firm
Shares
”) of the Company’s common stock, $0.01 par value (the “
Common
Stock
”). The respective amounts of the Firm Shares to be so
purchased by the several Underwriters are set forth opposite their names in
Schedule I hereto. The Company also proposes to sell at the
Underwriters’ option an aggregate of up to 3,150,000 additional shares of the
Company’s Common Stock (the “
Option Shares
”) as set forth on Schedule II
hereto.
As
the Representative, you have advised the Company (a) that you are authorized
to
enter into this Agreement on behalf of the several Underwriters, and (b) that
the several Underwriters are willing, acting severally and not jointly, to
purchase the numbers of Firm Shares set forth opposite their respective names
in
Schedule I, plus their pro rata portion of the Option Shares set forth on
Schedule II if you elect to exercise the over-allotment option in whole or
in
part for the accounts of the several Underwriters. The Firm Shares
and the Option Shares (to the extent the aforementioned option is exercised)
are
herein collectively called the “
Shares
.”
In
consideration of the mutual agreements contained herein and of the interests
of
the parties in the transactions contemplated hereby, the parties hereto agree
as
follows:
1.
Representations and Warranties of the Company
.
(a) A
registration statement on Form F-3 (File No. 333-127086) with respect to the
Shares has been prepared by the Company in conformity with the requirements
of
the Securities Act of 1933, as amended (the “
Act
”), and the rules and
regulations (the “
Rules and Regulations
”) of the Securities and Exchange
Commission (the “
Commission
”) thereunder and has been filed with the
Commission. The Company and the transactions contemplated by this Agreement
meet
the requirements and comply with the conditions for the use of Form
F-3. Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the Rules
and
Regulations) contained therein and the exhibits, financial statements and
schedules, as finally amended and revised, have heretofore been delivered by
the
Company to you. Such registration statement, together with any
registration statement filed by the Company pursuant to Rule 462(b) under the
Act, is herein referred to as the “Registration Statement,” which shall be
deemed to include all information omitted therefrom in reliance upon Rules
430A,
430B or
430C
under the Act and contained in the Prospectus referred to below, has become
effective under the Act and no post-effective amendment to the Registration
Statement has been filed as of the date of this
Agreement. “Prospectus” means the form of prospectus first filed with
the Commission pursuant to and within the time limits described in Rule 424(b)
under the Act. Each preliminary prospectus included in the Registration
Statement prior to the time it becomes effective is herein referred to as a
“Preliminary Prospectus.” Any reference herein to the Registration Statement,
any Preliminary Prospectus or to the Prospectus or to any amendment or
supplement to any of the foregoing documents shall be deemed to refer to and
include any documents incorporated by reference therein, and, in the case of
any
reference herein to the Prospectus, also shall be deemed to include any
documents incorporated by reference therein, and any supplements or amendments
thereto, filed with the Commission after the date of filing of the Prospectus
under Rule 424(b) under the Act, and prior to the termination of the offering
of
the Shares by the Underwriters.
(b) As
of the Applicable Time (as defined below) and as of the Closing Date or the
Option Closing Date, as the case may be, neither (i) the General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable
Time, the Statutory Prospectus (as defined below) and the information included
on Schedule III hereto, all considered together (collectively, the “General
Disclosure Package”), nor (ii) any individual Limited Use Free Writing
Prospectus (as defined below), when considered together with the General
Disclosure Package, included or will include any untrue statement of a material
fact or omitted or will omit to state a material fact necessary in order to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading provided, however, that the Company makes no
representations or warranties as to information contained in or omitted from
any
Issuer Free Writing Prospectus, in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of any Underwriter
through the Representative, specifically for use therein, it being understood
and agreed that the only such information is that described in Section 13
herein. As used in this subsection and elsewhere in this
Agreement:
“Applicable
Time” means 9:30 am (New
York time) on the date of this Agreement or such other time as agreed to by
the
Company and the Representative.
“Statutory
Prospectus” as of any time
means the Preliminary Prospectus relating to the Shares that is included in
the
Registration Statement immediately prior to that time, including any document
incorporated by reference therein.
“Issuer
Free Writing Prospectus” means
any “issuer free writing prospectus,” as defined in Rule 433 under the Act,
relating to the Shares
in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained
in the Company’s records pursuant to Rule 433(g) under the Act.
“General
Use Free Writing Prospectus”
means any Issuer Free Writing Prospectus that is identified on Schedule IV
to
this Agreement.
“Limited
Use Free Writing Prospectus”
means any Issuer Free Writing Prospectus that is not a General Use Free Writing
Prospectus.
(c) The
Company has been duly organized and is validly existing as a corporation in
good
standing under the laws of the Republic of the Marshall Islands, with corporate
power and authority to own or lease its properties and conduct its business
as
described in the Registration Statement, the General Disclosure Package and
the
Prospectus. Each of the subsidiaries of the Company as listed in
Exhibit A hereto (collectively, the “Subsidiaries”) has been duly organized and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to own
or
lease its properties and conduct its business as described in the Registration
Statement, the General
Disclosure
Package and the Prospectus. The Subsidiaries are the only subsidiaries, direct
or indirect, of the Company. The Company and each of the Subsidiaries
are duly qualified to transact business in all jurisdictions in which the
conduct of their business requires such qualification. The
outstanding shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable are owned
by
the Company or another Subsidiary free and clear of all liens, encumbrances
and
equities and claims (other than any liens, encumbrances, and equities and claims
described in the Registration Statement, the General Disclosure
Package and the Prospectus; and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to convert
any obligations into shares of capital stock or ownership interests in the
Subsidiaries are outstanding.
(d) The
outstanding shares of Common Stock of the Company have been duly authorized
and
validly issued and are fully paid and non-assessable; the Shares to be issued
and sold by the Company have been duly authorized and when issued and paid
for
as contemplated herein will be validly issued, fully paid and non-assessable;
and no preemptive rights of stockholders exist with respect to any of the Shares
or the issue and sale thereof. Neither the filing of the Registration
Statement nor the offering or sale of the Shares as contemplated by this
Agreement gives rise to any rights, other than those which have been waived
or
satisfied, for or relating to the registration of any shares of Common
Stock.
(e) The
information set forth under the caption “Capitalization” in the Registration
Statement and the Prospectus (and any similar section or information contained
in the General Disclosure Package) is true and correct or, to the extent that
it
is based upon assumptions or projections, is based upon assumptions or
projections that the Company has determined in good
faith. All of the Shares conform to the description
thereof contained in the Registration Statement, the General Disclosure Package
and the Prospectus. The form of certificates for the
Shares conforms to the corporate law of the jurisdiction of the Company’s
incorporation.
(f) The
Commission has not issued an order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
relating to the proposed offering of the Shares, and no proceeding for that
purpose or pursuant to Section 8A of the Act has been instituted or, to the
Company’s knowledge, threatened by the Commission. The Registration Statement
contains, and the Prospectus and any amendments or supplements thereto will
contain, all statements which are required to be stated therein by, and will
conform to, the requirements of the Act and the Rules and
Regulations. The documents incorporated, or to be incorporated, by
reference in the Prospectus, at the time filed with the Commission conformed
or
will conform, in all respects to the requirements of the Securities Exchange
Act
of 1934 (“
Exchange Act
”) or the Act, as applicable, and the rules and
regulations of the Commission thereunder. The Registration Statement
and any amendment thereto do not contain, and will not contain, any untrue
statement of a material fact and do not omit, and will not omit, to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus and any amendments and
supplements thereto do not contain, and will not contain, any untrue statement
of a material fact; and do not omit, and will not omit, to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to information
contained in or omitted from the Registration Statement or the Prospectus,
or
any such amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of any Underwriter
through the Representative, specifically for use therein, it being understood
and agreed that the only such information is that described in Section 13
herein.
(g) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the completion of the public offer and sale of the Shares or until
any
earlier date that the Company notified or notifies the Representative as
described in the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information
contained in the Registration
Statement
or the Prospectus, including any document incorporated by reference therein
that
has not been superseded or modified.
(h) The
Company has not, directly or indirectly, distributed and will not distribute
any
offering material in connection with the offering and sale of the Shares other
than any Preliminary Prospectus, the Prospectus and other materials, if any,
permitted under the Act and consistent with Section 4(b) below. The Company
will
file with the Commission all Issuer Free Writing Prospectuses in the time
required under Rule 433(d) under the Act. The Company has satisfied
or will satisfy the conditions in Rule 433 under the Act to avoid a requirement
to file with the Commission any electronic road show.
(i) (i) At
the time of filing the Registration Statement and (ii) as of the date hereof
(with such date being used as the determination date for purposes of this
clause(ii)), the Company was not and is not an “ineligible issuer” (as defined
in Rule 405 under the Act, without taking into account any determination by
the
Commission pursuant to Rule 405 under the Act that it is not necessary that
the
Company be considered an ineligible issuer), including, without limitation,
for
purposes of Rules 164 and 433 under the Act with respect to the offering of
the
Shares as contemplated by the Registration Statement.
(j) The
consolidated financial statements of the Company and the Subsidiaries, together
with related notes and schedules as set forth or incorporated by reference
in
the Registration Statement, the General Disclosure Package and the Prospectus,
present fairly the financial position and the results of operations and cash
flows of the Company and the consolidated Subsidiaries, at the indicated dates
and for the indicated periods. Such financial statements and related
schedules have been prepared in accordance with generally accepted principles
of
accounting (“
GAAP
”), consistently applied throughout the periods
involved, except as disclosed therein, and all adjustments necessary for a
fair
presentation of results for such periods have been made. The summary
and selected consolidated financial and statistical data included or
incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus presents fairly the information shown therein and
such data has been compiled on a basis consistent with the financial statements
presented therein and the books and records of the Company. All
disclosures contained in the Registration Statement, the General Disclosure
Package and the Prospectus regarding “non-GAAP financial measures” (as such term
is defined by the Rules and Regulations) comply with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Act, to the extent
applicable. The Company and the Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any off-balance
sheet obligations or any “variable interest entities” within the meaning of
Financial Accounting Standards Board Interpretation No. 46), not disclosed
in
the Registration Statement, the General Disclosure Package and the
Prospectus. There are no financial statements (historical or pro
forma) that are required to be included in the Registration Statement, the
General Disclosure Package or the Prospectus that are not included as
required.
(k) Each
of Deloitte, Hadjipavlou, Sofianos & Cambanis S.A. and Ernst & Young
(Hellas), who have certified certain of the financial statements filed with
the
Commission as part of, or incorporated by reference in, the Registration
Statement, the General Disclosure Package and the Prospectus, is an independent
registered public accounting firm with respect to the Company and the
Subsidiaries within the meaning of the Act and the applicable Rules and
Regulations and the Public Company Accounting Oversight Board (United States)
(the “
PCAOB
”).
(l) Except
as disclosed in the Registration Statement, the General Disclosure Package
and
the Prospectus, neither the Company nor any of the Subsidiaries is aware of
(i)
any material weakness in its internal control over financial reporting or (ii)
change in internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting.
(m) Solely
to the extent that the Sarbanes-Oxley Act of 2002, as amended, and the rules
and
regulations promulgated by the Commission and the Nasdaq Global Market
thereunder (the “
Sarbanes-Oxley Act
”) has been applicable to the Company,
there is and has been no failure on the part of the Company to comply in all
material respects with any provision of the Sarbanes-Oxley Act. The
Company has taken all necessary actions to ensure that it is in compliance
with
all provisions of the Sarbanes-Oxley Act that are in effect and with which
the
Company is required to comply and is actively taking steps to ensure that it
will be in compliance with other provisions of the Sarbanes-Oxley Act not
currently in effect or which will become applicable to the Company.
(n) There
is no action, suit, claim or proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of the Subsidiaries before any
court or administrative agency or otherwise which if determined adversely to
the
Company or any of the Subsidiaries would either (i) have, individually or in
the
aggregate, a material adverse effect on the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise)
or
prospects of the Company and of the Subsidiaries taken as a whole or (ii)
prevent the consummation of the transactions contemplated hereby (the occurrence
of any such effect or any such prevention described in the foregoing clauses
(i)
and (ii) being referred to as a “Material Adverse Effect”), except as set forth
in the Registration Statement, the General Disclosure Package and the
Prospectus.
(o) The
Company and the Subsidiaries have good and marketable title to all of the
properties and assets reflected in the consolidated financial statements
hereinabove described or described in the Registration Statement, the General
Disclosure Package and the Prospectus, subject to no lien, mortgage, pledge,
charge or encumbrance of any kind except those reflected in such financial
statements or described in the Registration Statement, the General Disclosure
Package and the Prospectus or which are not material in amount. The
Company and the Subsidiaries occupy their leased properties under valid and
binding leases.
(p) The
Company and the Subsidiaries have filed all federal, state, local and foreign
tax returns which have been required to be filed and have paid all taxes
indicated by such returns and all assessments received by them or any of them
to
the extent that such taxes have become due and are not being contested in good
faith and for which an adequate reserve for accrual has been established in
accordance with GAAP. All tax liabilities have been adequately
provided for in the financial statements of the Company, and the Company does
not know of any actual or proposed additional material tax
assessments.
(q) Since
the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, as each may be
amended or supplemented, there has not been any material adverse change or
any
development involving a prospective material adverse change in or affecting
the
earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise), or prospects of the Company and the
Subsidiaries taken as a whole, whether or not occurring in the ordinary course
of business, and there has not been any material transaction entered into or
any
material transaction that is probable of being entered into by the Company
or
the Subsidiaries, other than transactions in the ordinary course of business
and
changes and transactions described in the Registration Statement, the General
Disclosure Package and the Prospectus, as each may be amended or
supplemented. The Company and the Subsidiaries have no material
contingent obligations which are not disclosed in the Company’s financial
statements which are included in the Registration Statement, the General
Disclosure Package and the Prospectus.
(r) Neither
the Company nor any of the Subsidiaries is or with the giving of notice or
lapse
of time or both, will be, (i) in violation of its certificate or articles of
incorporation, by-laws, certificate of formation, limited liability agreement,
partnership agreement or other organizational documents or (ii) in violation
of
or in default under any agreement, lease, contract, indenture or other
instrument or obligation to which it is a party or by which it, or any of its
properties, is bound and, solely with respect to this clause
(ii),
which
violation or default would have a Material Adverse Effect. The
execution and delivery of this Agreement and the consummation of the
transactions herein contemplated and the fulfillment of the terms hereof will
not conflict with or result in a breach of any of the terms or provisions of,
or
constitute a default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any Subsidiary is a party or
by
which the Company or any Subsidiary or any of their respective properties is
bound, or of the certificate or articles of incorporation or by-laws of the
Company or any law, order, rule or regulation judgment, order, writ or decree
applicable to the Company or any Subsidiary of any court or of any government,
regulatory body or administrative agency or other governmental body having
jurisdiction.
(s) The
execution and delivery of, and the performance by the Company of its obligations
under, this Agreement has been duly and validly authorized by all necessary
corporate action on the part of the Company, and this Agreement has been duly
executed and delivered by the Company.
(t) Each
approval, consent, order, authorization, designation, declaration or filing
by
or with any regulatory, administrative or other governmental body necessary
in
connection with the execution and delivery by the Company of this Agreement
and
the consummation of the transactions herein contemplated (except such additional
steps as may be required by the Commission, the Financial Industry Regulatory
Authority (“
FINRA
”) or such additional steps as may be necessary to
qualify the Shares for public offering by the Underwriters under state
securities or Blue Sky laws) has been obtained or made and is in full force
and
effect.
(u) The
Company and each of the Subsidiaries hold all material licenses, certificates
and permits from governmental authorities which are necessary to the conduct
of
their businesses; the Company and the Subsidiaries each own or possess the
right
to use all patents, patent rights, trademarks, trade names, service marks,
service names, copyrights, license rights, know-how (including trade secrets
and
other unpatented and unpatentable proprietary or confidential information,
systems or procedures) and other intellectual property rights (“
Intellectual
Property
”) necessary to carry on their business in all material respects;
neither the Company nor any of the Subsidiaries has infringed, and none of
the
Company or the Subsidiaries have received notice of conflict with, any
Intellectual Property of any other person or entity. The Company has
taken all reasonable steps necessary to secure interests in such Intellectual
Property from its contractors. There are no outstanding options,
licenses or agreements of any kind relating to the Intellectual Property of
the
Company that are required to be described in the Registration Statement, the
General Disclosure Package and the Prospectus and are not described in all
material respects. The Company is not a party to or bound by any
options, licenses or agreements with respect to the Intellectual Property of
any
other person or entity that are required to be set forth in the Prospectus
and
are not described in all material respects. None of the technology
employed by the Company has been obtained or is being used by the Company in
violation of any contractual obligation binding on the Company or any of its
officers, directors or employees or otherwise in violation of the rights of
any
persons; the Company has not received any written or oral communications
alleging that the company has violated, infringe or conflicted with, or, by
conducting its business as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus, would violate, infringe or conflict
with,
any of the Intellectual Property of any other person or entity. The
Company knows of no infringement by others of Intellectual Property owned by
or
licensed to the Company.
(v) Neither
the Company nor any Subsidiary is or, after giving effect to the offering and
sale of the Shares contemplated hereunder and the application of the net
proceeds from such sale as described in the Properties, will be an “investment
company” within the meaning of such term under the Investment Company Act of
1940 as amended (the “
1940 Act
”), and the rules and regulations of the
Commission thereunder.
(w) The
Company and each of the Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are
executed in accordance with
management’s
general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP 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 accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(x) The
Company has established and maintains “disclosure controls and procedures” (as
defined in Rules 13a-14(c) and 15d-14(c) under the Exchange Act); the Company’s
“disclosure controls and procedures” are reasonably designed to ensure that all
information (both financial and non-financial) required to be disclosed by
the
Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified
in the rules and regulations of the Exchange Act, and that all such information
is accumulated and communicated to the Company’s management as appropriate to
allow untimely decisions regarding required disclosure and to make the
certifications of the Chief Executive Officer and Chief Financial Officer of
the
Company required under the Exchange Act with respect to such
reports.
(y) The
statistical, industry-related and market-related data included pr incorporated
by reference in the Registration Statement, the General Disclosure Package
and
the 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.
(z) Neither
the Company nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company 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 currently
subject to any U.S. sanctions administered by OFAC.
(aa) The
Company and each of the Subsidiaries carry, or are covered by, insurance in
such
amounts and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties and as is
customary for companies engaged in similar businesses.
(bb) To
the Company’s knowledge, there are no affiliations or associations between any
member of FINRA and any of the Company’s officers, directors or 5% or greater
securityholders, except as set forth in the Registration Statement.
(cc) Neither
the Company nor any of the Subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous
or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, “environmental
laws”), owns or operates any real property contaminated with any substance that
is subject to environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability
or
claim would, individually or in the aggregate, have a Material Adverse Effect;
and the Company is not aware of any pending investigation which might lead
to
such a claim.
(dd) The
Shares have been approved for listing subject to notice of issuance on the
Nasdaq Global Market.
(ee) There
are no relationships or related-party transactions involving the Company or
any
of the Subsidiaries or any other person required to be described in the
Prospectus which have not been described as required.
(ff) Neither
the Company nor any of the Subsidiaries has made any contribution or other
payment to any official of, or candidate for, any federal, state or foreign
office in violation of any law which violation is required to be disclosed
in
the Prospectus.
(gg) The
minute books of the Company and each of its Subsidiaries have been made
available to the Underwriters and counsel for the Underwriters, and such books
(A) contain a complete summary of all meetings and actions of the board of
directors (including each board committee) and stockholders (or analogous
governing bodies and interest holders, as applicable) of the Company and each
of
its Subsidiaries since the time of its respective incorporation through the
date
of the latest meeting and action, and (B) accurately reflect in all material
respects all transactions referred to in such minutes.
(hh) Each
of the vessels described in the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Prospectus as owned
by
certain of the Company’s Subsidiaries has been duly registered in the name of
the entity that owns it under the laws and regulations and flag of the nation
of
its registration and no other action is necessary to establish and perfect
such
entity’s title to and interest in any of the vessels as against any charterer or
third party and all of the vessels described in the Registration Statement,
the
Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus
as
owned by a Subsidiary of the Company are owned directly by such Subsidiary
of
the Company free and clear of all liens, claims, security interests or other
encumbrances, except such as are described in or contemplated by the
Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus.
(ii) Except
as set forth in the Registration Statement, the Preliminary Prospectus, any
Issuer Free Writing Prospectus and the Prospectus, the Company is not
prohibited, directly or indirectly, from paying any dividends, from making
any
other distribution, from repaying any loans or advances or from transferring
any
of its property or assets. All dividends and other distributions
declared and payable on the shares of capital stock of the Company may, under
the current laws and regulations of the Republic of the Marshall Islands and
any
political subdivisions thereof, be paid in United States dollars and may be
freely transferred out of the Republic of the Marshall Islands, and all such
dividends and other distributions will not be subject to withholding or other
taxes under the laws and regulations of the Republic of the Marshall Islands
and
are otherwise free and clear of any other tax, withholding or deduction and
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 in the Republic of the Marshall
Islands.
(jj) No
Subsidiary of the Company is currently prohibited, directly or indirectly,
from
paying any dividends to the Company, from making any other distribution on
such
Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the
Company, except as described in the in the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus
or
as provided by the laws of its jurisdiction of organization with respect to
permissible sources of funds from which dividends may be paid.
(kk) There
are no restrictions on subsequent transfers of the Shares under the laws of
the
Republic of the Marshall Islands.
(ll) No
forward-looking statement (within the meaning of Section 27A of the 1933 Act
and
Section 21E of the Exchange Act) contained in the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
has
been made or reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
(mm) The
Company is not a passive foreign investment company (“
PFIC
”) within the
meaning of Section 1297(a) of the United States Internal Revenue Code of 1986,
as amended, and will not take any action that is likely to result in it becoming
a PFIC.
(nn) Neither
the Company nor, to the knowledge of the Company, any director, officer, agent,
employee, affiliate or other person acting on behalf of the Company is aware
of
or has taken any action, directly or indirectly, that would result in a
violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the “
FCPA
”),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything
of
value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company and, to the
knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue
to
ensure, continued compliance therewith.
(oo) The
Company has taken all necessary actions to ensure that it is in compliance
with
all applicable corporate governance requirements of the Nasdaq Global Market
that are, or will be, applicable to the Company, except for such requirements
that have been waived and disclosed in the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus,
and is actively taking steps to ensure that it will be in compliance with other
applicable corporate governance requirements of the Nasdaq Global Market not
currently in effect upon and all times after the effectiveness of such
requirements and when such provisions become applicable to the
Company.
(pp) No
relationship, direct or indirect, exists between or among any of the Company
or
its Subsidiaries, on the one hand, and any director, officer, stockholder,
customer or supplier of the Company, or its Subsidiaries or any affiliate of
the
Company, on the other hand, which is required to be described in the
Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus which is not so described as required.
(qq) There
are no outstanding loans, advances (except normal advances for business expense
in the ordinary course of business) or guarantees or indebtedness by the
Company, directly or indirectly, including through a Subsidiary, to or for
the
benefit of any of the officers or directors of the Company, except as disclosed
in the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus and the Prospectus.
(rr) Except
as described in the Preliminary Prospectus and the Prospectus, no holders of
any
securities of the Company or of any options, warrants or other convertible
or
exchangeable securities of the Company have the right to include any securities
issued by the Company in the Registration Statement or any registration
statement to be filed by the Company or to require the Company to file a
registration statement under the 1933 Act, other than those holders who have
waived such rights. Except as described in the Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Prospectus, no holder
of
any securities of the Company or any other person has the right, contractual
or
otherwise, which has not been satisfied or effectively waived, to cause the
Company to sell or otherwise issue to them, or permit them to underwrite the
sale of, any of the Shares.
(ss) There
are no documentary, stamp or other issuance or transfer taxes or duties or
similar fees or charges under U.S. federal law or the laws of any U.S. state,
the Republic of the Marshall Islands, Cyprus, Greece or Liberia or, or any
political subdivision of any thereof, required to be paid in connection with
the
execution and delivery of this Agreement or the issuance by the Company of
the
Shares, or the
sale
and delivery by the Company of the Shares to or for the respective accounts
of
the Underwriters or the sale and delivery by the Underwriters of the Shares
to
the initial purchasers thereof.
(tt) Neither
the Company nor to the Company’s knowledge, any of its stockholders, has taken
or may take, directly or indirectly, any action designed to cause or result
in,
or which has constituted or which might be reasonably expected to constitute,
the stabilization or manipulation of the prices of the Shares to facilitate
the
sale or resale of the Shares. The Company acknowledges that the
Underwriters may engage in passive market making transactions in the Shares
on
the Nasdaq Global Market in accordance with Regulation M under the Exchange
Act.
(uu) The
Company is a “foreign private issuer” as defined in Rule 405 of the 1933
Act.
2.
Purchase, Sale and Delivery of the Firm Shares
.
(a) On the
basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to sell to the
Underwriters and each Underwriter agrees, severally and not jointly, to
purchase, at a price of $ $2.8794 per share, the number of Firm
Shares set forth opposite the name of each Underwriter in Schedule I hereof,
subject to adjustments in accordance with Section 9 hereof.
(b) Payment for
the Firm Shares to be sold hereunder is to be made in federal (same day) funds
against delivery of certificates therefor to the Representative for the several
accounts of the Underwriters. Such payment and delivery are to be
made through the facilities of The Depository Trust Company, New York, New
York
at 10:00 a.m., New York time, on the third business day after the date of this
Agreement or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date being
herein referred to as the “
Closing Date
.” (As used herein,
“
business day
” means a day on which the New York Stock Exchange is open
for trading and on which banks in New York are open for business and are not
permitted by law or executive order to be closed.)
(c) In
addition, on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company hereby
grants an option to the several Underwriters to purchase the Option Shares
at
the price per share as set forth in the first paragraph of this Section
2. The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and (ii) only
once
thereafter within 30 days after the date of this Agreement, by you, as
Representative of the several Underwriters, to the Company setting forth the
number of Option Shares as to which the several Underwriters are exercising
the
option and the time and date at which such certificates are to be
delivered. The time and date at which certificates for Option Shares
are to be delivered shall be determined by the Representative but shall not
be
earlier than three nor later than 10 full business days after the exercise
of
such option, nor in any event prior to the Closing Date (such time and date
being herein referred to as the “
Option Closing Date
”). If the
date of exercise of the option is three or more days before the Closing Date,
the notice of exercise shall set the Closing Date as the Option Closing
Date. The number of Option Shares to be purchased by each Underwriter
shall be in the same proportion to the total number of Option Shares being
purchased as the number of Firm Shares being purchased by such Underwriter
bears
to the total number of Firm Shares, adjusted by you in such manner as to avoid
fractional shares. The option with respect to the Option Shares
granted hereunder may be exercised only to cover over-allotments in the sale
of
the Firm Shares by the Underwriters. You, as Representative of the
several Underwriters, may cancel such option at any time prior to its expiration
by giving written notice of such cancellation to the Company. To the
extent, if any, that the option is exercised, payment for the Option Shares
shall be made on the Option Closing Date in
federal
(same day funds) through the facilities of The Depository Trust Company in
New
York, New York drawn to the order of the Company.
3.
Offering by the Underwriters
.
It is understood that the several Underwriters are to make a public offering
of
the Firm Shares as soon as the Representative deems it advisable to do
so. The Firm Shares are to be initially offered to the public at the
initial public offering price set forth in the Prospectus. The
Representative may from time to time thereafter change the public offering
price
and other selling terms.
It further understood that you will act as the Representative for the
Underwriters in the offering and sale of the Shares in accordance with a Master
Agreement Among Underwriters entered into by you and the several other
Underwriters.
The Company hereby confirms its engagement of the Representative as, and the
Representative hereby confirms its agreement with the Company to render services
as, a “qualified independent underwriter” within the meaning of Rule 2720 of the
Conduct Rules of FINRA with respect to the offering and sale of the Shares
and,
in acting as such “qualified independent underwriter,” the Representative
represents and agrees, solely for the benefit of the Underwriters and not for
the benefit of the Company, that it meets the requirements set forth in Conduct
Rule 2720(b)(15) for serving as “qualified independent
underwriter”.
4.
Covenants of the Company
.
The Company covenants and agrees with the several Underwriters
that:
(a) The
Company will (A) prepare and timely file with the Commission under Rule 424(b)
under the Act a Prospectus in a form approved by the Representative containing
information previously omitted at the time of effectiveness of the Registration
Statement in reliance on Rules 430A, 430B or 430C under the Act and (B) not
file
any amendment to the Registration Statement or distribute an amendment or
supplement to the General Disclosure Package or the Prospectus or document
incorporated by reference therein of which the Representative shall not
previously have been advised and furnished with a copy or to which the
Representative shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations and (C) file on a timely basis all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission subsequent to the date of the Prospectus
and
prior to the termination of the offering of the Shares by the
Underwriters.
(b) The
Company will (i) not make any offer relating to the Shares that would constitute
an Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405 under the Act) required to be filed
by the Company with the Commission under Rule 433 under the Act unless the
Representative approves its use in writing prior to first use (each, a
“Permitted Free Writing Prospectus”); provided that the prior written consent of
the Representative hereto shall be deemed to have been given in respect of
the
Issuer Free Writing Prospectus(es) included in Schedule IV hereto,
(ii) treat each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433
under the Act applicable to any Issuer Free Writing Prospectus, including the
requirements relating to timely filing with the Commission, legending and record
keeping and (iv) not take any action that would result in an Underwriter or
the
Company being required to file with the Commission pursuant to Rule 433(d)
under
the Act a free writing prospectus prepared by or on behalf of such Underwriter
that such Underwriter otherwise would not have been required to file
thereunder. The Company will satisfy the conditions in Rule 433 under
the Act to avoid a requirement to file with the Commission any electronic road
show.
(c) Unless
otherwise agreed between the Company and the Representative, the Company will
prepare a final term sheet (the “
Final Term Sheet
”) reflecting the final
terms of the Shares, in form and substance satisfactory to the Representative,
and shall file such Final Term Sheet as an Issuer Free Writing Prospectus
pursuant to Rule 433 under the Act prior to the close of business two business
days after the date hereof; provided that the Company shall provide the
Representative with copies of any such Final Term Sheet a reasonable amount
of
time prior to such proposed filing and will not use or file any such document
to
which the Representative or counsel to the Underwriters shall reasonably
object.
(d) The
Company will advise the Representative promptly (A) when the Registration
Statement or any post-effective amendment thereto shall have become effective,
(B) of receipt of any comments from the Commission, (C) of any request of the
Commission for amendment of the Registration Statement or for supplement to
the
General Disclosure Package or the Prospectus or for any additional information,
and (D) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, or of the institution of any proceedings for
that
purpose or pursuant to Section 8A of the Act. The Company will use
its best efforts to prevent the issuance of any such order and to obtain as
soon
as possible the lifting thereof, if issued.
(e) The
Company will cooperate with the Representative in endeavoring to qualify the
Shares for sale under the securities laws of such jurisdictions as the
Representative may reasonably have designated in writing and will make such
applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service
of
process in any jurisdiction where it is not now so qualified or required to
file
such a consent. The Company will, from time to time, prepare and file
such statements, reports, and other documents, as are or may be required to
continue such qualifications in effect for so long a period as the
Representative may reasonably request for distribution of the
Shares.
(f) The
Company will deliver to, or upon the order of, the Representative, from time
to
time, as many copies of any Preliminary Prospectus as the Representative may
reasonably request. The Company will deliver to, or upon the order
of, the Representative, from time to time, as many copies of any Issuer Free
Writing Prospectus
as the Representative may reasonably
request. The Company will deliver to, or upon the order of, the Representative
during the period when delivery of a Prospectus (or, in lieu thereof, the notice
referred to under Rule 173(a) under the Act) is required under the Act, as
many
copies of the Prospectus in final form, or as thereafter amended or
supplemented, as the Representative may reasonably request. The
Company will deliver to the Representative at or before the Closing Date, four
signed copies of the Registration Statement and all amendments thereto including
all exhibits filed therewith, and will deliver to the Representative such number
of copies of the Registration Statement (including such number of copies of
the
exhibits filed therewith that may reasonably be requested), including documents
incorporated by reference therein, and of all amendments thereto, as the
Representative may reasonably request.
(g) The
Company will comply with the Act and the Rules and Regulations, and the Exchange
Act, and the rules and regulations of the Commission thereunder, so as to permit
the completion of the distribution of the Shares as contemplated in this
Agreement and the Prospectus. If during the period in which a
prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under
the Act) is required by law to be delivered by an Underwriter or dealer, any
event shall occur as a result of which, in the judgment of the Company or in
the
reasonable opinion of the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company promptly will
either (i) prepare and file with the Commission an appropriate amendment to
the
Registration Statement or supplement to the
Prospectus
or (ii) prepare and file with the Commission an appropriate filing under the
Exchange Act which shall be incorporated by reference in the Prospectus so
that
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with the law.
(h) If
the General Disclosure Package is being used to solicit offers to buy the Shares
at a time when the Prospectus is not yet available to prospective purchasers
and
any event shall occur as a result of which, in the judgment of the Company
or in
the reasonable opinion of the Underwriters, it becomes necessary to amend or
supplement the General Disclosure Package in order to make the statements
therein, in the light of the circumstances, not misleading, or to make the
statements therein not conflict with the information contained in the
Registration Statement then on file, or if it is necessary at any time to amend
or supplement the General Disclosure Package to comply with any law, the Company
promptly will either (i)prepare, file with the Commission (if required) and
furnish to the Underwriters and any dealers an appropriate amendment or
supplement to the General Disclosure Package or (ii) prepare and file with
the
Commission an appropriate filing under the Exchange Act which shall be
incorporated by reference in the General Disclosure Package so that the General
Disclosure Package as so amended or supplemented will not, in the light of
the
circumstances, be misleading or conflict with the Registration Statement then
on
file, or so that the General Disclosure Package will comply with
law.
(i)
The Company will make generally available to its security holders,
as soon as it is practicable to do so, but in any event not later than 15 months
after the effective date of the Registration Statement, an earnings statement
(which need not be audited) in reasonable detail, covering a period of at least
12 consecutive months beginning after the effective date of the Registration
Statement, which earnings statement shall satisfy the requirements of Section
11(a) of the Act and Rule 158 under the Act and will advise you in writing
when
such statement has been so made available.
(j)
Prior to the Closing Date, the Company will furnish to the Underwriters, as
soon
as they have been prepared by or are available to the Company, a copy of any
unaudited interim financial statements of the Company for any period subsequent
to the period covered by the most recent financial statements appearing in
the
Registration Statement and the Prospectus.
(k) No
offering, sale, short sale or other disposition of any shares of Common Stock
of
the Company or other securities convertible into or exchangeable or exercisable
for shares of Common Stock or derivative of Common
Stock (or agreement for such) will be made for a period of 60 days
after the date of the Prospectus, directly or indirectly, by the Company
otherwise than hereunder or with the prior written consent of the
Representative. Notwithstanding the foregoing, if (1) during the last
17 days of the 60-day restricted period, the Company issues an earnings release
or material news or a material event relating to the Company occurs; or (2)
prior to the expiration of the 60-day restricted period, the Company announces
that it will release earnings results during the 15-day period following the
last day of the 60-day restricted period, then in each case the restrictions
imposed by this Agreement shall continue to apply until the expiration of the
18-day period beginning on the date of the release of the earnings results
or
the occurrence of material news or a material event relating to the Company,
as
the case may be, unless the Representative waives, in writing, such
extension.
(l)
The Company will use its best efforts to list the Shares, subject to
notice of issuance, on the Nasdaq Global Market.
(m) The
Company has caused each officer and director of the Company, Kingdom Holdings
Inc. and Sovereign Holdings Inc. to furnish to you, on or prior to the date
of
this agreement, a letter or letters, substantially in the form attached hereto
as Exhibit B (the “
Lockup Agreement
”).
(n) The
Company shall apply the net proceeds of its sale of the Shares as set forth
in
the Registration Statement, General Disclosure Package and the
Prospectus.
(o) The
Company shall not invest, or otherwise use the proceeds received by the Company
from its sale of the Shares in such a manner as would require the Company or
any
of the Subsidiaries to register as an investment company under the 1940
Act.
(p) The
Company will maintain a transfer agent and, if necessary under the jurisdiction
of incorporation of the Company, a registrar for the
Common Stock.
(q) The
Company will not take, directly or indirectly, any action designed to cause
or
result in, or that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price of any securities
of
the Company.
5.
Costs and Expenses
.
The Company will pay all costs, expenses and fees incident to the performance
of
the obligations of the Company under this Agreement, including, without limiting
the generality of the foregoing, the following: accounting fees of the Company;
the fees and disbursements of counsel for the Company; the cost of printing
and
delivering to, or as requested by, you copies of the Registration Statement,
Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus,
this
Agreement, any Blue Sky surveys and any supplements or amendments thereto;
the
filing fees of the Commission; the filing fees and expenses (including legal
fees up to $15,000 and disbursements) incident to securing any required review
by FINRA of the terms of the sale of the Shares; the costs and expenses
(including without limitation any damages or other amounts payable in connection
with legal or contractual liability) associated with the reforming of any
contracts for sale of the Shares made by you caused by a breach of the
representation in Section 1(c)); and the expenses, including the fees and
disbursements of counsel for you, incurred in connection with the qualification
of the Shares under state securities or Blue Sky laws. The Company
shall not, however, be required to pay for any of your expenses (other than
those related to qualification under FINRA regulation and state securities
or
Blue Sky laws) except that, if this Agreement shall not be consummated because
the conditions in Section 6 hereof are not satisfied, or because this Agreement
is terminated by you pursuant to Section 11 hereof, or by reason of any failure,
refusal or inability on the part of the Company to perform any undertaking
or
satisfy any condition of this Agreement or to comply with any of the terms
hereof on its part to be performed, unless such failure, refusal or inability
is
due primarily to the default or omission of you, the Company shall reimburse
you
for reasonable out-of-pocket expenses, including fees and disbursements of
counsel, reasonably incurred in connection with investigating, marketing and
proposing to market the Shares or in contemplation of performing their
obligations hereunder; but the Company shall not in any event be liable to
you
for damages on account of loss of anticipated profits from the sale by them
of
the Shares.
6.
Conditions of Obligations of the
Underwriters
.
The several obligations of the Underwriters to purchase the Firm Shares on
the
Closing Date and the Option Shares, if any, on the Option Closing Date are
subject to the accuracy, as of the Applicable Time, the Closing Date or the
Option Closing Date, as the case may be, of the representations and warranties
of the Company contained herein, and to the performance by the Company of its
covenants and obligations hereunder and to the following additional
conditions:
(a) The
Registration Statement and all post-effective amendments thereto shall have
become effective and the Prospectus and each Issuer Free Writing Prospectus
required shall have been filed as required by Rules 424, 430A, 430B, 430C or
433
under the Act, as applicable, within the time period
prescribed
by, and in compliance with, the Rules and Regulations, and any request of the
Commission for additional information (to be included in the Registration
Statement or otherwise) shall have been disclosed to the Representative and
complied with to its reasonable satisfaction. No stop order
suspending the effectiveness of the Registration Statement, as amended from
time
to time, shall have been issued and no proceedings for that purpose or pursuant
to Section 8A under the Act shall have been taken or, to the knowledge of the
Company, shall be contemplated or threatened by the Commission and no
injunction, restraining order or order of any nature by a Federal or state
court
of competent jurisdiction shall have been issued as of the Closing Date which
would prevent the issuance of the Shares.
(b) The
Representative shall have received on the Closing Date or the Option Closing
Date, as the case may be, the favorable opinions dated the Closing Date or
the
Option Date, in form and substance satisfactory to Morgan Lewis & Bockius
LLP (“
Underwriters’ Counsel
”) addressed to each of the Underwriters
(including the Representative) and stating that such opinions may be relied
upon
by Underwriters’ Counsel, of each of the following counsel:
(i) Seward
& Kissel LLP, U.S. counsel for the Company, with respect to matters of U.S.
law, to the effect set forth in
Exhibit C-I
hereto and to such
further effect as Underwriters’ Counsel may reasonably request;
(ii) Seward
& Kissel LLP, special counsel for the Company with respect to matters of
Marshall Islands law, to the effect set forth in
Exhibit C-II
hereto
and to such further effect as Underwriters’ Counsel may reasonably
request;
(iii) Chrysses
Demetriades & Co., special counsel to the Company with respect to matters of
Cypriot law, to the effect set forth in
Exhibit C-III
hereto and to
such further effect as Underwriters’ Counsel may reasonably
request;
(iv) G.C.
Economou & Associates, special counsel to the Company with respect to
matters of Greek law, to the effect set forth in
Exhibit C-IV
hereto
and to such further effect as Underwriters’ Counsel may reasonably request;
and
(v) Seward
& Kissel LLP, special counsel to the Company with respect to matters of
Liberia law, to the effect set forth in
Exhibit C-V
hereto and to
such further effect as Underwriters’ Counsel may reasonably
request.
(c) The
Representative shall have received from Morgan, Lewis & Bockius LLP, counsel
for the Underwriters, an opinion dated the Closing Date or the Option Closing
Date, as the case may be, substantially to the effect specified in subparagraphs
(iv) and (x) of Paragraph (b) of this Section 6. In addition to the
matters set forth above, such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel which leads them
to believe that (i) the Registration Statement, or any amendment thereto, as
of
the time it became effective under the Act (including the information deemed
to
be a part of the Registration Statement at the time it became effective pursuant
to Rules 430A, 430B or 430C under the Act) as of the Closing Date or the Option
Closing Date, as the case may be, contained or contains an untrue statement
of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the
General Disclosure Package, as of the Applicable Time, contained an untrue
statement of a material fact or omitted to state a material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (iii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and Regulations and
as
of the Closing Date or the Option Closing Date, as the case may be, contained
or
contains an untrue statement of a material fact or omitted or omits to state
a
material fact, necessary in order to make the statements therein, in the light
of
the
circumstances under which they were made, not misleading (except that such
counsel need express no view as to financial statements and schedules and other
financial data therein). With respect to such statement, Morgan,
Lewis & Bockius LLP may state that their belief upon the procedures set
forth therein, but is without independent check and verification.
(d) You shall
have received, on each of the date hereof, the Closing Date and, if applicable,
the Option Closing Date, a letter dated the date hereof, the Closing Date or
the
Option Closing Date, as the case may be, in form and substance satisfactory
to
you, of each of Deloitte, Hadjipavlou, Sofianos & Cambanis S.A. and Ernst
& Young (Hellas) confirming that they are an independent registered public
accounting firm with respect to the Company and the Subsidiaries within the
meaning of the Act and the applicable Rules and Regulations and the PCAOB and
stating that in their opinion the financial statements and schedules examined
by
them and included or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus comply in form in all material
respects with the applicable accounting requirements of the Act and the related
Rules and Regulations; and containing such other statements and information
as
is ordinarily included in accountants’ “comfort letters” to Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement, the General Disclosure
Package and the Prospectus.
(e) The
Representative shall have received on the Closing Date and, if applicable,
the
Option Closing Date, as the case may be, a certificate or certificates of the
Chief Executive Officer and the Chief Financial Officer of the Company to the
effect that, as of the Closing Date or the Option Closing Date, as the case
may
be, each of them severally represents as follows:
(i) The
Registration Statement has become effective under the Act and no stop order
suspending the effectiveness of the Registration Statement or no order
preventing or suspending the use of any Preliminary Prospectus, any Issuer
Free
Writing Prospectus or the Prospectus has been issued, and no proceedings for
such purpose or pursuant to Section 8A of the Act have been taken or are, to
his
or her knowledge, contemplated or threatened by the Commission;
(ii) The
representations and warranties of the Company contained in Section 1 hereof
are
true and correct as of the Closing Date or the Option Closing Date, as the
case
may be;
(iii) All
filings required to have been made pursuant to Rules 424, 430A, 430B or 430C
under the Act have been made as and when required by such rules;
(iv) He
has carefully examined the General Disclosure Package and any individual Limited
Use Free Writing Prospectus and, in his opinion, as of the Applicable Time,
the
statements contained in the General Disclosure Package and any individual
Limited Use Free Writing Prospectus did not contain any untrue statement of
a
material fact, and such General Disclosure Package and any individual Limited
User Free Writing Prospectus, when considered together with the General
Disclosure Package, did not omit to state a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading;
(v) He
has carefully examined the Registration Statement and, in his opinion, as of
the
effective date of the Registration Statement, the Registration Statement and
any
amendments thereto did not contain any untrue statement of a material fact
and
did not omit to state a material fact necessary in order to make the statements
therein not misleading, and since the effective date of the Registration
Statement, no event has occurred which should have been set forth in a
supplement to or an amendment of the Prospectus which has not been so set forth
in such supplement or amendment;
(vi) He
has carefully examined the Prospectus and, in his opinion, as of its date and
the Closing Date or the Option Closing Date, as the case may be, the Prospectus
and any amendments and supplements thereto did not contain any untrue statement
of a material fact and did not omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and
(vii) Since
the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and Prospectus, there has not been
any
material adverse change or any development involving a prospective material
adverse change in or affecting the business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of the
Company and the Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business.
(f) The Shares
have been approved for quotation subject to notice of issuance on the Nasdaq
Global Market.
(g) The Lockup
Agreements described in Section 4(m) are in full force and effect.
The opinions and certificates mentioned in this Agreement shall be deemed to
be
in compliance with the provisions hereof only if they are in all material
respects satisfactory to the Representative and to Underwriters’
Counsel.
If any of the conditions hereinabove provided for in this Section 6 shall not
have been fulfilled when and as required by this Agreement to be fulfilled,
the
obligations of the Underwriters hereunder may be terminated by the
Representative by notifying the Company of such termination in writing by
facsimile at or prior to the Closing Date or the Option Closing Date, as the
case may be.
In
such event, the Company and the Underwriters shall not be under any obligation
to each other (except to the extent provided in Sections 5 and 8
hereof).
7.
Conditions of the Obligations of the Company
.
The
obligations of the Company to sell and deliver the portion of the Shares
required to be delivered as and when specified in this Agreement are subject
to
the conditions that at the Closing Date or the Option Closing Date, as the
case
may be, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and in effect or proceedings therefor initiated or
threatened.
8.
Indemnification
.
(a) The Company
agrees:
(i) to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act
or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which such Underwriter or any such controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages
or
liabilities (or actions or proceedings in respect thereof) arise out of or
are
based upon (i) any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any amendment
or supplement thereto or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made; provided, however, that the Company will not be liable in any
such case to
the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or alleged
omission made in the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the Prospectus, or such amendment or supplement,
in reliance upon and in conformity with written information furnished to the
Company by or through the Representative specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 13
herein. The Company also agrees to indemnify and hold harmless the
Representative and each person, if any, who controls the Representative within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and judgments
incurred as a result of the Representative’s participation as a “qualified
independent underwriter” within the meaning of Rule 2720 of FINRA’s Conduct
Rules in connection with the offering of the Shares, except for any losses,
claims, damages, liabilities and judgments resulting from the Representative
or
such controlling person’s willful misconduct; and
(ii) to
reimburse each Underwriter and each such controlling person upon demand for
any
legal or other out-of-pocket expenses reasonably incurred by such Underwriter
or
such controlling person in connection with investigating or defending any such
loss, claim, damage or liability, action or proceeding or in responding to
a
subpoena or governmental inquiry related to the offering of the Shares, whether
or not such Underwriter or controlling person is a party to any action or
proceeding. In the event that it is finally judicially determined
that the Underwriters were not entitled to receive payments for legal and other
expenses pursuant to this subparagraph, the Underwriters will promptly return
all sums that had been advanced pursuant hereto.
(b) Each
Underwriter severally and not jointly will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities
to
which the Company or any such director, officer, or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise
out
of or are based upon (i) any untrue statement or alleged untrue statement of
any
material fact contained in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any amendment
or supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading in the light of the circumstances under which
they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, or controlling person
in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each Underwriter will
be liable in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission has been
made in the Registration Statement, any Preliminary Prospectus, any Issuer
Free
Writing Prospectus
,
the Prospectus or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representative specifically for
use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in Section
13
herein. This indemnity agreement will be in addition to any liability
which such Underwriter may otherwise have.
(c) In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
this Section 8, such person (the “indemnified party”) shall promptly notify the
person against whom such indemnity may be sought (the “indemnifying party”) in
writing. No indemnification provided for in Section 8(a) or (b) shall
be available to any party who shall fail to give notice as provided in this
Section 8(c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was materially prejudiced
by the failure to give such notice, but the failure to give such notice shall
not
relieve
the indemnifying party or parties from any liability which it or they may have
to the indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a) or (b). In case any such proceeding shall
be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with
counsel satisfactory to such indemnified party and shall pay as incurred the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of presentation)
the
fees and expenses of the counsel retained by the indemnified party in the event
(i) the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them
or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified
parties. Such firm shall be designated in writing by you in the case
of parties indemnified pursuant to Section 8(b) and by the Company in the case
of parties indemnified pursuant to Section 8(a). The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. In addition, the indemnifying party will not,
without the prior written consent of the indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action or proceeding of which indemnification may be sought hereunder (whether
or not any indemnified party is an actual or potential party to such claim,
action or proceeding) unless such settlement, compromise or consent includes
an
unconditional release of each indemnified party from all liability arising
out
of such claim, action or proceeding. Notwithstanding anything
contained herein to the contrary, if indemnity may be sought pursuant to Section
8(a) hereof in respect of such action or proceeding, then in addition to such
separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for the Representative in its capacity as
a
“qualified independent underwriter” and all persons, if any, who control the
Representative within the meaning of either Section 15 of the Act or Section
20
of the Exchange Act.
(d) To the
extent the indemnification provided for in this Section 8 is unavailable to
or
insufficient to hold harmless an indemnified party under Section 8(a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions
or
proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as
is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear
to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of
the
Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on
the
other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the
equitable considerations referred to above in this
Section 8(d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(d) shall
be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), (i)
no Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased by
such Underwriter, and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this Section 8(d)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) In any
proceeding relating to the Registration Statement, any Preliminary Prospectus,
any Issuer Free Writing Prospectus,
the Prospectus or any
supplement or amendment thereto, each party against whom contribution may be
sought under this Section 8 hereby consents to the jurisdiction of any court
having jurisdiction over any other contributing party, agrees that process
issuing from such court may be served upon it by any other contributing party
and consents to the service of such process and agrees that any other
contributing party may join it as an additional defendant in any such proceeding
in which such other contributing party is a party. The agent for
service of process to the Company is Seward & Kissel LLP, New York, New York
(the “
Authorized Agent
”).
(f) Any losses,
claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 8 shall be paid
by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred. The indemnity and
contribution agreements contained in this Section 8 and the representations
and
warranties of the Company set forth in this Agreement shall remain operative
and
in full force and effect, regardless of (i) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, the
Company, its directors or officers or any persons controlling the Company,
(ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter, or any
person controlling any Underwriter, or to the Company, its directors or
officers, or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 8.
9.
Default by Underwriters
.
If on the Closing Date or the Option Closing Date, as the case may be, any
Underwriter shall fail to purchase and pay for the portion of the Shares which
such Underwriter has agreed to purchase and pay for on such date (otherwise
than
by reason of any default on the part of the Company, you, as Representative
of
the Underwriters, shall use your reasonable efforts to procure within 36 hours
thereafter one or more of the other Underwriters, or any others, to purchase
from the Company such amounts as may be agreed upon and upon the terms set
forth
herein, the Shares which the defaulting Underwriter or Underwriters failed
to
purchase. If during such 36 hours you, as such Representative, shall
not have
procured
such other Underwriters, or any others, to purchase the Shares agreed to be
purchased by the defaulting Underwriter or Underwriters, then (a) if
the aggregate number of shares with respect to which such default shall occur
does not exceed 10% of the Shares to be purchased on the Closing Date or the
Option Closing date, as the case may be, the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Shares which
they are obligated to purchase hereunder, to purchase the Shares which such
defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of shares of Shares with respect to which such default shall
occur exceeds 10% of the Shares to be purchased on the Closing Date or the
Option Closing Date, as the case may be, the Company or you as the
Representative of the Underwriters will have the right, by written notice given
within the next 36-hour period to the parties to this Agreement, to terminate
this Agreement without liability on the part of the non-defaulting Underwriters
or of the Company except to the extent provided in Sections 5 and 8
hereof. In the event of a default by any Underwriter or Underwriters,
as set forth in this Section 9, the Closing Date or Option Closing Date, as
the
case may be, may be postponed for such period, not exceeding seven days, as
you,
as Representative, may determine in order that the required changes in the
Registration Statement, the General Disclosure Package or in the Prospectus
or
in any other documents or arrangements may be effected. The term
“
Underwriter
” includes any person substituted for a defaulting
Underwriter. Any action taken under this Section 9 shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10.
Notices
.
All communications hereunder shall be in writing and, except as otherwise
provided herein, will be mailed, delivered, telecopied or telegraphed and
confirmed as follows: if to the Underwriters, to Deutsche Bank
Securities Inc., 60 Wall Street, 4
th
Floor, New
York,
New York 10005, Attention: Syndicate Manager, with copies to Deutsche Bank
Securities Inc., 60 Wall Street, New York, New York 10005, Attention: General
Counsel and Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York
10178, fax no. (212) 309-6001, Attention: Stephen P. Farrell, Esq.; or if to
the
Company, to 1 Vas. Sofias & Meg. Alexandrou str., Maroussi 151 24, Athens,
Greece (telefax: 011 30 210 6141 203); Attention: Chief Executive Officer,
with
a copy to Seward & Kissel LLP, One Battery Park Plaza, New York, New York
10004, fax no. (212) 480-8421, Attention: Gary J. Wolfe, Esq.
11.
Termination
.
This Agreement may be terminated by you by notice to the Company
a)
at any time prior to
the
Closing Date or any Option Closing Date (if different from the Closing Date
and
then only as to Option Shares) if any of the following has
occurred: (i) since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the
Prospectus, any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings, business,
management, properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company and the Subsidiaries taken as a whole,
whether or not arising in the ordinary course of business, (ii) any outbreak
or
escalation of hostilities or declaration of war or national emergency or other
national or international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, escalation, declaration, emergency,
calamity, crisis or change on the financial markets of the United States would,
in your judgment, make it impracticable or inadvisable to market the Shares
or
to enforce contracts for the sale of the Shares, or (iii) suspension of
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq Global Market or limitation on prices (other than
limitations on hours or numbers of days of trading) for securities on either
such Exchange, (iv) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects
or
may materially and adversely affect the business or operations of the Company,
(v) the declaration of a banking moratorium by United States or New York State
authorities,
(vi)
any downgrading, or placement on any watch list for possible downgrading, in
the
rating of any of the Company’s debt securities by any “nationally recognized
statistical rating organization” (as defined for purposes of Rule 436(g) under
the Exchange Act); (vii) the suspension of trading of the Company’s common stock
by the Nasdaq Global Market, the Commission, or any other governmental authority
or, (viii) the taking of any action by any governmental body or agency in
respect of its monetary or fiscal affairs which in your reasonable opinion
has a
material adverse effect on the securities markets in the United States;
or
(b) as provided
in Sections 6 and 9 of this Agreement.
12.
Successors
.
This Agreement has been and is made solely for the benefit of the Underwriters
and the Company and their respective successors, executors, administrators,
heirs and assigns, and the officers, directors and controlling persons referred
to herein, and no other person will have any right or obligation
hereunder. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign merely because of such
purchase.
13.
Information
Provided by Underwriters
.
The Company and the Underwriters acknowledge and agree that the only information
furnished or to be furnished by any Underwriter to the Company for inclusion
in
the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus consists of the information set forth in the last
sentence on the cover page of the Prospectus and the second, fourth, ninth,
tenth and thirteenth paragraphs under the caption “Underwriting” in the
Prospectus.
14.
Miscellaneous
.
The reimbursement, indemnification and contribution agreements contained in
this
Agreement and the representations, warranties and covenants in this Agreement
shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf
of
the Company or its directors or officers, and (c) delivery of and payment for
the Shares under this Agreement.
The Company acknowledges and agrees that each Underwriter in providing
investment banking services to the Company in connection with the offering,
including in acting pursuant to the terms of this Agreement, has acted and
is
acting as an independent contractor and not as a fiduciary and the Company
does
not intend such Underwriter to act in any capacity other than as an independent
contractor, including as a fiduciary or in any other position of higher
trust.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of New York without regard to the principles of
conflicts of laws. Each of the parties hereto irrevocably (i) agrees that any
legal suit, action or proceeding arising out of or based upon this Agreement
or
the transactions contemplated hereby may be instituted in any state or federal
court located in the Borough of Manhattan, The City of New York, New York (each
a “New York Court”), (ii) waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the laying of venue
of
any such proceeding and (iii) submits to the exclusive jurisdiction of such
courts in any such suit, action or proceeding. The Company has appointed the
Authorized Agent upon whom process may be served in any such action arising
out
of or based on this Agreement or the transactions contemplated hereby which
may
be instituted in any New York Court by you or by any person who controls you,
expressly consents to the jurisdiction of any such court in respect of any
such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable. The
Company represents and warrants that the Authorized Agent has agreed to act
as
such agent for service of process and agrees to take any and all action,
including the filing of any and all documents and instruments that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to the Company shall be deemed, in every respect, effective service of process
upon the Company.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
|
|
Very
truly yours,
|
|
|
|
|
|
TOP
Tankers, Inc.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Evangelos J. Pistiolis
|
|
|
|
Name:
|
Evangelos
J. Pistiolis
|
|
|
Title:
|
Chief
Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The
foregoing Underwriting Agreement is hereby confirmed and accepted
as of
the date first above written.
|
|
|
|
|
|
|
|
DEUTSCHE
BANK SECURITIES INC.
|
|
|
|
|
|
|
|
As
Representative of the several
|
|
|
|
Underwriters
listed on Schedule I
|
|
|
|
|
|
|
|
By: Deutsche
Bank Securities Inc.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
David Bitterman
|
|
|
|
|
Name:
|
David
Bitterman
|
|
|
|
|
Title:
|
Managing
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Warren F. Estey
|
|
|
|
|
Name:
|
Warren
F. Estey
|
|
|
|
|
Title:
|
Director
|
|
|
|
SCHEDULE
I
Schedule
of Underwriters
|
|
|
Number
of Firm Shares
to
be Purchased
|
|
|
Deutsche
Bank Securities Inc.
|
|
|
15,225,000
|
|
|
DVB
Capital Markets LLC
|
|
|
2,100,000
|
|
|
Cantor
Fitzgerald & Co.
|
|
|
1,575,000
|
|
|
Oppenheimer
& Co. Inc.
|
|
|
2,100,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
SCHEDULE
II
Schedule
of Option Shares
|
|
|
Maximum
Number
of
Option Shares
to
be Sold
|
|
|
Percentage
of
Total
Number of
Option
Shares
|
|
|
Deutsche
Bank Securities Inc.
|
|
|
2,283,750
|
|
|
|
72.5
|
%
|
|
DVB
Capital Markets LLC
|
|
|
315,000
|
|
|
|
10
|
%
|
|
Cantor
Fitzgerald & Co.
|
|
|
236,250
|
|
|
|
7.5
|
%
|
|
Oppenheimer
& Co. Inc.
|
|
|
315,000
|
|
|
|
10
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
100
|
%
|
SCHEDULE
III
SCHEDULE
IV
Issuer
Free Writing Prospectus
Issuer
Free Writing Prospectus dated December 5, 2007, relating to Prospectus dated
August 1, 2005, as supplemented by Preliminary Prospectus Supplement dated
December 3, 2007 (Registration Statement No. 333-127086)
EXHIBIT
A
SUBSIDIARIES
OF TOP TANKERS, INC.
|
Name
of Subsidiary
|
Country
of Incorporation
|
Portion
of Ownership
Interest
|
|
|
|
|
|
Top
Tanker Management Inc.
|
Marshall
Islands
|
100%
|
|
Vermio
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Rupel
Shipping Company Inc.
|
Marshall
Islands
|
100%
|
|
Gramos
Shipping Company Inc.
|
Marshall
Islands
|
100%
|
|
Olympos
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Helidona
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Kalidromo
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Mytikas
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Litochoro
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Kisavos
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Parnis
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Imitos
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Giona
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Lefka
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Agrafa
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Agion
Oros Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Nedas
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Ilisos
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Sperhios
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Ardas
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Kifisos
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Noir
Shipping S.A.
|
Marshall
Islands
|
100%
|
|
Amalfi
Shipping Company Limited
|
Marshall
Islands
|
100%
|
|
Falakro
Shipping Company Limited
|
Liberia
|
100%
|
|
Psiloritis
Shipping Company Limited
|
Liberia
|
100%
|
|
Pylio
Shipping Company Limited
|
Liberia
|
100%
|
|
Idi
Shipping Company Limited
|
Liberia
|
100%
|
|
Taygetus
Shipping Company Limited
|
Liberia
|
100%
|
|
Vitsi
Shipping Company Limited
|
Liberia
|
100%
|
|
Parnasos
Shipping Company Limited
|
Liberia
|
100%
|
|
Jeke
Shipping Company Limited
|
Liberia
|
100%
|
|
Japan
I Shipping Company Limited
|
Liberia
|
100%
|
|
Japan
II Shipping Company Limited
|
Liberia
|
100%
|
|
Japan
III Shipping Company Limited
|
Liberia
|
100%
|
|
Pageon
Shipping Company Limited
|
Cyprus
|
100%
|
|
Vardousia
Shipping Company Limited
|
Cyprus
|
100%
|
|
Parnon
Shipping Company Limited
|
Cyprus
|
100%
|
|
Menalo
Shipping Company Limited
|
Cyprus
|
100%
|
|
Pintos
Shipping Company Limited
|
Cyprus
|
100%
|
TOP
TANKERS (U.K.) LIMITED is wholly (100%) owned by Top Tanker Management
Inc.
EXHIBIT
B
LOCK-UP
AGREEMENT
December
__, 2007
Deutsche
Bank Securities Inc.
As
Representative of the
Several
Underwriters
c/o
Deutsche Bank Securities Inc.
60
Wall Street, 4
th
Floor
New
York, New York 10005
Ladies
and Gentlemen:
The
undersigned understands that Deutsche Bank Securities Inc., as representative
(the “
Representative
”) of the several underwriters (the
“
Underwriters
”), propose to enter into an Underwriting Agreement (the
“
Underwriting Agreement
”) with TOP Tankers, Inc. (the “
Company
”),
providing for the public offering by the Underwriters, including the
Representative, of common stock, par value $0.01 (the “
Common Stock
”), of
the Company (the “
Public Offering
”).
To
induce the Underwriters that may participate in the Public Offering to continue
their efforts in connection with the Public Offering, the undersigned agrees
that, without the prior written consent of the Representative, the undersigned
will not, directly or indirectly, offer, sell, pledge, contract to sell
(including any short sale), grant any option to purchase or otherwise dispose
of
any shares of Common Stock (including, without limitation, shares of Common
Stock of the Company which may be deemed to be beneficially owned by the
undersigned on the date hereof in accordance with the rules and regulations
of
the Securities and Exchange Commission, shares of Common Stock which may be
issued upon exercise of a stock option or warrant and any other security
convertible into or exchangeable for Common Stock) or enter into any Hedging
Transaction (as defined below) relating to the Common Stock (each of the
foregoing referred to as a “
Disposition
”) during the period specified in
the following paragraph (the “
Lock-Up Period
”). The foregoing
restriction is expressly intended to preclude the undersigned from engaging
in
any Hedging Transaction or other transaction which is designed to or reasonably
expected to lead to or result in a Disposition during the Lock-Up Period even
if
the securities would be disposed of by someone other than the
undersigned. “
Hedging Transaction
” means any short sale
(whether or not against the box) or any purchase, sale or grant of any right
(including, without limitation, any put or call option) with respect to any
security (other than a broad-based market basket or index) that includes,
relates to or derives any significant part of its value from the Common
Stock.
The
initial Lock-Up Period will commence on the date hereof and continue until,
and
include, the date that is 60 days after the date of the final prospectus
relating to the Public Offering (the “
Initial Lock-Up Period
”);
provided
,
however
, that if (1) during the last 17 days of the
Initial Lock-Up Period, (A) the Company releases earnings results or (B)
material news or a material event relating to the Company occurs, or (2) prior
to the expiration of the Initial Lock-Up Period, the Company announces that
it
will release earnings results during the 16-day period following the last day
of
the Initial Lock-Up Period, then in each case the Lock-Up Period will be
extended until the expiration of the 18-day period beginning on
the
date of the release of the earnings results or the occurrence of material news
or a material event relating to the Company, as the case may be, unless the
Representative waives, in writing, such extension.
Notwithstanding
the foregoing, the undersigned may transfer (a) shares of Common Stock acquired
in open market transactions by the undersigned after the completion of the
Public Offering, and (b) any or all of the shares of Common Stock or other
Company securities if the transfer is by (i) gift, will or intestacy, or (ii)
distribution to partners, members or shareholders of the undersigned;
provided
,
however
, that in the case of a transfer pursuant to
clause (b) above, it shall be a condition to the transfer that the transferee
execute an agreement stating that the transferee is receiving and holding the
securities subject to the provisions of this Lock-Up Agreement.
The
undersigned agrees that the Company may, and that the undersigned will, (i)
with
respect to any shares of Common Stock or other Company securities for which
the
undersigned is the record holder, cause the transfer agent for the Company
to
note stop transfer instructions with respect to such securities on the transfer
books and records of the Company and (ii) with respect to any shares of Common
Stock or other Company securities for which the undersigned is the beneficial
holder but not the record holder, cause the record holder of such securities
to
cause the transfer agent for the Company to note stop transfer instructions
with
respect to such securities on the transfer books and records of the
Company.
In
addition, the undersigned hereby waives any and all notice requirements and
rights with respect to registration of securities pursuant to any agreement,
understanding or otherwise setting forth the terms of any security of the
Company held by the undersigned, including any registration rights agreement
to
which the undersigned and the Company may be party;
provided
that such
waiver shall apply only to the proposed Public Offering, and any other action
taken by the Company in connection with the proposed Public
Offering.
The
undersigned hereby agrees that, to the extent that the terms of this Lock-Up
Agreement conflict with or are in any way inconsistent with any registration
rights agreement to which the undersigned and the Company may be a party, this
Lock-Up Agreement supersedes such registration rights agreement.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Lock-Up Agreement. All authority
herein conferred or agreed to be conferred shall survive the death or incapacity
of the undersigned and any obligations of the undersigned shall be binding
upon
the heirs, personal representatives, successors and assigns of the
undersigned.
Notwithstanding
anything herein to the contrary, if the closing of the Public Offering has
not
occurred prior to December 13, 2007 or if the Company has informed you that
it has terminated the Public Offering, this agreement shall be of no further
force or effect.
|
Number
of shares owned
subject
to warrants, options
or
convertible securities:
|
Certificate
numbers:
|
|
|
|
|
|
|
|
|
|
EXHIBIT
C-I
MATTERS
TO BE COVERED BY U.S. COUNSEL OPINION
Seward
& Kissel LLP, as U.S. counsel to the Company, shall have furnished to the
Underwriters their written opinion addressed to the Underwriters and dated
as of
the Closing Date, and if applicable, the Option Closing Date, in form and
substance reasonably satisfactory to the Underwriters, to the effect
that:
1. To
the extent governed by the laws of the State of New York, the Underwriting
Agreement has been duly executed and delivered by the Company.
2. The
Registration Statement has been declared effective under the Securities Act
of
1933, as amended (the “
1933 Act
”), any required filing of the Prospectus
pursuant to Rule 424(b) has been made in the manner required by Rule
424(b), without reference to Rule 424(b)(8) and, to such counsel’s
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or threatened by the U.S. Securities and
Exchange Commission (the “
Commission
”).
3. The
Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and each amendment or supplement thereto as of
their respective effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom as to which
such
counsel expresses no opinion), complied as to form in all material respects
with
the requirements of the 1933 Act and the regulations promulgated
thereunder.
4. To
such counsel’s knowledge the descriptions in the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus,
including all documents incorporated by reference therein, of material contracts
and other documents to which the Company or its Subsidiaries are a party are
fair summaries of such material contracts and documents. To such
counsel’s knowledge, there are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be described
or
referred to in the Registration Statement, the Preliminary Prospectus, any
Issuer Free Writing Prospectus and the Prospectus or to be filed as exhibits
thereto, other than those described or referred to therein or filed as exhibits
thereto.
5. Other
than as set forth or contemplated in the Prospectus or the Preliminary
Prospectus and insofar as matters of United States federal and New York state
law are concerned, to such counsel’s knowledge, there are no legal or
governmental investigations, actions, suits or proceedings pending or threatened
against or affecting the Company or any of its Subsidiaries or any of their
respective properties or to which the Company or any of its Subsidiaries is
or
may be a party or to which any property of the Company or its Subsidiaries
is or
may be the subject which, if determined adversely to the Company or any of
its
Subsidiaries, could individually or in the aggregate have, or reasonably be
expected to have, a material adverse effect on the general affairs, business,
management, financial position, shareholders’ equity or results of operations of
the Company and its Subsidiaries taken as a whole, or which would reasonably
be
expected to materially and adversely affect the consummation of the transactions
contemplated in the Underwriting Agreement or the performance by the Company
of
its obligations thereunder; and to such counsel’s knowledge there are no
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement, the Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
6. Under
the laws of the State of New York relating to personal jurisdiction, the Company
has, pursuant to Section 14 of the Underwriting Agreement, validly and
irrevocably submitted to the personal jurisdiction of any New York Court in
any
action arising out of or relating to the Underwriting Agreement or the
transactions contemplated thereby, has validly and irrevocably waived any
objection to the venue of a proceeding in any such court, and has validly and
irrevocably appointed the Authorized
Agent
as it authorized agent for the purpose described in Section 14 of the
Underwriting Agreement; and service of process effected on such agent in the
manner set forth in Section 14 of the Underwriting Agreement will be effective
to confer valid personal jurisdiction over the Company;
7. The
information in the Prospectus under “Risk Factors,” “Management”, “Description
of Capital Stock,” “Taxation – United States Federal Income Tax Considerations,”
and “Taxation – United States Federal Income Taxation of our Company” and in the
Company’s most recent annual report on Form 20-F, under “Part I, Item 4 –
Environmental Regulation” and “Part 1, Item 7 – Major Shareholders and Related
Party Transactions” to the extent that it constitutes matters of law, summaries
of legal matters, legal proceedings, or legal conclusions, has been reviewed
by
us and is correct in all material respects.
8. No
consent, approval, authorization, order, license, registration or qualification
of or with any United States federal or New York state court or governmental
agency or body, which is in our experience customarily applicable to
transactions of the type contemplated by the Underwriting Agreement, is required
for the issue and sale of the Common Stock or the consummation of the
transactions contemplated by the Underwriting Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications
(a)
as have been obtained under the 1933 Act and regulations promulgated thereunder
and under the Securities Exchange Act of 1934, as amended (the “
Exchange
Act
”) and the regulations promulgated thereunder, (b) as may be required
under state securities or blue sky laws in connection with the purchase and
distribution of the Common Stock by the Underwriters (as to which such counsel
expresses no opinion), (c) as may be required by the Financial Industry
Regulatory Authority (“
FINRA
”) (as to which such counsel expresses no
opinion), and (d) as may be required in connection with the acquisition of
any
vessel as contemplated in the Prospectus.
9. The
execution, delivery and performance of the Underwriting Agreement and the
consummation of the transactions contemplated in the Underwriting Agreement
and
in the Registration Statement (including the issuance and sale of the Common
Stock and the use of the proceeds from the sale of the Common Stock as described
in the Prospectus under the caption “Use Of Proceeds”), and compliance by the
Company with its obligations under the Underwriting Agreement do not and will
not conflict with or result in any breach or violation of (a) any of the terms
or provisions of, or constitute a default under, any agreement or instrument,
known to us, to which the Company or any of its Subsidiaries is a party or
by
which the Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is subject or
(b)
any provision of the applicable federal laws of the United States of America
or
of the laws of the State of New York (except that such counsel expresses no
opinion as to any applicable blue sky laws).
10. Other
than as set forth in the Prospectus, to such counsel’s knowledge, there are no
persons with registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered by
the
Company under the 1933 Act.
11. The
Company is not and, after giving effect to the offering and sale of the Common
Stock, will not be an “investment company” or entity “controlled” by an
“investment company,” as such terms are defined in the Investment Company Act of
1940, as amended.
12. The
Common Stock is duly listed, and admitted and authorized for trading, subject
to
official notice of issuance, on the Nasdaq Global Market.
13. The
Company is a “foreign private issuer” as defined in Rule 405 of the 1933
Act.
In
addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such counsel
which leads them to believe that (i) the Registration Statement, or any
amendment thereto, as of the time it became effective under the Act (including
the information deemed to be a part of the Registration Statement at the time
it
became effective pursuant to Rules 430A, 430B or 430C under the Act) as of
the
Closing Date or the Option Closing Date, as the case may
be,
contained or contains an untrue statement of a material fact or omitted or
omits
to state a material fact required to be stated therein or necessary to make
the
statements therein not misleading, (ii) the General Disclosure Package, as
of
the Applicable Time, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not misleading and
(iii) the Prospectus, or any supplement thereto, on the date it was filed
pursuant to the Rules and Regulations and as of the Closing Date or the Option
Closing Date, as the case may be, contained or contains an untrue statement
of a
material fact or omitted or omits to state a material fact, necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (except that such counsel need express no view
as
to financial statements and schedules and other financial data
therein). With respect to such statement, may state that their belief
is based upon the procedures set forth therein, but is without independent
check
and verification.
The
opinion described above shall be rendered to the Underwriters at the request
of
the Company and shall so state therein.
EXHIBIT
C-II
MATTERS
TO BE COVERED BY MARSHALL ISLANDS COUNSEL OPINION
Seward
&
Kissel
LLP, as Marshall
Islands counsel to the Company, shall have furnished to the Underwriters their
written opinion addressed to the Underwriters and dated as of the Closing Date,
and if applicable, the Option Closing Date, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
1. Each
of the Company and its Marshall Islands subsidiaries, set forth in Exhibit
A
hereto (the “Marshall Islands Subsidiaries”) is duly incorporated and is validly
existing as a corporation in good standing under the laws of the Marshall
Islands.
2. The
Company has full corporate power and authority to own, lease and operate its
properties and to conduct its business in all respects as described in the
Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and to enter into and perform its obligations
under the Underwriting Agreement.
3. The
Underwriting Agreement has been duly authorized, validly executed and delivered
by the Company.
4. Each
of the vessels set forth on Exhibit A hereto (being vessels owned by the
Marshall Islands Subsidiaries) is duly and validly registered as a vessel in
the
sole ownership of its respective owner, as indicated on such schedule, under
the
laws of the Marshall Islands, free and clear of all liens, claims charges,
debts, or encumbrances and defects of title of record, except as described
in
the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus, and each such vessel is in good standing with
respect to the payment of past and current taxes, fees and other amounts payable
under the laws of the Marshall Islands as would affect its registry with the
Office of the Maritime Administrator of the Marshall Islands.
5. The
Company’s authorized equity capitalization is as set forth in the Registration
Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus and
the Prospectus, the capital stock of the Company conforms in all material
respects to the description thereof contained in the Registration Statement,
the
Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus,
the outstanding Common Stock has been duly and validly authorized and issued
and
is fully paid and non-assessable, the Common Stock issued in the Offering has
been duly and validly authorized, and, when delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement, will conform in all
material respects to the descriptions thereof contained in the Registration
Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus and
the Prospectus and will be validly issued, fully paid and non-assessable, the
certificates for such Common Stock are in valid and sufficient form, the holders
of outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Common Stock, and, except as
set
forth in the Registration Statement, the Preliminary Prospectus, any Issuer
Free
Writing Prospectus and the Prospectus, to such counsel’s knowledge, no options,
warrants, or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are
outstanding.
6. To
such counsel’s knowledge, the authorized, issued and outstanding capital stock
of the Company is as set forth in the Preliminary Prospectus and the Prospectus
in the column entitled “Actual” under the caption “Capitalization” (except for
subsequent issuances, if any, pursuant to the Underwriting
Agreement).
7. The
Common Stock has been duly authorized for issuance and sale to the Underwriters
pursuant to the Underwriting Agreement and, when issued and delivered by the
Company pursuant to the
Underwriting
Agreement against payment of the consideration set forth in the Underwriting
Agreement, will be validly issued and fully paid and non-assessable and no
holder of the Common Stock is or will be subject to personal liability by reason
of being such a holder.
8. Other
than as set forth or contemplated in the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus and the Prospectus and insofar
as
matters of Marshall Islands law are concerned, to such counsel’s knowledge there
are no legal or governmental investigations, actions, suits or proceedings
pending or threatened in the Marshall Islands against or affecting the Company
or any of its properties or to which the Company is or may be a party or of
which any of its properties is or may be the subject.
9. Neither
the issue and sale of the Common Stock, the execution, delivery and performance
of the Underwriting Agreement, nor the consummation of any other of the
transactions contemplated in the Underwriting Agreement, nor the fulfillment
of
the terms therewith will conflict with, result in a breach or violation of,
or
imposition of any lien, charge or encumbrance under Marshall Islands law upon
any property or assets of the Company or the Marshall Islands Subsidiaries
pursuant to (i) the articles of incorporation or bylaws of the Company or (ii)
any Marshall Islands statute, law, rule, order, regulation of general
application to which the Company is subject.
10. No
licenses, permits, certificates, consents, orders, approvals or other
authorizations of, or declarations or filings with, any governmental or
regulatory authorities of the Marshall Islands is required for (a) the issuance
and sale of the Common Stock by the Company or the consummation by the Company
of the transactions contemplated by the Underwriting Agreement or (b) the
Company to own or lease, as the case may be, or to operate, its properties
and
carry on its business as conducted as of the date hereof in the manner described
in the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus and the Prospectus
11. No
consent, approval, authorization, order, license, registration or qualification
of or with any court or governmental agency or body of the Marshall Islands
is
required for the issuance and sale of the Common Stock by the Company or the
consummation by the Company of the transactions contemplated by the Underwriting
Agreement.
12. The
information in the Prospectus under “Description of Capital Stock”, Marshall
Islands legal matters, documents or proceedings referred to therein, and the
statements in the Prospectus under “Taxation Considerations – Marshall Islands
Tax Considerations,” insofar as such statements describe Marshall Islands tax
law, has been reviewed by us and fairly present in all material respects the
information called for with respect to such terms and legal matters under
Marshall Islands law, documents or proceedings.
13. No
documentary stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes, are payable by or on behalf of the
Underwriters to the Marshall Islands or to any political subdivision or taxing
authority thereof or therein in connection with the sale and delivery by the
Company of the Common Stock to the Underwriters.
14. Insofar
as matters of Marshall Islands law are concerned, the Registration Statement
and
the filing of the Registration Statement with the Securities Exchange Commission
have been duly authorized by and on behalf of the Company, and the Registration
Statement has been duly executed pursuant to such authorization by and on behalf
of the Company.
15. The
agreement of the Company to the choice of law provisions set forth in Section
14
of the Underwriting Agreement will be recognized by the courts of the Marshall
Islands; the Company can sue and be sued in its own name under the laws of
the
Marshall Islands; the irrevocable submission of the Company to the exclusive
jurisdiction of a New York Court, the waiver by the Company of any objection
to
the venue of a proceeding of a New York Court and the agreement of the Company
that the
Underwriting
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York are legal, valid and binding; service of process effected
in
the manner set forth in Section 14 of the Underwriting Agreement will be
effective, insofar as the laws of the Marshall Islands are concerned, to confer
valid personal jurisdiction over the Company; and a final non-appealable
judgment against the Company entered by a court in any United States or foreign
jurisdiction in any suit, action or proceeding would be enforceable in the
courts of the Republic of the Marshall Islands without a retrial of the merits
of the matter, provided that: (a) the judgment was for a sum of money and was
final in the jurisdiction granting the judgment; (b) the court granting the
judgment had jurisdiction under the laws of the place where it sat and the
judgment did not offend principles of the Republic of the Marshall Islands
as to
due process, propriety or public order; and (c) the defendant was actually
present in person or by duly appointed representative, and the judgment did
not
constitute in effect a default judgment;
16. All
dividends and other distributions declared and payable on the shares of capital
stock of the Company may under the current laws and regulations of the Marshall
Islands be paid in United States dollars and may be freely transferred out
of
the Marshall Islands and will not be subject to withholding taxes under the
laws
and regulations of the Marshall Islands, and are otherwise free and clear of
any
other tax, withholding or deduction and 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 Marshall Islands.
17. Neither
the Company nor any of its properties or assets has an immunity from suit,
execution, attachment or legal process in any proceedings taken in the Marshall
Islands in relation to the Underwriting Agreement.
The
opinion described above shall be rendered to the Underwriters at the request
of
the Company and shall so state therein.
EXHIBIT
C-III
MATTERS
TO BE COVERED BY CYPRIOT COUNSEL OPINION
Chrysses
Demetriades & Co., as Cypriot counsel to the Company, shall have furnished
to the Underwriters their written opinion addressed to the Underwriters and
dated as of the Closing Date, and if applicable, the Option Closing Date, in
form and substance reasonably satisfactory to the Underwriters, to the effect
that:
1. Each
of the Company’s Cyprus subsidiaries (each a “
Cyprus Subsidiary
” and
collectively the “
Cyprus Subsidiaries
”) set forth on
Exhibit A
hereto, has been duly incorporated and is validly existing as a limited
liability company under the laws of Cyprus, remains on the Registry, is duly
qualified and authorized to do business and has all requisite power and
authority necessary to own and operate its respective vessel and to conduct
its
business as described in the Registration Statement, the Preliminary Prospectus,
any Issuer Free Writing Prospectus or the Prospectus; and all of the authorized
share capital of each Cyprus Subsidiary has been duly and validly issued, is
fully paid, and is owned directly or indirectly by the Company, free and clear
of any registered liens or statutory pledge (such counsel being entitled to
rely
in respect of matters of fact upon certificates of officers of the Company
or
its Cyprus Subsidiaries, provided that such counsel shall state that they
believe that the Underwriters and they are justified in relying upon such
certificates).
2. Each
of the vessels set forth on
Exhibit A
hereto to such opinion (being
vessels owned by the Cyprus Subsidiaries) is duly and validly registered as
a
vessel in the sole ownership of the entity indicated as the “Owning Entity” of
such vessel set forth on
Exhibit A
under the laws of Cyprus, each has
good and marketable title thereto, free and clear of all registered liens,
claims charges, debts, or encumbrances and defects of title of record, except
as
described in the Registration Statement, the Preliminary Prospectus, any Issuer
Free Writing Prospectus and the Prospectus, and each such vessel is in good
standing with respect to the payment of past and current taxes, fees and other
amounts payable under the laws of the Cyprus as would affect its registry with
the Cyprus Ships Registry.
3. Each
ship management agreement under which Top Tanker Management Inc. has been
appointed to act as the manager has been duly authorized, executed and delivered
by the appropriate Cyprus Subsidiary in accordance with the laws of
Cyprus.
4. To
the best knowledge of such counsel, there are no legal or governmental actions,
suits, proceedings or investigations pending or threatened, against the Cyprus
Subsidiaries, or as to which the business, assets, or property of such
Subsidiaries would be subject or bound that are required to be described in
the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
5. No
consent, approval, authorization or order of, or filing with, any governmental
agency or body or any court of the Republic of Cyprus is required for the
consummation of the transactions contemplated by the Underwriting Agreement
in
connection with the issuance or sale of the Common Stock by the
Company.
6. The
issuance and sales of the Common Stock by the Company pursuant to the
Underwriting Agreement and the consummation of the transactions contemplated
therein will not result in the violation by any Cyprus Subsidiary of its
Memorandum and Articles of Association or any Cyprus statute, rule or regulation
of any court or administrative or governmental agency or body known to such
counsel to be applicable to any such Subsidiary.
7. Neither
the Company nor any of its Subsidiaries nor any of its or their properties
or
assets has an immunity from suit, execution, attachment or legal process in
any
proceedings taken in Cyprus in relation to the Underwriting
Agreement.
8. No
stamp or other issuance or transfer taxes or duties and no capital gains,
income, withholding or other taxes, are payable by or on behalf of the
Underwriters to the Republic of Cyprus or to any political subdivision or taxing
authority thereof or therein in connection with the sale and delivery by the
Company of the Common Stock to the Underwriters thereof.
The
opinion described above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
EXHIBIT
C-IV
MATTERS
TO BE COVERED BY GREEK COUNSEL OPINION
G.C.
Economou & Associates, as Greek counsel to the Company, shall have furnished
to the Underwriters their written opinion addressed to the Underwriters and
dated as of the Closing Date, and if applicable, the Option Closing Date, in
form and substance reasonably satisfactory to the Underwriters, to the effect
that:
1. No
consent or other form of authorization is required from any court or
governmental agency or body or any stock exchange authority in Greece in
connection with the valid execution and delivery by the Company of the
Underwriting Agreement or the sale of the Common Stock by the Company or the
consummation by the Company of the transactions contemplated by the Underwriting
Agreement.
2. All
dividends and other distributions declared and payable on the shares of capital
stock of the Company may under the current laws and regulations of Greece be
paid in United States dollars and may be freely transferred out of Greece,
and
all such dividends and other distributions will not be subject to withholding
or
other taxes under the laws and regulations of Greece and are otherwise free
and
clear of any other tax, withholding or deduction in and 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
Greece.
3. To
the best of such counsel’s knowledge, there are no legal or governmental
proceedings pending or threatened in Greece to which the Company or any of
the
Company’s Subsidiaries is a party or to which any property of the Company or any
of its Subsidiaries is the subject.
4. To
the best of such counsel’s knowledge, the compliance by the Company with all of
the provisions of the Underwriting Agreement and the consummation of the
transactions contemplated therein will not conflict in any material respect
with
any Greek law.
5. The
Company and its Subsidiaries are not required to file tax returns or pay any
taxes in Greece.
6. To
the best of such counsel’s knowledge, the Company and its Subsidiaries has
obtained any licenses and other forms of authorization from, and has made all
declarations and filings with, any governmental authorities, self-regulatory
organizations and any courts and other tribunals in Greece necessary to own
or
lease, as the case may be, and to operate the vessel owned by certain of its
Subsidiaries and to carry on its business as conducted as of the date of the
Prospectus, and neither the Company nor any such Subsidiary has received any
actual notice of any proceedings relating to revocation or modification of
any
such license or other form of authorization, and the Company and its
Subsidiaries is in compliance in all material respects with all laws and
regulations in Greece relating to the ownership or lease, as the case may be,
and the operation of the vessel owned by each of the Subsidiaries and the
conduct of its business as conducted as of the date of the
Prospectus.
7. No
documentary stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes, are payable by or on behalf of the
Underwriters to Greece or to any political subdivision or taxing authority
thereof or therein in connection with the sale and delivery by the Company
of
the Common Stock to the Underwriters thereof.
The
opinion described above shall be rendered to the Underwriters at the request
of
the Company and shall so state therein.
EXHIBIT
C-V
MATTERS
TO BE COVERED BY LIBERIAN COUNSEL OPINION
Seward
& Kissel LLP, as Liberian counsel to the Company, shall have furnished to
the Underwriters their written opinion addressed to the Underwriters and dated
as of the Closing Date, and if applicable, the Option Closing Date, in form and
substance reasonably satisfactory to the Underwriters, to the effect
that:
1. The
Liberian Subsidiaries are companies incorporated under the laws of the Republic
of Liberia and have been duly incorporated and are validly existing as a
companies under the laws of Liberia, is in good standing, are duly qualified
and
authorized to do business and have all requisite power and authority necessary
to own and operate their vessel and to conduct their business as described
in
the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus (except where the failure to so qualify would
not,
in the aggregate, have a material adverse effect on the Company and the
Company’s Liberian Subsidiaries taken as a whole); and all of the authorized
share capital of the Liberian Subsidiaries has been duly and validly issued,
is
fully paid, and is owned directly or indirectly by the Company, free and clear
of any liens or statutory pledge, except as described in the Registration
Statement, the Preliminary Prospectus and the Prospectus.
2. To
such counsel’s knowledge, there are no legal or governmental actions, suits,
proceedings or investigations pending or threatened, against the Liberian
Subsidiaries or as to which the business, assets, or property of such Subsidiary
would be subject or bound that are required to be described in the Registration
Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus or
the
Prospectus or to be filed as exhibits to the Registration Statement that are
not
described or filed as required.
3. No
consent, approval, authorization or order of, or filing with, any governmental
agency or body or any court of Liberia is required for the consummation of
the
transactions contemplated by the Underwriting Agreement in connection with
the
issuance or sale of the Common Stock by the Company.
4. The
issuance and sales of the Common Stock by the Company pursuant to the
Underwriting Agreement and the consummation of the transactions contemplated
therein will not result in the violation by the Liberian Subsidiaries of their
articles of incorporation or any Liberian statute, rule or regulation of any
court or administrative or governmental agency or body known to us to be
applicable to any such Subsidiary.
5. Neither
the Company nor any of its properties or assets has an immunity from suit,
execution, attachment or legal process in any proceedings taken in the Republic
of Liberia in relation to the Underwriting Agreement.
6. No
documentary stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes, are payable by or on behalf of the
Underwriters to Liberia or to any political subdivision or taxing authority
thereof or therein in connection with the sale and delivery by the Company
of
the Common Stock to the Underwriters thereof as a result of the Company being
the parent of the Liberian Subsidiaries.
The
opinion described above shall be rendered to the Underwriters at the request
of
the Company and shall so state therein.
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.
TOP
TANKERS INC.
(registrant)
|
Dated: December
12, 2007
|
|
By:
|
/s/
Evangelos J. Pistiolis
|
|
|
|
|
|
Evangelos
J. Pistiolis
|
|
|
|
|
|
Chief
Executive Officer
|
|
SK
23116
0001 838039
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