d1065143_6-k.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
6-K
REPORT
OF FOREIGN PRIVATE ISSUER PURSUANT TO
RULE
13A-16 OR 15D-16 UNDER THE SECURITIES
EXCHANGE
ACT OF 1934
For the
month of January 2010
Commission
File Number: 001-33179
AEGEAN
MARINE PETROLEUM NETWORK INC.
(Translation
of registrant's name into English)
42
Hatzikyriakou Avenue
Piraeus,
Athens 185 38
Greece
(Address
of principal executive offices)
Indicate
by check mark whether the registrant files or will file annual reports under
cover of Form 20-F or Form 40-F.
Form 20-F
[ X ] Form 40-F [ ]
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(1): ________.
Note: Regulation S-T Rule
101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely
to provide an attached annual report to security holders.
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(7): ________.
Note: Regulation S-T Rule
101(b)(7) only permits the submission in paper of a Form 6-K if submitted to
furnish a report or other document that the registrant foreign private issuer
must furnish and make public under the laws of the jurisdiction in which the
registrant is incorporated, domiciled or legally organized (the registrant's
"home country"), or under the rules of the home country exchange on which the
registrant's securities are traded, as long as the report or other document is
not a press release, is not required to be and has not been distributed to the
registrant's security holders, and, if discussing a material event, has already
been the subject of a Form 6-K submission or other Commission filing on
EDGAR.
INFORMATION
CONTAINED IN THIS FORM 6-K REPORT
Attached
as Exhibit 1.1 is a copy of the underwriting agreement dated January 21, 2010,
made by and between Aegean Marine Petroleum Network Inc. (the "Company") and
Goldman, Sachs & Co. and Jefferies & Company, Inc., as representatives
of the several underwriters listed therein, relating to the offering of common
shares (and related preferred stock purchase rights) (the "Offered Securities")
by the Company.
Attached
as Exhibit 5.2 is a copy of the opinion of Seward & Kissel LLP, counsel to
the Company, as to the legality of the Offered Securities.
This
Report on Form 6-K and Exhibit 1.1 and Exhibit 5.2 hereto are hereby
incorporated by reference as Exhibit 1.1 and
Exhibit 5.2, respectively, into the Company's Registration
Statement on Form F-3 (Registration No. 333-162935) that was declared effective
on January 15, 2010.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
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AEGEAN
MARINE PETROLEUM NETWORK INC.
(registrant)
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Dated:
January 22,
2010
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By:
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/s/
E. Nikolas Tavlarios |
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Name:
E. Nikolas Tavlarios
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Title:
President
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SK 23250
0004 1065143
Exhibit
1.1
EXECUTION VERSION
Aegean
Marine Petroleum Network Inc.
Common
Stock, Par Value $0.01 per Share
Underwriting
Agreement
January
21, 2010
Goldman,
Sachs & Co.
Jefferies
& Company, Inc.,
As representatives of the several
Underwriters
named in Schedule I
hereto,
c/o
Goldman, Sachs & Co.
200 West
Street,
New York,
New York 10282-2198
c/o
Jefferies & Company, Inc.
520
Madison Avenue
New York,
New York 10022.
Ladies
and Gentlemen:
Aegean
Marine Petroleum Network Inc., a corporation existing under the laws of the
Republic of the Marshall Islands (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 3,906,000 shares (the
"Firm Shares") and, at the election of the Underwriters, up to 585,900
additional shares (the "Optional Shares") of Common Stock, par value $0.01 per
share ("Stock") of the Company (the Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof being collectively
called the "Shares").
1.The Company represents and warrants to,
and agrees with, each of the Underwriters that:
(a)A registration statement on Form F-3
(File No. 333-162935) (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 and, excluding
exhibits to the Initial Registration Statement, but including all documents
incorporated by reference in the prospectus included therein, to you for
each of
the other Underwriters 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 Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore been
filed, or transmitted for filing, with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to the Representatives);
and no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or any part thereof or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (the base
prospectus filed as part of the Initial Registration Statement, in the form in
which it has most recently been filed with the Commission on or prior to the
date of this Agreement relating to the Shares, is hereinafter called the "Basic
Prospectus"; any preliminary prospectus (including any preliminary prospectus
supplement) relating to the Shares filed with the Commission pursuant to Rule
424(b) 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 any
prospectus supplement relating to the Shares that is filed with the Commission
and deemed by virtue of Rule 430B under the Act to be part of the Initial
Registration Statement, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; the Basic
Prospectus, as amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(c) hereof), is hereinafter called the "Pricing
Prospectus"; the form of the final prospectus relating to the Shares filed with
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof is hereinafter called the "Prospectus"; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 6 of Form F-3, as of the date of such prospectus; any
reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Shares filed with the Commission pursuant to Rule
424(b) under the Act and any documents filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated therein, in each case
after the date of the Basic Prospectus, such Preliminary Prospectus or the
Prospectus, as the case may be; 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 Registration Statement that is incorporated by
reference in the Registration Statement; and any
"issuer free writing prospectus" as defined in Rule 433 under the Act relating
to the Shares is hereinafter called an "Issuer Free Writing
Prospectus");
(b)No order preventing or suspending the
use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been
issued by the Commission, and each Preliminary Prospectus, at the time of filing
thereof, 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 reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Goldman, Sachs & Co. and
Jefferies & Company, Inc. expressly for use therein;
(c)For the purposes of this Agreement, the
"Applicable Time" is 4:10 p.m. (Eastern time) on the date of this Agreement. The
Pricing Prospectus, as of the Applicable Time, did not include any 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, not misleading; and each Issuer Free Writing Prospectus
listed on Schedule II hereto does not conflict with the information contained in
the Registration Statement, the Pricing Prospectus or the Prospectus and each
such Issuer Free Writing Prospectus, as supplemented by and taken together with
the Pricing Prospectus as of the Applicable Time, did not include any 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, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in
an Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. and Jefferies & Company, Inc. expressly for use
therein;
(d)The documents incorporated by reference
in the Pricing Prospectus and 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; 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. and Jefferies & Company, Inc. expressly for use
therein; and no such documents were filed with the Commission since the
Commission's close of business on the business day immediately prior to the date
of this Agreement and prior to the execution of this Agreement, except as set
forth on Schedule II hereto;
(e)The Registration Statement conforms,
and the Prospectus and any further amendments or supplements to the Registration
Statement and 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
each part of the Registration Statement 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. and Jefferies & Company, Inc. expressly for use
therein;
(f)Neither the Company nor any of its
subsidiaries has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Pricing 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 Pricing Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the Pricing
Prospectus, there has not been any change in the capital stock or long term debt
of the Company or any of its subsidiaries 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 Pricing Prospectus;
(g)The Company and its subsidiaries have
good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are described in the
Pricing Prospectus or such maritime or other liens that do not individually or
in the aggregate have a Material Adverse Effect (as defined below) and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the
use made and proposed to be made of such property and buildings by the Company
and its subsidiaries;
(h)The Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
Republic of the Marshall Islands, with power and authority (corporate and other)
to own its properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction;
and each subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation;
(i)The Company has an authorized
capitalization as set forth in the Pricing Prospectus and all of the issued
shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and conform to the description of
the Stock contained in the Pricing Prospectus and Prospectus; and all of the
issued shares of capital stock of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and (except
for directors' qualifying shares and except as otherwise set forth in the
Pricing Prospectus) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(j) Each
of Aegean Shipholdings Inc., a Marshall Islands corporation and Aegean Marine
Petroleum S.A., a Liberian corporation, are the only "significant subsidiaries"
of the Company, as such term is defined in Rule 1-02(w) of Regulation
S-X;
(k)The issue and sale of the Shares and
the compliance by the Company with this Agreement and the consummation of the
transactions herein 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 indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject except
to the extent that such breach, violation or default would not individually or
in the aggregate, have a Material Adverse Effect, nor will such action result in
any violation of the provisions of the Certificate of Incorporation or By-laws
of the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Shares or
the consummation by the Company of the transactions contemplated by this
Agreement except such as have been obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(l)Other than as set forth in the Pricing
Prospectus, there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject, which, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or expected future
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(m)Neither the Company nor any of its
subsidiaries is in violation of its Certificate of Incorporation or By-laws or
in default in the performance or observance of any material obligation, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(n)The statements set forth in the Pricing
Prospectus and Prospectus under the caption "Description of Capital Stock",
insofar as they purport to constitute a summary of the terms of the Stock and
under the captions "Tax Considerations" and "Underwriting," insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(o)The Company is not and, after giving
effect to the offering and sale of the Shares and the application of the
proceeds thereof, will not be an "investment company", as such term is defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(p)Deloitte, Hadjipavlou Sofianos &
Cambanis S.A., who have certified certain financial statements of the Company
and its subsidiaries, and have audited the Company's internal control over
financial reporting and management's assessment thereof, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(q)The Company maintains a system of
internal control over financial reporting (as such term is defined in Rule
13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company's principal executive officer
and principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
generally accepted accounting principles. The Company's internal control over
financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting;
(r) Since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus, there has been no change in the Company's internal
control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company's internal control over financial
reporting;
(s) The Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) under the
Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the
Company's principal executive officer and principal financial officer by others
within those entities; and such disclosure controls and procedures are
effective;
(t) The
Company has all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses, filings and permits of, with and from
all judicial, regulatory and other legal or governmental agencies and bodies and
all third parties, foreign and domestic (collectively, the "Consents"), except
where the failure to obtain such Consents would not individually or in the
aggregate have a material adverse effect on the business, financial condition,
results of operations, stockholders' equity, properties or prospects of the
Company ("Material Adverse Effect"), to own, lease and operate its properties
and conduct its business as it is now being conducted and as disclosed in the
Pricing Prospectus, and each such Consent is valid and in full force and effect,
and the Company has not received notice of any investigation or proceedings
which results in or, if decided adversely to the Company, could reasonably be
expected to result in, the revocation of, or imposition of a materially
burdensome restriction on, any Consent. The Company is in compliance
with all applicable laws, rules, regulations, ordinances, directives, judgments,
decrees and orders, foreign and domestic, except where failure to be in
compliance would not individually or in the aggregate have a Material Adverse
Effect. No Consent contains a materially burdensome restriction not
adequately disclosed in the Pricing Prospectus;
(u) The
Company and its subsidiaries maintain insurance or a membership in a mutual
protection and indemnity association covering their respective properties,
operations, personnel and businesses as the Company deems adequate; such
insurance or membership insures against such losses and risks to an extent which
the Company deems is adequate in accordance with customary industry practice;
all such insurance is fully in force on the date hereof and will be fully in
force at the time of purchase and any additional time of purchase; there are no
material claims by the Company or any of its subsidiaries under any insurance
policy or instrument as to which any insurance company or mutual protection and
indemnity association is denying liability or defending under a reservation of
rights clause; none of the Company or any of its subsidiaries is currently
required to make any payment, or is aware of any facts that would require it to
make any payment, in respect of a call by, or a
contribution to, any mutual protection and indemnity association; and none of
the Company or any of its subsidiaries has reason to believe that it will not be
able to renew or replace any such insurance or membership in a mutual protection
and indemnity association as and when such insurance or membership expires or is
terminated;
(v) Since
the date of the last audited financial statements included in the Pricing
Prospectus, (i) there has not been a material loss (whether actual or
constructive or partial or total) of or to any of the vessels that are described
in the Pricing Prospectus as owned or to be acquired by the Company or any of
its subsidiaries and (ii) no such vessel has been arrested or requisitioned for
title or hire;
(w) No
labor disturbance by the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is imminent and the Company is not
aware of any existing or imminent labor disturbances by the employees of any of
its or its subsidiaries' principal suppliers, shipyards, customers or
contractors, which would individually or in the aggregate have a Material
Adverse Effect;
(x) There
has been no storage, generation, transportation, handling, treatment, disposal,
discharge, emission or other release of any kind of toxic or other wastes or
other hazardous substances by, due to, or caused by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any other entity for whose
acts or omissions the Company is or may be liable) upon any other property now
or previously owned or leased by the Company or any of its subsidiaries, or upon
any other property, which would be a violation of or give rise to any liability
under any applicable law, rule, regulation, order, judgment, decree or permit
(including any applicable regulations and standards adopted by the International
Maritime Organization) relating to pollution or protection of human health and
the environment ("Environmental Law"), except for violations and liabilities
which would not individually or in the aggregate have a Material Adverse
Effect. There has been no disposal discharge, emission or other
release of any kind onto such property or into the environment surrounding such
property of any toxic or other wastes or other hazardous substances with respect
to which the Company or any of its subsidiaries has knowledge, which would
individually or in the aggregate have a Material Adverse Effect. None
of the Company or any of its subsidiaries has agreed to assume, undertake or
provide indemnification for any liability of any other person under any
Environmental Law, including any obligation for cleanup or remedial action,
other than by operation of law or due to the Company's membership in any mutual
protection and indemnity association, in each case as described in the Pricing
Prospectus, and except as would not individually or in the aggregate have a
Material Adverse Effect. There is no pending or, to the knowledge of
the Company, threatened administrative, regulatory or judicial action, claim or
notice of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its
subsidiaries;
(y) Except
as disclosed in the Company's Pricing Prospectus (i) neither the Company nor any
entity, whether or not incorporated, that is under common control with the
Company within the meaning of Section 4001 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or is part of a group that includes
the Company and that is treated as a single employer under Section 414 of the
Internal Revenue Code of 1986, as amended (the "Code") has, within the five year
period prior to the date on which this representation is made or deemed made,
sponsored, contributed to, or has or had any liability or obligation in respect
of, any "employee benefit plan" (within the meaning of Section 3(3) of ERISA)
subject to ERISA or any plan subject to Section 4975 of the Code (each, a
"Plan") and each Plan has been maintained in all material respects in compliance
with its terms and the requirements of any applicable statutes, orders, rules
and regulations, including but not limited to ERISA and the Code; (ii) no
prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code, has occurred with respect to any Plan excluding transactions
effected pursuant to a statutory or administrative exemption; (iii) no
"reportable event" (within the meaning of Section 4043(c) of ERISA) has occurred
or is reasonably expected to occur with respect to any Plan; and (iv) neither
the Company nor any member of the Controlled Group has incurred, nor reasonably
expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC, in the ordinary course and
without default) in respect of a Plan (including a "multiemployer plan", within
the meaning of Section 4001(a)(3) of ERISA);
(z) The
Company has accurately prepared and timely filed all federal, state, foreign and
other tax returns that are required to be filed by it and has paid or made
provision for the payment of all taxes, assessments, governmental or other
similar charges, including without limitation, all sales and use taxes and all
taxes which the Company is obligated to withhold from amounts owing to
employees, creditors and third parties, with respect to the periods covered by
such tax returns (whether or not such amounts are shown as due on any tax
return), unless such failure would not individually or in the aggregate have a
Material Adverse Effect. No deficiency assessment with respect to a
proposed adjustment of the Company's federal, state, local or foreign taxes is
pending or, to the Company's knowledge, threatened. The accruals and
reserves on the books and records of the Company in respect of tax liabilities
for any taxable period not finally determined are adequate to meet any
assessments and related liabilities for any such period and, since December 31,
2006, the Company has not incurred any liability for taxes other than in the
ordinary course of its business. To the Company's knowledge, there is no tax
lien, whether imposed by any federal, state, foreign or other taxing authority,
outstanding against the assets, properties or business of the Company;
(aa) All
dividends and other distributions declared and payable on the shares of Common
Stock of the Company or on the shares of common stock or other equity securities
of each subsidiary may under the current laws and regulations of the Republic of
the Marshall Islands and the Republic of Greece be paid in United States dollars
and may be freely transferred out of the Republic of the Marshall Islands and
the Republic of Greece, as the case may be, and all such dividends and other
distributions are not subject to withholding or other taxes under the current
laws and regulations of the Republic of the Marshall Islands and the Republic of
Greece and are otherwise free and clear of any withholding, stamp, transfer,
excise or other tax and may be declared and paid without the necessity of
obtaining any consents, approvals, authorizations, orders, licenses,
registrations, clearances and qualifications of or with any court or
governmental agency or body or any stock exchange authorities in the Republic of
the Marshall Islands and the Republic of Greece;
(bb) No
relationship exists between or among any of the Company or any affiliate of the
Company, on the one hand, and any director, officer, stockholder, customer or
supplier of the Company or any affiliate of the Company, on the other hand,
which is required by the Act or the Exchange Act to be described in the Pricing
Prospectus which is not so described and described as required;
(cc) Except
as disclosed in the Pricing Prospectus, no holder of a security of the Company
has any rights to require registration of any such security as part or on
account of, or otherwise in connection with, the offer and sale of the Shares
contemplated hereby, and any such rights so disclosed have either been fully
complied with by the Company or effectively waived by the holders thereof, and
any such waivers remain in full force and effect;
(dd) None
of the Company or any of its subsidiaries or, any director or officer nor, to
the knowledge of the Company, any employee or agent or other person associated
with or acting on behalf of the Company or any of its subsidiaries has taken or
will take any action in furtherance of an offer, payment, promise to pay, or
authorization or approval of the payment or giving of money, property, gifts or
anything else of value, directly or indirectly, to any "government official"
(including any officer or employee of a government or government-owned or
controlled entity or of a public international organization, or any person
acting in an official capacity for or on behalf of any of the foregoing, or any
political party or party official or candidate for political office) to
influence official action or secure an improper advantage; and the Company and
its subsidiaries have conducted their businesses in compliance with applicable
anti-corruption laws and have instituted and maintain and will continue to
maintain policies and procedures designed to promote and achieve compliance with
such laws and with the representation and warranty contained
herein;
(ee) The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with all applicable financial recordkeeping and
reporting requirements, including those of the Bank Secrecy Act, as amended by
Title III of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT
Act), and the applicable anti-money laundering statutes of jurisdictions where
the Company and its subsidiaries conduct business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental
agency (collectively, the "Anti-Money Laundering Laws"), and no action, suit or
proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries with respect to
the Anti-Money Laundering Laws is pending or, to the best knowledge of the
Company, threatened;
(ff) Excluding
any activities of the Company (x) in accordance with applicable law, rule or
regulation, (y) specifically licensed by the United States Department of
Commerce or (z) pursuant to an exemption from the license requirements of the
United States Department of Commerce, none of the Company, any of its
subsidiaries or any director, officer, or, to the knowledge of the Company, any
agent (as defined below), employee or affiliate of the Company or any of its
subsidiaries is (i) the subject of any sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury ("OFAC"), nor (ii)
located, organized or resident in a country or territory that is the subject of
Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, North
Korea, Sudan and Syria); and the Company will not directly or indirectly use the
proceeds of the offering of the Shares hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of or
with any person or entity, or in an country or territory that, at the time of
such financing, is the subject of any sanctions administered by
OFAC;
(gg) The
Company is a "foreign private issuer" as defined in Rule 405 under the
Securities Act; and
(hh) The
Company is not currently treated as a "passive foreign investment company" (a
"PFIC") within the meaning of Section 1297 of the Code and expects to continue
its operations in such a manner that it will not be treated as a PFIC in the
future.
2.Subject to the terms and conditions
herein set forth, (a) the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price per share of $31.1125 the number
of Firm Shares 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 Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, 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)
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
Company hereby grants to the Underwriters the right to purchase at their
election up to 585,900 Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering sales of shares
in excess of the number of Firm Shares, provided that the purchase price per
Optional Share shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm Shares but not
payable on the Optional Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
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 Company 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 Shares, the several Underwriters propose to offer the 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 such authorized denominations and registered in such names as
Goldman, Sachs & Co. and Jefferies & Company, Inc. may request upon at
least forty-eight hours' prior notice to the Company shall be delivered by or on
behalf of the Company to Goldman, Sachs & Co. and Jefferies & Company,
Inc., 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 to Goldman, Sachs & Co. and Jefferies
& Company, Inc. at least forty-eight hours in advance. The time
and date of such delivery and payment shall be, with respect to the Firm Shares,
10:00 a.m., New York City time, on January 27, 2010 or such other time and date
as Goldman, Sachs & Co. and Jefferies & Company, Inc. and the Company
may agree upon in writing, and, with respect to the Optional Shares, 10:00 a.m.,
New York time, on the date specified by Goldman, Sachs & Co. and Jefferies
& Company, Inc. in the written notice given by Goldman, Sachs & Co. and
Jefferies & Company, Inc. of the Underwriters' election to purchase such
Optional Shares, or such other time and date as Goldman, Sachs & Co. and
Jefferies & Company, Inc. and the Company 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
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 8
hereof, including the cross receipt for the Shares and any additional documents
requested by the Underwriters pursuant to Section 8(m) hereof, will be delivered
at the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New
York, NY 10017 (the "Closing Location"), and the Shares will be delivered
through the facilities of the DTC, all at such Time of Delivery. A
meeting
will be held at the Closing Location at 12:00 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 date of this Agreement or such earlier time as may be required
under the Act; to make no further amendment or any supplement to the
Registration Statement, the Basic Prospectus or the Prospectus prior to the last
Time of Delivery which shall be reasonably 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 amendment or supplement to the Prospectus has
been filed and to furnish you with copies thereof; to file promptly all material
required to be filed by the Company with the Commission pursuant to Rule 433(d)
under the Act; within the time required by such Rule; to file promptly all
reports required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) 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
other prospectus in respect of the Shares, 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 the 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 other prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of such
order;
(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 written and electronic
copies of the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) 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
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same 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 and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and electronic
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 (or in lieu thereof, the notice referred to in Rule 173(a) under the
Act) 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
written and electronic 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
security holders as soon as practicable, but in any event not later than sixteen
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 60 days after the date of
the Prospectus, not to offer, sell, contract to sell, pledge, grant any option
to purchase, make any short sale or otherwise dispose, except as provided
hereunder, of any securities of the Company that are substantially similar to
the Shares, including but not limited to any options or warrants to purchase
shares of Stock or any securities that are convertible into or exchangeable for,
or that represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing on, or
upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without the prior written
consent of Goldman, Sachs & Co. and Jefferies & Company, Inc.;
(f)If the Company elects to rely upon Rule
462(b), the Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time,
on the date of this Agreement, and the Company shall at the time of filing
either pay the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the Act;
(g) Upon request of any Underwriter, to
furnish, or cause to be furnished, to such Underwriter an electronic version of
the Company's trademarks, servicemarks and corporate logo for use on the
website, if any, operated by such Underwriter for the purpose of facilitating
the on-line offering of the Shares (the "License"); provided, however, that the
License shall be used solely for the purpose described above, is granted without
any fee and may not be assigned or transferred;
(h)To use the net proceeds received by it
from the sale of the Shares in the manner specified in the Pricing Prospectus
under the caption "Use of Proceeds"; and
(i)To use its best efforts to list,
subject to notice of issuance, the Shares on the New York Stock Exchange (the
"Exchange").
6.
(a) The Company
represents and agrees that, without the prior consent of Goldman, Sachs &
Co. and Jefferies & Company, Inc., it has not made and will not make any
offer relating to the Shares that would constitute a "free writing prospectus"
as defined in Rule 405 under the Act; each Underwriter represents and agrees
that, without the prior consent of the Company and Goldman, Sachs & Co. and
Jefferies & Company, Inc., it has not made and will not make any offer
relating to the Securities that would constitute a free writing prospectus, any
such free writing prospectus the use of which has been consented to by the
Company and Goldman, Sachs & Co. and Jefferies & Company, Inc. is listed
on Schedule II hereto;
(b)The Company has complied and will
comply with the requirements of Rule 433 under the Act applicable to any Issuer
Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time
following issuance of an Issuer Free Writing Prospectus any event occurred or
occurs as a result of which such Issuer Free Writing Prospectus would conflict
with the information in the Registration Statement, the Pricing Prospectus or
the Prospectus or 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 then prevailing, not misleading, the Company will
give prompt notice thereof to Goldman, Sachs & Co. and Jefferies &
Company, Inc. and, if requested by Goldman, Sachs & Co. and Jefferies &
Company, Inc., will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document which will correct such
conflict, statement or
omission; provided, however, that this representation and warranty shall not
apply to any statements or omissions in an Issuer Free Writing Prospectus made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Goldman, Sachs & Co. and Jefferies &
Company, Inc. expressly for use therein.
7.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, reproduction
and filing of the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, any Issuer Free Writing 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, any Blue Sky Memorandum, closing documents
(including any compilations thereof) and any other 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
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky survey(s) provided
that in any event such fees shall not exceed $7,500; (iv) any filing fees
incident to, and the reasonable fees and disbursements of counsel for the
Underwriters in connection with, any required reviews by the Financial Industry
Regulatory Authority, Inc. of the terms of the sale of the Shares provided that
in any event such fees shall not exceed $7,500; (v) the cost of preparing
certificates for the Shares; (vi) the cost and charges of any transfer agent or
registrar or dividend disbursing agent; (vii) all fees and expenses in
connection with listing the Shares on the Exchange; 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. It is understood,
however, that, except as provided in this Section, and Sections 9 and 12 hereof,
the Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Shares by them,
and any advertising expenses connected with any offers they may
make.
8.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) under the Act 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; all material required to be
filed by the Company pursuant to Rule 433(d) under the Act shall have been filed
with the Commission within the applicable time period prescribed for such
filings by Rule 433; if the Company has elected to rely upon Rule 462(b) under
the Act, the Rule 462(b) Registration Statement shall have become effective by
10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus 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)Simpson Thacher & Bartlett LLP,
counsel for the Underwriters, shall have furnished to you such written opinion
or opinions (a draft of each such opinion is attached as Annex II(a) hereto),
dated such Time of Delivery, with respect to certain matters covered in
subsection (c) below as well as such other related matters as the
Representatives 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)Seward & Kissel LLP, 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)The Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus;
(ii)The Company has an authorized
capitalization as set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being delivered at such Time
of Delivery) have been duly and validly authorized and issued and are fully paid
and non-assessable and the Shares conform to the description of the Shares in
the Prospectus;
(iii)Aegean Shipholdings Inc. (together with
Aegean Marine Petroleum S.A., the "Subsidiaries") has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
Marshall Islands; and all of the issued shares of capital stock of Aegean
Shipholdings Inc. has been duly and validly authorized and issued, are fully
paid and non-assessable, and (except for directors' qualifying shares and except
as otherwise set forth in the Prospectus) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims (such
counsel being entitled to rely in respect of matters of fact upon certificates
of officers of the Company or its Subsidiaries, provided that such counsel shall
state that they believe that both you and they are justified in relying upon
such certificates);
(iv)To such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the
Company or any of its Subsidiaries is a party or of which any property of the
Company or any of its Subsidiaries is the subject which, if determined adversely
to the Company or any of its Subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
Subsidiaries; and to such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others;
(v)This Agreement has been duly
authorized, executed and delivered by the Company;
(vi)The issue and sale of the Shares being
delivered at such Time of Delivery and the compliance by the Company with this
Agreement and the consummation of the transactions herein 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 indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such counsel to
which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound or to which any of the property or assets of
the Company or any of its Subsidiaries is subject (except as would not,
individually or in the aggregate, have a material adverse effect on the
consolidated financial position, stockholders' equity or results of operations
of the Company and its Subsidiaries), nor will such actions result in any
violation of the provisions of the Certificate of Incorporation or By-laws of
the Company or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their properties;
(vii)No consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this Agreement,
except such as have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters;
(viii)The statements set forth in the Pricing
Prospectus and Prospectus under the caption "Description of Capital Stock",
insofar as they purport to constitute a summary of the terms of the Stock and
under the captions "Tax Considerations" and "Underwriting" and the statements
set forth in the Company's Annual Report on Form 20-F for the fiscal year ended
December 31, 2008 under the captions "Information on the Company—Business
Overview—Environmental and Other Regulations," "—International Maritime
Organization," "—Air Emissions," "—Safety Requirements," "—Oil Pollution
Liability," and " Vessel
Security Regulations," insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and
fair;
(ix)The Company is not and, after giving
effect to the offering and sale of the Shares and the application of the
proceeds thereof, will not be an "investment company", as such term is defined
in the Investment Company Act;
(x)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
(xi)They have reviewed the Registration
Statement, the Pricing Prospectus and the Prospectus, each relating to the
offering of the Shares, and have participated in meetings with representatives
of the Company, representatives of the independent public accountants for the
Company and representatives of the Underwriters and counsel, at which the
contents of the Registration Statement, the Pricing Prospectus and the
Prospectus and related matters were discussed. Although they do not
assume any responsibility for, and shall not be deemed to have independently
ascertained or verified, the accuracy, completeness or fairness of the
statements made in the Registration Statement, the Pricing Prospectus or the
Prospectus, except for those referred to in the opinion in subsection (viii) of
this Section 8(c), nothing has come to their attention in the course of
participating in conferences with officers and representatives of the Company,
representatives of the Company's independent accountants and representatives of
the Underwriters and counsel in the preparation of the Registration Statement,
the Pricing Prospectus and the Prospectus that would lead them to believe,
insofar as relevant to the offering of the Shares, that (i) the Registration
Statement or any amendment thereto made by the Company prior to the Time of
Delivery contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) the Pricing Prospectus as of the Time of
Delivery contained any untrue statement of a material fact or omitted to state
any 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; or (iii) as of its date and the Time of Delivery, the
Prospectus included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case, other than with respect to the financial statements
and related schedules and other financial data contained therein, as to which
they express no opinion); and they do 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 Registration Statement, the Basic Prospectus or
the Prospectus which are not filed or incorporated by reference or described as
required.
(d)Seward & Kissel LLP, Liberian
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, in form and substance satisfactory to you, to the effect that Aegean
Marine Petroleum S.A. has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Liberia; and all of the issued
shares of capital stock of Aegean Marine Petroleum S.A. have been duly and
validly authorized and issued, are fully paid and non-assessable, and (except
for directors' qualifying shares and except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims (such counsel being entitled to rely
in respect of matters of fact upon certificates of officers of the Company or
its subsidiaries, provided that such counsel shall state that they believe that
both you and they are justified in relying upon such certificates);
(e)The General Counsel for the Company
shall have furnished to you a written opinion (a draft of such opinion is
attached as Annex II(d) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i)The Company has been duly qualified as
a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of matters
of fact upon certificates of officers of the Company, provided that such counsel
shall state that they believe that both you and they are justified in relying
upon such opinions and certificates);
(ii)The statements set forth in the
Company's Annual Report on Form 20-F for the fiscal year ended December 31, 2008
under the captions "Information on the Company—Business Overview—European Union
Restrictions" and "—United Kingdom," insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate, complete
and fair; and
(iii)Neither the Company nor any of its
Subsidiaries is in violation of its Certificate of Incorporation or By-laws or,
except as would not, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and its
Subsidiaries, in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound;
(f)On the date of the Prospectus at a time
prior to the execution of this Agreement, at 9:30 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, Deloitte, Hadjipavlou Sofianos & Cambanis S.A. shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance reasonably 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
form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement, and as of the Time of Delivery is
attached as Annex I(b) hereto);
(g)(i) Neither the Company nor
any of its subsidiaries shall have sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Pricing 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 Pricing Prospectus, and (ii) since the
respective dates as of which information is given in the Pricing 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 Pricing
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is in your judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Prospectus;
(h)On or after the Applicable Time (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities or preferred stock 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 or preferred
stock;
(i)On or after the Applicable Time 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 the
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war or
(v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere;, if the
effect of any such event specified in clause (iv) or (v) in your judgment 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;
(j)The Shares at each Time of Delivery
shall have been duly listed, subject to notice of issuance, on the Exchange;
(k)Each of the Company's directors and
executive officers and Leveret International Inc. shall have delivered to you a
duly-executed lock up agreement, dated the date hereof, in the form attached
hereto as Annex III;
(l)The Company shall have complied with
the provisions of Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(m)The Company shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (e) of this Section and as to such other matters as you may reasonably
request.
9.(a) The Company 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 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 the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto,
any Issuer Free Writing Prospectus or any "issuer information" filed or required
to be filed pursuant to Rule 433(d) under the Act, 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 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 the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or
any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Goldman, Sachs & Co. and
Jefferies & Company, Inc. expressly for use therein.
(b)Each Underwriter will indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company 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 the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, 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 the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Goldman, Sachs & Co.
and Jefferies & Company, Inc. expressly for use therein; and will reimburse
the Company for any legal or other expenses reasonably incurred by the Company
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 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 any
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 9 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 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 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 on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contribution 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 under
this Section 9 shall be in addition to any liability which the Company 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
each broker-dealer affiliate of any Underwriter; and the obligations of the
Underwriters under this Section 9 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 and to each
person, if any, who controls the Company within the meaning of the
Act.
10.(a) If any Underwriter shall
default in its obligation to purchase the Shares which it has agreed to purchase
hereunder, 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 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
that you have so arranged for the purchase of such Shares, or the Company
notifies you that it has so arranged for the purchase of such Shares, you or the
Company 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 Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements 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 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 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 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 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 of the Company to sell the Optional Shares)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
11.The respective indemnities, agreements,
representations, warranties and other statements of the Company 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 any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the
Shares.
12.If this Agreement shall be terminated
pursuant to Section 10 hereof, the Company shall not then be under any liability
to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for
any other reason, any Shares are not delivered by or on behalf of the Company as
provided herein, the Company 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 shall then be under no further liability to any Underwriter
except as provided in Sections 7 and 9 hereof.
13.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. and Jefferies & Company, Inc. on behalf of you as the
representatives.
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.,
200 West Street, New York, New York 10282-2198, Attention: Registration
Department and Jefferies & Company, Inc., 520 Madison Avenue, New York, New
York 10022, Attention: General Counsel; and if to the Company shall be delivered
or sent by mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 9(c) 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 by you upon request. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
In
accordance with the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), the underwriters are required to
obtain, verify and record information
that identifies their respective clients, including the Company, which
information may include the name and address of their respective clients, as
well as other information that will allow the underwriters to
properly identify their respective clients.
14.This Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 9 and 11 hereof, the officers and directors of the
Company and each person who controls the Company 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.
15.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.
16.The Company acknowledges and agrees
that (i) the purchase and sale of the Shares pursuant to this Agreement is an
arm's-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other, (ii) in connection therewith and with
the process leading to such transaction each Underwriter is acting solely as a
principal and not the agent or fiduciary of the Company, (iii) no Underwriter
has assumed an advisory or fiduciary responsibility in favor of the Company with
respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has
consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the
Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with
such transaction or the process leading thereto.
17.This Agreement supersedes all prior
agreements and understandings (whether written or oral) between the Company and
the Underwriters, or any of them, with respect to the subject matter
hereof.
18.THIS AGREEMENT AND ANY MATTERS RELATED
TO THIS TRANSACTION SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS
THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE
OF NEW YORK. The Company agrees that any suit or proceeding arising
in respect of this agreement or our engagement will be tried exclusively in the
U.S. District Court for the Southern District of New York or, if that court does
not have subject matter jurisdiction, in any state court located in The City and
County of New York and the Company agrees to submit to the jurisdiction of, and
to venue in, such courts.
19. The
Company and each of the Underwriters hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
20. Notwithstanding anything herein to the
contrary, the Company is authorized to disclose to any persons U.S. federal and
state tax treatment and tax structure of the potential transaction and all
materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the
Underwriters imposing any limitation of any kind. However, any information
relating to the tax treatment and tax structure shall remain confidential (and
the foregoing sentence shall not apply) to the extent necessary to enable any
person to comply with securities laws. For this purpose, "tax structure" is
limited to any facts that may be relevant to that treatment."
If the
foregoing is in accordance with your understanding, please sign and return to us
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 between each of the Underwriters and the
Company. 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, the form of which shall be submitted to
the Company for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
|
|
Very
truly yours,
|
|
|
|
|
|
Aegean
Marine Petroleum Network Inc.
|
|
|
|
|
|
By:
|
/s/
E. Nikolas Tavlarios |
|
|
|
Name:
E. Nikolas Tavlarios
|
|
|
|
Title:
President
|
|
|
|
|
|
|
Accepted
as of the date hereof:
Goldman,
Sachs & Co.
Jefferies
& Company, Inc.
BB&T
Capital Markets, a division of Scott & Stringfellow, LLC
Dahlman
Rose & Company, LLC
Johnson
Rice & Company L.L.C.
Lazard Capital Markets
LLC
Stephens
Inc.
|
|
|
By:
|
/s/
Goldman, Sachs & Co. |
|
|
|
|
(Goldman,
Sachs & Co.)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Courtney Tuttle |
|
|
|
|
(Jefferies
& Company, Inc.)
|
|
|
|
Underwriter
|
|
Number
of
Firm
Shares
to
be Purchased
|
|
|
Maximum
Number
of
Optional
Shares
Which
May
be
Purchased
|
Goldman,
Sachs & Co.
|
|
|
1,757,700 |
|
|
|
263,655 |
|
Jefferies
& Company, Inc.
|
|
|
976,500 |
|
|
|
146,475 |
|
Dahlman
Rose & Company, LLC
|
|
|
292,950 |
|
|
|
43,943 |
|
Stephens
Inc.
|
|
|
292,950 |
|
|
|
43,942 |
|
BB&T
Capital Markets, a division of Scott & Stringfellow,
LLC.
|
|
|
195,300 |
|
|
|
29,295 |
|
Johnson
Rice & Company L.L.C.
|
|
|
195,300 |
|
|
|
29,295 |
|
Lazard
Capital Markets LLC.
|
|
|
195,300 |
|
|
|
29,295 |
|
Total
|
|
|
3,906,000 |
|
|
|
585,900 |
|
ANNEX
Aegean
Marine Petroleum Network Inc.
Lock-Up
Agreement
January
___, 2010
Goldman,
Sachs & Co.
85 Broad
Street
New York,
NY 10004
Jefferies
& Company, Inc.
520
Madison Avenue
New York,
New York 10022
Re: Aegean Marine Petroleum
Network Inc. - Lock-Up Agreement
Ladies
and Gentlemen:
The
undersigned understands that you, as representatives (the "Representatives"),
propose to enter into an Underwriting Agreement on behalf of the several
Underwriters named in Schedule I to such agreement (collectively, the
"Underwriters"), with Aegean Marine Petroleum Network Inc.,
a corporation existing under the laws of the Republic of the Marshall
Islands (the "Company"), providing for a public offering of the Common Stock of
the Company (the "Shares") pursuant to a Registration Statement on Form F-3
filed with the Securities and Exchange Commission (the "SEC").
In consideration of the agreement by
the Underwriters to offer and sell the Shares, and of other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
undersigned agrees that, during the period beginning from the date hereof and
continuing to and including the date 60 days after the date of the final
Prospectus covering the public offering of the Shares, the undersigned will not
offer, sell, contract to sell, pledge, grant any option to purchase, make any
short sale or otherwise dispose of any shares of Common Stock of the Company, or
any options or warrants to purchase any shares of Common Stock of the Company,
or any securities convertible into, exchangeable for or that represent the right
to receive shares of Common Stock of the Company, whether now owned or
hereinafter acquired, owned directly by the undersigned (including holding as a
custodian) or with respect to which the undersigned has beneficial ownership
within the rules and regulations of the SEC (collectively the "Undersigned's
Shares").
The foregoing restriction is expressly
agreed to preclude the undersigned from engaging in any hedging or other
transaction which is designed to or which reasonably could be expected to lead
to or result in a sale or disposition of the Undersigned's Shares even if such
Shares would be disposed of by someone other than the
undersigned. Such prohibited hedging or other transactions would
include without limitation any short sale or any purchase, sale or grant of any
right (including without limitation any put or call option) with respect to any
of the Undersigned's Shares or with respect to any security that includes,
relates to, or derives any significant part of its value from such
Shares.
Notwithstanding the foregoing, the
undersigned may transfer the Undersigned's Shares (i) as a bona fide gift or
gifts, provided that the donee or donees thereof agree to be bound in writing by
the restrictions set forth herein, (ii) to any trust for the direct or indirect
benefit of the undersigned or the immediate family of the undersigned, provided
that the trustee of the trust agrees to be bound in writing by the restrictions
set forth herein, and provided further that any such transfer shall not involve
a disposition for value, or (iii) with the prior written consent of Goldman,
Sachs & Co. and Jefferies & Company, Inc. on behalf of the
Underwriters. For purposes of this Lock-Up Agreement, "immediate
family" shall mean any relationship by blood, marriage or adoption, not more
remote than first cousin. In addition, notwithstanding the foregoing,
if the undersigned is a corporation, the corporation may transfer the capital
stock of the Company to any wholly-owned subsidiary of such corporation;
provided, however, that in any such case, it shall be a condition to the
transfer that the transferee execute an agreement stating that the transferee is
receiving and holding such capital stock subject to the provisions of this
Agreement and there shall be no further transfer of such capital stock except in
accordance with this Agreement, and provided further that any such transfer
shall not involve a disposition for value. The undersigned now has,
and, except as contemplated by clause (i), (ii), or (iii) above, for the
duration of this Lock-Up Agreement will have, good and marketable title to the
Undersigned's Shares, free and clear of all liens, encumbrances, and claims
whatsoever. The undersigned also agrees and consents to the entry of
stop transfer instructions with the Company's transfer agent and registrar
against the transfer of the Undersigned's Shares except in compliance with the
foregoing restrictions.
The undersigned understands that the
Company and the Underwriters are relying upon this Lock-Up Agreement in
proceeding toward consummation of the offering. The undersigned
further understands that this Lock-Up Agreement is irrevocable and shall be
binding upon the undersigned's heirs, legal representatives, successors, and
assigns. This Lock-Up Agreement shall terminate and be of no further
force and effect upon a decision, prior to the execution of an underwriting
agreement, by Goldman, Sachs & Co., Inc. and Jefferies & Company, Inc.
or the Company not to proceed with the offering of Shares, which decision shall
be set forth in writing and delivered to each of the parties hereto and the
Company.
Very
truly yours,
________________________________________
Exact Name of Shareholder
________________________________________
Authorized Signature
________________________________________
Title
Signature
page to Lock-up Agreement
Exhibit 5.2
Aegean
Marine Petroleum Network Inc.
42
Hatzikyriakou Avenue
185 38
Piraeus
Athens,
Greece
|
Re:
|
Aegean
Marine Petroleum Network Inc.
|
Ladies
and Gentlemen:
We have
acted as counsel to Aegean Marine Petroleum Network Inc. (the "Company") in
connection with (i) the preparation of the Company's shelf registration
statement on Form F-3 (Registration No. 333-162935), as filed with the U.S.
Securities and Exchange Commission (the "Commission") on
November 5, 2009, as amended and declared effective by the Commission on January
15, 2010 (the "Shelf
Registration Statement"), relating to the registration under the U.S.
Securities Act of 1933, as amended (the "Securities Act") of
up to an aggregate of $125,000,000 of securities, which may include shares of
common stock, par value $0.01 per share, of the Company (including the related
preferred stock purchase rights (the "Rights")) (the "Common Shares"),
shares of preferred stock, par value $0.01 per share, of the Company, debt
securities of the Company, warrants to purchase the Company's securities,
purchase contracts to purchase the Company's securities, and units comprised of
any of the foregoing securities to be offered by the Company, and 3,250,000
Common Shares (including the Rights) to be offered by the selling shareholders,
and the prospectus of the Company included in the Shelf Registration Statement
(the "Base
Prospectus"); (ii) the preparation of the Company's registration
statement on Form F-3 (Registration No. 333-164455), as filed with the
Commission pursuant to Rule 462(b) of the Securities Act on January 21, 2010,
for the purpose of increasing the dollar amount of the Common Shares registered
under the Shelf Registration Statement by $40,000,000 (the "Additional Registration
Statement" and together with the Shelf Registration Statement, the "Registration
Statement"); and (iii) the preparation of a supplement to the Base
Prospectus (the "Prospectus
Supplement" and together with the Base Prospectus, the "Prospectus") relating
to the issuance and sale of up to 4,491,900 Common Shares (the "Offered
Securities").
We have
examined originals or copies, certified or otherwise identified to our
satisfaction, of: (i) the Registration Statement; (ii) the Prospectus; (iii) the
Stockholders Rights Agreement dated as of August 14, 2009 (the "Rights Agreement");
and (iv) such corporate documents and records of the Company and such other
instruments, certificates and documents as we have deemed necessary or
appropriate as a basis for the
Aegean
Marine Petroleum Network Inc.
January
22, 2010
Page
2
opinions
hereinafter expressed. In such examinations, we have assumed the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as copies or drafts of
documents to be executed, the genuineness of all signatures and the legal
competence or capacity of persons or entities to complete the execution of
documents. As to various questions of fact that are material to the
opinions hereinafter expressed, we have relied upon statements or certificates
of public officials, directors of the Company and others.
Based
upon and subject to the foregoing, and having regard to such other legal
considerations which we deem relevant, we are of the opinion that under the laws
of the Republic of the Marshall Islands the Offered Securities have been duly
authorized and, when issued, sold and paid for as contemplated in the
Prospectus, will be validly issued, fully paid and non-assessable.
Furthermore,
based upon and subject to the foregoing, and having regard to such other legal
considerations which we deem relevant, we are of the opinion that under the laws
of the State of New York the Rights constitute binding obligations of the
Company in accordance with the terms of the Rights Agreement.
This
opinion is limited to the laws of the State of New York and the laws of the
Republic of the Marshall Islands as in effect on the date hereof.
We hereby
consent to the filing of this opinion as an exhibit to be incorporated into the
Registration Statement, and to each reference to us and the discussions of
advice provided by us under the headings "Legal Matters" in the Base Prospectus
and the Prospectus Supplement, without admitting we are "experts" within the
meaning of the Securities Act or the rules and regulations of the Commission
promulgated thereunder with respect to any part of the Registration
Statement.
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Very
truly yours,
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/s/
Seward & Kissel LLP
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SK 23250 0004 1064965
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