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Registration Statement No. 333-123052
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIANA SHIPPING INC.
(Exact name of registrant as specified in its charter)
Republic of the Marshall Islands
(State or other jurisdiction of
incorporation or organization)
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4412
(Primary Standard Industrial
Classification Code Number)
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N/A
(I.R.S. Employer
Identification No.)
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Diana Shipping Inc.
Pendelis 16
175 64 Palaio Faliro
Athens, Greece
(30) 210 947-0100
(Address and telephone number
of Registrant's principal executive offices)
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Seward & Kissel LLP
Attention: Gary J. Wolfe, Esq.
One Battery Park Plaza
New York, New York 10004
(212) 574-1200
(Name, address and telephone
number of agent for service)
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Copies to:
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Gary J. Wolfe, Esq.
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
(212) 574-1200
(telephone number)
(212) 480-8421
(facsimile number)
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Gary L. Sellers, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
(telephone number)
(212) 455-2502
(facsimile number)
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are being offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box.
o
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
o
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
o
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following
box.
o
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This amendment No. 1 to the registration statement of Diana Shipping Inc. ("First Amendment") does not relate to our preliminary prospectus which is not
amended hereby. As such, this First Amendment does not include a copy of our preliminary prospectus. This First Amendment is being filed solely for the purpose of (i) submitting an amended
Exhibit 3.1, (ii) submitting Exhibits 1, 4, 10.5, and 23.4 and (iii) submitting signed Exhibits 5 and 8.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 6. Indemnification of Directors and Officers.
The bylaws of the Registrant provide that every director and officer of the Registrant shall be indemnified out of the funds of the Registrant against:
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(1)
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all
civil liabilities, loss, damage or expense (including but not limited to liabilities under contract, tort and statute or any applicable foreign law or regulation and all
reasonable legal and other costs and expenses properly payable) incurred or suffered by him as such director or officer acting in the reasonable belief that he has been so appointed or elected
notwithstanding any defect in such appointment or election, provided always that such indemnity shall not extend to any matter which would render it void pursuant to any Marshall Islands statute from
time to time in force concerning companies insofar as the same applies to the Registrant (the "Companies Acts"); and
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(2)
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all
liabilities incurred by him as such director or officer in defending any proceedings, whether civil or criminal, in which judgment is given in his favor, or in which he is
acquitted, or in connection with any application under the Companies Acts in which relief from liability is granted to him by the court.
Section 60
of the Associations Law of the Republic of the Marshall Islands provides as follows:
Indemnification
of directors and officers.
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(1)
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Actions not by or in right of the corporation
. A corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative (other than an action by or in the right of
the corporation) by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of no contest, or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonable believed to be in or not
opposed to the bests interests of the corporation, and, with respect to any criminal action or proceedings, had reasonable cause to believe that his conduct was unlawful.
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(2)
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Actions by or in right of the corporation
. A corporation shall have the power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a
director or officer of the corporation, or is or was serving at the request of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him or in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed to be in or not, opposed to the best interests of the corporation and except that no indemnification shall be made in
respect of any claims, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to
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the
extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
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(3)
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When director or officer successful
. To the extent that a director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in subsections (1) or (2) of this section, or in the defense of a claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith.
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(4)
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Payment of expenses in advance
. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid in advance of
the final disposition of such action, suit or proceeding as authorized by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay
such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this section.
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(5)
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Continuation of indemnification.
The indemnification and advancement of expenses provided by, or granted pursuant to, this section
shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
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(6)
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Insurance
. A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director or
officer of the corporation or is or was serving at the request of the corporation as a director or officer against any liability asserted against him and incurred by him in such capacity whether or
not the corporation would have the power to indemnify him against such liability under the provisions of this section.
Item 7. Recent Sales of Unregistered Securities.
Not applicable.
Item 8. Exhibits and Financial Statement Schedules.
Exhibit
Number
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Description
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1
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Form of Underwriting Agreement
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3.1
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Amended and Restated Articles of Incorporation of the Company
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3.2
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Amended and Restated Bylaws of the Company*
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4
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Form of Share Certificate of the Company
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5
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Opinion of Seward & Kissel LLP, United States and Marshall Islands Counsel to the Company, as to the validity of the Shares
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8
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Opinion of Seward & Kissel LLP, United States Counsel to the Company, with respect to certain tax matters
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10.1
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Form of Stockholders' Rights Agreement*
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10.2
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Form of Registration Rights Agreement*
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10.3
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Form of 2005 Stock Incentive Plan*
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10.4
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Form of Technical Manager Purchase Option Agreement*
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10.5
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Form of Management Agreement
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10.6
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Loan agreement, dated February 18, 2005, between the Company and the Royal Bank of Scotland*
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21
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Subsidiaries of the Company*
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23.1
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Consent of Seward & Kissel LLP (included in Exhibit 5 and Exhibit 8)
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23.2
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Consent of Ernst & Young (Hellas) Certified Auditors Accountants S.A.*
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23.3
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Consent of Drewry Shipping Consultants Limited*
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23.4
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Consent of Nominee Directors
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24
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Powers of Attorney*
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*
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Previously
filed as an exhibit to the Company's Registration Statement filed on form F-1 (File No. 123052) on March 1, 2005.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
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(1)
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To
provide to the underwriters at the closing specified in the underwriting agreement shares certificates in such denominations and registered in such names as required by the
underwriters to permit prompt delivery to each purchaser.
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(2)
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That
for purposes of determining any liability under the Securities Act of 1933, as amended (the "Act"), the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) under the Act shall be deemed
to be part of this Registration Statement as of the time it was declared effective.
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(3)
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That
for purposes of determining any liability under the Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(4)
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That
insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-l and has duly caused this amended Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
New York, NY on March 14, 2005.
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DIANA SHIPPING INC.
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By:
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/s/
SIMEON P. PALIOS
Name: Simeon P. Palios
Title: Chief Executive Officer, Chairman of the Board
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Pursuant to the requirements of the Securities Act of 1933, this amended Registration Statement has been signed by the following persons on March 14, 2005 in the capacities
indicated.
Signature
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Title
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/s/
SIMEON P. PALIOS
Simeon P. Palios
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Director, Chief Executive Officer and Chairman of the Board
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/s/
ANASTASSIS MARGARONIS
Anastassis Margaronis
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Director and President
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/s/
IOANNIS ZAFIRAKIS
Ioannis Zafirakis
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Director, Vice President and Secretary
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/s/
KONSTANTINOS KOUTSOMITOPOULOS
Konstantinos Koutsomitopoulos
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Chief Financial Officer and Treasurer
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/s/
EVANGELOS MONASTIRIOTIS
Evangelos Monastiriotis
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Chief Accounting Officer
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/s/
PUGLISI & ASSOCIATES
Puglisi & Associates
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Authorized Representative in the United States
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EXPLANATORY NOTE
PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS
SIGNATURES
Exhibit 1
[Form
of Underwriting Agreement]
[ ]
Shares of Common Stock
DIANA SHIPPING INC.
UNDERWRITING AGREEMENT
March [ ], 2005
BEAR, STEARNS & CO. INC.
As Representative of the
several Underwriters named in
Schedule I attached hereto (the Representative)
c/o Bear, Stearns & Co.
Inc.
383 Madison Avenue
New York, New York 10179
Ladies/Gentlemen:
Diana Shipping Inc., a
corporation validly existing under the laws of the Republic of the Marshall
Islands (formerly, Diana Shipping Investment Corp.) (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 [ ]
shares (the Firm Shares) of its common stock, par value $.01 per share (the Common
Stock). For the sole purpose of
covering over-allotments in connection with the sale of the Firm Shares, at the
option of the Underwriters, Zoe S. Company Ltd., a stockholder of the Company
organized and existing under the laws of The Bahamas (the Selling Stockholder),
proposes to sell to the Underwriters up to [ ]
additional shares of Common Stock (the Additional Shares). The Firm Shares
and any Additional Shares purchased by the Underwriters are referred to herein
as the Shares. The Shares are more
fully described in the Registration Statement and Prospectus referred to
below. Bear, Stearns & Co. Inc. (Bear
Stearns) is acting as lead manager (the Lead Manager) in connection with the
offering and sale of the Shares contemplated herein (the Offering).
The Company and the Selling
Stockholder hereby confirm their engagement of Bear Stearns, and Bear Stearns
hereby confirms its agreement with the Company and the Selling Stockholder, to
render services as a qualified independent underwriter within the meaning of
Rule 2720 of the Conduct Rules of the National Association of Securities
Dealers, Inc. (the NASD) with respect to the Offering. Bear Stearns, solely in its capacity as
qualified independent underwriter and not otherwise, is referred to herein as
the QIU.
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) a registration statement on Form F-1 (File No.
333-23052), and amendments thereto, and related preliminary prospectuses for
the registration under the Securities Act of 1933, as amended (the Securities Act),
of the Shares which registration statement, as so amended, has been declared
effective by the Commission and copies of which have heretofore been made
available to the Underwriters. The registration statement, as amended at the
time it became effective, including the prospectus, financial statements,
schedules, exhibits and information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A or
434 under the Securities Act, is hereinafter referred to as the Registration
Statement. If the Company has filed or
is required pursuant to the terms hereof to file a registration statement
pursuant to Rule 462(b) under the Securities Act registering additional shares
of Common Stock (a Rule 462(b) Registration Statement), then, unless
otherwise specified, any reference herein to the term Registration Statement
shall be deemed to include such Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration
Statement, which, if filed, becomes effective upon filing, no other document
with respect to the Registration Statement has heretofore been filed with the
Commission. All of the Shares have been registered under the Securities Act pursuant
to the Registration Statement or, if any Rule 462(b) Registration Statement is
filed, will be duly registered under the Securities Act with the filing of such
Rule 462(b) Registration Statement. No
stop order suspending the effectiveness of either the Registration Statement 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 Company, if required by
the Securities Act and the rules and regulations of the Commission (the Rules
and Regulations), proposes to file the Prospectus with the Commission pursuant
to Rule 424(b) under the Securities Act (Rule 424(b)). The prospectus, in the form in which it is to
be filed with the Commission pursuant to Rule 424(b), or, if the prospectus is
not to be filed with the Commission pursuant to Rule 424(b), the prospectus in
the form included as part of the Registration Statement at the time the
Registration Statement became effective, is hereinafter referred to as the Prospectus,
except that if any revised prospectus or prospectus supplement shall be
provided to the Underwriters by the Company for use in connection with the
Offering which differs from the Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b)), the term Prospectus shall also refer to such
revised prospectus or prospectus supplement, as the case may be, from and after
the time it is first provided to the Underwriters for such use. Any preliminary prospectus or prospectus
subject to completion included in the Registration Statement or filed with the
Commission pursuant to Rule 424 under the Securities Act is hereafter called a Preliminary
Prospectus. All references in this
Agreement to the Registration Statement, the Rule 462(b) Registration
Statement, a Preliminary Prospectus and the Prospectus, or any amendments or
supplements to any of the foregoing shall be deemed to include any copy thereof
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval System (EDGAR), as superceded by a subsequent filing, if
applicable.
(b)
At the time of the effectiveness of the Registration
Statement or any Rule 462(b)
Registration Statement or the effectiveness of any post-effective
amendment to the Registration Statement, when the Prospectus is first filed
with the Commission pursuant to Rule 424(b)
2
or Rule 434
under the Securities Act (Rule 434), when any supplement to or amendment of
the Prospectus is filed with the Commission and at the Closing Date and the
Additional Closing Date, if any (as hereinafter respectively defined), the
Registration Statement and the Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects with the
applicable provisions of the Securities Act, the Securities Exchange Act of
1934, as amended (the Exchange Act), and the Rules and Regulations and did
not and will not contain an untrue statement of a material fact and did not and
will not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein (i) in the case of the
Registration Statement, not misleading and (ii) in the case of the Prospectus
or any related Preliminary Prospectus in light of the circumstances under which
they were made, not misleading. When any Preliminary Prospectus was first filed
with the Commission (whether filed as part of the registration statement for
the registration of the Shares or any amendment thereto or pursuant to Rule
424(a) under the Securities Act) and when any amendment thereof or supplement
thereto was first filed with the Commission, such Preliminary Prospectus and
any amendments thereof and supplements thereto complied in all material
respects with the applicable provisions of the Securities Act, the Exchange Act
and the Rules and Regulations and did not contain an untrue statement of a
material fact and did not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. No representation and warranty is made in
this subsection (b), however, with respect to any information contained in
or omitted from the Registration Statement or the Prospectus or any related
Preliminary Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished to the Company by or
on behalf of any Underwriter specifically for use therein. The parties acknowledge and agree that such information provided by or on behalf of
any Underwriter consists solely of the underwriters names and addresses
in the first table under the caption Underwriting in the Prospectus and the
material included under the caption Underwriting in the Prospectus in (i) the
first, second and fifth sentences of the third paragraph, (ii) the portion of
the first sentence of the tenth paragraph that relates to Underwriters action,
(iii) the eleventh paragraph, (iv) the second sentence of the thirteenth
paragraph, (v) the first sentence of the fourteenth paragraph and the portion
of the second sentence of the fourteenth paragraph that relates to the
Underwriters approval or endorsement, (iv) the fifteenth paragraph, (v) the
portion of the first sentence of the seventeenth paragraph that relates to
Fortis Securities LLCs affiliation with the Selling Stockholder and the
fourth, sixth and seventh sentences of the seventeenth paragraph, (vi) the portion
of the second sentence of the eighteenth paragraph that relates to the
applicable provisions of Rule 2720 of the NASD and the portion of the third
sentence of the eighteenth paragraph that relates to underwriters beliefs and
(vii) the portion of the second sentence of the nineteenth paragraph that
relates to Fortis Securities LLCs affiliation with the Selling Stockholder.
(c)
Ernst & Young (Hellas) Certified Auditor Accountants
S.A., whose audit report on the financial statements and supporting schedules
and information of the Company and its consolidated subsidiaries is included in
the Registration Statement, is an independent registered public accounting firm
as required by the Securities Act, the Exchange Act and the Rules and
Regulations.
(d)
Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as disclosed in
the Registration Statement
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and the
Prospectus, the Company has not declared, paid or made any dividends or other
distributions of any kind on or in respect of its capital stock and there has
been no material adverse change or any development involving a prospective
material adverse change, whether or not arising from transactions in the
ordinary course of business, in or affecting (i) the business, condition
(financial or otherwise), results of operations, stockholders equity or
properties of the Company and each subsidiary of the Company listed in Schedule III
hereto (the Subsidiaries), individually or taken as a whole; (ii) the
long-term debt or capital stock of the Company or any of its Subsidiaries; or
(iii) the Offering or the consummation of any other transaction contemplated by
this Agreement, the Registration Statement or the Prospectus (a Material
Adverse Change). Since the date of the
latest balance sheet presented in the Registration Statement and the
Prospectus, neither the Company nor any Subsidiary has incurred or undertaken
any liabilities or obligations, whether direct or indirect, liquidated or
contingent, matured or unmatured, or entered into any transactions,
including any acquisition or disposition of any business or
asset,
which are material to the Company and
the Subsidiaries, individually or taken as a whole, except for liabilities,
obligations and transactions which are disclosed in the Registration Statement
and the Prospectus.
(e)
The authorized, issued and outstanding capital stock of the
Company is as set forth in the 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 Prospectus, will be as set forth in the column headed As Adjusted
under the caption Capitalization. All
of the issued and outstanding shares of capital stock of the Company are fully
paid and non-assessable and have been duly and validly authorized and issued,
in compliance with all applicable state, federal and foreign securities laws
and not in violation of or subject to any preemptive or similar right that does
or will entitle any person, upon the issuance or sale of any security, to
acquire from the Company, any Subsidiary or the Selling Stockholder (i) any
Common Stock or other security of the Company, (ii) any security convertible
into, or exercisable or exchangeable for, Common Stock or any other security of
the Company, (iii) any capital stock or other security of any Subsidiary or
(iv) any security convertible into, or exercisable or exchangeable for, such
capital stock or any other security of any Subsidiary (any Relevant Security),
except for such rights as may have been fully satisfied or waived prior to the
effectiveness of the Registration Statement.
The Shares to be delivered on the Closing Date and the Additional
Closing Date, if any (as hereinafter respectively defined), 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, any Subsidiary or the Selling Stockholder upon
issuance or sale of Shares in the Offering.
The Common Stock, including the Shares, conforms in all material
respects to the descriptions thereof contained in the Registration Statement
and the Prospectus. Except as disclosed in the Registration Statement and the
Prospectus, neither the Company nor any Subsidiary has 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.
(f)
The Subsidiaries are the only subsidiaries of the Company
within the meaning of Rule 405 under the Securities Act. Except for the Subsidiaries, the Company
4
holds no
ownership or other interest, nominal or beneficial, direct or indirect, in any
corporation, partnership, joint venture or other business entity. All of the issued shares of capital stock of
or other ownership interests in each Subsidiary have been duly and validly
authorized and issued and are fully paid and non-assessable and (except as
otherwise set forth in the Prospectus) are owned directly or indirectly by the
Company free and clear of any lien, charge, mortgage, pledge, security
interest, claim, equity, trust or other encumbrance, preferential arrangement,
defect or restriction of any kind whatsoever (any Lien).
(g)
Each of the Company and the Subsidiaries has been duly
organized and validly exists as a corporation or limited liability company in
good standing under the laws of its jurisdiction of organization. Each of the Company and the Subsidiaries is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which the character or location of its properties
(owned, leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or in
good standing which (individually and
in the aggregate) would not have a material adverse effect on (i) the
business, condition (financial or otherwise), results of operations,
stockholders equity, properties or prospects of the Company and the
Subsidiaries, individually or taken as a whole; (ii) the long-term debt or
capital stock of the Company or any of its Subsidiaries; or (iii) the Offering
or the consummation of any other transaction contemplated by this Agreement,
the Registration Statement or the Prospectus (a Material Adverse Effect). Each of the Company and the Subsidiaries has
all requisite power and authority, and all necessary consents, approvals,
authorizations, orders, registrations, certifications, qualifications,
licenses, filings and permits of, with and from all judicial, regulatory and
other legal or governmental agencies and bodies and all third parties, foreign
and domestic (collectively, the Consents), to own, lease and operate its
properties and conduct its business as it is now being conducted and as
disclosed in the Registration Statement and the Prospectus, except for those
failures to have Consents which (individually
and in the aggregate) would not have a Material Adverse Effect. Each such Consent is valid and in full force
and effect, and neither the Company nor any Subsidiary has received notice of
any investigation or proceedings which results in or, if decided
adversely to the Company or any Subsidiary, would result in, the revocation of,
or imposition of a materially burdensome restriction on, any such Consent. No
Consent contains a materially burdensome restriction not adequately disclosed
in the Registration Statement and the Prospectus.
(h)
The Company has full right, power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated by this Agreement, the Registration
Statement and the Prospectus. This Agreement and the transactions contemplated
by this Agreement, the Registration Statement 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).
(i)
The execution, delivery, and performance of this Agreement
and consummation of the transactions contemplated by this Agreement, the
Registration Statement
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and the
Prospectus 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 or encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement, instrument, franchise, license or permit to which the
Company or any Subsidiary is a party or by which the Company or any Subsidiary
or their respective properties, operations or assets may be bound or (ii)
violate or conflict with any provision of the certificate or articles of
incorporation, by-laws,
articles of domestication
or other organizational documents of the Company or any
Subsidiary, or (iii) violate or conflict with any applicable law, rule, regulation, ordinance, directive,
judgment, decree or order of any judicial, regulatory or other legal or
governmental agency or body, domestic or foreign, except (in the case of
clauses (i) and (iii) above) as would not have a Material Adverse Effect.
(j)
No Consent of, with or from any judicial, regulatory or other
legal or governmental agency or body or any third party, foreign or domestic,
is required for the execution, delivery and performance of this Agreement or
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, including the issuance, sale and
delivery of the Shares to be issued, sold and delivered hereunder, except the
registration under the Securities Act of the Shares, which has become
effective, and such Consents as may be required under state securities or blue
sky laws or the laws of the Republic of the Marshall Islands in connection with
the purchase and distribution of the Shares by the Underwriters, each of which
has been obtained and is in full force and effect.
(k)
Except as disclosed in the Registration Statement 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 or any Subsidiary is a party or of which
any property, operations or assets of the Company or any Subsidiary is the
subject which (individually or in the
aggregate), if determined adversely to the Company or any Subsidiary,
would have a Material Adverse Effect; to the best of the Companys knowledge,
no such proceeding, litigation or arbitration is threatened or contemplated;
and the defense of all such proceedings, litigation and arbitration against or
involving the Company or any Subsidiary would not have a Material Adverse
Effect.
(l)
The financial statements, including the notes thereto, and
the supporting schedules included in the Registration Statement 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 and its Subsidiaries; except as otherwise stated in the Registration
Statement 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; and the supporting
schedules included in the Registration Statement and the Prospectus present
fairly the information required to be stated therein. No other financial statements or supporting
schedules are required to be included in the Registration Statement. The other financial and statistical
information, including pro forma and as adjusted financial information,
included in the Registration Statement 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 in the Registration
Statement and the Prospectus and the
6
books and
records of the respective entities presented therein. The assumptions used in
preparing the pro forma and as adjusted financial information included in the
Registration Statement and the Prospectus provide a reasonable basis for
presenting the significant effects directly attributable to the transactions or
events described therein; the related adjustments made in the preparation of
such pro forma and as adjusted financial information give appropriate effect to
those assumptions; and such pro forma and as adjusted financial information reflect
the proper application of those adjustments to the corresponding historical
financial statement amounts.
(m)
There are no pro forma or as adjusted financial statements
which are required to be included in the Registration Statement and Prospectus in
accordance with Regulation S-X which have not been included as so required.
(n)
The statistical, industry-related and market-related data
included in the Registration Statement
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.
(o)
The Common Stock is registered pursuant to Section 12(b)
of the Exchange Act and shares of Common Stock (including the Shares) have been
approved for listing on the NYSE (as defined in Section 13(b) below),
subject to official notice of issuance, 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 prohibiting the listing of shares of
Common Stock on the NYSE, nor has the Company received any notification that
the Commission or the NYSE is contemplating terminating such registration or
approval for listing.
(p)
The Company and its Subsidiaries maintain a system of
internal accounting and other controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with managements
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 managements
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.
(q)
Neither the Company nor any of its affiliates (within the
meaning of Rule 144 under the Securities Act) has taken, directly or
indirectly, any action which constitutes or is designed to cause or result in,
or which would constitute, cause or result in, the stabilization or
manipulation of the price of any security to facilitate the sale or resale of
the Shares.
(r)
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
for purposes of the Securities Act or the Rules and Regulations with the offer
and sale of the Shares pursuant to the Registration Statement. Except as disclosed in the Registration
Statement and the Prospectus, neither the Company nor any of its affiliates has
sold or issued any Relevant Security during the six-month period preceding the
date of the Prospectus, including but not limited to any sales pursuant to Rule
144A or Regulation D or S under the Securities Act.
7
(s)
Except as disclosed in the Registration Statement and the
Prospectus, no holder of any Relevant Security has any rights to require
registration of any Relevant Security as part or on account of, or otherwise in
connection with, the offer and sale of the Shares contemplated hereby, and any
such rights so disclosed have either been fully complied with by the Company or
effectively waived by the holders thereof, and any such waivers remain in full force and effect.
(t)
The Company is not and, at all times up to and including
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, and after giving effect to
application of the net proceeds of the Offering, will not be, subject to
registration 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.
(u)
There are no current or pending judicial, regulatory or other
legal or governmental proceedings that are required to be described in the
Prospectus and that are not so described or any statutes, regulations,
contracts or other documents that are required under the Securities Act, the
Exchange Act or the Rules and Regulations to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement that are
not so described or filed.
(v)
No relationship, direct or indirect, exists between or among
any of the Company or any affiliate of the Company, on the one hand, and any
director, officer, stockholder, customer or supplier of the Company or any affiliate of the Company, on the other hand,
which is required by the Securities Act, the Exchange Act or the Rules and
Regulations to be described in the Registration Statement or the Prospectus
which is not so described and described as required. There are no outstanding
loans, advances (except normal advances for business expenses in the ordinary
course of business) or guarantees of indebtedness by the Company to or for the benefit
of any of the officers or directors of the Company or any of their respective
family members, except as disclosed in the Registration Statement and the
Prospectus.
The Company
has not, in violation of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley
Act), directly or indirectly, including through a Subsidiary, extended or
maintained credit, arranged for the extension of credit, or renewed an
extension of credit, in the form of a personal loan to or for any director or
executive officer of the Company.
(w)
Except as disclosed in the Registration Statement and the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finders fee or other
like payment in connection with the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus or, to the Companys
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 NASD.
(x)
The Company and each Subsidiary owns or leases all such
properties as are necessary to the conduct of its business as presently
operated and as proposed to be operated as described in the Registration
Statement and the Prospectus. The
Company and the
8
Subsidiaries
have good and marketable title to all personal property owned by them in each
case free and clear of all Liens except for maritime liens and other liens
incurred in the ordinary course of the Companys shipping business and except
such as are described in the Registration Statement and the Prospectus or such
as do not (individually and in the aggregate) materially affect the value of
such property or interfere with the use made or proposed to be made of such
property by the Company and the Subsidiaries; and any real property and
buildings held under lease or sublease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases with such
exceptions as would not (individually and in the aggregate) have a Material
Adverse Effect. Neither the Company nor
any Subsidiary has received any notice of any claim adverse to its ownership of
any real or personal property or of any claim against the continued possession
of any real property, whether owned or held under lease or sublease by the
Company or any Subsidiary that would (individually or in the aggregate) have a
Material Adverse Effect.
(y)
The Company and the Subsidiaries
maintain insurance or participate in insurance clubs in such amounts and
covering such risks as the Company reasonably considers adequate for the
conduct of its business and the value of its properties and as is customary for
companies engaged in similar businesses in similar industries
, all of which insurance is in full force and effect, except
where the failure to maintain such insurance would not (individually and in the
aggregate) have a Material Adverse Effect.
There are no material claims by the Company or any Subsidiary under any
such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause and neither the
Company nor any of the Subsidiaries is currently required to make any payment,
or is aware of any facts which would require the Company or any Subsidiary to
make any payment, in respect of a call by, or a contribution to, any insurance
club.
(z)
Reserved.
(aa)
Each of the Company and the Subsidiaries has accurately
prepared and timely filed all federal, state, foreign and other tax returns
that are required to be filed by it and has paid or made provision for the
payment of all taxes, assessments, governmental or other similar charges,
including without limitation, all sales and use taxes and all taxes which the
Company or any Subsidiary is obligated to withhold from amounts owing to
employees, creditors and third parties, with respect to the periods covered by
such tax returns (whether or not such amounts are shown as due on any tax
return), except for such failures which (individually and in the aggregate)
would not have a Material Adverse Effect.
No deficiency assessment with respect to a proposed adjustment of the
Companys or any Subsidiarys federal, state, local or foreign taxes is pending
or, to the best of the Companys knowledge, threatened. The accruals and reserves on the books and
records of the Company and the Subsidiaries in respect of tax liabilities for
any taxable period not finally determined are adequate to meet any assessments
and related liabilities for any such period and, since December 31, 2003,
the Company and the Subsidiaries have not incurred any liability for taxes
other than in the ordinary course of its business. There is no tax lien,
whether imposed by any federal, state, foreign or other taxing authority,
outstanding against the assets, properties or business of the Company or any
9
Subsidiary.
Neither the Company nor any of its Subsidiaries is required to file tax returns
or is subject to taxation in the Republic of Greece (except that Subsidiaries
owning vessels that fly the Greek flag are required to file annual tax returns
with the Greek shipping tax authority in connection with a fixed tax calculated
on the basis of the tonnage of the relevant vessel) and the Company is not
aware of any facts or circumstances that could cause it or any of its
Subsidiaries to file tax returns or become subject to taxation in the Republic
of Greece (other than in connection with a fixed tax calculated on the basis of
the tonnage of vessels flying the Greek flag).
(bb)
No labor disturbance by the employees of the Company or any
Subsidiary exists or, to the best of the Companys knowledge, is imminent and
the Company is not aware of any existing or imminent labor disturbances by the
employees of any of its or any Subsidiarys principal suppliers, shipyards,
manufacturers, customers or contractors, which, in either case (individually
or in the aggregate), would have a Material Adverse Effect.
(cc)
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.
(dd)
There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of any kind
of toxic or other wastes or other hazardous substances by, due to, or caused by
the Company or any Subsidiary (or, to the Companys 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 any Subsidiary, or
upon any other property, which would be a violation of or give rise to any
liability under any applicable law, rule, regulation, order, judgment, decree
or permit (including any applicable regulations and standards adopted by the
International Maritime Organization) relating to pollution or protection of
human health and the environment (Environmental Law), except for violations
and liabilities which (individually and in the aggregate) would not have a
Material Adverse Effect. There has been
no disposal discharge, emission or other release of any kind onto such property
or into the environment surrounding such property of any toxic or other wastes
or other hazardous substances with respect to which the Company or any
Subsidiary has knowledge, which (individually
or in the aggregate) would have a Material Adverse Effect.
Neither the
Company nor any Subsidiary has agreed to assume, undertake or provide indemnification
for any liability of any other person under any Environmental Law, including
any obligation for cleanup or remedial action, other than by operation of law
or due to the Companys membership in any mutual protection an indemnity
association, in each case as described in the Registration Statement and
Prospectus, and except as would not (individually and in the aggregate) have a
Material Adverse Effect. There is no pending or, to the best of the Companys
knowledge, threatened administrative, regulatory or judicial action, claim or
notice
10
of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any Subsidiary.
(ee)
None of the Company, any Subsidiary or, to the Companys
knowledge, any of its or their respective employees or agents has at any time
during the last five years (i) made any unlawful contribution to any candidate
for foreign office, or failed to disclose fully any contribution in violation
of law, or (ii) made any payment to any federal or state governmental officer
or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States or any jurisdiction thereof.
(ff)
Neither the Company nor any Subsidiary (i) is in violation of
its certificate or articles of incorporation, by-laws,
articles of
domestication
or other organizational
documents, (ii) is in default under, and no event has occurred which, with
notice or lapse of time or both, would constitute a default under or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property or
assets is subject or (iii) is in violation in any respect of any applicable
law, rule, regulation, ordinance, directive, judgment, decree or order of any
judicial, regulatory or other legal or governmental agency or body, foreign or
domestic, except (in the case of clauses (ii) and (iii) above) violations or
defaults which (individually and in the
aggregate) would not have a Material Adverse Effect and except (in the
case of clause (ii) alone) for any lien, charge or encumbrance disclosed in the
Registration Statement and the Prospectus or any maritime lien or other lien
incurred in the ordinary course of the Companys shipping business.
(gg)
Neither the Company nor any of the Subsidiaries, nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate
of the Company or any of its Subsidiaries, is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (OFAC); and the Company will not directly or indirectly
use the proceeds of the Offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person
known by the Company to be subject to any U.S. sanctions administered by OFAC
at such time.
(hh)
The Company is in compliance in all material respects with
provisions of the Sarbanes-Oxley Act that are effective and applicable to it
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.
(ii)
Except as disclosed in the Registration Statement and the
Prospectus, there are no outstanding guarantees or other contingent obligations
of the Company or any Subsidiary that would have a Material Adverse Effect.
(jj)
The Company is a foreign private issuer as defined in Rule
405 of the Securities Act.
11
(kk)
The Company is not a passive foreign investment company (a PFIC)
within the meaning of Section 1297 of the Code and expects to continue its
operations in such a manner that it will not become a PFIC in the future.
(ll)
No stamp duty, stock exchange tax, value-added tax,
withholding or any other similar duty or tax is payable in the United States,
the Republic of Marshall Islands, the Republic of Greece, the Republic of
Panama, 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 Firm Shares by the
Company, or the Additional Shares by the Selling Stockholder, to the
Underwriters or the initial resales thereof by the Underwriters in the manner
contemplated by this Agreement, the Power of Attorney (as hereinafter defined),
the Custody Agreement (as hereinafter defined) and the Prospectus.
(mm)
All dividends and other distributions declared and payable on
the shares of Common Stock of the Company or on the shares of common stock or
other equity securities of each Subsidiary may under the current laws and
regulations of the Republic of the Marshall Islands, the Republic of Greece and
the Republic of Panama be paid in United States dollars and may be freely
transferred out of the Republic of the Marshall Islands, the Republic of Greece
and the Republic of Panama, as the case may be, and all such dividends and
other distributions are not subject to withholding or other taxes under the
current laws and regulations of the Republic of the Marshall Islands, the
Republic of Greece and the Republic of Panama and are otherwise free and clear
of any withholding, stamp, transfer, excise or other tax and without the
necessity of obtaining any consents, approvals, authorizations, orders,
licenses, registrations, clearances and qualifications of or with any court or
governmental agency or body or any stock exchange authorities in the Republic
of the Marshall Islands, the Republic of Greece and the Republic of Panama.
Any certificate signed by or
on behalf of the Company and delivered to the Representative or to Underwriters
Counsel (as defined in Section 3(e) hereof) shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
2.
Representations
and Warranties of the Selling Stockholder
. The Selling Stockholder represents and
warrants to, and agrees with, each of the Underwriters as of
the date hereof and as of the Closing Date and each Additional Closing Date
that
:
(a)
The Selling Stockholder has full right, power and authority
to execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated by this Agreement, the Registration
Statement and the Prospectus. This
Agreement and the transactions contemplated by this Agreement, the Registration
Statement and the Prospectus have been duly and validly authorized by the
Selling Stockholder. This Agreement has been duly and validly executed and
delivered by the Selling Stockholder and constitutes the legal, valid and
binding obligation of the Selling Stockholder, enforceable in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors
rights generally and
12
except as enforceability may be subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(b)
The Selling Stockholder has full right, power and authority
to execute and deliver a Custody Agreement and Power of Attorney substantially
in the forms of Exhibits I and II hereto, respectively, (the Custody Agreement
and Power of Attorney, respectively), to perform its obligations thereunder
and to consummate the transactions contemplated thereby. The Custody Agreement and Power of Attorney
and the transactions contemplated thereby have been duly and validly authorized
by the Selling Stockholder. The Custody Agreement and Power of Attorney have
each been duly and validly executed and delivered by the Selling Stockholder
and constitute the legal, valid and binding obligation of the Selling
Stockholder, enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law). Counterparts of the Selling
Stockholders Custody Agreement, duly signed by (i) Computershare Investor
Services LLC, as custodian (in such capacity, the Custodian), and (ii) Mr.
Jaap Kalverkamp and Mr. Harris Antoniou as the Selling Stockholders
attorneys-in-fact, (the Attorneys-in-Fact) have been delivered to the Company
and the Lead Manager on or prior to the date of this Agreement.
(c)
The Selling Stockholder agrees that the Additional Shares, if
any, to be sold by the Selling Stockholder, whether or not on deposit with the
Custodian, are subject to the interests of the Underwriters, that the
arrangements made for such custody are to that extent irrevocable, and that the
obligations of the Selling Stockholder hereunder shall not be terminated,
except as provided in this Agreement or in the Custody Agreement and Power of
Attorney, by any act of the Selling Stockholder, by operation of law or by the
occurrence of any other event. If any
event should occur affecting the legal status or capacity of the Selling
Stockholder before the delivery of the Additional Shares, if any, to be sold by
the Selling Stockholder hereunder, the documents evidencing the Additional
Shares, if any, to be sold by the Selling Stockholder then on deposit with the
Custodian shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such event had not occurred, regardless of
whether or not the Custodian shall have received notice thereof.
(d)
The Selling Stockholder has and, on any Additional Closing
Date, will have good and valid title to and is and will be the lawful owner of
the Additional Shares, if any, to be sold by the Selling Stockholder hereunder,
and upon sale and delivery of, and payment for, such Additional Shares as
provided herein, the Selling Stockholder will convey to the Underwriters good
and marketable title to such Additional Shares, free and clear of all
Liens. Certificates for all of the
Additional Shares to be sold by the Selling Stockholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Custodian with irrevocable
conditional instructions to deliver such Additional Shares to the Underwriters
pursuant to this Agreement.
(e)
No Consent of, from or with any judicial, regulatory or other
legal or governmental agency or body or any third party, foreign or domestic,
is required for the
13
execution, delivery and performance by the Selling
Stockholder of this Agreement or its Custody Agreement and Power of Attorney,
or consummation by the Selling Stockholder of the transactions contemplated
herein or therein, except such as have been obtained under the Securities Act
and such as may be required under the state or foreign securities laws or the
blue sky laws of any jurisdiction or the by-laws and rules of the NASD or NASD
Regulation, Inc. in connection with the purchase and distribution of the
Selling Stockholders Additional Shares by the Underwriters.
(f)
The execution, delivery and performance of this Agreement,
the Power of Attorney and the Custody Agreement by the Selling Stockholder and
consummation of any of the other transactions contemplated herein and therein
by the Selling Stockholder or the fulfillment of the terms hereof by the
Selling Stockholder will not (i) conflict with, result in a breach or
violation of, or constitute a default (or an event that with notice or lapse of
time, or both, would constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Selling Stockholder pursuant to any law, statute, rule or regulation or the
terms of any indenture or other agreement or instrument to which the Selling
Stockholder is party or bound, or to which any of the property or assets of the
Selling Stockholder is subject, (ii) result in any violation of the provisions
of any charter or by-laws or certificate of formation or other organizational
documents, as applicable, of the Selling Stockholder, or (iii) result in any
violation or breach of any judgment, order, decree statute, rule or regulation
applicable to the Selling Stockholder of any court or any public, governmental
or regulatory agency or body, administrative agency or arbitrator having
jurisdiction over the Selling Stockholder, except (in the case of clauses (i)
and (iii) above) as would not (individually and in the aggregate) have a
material adverse effect on the Offering or the consummation of any other
transaction contemplated by this Agreement, the Power of Attorney or the
Custody Agreement.
(g)
The Selling Stockholder does not have any registration or
other similar rights to have any equity or debt securities registered for sale
by the Company under the Registration Statement or included in the offering of
the Shares and the Additional Shares, except for such rights as have been
waived or which are described in the Prospectus (and which have been complied
with).
(h)
The Selling Stockholder does not have, or has waived prior to
the date hereof, any preemptive right, co-sale right or right of first refusal
or other similar right to purchase any of the Shares that are to be sold by the
Company to the Underwriters pursuant to this Agreement; and the Selling
Stockholder does not own any warrants, options or similar rights to acquire,
and does not have any right or arrangement to acquire, any capital stock,
right, warrants, options or other securities from the Company, other than those
described in the Registration Statement and the Prospectus.
(i)
No stamp duty, stock exchange tax, value-added tax,
withholding or any other similar duty or tax is payable in The Bahamas or any
other jurisdiction in which the Selling Stockholder 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 or the Custody Agreement by the Selling
Stockholder or the sale or delivery of the Additional Shares by the Selling
Stockholder to the
14
Underwriters or the initial resales thereof by the
Underwriters in the manner contemplated by this Agreement, the Power of
Attorney, the Custody Agreement and the Prospectus.
(j)
Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Selling Stockholder and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finders fee or other like payment in
connection with this offering or, to the Selling Stockholders knowledge, any
other arrangements, agreements, understandings, payments or issuance with
respect to the Company or any of its officers, directors, shareholders,
partners, employees, Subsidiaries or affiliates that may affect the
Underwriters compensation as determined by the NASD.
(k)
The Selling Stockholder has reviewed and is familiar with the
Registration Statement and the Prospectus and (i) has no knowledge of any
material adverse information with regard to the Company or the Subsidiaries
which is not disclosed in the Registration Statement and the Prospectus, (ii)
has no knowledge of any misstatement of a material fact or failure to state a
material fact necessary to make the statements in the Prospectus, in light of
the circumstances under which they were made, not misleading, (iii) is not
prompted to sell the Additional Shares, if any, to be sold by the Selling
Stockholder by any information concerning the Company or any Subsidiary which
is not set forth in the Registration Statement and the Prospectus and (iv) has no
reason to believe that any representation or warranty of the Company set forth
in Section 1 above is untrue.
(l)
At the time of the effectiveness of the Registration
Statement, any Rule 462(b) Registration Statement or the effectiveness of any
post-effective amendment to the Registration Statement, when the Prospectus is
first filed with the Commission pursuant to Rule 434, when any supplement to or
amendment of the Prospectus is filed with the Commission, when any related
Preliminary Prospectus was first filed with the Commission (whether filed as
part of the registration statement for the registration of the Shares or any
amendment thereto or pursuant to Rule 424(a) under the Securities Act) and when
any amendment thereof or supplement thereto was first filed with the
Commission, and at the Closing Date and the Additional Closing Date, if any,
the information furnished by the Selling Stockholder to the Company expressly
for use therein, as specified in the second proviso of the second to last
sentence of Section 8(b) hereof, complied or will comply in all material
respects with the applicable provisions of the Securities Act, the Exchange Act
and the Rules and Regulations and did not and will not contain an untrue
statement of a material fact and did not and will not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein (x) in the case of the Registration Statement, not
misleading and (y) in the case of the Prospectus or any related Preliminary Prospectus
in light of the circumstances under which they were made, not misleading.
(m)
The Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to, or that could be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Shares or Additional
Shares, if any.
15
(n)
The Selling Stockholder has not distributed and will not
distribute, prior to the later of the Additional Closing Date, if any, and the
completion of the Underwriters distribution of the Shares, any offering
material in connection with the offering and sale of the Shares and the
Additional Shares, if any, by the Selling Stockholder other than a Preliminary
Prospectus, the Prospectus or the Registration Statement.
(o)
The representations and warranties of the Selling Stockholder
in its Custody Agreement and Power of Attorney are, and on the Closing Date and
Additional Closing Date, if any, will be, true and correct.
Any certificate signed by or
on behalf of the Selling Stockholder and delivered to the Representative or to
Underwriters Counsel shall be deemed to be a representation and warranty by
the Selling Stockholder to each Underwriter as to the matters covered thereby.
3.
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 $[ ], 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 the Firm Shares shall be
made by wire transfer in same day funds to or as directed 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 at 10:00 A.M., New York City time, on the third or (as
permitted under Rule 15c6-1 under the Exchange Act) the fourth business day
after the determination of the public offering price of the Shares or such
other time not later than ten business days after such date as shall be agreed
upon by the Lead Manager and the Company (such time and date of payment and
delivery being herein called the Closing Date). Certificates for the Firm
Shares shall be registered in such name or names and shall be in such
denominations as the Lead Manager may request at least two business days before
the Closing Date. The Company and the Custodian 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 Selling Stockholder hereby grants to the
Underwriters, acting severally and not jointly, the option to purchase up to
[ ]
Additional Shares at the same purchase price per share to be paid by the
Underwriters to the Company for the Firm Shares as set forth in Section 3(a),
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, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by the Lead Manager to
the Company and the Selling Stockholder.
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
16
Lead
Manager, when the Additional Shares are to be delivered (any such date and time
being herein referred to as the Additional Closing Date, except as otherwise
provided herein);
provided
,
however
,
that the Additional Closing Date shall not be earlier than the Closing Date or
earlier than the second full business day after the date on which the option
shall have been exercised nor later than the eighth full business day after the
date on which the option shall have been exercised (unless such time and date
are postponed in accordance with the provisions of Section 10 or 11
hereof). The Company and the Custodian,
on behalf of the Selling Stockholder shall permit you to examine and package
such certificates for delivery at least one full business day prior to the
Additional Closing Date.
If the option is exercised as to all or any portion of the
Additional Shares, each Underwriter, acting severally and not jointly, will
purchase that proportion of the total number of Additional Shares then being
purchased which 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 purchase hereunder, subject, however, to such
adjustments to eliminate any fractional shares as the Lead Manager in its sole
discretion shall make.
(d)
Payment of the purchase price for the Additional Shares to be
sold by the Selling Stockholder shall be made by wire transfer in Federal (same
day) funds to the Selling Stockholder or the Custodian upon delivery of the
certificates for the Additional Shares to the Representative through the
facilities of The Depository Trust Company for the respective accounts of the
Underwriters at 10:00 A.M., New York City time, on the Additional Closing Date,
or such other time as shall be agreed upon by the Lead Manager, the Company and
the Selling Stockholder. Certificates for Additional Shares shall be registered
in such name or names and shall be in such denominations as the Lead Manager
may request at least two business days prior to the Additional Closing Date.
The Selling Stockholder hereby agrees that (i) it will pay all stock transfer
taxes, stamp duties and other similar taxes, if any, payable upon the sale or
delivery of the Additional Shares to be sold by the Selling Stockholder to the
several Underwriters, or otherwise in connection with the performance of the
Selling Stockholders obligations hereunder and (ii) the Custodian is
authorized to deduct for such payment any such amounts from the proceeds to the
Selling Stockholder hereunder and to hold such amounts for the account of the
Selling Stockholder with the Custodian under the Custody Agreement and Power of
Attorney. The Company and the Custodian
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)
Deliveries of
the documents described in Section 7 hereof with respect to the purchase
of Firm Shares or Additional Shares, as the case may be, shall be made at 10:00
A.M., New York City time, at the office of Simpson, Thacher & Bartlett LLP
(Underwriters Counsel), or at such other place and time as shall be agreed
upon by the Lead Manager, the Company and the Selling Stockholder, on the
Closing Date or the Additional Closing Date, as the case may be.
4.
Offering
. Upon authorization of the release of the Firm
Shares or the Additional Shares, as the case may be, 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.
17
5.
Covenants of the Company; Covenants of the Selling
Stockholder
.
(a)
The Company covenants and agrees with the Underwriters that:
(i)
The Registration Statement and any amendments thereto have
been declared effective, and if Rule 430A is used or the filing of the
Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company
will file the Prospectus (properly completed if Rule 430A has been used)
pursuant to Rule 424(b) within the prescribed time period and will provide
evidence satisfactory to the Lead Manager of such timely filing. If the Company elects to rely on Rule 434,
the Company will prepare and file a term sheet that complies with the
requirements of Rule 434, and the Prospectus shall not be materially different
(as such term is used in Rule 434) from the Prospectus included in the
Registration Statement at the time it became effective.
The
Company will notify you immediately (and, if requested by the Lead Manager,
will confirm such notice in writing) (A) when the Registration Statement
and any amendments thereto become effective, (B) of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information, (C) of the Companys
intention to file or prepare any supplement or amendment to the Registration
Statement or the Prospectus, (D) 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, (E) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of the initiation, or the threatening, of
any proceedings therefor, it being understood that the Company shall make every
effort to avoid the issuance of any such stop order, (F) of the receipt of
any comments from the Commission, and (G) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for that purpose. If the
Commission shall propose or enter a stop order at any time, the Company will
make every reasonable effort to prevent the issuance of any such stop order
and, if issued, to obtain the lifting of such order as soon as possible. The Company will only file an amendment to
the Registration Statement or any amendment of or supplement to the Prospectus
(including the prospectus required to be filed pursuant to Rule 424(b) or Rule
434) that differs from the prospectus on file at the time of the effectiveness
of the Registration Statement that is in form and substance reasonably
satisfactory to the Lead Manager. The
Company will provide the Lead Manager with copies of all such amendments,
filings and other documents a sufficient time prior to any filing or other
publication thereof to permit the Lead Manager a reasonable opportunity to
review and comment thereon.
(ii)
The Company shall comply with the Securities Act and the
Exchange Act to permit completion of the distribution of the Shares by the
Underwriters as contemplated in this Agreement, the Registration Statement and
the Prospectus. If at any time when a
prospectus relating to the Shares is required to be delivered under the
Securities Act or the Exchange Act in connection with the sales of Shares, any
event shall have occurred as a result of which 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 the light
18
of the
circumstances existing at the time of delivery 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 Prospectus or Registration Statement the Company will notify you promptly
and prepare and file with the Commission, subject to Section 5(a)(i)
hereof, an appropriate amendment or supplement (in form and substance
satisfactory to the Lead Manager) which will correct such statement or omission
and will use its best efforts to have any amendment to the Registration
Statement declared effective as soon as possible.
(iii)
The Company will promptly deliver to each of you 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 Companys files manually
signed copies of such documents for at least five years after the date of
filing. The Company will promptly
deliver to each of the Underwriters such number of copies of any Preliminary
Prospectus, the Prospectus, the Registration Statement, and all amendments of
and supplements to such documents, if any, as you may reasonably request. Prior to 12:00 P.M., New York City time, on
the business day next succeeding the date of this Agreement and from time to time
thereafter, the Company will furnish the Underwriters with copies of the
Prospectus in New York City in such quantities as you may reasonably request.
(iv)
The Company consents to the use and delivery of the
Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b)
of the Securities Act.
(v)
The Company will use its reasonable best efforts, in
cooperation with the Lead Manager, at or prior to the time of effectiveness of
the Registration Statement, 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 and to
maintain such qualification in effect for so long as required for the distribution
thereof; except that in no event shall the Company be obligated in connection
therewith to qualify as a foreign corporation or to execute a general consent
to service of process in any jurisdiction.
(vi)
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).
(vii)
During the period of 180 days from the date of the Prospectus,
without the prior written consent of the Lead Manager the Company (A) will
not, directly or indirectly, issue, offer, sell, agree to issue, offer or sell,
solicit offers to purchase, grant any call option, warrant or other right to purchase, purchase
any put option or other right to sell, pledge, borrow or otherwise dispose of
any Relevant Security, or make any announcement of any of the foregoing,
(B) will not establish or increase any put equivalent position or
liquidate or decrease any call equivalent position (in each case within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder) with respect to
19
any
Relevant Security, and (C) will not otherwise enter into any swap,
derivative or other transaction or arrangement that transfers to another, in
whole or in part, any economic consequence of ownership of a Relevant Security,
whether or not such transaction is to be settled by delivery of Relevant Securities,
other securities, cash or other consideration; and the Company will cause each
person listed in Schedule II attached hereto to execute and deliver an
agreement, substantially in the form of
Annex VIII hereto, not to engage in any of the aforementioned transactions
on such persons own behalf, other than the sale by the Company and the Selling
Stockholder of Shares as contemplated by this Agreement and the grant and
exercise of options under, or the issuance and sale of shares of Common Stock
pursuant to, employee stock option plans in effect on the date hereof, each as
described in the Registration Statement and the Prospectus. The Company will
not file with, or submit to, the Commission a registration statement under the
Securities Act in connection with any transaction by the Company or any person
that is prohibited pursuant to the foregoing, except for registration
statements on Form S-8 relating to employee benefit plans or on Form F-4
relating to corporate reorganizations.
(viii)
The Company will make available to you (A) during the period
of five years from the effective date of the Registration Statement, copies of
all reports or other communications (financial or other) furnished to security
holders or from time to time published
or publicly disseminated by the Company and, as soon as they are
available, copies of any reports, financial statements and proxy or information statements furnished to or
filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (B), during the period of two
years from the effective date of the Registration Statement, such
additional information concerning the business and financial condition of the
Company as 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 the Subsidiaries are consolidated in reports furnished to its
security holders generally or to the Commission);
provided
that any information or documents available on
EDGAR shall be considered sufficiently made available for the purposes of this Section 5(a)(viii);
and
provided further
that the
Underwriters shall sign a confidentiality agreement, containing such customary
terms and conditions as the Company shall reasonably request, regarding any
additional information made available pursuant to Clause (B) of this Section 5(a)(viii).
(ix)
The Company will apply the net proceeds from the sale of the
Shares as set forth under the caption Use of Proceeds in the Prospectus.
(x)
The Company will use its best efforts to list the Shares on
the NYSE and will use its reasonable best efforts either (i) to maintain the
listing of the Shares on the NYSE, (ii) to list, and to maintain the listing
of, the Shares on any other national securities exchange registered pursuant to
Section 6(a) of the Exchange Act or (iii) to arrange for the quotation,
and to maintain the quotation of, the Shares in an automated interdealer
quotation system of a national securities association registered pursuant to Section 15A(a)
of the Exchange Act.
(xi)
The Company, during the period when the Prospectus is
required to be delivered under the Securities Act, will file all documents
required to be filed with
20
the
Commission pursuant to the Securities Act and the Rules and Regulations within
the time periods required thereby.
(xii)
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
.
(xiii)
The Company will not take, and will cause its affiliates
(within the meaning of Rule 144 under the Securities Act) not to take, directly
or indirectly, any action which constitutes or is designed to cause or result
in, or which would constitute, cause or result in, the stabilization or
manipulation of the price of any security to facilitate the sale or resale of
the Shares.
(b)
The Selling Stockholder covenants and agrees with each
Underwriter:
(i)
To deliver to the Representative prior to the Closing Date, a
properly completed and executed United States Treasury Department Form W-8 (if
the Selling Stockholder is a non-United States Person) or Form W-9 (if the
Selling Stockholder is a United States Person), which in each case may be
replaced by any other applicable form or statement specified by Treasury
Department regulations in lieu thereof;
(ii)
To notify promptly the Company and the Representative if, at
any time prior to the date on which the distribution of the Shares as
contemplated herein and in the Prospectus has been completed, as determined by
the Representative, the Selling Stockholder has knowledge of the occurrence of
any event as a result of which the Prospectus or the Registration Statement, in
each case as then amended or supplemented, would include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(iii)
To cooperate to the extent necessary to cause the
Registration Statement or any post-effective amendment thereto to become
effective at the earliest possible time and to do and perform all things to be
done and performed under this Agreement prior to the Closing Date and the
Additional Closing Date, if any, and to satisfy all conditions precedent to the
delivery of the Shares pursuant to this Agreement;
(iv)
To pay or to cause to be paid all transfer taxes, stamp
duties and other similar taxes with respect to the Additional Shares, if any,
to be sold by such Selling Stockholder; and
(v)
To deliver to the Lead Manager on or prior to the date of
this Agreement the lock-up agreement referred to in Section 7(h) hereof.
6.
Payment of Expenses
. Except as otherwise agreed in writing,
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
21
Statement, 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 and expenses
of the Companys counsel and accountants in connection with the registration of
the Shares under the Securities Act and the Offering; (iii) the cost of
producing this Agreement and any agreement among Underwriters, blue sky survey,
closing documents and other instruments, agreements or documents (including any
compilations thereof) in connection with the Offering; (iv) all expenses in
connection with the qualification of the Shares for offering and sale under
state or foreign securities or blue sky laws as provided in Section 5(a)(v)
hereof, including the fees and expenses of counsel for the Underwriters in
connection with such qualification and in connection with any blue sky survey;
(v) the filing fees incident to, and the fees and expenses of counsel for the
Underwriters in connection with, securing any required review by the NASD of
the terms of the Offering; (vi) all fees and expenses in connection with
listing the Shares on the NYSE; (vii) all travel expenses of the Companys
officers and employees and any other expense of the Company incurred in
connection with attending or hosting meetings with prospective purchasers of
the Shares; (viii) any stock transfer taxes incurred in connection with this
Agreement or the Offering; and (ix) the fees of the Custodian and other fees
and expenses related to the offering of Additional Shares by the Selling
Stockholder. The Company also will pay or cause to be paid: (a) the cost of preparing
stock certificates representing the Shares; (b) the cost and charges of any
transfer agent or registrar for the Shares; and (c) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 6. It is understood, however, that except as
provided in this Section, and Sections 8, 9 and 13 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. Notwithstanding anything to the
contrary in this Section 6, in the event that this Agreement is terminated
pursuant to Section 7 or 13(b) hereof, or subsequent to a Material Adverse
Change, the Company will pay all out-of pocket expenses of the Underwriters
(including but not limited to fees and expenses of counsel to the Underwriters)
incurred in connection herewith.
The Selling Stockholder will pay all fees and expenses
related to the offering of the Additional Shares to be sold by it, including
(i) the fees and expenses of its counsel, if any, and (ii) any
applicable stock transfer or other taxes related to the offering of the
Additional Shares. Notwithstanding the
foregoing, nothing herein shall affect any agreement that the Company and the
Selling Stockholder may make for the sharing or allocation of such costs and
expenses.
7.
Conditions of Underwriters Obligations
. The 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 and the Selling Stockholder
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 opinions furnished to you or to
Underwriters Counsel pursuant to this Section 7 of any misstatement or
omission, to the absence from any certificates, written statements or letters
furnished to you or to Underwriters Counsel pursuant to this Section 7 of
any misstatement or omission in the case of any statement that is qualified as
to materiality and any material misstatement or omission in the case of any
statement that is not qualified as to materiality, to the
22
performance by the Company and the
Selling Stockholder of their respective obligations hereunder, and to each of
the following additional conditions:
(a)
The Registration Statement shall have become effective and
all necessary stock exchange approvals shall have been received not later than
5:30 P.M., New York time, on the date of this Agreement, or at such later time
and date as shall have been consented to in writing by the Lead Manager; if the
Company shall have elected to rely upon Rule 430A or Rule 434 under the
Securities Act, the Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 5(a)(i) hereof and a form of the
Prospectus containing information relating to the description of the Shares and
the method of distribution and similar matters shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period; and, at
or prior to the Closing Date no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereof shall have been
issued and no proceedings therefor shall have been initiated or threatened by
the Commission.
(b)
At the Closing Date, you shall have received the written
opinion of Seward & Kissel LLP, United States 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, you shall have received the written
opinion of Seward & Kissel LLP, United States tax counsel for the Company,
dated the Closing Date, addressed to the Underwriters in the form attached
hereto as Annex II.
(d)
At the Closing Date, you shall have received the written
opinion of Seward & Kissel LLP, Marshall Islands counsel for the Company,
dated the Closing Date, addressed to the Underwriters in the form attached
hereto as Annex III.
(e)
At the Closing Date, you shall have received the written
opinion of Galindo, Arias & Lopez, Panamanian counsel for the Company,
dated the Closing Date, addressed to the Underwriters in the form attached
hereto as Annex IV.
(f)
At the Closing Date, you shall have received the written
opinion of the Law Office of GJ Timagenis, Greek counsel for the Company, dated
the Closing Date, addressed to the Underwriters in the form attached hereto as
Annex V.
(g)
At the Closing Date, you shall have received the written opinion
of Higgs & Johnson, Bahamas counsel for the Selling Stockholder, dated the
Closing Date, addressed to the Underwriters in the form attached hereto as
Annex VI.
(h)
At the Closing Date, you shall have received the written
opinion of Norton Rose, United States counsel for the Selling Stockholder,
dated the Closing Date, addressed to the Underwriters in the form attached
hereto as Annex VII.
(i)
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 written opinion,
dated the Closing Date, with respect to the issuance and sale of the Shares,
the Registration Statement and the Prospectus and such other related
23
matters as
the Lead Manager may require, and the Company and the Selling Stockholder shall
have furnished to Underwriters Counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(j)
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) the Company and the Subsidiaries have not sustained any
material loss or interference with their respective businesses or properties
from fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental
proceeding, (v) no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof has been issued and no
proceedings therefor have been initiated or threatened by the Commission, (vi)
there are no pro forma or as adjusted financial statements that are required to
be included in the Registration Statement and the Prospectus pursuant to the
Rules and Regulations that have not been included as so required and (vii)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus there has not been any material
adverse change or any development involving a prospective material adverse
change, whether or not arising from transactions in the ordinary course of
business, in or affecting (x) the business, condition (financial or otherwise),
results of operations, stockholders equity or properties of the Company and
the Subsidiaries, individually or taken as a whole; (y) the long-term debt or
capital stock of the Company or any of its Subsidiaries; or (z) the Offering or
consummation of any of the other transactions contemplated by this Agreement,
the Registration Statement and the Prospectus.
(k)
At the time this Agreement is executed and at the Closing
Date, you shall have received a comfort letter, from Ernst & Young (Hellas)
Certified Auditor Accountants S.A., independent registered public accountants
for the Company, dated, respectively, as of the date of this Agreement and as
of the Closing Date, addressed to the Underwriters and in form and substance
satisfactory to the Lead Manager and Underwriters Counsel.
(l)
At the time this Agreement is executed and at the Closing
Date, you shall have received a comfort letter from the Company, signed by the
Chief Executive Officer and Chief Financial Officer of the Company, dated,
respectively, as of the date of this Agreement and as of the Closing Date,
addressed to the Underwriters and in form and substance satisfactory to the
Lead Manager and Underwriters Counsel.
(m)
Subsequent to the execution and delivery of this Agreement
or, if earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been any change in the capital
stock or long-term debt of the Company or any Subsidiary or any change or
development involving a change, whether or not arising from transactions in the
ordinary course of business, in the business, condition (financial or otherwise),
results of operations, stockholders equity or properties of the Company and
the Subsidiaries, individually
24
or taken as
a whole, including but not limited to the occurrence of any fire, flood, storm,
explosion, accident or other calamity at any of the properties owned or leased
by the Company or any of its Subsidiaries, the effect of which, in any such
case described above, is, in the judgment of the 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 Prospectus (exclusive of any
supplement).
(n)
You shall have received a duly executed lock-up agreement
from each person listed in Schedule II attached hereto, in each case
substantially in the form attached hereto as Annex VIII.
(o)
At the Closing Date, the Shares shall have been approved for
listing upon notice of issuance on the NYSE.
(p)
At the Closing Date, the NASD shall have confirmed that it
has no objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(q)
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.
(r)
At the Closing Date, you shall have received a certificate of
an authorized representative of the Selling Stockholder, dated the Closing
Date, to the effect that the representations and warranties of the Selling Stockholder
set forth in Section 2 hereof are accurate and that the Selling
Stockholder has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date.
(s)
On or prior to the Closing Date, you shall have received a
properly completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof) from the Selling Stockholder.
(t)
At the Closing Date, the Supplemental Agreement, dated February [ ], 2005, to the Share Purchase and
Subscription Agreement in Relation to Diana Shipping Investment Corp., dated December 30, 2002,
among Ironwood Trading Corp., Zoe S. Company Ltd., Corozal S.A., the Company
and the Executives party thereto shall be in full force and effect and shall
not have been amended, modified or supplemented without the prior written
consent of the Lead Manager.
(u)
The Company and the Selling Stockholder 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
25
or letters furnished to you
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 at, or at any time prior to, the Closing Date and the obligations
of the Underwriters to purchase the Additional Shares may be cancelled by the
Lead Manager at, or at any time prior to, the Additional Closing Date. Notice of such cancellation shall be given to
the Company in writing, or by telephone.
Any such telephone notice shall be confirmed promptly thereafter in
writing.
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, 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(e)
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 any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, as
originally filed or any amendment thereof, or any related Preliminary
Prospectus or the Prospectus, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading;
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 (i) any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity
with information furnished to the Company by or on behalf of any Underwriter
expressly for use therein or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with information furnished to the Company by or on behalf of the
Selling Stockholder expressly for use therein. The parties agree that such
information provided by or on behalf of any Underwriter consists solely of the
material specified in the last sentence of Section 1(b) hereof and that
such information provided by or on behalf of the Selling Stockholder consists solely of the material specified in
the second proviso of the second to last sentence of Section 8(b) 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.
The foregoing indemnity agreement
with respect to any Preliminary Prospectus shall not inure to the benefit of
any Underwriter who failed to deliver a Prospectus (as then amended or
supplemented, provided by the Company to the several Underwriters in the
requisite quantity and on a timely basis to permit proper delivery on or prior
to the Closing Date) to the person asserting any losses, claims, damages and
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, if such material misstatement or omission or alleged material
misstatement or omission was cured, as determined by a court of competent
jurisdiction in a decision not subject
26
to further appeal, in such
Prospectus and such Prospectus was required by law to be delivered at or prior
to the written confirmation of sale to such person.
(b)
The Selling
Stockholder shall indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act against any and
all losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to reasonable 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(e) 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 any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Shares, as
originally filed or any amendment thereof, or any related Preliminary
Prospectus or the Prospectus, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading;
provided, however,
that the Selling Stockholder 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 information furnished to the Company by or on behalf of any
Underwriter expressly for use therein
(as specified in the last sentence of Section 1(b) hereof);
provided further
,
however
, that
such Selling Stockholder will be liable in each case to the extent but only to
the extent that any such loss, liability, claim, damage or expense arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder
expressly for use therein, it being agreed that the only such information is
that which is included in the Prospectus (i) in the first sentence under the
table on the cover page, (ii) in the last sentence of the third bullet point
under the heading BusinessOur Competitive Strengths, (iii) under the heading
Principal Stockholders insofar as such information relates to Fortis Bank
(Nederland) N.V. or Zoe S. Company Ltd. and (iv) under the heading Underwriting
in (a) the first, fourth and sixth sentences of the fourth paragraph, (b) the
second table insofar as such information relates to the Selling Stockholder,
(c) the first three sentences of the seventeenth paragraph, (d) the portion of
the second sentence of the nineteenth paragraph that relates to Fortis
Securities LLCs affiliation with the Selling Stockholder and (d) the twentieth
paragraph. This indemnity agreement will be in addition to any liability that
any Selling Stockholder may otherwise have including under this Agreement;
provided
,
however
, that in no case shall the Selling Stockholder be liable or
responsible for any amount in excess of the product of (i) the number of
Additional Shares sold by such Selling Stockholder and (ii) the initial
public offering price of the Shares as set forth in the Prospectus, net of
underwriting discounts and commissions.
(c)
Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, the Selling Stockholder, 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
27
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 provided that such settlement is effected in
accordance with Section 8(e) 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 any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, as originally filed or any amendment thereof, or any related
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent, but
only to the extent, that 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 to the Company by or on behalf of any
Underwriter specifically for use therein;
provided
,
however
, that in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Shares to be purchased by such Underwriter hereunder. The parties agree that such information
provided by or on behalf of any Underwriter consists solely of the material
specified in the last sentence of Section 1(b) hereof. This indemnity will
be in addition to any liability which any Underwriter may otherwise have,
including but not limited to other liability under this Agreement.
(d)
In addition to and without limitation of the Companys and
the Selling Stockholders obligation to indemnify the QIU as an underwriter
pursuant to subsection (a) above, the Company and the Selling Stockholder
also agrees to indemnify and hold harmless the QIU and each person, if any, who
controls the QIU within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred as a result of
the QIUs participation in the Offering as a qualified independent underwriter
within the meaning of Rule 2720 of the Conduct Rules of the NASD. This indemnity agreement will be in addition
to any liability which the Selling Stockholder may otherwise have, including
under this Agreement. 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.
(e)
Promptly after receipt by an indemnified party under subsection (a),
(b), (c) or (d) 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 (except to the extent that the indemnifying party is materially
prejudiced as a result thereof and is not otherwise aware of the claim or
litigation in respect of which indemnification is sought) and in any event
shall not relieve it from any liability that such indemnifying party may have
otherwise than on account of the indemnity agreement hereunder). In case any such claim or action is brought
against any indemnified party, and it notifies an indemnifying party of the
28
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; and
provided, further
,
that if indemnity is sought pursuant to Section 8(d) hereof, then, in
addition to the fees and expenses of such counsel for the indemnified parties,
the indemnifying party shall be liable for the reasonable fees and expenses of
not more than one counsel (in addition to any local counsel) separate from its
own counsel and that of the other indemnified parties for the QIU in its capacity
as a qualified independent underwriter and all persons, if any, who control
the QIU within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances if, in the reasonable judgment of the QIU, there
may exist a conflict of interest between the QIU and the other indemnified
parties. Any such separate counsel for
the QIU and such control persons of the QIU shall be designated in writing by
the QIU. 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 (x) such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out
of such claim, investigation, action or proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or any failure to act, by
or on behalf of the indemnified party, and (y) the indemnifying party confirms
in writing its indemnification obligations hereunder with respect to such settlement,
compromise or judgment.
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 Selling Stockholder on the one hand and the Underwriters on the other
hand shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision
(including any investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or
29
proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company and the Selling Stockholder, any contribution received by the Company
and the Selling Stockholder from persons, other than the Underwriters, who may
also be liable for contribution, including persons who control the Company or
the Selling Stockholder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, officers of the Company who signed
the Registration Statement and directors of the Company) as incurred to which
the Company, the Selling Stockholder 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 and the Selling Stockholder on the one hand and the
Underwriters on the other hand from the Offering or, if such allocation is not
permitted by applicable law, in such proportions as are appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company and the Selling Stockholder on the one hand and the Underwriters on
the other hand in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative
benefits received by the Company and the Selling Stockholder on the one hand
and the Underwriters on the other hand shall be deemed to be in the same
proportion as (x) the total proceeds from the Offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company and the Selling Stockholder 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 the Selling Stockholder on
the one hand and of the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Stockholder on
the one hand or the Underwriters on the other hand and the parties relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company,
the Selling Stockholder and the Underwriters agree that Bear Sterns will not
receive any additional benefits hereunder for serving as the QIU in connection
with the Offering, except as provided in Section 8 of this Agreement. The Company, the Selling Stockholder and the
Underwriters further 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 9. 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, (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 and (iii) the Selling
Stockholder shall not be required to
30
contribute an amount in excess of the product of (A) the
number of Additional Shares sold by the Selling Stockholder and (B) the
initial public offering price of the Shares as set forth in the Prospectus, net
of underwriting discounts and commissions. 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 and the Selling
Stockholder, as applicable, subject in each case to clauses (i), (ii) and (iii)
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 Company and the Selling Stockholder to contribute
pursuant to this Section 9 are several and not joint. 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 its 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 its 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 does 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 Selling Stockholder to sell the Additional
Shares, shall thereupon terminate, without liability on the part of the Company
or the Selling Stockholder with respect thereto (except in each case as
provided in Sections 6, 8, 9, 12 and 13) 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.
31
(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.
Selling Stockholder Default.
(a)
If the Selling Stockholder shall default in its obligation to
sell and deliver any Additional Shares hereunder on the Closing Date, then the
Lead Manager may, by notice to the Company and the Selling Stockholder,
terminate this Agreement without any liability on the part of any
non-defaulting party except that the provisions of Sections 1, 2, 6, 8, 9, 12
and 13 hereof shall remain in full force and effect. If the Selling Stockholder
shall default in its obligation to sell and deliver any Additional Shares
hereunder at any time after the Closing Date, then the Lead Manager may, by
notice to the Company and the Selling Stockholder, terminate this Agreement
without any liability on the part of any non-defaulting party except that the
provisions of Sections 1, 2, 5, 6, 8, 9, 12 and 13 hereof, and the provisions
of Section 3 hereof that relate to the purchase of the Firm Shares by the
Underwriters and the provisions of Section 7 hereof that relate to the
conditions to the Underwriters obligations to purchase and pay for the Firm
Shares, shall remain in full force and effect.(1) No action taken pursuant to
this Section 11 shall relieve any Selling Stockholder so defaulting from
liability, if any, in respect of such default.
(b)
In the event that the Selling Stockholder shall default in
its obligation to sell and deliver any Additional Shares hereunder and the
Company and the Underwriters agree to proceed with the Offering, then the
Underwriters may, at the option of the Lead Manager, or the Company shall have
the right, in each case by notice to the other, to postpone the Closing Date or
Additional Closing Date, as the case may be, for a period not exceeding five
business days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement 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 in form and
substance reasonably satisfactory to Underwriters Counsel that may thereby be
made necessary or advisable; and in no event shall the Company be obligated to
increase the number of Shares it is required to sell hereunder.
12.
Survival of Representations and Agreements
. All representations
and warranties, covenants and agreements of the Underwriters, the Company and
the Selling
(1)
Assumes
that the Selling Stockholders maximum number of Additional Shares will be
irrevocably deposited with the transfer agent as Custodian (together with an
executed stock power or endorsed to blank) at the time of signing of the
Underwriting Agreement.
32
Stockholder contained in this Agreement or in certificates of
officers of the Company or of the Selling Stockholder submitted pursuant
hereto, including the agreements contained in Section 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 or the
Selling Stockholder, any of their 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 Sections 1 and 2 and the agreements contained in Sections 6, 8, 9,
12 and 13 hereof shall survive any termination of this Agreement, including
termination pursuant to Section 10, 11 or 13 hereof.
13.
Effective Date of Agreement; Termination
.
(a)
This Agreement shall become effective upon the execution of
this Agreement. If either the public
offering price or the purchase price per Share has not been agreed upon prior
to 5:00 P.M., New York City time, on the fifth full business day after the
Registration Statement shall have become effective, this Agreement shall
thereupon terminate without liability to the Company, the Selling Stockholder
or the Underwriters except as herein expressly provided that, notwithstanding
any termination of this Agreement pursuant to this Section 13, the
provisions of this Section 13 and of Sections 1, 2, 6, 8, 9, 12 and 14
through 19, inclusive, shall be in full force and effect at all times after the
execution hereof.
(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 (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 Companys securities or securities in general; or (ii) if trading on The
New York Stock Exchange (the NYSE) shall have been suspended or been made
subject to material limitations, or minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices for securities shall have been
required, on the NYSE or by order of the Commission or any other governmental
authority having jurisdiction; or (iii) if a banking moratorium has been
declared by any state or federal authority or if any material disruption in
commercial banking or securities settlement or clearance services shall have
occurred; or (iv) in the judgment of the Lead Manager, any Material Adverse
Change shall have occurred since the respective dates as of which information
is given in the Prospectus; or (v) (A) if there shall have occurred any
outbreak or escalation of hostilities or acts of terrorism involving the United
States or there is a declaration of a national emergency or war by the United
States or (B) if there shall have been any other calamity or crisis or any
change in political, financial or economic conditions if the effect of any such
event in (A) or (B), in the judgment of the 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 13
shall be in writing.
33
(d)
If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than pursuant to (i) notification by the Lead Manager
as provided in Section 13(a) hereof or (ii) Section 10(b) hereof), or
if the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
the Company will, subject to demand by the Lead Manager, reimburse the
Underwriters for all out-of-pocket expenses (including the fees and expenses of
their counsel), incurred by the Underwriters in connection herewith.
14.
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 Bear, Stearns & Co.
Inc., 383 Madison Avenue, New York, New York 10179, Attention: Stephen Parish, Senior Managing Director,
Equity Capital Markets, with a copy to Underwriters Counsel at Simpson Thacher
& Bartlett LLP, 425 Lexington Avenue, New York, New York 10017, Attention:
Gary Sellers;
(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: Mr. Anastassis Margaronis, President,
Diana Shipping Inc., Pendelis 16, 175 64 Palaio Faliro, Athens, Greece, with a
copy to its counsel, Seward & Kissel LLP, One Battery Park Plaza, New York,
New York 10004, Attention: Gary Wolfe;
(c)
if sent to the Selling Stockholder, shall be mailed,
delivered, or faxed and confirmed in writing to the Attorneys-in-Fact, [
Selling Stockholders notice address to be inserted
];
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 Bear Stearns, which address will be supplied to any other party
hereto by Bear Stearns upon request. Any such notices and other communications
shall take effect at the time of receipt thereof.
15.
Parties
. This Agreement shall inure solely to the
benefit of, and shall be binding upon, the Underwriters, the Company and the
Selling Stockholder 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.
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16.
Governing Law and Jurisdiction; Waiver of Jury Trial
.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
Each of the Company and the Selling Stockholder
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 & Kissel LLP, One
Battery Park Plaza, New York, New York 10004 as agent upon whom process against
the Company may be served. The Selling Stockholder hereby irrevocably
designates Seward & Kissel LLP, One Battery Park Plaza, New York, New York
10004 as agent upon whom process against the Selling Stockholder may be served.
EACH OF THE COMPANY AND THE SELLING STOCKHOLDER HEREBY WAIVES 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.
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 Commissions 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]
35
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.
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Very truly
yours,
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DIANA
SHIPPING INC.
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By:
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Name:
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Title:
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ZOE S. COMPANY
LTD.
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By:
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Name:
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Title:
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Accepted as of
the date first above written
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BEAR, STEARNS
& CO. INC.
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By:
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Name:
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Title:
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On behalf of
itself and the other
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Underwriters
named in Schedule I hereto.
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36
SCHEDULE I
Underwriter
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Total Number of Firm
Shares to be Purchased
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Number of Additional
Shares to be Purchased if
Option is Fully Exercised
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Bear, Stearns & Co. Inc.
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Jefferies & Company, Inc.
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UBS Securities LLC
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Fortis Securities LLC
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Total
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SCHEDULE II
Mr.
Simeon Palios
Mr.
Anastassis Margaronis
Mr.
Konstantinos Koutsomitopoulos
Mr.
Ioannis Zafirakis
Mr.
Evangelos Monastiriotis
Mr.
Boris Nachamkin
Mr.
Apostolos Kontoyannis
Mr.
Konstantinos Psaltis
Mr.
William Lawes
Corozal
Compania Naviera S.A.
Ironwood
Trading Corp.
Zoe
S. Company Ltd. (co-signed by Mass Capital Investments)
SCHEDULE III
Husky Trading S.A.
Panama Compania Armadora
S.A.
Skyvan Shipping Company S.A.
Buenos Aires Compania
Armadora S.A.
Eaton Marine S.A.
Chorrera Compania Armadora
S.A.
Cypres Enterprises Corp.
Urbina Bay Trading S.A.
Darien Compania Armadora
S.A.
Texford Maritime S.A.
Changame Compania Armadora
S.A.
Cerada
International S.A.
ANNEX I
Form of Opinion of the Companys United
States Counsel
ANNEX II
Form of Opinion of the Companys United
States Tax Counsel
2
ANNEX III
Form of Opinion of the Companys Marshall
Islands Counsel
3
ANNEX IV
Form of Opinion of the Companys Panamanian Counsel
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ANNEX V
Form of Opinion of the
Companys Greek Counsel
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ANNEX VI
Form of Opinion of the Selling Stockholders Bahamas Counsel
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ANNEX VII
Form of Opinion of the Selling Stockholders United States Counsel
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ANNEX VIII
Form of Lock-Up Agreement
March [ ], 2005
Bear,
Stearns & Co. Inc.
As Representative of the several
Underwriters referred to below
c/o
Bear, Stearns & Co. Inc.
383
Madison Avenue
New
York, New York 10179
Attention:
Equity Capital Markets
Diana Shipping Inc. Lock-Up Agreement
Ladies
and Gentlemen:
This letter agreement (this Agreement) relates to
the proposed public offering (the Offering) by Diana Shipping Inc., a
corporation validly existing under the laws of the Republic of the Marshall
Islands (formerly, Diana Shipping Investment Corp.) (the Company), of its of
its common stock, par value $.01 per share (the Stock).
In order to induce you and the other underwriters
for which you act as representative (the Underwriters) to underwrite the
Offering, the undersigned hereby agrees that, without the prior written consent
of Bear, Stearns & Co. Inc. (Bear Stearns), during the period from the
date hereof until one hundred eighty (180) 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.
The undersigned hereby authorizes the Company during
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 to
8
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 Bear Stearns, during the Lock-up Period the undersigned (x) will not
file or submit or participate in the filing with or submission to 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 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.
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.
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Very truly yours,
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By:
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Print Name:
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9
EXHIBIT I
Form of Custody Agreement
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EXHIBIT II
Form of Power of Attorney
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Exhibit
10.5
THIS
AGREEMENT is dated and
made
BETWEEN:
(1) ,
a company duly incorporated in the Republic of and
having established an office in Greece ( )
pursuant to Law 89/1967 as replaced and in force, legally represented by (hereinafter
called the Managers); and
(2) ,
a company duly incorporated in the Republic of and
having its registered office at (hereinafter
called the Company).
AND
IT IS HEREBY AGREED as follows:
1. (
Representations
).
1.1. Each of the contracting parties
represents and warrants that it has been incorporated and duly organised and
validly existing and in good standing under the laws of its respective country
of incorporation and that the legal representative signing for the respective
party has been duly authorised by the proper corporate body for the execution
of this Agreement.
1.2. The Company represents and warrants to
the Managers that it is (and/or that on closing will be) the parent company,
holding 100% of the share capital of the companies (the Owners) listed below
owing the vessel indicated below next to the name of the respective Owner:
(a)
registered owner of m/v
under
flag, grt
tons, net
tons;
(b)
registered owner of m/v
under
flag, grt
tons, net
tons; and
(c)
registered owner of m/v
under
flag, grt
tons, net
tons.
The above vessels are hereinafter called
collectively the Vessels.
1.3. The Company is in the process of
preparing the file to be submitted together with the application for the
listing of its shares on the New York Stock Exchange and this Agreement is
signed within the context of the said file.
2. (
Appointment of Managers
).
2.1. The Company hereby appoints and
undertakes to ensure that the Owners will appoint and/or renew the appointment
of the Managers as managers of the Vessels and the Managers hereby agree to act
as the manager of the Vessels pursuant to the terms of this Agreement and shall
carry out the management services with sound shipmanagement practice and the
specific terms and conditions set out in the management agreement attached
hereto as Appendix A (the terms of which will constitute substantially the
terms of the specific management agreements to be made between each Owner and
the Managers (the Management Agreements)). In case that the Company becomes
the parent company of other Owners whether such Owners have Vessels in
operation or under construction, the Company shall appoint the Managers (and it
shall procure and ensure that these Owners will appoint the Managers as)
managers of such new Vessels and Owners under the same terms.
1
3. (
Management services
).
3.1. Pursuant to the terms of the Management
Agreements, the Managers shall provide the Owners with suitable qualified crew,
technical management and commercial management for the Vessels and shall
arrange for insurances to be obtained for the Vessels, shall arrange so that an
accounting system be established so as to meet the requirements of the Owners
and provide regular accounting services and shall present on an annual basis
for approval by the Owners a budget for the following twelve (12) months and
shall arrange for the supply of provisions, bunker fuel and lubricants and
generally will provide all such management services which are referred to in
Appendix A and which will be included in the Management Agreements.
3.2. It is specifically agreed that the
Managers will arrange, in accordance with the Owners instructions supervise
the sale or purchase of the Vessels, and shall provide the commercial operation
of the Vessels, as required by the Owners, including but not limited to the
chartering services and the employment of the Vessels in general, arranging for
the proper payment to Owners of the hire and/or other moneys to which Owners
may be entitled out of the employment of the Vessels.
3.3. The Managers in the context of the
management services in relation to the Vessels will act vis-à-vis third parties
as agent acting in the name and on behalf of the Owners. The Managers shall
have the power to carry out such services incidental to the management services
as the Managers, at their sole discretion, shall consider necessary. The
responsibility of the Managers vis-à-vis the respective Owner is set out in the
specific terms and conditions of the respective Management Agreement.
4. (
Obligations of the Managers
).
4.1. The Managers undertake to comply with
all the terms of the Management Agreement and to manage the Vessels in
compliance with the rules and regulations applied to the Owners and so as to
enable the Owners and the Company to comply with any act, regulation including
but not limited to any act regulating the listing of shares of the Company on
the New York Stock Exchange and any other related legislation to the extent
that the provisions thereof apply to the Management Services.
4.2. In compliance with the above, the
Managers undertake to keep books and information, to draw the financial
statements required, make reports and provide the internal and independent
auditors of the Owners and/or of the Company with such information and
documents as may reasonably required by them in relation to the Management
Agreements and in particular with the accounting services referred to in Clause
3.5 of the Management Agreements, services relating to the establishment of the
budgets and the management of funds in accordance with Clause 9 of the
Management Agreements, the income of the Vessels to be collected and the
expenses to be paid on behalf of the Owners.
4.3. The Company will remain liable vis-à-vis
the New York Stock Exchange, the Security Commission and other bodies as well
as vis-à-vis the investors in respect of the compliance of its obligations in
accordance with any act, regulation, including but not limited to any act
regulating the listing of shares of companies on the New York Stock Exchange
and will notify the Managers of any announcement, publication or any other
action required to be made or prepared by the Managers under law.
4.4. The Managers shall also perform any
other managerial functions and/or duties which are necessary for the
performance by the Company of any of its obligations under the rules or
regulations applicable to it especially those connected with its listing on the
New York Stcok Exchange.
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4.5. The Managers shall provide free of
charge office space and secretarial facilities to the Officers and Executives
of the Company allowing them to perform their duties to the Company.
5. (
Remuneration
).
5.1. The Remuneration of the Managers for the
management of the Ships shall be fixed in the Management Agreements.
6. (
Notices
).
6.1.
Every notice, request, demand or other communication under this Agreement shall
be in writing, delivered personally or by fax or shall be served through a
process server to the address specified at the beginning of this Agreement.
7. (
Governing Law and Arbitration
).
(a) This Agreement shall be governed by and
construed in accordance with English law and any dispute arising out of or in
connection with this Agreement shall be referred to arbitration in London in
accordance with the Arbitration Act 1996 or any statutory modification or
re-enactment thereof save to the extent necessary to give effect to the
provisions of this Clause.
(b) The arbitration shall be construed in
accordance with the London Maritime Arbitrators Association (LMAA) Terms
current at the time when the arbitration proceedings are commenced.
(c) The reference shall be to three
arbitrators. A party wishing to refer a dispute to arbitration shall appoint
its arbitrator and send notice of such appointment in writing to the other
party requiring the other party to appoint its own arbitrator within 14
calendar days of that notice and stating that it will appoint its arbitrator as
sole arbitrator unless the other party appoints its own arbitrator and gives
notice that it has cone so within the 14 days specified. If the other party
does not appoint its own arbitrator and give notice that it has done so within
the 14 days specified, the party referring a dispute to arbitration may,
without the requirement of any further prior notice to the other party, appoint
its arbitrator as sole arbitrator and shall advise the other party accordingly.
The award of a sole arbitrator shall be binding on both parties as if he had
been appointed by agreement. Nothing herein shall prevent the parties agreeing
in writing to vary these provisions to provide for the appointment of a sole
arbitrator.
(d) In cases where neither the claim nor any
counterclaim exceeds the sum of USD 50,000 (or such other sum as the parties
may agree) the arbitration shall be conducted in accordance with the LMAA Small
Claims Procedure current at the time when the arbitration proceedings are
commenced.
IN
WITNESS whereof the parties hereto have caused this Agreement to be duly
executed the day and year first above written.
SIGNED
by
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for
and on behalf of
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the
Managers
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SIGNED
by
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for
and on behalf of
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the
Company
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3
Appendix 1
THIS AGREEMENT
is
made the [ ] of [ ] 2004
between [ ], whose Registered Office is at [ ] (hereinafter called the Owners), of the
one part and
DIANA SHIPPING SERVICES S.A.,
whose
Registered Office is at Edificio CENTRO MAGNA CORP., Ave. Manuel Ma. de Ycaza
y Calle 51, Panama, Republic of Panama (hereinafter called the Manager), of
the other part,
WHEREBY IT IS MUTUALLY AGREED BY AND BETWEEN
THE
PARTIES AS FOLLOWS: -
1.
THE OWNERS hereby appoint the Manager, and the Manager hereby agrees
to act, as sole and exclusive manager of the vessel more particularly described
in the Schedule hereto (hereinafter called the Ship) for the period and
on and subject to the terms and conditions hereinafter contained.
2.
THE MANAGER undertakes to use its best endeavours to manage the Ship
on behalf of the Owners in accordance with sound ship management practice and
to promote the interests of the Owners in all matters relating to the efficient
operation and management of the Ship PROVIDED, HOWEVER, that the Manager shall
not be required so to exercise its powers hereunder as to give preference in
any respect to the Owners, it being understood and agreed that the Manager
shall so far as practicable ensure a fair distribution of available manpower,
supplies, and services to all vessels managed by it.
3.
THE
MANAGER shall provide the
management services specified hereunder and shall have power in the name of the
Owners or otherwise on their behalf to do all things which the Manager consider
to be expedient or necessary for the provision of the said services or
otherwise in relation to the proper and efficient management of the Ship:-
(a)
Arrangement for and supervision
of the maintenance, survey, and repair of the Ship;
(b)
Engagement and provision of crew (Masters, Officers, and ratings)
and attendance to all matters pertaining to discipline, labour relations,
welfare, and amenities;
(c)
Arrangement for victualling and
storing of the Ship and placing of contracts relative thereto;
(d)
Arrangement of bunker fuel and towage contracts for the Ship;
(e)
Arrangement of loading and discharging and otherwise for services
required in connection with the trading of the Ship;
(f)
Appointment of agents for the
Ship;
(g)
Arrangement (in consultation with the Owners) of all insurance
relating to the Ship and her apparel, fittings, freights, earnings, and
disbursements against the customary marine and war risks;
(h)
Arrangement (in accordance with instructions from the Owners) for
entry of the Ship in Protection and Indemnity, Defence, and other such
Associations;
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(i)
Handling and settlement of all insurance, average, salvage, and
other claims in connection with the Ship;
(j)
To deposit any and all earnings of the Ship of any nature
whatsoever, including but not limited to charter money, hire, freight,
demurrage, damages, salvage money, etc., with bank accounts as specified by the
Owners; and
(k)
Payment on behalf of the Owners of all expenses incurred in and
about provision of the foregoing services or otherwise in relation to the
proper and efficient management of the Ship.
PROVIDED HOWEVER that the Manager shall not
be concerned in any manner whatsoever with the conduct or conclusion of
negotiations for the making of charter-parties or other contracts relating to
the employment of the Ship, the power to conduct and conclude all such
negotiations being hereby expressly and exclusively reserved to the Owners,
PROVIDED that if the Owners intend to employ
the Ship in any trade or service which in the reasonable opinion of the Manager
maybe detrimental to its reputation as Manager or prejudicial to the commercial
interests of the Manager, the Owners shall consult with the Manager before the
Ship is fixed, and the Manager shall have the right to terminate this agreement
at any time in the event that the fixture is concluded against its wishes and
advice.
4.
THE MANAGER shall (without prejudice to the generality of the powers
vested in them as aforesaid) be entitled:
(a)
To employ on behalf of the Owners any such agent for the Ship or
insurance brokers as the Manager may deem fit, including any associated,
subsidiary, or holding company of the Manager;
(b)
To employ on behalf of the Owners consultants and other experts, including
any associated, subsidiary, or holding company of the Manager, to supervise or
advise in relation to the operation and maintenance of the Ship;
(c)
To open, continue, and operate such banking account or accounts as
the Manager may deem necessary or expedient;
(d)
To use any funds of the Owners remaining after payment of all
expenses of the Owners and the Ship for providing loans from the Owners to any
of [ ], such loans to be always on terms acceptable to the Owners,
their immediate and ultimate shareholders and the Owners lenders, if any;
(e)
To bring or defend on behalf of the Owners actions, suits, or
proceedings in connection with all matters hereby entrusted to the Manager; and
(f)
To obtain legal advice in relation to disputes or other matters
affecting the interests of the Owners in respect of the Ship.
5.
THE MANAGER shall keep proper books, records, and accounts relating
to the management of the Ship and shall make the same available for inspection
and audit by Certified Public Accounts,
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Chartered Accountants, or other suitably
qualified accountants on behalf of the Owners at such reasonable times as may
be mutually agreed.
6.
THIS CONTRACT is agreed for a non-specific period of time, provided
that it may be terminated by either party giving 3 (three) months notice at
any time and without any justification but always in writing, PROVIDED HOWEVER
that the Owners shall have the right to terminate
the contract without notice against the payment to the Manager of damages equal
to the average management fees paid to it during the last 3 (three) months
before termination. Either party shall have the right (but not be bound) to
terminate the contract without liability for damages in either of the following
events:-
(a)
The Ship shall become an actual, comprised, constructive, or
arranged total loss or be sold or otherwise disposed of or cease to be in the
despondent ownership of the Owners; or
(b)
If an order be made or resolution be passed for the winding up of
the other party (otherwise than a winding up for the purpose of reconstruction
or amalgamation), or if a receiver be appointed of the undertaking or property
of the other party, or if the other party shall suspend payment or cease to carry
on business or make any special arrangement or composition with its creditors.
7.
THE MANAGEMENT FEES under this contract are fixed to 2% (two per
centum) on hire and on freight of the gross income of the Ship plus US$
15,000.00 (fifteen thousand United States dollars only) per month.
8.
(a)
THE MANAGER shall at its own expense provide all office
accommodation, equipment, stationery, and staff ordinarily required for the
provision of the services hereby contracted for.
(b)
The Owners shall reimburse the Manager in respect of:-
i.
Expenditure incurred in and about the maintenance, survey, and
repair of the Ship;
ii.
Wages and all other payments made to or in respect of the crews of
the Ship (including pension and insurance contributions, travelling and
accommodation expenses or allowances, and all costs of repatriation, whether
incurred before or after the determination of this agreement);
iii.
Travelling, accommodation, and other expenses incurred in respect of
or paid to any superintendents or officers or servants of the Manager in
connection with the performance of the services hereby contracted for; and
iv.
Any expenses in connection with any legal and/or special technical and/or
other assistance that may be obtained by the Manager in connection with the
performance of the management services. The Manager are hereby authorised to
use funds of the Owners in their hand for settlement of any claim of the
Manager out of the management
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of the Ship in priority of any other claim against the Ship and the
Owners.
9.
EXPENSES AND DISBURSEMENTS
incurred by
the Manager for the Ship will be paid to it by the Owners upon request.
10.
THE MANAGER is hereby authorized to act for and on behalf of the
Owners, as well as to represent the Owners before any and all Greek courts
and/or authorities, including port authorities in particular, with full powers
in respect of all the rights of the Owners, including but not limited to the
rights to accepting service of any document destined for the Owners, signing
contracts of any nature whatsoever, starting legal proceedings of any nature
and terminating them by compromise or any other method, repudiating contracts,
and settling claims of the Owners by compromise provided this is to the
interest of the Owners.
11.
ARBITRATION CLAUSE
In case any dispute or difference shall arise
between the Owners and the Manager as to the construction, meaning, and effect
of anything herein contained, such dispute or difference shall be referred to 2
(two) arbitrators in London, England, to be appointed by the Owners and the
Manager respectively and in case of their disagreement to an umpire to be
appointed by the 2 (two) arbitrators as chosen, and this agreement shall be
deemed to be a submission to arbitration within the meaning of the Arbitration
Act 1950 or any statutory modification or re-enactment thereof for the time
being in force. The decisions of the 2 (two) arbitrators
or
the umpire, as the case may be, shall be final and binding upon both parties.
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THIS AGREEMENT
shall be
governed by English law in the English courts.
13.
(a)
ANY NOTICE which the Manager may require to give to the Owners shall
be validly given if sent to the Owners at [
].
(b)
ANY NOTICE which the Owners may wish to give to the Manager shall be
validly given if sent to the Manager at Pendelis 16, 175 64 Palaio Faliro,
Athens, Greece
(c)
NOTICES required to be given in writing may be given by letter,
telex, fax, or e-mail.
14.
IF THIS AGREEMENT
shall be translated
into different languages and any difference shall arise in the texts, the
English text shall prevail and shall constitute the terms of the agreement.
15.
THIS MANAGEMENT AGREEMENT
is to be
executed in duplicate, 1 (one) for the Owners and 1 (one) for the Manager.
THE SCHEDULE above referred to:
[Ship Information]
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IN WITNESS whereof this agreement has been
signed on behalf of the parties hereto by persons duly authorised the day and
year first above written.
SIGNED by
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SIGNED by
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for and on behalf of
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for and on behalf of
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[ ]
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DIANA SHIPPING SERVICES S.A.
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(the Owners)
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(the Manager)
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in the presence of:
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in the presence of:
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8