d996002_6-k.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
6-K
REPORT
OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13A-16 OR 15D-16 OF
THE
SECURITIES EXCHANGE ACT OF 1934
For
the month of May 2009
Commission
File Number: 001-13944
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NORDIC
AMERICAN TANKER SHIPPING LIMITED
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(Translation
of registrant's name into English)
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LOM
Building, 27 Reid Street, Hamilton, HM 11, Bermuda
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(Address
of principal executive office)
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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): [ ].
Note: Regulation S-T Rule
101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely
to provide an attached annual report to security holders.
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): [ ].
Note: Regulation S-T Rule
101(b)(7) only permits the submission in paper of a Form 6-K if submitted to
furnish a report or other document that the registrant foreign private issuer
must furnish and make public under the laws of the jurisdiction in which the
registrant is incorporated, domiciled or legally organized (the registrant's
"home country"), or under the rules of the home country exchange on which the
registrant's securities are traded, as long as the report or other document is
not a press release, is not required to be and has not been distributed to the
registrant's security holders, and, if discussing a material event, has already
been the subject of a Form 6-K submission or other Commission filing on
EDGAR.
INFORMATION
CONTAINED IN THIS FORM 6-K REPORT
Attached
to this report on Form 6-K as Exhibit 1 is the Underwriting Agreement dated
May 12, 2009 by and among Nordic American Tanker Shipping Limited (the
"Company") and Morgan Stanley & Co. Incorporated, as representative of the
several underwriters named in Schedule 1 thereto relating to the offering of
common shares by the Company.
This
Report on Form 6-K is hereby incorporated by reference into the Company's
Post-Effective Amendment No. 1 to its Registration Statement on Form F-3
(Registration No. 333-137598) filed on May 12, 2008, of which the preliminary
prospectus supplement dated May 12, 2009 to the prospectus dated May 12, 2008
relating to the offering of common shares, and the final prospectus
supplement dated May 12, 2009 to the prospectus dated May 12, 2008 relating
to the offering of common shares, form a part.
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.
NORDIC
AMERICAN TANKER SHIPPING LIMITED
(registrant)
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Dated: May
15, 2009
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By:
/s/ Herbjørn
Hansson
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Herbjørn
Hansson
Chairman,
Chief Executive Officer and
President
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Exhibit
1
4,000,000
Shares of Common Stock
NORDIC
AMERICAN TANKER SHIPPING LIMITED
UNDERWRITING
AGREEMENT
MORGAN
STANLEY & CO. INCORPORATED
As
Representative of the
several
Underwriters named in
Schedule
I attached hereto (the "Representative")
c/o
Morgan Stanley & Co. Incorporated
1585
Broadway
New
York, New York 10036
Ladies/Gentlemen:
Nordic
American Tanker Shipping Limited, a company organized and existing under the
laws of the Islands of Bermuda (the "Company"), proposes, subject to the terms
and conditions stated herein, to issue and sell to the several underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of 4,000,000 shares
(the "Firm Shares") of its common shares, par value $0.01 per share (the "Common
Stock") and, for the sole purpose of covering over-allotments in connection with
the sale of the Firm Shares, at the option of the Underwriters, up to an
additional 600,000 shares (the "Additional Shares") of Common
Stock. The Firm Shares and any Additional Shares purchased by the
Underwriters are referred to herein as the "Shares". Morgan Stanley
& Co. Incorporated is acting as the lead manager ("Lead Manager") in
connection with the offering and sale of the Shares contemplated herein (the
"Offering").
1. Representations and
Warranties of the Company
The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) The
Company has filed with the Securities and Exchange Commission (the "Commission")
an "automatic shelf registration statement" as defined in Rule 405 under the
Securities Act of 1933, as amended (the "Securities Act") relating to the Shares
on Form F-3 (No. 333-137598) (the "Initial Registration Statement"); the Initial
Registration Statement has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the Commission to
the use of such Initial Registration Statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by
the Company. Other than a registration statement, if any, increasing
the size of the Offering (a "Rule 462(b) Registration Statement") filed pursuant
to Rule 462(b) under the Securities Act, which will become effective upon
filing, no other document with respect to the Initial Registration Statement has
heretofore been filed with the Commission. The
various
parts of the Initial Registration Statement and the 462(b) Registration
Statement, if any, including all exhibits thereto and including (i) the
information contained in the form of final prospectus supplement filed with the
Commission pursuant to Rule 424(b) under the Securities Act in accordance with
Section 4(a) hereof and deemed by virtue of Rule 430A, 430B or 430C under the
Securities Act to be part of the Initial Registration Statement at the time it
became effective under the Securities Act with respect to the Underwriters, and
(ii) the documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Registration
Statement became or hereafter becomes effective under the Securities Act with
respect to the Underwriters, each as amended at the time such part of the
Initial Registration Statement or Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective under the Securities Act with respect to
the Underwriters, are hereafter collectively referred to as the "Registration
Statement." Any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), after the effective date of the
Initial Registration Statement that is incorporated by reference
therein. No stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission.
The
final prospectus supplement relating to the Shares, in the form first filed with
the Commission pursuant to Rule 424(b) under the Securities Act, is hereafter
referred to as the "Prospectus". Any preliminary prospectus relating
to the Shares included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) under the Securities Act is hereafter
referred to as a "Preliminary Prospectus;" and the Preliminary Prospectus
relating to the Shares, as amended or supplemented immediately prior to the
Applicable Time (as defined below), is hereafter referred to as the "Pricing
Prospectus". Any "issuer free writing prospectus" (as defined in Rule
433 under the Securities Act) relating to the Shares is hereafter referred to as
an "Issuer Free Writing Prospectus"; and the Pricing Prospectus, as supplemented
by the public offering price(s) of the shares and the Issuer Free Writing
Prospectuses, if any, attached and listed in Annex IV hereto, taken together,
are hereafter referred to collectively as the "Pricing Disclosure
Package". Any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 6 of Form F-3 that were filed under the
Exchange Act on or before the date of such Preliminary Prospectus or Prospectus,
as the case may be; and any reference herein to any "amendment" or "supplement"
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include (i) the filing of any document under the Exchange Act after the date of
such Preliminary Prospectus or Prospectus, as the case may be, which is
incorporated therein by reference and (ii) any such "amendment" or "supplement"
so filed.
The
Company is not an "ineligible issuer" and is a "well-known seasoned issuer"
(each as defined in Rule 405 under the Securities Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Securities Act
with respect to the offering of the Shares contemplated hereby.
All
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, any Preliminary Prospectus, Issuer Free Writing
Prospectus or the Prospectus, or any amendments or supplements to any of the
foregoing, shall be deemed to include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System as
superseded by a subsequent filing, if applicable.
(b) The
Registration Statement complies and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will comply in all
material respects with the applicable provisions of the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (the
"Rules and Regulations"), and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as of the
applicable filing date as to the Prospectus and any amendment thereof or
supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any information contained in or
omitted from the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Lead Manager specifically for use
therein. The parties hereto agree that such information provided by
or on behalf of any Underwriter through the Lead Manager consists solely of the
material referred to in Section 16 hereof.
(c) No
order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, complied in all material
respects with the applicable provisions of the Securities Act, the Exchange Act
and the Rules and Regulations, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any information contained in or
omitted from any Preliminary Prospectus or any Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Lead Manager specifically
for use therein. The parties hereto agree that such information
provided by or on behalf of any Underwriter through the Lead Manager consists
solely of the material referred to in Section 16 hereof.
(d) For
purposes of this Agreement, the "Applicable Time" is 4:10 p.m. (Eastern) on the
date of this Agreement. The Pricing Disclosure Package, as of the
Applicable Time, did not, and as of the Closing Date and the Additional Closing
Date, if any (each as hereinafter defined), will not, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each Issuer
Free Writing Prospectus complies in all material respects with the applicable
provisions of the Securities Act and the Rules and Regulations, and does not
include information that conflicts with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus; and each
Issuer Free Writing Prospectus not listed in Annex IV hereto, as supplemented by
and taken together with the Pricing Disclosure Package, as of the Applicable
Time, did not, and as of
the
Closing Date and the Additional Closing Date, if any, will not, contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. No
representation and warranty is made in this Section 1(d) with respect to any
information contained in or omitted from the Pricing Disclosure Package or any
Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Lead Manager specifically for use
therein. The parties hereto agree that such information provided by
or on behalf of any Underwriter through the Lead Manager consists solely of the
material referred to in Section 16 hereof.
(e) Deloitte
AS, who have certified the financial statements of the Company included or
incorporated by reference in the Registration Statement, the Pricing Disclosure
Package or the Prospectus are an independent registered public accounting firm
as required by the Securities Act, the Exchange Act and the Rules and
Regulations.
(f) Subsequent
to the respective dates as of which information is given in the Registration
Statement and the Pricing Disclosure Package, except as disclosed in the Pricing
Disclosure Package, the Company has not declared, paid or made any dividends or
other distributions of any kind on or in respect of its share capital and there
has been no material adverse change or any development involving a prospective
material adverse change, whether or not arising from transactions in the
ordinary course of business, in or affecting (i) the business, condition
(financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company; (ii) the long-term debt or share capital
of the Company; or (iii) the Offering or consummation of any of the other
transactions contemplated by this Agreement, the Registration Statement or the
Prospectus (a "Material Adverse Change"). Since the date of the
latest balance sheet included, or incorporated by reference, in the Registration
Statement and the Pricing Disclosure Package, the Company has not incurred or
undertaken any liabilities or obligations, whether direct or indirect,
liquidated or contingent, matured or unmatured, or entered into any
transactions, including any acquisition or disposition of any business or asset,
which are material to the Company, except for liabilities, obligations and
transactions which are disclosed in the Registration Statement and the Pricing
Disclosure Package.
(g) The
authorized, issued and outstanding share capital of the Company is as set forth
in the Pricing Prospectus in the column headed "Actual" under the caption
"Capitalization" and, after giving effect to the Offering and the other
transactions contemplated by this Agreement, the Registration Statement and the
Pricing Disclosure Package, will be as set forth in the column headed "As
Adjusted" under the caption "Capitalization". All of the issued and
outstanding shares in the capital of the Company are fully paid and
non-assessable and have been duly and validly authorized and issued, in
compliance with all applicable state, federal and foreign securities laws and
not in violation of or subject to any preemptive or similar right that does or
will entitle any person, upon the issuance or sale of any security, to acquire
from the Company any Common Stock or other security of the Company or any
security convertible into, or exercisable or exchangeable for, Common Stock or
any other such security (any "Relevant Security"), except for such rights as may
have been fully satisfied or waived prior to the effectiveness of the
Registration Statement.
(h) The
Shares to be delivered on the Closing Date and the Additional Closing Date, if
any, have been duly and validly authorized and, when delivered in accordance
with this Agreement, will be duly and validly issued, fully paid and
non-assessable, will have been issued in compliance with all applicable state,
federal and foreign securities laws and will not have been issued in violation
of or subject to any preemptive or similar right that does or will entitle any
person to acquire any Relevant Security from the Company upon issuance or sale
of Shares in the Offering, other than shares of Common Stock to be issued to
Scandic American Shipping Ltd. ("Scandic") pursuant to and in accordance with
the terms of the Management Agreement by and between the Company and Scandic
dated as of June 30, 2004, as amended on October 12, 2004 (the "Scandic
Management Agreement"), in effect on the date hereof, as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus. The Common Stock and the Shares conform in all material
respects to the descriptions thereof contained in the Registration Statement,
the Pricing Disclosure Package and
the Prospectus. Except as disclosed in the Pricing Disclosure Package,
the Company does not have outstanding warrants, options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase, or any
contracts or commitments to issue or sell, any Relevant Security.
(i) The
Company holds no ownership or other interest, nominal or beneficial, direct or
indirect, in any corporation, partnership, joint venture or other business
entity.
(j) The
Company has been duly organized and validly exists as a corporation, in good
standing under the laws of the Islands of Bermuda. The Company has
all requisite power and authority to carry on its business as it is currently
being conducted and as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, and to own, lease and operate its
properties. The Company is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which (individually or in
the aggregate) would not have a material adverse effect on (i) the business,
condition (financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company; (ii) the long-term debt or share capital
of the Company; or (iii) the Offering or consummation of any of the other
transactions contemplated by this Agreement, the Registration Statement or the
Pricing Disclosure Package (any such effect being a "Material Adverse
Effect").
(k) The
Company has all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses, filings and permits of, with and from
all judicial, regulatory and other legal or governmental agencies and bodies and
all third parties, foreign and domestic (collectively, the "Consents"), except
where the failure to obtain such Consents would not have a Material Adverse
Effect, to own, lease and operate its properties and conduct its business as it
is now being conducted and as disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, and each such
Consent
is valid and in full force and effect, and the Company has not received notice
of any investigation or proceedings which results in or, if decided adversely to
the Company, could reasonably be expected to result in, the revocation of, or
imposition of a materially burdensome restriction on, any
Consent. The Company is in compliance with all applicable laws,
rules, regulations, ordinances, directives, judgments, decrees and orders,
foreign and domestic, except where failure to be in compliance would not have a
Material Adverse Effect. No Consent contains a materially burdensome
restriction not adequately disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(l) The
Company has full right, power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated by this Agreement, the Registration Statement, the
Pricing Disclosure Package and the
Prospectus. This Agreement and the transactions contemplated
by this Agreement, the Registration Statement, the Pricing Disclosure Package and the
Prospectus have been duly and validly authorized by the
Company. This Agreement has been duly and validly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(m) The
execution, delivery, and performance of this Agreement and consummation of the
transactions contemplated by this Agreement, the Registration Statement, the
Pricing Disclosure Package and the
Prospectus, including the issue and sale of the Shares, do not and will
not (i) conflict with, require consent under or result in a breach of any of the
terms and provisions of, or constitute a default (or an event which with notice
or lapse of time, or both, would constitute a default) under, or result in the
creation or imposition of any lien, charge, mortgage, pledge, security interest,
claim, equity, trust or other encumbrance, preferential arrangement, defect or
restriction of any kind whatsoever (any "Lien") upon any property or assets of
the Company pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement, instrument, franchise, license or permit to which the
Company is a party or by which the Company or its properties, operations or
assets may be bound or (ii) violate or conflict with any provision of the
certificate of incorporation, memorandum of association, bye-laws or other
organizational documents of the Company, or (iii) violate or conflict with any
law, rule, regulation, ordinance, directive, judgment, decree or order of any
judicial, regulatory or other legal or governmental agency or body, domestic or
foreign, except (in the case of clause (i) above) as would not have a Material
Adverse Effect.
(n) No Consent of, with or from any
judicial, regulatory or other legal or governmental agency or body or any third
party, foreign or domestic, with jurisdiction over the Company, is required for
the execution, delivery and performance of this Agreement or consummation of the
transactions contemplated by this Agreement, the Registration Statement,
the Pricing Disclosure Package and
the Prospectus, including the issuance, sale and delivery of the Shares, except
(x) the registration under the Securities Act of the Shares and (y) such
Consents as may be required (i) under state securities or blue sky laws, (ii)
under the by-laws and rules of the Financial Industry Regulatory
Authority (the "FINRA") in
connection with the purchase and distribution of the Shares by the Underwriters
or (iii) by the Bermuda Monetary Authority, each of which has been obtained and is
in full force and effect.
(o) Except
as disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, there is no judicial, regulatory, arbitral or other legal or
governmental proceeding or other litigation or arbitration, domestic or foreign,
pending to which the Company is a party or of which any property, operations or
assets of the Company is the subject which, individually or in the aggregate, if
determined adversely to the Company, would have a Material Adverse Effect; to
the best of the Company's knowledge, no such proceeding, litigation or
arbitration is threatened or contemplated; and the defense of all such
proceedings, litigation and arbitration against or involving the Company would
not have a Material Adverse Effect.
(p) The
financial statements and pro forma data, including the notes thereto, and the
supporting schedules included or incorporated by reference in the Registration
Statement, the Pricing Disclosure
Package and the Prospectus present fairly the financial position as of
the dates indicated and the cash flows and results of operations for the periods
specified of the Company; except as otherwise stated in the Registration
Statement, the Pricing Disclosure
Package and the Prospectus, said financial statements have been prepared
in conformity with United States generally accepted accounting principles
applied on a consistent basis throughout the periods involved. No
other financial statements or supporting schedules are required to be included
in the Registration Statement, the Pricing Disclosure Package or the
Prospectus by the Securities Act,
the Exchange Act or the Rules and Regulations. The other
financial and statistical information included or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and
the Prospectus present fairly the information included therein and have been
prepared on a basis consistent with that of the financial statements that are
included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and
the Prospectus and the books and records of the respective entities presented
therein.
(q) There
are no pro forma or as adjusted financial statements which are required to be
included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the
Prospectus in accordance with Regulation S-X which have not been included
as so required.
(r) The
statistical, industry-related and market-related data included in the
Registration Statement, the Pricing 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.
(s) The
Common Stock has been registered pursuant to Section 12(b) of the Exchange
Act. The outstanding shares of Common Stock are listed on The New
York Stock Exchange (or "NYSE") and the Company has taken no action designed to,
or likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act or de-listing the Common Stock from the NYSE, nor
has the Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
(t) The
Company maintains a system of internal accounting and other controls sufficient
to provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with United States generally accepted accounting
principles and to maintain accountability for assets, (iii) access to assets is
permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accounting for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(u) Neither
the Company nor any of its affiliates (within the meaning of Rule 144 under the
Securities Act) has taken, directly or indirectly, any action which constitutes
or is designed to cause or result in, or which would reasonably be expected to
constitute, cause or result in, the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Shares.
(v) Neither
the Company nor any of its affiliates has, prior to the date hereof, made any
offer or sale of any securities which could be "integrated" (within the meaning
of the Securities Act and the Rules and Regulations) with the offer and sale of
the Shares pursuant to the Registration Statement. Except as
disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither Company nor any of its affiliates has sold or issued any
Relevant Security during the six-month period preceding the date of the
Prospectus, including but not limited to any sales pursuant to Rule 144A or
Regulation D or S under the Securities Act, other than shares of Common Stock
issued pursuant to employee benefit plans, qualified stock option plans or the
employee compensation plans or pursuant to outstanding options, rights or
warrants as described in the Prospectus.
(w) Except
as disclosed in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, no holder of any Relevant Security has any rights to require
registration of any Relevant Security as part or on account of, or otherwise in
connection with, the offer and sale of the Shares contemplated hereby, and any
such rights so disclosed have either been fully complied with by the Company or
effectively waived by the holders thereof, and any such waivers remain in full
force and effect.
(x) The
statements set forth or incorporated by reference in the Registration Statement,
the Pricing Prospectus and the Prospectus under the caption "Description of
Common Shares", insofar as it purports to constitute a summary of the terms of
the Common Stock, and under the captions "Tax Considerations", and
"Underwriting", insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate and complete in all material
respects.
(y) The
Company is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act and files periodic reports with the Commission, and the conditions
for use of Form F-3 to register the Shares under the Securities Act have been
satisfied. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Pricing Prospectus and the
Prospectus, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
Securities Act, the Exchange Act and the Rules and Regulations, and,
when
read together with the other information in the Registration Statement, the
Pricing Disclosure Package or the Prospectus, as applicable, do not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(z) The
Company is not and, at all times up to and including consummation of the
transactions contemplated by this Agreement, the Registration Statement, the
Pricing Disclosure Package and the Prospectus, and after giving effect to
application of the net proceeds of the Offering, will not be required to
register as an "investment company" under the Investment Company Act of 1940, as
amended, and is not and will not be an entity "controlled" by an "investment
company" within the meaning of such act.
(aa) There
are no contracts or other documents (including, without limitation, any voting
agreement), which are required to be described in the Registration Statement,
the Pricing Prospectus or the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act, the Exchange Act or the Rules and
Regulations and which have not been so described or filed. No
relationship, direct or indirect, exists between or among any of the Company or
any affiliate of the Company, on the one hand, and any director, officer,
stockholder, customer or supplier of the Company or any affiliate of the
Company, on the other hand, which is required by the Securities Act, the
Exchange Act or the Rules and Regulations to be described in the Registration
Statement, the Pricing Prospectus or the Prospectus which is not so described
and described as required.
(bb) Except
as disclosed in the Pricing Disclosure Package, there are no contracts,
agreements or understandings between the Company and any person that would give
rise to a valid claim against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with the
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus or, to the Company's knowledge, any arrangements, agreements,
understandings, payments or issuance with respect to the Company or any of its
officers, directors, shareholders, partners, employees, Subsidiaries or
affiliates that may affect the Underwriters' compensation as determined by the
FINRA.
(cc) The
Company owns or leases all such properties as are necessary to the conduct of
its business as presently operated as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus. The Company has
good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case free and
clear of any and all Liens except for maritime liens and other liens incurred in
the ordinary course of the Company's shipping business or otherwise as are
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus or such as would not (individually or in the aggregate) have a
Material Adverse Effect, and any real property and buildings held under lease or
sublease by the Company are held by it under valid, subsisting and enforceable
leases except where failure to do so would not have a Material Adverse
Effect. The Company has not received any notice of any claim adverse
to its ownership of any real or personal property or of any claim against the
continued possession of any real property, whether owned or held under lease or
sublease by the Company that would individually or in the aggregate have a
Material Adverse Effect.
(dd) The
Company maintains insurance in such amounts and covering such risks as the
Company reasonably considers adequate for the conduct of its business and the
value of its properties and as is customary for companies engaged in similar
businesses in similar industries, all of which insurance is in full force and
effect, except where the failure to maintain such insurance would not be
expected to have a Material Adverse Effect. There are no material
claims by the Company under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause under circumstances that would result in a Material Adverse
Effect.
(ee) The
Company has accurately prepared and timely filed all federal, state, foreign and
other tax returns that are required to be filed by it and has paid or made
provision for the payment of all taxes, assessments, governmental or other
similar charges, including without limitation, all sales and use taxes and all
taxes which the Company is obligated to withhold from amounts owing to
employees, creditors and third parties, with respect to the periods covered by
such tax returns (whether or not such amounts are shown as due on any tax
return), unless such failure would not, individually or in the aggregate, have a
Material Adverse Effect. No deficiency assessment with respect to a
proposed adjustment of the Company's federal, state, local or foreign taxes is
pending or, to the best of the Company's knowledge, threatened. The
accruals and reserves on the books and records of the Company in respect of tax
liabilities for any taxable period not finally determined are adequate to meet
any assessments and related liabilities for any such period and, since December
31, 2005, the Company has not incurred any liability for taxes other than in the
ordinary course of its business. To the Company's knowledge, there is no tax
lien, whether imposed by any federal, state, foreign or other taxing authority,
outstanding against the assets, properties or business of the
Company.
(ff) No
labor disturbance by the employees of the Company exists or, to the best of the
Company's knowledge, is imminent and the Company is not aware of any existing or
imminent labor disturbances by the employees of any of its principal suppliers,
manufacturers', customers or contractors, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
(gg) Except
as disclosed in the Company's Pricing Prospectus (i) neither the Company nor any
entity, whether or not incorporated, that is under common control with the
Company within the meaning of Section 4001 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or is part of a group that includes
the Company and that is treated as a single employer under Section 414 of the
Internal Revenue Code of 1986, as amended (the "Code") has, within the five year
period prior to the date on which this representation is made or deemed made,
sponsored, contributed to, or has or had any liability or obligation in respect
of, any "employee benefit plan" (within the meaning of Section 3(3) of ERISA)
subject to ERISA or any plan subject to Section 4975 of the Code (each, a
"Plan") and each Plan has been maintained in all material respects in compliance
with its terms and the requirements of any applicable statutes, orders, rules
and regulations, including but not limited to ERISA and the Code; (ii) no
prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code, has occurred with respect to any Plan excluding transactions
effected pursuant to a statutory or administrative exemption; (iii) no
"reportable
event" (within the meaning of Section 4043(c) of ERISA) has occurred or is
reasonably expected to occur with respect to any Plan; and (iv) neither the
Company nor any member of the Controlled Group has incurred, nor reasonably
expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC, in the ordinary course and
without default) in respect of a Plan (including a "multiemployer plan", within
the meaning of Section 4001(a)(3) of ERISA).
(hh) There
has been no storage, generation, transportation, handling, treatment, disposal,
discharge, emission or other release of any kind of toxic or other wastes or
other hazardous substances by, due to, or caused by the Company (or, to the
Company's knowledge, any other entity for whose acts or omissions the Company is
or may be liable) upon any other property now or previously owned or leased by
the Company, or upon any other property, which would be a violation of or give
rise to any liability under any applicable law, rule, regulation, order,
judgment, decree or permit relating to pollution or protection of human health
and the environment ("Environmental Law") which would, individually or in the
aggregate, have a Material Adverse Effect. There has been no disposal
discharge, emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Company has knowledge which
would, individually or in the aggregate, have a Material Adverse
Effect. The Company has not agreed to assume, undertake or provide
indemnification for any liability of any other person under any Environmental
Law, including any obligation for cleanup or remedial action other than by
operation of law as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus. There is no pending or, to the best of
the Company's knowledge, threatened administrative, regulatory or judicial
action, claim or notice of noncompliance or violation, investigation or
proceedings relating to any Environmental Law against the Company.
(ii) Neither
the Company nor, to the Company's knowledge, any of its employees or agents has
at any time during the last five years (i) made any unlawful contribution to any
candidate for foreign office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States of any jurisdiction thereof.
(jj) The
operations of the Company are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all applicable jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines issued,
administered or enforced by any governmental agency (collectively, the "Money
Laundering Laws") and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
with respect to the Money Laundering Laws is pending or, to the best knowledge
of the Company, threatened. Neither the Company nor, to the knowledge
of the Company, 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.
(kk) The
Company is not (i) in violation of its certificate of incorporation, memorandum
of association, bye-laws or other organizational documents, (ii) in default
under, and no event has occurred which, with notice or lapse of time or both,
would constitute a default under or result in the creation or imposition of any
Lien upon any of its property or assets pursuant to, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which it is a
party or by which it is bound or to which any of its property or assets is
subject or (iii) in violation in any respect of any law, rule, regulation,
ordinance, directive, judgment, decree or order of any judicial, regulatory or
other legal or governmental agency or body, foreign or domestic, except (in the
case clauses (ii) and (iii) above) violations or defaults that would not
(individually or in the aggregate) have a Material Adverse Effect and except (in
the case of clause (ii) alone) for any lien, charge or encumbrance disclosed in
the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(ll) The
Company has complied with the requirements of Rule 433 under the Securities Act
with respect to each Issuer Free Writing Prospectus including, without
limitation, all prospectus delivery, filing, record retention and legending
requirements applicable to any such Issuer Free Writing
Prospectus. The Company has not (i) distributed any offering material
in connection with the Offering other than the Pricing Prospectus, the
Prospectus, and any Issuer Free Writing Prospectus set forth on Annex IV hereto,
or (ii) filed, referred to, approved, used or authorized the use of any "free
writing prospectus" as defined in Rule 405 under the Securities Act with respect
to the Offering or the Shares, except for any Issuer Free Writing Prospectus set
forth in Annex IV hereto and any electronic road show previously approved by the
Lead Manager.
(mm) The
Company and its directors or officers, in their capacities as such, are in
compliance in all material respects with the provisions of the Sarbanes-Oxley
Act and the rules and regulations promulgated in connection therewith (the
"Sarbanes-Oxley Act") that are applicable to them and effective and is actively
taking steps to ensure that it will be in compliance in all material respects
with other applicable provisions of the Sarbanes-Oxley Act upon the
effectiveness of such provisions.
(nn) The
Company maintains "disclosure controls and procedures" (as defined in Rules
13a-15(e) and 15d-15(e) of the Exchange Act); the Company's "disclosure controls
and procedures" are designed to ensure that material information relating to the
Company is made known to the Company's Chief Executive Officer and Chief
Financial Officer by others within the Company; and such "disclosure controls
and procedures" are effective. The Company maintains a system of "internal
control over financial reporting" (as such term is defined in Rule 13a-15(f)
under the Exchange Act) that complies with the requirements of the Exchange Act
and has been designed by the Company's Chief Executive Officer and Chief
Financial Officer, or under their supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial
statements for external purposes in accordance with generally accepted
accounting principles. The Company's "internal control over financial
reporting" is effective and the Company is not aware of any material weaknesses
in its "internal control over financial reporting." Since the date of
the latest audited financial statements included or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and the Prospectus,
there has been no change in the Company's "internal control over financial
reporting" that has materially affected, or is reasonably likely to materially
affect, the Company's "internal control over financial reporting."
(oo) No
stamp duty, stock exchange tax, value-added tax, withholding or any other
similar duty or tax is payable in the United States, Bermuda or any other
jurisdiction in which either the Company is organized or engaged in business for
tax purposes or, in each case, any political subdivision thereof or any
authority having power to tax, in connection with the execution, delivery or
performance of this Agreement by the Company or the issuance, sale or delivery
of the Shares by the Company to the Underwriters or the initial resales thereof
by the Underwriters in the manner contemplated by this Agreement and the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(pp) Under
the current laws and regulations of Bermuda, all dividends and other
distributions declared and payable on the Shares may be paid by the Company to
the holder thereof in United States dollars that may be freely transferred out
of Bermuda and all such payments made to holders thereof who are non-residents
of Bermuda will not be subject to income, withholding or other taxes under the
laws or regulations of Bermuda and will otherwise be free of any other tax,
duty, withholding or deduction in Bermuda and without the necessity of obtaining
any governmental authorization in Bermuda.
(qq) None
of the Company or its properties or assets has any immunity from the
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution or
otherwise) under the laws of the United States or Bermuda.
(rr) The
Company is a "foreign private issuer" as defined by Rule 405 of the Securities
Act.
(ss) To
ensure the legality, validity, enforceability and admissibility into evidence of
each of this Agreement, the Shares and any other document to be furnished
hereunder in Bermuda, it is not necessary that this Agreement, the Shares or
such other document be filed or recorded with any court or other authority in
Bermuda or any stamp or similar tax be paid in Bermuda on or in respect of this
Agreement, the Shares or any such other document except that (i) the consent of
the Bermuda Monetary Authority is required and has been obtained for the sale
and subsequent transferability of the Shares provided the Shares remain listed
on the NYSE or another appointed stock exchange; and (ii) the Prospectus is
required to be and has been filed with the Registrar of Companies in Bermuda
pursuant to Part III of the Companies Act 1981 of Bermuda.
(tt) The
Company is not a "passive foreign investment company" and the Company does not
expect it to become a "passive foreign investment company" as defined in Section
1297 of the U.S. Internal Revenue Code of 1986, as amended, in respect of the
taxable year ending December 31, 2009.
Any
certificate signed by or on behalf of the Company and delivered to the
Representative or to counsel for the Underwriters' shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
2. Purchase, Sale and Delivery
of the Shares
(a) On
the basis of the representations, warranties, covenants and agreements herein
contained, but subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at a purchase price per share of
$32.00, the number of Firm Shares set forth opposite their respective names on
Schedule I hereto together with any additional number of Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment
of the purchase price for, and delivery of certificates representing, the Firm
Shares shall be made at the office of Simpson Thacher & Bartlett LLP
("Underwriters' Counsel"), or at such other place as shall be agreed upon by the
Lead Manager and the Company, at 10:00 A.M., New York City time, on May 18,
2009, or such other time and date as the Lead Manager and the Company may agree
upon in writing (such time and date of payment and delivery being herein called
the "Closing Date"). Payment of the purchase price for the Firm
Shares shall be made by wire transfer in same day funds to or as directed in
writing by the Company upon delivery of certificates for the Firm Shares to the
Representative through the facilities of The Depository Trust Company for the
respective accounts of the several Underwriters. The Company will
permit the Lead Manager to examine and package such certificates for delivery at
least one full business day prior to the Closing Date.
(c) In
addition, on the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants to the Underwriters, acting severally and not
jointly, the option to purchase up to 600,000 Additional Shares at the same
purchase price per share to be paid by the Underwriters for the Firm Shares as
set forth in Section 2(a) above, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the Underwriters. This
option may be exercised at any time and from time to time, in whole or in part
on one or more occasions, on or before the thirtieth day following the date of
the Prospectus, by written notice from the Lead Manager to the
Company. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised and the date and
time, as reasonably determined by the Lead Manager, when the Additional Shares
are to be delivered (any such date and time being herein sometimes referred to
as the "Additional Closing Date"); provided, however, that
unless otherwise agreed upon by the Lead Manager and the Company no Additional
Closing Date shall occur earlier than the Closing Date or earlier than the
second full business day after the date on which the option shall have been
exercised nor later than the eighth full business day after the date on which
the option shall have been exercised (unless such time and date are postponed in
accordance with the provisions of Section 10 hereof). Upon any
exercise of the option as to all or any portion of the Additional Shares, each
Underwriter, acting severally and not jointly, agrees to purchase from the
Company the number of Additional Shares that bears the same proportion of the
total number of Additional Shares then being purchased as the number of Firm
Shares set forth opposite the name of such
Underwriter
in Schedule I hereto (or such number increased as set forth in Section 10
hereof) bears to the total number of Firm Shares that the Underwriters have
agreed to purchased hereunder, subject, however, to such adjustments to
eliminate fractional shares as the Lead Manager in its sole discretion shall
make.
(d) Payment
of the purchase price for, and delivery of certificates representing, the
Additional Shares shall be made at the office of Underwriters' Counsel, or at
such other place as shall be agreed upon by the Lead Manager and the Company, at
10:00 A.M., New York City time, on the Additional Closing Date (unless postponed
in accordance with the provisions of Section 10 hereof), or such other time as
shall be agreed upon by the Lead Manager and the Company. Payment of
the purchase price for the Additional Shares shall be made by wire transfer in
same day funds to or as directed in writing by the Company upon delivery of
certificates for the Additional Shares to the Representative through the
facilities of The Depository Trust Company for the respective accounts of the
several Underwriters. The Company will permit the Lead Manager to
examine and package such certificates for delivery at least one full business
day prior to the Additional Closing Date.
(e) The Company acknowledges and agrees that
(i) the terms of this Agreement and the Offering (including the price of the
Shares) were negotiated at arm's length between sophisticated parties
represented by counsel; (ii) no fiduciary, advisory or agency relationship
between the Company and the Underwriters has been created as a result of any of
the transactions contemplated by this Agreement or the process leading to such
transactions, irrespective of whether any Underwriter has advised or is advising
any such party on other matters, (iii) the Underwriters' obligations to the
Company in respect of the Offering are set forth in this Agreement in their
entirety and (iv) it has obtained such legal, tax, accounting and other advice
as it deems appropriate with respect to this Agreement and the transactions
contemplated hereby and any other activities undertaken in connection therewith,
and it is not relying on the Underwriters with respect to any such
matters.
3. Offering
Upon
authorization of the release of the Firm Shares by the Lead Manager, the
Underwriters propose to offer the Shares for sale to the public upon the terms
and conditions set forth in the Prospectus.
4. Covenants of the
Company
In
addition to the other covenants and agreements of the Company contained herein,
the Company further covenants and agrees with each of the Underwriters
that:
(a) The
Company shall prepare the Prospectus in a form reasonably approved by you and
file such Prospectus pursuant to, and within the time period specified in, Rule
424(b) and Rule 430A, 430B or 430C, as applicable, under the Securities Act;
prior to the last date on which an Additional Closing Date, if any, may occur,
the Company shall file no further amendment to the Registration Statement or
amendment or supplement to the Prospectus to which you shall reasonably object
in writing after being furnished in advance a copy thereof and given a
reasonable opportunity to review and comment thereon; the
Company
shall notify you promptly (and, if requested by the Lead Manager, confirm such
notice in writing) (i) when any amendment to the Registration Statement becomes
effective, (ii) of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus for any additional
information, (iii) of the Company's intention to file or prepare any supplement
or amendment to the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus (including documents filed
under the Exchange Act if such document would be deemed to be incorporated by
reference into the Registration Statement, any Preliminary Prospectus or the
Prospectus), (iv) of the mailing or the delivery to the Commission for filing of
any amendment of or supplement to the Registration Statement or the Prospectus,
including but not limited to Rule 462(b) under the Securities Act, (v) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto, or suspending
the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus or, in each case, of the initiation, or the threatening, of any
proceedings therefor, (vi) of the receipt of any comments from the Commission,
(vii) of the receipt by the Company of any notice of objection of the Commission
to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act and (viii) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for that purpose. If the Commission
shall propose or enter a stop order at any time, the Company will make every
effort to prevent the issuance of any such stop order and, if issued, to obtain
the lifting of such order as soon as possible. The Company will pay
the registration fees for the Shares within the time period required by Rule
456(b)(1)(i) under the Securities Act (without giving effect to the proviso
therein) and in any event prior to the Closing Date.
(b) If
at any time when a prospectus relating to the Shares (or, in lieu thereof, the
notice referred to in Rule 173(a) under the Securities Act) is required to be
delivered under the Securities Act, any event shall have occurred as a result of
which the Pricing Disclosure Package (prior to the availability of the
Prospectus) or the Prospectus as then amended or supplemented would, in the
judgment of the Underwriters or the Company, include an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
existing at the time of delivery of such Pricing Disclosure Package or
Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the
Securities Act) to the purchaser, not misleading, or if to comply with the
Securities Act, the Exchange Act or the Rules and Regulations it shall be
necessary at any time to amend or supplement the Pricing Disclosure Package, the
Prospectus or the Registration Statement, or to file any document incorporated
by reference in the Registration Statement or the Prospectus or in any amendment
thereof or supplement thereto, the Company will notify you promptly and prepare
and file with the Commission an appropriate amendment, supplement or document
(in form and substance reasonably satisfactory to the Lead Manager) that will
correct such statement or omission or effect such compliance, and will use its
best efforts to have any amendment to the Registration Statement declared
effective as soon as possible.
(c) The
Company will not, without the prior consent of the Lead Manager, (i) make any
offer relating to the Shares that would constitute a "free writing prospectus"
as defined in Rule 405 under the Securities Act, except for any Issuer
Free
Writing Prospectus set forth in Annex IV hereto and any electronic road show
previously approved by the Lead Manager, or (ii) file, refer to, approve, use or
authorize the use of any "free writing prospectus" as defined in Rule 405 under
the Securities Act with respect to the Offering or the Shares. If at
any time any event shall have occurred as a result of which any Issuer Free
Writing Prospectus as then amended or supplemented would, in the judgment of the
Underwriters or the Company, conflict with the information in the Registration
Statement, the Pricing Disclosure Package or the Prospectus as then amended or
supplemented or would, in the judgment of the Underwriters or the Company,
include an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances existing at the time of delivery to the purchaser,
not misleading, or if to comply with the Securities Act or the Rules and
Regulations it shall be necessary at any time to amend or supplement any Issuer
Free Writing Prospectus, the Company will notify the Lead Manager promptly and,
if requested by the Lead Manager, prepare and furnish without charge to each
Underwriter an appropriate amendment or supplement (in form and substance
reasonably satisfactory to the Lead Manager) that will correct such statement,
omission or conflict or effect such compliance.
(d) The
Company has complied and will comply with the requirements of Rule 433 with
respect to each Issuer Free Writing Prospectus including, without limitation,
all prospectus delivery, filing, record retention and legending requirements
applicable to each such Issuer Free Writing Prospectus.
(e) The
Company will deliver to each of the Underwriters and Underwriters' Counsel a
signed copy of the Registration Statement, as initially filed and all amendments
thereto, including all consents and exhibits filed therewith, and will maintain
in the Company's files manually signed copies of such documents for at least
five years after the date of the filing. The Company will promptly
deliver to each of the Underwriters such number of copies of any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus, the Registration Statement,
any Issuer Free Writing Prospectus and all amendments of and supplements to such
documents, if any, and all documents incorporated by reference in the
Registration Statement and Prospectus or any amendment thereof or supplement
thereto, as Underwriters may reasonably request. Prior to 10:00 A.M.,
New York time, on the business day next succeeding the date of this Agreement
and from time to time thereafter, the Company will furnish the Underwriters with
copies of the Prospectus in New York City in such quantities as the Underwriters
may reasonably request.
(f) Promptly
from time to time, the Company will use its best efforts, in cooperation with
the Lead Manager, to qualify the Shares for offering and sale under the
securities laws relating to the offering or sale of the Shares of such
jurisdictions, domestic or foreign, as the Lead Manager may designate in
cooperation with the Company and to maintain such qualification in effect for so
long as required for the distribution thereof; except that in no event shall the
Company be obligated in connection therewith to qualify as a foreign corporation
in any jurisdiction in which it is not already so qualified or to execute a
general consent to service of process in any jurisdiction in which it is not
already so subject.
(g) The
Company will make generally available to its security holders and to the
Underwriters as soon as practicable, but in any event not later than twelve
months after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Securities Act), an earnings statement of the Company and
the Subsidiaries (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option of the
Company, Rule 158).
(h) During
the period of 90 days from the date of the Prospectus (the "Lock-Up Period"),
without the prior written consent of the Lead Manager, the Company (i) will not,
directly or indirectly, issue, offer, sell, agree to issue, offer or sell,
solicit offers to purchase, grant any call option, warrant or other right to
purchase, purchase any put option or other right to sell, pledge, borrow or
otherwise dispose of any Relevant Security, or make any announcement of any of
the foregoing, (ii) will not establish or increase any "put equivalent position"
or liquidate or decrease any "call equivalent position" (in each case within the
meaning of Section 16 of the Exchange Act and the Rules and Regulations) with
respect to any Relevant Security, and (iii) will not otherwise enter into any
swap, derivative or other transaction or arrangement that transfers to another,
in whole or in part, any economic consequence of ownership of a Relevant
Security, whether or not such transaction is to be settled by delivery of
Relevant Securities, other securities, cash or other consideration; and the
Company will obtain an undertaking in substantially the form of Annex III hereto
(a "Lockup Agreement") of each of its officers and directors and the employees
of Scandic American Shipping Ltd. listed under the caption "Management" in the
Pricing Prospectus and the Prospectus not to engage in any of the aforementioned
transactions on their own behalf, other than (i) the registration of the Shares
and the sales through the Underwriters pursuant to this Agreement, (ii) the
Company's issuance of Common Stock upon the grant and exercise of options under,
or the issuance and sale of shares pursuant to, employee stock option plans in
effect on the date hereof, as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus or (iii) pursuant to and in accordance with the terms of the
Scandic Management Agreement in effect on the date hereof, as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus. The Company will provide the Underwriters and each
stockholder subject to the "Lock-Up Period" (as defined in the Lock-Up
Agreement) pursuant to the Lock-Up Agreements with prior notice of any
announcement that gives rise to an extension of the Lock-Up Period under the
terms of its Lock-Up Agreement. The Company will not file a registration
statement under the Securities Act in connection with any transaction by the
Company or any person that is prohibited pursuant to the foregoing, except for
registration statements on Form S-8 relating to employee benefit
plans.
Notwithstanding
the immediately preceding paragraph, if (x) during the period that begins on the
date that is 15 calendar days plus 3 business days before the last day of the
90-day restricted period referred to in the immediately preceding paragraph and
ends on the last day of such 90-day restricted period, the Company issues a
earnings release or material news or a material event relating to the Company
occurs or (y) prior to the expiration of such 90-day period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of such 90-day period, the restrictions imposed by the
immediately preceding paragraph shall continue to apply until the expiration of
the date that is 15 calendar days plus 3 business days after the date on which
the issuance of the earnings release or the material news or material event
occurs unless the Lead Manager waives, in writing, such extension.
(i) (i)
During the period of three years from the effective date of the Registration
Statement, the Company will make available to the Underwriters copies of all
reports or other communications (financial or other) furnished to security
holders or from time to time published or publicly disseminated by the Company,
and will make available to the Underwriters as soon as they are available,
copies of any reports, financial statements and proxy or information statements
furnished to or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed, provided that any
document filed with the Commission on its EDGAR system shall be deemed to have
been made available for purposes of this Section 4(i); and (ii) during the
period of one year from the effective date of the Registration Statement, the
Company will make available to you copies of such additional information
concerning the business and financial condition of the Company as you may from
time to time reasonably request (such financial information to be on a
consolidated basis to the extent the accounts of the Company and any
subsidiaries are consolidated in reports furnished to its security holders
generally or to the Commission), provided that the
Underwriters shall sign a confidentiality agreement regarding any such
additional information containing standard terms and conditions as the Company
shall reasonably request.
(j) The
Company will apply the net proceeds from the sale of the Shares as set forth
under the caption "Use of Proceeds" in the Pricing Prospectus and the
Prospectus.
(k) The
Company will use its best efforts to list the Shares, subject to notice of
issuance, on the NYSE, and effect and maintain, for the duration of the
Offering, the listing of the Shares on the NYSE.
(l) The
Company, during the period when a prospectus (or, in lieu thereof, the notice
referred to in Rule 173(a) under the Securities Act) is required to be delivered
under the Securities Act in connection with the offer or sale of the Shares,
will file all reports and other documents required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and the Rules and Regulations within the time periods required
thereby.
(m) If
the Company elects to rely upon Rule 462(b) under the Securities Act, the
Company shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462 by 10:00 p.m. (Eastern time), on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462 Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Securities Act.
(n) The
Company will use its best efforts to do and perform all things required to be
done or performed under this Agreement by the Company prior to the Closing Date
or the Additional Closing Date, as the case may be, and to satisfy all
conditions precedent to the delivery of the Firm Shares and the Additional
Shares.
(o) The
Company will not take, and will cause its affiliates (within the meaning of Rule
144 under the Securities Act) not to take, directly or indirectly, any action
which constitutes or is designed to cause or result in, or which could
reasonably be expected to constitute, cause or result in, the stabilization or
manipulation of the price of any security to facilitate the sale or resale of
the Shares.
(p) The
Company will use its best efforts to keep its existing insurance and maintain
insurance in such amounts as is adequate for the conduct of its business and the
value of its properties and customary for a business in its
industry.
5. Covenant of the
Underwriters. Each Underwriter, severally and not jointly, covenants and
agrees with the Company that such Underwriter will not use or refer to any "free
writing prospectus" (as defined in Rule 405 under the Securities Act) without
the prior written consent of the Company if such Underwriter's use of or
reference to such "free writing prospectus" would require the Company to file
with the Commission any "issuer information" (as defined in Rule 433 under the
Securities Act).
6. Payment of
Expenses.
Whether
or not the transactions contemplated by this Agreement, the Registration
Statement and the Prospectus are consummated or this Agreement is terminated,
the Company hereby agrees to pay all costs and expenses incident to the
performance of its obligations hereunder, including the
following: (i) all expenses in connection with the preparation,
printing and filing of the Registration Statement, any Issuer Free Writing
Prospectus, any Preliminary Prospectus and the Prospectus and any and all
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Securities Act and the Offering; (iii) all
expenses other than fees of counsel for the Underwriters in connection with the
qualification of the Shares for offering and sale under state or foreign
securities or blue sky laws as provided in Section 4(f) hereof; (iv) the filing
fees incident to securing any required review by the FINRA of the terms of the
Offering; (v) all fees and expenses in connection with listing the Shares on the
NYSE; and (vi) any stock transfer taxes incurred in connection with this
Agreement or the Offering. The Company also will pay or cause to be
paid: (x) the cost of preparing stock certificates representing the Shares; (y)
the cost and charges of any transfer agent or registrar for the Shares; and (z)
all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section
6. It is understood, however, that except as provided in this
Section, and Sections 8 and 9 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees and expenses of their counsel and stock
transfer taxes on resale of any of the Shares by them.
7. Conditions of Underwriters'
Obligations
The
several obligations of the Underwriters to purchase and pay for the Firm Shares
and the Additional Shares, as provided herein, shall be subject to the accuracy
of the representations and warranties of the Company herein contained, as of the
date
hereof and as of the Closing Date (for purposes of this Section 7 "Closing Date"
shall refer to the Closing Date for the Firm Shares and any Additional Closing
Date, if different, for the Additional Shares), to the absence from any
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 7 of any material misstatement or
omission, to the performance by the Company of its obligations hereunder, and to
each of the following additional conditions:
(a) The
Prospectus shall have been filed with the Commission in a timely fashion in
accordance with Section 4(a) hereof; no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto, and no
stop order suspending or preventing the use of any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus, shall have been issued by the
Commission and no proceedings therefor shall have been initiated or threatened
by the Commission; no notice of objection to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Securities Act shall have been issued by the Commission; all requests
for additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction; if the Company has elected to
rely on Rule 462(b) under the Securities Act, the Rule 462(b) Registration
Statement shall have become effective by 10:00 p.m. (Washington, D.C. time) on
the date of this Agreement; and all necessary foreign and domestic regulatory or
stock exchange approvals shall have been received.
(b) At
the Closing Date, the Underwriters shall have received the written opinion of
Seward & Kissel LLP, counsel for the Company, dated the Closing Date
addressed to the Underwriters in the form attached hereto as Annex
I.
(c) At
the Closing Date, the Underwriters shall have received the written opinion of
Appleby Hunter Bailhache, Bermuda counsel for the Company, dated the Closing
Date addressed to the Underwriters in the form attached hereto as Annex
II.
(d) All
proceedings taken in connection with the sale of the Firm Shares and the
Additional Shares as herein contemplated shall be satisfactory in form and
substance to the Lead Manager and to Underwriters' Counsel, and the Underwriters
shall have received from Underwriters' Counsel a favorable written opinion,
dated as of the Closing Date, with respect to the issuance and sale of the
Shares, the Registration Statement, the Pricing Disclosure Package and the
Prospectus and such other related matters as the Lead Manager may require, and
the Company shall have furnished to Underwriters' Counsel such documents as they
may reasonably request for the purpose of enabling them to pass upon such
matters.
(e) At
the Closing Date you shall have received a certificate of the Chief Executive
Officer and Chief Financial Officer of the Company, dated the Closing Date to
the effect that (i) the condition set forth in subsection (a) of this Section 7
has been satisfied, (ii) as of the date hereof and as of the Closing Date, the
representations and warranties of the Company set forth in Section 1 hereof are
accurate, (iii) as of the Closing Date all agreements, conditions and
obligations of the Company to be performed or complied with hereunder on or
prior thereto have been duly performed or complied with, (iv) subsequent to the
respective dates as of which information is given in the Pricing Disclosure
Package (exclusive of any amendment or supplement thereto) the Company has not
sustained any material loss or interference with their respective businesses or
properties
from fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental proceeding,
(v) there are no pro forma or as adjusted financial statements that are required
to be included in the Registration Statement, the Pricing Prospectus or the
Prospectus pursuant to the Rules and Regulations that have not been included or
incorporated therein as required, (vi) subsequent to the respective dates as of
which information is given in the Pricing Disclosure Package (exclusive of any
amendment or supplement thereto) there has not been any material adverse change
or any development involving a prospective material adverse change, whether or
not arising from transactions in the ordinary course of business, in or
affecting (x) the business, condition (financial or otherwise), results of
operations, stockholders' equity, properties or prospects of the Company; (y)
the long-term debt or share capital of the Company; or (z) the Offering or
consummation of any of the other transactions contemplated by this Agreement,
the Registration Statement, the Pricing Disclosure Package and the Prospectus
and (vii) certain financial information contained in the Registration Statement,
the Pricing Disclosure Package and the Prospectus is accurate.
(f) At
the time this Agreement is executed and at the Closing Date, you shall have
received a comfort letter, from Deloitte AS, independent registered public
accounting firm, dated, respectively, as of the date of this Agreement and as of
the Closing Date addressed to the Underwriters and in form and substance
reasonably satisfactory to the Underwriters and Underwriters'
Counsel.
(g) Subsequent
to the execution and delivery of this Agreement or, if earlier, the dates as of
which information is given in the Pricing Disclosure Package (exclusive of any
supplement thereto), there shall not have been any change in the share capital
or long-term debt of the Company or any change or development involving a
change, whether or not arising from transactions in the ordinary course of
business, in the business, condition (financial or otherwise), results of
operations, stockholders' equity, properties or prospects of the Company,
including but not limited to the occurrence of any fire, flood, storm,
explosion, accident or other calamity at any of the properties owned or leased
by the Company, the effect of which, in any such case described above, is, in
the judgment of the Lead Manager, so material and adverse as to make it
impracticable or inadvisable to proceed with the Offering on the terms and in
the manner contemplated in the Pricing Disclosure Package (exclusive of any
supplement).
(h) The
Underwriters shall have received a duly executed lock-up agreement from each
person who is a director or officer of the Company and each employee of Scandic
American Shipping Ltd. listed under the caption "Management" in the Pricing
Prospectus and the Prospectus, in each case substantially in the form attached
hereto as Annex III.
(i) At
the Closing Date, the Shares shall have been approved for listing upon notice of
issuance on the NYSE.
(j) At
the Closing Date, the Underwriters shall continue to be eligible to rely on an
exemption from filing with the FINRA with respect to the Offering.
(k) No
action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent
the issuance or sale of the Shares; and no injunction or order of any federal,
state or foreign court shall have been issued that would, as of the Closing
Date, prevent the issuance or sale of the Shares.
(l) The
Company shall have furnished the Underwriters and Underwriters' Counsel with
such other certificates, opinions or other documents as they may have reasonably
requested.
If
any of the conditions specified in this Section 7 shall not have been fulfilled
when and as required by this Agreement, or if any of the certificates, opinions,
written statements or letters furnished to the Underwriters or to Underwriters'
Counsel pursuant to this Section 7 shall not be satisfactory in form and
substance to the Lead Manager and to Underwriters' Counsel, all obligations of
the Underwriters hereunder may be cancelled by the Lead
Manager. Notice of such cancellation shall be given to the Company in
writing, or by telephone. Any such telephone notice shall be
confirmed promptly thereafter in writing.
8. Indemnification
(a) The
Company shall indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act that were
directly or indirectly involved in the placement of Shares in the Offering and
identified to the Company by or on behalf of any Underwriter, against any and
all losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation (provided that such
settlement is effected in accordance with Section 8(c) hereof)), joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained (A) in the Registration Statement, as originally filed or any
amendment thereof, or in any Preliminary Prospectus, the Pricing Disclosure
Package or the Prospectus, or in any supplement thereto or amendment thereof, or
in any Issuer Free Writing Prospectus, or in any "issuer information" (as
defined in Rule 433(h)(2) under the Securities Act) filed or required to be
filed pursuant to Rule 433(d) under the Securities Act, or (B) in any "road
show" (as defined in Rule 433 under the Securities Act) for the Offering that is
a "written communication" (as defined in Rule 405 under the Securities Act)
("Marketing Materials"), or (ii) the omission or alleged omission to state in
the Registration Statement, as originally filed or any amendment thereof, a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or in any Preliminary Prospectus, the Pricing Disclosure
Package or the Prospectus, or in any supplement thereto or amendment thereof, or
in any Issuer Free Writing Prospectus, or in any "issuer information" (as
defined in Rule 433(h)(2) under the Securities Act) filed or required to be
filed pursuant to Rule 433(d) under the
Securities
Act, or in any Marketing Materials, a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company will not be liable in any such case to the extent but only to
the extent that any such loss, liability, claim, damage or expense arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter through the Lead Manager expressly for use therein. The
parties agree that such information provided by or on behalf of any Underwriter
through the Lead Manager consists solely of the material referred to in Section
16 hereof. This indemnity agreement will be in addition to any
liability which the Company may otherwise have, including but not limited to
other liability under this Agreement.
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, each of the directors of the Company, each of the officers of the
Company who shall have signed the Registration Statement, and each other person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, as
originally filed or any amendment thereof, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Pricing Disclosure Package or the Prospectus, or in any amendment thereof or
supplement thereto, or any Issuer Free Writing Prospectus, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, in each case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Underwriter through the Lead Manager specifically for use therein; provided, however, that in no
case shall any Underwriter be liable or responsible for any amount in excess of
the underwriting discount applicable to the Shares to be purchased by such
Underwriter hereunder. The parties agree that such information
provided by or on behalf of any Underwriter through the Lead Manager consists
solely of the material referred to in Section 16 hereof.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of any claims or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the claim or the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve the indemnifying
party from any liability which it may have under this Section 8 to the extent
that it is not materially prejudiced as a result thereof or otherwise has
notice
of any such action, and in any event shall not relieve it from any liability
that such indemnifying party may have otherwise than on account of the indemnity
agreement hereunder). In case any such claim or action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate, at
its own expense in the defense of such action, and to the extent it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party; provided however, that counsel
to the indemnifying party shall not (except with the written consent of the
indemnified party) also be counsel to the indemnified
party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, (iii) the
indemnifying party does not diligently defend the action after assumption of the
defense, or (iv) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to one or all of the indemnifying parties
(in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying
parties. No indemnifying party shall, without the prior written
consent of the indemnified parties, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
claim, investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an indemnified party under this
Section 8 or Section 9 hereof (whether or not the indemnified party is an actual
or potential party thereto), unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such claim, investigation, action or proceeding and (ii) does not
include a statement as to or an admission of fault, culpability or any failure
to act, by or on behalf of the indemnified party. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested
that an indemnifying party reimburse the indemnified party for fees and expenses
of counsel as contemplated by this paragraph, the indemnifying party shall be
liable for any settlement, compromise or judgment effected without its written
consent if (i) such settlement, compromise or judgment is entered into more than
30 days after receipt by the indemnifying party of such request and (ii) the
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
9. Contribution
In
order to provide for contribution in circumstances in which the indemnification
provided for in Section 8 hereof is for any reason held to be unavailable from
any indemnifying party or is insufficient to hold harmless a party indemnified
thereunder, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and
any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company, any contribution received by
the Company from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers
of the Company who signed the Registration Statement and directors of the
Company) as incurred to which the Company and one or more of the Underwriters
may be subject, in such proportions as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the Offering or, if such allocation is not permitted by applicable
law, in such proportions as are appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as (x) the total net
proceeds from the Offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company bears to (y) the underwriting
discount or commissions received by the Underwriters, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault
of each of the Company and of the Underwriters 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 contribution pursuant to this Section 9 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. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 9 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any judicial,
regulatory or other legal or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the
provisions of this Section 9, (i) no Underwriter shall be required to contribute
any amount in excess of the amount by which the discounts and commissions
applicable to the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each
case
to clauses (i) and (ii) of the immediately preceding sentence. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties,
notify each party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 9 or otherwise. The obligations of the
Underwriters to contribute pursuant to this Section 9 are several in proportion
to the respective number of Shares to be purchased by each of the Underwriters
hereunder and not joint.
10. Underwriter
Default
(a) If
any Underwriter or Underwriters shall default in its or their obligation to
purchase Firm Shares or Additional Shares hereunder, and if the Firm Shares or
Additional Shares with respect to which such default relates (the "Default
Shares") do not (after giving effect to arrangements, if any, made by the Lead
Manager pursuant to subsection (b) below) exceed in the aggregate 10% of the
number of Firm Shares or Additional Shares, each non-defaulting Underwriter,
acting severally and not jointly, agrees to purchase from the Company that
number of Default Shares that bears the same proportion of the total number of
Default Shares then being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto bears to the
aggregate number of Firm Shares set forth opposite the names of the
non-defaulting Underwriters, subject, however, to such adjustments to eliminate
fractional shares as the Lead Manager in their sole discretion shall
make.
(b) In
the event that the aggregate number of Default Shares exceeds 10% of the number
of Firm Shares or Additional Shares, as the case may be, the Lead Manager may in
their discretion arrange for itself or for another party or parties (including
any non-defaulting Underwriter or Underwriters who so agree) to purchase the
Default Shares on the terms contained herein. In the event that
within five calendar days after such a default the Lead Manager do not arrange
for the purchase of the Default Shares as provided in this Section 10, this
Agreement or, in the case of a default with respect to the Additional Shares,
the obligations of the Underwriters to purchase and of the Company to sell the
Additional Shares shall thereupon terminate, without liability on the part of
the Company with respect thereto (except in each case as provided in Sections 6,
8, 9 and 10) or the Underwriters, but nothing in this Agreement shall relieve a
defaulting Underwriter or Underwriters of its or their liability, if any, to the
other Underwriters and the Company for damages occasioned by its or their
default hereunder.
(c) In
the event that any Default Shares are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
the Lead Manager or the Company shall have the right to postpone the Closing
Date or Additional Closing Date, as the case may be for a period, not exceeding
five business days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus or in any other
documents and arrangements, and the Company agrees to file promptly any
amendment or supplement to the Registration Statement or the Prospectus which,
in the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall
include any party substituted under this Section 10 with like effect as if it
had originally been a party to this Agreement with respect to such Firm Shares
and Additional Shares.
11. Survival of Representations
and Agreements
All representations and
warranties, covenants and agreements of the Underwriters and the Company
contained in this Agreement or in certificates of officers of the Company
submitted pursuant hereto, including the agreements contained in Sections 4 and
6, the indemnity agreements contained in Section 8 and the contribution
agreements contained in Section 9, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or any controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of and payment for the Shares to and by the
Underwriters. The representations contained in Section 1 and the
agreements contained in Sections 6, 8, 9, 11 and 12 hereof shall survive any
termination of this Agreement, including termination pursuant to Section 10 or
12 hereof.
12. Effective Date of Agreement;
Termination
(a) This
Agreement shall become effective when the parties hereto have executed and
delivered this Agreement.
(b) The
Lead Manager shall have the right to terminate this Agreement at any time prior
to the Closing Date or to terminate the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if at or after the Applicable Time (i) any domestic or
international event or act or occurrence has materially disrupted, or in the
opinion of the Lead Manager will in the immediate future materially disrupt, the
market for the Company's securities or securities in general; or (ii) a
suspension or material limitation in trading in securities generally on the NYSE
shall have occurred; (iii) a suspension or material limitation in trading in the
Company's securities on the NYSE shall have occurred; or (iv) a banking
moratorium has been declared by any state or federal authority or if any
material disruption in commercial banking or securities settlement or clearance
services shall have occurred; or (v) (A) there shall have occurred any outbreak
or escalation of hostilities or acts of terrorism involving the United States or
there is a declaration of a national emergency or war by the United States or
(B) there shall have been any other calamity or crisis or any change in
political, financial or economic conditions if the effect of any such event in
(A) or (B), in the judgment of the Lead Manager, makes it impracticable or
inadvisable to proceed with the offering, sale and delivery of the Firm Shares
or the Additional Shares, as the case may be, on the terms and in the manner
contemplated by the Prospectus.
(c) Any
notice of termination pursuant to this Section 12 shall be in
writing.
13. Notices
All
communications hereunder, except as may be otherwise specifically provided
herein, shall be in writing, and:
(a) if
sent to any Underwriter, shall be mailed, delivered, or faxed and confirmed in
writing, to such Underwriter c/o Morgan Stanley & Co. Incorporated, 1585
Broadway, New York, New York 10036, Attention: Ken Pott, Managing
Director, with a copy to Underwriter's Counsel at Simpson Thacher & Bartlett
LLP, 425 Lexington Avenue, New York, New York 10017, Attention: Lesley
Peng;
(b) if
sent to the Company, shall be mailed, delivered, or faxed and confirmed in
writing to the Company and its counsel at the addresses set forth in the
Registration Statement, Attention: Herbjørn Hansson, Chairman and Chief
Executive Officer, with a copy to Seward & Kissel LLP, One Battery Park
Plaza, 19th Floor,
New York, New York 10004, Attention: Gary Wolfe;
provided, however, that any
notice to an Underwriter pursuant to Section 8 shall be delivered or sent by
mail or facsimile transmission to such Underwriter at its address set forth in
its acceptance facsimile to Morgan Stanley & Co. Incorporated, which address
will be supplied to any other party hereto by Morgan Stanley & Co.
Incorporated upon request. Any such notices and other communications shall take
effect at the time of receipt thereof.
14. Parties
This
Agreement shall inure solely to the benefit of, and shall be binding upon, the
Underwriters and the Company and the controlling persons, directors, officers,
employees and agents referred to in Sections 8 and 9 hereof, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof
are intended to be for the sole and exclusive benefit of the parties hereto and
said controlling persons and their respective successors, officers, directors,
heirs and legal representatives, and it is not for the benefit of any other
person, firm or corporation. The term "successors and assigns" shall
not include a purchaser, in its capacity as such, of Shares from any of the
Underwriters.
15. Governing Law and
Jurisdiction; Waiver of Jury Trial
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. The Company irrevocably (a) submits to the jurisdiction of
any court of the State of New York or the United State District Court for the
Southern District of the State of New York for the purpose of any suit, action,
or other proceeding arising out of this Agreement, or any of the agreements or
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus (each, a "Proceeding"), (b) agrees that all claims in respect of any
Proceeding may be heard and determined in any such court, (c) waives, to the
fullest extent permitted by law, any immunity from jurisdiction of any such
court or from any legal process therein, (d) agrees not to commence any
Proceeding other than in such courts, and (e) waives, to the fullest extent
permitted by law, any claim that such Proceeding is brought in an inconvenient
forum. The Company hereby irrevocably designates Seward & Kissell
LLP, One Battery Park Plaza, New York, New York 10004 as agent upon whom process
against the Company may be served. THE COMPANY
\
HEREBY
WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE
REGISTRATION STATEMENT AND THE PROSPECTUS.
16. The
parties acknowledge and agree that, for purposes of Sections 1(b), 1(c), 1(d), 8
and 9 hereof, such information provided by or on behalf of any Underwriter
consists solely of the underwriters' names included in the table of
underwriters' names under the caption "Underwriting" in the Prospectus and the
material included in the third paragraph under the caption "Underwriting" in the
Prospectus, the tenth paragraph under the caption "Underwriting" in the
Prospectus and the first sentence of the twelfth paragraph under the caption
"Underwriting" in the Prospectus.
17. Counterparts
This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument. Delivery of a signed counterpart of this Agreement
by facsimile transmission shall constitute valid and sufficient delivery
thereof.
18. Headings
The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
19. Time is of the
Essence
Time
shall be of the essence of this Agreement. As used herein, the term
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business other than days when banking institutions in the City
of New York are authorized by law, regulation or executive order to be
closed.
[signature
page follows]
If
the foregoing correctly sets forth your understanding, please so indicate in the
space provided below for that purpose, whereupon this letter shall constitute a
binding agreement among us.
| |
Very
truly yours,
|
| |
|
| |
NORDIC
AMERICAN TANKER SHIPPING LIMITED
|
| |
|
| |
|
| |
By:______/s/ Herbjørn
Hansson________________
|
| |
Name: Herbjørn
Hansson
|
| |
Title: Chairman
and CEO
|
Accepted
as of the date first above written
|
MORGAN
STANLEY & CO. INCORPORATED
|
|
|
|
By:___/s/ Kent
Hitchcock_____________________
Name: Kent
Hitchcock
Title: Managing
Director
|
On
behalf of itself and the other several
Underwriters
named in Schedule I hereto.
SCHEDULE
I
|
Underwriter
|
Total
Number of Firm
Shares to be Purchased
|
Number
of Additional
Shares
to be Purchased if
Option is Fully
Exercised
|
|
|
|
|
|
|
|
|
|
Morgan
Stanley & Co. Incorporated
|
3,600,000
|
4,140,000
|
|
DnB
NOR Markets, Inc.
|
_______400,000
|
______460,000
|
|
|
|
|
|
Total
|
4,000,000
|
4,600,000
|
ANNEX
I
Form of Opinion of Seward
& Kissel LLP
[Omitted]
ANNEX
II
Form of Opinion of Appleby
Hunter Bailhache
[Omitted]
ANNEX
III
Form of Lock-Up
Agreement
May
___, 2009
MORGAN
STANLEY & CO. INCORPORATED
As
Representative of the
several
Underwriters referred to below
c/o
Morgan Stanley & Co. Incorporated
1585
Broadway
New
York, New York 10036
Attention: Global
Capital Markets – Execution
Nordic American Tanker
Shipping Limited Lock-Up Agreement
Ladies
and Gentlemen:
This
letter agreement (this "Agreement") relates to the proposed public offering (the
"Offering") by Nordic American Tanker Shipping Limited, a Bermuda corporation
(the "Company"), of its common shares, $0.01 par value (the
"Stock").
In
order to induce you and the other underwriters for which you act as
representatives (the "Underwriters") to underwrite the Offering, the undersigned
hereby agrees that, without the prior written consent of the Representative,
during the period from the date hereof until ninety (90) days from the date of
the final prospectus for the Offering (the "Lock-Up Period"), the undersigned
(a) will not, directly or indirectly, offer, sell, agree to offer or sell,
solicit offers to purchase, grant any call option or purchase any put option
with respect to, pledge, borrow or otherwise dispose of any Relevant Security
(as defined below), and (b) will not establish or increase any "put equivalent
position" or liquidate or decrease any "call equivalent position" with respect
to any Relevant Security (in each case within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder), or otherwise enter into any swap, derivative or other
transaction or arrangement that transfers to another, in whole or in part, any
economic consequence of ownership of a Relevant Security, whether or not such
transaction is to be settled by delivery of Relevant Securities, other
securities, cash or other consideration. As used herein "Relevant
Security" means the Stock, any other equity security of the Company or any of
its subsidiaries and any security convertible into, or exercisable or
exchangeable for, any Stock or other such equity security.
Notwithstanding
the immediately preceding paragraph, if (A) during the period that begins on the
date that is 15 calendar days plus 3 business days before the last day of the
90-day Lock-Up Period referred to in the immediately preceding
paragraph
and ends on the last day of such 90-day Lock-Up Period, the Company issues a
earnings release or material news or a material event relating to the Company
occurs or (B) prior to the expiration of such 90-day Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of such 90-day Lock-Up Period, the restrictions
imposed by the immediately preceding paragraph shall continue to apply until the
expiration of the date that is 15 calendar days plus 3 business days after the
date on which the issuance of the earnings release or the material news or
material event occurs unless the Lead Manager waives, in writing, such
extension. The undersigned hereby acknowledges that the Company has
agreed in the Underwriting Agreement to provide written notice to the
undersigned of any event that would result in an extension of the Lock-Up Period
pursuant to this paragraph, and the undersigned agrees that any such notice
properly delivered will be deemed to have been given to, and received by, the
undersigned.
The
undersigned hereby authorizes the Company during the Lock-Up Period and any
extension of the Lock-Up Period to cause any transfer agent for the Relevant
Securities to decline to transfer, and to note stop transfer restrictions on the
stock register and other records relating to, Relevant Securities for which the
undersigned is the record holder and, in the case of Relevant Securities for
which the undersigned is the beneficial but not the record holder, agrees during
the Lock-Up Period and any extension of the Lock-Up Period to cause the record
holder to cause the relevant transfer agent to decline to transfer, and to note
stop transfer restrictions on the stock register and other records relating to,
such Relevant Securities. The undersigned hereby further agrees that,
without the prior written consent of the Representative, during the Lock-up
Period and any extension of the Lock-Up Period the undersigned (x) will not file
or participate in the filing with the Securities and Exchange Commission of any
registration statement, or circulate or participate in the circulation of any
preliminary or final prospectus or other disclosure document with respect to any
proposed offering or sale of a Relevant Security and (y) will not exercise any
rights the undersigned may have to require registration with the Securities and
Exchange Commission of any proposed offering or sale of a Relevant
Security.
The
second and third paragraphs of this letter shall not apply to (a) bona fide
gifts, provided the recipient thereof agrees in writing with the Underwriters to
be bound by the terms of this Agreement and confirms that he, she or it has been
in compliance with the terms of this Agreement since the date hereof, (b) on
death, by will or intestacy, or (c) dispositions to a member of the
undersigned's immediate family or to any trust, partnership or other entity for
the direct or indirect benefit of the undersigned and/or such immediate family
member, provided that such immediate family member, trust, partnership or other
entity agrees in writing with the Underwriters to be bound by the terms of this
Agreement and confirms that it has been in compliance with the terms of this
Agreement since the date hereof or (d) pursuant to a court order or settlement
agreement approved by a court of competent jurisdiction.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Agreement and that this Agreement constitutes
the legal, valid and binding obligation of the undersigned, enforceable in
accordance with its terms. Upon request, the undersigned will execute
any additional documents necessary in connection with enforcement
hereof. Any obligations of the undersigned shall be binding upon the
successors and assigns of the undersigned from the date first above
written.
If
(i) the Company notifies you in writing that it does not intend to proceed
with the Offering, (ii) the registration statement filed with the
Securities Exchange Commission with respect to the Offering is withdrawn or
(iii) for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), this Agreement
shall terminate without any action by the parties and the undersigned shall be
released from its obligations hereunder.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. Delivery of a signed copy of this letter by
facsimile transmission shall be effective as delivery of the original
hereof.
| |
Very
truly yours,
|
| |
|
| |
|
| |
By: _____________________________
|
| |
Print
Name: _______________________
|
ANNEX
IV
Issuer Free Writing
Prospectuses included in the Pricing Disclosure Package
SK 01318 0002 996002