As
filed with the Securities and Exchange Commission on May 22, 2007
Registration
No.
333-
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
_____________________
FORM
F-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
_____________________
DOUBLE
HULL TANKERS, INC.
(Exact
name of registrant as specified in its charter)
_____________________
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Republic
of the Marshall Islands
(State
or other jurisdiction of incorporation or organization)
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26
New Street
St.
Helier, Jersey JE23RA
Channel
Islands
+44
(0) 1534 639759
(Address
and telephone number of
registrant’s
principal executive offices)
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N/A
(I.R.S.
Employer
Identification
Number)
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_____________________
CT
Corporation
111
Eighth Avenue
New
York, New York 10011
(212)
550-9100
(Name,
address and telephone
number
of
agent for service)
With
copies to:
|
John
T. Gaffney, Esq.
Cravath,
Swaine & Moore LLP
Worldwide
Plaza
825
Eighth Avenue
New
York, New York 10019
(212)
474-1000
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Gary
L. Sellers, Esq.
Simpson
Thacher & Bartlett LLP
425
Lexington Avenue
New
York, New York 10017-3954
(212)
455-2000
|
_____________________
Approximate
date of commencement of proposed sale to the public: From time to
time after the effective date of this registration
statement.
_____________________
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, please
check the following box. x
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 registration statement pursuant to General Instruction I.C. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.C. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act,
check the following box. o
_____________________
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of
Securities
to be Registered
|
Amount
to be
Registered |
Proposed
Maximum
Offering Price per Unit(1) |
Proposed
Maximum
Aggregate Offering Price(2) |
Amount
of
Registration Fee |
|
Common
Stock, par value $.01 per share
|
8,751,500
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$16.35
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$143,087,025
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$4,392.77
|
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(1)
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Amount
of proposed maximum offering price per unit was calculated in accordance
with Rule 457(c) based on the average of the high and low price traded
on
the New York Stock Exchange on May 21,
2007.
|
|
(2)
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Estimated
solely for the purposes of calculating the registration fee pursuant
to
Rule 457(o) of Regulation C under the Securities Act of 1933, as
amended.
|
_____________________
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 Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The
information in this preliminary prospectus is not complete and may be changed.
The selling stockholder may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
preliminary prospectus is not an offer to sell these securities and is not
soliciting an offer to buy these securities in any state where the offer or
sale
is not permitted.
Subject
to Completion. Preliminary Prospectus dated May 22, 2007.
Prospectus
8,751,500
Shares
Common
Stock
___________________
This
prospectus relates to an aggregate of 8,751,500 shares of common stock of Double
Hull Tankers, Inc. that the selling stockholder named in this prospectus may
offer for sale from time to time. These shares were purchased by the selling
stockholder on October 18, 2005 from us in a transaction that was exempt from
the registration requirements of the Securities Act of 1933, as
amended.
We
will
not receive any of the proceeds from the sale of any shares of our common stock
by the selling stockholder. The selling shareholder will pay all expenses in
connection with the offering under this prospectus. The selling stockholder
from
time to time may offer and sell the shares held by it directly or through
agents, underwriters or broker-dealers at prices and on terms to be determined
at the time of sale. These sales may be made on the New York Stock Exchange
or
other national security exchanges on which our common stock is then traded,
in
the over-the-counter market, or in negotiated transactions. See the section
entitled “Plan of Distribution” on page 10 of this prospectus. To the extent
required, the names of any agent, underwriter or broker-dealer and applicable
commissions or discounts and any other required information with respect to
any
particular offer will be set forth in a prospectus supplement, which will
accompany this prospectus. A prospectus supplement may also add, update or
change information contained in this prospectus.
Our
common stock is listed on the New York Stock Exchange under the symbol “DHT.”
The last reported sale price on May 21, 2007 was $16.44 per share.
Investing
in our common stock involves a high degree of risk. Before buying any shares
you
should carefully read the section entitled “Risk Factors” on page 7 of this
prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or determined if this prospectus
is
truthful or complete. Any representation to the contrary is a criminal
offense.
|
The
date of this prospectus is May 22, 2007.
|
|
|
Merrill
Lynch & Co.
|
UBS
Investment Bank
|
______________________
You
should rely only on the information contained in this prospectus. We have not
authorized anyone to provide you with additional or different information.
We
are not making an offer of these securities in any jurisdiction or state where
the offer is not permitted. You should not assume that the information in this
prospectus is accurate as of any date other than the date on the cover of this
prospectus.
TABLE
OF CONTENTS
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1
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2
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7
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8
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8
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10
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13
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13
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13
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14
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23
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25
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This
prospectus is part of a registration statement we filed with the Securities
Exchange Commission, or the “Commission”, using a shelf registration process.
Under the shelf registration process, the selling stockholder named in this
prospectus may, from time to time, sell the securities described in this
prospectus in one or more offerings. This prospectus provides you with a general
description of the securities that may be offered by the selling stockholder.
Each time the selling stockholder sells securities, the selling stockholder
is
required to provide you with this prospectus and, in certain cases, a prospectus
supplement containing specific information about the selling stockholder and
the
terms of the securities being offered. That prospectus supplement may include
additional risk factors or other special considerations applicable to those
securities. Any prospectus supplement may also add, update, or change
information in this prospectus. If there is any inconsistency between the
information contained in this prospectus and any prospectus supplement, you
should rely on the information contained in that particular prospectus
supplement. You should read both this prospectus and any prospectus supplement,
together with all additional information described in the section entitled
“Where You Can Find Additional Information” on page 23 of this
prospectus.
This
prospectus does not contain all the information provided in the registration
statement we filed with the Commission. For further information about us or
the
securities offered hereby, you should refer to that registration statement,
which you can obtain from the Commission as described in the section entitled
“Where You Can Find Additional Information” on page 23 of this
prospectus.
1
Before
investing in our common stock you should read this entire prospectus carefully,
including the section entitled “Risk Factors” and our financial statements and
related notes for a more complete understanding of our business and this
offering. Unless we specify otherwise, all references and data in this
prospectus to our “business,” our “vessels” and our “fleet” refer to our initial
fleet of seven vessels that we acquired simultaneously with the closing of
our
initial public offering, or “IPO,” on October 18, 2005. Unless we specify
otherwise, all references in this prospectus to “we,” “our,” “us” and “our
company” refer to Double Hull Tankers, Inc. and its subsidiaries. The shipping
industry’s functional currency is the U.S. dollar. All of our revenues and most
of our operating costs are in U.S. dollars. All references in this prospectus
to
“$” and “dollars” refer to U.S. dollars.
Our
Company
We
operate a fleet of double hull tankers. Our fleet currently consists of three
very large crude carriers, or “VLCCs”, which are tankers ranging in size from
200,000 to 320,000 deadweight tons, or “dwt”, and four Aframax tankers, or
“Aframaxes”, which are tankers ranging in size from 80,000 to 120,000 dwt. Our
fleet principally operates on international routes and had a combined carrying
capacity of 1,342,372 dwt and a weighted average age of 7.2 years as of March
31, 2007, compared with a weighted average age of 9.4 years for the world tanker
fleet.
We
acquired the seven vessels in our fleet from subsidiaries of Overseas
Shipholding Group, Inc., a Delaware corporation, or “OSG”, on October 18, 2005
in exchange for cash and shares of our common stock, and we have chartered
these
vessels back to certain subsidiaries of OSG. As one of the world’s largest
bulk-shipping companies, OSG owns and operates a modern fleet of 104 vessels
(including the seven vessels that comprise our fleet) that have a combined
carrying capacity of 12.0 million dwt as of March 31, 2007. OSG’s fleet consists
of both internationally flagged and U.S. flagged vessels that transport crude
oil, petroleum products and dry bulk commodities. As of the date of this
prospectus, OSG beneficially owned approximately 29.17% of our outstanding
common stock.
Our
strategy is to charter our fleet of seven vessels primarily pursuant to
multi-year time charters so as to take advantage of the stable cash flow
associated with long-term time charters. In addition, our time charter
arrangements include a profit sharing component that gives us the opportunity
to
earn additional hire when vessel earnings exceed the basic hire amounts set
forth in the charters. Our vessels are operated in the Tankers International
Pool and the Aframax International Pool, as described below, and we expect
our
potential to earn additional hire will benefit from the higher utilization
rates
realized by these pools. In a pooling arrangement, the net revenues generated
by
all of the vessels in a pool are aggregated and distributed to pool members
pursuant to a pre-arranged weighting system that recognizes each vessel’s
earnings capacity based on its cargo capacity, speed and consumption, and actual
on-hire performance.
With
effect from October 18, 2005, we time chartered our vessels to subsidiaries
of
OSG for terms ranging from five to six and one-half years. Each time charter
may
be renewed by the charterer on one or more successive occasions for periods
of
one, two or three years, up to an aggregate of five, six or eight years,
depending on the vessel. If a time charter is renewed, the charter terms
providing for profit sharing will remain in effect and the charterer, at the
time of exercise, will have the option to select a basic charter rate that
is
equal to (i) 5% above the published one-, two- or three-year time charter rate
(corresponding to the extension length) for the vessel’s class, as decided by a
shipbrokers panel, or (ii) the basic hire rate set forth in the applicable
charter. The shipbrokers panel, or “Broker Panel”, will be The Association of
Shipbrokers and Agents Tanker Broker Panel or another panel of brokers mutually
acceptable to us and the charterer.
2
We
maintain our principal executive offices at 26 New Street, St. Helier, Jersey
JE23RA, Channel Islands. Our telephone number at that address is +44 (0) 1534
639759.
Our
Fleet
We
purchased three VLCCs and four Aframaxes from certain subsidiaries of OSG in
connection with the IPO. Our three VLCCs, due to their large size, principally
operate on long-haul routes from the Middle East or West Africa to the Far
East,
Northern Europe, the Caribbean and the U.S. Gulf, trading through the Tankers
International Pool. Although our four Aframaxes are also designed for global
trading, they typically trade through the Aframax International Pool in the
Atlantic Basin on shorter-haul routes between Northern Europe, the Caribbean,
the United States and the Mediterranean Sea.
The
following table presents certain information concerning the vessels in our
fleet
and their associated charters, each of which commenced on October 18,
2005:
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Vessel
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Type
|
Dwt
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Year
Built
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Term
of Initial Charter
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Year
2 Basic Charter Rate(1)
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Term
of Extension Periods
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Maximum
Aggregate Extension Term
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|||||||
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(years)
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($/day)
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(years)
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(years)
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|||||||||||
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Overseas
Ann
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VLCC
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309,327
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2001
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6½
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$37,400
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1,
2 or 3
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8
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|||||||
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Overseas
Chris
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VLCC
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309,285
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2001
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6
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$37,400
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1,
2 or 3
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8
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|||||||
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Overseas
Regal
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VLCC
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309,966
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1997
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5½
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$37,400
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1,
2 or 3
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6
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|||||||
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Overseas
Cathy
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Aframax
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112,028
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2004
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6¼
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$24,700
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1,
2 or 3
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8
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|||||||
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Overseas
Sophie
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Aframax
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112,045
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2003
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5¾
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$24,700
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1,
2 or 3
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8
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|||||||
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Overseas
Rebecca
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Aframax
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94,873
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1994
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5
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$18,700
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1,
2 or 3
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5
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|||||||
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Overseas
Ania
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Aframax
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94,848
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1994
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5
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$18,700
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1,
2 or 3
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5
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________________
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(1)
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Amounts
represent basic hire charter rates, which increase annually by amounts
that vary by vessel class and year.
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Our
Competitive Strengths
We
believe that we have a number of strengths that provide us with a competitive
advantage in the tanker industry, including:
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$
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A
modern, high quality fleet. As of March 31, 2007, our
current fleet of three VLCCs and four Aframaxes had a weighted average
age
of 7.2 years, compared with a weighted average age for the world
tanker
fleet of 9.4 years. All of our vessels are of double hull construction
and
were designed and built to OSG’s specifications and, prior to the IPO,
were only operated by OSG. We believe that owning and maintaining
a
modern, high quality fleet reduces off hire time and operating costs,
improves safety and environmental performance and provides us with
a
competitive advantage in securing employment for our
vessels.
|
|
$
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Participation
in OSG’s pooling arrangements. We believe that we benefit
from OSG’s membership in the Tankers International Pool in respect of our
three VLCCs and the Aframax International Pool in respect of our
four
Aframaxes, and we expect OSG’s subsidiaries to continue to operate our
vessels in these pools. We believe that, over a longer period of
time, our
potential to earn additional hire will be enhanced by the higher
utilization rates and lower overhead costs that a vessel operating
inside
a pool can achieve compared with a vessel operating independently
outside
of a pool.
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3
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$
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An
experienced management team. Our management team is led by
Ole Jacob Diesen, our chief executive officer, who has over 30 years
of
experience in the shipping industry. Mr. Diesen has been an independent
corporate and financial management consultant since 1997 and has
extensive
experience in the shipping industry, including advising on a broad
range
of shipping transactions such as vessel sales and financings, vessel
charters, pooling and technical management
agreements.
|
Our
Strategy
The
key
elements of our strategy are to:
|
$
|
Charter
a substantial portion of our fleet under multi-year, fixed-rate time
charters that provide for profit sharing. Currently we
have time chartered all of our vessels to subsidiaries of OSG, one
of the
world’s largest bulk-shipping companies, for terms ranging from five to
six and one-half years under charters that provide for fixed monthly
payments, plus the potential to earn additional profit sharing payments.
We believe that these long-term charters will generate stable and
predictable cash flow and provide us with the opportunity to earn
significant additional hire as market rates exceed our basic hire
rates.
|
|
$
|
Fix
a substantial portion of our operating costs under our ship management
agreements. Currently, all of our vessels are managed by
Tanker Management Ltd., referred to herein as “Tanker Management” or our
“technical manager”, which is a wholly owned indirect subsidiary of OSG,
pursuant to ship management agreements that became effective at the
completion of our IPO. Under these ship management agreements, Tanker
Management has assumed all responsibilities for the technical management
of each of our vessels and for most of the operating costs (excluding
insurance premiums and vessel taxes). The fee payable to Tanker Management
under these ship management agreements is fixed through October 2007,
after which it increases by 2.5% and remains fixed through October
2008.
|
|
$
|
Strategically
expand our current fleet. We intend to grow our fleet
through timely and selective acquisitions of, or chartering in of,
additional vessels. Although our fleet consists of our three VLCCs
and
four Aframaxes as at the date of this prospectus, we intend to consider
potential acquisitions of additional tankers, as well as vessels
other
than tankers. In connection with any such acquisitions, we may charter
such vessels out either for multi-year or voyage-based
periods.
|
Our
Time Charters
We
have
time chartered our fleet of three VLCCs and four Aframaxes to certain
subsidiaries of OSG for terms ranging five to six and one-half years. The daily
base time charter rate for each of our vessels, which we refer to as basic
hire,
is payable to us monthly in advance and increases annually by amounts set forth
in each charter.
In
addition to the basic hire, the charterers and OSG International, Inc., or
“OIN”, the charterers’ parent company, have agreed to pay us an additional
payment, quarterly in arrears, which we refer to as “additional hire”. The
additional hire payable, if any, in respect of any given quarter will be equal
to 40% of the average revenue that our vessels earn, or are deemed to earn,
for
the charterers during that quarter (averaged on a rolling four quarter basis)
in
excess of the basic hire paid by the charterers to us during that quarter.
Revenue is calculated on an aggregate fleetwide basis, and depends on whether
our vessels are operated in a pool:
|
$
|
if
a vessel is operated in a pool, revenue earned by that vessel equals
the
share of actual pool net earnings allocated to the charterer, as
determined by a formula administered by the pool
manager;
|
4
|
$
|
if
a vessel is operated outside of a
pool:
|
|
·
|
for
periods that the charterer subcontracts the vessel under a time charter,
revenue earned by that vessel equals the time charter hire earned
by the
charterer, net of specified fees incurred by the charterer;
and
|
|
·
|
for
periods that the charterer does not subcontract the vessel in the
time
charter market, revenue deemed to be earned by that vessel is based
on
average spot market rates, which are rates for the immediate chartering
of
a vessel (usually for a single voyage), determined by a shipbrokers’ panel
for a series of routes commonly served by vessels of the same
class.
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A
pool
constitutes a collection of similar vessels under various ownerships that are
placed for operation under one administrator, which we refer to as the “pool
manager”. The pool manager markets the vessels as a single, cohesive fleet and
collects, or pools, their net earnings prior to distributing them to the
individual owners under a pre-arranged weighting system that recognizes each
vessel’s earnings capacity based on its cargo capacity, speed and consumption,
and actual on-hire performance. Pools offer their participants more
opportunities to enter into multi-legged charters and contracts of
affreightment, which can reduce non-earning days through scheduling
efficiencies.
The
three
VLCCs in our fleet currently participate in the Tankers International Pool,
in
which OSG and seven other tanker companies participate. As of March 31, 2007,
the Tankers International Pool consists of 43 VLCCs and V Pluses,
making it one of the world’s largest VLCC fleets. The four Aframaxes in our
fleet currently participate in the Aframax International Pool, the world’s
second largest Aframax fleet, which, as of March 31, 2007, operates
36 Aframaxes and has seven members, including OSG (which is one of the pool
managers).
Technical
Management of Our Fleet
In
connection with each of our vessels, we have entered into ship management
agreements with Tanker Management with effect from October 18, 2005, which
we
refer to as the “Ship Management Agreements”. Under the Ship Management
Agreements, Tanker Management is responsible for the technical management and
for most of the operating costs of our vessels, including crewing, maintenance,
ordinary repairs, scheduled drydockings, insurance deductibles (subject to
the
limits set forth in the Ship Management Agreements) and other vessel operating
expenses, excluding insurance premiums. In exchange for these services, we
pay
Tanker Management a daily fee, which we refer to as the “technical management
fee”, for each vessel under management. The technical management fee for each
vessel is payable monthly in advance based on the actual number of days in
the
month. The fee is fixed for the first two years of the agreement and will,
unless cancelled by us or Tanker Management, increase by 2.5% per year
thereafter. Neither us nor Tanker Management is able to cancel any Ship
Management Agreement (as currently amended) prior to the third anniversary
of
the effective date of such agreement (eg. October 18, 2008), except for cause.
Beginning on the third anniversary, the Ship Management Agreements (as currently
amended) are cancelable by us or Tanker Management for any reason at any time
upon 90 days' advance notice. Each charterer has the right to approve the
replacement manager that we select.
Dividend
Policy
We
intend
to pay quarterly dividends to the holders of our common stock in March, June,
September and December of each year, in amounts substantially equal to the
available cash from our operations during the previous quarter, less cash
expenses and any reserves established by our board of directors. Our board
of
directors may review and amend our dividend policy from time to time in
accordance with any future growth of our fleet or for other
reasons.
5
Our
Credit Facility
On
October 18, 2005, we entered into a $401 million secured credit facility with
The Royal Bank of Scotland that has a term of ten years, with no principal
amortization for the first five years. This credit facility consists of a $236
million term loan, a $150 million vessel acquisition facility and a $15 million
working capital facility. The credit facility is secured by mortgages on all
of
our vessels, assignments of earnings and insurances and pledges over our bank
accounts. We are the borrower under the credit facility, and each of our vessel
owning subsidiaries have guaranteed our obligations under the credit
facility.
We
borrowed the entire amount available under the term loan upon the completion
of
our IPO to fund a portion of the purchase price for the seven vessels that
we
acquired from certain subsidiaries of OSG. Subject to the satisfaction of a
number of conditions, we are permitted to borrow up to the full amount of the
vessel acquisition facility and up to the full amount of the working capital
facility for a period of five years from the closing of the credit facility.
Commencing on the fifth anniversary of the closing of the credit facility,
the
term loan will become repayable in quarterly installments over a five year
period and the committed amounts of the vessel acquisition facility and the
working capital facility will be reduced quarterly over a five year period
(with
any excess borrowings becoming repayable at the time of reduction).
Borrowings
under the term loan and the working capital facility will bear interest at
an
annual rate of LIBOR plus a margin of 0.70%. Borrowings under the vessel
acquisition facility will bear interest at an annual rate of LIBOR plus a margin
of 0.85%. To reduce our exposure to fluctuations in interest rates, we entered
an interest rate swap on October 18, 2005, pursuant to which we fixed the
interest rate for five years on the full amount of our term loan at 5.60%.
We
were required to pay a $1.5 million fee in connection with the arrangement
of
our credit facility (which we funded with a portion of the net proceeds from
the
IPO) and a commitment fee of 0.3% per annum, which will be payable quarterly
in
arrears, on the undrawn portion of the facility.
6
You
should carefully consider the following information about risks, together with
the other information contained in this prospectus, before making an investment
in our common stock.
Our
vessels call on ports located in countries that are subject to restrictions
imposed by the U.S. government, which could be viewed negatively by investors
and adversely affect the trading price of our common
stock.
From
time
to time, vessels in our fleet call on ports located in countries subject to
sanctions and embargoes imposed by the U.S. government and countries identified
by the U.S. government as state sponsors of terrorism. From January 1, 2006
through March 31, 2007, vessels in our fleet have, while operating in pools,
made five calls to ports in Iran and three calls to ports in Libya out of a
total of 454 calls on worldwide ports. On June 30, 2006, Libya was removed
from
the U.S. government’s list of state sponsors of terrorism and is not subject to
sanctions or embargoes, while Iran continues to be subject to sanctions and
embargoes imposed by the U.S. government and is identified by the U.S.
government as a state sponsor of terrorism. Although these sanctions and
embargoes do not prevent our vessels from making calls to ports in these
countries, potential investors could view such port calls negatively, which
could adversely affect our reputation and the market for our common stock.
Investor perception of the value of our common stock may be adversely affected
by the consequences of war, the effects of terrorism, civil unrest and
governmental actions in these and surrounding countries.
We
have
identified a number of other risk factors which you should consider before
buying shares of our common stock. These risk factors are incorporated by
reference into this prospectus from our annual report on Form 20-F filed with
the Commission on April 5, 2007. For further details, see the section entitled
“Where You Can Find Additional Information” on page 23 of this prospectus. In
addition, you should also consider carefully the risks set forth under the
heading “Risk Factors” in any prospectus supplement before investing in the
shares of common stock offered by this prospectus.
If
the
events discussed in the risk factors referred to above occur, our business,
financial condition, results of operations or cash flows could be materially
and
adversely affected. In such a case, the market price of our common stock could
decline. The risks described above, in our Annual Report and any prospectus
supplement are not the only ones that may exist. Additional risks not currently
known by us or that we deem immaterial may also impair our business
operations.
7
The
shares of our common stock being offered by this prospectus are solely for
the
account of the selling stockholder. We will not receive any proceeds from the
sale of these shares of our common stock by the selling stockholder. The selling
stockholder will pay brokerage fees, selling commission and underwriting
discounts, if any, incurred in connection with disposing of the shares pursuant
to this prospectus. Pursuant to a registration rights agreement that we entered
into with the selling stockholder, the selling stockholder will also bear our
costs, fees and expenses incurred in effecting the registration of the shares
covered by this prospectus.
The
following table sets forth certain information regarding (i) the owners of
more
than 5% of our common stock that we are aware of, including the selling
stockholder, OIN, and (ii) the total amount of common stock owned by all of
our
officers and directors, both individually and as a group.
Although
the selling stockholder may offer for sale from time to time all, or a portion
of, the shares pursuant to this prospectus, or an amendment or supplement
thereto, the tabular information below assumes that all of the shares registered
will be offered and sold by the selling stockholder. In addition, the selling
stockholder may have sold, transferred or otherwise disposed of all or a portion
of its shares since the date on which it provided us with information regarding
its shares in transactions exempt from the registration requirements of the
Securities Act of 1933, as amended. Information concerning the selling
stockholder may change from time to time and, to the extent required, will
be
set forth in supplements or amendments to this prospectus.
|
Shares
of
Common
Stock
Prior
to the Offering
|
Shares
of
Common
Stock
Offered
Hereby
|
Shares
of
Common
Stock
Following
the Offering
|
||||||||
|
Name
|
Number
of Shares
|
Percent
|
Number
of Shares
|
Number
of Shares
|
Percent
|
|||||
|
Persons
owning more than 5% of a class of our equity
securities.
|
||||||||||
|
OSG
International, Inc.(1)
|
8,751,500
|
29.17
|
8,751,500
|
0
|
0
|
|||||
|
Scott
A. Bommer(2)
|
1,705,527
|
5.68
|
0
|
1,705,527
|
5.68
|
|||||
|
Directors
|
||||||||||
|
Erik
A. Lind(3)
|
7,976
|
*
|
0
|
7,976
|
*
|
|||||
|
Randee
Day(3)
|
7,976
|
*
|
0
|
7,976
|
*
|
|||||
|
Rolf
A. Wikborg(3)
|
7,976
|
*
|
0
|
7,976
|
*
|
|||||
|
Executive
Officers
|
||||||||||
|
Ole
Jacob Diesen(4)
|
33,383
|
*
|
0
|
33,383
|
*
|
|||||
|
Eirik
Ubøe(5)
|
24,663
|
*
|
0
|
24,663
|
*
|
|||||
|
Tom
R. Kjeldsberg(6)
|
8,218
|
*
|
0
|
8,218
|
*
|
|||||
|
Directors
and executive officers as a group (6 persons)(7)
|
90,192
|
*
|
0
|
90,192
|
*
|
|||||
________________
|
*
|
Less
than 1%
|
|
(1)
|
We
were incorporated on April 14, 2005 in the Marshall Islands as a
wholly
owned subsidiary of OIN, which is a wholly owned subsidiary of OSG.
The
principal address of OIN is Trust Company Complex, Ajeltake Island,
Ajeltake Road, Majuro, Marshall Islands
MH96960.
|
|
(2)
|
Based
on a Schedule 13G filed with the Commission on February 26, 2007
by Scott
A. Bommer, individually and (a) as managing member of SAB Capital
Advisors, L.L.C., for itself and as the general partner of (i) SAB
Capital
Partners, L.P. and (ii) SAB Capital Partners II, L.P.; and (iii)
SAB
Overseas Master Fund, L.P.; and (b) as managing member of SAB Capital
Management, L.L.C., for itself and as the general partner of SAB
Capital
Management, L.P. The address of the principal business office of
each of
these reporting persons is 712 Fifth Avenue, 42nd Floor, New York,
NY
10019.
|
8
|
(3)
|
Includes
5,697 shares of restricted stock subject to vesting
conditions.
|
|
(4)
|
Does
not include 23,148 options with an exercise price of $12 per share
and
expiring on October 18, 2015 subject to vesting conditions. Includes
25,129 shares of restricted stock subject to vesting
conditions.
|
|
(5)
|
Does
not include 23,148 options with an exercise price of $12 per share
and
expiring on October 18, 2015 subject to vesting conditions. Includes
18,009 shares of restricted stock subject to vesting
conditions.
|
|
(6)
|
Consists
solely of 8,218 shares of restricted stock subject to vesting
conditions.
|
|
(7)
|
Includes
68,447 shares of restricted stock subject to vesting
conditions.
|
We
are
registering the securities offered in this prospectus pursuant to the
registration rights agreement with OIN, pursuant to which OIN has demand
registration rights relating to the common stock that it holds, subject to
the
requirement that any demand registration made by OIN must cover at least 5%
of
our outstanding common stock. The registration rights agreement provides that
OIN has the right to assign its rights under that agreement in connection with
a
transfer of its shares of common stock, provided that the transferee purchases
at least 5% of our outstanding common stock in such transfer.
9
We
are
registering for sale by the selling stockholder, from time to time, 8,751,500
shares of our common stock. The selling stockholder may offer and sell, from
time to time, some or all of the shares covered by this prospectus. We have
registered the shares covered by this prospectus for offer and sale by the
selling stockholder so that those shares may be freely sold to the public by
the
selling stockholder. Registration of the shares covered by this prospectus
does
not mean, however, that those shares necessarily will be offered or
sold.
The
selling stockholder may pledge or grant a security interest in some or all
of
the shares of common stock owned by it and, if it defaults in the performance
of
its secured obligations, the pledgees or secured parties may offer and sell
the
shares of common stock from time to time pursuant to this prospectus, or any
amendment to this prospectus amending, if necessary, the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus. The selling stockholder may
also
transfer and donate the shares of common stock in other circumstances, in which
case the transferees, donees, pledgees or other successors in interest will
be
the selling beneficial owners for purposes of this prospectus.
The
selling stockholder will act independently of us in making decisions with
respect to the timing, manner and size of each sale of shares pursuant to this
prospectus. The selling stockholder may sell its shares covered by this
prospectus from time to time, in one or more transactions, at market prices
prevailing at the time of sale, at prices related to market prices, at a fixed
price or prices subject to change, at varying prices determined at the time
of
sale or at negotiated prices, by a variety of methods including the
following:
|
$
|
on
the New York Stock Exchange or any other national securities exchange
or
U.S. inter-dealer system of a registered national securities association
on which our common stock may be listed or quoted at the time of
sale;
|
|
$
|
in
the over-the-counter market;
|
|
$
|
in
privately negotiated transactions;
|
|
$
|
in
an exchange distribution in accordance with the rules of the applicable
exchange;
|
|
$
|
as
settlement of short sales entered into after the date of the
prospectus;
|
|
$
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise;
|
|
$
|
through
broker-dealers, who may act as agents or
principals;
|
|
$
|
through
sales “at the market” to or through a
market-maker;
|
|
$
|
in
a block trade, in which a broker-dealer will attempt to sell a block
of
shares of common stock as agent but may position and resell a portion
of
the block as principal to facilitate the
transaction;
|
|
$
|
through
one or more underwriters on a firm commitment or best-efforts
basis;
|
|
$
|
directly
to one or more purchasers;
|
|
$
|
through
agents;
|
10
|
$
|
in
options transactions;
|
|
$
|
over
the internet;
|
|
$
|
any
other method permitted pursuant to applicable law;
or
|
|
$
|
in
any combination of the above.
|
In
effecting sales, brokers or dealers engaged by the selling stockholder may
arrange for other brokers or dealers to participate. Broker-dealer transactions
may include:
|
$
|
purchases
of the shares by a broker-dealer as principal and resales of the
shares by
the broker-dealer for its account pursuant to this
prospectus;
|
|
$
|
ordinary
brokerage transactions; or
|
|
$
|
transactions
in which the broker-dealer solicits
purchasers.
|
In
addition, the selling stockholder may sell any shares covered by this prospectus
in private transactions or under Rule 144 of the Securities Act of 1933, as
amended, rather than pursuant to this prospectus.
In
connection with the sale of shares covered by this prospectus, broker-dealers
may receive commissions or other compensation from the selling stockholder
in
the form of commissions, discounts or concessions. Broker-dealers may also
receive compensation from purchasers of the shares for whom they act as agents
or to whom they sell as principals or both. Compensation as to a particular
broker-dealer may be in excess of customary commissions or in amounts to be
negotiated. In connection with any underwritten offering, underwriters may
receive compensation in the form of discounts, concessions or commissions from
the selling stockholder or from purchasers of the shares for whom they act
as
agents. Underwriters may sell the shares to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they
may
act as agents. The selling stockholder and any underwriters, broker-dealers
or
agents that participate in the distribution of the common shares may be deemed
to be “underwriters” within the meaning of the Securities Act of 1933, as
amended, and any profit on the sale of the shares by them and any discounts,
commissions or concessions received by any of those underwriters, broker-dealers
or agents may be deemed to be underwriting discounts and commissions under
the
Securities Act of 1933, as amended.
In
connection with the distribution of the shares covered by this prospectus or
otherwise, the selling stockholder may enter into hedging transactions with
broker-dealers or other financial institutions. In connection with such
transactions, broker-dealers or other financial institutions may engage in
short
sales of our common stock in the course of hedging the positions they assume
with the selling stockholder. The selling stockholder may also sell shares
of
our common stock short and deliver the shares offered by this prospectus to
close out its short positions. The selling stockholder may also enter into
option or other transactions with broker-dealers or other financial
institutions, which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus, as supplemented or amended to reflect such transaction. The selling
stockholder may also from time to time pledge its common shares pursuant to
the
margin provisions of its customer agreements with its brokers. Upon default
by
the selling shareholder, the broker may offer and sell such pledged common
shares from time to time pursuant to this prospectus, as supplemented or amended
to reflect such transaction.
11
At
any
time a particular offer of the common shares covered by this prospectus is
made,
a revised prospectus or prospectus supplement, if required, will be distributed
which will set forth the aggregate amount of shares covered by this prospectus
being offered and the terms of the offering, including the name or names of
any
underwriters, dealers, brokers or agents, any discounts, commissions,
concessions and other items constituting compensation from the selling
stockholder and any discounts, commissions or concessions allowed or reallowed
or paid to dealers. Such prospectus supplement, and, if necessary, a
post-effective amendment to the registration statement of which this prospectus
is a part, will be filed with the Commission to reflect the disclosure of
additional information with respect to the distribution of the common shares
covered by this prospectus. In order to comply with the securities laws of
certain states, if applicable, the shares sold under this prospectus may only
be
sold through registered or licensed broker-dealers. In addition, in some states
the shares may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from registration or qualification
requirements is available and is complied with. We have informed the selling
stockholder that the anti-manipulative provisions of Regulation M promulgated
under the Securities Exchange Act of 1934, as amended, may apply to its sales
of
shares in the market and to the activities of the selling stockholder and its
respective affiliates. The selling stockholder has advised us that it has not
entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of the shares, nor is there
an
underwriter or coordinating broker acting in connection with the proposed sale
of the shares by the selling stockholder.
In
connection with an underwritten offering, we and the selling stockholder would
execute an underwriting agreement with an underwriter or underwriters. Unless
otherwise indicated in the revised prospectus or applicable prospectus
supplement, such underwriting agreement would provide that the obligations
of
the underwriter or underwriters are subject to certain conditions precedent
and
that the underwriter or underwriters with respect to a sale of the covered
shares will be obligated to purchase all of the covered shares if any such
shares are purchased. The selling stockholder may grant to the underwriter
or
underwriters an option to purchase additional shares of common stock at the
public offering price, as may be set forth in the revised prospectus or
applicable prospectus supplement. If the selling stockholder grants any such
option, the terms of the option will be set forth in the revised prospectus
or
applicable prospectus supplement.
Underwriters,
agents, brokers or dealers may be entitled, pursuant to relevant agreements
entered into with us and the selling stockholder, to indemnification by us
and
the selling stockholder against certain civil liabilities, including liabilities
under the Securities Act of 1933, as amended, that may arise from any untrue
statement or alleged untrue statement of a material fact, or any omission or
alleged omission to state a material fact in this prospectus, any supplement
or
amendment hereto, or in the registration statement of which this prospectus
forms a part, or to contribution with respect to payments which the
underwriters, agents, brokers or dealers may be required to make.
Under
our
registration rights agreement with the selling stockholder, the selling
stockholder has agreed to pay all of our expenses incident to the offering
and
sale of the shares covered by this prospectus. We have agreed to indemnify
the
selling stockholder, its controlling persons and its respective officers,
directors, partners, employees, representatives and agents against certain
losses, claims, damages, actions, expenses and other liabilities arising under
the securities laws in connection with this offering. The selling stockholder
has agreed, severally, to indemnify us, our officers and directors who sign
the
registration statement of which this prospectus forms a part against any losses,
claims, damages, actions, expenses and other liabilities, arising under the
securities laws in connection with this offering with respect to written
information furnished to us by the selling stockholder for inclusion in the
registration statement of which this prospectus forms a part (and up to the
amount of the net proceeds received by the selling shareholder from sales of
the
shares giving rise to such obligations).
12
Our
consolidated and predecessor combined financial statements appearing in our
annual report on Form 20-F for the year ended December 31, 2006, have been
audited by Ernst & Young LLP, an independent registered public accounting
firm, as set forth in their report thereon, included therein, and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given on the authority of
such
firm as experts in accounting and auditing.
The
validity of our common stock offered hereby and certain other matters relating
to Marshall Islands law will be passed upon for us by Reeder & Simpson P.C.
Certain other legal matters relating to United States law will be passed upon
for us by Cravath, Swaine & Moore LLP, New York, New York. Certain legal
matters will be passed upon for any underwriters, dealers or agents by Simpson
Thacher & Bartlett LLP, New York, New York.
Our
bylaws provide that we shall, subject to the limitations contained in the
Marshall Islands Business Corporation Act, as amended from time to time,
indemnify all persons whom it may indemnify pursuant thereto.
The
form
of underwriting agreement, which is filed as Exhibit 1.1 to the registration
statement of which this prospectus forms a part, provides that the underwriters
to be named therein agree to indemnify us and hold us harmless, together with
each of our directors, officers or controlling persons from and against certain
liabilities, including liabilities arising under the Securities Act of 1933,
as
amended. This form of underwriting agreement also provides that such
underwriters will contribute to amounts paid or payable by such indemnified
persons as a result of certain liabilities under the Securities Act of 1933,
as
amended.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933,
as
amended, may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed 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.
13
The
following is a discussion of the material Marshall Islands and United States
federal income tax considerations relevant to an investment decision by a
“United States Holder”, as that term is defined below, with respect to the
acquisition, ownership and disposition of our common stock. This discussion
does
not purport to deal with the tax consequences of owning common stock to all
categories of investors, some of which (such as financial institutions,
regulated investment companies, real estate investment trusts, tax-exempt
organizations, insurance companies, persons holding our common stock as part
of
a hedging, integrated, conversion or constructive sale transaction or a
straddle, traders in securities that have elected the mark-to-market method
of
accounting for their securities, persons liable for alternative minimum tax,
persons who are investors in pass-through entities, dealers in securities or
currencies and investors whose functional currency is not the United States
dollar) may be subject to special rules.
WE
RECOMMEND THAT YOU CONSULT YOUR OWN TAX ADVISORS CONCERNING THE OVERALL TAX
CONSEQUENCES ARISING IN YOUR OWN PARTICULAR SITUATION UNDER UNITED STATES
FEDERAL, STATE, LOCAL OR FOREIGN LAW OF THE OWNERSHIP OF COMMON
STOCK.
Marshall
Islands Tax Considerations
The
following are the material Marshall Islands tax consequences of our activities
to us and stockholders of our common stock. We are incorporated in the Marshall
Islands. Under current Marshall Islands law, we are not subject to tax on income
or capital gains, and no Marshall Islands withholding tax will be imposed upon
payments of dividends by us to our stockholders.
United
States Federal Income Tax Considerations
This
discussion is based on the Internal Revenue Code of 1986, as amended (the
“Code”), Treasury regulations issued thereunder, published administrative
interpretations of the Internal Revenue Service, or “IRS”, and judicial
decisions as of the date hereof, all of which are subject to change at any
time,
possibly on a retroactive basis.
Taxation
of Operating Income: In General
Our
subsidiaries have elected to be treated as disregarded entities for U.S. federal
income tax purposes. As a result, for purposes of the discussion below, our
subsidiaries are treated as branches of us rather than as separate
corporations.
Unless
exempt from United States federal income taxation under the rules contained
in
Section 883 of the Code (discussed below), a foreign corporation is subject
to United States federal income taxation on its shipping income that is treated
as derived from sources within the United States, referred to as “United States
source shipping income.” For these purposes “shipping income” means any income
that is derived from the use of vessels, from the hiring or leasing of vessels
for use on a time, voyage or bareboat charter basis, from the participation
in a
pool, partnership, strategic alliance, joint operating agreement, code sharing
arrangement or other joint venture it directly or indirectly owns or
participates in that generates such income, or from the performance of services
directly related to those uses. For tax purposes, United States source shipping
income includes (i) 50% of shipping income that is attributable to
transportation that begins or ends, but that does not both begin and end, in
the
United States and (ii) 100% of shipping income that is attributable to
transportation that both begins and ends in the United States.
Shipping
income attributable to transportation exclusively between non-United States
ports will be considered to be 100% derived from sources outside the United
States. Shipping income derived from sources outside the United States will
not
be subject to any United States federal income tax.
14
In
the
absence of exemption from tax under Section 883, our gross United States
source shipping income would be subject to a 4% tax imposed without allowance
for deductions as described below. We have not, nor do we believe we will engage
in transportation that produces income which is considered to be 100% from
sources within the United States.
Exemption
of operating income from United States federal income taxation
Under
Section 883 of the Code and the regulations thereunder, we will be exempt
from United States federal income taxation on its United States source shipping
income if:
|
$
|
we
are organized in a foreign country (the “country of organization”) that
grants an “equivalent exemption” to corporations organized in the United
States; and
|
|
$
|
either
|
| (A) more than 50% of the value of our stock is owned, directly or indirectly, by individuals who are “residents” of our country of organization or of another foreign country that grants an “equivalent exemption” to corporations organized in the United States, referred to as the “50% Ownership Test,” or |
| (B) our stock is “primarily and regularly traded on an established securities market” in our country of organization, in another country that grants an “equivalent exemption” to United States corporations, or in the United States, referred to as the “Publicly-Traded Test”. |
The
Marshall Islands, the jurisdiction where we and our ship-owning subsidiaries
are
incorporated, grants an “equivalent exemption” to United States corporations.
Therefore, we will be exempt from United States federal income taxation with
respect to our United States source shipping income if either the 50% Ownership
Test or the Publicly-Traded Test is met. As a result of the IPO, it is difficult
to satisfy the 50% Ownership Test due to the widely-held ownership of our
stock.
As
to the
Publicly-Traded Test, the regulations under Code Section 883 provide, in
pertinent part, that stock of a foreign corporation will be considered to be
“primarily traded” on an established securities market in a country if the
number of shares of each class of stock that is traded during any taxable year
on all established securities markets in that country exceeds the number of
shares in each such class that is traded during that year on established
securities markets in any other single country. We believe that our common
stock, which is, and will continue to be, the sole class of our issued and
outstanding stock, is, and will continue to be, “primarily traded” on the New
York Stock Exchange, which is an established securities market for these
purposes.
The
Publicly-Traded Test also requires our common stock be “regularly traded” on an
established securities market. Under the regulations, our common stock is
considered to be “regularly traded” on an established securities market if one
or more classes of our stock representing more than 50% of our outstanding
shares, by both total combined voting power of all classes of stock entitled
to
vote and total value, are listed on the market, referred to as the “listing
threshold.” The regulations further require that with respect to each class of
stock relied upon to meet the listing threshold, (i) such class of stock is
traded on the market, other than in minimal quantities, on at least 60 days
during the taxable year or 1/6 of the days in a short taxable year; and
(ii) the aggregate number of shares of such class of stock traded on such
market during the taxable year is at least 10% of the average number of shares
of such class of stock outstanding during such year (as appropriately adjusted
in the case of a short taxable year). We believe we satisfy, and will continue
to satisfy, the trading frequency and trading
volume
tests. However, even if we do not satisfy both tests, the regulations provide
that the trading frequency and trading volume tests will be deemed satisfied
if
our common stock is traded on an established market in the United States and
such stock is regularly quoted by dealers making a market in such stock. We
believe this is, and will continue to be, the case.
15
Notwithstanding
the foregoing, a class of our stock will not be considered to be “regularly
traded” on an established securities market for any taxable year in which 50% or
more of the vote and value of the outstanding shares of such class are owned,
actually or constructively under certain stock attribution rules, on more than
half the days during the taxable year by persons who each own 5% or more of
the
value of such class of our outstanding stock, referred to as the “5 Percent
Override Rule.”
In
order
to determine the persons who actually or constructively own 5% or more of our
stock, or “5% Stockholders,” we are permitted to rely on those persons that are
identified on Schedule 13G and Schedule 13D filings with the
Commission as having a 5% or more beneficial interest in our common stock.
In
addition, an investment company identified on a Schedule 13G or
Schedule 13D filing which is registered under the Investment Company Act of
1940, as amended, will not be treated as a 5% Stockholder for such
purposes.
In
the
event the 5 Percent Override Rule is triggered, the 5 Percent Override Rule
will
nevertheless not apply if we can establish that among the closely-held group
of
5% Stockholders, there are sufficient 5% Stockholders that are considered to
be
“qualified stockholders” for purposes of Section 883 to preclude
non-qualified 5% Stockholders in the closely-held group from owning 50% or
more
of each class of our stock for more than half the number of days during the
taxable year.
As
of
December 31, 2006, OIN owned approximately 44.5% of our common stock and was
a
5% Stockholder. Based on OIN's ownership and our review of the Commission
filings discussed above, we believe that we satisfied the Publicly-Traded Test
and were not subject to the 5 Percent Override Rule during 2006. We currently
believe that we will continue to satisfy the Publicly-Traded Test, although
no
assurances can be given that this will be the case.
In
any
year that the 5 Percent Override Rule is triggered with respect to us, we are
eligible for the exemption from tax under Section 883 only if we can
nevertheless satisfy the Publicly-Traded Test (which requires, among other
things, showing that the exception to the 5 Percent Override Rule applies)
or if
we can satisfy the 50% Ownership Test. In either case, we would have to satisfy
certain substantiation requirements regarding the identity of our stockholders
in order to qualify for the Section 883 exemption. These requirements are
onerous and there is no assurance that we would be able to satisfy
them.
To
the
extent the benefits of Section 883 are unavailable, our United States
source shipping income, to the extent not considered to be “effectively
connected” with the conduct of a United States trade or business, as described
below, would be subject to a 4% tax imposed by Section 887 of the Code on a
gross basis, without the benefit of deductions. Since under the sourcing rules
described above, no more than 50% of our shipping income would be treated as
being United States source shipping income, the maximum effective rate of United
States federal income tax on its shipping income would never exceed 2% under
the
4% gross basis tax regime.
To
the
extent the benefits of the Section 883 exemption are unavailable and our
United States source shipping income is considered to be “effectively connected”
with the conduct of a United States trade or business, as described below,
any
such “effectively connected” United States source shipping income, net of
applicable deductions, would be subject to the United States federal corporate
income tax currently imposed at rates of up to 35%. In addition, we may be
subject to the 30% “branch profits” taxes on earnings effectively connected with
the conduct of such trade or business, as determined after allowance for certain
adjustments, and on certain interest paid or deemed paid attributable to the
conduct of our United States trade or business.
16
Our
United States source shipping income would be considered “effectively connected”
with the conduct of a United States trade or business only if:
|
$
|
we
had, or were considered to have, a fixed place of business in the
United
States involved in the earning of United States source shipping income;
and
|
|
$
|
substantially
all of our United States source shipping income was attributable
to
regularly scheduled transportation, such as the operation of a vessel
that
followed a published schedule with repeated sailings at regular intervals
between the same points for voyages that begin or end in the United
States.
|
We
do not
have, nor will we permit circumstances that would result in having, any vessel
sailing to or from the United States on a regularly scheduled basis. Based
on
the foregoing and on the expected mode of our shipping operations and other
activities, we believe that none of our United States source shipping income
is
or will be “effectively connected” with the conduct of a United States trade or
business.
United
States taxation of gain on sale of vessels
Regardless
of whether we qualify for exemption under Section 883, we will not be
subject to United States federal income taxation with respect to gain realized
on a sale of a vessel, provided the sale is considered to occur outside of
the
United States under United States federal income tax principles. In general,
a
sale of a vessel will be considered to occur outside of the United States for
this purpose if title to the vessel, and risk of loss with respect to the
vessel, pass to the buyer outside of the United States. It is expected that
any
sale of a vessel will be considered to occur outside of the United
States.
United
States Federal Income Taxation of “United States Holders”
As
used
herein, the term “United States Holder” means a beneficial owner of common stock
that:
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$
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is
an individual United States citizen or resident, a United States
corporation or other United States entity taxable as a corporation,
an
estate the income of which is subject to United States federal income
taxation regardless of its source, or a trust if a court within the
United
States is able to exercise primary jurisdiction over the administration
of
the trust and one or more United States persons have the authority
to
control all substantial decisions of the
trust;
|
|
$
|
owns
our common stock as a capital asset;
and
|
|
$
|
owns
less than 10% of our common stock for United States federal income
tax
purposes.
|
If
a
partnership holds our common stock, the tax treatment of a partner will
generally depend upon the status of the partner and upon the activities of
the
partnership. If you are a partner in a partnership holding our common stock,
we
suggest that you consult your tax advisor.
Distributions
Subject
to the discussion of passive foreign investment companies (“PFICs”) below, any
distributions made by us with respect to our common stock to a United States
Holder will generally constitute dividends to the extent of its current or
accumulated earnings and profits, as determined under United States federal
income tax principles. Distributions in excess of such earnings and profits
will
be treated first as a nontaxable return of capital to the extent of the United
States Holder's tax basis in his common stock on a dollar-for-dollar basis
and
thereafter as capital gain. Because we are not a United States corporation,
United States Holders that are corporations will not be entitled to claim a
dividends received deduction with respect to any distributions they receive
from
us. Dividends paid with respect to our common stock will generally be treated
as
“passive income” for purposes of computing allowable foreign tax credits for
United States foreign tax credit purposes.
17
Dividends
paid on our common stock to a United States Holder who is an individual, trust
or estate (a “United States Non-Corporate Holder”) will generally be treated as
“qualified dividend income” that is taxable to such United States Non-Corporate
Holder at a preferential tax rate of 15% (through 2010) provided that
(1) the common stock is readily tradable on an established securities
market in the United States (such as the New York Stock Exchange); (2) we
are not a PFIC for the taxable year during which the dividend is paid or the
immediately preceding taxable year (see discussion below); (3) the United
States Non-Corporate Holder has owned the common stock for more than
60 days in the 121-day period beginning 60 days before the date on
which the common stock becomes ex-dividend; and (4) the United States
Non-Corporate Holder is not under an obligation to make related payments with
respect to positions in substantially similar or related property. Special
rules
may apply to any “extraordinary dividend”—generally, a dividend in an amount
which is equal to or in excess of 10% of a stockholder's adjusted basis in
a
share of common stock—paid by us. If we pay an “extraordinary dividend” on our
common stock that is treated as “qualified dividend income,” then any loss
derived by a United States Non-Corporate Holder from the sale or exchange of
such common stock will be treated as long-term capital loss to the extent of
such dividend. There is no assurance that any dividends paid on our common
stock
will be eligible for these preferential rates in the hands of a United States
Non-Corporate Holder, although we believe that they will be so eligible provided
that we are not a PFIC, as discussed below. Any dividends out of earnings and
profits we pay which are not eligible for these preferential rates will be
taxed
at ordinary income rates in the hands of a United States Non-Corporate
Holder.
In
addition, even if we are not a PFIC, under proposed legislation, dividends
of a
corporation incorporated in a country without a “comprehensive income tax
system” paid to United States Non-Corporate Holders would not be eligible for
the 15% tax rate. Although the term “comprehensive income tax system” is not
defined in the proposed legislation, we believe this rule would apply to us
because we are incorporated in the Marshall Islands.
Sale,
exchange or other disposition of common stock
Provided
that we are not a PFIC for any taxable year, a United States Holder generally
will recognize taxable gain or loss upon a sale, exchange or other disposition
of our common stock in an amount equal to the difference between the amount
realized by the United States Holder from such sale, exchange or other
disposition and the United States Holder's tax basis in such stock.
Such
gain
or loss will be treated as long-term capital gain or loss if the United States
Holder's holding period is greater than one year at the time of the sale,
exchange or other disposition. Such capital gain or loss will generally be
treated as United States source income or loss, as applicable, for United States
foreign tax credit purposes. Long-term capital gains of United States
Non-Corporate Holders are eligible for reduced rates of taxation. A United
States Holder's ability to deduct capital losses against ordinary income is
subject to certain limitations.
18
PFIC
status and significant tax consequences
Special
United States federal income tax rules apply to a United States Holder that
holds stock in a foreign corporation classified as a PFIC for United States
federal income tax purposes. In particular, United States Non-Corporate Holders
will not be eligible for the 15% tax rate on qualified dividends. In general,
we
will be treated as a PFIC with respect to a United States Holder if, for any
taxable year in which such holder held its common stock, either:
|
$
|
at
least 75% of our gross income for such taxable year consists of passive
income (e.g., dividends, interest, capital gains and rents derived
other
than in the active conduct of a rental business),
or
|
|
$
|
at
least 50% of the average value of our assets during such taxable
year
produce, or are held for the production of, passive
income.
|
Income
earned, or deemed earned, by us in connection with the performance of services
would not constitute passive income. By contrast, rental income would generally
constitute “passive income” unless we were treated under specific rules as
deriving our rental income in the active conduct of a trade or
business.
Cravath,
Swaine & Moore LLP (“Tax Counsel”) provided us with an opinion dated January
29, 2007, stating that it was more likely than not that we are not a PFIC.
This
opinion was based on our operations and certain representations made by OSG
and
ourselves, including representations that the terms of each Ship Management
Agreement and time charter, taken as a whole, as well as certain specific terms
in each agreement, were in accordance with normal commercial practice for
agreements made at arm's length between unrelated parties. Based on the
foregoing, Tax Counsel concluded that, although there was no legal authority
directly on point, the gross income we derived from the time chartering
activities of our subsidiaries more likely than not constituted services income,
rather than rental income. Consequently, such income more likely than not did
not constitute passive income, and the assets that we or our wholly owned
subsidiaries owned and operated in connection with the production of such
income, in particular, the vessels, more likely than not did not constitute
passive assets for purposes of determining whether we were a PFIC. Tax Counsel
stated that there was legal authority supporting its position, consisting of
case law and IRS pronouncements, concerning the characterization of income
derived from time charters as services income for other tax purposes. However,
there was no legal authority specifically relating to the statutory provisions
governing PFICs or relating to circumstances substantially similar to that
of
us. In addition, the opinion of Tax Counsel was based on representations of
OSG
and ourselves that were not reviewed by the IRS. As a result, the IRS or a
court
could disagree with our position. No assurance can be given that this result
will not occur. We have not materially changed our operations since the time
the
opinion was given, and believe that the representations given to Tax Counsel
at
the time of the opinion remain true and accurate. We expect that, in connection
with the closing of each offering under this prospectus, Tax Counsel will issue
an opinion in form and substance substantially similar to the opinion issued
by
Tax Counsel on January 29, 2007. We therefore believe that we have not been,
and
are not currently, a PFIC. In addition, although we intend to conduct our
affairs in a manner to avoid, to the extent possible, being classified as a
PFIC
with respect to any taxable year, we cannot assure you that the nature of our
operations will not change in the future, or that we can avoid PFIC status
in
the future.
As
discussed more fully below, if we were treated as a PFIC for any taxable year,
a
United States Holder would be subject to different taxation rules depending
on
whether the United States Holder made an election to treat us as a “Qualified
Electing Fund,” which election is referred to as a “QEF election.” As an
alternative to making a QEF election, a United States Holder should be able
to
make a "mark-to-market" election with respect to our common stock, as discussed
below.
19
Taxation
of United States Holders making a timely QEF election
If
we
were a PFIC and a United States Holder made a timely QEF election, which United
States Holder is referred to as an “Electing Holder,” the Electing Holder would
report each year for United States federal income tax purposes its pro rata
share of our ordinary earnings and our net capital gain (which gain shall not
exceed our earnings and profits for the taxable year), if any, for our taxable
year that ends with or within the taxable year of the Electing Holder,
regardless of whether or not distributions were received from us by the Electing
Holder. Any such ordinary income would not be eligible for the preferential
tax
rates applicable to qualified dividend income as discussed above. The Electing
Holder's adjusted tax basis in the common stock would be increased to reflect
taxed but undistributed earnings and profits. Distributions of earnings and
profits that had been previously taxed would, pursuant to this election, result
in a corresponding reduction in the adjusted tax basis in the common stock
and
would not be taxed again once distributed. An Electing Holder would not,
however, be entitled to a deduction for its pro rata share of any losses that
we
incurred with respect to any year. An Electing Holder would generally recognize
capital gain or loss on the sale, exchange or other disposition of our common
stock. A United States Holder would make a QEF election with respect to any
year
that we are a PFIC by filing one copy of IRS Form 8621 with his United
States federal income tax return. If we were treated as a PFIC for any taxable
year, we would provide each United States Holder with all necessary information
in order to make the QEF election described above. Even if a United States
Holder makes a QEF election for one of our taxable years, if we were a PFIC
for
a prior taxable year during which the holder was a stockholder and for which
the
holder did not make a timely QEF election, different and more adverse tax
consequences would apply.
Taxation
of United States Holders making a "mark-to-market" election
Alternatively,
if we were treated as a PFIC for any taxable year and, as we believe, our stock
is treated as “marketable stock,” a United States Holder would be allowed to
make a “mark-to-market” election with respect to our common stock, provided the
United States Holder completes and files IRS Form 8621 in accordance with
the relevant instructions and related Treasury regulations. If that election
is
made, the United States Holder generally would include as ordinary income in
each taxable year the excess, if any, of the fair market value of the common
stock at the end of the taxable year over such holder's adjusted tax basis
in
the common stock. The United States Holder would also be permitted an ordinary
loss in respect of the excess, if any, of the United States Holder's adjusted
tax basis in the common stock over its fair market value at the end of the
taxable year, but only to the extent of the net amount previously included
in
income as a result of the mark-to-market election. A United States Holder's
tax
basis in his common stock would be adjusted to reflect any such income or loss
amount. Gain realized on the sale, exchange or other disposition of our common
stock would be treated as ordinary income, and any loss realized on the sale,
exchange or other disposition of the common stock would be treated as ordinary
loss to the extent that such loss does not exceed the net mark-to-market gains
previously included by the United States Holder in income.
Taxation
of United States Holders not making a timely QEF or “mark-to-market”
election
Finally,
if we were treated as a PFIC for any taxable year, a United States Holder who
does not make either a QEF election or a "mark-to-market" election for that
year, referred to as a “Non-Electing Holder,” would be subject to special rules
with respect to (1) any excess distribution (i.e., the portion of any
distributions received by the Non-Electing Holder on our common stock in a
taxable year in excess of 125% of the average annual distributions received
by
the Non-Electing Holder in the three preceding taxable years, or, if shorter,
the Non-Electing Holder's holding period for the common stock), and (2) any
gain realized on the sale, exchange or other disposition of our common stock.
Under these special rules:
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$
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the
excess distribution or gain would be allocated ratably over the
Non-Electing Holder's aggregate holding period for the common
stock;
|
20
|
$
|
the
amount allocated to the current taxable year and any taxable year
prior to
the first taxable year in which we were a PFIC during the Non-Electing
Holder's holding period, would be taxed as ordinary income;
and
|
|
$
|
the
amount allocated to each of the other taxable years would be subject
to
tax at the highest rate of tax in effect for the applicable class
of
taxpayer for that year, and an interest charge for the deemed deferral
benefit would be imposed with respect to the resulting tax attributable
to
each such other taxable year.
|
These
penalties would not apply to a qualified pension, profit sharing or other
retirement trust or other tax-exempt organization that did not borrow money
or
otherwise utilize leverage in connection with its acquisition of our common
stock. If we were a PFIC and a Non-Electing Holder who was an individual died
while owning our common stock, such holder's successor generally would not
receive a step-up in tax basis with respect to such stock. Certain of these
rules would apply to a United States Holder who made a QEF election for one
of
our taxable years if it were a PFIC in a prior taxable year during which the
holder was a stockholder and for which the holder did not make a QEF
election.
United
States Federal Income Taxation of "Non-United States
Holders"
A
beneficial owner of common stock (other than a partnership) that is not a United
States Holder is referred to herein as a "Non-United States
Holder."
Dividends
on common stock
Non-United
States Holders generally will not be subject to United States federal income
tax
or withholding tax on dividends received from us with respect to our common
stock, unless that dividend income is effectively connected with the Non-United
States Holder's conduct of a trade or business in the United States. If the
Non-United States Holder is entitled to the benefits of a United States income
tax treaty with respect to those dividends, that income is taxable only if
it is
attributable to a permanent establishment maintained by the Non-United States
Holder in the United States.
Sale,
exchange or other disposition of common stock
Non-United
States Holders generally will not be subject to United States federal income
tax
or withholding tax on any gain realized upon the sale, exchange or other
disposition of our common stock, unless:
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$
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the
gain is effectively connected with the Non-United States Holder's
conduct
of a trade or business in the United States (and, if the Non-United
States
Holder is entitled to the benefits of an income tax treaty with respect
to
that gain, that gain is attributable to a permanent establishment
maintained by the Non-United States Holder in the United States);
or
|
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$
|
the
Non-United States Holder is an individual who is present in the United
States for 183 days or more during the taxable year of disposition
and other conditions are met.
|
If
the
Non-United States Holder is engaged in a United States trade or business for
United States federal income tax purposes, the income from the common stock,
including dividends and the gain from the sale, exchange or other disposition
of
the stock, that is effectively connected with the conduct of that trade or
business will generally be subject to regular United States federal income
tax
in the same manner as discussed in the previous section relating to the taxation
of United States Holders. In addition, if you are a corporate Non-United States
Holder, your earnings and profits that are attributable to the effectively
connected income, which are subject to certain adjustments, may be subject
to an
additional branch profits tax at a rate of 30%, or at a lower rate as may be
specified by an applicable income tax treaty.
21
Backup
Withholding and Information Reporting
In
general, dividend payments, or other taxable distributions, made within the
United States to you will be subject to information reporting requirements
if
you are a non-corporate United States Holder. Such payments or distributions
may
also be subject to backup withholding tax if you are a non-corporate United
States Holder and you:
|
$
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fail
to provide an accurate taxpayer identification
number;
|
|
$
|
are
notified by the IRS that you have failed to report all interest or
dividends required to be shown on your federal income tax returns;
or
|
|
$
|
in
certain circumstances, fail to comply with applicable certification
requirements.
|
Non-United
States Holders may be required to establish their exemption from information
reporting and backup withholding by certifying their status on IRS
Form W-8BEN, W-8ECI or W-8IMY, as applicable.
If
you
are a Non-United States Holder and you sell our common stock to or through
a
United States office of a broker, the payment of the proceeds is subject to
both
United States backup withholding and information reporting unless you certify
that you are a non-United States person, under penalties of perjury, or you
otherwise establish an exemption. If you sell our common stock through a
non-United States office of a non-United States broker and the sales proceeds
are paid to you outside the United States, then information reporting and backup
withholding generally will not apply to that payment. However, United States
information reporting requirements, but not backup withholding, will apply
to a
payment of sales proceeds, even if that payment is made to you outside the
United States, if you sell our common stock through a non-United States office
of a broker that is a United States person or has some other contacts with
the
United States. Such information reporting requirements will not apply, however,
if the broker has documentary evidence in its records that you are a non-United
States person and certain other conditions are met, or you otherwise establish
an exemption.
Backup
withholding tax is not an additional tax. Rather, you generally may obtain
a
refund of any amounts withheld under backup withholding rules that exceed your
income tax liability by filing a refund claim with the IRS.
22
We
filed
with the Commission a registration statement on Form F-3 under the Securities
Act of 1933, as amended, with respect to the offer and sale of common stock
pursuant to this prospectus. This prospectus, filed as a part of the
registration statement, does not contain all of the information set forth in
the
registration statement or the exhibits and schedules thereto in accordance
with
the rules and regulations of the Commission and no reference is hereby made
to
such omitted information. Statements made in this prospectus concerning the
contents of any contract, agreement or other document filed as an exhibit to
the
registration statement are summaries of all of the material terms of such
contracts, agreements or documents, but do not repeat all of their terms.
Reference is made to each such exhibit for a more complete description of the
matters involved and such statements shall be deemed qualified in their entirety
by such reference. The registration statement and the exhibits and schedules
thereto filed with the Commission may be inspected, without charge, and copies
may be obtained at prescribed rates, at the public reference facility maintained
by the Commission at its principal office at 100 F Street, N.E., Washington,
D.C. 20549. You may obtain information on the operation of the public reference
facility by calling 1-800-SEC-0330. The Commission also maintains a website
(http://www.sec.gov) that contains reports, proxy and information statements
and
other information regarding registrants that file electronically with the
Commission. For further information pertaining to the common stock offered
by
this prospectus and Double Hull Tankers, Inc. reference is made to the
registration statement.
We
are
subject to the information and periodic reporting requirements of the Securities
Exchange Act of 1934, as amended, and we file periodic reports and other
information with the Commission. These periodic reports and other information
are available for inspection and copying at the Commission’s public reference
facilities and the web site of the Commission referred to above. As a “foreign
private issuer”, we are exempt from the rules under the Securities Exchange Act
of 1934, as amended, prescribing the furnishing and content of proxy statements
to stockholders, but we are required to furnish certain proxy statements to
stockholders under New York Stock Exchange rules. Those proxy statements are
not
expected to conform to Schedule 14A of the proxy rules promulgated under the
Securities Exchange Act of 1934, as amended. In addition, as a “foreign private
issuer”, we are exempt from the rules under the Securities Exchange Act of 1934,
as amended, relating to short swing profit reporting and liability.
The
Commission allows us to “incorporate by reference” information that we file with
it. This means that we can disclose important information to you by referring
you to those filed documents. The information incorporated by reference is
considered to be a part of this prospectus, and information that we file later
with the Commission prior to the termination of this offering will also be
considered to be part of this prospectus and will automatically update and
supersede previously filed information, including information contained in
this
document.
We
incorporate by reference the documents listed below and any future filings
made
with the Commission under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended: (i) Annual Report on Form 20-F for the
year ended December 31, 2006, filed with the Commission on April 5, 2007, which
contains audited consolidated financial statements for the most recent fiscal
year for which those statements have been filed, (ii) Financial Statements
for
the quarter ended March 31, 2007, filed with the Commission on Form 6-K on
May
22, 2007, (iii) Amendments to the Ship Management Agreements on Form 6-K, filed
with the Commission on May 17, 2007 and (iv) the Registration Statement on
Form
8-A, filed with the Commission on October 7, 2005.
We
are
also incorporating by reference all subsequent annual reports on Form 20-F
that
we file with the Commission and certain reports on Form 6-K that we furnish
to
the Commission after the date of this prospectus (if they state that they are
incorporated by reference into this prospectus) until we file a post-effective
amendment indicating that the offering of the securities made by this prospectus
has been terminated. In all cases, you should rely on the later information
over
different information included in this prospectus or the prospectus
supplement.
23
We
will
provide, free of charge upon written or oral request, to each person to whom
this prospectus is delivered, including any beneficial owner of the securities,
a copy of any or all of the information that has been incorporated by reference
into this prospectus, but which has not been delivered with the
prospectus. Requests for such information should be made to us at the
following address:
26
New
Street
St.
Helier
Jersey
JE23RA
Channel
Islands
Phone
+44
(0) 1534 639759
Email
info@dhtankers.com
You
should assume that the information appearing in this prospectus and any
accompanying prospectus supplement as well as the information we previously
filed with the Commission and incorporated by reference, is accurate as of
the
dates on the front cover of those documents only. Our business, financial
condition and results of operations and prospects may have changed since those
dates.
24
This
prospectus contains assumptions, expectations, projections, intentions and
beliefs about future events. When used in this document, words such as
“believe,” “intend,” “anticipate,” “estimate,” “project,” “forecast,” “plan,”
“potential,” “will,” “may,” “should,” and “expect” and similar expressions are
intended to identify forward-looking statements, but are not the exclusive
means
of identifying such statements. These statements are intended as
“forward-looking statements.” We may also from time to time make forward-looking
statements in our periodic reports that we will file with the Commission, other
information sent to our security holders, and other written materials. We
caution that assumptions, expectations, projections, intentions and beliefs
about future events may and often do vary from actual results and the
differences can be material. The reasons for this include the risks,
uncertainties and factors described under the section of this prospectus
entitled “Risk Factors” on page 7 of this prospectus.
All
statements in this document that are not statements of historical fact are
forward-looking statements. Forward-looking statements include, but are not
limited to, such matters as:
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$
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future
payments of dividends and the availability of cash for payment of
dividends;
|
|
$
|
future
operating or financial results, including with respect to the amount
of
basic hire and additional hire that we may
receive;
|
|
$
|
statements
about future, pending or recent acquisitions, business strategy,
areas of
possible expansion and expected capital spending or operating
expenses;
|
|
$
|
statements
about tanker industry trends, including charter rates and vessel
values
and factors affecting vessel supply and
demand;
|
|
$
|
expectations
about the availability of vessels to purchase, the time which it
may take
to construct new vessels or vessels’ useful
lives;
|
|
$
|
expectations
about the availability of insurance on commercially reasonable
terms;
|
|
$
|
our
ability to repay our credit facility, to obtain additional financing
and
to obtain replacement charters for our
vessels;
|
|
$
|
assumptions
regarding interest rates;
|
|
$
|
changes
in production of or demand for oil and petroleum products, either
globally
or in particular regions;
|
|
$
|
greater
than anticipated levels of newbuilding orders or less than anticipated
rates of scrapping of older
vessels;
|
|
$
|
changes
in trading patterns for particular commodities significantly impacting
overall tonnage requirements;
|
|
$
|
change
in the rate of growth of the world and various regional
economies;
|
|
$
|
risks
incident to vessel operation, including discharge of pollutants;
and
|
25
|
$
|
unanticipated
changes in laws and regulations.
|
We
undertake no obligation to publicly update or revise any forward-looking
statements contained in this prospectus, whether as a result of new information,
future events or otherwise, except as required by law. In light of these risks,
uncertainties and assumptions, the forward-looking events discussed in this
prospectus might not occur, and our actual results could differ materially
from
those anticipated in these forward-looking statements.
26
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
8. Indemnification of Directors and Officers.
Our
bylaws provide that we shall, subject to the limitations contained in the
Marshall Islands Business Corporation Act, as amended from time to time,
indemnify all persons whom it may indemnify pursuant thereto.
The
form
of underwriting agreement, which is filed as Exhibit 1.1 to this registration
statement, provides that the underwriters to be named therein agree to indemnify
us and hold us harmless, together with each of our directors, officers and
controlling persons from and against certain liabilities, including liabilities
arising under the Securities Act of 1933, as amended. This form of underwriting
agreement also provides that such underwriters will contribute to amounts paid
or payable by such indemnified persons as a result of certain liabilities under
the Securities Act of 1933, as amended.
II-1
Item
9. Exhibits.
The
exhibits listed in the following table have been filed as part of this
registration statement.
II-2
II-3
Item
10. Undertakings.
The
undersigned registrant hereby undertakes:
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(1)
|
To
file, during any period in which offers or sales are being made,
a
post-effective amendment to this registration statement, unless the
information required to be included is contained in reports filed
with or
furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
registration statement or is contained in a form of prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended,
that
is part of this registration
statement:
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|
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(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities
Act
of 1933, as amended;
|
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(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent
a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease
in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering
price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
and;
|
|
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(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement.
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(2)
|
That,
for the purpose of determining any liability under the Securities
Act of
1933, as amended, each such post-effective amendment 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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(3)
|
To
remove from registration by means of a post-effective amendment any
of the
securities being registered which remain unsold at the termination
of the
offering.
|
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(4)
|
To
file a post-effective amendment to the registration statement to
include
any financial statements required by Item 8.A. of Form 20-F at the
start
of any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3)
of the
Securities Act of 1933, as amended, need not be furnished, provided,
that
the registrant includes in the prospectus, by means of a post-effective
amendment, financial statements required pursuant to this paragraph
(a)(4)
and other information necessary to ensure that all other information
in
the prospectus is at least as current as the date of those financial
statements. Notwithstanding the foregoing, with respect to registration
statements on Form F-3, a post-effective amendment need not be filed
to
include financial statements and information required by Section
10(a)(3)
of the Securities Act of 1933, as amended, or Rule 3-19 under the
Securities Act of 1933, as amended, if such financial statements
and
information are contained in periodic reports filed with or furnished
to
the Commission by the registrant pursuant to Section 13 or Section
15(d)
of the Securities Exchange Act of 1934, as amended, that are incorporated
by reference in the Form F-3.
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II-4
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(5)
|
That,
for the purpose of determining liability under the Securities Act
of 1933,
as amended, to any purchaser:
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(i)
|
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be
deemed to be part of this registration statement as of the date the
filed
prospectus was deemed part of and included in this registration
statement.
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(ii)
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or
(b)(7) as part of this registration statement for the purpose of
providing
the information required by section 10(a) of the Securities Act of
1933,
as amended, shall be deemed to be part of and included in this
registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the
issuer
and any person that is at that date an underwriter, such date shall
be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be
deemed
to be the initial bona fide offering thereof. Provided, however,
that no
statement made in a registration statement or prospectus that is
part of
the registration statement or made in a document incorporated or
deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser
with a
time of contract of sale prior to such effective date, supersede
or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective
date.
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(6)
|
That,
for the purpose of determining liability of the registrant under
the
Securities Act of 1933, as amended, to any purchaser in the initial
distribution of the securities: the undersigned registrant undertakes
that
in a primary offering of securities of the undersigned registrant
pursuant
to this registration statement, regardless of the underwriting method
used
to sell the securities to the purchaser, if the securities are offered
or
sold to such purchaser by means of any of the following communications,
the undersigned registrant will be a seller to the purchaser and
will be
considered to offer or sell such securities to such
purchaser:
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(i)
|
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
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(ii)
|
Any
free writing prospectus relating to the offering prepared by or on
behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
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(iii)
|
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant
or its
securities provided by or on behalf of the undersigned registrant;
and
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(iv)
|
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
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II-5
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|
(7)
|
The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, as amended, each
filing of
the registrant’s annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, (and, where applicable,
each
filing of an employee benefit plan’s annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934, as amended) that is
incorporated by reference in the registration statement 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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(8)
|
The
undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus
is
sent or given, the latest annual report to security holders that
is
incorporated by reference in the prospectus and furnished pursuant
to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934, as amended; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set
forth
in the prospectus, to deliver, or cause to be delivered to each person
to
whom the prospectus is sent or given, the latest quarterly report
that is
specifically incorporated by reference in the prospectus to provide
such
interim financial information.
|
II-6
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Oslo, Norway, on May 22, 2007.
|
DOUBLE
HULL TANKERS, INC.
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|
|
By:
|
/s/
Eirik Ubøe
|
|
Chief
Financial Officer
(Principal
Financial and Accounting Officer)
|
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KNOW
ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints each of Ole Jacob Diesen and Eirik Ubøe his or her true
and lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for him or her and in his or her name, place and stead, in
any
and all capacities, to sign any or all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to he done, as fully for all intents and purposes as
he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his substitute, may lawfully do or cause
to
be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on
the
date indicated.
|
Signature
|
Title
|
Date
|
||
|
/s/
Ole Jacob Diesen
|
||||
|
Ole
Jacob Diesen
|
Chief
Executive Officer
(Principal
Executive Officer)
|
May
22, 2007
|
||
|
/s/
Eirik Ubøe
|
||||
|
Eirik
Ubøe
|
Chief
Financial Officer
(Principal
Financial and Accounting Officer)
|
May
22, 2007
|
||
|
/s/
Erik A. Lind
|
||||
|
Erik
A. Lind
|
Chairman
of the Board
|
May
22, 2007
|
||
|
/s/
Randee Day
|
||||
|
Randee
Day
|
Director
|
May
22, 2007
|
||
|
/s/
Rolf A. Wikborg
|
||||
|
Rolf
A. Wikborg
|
Director
|
May
22, 2007
|
||
|
/s/
Donald J. Puglisi
|
||||
|
Donald
J. Puglisi
Managing
Director
Puglisi
& Associates
|
Authorized
Representative in the United States
|
May
22, 2007
|
Exhibit
1.1
DOUBLE
HULL TANKERS, INC.
_________
Shares
Common
Stock
($0.01
par value per Share)
UNDERWRITING
AGREEMENT
_________________,
2007
UNDERWRITING
AGREEMENT
_________,
2007
_______________
Ladies
and Gentlemen:
OSG
International, Inc., a Marshall
Islands corporation (the “Selling Stockholder”), proposes to sell to
___________________ (the “Underwriter”) an aggregate of ________ shares
(the “Shares”) of common stock, $0.01 par value per share (the “Common
Stock”), of Double Hull Tankers, Inc., a Marshall Islands corporation (the
“Company”). As used in this Agreement, the term “business day”
means a day on which the New York Stock Exchange (the “NYSE”) is open for
trading and the terms “herein,” “hereof” and “hereto” refer in each case to this
Agreement as a whole and not to any particular section, paragraph, sentence
or
other subdivision of this Agreement.
The
Company has prepared and filed, in
accordance with the provisions of the Securities Act of 1933, as amended,
and
the rules and regulations thereunder (collectively, the “Act”), with the
Securities and Exchange Commission (the “Commission”) a registration
statement on Form F-3 (File No. 333-________) under the Act, including a
base
prospectus, relating to Common Stock to be sold by the Selling Stockholder,
including the Shares. Except where the context otherwise requires,
“Registration Statement,” as used herein, means the registration
statement, as amended at the time of such registration statement’s effectiveness
for purposes of Section 11 of the Act, as such section applies to the
Underwriter (the “Effective Time”), including (i) all documents filed as
a part thereof, (ii) all material then incorporated by reference therein
and any
information deemed to be part of the registration statement at the Effective
Time pursuant to Rule 430A or Rule 430C under the Act, and (iii) any
registration statement filed to register the offer and sale of Shares pursuant
to Rule 462(b) under the Act (a “Rule 462(b) Registration Statement”).
Except where the context otherwise requires, the base prospectus filed as
part
of the Registration Statement, in the form in which it was most recently
filed
with the Commission and furnished to the Underwriter prior to the execution
of
this Agreement, is referred to herein as the “Base Prospectus,” and the
Base Prospectus, as supplemented by the final prospectus supplement specifically
relating to the offer and sale of the Shares, in the form filed or to be
filed
with the Commission pursuant to Rule 424(b) under the Act, is referred to
herein
as the “Prospectus.” Except where the context otherwise requires, the
term “Preliminary Prospectus” shall refer to the Base Prospectus, as
supplemented by any preliminary prospectus supplement specifically relating
to
the offer and sale of the Shares and furnished to the Underwriter prior to
the
execution of this Agreement or, if the Base Prospectus shall not have been
supplemented by such a preliminary prospectus supplement, such term shall
refer
to the Base Prospectus. For the purposes of this Agreement, any “issuer free
writing prospectus” (as defined in Rule 433 under the Act) relating to the
Shares is referred to as an “Issuer Free Writing Prospectus.” The
Underwriter has not offered or sold and will not offer or sell, without the
consent of the Company, any Shares by means of any “free writing prospectus” (as
defined in the Rule 405 under the Act) that is or would be required to be
filed
by the Underwriter with the Commission pursuant to Rule 433 under the Act,
other
than an Issuer Free Writing Prospectus listed on Schedule A hereto (each,
a “Permitted Free Writing Prospectus”).
The
Company, the Selling Stockholder
and the Underwriter agree as follows:
1. Sale
and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions set forth herein, the
Selling
Stockholder agrees to sell to the Underwriter and the Underwriter agrees
to
purchase from the Selling Stockholder an aggregate of _________ Shares, in
each
case at a purchase price of $____ per Share. The Company and the Selling
Shareholder have been advised that the Underwriter intends (i) to make a
public
offering of the Shares and (ii) initially to offer the Shares upon the terms
set
forth in the Prospectus. The Underwriter may from time to time
increase or decrease the public offering price after the public offering
to such
extent as it may determine.
2. Payment
and Delivery. Payment of the purchase price for the Shares shall
be made to the Selling Stockholder by Federal Funds wire transfer against
delivery of the certificates for the Shares to the Underwriter through the
facilities of The Depository Trust Company (“DTC”) for the account of the
Underwriter. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on ________, 2007, unless another time shall be agreed to by the
Underwriter, the Company and the Selling Stockholder. The time at which such
payment and delivery are to be made is sometimes referred to herein as the
“time of purchase.” Electronic transfer of the Shares shall be
made to the Underwriter at the time of purchase in such names and in such
denominations as the Underwriter shall specify.
Deliveries
of the documents described
in Section 9 hereof with respect to the purchase of the Shares shall be made
at
the offices of Simpson Thacher & Bartlett LLP at 425 Lexington Avenue, New
York, New York 10017, at 9:00 A.M., New York City time, at or prior to the
time
of purchase for the Shares.
3. Representations
and Warranties of the Company. The Company represents and
warrants to and agrees with the Underwriter that:
(a) the
Registration Statement has heretofore become effective under the Act or,
with
respect to any Rule 462(b) Registration Statement, will be filed with the
Commission and become effective under the Act no later than 10:00 P.M., New
York
City time, on the date of this Agreement; no stop order of the Commission
preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus nor any similar order directed to any document
incorporated by reference in the Preliminary Prospectus or the Final Prospectus,
or the effectiveness of the Registration Statement, has been issued, and
no
proceedings for such purpose have been instituted or, to the Company’s
knowledge, are contemplated by the Commission.
(b) the
Registration Statement complied when it became effective, complies as of
the
date hereof and, as amended or supplemented, at the time of purchase and
at all
times during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Act; the Registration Statement did
not,
as of the Effective Time, contain an untrue statement of a material fact
or omit
to state a material fact required to be stated therein or necessary to make
the
statements therein not misleading; each Preliminary Prospectus, if any,
complied, at the time it was filed with the Commission, and complies as of
the
date hereof, in all material respects with the requirements of the Act; each
Preliminary Prospectus (including the Exchange Act Documents incorporated
by
reference therein) and any amendment or supplement thereto, as of its date
and
the date it was filed with the Commission, and the most recent Preliminary
Prospectus (including the Exchange Act Documents incorporated by reference
therein), as then amended or supplemented (the “Pricing Prospectus”), as
of 4:30 p.m. on the date hereof (the “Applicable Time”), in each case
when read together with the then issued Issuer Free Writing Prospectuses,
if
any, and the information included on Schedule B hereto,
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2 -
did
not
include an untrue statement of a material fact or omit to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the Prospectus
will
comply, as of its date, the date that it is filed with the Commission, the
time
of purchase and at all times during which a prospectus is required by the
Act to
be delivered (whether physically or through compliance with Rule 172 under
the
Act or any similar rule) in connection with any sale of Shares, in all material
respects, with the requirements of the Act; at no time during the period
that
begins on the earlier of the date of the Prospectus and the date the Prospectus
is filed with the Commission and ends at the later of the time of purchase
and
the end of the period during which a prospectus is required by the Act to
be
delivered (whether physically or through compliance with Rule 172 under the
Act
or any similar rule) in connection with any sale of Shares did or will the
Prospectus, as then amended or supplemented, include an untrue statement
of a
material fact or omit to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading; each Issuer Free Writing Prospectus, when read together
with the Pricing Prospectus, any other Issuer Free Writing Prospectuses then
issued and the information included on Schedule B hereto, as of the
Applicable Time, did not include an untrue statement of a material fact or
omit
to state a material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or
warranty in this Section 3(b) with respect to any statement contained in
the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
Issuer
Free Writing Prospectus in reliance upon and in conformity with information
concerning the Underwriter and furnished in writing by or on behalf of the
Underwriter to the Company expressly for use in the Registration Statement,
such
Preliminary Prospectus, the Prospectus or such Issuer Free Writing
Prospectus.
(c) The
documents incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or hereafter
are
filed with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the “1934 Act Regulations”) and, when read together with
the other information in the Prospectus, at the date of the Prospectus and
at
the closing time, if any, did not and will not include an untrue statement
of a
material fact or omit to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading.
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3 -
(d) the
Company has not, directly or indirectly, offered or sold any Shares by means
of
any “prospectus” (within the meaning of the Act) or used any “prospectus”
(within the meaning of the Act) in connection with the offer or sale of the
Shares other than the Preliminary Prospectus and the Permitted Free Writing
Prospectuses, if any; the Company is not and will continue not to be an
“ineligible issuer” (as defined in Rule 405 under the Act) for the purposes of
Rules 164 and Rule 433 under the Act in connection with the offer or sale
of the
Shares; and the Company has complied, and will comply, with the requirements
of
Rules 164 and Rule 433 under the Act applicable to any Issuer Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and record-keeping;
(e) the
Company has an authorized and outstanding capitalization as set forth in
the
Registration Statement, the Pricing Prospectus and the Prospectus; all of
the
issued and outstanding shares of capital stock of the Company, including
the
Shares, have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable federal
and
state securities laws and were not issued in violation of any preemptive
right,
resale right, right of first refusal or similar right; and the Shares are
duly
listed and admitted and authorized for trading on the NYSE;
(f) the
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the Marshall Islands, with full corporate
power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the Pricing Prospectus and the
Prospectus and to execute and deliver this Agreement;
(g) the
Company is duly qualified to do business as a foreign corporation and is
in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where
the
failure to be so qualified and in good standing would not, individually or
in
the aggregate, have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company and
the
subsidiaries of the Company named in Schedule C hereto (the
“Subsidiaries”) taken as a whole (a “Material Adverse
Effect”);
(h) the
Company has no “subsidiaries” (as defined under the Act) other than the
Subsidiaries; the Company owns all of the issued and outstanding capital
stock
of each of the Subsidiaries; other than the capital stock of the Subsidiaries,
the Company does not own, directly or indirectly, any shares of stock or
any
other equity or long-term debt securities of any corporation or have any
equity
interest in any firm, partnership, joint venture, association or other entity;
complete and correct copies of the articles of incorporation and bylaws of
the
Company and each Subsidiary and all amendments and restatements thereto have
been delivered to the Underwriter or its counsel, and, except as set forth
in
the exhibits to the Registration Statement, no changes therein will be made
on
or after the date hereof or on or before the time of purchase; each Subsidiary
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the Marshall Islands, with full corporate power
and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the Pricing Prospectus and the
Prospectus; each Subsidiary is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the ownership
or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing
would not, individually or in the aggregate, have a Material Adverse Effect;
each Subsidiary is in compliance in all respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdictions,
except
where the failure to be in compliance would not, individually or in the
aggregate, have a Material Adverse Effect; all of the outstanding shares
of
capital stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, have been issued in compliance
with
all applicable federal and state securities laws, were not issued in violation
of any preemptive right, resale right, right of first refusal or similar
right
and are owned by the Company subject to no security interest, other encumbrance
or adverse claims; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding;
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4 -
(i) the
capital stock of the Company, including the Shares, conforms in all material
respects to the description thereof contained in the Registration Statement,
the
Pricing Prospectus and the Prospectus; the certificates for the Shares comply
with the applicable requirements of the Company’s articles of incorporation and
bylaws, any applicable laws and the rules of the NYSE; and the holders of
the
Shares will not be subject to personal liability for the debt or other
obligations of the Company by reason of being such holders;
(j) this
Agreement has been duly authorized, executed and delivered by the
Company;
(k) neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of time
or
both would result in any breach or violation of, constitute a default under
or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a
part of
such indebtedness under) (i) its respective articles of incorporation or
bylaws,
(ii) any indenture, mortgage, deed of trust, bank loan or credit agreement
or
other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is
a
party or by which any of them or any of their respective properties may be
bound
or affected, (iii) any federal, state, local or foreign law, regulation or
rule,
(iv) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the
rules
and regulations of the NYSE) or (v) any decree, judgment or order applicable
to
the Company or any of the Subsidiaries or any of their respective properties,
except in the case of the foregoing clauses (ii), (iii), (iv) and (v) above
as
would, individually or in the aggregate, have a Material Adverse
Effect;
(l) the
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby will not conflict with, result in any
breach or violation of or constitute a default under (or constitute any event
which with notice, lapse of time or both would result in any breach or violation
of or constitute a default under or give the holder of any indebtedness (or
a
person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness under) (or
result
in the creation or imposition of a lien, charge or encumbrance on any property
or assets of the Company or any Subsidiary pursuant to) (i) the articles
of
incorporation or bylaws of the Company or any of the Subsidiaries, (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement
or
instrument to which the Company or any of the Subsidiaries is a party or
by
which any of them or any of their respective properties may be bound or
affected, (iii) any federal, state, local or foreign law, regulation or rule,
(iv) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the
rules
and regulations of the NYSE) or (v) any decree, judgment or order applicable
to
the Company or any of the Subsidiaries or any of their respective properties,
except in the case of the foregoing clauses (ii), (iii), (iv) and (v) as
would
not, individually or in the aggregate, have a Material Adverse
Effect;
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5 -
(m) no
approval, authorization, consent or order of or filing with any federal,
state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization, other
non-governmental regulatory authority (including, without limitation, the
NYSE),
is required in connection with the execution, delivery and performance of
this
Agreement or the consummation by the Company of the transactions contemplated
hereby, other than registration of the Shares under the Act, which has been
effected (or, with respect to a Rule 462(b) Registration Statement, will
be
effected in accordance herewith), any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the Shares
are
being offered by the Underwriter or under the rules and regulations of the
National Association of Securities Dealers, Inc. (the “NASD”) and such
approvals, authorizations, consents, orders or filings that have been obtained
or made and are in full force and effect;
(n) except
as expressly set forth in the Registration Statement, the Pricing Prospectus
and
the Prospectus, (i) no person has the right, contractual or otherwise, to
cause
the Company to issue or sell to it any shares of Common Stock or shares of
any
other capital stock or other equity interests of the Company, (ii) no person
has
any preemptive rights, resale rights, rights of first refusal or other rights
to
purchase any shares of Common Stock or shares of any other capital stock
of or
other equity interests in the Company and (iii) no person has the right to
act
as an underwriter or as a financial advisor to the Company in connection
with
the offer and sale of the Shares, in the case of each of the foregoing clauses
(i), (ii) and (iii), whether as a result of the filing or effectiveness of
the
Registration Statement or the sale of the Shares as contemplated thereby
or
otherwise; except as expressly set forth in the Registration Statement, the
Pricing Prospectus and the Prospectus, no person has the right, contractual
or
otherwise, to cause the Company to register under the Act any shares of Common
Stock or shares of any other capital stock of or other equity interests in
the
Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby, whether as a result of the
filing or effectiveness of the Registration Statement or the sale of the
Shares
as contemplated thereby or otherwise;
(o) each
of the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under
any
federal, state, local or foreign law, regulation or rule, and has obtained
all
necessary licenses, authorizations, consents and approvals from other persons,
in order to conduct its respective business as described in the Registration
Statement, the Pricing Prospectus and the Prospectus, except where the failure
to have such licenses, authorizations, consents and approvals or to have
made
such filings would not, individually or in the aggregate, have a Material
Adverse Effect; neither the Company nor any of the Subsidiaries is in violation
of, or in default under, or has received notice of any proceedings relating
to
revocation or modification of any such license, authorization, consent or
approval or any filing required under any federal, state, local or foreign
law,
regulation or rule or any decree, order or judgment applicable to the Company
or
any of the Subsidiaries, except where such violation, default, revocation
or
modification would not, individually or in the aggregate, have a Material
Adverse Effect;
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6 -
(p) all
legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions (including, without limitation, transactions related to, and
the
existence of, “variable interest entities” within the meaning of Financial
Accounting Standards Board Interpretation No. 46), contracts, licenses,
agreements, properties, leases or documents required to be described in the
Registration Statement, the Pricing Prospectus or the Prospectus or the
documents incorporated by reference therein or to be filed as an exhibit
to the
Registration Statement have been so described or filed as required;
(q) there
are no actions, suits, claims, investigations or proceedings pending or,
to the
knowledge of the Company, threatened to which the Company or any of the
Subsidiaries or any of their respective directors or officers is or would
be a
party, or of which any of their respective properties, including any vessel
named in Schedule C hereto (each, a “Vessel”), is or would be subject, at
law or in equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency, or before or
by any
self-regulatory organization or other non-governmental regulatory authority,
except any such action, suit, claim, investigation or proceeding which would
not
result in a judgment, decree or order having, individually or in the aggregate,
a Material Adverse Effect and would not prevent the consummation of the
transactions contemplated hereby;
(r) Ernst
& Young LLP, whose audit reports on (i) the consolidated financial
statements of the Company as of December 31, 2005 and 2006 and for the period
from October 18, 2005 to December 31, 2005 (the “Company Financial
Statements”) and (ii) the combined financial statements of the predecessor
of the Company as of December 31, 2004 and for the period from January 1,
2005
to October 17, 2005 (the “Predecessor Financial Statements”) are included
in the Registration Statement, the Pricing Prospectus and the Prospectus,
are
independent registered public accountants as required by the Act and by the
rules of the Public Company Accounting Oversight Board;
(s) the
Company Financial Statements and the Predecessor Financial Statements included
in the Registration Statement, the Pricing Prospectus and the Prospectus,
together with the related notes thereto, present fairly in all material respects
the financial position of the Company and its predecessor, as the case may
be,
as of the dates indicated and the results of operations and cash flows of
the
Company and its predecessor, as the case may be, for the periods specified
and
have been prepared in compliance with the requirements of the Act and Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and in conformity
with United States generally accepted accounting principles applied on a
consistent basis during the periods involved; all pro forma financial statements
or data included in the Registration Statement, the Pricing Prospectus or
the
Prospectus and indicated as being such comply with the requirements of
Regulation S-X of the Act, including, without limitation, Article 11 thereof,
and the assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used therein
are
appropriate to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements and data; the other
historical financial and related statistical data set forth in the Registration
Statement, the Pricing Prospectus or the Prospectus are accurately and fairly
presented and prepared on a basis consistent with the financial statements
and
books and records of the Company or its predecessor, as the case may be;
there
are no financial statements (historical or pro forma) that are required to
be
included in the Registration Statement, the Pricing Prospectus or the Prospectus
(including, without limitation, as required by Rules 3-12 or 3-05 or Article
11
of Regulation S-X under the Act) that are not included as required; neither
the
Company nor any of the Subsidiaries has any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not
disclosed in the Registration Statement, the Pricing Prospectus and the
Prospectus; and all disclosures contained in the Registration Statement,
the
Pricing Prospectus or the Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the Commission) comply
with
Regulation G of the Exchange Act and Item 10 of Regulation S-K under the
Act, to
the extent applicable;
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7 -
(t) subsequent
to the time of execution of this Agreement or, if earlier, the respective
dates
as of which information is given in the Registration Statement, the Pricing
Prospectus and the Prospectus (in each case excluding any amendments or
supplements thereto made after the execution of this Agreement), there has
not
been (i) any material adverse change, or any development involving a prospective
material adverse change, in the business, properties, financial condition,
results of operations or prospects of the Company and the Subsidiaries taken
as
a whole, (ii) any obligation, direct or contingent (including any off-balance
sheet obligations), incurred by the Company or any Subsidiary, which is material
to the Company and the Subsidiaries taken as a whole, (iii) any change in
the
capital stock or outstanding indebtedness of the Company or any Subsidiary
or
(iv) any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company;
(u) the
Company has obtained for the benefit of the Underwriter the agreement (a
“Lock-Up Agreement”), in the form set forth as Exhibit A hereto,
of each of its directors, officers and stockholders named in Schedule D
hereto;
(v) the
Company is a “foreign private issuer” (as defined in Rule 405) of the
Act;
(w) the
Company is not and, after giving effect to the offer and sale of the Shares
and
at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or
any
similar rule) in connection with any sale of Shares, will not be an “investment
company” or an entity “controlled” by an “investment company,” as such terms are
defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”) or a “passive foreign investment company” or a “controlled
foreign corporation,” as such terms are defined in the Internal Revenue Code of
1986, as amended (the “Internal Revenue Code”);
(x) the
Company and each of the Subsidiaries has good and marketable title to all
property (real and personal), if any, described in the Registration Statement,
the Pricing Prospectus or the Prospectus as being owned by each of them,
free
and clear of all liens, claims, security interests or other encumbrances
with
such exceptions as are not material and do not interfere with the intended
use
to be made of such property by the Company or its Subsidiaries as described
in
the Registration Statement, the Pricing Prospectus and the Prospectus; and
all
the property described in the Registration Statement, the Pricing Prospectus
or
the Prospectus as being held under lease by the Company or a Subsidiary is
held
thereby under valid, subsisting and enforceable leases with such exceptions
as
are not material and do not interfere with the intended use to be made of
such
property by the Company or its Subsidiaries as described in the Registration
Statement, the Pricing Prospectus and the Prospectus;
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8 -
(y) the
Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), trade names, service
names, copyrights, trade secrets and other proprietary information described
in
the Registration Statement, the Pricing Prospectus or the Prospectus as being
owned or licensed by them or which are necessary for the conduct of their
respective businesses as currently conducted or as proposed to be conducted,
except where the failure to own, license or have such rights would not,
individually or in the aggregate, have a Material Adverse Effect (collectively,
“Intellectual Property”); (i) there are no third parties who have or, to
the Company’s knowledge, will be able to establish rights to any Intellectual
Property, except for, and to the extent of, the ownership rights of the owners
of the Intellectual Property is licensed to the Company; (ii) to the Company’s
knowledge, there is no infringement by third parties of any Intellectual
Property; (iii) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others challenging the Company’s rights in
or to any Intellectual Property, and the Company is unaware of any facts
which
could form a reasonable basis for any such action, suit, proceeding or claim;
(iv) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the validity, enforceability
or
scope of any Intellectual Property, and the Company is unaware of any facts
which could form a reasonable basis for any such action, suit, proceeding
or
claim; (v) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company or any Subsidiary
infringes or otherwise violates any patent, trademark, trade name, service
name,
copyright, trade secret or other proprietary rights of others, and the Company
is unaware of any facts which could form a reasonable basis for any such
action,
suit, proceeding or claim; (vi) to the Company’s knowledge, there is no patent
or patent application that contains claims that interfere with the issued
or
pending claims of any of the Intellectual Property; (viii) to the Company’s
knowledge, there is no prior art that may render any patent application owned
by
the Company or any Subsidiary of the Intellectual Property unpatentable that
has
not been disclosed to the U.S. Patent and Trademark Office;
(z) neither
the Company nor any of the Subsidiaries is engaged in any unfair labor practice;
except for matters which would not, individually or in the aggregate, have
a
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint
pending or, to the Company’s knowledge, threatened against the Company or any of
the Subsidiaries before the National Labor Relations Board, and no grievance
or
arbitration proceeding arising out of or under collective bargaining agreements
is pending or, to the Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened
against the Company or any of the Subsidiaries and (C) no union representation
dispute currently existing concerning the employees of the Company or any
of the
Subsidiaries, and (ii) to the Company’s knowledge, (A) no union organizing
activities are currently taking place concerning the employees of the Company
or
any of the Subsidiaries and (B) there has been no violation of any federal,
state, local or foreign law relating to discrimination in the hiring, promotion
or pay of employees, any applicable wage or hour laws or any provision of
the
Employee Retirement Income Security Act of 1974 (“ERISA”) or the rules
and regulations promulgated thereunder concerning the employees of the Company
or any of the Subsidiaries;
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9 -
(aa) each
of the Company and the Subsidiaries and their respective properties, assets
and
operations is in compliance with, and each of the Company and the Subsidiaries
holds all permits, authorizations and approvals required under, Environmental
Laws (as hereinafter defined), except to the extent that failure to so comply
or
to hold such permits, authorizations or approvals would not, individually
or in
the aggregate, have a Material Adverse Effect; there are no past, present
or, to
the Company’s knowledge, reasonably anticipated future events, conditions,
circumstances, actions, omissions or plans that could reasonably be expected
to
give rise to any material costs or liabilities to the Company or any Subsidiary
under, or to materially interfere with or prevent compliance by the Company
or
any Subsidiary with, Environmental Laws; except as would not, individually
or in
the aggregate, have a Material Adverse Effect, neither the Company nor any
of
the Subsidiaries (i) has received any notice that it is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party to
or
affected by any pending or, to the Company’s knowledge, threatened action, suit
or proceeding, (iv) is bound by any judgment, decree or order or (v) has
entered
into any written indemnification or settlement agreement, in each case relating
to any alleged violation of any Environmental Law or any actual or alleged
release or threatened release or cleanup at any location of any Hazardous
Materials (as hereinafter defined) (as used herein, “Environmental Law”
means any applicable federal, state, local or foreign law, statute,
ordinance,
rule, regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement or common law (including any
applicable regulations and standards adopted by the International Maritime
Organization) relating to health, safety or the protection, cleanup or
restoration of the environment or natural resources, and “Hazardous
Materials” means any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that in relevant form
and
concentration is regulated by or may give rise to liability under any
Environmental Law);
(bb) the
Subsidiaries have arranged for the technical manager of the Vessels (the
“Technical Manager”) to conduct a periodic review of the effect of the
Environmental Laws on their respective businesses, operations and properties
for
the purposes of identifying and evaluating associated costs and liabilities
(including, without limitation, any capital or operating expenditures required
for cleanup or compliance with the Environmental Laws or any permit, license
or
approval, any related constraints on operating activities and any potential
liabilities to third parties);
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10 -
(cc) all
income and other material tax returns required to be filed by the Company
or any
of the Subsidiaries have been filed, and all taxes and other material
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been timely paid,
other
than those being contested in good faith and for which adequate reserves
have
been provided;
(dd) the
Company and the Subsidiaries maintain or have caused the Technical Manager
to
maintain for its or their benefit, insurance or a membership in a mutual
protection and indemnity association covering its properties, operations,
personnel and businesses as deemed adequate by the Company; such insurance
or
membership insures or will insure against such losses and risks to an extent
which is adequate in accordance with customary industry practice to protect
the
Vessels and, in the case of insurance or a membership maintained by or for
the
benefit of the Company and the Subsidiaries, their businesses; any such
insurance or membership maintained by or for the benefit of the Company and
its
Subsidiaries is and will be fully in force at the time of purchase; there
are no
material claims by the Company or any Subsidiary under any insurance policy
or
instrument as to which any insurance company or mutual protection and indemnity
association is denying liability or defending under a reservation of rights
clause; neither the Company nor any of the Subsidiaries is currently required
to
make any material payment, or is aware of any facts that would require the
Company or any Subsidiary to make any material payment, in respect of a call
by,
or a contribution to, any mutual protection and indemnity association; and
neither the Company nor any Subsidiary has reason to believe that it will
not be
able to renew or cause to be renewed for its benefit any such insurance or
membership in a mutual protection and indemnity association as and when such
insurance or membership expires or is terminated;
(ee) since
the date of the last audited Company Financial Statements included in the
Registration Statement, the Pricing Prospectus and the Prospectus, (i) there
has
not been a material partial loss or total loss of or to any of the Vessels,
whether actual or constructive, (ii) no Vessel has been arrested or
requisitioned for title or hire and (iii) neither the Company nor any
of the Subsidiaries has sustained any material loss or interference with
its
respective business from fire, explosion, flood or other calamity, whether
or
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree;
(ff) none
of the contracts or agreements filed as an exhibit to the Registration Statement
has been terminated, amended, modified, supplemented or waived; neither the
Company nor any Subsidiary has sent or received any communication regarding
the
termination, amendment, modification, supplementation or waiver of, or an
intention to terminate, amend, modify, supplement or waive, or not to consummate
any transaction contemplated by, any such contract or agreement; and no such
termination, amendment, modification, supplementation or waiver, or intention
to
terminate, amend, modify, supplement or waive, or not to consummate any
transaction contemplated by, any such contract or agreement has been threatened
by the Company or any Subsidiary or, to the Company’s knowledge, any other party
to any such contract or agreement;
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11 -
(gg) the
Company and each of the Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are
executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain accountability for assets; (iii) access to assets is permitted only
in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(hh) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act); such disclosure controls and procedures are designed to ensure
that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s Chief Executive Officer and its
Chief Financial Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for which
they
were established; the Company’s auditors and Board of Directors of the Company
have been advised of: (i) any significant deficiencies and material weaknesses
in the design or operation of internal controls which are reasonably likely
to
adversely affect the Company’s ability to record, process, summarize, and report
financial data; and (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal
controls; to date, the Company’s auditors have not identified any material
weaknesses in internal controls; since the date of the most recent evaluation
of
such disclosure controls and procedures, there have been no changes in internal
controls or in other factors within control of the Company that have materially
affected, or are reasonably likely to materially affect, the Company’s internal
controls; and the Company, the Subsidiaries and their respective officers
and
directors, in their capacities as such, are each in compliance in all material
respects with the provisions of the Sarbanes-Oxley Act of 2002 and the rules
and
regulations promulgated thereunder that are applicable to the Company, the
Subsidiaries or such officers and directors;
(ii) the
Company has not, directly or indirectly, including through any Subsidiary,
extended credit, arranged to extend credit, or renewed any extension of credit,
in the form of a personal loan, to or for any director or executive officer
of
the Company, or to or for any family member or affiliate of any director
or
executive officer of the Company;
(jj) each
“forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained in the Registration Statement,
the
Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus
has
been made with a reasonable basis and has been disclosed in good
faith;
(kk) all
statistical or market-related data included in the Registration Statement,
the
Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus
are
based on or derived from sources that the Company believes to be reliable
and
accurate, and the Company has obtained the written consent to the use of
such
data from such sources to the extent required;
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12 -
(ll) 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 the
Subsidiaries is aware of or has taken any action, directly or indirectly,
that
would result in a violation by such persons of the Foreign Corrupt Practices
Act
of 1977, as amended, and the rules and regulations thereunder (the “Foreign
Corrupt Practices Act”), including, without limitation, making use of the
mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization of the
payment
of any money, or other property, gift, promise to give, or authorization
of the
giving of anything of value to any “foreign official” (as such term is defined
in the Foreign Corrupt Practices Act) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of
the
Foreign Corrupt Practices Act; and the Company, the Subsidiaries and, to
the
Company’s knowledge, the affiliates of the Company have conducted their
businesses in compliance with the Foreign Corrupt Practices Act and have
instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance
therewith;
(mm) the
operations of the Company, the Subsidiaries and the Vessels are and have
been
conducted at all times in compliance with applicable financial recordkeeping
and
reporting requirements of the Currency and Foreign Transactions Reporting
Act of
1970, as amended, the money laundering statutes, rules and regulations of
all
jurisdictions and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency that, in each
case,
are applicable to the Company, any of the Subsidiaries and any of the Vessels
(collectively, the “Money Laundering Laws”); and no action, suit or
proceeding by or before any court or governmental agency, authority or body
or
any arbitrator or non-governmental authority involving the Company, any of
the
Subsidiaries or any of the Vessels with respect to the Money Laundering Laws
is
pending or, to the Company’s knowledge, threatened;
(nn) 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 the
Subsidiaries is currently subject to any United States sanctions administered
by
the Office of Foreign Assets Control of the United States Treasury Department
(“OFAC”);
(oo) no
Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the
Company, except as described in the Registration Statement, the Pricing
Prospectus and the Prospectus; all dividends and other distributions declared
and payable on the shares of Common Stock of the Company and on the capital
stock of each Subsidiary may under the current laws and regulations of the
Marshall Islands be paid in United States dollars and freely transferred
out of
the Marshall Islands; and all such dividends and other distributions are
not
subject to withholding or other taxes under the current laws and regulations
of
the Marshall Islands and are otherwise free and clear of any withholding
or
other tax and may be declared and paid without the necessity of obtaining
any
consents, approvals, authorizations, orders licenses, registrations, clearances
and qualifications of or with any court or governmental agency or body or
any
stock exchange authorities in the Marshall Islands.
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13 -
(pp) except
pursuant to this Agreement, neither the Company nor any of the Subsidiaries
has
incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby or by the Registration Statement,
the
Pricing Prospectus and the Prospectus;
(qq) neither
the Company nor any of the Subsidiaries nor, to the Company’s knowledge, any of
their respective directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has constituted
or
might reasonably be expected to cause or result in, under the Exchange Act
or
otherwise, the stabilization or manipulation of the price of any security
of the
Company to facilitate the sale or resale of the Shares; and
(rr) to
the Company’s knowledge, there are no affiliations or associations between (i)
any member of the NASD and (ii) the Company or any of the Company’s officers,
directors or 5% or greater securityholders or any beneficial owner of the
Company’s unregistered equity securities that were acquired at any time on or
after the 180th day immediately preceding the date the Registration Statement
was initially filed with the Commission, except as set forth in the Registration
Statement, the Pricing Prospectus and the Prospectus.
In
addition, any certificate signed by
any officer of the Company and delivered to the Underwriter or counsel for
the
Underwriter in connection with the offering of the Shares shall be deemed
to be
a representation and warranty by the Company, as to matters covered thereby,
to
the Underwriter.
4. Representations
and Warranties of the Selling Stockholder. The Selling
Stockholder represents and warrants to the Underwriter that:
(a) the
Selling Stockholder is and at the time of purchase will be the lawful owner
of
the number of Shares to be sold by the Selling Stockholder and the Selling
Stockholder has and at the time of purchase will have valid and marketable
title
to the Shares to be sold by the Selling Stockholder, and upon delivery of
and
payment for any Shares, the Underwriter will acquire valid and marketable
title
to such Shares free and clear of any claim, lien, encumbrance, security
interest, community property right, restriction on transfer or other defect
in
title;
(b) the
Selling Stockholder has been duly incorporated and is validly existing as
a
corporation in good standing under the laws of the Marshall Islands; the
Selling
Stockholder has and at the time of purchase will have full legal right, power
and capacity, and all authorizations and approvals required by law (other
than
those imposed by the Act and state securities or blue sky laws), (i) to enter
into this Agreement, (ii) to sell, assign, transfer and deliver the Shares
pursuant to this Agreement in the manner provided in this Agreement and (iii)
to
make the representations, warranties and agreements made by the Selling
Stockholder herein;
(c) this
Agreement has been duly executed and delivered by the Selling Stockholder
and is
a legal, valid and binding agreement of the Selling Stockholder, enforceable
in
accordance with its terms;
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14 -
(d) all
information with respect to the Selling Stockholder included in the Registration
Statement, any Preliminary Prospectus or the Prospectus complied and will
comply
with all applicable provisions of the Act; the Registration Statement, as
it
relates to the Selling Stockholder, did not, as of the Effective Time, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
each Preliminary Prospectus and any amendment or supplement thereto, as of
its
date and the date it was filed with the Commission, and the Pricing Prospectus,
as of the Applicable Time, in each case as it relates to the Selling Stockholder
and when read together with the then issued Issuer Free Writing Prospectuses,
if
any, and the information included in Schedule B hereto, did not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; at no time during
the
period that begins on the earlier of the date of the Prospectus and the date
the
Prospectus is filed with the Commission and ends at the later of the time
of
purchase and the end of the period during which a prospectus is required
by the
Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares
did or
will the Prospectus, as then amended or supplemented, as the Prospectus relates
to the Selling Stockholder, include an untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
each Issuer Free Writing Prospectus, as such Issuer Free Writing Prospectus
relates to the Selling Stockholder and when read together with the Pricing
Prospectus, any other Issuer Free Writing Prospectuses then issued and the
information included on Schedule B hereto, as of the Applicable Time, did
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(e) the
sale of the Shares by the Selling Stockholder pursuant to this Agreement
is not
prompted by any material information concerning the Company or any Subsidiary
which is not set forth in the Registration Statement, the Pricing Prospectus
and
the Prospectus;
(f) neither
the Selling Stockholder nor any of its affiliates has taken, directly or
indirectly, any action designed to, or which has constituted or might reasonably
be expected to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the Company
to
facilitate the sale or resale of the Shares;
(g) to
the Selling Stockholder’s knowledge, there are no affiliations or associations
between any member of the NASD and the Selling Stockholder, except as set
forth
in the Registration Statement, the Pricing Prospectus and the Prospectus;
and
none of the proceeds received by the Selling Stockholder from the sale of
the
Shares to be sold by the Selling Stockholder pursuant to this Agreement will
be
paid to a member of the NASD or any affiliate of such member;
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15 -
(h) at
the time of purchase, all stock transfer or other taxes (other than income
taxes), if any, that are required to be paid in connection with the sale
and
transfer of the Shares to the Underwriter will be fully paid or provided
for by
the Selling Stockholder, and all laws imposing such taxes will be fully complied
with;
(i) no
approval, authorization, consent or order of or filing with any federal,
state,
local or foreign governmental or regulatory commission, court, board, body,
authority or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the
NYSE)
is required in connection with the sale of the Shares by the Selling Stockholder
pursuant to this Agreement or the consummation by the Selling Stockholder
of the
transactions contemplated hereby, other than registration of such Shares
under
the Act, which has been effected (or, with respect to a Rule 462(b) Registration
Statement, will be effected in accordance herewith), any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which
such
Shares are being offered by the Underwriter or under the rules and regulations
of the NASD and such approvals, authorizations, consents, orders or filings
that
have been obtained or made and are in full force and effect;
(j) the
Selling Stockholder has not offered or sold any Shares by means of any
“prospectus” (within the meaning of the Act), or used any “prospectus” (within
the meaning of the Act) in connection with the offer or sale of the Shares,
in
each case other than the then most recent Preliminary Prospectus;
(k) the
execution, delivery and performance of this Agreement, the sale by the Selling
Stockholder of the Shares pursuant to this Agreement and the consummation
of the
transactions contemplated hereby will not conflict with, result in any breach
or
violation of or constitute a default under (or constitute any event which
with
notice, lapse of time or both would result in any breach or violation of
or
constitute a default under) (i) the charter or bylaws of the Selling
Stockholder, (ii) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract
or
other agreement or instrument to which the Selling Stockholder is a party
or by
which the Selling Stockholder or any of its properties may be bound or affected,
(iii) any federal, state, local or foreign law, regulation or rule, (iv)
any
rule or regulation of any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the rules and regulations
of the NYSE) or (v) any decree, judgment or order applicable to the Selling
Stockholder or its properties, except in the case of the foregoing clauses
(ii),
(iii), (iv) and (v) as would not, individually or in the aggregate, have
a
material adverse effect on the ability of the Selling Stockholder to consummate
the transactions contemplated hereby;
(l) no
stamp duty, stock exchange tax, value-added tax, withholding tax or any other
similar duty or tax is payable by or on behalf of the Underwriter in the
United
States or the Marshall Islands or any political subdivision thereof or any
authority thereof having power to tax in connection with the execution, delivery
or performance of this Agreement by the Selling Stockholder or the sale or
delivery of the Shares by the Selling Stockholder to or for the account of
the
Underwriter or the resales of the Shares by the Underwriter to the initial
purchasers thereof; and
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16 -
(m) certificates
in negotiable form representing all of the Shares to be sold by the Selling
Stockholder hereunder have been or will be at the applicable time of payment
duly and properly endorsed in blank for transfer, accompanied by all documents,
including stock powers, duly and properly executed that are necessary to
validate the transfer of title to such Shares to the Underwriter, free of
any
legend, restriction on transferability, proxy, lien or claim
whatsoever.
In
addition, any certificate signed by
any officer of the Selling Stockholder or any of the Selling Stockholder’s
affiliates or by the Selling Stockholder and delivered to the Underwriter
or
counsel for the Underwriter in connection with the offering of the Shares
shall
be deemed to be a representation and warranty by the Selling Stockholder,
as to
matters covered thereby, to the Underwriter.
5. Certain
Covenants of the Company. The Company hereby agrees:
(a) to
furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue
sky
laws of such states or other jurisdictions as the Underwriter may reasonably
designate and to maintain such qualifications in effect so long as may be
required for the distribution of the Shares; provided, however,
that the Company shall not be required to qualify as a foreign corporation
or
subject itself to taxation in any such jurisdiction or consent to the service
of
process under the laws of any such jurisdiction (except service of process
with
respect to the offering and sale of the Shares); and to promptly advise the
Underwriter of the receipt by the Company of any notification with respect
to
the suspension of the qualification of the Shares for offer or sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(b) to
make available to the Underwriter in New York City, as soon as practicable
after
the date of this Agreement, and thereafter from time to time to furnish to
the
Underwriter, as many copies of the Prospectus (or of the Prospectus as amended
or supplemented if the Company shall have made any amendments or supplements
thereto after the date of this Agreement) as the Underwriter may request
for the
purposes contemplated by the Act; in case the Underwriter is required to
deliver
(whether physically or through compliance with Rule 172 under the Act or
any
similar rule), in connection with the sale of the Shares, a prospectus after
the
nine-month period referred to in Section 10(a)(3) of the Act, the Company
will
prepare, at its expense, promptly upon request such amendment or amendments
to
the Registration Statement and the Prospectus as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act;
(c) if,
at the time this Agreement is executed and delivered, it is necessary for
any
post-effective amendment to the Registration Statement or a Rule 462(b)
Registration Statement to be filed with the Commissions and become effective
before the Shares may be sold, the Company will use its best efforts to cause
such post-effective amendment or such Rule 462(b) Registration Statement
to be
filed and become effective, and will pay any fees in accordance with the
Act as
soon as possible, and the Company will advise the Underwriter promptly and,
if
requested by the Underwriter, will confirm such advice in writing, (i) when
such
post-effective amendment or such Rule 462(b) Registration Statement has become
effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when
the
Prospectus is filed with the Commission pursuant to Rule 424(b) under the
Act
(which the Company agrees to file in a timely manner in accordance with such
Rules);
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17 -
(d) to
advise the Underwriter promptly, and, if requested by the Underwriter, to
confirm such advice in writing, of any request by the Commission for amendments
or supplements to the Registration Statement, any Preliminary Prospectus,
the
Prospectus or any Issuer Free Writing Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for, or
the
entry of a stop order, suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus,
the
Prospectus or any Issuer Free Writing Prospectus and, if the Commission should
enter a stop order suspending the effectiveness of the Registration Statement
or
preventing or suspending the use of any Preliminary Prospectus, the Prospectus
or any Issuer Free Writing Prospectus, to use its best efforts to obtain
the
lifting or removal of such order as soon as possible; to advise the Underwriter
promptly of any proposal to amend or supplement the Registration Statement,
any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus
and
to provide the Underwriter and its counsel copies of any such documents for
review and comment a reasonable amount of time prior to any proposed filing
and
to file no such amendment or supplement to which the Underwriter shall
reasonably object in writing;
(e) subject
to Section 5(d) hereof, to file promptly all reports and documents and any
information statement required to be filed by the Company with the Commission
in
order to comply with the Exchange Act for so long as the delivery of a
prospectus is required by the Act (whether physically or through compliance
with
Rule 172 under the Act or any similar rule) in connection with any sale of
Shares; and, during such period, to provide the Underwriter, for its review
and
comment, with a copy of such reports and statements and other documents to
be
filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange
Act
during such period a reasonable amount of time prior to any proposed filing,
and
to file no such report, statement or document to which the Underwriter shall
reasonably object in writing; and to promptly notify the Underwriter of such
filing;
(f) to
advise the Underwriter promptly of the happening of any event known to the
Company within the period during which a prospectus is required by the Act
to be
delivered (whether physically or through compliance with Rule 172 under the
Act
or any similar rule) in connection with any sale of Shares, which event could
require the making of any change in the Prospectus then being used so that
the
Prospectus would not include an untrue statement of a material fact or omit
to
state a material fact necessary in order to make the statements therein,
in the
light of the circumstances under which they are made, not misleading, and,
during such time, subject to Section 5(d) hereof, to prepare and furnish,
at the
Company’s expense, to the Underwriter promptly such amendments or supplements to
such Prospectus as may be necessary to reflect any such change;
(g) to
make generally available to its security holders, and to deliver to the
Underwriter, an earnings statement of the Company and its Subsidiaries (which
need not be audited but shall satisfy the provisions of Rule 158(a) under
the
Act) covering a period of twelve months beginning after the effective date
of
the Registration Statement (as defined in Rule 158(c) under the Act) as soon
as
is reasonably practicable after the termination of such twelve-month period
but
in any case not later than [·].
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18 -
(h) to
furnish to its stockholders as soon as practicable after the end of each
fiscal
year an annual report (including a consolidated balance sheet and statements
of
income, stockholders’ equity and cash flow of the Company and the Subsidiaries
for such fiscal year, accompanied by a copy of the certificate or report
thereon
of nationally recognized independent certified public accountants duly
registered with the Public Company Oversight Accounting Board);
(i) to
furnish to the Underwriter one copy of the Registration Statement, as initially
filed with the Commission, and of all amendments thereto, including, if
requested, all exhibits thereto;
(j) to
furnish to the Underwriter promptly for a period of three years from the
date of
this Agreement (i) copies of any reports, proxy statements, or other
communications which the Company shall send to its stockholders, (ii) copies
of
all annual, quarterly and current reports filed with or furnished to the
Commission on Forms 20-F or 6-K, or such other similar forms as may be
designated by the Commission and (iii) copies of documents or reports filed
with
any national securities exchange on which any class of securities of the
Company
is listed; provided, however, that any information or documents
filed with or furnished to the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System shall be considered furnished for
the
purposes of this Section 5(j);
(k) for
a period of 90 days after the date hereof (the “Lock-Up Period”), without
the prior written consent of the Representatives, not to (i) sell, offer
to
sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or establish or increase a put equivalent position or liquidate or decrease
a
call equivalent position within the meaning of Section 16 of the Exchange
Act
and the rules and regulations of the Commission promulgated thereunder, with
respect to, any Common Stock or securities convertible into or exchangeable
or
exercisable for Common Stock or warrants or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar
to
Common Stock, (ii) file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock,
(iii)
enter into any swap or other arrangement that transfers to another, in whole
or
in part, any of the economic consequences of ownership of Common Stock or
any
securities convertible into or exercisable or exchangeable for Common Stock,
or
warrants or other rights to purchase Common Stock or any such securities,
whether any such transaction is to be settled by delivery of Common Stock
or
such other securities, in cash or otherwise or (iv) publicly announce an
intention to effect any transaction specified in clause (i), (ii) or (iii),
except, in each case, for (A) the registration of the Shares and the sales
to
the Underwriter pursuant to this Agreement, (B) issuances of Common Stock
upon
the exercise of options or warrants disclosed as outstanding in the Registration
Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance
of
employee stock options not exercisable during the Lock-Up Period pursuant
to
stock option plans described in the Registration Statement, the Pricing
Prospectus and the Prospectus; provided, however, that if (a)
during the period that begins on the date that is fifteen (15) calendar days
plus three (3) business days before the last day of the Lock-Up Period and
ends
on the last day of the Lock-Up Period, the Company issues an earnings release
or
material news or a material event relating to the Company occurs; or (b)
prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on
the
last day of the Lock-Up Period, then the restrictions imposed by this Section
5(k) shall continue to apply until the expiration of the date that is fifteen
(15) calendar days plus three (3) business days after the date on which the
issuance of the earnings release or the material news or material event
occurs;
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19 -
(l) prior
to the time of purchase, to issue no press release or other communication
directly or indirectly and hold no press conferences with respect to the
Company
or any Subsidiary, the financial condition, results of operations, business,
properties, assets, or liabilities of the Company or any Subsidiary or the
offering of the Shares, without the Underwriter’s prior consent;
(m) not,
at any time at or after the execution of this Agreement, to directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act) or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, other than the Registration
Statement and the then most recent Prospectus;
(n) not
to, and to cause its Subsidiaries not to, take, directly or indirectly, any
action designed, or which has constituted or might reasonably be expected
to
cause or result in, under the Exchange Act or otherwise, the stabilization
or
manipulation of the price of any security of the Company to facilitate the
sale
or resale of the Shares;
(o) to
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; and
(p) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
6. Certain
Covenants of the Selling Stockholder. The Selling Stockholder
hereby agrees:
(a) not,
at any time at or after the execution of this Agreement, to directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act) or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, other than the Registration
Statement and the then most recent Prospectus;
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20 -
(b) not
to take, directly or indirectly, any action designed to or which may constitute
or which might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares;
(c) to
pay or cause to be paid all taxes, if any, on the transfer and sale of the
Shares being sold by the Selling Stockholder;
(d) to
deliver to the Underwriter prior to the time of payment a properly completed
and
executed United States Treasury Department Form W-8BEN or other applicable
form
or statement specified by Treasury Department regulations in lieu
thereof;
(e) to
advise the Underwriter promptly, and if requested by the Underwriter, to
confirm
such advice in writing, so long as the delivery of a prospectus is required
by
the Act (whether physically or through compliance with Rule 172 under the
Act or
any similar rule) in connection with any sale of Shares, of (i) any material
change in the business, properties, financial condition, results of operations
or prospects of the Company and the Subsidiaries taken as a whole, (ii) any
change in material information in the Registration Statement, the Pricing
Prospectus, the Prospectus or any Issuer Free Writing Prospectus relating
to the
Selling Stockholder or (iii) any new material information relating to the
Company or any of its Subsidiaries or relating to any matter stated in the
Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer
Free Writing Prospectus, in each case which comes to the attention of the
Selling Stockholder; and
(f) prior
to or concurrently with the execution and delivery of this Agreement, to
execute
and deliver to the Underwriter a Lock-Up Agreement.
7. Covenant
to Pay Costs. The Selling Stockholder agrees to pay all costs,
expenses, fees and taxes in connection with (i) the preparation and filing
of
the Registration Statement, any Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus and any amendments or supplements thereto,
and
the printing and furnishing of copies of each thereof to the Underwriter
and to
dealers (including costs of mailing and shipment), (ii) the registration,
issue,
sale and delivery of the Shares including any stock or transfer taxes and
stamp
or similar duties payable upon the sale, issuance or delivery of the Shares
to
the Underwriter, (iii) the qualification of the Shares for offering and
sale under state or foreign laws and the determination of their eligibility
for
investment under state or foreign law (including the legal fees and filing
fees
and other disbursements of counsel for the Underwriter incurred in connection
with such qualifications and determinations) and the printing and furnishing
of
copies of any blue sky surveys or legal investment surveys to the Underwriter
and to dealers, (iv) any listing of the Shares on any securities exchange
or
qualification of the Shares for quotation on the NYSE and any registration
thereof under the Exchange Act, (v) any filing for review of the public offering
of the Shares by the NASD, including the legal fees and filing fees and other
disbursements of counsel to the Underwriter relating to NASD matters,
(vi) the fees and disbursements of any transfer agent or registrar for the
Shares, (vii) unless otherwise agreed in writing, the costs and expenses of
the Company and the Selling Stockholder relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the
Shares to prospective investors and the Underwriter’s sales forces, including,
without limitation, expenses associated with the production of road show
slides
and graphics, fees and expenses of any consultants engaged in connection
with
the road show presentations, travel, lodging and other expenses incurred
by the
officers of the Company or by the Selling Stockholder and any such consultants,
and the cost of any aircraft chartered in connection with any road show and
(ix) the performance of the Company’s and the Selling Stockholder’s other
obligations hereunder. The Company hereby agrees with the Underwriter that
it
will pay any such amounts not so paid by the Selling Stockholder.
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21 -
8. Reimbursement
of Underwriter’s Expenses. If the Shares are not delivered for
any reason, the Selling Stockholder agrees that it shall, in addition to
paying
the amounts described in Section 7 hereof, reimburse the Underwriter for
all of
its properly documented out-of-pocket expenses, including the reasonable
fees
and disbursements of its counsel. The Company hereby agrees with the Underwriter
that it will pay any such amounts not so paid by the Selling
Stockholder.
9. Conditions
of Underwriter’s Obligations. The obligations of the Underwriter
hereunder are subject to the accuracy of the representations and warranties
on
the part of the Company and the Selling Stockholder on the date hereof and
at
the time of purchase, the performance by the Company and the Selling Stockholder
of each of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The
Company shall furnish to the Underwriter at the time of purchase an opinion
of
Cravath, Swaine & Moore LLP, special United States counsel for the Company
and the Selling Stockholder, addressed to the Underwriter and dated the time
of
purchase, substantially in the form set forth in Exhibit B
hereto.
(b) The
Company shall furnish to the Underwriter at the time of purchase a negative
assurance letter of Cravath, Swaine & Moore LLP, special United States
counsel for the Company and the Selling Stockholder, addressed to the
Underwriter and dated the time of purchase, substantially in the form set
forth
in Exhibit C hereto.
(c) The
Company shall furnish to the Underwriter at the time of purchase an opinion
of
Cravath, Swaine & Moore LLP, special United States counsel for the Company,
as to certain tax matters, addressed to the Underwriter and dated the time
of
purchase, substantially in the form set forth in Exhibit D
hereto.
(d) The
Company and the Selling Stockholder shall furnish to the Underwriter at the
time
of purchase an opinion of Reeder & Simpson, PC, Marshall Islands counsel for
the Company and the Selling Stockholder, addressed to the Underwriter and
dated
the time of purchase, substantially in the form set forth in Exhibit E
hereto.
(e) The
Selling Stockholder shall furnish to the Underwriter at the time of purchase
an
opinion of James I. Edelson, General Counsel of Overseas Shipholding Group,
Inc., addressed to the Underwriter and dated the time of purchase, substantially
in the form set forth in Exhibit F hereto.
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22 -
(f) The
Underwriter shall have received from Ernst & Young LLP letters dated,
respectively, the date of this Agreement and the time of purchase and addressed
to the Underwriter, in the forms heretofore approved by the
Underwriter.
(g) The
Underwriter shall have received at the time of purchase the favorable opinion
and negative assurance letter of Simpson Thacher & Bartlett LLP, counsel for
the Underwriter, dated the time of purchase, in form and substance satisfactory
to the Underwriter.
(h) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which the Underwriter reasonably objects
in
writing.
(i) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act at or before 5:30 P.M., New York City time, on the second full
business day after the date of this Agreement and any Rule 462(b) Registration
Statement required by the Act in connection with the offer and sale of the
Shares shall have been filed and become effective no later than 10:00 P.M.,
New
York City time, on the date of this Agreement.
(j) Prior
to and at the time of purchase, (i) no stop order of the Commission preventing
or suspending the use of any Preliminary Prospectus or Issuer Free Writing
Prospectus, or the effectiveness of the Registration Statement, shall have
been
issued, and no proceedings for such purpose shall have been instituted; (ii)
the
Registration Statement and all amendments thereto shall not contain an untrue
statement of a material fact or omit to state a material fact required to
be
stated therein or necessary to make the statements therein not misleading;
(iii)
the Pricing Prospectus and all supplements and amendments thereto, when read
together with the then issued Issuer Free Writing Prospectuses, if any, and
the
information included on Schedule B hereto, shall not include an untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; (iii) the Prospectus and all supplements
and
amendments thereto shall not include an untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and (iv) the Issuer Free Writing Prospectuses, if any, when read together
with
the Pricing Prospectus and the information included on Schedule B hereto,
shall not include an untrue statement of a material fact or omit to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading.
(k) Between
the time of execution of this Agreement and the time of purchase, (i) there
shall not have occurred or become known any material adverse change, or any
development involving a prospective material adverse change, in the business,
properties, financial condition, results of operations or prospects of the
Company and the Subsidiaries taken as a whole and (ii) no transaction which
is
material and adverse to the Company and the Subsidiaries taken as a whole
shall
have been entered into by the Company or any of the Subsidiaries.
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23 -
(l) The
Company will, at the time of purchase, deliver to the Underwriter a certificate
of its Chief Executive Officer and its Chief Financial Officer, dated the
time
of purchase, in the form attached as Exhibit G hereto.
(m) The
Selling Stockholder will, at the time of purchase, deliver to the Underwriter
a
certificate of the Chief Financial Officer of the Overseas Shipholding Group,
Inc., dated the time of purchase, in the form attached as Exhibit H
hereto.
(n) The
Underwriter shall have received each of the signed Lock-Up Agreements referred
to in Section 3(t) hereof, and each such Lock-Up Agreement shall be in full
force and effect at the time of purchase.
(o) The
Company and the Selling Stockholder shall have furnished to the Underwriter
such
other documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement, the Pricing Prospectus, the Prospectus
and any Issuer Free Writing Prospectus as of the time of purchase as the
Underwriter may reasonably request.
(p) The
Shares shall be listed and admitted and authorized for trading on the
NYSE.
(q) The
NASD shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
(r) Each
Vessel shall be owned directly by a Subsidiary free and clear of all liens,
claims, security interests or other encumbrances, except such as are described
in the Registration Statement, the Pricing Prospectus and the Prospectus
and
such as are not material and do not interfere with the intended use to be
made
of such Vessel as described in the Registration Statement, the Pricing
Prospectus and the Prospectus.
10. Effective
Date of Agreement; Termination. This Agreement shall become
effective when the parties hereto have executed and delivered this Agreement.
The obligations of the Underwriter hereunder shall be subject to termination
in
the absolute discretion of the Underwriter if (x) since the time of execution
of
this Agreement or the earlier respective dates as of which information is
given
in the Registration Statement, the Pricing Prospectus, the Prospectus and
any
Permitted Free Writing Prospectus, there has been any material adverse change
or
any development involving a prospective material adverse change in the business,
properties, management, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole which would, in the judgment
of
the Underwriter, make it impracticable or inadvisable to proceed with the
public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Pricing Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, (in each
case
excluding any amendments or supplements thereto made after the execution
of this
Agreement) or (y) since the time of execution of this Agreement, there shall
have occurred: (i) a suspension or material limitation in trading in securities
generally on the NYSE or the NASDAQ; (ii) a suspension or material limitation
in
trading in the Company’s securities on the NYSE; (iii) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) an outbreak or
escalation of hostilities or acts of terrorism involving the United States
or a
declaration by the United States of a national emergency or war (it being
understood that, with respect to matters relating to the current conflicts
in
Afghanistan and Iraq occurring within Afghanistan and Iraq, respectively,
this
clause (iv) shall apply only to an escalation of hostilities or a declaration
by
the United States of a national emergency or a war which has not heretofore
been
declared); or (v) any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment
of the
Underwriter makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Pricing Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, (in each
case
excluding any amendments or supplements thereto made after the execution
of this
Agreement) or (z) since the time of execution of this Agreement, there shall
have occurred any downgrading, or any notice or announcement shall have been
given or made of (i) any intended or potential downgrading or (ii) any watch,
review or possible change that does not indicate an affirmation or improvement
in the rating accorded any securities of or guaranteed by the Company or
any
Subsidiary by any “nationally recognized statistical rating organization,” as
that term is defined in Rule 436(g)(2) under the Act.
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24 -
If
the Underwriter elects to terminate
this Agreement as provided in this Section 10, the Company and the Selling
Stockholder shall be notified promptly in writing. If the sale to the
Underwriter of the Shares, as contemplated by this Agreement, is not carried
out
by the Underwriter for any reason permitted under this Agreement, or if such
sale is not carried out because the Company or the Selling Stockholder, as
the
case may be, shall be unable to comply with any of the terms of this Agreement,
the Company or the Selling Stockholder, as the case may be, shall not be
under
any obligation or liability under this Agreement (except to the extent provided
in Sections 7, 8 and 11 hereof), and the Underwriter shall be under no
obligation or liability to the Company or the Selling Stockholder under this
Agreement (except to the extent provided in Section 11 hereof) or to one
another
hereunder.
11. Indemnity
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls the Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act,
and the successors and assigns of all of the foregoing persons, from and
against
any loss, damage, expense, liability or claim (including the reasonable cost
of
investigation) which, jointly or severally, the Underwriter or any such person
may incur under the Act, the Exchange Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is based
upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration Statement
as
amended by any post-effective amendment thereof by the Company) or arises
out of
or is based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein
not
misleading, except insofar as any such loss, damage, expense, liability or
claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in, and in conformity with information concerning
the Underwriter furnished in writing by or on behalf of the Underwriter to
the
Company expressly for use in, the Registration Statement or arises out of
or is
based upon any omission or alleged omission to state a material fact in the
Registration Statement in connection with such information, which material
fact
was not contained in such information and which material fact was required
to be
stated in such Registration Statement or was necessary to make such information
not misleading or (ii) any untrue statement or alleged untrue statement of
a
material fact included in any Prospectus (the term Prospectus for the purpose
of
this Section 11 being deemed to include any Preliminary Prospectus, the
Prospectus and any amendments or supplements to the foregoing), in any Issuer
Free Writing Prospectus, in any “issuer information” (as defined in Rule 433
under the Act) of the Company, which “issuer information” is required to be, or
is, filed with the Commission, or in any Prospectus together with any
combination of one or more Issuer Free Writing Prospectuses, if any, or arises
out of or is based upon any omission or alleged omission to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except, with respect
to such Prospectus or Issuer Free Writing Prospectus, insofar as any such
loss,
damage, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in, and
in
conformity with information concerning such Underwriter furnished in writing
by
or on behalf of the Underwriter to the Company expressly for use in, such
Prospectus or Issuer Free Writing Prospectus or arises out of or is based
upon
any omission or alleged omission to state a material fact in such Prospectus
or
Issuer Free Writing Prospectus in connection with such information, which
material fact was not contained in such information and which material fact
was
necessary in order to make the statements in such information, in the light
of
the circumstances under which they were made, not misleading.
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25 -
(b) The
Selling Stockholder agrees to indemnify, defend and hold harmless the
Underwriter, its partners, directors and officers, and any person who controls
the Underwriter within the meaning of Section 15 of the Act or Section 20
of the
Exchange Act, and the successors and assigns of all of the foregoing persons,
from and against any loss, damage, expense, liability or claim (including
the
reasonable cost of investigation) which, jointly or severally, the Underwriter
or any such person may incur under the Act, the Exchange Act, the common
law or
otherwise, insofar as such loss, damage, expense, liability or claim arises
out
of or is based upon (i) any untrue statement or alleged untrue statement
of a
material fact contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company)
or
arises out of or is based upon any omission or alleged omission to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case as such Registration Statement relates
to
the Selling Stockholder, or (ii) any untrue statement or alleged untrue
statement of a material fact included in any Prospectus, in any Issuer Free
Writing Prospectus or in any Prospectus together with any combination of
one or
more Issuer Free Writing Prospectuses, if any, or arises out of or is based
upon
any omission or alleged omission to state a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; provided, however, that the Selling
Stockholder will be liable in each case to the extent but only to the extent
that any such loss, damage, expense, liability or claim arises out of or
is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission that relates to the Selling Stockholder; and provided further,
however, that in no case shall the Selling Stockholder be liable for any
amount
in excess of the product of (i) the aggregate number of Shares sold by the
Selling Stockholder hereunder and (ii) the purchase price per Share set forth
in
Section 1 hereof.
(c) The
Underwriter agrees to indemnify, defend and hold harmless the Company, its
directors and officers, the Selling Stockholder and any person who controls
the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons,
from and against any loss, damage, expense, liability or claim (including
the
reasonable cost of investigation) which, jointly or severally, the Company,
the
Selling Stockholder or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon (i) any untrue statement
or
alleged untrue statement of a material fact contained in, and in conformity
with
information concerning the Underwriter furnished in writing by or on behalf
of
the Underwriter to the Company expressly for use in, the Registration Statement
(or in the Registration Statement as amended by any post-effective amendment
thereof by the Company), or arises out of or is based upon any omission or
alleged omission to state a material fact in such Registration Statement
in
connection with such information, which material fact was not contained in
such
information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not misleading
or (ii) any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning the Underwriter
furnished in writing by or on behalf of the Underwriter to the Company expressly
for use in, a Prospectus or any Issuer Free Writing Prospectus, or arises
out of
or is based upon any omission or alleged omission to state a material fact
in
such Prospectus or Issuer Free Writing Prospectus in connection with such
information, which material fact was not contained in such information and
which
material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not
misleading.
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26 -
(d) If
any action, suit or proceeding (each, a “Proceeding”) is brought against
a person (an “indemnified party”) in respect of which indemnity may be
sought against the Company, the Selling Stockholder or the Underwriter (as
applicable, the “indemnifying party”) pursuant to subsection (a), (b) or
(c), respectively, of this Section 11, such indemnified party shall promptly
notify such indemnifying party in writing of the institution of such Proceeding
and such indemnifying party shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however,
that the omission to so notify such indemnifying party shall not relieve
such
indemnifying party from any liability which such indemnifying party may have
to
any indemnified party or otherwise. 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 the employment of such counsel shall
have
been authorized in writing by the indemnifying party in connection with the
defense of such Proceeding or the indemnifying party shall not have, within
a
reasonable period of time in light of the circumstances, employed counsel
to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded, based on the advice of counsel, that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to such indemnifying party (in which case such indemnifying
party shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties), in any of which events such
fees
and expenses shall be borne by such indemnifying party and paid as incurred
(it
being understood, however, that such indemnifying party shall not be liable
for
the expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any
settlement of any Proceeding effected without its written consent but, if
settled with its written consent, such indemnifying party agrees to indemnify
and hold harmless the indemnified party or parties from and against any loss
or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of
counsel as contemplated by the second sentence of this Section 11(d), then
the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying
party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to
the
date of such settlement and (iii) such indemnified party shall have given
the
indemnifying party at least 30 days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could
have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of
such Proceeding and does not include an admission of fault or culpability
or a
failure to act by or on behalf of such indemnified party.
(e) If
the indemnification provided for in this Section 11 is unavailable to an
indemnified party under subsections (a), (b) or (c) of this Section 11 or
insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party shall contribute to the amount paid or payable
by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect
the
relative benefits received by the Company and the Selling Stockholder on
the one
hand and the Underwriter on the other hand from the offering of the Shares
or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the
relative benefits referred to in clause (i) above but also the relative fault
of
the Company and the Selling Stockholder on the one hand and of the Underwriter
on the other in connection with the statements or omissions which resulted
in
such losses, damages, expenses, liabilities or claims, 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 Underwriter on the other
shall be deemed to be in the same respective proportions as the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the Selling Stockholder,
and the
total underwriting discounts and commissions received by the Underwriter,
bear
to the aggregate
-
27 -
public
offering price of the Shares. The relative fault of the Company and
the Selling Stockholder on the one hand and of the Underwriter on the other
shall be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission relates to information supplied by the Company or the Selling
Stockholder or by the Underwriter and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend
or
defending any Proceeding.
(f) The
Company, the Selling Stockholder and the Underwriter agree that it would
not be
just and equitable if contribution pursuant to this Section 11 were determined
by pro rata allocation or by any other method of allocation that does not
take
account of the equitable considerations referred to in subsection (e)
above. Notwithstanding the provisions of this Section 11, (i) the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by the
Underwriter and distributed to the public were offered to the public exceeds
the
amount of any damage which the Underwriter has otherwise been required to
pay by
reason of such untrue statement or alleged untrue statement or omission or
alleged omission and (ii) the Selling Stockholder shall not be required to
contribute any amount in excess of the product of (x) the aggregate number
of
Shares sold by the Selling Stockholder hereunder and (y) the purchase price
per
Share set forth in Section 1 hereof. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(g) The
indemnity and contribution agreements contained in this Section 11 and the
covenants, warranties and representations of the Company and the Selling
Stockholder contained in this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf of the
Underwriter, its partners, directors or officers or any person (including
each
partner, officer or director of such person) who controls the Underwriter
within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or
by or
on behalf of the Company or the Selling Stockholder, their respective directors
or officers or any person who controls the Company or the Selling Stockholder
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act,
and shall survive any termination of this Agreement or the issuance and delivery
of the Shares pursuant hereto. The Company, the Selling Stockholder and the
Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Company or the Selling
Stockholder, against any of their officers or directors in connection with
the
issuance and sale of the Shares, or in connection with the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free
Writing
Prospectus.
(h) The
Company and the Selling Stockholder hereby acknowledge and agree between
themselves that the offer and sale of the Shares contemplated hereby has
been
registered under the Act pursuant to the Registration Rights Agreement, dated
October 18, 2005 (the “Registration Rights Agreement”), between the
Company and the Selling Stockholder, and that the indemnification and
contribution provisions contained in the Registration Rights Agreement shall
apply to the Company and the Selling Stockholder with respect to such offer
and
sale. The Company, the Selling Stockholder and the Underwriter hereby agree
that
such indemnification and contributions provisions shall not in any way affect
any obligations owed by the Company or the Selling Stockholder to the
Underwriter under this Agreement.
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28 -
12. Information
Furnished by the Underwriter. The statements set forth in the
Prospectus under “Underwriting” in the [·]
paragraphs constitute the only information furnished by or on behalf of the
Underwriter as such information is referred to in Section 3 and Section 11
hereof.
13. Notices. Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriter,
shall be sufficient in all respects if delivered or sent to _________________
and, if to the Company, shall be sufficient in all respects if delivered
or sent
to the Company at the offices of the Company at 26 New Street, St. Helier,
Jersey JE23RA, Attention: Chief Executive Officer, and if to the
Selling Stockholder, shall be sufficient in all respects if delivered or
sent to
the Selling Stockholder, c/o OSG Ship Management, Inc., 666 Third Avenue,
New
York, New York 10017, Attention: General Counsel.
14. Governing
Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating
to this Agreement (“Claim”), directly or indirectly, shall be governed
by, and construed in accordance with, the laws of the State of New
York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this
Agreement.
15. Submission
to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of
the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts
shall
have jurisdiction over the adjudication of such matters, and the Company
and the
Selling Stockholder each consent to the jurisdiction of such courts and personal
service with respect thereto. The Company and the Selling Stockholder
each hereby consent to personal jurisdiction, service and venue in any court
in
which any Claim arising out of or in any way relating to this Agreement is
brought by any third party against any Underwriter or any indemnified
party. The Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and
affiliates) and the Selling Stockholder (on its behalf and, to the extent
permitted by applicable law, on behalf of its stockholders and affiliates)
each
waive all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) in any way arising out of
or
relating to this Agreement. The Company and the Selling Stockholder
each agree that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company
and
the Selling Stockholder and may be enforced in any other courts to the
jurisdiction of which the Company or the Selling Stockholder is or may be
subject, by suit upon such judgment. The Company hereby appoints,
without power of revocation, CT Corporation as its agent to accept and
acknowledge on its behalf of any and all process which may be served in any
action, proceeding or counterclaim in any way relating to or arising out
of this
Agreement. The Selling Stockholder hereby appoints, without power of revocation,
OSG Ship Management, Inc., at the address of the Selling Stockholder set
forth
above, as its agent to accept and acknowledge on its behalf of any and all
process which may be served in any action, proceeding or counterclaim in
any way
relating to or arising out of this Agreement.
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29 -
16. Parties
at Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriter and the Company and the Selling
Stockholder and to the extent provided in Section 11 hereof the controlling
persons, partners, directors and officers referred to in such Section, and
their
respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from the Underwriter)
shall acquire or have any right under or by virtue of this
Agreement.
17. Counterparts. This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
18. Successors
and Assigns. This Agreement shall be binding upon the
Underwriter, the Company and the Selling Stockholder and their successors
and
assigns and any successor or assign of any substantial portion of the Company’s,
the Selling Stockholder’s or any of the Underwriter’s respective businesses
and/or assets.
19. No
Fiduciary Relationship. The Company and the Selling Stockholder hereby
acknowledge that the Underwriter is acting solely as an underwriter in
connection with the purchase and sale of the Company’s securities. The Company
and the Selling Stockholder further acknowledges that the Underwriter is
acting
pursuant to a contractual relationship created solely by this Agreement entered
into on an arm’s length basis and in no event do the parties intend that the
Underwriter act or be responsible as a fiduciary to the Company, the Selling
Stockholder, their respective management, stockholders or creditors or any
other
person in connection with any activity that the Underwriter may undertake
or
have undertaken in furtherance of the purchase and sale of the Company’s
securities either before or after the date hereof. The Underwriter hereby
expressly disclaims any fiduciary or similar obligations to the Company and
the
Selling Stockholder, either in connection with the transactions contemplated
by
this Agreement or any matters leading up to such transactions, and the Company
and the Selling Stockholder hereby confirm their understanding and agreement
to
that effect. The Company, the Selling Stockholder and the Underwriter agree
that
they are each responsible for making their own independent judgments with
respect to any such transactions, and that any opinions or views expressed
by
the Underwriter to the Company or the Selling Stockholder regarding such
transactions, including but not limited to any opinions or views with respect
to
the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company or the Selling Stockholder. The Company and
the
Selling Stockholder hereby waive and release, to the fullest extent permitted
by
law, any claims that the Company and the Selling Stockholder may have against
the Underwriter with respect to any breach or alleged breach of any fiduciary
or
similar duty to the Company or the Selling Stockholder in connection with
the
transactions contemplated by this Agreement or any matters leading up to
such
transactions.
[The
Remainder of This Page Intentionally Left Blank; Signature Pages
Follow]
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30 -
If
the foregoing correctly sets forth
the understanding among the Company, the Selling Stockholder and the
Underwriter, please so indicate in the space provided below for that purpose,
whereupon this Agreement and the Underwriter’s acceptance shall constitute a
binding agreement among the Company, the Selling Stockholder and the
Underwriter.
Very
truly yours,
|
DOUBLE
HULL TANKERS, INC.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
OSG
INTERNATIONAL, INC.
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Accepted
and agreed as of the date
first
written above:
|
By:
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
SCHEDULE
A
PERMITTED
FREE WRITING PROSPECTUSES
[●]
SCHEDULE
B
CERTAIN
INFORMATION
[●]
SCHEDULE
C
SUBSIDIARIES
AND VESSELS
|
Subsidiary
|
Vessel
Owned
|
|
Ann
Tanker Corporation
|
Overseas
Ann
|
|
Chris
Tanker Corporation
|
Overseas
Chris
|
|
Regal
Unity Tanker Corporation
|
Overseas
Regal
|
|
Cathy
Tanker Corporation
|
Overseas
Cathy
|
|
Sophie
Tanker Corporation
|
Overseas
Sophie
|
|
Rebecca
Tanker Corporation
|
Overseas
Rebecca
|
|
Ania
Aframax Corporation
|
Overseas
Ania
|
SCHEDULE
D
PERSONS
REQUIRED TO DELIVER LOCK-UP AGREEMENTS
|
1.
|
Erik
A. Lind
|
|
2.
|
Randee
Day
|
|
3.
|
Rolf
A. Wikborg
|
|
4.
|
Ole
Jacob Diesen
|
|
5.
|
Eirik
Ubøe
|
|
6.
|
Tom
Kjeldsberg
|
|
7.
|
OSG
International, Inc.
|
EXHIBIT
A
LOCK-UP
AGREEMENT
_________,
2007
___________________
Ladies
and Gentlemen:
This
Lock-Up Agreement is being
delivered to you in connection with the proposed Underwriting Agreement (the
“Underwriting Agreement”) to be entered into among Double Hull Tankers,
Inc. a Marshall Islands corporation (the “Company”), [the Selling
Stockholder named therein]1 and you with respect to the public
offering (the “Offering”) of common stock, par value $0.01 per share, of
the Company (the “Common Stock”).
In
order to induce you to enter into
the Underwriting Agreement, the undersigned agrees that, for a period (the
“Lock-Up Period”) beginning on the date hereof and ending on, and
including, the date that is 90 days after the date of the final prospectus
relating to the Offering, the undersigned will not, without the prior written
consent of ___________________, (i) sell, offer to sell, contract or agree
to
sell, hypothecate, pledge, grant any option to purchase or otherwise dispose
of
or agree to dispose of, directly or indirectly, or file (or participate in
the
filing of) a registration statement with the Securities and Exchange Commission
(the “Commission”) in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder (the
“Exchange Act”) with respect to, any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants
or
other rights to purchase Common Stock or any such securities, (ii) enter
into
any swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants
or
other rights to purchase Common Stock or any such securities, whether any
such
transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise or (iii) publicly announce an intention
to
effect any transaction specified in clause (i) or (ii). The foregoing sentence
shall not apply to (a) the registration of or sale to the Underwriter (as
defined in the Underwriting Agreement) of any Common Stock pursuant to the
Offering and the Underwriting Agreement, (b) bona fide gifts, provided the
recipient thereof agrees in writing with the Underwriter to be bound by the
terms of this Lock-Up Agreement or (c) dispositions to any trust for the
direct
or indirect benefit of the undersigned and/or the immediate family of the
undersigned, provided that such trust agrees in writing with the Underwriter
to
be bound by the terms of this Lock-Up Agreement. For purposes of this
paragraph, “immediate family” shall mean the undersigned and the spouse, any
lineal descendent, father, mother, brother or sister of the
undersigned.
____________
1 In
the case
of the Selling Stockholder, the bracketed language shall be replaced with
“the
undersigned.”
In
addition, the undersigned hereby
waives any rights the undersigned may have to require registration of Common
Stock in connection with the filing of a registration statement relating
to the
Offering. The undersigned further agrees that, for the Lock-Up
Period, the undersigned will not, without the prior written consent of
___________________, make any demand for, or exercise any right with respect
to,
the registration of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other rights
to
purchase Common Stock or any such securities.
Notwithstanding
the above, if (a)
during the period that begins on the date that is fifteen (15) calendar days
plus three (3) business days before the last day of the Lock-Up Period and
ends
on the last day of the Lock-Up Period, the Company issues an earnings release
or
material news or a material event relating to the Company occurs; or (b)
prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on
the
last day of the Lock-Up Period, then the restrictions imposed by this Lock-Up
Agreement shall continue to apply until the expiration of the date that is
fifteen (15) calendar days plus three (3) business days after the date on
which
the issuance of the earnings release or the material news or material event
occurs.
In
addition, the undersigned hereby
waives any and all preemptive rights, participation rights, resale rights,
rights of first refusal and similar rights that the undersigned may have
in
connection with the Offering or with any issuance or sale by the Company
of any
equity or other securities before the Offering, except for any such rights
as
have been heretofore duly exercised.
The
undersigned hereby confirms that
the undersigned has not, directly or indirectly, taken, and hereby covenants
that the undersigned will not, directly or indirectly, take, any action
designed, or which has constituted or will constitute or might reasonably
be
expected to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the Company
to
facilitate the sale or resale of shares of Common Stock.
* * *
If
for any reason the Underwriting
Agreement shall be terminated prior to the “time of purchase” (as defined in the
Underwriting Agreement), this Lock-Up Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder.
Yours
very truly,
EXHIBIT
B
OPINION
OF CRAVATH, SWAINE & MOORE LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
C
NEGATIVE
ASSURANCE LETTER OF CRAVATH, SWAINE & MOORE LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
D
TAX
OPINION OF CRAVATH, SWAINE & MOORE LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
E
OPINION
OF SIMPSON & REEDER, PC
MARSHALL
ISLANDS COUNSEL TO THE COMPANY AND THE SELLING
STOCKHOLDER
EXHIBIT
F
OPINION
OF JAMES I. EDELSON
GENERAL
COUNSEL OF OVERSEAS SHIPHOLDING GROUP, INC.
EXHIBIT
G
OFFICERS’
CERTIFICATE
EXHIBIT
H
CERTIFICATE
OF THE SELLING STOCKHOLDER
Exhibit
5.1
|
REEDER
& SIMPSON P.C.
ATTORNEYS
AT LAW
|
||
|
P.O.
Box 601
RRE
Commercial Center
Majuro,
MH 96960
|
Telephone:
011-692-625-3602
Facsimile:
011-692-625-3603
Email:
dreeder@ntamar.net
simpson@otenet.gr |
|
May
22,
2007
Ladies
and Gentlemen:
Re:
Double Hull Tankers. Inc. (the “Company”)
Ladies
and Gentlemen:
We
are
licensed to practice law in the Republic of the Marshall Islands (the “RMI”),
and are members in good standing of the bar of the RMI. We are acting as special
RMI counsel to for the Company, a RMI non-resident domestic corporation, in
connection with the registration by the Company of 8,751,500 common shares,
par
value US$0.01 per share (the “Shares”), all of which are being sold by the
selling stockholder named therein, under the Securities Act of 1933, as amended
(the “Securities Act”), on a Registration Statement on Form F-3 filed with the
Securities and Exchange Commission (the “Commission”), and all amendments
thereto (such registration statement as so amended, being hereinafter referred
to as the “Registration Statement”).
In
connection with the opinion, we have examined electronic copies, certified
or
otherwise identified to our satisfaction, of the Registration Statement and
the
exhibits attached thereto and such other documents, corporate records and other
instruments as we have deemed necessary or appropriate for the purposes of
this
opinion, including without limitations, a specimen certificate representing
the
Shares and resolutions adopted by the board of directors of the Company on
April
30, 2007. We have also made such examinations of matters of laws as we deemed
necessary in connection with the opinion expressed herein.
We
express no opinion as to matters governed by, or the effect or applicability
of
any laws of any jurisdiction other than the laws of the RMI which are in effect
as the date hereof. This opinion speaks as of the date hereof, and it should
be
recognized that changes may occur in the laws of the RMI after the date of
this
letter which may effect the opinions set forth herein. We assume no obligation
to advise the parties, their counsel, or any other party seeking to rely upon
this opinion, of any such changes, whether or not material, or of any other
matter which may hereinafter be brought to our attention.
1
Based
upon and subject to the assumptions, qualifications and limitations herein,
we
are of the opinion that the Shares have been validly issued and are fully paid
and nonassessable.
We
hereby
consent to the filing of this opinion with the Commission as an exhibit to
the
Registration Statement. We also consent to the reference to our firm under
the
caption “Legal Matters” in the Registration Statement. In giving this consent,
we do not thereby admit that we are included in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Sincerely,
/s/ Dennis
J.
Reeder
Reeder & Simpson
Reeder & Simpson
Dennis
J.
Reeder
2
Exhibit
8.1
[Letterhead
of]
CRAVATH,
SWAINE & MOORE LLP
[New
York
Office]
May 22,
2007
Ladies
and Gentlemen:
We
have
acted as special United States counsel to Double Hull Tankers, Inc., a
company incorporated under the laws of the Marshall Islands (the “Company”), in
connection with the registration by the Company of 8,751,500 common shares,
par
value $0.01 per share (the “Shares”), all of which are being sold by the selling
stockholder named therein, under the Securities Act of 1933, as amended (the
“Securities Act”), on a Registration Statement on Form F-3 filed with the
Securities and Exchange Commission (the “Commission”), and all amendments
thereto (such registration statement, as so amended, being hereinafter referred
to as the “Registration Statement”).
In
rendering our opinion, we have reviewed the Registration Statement and have
examined such records, representations, documents, certificates or other
instruments as in our judgment are necessary or appropriate to enable us
to
render the opinion expressed below. In this examination, we have
assumed the legal capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
the
conformity to original documents of all documents submitted to us as certified,
conformed, or photostatic copies, and the authenticity of the originals of
such
copies. In making our examination of documents executed, or to be
executed, by the parties indicated therein, we have assumed that each party,
including the Company, is duly organized and existing under the laws of the
applicable jurisdiction of its organization and had, or will have, the power,
corporate or other, to enter into and perform all obligations thereunder,
and we
have also assumed the due authorization by all requisite action, corporate
or
other, and execution and delivery by each party indicated in the documents
and
that such documents constitute, or will constitute, valid and binding
obligations of each party.
In
rendering our opinion, we have considered the applicable provisions of the
Internal Revenue Code of 1986, as amended (the “Code”), regulations promulgated
thereunder by the U.S. Department of Treasury (the “Regulations”), pertinent
judicial authorities, rulings of the U.S. Internal Revenue Service, and such
other authorities as we have considered relevant, in each case as in effect
on
the date hereof. It should be noted that the Code, Regulations,
judicial decisions, administrative interpretations and other authorities
are
subject to change at any time, possibly with retroactive effect. It
should also be noted that (as discussed in the Registration Statement) there
is
no direct legal authority addressing certain of the issues relevant to our
opinion – in particular, the issue regarding whether the Company is currently a
passive foreign investment company. A material change in any of the
materials or authorities upon which our opinion is based could affect the
conclusions set forth herein. There can be no assurance, moreover,
that any opinion expressed herein will be accepted by the Internal Revenue
Service, or if challenged, by a court.
2
Based
upon the foregoing, although the discussion in the Registration Statement
under
the heading “Tax Considerations – United States Federal Income Tax
Considerations” does not purport to discuss all possible United States federal
income tax consequences of the acquisition, ownership and disposition of
the
Shares, we hereby confirm that the statements of law (including the
qualifications thereto) under such heading represent our opinion of the material
United States federal income tax consequences of the acquisition, ownership
and
disposition of the Shares, subject to certain assumptions expressly described
in
the Registration Statement under such heading.
We
express no other opinion, except as set forth above. We disclaim any
undertaking to advise you of any subsequent changes in the facts stated or
assumed herein or subsequent changes in applicable law. Any changes
in the facts set forth or assumed herein may affect the conclusions stated
herein.
We
hereby
consent to the filing of this opinion with the Commission as Exhibit 8.1 to
the Registration Statement. We also consent to the reference to our
firm under the caption “Legal Matters” in the prospectus forming a part of the
Registration Statement. In giving this consent, we do not thereby
admit that we are included in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission.
|
Very
truly yours,
|
|
| /s/ Cravath, Swaine & Moore LLP |
Double
Hull Tankers, Inc.
26 New Street
St. Helier, Jersey JE23RA
Channel Islands
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the reference to our firm under the caption “Experts”
in the
Registration Statement (Form F-3 No. 333-________) and related Prospectus of
Double Hull Tankers, Inc. for the registration of 8,751,500 shares of its common
stock and to the incorporation by reference therein of our reports dated March
15, 2007 and March 31, 2006, with respect to the consolidated financial
statements of Double Hull Tankers Inc. and its predecessor OSG Crude included
in
Double Hull Tankers Inc's Annual Report (Form 20-F) for the year ended December
31, 2006, filed with the Securities and Exchange Commission.
|
|
|
|
/s/
Ernst & Young LLP
|
New
York,
New York
May
21,
2007