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EXHIBIT 1.1
TEEKAY SHIPPING CORPORATION
COMMON STOCK, NO PAR VALUE
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UNDERWRITING AGREEMENT
(U.S. VERSION)
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June 9, 1998
Goldman, Sachs & Co.,
Donaldson, Lufkin & Jenrette Securities Corporation,
Furman Selz LLC,
As representatives of the several Underwriters
named in Schedule I hereto (the "Representatives"),
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Teekay Shipping Corporation, a Liberian corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 2,240,000 shares of Common Stock, no par value ("Stock"), of the
Company and Tradewinds Trust Co. Ltd., as trustee for Cirrus Trust (the
"Selling Stockholder") proposes, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of 3,360,000 shares of Stock
of the Company. The 5,600,000 shares of Stock to be sold by the Company and
the Selling Stockholder are herein referred to as the "Firm Shares". At the
election of the Underwriters, up to 840,000 additional shares (the "Optional
Shares") of Stock of the Company will be sold by the Selling Stockholder (the
Firm Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof being collectively called the "Shares").
It is understood and agreed to by all parties that the Company and the
Selling Stockholder are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Company
and the Selling Stockholder of up to a total of 1,610,000 shares of Stock (the
"International Shares"), including the overallotment option thereunder,
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through arrangements with certain underwriters outside the United States (the
"International Underwriters"), for whom Goldman Sachs International, Donaldson,
Lufkin & Jenrette International and Furman Selz LLC are acting as lead
managers. Anything herein or therein to the contrary notwithstanding, the
respective closings under this Agreement and the International Underwriting
Agreement are hereby expressly made conditional on one another. The
Underwriters hereunder and the International Underwriters are simultaneously
entering into an Agreement between U.S. and International Underwriting
Syndicates (the "Agreement between Syndicates") which provides, among other
things, for the transfer of shares of Stock between the two syndicates. Two
forms of prospectus are to be used in connection with the offering and sale of
shares of Stock contemplated by the foregoing, one relating to the Shares
hereunder and the other relating to the International Shares. The latter form
of prospectus will be identical to the former except for certain substitute
pages. Except as used in Sections 2, 3, 4, 9 and 11 herein, and except as the
context may otherwise require, references hereinafter to the Shares shall
include all the shares of Stock which may be sold pursuant to either this
Agreement or the International Underwriting Agreement, and references herein to
any prospectus whether in preliminary or final form, and whether as amended or
supplemented, shall include both the U.S. and the international versions
thereof.
1. (a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form F-3 (File No.
333-52513) (including any amendments thereto and any
prospectus filed pursuant to Rule 424(a) of the
Securities Act of 1933, as amended (the "Act"), filed
prior to the time such Registration Statement became
effective) (the "Initial Registration Statement") in
respect of the Shares has been filed with the
Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and
any post-effective amendment thereto, each in the
form heretofore delivered to you for each of the
other Underwriters, and, excluding exhibits thereto
but including all documents incorporated by reference
in the prospectus contained therein, have been
declared effective by the Commission in such form;
other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule
462(b) under the Act, which became effective upon
filing, no other document with respect to the Initial
Registration Statement or any document incorporated
by reference therein has heretofore been filed with
the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any
preliminary prospectus included in the Initial
Registration
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Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a
"Preliminary Prospectus"); the various parts of the
Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all
exhibits thereto and including (i) the information
contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the
Initial Registration Statement at the time it was
declared effective or such part of the Rule 462(b)
Registration Statement, if any, at the time it became
or hereafter becomes effective and (ii) the documents
incorporated by reference in the prospectus contained
in the Initial Registration Statement at the time
such part of the Initial Registration Statement
became effective, each as amended at the time such
part of the Initial Registration Statement became
effective, are hereinafter collectively called the
"Registration Statement"; and such final prospectus,
in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the "Prospectus"; and
any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and
include the documents incorporated by reference
therein pursuant to Item 12 of Form F-3 under the
Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to
any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of
the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated
by reference in the Registration Statement;
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the
time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein,
in the light of the circumstances under which they
were made, not misleading; provided, however, that
this representation and warranty shall not apply to
any statements or omissions made in
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reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter
through Goldman, Sachs & Co. expressly for use
therein or by the Selling Stockholder expressly for
use in the preparation of the answers therein to Item
7 of Form F-3;
(iii) The documents incorporated by reference in the
Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed in
all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading; and any
further documents so filed and incorporated by
reference in the Prospectus or any further amendment
or supplement thereto, when such documents become
effective or are filed with the Commission, as the
case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading;
(iv) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements
to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements
of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of
the applicable effective date as to the Registration
Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading; provided, however, that this
representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to
the Company by an Underwriter through Goldman, Sachs
& Co. expressly for use therein or by the Selling
Stockholder expressly for use in the preparation of
the answers therein to Item 7 of Form F- 3;
(v) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the
laws of the Republic of Liberia, has the power and
authority to own its property and to conduct its
business as
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currently conducted and as described in the
Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or
leasing of property requires such qualification,
except to the extent that the failure to be so
qualified or be in good standing would not have a
material adverse effect on the Company and its
subsidiaries, taken as a whole;
(vi) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and
authority to own its property and to conduct its
business as described in the Prospectus and is duly
qualified to transact business and is in good
standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property
requires such qualification, except to the extent
that the failure to be so qualified or be in good
standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(vii) Schedule III(a) hereto is a complete and accurate
list of the Company's operating subsidiaries
incorporated under the laws of the Republic of
Liberia and Schedule III(b) is a complete and
accurate list of the Company's subsidiaries
incorporated under the laws of the Republic of
Liberia that have no operations or assets; Schedule
IV(a) hereto is a complete and accurate list of the
Company's operating subsidiaries incorporated under
the laws of The Bahamas; and Schedule IV(b) hereto is
a complete and accurate list of the Company's
subsidiaries incorporated under the laws of The
Bahamas that have no operations or assets.
(viii) The authorized capital stock of the Company conforms
as to legal matters to the description thereof
contained in the Prospectus and none of the
outstanding shares of capital stock of the Company
was issued in violation of the preemptive rights of
any stockholder of the Company. There are no
outstanding rights, warrants or options to acquire,
or instruments convertible into or exchangeable for,
any shares of capital stock of the Company, except
for options issued by the Company pursuant to the
Company's 1995 Stock Option Plan and no holder of
shares of capital stock of the Company has the right
to request the Company to register securities held by
them under the Act, other than the registration
rights of the Cirrus Trust and the JTK Trust pursuant
to the Registration Rights Agreement dated March 29,
1994. The Company had at the date indicated a duly
authorized and outstanding capitalization as set
forth in the Prospectus and all of the issued and
outstanding shares of Common Stock prior to the
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issuance of the Shares have been duly authorized and
are validly issued, paid and non-assessable;
(ix) The unissued Shares to be issued and sold by the
Company to the Underwriters hereunder and under the
International Underwriting Agreement have been duly
and validly authorized and, when issued and delivered
against payment therefor as provided herein and in
the International Underwriting Agreement, will be
duly and validly issued and fully paid and
non-assessable and will conform to the description of
the Stock contained in the Prospectus;
(x) The issuance of the Shares will not be subject to any
preemptive or similar rights;
(xi) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and
delivered by the Company;
(xii) The issue and sale of the Shares to be sold by the
Company hereunder and under the International
Underwriting Agreement and the execution and delivery
by the Company of, and the performance by the Company
of its obligations under, this Agreement and the
International Underwriting Agreement and the
consummation of the transactions herein and therein
contemplated will not contravene any provision of
applicable law or the articles of incorporation or
by-laws of the Company or any of its subsidiaries or
any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any
governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and
no consent, approval, authorization or order of or
qualification with any governmental body or agency is
required for the performance by the Company of its
obligations under this Agreement and the
International Underwriting Agreement, except such as
may be required by the securities or Blue Sky laws of
the various states in the United States, or other
applicable jurisdictions, in connection with the
purchase and distribution of the Shares by the
Underwriters and the International Underwriters;
(xiii) Neither the Company nor any of its subsidiaries is in
violation of its articles or certificate of
incorporation or by- laws or is in default of the
performance or observance of any obligation,
agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement
lease
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or other agreement or instrument to which it is a
party or by which it or any of its properties may be
bound except where such default would not
individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries,
taken as a whole;
(xiv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited
financial statements included in the Prospectus any
material loss or interference with its 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,
otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of
which information is given in the Registration
Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt of the
Company or any of its subsidiaries (other than (A) an
immaterial change due to repayment or borrowing under
existing credit agreements or (B) the issuance of
shares of Common Stock upon the exercise of stock
options disclosed in the Registration Statement) or
any material adverse change, or any development
involving a prospective material adverse change, in
or affecting the general affairs, management,
financial position, stockholders' equity or results
of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the
Prospectus;
(xv) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as
they purport to constitute a summary of the terms of
the Shares, are accurate, complete and fair;
(xvi) There are no legal or governmental proceedings
pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries
is subject that are required to be described in the
Registration Statement or the Prospectus and are not
so described or any statutes, regulations, contracts
or other documents that are required to be described
in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement
that are not described or filed as required;
(xvii) Each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and has
made all declarations and filings with, all federal,
provincial, state, local and other governmental
authorities, all self-regulatory organizations and
all courts and other tribunals, to own, lease,
license and use its properties and assets and to
conduct its business in the manner described in
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the Prospectus, except to the extent that the failure
to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, taken as
a whole, and neither the Company nor any of its
subsidiaries has received any notice of proceedings
relating to revocation or modification of any such
licenses, permits, certificates, consents, orders,
approvals or authorizations;
(xviii) No material labor dispute with the employees of the
Company or any of its subsidiaries exists, except as
described in or contemplated by the Prospectus, or,
to the knowledge of the Company, is imminent;
(xix) The Company and its subsidiaries have good and
marketable title to all properties and assets owned
by it, free and clear of all liens, encumbrances and
defects, except such as are described or referenced
in the Prospectus or such as do not materially affect
the value of such property and do not interfere with
the use made and proposed to be made of such property
by the Company and its subsidiaries;
(xx) The Company and each of its subsidiaries are insured
by insurers of recognized financial responsibility
against such losses and risks and in such amounts as
are prudent and customary in the businesses in which
they are engaged;
(xxi) Except as otherwise described in the Prospectus, each
of the Company and its subsidiaries has filed all
income or other tax returns that are required to have
been filed in its relevant jurisdictions, except
insofar as the failure to file such returns would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and has paid all
taxes due pursuant to such returns or pursuant to any
assessment received by the Company, except for such
taxes, if any, as are being contested in good faith
and as to which adequate reserves have been provided;
(xxii) There is no tax, levy, impost, deduction, charge or
withholding imposed by the Republic of Liberia or any
political subdivision or taxing authority thereof
either (i) on or by virtue of the execution, delivery
or performances of this Agreement or the
International Underwriting Agreement or any other
document to be furnished hereunder, except, if
applicable, for certain fees payable in connection
with the increase in the authorized capital stock of
the Company, or (ii) on any payment to be made by the
Company pursuant to this Agreement or the
International Underwriting Agreement or the Shares,
except for any tax, levy, impost, deduction, charge
or
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withholding imposed on payments made to holders of
Shares who reside in, maintain an office in or engage
in business in the Republic of Liberia;
(xxiii) The Company is not 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");
(xxiv) Except as otherwise described in the Prospectus, the
Company and its subsidiaries are (i) in compliance
with any and all applicable foreign, federal,
provincial, state and local laws and regulations
relating to the protection of human health and
safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance
with all terms and conditions of any such permit,
license or approval, except where such noncompliance
with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(xxv) Except as otherwise described in the Prospectus, in
the ordinary course of its business, the Company
conducts a periodic review of the effect of
Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in
the course of which it identifies and evaluates
associated costs and liabilities (including, without
limitation, any capital or operating expenditures
required for clean-up, closure of properties or
compliance with Environmental Laws or any permit,
license or approval, any related constraints on
operating activities and any potential liabilities to
third parties). On the basis of such review, the
Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(xxvi) The consolidated financial statements of the Company
included in the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Act and the Exchange Act, and the
related published rules and regulations thereunder.
The consolidated financial statements included in the
Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries as of
the dates
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indicated and the consolidated results of operations
and changes in financial position of the Company and
its subsidiaries for the periods specified. Such
financial statements have been prepared in conformity
with United States generally accepted accounting
principles applied on a consistent basis throughout
the periods involved. The selected financial data
included in the Prospectus present fairly the
information shown therein and have been derived from
the audited consolidated financial statements of the
Company. The pro forma financial information
included in the Prospectus presents fairly the
information shown therein and has been properly
compiled on the pro forma bases described therein,
and, in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred
to therein;
(xxvii) The Company will not take directly or indirectly, any
action which is designed to or which has constituted
or which might reasonably be expected to cause or
result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale
or resale of the Shares; and
(xxviii) Ernst & Young (the "Chartered Accountants"), who have
audited the financial statements of the Company and
its subsidiaries, included and incorporated into the
Registration Statement and the Prospectus are
independent chartered accountants as required by the
Act and the rules and regulations of the Commission
thereunder.
(b) The Selling Stockholder represents and warrants to,
covenants and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by the
Selling Stockholder of this Agreement, the
International Underwriting Agreement, the Irrevocable
Power of Attorney and Custody Agreement hereinafter
referred to, and for the sale and delivery of the
Shares to be sold by the Selling Stockholder
hereunder and under the International Underwriting
Agreement, have been obtained; the Selling
Stockholder has full right, power and authority to
enter into this Agreement, the International
Underwriting Agreement, the Irrevocable Power of
Attorney and Custody Agreement and to sell, assign,
transfer and deliver the Shares to be sold by the
Selling Stockholder hereunder and under the
International Underwriting Agreement; and this
Agreement, the International Underwriting Agreement,
the Irrevocable Power of Attorney
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and Custody Agreement have been duly authorized,
executed and delivered by the Selling Stockholder;
(ii) The sale of the Shares to be sold by the Selling
Stockholder hereunder and under the International
Underwriting Agreement and the compliance by the
Selling Stockholder with all of the provisions of
this Agreement, the International Underwriting
Agreement, and the Irrevocable Power of Attorney and
Custody Agreement and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed
of trust, loan agreement or other agreement or
instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound,
or to which any of the property or assets of the
Selling Stockholder is subject, except to the extent
such default would not have a material adverse
effect on the Selling Stockholder, nor will such
action result in any violation of the provisions of
the Certificate of Trust or trust instruments of the
Selling Stockholder or any statute or any order, rule
or regulation of any court or governmental agency or
body having jurisdiction over the Selling Stockholder
or the property of the Selling Stockholder;
(iii) The Selling Stockholder has, and immediately prior to
each Time of Delivery (as defined in Section 4
hereof) the Selling Stockholder will have, good and
valid title to the Shares to be sold by the Selling
Stockholder hereunder and under the International
Underwriting Agreement, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery
of such Shares and payment therefor pursuant hereto
and thereto, good and valid title to such Shares,
free and clear of all liens, encumbrances, equities
or claims, will pass to the several Underwriters or
the International Underwriters, as the case may be;
(iv) During the period beginning from the date hereof and
continuing to and including the date 180 days after
the date of the Prospectus, the Selling Stockholder
will not offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder or under the
International Underwriting Agreement any securities
of the Company that are substantially similar to the
Shares, including but not limited to any securities
that are convertible into or exchangeable for, or
that represent the right to receive, Stock or any
such substantially similar securities without your
prior written consent;
(v) The Selling Stockholder has not taken and will not
take, directly or
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indirectly, any action which is designed to or which
has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation
of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made
in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or
supplement thereto are made in reliance upon and in
conformity with written information furnished to the
Company by the Selling Stockholder expressly for use
therein, such Preliminary Prospectus and the
Registration Statement did, and the Prospectus and
any further amendments or supplements to the
Registration Statement and the Prospectus, when they
become effective or are filed with the Commission, as
the case may be, will conform in all material
respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and will
not contain any untrue statement of a material fact
or omit to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading;
(vii) In order to document the Underwriters' compliance
with the reporting and withholding provisions of the
Tax Equity and Fiscal Responsibility Act of 1982 with
respect to the transactions herein contemplated, the
Selling Stockholder will deliver to you prior to or
at the First Time of Delivery (as hereinafter
defined) a properly completed and executed United
States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(viii) Certificates in negotiable form representing all of
the Shares to be sold by the Selling Stockholder
hereunder and under the International Underwriting
Agreement have been placed in custody under a Custody
Agreement, in the form heretofore furnished to you
(the "Irrevocable Power of Attorney and Custody
Agreement"), duly executed and delivered by the
Selling Stockholder to The Bank of New York, as
custodian (the "Custodian"), and the Selling
Stockholder has duly executed and delivered an
Irrevocable Power of Attorney, in the form heretofore
furnished to you pursuant to the Irrevocable Power of
Attorney and Custody Agreement, appointing o as the
Selling Stockholder's attorney-in-fact (the
"Attorney-in-Fact") with authority to execute and
deliver this Agreement and the International
Underwriting Agreement on behalf of the Selling
Stockholder, to determine the purchase price to be
paid by the Underwriters and the International
Underwriters to the Selling Stockholder as provided
in Section 2 hereof, to
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authorize the delivery of the Shares to be sold by
the Selling Stockholder hereunder and otherwise to
act on behalf of the Selling Stockholder in
connection with the transactions contemplated by this
Agreement, the International Underwriting Agreement
and the Irrevocable Power of Attorney and Custody
Agreement; and
(ix) The Shares represented by the certificates held in
custody for the Selling Stockholder under the
Irrevocable Power of Attorney and Custody Agreement
are subject to the interests of the Underwriters
hereunder and the International Underwriters under
the International Underwriting Agreement; the
arrangements made by the Selling Stockholder for such
custody, and the appointment by the Selling
Stockholder of the Attorney-in-Fact by the
Irrevocable Power of Attorney and Custody Agreement,
are to that extent irrevocable; the obligations of
the Selling Stockholder hereunder shall not be
terminated by operation of law, whether by the death
or incapacity of the trustee for the Selling
Stockholder or the termination of such trust or by
the occurrence of any other event; if any trustee
should die or become incapacitated, or if such trust
should be terminated, or if any other such event
should occur, before the delivery of the Shares
hereunder, certificates representing the Shares shall
be delivered by or on behalf of the Selling
Stockholder in accordance with the terms and
conditions of this Agreement, of the International
Underwriting Agreement and of the Irrevocable Power
of Attorney and Custody Agreement; and actions taken
by the Attorney-in-Fact pursuant to the Irrevocable
Power of Attorney and Custody Agreement shall be as
valid as if such death, incapacity, termination or
other event had not occurred, regardless of whether
or not the Custodian, the Attorney-in-Fact, or any of
them, shall have received notice of such death,
incapacity, termination or other event.
2. Subject to the terms and conditions herein set forth, (a) the
Company and the Selling Stockholder agree, severally and not jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and the Selling Stockholder, at a
purchase price per share of $ o, the number of Firm Shares as set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Selling Stockholder agrees to sell to
each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Selling Stockholder, at the purchase price
per share set forth in clause (a) of this Section 2, that portion of the number
of Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares)
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determined by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Selling Stockholder, hereby grants to the Underwriters the right
to purchase at their election up to 840,000 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised only by written notice from you to
the Selling Stockholder, given within a period of 30 calendar days after the
date of this Agreement and setting forth the aggregate number of Optional
Shares to be purchased and the date on which such Optional Shares are to be
delivered, as determined by you but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless you and the Selling
Stockholder otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder,
in definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours'
prior notice to the Company and the Selling Stockholder, shall be delivered by
or on behalf of the Company and the Selling Stockholder to Goldman, Sachs &
Co., through the facilities of The Depository Trust Company ("DTC") for the
account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company and the Custodian on
behalf of the Selling Stockholder, as their interests may appear, to Goldman,
Sachs & Co. at least forty-eight hours in advance. The Company will cause the
certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment
shall be, with respect to the Firm Shares, 9:00 A.M., New York City time, on .,
1998, or such other time and date as Goldman, Sachs & Co., the Company and the
Selling Stockholder may agree upon in writing, and, with respect to the
Optional Shares, 9:00 A.M., New York City time, on the date specified by
Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as Goldman, Sachs & Co., and the Selling Stockholder may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second
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Time of Delivery", and each such time and date for delivery is herein called a
"Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(n) hereof, will be delivered at the offices
of Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022 or such
other office or offices as Goldman, Sachs & Co., the Company and the Selling
Stockholder shall agree (the "Closing Location"), and the Shares will be
delivered at the Designated Office, all at such Time of Delivery. A meeting
will be held at the Closing Location at 2:00 P.M., New York City time, on the
New York Business Day next preceding such Time of Delivery, at which meeting
the final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the purposes
of this Section 4, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you
and to file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you
with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with
the offering or sale of the Shares; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
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(b) Promptly from time to time to take such action as you
may reasonably request to qualify the Shares for offering and sale
under the securities laws of such jurisdictions as you may request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New
York Business Day next succeeding the date of this Agreement and from
time to time, to furnish the Underwriters with copies of the
Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Shares and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act or the Exchange Act,
to notify you and upon your request to file such document, to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time
nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of
the Act;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, the Company covenants; (i) it will not; and (ii) it will
use its best efforts to ensure the Selling Stockholder, JTK Trust
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and the executive officers and directors of the Company listed on
Schedule V hereto do not offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder and under the International
Underwriting Agreement, any securities of the Company that are
substantially similar to the Shares, including but not limited to any
securities that are convertible into or exercisable or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (in the case of the Company, other
than (i) options issued under the Company's 1995 Stock Option Plan, as
described in the Prospectus, and (ii) any shares of Stock issued by
the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof), without your
prior written consent;
(f) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to change or modify in any way any vesting period in
respect of options issued or to be issued under the Company's 1995
Stock Option Plan;
(g) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a
balance sheet and statements of income, stockholders' equity and cash
flows of the Company and its consolidated subsidiaries audited by
independent chartered accountants) and, as soon as practicable after
the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of
the Registration Statement), consolidated summary financial
information of the Company and its subsidiaries for such quarter in
reasonable detail;
(h) During a period of five years from the effective date
of the Registration Statement, to furnish to you copies of all reports
or other communications (financial or other) furnished to
stockholders, and to deliver to you (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(i) To use the net proceeds received by it from the sale
of the Shares pursuant to this Agreement and the International
Underwriting Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(j) To use its best efforts to list, subject to notice of
issuance, the Shares to be issued by the Company on The New York Stock
Exchange (the "Exchange"); and
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(k) To not take directly or indirectly, any action which
is designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Shares.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the International
Underwriting Agreement, the Agreement between Syndicates, the Selling
Agreements and the Blue Sky Memorandum, closing documents, the Irrevocable
Power of Attorney and Custody Agreement and any documents in connection with
the offering, purchase sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky surveys; (iv) all fees and
expenses in connection with listing the Shares on the Exchange; (v) the filing
fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
(vi) the cost of preparing stock certificates; (vii) the cost and charges of
any transfer agent or registrar; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. The Selling Stockholder
covenants and agrees with the several Underwriters that the Selling Stockholder
will pay or cause to pay any applicable stock transfer taxes. It is
understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of
the Shares by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters hereunder, as to the
Shares to be delivered at each Time of Delivery shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of such Time of Delivery, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have
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been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters,
shall have furnished to you such opinion or opinions (a draft of each
such opinion is attached as Annex II(a) hereto), dated such Time of
Delivery, with respect to such related matters as you may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
(c) Watson, Farley & Williams, special Liberian counsel
for the Company, shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex II(b) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) this Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by the Company;
(ii) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus;
(iii) each of the subsidiaries of the Company
listed on Schedule III(a) hereto has been duly incorporated,
is validly existing as a corporation in good standing under
the laws of the Republic of Liberia, has the corporate power
and authority to own its property and to conduct its business
as described in the Prospectus;
(iv) Sebarok Spirit Inc., a corporation
incorporated under the laws of The Bahamas, is duly qualified
as a foreign corporation to transact business and is in good
standing under the laws of the Republic of Liberia;
(v) the shares of common stock outstanding prior
to the issuance of the Shares have been duly authorized, are
validly issued and, assuming issuance against payment
therefor, are fully paid and nonassessable;
(vi) the Shares have been duly authorized and,
when issued and delivered in accordance with the terms of this
Agreement and the International Underwriting Agreement, will
be validly issued, fully paid and nonassessable, and the
issuance of such Shares will not be subject to any preemptive
or similar rights created by
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statute or the Company;
(vii) the statements (1) in the Prospectus under
the captions "Tax Considerations--Liberian Tax Considerations"
and "Description of Capital Stock" and (2) in the Registration
Statement in Item 15, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(viii) the choice of New York law to govern this
Agreement and the International Underwriting Agreement
constitutes a valid choice of law insofar as the law of the
Republic of Liberia is concerned. The submission by the
Company to the non- exclusive jurisdiction of any federal or
state court in the Borough of Manhattan, The City of New York
(a "New York Court") is a valid submission insofar as the law
of the Republic of Liberia is concerned, provided that Lawco
of Oregon, Inc. has accepted its appointment by the Company as
its agent to accept service of process in the United States of
America under this Agreement and the International
Underwriting Agreement;
(ix) in a suit on the merits brought before a
Liberian court, a Liberian court will respect and enforce the
agreement of the parties as to judgment currency; and
(x) a judgment granted by a foreign court against
the Company may be enforced in the Republic of Liberia without
a retrial on the merits of the matter provided that: (A) the
judgment is for a specific, ascertained sum of money and is
final in the jurisdiction granting the judgment; (B) the court
granting the judgment had jurisdiction under the laws of the
place where the court is seated; (C) the judgment does not
offend the principles of the Republic of Liberia as to due
process, natural justice or public policy; (D) the judgment
was not obtained by fraud; (E) the defendant was actually
present in person or by a duly appointed representative and
(F) the judgment does not in effect constitute a default
judgment;
(d) Graham, Thompson & Co., special Bahamian counsel for
the Company, shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex II(c) hereto), dated such
Time of Delivery, to the effect that each subsidiary of the Company
listed on Schedule IV(a) hereto has been duly incorporated, is validly
existing as a corporation in good standing under the laws of The
Bahamas, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly
qualified to transact business.
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(e) Perkins Coie, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Annex II(d) hereto), dated such Time of Delivery, in a
form and substance satisfactory to you, to the effect that:
(i) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement and the International Underwriting Agreement
will not contravene any provision of the laws of the United
States or any state thereof or the articles of incorporation
or by-laws of the Company or, to the best of such counsel's
knowledge, any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, any judgment, or decree of
any governmental body, agency or court of the United States or
any state thereof having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order
of or qualification with any governmental body or agency of
the United States or any state thereof is required for the
performance by the Company of its obligations under this
Agreement and the International Underwriting Agreement, except
such as may be required by the securities or Blue Sky laws of
the various states in the United States, or other applicable
jurisdictions, in connection with the purchase and
distribution of the Shares by the Underwriters and the
International Underwriters;
(ii) the statements in the Prospectus under the
captions "Management--Executive Compensation", "Description
of Certain Indebtedness", and "Shares Eligible for Future
Sale", in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein;
(iii) the statements in the Prospectus under the
captions "Tax Considerations -- United States Tax
Considerations", in so far as such statements constitute
summaries of the legal matters referred to therein, fairly
present the information called for with respect to such legal
matters and fairly summarize the matters referred to therein;
(iv) to such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described nor are there any statutes, regulations, contracts
or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the
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Registration Statement that are not described or filed as
required;
(v) the Company is not an "investment company" or
an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act;
(vi) The documents incorporated by reference in
the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and they have no reason to believe that any of such documents,
when such documents became effective or were so filed, as the
case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other
documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading;
(vii) on the basis of information reviewed by such
counsel in the course of its performance of services in
connection with the registration of the Shares, including such
counsel's participation in conferences with officers and other
representatives of the Company, representatives of the
Chartered Accountants for the Company, representatives of the
Underwriters and counsel for the Underwriters at which the
contents of the Prospectus were discussed (relying as to
materiality to the extent such counsel deems appropriate upon
the opinions of officers and other representatives of the
Company), the Registration Statement and Prospectus (except
for financial statements and schedules included therein as to
which such counsel need not express any opinion) when they
became effective or were filed with the Commission, as the
case may be, complied, and as of the Time of Delivery, comply
as to form in all material respects with the Act and the rules
and regulations of the Commission thereunder; and
(viii) such counsel does not know of any amendment
to the Registration Statement required to be filed or of any
contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required
to be incorporated by reference into the Prospectus or
required to be described in the
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Registration Statement or the Prospectus which are not filed
or incorporated by reference or described as required.
In addition to the matters set forth above, counsel
rendering the foregoing opinion shall also include a statement
to the effect that although such counsel assumes no
responsibility for the factual accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in
the opinion in subsection (iii) of this Section 7(e) and on
the basis of the procedures undertaken by counsel (and relying
as to materiality to the extent such counsel deems appropriate
upon the opinions of officers and other representatives of the
Company), no facts have come to the attention of counsel that
cause it to believe that the Registration Statement and any
amendments and supplements thereto, at the time they became
effective and as of such Time of Delivery, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, at
the time it was mailed or otherwise delivered to the
Commission for filing pursuant to Rule 424(b) and as of such
Time of Delivery, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that
counsel need not express any opinion with respect to the
financial statements and supporting schedules and other
financial data included in the Registration Statement and the
Prospectus. Counsel may indicate that it has not undertaken
any independent investigation to verify the completeness,
accuracy or fairness of the statements made in the
Registration Statement or the Prospectus.
With respect to subparagraph (vii) of paragraph (e) above,
Perkins Coie and Shearman & Sterling may state that their opinion and
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof,
but are without independent check or verification except as specified.
(f) McLean McNally, counsel for the Selling Stockholder,
shall have furnished to you its written opinion with respect to the
Selling Stockholder for whom it is acting as counsel (a draft of such
opinion is attached as Annex II(e) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) An Irrevocable Power of Attorney and Custody
Agreement has been duly authorized, executed and delivered by
the Selling Stockholder and the Irrevocable Power of Attorney
and Custody Agreement constitutes a valid and legally binding
agreement of the Selling Stockholder enforceable against the
Selling Stockholder
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in accordance with its terms;
(ii) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by
or on behalf of the Selling Stockholder; and the sale of the
Shares to be sold by the Selling Stockholder hereunder and
thereunder and the compliance by the Selling Stockholder with
all of the provisions of this Agreement and the International
Underwriting Agreement and the Irrevocable Power of Attorney
and Custody Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach or violation of any terms or provisions of,
or constitute a default under, any statute, indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Selling
Stockholder is a party or by which the Selling Stockholder is
bound, or to which any of the property or assets of the
Selling Stockholder is subject, nor will such action result in
any violation of the provisions of the Certificate of Trust or
trust instruments of the Selling Stockholder or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Selling Stockholder or the property of the Selling
Stockholder;
(iii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated by this
Agreement and the International Underwriting Agreement in
connection with the Shares to be sold by the Selling
Stockholder hereunder or thereunder, in connection with the
purchase and distribution of such Shares by the Underwriters
or the International Underwriters;
(iv) Immediately prior to such Time of Delivery the
Selling Stockholder had good and valid title to the Shares to
be sold at such Time of Delivery by the Selling Stockholder
under this Agreement and the International Underwriting
Agreement, free and clear of all liens, encumbrances, equities
or claims, and full right, power and authority to sell,
assign, transfer and deliver the Shares to be sold by the
Selling Stockholder hereunder and thereunder; and
(v) Good and valid title to such Shares, free and clear
of all liens, encumbrances, equities or claims, has been
transferred to each of the several Underwriters or
International Underwriters, as the case may be, who have
purchased such Shares in good faith and without notice of any
such lien, encumbrance, equity or claim or any other adverse
claim.
In rendering such opinion, such counsel may rely upon a certificate of
the Selling Stockholder in respect of matters of fact as to ownership of, and
liens, encumbrances, equities or
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claims on the Shares sold by the Selling Stockholder, provided that such
counsel shall state that they believe that both you and they are justified in
relying upon such certificate;
The opinion of Watson, Farley & Williams described in
paragraph (c) above, the opinion of Graham, Thompson & Co. described
in paragraph (d) above, the opinion of Perkins Coie described in
paragraph (e) above and the opinion of McLean McNally described in
paragraph (f) above shall each be rendered to you at the request of
the Company and shall so state therein.
(g) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:00 A.M., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, Ernst & Young shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in
Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex I(b) hereto);
(h) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with
its 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, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving
a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in
the manner contemplated in the Prospectus;
(i) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
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(j) On or after the date hereof there shall not have
occurred any of the following: (i) a suspension or material limitation
in trading in securities generally on the Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on any
exchange or in any over-the-counter market; (iii) a general moratorium
on commercial banking activities declared by either Federal or New
York or State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at
such Time of Delivery on the terms and in the manner contemplated in
the Prospectus;
(k) The Shares to be sold by the Company at the Time of
Delivery shall have been duly listed, subject to notice of issuance,
on the Exchange;
(l) The Company has obtained and delivered to the
Underwriters executed copies of an agreement from JTK Trust and the
executive officers and directors of the Company listed on Schedule V
hereto, substantially to the effect set forth in Subsection 5(e)
hereof;
(m) The Company shall have complied with the provisions
of Subsection 5(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of
this Agreement; and
(n) The Company and the Selling Stockholder shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company and of the Selling Stockholder
or representatives of the Selling Stockholder, as applicable,
satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Stockholder herein at and as
of such Time of Delivery, as to the performance by the Company and the
Selling Stockholder of all of their obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (h) of this Section and as to such other
matters as you may reasonably request.
The officers signing and delivering such certificates may rely
upon the best of their knowledge as to proceedings threatened.
8. (a) The Company and the Selling Stockholder, jointly and
severally will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as
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such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and the Selling Stockholder shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Goldman, Sachs & Co.
expressly for use therein; provided, further that the liability of the Selling
Stockholder pursuant to this Section 8(a) shall not exceed the product of the
number of Shares sold by such Selling Stockholder, including Optional Shares,
and the initial public offering price of the Shares as set forth in the
Prospectus.
(b) Each Underwriter will indemnify and hold harmless the Company
and the Selling Stockholder against any losses, claims, damages or liabilities
to which the Company or the Selling Stockholder may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Goldman, Sachs & Co.
expressly for use therein; and will reimburse the Company and the Selling
Stockholder for any legal or other expenses reasonably incurred by the Company
and the Selling Stockholder in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the
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indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) 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 Underwriters on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and the Selling Stockholder on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Shares purchased under this Agreement (before deducting expenses) received by
the Company and the Selling Stockholder bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and the Selling
Stockholder on the one hand or the Underwriters on the other and the parties'
relative intent,
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knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Selling Stockholder and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Stockholder
under this Section 8 shall be in addition to any liability which the Company
and the Selling Stockholder may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about
to become a director of the Company) and to each person, if any, who controls
the Company or the Selling Stockholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, then the Company and the Selling Stockholder shall
be entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to you to purchase such Shares on
such terms. In the event that, within the respective prescribed periods, you
notify the Company and the Selling Stockholder that you have so arranged for
the purchase of such Shares, or the Company and the Selling Stockholder notify
you that they have so arranged for the purchase of such Shares, you or the
Company and the Selling Stockholder shall have the right to postpone such Time
of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the
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Prospectus, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments to the Registration Statement or the Prospectus
which in your opinion may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this
Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Stockholder as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all the Shares to be purchased at such
Time of Delivery, then the Company and the Selling Stockholder shall have the
right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Stockholder as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased exceeds one-eleventh
of the aggregate number of all the Shares to be purchased at such Time of
Delivery, or if the Company and the Selling Stockholder shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and the Selling Stockholder to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company and the Selling Stockholder, except
for the expenses to be borne by the Company and the Selling Stockholder and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholder and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or the Selling Stockholder or any officer or
director or controlling person of the Company, or any controlling person of the
Selling Stockholder, and shall survive delivery of and payment for the Shares.
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11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor the Selling Stockholder shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof;
but, if for any other reason any Shares are not delivered by or on behalf of
the Company and the Selling Stockholder as provided herein, the Company and the
Selling Stockholder pro rata (based on the number of Shares to be sold by the
Company and such Selling Stockholder hereunder) will reimburse the Underwriters
through you for all out-of-pocket expenses approved in writing by you,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Stockholder shall then
be under no further liability to any Underwriter in respect of the Shares not
so delivered except as provided in Sections 6 and 8 hereof; provided that if
the Underwriters are not required to perform their obligations under this
Agreement due to the occurrence of any event specified in Subsection 7(j)
hereof, neither the Company nor the Selling Stockholder shall be obligated to
reimburse the Underwriters for such out-of-pocket expenses.
12. In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter made
or given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
Representatives; and in all dealings with the Selling Stockholder hereunder,
you and the Company shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of the Selling Stockholder made or given
by the Attorney-in-Fact for the Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the representatives in care of Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department; if to the Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to Tradewinds Trust Co. Ltd., c/o Temple Trust
Company Ltd., P. O. Box 228, Temple Building, Leeward Highway, Providenciales,
Turks & Caicos Islands, British West Indies, facsimile number (640) 946-5739,
Attention: R. J. McFadyen, with a copy to Teekay Shipping Corporation, Euro
Canadian Centre, 4th Floor, Marlborough Street, Navy Lion Road, Nassau, The
Bahamas, facsimile number (242) 328-7330, Attention: Arthur F. Coady; and if
to the Company shall be delivered or sent by mail, telex or facsimile
transmission to Suite 1400, One Bentall Centre, 505 Burrard Street, Vancouver,
British Columbia, Canada V7X 1M5 or its facsimile number (604) 844-6619,
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(d) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company or the Selling Stockholder by you upon
request. Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
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13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholder and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, the Selling Stockholder
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Any legal suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby may be
instituted in any federal or state court in the Borough of Manhattan, The City
of New York. Each of the Company, the Selling Stockholder and the Underwriters
waives any objection which it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding, waives any immunity from
jurisdiction or to service of process in respect of any such legal suit, action
or proceeding, irrevocably submits to the non-exclusive jurisdiction of any
such court in any such suit, action or proceeding and further submits to the
jurisdiction of the courts of its corporate domicile in any legal suit, action
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
15. The Company and the Selling Stockholder irrevocably designate
and appoint Lawco of Oregon, Inc. as their authorized agent upon which process
may be served in any legal suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby which may be
instituted in any federal or state court in the Borough of Manhattan, The City
of New York, and agree that service of process upon such agent, and written
notice of said service to the Company and the Selling Stockholder by the person
serving the same, shall be deemed in every respect effective service of process
upon the Company and the Selling Stockholder in any such suit or proceeding.
The Company and the Selling Stockholder further agree to take any and all
actions as may be necessary to maintain such designation and appointment of
such agent in full force and effect.
16. If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder into any currency other than United
States dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Representatives could purchase
United States dollars with such other currency in The City of New York on the
business day proceeding that on which final judgment is given. The obligations
of the Company or the Selling Stockholder in respect of any sum due from it to
any Underwriter shall, notwithstanding any judgment in a currency other than
United States dollars, not be discharged until the first business day,
following receipt by such Underwriter of any sum adjudged to be so due in such
other currency, on which (and only to the extent that) such Underwriter may in
accordance with normal banking procedures purchase United States dollars with
such other currency; if the United States dollars so purchased are less than
the sum originally due to such Underwriter hereunder, the Company and the
Selling
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Stockholder each agree, as a separate obligation and notwithstanding any such
judgment, that the party responsible for such judgment shall indemnify such
Underwriters against such loss. If the United States dollars so purchased are
greater than the sum originally due to such Underwriter hereunder, such
Underwriter agrees to pay to the Company or the Selling Stockholder, as the
case may be, (but without duplication) an amount equal to the excess of the
dollars so purchased over the sum originally due to such Underwriter hereunder.
17. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
18. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
19. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company, one for the Selling Stockholder and one
for each of the Representatives plus one for each counsel and the Custodian, if
any, counterparts hereof, and upon the acceptance hereof by you, on behalf of
each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
the Selling Stockholder. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is pursuant to the authority set forth in
a form of Agreement among Underwriters (U.S. Version), the form of which shall
be submitted to the Company and the Selling Stockholder for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact for
the Selling Stockholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
TEEKAY SHIPPING CORPORATION
By:
--------------------------------------
Name:
Title:
TRADEWINDS TRUST CO. LTD.,
AS TRUSTEE FOR CIRRUS TRUST
By:
--------------------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Donaldson, Lufkin & Jenrette Securities Corporation
Furman Selz LLC
By:
-------------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
35
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
-----------
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . .
Donaldson, Lufkin & Jenrette Securities Corporation . . . . . . .
Furman Selz LLC . . . . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . .
36
SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
The Company. . . . . . . . . . . . . . . . . . . . . . . . . .
Tradewinds Trust Co. Ltd.,
as trustee for Cirrus Trust (a) . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . .
(a) Tradewinds Trust Co. Ltd., as trustee for Cirrus Trust is represented
by . and has appointed ., as its Attorney-in-Fact.
37
SCHEDULE III(a)
Company Subsidiaries Incorporated in the Republic of Liberia With Operations
VSSI Appian Inc. Kobe Spirit Inc.
VSSI Apollo Inc. Kyushu Spirit Inc.
VSSI Atlantic Inc. Lavender Limited
VSSI Australia Limited Mendana Spirit Inc.
VSSI Boxships Inc. Musashi Spirit Inc.
VSSI Bulkers Inc. Nova Spirit Inc.
VSSI Carriers Inc. Palm Monarch Inc.
VSSI Challenger Inc. Palm Shipping Inc.
VSSI Containers Inc. Palmstar Rose Inc.
VSSI Deepsea Inc. Palmstar Thistle Inc.
VSSI Drake Inc. Schouten Spirit Inc.
VSSI Hong Kong Inc. Sentosa Spirit Inc.
VSSI Marine Inc. Vancouver Spirit Inc.
VSSI Oceans Inc. Volar Spirit Inc.
VSSI Singapore Inc. Willow Limited
VSSI Star Inc.
VSSI Tankers Inc.
VSSI Tokyo Inc.
VSSI Transport Inc.
VSSI Ulsan Inc.
Diamond Spirit Inc.
Dorio Shipping Ltd.
Elcano Spirit Inc.
Jasmin Holdings Limited
38
SCHEDULE III(b)
Company Subsidiaries Incorporated in the Republic of Liberia Without Operations
VSSI Barrington Limited
VSSI Condor Inc.
VSSI Gemini Inc.
VSSI Palmerston Limited
VSSI Sun Inc.
Alliance Spirit Inc.
Bull Shipping Ltd.
Cloudesdale Shipping Corporation
Cranberry Corporation
Flying Clipper Inc.
Flying Cloud Inc.
Hoi Wan Shipping Limited
Joss Shipping Limited
Nagasaki Spirit Inc.
Nakata Spirit Inc.
Onomichi Spirit Inc.
Pinewell Spirit Inc.
Tasman Spirit Inc.
Tokyo Spirit Inc.
Van Dieman Spirit Inc.
Viking Consolidated Shipping Corp.
39
SCHEDULE IV(a)
Company Subsidiaries Incorporated in The Bahamas With Operations
Andros Spirit Inc.
Exuma Spirit Inc.
Nassau Spirit Inc.
Sebarok Spirit Inc.
Senang Spirit Inc.
Seraya Spirit Inc.
Teekay Shipping (Vancouver) Ltd.
Teekay Shipping Limited
40
SCHEDULE IV(b)
Company Subsidiaries Incorporated in The Bahamas Without Operations
Chiba Spirit Inc.
Baltimar Apollo Limited
Baltimar Boreas Limited
Baltimar Mars Limited
Baltimar Sun Limited
Baltimar Taurus Limited
Baltimar Venus Limited
Baltimar Zephyr Limited
Nexus Shipping Inc.
Supersix Shipping Ltd.
Supereight Shipping Limited
Supernine Shipping Limited
41
SCHEDULE V
Axel Karlshoej
Bjorn Moller
Arthur F. Coady
Michael D. Dingman
Morris L. Feder
Steve G. K. Hsu
Thomas Kuo-Yuen Hsu
Veronica A. E. Alsleben
Peter S. Antturi
Paul Bendy
Ester E. Blair
Greg Chad
David Glendinning
Vincent C. Lok
Mads T. Meldgaard
Justin Murphy
Yoshio Nagao
Vinay S. Patwardhan
42
ANNEX I
Pursuant to Section 7(g) of the Underwriting Agreement, the Chartered
Accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent Chartered Accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the Canadian Institute of Chartered
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
separately furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards
established by the Canadian Institute of Chartered Accountants of the
unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in
the Prospectus as indicated in their reports thereon copies of which
have been separately furnished to the Representatives; and on the
basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of
the Company for the five most recent fiscal years included in the
Prospectus and included in Item 8 of the Company's Annual Report on
Form 20-F for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such five fiscal years
which were included or incorporated by reference in the Company's
Annual Reports on Form 20-F for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Form 20-F and on
the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing
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procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 8, 11, and 18, respectively, of Form 20-F;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 20-F for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which derived the unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included
in the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis
for the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 20-F for the
most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such
44
3
letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference
in the Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference) or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.