As
filed with the Securities and Exchange Commission on August 8, 2008
Registration No.
333-
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
_______________________
FORM
F-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________________
DHT
MARITIME, INC.
(Exact name of registrant as specified in its
charter)
_______________________
|
Republic
of the Marshall Islands
(State
or other jurisdiction of incorporation or organization)
|
26
New Street
St.
Helier, Jersey JE2 3RA
Channel
Islands
+44
(0) 1534 639759
(Address
and telephone number of
registrant’s
principal executive offices)
|
N/A
(I.R.S.
Employer
Identification
Number)
|
_______________________
CT
Corporation
111
Eighth Avenue
New
York, New York 10011
(212)
550-9100
(Name,
address and telephone
number of
agent for service)
With
copies to:
|
Erik
R. Tavzel, Esq.
Cravath,
Swaine & Moore LLP
Worldwide
Plaza
825
Eighth Avenue
New
York, New York 10019
(212)
474-1000
|
_______________________
Approximate
date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement.
_______________________
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, please
check the following box. x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
Form is a registration statement pursuant to General Instruction I.C. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.C. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act,
check the following box. o
_______________________
CALCULATION
OF REGISTRATION FEE
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Title
of each class of
securities
to be registered
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Amount
to be
registered(1)
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Proposed
maximum
offering
price per
unit(2)
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Proposed
maximum
aggregate
offering
price(1)(3)
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Amount
of
registration
fee
|
||||
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Common
stock, par value $.01 per share
|
||||||||
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Preferred
stock, par value $.01 per share
|
||||||||
|
Debt
securities
|
||||||||
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Total
|
100%
|
$200,000,000
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$7,860
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(1)
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There
are being registered hereunder such indeterminate number of shares of
common stock, such indeterminate number of shares of preferred stock and
such indeterminate principal amount of debt securities as will have an
aggregate initial offering price not to exceed $200 million, or if any
securities are issued in any foreign currency units, the equivalent
thereof in foreign currencies. This registration statement shall also
cover any additional securities to be offered or issued from stock splits,
stock dividends, recapitalizations or similar transactions. If any debt
securities are issued at an original issue discount, then the offering
price of such debt securities shall be in such greater principal amount as
shall result in a maximum aggregate offering price not to exceed $200
million, less the aggregate dollar amount of all securities previously
issued hereunder. The securities being registered also include such
indeterminate principal amount of debt securities and such indeterminate
number of shares of preferred stock and common stock as may be issued upon
conversion of, or in exchange for, any other debt securities or preferred
shares that provide for conversion or
exchange.
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(2)
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The
proposed maximum aggregate offering price for each class of securities
will be determined from time to time by the registrant in connection with
the issuance by the registrant of the securities registered hereunder and
is not specified as to each class of securities pursuant to General
Instruction II.C. of Form F-3 under the Securities Act of 1933, as
amended.
|
|
(3)
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Estimated
solely for the purposes of calculating the registration fee pursuant to
Rule 457(o) of Regulation C under the Securities Act of 1933, as
amended.
|
_______________________
The
registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the registrant shall file a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The
information in this preliminary prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This preliminary prospectus is
not an offer to sell these securities and is not soliciting an offer to buy
these securities in any state where the offer or sale is not
permitted.
Subject
to Completion.
Preliminary
Prospectus dated August 8, 2008.
Prospectus
$200,000,000
_____________________________________________________________________
Through
this prospectus, we may periodically offer:
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●
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our
common stock;
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●
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our
preferred stock; and
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●
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our
debt securities.
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We may
from time to time offer and sell the securities directly or through agents,
underwriters or broker-dealers at prices and on terms to be determined at the
time of sale. These sales may be made on the New York Stock Exchange or other
national security exchanges on which our common stock is then traded, in the
over-the-counter market or in negotiated transactions. See the section entitled
“Plan of Distribution” on page 12 of this prospectus. To
the extent required, the names of any agent, underwriter or broker-dealer and
applicable commissions or discounts and any other required information with
respect to any particular offer will be set forth in a prospectus supplement,
which will accompany this prospectus. The prices and other terms of the
securities that we will offer will be determined at the time of their offering
and will be described in a prospectus supplement. A prospectus supplement may
also add, update or change information contained in this
prospectus.
Our
common stock is listed on the New York Stock Exchange under the symbol
“DHT.”
Investing
in our securities involves risk. Before buying any securities you should
carefully read the section entitled “Risk Factors” on page 9 of this
prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
The date
of this prospectus is
,
2008.
______________________
You
should rely only on the information contained in this prospectus. We have not
authorized anyone to provide you with additional or different information. We
are not making an offer of these securities in any jurisdiction or state where
the offer is not permitted. You should not assume that the information in this
prospectus is accurate as of any date other than the date on the cover of this
prospectus.
This
prospectus is part of a registration statement we have filed with the Securities
Exchange Commission, or the “Commission,” using a shelf registration process.
Under the shelf registration process, we may, from time to time, sell the
securities described in this prospectus in one or more offerings up to a total
dollar amount of $200 million. This prospectus provides you with a general
description of the securities that may be offered by us. Each time we sell
securities, we are required to provide you with this prospectus, as well as a
prospectus supplement containing specific information about the terms of the
securities being offered. That prospectus supplement may include additional risk
factors or other special considerations applicable to those particular
securities. Any prospectus supplement may also add, update or change information
in this prospectus. If there is any inconsistency between the information
contained in this prospectus and any prospectus supplement, you should rely on
the information contained in that particular prospectus supplement. You should
read both this prospectus and any prospectus supplement, together with all
additional information described in the section entitled “Where You Can Find
Additional Information” on page 34 of this
prospectus.
This
prospectus does not contain all the information provided in the registration
statement we have filed with the Commission. For further information about us or
the securities offered hereby, you should refer to that registration statement,
which you can obtain from the Commission as described in the section entitled
“Where You Can Find Additional Information” on page 34 of this
prospectus.
Before
investing in our securities, you should carefully read this prospectus, any
accompanying prospectus supplement and the documents incorporated by reference
for a more complete understanding of our business and this offering. You should
pay special attention to the section entitled “Risk Factors” on page 9 of this prospectus, as
well as our financial statements and the related notes. Unless we specify
otherwise, all references and data in this prospectus to our “business,” our
“vessels” and our “fleet” refer to the seven vessels comprising our initial
fleet (the “initial vessels”) that we acquired simultaneously with the closing
of our initial public offering, or “IPO,” on October 18, 2005 and the two
Suezmax tankers that we acquired subsequent to our IPO. Unless we specify
otherwise, all references in this prospectus to “we,” “our,” “us” and “our
company” refer to DHT Maritime, Inc. and its subsidiaries. The shipping
industry’s functional currency is the U.S. dollar. All of our revenues and most
of our operating costs are in U.S. dollars. All references in this prospectus to
“$” and “dollars” refer to U.S. dollars.
Our
Company
We
operate a fleet of double hull tankers. Our fleet currently consists of three
very large crude carriers, or “VLCCs,” which are tankers ranging in size from
200,000 to 320,000 deadweight tons, or “dwt,” two Suezmax tankers, or
“Suezmaxes,” which are tankers ranging in size from 130,000 to 170,000 dwt, and
four Aframax tankers, or “Aframaxes,” which are tankers ranging in size from
80,000 to 120,000 dwt. Our fleet principally operates on
international routes and had a combined carrying capacity of 1,659,921 dwt and a
weighted average age of 8.2 years as of June 30, 2008, compared with a weighted
average age of 10.4 years for the world crude tanker fleet.
We
acquired our seven initial vessels from subsidiaries of Overseas Shipholding
Group, Inc., or “OSG,” on October 18, 2005 in exchange for cash and shares of
our common stock and have time chartered these vessels back to certain
subsidiaries of OSG. In addition, on December 4, 2007 and January 28,
2008, we acquired our two Suezmaxes, the Overseas Newcastle and Overseas London,
respectively, in exchange for cash and have bareboat chartered these vessels to
certain subsidiaries of OSG.
Our
strategy is to charter our fleet primarily pursuant to multi-year charters so as
to take advantage of the stable cash flow associated with long-term
charters. In addition, all but one of our charter arrangements
include a profit sharing component that gives us the opportunity to earn
additional hire when vessel earnings exceed the basic hire amounts set forth in
the charters. Six of our seven initial vessels are currently operated
in the Tankers International Pool and the Aframax International Pool and we
expect our potential to earn additional hire will benefit from the higher
utilization rates realized by these pools. In a pooling arrangement,
the net revenues generated by all of the vessels in a pool are aggregated and
distributed to pool members pursuant to a pre-arranged weighting system that
recognizes each vessel’s earnings capacity based on its cargo capacity, speed
and consumption, and actual on-hire performance.
With
effect from October 18, 2005, we time chartered our seven initial vessels to
subsidiaries of OSG for terms ranging from five to six and one-half
years. The two Suezmaxes that we subsequently acquired are bareboat
chartered to subsidiaries of OSG for terms of seven years and ten years,
respectively, commencing on the respective delivery dates of the vessels. Under each of
the time charters for our initial vessels, the charters may be renewed by the
charterer on one or more successive occasions for periods of one, two or three
years, up to an aggregate of five, six or eight years, depending on the
vessel. If a time charter is renewed, the charter terms providing for
profit sharing will remain in effect and the charterer, at the time of exercise,
will have the option to select a basic charter rate that is equal to (i) 5%
above the published one-, two- or three-year time charter rate (corresponding to
the length of the extension period) for the vessel’s class, as decided by a
shipbrokers’ panel, or (ii) the basic hire rate set forth in the applicable
charter. The shipbrokers’ panel will be The Association of
Shipbrokers and Agents Tanker Broker Panel or another panel of brokers mutually
acceptable to us and the charterer. Each of the bareboat charters for
our Suezmaxes does not allow the charterer to extend the charter
period.
We were
incorporated under the laws of the Marshall Islands in April 2005. In
June 2008, we changed our name from “Double Hull Tankers, Inc.” to “DHT
Maritime, Inc.” We maintain our principal executive offices at 26 New
Street, St. Helier, Jersey JE2 3RA, Channel Islands. Our telephone
number at that address is +44 (0) 1534 639759. Our website address is
www.dhtmaritime.com. The
information on our website is not a part of this prospectus.
Our
Fleet
We
purchased our three VLCCs and four Aframaxes from subsidiaries of OSG in
connection with our IPO. Our three VLCCs, due to their large size,
principally operate on long-haul routes from the Middle East or West Africa to
the Far East, Northern Europe, the Caribbean and the U.S. Gulf, trading through
the Tankers International Pool. Although our four Aframaxes are also
designed for global trading, three of our Aframaxes typically trade through the
Aframax International Pool in the Atlantic Basin on shorter-haul routes between
Northern Europe, the Caribbean, the United States and the Mediterranean
Sea. Our fourth Aframax is employed in OSG’s lightering trade,
primarily in the U.S. Gulf. The two Suezmaxes that we recently
acquired principally operate on routes from West Africa to the U.S. Gulf, and in
the Atlantic Basin on routes between Northern Europe, the Caribbean, the United
States and the Mediterranean.
The
following table presents certain information concerning our seven initial
vessels and their associated time charters, each of which commenced on October
18, 2005:
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Vessel
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Type
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Dwt
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Year
Built
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Term
of
Initial
Charter
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Year
2 Basic Charter
Rate(1)
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Term
of Extension Periods
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Maximum
Aggregate Extension
Term
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|||||||
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(years)
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($/day)
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(years)
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(years)
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|||||||||||
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Overseas
Ann
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VLCC
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309,327
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2001
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6½
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37,400
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1,
2 or 3
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8
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|||||||
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Overseas
Chris
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VLCC
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309,285
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2001
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6
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37,400
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1,
2 or 3
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8
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|||||||
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Overseas
Regal
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VLCC
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309,966
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1997
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5½
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37,400
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1,
2 or 3
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6
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|||||||
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Overseas
Cathy
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Aframax
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112,028
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2004
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6¼
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24,700
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1,
2 or 3
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8
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|||||||
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Overseas
Sophie
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Aframax
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112,045
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2003
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5¾
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24,700
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1,
2 or 3
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8
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|||||||
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Overseas
Rebecca
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Aframax
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94,873
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1994
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5
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18,700
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1,
2 or 3
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5
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Overseas
Ania
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Aframax
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94,848
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1994
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5
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18,700
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1,
2 or 3
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5
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________________
(1) Amounts
represent basic hire charter rates, which increase annually by amounts that vary
by vessel class and year.
The
following table presents certain information concerning our two Suezmaxes and
their associated bareboat charters, each of which commenced upon delivery of the
vessels on December 4, 2007 and January 28, 2008, respectively:
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Vessel
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Type
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Dwt
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Year
Built
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Delivery
Date
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Term
of Bareboat
Charter
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|||||
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(years)
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||||||||||
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Overseas
Newcastle
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Suezmax
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164,626
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2001
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Dec.
2007
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7
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|||||
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Overseas
London
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Suezmax
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152,923
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2000
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Jan.
2008
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10
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With
respect to the Overseas
Newcastle, the basic bareboat charter rate is $26,300 per day for the
first three years of the charter term, and is reduced to $25,300 per day for the
last four years of the charter term. In addition to the bareboat
charter rate, we will, through the profit sharing element of the charter
agreement, earn 33% of the vessel’s earnings above the time charter equivalent
rate of $35,000 per day for the first three years of the charter term and above
$34,000 per day for the last four years of the charter term, calculated on a
four quarter rolling average. At the end of the seven year charter
term, OSG has the right to acquire the vessel for $77 million.
With
respect to the Overseas
London, the bareboat charter rate is $26,600 per day for the term of the
charter. There is no profit sharing component to the charter
agreement. OSG has the right to acquire the vessel at the end of the
eighth, ninth and tenth year of the charter term, respectively, at a price of
$71 million, $67 million and $60 million, respectively. If OSG elects
to exercise its purchase option, we will, in addition to the purchase option
price, receive an amount equal to 40% of the difference between the market price
of the vessel at the time the purchase option is exercised and the purchase
option price.
Our
Competitive Strengths
We
believe that we have a number of strengths that provide us with a competitive
advantage in the tanker industry, including:
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A modern, high quality
fleet. As of June 30, 2008, our fleet had a weighted
average age of 8.2 years, compared with a weighted average age for the
world crude tanker fleet of 10.4 years. All of our vessels are
of double-hull construction. We believe that owning and
maintaining a modern, high quality fleet reduces off hire time and
operating costs, improves safety and environmental performance and
provides us with a competitive advantage in securing employment for our
vessels.
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●
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Participation in OSG’s pooling
arrangements. We believe that we benefit from OSG’s
membership in the Tankers International Pool in respect of our three VLCCs
and the Aframax International Pool in respect of three of our four
Aframaxes, and we expect OSG’s subsidiaries to continue to operate such
VLCCs and Aframaxes in these pools. We believe that, over a
longer period of time, our potential to earn additional hire will be
enhanced by the higher utilization rates and lower overhead costs that a
vessel operating inside a pool can achieve compared with a vessel
operating independently outside of a
pool.
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●
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An experienced management
team. Our management team is led by Ole Jacob Diesen,
our chief executive officer, who has over 30 years of experience in the
shipping industry. Mr. Diesen has been an independent corporate
and financial management consultant since 1997 and has extensive
experience in the shipping industry, including advising on a broad range
of shipping transactions such as vessel sales and financings, vessel
charters, pooling and technical management
agreements.
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Our
Strategy
The key
elements of our strategy are to:
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●
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Charter a substantial portion
of our fleet under multi-year, fixed-rate charters that provide for profit
sharing. Currently we have time chartered all of our
VLCCs and Aframaxes to subsidiaries of OSG, one of the world’s largest
bulk-shipping companies, for remaining terms of the initial charter
periods ranging from two and one-quarter to three and three-quarter years
under charters that provide for fixed monthly payments, plus the potential
to earn additional profit sharing payments. We have also
bareboat chartered our two Suezmaxes to subsidiaries of OSG for terms of
seven years and ten years, respectively, which commenced upon delivery of
the vessels in early December 2007 and late January 2008,
respectively. We believe that these long-term charters will
generate stable and predictable cash flow and provide us with the
opportunity to earn significant additional hire as market rates exceed our
basic hire rates for our seven initial vessels and the Overseas
Newcastle.
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|
●
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Fix a substantial portion of
our operating costs under our ship management
agreements. Currently, all of our VLCCs and Aframaxes
are managed by Tanker Management Ltd., referred to herein as “Tanker
Management” or our “technical manager,” which is a wholly owned indirect
subsidiary of OSG, pursuant to ship management agreements that became
effective at the completion of our IPO. Under these ship
management agreements, Tanker Management has assumed all responsibilities
for the technical management of each of our initial vessels and for most
of the operating costs, excluding insurance premiums and vessel
taxes. The fee payable to Tanker Management under these ship
management agreements was initially fixed through October 2007 and
increases by 2.5% per year each year thereafter. Since their
delivery, our two Suezmaxes have been on bareboat charters to subsidiaries
of OSG. Under a bareboat charter arrangement, the charterer is
responsible for paying all operating costs associated with the
vessel. Accordingly, we do not incur any operating costs
associated with these two vessels.
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●
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Strategically expand our
current fleet. We intend to grow our fleet through
timely and selective acquisitions or chartering of additional
vessels. We recently expanded our fleet by acquiring two
Suezmaxes and intend to consider further potential acquisitions of
additional tankers, as well as vessels other than tankers. In
connection with any such acquisitions, we may charter out such vessels
either for multi-year or voyage-based
periods.
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Our
Charters
We have
time chartered our three VLCCs and four Aframaxes to subsidiaries of OSG for
remaining terms of the initial charter periods ranging between two and
one-quarter and three and three-quarter years. We have bareboat
chartered each of our Suezmaxes to subsidiaries of OSG for terms of seven years
and ten years, respectively, which commenced upon delivery of the vessels in
early December 2007 and late January 2008, respectively. The
daily base charter rate for each of our vessels, which we refer to as basic
hire, is payable to us monthly in advance.
With
respect to our seven initial vessels, the charterers and OSG International,
Inc., or “OIN,” the charterers’ parent company, have agreed to pay us, in
addition to the basic hire, an additional payment, quarterly in arrears, which
we refer to as “additional hire.” The additional hire payable, if
any, in respect of any given quarter will be equal to 40% of the average revenue
that our vessels earn, or are deemed to earn, for the charterers during that
quarter (averaged on a rolling four quarter basis) in excess of the basic hire
paid by the charterers to us during that quarter. Revenue is
calculated on an aggregate fleetwide basis, and depends on whether our vessels
are operated in a pool:
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●
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if
a vessel is operated in a pool, revenue earned by that vessel equals the
share of actual pool net earnings allocated to the charterer, as
determined by a formula administered by the pool
manager;
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●
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if
a vessel is operated outside of a
pool:
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●
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for
periods that the charterer subcontracts the vessel under a time charter,
revenue earned by that vessel equals the time charter hire earned by the
charterer, net of specified fees incurred by the charterer;
and
|
|
●
|
for
periods that the charterer does not subcontract the vessel in the time
charter market, revenue deemed to be earned by that vessel is based on
average spot market rates, which are rates for the immediate chartering of
a vessel (usually for a single voyage), determined by a shipbrokers’ panel
for a series of routes commonly served by vessels of the same
class.
|
A pool
constitutes a collection of similar vessels under various ownerships that are
placed for operation under one administrator, which we refer to as the “pool
manager.” The pool manager markets the vessels as a single, cohesive
fleet and collects, or pools, their net earnings prior to distributing them to
the individual owners under a pre-arranged weighting system that recognizes each
vessel’s earnings capacity based on its cargo capacity, speed and consumption,
and actual on-hire performance. Pools offer their participants more
opportunities to enter into multi-legged charters and contracts of
affreightment, which can reduce non-earning days through scheduling
efficiencies.
The three
VLCCs in our fleet currently participate in the Tankers International Pool, in
which OSG and eight other tanker companies participate. As of June
30, 2008, the Tankers International Pool consists of 43 VLCCs and
V Pluses, making it one of the world’s largest VLCC
fleets. Three of the four Aframaxes in our fleet currently
participate in the Aframax International Pool, the world’s second largest
Aframax fleet, which, as of June 30, 2008, operates 40 Aframaxes and has
eight members, including OSG (which is one of the pool managers).
With
respect to the Overseas
Newcastle, one of our Suezmaxes, the charterer has agreed to pay us, in
addition to the basic hire, additional hire equal to 33% of the average revenue
that the vessel earns for the charterer (averaged on a rolling four quarter
basis) in excess of the time charter equivalent rate of $35,000 per day for the
first three years of the charter term and above $34,000 per day for the last
four years of the charter term. We do not receive any additional hire
in respect of the Overseas
London, our other Suezmax.
Technical
Management of Our Fleet
In
connection with each of our VLCCs and Aframaxes, we have entered into ship
management agreements with Tanker Management with effect from October 18, 2005,
which we refer to as the “ship management agreements.” Under the ship
management agreements, Tanker Management is responsible for the technical
management and for most of the operating costs of these vessels, including
crewing, maintenance, ordinary repairs, scheduled drydockings, insurance
deductibles (subject to the limits set forth in the ship management agreements)
and other vessel operating expenses, excluding insurance premiums. In
exchange for these services, we pay Tanker Management a daily fee, which we
refer to as the “technical management fee,” for each vessel under
management. The technical management fee for each vessel is payable
monthly in advance based on the actual number of days in the
month. The fee was initially fixed through October 2007 and increases
by 2.5% per year each year thereafter. Neither us nor Tanker
Management is able to cancel any ship management agreement (as amended) prior to
the third anniversary of the effective date of such agreement (i.e., prior to
October 18, 2008), except for cause. Beginning on the third
anniversary, the ship management agreements (as amended) are cancelable by us or
Tanker Management for any reason at any time upon 90 days’ advance
notice. Each charterer has the right to approve any replacement
manager that we may select. Our two Suezmaxes are on bareboat
charters to subsidiaries of OSG. We do not incur any operating costs
associated with these vessels, since under a bareboat charter arrangement the
charterer is responsible for paying all costs of operating the vessel, including
voyage and vessel expenses.
Dividend
Policy
We intend
to pay quarterly dividends of $0.25 per share to holders of our common stock in
March, June, September and December of each year. Our board of
directors may review and amend our dividend policy from time to time in
accordance with any future growth of our fleet or for other
reasons.
Our
Credit Facility
On
October 18, 2005, we entered into a $401 million secured credit facility with
The Royal Bank of Scotland, or “RBS,” that has a term of ten years, with no
principal amortization for the first five years. This credit facility
initially consisted of a $236 million term loan, a $150 million vessel
acquisition facility and a $15 million working capital facility. The
credit facility is secured by mortgages on all of our vessels, assignments of
earnings and insurances and pledges over our bank accounts. We are
the borrower under the credit facility, and each of our vessel owning
subsidiaries has guaranteed our obligations under the credit
facility.
We
borrowed the entire amount available under the term loan upon the completion of
our IPO to fund a portion of the purchase price for the seven initial vessels
that we acquired from certain subsidiaries of OSG. On November 29,
2007, we amended our credit facility to increase the total commitment thereunder
by $19 million to $420 million. Under the terms of our amended credit
facility, our previous $15 million working capital facility and $150 million
vessel acquisition facility were cancelled and replaced with a new $184 million
vessel acquisition facility, which we have used to fund the entire purchase
price of our two recently acquired Suezmaxes, the Overseas Newcastle and the
Overseas
London.
Following
the above-mentioned increase, our credit facility is repayable with one
installment of $75 million no later than December 31, 2008, and commencing on
January 18, 2011 our credit facility is repayable in 27 quarterly installments
of $9,075,000. A final payment of $99,975,000 will be payable with
the last quarterly installment.
Borrowings
under the initial $236 million term loan bear interest at an annual rate of
LIBOR plus a margin of 0.70%. Borrowings under the vessel acquisition
facility bear interest at an annual rate of LIBOR plus a margin of
0.85%. To reduce our exposure to fluctuations in interest rates, we
entered an interest rate swap on October 18, 2005, pursuant to which we fixed
the interest rate for five years on the full amount of our $236 million term
loan at 5.60%. On October 16, 2007, we entered into an interest rate
swap pursuant to which we fixed the interest rate until January 18, 2013 on an
amount of $100 million at 5.94%. We were required to pay a $1.5
million fee in connection with the arrangement of our credit facility in October
2005 and a commitment fee of 0.3% per annum, which will be payable quarterly in
arrears, on the undrawn portion of the facility. We were required to
pay an arrangement fee of $95,000 in October 2007 in connection with the
increase in our credit facility from $401 million to $420 million.
First
Quarter 2008 Summary Consolidated Financial Statements
The
following sets forth certain information with respect to our results of
operations for the three months ended March 31, 2008. This
summary information is unaudited and reflects any adjustments necessary, in
management’s opinion, for a fair presentation of such information.
Summary
Consolidated Balance Sheets
(unaudited)
|
($
in thousands)
|
March
31, 2008
|
December
31, 2007
|
||||||
|
Current
Assets
|
||||||||
|
Cash
and cash equivalents
|
$
|
22,485
|
$
|
10,365
|
||||
|
Voyage
receivables from OSG
|
2,801
|
1,547
|
||||||
|
Prepaid
expenses
|
698
|
452
|
||||||
|
Prepaid
technical management fee to OSG
|
1,313
|
1,357
|
||||||
|
Total
Current Assets
|
27,297
|
13,721
|
||||||
|
Vessels,
net
|
482,143
|
398,005
|
||||||
|
Other
assets incl. deferred debt issuance cost
|
1,424
|
1,337
|
||||||
|
Vessel
acquisition deposits
|
9,145
|
|||||||
|
Total
Assets
|
$
|
510,864
|
$
|
422,208
|
||||
|
Current
Liabilities
|
||||||||
|
Accounts
payable and accrued expenses
|
$
|
4,976
|
$
|
4,409
|
||||
|
Unrealized
loss on interest rate swap
|
21,944
|
10,218
|
||||||
|
Deferred
shipping revenues
|
7,580
|
7,006
|
||||||
|
Current
portion of long term debt
|
75,000
|
75,000
|
||||||
|
Total
Current Liabilities
|
109,500
|
96,633
|
||||||
|
Long
term debt net of current portion
|
344,000
|
253,700
|
||||||
|
Total
Stockholders equity
|
57,364
|
71,875
|
||||||
|
Total
Liabilities and Stockholders' Equity
|
$
|
510,864
|
$
|
422,208
|
||||
Summary
Consolidated Statements of Operations
(unaudited)
|
Three
months ended
March
31,
|
||||||||
|
($
in thousands except per share amounts)
|
2008
|
2007
|
||||||
|
Shipping
revenues
|
$
|
24,889
|
$
|
20,231
|
||||
|
Vessel
expenses
|
4,713
|
4,775
|
||||||
|
Depreciation
and
amortization
|
6,193
|
4,171
|
||||||
|
General
and
administrative
|
1,001
|
807
|
||||||
|
Total
operating
expenses
|
11,907
|
9,753
|
||||||
|
Income
from vessel
operations
|
12,982
|
10,478
|
||||||
|
Interest
income
|
148
|
220
|
||||||
|
Interest
expense and amortization of deferred debt issuance cost
|
5,505
|
3,492
|
||||||
|
Net
income
|
$ |
7,625
|
$ |
7,206
|
||||
|
Basic
net income per
share
|
$
|
0.25
|
$
|
0.24
|
||||
|
Diluted
net income per
share
|
$
|
0.25
|
$
|
0.24
|
||||
|
Weighted
average number of shares
(basic)
|
30,030,811
|
30,013,954
|
||||||
|
Weighted
average number of shares
(diluted)
|
30,030,811
|
30,027,438
|
||||||
We have
identified a number of risk factors which you should consider before buying the
securities described in this prospectus. These risk factors are
incorporated by reference into this prospectus from our most recent annual
report on Form 20-F filed with the Commission. For further details,
see the section entitled “Where You Can Find Additional Information” on
page 34 of this
prospectus. In addition, you should carefully consider any risks set
forth under the heading “Risk Factors” in the accompanying prospectus supplement
before investing in the securities offered by this prospectus. If the
events discussed in the risk factors referred to above occur, our business,
financial condition, results of operations or cash flows could be materially and
adversely affected. In such a case, the market price of our common
stock could decline and you may lose all or part of your
investment. The risks referred to above are not the only ones that
may exist. Additional risks not currently known by us or risks that
we deem immaterial may also impair our business operations.
Unless we
specify otherwise in any prospectus supplement, we intend to use the net
proceeds from the sale of securities offered by this prospectus for general
corporate purposes, which may include, without limitation, vessel acquisitions,
business acquisitions or other strategic alliances, reduction of outstanding
borrowings, capital expenditures and working capital.
Our
consolidated ratio of earnings to fixed charges for each of the periods
indicated is set forth below. We have derived the ratios of earnings
to fixed charges from our historical consolidated financial
statements. For the 290 days from January 1, 2005 to October 17, 2005
and the years ended December 31, 2004 and 2003, the consolidated financial
statements represent the predecessor combined carve-out financial statements of
the seven subsidiaries of OSG that owned the vessels comprising our initial
fleet. The predecessor combined carve-out financial statements are
not indicative of the results we would have achieved had we operated as an
independent public company for any period presented. The ratios
should be read in conjunction with our consolidated financial statements,
including the notes thereto, and the other financial information included or
incorporated by reference herein.
|
For
the Year Ended
December 31, |
For
the Period
|
For
the Year Ended
December
31,
|
|||||
|
Three
Months Ended
March
31, 2008
|
2007
|
2006
|
Oct.
18 - Dec. 31, 2005
|
Jan.
1 - Oct. 17, 2005
|
2004
|
2003
|
|
|
Ratio
of earnings to fixed
charges |
2.39
|
2.90
|
3.56
|
4.30
|
13.14
|
11.03
|
5.96
|
We have
computed the ratios of earnings to fixed charges set forth above by dividing
earnings by fixed charges. For the purpose of determining the ratio
of earnings to fixed charges, earnings include pre-tax income from continuing
operations plus fixed charges. Fixed charges consist of interest on
all indebtedness.
As of the
date of this prospectus, we have no preference shares outstanding and have not
declared or paid any dividends on preference shares for the periods set forth
above.
The
following table sets forth certain information regarding (i) the owners of
more than 5% of our common stock that we are aware of, and (ii) the total
amount of common stock owned by all of our officers and directors, both
individually and as a group, in each case immediately preceding and after giving
effect to this offering.
|
Shares
of
Common
Stock
Prior
to the Offering
|
Shares
of
Common
Stock
Offered
Hereby
|
Shares
of
Common
Stock
Following
the Offering
|
||||||||||||||||||
|
Name
|
Number
of Shares
|
Percent
|
Number
of Shares
|
Number
of Shares
|
Percent
|
|||||||||||||||
|
Persons
owning more than 5% of a class of our equity securities
|
||||||||||||||||||||
|
Renaissance
Technologies LLC(1)
|
1,754,800
|
5.85
|
0
|
1,754,800
|
5.85
|
|||||||||||||||
|
Directors
|
||||||||||||||||||||
|
Erik
A. Lind(2)
|
12,464
|
*
|
0
|
12,464
|
*
|
|||||||||||||||
|
Randee
Day(2)
|
12,464
|
*
|
0
|
12,464
|
*
|
|||||||||||||||
|
Rolf
A. Wikborg(2)
|
12,464
|
*
|
0
|
12,464
|
*
|
|||||||||||||||
|
Executive
Officers
|
||||||||||||||||||||
|
Ole
Jacob Diesen(3)
|
62,237
|
*
|
0
|
62,237
|
*
|
|||||||||||||||
|
Eirik
Ubøe(4)
|
41,226
|
*
|
0
|
41,226
|
*
|
|||||||||||||||
|
Tom
R. Kjeldsberg(5)
|
21,318
|
*
|
0
|
21,318
|
*
|
|||||||||||||||
|
Directors
and executive officers as a group
(6
persons)(6)
|
162,173
|
*
|
0
|
162,173
|
*
|
|||||||||||||||
________________
|
*
|
Less
than 1%
|
|
(1)
|
Based
on a Schedule 13G filed by Renaissance Technologies LLC with the
Commission on February 13, 2008.
|
|
(2)
|
Includes
9,428 shares of restricted stock subject to vesting
conditions.
|
|
(3)
|
Does
not include 11,574 options with an exercise price of $12 per share and
expiring on October 18, 2015 subject to vesting conditions. Includes
47,087 shares of restricted stock subject to vesting
conditions.
|
|
(4)
|
Does
not include 11,574 options with an exercise price of $12 per share and
expiring on October 18, 2015 subject to vesting conditions. Includes
27,676 shares of restricted stock subject to vesting
conditions.
|
|
(5)
|
Includes
20,316 shares of restricted stock subject to vesting
conditions.
|
|
(6)
|
Includes
123,363 shares of restricted stock subject to vesting
conditions.
|
We may
offer and sell, from time to time, some or all of the securities covered by this
prospectus up to a total of $200 million. Registration of the
securities covered by this prospectus does not mean, however, that those
securities necessarily will be offered or sold.
We may
sell the securities covered by this prospectus from time to time, in one or more
transactions, at market prices prevailing at the time of sale, at prices related
to market prices, at a fixed price or prices subject to change, at varying
prices determined at the time of sale or at negotiated prices, by a variety of
methods, including the following:
|
●
|
on
the New York Stock Exchange or any other national securities exchange or
U.S. inter-dealer system of a registered national securities association
on which our common stock may be listed or quoted at the time of
sale;
|
|
|
●
|
in
the over-the-counter market;
|
|
|
●
|
in
privately negotiated transactions;
|
|
|
●
|
in
an exchange distribution in accordance with the rules of the applicable
exchange;
|
|
|
●
|
as
settlement of short sales entered into after the date of the
prospectus;
|
|
|
●
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or otherwise;
|
|
|
●
|
through
broker-dealers, who may act as agents or principals;
|
|
|
●
|
through
sales “at the market” to or through a market-maker;
|
|
|
●
|
in
a block trade, in which a broker-dealer will attempt to sell a block as
agent, but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
|
●
|
through
one or more underwriters on a firm commitment or best-efforts
basis;
|
|
|
●
|
directly
to one or more purchasers;
|
|
|
●
|
through
agents;
|
|
|
●
|
in
options transactions;
|
|
|
●
|
over
the internet;
|
|
|
●
|
any
other method permitted pursuant to applicable law; or
|
|
|
●
|
in
any combination of the above.
|
In
effecting sales, brokers or dealers engaged by us may arrange for other brokers
or dealers to participate. Broker-dealer transactions may include:
|
●
|
purchases
of the securities by a broker-dealer as principal and resales of the
securities by the broker-dealer for its account pursuant to this
prospectus;
|
|
|
●
|
ordinary
brokerage transactions; or
|
|
|
●
|
transactions
in which the broker-dealer solicits
purchasers.
|
In
addition, we may sell any securities covered by this prospectus in private
transactions or under Rule 144 of the Securities Act of 1933, as amended, or
“Securities Act,” rather than pursuant to this prospectus.
In
connection with the sale of securities covered by this prospectus,
broker-dealers may receive commissions or other compensation from us in the form
of commissions, discounts or concessions. Broker-dealers may also
receive compensation from purchasers of the securities for whom they act as
agents or to whom they sell as principals or both. Compensation as to
a particular broker-dealer may be in excess of customary commissions or in
amounts to be negotiated. In connection with any underwritten
offering, underwriters may receive compensation in the form of discounts,
concessions or commissions from us or from purchasers of the securities for whom
they act as agents. Underwriters may sell the securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Any
underwriters, broker-dealers agents or other persons acting on our behalf that
participate in the distribution of the securities may be deemed to be
“underwriters” within the meaning of the Securities Act, and any profit on the
sale of the securities by them and any discounts, commissions or concessions
received by any of those underwriters, broker-dealers agents or other persons
may be deemed to be underwriting discounts and commissions under the Securities
Act.
In
connection with the distribution of the securities covered by this prospectus or
otherwise, we may enter into hedging transactions with broker-dealers or other
financial institutions. In connection with such transactions,
broker-dealers or other financial institutions may engage in short sales of our
securities in the course of hedging the positions they assume with
us. We may also sell securities short and deliver the securities
offered by this prospectus to close out our short positions. We may
also enter into option or other transactions with broker-dealers or other
financial institutions, which require the delivery to such broker-dealer or
other financial institution of securities offered by this prospectus, which
securities such broker-dealer or other financial institution may resell pursuant
to this prospectus, as supplemented or amended to reflect such
transaction. We may also from time to time pledge our securities
pursuant to the margin provisions of our customer agreements with our
brokers. Upon our default, the broker may offer and sell such pledged
securities from time to time pursuant to this prospectus, as supplemented or
amended to reflect such transaction.
At any
time a particular offer of the securities covered by this prospectus is made, a
revised prospectus or prospectus supplement, if required, will be distributed
which will set forth the aggregate amount of securities covered by this
prospectus being offered and the terms of the offering, including the name or
names of any underwriters, dealers, brokers or agents, any discounts,
commissions, concessions and other items constituting compensation from us and
any discounts, commissions or concessions allowed or reallowed or paid to
dealers. Such prospectus supplement, and, if necessary, a
post-effective amendment to the registration statement of which this prospectus
is a part, will be filed with the Commission to reflect the disclosure of
additional information with respect to the distribution of the securities
covered by this prospectus. In order to comply with the securities
laws of certain states, if applicable, the securities sold under this prospectus
may only be sold through registered or licensed broker-dealers. In
addition, in some states the securities may not be sold unless they have been
registered or qualified for sale in the applicable state or an exemption from
registration or qualification requirements is available and is complied
with.
In
connection with an underwritten offering, we would execute an underwriting
agreement with an underwriter or underwriters. Unless otherwise
indicated in the revised prospectus or applicable prospectus supplement, such
underwriting agreement would provide that the obligations of the underwriter or
underwriters are subject to certain conditions precedent, and that the
underwriter or underwriters with respect to a sale of the covered securities
will be obligated to purchase all of the covered securities, if any such
securities are purchased. We may grant to the underwriter or
underwriters an option to purchase additional securities at the public offering
price, less any underwriting discount, as may be set forth in the revised
prospectus or applicable prospectus supplement. If we grant any such
option, the terms of that option will be set forth in the revised prospectus or
applicable prospectus supplement.
Pursuant
to a requirement by the Financial Industry Regulatory Authority, or “FINRA,” the
maximum commission or discount to be received by any FINRA member or independent
broker-dealer may not be greater than 8% of the gross proceeds received by us
for the sale of any securities being registered pursuant to SEC Rule 415 under
the Securities Act.
Underwriters,
agents, brokers or dealers may be entitled, pursuant to relevant agreements
entered into with us, to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act that may arise from
any untrue statement or alleged untrue statement of a material fact, or any
omission or alleged omission to state a material fact in this prospectus, any
supplement or amendment hereto, or in the registration statement of which this
prospectus forms a part, or to contribution with respect to payments which the
underwriters, agents, brokers or dealers may be required to make.
We will
bear all costs relating to all of the securities being registered under the
registration statement of which this prospectus is a part.
A
description of our common stock can be found in our Registration Statement on
Form 8-A, filed with the Commission on October 7, 2005.
The
material terms of any series of preferred stock that we offer, together with any
material United States federal income tax considerations relating to such
preferred stock, will be described in a prospectus supplement.
Our
amended and restated articles of incorporation authorize our board of directors
to establish one or more series of preferred stock and to determine the terms of
and rights attaching to such preferred stock, including with respect to, among
other things, dividends, conversion, voting, redemption, liquidation,
designation and the number of shares constituting any such
series. The issuance of shares of preferred stock may have the effect
of discouraging, delaying or preventing a change of control of us or the removal
of our management. The issuance of shares of preferred stock with
voting and conversion rights may adversely affect the voting power of the
holders of shares of our common stock.
We may
offer unsecured general obligations or secured obligations, which may be senior
(the “senior debt securities”) or subordinated (the “subordinated debt
securities”). The senior debt securities and subordinated debt
securities are together referred to in this prospectus as the “debt
securities.” Any debt securities offered pursuant to this prospectus
may be convertible debt securities. The debt securities may be issued
from time to time in one or more series, under one or more indentures, the form
of which is attached as an exhibit to the registration statement of which this
prospectus forms a part, each dated as of a date on or prior to the issuance of
the debt securities to which it relates. If we issue subordinated
debt securities, the terms and provisions of those securities will be set forth
in a supplemental indenture. When we refer to an “indenture” in this
prospectus, we are referring to the applicable indenture entered into between us
and the trustee to be named in such indenture, as supplemented by any
supplemental indenture. The indentures will be filed either as
exhibits to an amendment to the registration statement of which this prospectus
forms a part or a prospectus supplement, or as exhibits to reports filed under
the Securities Exchange Act of 1934, as amended, or “Exchange Act,” that will be
incorporated by reference into the registration statement of which this
prospectus forms a part or a prospectus supplement. Each indenture
will be subject to and governed by the Trust Indenture Act of 1939, or “Trust
Indenture Act.” If we issue any subordinated debt securities, the
description of those securities and the subordinated indenture will be set forth
in the related prospectus supplement.
The
following description of the terms of the debt securities sets forth certain
general terms and provisions. The statements below are not complete
and are subject to, and are qualified in their entirety by reference to, all of
the provisions of the applicable indenture and any applicable U.S. federal
income tax consideration, as well as any applicable modifications of, or
additions to, the general terms of the debt securities described below, which
modifications and additions may be contained in the applicable prospectus
supplement or supplemental indenture. Accordingly, for a complete
description of the terms of a particular issue of debt securities, the general
description of the debt securities set forth below should be read in conjunction
with the applicable prospectus supplement and indenture, as amended or
supplemented from time to time.
General
The
indenture will not limit the aggregate principal amount of debt securities which
may be issued. The debt securities may be issued in one or more
series. Unless otherwise provided in a prospectus supplement, the
senior debt securities will have the same rank as all our other unsubordinated
indebtedness. Each series of subordinated debt securities may be
senior or junior to, or rank pari passu with, our other
subordinated obligations and will be entitled to payment only after payment on
our senior indebtedness.
If we
decide to issue any debt securities pursuant to this prospectus, we will
describe in a prospectus supplement the terms of the debt securities being
offered, including the following:
|
●
|
the
title, aggregate principal amount and authorized
denominations;
|
|
|
●
|
the
issue price, expressed as a percentage of the aggregate principal
amount;
|
|
|
●
|
the
maturity date;
|
|
|
●
|
the
interest rate or the method for determining the interest rate, if
any;
|
|
|
●
|
if
the offered debt securities provide for interest payments, the date from
which interest will accrue, the dates on which interest will be payable,
the date on which payment of interest will commence and the regular record
dates for interest payment dates;
|
|
|
●
|
whether
or not the debt securities will be secured or unsecured, and the terms of
any secured debt;
|
|
|
●
|
any
optional or mandatory sinking fund provisions or conversion or
exchangeability provisions;
|
|
|
●
|
the
date, if any, after which and the price or prices at which the offered
debt securities may be optionally redeemed or must be mandatorily
redeemed, and any other terms and provisions of optional or mandatory
redemptions;
|
|
|
●
|
the
denominations in which offered debt securities of the series will be
issuable;
|
|
|
●
|
if
other than the full principal amount, the portion of the principal amount
of offered debt securities of the series which will be payable upon
acceleration or provable in bankruptcy;
|
|
|
●
|
any
events of default not set forth in this prospectus;
|
|
|
●
|
the
currency or currencies, including composite currencies, in which
principal, premium and interest will be payable, if other than the
currency of the United States of America;
|
|
|
●
|
if
principal, premium or interest is payable, at our election or at the
election of any holder, in a currency other than that in which the offered
debt securities of the series are stated to be payable, the period or
periods within which, and the terms and conditions upon which, the
election may be made;
|
|
|
●
|
whether
interest will be payable in cash or additional securities at our or the
holder’s option and the terms and conditions upon which such election may
be made;
|
|
●
|
if
denominated in a currency or currencies other than the currency of the
United States of America, the equivalent price in the currency of the
United States of America for purposes of determining the voting rights of
holders of those debt securities under the applicable
indenture;
|
|
|
●
|
if
the amount of payments of principal, premium or interest may be determined
with reference to an index, formula or other method based on a coin or
currency other than that in which the offered debt securities of the
series are stated to be payable, the manner in which the amounts will be
determined;
|
|
|
●
|
whether
the indenture will provide for any covenants, including covenants
restricting our ability to pay dividends or incur additional
indebtedness;
|
|
|
●
|
whether
the offered debt securities will be issued in the form of global
securities or certificates in registered or bearer form;
|
|
|
●
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the
identity of the depository for global securities;
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the
terms of the subordination of any series of subordinated
debt;
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any
listing on any securities exchange or quotation system;
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additional
provisions, if any, related to defeasance and discharge of the offered
debt securities;
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whether
payments on the offered debt securities will be made without withholding
or deduction for any taxes or other governmental charges in effect on the
date of issuance of the debt securities or imposed in the
future;
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the
amount of discount or premium, if any, with which such debt securities
will be issued;
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a
discussion of any material United States federal income tax considerations
applicable to the debt securities; and
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additional
terms, preferences, rights or limitations of, or restrictions on, the debt
securities.
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Some or
all of the debt securities may be issued as discounted debt securities, bearing
no interest or interest at a rate which at the time of issuance is below market
rates, to be sold at a substantial discount below the stated principal
amount. One or more series of debt securities may be variable rate
debt securities that may be exchanged for fixed rate
securities. United States federal income tax consequences and other
special considerations applicable to any such securities will be described in
the applicable prospectus supplement.
We expect
most debt securities to be issued in fully registered form without coupons, in
denominations of $1,000 and any integral multiple thereof. Subject to
the limitations provided in the indenture and in the prospectus supplement, the
debt securities may be transferred or exchanged at the principal corporate trust
office of the applicable trustee. No service charge will be made for
any transfer or exchange of the debt securities, but we may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection with these debt securities.
Global
Securities
We expect
that the following provisions will generally apply to depository arrangements
for any portion of a series of debt securities to be represented by a global
security. Any additional or different terms of the depository
arrangement will be described in the applicable prospectus
supplement.
The debt
securities of a series may be issued in whole or in part in the form of one or
more global securities that will be deposited with, or on behalf of, a
depository identified in the applicable prospectus supplement and registered in
the name of the depository or a nominee for the depository. In such a
case, one or more global securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding debt securities of the series to be represented by the global
security or securities. Unless and until it is exchanged in whole or
in part for the individual debt securities in definitive certificated form, a
global security may not be transferred except as a whole by the depository for
such global security to a nominee of such depository, or by a nominee of such
depository to such depository or another nominee of such depository, or by such
depository or any such nominee to a successor of such depository or a nominee of
such successor, and except in the circumstances described in the applicable
prospectus supplement.
Upon the
issuance of any global security, and the deposit of such global security with or
on behalf of the depository for such global security, the depository will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the individual debt securities represented by such global
security to the accounts of institutions that have accounts with such depository
or its nominee. The accounts to be credited will be designated by the
underwriters or agents engaging in the distribution of the debt securities or by
us if the debt securities are offered and sold directly by
us. Ownership of beneficial interests in a global security will be
limited to participating institutions or persons that may hold interests through
such participating institutions. Ownership of beneficial interests by
participating institutions in a global security will be shown on, and the
transfer of such beneficial interests will be effected only through, records
maintained by the depository for such global security or by its
nominee. Ownership of beneficial interests in a global security by
persons that hold such interests through participating institutions will be
shown on, and the transfer of such beneficial interests within the participating
institutions will be effected only through, records maintained by those
participating institutions. The laws of some jurisdictions may
require that purchasers of securities take physical delivery of such securities
in certificated form. Such limitations and laws may impair the ability to
transfer beneficial interests in a global security.
So long
as the depository for a global security, or its nominee, is the registered owner
of such global security, such depository or its nominee, as the case may be,
will be considered the sole owner or holder of the debt securities represented
by such global security for all purposes under the applicable
indenture. Except as otherwise provided in the applicable indenture
and prospectus supplement, and except as specified below, owners of beneficial
interests in a global security will not be entitled to have debt securities of
the series represented by such global security registered in their names, will
not receive or be entitled to receive physical delivery of any debt securities
of such series in certificated form and will not be considered the owners or
holders thereof for any purposes under the indenture. Accordingly,
each person owning a beneficial interest in a global security must rely on the
procedures of the depository and, if such person is not a participating
institution, on the procedures of the participating institution through which
such person owns its interest, to exercise any rights of a holder under the
indenture.
The
depository may grant proxies and otherwise authorize participating institutions
to give or take any request, demand, authorization, direction, notice, consent,
waiver or other action which a holder is entitled to give or take under the
applicable indenture. We understand that, under existing industry
practices, if we request any action of holders or any owner of a beneficial
interest in a global security desires to give any notice or take any action a
holder is entitled to give or take under the applicable indenture, the
depository would authorize the participating institutions to give the notice or
take the action, and participating institutions would authorize beneficial
owners owning through such participating institutions to give the notice or take
the action or would otherwise act upon the instructions of beneficial owners
owning through them.
Unless
otherwise provided in the applicable prospectus supplement, payments of
principal, premium and interest on individual debt securities represented by a
global security registered in the name of a depository or its nominee will be
made by us to such depository or its nominee, as the case may be, as the
registered owner of such global security.
We expect
that the depository for any debt securities represented by a global security, or
its nominee, upon receipt of any payment of principal, premium or interest, will
credit participating institutions’ accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such global security as shown on the records of the depository or its
nominee. We also expect that payments by participating institutions
to owners of beneficial interests in a global security held through such
participating institutions will be governed by standing instructions and
customary practices, as is now the case with the securities held for the
accounts of customers in bearer form or registered in “street
names.” Such payments will be the responsibility of such
participating institutions. None of us, the trustee for the debt
securities or any agent of ours or the trustees will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial interests in a global security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
Unless
otherwise specified in the applicable prospectus supplement or indenture, a
global security of any series will be exchangeable for certificated debt
securities of the same series only if:
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the
depository for such global securities notifies us that it is unwilling or
unable to continue as depository or such depository ceases to be a
clearing agency registered under the Exchange Act and, in either case, a
successor depository is not appointed by us within 90 days of such
event;
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we
in our sole discretion determine that the global security shall be
exchangeable for certificated debt securities; or
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there
shall have occurred and be continuing an event of default under the
applicable indenture with respect to the debt securities of that
series.
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If
definitive debt securities are issued, an owner of a beneficial interest in the
global security will be entitled to physical delivery of individual debt
securities in certificated form of the series represented by that global
security equal in principal amount to their beneficial interest, and to have the
debt securities in certificated form registered in their name.
Covenants
The
covenants, if any, that will apply to a particular series of debt securities
will be set forth in the indenture relating to such series of debt securities
and described in a prospectus supplement. These covenants may limit
or restrict, among other things:
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the
ability of us or our subsidiaries to incur either secured or unsecured
debt, or both;
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the
ability to make certain payments, dividends, redemptions or
repurchases;
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our
ability to create dividend and other payment restrictions affecting our
subsidiaries;
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our
ability to make investments;
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mergers
and consolidations by us or our subsidiaries;
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sales
of assets by us;
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our
ability to enter into transactions with affiliates;
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our
ability to incur liens; and
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sale
and leaseback transactions.
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You
should carefully read the applicable prospectus supplement and indenture for a
description of the specific covenants applicable to the series of debt
securities being offered.
Modification
of the Indentures
Modifications
and amendments of the indenture as it applies to a series of debt securities may
be made without notice to any holder but with the written consent of the holders
of a majority in principal amount of the then outstanding debt securities of
such series.
However,
no such modification or amendment may, without the consent of the holder of each
outstanding debt security affected thereby:
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reduce
the principal amount of debt securities whose holders must consent to an
amendment, modification, supplement or waiver;
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reduce
the rate of or extend the time of payment for interest on any debt
security;
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reduce
the principal amount or extend the stated maturity of any debt
security;
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reduce
the amount payable upon the redemption of any debt security or add
redemption provisions to any debt security;
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make
any debt security payable in money other than that stated in the indenture
or the debt security; or
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impair
the right to institute suit for the enforcement of any payment with
respect to the debt securities.
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Without
the consent of any holder, we and the trustee may amend or supplement the
indenture to surrender any right or power conferred upon us by the indenture, to
add further covenants, restrictions, conditions or provisions for the protection
of holders, to cure any ambiguity, omission, defect or inconsistency, to provide
for the assumption by a successor of our obligations under the indenture as
permitted thereunder, to provide for the issuance of additional debt securities
in accordance with the limitations set forth in the indenture or to make any
other change that does not adversely affect the rights of any
holder.
Events
of Default
Each of
the following constitutes an event of default with respect to a series of debt
securities:
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our
failure to pay interest (including additional interest, if applicable) on
any debt securities within 30 days of when such amount becomes due and
payable;
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default
in any payment of principal amount or redemption price with respect to any
debt security when such amount becomes due and payable;
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default
in the performance of any applicable covenant or agreement with respect to
the debt securities or the applicable indenture which continues for 60
days after we receive notice of such default;
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default
under any debt for money borrowed by us or any subsidiary that results in
acceleration of the maturity of such debt, or failure to pay any such debt
at maturity, in an aggregate amount in excess of a minimum amount set
forth in the applicable indenture, without such debt having been
discharged or acceleration having been rescinded or annulled within 10
days after we receive notice of such default;
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any
judgment or judgments for the payment of money (to the extent not insured
by a reputable and creditworthy insurer that has not contested coverage
with respect to the underlying claim) in an aggregate amount in excess of
a minimum amount set forth in the applicable indenture that shall be
rendered against us or any subsidiary and that shall not be waived,
satisfied or discharged for any period of 60 consecutive days during which
a stay of enforcement shall not be in effect; and
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certain
events of bankruptcy, insolvency or reorganization affecting us or any of
our significant subsidiaries.
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There may
be such other or different events of default as described in the applicable
prospectus supplement and indenture with respect to any class or series of
offered debt securities.
A default
under the third bullet point above is not an event of default until the trustee
or the holders of not less than 25% in aggregate principal amount of the debt
securities of such series then outstanding notify us of the default and we do
not cure such default within the time specified after receipt of such
notice. Such notice must specify the default, demand that it be
remedied and state that such notice is a “Notice of Default.”
We will
deliver to the trustee, within 30 days after the occurrence thereof,
written notice in the form of an officers’ certificate of any event that with
the giving of notice or the lapse of time or both would become an event of
default, its status and what action we are taking or propose to take with
respect thereto.
If an
event of default (other than an event of default resulting from certain events
involving bankruptcy, insolvency or reorganization with respect to us) shall
have occurred and be continuing, the trustee or the registered holders of not
less than 25% in aggregate principal amount of the debt securities of such
series then outstanding may declare, by notice to us in writing (and to the
trustee, if given by holders of such debt securities) specifying the event of
default, to be immediately due and payable the principal amount of all the debt
securities in such series then outstanding, plus accrued but unpaid interest to
the date of acceleration. In case an event of default resulting from
certain events of bankruptcy, insolvency or reorganization with respect to us
shall occur, such amount with respect to all the debt securities shall be due
and payable immediately without any declaration or other act on the part of the
trustee or the holders of the debt securities. After any such
acceleration, but before a judgment or decree based on acceleration is obtained
by the trustee, the registered holders of a majority in aggregate principal
amount of the debt securities of such series then outstanding may, under certain
circumstances, rescind and annul such acceleration and waive such event of
default if all events of default, other than the nonpayment of accelerated
principal, premium or interest, have been cured or waived as provided in the
indenture.
In
addition, the holders of at least a majority in principal amount of the then
outstanding debt securities of a series may waive an existing default and its
consequences under the indenture, except a default in the payment of principal
or interest and in respect of certain covenants and provisions of the indenture
which cannot be amended without the consent of the holder of each outstanding
debt security in a series.
Subject
to the provisions of the indenture relating to the duties of the trustee, in
case an event of default shall occur and be continuing, the trustee will be
under no obligation to exercise any of its rights or powers under the indenture
at the request or direction of any of the holders of the debt securities, unless
such holders shall have offered to the trustee indemnity or security reasonably
satisfactory to it against any loss, liability or expense. Subject to
such provisions for the indemnification of the trustee, the holders of a
majority in aggregate principal amount of the debt securities then outstanding
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the trustee or exercising any trust or
power conferred on the trustee with respect to the debt securities.
No holder
of debt securities will have any right to institute any proceeding with respect
to the indenture, or for the appointment of a receiver or trustee, or for any
remedy thereunder, unless:
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such
holder has previously given to the trustee written notice of a continuing
event of default;
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the
registered holders of at least 25% in aggregate principal amount of the
debt securities of such series then outstanding have made a written
request and offered indemnity to the trustee reasonably satisfactory to it
to institute such proceeding as trustee; and
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the
trustee shall not have received from the registered holders of a majority
in aggregate principal amount of the debt securities of such series then
outstanding a direction inconsistent with such request and shall have
failed to institute such proceeding within 60
days.
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However,
such limitations do not apply to a suit instituted by a holder of any debt
security for enforcement of payment of the principal of, and premium, if any, or
interest on, such debt security on or after the respective due dates expressed
in such debt security.
If a
default with respect to the debt securities occurs and is continuing and is
known to the trustee, the trustee must mail to each holder notice of the default
within 90 days after it occurs. The trustee may withhold the
notice if and so long as a committee of its trust officers in good faith
determines that withholding notice is in the interest of the holders of the debt
securities.
We are
required to furnish to the trustee, within 120 days after the end of each
fiscal year, a statement of an officer regarding compliance with the
indenture. Within 30 days after the occurrence of any default or
event of default, we are required to deliver to the trustee written notice in
the form of an officer’s certificate a statement specifying our status and what
actions we are taking or propose to take with respect thereto.
Defeasance
and Discharge
We may
terminate at any time all our obligations with respect to any series of debt
securities and the applicable indenture, which we refer to in this prospectus as
“legal defeasance,” except for certain obligations, including those respecting
the defeasance trust, to replace mutilated, destroyed, lost or stolen debt
securities and to maintain a registrar and paying agent in respect of the debt
securities. In addition, we may also terminate at any time our
obligations with respect to any series of debt securities with respect to
certain covenants that are described in the applicable indenture, which we refer
to in this prospectus as “covenant defeasance,” except for certain covenants,
including the covenant to make payments in respect of the principal, premium, if
any, and interest on the debt securities. In the event covenant
defeasance occurs, certain events (not including nonpayment, bankruptcy,
receivership, reorganization and insolvency events) described under “—Events of
Default” will no longer constitute events of default with respect to the debt
securities. We may exercise the legal defeasance option
notwithstanding our prior exercise of the covenant defeasance
option.
If we
exercise our legal defeasance option with respect to a series of debt
securities, payment of such debt securities may not be accelerated because of an
event of default with respect thereto. If we exercise the covenant
defeasance option with respect to a series of debt securities, payment of such
debt securities may not be accelerated because of an event of default specified
in the third bullet point under “—Events of Default.”
The legal
defeasance option or the covenant defeasance option with respect to a series of
debt securities may be exercised only if:
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we
irrevocably deposit in trust with the trustee money or U.S. Government
obligations or a combination thereof for the payment of principal of and
interest on such debt securities to maturity;
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we
deliver to the trustee a certificate from a nationally recognized firm of
independent registered public accountants expressing their opinion that
the payments of principal and interest when due on the deposited U.S.
Government obligations plus any deposited money without investment will
provide cash at such times and in such amounts as will be sufficient to
pay principal and interest when due on all the debt securities to
maturity;
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123 days
pass after the deposit is made and during the 123-day period no default
described in the sixth bullet point under “—Events of Default” occurs with
respect to us or any other person making such deposit which is continuing
at the end of the period;
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no
default or event of default has occurred and is continuing on the date of
such deposit;
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such
deposit does not constitute a default under any other agreement or
instrument binding us;
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we
deliver to the trustee an opinion of counsel to the effect that the trust
resulting from the deposit does not require registration under the
Investment Company Act of 1940;
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in
the case of the legal defeasance option, we deliver to the trustee an
opinion of counsel stating that:
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we
have received from the IRS a ruling; or
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since
the date of the indenture there has been a change in the applicable U.S.
Federal income tax law, to the effect, in either case, that, and based
thereon such opinion of counsel shall confirm that, the holders of such
debt securities will not recognize income, gain or loss for U.S. Federal
income tax purposes as a result of such defeasance and will be subject to
U.S. Federal income tax on the same amounts, in the same manner and at the
same time as would have been the case if such defeasance had not
occurred;
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in
the case of the covenant defeasance option, we deliver to the trustee an
opinion of counsel to the effect that the holders of such debt securities
will not recognize income, gain or loss for U.S. Federal income tax
purposes as a result of such covenant defeasance and will be subject to
U.S. Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had not
occurred; and
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we
deliver to the trustee an officers’ certificate and an opinion of counsel,
each stating that all conditions precedent to the defeasance and discharge
of such debt securities have been complied with as required by the
indenture.
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A
prospectus supplement will further describe the provisions, if any, of any
particular series of offered debt securities permitting a discharge
defeasance.
Discharge
of the Indenture
When
(i) we deliver to the trustee all outstanding debt securities of a series
(other than debt securities replaced because of mutilation, loss, destruction or
wrongful taking) for cancellation or (ii) all outstanding debt securities
of a series have become due and payable, whether at maturity or as a result of
the mailing of a notice of redemption, and we irrevocably deposit with the
trustee funds sufficient to pay at maturity or upon redemption all outstanding
debt securities of a series, including interest thereon, and if in either case
we pay all other sums related to such debt securities payable under the
indenture by us, then the indenture shall, subject to certain surviving
provisions, cease to be of further effect as to all outstanding debt securities
of such series. The trustee shall acknowledge satisfaction and
discharge of the indenture with respect to such series of debt securities on our
demand accompanied by an officers’ certificate and an opinion of
counsel.
Regarding
the Trustee
Except
during the continuance of an event of default, the trustee will perform only
such duties as are specifically set forth in the indenture. During the existence
of an event of default, the trustee will exercise such rights and powers vested
in it under the indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise under the circumstances in the
conduct of such person’s own affairs.
The
indenture and provisions of the Trust Indenture Act that are incorporated by
reference therein contain limitations on the rights of the trustee, should it
become one of our creditors, to obtain payment of claims in certain cases or to
realize on certain property received by it in respect of any such claim as
security or otherwise. The trustee is permitted to engage in other
transactions with us or any of our affiliates; provided, however, that if it
acquires any conflicting interest (as defined in the indenture or in the Trust
Indenture Act), it must eliminate such conflict or resign.
No
Recourse
None of
our directors, officers, employees, stockholders or affiliates, as such, will
have any liability for any of our obligations under the debt securities or the
indenture. Each holder will waive and release all such liability
subject to any liability imposed by the Securities Act or the Trust Indenture
Act.
Provisions
Applicable Only To Subordinated Debt Securities
As set
forth in a prospectus supplement, the subordinated debt securities may be senior
or junior to, or rank pari
passu with, our other subordinated obligations and will be subordinated
to all of our existing and future senior indebtedness, as may be defined in the
applicable prospectus supplement.
The
consolidated financial statements of DHT Maritime, Inc. (formerly Double Hull
Tankers, Inc.) and its predecessor OSG Crude appearing in DHT Maritime, Inc.’s
Annual Report on Form 20-F for the year ended December 31, 2007 and
the effectiveness of DHT Maritime, Inc.’s internal control over financial
reporting as of December 31, 2007 have been audited by Ernst & Young
LLP, independent registered public accounting firm, as set forth in their
reports thereon, included therein, and incorporated herein by reference in
reliance upon such reports given on the authority of such firm as experts in
accounting and auditing.
The
validity of the securities offered by this prospectus and certain other matters
relating to Marshall Islands law will be passed upon for us by Reeder &
Simpson P.C. Certain other legal matters relating to United States
law will be passed upon for us by Cravath, Swaine & Moore LLP, New York, New
York.
DHT
Maritime, Inc. is a Marshall Islands corporation and our principal
executive offices are located outside the United States in Jersey, the Channel
Islands. A majority of our directors and officers reside outside the
United States. In addition, a substantial portion of our assets and the assets
of our directors and officers are located outside the United
States. As a result, you may have difficulty serving legal process
within the United States upon us or any of these persons. You may
also have difficulty enforcing, both in and outside the United States, judgments
you may obtain in United States courts against us or these persons in any
action, including actions based upon the civil liability provisions of United
States federal or state securities laws. Furthermore, it is uncertain
whether the courts of the Marshall Islands would enter judgments in original
actions brought in those courts predicated on United States federal or state
securities laws.
The
following is a discussion of the material Marshall Islands and United States
federal income tax considerations relevant to an investment decision by a
“United States Holder,” as defined below, with respect to the acquisition,
ownership and disposition of our common stock. This discussion does
not purport to deal with the tax consequences of owning common stock to all
categories of investors, some of which (such as financial institutions,
regulated investment companies, real estate investment trusts, tax-exempt
organizations, insurance companies, persons holding our common stock as part of
a hedging, integrated, conversion or constructive sale transaction or a
straddle, traders in securities that have elected the mark-to-market method of
accounting for their securities, persons liable for alternative minimum tax,
persons who are investors in pass-through entities, dealers in securities or
currencies and investors whose functional currency is not the United States
dollar) may be subject to special rules.
WE
RECOMMEND THAT YOU CONSULT YOUR OWN TAX ADVISORS CONCERNING THE OVERALL TAX
CONSEQUENCES ARISING IN YOUR OWN PARTICULAR SITUATION UNDER UNITED STATES
FEDERAL, STATE, LOCAL OR FOREIGN LAW OF THE OWNERSHIP OF COMMON
STOCK.
Marshall
Islands Tax Considerations
The
following are the material Marshall Islands tax consequences of our activities
to us and stockholders of our common stock. We are incorporated in
the Marshall Islands. Under current Marshall Islands law, we are not
subject to tax on income or capital gains, and no Marshall Islands withholding
tax will be imposed upon payments of dividends by us to our
stockholders.
United
States Federal Income Tax Considerations
This
discussion is based on the Internal Revenue Code of 1986, as amended (the
“Code”), Treasury regulations issued thereunder, published administrative
interpretations of the Internal Revenue Service, or “IRS,” and judicial
decisions as of the date hereof, all of which are subject to change at any time,
possibly on a retroactive basis.
Taxation
of Operating Income: In General
Our
subsidiaries have elected to be treated as disregarded entities for U.S. federal
income tax purposes. As a result, for purposes of the discussion
below, our subsidiaries are treated as branches of us rather than as separate
corporations.
Unless
exempt from United States federal income taxation under the rules contained in
Section 883 of the Code (discussed below), a foreign corporation is subject
to United States federal income taxation on its shipping income that is treated
as derived from sources within the United States, referred to as “United States
source shipping income.” For these purposes “shipping income” means
any income that is derived from the use of vessels, from the hiring or leasing
of vessels for use on a time, voyage or bareboat charter basis, from the
participation in a pool, partnership, strategic alliance, joint operating
agreement, code sharing arrangement or other joint venture it directly or
indirectly owns or participates in that generates such income, or from the
performance of services directly related to those uses. For tax
purposes, United States source shipping income includes (i) 50% of shipping
income that is attributable to transportation that begins or ends, but that does
not both begin and end, in the United States and (ii) 100% of shipping
income that is attributable to transportation that both begins and ends in the
United States.
Shipping
income attributable to transportation exclusively between non-United States
ports will be considered to be 100% derived from sources outside the United
States. Shipping income derived from sources outside the United
States will not be subject to any United States federal income tax.
In the
absence of exemption from tax under Section 883, our gross United States
source shipping income would be subject to a 4% tax imposed without allowance
for deductions as described below. We have not, nor do we believe we
will, engage in transportation that produces income which is considered to be
100% from sources within the United States.
Exemption
of operating income from United States federal income taxation
Under
Section 883 of the Code and the regulations thereunder, we will be exempt
from United States federal income taxation on its United States source shipping
income if:
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we
are organized in a foreign country (the “country of organization”) that
grants an “equivalent exemption” to corporations organized in the United
States; and
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either:
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(A) more
than 50% of the value of our stock is owned, directly or indirectly, by
individuals who are “residents” of our country of organization or of
another foreign country that grants an “equivalent exemption” to
corporations organized in the United States, referred to as the “50%
Ownership Test,” or
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| (B) our stock is “primarily and regularly traded on an established securities market” in our country of organization, in another country that grants an “equivalent exemption” to United States corporations, or in the United States, referred to as the “Publicly-Traded Test.” |
The
Marshall Islands, the jurisdiction where we and our ship-owning subsidiaries are
incorporated, grants an “equivalent exemption” to United States
corporations. Therefore, we will be exempt from United States federal
income taxation with respect to our United States source shipping income if
either the 50% Ownership Test or the Publicly-Traded Test is met. As
a result of the IPO, it is difficult to satisfy the 50% Ownership Test due to
the widely-held ownership of our stock.
As to the
Publicly-Traded Test, the regulations under Code Section 883 provide, in
pertinent part, that stock of a foreign corporation will be considered to be
“primarily traded” on an established securities market in a country if the
number of shares of each class of stock that is traded during any taxable year
on all established securities markets in that country exceeds the number of
shares in each such class that is traded during that year on established
securities markets in any other single country. We believe that our
common stock, which is, and will continue to be, the sole class of our issued
and outstanding stock, is , and will continue to be, “primarily traded” on the
New York Stock Exchange, which is an established securities market for these
purposes.
The
Publicly-Traded Test also requires our common stock be “regularly traded” on an
established securities market. Under the regulations, our common
stock is considered to be “regularly traded” on an established securities market
if one or more classes of our stock representing more than 50% of our
outstanding shares, by both total combined voting power of all classes of stock
entitled to vote and total value, are listed on the market, referred to as the
“listing threshold.” The regulations further require that with
respect to each class of stock relied upon to meet the listing threshold,
(i) such class of stock is traded on the market, other than in minimal
quantities, on at least 60 days during the taxable year or 1/6 of the
days in a short taxable year; and (ii) the aggregate number of shares of
such class of stock traded on such market during the taxable year is at least
10% of the average number of shares of such class of stock outstanding during
such year (as appropriately adjusted in the case of a short taxable
year). We believe we satisfy, and will continue to satisfy, the
trading frequency and trading volume tests. However, even if we do
not satisfy both tests, the regulations provide that the trading frequency and
trading volume tests will be deemed satisfied if our common stock is traded on
an established market in the United States and such stock is regularly quoted by
dealers making a market in such stock. We believe this is and will
continue to be the case.
Notwithstanding
the foregoing, a class of our stock will not be considered to be “regularly
traded” on an established securities market for any taxable year in which 50% or
more of the vote and value of the outstanding shares of such class are owned,
actually or constructively under certain stock attribution rules, on more than
half the days during the taxable year by persons who each own 5% or more of the
value of such class of our outstanding stock, referred to as the “5 Percent
Override Rule.”
In order
to determine the persons who actually or constructively own 5% or more of our
stock, or “5% Stockholders,” we are permitted to rely on those persons that are
identified on Schedule 13G and Schedule 13D filings with the
Commission as having a 5% or more beneficial interest in our common
stock. In addition, an
investment
company identified on a Schedule 13G or Schedule 13D filing which is
registered under the Investment Company Act of 1940, as amended, will not be
treated as a 5% Stockholder for such purposes.
In the
event the 5 Percent Override Rule is triggered, the 5 Percent Override Rule will
nevertheless not apply if we can establish that among the closely-held group of
5% Stockholders, there are sufficient 5% Stockholders that are considered to be
“qualified stockholders” for purposes of Section 883 to preclude
non-qualified 5% Stockholders in the closely-held group from owning 50% or more
of each class of our stock for more than half the number of days during the
taxable year.
We
believe that we have satisfied and will continue to satisfy the Publicly-Traded
Test and that the 5% Override Rule has not been and will not be applicable to
us. However, no assurance can be given that this will be the case in
the future.
In any
year that the 5 Percent Override Rule is triggered with respect to us, we are
eligible for the exemption from tax under Section 883 only if we can
nevertheless satisfy the Publicly-Traded Test (which requires, among other
things, showing that the exception to the 5 Percent Override Rule applies) or if
we can satisfy the 50% Ownership Test. In either case, we would have
to satisfy certain substantiation requirements regarding the identity of our
stockholders in order to qualify for the Section 883
exemption. These requirements are onerous and there is no assurance
that we would be able to satisfy them.
To the
extent the benefits of Section 883 are unavailable, our United States
source shipping income, to the extent not considered to be “effectively
connected” with the conduct of a United States trade or business, as described
below, would be subject to a 4% tax imposed by Section 887 of the Code on a
gross basis, without the benefit of deductions. Since under the
sourcing rules described above, no more than 50% of our shipping income would be
treated as being United States source shipping income, the maximum effective
rate of United States federal income tax on its shipping income would never
exceed 2% under the 4% gross basis tax regime.
To the
extent the benefits of the Section 883 exemption are unavailable and our
United States source shipping income is considered to be “effectively connected”
with the conduct of a United States trade or business, as described below, any
such “effectively connected” United States source shipping income, net of
applicable deductions, would be subject to the United States federal corporate
income tax currently imposed at rates of up to 35%. In addition, we
may be subject to the 30% “branch profits” taxes on earnings effectively
connected with the conduct of such trade or business, as determined after
allowance for certain adjustments, and on certain interest paid or deemed paid
attributable to the conduct of our United States trade or business.
Our
United States source shipping income would be considered “effectively connected”
with the conduct of a United States trade or business only if:
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we
had, or were considered to have, a fixed place of business in the United
States involved in the earning of United States source shipping income;
and
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substantially
all of our United States source shipping income was attributable to
regularly scheduled transportation, such as the operation of a vessel that
followed a published schedule with repeated sailings at regular intervals
between the same points for voyages that begin or end in the United
States.
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We do not
have, nor will we permit circumstances that would result in having, any vessel
sailing to or from the United States on a regularly scheduled
basis. Based on the foregoing and on the expected mode of our
shipping operations and other activities, we believe that none of our United
States source shipping income is or will be “effectively connected” with the
conduct of a United States trade or business.
United
States taxation of gain on sale of vessels
Regardless
of whether we qualify for exemption under Section 883, we will not be
subject to United States federal income taxation with respect to gain realized
on a sale of a vessel, provided the sale is considered to occur outside of the
United States under United States federal income tax principles. In
general, a sale of a vessel will be considered to occur outside of the United
States for this purpose if title to the vessel, and risk of loss with respect to
the vessel, pass to the buyer outside of the United States. It is
expected that any sale of a vessel will be considered to occur outside of the
United States.
United
States Federal Income Taxation of “United States Holders”
As used
herein, the term “United States Holder” means a beneficial owner of common stock
that:
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is
an individual United States citizen or resident, a United States
corporation or other United States entity taxable as a corporation, an
estate the income of which is subject to United States federal income
taxation regardless of its source, or a trust if a court within the United
States is able to exercise primary jurisdiction over the administration of
the trust and one or more United States persons have the authority to
control all substantial decisions of the trust;
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owns
our common stock as a capital asset; and
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owns
less than 10% of our common stock for United States federal income tax
purposes.
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If a
partnership holds our common stock, the tax treatment of a partner will
generally depend upon the status of the partner and upon the activities of the
partnership. If you are a partner in a partnership holding our common
stock, we suggest that you consult your tax advisor.
Distributions
Subject
to the discussion of passive foreign investment companies, or “PFICs,” below,
any distributions made by us with respect to our common stock to a United States
Holder will generally constitute dividends to the extent of its current or
accumulated earnings and profits, as determined under United States federal
income tax principles. Distributions in excess of such earnings and
profits will be treated first as a nontaxable return of capital to the extent of
the United States Holder’s tax basis in his common stock on a dollar-for-dollar
basis and thereafter as capital gain. Because we are not a United
States corporation, United States Holders that are corporations will not be
entitled to claim a dividends received deduction with respect to any
distributions they receive from us. Dividends paid with respect to
our common stock will generally be treated as “passive income” for purposes of
computing allowable foreign tax credits for United States foreign tax credit
purposes.
Dividends
paid on our common stock to a United States Holder who is an individual, trust
or estate (a “United States Non-Corporate Holder”) will generally be treated as
“qualified dividend income” that is taxable to such United States Non-Corporate
Holder at a preferential tax rate of 15% (through 2010) provided that
(1) the common stock is readily tradable on an established securities
market in the United States (such as the New York Stock Exchange); (2) we
are not a PFIC for the taxable year during which the dividend is paid or the
immediately preceding taxable year (see discussion below); (3) the United
States Non-Corporate Holder has owned the common stock for more than
60 days in the 121-day period beginning 60 days before the date on
which the common stock becomes ex-dividend; and (4) the United States
Non-Corporate Holder is not under an obligation to make related payments with
respect to positions in substantially similar or related
property. Special rules may apply to any “extraordinary
dividend”—generally, a dividend in an amount which is equal to or in excess of
10% of a stockholder’s adjusted basis in a share of common stock—paid by
us. If we pay an “extraordinary dividend” on our common stock that is
treated as “qualified dividend income,” then any loss derived by a United States
Non-Corporate Holder from the sale or exchange of such common stock will be
treated as long-term capital loss to the extent of such
dividend. There is no assurance that any dividends paid on our common
stock will be eligible for these preferential rates in the hands of a United
States Non-Corporate Holder, although we believe that they will be so eligible
provided that we are not a PFIC, as discussed below. Any dividends
out of earnings and profits we pay which are not eligible for these preferential
rates will be taxed at ordinary income rates in the hands of a United States
Non-Corporate Holder.
In
addition, even if we are not a PFIC, under proposed legislation, dividends of a
corporation incorporated in a country without a “comprehensive income tax
system” paid to United States Non-Corporate Holders would not be eligible for
the 15% tax rate. Although the term “comprehensive income tax system”
is not defined in the proposed legislation, we believe this rule would apply to
us because we are incorporated in the Marshall Islands.
Sale,
exchange or other disposition of common stock
Provided
that we are not a PFIC for any taxable year, a United States Holder generally
will recognize taxable gain or loss upon a sale, exchange or other disposition
of our common stock in an amount equal to the difference between the amount
realized by the United States Holder from such sale, exchange or other
disposition and the United States Holder’s tax basis in such
stock. Such gain or loss will be treated as long-term capital gain or
loss if the United States Holder’s holding period is greater than one year at
the time of the sale, exchange or other disposition. Such capital
gain or loss will generally be treated as United States source income or loss,
as applicable, for United States foreign tax credit
purposes. Long-term capital gains of United States Non-Corporate
Holders are eligible for reduced rates of taxation. A United States
Holder’s ability to deduct capital losses against ordinary income is subject to
certain limitations.
PFIC
status and significant tax consequences
Special
United States federal income tax rules apply to a United States Holder that
holds stock in a foreign corporation classified as a PFIC for United States
federal income tax purposes. In particular, United States
Non-Corporate Holders will not be eligible for the 15% tax rate on qualified
dividends. In general, we will be treated as a PFIC with respect to a
United States Holder if, for any taxable year in which such holder held its
common stock, either
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at
least 75% of our gross income for such taxable year consists of passive
income (e.g., dividends, interest, capital gains and rents derived other
than in the active conduct of a rental business), or
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at
least 50% of the average value of our assets during such taxable year
produce, or are held for the production of, passive
income.
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Income
earned, or deemed earned, by us in connection with the performance of services
would not constitute passive income. By contrast, rental income would
generally constitute “passive income” unless we were treated under specific
rules as deriving our rental income in the active conduct of a trade or
business.
Cravath,
Swaine & Moore LLP (“Tax Counsel”) provided us with an opinion dated May 14,
2008 stating that it was more likely than not that we are not a
PFIC. This opinion was based on our operations and certain
representations made by us and prior representations made by OSG, including
representations that the terms of each ship management agreement and time
charter, taken as a whole, as well as certain specific terms in each agreement,
were in accordance with normal commercial practice for agreements made at arm’s
length between unrelated parties. Based on the foregoing, Tax Counsel
concluded that, although there was no legal authority directly on point, the
gross income we derived from the time chartering activities of our subsidiaries
more likely than not constituted services income, rather than rental
income. Consequently, such income more likely than not did not
constitute passive income, and the assets that we or our wholly owned
subsidiaries owned and operated in connection with the production of such
income, in particular, the vessels, more likely than not did not constitute
passive assets for purposes of determining whether we were a
PFIC. Tax Counsel stated that there was legal authority supporting
its position, consisting of case law and IRS pronouncements, concerning the
characterization of income derived from time charters as services income for
other tax purposes. However, there was no legal authority
specifically relating to the statutory provisions governing PFICs or relating to
circumstances substantially similar to that of us. In addition, the
opinion of Tax Counsel was based on representations made by us and prior
representations made by OSG that were not reviewed by the IRS. As a
result, the IRS or a court could disagree with our position. No
assurance can be given that this result will not occur. We have not
materially changed our operations since the time the opinion was given, and
believe that the representations given to Tax Counsel at the time of the opinion
remain true and accurate. We therefore believe that we have not been,
and are not currently, a PFIC, even after taking into account the new bareboat
charters with respect to the Overseas Newcastle and Overseas
London. In addition, although we intend to conduct our affairs
in a manner to avoid, to the extent possible, being classified as a PFIC with
respect to any taxable year, we cannot assure you that the nature of our
operations will not change in the future, or that we can avoid PFIC status in
the future.
As
discussed more fully below, if we were treated as a PFIC for any taxable year, a
United States Holder would be subject to different taxation rules depending on
whether the United States Holder made an election to treat us as a “Qualified
Electing Fund,” which election is referred to as a “QEF election.” As
an alternative to making a QEF election, a United States Holder should be able
to make a “mark-to-market” election with respect to our common stock, as
discussed below.
Taxation
of United States Holders making a timely QEF election
If we
were a PFIC and a United States Holder made a timely QEF election, which United
States Holder is referred to as an “Electing Holder,” the Electing Holder would
report each year for United States federal income tax purposes its pro rata
share of our ordinary earnings and our net capital gain (which gain shall not
exceed our earnings and profits for the taxable year), if any, for our taxable
year that ends with or within the taxable year of the Electing Holder,
regardless of whether or not distributions were received from us by the Electing
Holder. Any such ordinary income would not be eligible for the
preferential tax rates applicable to qualified dividend income as discussed
above. The Electing Holder’s adjusted tax basis in the common stock
would be increased to reflect taxed but undistributed earnings and
profits. Distributions of earnings and profits that had been
previously taxed would, pursuant to this election, result in a corresponding
reduction in the adjusted tax basis in the common stock and would not be taxed
again once distributed. An Electing Holder would not, however, be
entitled to a deduction for its pro rata share of any losses that we incurred
with respect to any year. An Electing Holder would generally
recognize capital gain or loss on the sale, exchange or other disposition of our
common stock. A United States Holder would make a QEF election with
respect to any year that we are a PFIC by filing one copy of IRS Form 8621
with his United States federal income tax return. If we were treated
as a PFIC for any taxable year, we would provide each United States Holder with
all necessary information in order to make the QEF election described above.
Even if a United States Holder makes a QEF election for one of our taxable
years, if we were a PFIC for a prior taxable year during which the holder was a
stockholder and for which the holder did not make a timely QEF election,
different and more adverse tax consequences would apply.
Taxation
of United States Holders making a “mark-to-market” election
Alternatively,
if we were treated as a PFIC for any taxable year and, as we believe, our stock
is treated as “marketable stock,” a United States Holder would be allowed to
make a “mark-to-market” election with respect to our common stock, provided the
United States Holder completes and files IRS Form 8621 in accordance with
the relevant instructions and related Treasury regulations. If that
election is made, the United States Holder generally would include as ordinary
income in each taxable year the excess, if any, of the fair market value of the
common stock at the end of the taxable year over such holder’s adjusted tax
basis in the common stock. The United States Holder would also be
permitted an ordinary loss in respect of the excess, if any, of the United
States Holder’s adjusted tax basis in the common stock over its fair market
value at the end of the taxable year, but only to the extent of the net amount
previously included in income as a result of the mark-to-market
election. A United States Holder’s tax basis in his common stock
would be adjusted to reflect any such income or loss amount. Gain
realized on the sale, exchange or other disposition of our common stock would be
treated as ordinary income, and any loss realized on the sale, exchange or other
disposition of the common stock would be treated as ordinary loss to the extent
that such loss does not exceed the net mark-to-market gains previously included
by the United States Holder in income.
Taxation
of United States Holders not making a timely QEF or “mark-to-market”
election
Finally,
if we were treated as a PFIC for any taxable year, a United States Holder who
does not make either a QEF election or a “mark-to-market” election for that
year, referred to as a “Non-Electing Holder,” would be subject to special rules
with respect to (1) any excess distribution (i.e., the portion of any
distributions received by the Non-Electing Holder on our common stock in a
taxable year in excess of 125% of the average annual distributions received by
the Non-Electing Holder in the three preceding taxable years, or, if shorter,
the Non-Electing Holder’s holding period for the common stock), and (2) any
gain realized on the sale, exchange or other disposition of our common
stock. Under these special rules:
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the
excess distribution or gain would be allocated ratably over the
Non-Electing Holder’s aggregate holding period for the common
stock;
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the
amount allocated to the current taxable year and any taxable year prior to
the first taxable year in which we were a PFIC during the Non-Electing
Holder’s holding period, would be taxed as ordinary income;
and
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the
amount allocated to each of the other taxable years would be subject to
tax at the highest rate of tax in effect for the applicable class of
taxpayer for that year, and an interest charge for the deemed deferral
benefit would be imposed with respect to the resulting tax attributable to
each such other taxable year.
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These
penalties would not apply to a qualified pension, profit sharing or other
retirement trust or other tax-exempt organization that did not borrow money or
otherwise utilize leverage in connection with its acquisition of our common
stock. If we were a PFIC and a Non-Electing Holder who was an
individual died while owning our common stock, such holder’s successor generally
would not receive a step-up in tax basis with respect to such
stock. Certain of these rules would apply to a United States Holder
who made a QEF election for one of our taxable years if it were a PFIC in a
prior taxable year during which the holder was a stockholder and for which the
holder did not make a QEF election.
United
States Federal Income Taxation of “Non-United States Holders”
A
beneficial owner of common stock (other than a partnership) that is not a United
States Holder is referred to herein as a “Non-United States
Holder.”
Dividends
on common stock
Non-United
States Holders generally will not be subject to United States federal income tax
or withholding tax on dividends received from us with respect to our common
stock, unless that dividend income is effectively connected with the Non-United
States Holder’s conduct of a trade or business in the United
States. If the Non-United States Holder is entitled to the benefits
of a United States income tax treaty with respect to those dividends, that
income is taxable only if it is attributable to a permanent establishment
maintained by the Non-United States Holder in the United States.
Sale,
exchange or other disposition of common stock
Non-United
States Holders generally will not be subject to United States federal income tax
or withholding tax on any gain realized upon the sale, exchange or other
disposition of our common stock, unless:
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the
gain is effectively connected with the Non-United States Holder’s conduct
of a trade or business in the United States (and, if the Non-United States
Holder is entitled to the benefits of an income tax treaty with respect to
that gain, that gain is attributable to a permanent establishment
maintained by the Non-United States Holder in the United States);
or
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the
Non-United States Holder is an individual who is present in the United
States for 183 days or more during the taxable year of disposition
and other conditions are met.
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If the
Non-United States Holder is engaged in a United States trade or business for
United States federal income tax purposes, the income from the common stock,
including dividends and the gain from the sale, exchange or other disposition of
the stock, that is effectively connected with the conduct of that trade or
business will generally be subject to regular United States federal income tax
in the same manner as discussed in the previous section relating to the taxation
of United States Holders. In addition, if you are a corporate
Non-United States Holder, your earnings and profits that are attributable to the
effectively connected income, which are subject to certain adjustments, may be
subject to an additional branch profits tax at a rate of 30%, or at a lower rate
as may be specified by an applicable income tax treaty.
Backup
Withholding and Information Reporting
In
general, dividend payments, or other taxable distributions, made within the
United States to you will be subject to information reporting requirements if
you are a non-corporate United States Holder. Such payments or
distributions may also be subject to backup withholding tax if you are a
non-corporate United States Holder and you:
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fail
to provide an accurate taxpayer identification number;
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are
notified by the IRS that you have failed to report all interest or
dividends required to be shown on your federal income tax returns;
or
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in
certain circumstances, fail to comply with applicable certification
requirements.
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Non-United
States Holders may be required to establish their exemption from information
reporting and backup withholding by certifying their status on IRS
Form W-8BEN, W-8ECI or W-8IMY, as applicable.
If you
are a Non-United States Holder and you sell our common stock to or through a
United States office of a broker, the payment of the proceeds is subject to both
United States backup withholding and information reporting unless you certify
that you are a non-United States person, under penalties of perjury, or you
otherwise establish an exemption. If you sell our common stock
through a non-United States office of a non-United States broker and the sales
proceeds are paid to you outside the United States, then information reporting
and backup withholding generally will not apply to that
payment. However, United States information reporting requirements,
but not backup withholding, will apply to a payment of sales proceeds, even if
that payment is made to you outside the United States, if you sell our common
stock through a non-United States office of a broker that is a United States
person or has some other contacts with the United States. Such
information reporting requirements will not apply, however, if the broker has
documentary evidence in its records that you are a non-United States person and
certain other conditions are met, or you otherwise establish an
exemption.
Backup
withholding tax is not an additional tax. Rather, you generally may
obtain a refund of any amounts withheld under backup withholding rules that
exceed your income tax liability by filing a refund claim with the
IRS.
We have
filed with the Commission a registration statement on Form F-3 under the
Securities Act with respect to the offer and sale of securities pursuant to this
prospectus. This prospectus, filed as a part of the registration
statement, does not contain all of the information set forth in the registration
statement or the exhibits and schedules thereto in accordance with the rules and
regulations of the Commission and no reference is hereby made to such omitted
information. Statements made in this prospectus concerning the
contents of any contract, agreement or other document filed as an exhibit to the
registration statement are summaries of all of the material terms of such
contracts, agreements or documents, but do not repeat all of their
terms. Reference is made to each such exhibit for a more complete
description of the matters involved and such statements shall be deemed
qualified in their entirety by such reference. The registration
statement and the exhibits and schedules thereto filed with the Commission may
be inspected, without charge, and copies may be obtained at prescribed rates, at
the public reference facility maintained by the Commission at its principal
office at 100 F Street, N.E., Washington, D.C. 20549. You may obtain
information on the operation of the public reference facility by calling
1-800-SEC-0330. The Commission also maintains a website at www.sec.gov that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. For further
information pertaining to the securities offered by this prospectus and DHT
Maritime, Inc., reference is made to the registration statement.
We are
subject to the information and periodic reporting requirements of the Securities
Exchange Act of 1934, as amended, and we file periodic reports and other
information with the Commission. These periodic reports and other
information are available for inspection and copying at the Commission’s public
reference facilities and the web site of the Commission referred to
above. As a “foreign private issuer,” we are exempt from the rules
under the Securities Exchange Act of 1934, as amended, prescribing the
furnishing and content of proxy statements to stockholders, but we are required
to furnish certain proxy statements to stockholders under New York Stock
Exchange rules. Those proxy statements are not expected to conform to
Schedule 14A of the proxy rules promulgated under the Securities Exchange Act of
1934, as amended. In addition, as a “foreign private issuer,” we are
exempt from the rules under the Securities Exchange Act of 1934, as amended,
relating to short swing profit reporting and liability.
The
Commission allows us to “incorporate by reference” information that we file with
it. This means that we can disclose important information to you by
referring you to those filed documents. The information incorporated
by reference is considered to be a part of this prospectus, and information that
we file later with the Commission prior to the termination of this offering will
also be considered to be part of this prospectus and will automatically update
and supersede previously filed information, including information contained in
this document.
We
incorporate by reference the documents listed below and any future filings made
with the Commission under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended: (i) Annual Report on Form 20-F for the
year ended December 31, 2007, filed with the Commission on March 12, 2008, which
contains audited consolidated financial statements for the most recent fiscal
year for which those statements have been filed, and (ii) Registration
Statement on Form 8-A, filed with the Commission on October 7,
2005.
We are
also incorporating by reference all subsequent annual reports on Form 20-F that
we file with the Commission and certain reports on Form 6-K that we furnish to
the Commission after the date of this prospectus (if they state that they are
incorporated by reference into this prospectus) until we file a post-effective
amendment indicating that the offering of the securities made by this prospectus
has been terminated. In all cases, you should rely on the later
information over different information included in this prospectus or the
prospectus supplement.
We will
provide, free of charge upon written or oral request, to each person to whom
this prospectus is delivered, including any beneficial owner of the securities,
a copy of any or all of the information that has been incorporated by reference
into this prospectus, but which has not been delivered with the prospectus.
Requests for such information should be made to us at the following
address:
26 New
Street
St.
Helier
Jersey
JE2 3RA
Channel
Islands
Phone +44
(0) 1534 639759
Email
info@dhtankers.com
You
should assume that the information appearing in this prospectus and any
accompanying prospectus supplement, as well as the information we previously
filed with the Commission and incorporated by reference, is accurate as of the
dates on the front cover of those documents only. Our business,
financial condition and results of operations and prospects may have changed
since those dates.
This
prospectus contains assumptions, expectations, projections, intentions and
beliefs about future events. When used in this document, words such
as “believe,” “intend,” “anticipate,” “estimate,” “project,” “forecast,” “plan,”
“potential,” “will,” “may,” “should,” and “expect” and similar expressions are
intended to identify forward-looking statements, but are not the exclusive means
of identifying such statements. These statements are intended as
“forward-looking statements.” We may also from time to time make
forward-looking statements in our periodic reports that we will file with the
Commission, other information sent to our security holders, and other written
materials. We caution that assumptions, expectations, projections,
intentions and beliefs about future events may and often do vary from actual
results and the differences can be material. The reasons for this
include the risks, uncertainties and factors described under the section of this
prospectus entitled “Risk Factors” on page 9 of this
prospectus.
All
statements in this document that are not statements of historical fact are
forward-looking statements. Forward-looking statements include, but
are not limited to, such matters as:
|
●
|
future
payments of dividends and the availability of cash for payment of
dividends;
|
|
|
●
|
future
operating or financial results, including with respect to the amount of
basic hire and additional hire that we may receive;
|
|
|
●
|
statements
about future, pending or recent acquisitions, business strategy, areas of
possible expansion and expected capital spending or operating
expenses;
|
|
|
●
|
statements
about tanker industry trends, including charter rates and vessel values
and factors affecting vessel supply and demand;
|
|
|
●
|
expectations
about the availability of vessels to purchase, the time which it may take
to construct new vessels or vessels’ useful lives;
|
|
|
●
|
expectations
about the availability of insurance on commercially reasonable
terms;
|
|
|
●
|
our
ability to repay our credit facility, to obtain additional financing and
to obtain replacement charters for our vessels;
|
|
|
●
|
assumptions
regarding interest rates;
|
|
|
●
|
changes
in production of or demand for oil and petroleum products, either globally
or in particular regions;
|
|
|
●
|
greater
than anticipated levels of newbuilding orders or less than anticipated
rates of scrapping of older vessels;
|
|
|
●
|
changes
in trading patterns for particular commodities significantly impacting
overall tonnage requirements;
|
|
|
●
|
change
in the rate of growth of the world and various regional
economies;
|
|
|
●
|
risks
incident to vessel operation, including discharge of pollutants;
and
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|
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●
|
unanticipated
changes in laws and regulations.
|
We
undertake no obligation to publicly update or revise any forward-looking
statements contained in this prospectus, whether as a result of new information,
future events or otherwise, except as required by law. In light of
these risks, uncertainties and assumptions, the forward-looking events discussed
in this prospectus might not occur, and our actual results could differ
materially from those anticipated in these forward-looking
statements.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
8. Indemnification of Directors and Officers.
Our
bylaws provide that we shall, subject to the limitations contained in the
Marshall Islands Business Corporation Act, as amended from time to time,
indemnify all persons whom it may indemnify pursuant thereto.
The form
of underwriting agreement, which is filed as Exhibit 1.1 to this registration
statement, provides that the underwriters to be named therein agree to indemnify
us and hold us harmless, together with each of our directors, officers and
controlling persons from and against certain liabilities, including liabilities
arising under the Securities Act of 1933, as amended. This form of
underwriting agreement also provides that such underwriters will contribute to
amounts paid or payable by such indemnified persons as a result of certain
liabilities under the Securities Act of 1933, as amended.
Item
9. Exhibits.
The
exhibits listed in the following table have been filed as part of this
registration statement.
|
Number
|
Exhibit
Description
|
||
|
1.1
|
Form
of Underwriting Agreement (for equity securities)
|
||
|
1.2
|
Form
of Underwriting Agreement (for debt securities)*
|
||
|
4.1
|
Form
of Debt Securities Indenture
|
||
|
5.1
|
Opinion
of Reeder & Simpson P.C.
|
||
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8.1
|
Tax
Opinion of Cravath, Swaine & Moore LLP
|
||
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10.1
|
Employment
Agreement of Eirik Ubøe
|
||
|
10.2
|
Amendment
to Employment Agreement of Tom R. Kjeldsberg
|
||
|
12.1
|
Computation
of Ratio of Earnings to Fixed Charges
|
||
|
23.1
|
Consent
of Ernst & Young LLP
|
||
|
23.2
|
Consent
of Reeder & Simpson P.C. (contained in Exhibit 5.1)
|
||
|
23.3
|
Consent
of Cravath, Swaine & Moore LLP (contained in Exhibit
8.1)
|
||
|
24.1
|
Powers
of Attorney (included on signature page)
|
||
|
25.1
|
Statement
of Eligibility of Trustee**
|
||
___________________
|
*
|
To
be filed as an exhibit to a post-effective amendment to this registration
statement or as an exhibit to a report of the registrant filed pursuant to
the Securities Exchange Act of 1934 and incorporated herein by
reference.
|
|
**
|
To
be filed pursuant to Section 305(b)(2) of the Trust Indenture of Act
of 1939.
|
Item
10. Undertakings.
The
undersigned registrant hereby undertakes:
|
|
(1)
|
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement, unless the
information required to be included is contained in reports filed with or
furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement or is contained in a form of
prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933,
as amended, that is part of this registration
statement:
|
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933, as amended;
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
and
|
|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement.
|
|
(2)
|
That,
for the purpose of determining any liability under the Securities Act of
1933, as amended, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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|
(3)
|
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
|
|
(4)
|
To
file a post-effective amendment to the registration statement to include
any financial statements required by Item 8.A. of Form 20-F at the start
of any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3) of the
Securities Act of 1933, as amended, need not be furnished, provided that the
registrant includes in the prospectus, by means of a post-effective
amendment, financial statements required pursuant to this paragraph (4)
and other information necessary to ensure that all other information in
the prospectus is at least as current as the date of those financial
statements. Notwithstanding the foregoing, with respect to registration
statements on Form F-3, a post-effective amendment need not be filed to
include financial statements and information required by Section 10(a)(3)
of the Securities Act of 1933, as amended, or Rule 3-19 under the
Securities Act of 1933, as amended, if such financial statements and
information are contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended, that are incorporated
by reference in the Form F-3.
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|
(5)
|
That,
for the purpose of determining liability under the Securities Act of 1933,
as amended, to any purchaser:
|
|
(i)
|
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of this registration statement as of the date the filed
prospectus was deemed part of and included in this registration
statement.
|
|
(ii)
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of this registration statement for the purpose of providing
the information required by section 10(a) of the Securities Act of 1933,
as amended, shall be deemed to be part of and included in this
registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective
date.
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|
(6)
|
That,
for the purpose of determining liability of the registrant under the
Securities Act of 1933, as amended, to any purchaser in the initial
distribution of the securities:
|
|
The
undersigned registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
|
|
(i)
|
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
|
(ii)
|
Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
|
(iii)
|
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
|
|
(iv)
|
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
|
(7)
|
That,
for purposes of determining any liability under the Securities Act of
1933, as amended, each filing of the registrant’s annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934, as amended) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
|
(8)
|
Insofar
as indemnification for liabilities arising under the Securities Act of
1933, as amended, may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933, as amended, and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such
issue.
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|
|
(9)
|
To
file an application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by
the Securities and Exchange Commission under Section 305(b)(2) of the
Trust Indenture Act.
|
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Oslo, Norway, on August 8,
2008.
|
DHT
MARITIME, INC.
|
|||
|
By:
|
/s/ Eirik
Ubøe
|
||
|
Eirik
Ubøe
|
|||
|
Chief
Financial Officer
|
|||
|
(Principal
Financial and Accounting Officer)
|
|||
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints each of Ole Jacob Diesen and Eirik Ubøe his or her true
and lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to he done, as fully for all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his substitute, may lawfully do or cause to
be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
|
Signature
|
Title
|
Date
|
|
|
/s/
Ole Jacob Diesen
|
|||
|
OLE
JACOB DIESEN
|
Chief
Executive Officer
(Principal
Executive Officer)
|
August
8, 2008
|
|
|
/s/
Eirik Ubøe
|
|||
|
EIRIK
UBØE
|
Chief
Financial Officer
(Principal
Financial and Accounting Officer)
|
August
8, 2008
|
|
|
/s/
Erik A. Lind
|
|||
|
ERIK
A. LIND
|
Chairman
of the Board
|
August
8, 2008
|
|
|
/s/
Randee Day
|
|||
|
RANDEE
DAY
|
Director
|
August
8, 2008
|
|
|
/s/
Rolf A. Wikborg
|
|||
|
ROLF
A. WIKBORG
|
Director
|
August
8, 2008
|
|
|
/s/
Donald J. Puglisi
|
|||
|
DONALD
J. PUGLISI
Managing
Director
Puglisi
& Associates
|
Authorized
Representative in the United States
|
August
8, 2008
|
Exhibit
1.1
DHT
MARITIME, INC.
___________
Shares
Common
Stock
($0.01
par value per Share)
PURCHASE
AGREEMENT
___________,
2008
PURCHASE
AGREEMENT
___________,
2008
___________
___________
___________
Ladies
and Gentlemen:
DHT Maritime, Inc., a Marshall Islands
corporation (the “Company”), proposes
to issue and sell to the underwriters named in Schedule A hereto
(the “Underwriters”) for
whom you are acting as representatives (the “Representatives”), an
aggregate of ___________ shares (the “Firm Shares”) of
common stock, $0.01 par value per share (the “Common Stock”), of
the Company and, solely for the purpose of covering over-allotments proposes to
grant to the Underwriters the option to purchase up to an additional 1,200,000
shares of Common Stock (the “Additional
Shares”). The Firm Shares and the Additional Shares are
hereinafter collectively sometimes referred to as the “Shares.” The
Shares are described in the Prospectus which is referred to below. As
used in this Agreement, the term “business day” means a
day on which the New York Stock Exchange (the “NYSE”) is open for
trading and the terms “herein,” “hereof” and “hereto” refer in each case to this
Agreement as a whole and not to any particular section, paragraph, sentence or
other subdivision of this Agreement.
The Company has prepared and filed, in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations thereunder (collectively, the
“Act”), with
the Securities and Exchange Commission (the “Commission”) a
registration statement on Form F-3 (File No. 333-___________) under the Act,
including a base prospectus, relating to securities to be sold by the Company,
including the Shares. Except where the context otherwise requires, “Registration
Statement,” as used herein, means the registration statement, as amended
at the time of such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the Underwriters (the “Effective Time”),
including (i) all documents filed as a part thereof, (ii) all material then
incorporated by reference therein and any information deemed to be part of the
registration statement at the Effective Time pursuant to Rule 430A, 430B or Rule
430C under the Act, and (iii) any registration statement filed to register the
offer and sale of Shares pursuant to Rule 462(b) under the Act (a “Rule 462(b) Registration
Statement”). Except where the context otherwise requires, the base
prospectus filed as part of the Registration Statement, in the form in which it
was most recently filed with the Commission and furnished to the Underwriters
prior to the execution of this Agreement, is referred to herein as the “Base Prospectus,” and
the Base Prospectus, as supplemented by the final prospectus supplement
specifically relating to the offer and sale of the Shares, in the form filed or
to be filed with the Commission pursuant to Rule 424(b) under the Act, is
referred to herein as the “Prospectus.” Except
where the context otherwise requires, the term “Preliminary
Prospectus” shall refer to the Base Prospectus, as supplemented by any
preliminary prospectus supplement specifically relating to the offer and sale of
the Shares and furnished to the Underwriters prior to the execution of this
Agreement or, if the Base Prospectus shall not have been supplemented by such a
preliminary prospectus supplement, such term shall refer to the Base Prospectus.
For the purposes of this Agreement, any “issuer free writing prospectus” (as
defined in Rule 433 under the Act) relating to the Shares is referred to as an
“Issuer Free Writing
Prospectus.” The Underwriters have not, and the Company has not, offered
or sold and will not offer or sell, without the consent of the Company (in the
case of the Underwriters) or the consent of the Underwriters (in the case of the
Company), any Shares by means of any Issuer Free Writing Prospectus or “free
writing prospectus” (as defined in the Rule 405 under the Act) that is or would
be required to be filed by the Underwriters with the Commission pursuant to Rule
433 under the Act, other than an Issuer Free Writing Prospectus listed on Schedule B hereto
(each, a “Permitted
Free Writing Prospectus”). The Company represents that it has
treated or agrees that it will treat each Permitted Free Writing Prospectus as
an “issuer free writing prospectus,” as defined in Rule 433, and has
complied and will comply with the requirements of Rule 433 applicable to any
Permitted Free Writing Prospectus, including timely filing with the Commission
where required, legending and record keeping . For the purposes of
clarity, the foregoing shall not restrict the Company from making any filings
required in order to comply with its reporting obligations under the Securities
Exchange Act of 1934 (the “1934 Act”) or the
rules and regulations of the Commission thereunder (the “1934 Act
Regulations”).
The Company and the Underwriters agree
as follows:
1. Sale and
Purchase. Upon the basis of the representations and warranties
and subject to the terms and conditions set forth herein, the Company agrees to
issue and sell to the respective Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule A hereto,
subject to adjustment in accordance with Section 9 hereof, in each case at a
purchase price of $___________ per share. The Company has been advised that the
Underwriters intend (i) to make a public offering of their respective portions
of the Firm Shares and (ii) initially to offer the Firm Shares upon the terms
set forth in the Prospectus. The Underwriters may from time to time
increase or decrease the public offering price after the public offering to such
extent as it may determine.
In addition, upon the basis of the
representations and warranties and subject to the terms and conditions herein
set forth, the Company hereby grants to the several Underwriters the option to
purchase, and the Underwriters shall have the right to purchase, severally and
not jointly, from the Company, ratably in accordance with the number of Firm
Shares to be purchased by each of them, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in connection with the
offering of the Firm Shares, at the same purchase price per share to be paid by
the Underwriters for the Firm Shares. This option may be exercised by the
Representatives on behalf of the several Underwriters at any time and from time
to time on or before the thirtieth day following the date of the Prospectus, by
written notice to the Company. Such notice shall set forth the aggregate number
of Additional Shares as to which the option is being exercised and the date and
time when the Additional Shares are to be delivered (any such date and time
being herein referred to as an “additional time of
purchase”); provided, however, that no additional time of purchase shall
be earlier than the “time of purchase” (as hereinafter defined) or earlier than
the second business day after the date on which the option shall have been
exercised nor later than the tenth business day after the date on which the
option shall have been exercised. If the option is exercised as to
all or any portion of the Additional Shares, each Underwriter, severally and not
jointly, agrees to purchase that proportion of the total number of Additional
Shares then being purchased which bears the same proportion to the aggregate
number of Additional Shares then being purchased as the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule A hereto bears to
the total number of Firm Shares (subject, in each case, to such adjustment as
you may determine to eliminate fractional shares), subject to adjustment in
accordance with Section 9 hereof.
- 2
- -
2. Payment and
Delivery. Payment of the purchase price for the Firm Shares
shall be made to the Company by Federal Funds wire transfer against delivery of
the certificates for the Firm Shares to the Underwriters through the facilities
of The Depository Trust Company (“DTC”) for the
respective accounts of the Underwriters. Such payment and delivery shall be made
at 10:00 A.M., New York City time, on ___________, 2008, unless another time
shall be agreed to by the Underwriters and the Company or unless postponed in
accordance with the provisions of Section 9 hereof. The time at which such
payment and delivery are to be made is sometimes referred to herein as the
“time of
purchase.” Electronic transfer of the Firm Shares shall be
made to the Underwriters at the time of purchase in such names and in such
denominations as the Underwriters shall specify.
If an additional time of purchase is
the same as the time of purchase, payment of the purchase price for any
Additional Shares then being purchased by the Underwriters shall be made at the
time of purchase to the Company by Federal Funds wire transfer against delivery
of the certificates for such Additional Shares to the Underwriters through the
facilities of DTC for the respective accounts of the Underwriters. If
an additional time of purchase is after the time of purchase, payment of the
purchase price for any Additional Shares then being purchased by the
Underwriters shall be made at such additional time of purchase to the Company by
Federal Funds wire transfer against delivery of the certificates for such
Additional Shares to the Underwriters through the facilities of DTC for the
respective accounts of the Underwriters. Electronic transfer of any Additional
Shares purchased shall in each case be made in such names and in such
denominations as you shall specify.
Deliveries of the documents described
in Section 7 hereof with respect to the purchase of the Shares shall be made at
the offices of ___________ at ___________, at 9:00 A.M., New York City time, at
or prior to the time of purchase for the Firm Shares or the additional time of
purchase for the Additional Shares, as the case may be.
3. Representations and
Warranties of the Company. The Company represents and warrants
to and agrees with the Underwriters that:
(a) the
Registration Statement has heretofore become effective under the Act or, with
respect to any Rule 462(b) Registration Statement, will be filed with the
Commission and become effective under the Act no later than 10:00 P.M., New York
City time, on the date of this Agreement; no stop order of the Commission
preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus nor any
similar order directed to any document incorporated by reference in
the Preliminary Prospectus
or the Final Prospectus, or the effectiveness of the Registration
Statement, has been issued, and no proceedings for such purpose have been
instituted or, to the Company’s knowledge, are contemplated by the
Commission.
- 3
- -
(b) the
Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase and, if
applicable, any additional time of purchase and at all times during which a
prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, will comply, in all material respects, with the requirements
of the Act; the Registration Statement did not, as of the Effective Time,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; each Preliminary Prospectus, if any, complied, at the time it was
filed with the Commission, and complies as of the date hereof, in all material
respects with the requirements of the Act; each Preliminary Prospectus
(including the documents incorporated by reference therein) and any amendment or
supplement thereto, as of its date and the date it was filed with the
Commission, and the most recent Preliminary Prospectus (including the documents
incorporated by reference therein), as then amended or supplemented (the “Pricing Prospectus”),
as of ___________ p.m. (Eastern time) on the date hereof (the “Applicable Time”), in
each case when read together with the then issued Issuer Free Writing
Prospectuses, if any, and the information included on Schedule C hereto,
did not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; the Prospectus
will comply, as of its date, the date that it is filed with the Commission, the
time of purchase and, if applicable, any additional time of purchase and at all
times during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, in all material respects, with the
requirements of the Act; at no time during the period that begins on the earlier
of the date of the Prospectus and the date the Prospectus is filed with the
Commission and ends at the later of the time of purchase or, if applicable, any
additional time of purchase, and the end of the period during which a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares did or will the Prospectus, as then amended or supplemented, include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; each Issuer Free Writing Prospectus, when
read together with the Pricing Prospectus, any other Issuer Free Writing
Prospectuses then issued and the information included on Schedule C hereto, as
of the Applicable Time, did not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the
Company makes no representation or warranty in this Section 3(b) with respect to
any statement contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus in reliance
upon and in conformity with information concerning the Underwriters and
furnished in writing by or on behalf of the Underwriters to the Company
expressly for use in the Registration Statement, such Preliminary Prospectus,
the Prospectus or such Issuer Free Writing Prospectus.
(c) The
documents incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or hereafter are
filed with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations and, when
read together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the date of the Prospectus and at
the closing time (and, if any Additional Shares are purchased, the additional
closing time with respect to such Additional Shares) did not and will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(d) the
Company has not, directly or indirectly, offered or sold any Shares by means of
any “prospectus” (within the meaning of the Act) or used any “prospectus”
(within the meaning of the Act) in connection with the offer or sale of the
Shares other than the Preliminary Prospectus and the Permitted Free Writing
Prospectuses, if any; the Company is not and will continue not to be an
“ineligible issuer” (as defined in Rule 405 under the Act) for the purposes of
Rules 164 and Rule 433 under the Act in connection with the offer or sale of the
Shares; and the Company has complied, and will comply, with the requirements of
Rules 164 and Rule 433 under the Act applicable to any Issuer Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and record-keeping;
(e) the
Company has an authorized and outstanding capitalization as set forth in the
Registration Statement, the Pricing Prospectus and the Prospectus; all of the
issued and outstanding shares of capital stock of the Company, including the
Shares, have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable federal and
state securities laws and were not issued in violation of any preemptive right,
resale right, right of first refusal or similar right; and the Shares are duly
listed and admitted and authorized for trading on the NYSE;
(f) the
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the Marshall Islands, with full corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the Pricing Prospectus and the
Prospectus and to execute and deliver this Agreement;
(g) the
Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in
the aggregate, have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company and the
subsidiaries of the Company named in Schedule D hereto
(the “Subsidiaries”) taken
as a whole (a “Material Adverse
Effect”);
(h) the
Company has no “subsidiaries” (as defined under the Act) other than the
Subsidiaries; the Company owns all of the issued and outstanding capital stock
of each of the Subsidiaries; other than the capital stock of the Subsidiaries,
the Company does not own, directly or indirectly, any shares of stock or any
other equity or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or other entity;
complete and correct copies of the articles of incorporation and bylaws of the
Company and each Subsidiary and all amendments and restatements thereto have
been delivered to the Underwriters or their counsel, and, except as set forth in
the exhibits to the Registration Statement, no changes therein will be made on
or after the date hereof or on or before the time of purchase and, if
applicable, any additional time of purchase; each Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the Marshall Islands, with full corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Registration Statement, the Pricing Prospectus and the Prospectus; each
Subsidiary is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would not,
individually or in the aggregate, have a Material Adverse Effect; each
Subsidiary is in compliance in all respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdictions, except
where the failure to be in compliance would not, individually or in the
aggregate, have a Material Adverse Effect; all of the outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, have been issued in compliance with
all applicable federal and state securities laws, were not issued in violation
of any preemptive right, resale right, right of first refusal or similar right
and are owned by the Company subject to no security interest, other encumbrance
or adverse claims; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding;
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(i) the
capital stock of the Company, including the Shares, conforms in all material
respects to the description thereof contained in the Registration Statement, the
Pricing Prospectus and the Prospectus; the certificates for the Shares comply
with the applicable requirements of the Company’s articles of incorporation and
bylaws, any applicable laws and the rules of the NYSE; and the holders of the
Shares will not be subject to personal liability for the debt or other
obligations of the Company by reason of being such holders;
(j) this
Agreement has been duly authorized, executed and delivered by the
Company;
(k) neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which with notice, lapse of time or
both would result in any breach or violation of, constitute a default under or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (i) its respective articles of incorporation or bylaws,
(ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties may be bound
or affected, (iii) any federal, state, local or foreign law, regulation or rule,
(iv) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the rules
and regulations of the NYSE) or (v) any decree, judgment or order applicable to
the Company or any of the Subsidiaries or any of their respective properties,
except in the case of the foregoing clauses (ii), (iii), (iv) and (v) above as
would not, individually or in the aggregate, have a Material Adverse
Effect;
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(l) the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with, result in any
breach or violation of or constitute a default under (or constitute any event
which with notice, lapse of time or both would result in any breach or violation
of or constitute a default under or give the holder of any indebtedness (or a
person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness under) (or result
in the creation or imposition of a lien, charge or encumbrance on any property
or assets of the Company or any Subsidiary pursuant to) (i) the articles of
incorporation or bylaws of the Company or any of the Subsidiaries, (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound or
affected, (iii) any federal, state, local or foreign law, regulation or rule,
(iv) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the rules
and regulations of the NYSE) or (v) any decree, judgment or order applicable to
the Company or any of the Subsidiaries or any of their respective properties,
except in the case of the foregoing clauses (ii), (iii), (iv) and (v) as would
not, individually or in the aggregate, have a Material Adverse
Effect;
(m) no
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization, other
non-governmental regulatory authority (including, without limitation, the NYSE),
is required in connection with the execution, delivery and performance of this
Agreement or the consummation by the Company of the transactions contemplated
hereby, other than registration of the Shares under the Act, which has been
effected (or, with respect to a Rule 462(b) Registration Statement, will be
effected in accordance herewith), any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the Shares are
being offered by the Underwriters or under the rules and regulations of the
Financial Industry Regulatory Authority, Inc. (“FINRA”) and such
approvals, authorizations, consents, orders or filings that have been obtained
or made and are in full force and effect;
(n) except
as expressly set forth in the Registration Statement, the Pricing Prospectus and
the Prospectus, (i) no person has the right, contractual or otherwise, to cause
the Company to issue or sell to it any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, (ii) no person has
any preemptive rights, resale rights, rights of first refusal or other rights to
purchase any shares of Common Stock or shares of any other capital stock of or
other equity interests in the Company and (iii) no person has the right to act
as an underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Shares, in the case of each of the foregoing clauses
(i), (ii) and (iii), whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby or
otherwise; except as expressly set forth in the Registration Statement, the
Pricing Prospectus and the Prospectus, no person has the right, contractual or
otherwise, to cause the Company to register under the Act any shares of Common
Stock or shares of any other capital stock of or other equity interests in the
Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby, whether as a result of the
filing or effectiveness of the Registration Statement or the sale of the Shares
as contemplated thereby or otherwise;
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(o) each
of the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule, and has obtained all
necessary licenses, authorizations, consents and approvals from other persons,
in order to conduct its respective business as described in the Registration
Statement, the Pricing Prospectus and the Prospectus, except where the failure
to have such licenses, authorizations, consents and approvals or to have made
such filings would not, individually or in the aggregate, have a Material
Adverse Effect; neither the Company nor any of the Subsidiaries is in violation
of, or in default under, or has received notice of any proceedings relating to
revocation or modification of any such license, authorization, consent or
approval or any filing required under any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Company or
any of the Subsidiaries, except where such violation, default, revocation or
modification would not, individually or in the aggregate, have a Material
Adverse Effect;
(p) all
legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions (including, without limitation, transactions related to, and the
existence of, “variable interest entities” within the meaning of Financial
Accounting Standards Board Interpretation No. 46), contracts, licenses,
agreements, properties, leases or documents required to be described in the
Registration Statement, the Pricing Prospectus or the Prospectus or the
documents incorporated by reference therein or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(q) there are no actions, suits, claims,
investigations or proceedings pending or, to the knowledge of the Company,
threatened to which the Company or any of the Subsidiaries or any of their
respective directors or officers is or would be a party, or of which any of
their respective properties, including any vessel named in Schedule
D hereto (each, a
“Vessel”), is or would be subject, at law or
in equity, before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency, or before or by any
self-regulatory organization or other non-governmental regulatory authority,
except any such action, suit, claim, investigation or proceeding which (i) would
not result in a judgment, decree or order having, individually or in the
aggregate, a Material Adverse Effect and would not prevent the consummation of
the transactions contemplated hereby or (ii) is required to be disclosed in the
Registration Statement and is so disclosed therein;
(r) Ernst
& Young LLP, whose audit reports on (i) the consolidated financial
statements of the Company as of December 31, 2007 and 2006 and for the period
from October 18, 2005 to December 31, 2005 (the “Company Financial
Statements”) and (ii) the combined financial statements of the
predecessor of the Company for the period from January 1, 2005 to
October 17, 2005 (the “Predecessor Financial
Statements”) are included in the Registration Statement, the Pricing
Prospectus and the Prospectus, are independent registered public accountants as
required by the Act and by the rules of the Public Company Accounting Oversight
Board;
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(s) the
Company Financial Statements and the Predecessor Financial Statements included
in the Registration Statement, the Pricing Prospectus and the Prospectus,
together with the related notes thereto, present fairly in all material respects
the financial position and the statement of operations, stockholders’ equity and
cash flows of the Company and its predecessor, as the case may be, as of the
dates indicated and the results of operations and cash flows of the Company and
its predecessor, as the case may be, for the periods specified and have been
prepared in compliance with the requirements of the Act and the 1934 Act, and in
conformity with United States generally accepted accounting principles (“GAAP”) applied on a
consistent basis during the periods involved; all pro forma financial statements
or data included in the Registration Statement, the Pricing Prospectus or the
Prospectus and indicated as being such comply with the requirements of
Regulation S-X of the Act, including, without limitation, Article 11 thereof,
and the assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used therein are
appropriate to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements and data; the other
historical financial and related statistical data set forth in the Registration
Statement, the Pricing Prospectus or the Prospectus are accurately and fairly
presented and prepared on a basis consistent with the financial statements and
books and records of the Company or its predecessor, as the case may be; there
are no financial statements (historical or pro forma) that are required to be
included in the Registration Statement, the Pricing Prospectus or the Prospectus
(including, without limitation, as required by Rules 3-12 or 3-05 or Article 11
of Regulation S-X under the Act) that are not included as required; neither the
Company nor any of the Subsidiaries has any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not
disclosed in the Registration Statement, the Pricing Prospectus and the
Prospectus; and all disclosures contained in the Registration Statement, the
Pricing Prospectus or the Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the Commission) comply with
Regulation G of the 1934 Act and Item 10 of Regulation S-K under the Act, to the
extent applicable;
(t) subsequent
to the time of execution of this Agreement or, if earlier, the respective dates
as of which information is given in the Registration Statement, the Pricing
Prospectus and the Prospectus (in each case excluding any amendments or
supplements thereto made after the execution of this Agreement), there has not
been (i) any material adverse change, or any development involving a prospective
material adverse change, in the business, properties, financial condition,
results of operations or prospects of the Company and the Subsidiaries taken as
a whole, (ii) any obligation, direct or contingent (including any off-balance
sheet obligations), incurred by the Company or any Subsidiary, which is material
to the Company and the Subsidiaries taken as a whole, (iii) any change in the
capital stock or outstanding indebtedness of the Company or any Subsidiary or
(iv) any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company;
(u) the
Company has obtained for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”),
in the form set forth as Exhibit A hereto, of
each of its directors and officers named in Schedule E
hereto;
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(v) the
Company is a “foreign private issuer” (as defined in Rule 405) of the
Act;
(w) the
Company is not and, after giving effect to the offer and sale of the Shares and
at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, will not be an “investment
company” or an entity “controlled” by an “investment company,” as such terms are
defined in the Investment Company Act of 1940, as amended (the “Investment Company
Act”) or a “passive foreign investment company” or a “controlled foreign
corporation,” as such terms are defined in the Internal Revenue Code of 1986, as
amended (the “Internal
Revenue Code”);
(x) the
Company and each of the Subsidiaries has good and marketable title to all
property (real and personal), if any, described in the Registration Statement,
the Pricing Prospectus or the Prospectus as being owned by each of them, free
and clear of all liens, claims, security interests or other encumbrances with
such exceptions as are not material and do not interfere with the intended use
to be made of such property by the Company or its Subsidiaries as described in
the Registration Statement, the Pricing Prospectus and the Prospectus; and all
the property described in the Registration Statement, the Pricing Prospectus or
the Prospectus as being held under lease by the Company or a Subsidiary is held
thereby under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the intended use to be made of such
property by the Company or its Subsidiaries as described in the Registration
Statement, the Pricing Prospectus and the Prospectus;
(y) the
Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), trade names, service
names, copyrights, trade secrets and other proprietary information described in
the Registration Statement, the Pricing Prospectus or the Prospectus as being
owned or licensed by them or which are necessary for the conduct of their
respective businesses as currently conducted or as proposed to be conducted,
except where the failure to own, license or have such rights would not,
individually or in the aggregate, have a Material Adverse Effect (collectively,
“Intellectual
Property”); (i) there are no third parties who have or, to the Company’s
knowledge, will be able to establish rights to any Intellectual Property, except
for, and to the extent of, the ownership rights of the owners of the
Intellectual Property is licensed to the Company; (ii) to the Company’s
knowledge, there is no infringement by third parties of any Intellectual
Property; (iii) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others challenging the Company’s rights in
or to any Intellectual Property, and the Company is unaware of any facts which
could form a reasonable basis for any such action, suit, proceeding or claim;
(iv) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the validity, enforceability or
scope of any Intellectual Property, and the Company is unaware of any facts
which could form a reasonable basis for any such action, suit, proceeding or
claim; (v) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company or any Subsidiary
infringes or otherwise violates any patent, trademark, trade name, service name,
copyright, trade secret or other proprietary rights of others, and the Company
is unaware of any facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (vi) to the Company’s knowledge, there is no patent
or patent application that contains claims that interfere with the issued or
pending claims of any of the Intellectual Property; (viii) to the Company’s
knowledge, there is no prior art that may render any patent application owned by
the Company or any Subsidiary of the Intellectual Property unpatentable that has
not been disclosed to the U.S. Patent and Trademark Office;
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(z) neither
the Company nor any of the Subsidiaries is engaged in any unfair labor practice;
except for matters which would not, individually or in the aggregate, have a
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint
pending or, to the Company’s knowledge, threatened against the Company or any of
the Subsidiaries before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under collective bargaining agreements
is pending or, to the Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened
against the Company or any of the Subsidiaries and (C) no union representation
dispute currently existing concerning the employees of the Company or any of the
Subsidiaries, and (ii) to the Company’s knowledge, (A) no union organizing
activities are currently taking place concerning the employees of the Company or
any of the Subsidiaries and (B) there has been no violation of any federal,
state, local or foreign law relating to discrimination in the hiring, promotion
or pay of employees, any applicable wage or hour laws or any provision of the
Employee Retirement Income Security Act of 1974 (“ERISA”) or the rules
and regulations promulgated thereunder concerning the employees of the Company
or any of the Subsidiaries;
(aa) each
of the Company and the Subsidiaries and their respective properties, assets and
operations is in compliance with, and each of the Company and the Subsidiaries
holds all permits, authorizations and approvals required under, Environmental
Laws (as hereinafter defined), except to the extent that failure to so comply or
to hold such permits, authorizations or approvals would not, individually or in
the aggregate, have a Material Adverse Effect; there are no past, present or, to
the Company’s knowledge, reasonably anticipated future events, conditions,
circumstances, actions, omissions or plans that could reasonably be expected to
give rise to any material costs or liabilities to the Company or any Subsidiary
under, or to materially interfere with or prevent compliance by the Company or
any Subsidiary with, Environmental Laws; except as would not, individually or in
the aggregate, have a Material Adverse Effect, neither the Company nor any of
the Subsidiaries (i) has received any notice that it is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party to or
affected by any pending or, to the Company’s knowledge, threatened action, suit
or proceeding, (iv) is bound by any judgment, decree or order or (v) has entered
into any written indemnification or settlement agreement, in each case relating
to any alleged violation of any Environmental Law or any actual or alleged
release or threatened release or cleanup at any location of any Hazardous
Materials (as hereinafter defined) (as used herein, “Environmental Law”
means any applicable federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement or common law (including any
applicable regulations and standards adopted by the International Maritime
Organization) relating to health, safety or the protection, cleanup or
restoration of the environment or natural resources, and “Hazardous Materials”
means any material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that in relevant form and concentration
is regulated by or may give rise to liability under any Environmental
Law);
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(bb) the
Subsidiaries have arranged for the technical manager of the Vessels (the “Technical Manager”)
to conduct a periodic review of the effect of the Environmental Laws on their
respective businesses, operations and properties for the purposes of identifying
and evaluating associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for cleanup or compliance with
the Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties);
(cc) all
income and other material tax returns required to be filed by the Company or any
of the Subsidiaries have been filed, and all taxes and other material
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been timely paid, other
than those being contested in good faith and for which adequate reserves have
been provided;
(dd) the Company and the Subsidiaries
maintain or have caused the Technical Manager to maintain for its or their
benefit, insurance or a membership in a mutual protection and indemnity
association covering its properties, operations, personnel and businesses as
deemed adequate by the Company; such insurance or membership insures or will
insure against such losses and risks to an extent which is adequate in
accordance with customary industry practice to protect the Vessels and, in the
case of insurance or a membership maintained by or for the benefit of the
Company and the Subsidiaries, their businesses; any such insurance or membership
maintained by or for the benefit of the Company and its Subsidiaries is and will
be fully in force at the time of purchase and, if applicable, any
additional time of purchase; there
are no material claims by the Company or any Subsidiary under any insurance
policy or instrument as to which any insurance company or mutual protection and
indemnity association is denying liability or defending under a reservation of
rights clause; neither the Company nor any of the Subsidiaries is currently
required to make any material payment, or
is aware of any facts that would require the Company or any Subsidiary to make
any material payment, in respect of a call by, or a contribution
to, any mutual protection and indemnity association; and neither the Company nor
any Subsidiary has reason to believe that it will not be able to renew or cause
to be renewed for its benefit any such insurance or membership in a mutual
protection and indemnity association as and when such insurance or membership
expires or is
terminated;
(ee) since the date of the last audited
Company Financial Statements included in the Registration Statement, the
Pricing Prospectus and the Prospectus, (i) there has not been a
material partial loss or total loss of or to any of the Vessels, whether actual
or constructive, (ii) no Vessel has been arrested or requisitioned for title or
hire and (iii) neither
the Company nor any of the Subsidiaries has sustained any material loss or
interference with its respective business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree;
(ff) none
of the contracts or agreements filed as an exhibit to the Registration Statement
has been terminated, amended, modified, supplemented or waived; neither the Company nor any Subsidiary
has sent or received any communication regarding the termination, amendment,
modification, supplementation or waiver of, or an intention to terminate, amend,
modify, supplement or waive, or not to consummate any transaction contemplated
by, any such contract or agreement; and no such termination, amendment,
modification, supplementation or waiver, or intention to terminate, amend, modify, supplement
or waive, or not to consummate any transaction contemplated by, any such contract or agreement
has been threatened by the Company
or any Subsidiary or, to the Company’s knowledge, any other party to any such
contract or agreement;
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(gg) the
Company and each of the Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(hh) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the 1934
Act); such disclosure controls and procedures are designed to ensure that
material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s Chief Executive Officer and its
Chief Financial Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for which they
were established; the Company’s auditors and Board of Directors of the Company
have been advised of: (i) any significant deficiencies and material weaknesses
in the design or operation of internal controls which are reasonably likely to
adversely affect the Company’s ability to record, process, summarize, and report
financial data; and (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal
controls; to date, the Company’s auditors have not identified any material
weaknesses in internal controls; since the date of the most recent evaluation of
such disclosure controls and procedures, there have been no changes in internal
controls or in other factors within control of the Company that have materially
affected, or are reasonably likely to materially affect, the Company’s internal
controls; and the Company, the Subsidiaries and their respective officers and
directors, in their capacities as such, are each in compliance in all material
respects with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated thereunder that are applicable to the Company, the
Subsidiaries or such officers and directors, including Section 402 related to
loans and Sections 302 and 906 related to certifications;
(ii) the
Company has not, directly or indirectly, including through any Subsidiary,
extended credit, arranged to extend credit, or renewed any extension of credit,
in the form of a personal loan, to or for any director or executive officer of
the Company, or to or for any family member or affiliate of any director or
executive officer of the Company;
(jj) each
“forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the 1934 Act) contained in the Registration Statement, the
Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus has
been made with a reasonable basis and has been disclosed in good
faith;
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(kk) all
statistical or market-related data included in the Registration Statement, the
Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus are
based on or derived from sources that the Company believes to be reliable and
accurate, and the Company has obtained the written consent to the use of such
data from such sources to the extent required;
(ll) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder (the “Foreign Corrupt Practices
Act”), including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of
anything of value to any “foreign official” (as such term is defined in the
Foreign Corrupt Practices Act) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the
Foreign Corrupt Practices Act; and the Company, the Subsidiaries and, to the
Company’s knowledge, the affiliates of the Company have conducted their
businesses in compliance with the Foreign Corrupt Practices Act and have
instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance
therewith;
(mm) the
operations of the Company, the Subsidiaries and the Vessels are and have been
conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes, rules and regulations of all
jurisdictions and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency that, in each case,
are applicable to the Company, any of the Subsidiaries and any of the Vessels
(collectively, the “Money Laundering
Laws”); and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator or non-governmental
authority involving the Company, any of the Subsidiaries or any of the Vessels
with respect to the Money Laundering Laws is pending or, to the Company’s
knowledge, threatened;
(nn) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is currently subject to any United States sanctions administered by
the Office of Foreign Assets Control of the United States Treasury Department
(“OFAC”);
(oo) no
Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the
Company, except as described in the Registration Statement, the Pricing
Prospectus and the Prospectus; all dividends and other distributions declared
and payable on the shares of Common Stock of the Company and on the capital
stock of each Subsidiary may under the current laws and regulations of the
Marshall Islands be paid in United States dollars and freely transferred out of
the Marshall Islands; and all such dividends and other distributions are not
subject to withholding or other taxes under the current laws and regulations of
the Marshall Islands and are otherwise free and clear of any withholding or
other tax and may be declared and paid without the necessity of obtaining any
consents, approvals, authorizations, orders licenses, registrations, clearances
and qualifications of or with any court or governmental agency or body or any
stock exchange authorities in the Marshall Islands;
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(pp) except
pursuant to this Agreement, neither the Company nor any of the Subsidiaries has
incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby or by the Registration Statement, the
Pricing Prospectus and the Prospectus;
(qq) neither
the Company nor any of the Subsidiaries nor, to the Company’s knowledge, any of
their respective directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has constituted or
might reasonably be expected to cause or result in, under the 1934 Act or
otherwise, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(rr) to
the Company’s knowledge, there are no affiliations or associations between (i)
any member of FINRA and (ii) the Company or any of the Company’s officers,
directors or 5% or greater securityholders or any beneficial owner of the
Company’s unregistered equity securities that were acquired at any time on or
after the 180th day immediately preceding the date the Registration Statement
was initially filed with the Commission, except as set forth in the Registration
Statement, the Pricing Prospectus and the Prospectus; and
(ss) The
Registration Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject
of a pending proceeding under Section 8A of the 1933 Act in connection with the
offering of the Shares.
In addition, any certificate signed by
any officer of the Company and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Shares shall be deemed to be
a representation and warranty by the Company, as to matters covered thereby, to
the Underwriters.
4. Certain Covenants of the
Company. The Company hereby agrees:
(a) to
furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky
laws of such states or other jurisdictions as the Underwriters may reasonably
designate and to maintain such qualifications in effect so long as may be
required for the distribution of the Shares; provided, however, that the
Company shall not be required to qualify as a foreign corporation or subject
itself to taxation in any such jurisdiction or consent to the service of process
under the laws of any such jurisdiction (except service of process with respect
to the offering and sale of the Shares); and to promptly advise the Underwriters
of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for offer or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
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(b) to
make available to the Underwriters in New York City, as soon as practicable
after the date of this Agreement, and thereafter from time to time to furnish to
the Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments or
supplements thereto after the date of this Agreement) as the Underwriters may
request for the purposes contemplated by the Act; in case the Underwriters are
required to deliver (whether physically or through compliance with Rule 172
under the Act or any similar rule), in connection with the sale of the Shares, a
prospectus after the nine-month period referred to in Section 10(a)(3) of the
Act, the Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the Prospectus as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of
the Act;
(c) if,
at the time this Agreement is executed and delivered, it is necessary for any
post-effective amendment to the Registration Statement or a Rule 462(b)
Registration Statement to be filed with the Commissions and become effective
before the Shares may be sold, the Company will use its best efforts to cause
such post-effective amendment or such Rule 462(b) Registration Statement to be
filed and become effective, and will pay any fees in accordance with the Act as
soon as possible, and the Company will advise the Underwriters promptly and, if
requested by the Underwriters, will confirm such advice in writing, (i) when
such post-effective amendment or such Rule 462(b) Registration Statement has
become effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when
the Prospectus is filed with the Commission pursuant to Rule 424(b) under the
Act; the Company will effect the filings required under Rule 424(b), in the
manner and within the time period required by Rule 424(b) (without reliance on
Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus;
(d) to
advise the Underwriters promptly, and, if requested by the Underwriters, to
confirm such advice in writing, of any request by the Commission for amendments
or supplements to the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order, suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus and, if the Commission should
enter a stop order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus, the Prospectus
or any Issuer Free Writing Prospectus, to use its best efforts to obtain the
lifting or removal of such order as soon as possible; to advise the Underwriters
promptly of any proposal to amend or supplement the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and
to provide the Underwriters and their counsel copies of any such documents for
review and comment a reasonable amount of time prior to any proposed filing and
to file no such amendment or supplement to which the Underwriters shall
reasonably object in writing;
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(e) subject
to Section 4(d) hereof, to file promptly all reports and documents and any
information statement required to be filed by the Company with the Commission in
order to comply with the 1934 Act for so long as the delivery of a prospectus is
required by the Act (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares; and,
during such period, to provide the Underwriters, for their review and comment,
with a copy of such reports and statements and other documents to be filed by
the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such
period a reasonable amount of time prior to any proposed filing, and to file no
such report, statement or document to which the Underwriters shall reasonably
object in writing; and to promptly notify the Underwriters of such
filing;
(f) to
advise the Underwriters promptly of the happening of any event known to the
Company within the period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, which event could
require the making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, and,
during such time, subject to Section 4(d) hereof, to prepare and furnish, at the
Company’s expense, to the Underwriters promptly such amendments or supplements
to such Prospectus as may be necessary to reflect any such change;
(g) to
furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including a consolidated balance sheet and statements of
income, stockholders’ equity and cash flow of the Company and the Subsidiaries
for such fiscal year, accompanied by a copy of the certificate or report thereon
of nationally recognized independent certified public accountants duly
registered with the Public Company Oversight Accounting Board);
(h) to
furnish to the Underwriters one copy of the Registration Statement, as initially
filed with the Commission, and of all amendments thereto, including, if
requested, all exhibits thereto;
(i) to
furnish to the Underwriters promptly for a period of three years from the date
of this Agreement (i) copies of any reports, proxy statements, or other
communications which the Company shall send to its stockholders, (ii) copies of
all annual, quarterly and current reports filed with or furnished to the
Commission on Forms 20-F or 6-K, or such other similar forms as may be
designated by the Commission and (iii) copies of documents or reports filed with
any national securities exchange on which any class of securities of the Company
is listed; provided, however, that any
information or documents filed with or furnished to the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval System shall be considered
furnished for the purposes of this Section 4(i);
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(j) for
a period of 90 days after the date hereof (the “Lock-Up Period”),
without the prior written consent of the Representatives, not to (i) sell, offer
to sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the 1934 Act and
the rules and regulations of the Commission promulgated thereunder, with respect
to, any Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar to
Common Stock, (ii) file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock, (iii)
enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock or any such securities,
whether any such transaction is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (iv) publicly announce an
intention to effect any transaction specified in clause (i), (ii) or (iii),
except, in each case, for (A) the registration of the Shares and the sales to
the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon
the exercise of options or warrants disclosed as outstanding in the Registration
Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of
employee stock options not exercisable during the Lock-Up Period pursuant to
stock option plans described in the Registration Statement, the Pricing
Prospectus and the Prospectus; provided, however, that if (a)
during the period that begins on the date that is fifteen (15) calendar days
plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (b) prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Section
4(j) shall continue to apply until the expiration of the date that is fifteen
(15) calendar days plus three (3) business days after the date on which the
issuance of the earnings release or the material news or material event
occurs;
(k) prior
to the time of purchase, to issue no press release or other communication
directly or indirectly and hold no press conferences with respect to the Company
or any Subsidiary, the financial condition, results of operations, business,
properties, assets, or liabilities of the Company or any Subsidiary or the
offering of the Shares, without the Underwriters’ prior consent;
(l) not,
at any time at or after the execution of this Agreement, to directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act) or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, other than the Registration
Statement and the then most recent Prospectus;
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(m) not
to, and to cause its Subsidiaries not to, take, directly or indirectly, any
action designed, or which has constituted or might reasonably be expected to
cause or result in, under the 1934 Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares;
(n) to use its reasonable best efforts either
(i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to
maintain the listing of, the Shares on any other national securities exchange
registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the
quotation, and to maintain the quotation of, the Shares in an automated
interdealer quotation system of a national securities association registered
pursuant to Section 15A(a) of the 1934 Act;
(o) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock; and
(p) to
apply the net proceeds received by it from the sale of the Shares in the manner
described in the Prospectus under “Use of Proceeds”.
5. Covenant to Pay
Costs. The Company agrees to pay all costs, expenses, fees and
taxes in connection with (i) the preparation and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the registration, issue, sale
and delivery of the Shares including any stock or transfer taxes and stamp or
similar duties payable upon the sale, issuance or delivery of the Shares to the
Underwriters, (iii) the qualification of the Shares for offering and sale
under state or foreign laws and the determination of their eligibility for
investment under state or foreign law (including the legal fees and filing fees
and other disbursements of counsel for the Underwriters incurred in connection
with such qualifications and determinations) and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (iv) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on the NYSE and any registration
thereof under the 1934 Act, (v) any filing for review of the public offering of
the Shares by FINRA, including the legal fees and filing fees and other
disbursements of counsel to the Underwriters relating to FINRA matters,
(vi) the fees and disbursements of any transfer agent or registrar for the
Shares, (vii) unless otherwise agreed in writing, the costs and expenses of
the Company relating to presentations or meetings undertaken in connection with
the marketing of the offering and sale of the Shares to prospective investors
and the Underwriters’ sales forces, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations, travel, lodging and other expenses incurred by the officers of
the Company and any such consultants, and the cost of any aircraft chartered in
connection with any road show and (ix) the performance of the Company’s
other obligations hereunder.
6. Reimbursement of
Underwriters’ Expenses. If the Shares are not delivered for
any reason, the Company agrees that it shall, in addition to paying the amounts
described in Section 5 hereof, reimburse the Underwriters for all of their
properly documented out-of-pocket expenses, including the reasonable fees and
disbursements of their counsel.
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7. Conditions of Underwriters’
Obligations. The obligations of the Underwriters hereunder are
subject to the accuracy of the representations and warranties on the part of the
Company on the date hereof and at the time of purchase and, if applicable, any
additional time of purchase, the performance by the Company of each of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) The
Company shall furnish to the Underwriters at the time of purchase and, if
applicable, any additional time of purchase an opinion of Cravath, Swaine &
Moore LLP, special United States counsel for the Company, addressed to the
Underwriters and dated the time of purchase or the additional time of purchase,
as the case may be, substantially in the form set forth in Exhibit B
hereto.
(b) The
Company shall furnish to the Underwriters at the time of purchase and, if
applicable, any additional time of purchase a negative assurance letter of
Cravath, Swaine & Moore LLP, special United States counsel for the Company,
addressed to the Underwriters and dated the time of purchase or the additional
time of purchase, as the case may be, substantially in the form set forth in
Exhibit C
hereto.
(c) The
Company shall furnish to the Underwriters at the time of purchase and, if
applicable, any additional time of purchase an opinion of Cravath, Swaine &
Moore LLP, special United States counsel for the Company, as to certain tax
matters, addressed to the Underwriters and dated the time of purchase or the
additional time of purchase, as the case may be, substantially in the form set
forth in Exhibit
D hereto.
(d) The
Company shall furnish to the Underwriters at the time of purchase and, if
applicable, any additional time of purchase an opinion of Reeder & Simpson,
P.C., Marshall Islands counsel for the Company, addressed to the Underwriters
and dated the time of purchase or the additional time of purchase, as the case
may be, substantially in the form set forth in Exhibit E
hereto.
(e) The
Underwriters shall have received from Ernst & Young LLP letters dated,
respectively, the date of this Agreement, the time of purchase and, if
applicable, any additional time of purchase and addressed to the Underwriters,
in the forms heretofore approved by the Representatives.
(f) The
Underwriters shall have received at the time of purchase and, if applicable, any
additional time of purchase the favorable opinion and negative assurance letter
of ___________, counsel for the Underwriters, dated the time of purchase or the
additional time of purchase, as the case may be, in form and substance
satisfactory to the Representatives.
(g) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which the Underwriters reasonably object in
writing.
(h) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act at or before 5:30 P.M., New York City time, on the second full
business day after the date of this Agreement and any Rule 462(b) Registration
Statement required by the Act in connection with the offer and sale of the
Shares shall have been filed and become effective no later than 10:00 P.M., New
York City time, on the date of this Agreement.
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(i) Prior
to and at the time of purchase and, if applicable, any additional time of
purchase, (i) no stop order of the Commission preventing or suspending the
use of any Preliminary Prospectus or Issuer Free Writing Prospectus, or the
effectiveness of the Registration Statement, shall have been issued, and no
proceedings for such purpose shall have been instituted; (ii) the
Registration Statement and all amendments thereto shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
(iii) the Pricing Prospectus and all supplements and amendments thereto,
when read together with the then issued Issuer Free Writing Prospectuses, if
any, and the information included on Schedule C hereto,
shall not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; (iv) the
Prospectus and all supplements and amendments thereto shall not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and (v) the Issuer Free Writing
Prospectuses, if any, when read together with the Pricing Prospectus and the
information included on Schedule C hereto,
shall not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(j) Between
the time of execution of this Agreement and the time of purchase or additional
time of purchase, if applicable, (i) there shall not have occurred or
become known any material adverse change, or any development involving a
prospective material adverse change, in the business, properties, financial
condition, results of operations or prospects of the Company and the
Subsidiaries taken as a whole and (ii) no transaction which is material and
adverse to the Company and the Subsidiaries taken as a whole shall have been
entered into by the Company or any of the Subsidiaries.
(k) The
Company will, at the time of purchase and, if applicable, any additional time of
purchase, deliver to the Underwriters a certificate of its Chief Executive
Officer and its Chief Financial Officer, dated the time of purchase or the
additional time of purchase, as the case may be, in the form attached as Exhibit F
hereto.
(l) The
Representatives shall have received each of the signed Lock-Up Agreements
referred to in Section 3(u) hereof, and each such Lock-Up Agreement shall be in
full force and effect at the time of purchase.
(m) The
Company shall have furnished to the Underwriters such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement, the Pricing Prospectus, the Prospectus and any Issuer
Free Writing Prospectus as of the time of purchase and, if applicable, any
additional time of purchase as the Underwriters may reasonably
request.
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(n) The
Shares shall be listed and admitted and authorized for trading on the
NYSE.
(o) FINRA
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
(p) Each
Vessel shall be owned directly by a Subsidiary free and clear of all liens,
claims, security interests or other encumbrances, except such as are described
in the Registration Statement, the Pricing Prospectus and the Prospectus and
such as are not material and do not interfere with the intended use to be made
of such Vessel as described in the Registration Statement, the Pricing
Prospectus and the Prospectus.
8. Effective Date of Agreement;
Termination. This Agreement shall become effective when the
parties hereto have executed and delivered this Agreement. The obligations of
the Underwriters hereunder shall be subject to termination in the absolute
discretion of the Representatives if (x) since the time of execution of this
Agreement or the earlier respective dates as of which information is given in
the Registration Statement, the Pricing Prospectus, the Prospectus and any
Permitted Free Writing Prospectus, there has been any material adverse change or
any development involving a prospective material adverse change in the business,
properties, management, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole which would, in the judgment of
the Representatives, make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Pricing Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, (in each case
excluding any amendments or supplements thereto made after the execution of this
Agreement) or (y) since the time of execution of this Agreement, there shall
have occurred: (i) a suspension or material limitation in trading in securities
generally on the NYSE or NASDAQ; (ii) a suspension or material limitation in
trading in the Company’s securities on the NYSE; (iii) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war (it being
understood that, with respect to matters relating to the current conflicts in
Afghanistan and Iraq occurring within Afghanistan and Iraq, respectively, this
clause (iv) shall apply only to an escalation of hostilities or a declaration by
the United States of a national emergency or a war which has not heretofore been
declared); or (v) any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Pricing Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, (in each case
excluding any amendments or supplements thereto made after the execution of this
Agreement) or (z) since the time of execution of this Agreement, there shall
have occurred any downgrading, or any notice or announcement shall have been
given or made of (i) any intended or potential downgrading or (ii) any watch,
review or possible change that does not indicate an affirmation or improvement
in the rating accorded any securities of or guaranteed by the Company or any
Subsidiary by any “nationally recognized statistical rating organization,” as
that term is defined in Rule 436(g)(2) under the Act.
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If the Representatives elect to
terminate this Agreement as provided in this Section 8, the Company shall be
notified promptly in writing. If the sale to the Underwriters of the Shares, as
contemplated by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement, or if such sale is not carried out
because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5, 6 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
9. Increase in Underwriters’
Commitments. Subject to Sections 7 and 8 hereof, if any
Underwriter (the “Defaulting
Underwriter”) shall default in its obligation to take up and pay for the
Shares to be purchased by it hereunder and if the aggregate number of Shares
which the Defaulting Underwriter shall have agreed but failed to take up and pay
for does not exceed 10% of the total number of Shares, each non-defaulting
Underwriter (each, a “Non-Defaulting
Underwriter” and collectively, the “Non-Defaulting
Underwriters”) shall take up and pay for (in addition to the aggregate
number of Shares such Non-Defaulting Underwriter is obligated to purchase
pursuant to Section 1 hereof) such Non-Defaulting Underwriter’s pro rata share
(based on the number of Shares that such Non-Defaulting Underwriter agreed to
purchase pursuant to Section 1 hereof) of the Shares agreed but failed to be
taken up and paid for by the Defaulting Underwriter.
Without relieving the Defaulting
Underwriter from its obligations hereunder, the Company agrees with the
Non-Defaulting Underwriters that it will not sell any Shares hereunder unless
all of the Shares are purchased by the Non-Defaulting Underwriters (or by
substituted Underwriters selected by the Non-Defaulting Underwriters with the
approval of the Company or selected by the Company with the approval of the
Non-Defaulting Underwriters).
If a new Underwriter or Underwriters
are substituted by the Non-Defaulting Underwriters for the Defaulting
Underwriter in accordance with the foregoing provision, the Non-Defaulting
Underwriters or the Company shall have the right to postpone the time of
purchase for a period not exceeding five business days in order that any
necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term “Underwriter” as used in this
Agreement shall refer to and include any underwriter substituted under this
Section 9 with like effect as if such substituted underwriter had originally
been named as an Underwriter in Schedule A
hereto.
If the aggregate number of Shares which
the Defaulting Underwriter agreed to purchase but failed to take up and pay for
exceeds 10% of the total number of Shares which the Underwriters agreed to
purchase hereunder, and if neither the Non-Defaulting Underwriters nor the
Company shall make arrangements within the five business day period stated above
for the purchase of all the Shares which the Defaulting Underwriter agreed to
purchase hereunder but failed to take up and pay for, this Agreement shall
terminate without further act or deed and without any liability on the part of
the Company to the Non-Defaulting Underwriters and without any liability on the
part of any Non-Defaulting Underwriter to the Company. Nothing in
this paragraph, and no action taken hereunder, shall in any way relieve the
Defaulting Underwriter from any liability in respect of any default of such
Defaulting Underwriter under this Agreement.
- 23
- -
10. Indemnity and
Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls such Underwriter
within the meaning of Section 15 of the Act or Section 20 of the 1934 Act, and
the successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Underwriters or any such person
may incur under the Act, the 1934 Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or arises out of
or is based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in, and in conformity with information concerning
the Underwriters furnished in writing by or on behalf of the Underwriters to the
Company expressly for use in, the Registration Statement or arises out of or is
based upon any omission or alleged omission to state a material fact in the
Registration Statement in connection with such information, which material fact
was not contained in such information and which material fact was required to be
stated in such Registration Statement or was necessary to make such information
not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for the purpose of
this Section 10 being deemed to include any Preliminary Prospectus, the
Prospectus and any amendments or supplements to the foregoing), in any Issuer
Free Writing Prospectus, in any “issuer information” (as defined in Rule 433
under the Act) of the Company, which “issuer information” is required to be, or
is, filed with the Commission, or in any Prospectus together with any
combination of one or more Issuer Free Writing Prospectuses, if any, or arises
out of or is based upon any omission or alleged omission to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except, with respect
to such Prospectus or Issuer Free Writing Prospectus, insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by
or on behalf of such Underwriter to the Company expressly for use in, such
Prospectus or Issuer Free Writing Prospectus or arises out of or is based upon
any omission or alleged omission to state a material fact in such Prospectus or
Issuer Free Writing Prospectus in connection with such information, which
material fact was not contained in such information and which material fact was
necessary in order to make the statements in such information, in the light of
the circumstances under which they were made, not misleading.
- 24
- -
(b) Each
Underwriter agrees to indemnify, defend and hold harmless the Company, its
directors and officers and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the 1934 Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person may
incur under the Act, the 1934 Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in,
and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter to the Company expressly for use in,
the Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company), or arises out of or is based
upon any omission or alleged omission to state a material fact in such
Registration Statement in connection with such information, which material fact
was not contained in such information and which material fact was required to be
stated in such Registration Statement or was necessary to make such information
not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter to the
Company expressly for use in, a Prospectus or any Issuer Free Writing
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in such Prospectus or Issuer Free Writing Prospectus in
connection with such information, which material fact was not contained in such
information and which material fact was necessary in order to make the
statements in such information, in the light of the circumstances under which
they were made, not misleading.
(c) If
any action, suit or proceeding (each, a “Proceeding”) is
brought against a person (an “indemnified party”)
in respect of which indemnity may be sought against the Company or the
Underwriters (as applicable, the “indemnifying party”)
pursuant to subsection (a) or (b) of this Section 10, such indemnified party
shall promptly notify such indemnifying party in writing of the institution of
such Proceeding and such indemnifying party shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however, that the
omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have to
any indemnified party or otherwise. The indemnified party or parties
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have
been authorized in writing by the indemnifying party in connection with the
defense of such Proceeding or the indemnifying party shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded, based on the advice of counsel, that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to such indemnifying party (in which case such indemnifying
party shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by such indemnifying party and paid as incurred (it
being understood, however, that such indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any
settlement of any Proceeding effected without its written consent but, if
settled with its written consent, such indemnifying party agrees to indemnify
and hold harmless the indemnified party or parties from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this Section 10(c), then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault or culpability or a
failure to act by or on behalf of such indemnified party.
- 25
- -
(d) If
the indemnification provided for in this Section 10 is unavailable to an
indemnified party under subsections (a) or (b) of this Section 10 or
insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriters, bear to the aggregate
public offering price of the Shares. The relative fault of the
Company on the one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission relates to
information supplied by the Company or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, damages, expenses, liabilities and claims
referred to in this subsection shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
- 26
- -
(e) The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 10 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in subsection (d) above. Notwithstanding
the provisions of this Section 10, (i) the Underwriters shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by the Underwriters and distributed to the public were
offered to the public exceeds the amount of any damage which the Underwriters
have otherwise been required to pay by reason of such untrue statement or
alleged untrue statement or omission or alleged omission and (ii) the Company
shall not be required to contribute any amount in excess of the product of (x)
the aggregate number of Shares sold by the Company hereunder and (y) the
purchase price per Share set forth in Section 1 hereof. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(f) The
indemnity and contribution agreements contained in this Section 10 and the
covenants, warranties and representations of the Company contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the Underwriters, their partners, directors or officers
or any person (including each partner, officer or director of such person) who
controls the Underwriters within the meaning of Section 15 of the Act or Section
20 of the 1934 Act, or by or on behalf of the Company, their respective
directors or officers or any person who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the 1934 Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares
pursuant hereto. The Company and the Underwriters agree promptly to notify each
other of the commencement of any Proceeding against it and, in the case of the
Company, against any of their officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus.
11. Information Furnished by the
Underwriters. The statements set forth in the Prospectus under
“Underwriting” in the ___________ paragraph under the subheading ___________
constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Section 3 and Section 10 hereof.
12. Notices. Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to ___________ and, if
to the Company, shall be sufficient in all respects if delivered or sent to the
Company at the offices of the Company at 26 New Street, St. Helier, Jersey JE2
3RA, Attention: Chief Executive Officer, with a copy to Cravath, Swaine &
Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York, NY 10019, Attention:
Erik R. Tavzel.
13. Governing Law;
Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating
to this Agreement (“Claim”), directly or
indirectly, shall be governed by, and construed in accordance with, the laws of
the State of New York. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of this
Agreement.
- 27
- -
14. Submission to
Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company consents to personal jurisdiction, service and
venue in any court in which any Claim arising out of or in any way relating to
this Agreement is brought by any third party against any Underwriter or any
indemnified party. The Underwriters and the Company (on its behalf
and, to the extent permitted by applicable law, on behalf of its stockholders
and affiliates) each waive all right to trial by jury in any action, proceeding
or counterclaim (whether based upon contract, tort or otherwise) in any way
arising out of or relating to this Agreement. The Company agrees that
a final judgment in any such action, proceeding or counterclaim brought in any
such court shall be conclusive and binding upon the Company and may be enforced
in any other courts to the jurisdiction of which the Company is or may be
subject, by suit upon such judgment. The Company hereby appoints,
without power of revocation, CT
Corporation, located at 111 Eighth Avenue, 13th Floor, New York, NY 10011, as
its agent to accept and acknowledge on its behalf of any and all process which
may be served in any action, proceeding or counterclaim in any way relating to
or arising out of this Agreement.
15. Parties at
Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriters and the Company and to the extent
provided in Section 10 hereof the controlling persons, partners, directors and
officers referred to in such Section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from the Underwriters) shall acquire or have any right under or
by virtue of this Agreement.
16. Counterparts. This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
17. Successors and
Assigns. This Agreement shall be binding upon the Underwriters
and the Company and their successors and assigns and any successor or assign of
any substantial portion of the Company’s or any of the Underwriters’ respective
businesses and/or assets.
- 28
- -
18. No Fiduciary
Relationship. The Company hereby acknowledges that the Underwriters are
acting solely as the underwriters in connection with the purchase and sale of
the Company’s securities. The Company further acknowledges that the Underwriters
are acting pursuant to a contractual relationship created solely by this
Agreement entered into on an arm’s length basis and in no event do the parties
intend that the Underwriters act or be responsible as a fiduciary to the
Company, its management, stockholders or creditors or any other person in
connection with any activity that the Underwriters may undertake or have
undertaken in furtherance of the purchase and sale of the Company’s securities
either before or after the date hereof. The Underwriters hereby expressly
disclaim any fiduciary or similar obligations to the Company, either in
connection with the transactions contemplated by this Agreement or any matters
leading up to such transactions, and the Company hereby confirms its
understanding and agreement to that effect. The Company and the Underwriters
agree that they are each responsible for making their own independent judgments
with respect to any such transactions, and that any opinions or views expressed
by the Underwriters to the Company regarding such transactions, including but
not limited to any opinions or views with respect to the price or market for the
Company’s securities, do not constitute advice or recommendations to the
Company. The Company hereby waives and releases, to the fullest extent permitted
by law, any claims that the Company may have against the Underwriters with
respect to any breach or alleged breach of any fiduciary or similar duty to the
Company in connection with the transactions contemplated by this Agreement or
any matters leading up to such transactions.
[The Remainder of This Page
Intentionally Left Blank; Signature Pages Follow]
- 29
- -
If the foregoing correctly sets forth
the understanding among the Company and the Underwriters, please so indicate in
the space provided below for that purpose, whereupon this Agreement and the
Underwriter’s acceptance shall constitute a binding agreement among the Company
and the Underwriters.
Very truly
yours,
DHT MARITIME,
INC.
By: ______________________________
Name:
Title:
Accepted
and agreed as of the date
first written above, on behalf of
themselves and the other
Underwriters named in Schedule A:
first written above, on behalf of
themselves and the other
Underwriters named in Schedule A:
By:
__________________________
By:
__________________________
Name:
Title:
SCHEDULE
A
LIST OF
UNDERWRITERS
|
Name
of Underwriter
|
Number
of shares of
common
stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
..........................................................................................
|
|
SCHEDULE
B
PERMITTED
FREE WRITING PROSPECTUSES
[•]
SCHEDULE
C
CERTAIN
INFORMATION
[•]
SCHEDULE
D
SUBSIDIARIES
AND VESSELS
|
Subsidiary
|
Vessel Owned
|
|
|
Ann
Tanker Corporation
|
Overseas
Ann
|
|
|
Chris
Tanker Corporation
|
Overseas
Chris
|
|
|
Regal
Unity Tanker Corporation
|
Overseas
Regal
|
|
|
Cathy
Tanker Corporation
|
Overseas
Cathy
|
|
|
Sophie
Tanker Corporation
|
Overseas
Sophie
|
|
|
Rebecca
Tanker Corporation
|
Overseas
Rebecca
|
|
|
Ania
Aframax Corporation
|
Overseas Ania
|
|
|
London
Tanker Corporation
|
Overseas
London
|
|
|
Newcastle
Tanker Corporation
|
Overseas
Newcastle
|
|
SCHEDULE
E
PERSONS
REQUIRED TO DELIVER LOCK-UP AGREEMENTS
|
1.
|
Erik
A. Lind
|
|
2.
|
Randee
Day
|
|
3.
|
Rolf
A. Wikborg
|
|
4.
|
Ole
Jacob Diesen
|
|
5.
|
Eirik
Ubøe
|
|
6.
|
Tom
Kjeldsberg
|
EXHIBIT
A
LOCK-UP
AGREEMENT
___________,
2008
___________
___________
___________
Ladies
and Gentlemen:
This Lock-Up Agreement is being
delivered to you in connection with the proposed Purchase Agreement (the
“Purchase
Agreement”) to be entered into among DHT Maritime, Inc. a Marshall
Islands corporation (the “Company”), and you,
as representatives (the “Representatives”) of the underwriters named in Schedule
A to the Purchase Agreement (the “Underwriters”), with respect to the public
offering (the “Offering”) of common
stock, par value $0.01 per share, of the Company (the “Common
Stock”).
In order to induce you to enter into
the Purchase Agreement, the undersigned agrees that, for a period (the “Lock-Up Period”)
beginning on the date hereof and ending on, and including, the date that is 90
days after the date of the final prospectus relating to the Offering, the
undersigned will not, without the prior written consent of the Representatives,
(i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of or agree to dispose of, directly
or indirectly, or file (or participate in the filing of) a registration
statement with the Securities and Exchange Commission (the “Commission”) in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission promulgated thereunder (the “Exchange Act”) with
respect to, any Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock or any such securities, (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock or any such securities, whether any such transaction is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise or (iii)
publicly announce an intention to effect any transaction specified in clause (i)
or (ii). The foregoing sentence shall not apply to (a) the registration of or
sale to the Underwriters (as defined in the Purchase Agreement) of any Common
Stock pursuant to the Offering and the Purchase Agreement, (b) bona fide gifts,
provided the recipient thereof agrees in writing with the Underwriters to be
bound by the terms of this Lock-Up Agreement or (c) dispositions to any trust
for the direct or indirect benefit of the undersigned and/or the immediate
family of the undersigned, provided that such trust agrees in writing with the
Underwriters to be bound by the terms of this Lock-Up Agreement. For
purposes of this paragraph, “immediate family” shall mean the undersigned and
the spouse, any lineal descendent, father, mother, brother or sister of the
undersigned.
In addition, the undersigned hereby
waives any rights the undersigned may have to require registration of Common
Stock in connection with the filing of a registration statement relating to the
Offering. The undersigned further agrees that, for the Lock-Up
Period, the undersigned will not, without the prior written consent of the
Representatives, make any demand for, or exercise any right with respect to, the
registration of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock or any such securities.
Notwithstanding the above, if (a)
during the period that begins on the date that is fifteen (15) calendar days
plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (b) prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Lock-Up
Agreement shall continue to apply until the expiration of the date that is
fifteen (15) calendar days plus three (3) business days after the date on which
the issuance of the earnings release or the material news or material event
occurs.
In addition, the undersigned hereby
waives any and all preemptive rights, participation rights, resale rights,
rights of first refusal and similar rights that the undersigned may have in
connection with the Offering or with any issuance or sale by the Company of any
equity or other securities before the Offering, except for any such rights as
have been heretofore duly exercised.
The undersigned hereby confirms that
the undersigned has not, directly or indirectly, taken, and hereby covenants
that the undersigned will not, directly or indirectly, take, any action
designed, or which has constituted or will constitute or might reasonably be
expected to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of shares of Common Stock.
If for any reason the Purchase
Agreement shall be terminated prior to the “time of purchase” (as defined in the
Underwriting Agreement), this Lock-Up Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder.
| Yours very truly, | ||
|
______________________________________
|
||
| Name: |
EXHIBIT
B
OPINION
OF CRAVATH, SWAINE & MOORE LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
C
NEGATIVE
ASSURANCE LETTER OF CRAVATH, SWAINE & MOORE LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
D
TAX
OPINION OF CRAVATH, SWAINE & MOORE LLP
SPECIAL
UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT
E
OPINION
OF REEDER & SIMPSON P.C.
MARSHALL
ISLANDS COUNSEL TO THE COMPANY
EXHIBIT
F
OFFICERS’
CERTIFICATE
Exhibit
4.1
DHT
MARITIME, INC.
FORM
OF INDENTURE
Dated
as of
[ ]
[ ]
Trustee
Page
|
ARTICLE
ONE
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
||
|
ARTICLE
TWO
THE
SECURITIES
|
||
|
ARTICLE
THREE
REDEMPTION
AND PREPAYMENT
|
||
i
|
ARTICLE
FOUR
COVENANTS
|
||
|
ARTICLE
FIVE
SUCCESSOR
COMPANIES
|
||
|
ARTICLE
SIX
DEFAULTS
AND REMEDIES
|
||
|
ARTICLE
SEVEN
TRUSTEE
|
||
ii
|
ARTICLE
EIGHT
LEGAL
DEFEASANCE, COVENANT DEFEASANCE AND SATISFACTION AND
DISCHARGE
|
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|
ARTICLE
NINE
AMENDMENTS
|
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|
ARTICLE
TEN
MISCELLANEOUS
|
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iii
iv
CROSS-REFERENCE
TABLE*
|
Trust Indenture Act Section
|
Indenture Section
|
||||
|
310
|
(a)(1)
|
7.10
|
|||
|
(a)(2)
|
7.10
|
||||
|
(a)(3)
|
Not
Applicable
|
||||
|
(a)(4)
|
Not
Applicable
|
||||
|
(a)(5)
|
7.10
|
||||
|
(b)
|
7.10
|
||||
|
(c)
|
Not
Applicable
|
||||
|
311
|
(a)
|
7.11
|
|||
|
(b)
|
7.11
|
||||
|
(c)
|
Not
Applicable
|
||||
|
312
|
(a)
|
2.06
|
|||
|
(b)
|
10.03
|
||||
|
(c)
|
10.03
|
||||
|
313
|
(a)
|
7.06
|
|||
|
(b)(1)
|
Not
Applicable
|
||||
|
(b)(2)
|
7.06
|
||||
|
(c)
|
7.06
|
||||
|
(d)
|
7.06
|
||||
|
314
|
(a)
|
4.02;4.03
|
|||
|
(b)
|
Not
Applicable
|
||||
|
(c)(1)
|
10.04
|
||||
|
(c)(2)
|
10.04
|
||||
|
(c)(3)
|
Not
Applicable
|
||||
|
(d)
|
Not
Applicable
|
||||
|
(e)
|
10.05
|
||||
|
(f)
|
Not
Applicable
|
||||
|
315
|
(a)
|
7.01
|
|||
|
(b)
|
7.05
|
||||
|
(c)
|
7.01
|
||||
|
(d)
|
7.01
|
||||
|
(e)
|
6.11
|
||||
|
316
|
(a)
(last sentence)
|
2.10
|
|||
|
(a)(1)(A)
|
6.05
|
||||
|
(a)(1)(B)
|
6.04
|
||||
|
(a)(2)
|
Not
Applicable
|
||||
|
(b)
|
6.07
|
||||
|
(c)
|
2.13
|
||||
|
317
|
(a)(1)
|
6.08
|
|||
|
(a)(2)
|
6.09
|
||||
|
(b)
|
2.05
|
||||
|
318
|
(a)
|
10.01
|
|||
|
(b)
|
Not
Applicable
|
||||
|
(c)
|
10.01
|
||||
*This
Cross-Reference Table does not constitute part of the Indenture and shall not
have any bearing on the interpretation of any of its terms or
provisions.
INDENTURE
dated as of [ ], between DHT
MARITIME, INC., a Marshall Islands corporation, and
[ ],
as trustee.
The
Company and the Trustee agree as follows for the benefit of each other and for
the equal and ratable benefit of the Holders of the securities issued under this
Indenture (the “Securities”):
ARTICLE
ONE
DEFINITIONS AND
INCORPORATION BY REFERENCE
For all
purposes under this Indenture and any supplemental indenture hereto, except as
otherwise expressly provided or unless the context otherwise requires, the
following terms shall have the following meanings:
“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For purposes of this definition, “control” (including,
with correlative meanings, the terms “controlling,” “controlled by” and “under
common control with”), when used with respect to any Person, shall mean the
power to direct or cause the direction of the management or policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by agreement or otherwise.
“Agent”
means any Registrar, Paying Agent or co-registrar.
“Bankruptcy
Law” means Title 11, U.S. Code or any similar federal or state law for the
relief of debtors.
“Board of
Directors” means the Board of Directors of the Company, or any authorized
committee of the Board of Directors.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in
full force and effect on the date of the certificate and delivered to the
Trustee.
“Business
Day” means any day other than a Legal Holiday.
“Capital
Stock” means, with respect to any Person, any shares or other equivalents
(however designated) of any class of corporate stock or partnership interests or
any other participations, rights, warrants, options or other interests in the
nature of an equity interest in such Person, including preferred stock,
including any debt security convertible or exchangeable into such equity
interest.
“Clearstream”
means Clearstream Banking, société anonyme, or any successor
thereto.
“Commodity
Price Protection Agreement” means, in respect of a Person, any forward contract,
commodity swap agreement, commodity option agreement or other similar agreement
or arrangement designed to protect such Person against fluctuations in commodity
prices.
“Company”
means DHT Maritime, Inc., and any and all successors thereto.
“Company
Order” means a written order signed in the name of the Company by two Officers,
one of whom must be the Company’s principal executive officer, principal
financial officer or principal accounting officer.
“Corporate
Trust Office of the Trustee” shall be the address of the Trustee specified in
Section 10.02 hereof or such other address as to which the Trustee may give
notice to the Company.
“Currency
Exchange Protection Agreement” means, in respect of a Person, any foreign
exchange contract, currency swap agreement, currency option or other similar
agreement or arrangement designed to protect such Person against fluctuations in
currency exchange rates.
“Debt”
means, with respect to any Person (without duplication):
(a) the
principal of and premium (if any) in respect of any obligation of such Person
for money borrowed, and any obligation evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person is responsible or
liable;
(b) all
obligations of such Person as lessee under leases required to be capitalized on
the balance sheet of the lessee under generally accepted accounting principles
and leases of Property made as part of any sale and leaseback transaction
entered into by such Person;
(c) all
obligations of such Person issued or assumed as the deferred purchase price of
Property, all conditional sale obligations of such Person and all obligations of
such Person under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business);
(d) all
obligations of such Person for the reimbursement of any obligor on any letter of
credit, banker’s acceptance or similar credit transaction;
(e) all
obligations of the type referred to in clauses (a) through (d) of other Persons
and all dividends of other Persons for the payment of which, in either case,
such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee;
(f) all
obligations of the type referred to in clauses (a) through (d) of other Persons
secured by any Lien on any Property of such Person (whether or not such
obligation is assumed by such Person); and
(g) to
the extent not otherwise included in this definition, obligations pursuant to
any Interest Rate Agreement, Currency Exchange Protection Agreement, Commodity
Price Protection Agreement or any other similar agreement or arrangement of such
Person.
“Default”
means any event that is, or after notice or passage of time or both would be, an
Event of Default.
“Definitive
Security” means a certificated Security registered in the name of the Holder
thereof and issued in accordance with Section 2.08 hereof.
“Depositary”
means, with respect to the Securities issuable or issued in whole or in part in
global form, the Person specified in Section 2.15 hereof as the Depositary
with respect to the Securities, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable provision
of this Indenture.
“Dollar”
means a dollar or other equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment of public and
private debt.
“Euroclear”
means Euroclear Bank S.A./N.V., as operator of the Euroclear System, or any
successor thereto.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Foreign
Currency” means any currency or currency unit issued by a government other than
the government of The United States of America.
“GAAP”
means generally accepted accounting principles in the United States of America
as determined by the Public Company Accounting Principles Oversight
Board.
“Global
Security” when used with respect to any Series of Securities issued
hereunder, means a Security which is executed by the Company and authenticated
and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with this Indenture and an indenture supplemental
hereto, if any, or Board Resolution and pursuant to a Company Order, which shall
be registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all the outstanding Securities of such Series or any
portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal is
due, and interest rate or method of determining interest and which shall bear
the legend as prescribed by Section 2.15(c).
“Global
Security Legend” means the legend set forth in Section 2.15(c), which is
required to be placed on all Global Securities issued under this
Indenture.
“Guarantee”
means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any
manner (including, without limitation, by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof), of all or any
part of any Debt. The term “Guarantor” shall mean any Person Guaranteeing any
obligation.
“Holder”
means a Person in whose name a Security is registered on the Registrar’s
books.
“Indenture”
means this Indenture, as amended or supplemented from time to time.
“Interest
Payment Date” when used with respect to any Series of Securities, means the date
specified in such Securities for the payment of any installment of interest on
those Securities.
“Interest
Rate Agreement” means, for any Person, any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement designed to protect against fluctuations in interest
rates.
“Lien”
means, with respect to any Property of any Person, any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever on or
with respect to such Property (including any capital lease obligation,
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing or any sale and leaseback
transaction).
“Maturity,”
when used with respect to any Security or installment of principal thereof,
means the date on which the principal of such Security or such installment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption, notice
of option to elect repayment or otherwise.
“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
“Officers’
Certificate” means a certificate signed on behalf of the Company by two Officers
of the Company, one of whom must be the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
that meets the requirements of Section 10.04 and 10.05 hereof.
“Opinion
of Counsel” means an opinion from legal counsel, that meets the requirements of
Section 10.04 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
“Original
Issue Discount Security” means any Security that provides for an amount less
than the stated principal amount thereof to be due and payable upon declaration
of acceleration of the maturity thereof pursuant to
Section 6.02.
“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and,
with respect to the Depository Trust Company, shall include Euroclear and
Clearstream).
“Person”
means any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any other
entity.
“Property”
means, with respect to any Person, any interest of such Person in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible,
including Capital Stock in, and other securities of, any other
Person.
“Responsible
Officer” with respect to the Trustee, means any Vice President, Assistant Vice
President, Assistant Treasurer or any other officer of the Trustee assigned by
the Trustee to administer its corporate trust matters and who customarily
performs functions similar to those performed by such Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such Person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for administration
of this Indenture.
“SEC”
means the Securities and Exchange Commission.
“Securities”
has the meaning assigned to it in the preamble to this Indenture.
“Securities
Act” means the Securities Act of 1933, as amended.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.01 and 2.02
hereof.
“Significant
Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of the
Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the
SEC.
“Stated
Maturity,” when used with respect to any Security, means the date specified in
such Security as the fixed date on which an amount equal to the principal amount
of such Security is due and payable.
“Subsidiary”
of any Person means any corporation, limited liability company, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or
(iii) one or more Subsidiaries of such Person.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) and the rules
and regulations thereunder as in effect on the date on which this Indenture is
qualified under the TIA, except as provided in Section 9.03.
“Trustee”
means the party named as such above until a successor replaces it in accordance
with the applicable provisions of this Indenture and thereafter means the
successor serving hereunder.
“U.S.
Government Obligations” means direct obligations (or certificates representing
an ownership interest in such obligations) of the United States of America
(including any agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States of America is pledged and which are
not callable or redeemable at the issuer’s option.
“U.S.
Person” means a U.S. person as defined in Rule 902(k) under the Securities
Act.
“Voting
Stock” of any Person means all classes of Capital Stock or other interests
(including partnership interests) of such Person then outstanding and normally
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof.
SECTION
1.02. Other
Definitions.
|
Term
|
Defined
in Section
|
|
|
“Additional
Amounts”
|
4.07
|
|
|
“Covenant
Defeasance”
|
8.03
|
|
|
“Custodian”
|
6.01
|
|
|
“Event
of
Default”
|
6.01
|
|
|
“Legal
Defeasance”
|
8.02
|
|
|
“Legal
Holiday”
|
10.08
|
|
|
“Paying
Agent”
|
2.05
|
|
|
“Registrar”
|
2.05
|
|
|
“Relevant
Taxing Jurisdiction”
|
4.07
|
|
|
“Service
Agent”
|
2.05
|
|
|
“Surviving
Person”
|
5.01
|
|
|
“Taxes”
|
4.07
|
“indenture
securities” means the Securities;
“indenture
security Holder” means a Holder of a Security;
“indenture
to be qualified” means this Indenture;
“indenture
trustee” or “institutional trustee” means the Trustee; and
“obligor”
on the Securities means the Company and any successor obligor upon the
Securities.
All other
terms used in this Indenture that are defined by the TIA, defined by the TIA’s
reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
(1) a
term has the meaning assigned to it;
(2) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3) “or”
is not exclusive;
(4) words
in the singular include the plural, and in the plural include the
singular;
(5) provisions
apply to successive events and transactions; and
(6) references
to sections of or rules under the Securities Act shall be deemed to include
substitute, replacement or successor sections or rules adopted by the SEC from
time to time.
ARTICLE
TWO
THE
SECURITIES
(a) the title of the Securities of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);
(b) the
ranking of the Securities of the Series relative to other Debt of the Company
and the terms of any subordination provisions;
(c) any limit
upon the aggregate principal amount of the Securities of the Series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the Series);
(d) the date
or dates on which the principal and premium of the Securities of the Series are
payable;
(e) the rate
or rates (which may be fixed or variable) at which the Securities of the Series
shall bear interest, if any, or the method of determining such rate or rates,
the date or dates from which such interest, if any, shall accrue, the Interest
Payment Dates on which such interest, if any, shall be payable or the method by
which such dates will be determined, the record dates for the determination of
Holders thereof to whom such interest is payable (in the case of Securities in
registered form), and the basis upon which such interest will be calculated if
other than that of a 360-day year of twelve 30-day months;
(f) the
currency or currencies, including composite currencies in which Securities of
the Series shall be denominated, if other than Dollars, the place or places, if
any, in addition to or instead of the Corporate Trust Office of the Trustee (in
the case of Securities in registered form) or the principal New York office of
the Trustee (in the case of Securities in bearer form), where the principal,
premium and interest with respect to Securities of such Series shall be payable
or the method of such payment, if by wire transfer, mail or other
means;
(g) the price
or prices at which, the period or periods within which, and the terms and
conditions upon which, Securities of the Series may be redeemed, in whole or in
part at the option of the Company or otherwise;
(h) the form
of the Securities of the Series and whether Securities of the Series are to be
issued in registered form or bearer form or both and, if Securities are to be
issued in bearer form, whether coupons will be attached to them, whether
Securities of the Series in bearer form may be exchanged for Securities of the
Series issued in registered form, and the circumstances under which and the
places at which any such exchanges, if permitted, may be
made;
(i) if any
Securities of the Series are to be issued in bearer form or as one or more
Global Securities representing individual Securities of the Series in bearer
form, whether certain provisions for the payment of additional interest or tax
redemptions shall apply; whether interest with respect to any portion of a
temporary Security of the Series in bearer form payable with respect to any
Interest Payment Date prior to the exchange of such temporary Security in bearer
form for definitive Securities of the Series in bearer form shall be paid to any
clearing organization with respect to the portion of such temporary Security in
bearer form held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest payment
received by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date; and the terms upon which a
temporary Security in bearer form may be exchanged for one or more definitive
Securities of the Series in bearer form;
(j) the
obligation, if any, of the Company to redeem, purchase or repay the Securities
of the Series pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the price or prices at which, the period or
periods within which, and the terms and conditions upon which, Securities of the
Series shall be redeemed, purchased or repaid, in whole or in part, pursuant to
such obligations;
(k) the
terms, if any, upon which the Securities of the Series may be exchanged for any
of the Company’s common stock or other equity interests, and the terms and
conditions upon which such exchange shall be effected, including the initial
exchange price or rate, the exchange period and any other additional
provisions;
(l) if other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which the Securities of the Series shall be
issuable;
(m) if the
amount of principal, premium or interest with respect to the Securities of the
Series may be determined with reference to an index or pursuant to a formula,
the manner in which such amounts will be determined;
(n) if the
principal amount payable at the Stated Maturity of Securities of the Series will
not be determinable as of any one or more dates prior to such Stated Maturity,
the amount that will be deemed to be such principal amount as of any such date
for any purpose, including the principal amount thereof which will be due and
payable upon any Maturity other than the Stated Maturity and which will be
deemed to be outstanding as of any such date (or, in any such case, the manner
in which such deemed principal amount is to be determined), and if necessary,
the manner of determining the equivalent thereof in Dollars;
(o) the
applicability of or any changes or additions to the defeasance and discharge
provisions of Article Eight;
(p) if other
than the principal amount thereof, the portion of the principal amount of the
Securities of the Series that shall be payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.02;
(q) the
terms, if any, of the transfer, mortgage, pledge or assignment as security for
the Securities of the Series of any properties, assets, moneys, proceeds,
securities or other collateral, including whether certain provisions of the TIA
are applicable and any corresponding changes to provisions of this Indenture as
then in effect;
(r) any
addition to or change in the Events of Default which applies to any Securities
of the Series and any change in the right of the Trustee or the requisite
Holders of such Series of Securities to declare the principal amount of,
premium, if any, and interest on such Series of Securities due and payable
pursuant to Section 6.02;
(s) if the
Securities of the Series shall be issued in whole or in part in the form of a
Global Security, the terms and conditions, if any, upon which such Global
Security may be exchanged in whole or in part for other individual Definitive
Securities of such Series, the Depositary for such Global Security and the form
of any legend or legends to be borne by any such Global Security in addition to
or in lieu of the Global Securities Legend;
(t) any
Trustee, authenticating agent, Paying Agent, transfer agent, Service Agent or
Registrar;
(u) the
applicability of, and any addition to or change in, the covenants (and the
related definitions) set forth in Articles Four or Five which applies to
Securities of the Series;
(v) with
regard to Securities of the Series that do not bear interest, the dates for
certain required reports to the Trustee;
(w) the terms
applicable to Original Issue Discount Securities, including the rate or rates at
which original issue discount will accrue;
(x) any other
terms of Securities of the Series (which terms shall not be prohibited by the
provisions of this Indenture).
All
Securities of any one Series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture or
Officers’ Certificate referred to above, and the authorized principal amount of
any Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers’ Certificate.
The
interest installment on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date for Securities of that Series
shall be paid to the Person in whose name said Security (or one or more
predecessor Securities) is registered at the close of business on the regular
record date for such interest installment.
Unless
otherwise set forth in a Board Resolution, a supplemental indenture or an
Officers’ Certificate establishing the terms of any Series of Securities
pursuant to Section 2.02 hereof, the term “regular record date” as used in
this Section with respect to Securities of any Series with respect to any
Interest Payment Date for such Series shall mean (i) either the fifteenth
day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.02 hereof shall
occur, if such Interest Payment Date is the first day of a month or
(ii) the first day of the month in which an Interest Payment Date
established for such Series pursuant to Section 2.02 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not such
date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a Series delivered
under this Indenture upon transfer of or in exchange for or in lieu of any other
Security of such Series shall carry the rights to interest accrued and unpaid,
and to accrue, that were carried by such other Security.
The
Trustee shall at any time, and from time to time, authenticate Securities for
original issue in the principal amount provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate, upon receipt by the
Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date
of its authentication unless otherwise provided by a Board Resolution, a
supplemental indenture hereto or an Officers’ Certificate.
The
aggregate principal amount of Securities of any Series outstanding at any time
may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officers’
Certificate delivered pursuant to Section 2.02, except as provided in
Section 2.09.
Prior to
the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.02) shall be fully protected in relying
on: (a) the Board Resolution, supplemental indenture hereto or
Officers’ Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series
or of Securities within that Series, (b) an Officers’ Certificate complying
with Section 10.04 and 10.05, and (c) an Opinion of Counsel complying
with Section 10.04 and 10.05.
The
Trustee shall have the right to decline to authenticate and deliver any
Securities of such Series: (a) if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken; or (b) if
the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall
determine that such action would expose the Trustee to personal liability to
Holders of any then outstanding Series of Securities.
The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to
deal with the Company or an Affiliate of the Company.
The
Company may also from time to time designate one or more co-registrars,
additional paying agents or additional service agents and may from time to time
rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar, Paying Agent and Service Agent in each
place so specified pursuant to Section 2.02 for Securities of any Series
for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the name or
address of any such co-registrar, additional paying agent or additional service
agent. The term “Registrar” includes any co-registrar; the term
“Paying Agent” includes any additional paying agent; and the term “Service
Agent” includes any additional service agent.
The
Company hereby appoints the Trustee as the initial Registrar, Paying Agent and
Service Agent for each Series unless another Registrar, Paying Agent or Service
Agent, as the case may be, is appointed prior to the time Securities of that
Series are first issued.
(b) The
Trustee may destroy any list furnished to it as provided in Section 2.07(a)
upon receipt of a new list so furnished.
Neither
the Company nor the Registrar shall be required (a) to issue, register the
transfer of, or exchange Securities of any Series during the period beginning at
the opening of business fifteen days immediately preceding the mailing of a
notice of redemption of Securities of that Series selected for redemption and
ending at the close of business on the day of such mailing, or (b) to
register the transfer or exchange of Securities of any Series selected, called
or being called for redemption as a whole or the portion being redeemed of any
such Securities selected, called or being called for redemption in
part.
All
Securities presented or surrendered for exchange or registration of transfer, as
provided in this Section, shall be accompanied (if so required by the Company or
the Registrar) by a written instrument or instruments of transfer, in form
satisfactory to the Company or the Registrar, duly executed by the Holder or by
such Holder’s duly authorized attorney in writing.
The
provisions of this Section 2.08 are, with respect to any Global Security,
subject to Section 2.15 hereof.
If there
shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same Series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
In case
any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security (without surrender thereof except in the case of
a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, and, in case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Upon the
issuance of any new Security under this Section 2.09, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new
Security of any Series issued pursuant to this Section 2.09 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder.
The
provisions of this Section 2.09 are exclusive and shall preclude (to the
extent lawful) any and all other rights and remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary, with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities,
negotiable instruments or other securities.
If a
Security is replaced pursuant to Section 2.09, it ceases to be outstanding
until the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser.
If the
Paying Agent (other than the Company, a Subsidiary of the Company or an
Affiliate of any thereof) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that
date such Securities of the Series cease to be outstanding and interest on them
ceases to accrue.
A
Security does not cease to be outstanding because the Company or an Affiliate
thereof holds the Security.
In
determining whether the Holders of the requisite principal amount of outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original Issue Discount
Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 6.02.
(a) Terms of
Securities. A Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate shall establish whether the Securities of a
Series shall be issued in whole or in part in the form of one or more Global
Securities and the Depositary for such Global Security or
Securities.
(b) Transfer and
Exchange. Notwithstanding any provisions to the contrary
contained in Section 2.08 of the Indenture and in addition thereto, any
Global Security shall be exchangeable pursuant to Section 2.08 of the
Indenture for Securities registered in the names of Holders other than the
Depositary for such Security or its nominee only if (i) such Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time such Depositary ceases to be a
clearing agency registered under the Exchange Act, and, in either case, the
Company fails to appoint a successor Depositary within 90 days of such
event, (ii) the Company executes and delivers to the Trustee an Officers’
Certificate to the effect that such Global Security shall be so exchangeable or
(iii) an Event of Default with respect to the Securities represented by
such Global Security shall have occurred and be continuing. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the Depositary shall
direct in writing in an aggregate principal amount equal to the principal amount
of the Global Security with like tenor and terms.
Except as
provided in this Section 2.15(b), a Global Security may only be transferred
in whole but not in part (i) by the Depositary with respect to such Global
Security to a nominee of such Depositary, (ii) by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or (iii) by the
Depositary or any such nominee to a successor Depositary or a nominee of such a
successor Depositary.
(c) Legend. Any
Global Security issued hereunder shall bear a legend in substantially the
following form:
“THIS
SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (A) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.04 OF THE INDENTURE, (B) THIS SECURITY MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.15(B) OF THE INDENTURE, (C) THIS SECURITY
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.13 OF THE
INDENTURE AND (D) EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.15(B) OF THE
INDENTURE, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY (X)
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, (Y) BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR (Z) BY THE
DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.”
(d) Payments. Notwithstanding
the other provisions of this Indenture, unless otherwise specified as
contemplated by Section 2.02, payment of the principal of and interest, if
any, on any Global Security shall be made to the Holder
thereof.
(e) Consents, Declaration and
Directions. Except as provided in Section 2.15(d), the
Company, the Trustee and any Agent shall treat a person as the Holder of such
principal amount of outstanding Securities of such Series represented by a
Global Security as shall be specified in a written statement of the Depositary
with respect to such Global Security, for purposes of obtaining any consents,
declarations, waivers or directions required to be given by the Holders pursuant
to this Indenture.
ARTICLE
THREE
REDEMPTION
AND PREPAYMENT
(1) if the
Securities are listed on any national securities exchange, in compliance with
the requirements of the principal national securities exchange, if any, on which
the Securities are listed; or
(2) if the
Securities are not listed on any national securities exchange, on a pro rata
basis, by lot or by such other method as the Trustee shall deem fair and
appropriate.
Unless
otherwise indicated for a particular Series of Securities by a Board Resolution,
a supplemental indenture or an Officers’ Certificate, no Securities of $1,000 of
principal amount or less will be redeemed in part. Except as provided
in the preceding sentence, provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall make the selection at least 25 days but
not more than 60 days before the redemption date from outstanding Securities of
a Series not previously called for redemption.
If any
Security is to be redeemed in part only, the notice of redemption that relates
to such Security shall state the portion of the principal amount of that
Security to be redeemed. A new Security in principal amount equal to
the unredeemed portion of the original Security presented for redemption will be
issued in the name of the Holder thereof upon cancellation of the original
Security. Securities called for redemption become irrevocably due on
the date fixed for redemption at the applicable redemption price, plus accrued
and unpaid interest to the redemption date. On and after the
redemption date, unless the Company defaults in making the applicable redemption
payment, interest ceases to accrue or accrete on Securities or portions of them
called for redemption.
The
notice shall identify the Securities to be redeemed and shall
state:
(1) the
redemption date;
(2) the
redemption price or the appropriate calculation of the redemption price, which
in each case will include interest accrued and unpaid to the date fixed for
redemption;
(3) if any
Security is being redeemed in part, the portion of the principal amount of such
Security to be redeemed and that, after the redemption date upon surrender of
such Security, a new Security or Securities in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original
Security;
(4) the name
and address of the Paying Agent;
(5) that
Securities called for redemption must be surrendered to the Paying Agent to
collect the redemption price;
(6) that,
unless the Company defaults in making such redemption payment, interest on
Securities (or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(7) the
paragraph of the Securities and/or provision of this Indenture or any
supplemental indenture pursuant to which the Securities called for redemption
are being redeemed; and
(8) the CUSIP
number, if any, printed on the Securities being redeemed;
and
(9) that no
representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Securities.
At the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as required
by this Section 3.03.
Failure
to give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
If the
Company complies with the provisions of the preceding paragraph, on and after
the redemption date, interest shall cease to accrue on the Securities or the
portions of Securities called for redemption. If a Security is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Security was registered at the close of business on
such record date. If any Security called for redemption shall not be
so paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and, to the
extent lawful, on any interest not paid on such unpaid principal, in each case
at the rate provided in the Securities.
ARTICLE
FOUR
COVENANTS
(1) its
limited liability company, corporate, partnership or other existence in
accordance with its organizational documents (as the same may be amended from
time to time) and
(2) the
rights (charter and statutory), licenses and franchises of the Company; provided, however, that the
Company shall not be required to preserve any such right, license or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Securities.
If the
Surviving Person is so required to withhold or deduct any amount for or on
account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made
under or with respect to the Securities, the Surviving Person shall pay such
additional amounts (“Additional Amounts”)
as may be necessary so that the net amount received by the Holders (including
Additional Amounts) after such withholding or deduction will not be less than
the amount the Holders would have received if such Taxes had not been withheld
or deducted; provided, however, that the
foregoing obligation to pay Additional Amounts does not apply to (1) any Taxes
that would not have been so imposed but for the existence of any present or
former connection between the relevant Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of power over the relevant
Holder, if the relevant Holder is an estate, nominee, trust or corporation) and
the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or
the ownership or holding outside of the Surviving Person’s country of
incorporation of such Security); or (2) any estate, inheritance, gift, sales,
excise, transfer, personal property tax or similar tax, assessment or
governmental charge; nor shall the Surviving Person be required to pay
Additional Amounts (a) if the payment could have been made without such
deduction or withholding if the beneficiary of the payment had presented the
Security for payment within 30 days after the date on which such payment or such
Security became due and payable or the date on which payment thereof is duly
provided for, whichever is later (except to the extent that the Holder would
have been entitled to Additional Amounts had the Security been presented on the
last day of such 30 day period), or (b) with respect to any payment of principal
of (or premium, if any, on) or interest on such Security to any Holder who is a
fiduciary or partnership or any person other than the sole beneficial owner of
such payment, to the extent that a beneficiary or settlor with respect to such
fiduciary, a member of such a partnership or the beneficial owner of such
payment would not have been entitled to the Additional Amounts had such
beneficiary, settlor, member or beneficial owner been the actual Holder of such
Security.
Upon
request, the Surviving Person shall provide the Trustee with official receipts
or other documentation satisfactory to the Trustee evidencing the payment of the
Taxes with respect to which Additional Amounts are paid.
Whenever
in this Indenture, a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate, or in any Security there is mentioned, in any context:
(1) the payment of principal; (2) purchase prices in connection with a
purchase of Securities; (3) interest; or (4) any other amount payable
on or with respect to any of the Securities, such reference shall be deemed to
include payment of Additional Amounts provided for in this Section 4.07 to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.
The
obligations described under this Section 4.07 shall survive any
termination, defeasance or discharge of this Indenture and shall apply mutatis
mutandis to any jurisdiction in which any successor Person to the Company or any
Surviving Person is organized or any political subdivision or taxing authority
or agency thereof or therein.
(a) the
surviving Person (the “Surviving Person”)
(if other than the Company) or the Person to which such sale, transfer,
assignment, lease, conveyance or disposition is made expressly assumes, by
supplemental indenture in form satisfactory to the Trustee, executed and
delivered to the Trustee by such Person, the due and punctual payment of the
principal of, and premium, if any, and interest on, all the Securities of all
Series outstanding, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this Indenture
to be performed by the Company;
(b) in the
case of a sale, transfer, assignment, lease, conveyance or other disposition of
all or substantially all the Property of the Company, such Property shall have
been transferred as an entirety or virtually as an entirety to one Person and/or
such Person’s Subsidiaries;
(c) immediately
before and immediately after giving effect to such transaction or series of
related transactions, no Default or Event of Default shall have occurred and be
continuing; and
(d) the
Company shall deliver, or cause to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers’ Certificate and
an Opinion of Counsel, each stating that such transaction and the supplemental
indenture, if any, in respect thereto comply with this Section 5.01 and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
For the
purposes of this Section 5.01, the sale, transfer, assignment, lease,
conveyance or other disposition of all the Property of one or more Subsidiaries
of the Company, which Property, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all the Property of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all the Property of the Company.
(b) In case
of any such consolidation, amalgamation, merger, sale, conveyance, assignment,
transfer, lease or other disposition such changes in phraseology and form (but
not in substance) may be made in the Securities thereafter to be issued as may
be appropriate.
(c) Nothing
contained in this Indenture or in any of the Securities shall prevent the
Company from merging into itself or acquiring by purchase or otherwise all or
any part of the Property of any other Person (whether or not affiliated with the
Company).
ARTICLE
SIX
DEFAULTS
AND REMEDIES
SECTION
6.01. Events of
Default. Unless
otherwise indicated for a particular Series of Securities by a Board Resolution,
a supplemental indenture hereto, or an Officers’ Certificate, each of the
following constitutes an “Event
of Default” with respect to each Series of
Securities:
(1) default
in the payment of the principal or redemption price with respect to any Security
of such Series when such amount becomes due and payable;
(2) default
in the payment of interest (including additional interest, if any,) when due on
the Securities of such Series within 30 days of when such amount becomes due and
payable;
(3) the
Company fails to comply with any of its covenants or agreements in the
Securities of such Series or this Indenture (other than a failure that is
subject to the foregoing clauses (1) or (2)) and such failure continues for
60 days after the notice specified below;
(4) Debt of
the Company or any Subsidiary of the Company is not paid within any applicable
grace period after final maturity or is accelerated by the holders thereof
because of a default and the total amount of such Debt unpaid or accelerated
exceeds $25.0 million or its foreign currency equivalent at the time
without such Debt having been discharged or acceleration having been rescinded
or annulled within 10 days after receipt by the Company of notice of the default
by the Trustee or Holders of not less than 25% in aggregate principal amount of
the Securities of such Series then outstanding;
(5) the
Company or any Significant Subsidiary of the Company pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences
a voluntary case;
(B) consents
to the entry of an order for relief against it in an involuntary
case;
(C) consents
to the appointment of a Custodian of it or for any substantial part of its
Property; or
(D) makes a
general assignment for the benefit of its creditors;
or takes
any comparable action under any foreign laws relating to
insolvency;
(6) a court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(A) is for
relief against the Company or any Significant Subsidiary of the Company in an
involuntary case;
(B) appoints
a Custodian of the Company or any Significant Subsidiary of the Company or for
any substantial part of its Property; or
(C) orders
the winding up or liquidation of the Company or any Significant Subsidiary of
the Company;
or any
similar relief is granted under any foreign laws and the order or decree remains
unstayed and in effect for 60 days; or
(7) any
judgment or judgments for the payment of money (to the extent not insured by a
reputable and creditworthy issuer that has not contested coverage with respect
to the underlying claim) in an aggregate amount in excess of $25.0 million
or its foreign currency equivalent at the time is entered against the Company or
any Subsidiary of the Company and that shall not be waived, satisfied or
discharged for any period of 60 consecutive days during which a stay of
enforcement shall not be in effect.
The
foregoing will constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental
body.
The term
“Custodian” means, for the purposes of this Article Six, any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default
under clause (3) is not an Event of Default until the Trustee or the
Holders of at least 25% in principal amount of the outstanding Securities notify
the Company of the Default and the Company does not cure such Default within the
time specified after receipt of such notice. Such notice must specify
the Default, demand that it be remedied and state that such notice is a “Notice
of Default.”
The
Company shall deliver to the Trustee, within 30 days after the occurrence
thereof, written notice in the form of an Officers’ Certificate of any Event of
Default and any event which with the giving of notice or the lapse of time would
become an Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION
6.02. Acceleration. (a) If an Event of Default with respect to any
Series of Securities at the time outstanding (other than an Event of Default
specified in Section 6.01(5) or (6) with respect to the Company) occurs and
is continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the outstanding Securities of that Series by notice to the
Company in writing (and to the Trustee, if given by Holders of such Securities
of such Series), may declare the principal amount of (or, in the case of
Original Issue Discount Securities of that Series, the portion thereby specified
in the terms of such Security), premium, if any, and accrued and unpaid interest
on all the Securities of that Series to be due and payable. Upon such
a declaration, such amounts shall be due and payable immediately. If
an Event of Default specified in Section 6.01(5) or (6) with respect to the
Company occurs, the principal amount of (or, in the case of Original Issue
Discount Securities of that Series, the portion thereby specified in the terms
of such Security), premium, if any, and accrued and unpaid interest on all the
Securities of each Series of Security shall ipso
facto become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder.
(b) At any
time after the principal of the Securities of any Series of Securities shall
have been so declared due and payable (or have become immediately due and
payable), and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Holders of a
majority in principal amount of the Securities of that Series then outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences, and waive such Event of Default,
if: (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of that Series and the principal of (and premium, if any, on) any and all
Securities of that Series that shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to the
extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Securities of
that Series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.07, and (ii) any and all Events of Default
under the Indenture with respect to such Series of Securities, other than the
nonpayment of principal (or, in the case of Original Issue Discount Securities
of that Series, the portion thereby specified in the terms of such Security) on
Securities of that Series that shall not have become due by their terms, shall
have been remedied or waived as provided in Section 6.04. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION
6.03. Other
Remedies. If an
Event of Default with respect to any Series of Securities occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the principal amount of (or, in the case of Original Issue Discount
Securities of that Series, the portion thereby specified in the terms of such
Security), premium, if any, and accrued and unpaid interest on the Securities of
that Series or to enforce the performance of any provision of the Securities of
that Series or this Indenture.
The
Trustee may institute and maintain a suit or legal proceeding even if it does
not possess any of the Securities of a Series or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default with respect to
any Series of Securities shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are
cumulative.
(i) the
Holder previously gave the Trustee written notice stating that an Event of
Default with respect to that Series is continuing;
(ii) the
Holders of at least 25% in aggregate principal amount of the outstanding
Securities of that Series make a written request to the Trustee to pursue the
remedy;
(iii) such
Holder or Holders of that Series offer to the Trustee indemnity satisfactory to
it to the Trustee against any loss, liability or expense;
(iv) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and
(v) the
Holders of a majority in aggregate principal amount of the outstanding
Securities of that Series do not give the Trustee a direction inconsistent with
the request during such 60-day period.
A Holder
of Securities of any Series may not use this Indenture to prejudice the rights
of another Holder of that Series or to obtain a preference or priority over
another Holder of that Series (it being understood that the Trustee does not
have an affirmative duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders).
FIRST: to
the Trustee for amounts due under Section 7.07;
SECOND: to
Holders for amounts due and unpaid on the Securities of that Series for the
principal amount of (or, in the case of Original Issue Discount Securities of
that Series, the portion thereby specified in the terms of such Security),
premium, if any, and accrued and unpaid interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Securities
of that Series for the principal amount of (or, in the case of Original Issue
Discount Securities of that Series, the portion thereby specified in the terms
of such Security), premium, if any, and accrued and unpaid interest,
respectively; and
THIRD: to
the Company.
The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and amount to be paid.
ARTICLE
SEVEN
TRUSTEE
(b) Except
during the continuance of an Event of Default with respect to any Series of
Securities:
(1) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to the Securities of that
Series, as modified or supplemented by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(2) in the
absence of bad faith on its part, the Trustee may, with respect to Securities of
that Series, conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts
stated therein).
(c) The
Trustee may not be relieved from liability for its own grossly negligent action,
its own negligent failure to act or its own willful misconduct, except
that:
(1) this
paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the
Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to
Section 6.05.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
(e) The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.
(f) Money
held in trust by the Trustee need not be segregated from funds except to the
extent required by law.
(g) No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers, if it shall
have reasonable grounds to believe that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(h) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section and to the provisions of the TIA.
SECTION
7.02. Rights of
Trustee. (a) The Trustee may conclusively rely on any
document believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers’ Certificate or Opinion of Counsel.
(c) The
Trustee may act through agents or attorneys and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due
care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers; provided, however, that the
Trustee’s conduct does not constitute willful misconduct or gross
negligence.
(e) The
Trustee may consult with counsel of its choice, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities, shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
(f) Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an Officer
of the Company.
(g) The
Trustee shall not be deemed to have notice of any Default or Event of Default
with respect to the Securities of any Series unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references such Securities and this
Indenture.
(h) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to and
shall be enforceable by, the Trustee in each of its capacities hereunder, and to
each agent, custodian and other Person employed to act
hereunder.
(i) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by the Trustee in
compliance with such request or direction.
(j) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation.
(k) The
Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
(l) In no
event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(m) The
Trustee may request that the Company deliver a certificate setting forth the
names of individuals or titles of officers authorized at such time to take
specified actions pursuant to this Indenture.
A copy of
each report at the time of its mailing to Holders shall be filed with the SEC
and each stock exchange (if any) on which the Securities are
listed. The Company agrees to notify promptly the Trustee in writing
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
To secure
the Company’s payment obligations in this Section 7.07, the Trustee shall
have a lien prior to the Securities on all money or Property held or collected
by the Trustee other than money or Property held in trust to pay the principal
of and interest and any additional payments on particular
Securities.
The
Company’s payment obligations pursuant to this Section 7.07 shall survive
the satisfaction or discharge of this Indenture or the resignation or removal of
the Trustee. When the Trustee incurs expenses after the occurrence of
a Default specified in Section 6.01(5) or (6) with respect to the Company,
the expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged bankrupt or insolvent;
(c) a
receiver or other public officer takes charge of the Trustee or its Property;
or
(d) the
Trustee otherwise becomes incapable of acting.
If the
Trustee resigns, is removed by the Company or by the Holders of a majority in
principal amount of the Securities of any Series and such Holders do not
reasonably promptly appoint a successor Trustee or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Holders of that Series of Securities. The retiring
Trustee shall promptly transfer all Property held by it as Trustee to the
successor Trustee, subject to the lien provided for in
Section 7.07.
If a
successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee or the Holders of 10% in principal
amount of the Securities of that Series may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee.
If the
Trustee fails to comply with Section 7.10, any Holder of that Series of
Securities may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
Notwithstanding
the replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.
SECTION
7.09. Successor Trustee
by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case
at the time such successor or successors by merger, conversion or consolidation
to the Trustee shall succeed to the trusts created by this Indenture any of the
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Securities so authenticated; and if at that time any
of the Securities shall not have been authenticated, any such successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have.
ARTICLE
EIGHT
LEGAL DEFEASANCE, COVENANT
DEFEASANCE AND SATISFACTION AND DISCHARGE
(a) the
Company’s obligations with respect to such Securities of that Series under
Article Two;
(b) the
Company’s agreements set forth in Section 5.01 and 5.02;
(c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith under Article Two and Article
Seven (including, but not limited to, the rights of the Trustee and the duties
of the Company under Section 7.07, which shall survive despite the satisfaction
in full of all obligations hereunder); and
(d) this
Article Eight.
Subject
to compliance with this Article Eight, the Company may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 hereof.
In order
to exercise either Legal Defeasance or Covenant Defeasance with respect to any
Series of Securities:
(1) the
Company must irrevocably deposit in trust with the Trustee money or U.S.
Government Obligations or a combination thereof for the payment of principal of
and interest on the Securities of such Series to the Stated Maturity or
redemption, as the case may be;
(2) the
Company shall have delivered to the Trustee a certificate from a nationally
recognized firm of independent registered public accountants expressing their
opinion that the payments of principal and interest when due on the deposited
U.S. Government Obligations plus any deposited money without investment will
provide cash at such times and in such amounts as will be sufficient to pay
principal and interest when due on all the Securities of such Series to the
Stated Maturity or redemption, as the case may be;
(3) 123 days
pass after the deposit is made and during the 123 day period no Default
specified in Section 6.01(5) or (6) with respect to the Company occurs that is
continuing at the end of the period;
(4) no
Default or Event of Default with respect to that Series of Securities shall have
occurred and be continuing on the date of such deposit (other than a Default or
Event of Default with respect to that Series of Securities resulting from the
borrowing of funds to be applied to such deposit);
(5) such
deposit does not constitute a default under any other agreement binding on the
Company;
(6) the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the trust resulting from the deposit does not require registration under
the Investment Company Act of 1940;
(7) in the
case of Legal Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (ii) since the date
of this Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of such Series of Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred;
(8) in the
case of the Covenant Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of such Series of
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not occurred;
and
(9) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance
and discharge of the Securities as contemplated by this Article Eight have been
complied with.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or noncallable U.S. Government
Obligations deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities of that Series.
Anything
in this Article Eight to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the request of the Company any
money or noncallable U.S. Government Obligations held by it as provided in
Section 8.04 hereof which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under
Section 8.04(2) hereof), are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
(i)
(a) the Company’s obligations with respect to such Securities of that
Series under Article Two;
(b) the
Company’s agreements set forth in Section 5.01 and 5.02;
(c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith (including, but not limited to,
the rights of the Trustee and the duties of the Company under Section 7.07,
which shall survive despite the satisfaction in full of all obligations
hereunder); and
(d) this
Article Eight,
each of
which shall survive until the Securities of such Series have been paid in full
(thereafter, the Company’s obligations in Section 7.07 only shall
survive).
Upon the
Company’s exercise of this Section 8.08, the Trustee, on demand of the Company
and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such Series of Securities.
ARTICLE
NINE
AMENDMENTS
(1) to
evidence the succession of another Person to the Company pursuant to
Article Five and the assumption by such successor of the Company’s covenants,
agreements and obligations in this Indenture and in the
Securities;
(2) to
provide for the issuance of additional Securities in accordance with the
limitations set forth herein;
(3) to
surrender any right or power conferred upon the Company by this Indenture, to
add to the covenants of the Company such further covenants, restrictions,
conditions or provisions for the protection of the Holders of all or any Series
of Securities as the Board of Directors of the Company shall consider to be for
the protection of the Holders of such Securities, and to make the occurrence, or
the occurrence and continuance, of a default in respect of any such additional
covenants, restrictions, conditions or provisions a Default or an Event of
Default under this Indenture; provided, however, that with
respect to any such additional covenant, restriction, condition or provision,
such amendment may provide for a period of grace after default, which may be
shorter or longer than that allowed in the case of other Defaults, may provide
for an immediate enforcement upon such Default, may limit the remedies available
to the Trustee upon such Default or may limit the right of Holders of a majority
in aggregate principal amount of the Securities of any Series to waive such
default;
(4) to cure
any ambiguity or correct or supplement any provision contained in this
Indenture, in any supplemental indenture or in any Securities that may be
defective or inconsistent with any other provision contained
therein;
(5) to
convey, transfer, assign, mortgage or pledge any Property to or with the
Trustee, or to make such other provisions in regard to matters or questions
arising under this Indenture as shall not adversely affect the interests of any
Holders of Securities of any Series;
(6) to modify
or amend this Indenture in such a manner as to permit the qualification of this
Indenture or any supplemental indenture hereto under the TIA as then in
effect;
(7) to add or
to change any of the provisions of this Indenture to provide that Securities in
bearer form may be registrable as to principal, to change or eliminate any
restrictions on the payment of principal or premium with respect to Securities
in registered form or of principal, premium or interest with respect to
Securities in bearer form, or to permit Securities in registered form to be
exchanged for Securities in bearer form, so as to not adversely affect the
interests of the Holders or any coupons of any Series in any material respect or
permit or facilitate the issuance of Securities of any Series in uncertificated
form;
(8) to secure
the Securities;
(9) to make
any change that does not adversely affect the rights of any
Holder;
(10) to add
to, change, or eliminate any of the provisions of this Indenture with respect to
one or more Series of Securities, so long as any such addition, change or
elimination not otherwise permitted under this Indenture shall (A) neither
apply to any Security of any Series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor modify
the rights of the Holders of any such Security with respect to the benefit of
such provision or (B) become effective only when there is no such Security
outstanding;
(11) to
evidence and provide for the acceptance of appointment by a successor or
separate Trustee with respect to the Securities of one or more Series and to add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of this Indenture by more than one
Trustee; or
(12) to
establish the form or terms of Securities and coupons of any Series pursuant to
Article Two.
(1) reduce
the principal amount of Securities whose Holders must consent to an amendment,
modification, supplement or waiver;
(2) reduce
the rate of or extend the time for payment of interest on any
Security;
(3) reduce
the principal of or change the Stated Maturity of any
Security;
(4) reduce
the amount payable upon the redemption of any Security or add redemption
provisions to any Security;
(5) make any
Security payable in money other than that stated in this Indenture or the
Security; or
(6) make any
change in Section 4.07, 6.04 or 6.07 hereof or in the foregoing amendment
and waiver provisions.
It shall
not be necessary for the consent of the Holders under this Section to approve
the particular form of any proposed amendment, but it shall be sufficient if
such consent approves the substance thereof. After an amendment under
this Section becomes effective, the Company shall mail to all affected Holders a
notice briefly describing such amendment. The failure to give such
notice to all such Holders, or any defect therein, shall not impair or affect
the validity of an amendment under this Section.
The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this
Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for
more than 120 days after such record date.
ARTICLE
TEN
MISCELLANEOUS
If to the
Company:
DHT
Maritime, Inc.
26 New
Street
St
Helier, Jersey JE2 3RA
Channel
Islands
If to the
Trustee:
[ ]
Attn: [ ]
Telecopy: [ ]
The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any
notice or communication mailed to a Holder shall be mailed to the Holder at the
Holder’s address as it appears on the registration books of the Registrar and
shall be sufficiently given if so mailed within the time
prescribed.
Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
(1) an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(2) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have
been complied with.
(1) a
statement that the individual making such certificate or opinion has read such
covenant or condition;
(2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(3) a
statement that, in the opinion of such individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(4) a
statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with.
(b) The fact
and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to such officer the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer’s
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such signer’s authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The
ownership of bearer securities may be proved by the production of such bearer
securities or by a certificate executed by any trust company, bank, banker or
other depositary, wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the bearer
securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such bearer securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee
and the Company may assume that such ownership of any bearer security continues
until (i) another such certificate or affidavit bearing a later date issued
in respect of the same bearer security is produced, (ii) such bearer
security is produced to the Trustee by some other Person, (iii) such bearer
security is surrendered in exchange for a registered security or (iv) such
bearer security is no longer outstanding. The ownership of bearer
securities may also be proved in any other manner which the Trustee deems
sufficient.
(d) The
ownership of registered securities shall be proved by the register maintained by
the Registrar.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security shall bind every future Holder of the same
Security and the holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) If the
Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option,
by or pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Securities shall be computed as of such record
date; provided
that no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record
date.
(g) The
Depositary, as a Holder, may appoint agents and otherwise authorize Participants
to give or take any request, demand, authorization, direction, notice, consent,
waiver or other action which a Holder is entitled to give or take under the
Indenture.
48
IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as
of the date first written above.
| DHT MARITIME, INC., | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| [
], as Trustee |
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
49
Exhibit
5.1
REEDER
& SIMPSON P.C.
ATTORNEYS
AT LAW
|
P.O.
Box 601
RRE
Commercial Center
Majuro,
MH 96960
Marshall
Islands
|
Telephone: 011-692-625-3602
Facsimile: 011-692-625-3603
Email: dreeder@ntamar.net
simpson@otenet.gr
|
August 8,
2008
Ladies
and Gentlemen:
Re: DHT Maritime, Inc.
(the “Company”)
Ladies
and Gentlemen:
We are licensed to practice law in the
Republic of the Marshall Islands (the “RMI”) and
are members in good standing of the bar of the RMI. We are acting as
special RMI counsel to the Company, a RMI non-resident domestic corporation, in
connection with the registration by the Company of $200,000,000 aggregate
initial public offering price of its (i) shares of common stock, par value
US$0.01 per share (the “Common
Stock”), (ii) shares of preferred stock, par value US$0.01 per share
(the “Preferred
Stock”), and (iii) senior or subordinated debt securities (the
“Debt
Securities”), or any combination thereof, under the Securities Act of
1933, as amended (the “Securities
Act”), from time to time, in or pursuant to one or more offerings on
terms to be determined at the time of sale, on a Registration Statement on Form
F-3 filed with the Securities and Exchange Commission (the “Commission”),
and all amendments thereto (such registration statement as so amended, being
hereinafter referred to as the “Registration
Statement”).
In connection with our opinion, we have
examined electronic copies, certified or otherwise identified to our
satisfaction, of the Registration Statement and the exhibits attached thereto
and such other documents, corporate records and other instruments as we have
deemed necessary or appropriate for the purposes of this opinion. We
have also made such examinations of matters of laws as we deemed necessary in
connection with the opinion expressed herein.
We express no opinion as to matters
governed by, or the effect or applicability of any laws of any jurisdiction
other than the laws of the RMI which are in effect as the date
hereof. This opinion speaks as of the date hereof, and it should be
recognized that changes may occur in the laws of the RMI after the date of this
letter which may affect the opinions set forth herein. We assume no
obligation to advise the parties, their counsel, or any other party seeking to
rely upon this opinion, of any such changes, whether or not material, or of any
other matter which may hereinafter be brought to our attention.
Based upon and subject to the
assumptions, qualifications and limitations herein, we are of the opinion that
the Common Stock and the Preferred Stock have been duly authorized, and when the
Common Stock and the Preferred Stock is issued, sold and paid for as
contemplated in the prospectus included in the Registration Statement, will be
validly issued, fully paid and non-assessable and that the Debt Securities will
constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms.
We hereby consent to the filing of this
opinion with the Commission as an exhibit to the Registration
Statement. We also consent to the reference to our firm under the
caption “Legal
Matters” in the Registration Statement. In giving this
consent, we do not thereby admit that we are included in the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Sincerely,
/s/
Dennis J. Reeder
Reeder
& Simpson P.C.
Dennis J.
Reeder
Exhibit
8.1
August 8,
2008
Ladies
and Gentlemen:
We
have acted as special United States counsel to DHT Maritime, Inc., a company
incorporated under the laws of the Marshall Islands (the “Company”), in
connection with the registration by the Company of up to an aggregate of US
$200,000,000 of securities which may include common shares, preferred shares and
debt securities under the Securities Act of 1933, as amended (the “Securities
Act”), on a Registration Statement on Form F-3 filed with the Securities and
Exchange Commission (the “Commission”), and all amendments thereto (such
registration statement, as so amended, being hereinafter referred to as the
“Registration Statement”).
In
rendering our opinion, we have reviewed the Registration Statement and have
examined such records, representations, documents, certificates or other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below. In this examination, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified, conformed, or
photostatic copies, and the authenticity of the originals of such copies. In
making our examination of documents executed, or to be executed, by the parties
indicated therein, we have assumed that each party, including the Company, is
duly organized and existing under the laws of the applicable jurisdiction of its
organization and had, or will have, the power, corporate or other, to enter into
and perform all obligations thereunder, and we have also assumed the due
authorization by all requisite action, corporate or other, and execution and
delivery by each party indicated in the documents and that such documents
constitute, or will constitute, valid and binding obligations of each
party.
In
rendering our opinion, we have considered the applicable provisions of the
Internal Revenue Code of 1986, as amended (the “Code”), regulations promulgated
thereunder by the U.S. Department of Treasury (the “Regulations”), pertinent
judicial authorities, rulings of the U.S. Internal Revenue Service, and such
other authorities as we have considered relevant, in each case as in effect on
the date hereof. It should be noted that the Code, Regulations, judicial
decisions, administrative interpretations and other authorities are subject to
change at any time, possibly with retroactive effect. It should also be noted
that (as discussed in the Registration Statement) there is no direct legal
authority addressing certain of the issues relevant to our opinion – in
particular, the issue regarding whether the Company is currently a passive
foreign investment company. A material change in any of the materials or
authorities upon which our opinion is based could affect the conclusions set
forth herein. There can be no assurance, moreover, that any opinion expressed
herein will be accepted by the Internal Revenue Service, or if challenged, by a
court.
Based
upon the foregoing, although the discussion in the Registration Statement under
the heading “Tax Considerations – United States Federal Income Tax
Considerations” does not purport to discuss all possible United States federal
income tax consequences of the acquisition, ownership and disposition of Company
common stock, we hereby confirm that the statements of law (including the
qualifications thereto) under such heading represent our opinion of the material
United States federal income tax consequences of the acquisition, ownership and
disposition of Company common stock, subject to certain assumptions expressly
described in the Registration Statement under such heading.
We
express no other opinion, except as set forth above. We disclaim any
undertaking to advise you of any subsequent changes in the facts stated or
assumed herein or subsequent changes in applicable law. Any changes
in the facts set forth or assumed herein may affect the conclusions stated
herein.
We hereby
consent to the filing of this opinion with the Commission as Exhibit 8.1 to
the Registration Statement. We also consent to the reference to
our firm under the caption “Legal Matters” in the prospectus forming a part of
the Registration Statement. In giving this consent, we do not thereby
admit that we are included in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission.
Very truly
yours,
/s/ Cravath, Swaine &
Moore LLP
DHT
Maritime, Inc.
26 New Street
St. Helier, Jersey JE2 3RA
Channel Islands
O
2
Exhibit 10.1
EMPLOYMENT
AGREEMENT
between
Tankers
Services AS
and
Eirik
Ubøe
| TABLE OF CONTENTS | ||
|
1.
|
EMPLOYMENT
|
3
|
|
2.
|
COMPENSATION
|
4
|
|
3.
|
TERMINATION
|
5
|
|
4.
|
EXECUTIVE
COVENANTS
|
8
|
|
5.
|
USE OF DATA
SYSTEMS, E-MAIL AND INTERNET
|
11
|
|
6.
|
MISCELLANEOUS
|
12
|
This employment
agreement (the “Agreement”) has been made on this 26th of May, 2008, by and
between:
|
1.
|
Tankers Services AS, a
company incorporated under the laws of Norway having its registered office
at Haakon VII’s gt 1, Oslo, Norway (“Employer”),
and
|
|
2.
|
Eirik
Ubøe, an individual having his address in Jacob
Neumanns v 42, 1384 Asker, Norway
(“Executive”).
|
WHEREAS
|
A.
|
The Employer
is party to a service agreement dated 31st January 2006 as subsequently
amended (the “Service
Agreement”) with its parent company Double Hull Tankers Inc. (the
“Parent Company”)
whereby the Employer has agreed to provide services to the Parent
Company within the areas of financial reporting, management and control as
well as certain other management and administrative
services;
|
|
B.
|
Employer
desires to employ Executive as its Managing Director with special
responsibility for providing the Employer’s services to the Parent Company
within the areas of financial reporting management and
control;
|
|
C.
|
Executive is
willing to serve in the employ of Employer upon the other terms and
conditions of this Agreement.
|
Now, therefore, in
consideration of the foregoing and the respective representations, warranties,
covenants and agreements set forth herein, the parties hereto agree as
follows:
|
1.
|
|
1.1.
|
Effectiveness
|
This Agreement
shall become effective when executed.
|
1.2.
|
Commencement
|
The Executive’s
employment under this Agreement shall commence on 16 June 2008, or such earlier
date as the parties shall agree, and shall remain until terminated by one of the
parties.
|
1.3.
|
Position
|
The Executive shall
serve as Managing Director of the Employer and oversee the daily administration
and management of the Employer. The Executive shall be responsible for providing
the services to be provided by the Employer to the Parent Company pursuant to
the Service Agreement within the areas of financial reporting, management and
control and shall in this respect assume the role of Chief Financial Officer of
the Parent Company.
The Executive will
be responsible for overseeing the financial activities of the Parent Company
Group including but not limited to budgeting and financial planning, financial
reporting and control, cash flow management and such other responsibilities as
assigned by the CEO of the Parent Company from time to time in accordance with
the terms of the Service Agreement.
The board may
instruct Executive to accept appointments to the Boards of the Employer’s
affiliated companies. Upon termination of employment, Executive shall
simultaneously withdraw from such appointments.
Page 2 of
13
|
1.4.
|
Time
and Effort
|
Executive shall
serve Employer faithfully, loyally, honestly and to the best of Executive’s
ability. Executive shall devote substantially all of Executive’s business time
to the performance of Executive’s duties on behalf of Employer. Executive
shall be employed full time with working hours as determined by Employer at any
time, Executive is exempt from the ordinary rules concerning working hours in
the Employment Act, cf. the Employment Act section 10-12, and shall work the
amount of time necessary to fulfil the position satisfactory.
Executive shall
not, directly or indirectly, engage in any employment or other activity that, in
the sole discretion of the Board, is competitive with or adverse to the
business, practice or affairs of Employer or any of its affiliates, whether or
not such activity is pursued for profit or other advantage, or would conflict or
interfere with the rendition of Executive’s services or duties, provided that Executive may serve on
civic or charitable boards or committees and serve as a non-employee member of a
board of directors of a corporation as to which the Board has given its consent.
Executive shall resign from or terminate all positions, relationships and
activities that would be inconsistent with the foregoing,
|
1.5.
|
Location
and Travel
|
Executive’s place
of work shall be Employer’s offices at Oslo, Norway.
Executive
acknowledges and agrees that his duties and responsibilities to Employer will
require him to travel extensively and worldwide from time to time, including to
the offices of the Parent Company in the Channel Islands.
|
2.
|
|
2.1.
|
Salary
|
As
compensation for all services rendered by Executive to Employer and all its
affiliates in any capacity and for all other obligations of Executive hereunder,
Employer shall as from 16 June 2008 pay Executive a salary ("Salary”) at the annual rate of NOK
1,900,000, inclusive of compensation for overtime. The Salary is payable monthly
to a bank account specified by Executive.
Executive shall not
be entitled to receive, and Employer shall have no obligation to provide any
employee benefits (including health, welfare, disability, pension, retirement or
death benefits), fringe benefits of perquisites, except as otherwise set forth
herein or statutorily required by Norwegian law.
Executive is not
entitled to separate compensation for the board positions performed in
accordance with Clause 1.3 above unless agreed with the Board.
Executive is
entitled to have his salary reviewed annually with the first such review to take
place in January 2010.
|
2.2.
|
Equity
Awards
|
The Executive is,
at the discretion of the board of the Parent Company, eligible for equity awards
under the Group Incentive Compensation Plan. The Employee has in this respect
received restricted shares of Parent Company’s common stock as evidenced by
separate award agreements entered into by Executive and Parent
Company.
Cash
Awards
The Executive may
receive a discretionary cash bonus award which is determined annually by the
Board on the recommendation of the Compensation Committee. The annual cash bonus
award will range from 0% to a maximum of 100 % of the annual salary. The target
award shall be 50 % of the annual salary. The target award is subject to the
achievement of the objectives of the agreed business and financial plan, as well
as having performed the scope of the job responsibilities in a highly
satisfactory manner. The Executive shall be eligible for a cash bonus for the
calendar year 2008, irrespective of the fact that he has not been employed under
this Agreement for the full year.
Page 3 of
13
|
2.3.
|
Vacation
|
Executive is
entitled to holiday and holiday allowances in accordance with the Act of 29
April 1988 No. 21 relating to holidays and Employer’s rules from time to time in
force.
|
2.4.
|
Business
Expenses
|
Employer shall
reimburse Executive for all necessary and reasonable “out-of-pocket” business
expenses incurred by Executive in the performance of Executive’s duties
hereunder, provided that
Executive furnishes to Employer adequate records and other documentary evidence
required to substantiate such expenditures and otherwise complies with any
travel and expense reimbursement policy established by the Board from time to
time.
|
2.5.
|
Withholdings/deductions
from salary etc.
|
Employer and its
affiliates may withhold or deduct from any amounts payable under this Agreement
such taxes, fees, contributions and other amounts as may be required to be
withheld or deducted pursuant to any applicable law or regulation.
Deductions from
salary, bonus and holiday allowance may be made only in so far as these are
permitted by section 14-15 (2) of the Employment Act, hereunder in;
|
|
a.
|
amounts paid
to Executive as advance on salary;
|
|
|
b.
|
incorrectly
paid salary or holiday allowance;
|
|
|
c.
|
amounts
received as advance on travel or business
expenses;
|
|
|
d.
|
defaults on
instalments and interest on loans agreed upon in writing granted by
Employer to Executive;
|
|
|
e.
|
Executive’s
outstanding debts to Employer at the date of the termination of
employment, unless a specific repayment agreement has been entered into
and adequate security provided.
|
|
3.
|
|
3.1.
|
General
|
Upon termination of
employment, Executive shall return to Employer all property in his possession,
custody or control belonging to Employer, including but not limited to business
cards, credit and charge cards, keys, security and computer passes, mobile
telephones, personal computer equipment, original and copy documents or other
media on which information is held in his possession relating to the business or
affairs of the Employer.
|
3.2.
|
Termination
by Executive
|
If
Executive terminates his employment with Employer for any reason, Executive
shall provide written notice to Employer. The period of notice shall be three
- -3- months. The period of notice shall start to run on the first day of the
calendar month immediately following the date upon which notice was
given.
|
3.3.
|
Termination
by Employer
|
The notice period
in case of termination by the Employer shall be three -3- months.
Executive shall
have the right to compensation (without holiday pay) in accordance with the
provisions mentioned below. The compensation is paid at the last day of
employment if the Board decides that the Employee shall withdraw from his
position, and there is no material breach of the terms of employment or there
are no justifiable reasons for dismissal or discharge according to the
provisions of the Employment Act. In the event that Executive’s employment with
Employer is terminated, at any time and for any reason, Executive shall have no
further rights to any compensation, payments or any other benefits under this
Agreement or any other contract, plan, policy or arrangement with Employer or
its affiliates, except as follow from Norwegian mandatory statutory requirements
or as set forth in this Section 3.
The compensation in
this Section 3 does not form the basis for holiday pay or pension
benefits.
Page 4 of
13
|
3.4.
|
Accrued
Rights
|
Upon the
termination of Executive’s employment with Employer, whether by Employer or
Executive, at any time and for any reason, Executive shall be entitled to
receive (a) Salary earned through the effective date of termination that remains
unpaid as of such date and (b) reimbursement of any unreimbursed business
expenses incurred by Executive prior to the effective date of termination to the
extent such expenses are reimbursable under Section 2.7 (all such amounts, the
“Accrued
Rights”).
|
3.5.
|
Termination
by Employer Other Than for Cause
|
|
|
a.
|
If Employer
elects to terminate Executive’s employment for any reason other than Cause
(as defined below) Employer shall continue to pay Executive’s Salary for
one -1- year from the effective date of Executive’s termination of
employment, and in the event of a termination pursuant to clause (i), all
equity-based compensation granted to Executive pursuant to Clause 2.3
shall immediately vest and become exercisable, subject to the other terms
and conditions of such grants. Executive’s rights under Clause 3.5 are
subject to the following conditions: (i) that Executive signs a employment
termination agreement with the Employer under which the Executive agrees
not to dispute a possible dismissal on the part
of the Employer or the terms and conditions for such a dismissal, and
waives any and all claims against the Employer, the Parent Company and
their respective affiliates, directors, officers, employees, agents and
representatives in form and substance acceptable to Employer in relation
to Executives resignation, and (ii) that the Executive immediately
complies with any request from Employer to actually terminate Executive’s
employment and/or is released from the duty to work and/or to perform
other duties.
|
|
|
b.
|
Executive
shall forfeit any entitlement to receive payments due under this clause
3.5 in the event that Executive breaches any of his obligations under
Section 4.
|
|
|
c.
|
For purposes
of this Agreement, the term “Cause” shall mean (i)
Executive’s failure to perform those duties that Executive is required or
expected to perform pursuant to this Agreement including a failure to
ensure that the Employer fulfils its obligations towards the Parent
Company under the Service Agreement (unless otherwise instructed by the
board), (ii) Executive’s dishonesty or breach of any fiduciary duty to
Employer in the performance of Executive’s duties hereunder, (iii)
Executive’s conviction of, or a plea of guilty or nolo contendere to, a
misdemeanor involving moral turpitude,
fraud, dishonesty, theft, unethical business conduct or conduct
that impairs
the reputation of Employer or any of its affiliates or any felony (or the
equivalent thereof in any jurisdiction), (iv) Executive’s gross negligence
or wilful misconduct in connection with Executive’s duties hereunder or
any act or omission that is injurious to the financial condition or
business reputation of Employer or any of its affiliates or (v)
Executive’s breach of the provisions of Section 4 of this
Agreement.
|
|
3.6.
|
Termination
upon Death or Disability
|
|
|
a.
|
Executive’s
employment with Employer shall terminate immediately upon Executive’s
death or Disability (as defined below). In the event Executive’s
employment terminates due to death or Disability, then Employer shall
continue to pay Executive’s Salary through the first anniversary of the
effective date of such termination of
employment.
|
|
|
b.
|
For purposes
of this Agreement, the term “Disability” shall mean the
inability of Executive, due to illness, accident or any other physical or
mental incapacity, to perform Executive’s duties in a normal manner for a
period of 365 days or such longer period required for the Employer to be
entitled to lawfully terminate the Executive’s employment under Section
15-8 of the Employment Act.
|
Page 5 of
13
|
3.7.
|
Change
of Control
|
|
|
a.
|
In the event
that Executive’s employment is terminated by Executive for Good Reason
within six months following a Change of Control, Executive shall be
awarded a cash compensation of 100% of the Executive’s annual base salary
upon the effective date of Executive’s termination of employment. The
Board may at its sole discretion award the Executive an additional cash
compensation upto 100% of the Executive’s annual base salary upon the
effective date of Executive’s termination of employment, if the Board
determines that the Executive has made a significant contribution to the
transaction which has resulted in the Change of Control
occurring.
|
|
|
b.
|
For purposes
of this Agreement, the term
|
|
|
(i)
|
“Change of Control”
shall mean the occurrence of any of the following
events:
|
|
|
A.
|
(A)the
consummation of (1) a merger, consolidation, statutory share exchange or
similar form of corporate transaction involving (x) Parent Company or (y)
any entity in which Parent Company, directly or indirectly, possesses 50%
or more of the total combined voting power of all classes of its stock,
but in the case of this clause (y) only if Parent Company Voting
Securities (as defined below) are issued or issuable in connection with
such transaction (each of the transactions referred to in this clause (1)
being hereinafter referred to as a “Reorganization”) or (2) the sale or
other disposition of all or substantially all the assets of the Parent
Company to an entity that is not an affiliate (a “Sale”) if such
Reorganization or Sale requires the approval of Parent Company’s
stockholders under the law of the Parent Company’s jurisdiction of
organization (whether such approval is required for such Reorganization or
Sale or for the issuance of securities of Employer in such Reorganization
or Sale), unless, immediately following such Reorganization or Sale, (I)
all or substantially all the individuals and entities who were the
“beneficial owners” (as such term is defined in Rule 13d-3 under the
Exchange Act (or a successor rule thereto)) of the Shares or other
securities eligible to vote for the election of the Board (collectively,
the “Parent Company Voting Securities”) outstanding immediately prior to
the consummation of such Reorganization or Sale beneficially own, directly
or indirectly, more than 50% of the combined voting power of the then
outstanding voting securities of the entity resulting from such
Reorganization or Sale (including, without limitation, an entity that as a
result of such transaction owns Parent Company or all or substantially all
the Parent Company’s assets either directly or through one or more
subsidiaries) (the “Continuing Entity”) in substantially the same
proportions as their ownership, immediately prior to the consummation of
such Reorganization or Sale, of the outstanding Parent Company Voting
Securities (excluding any outstanding voting securities of the Continuing
Entity that such beneficial owners hold immediately following the
consummation of the Reorganization or Sale as a result of their ownership
prior to such consummation of voting securities of any entity involved in
or forming part of such Reorganization or Sale other than Parent Company
and its affiliates) and (II) no Person beneficially owns, directly or
indirectly, 30% or more of the combined voting power of the then
outstanding voting securities of the Continuing Entity immediately
following the consummation of such Reorganization or
Sale;
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Page 6 of
13
|
|
B.
|
the
stockholders of Parent Company approve a plan of complete liquidation or
dissolution of Parent Company; or
|
|
|
C.
|
any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d)(2) of the
Exchange Act, respectively) (other than Employer or an affiliate) becomes
the beneficial owner, directly or indirectly, of securities of Parent
Company representing 50% or more of the then outstanding Parent Company
Voting Securities; provided that
for purposes of this subparagraph (C), any acquisition directly from
Parent Company shall not constitute a Change of Control;
and
|
|
|
(ii)
|
“Good Reason”
shall mean the occurrence of any of the following events or circumstances
(without the prior written consent of Executive): (A) a material reduction
of Executive’s authority or a material change in Executive’s functions,
duties or responsibilities, (B) a reduction in Executive’s Salary, (C) a
requirement that Executive report to anyone other than the CEO, (D) a
requirement that Executive relocate his residence (it being understood
that the requirements set forth in Section 1.5 do not constitute a
requirement to relocate) or (E) a breach by Employer of any material
obligation of Employer under this Agreement (which breach has not been
cured within 30 days after written notice thereof is provided to Employer
by Executive specifically identifying such breach in reasonable
detail).
|
|
4.1.
|
Employer’s
Interests
|
|
|
Executive
acknowledges that Employer has expended substantial amounts of time, money
and effort to develop business strategies, substantial customer and
supplier relationships, goodwill, business and trade secrets, confidential
information and intellectual property and to build an efficient
organization and that Employer has a legitimate business interest and
right in protecting those assets as well as any similar assets that
Employer may develop or obtain following the Commencement Date. Executive
acknowledges and agrees that the restrictions imposed upon Executive under
this Agreement are reasonable and necessary for the protection of such
assets and that the restrictions set forth in this Agreement will not
prevent Executive from earning an adequate and reasonable livelihood and
supporting his dependents without violating any provision of this
Agreement. Executive further acknowledges that Employer would not have
agreed to enter into this Agreement without Executive’s agreeing to enter
into, and to honour the provisions and covenants of, this Section 4.
Therefore, Executive agrees that, in consideration of Employer’s entering
into this Agreement and Employer’s obligations hereunder and other good
and valuable consideration, the receipt of which is hereby acknowledged by
Executive, Executive shall be bound by, and agrees to honour and comply
with, the provisions and covenants contained in this Section 4 following
the Commencement Date.
|
|
4.2.
|
Scope
of Covenants
|
For purposes of
this Section 4, the term “Employer” includes Employer’s affiliates, and its and
their predecessors, successors and assigns,
|
4.3.
|
Non-Disclosure
of Confidential Information
|
|
|
a.
|
Executive acknowledges that, in
the performance of his duties as an employee of Employer, Executive may be
given access to Confidential Information (as defined below). Executive
agrees that all Confidential Information has been, is and will be the sole
property of Employer and/or the Parent Company and that Executive has no
right, title or interest therein. Executive shall not, directly or
indirectly, disclose or cause or permit to be disclosed to any person, or
utilize or cause or permit to be utilized, by any person, any Confidential
Information acquired pursuant to Executive’s employment with Employer
(whether acquired prior to or subsequent to the execution of this
Agreement or the Commencement Date) or otherwise, except that Executive
may (i) utilize and disclose Confidential Information as required in
the discharge of Executive’s duties as an employee of Employer in good
faith, subject to any restriction, limitation or condition placed on such
use or disclosure by Employer and/or the Parent Company, and
(ii) disclose Confidential Information to the extent required by
applicable law or as ordered by a court of competent
jurisdiction.
|
Page 7 of
13
|
|
b.
|
For purposes of this Agreement,
“Confidential Information”
shall mean trade secrets and confidential or proprietary information,
knowledge or data that is or will be used, developed, obtained or owned by
Employer, Parent Company or any of their affiliates relating to the
business, operations, products or services of Employer, Parent Company or
any such affiliate or of any customer, supplier, employee or independent
contractor thereof, including products, services, fees, pricing, designs,
marketing plans, strategies, analyses, forecasts, formulas, drawings,
photographs, reports, records, computer software (whether or not owned by,
or designed for, Employer, Parent Company or any of their affiliates),
operating systems, applications, program listings, flow charts, manuals,
documentation, data, databases, specifications, technology, inventions,
developments, methods, improvements, techniques, devices, products,
know-how, processes, financial data, customer or supplier lists, contact
persons, cost information, regulatory matters, employee information,
accounting and business methods, trade secrets, copyrightable works and
information with respect to any supplier, customer, employee or
independent contractor of Employer, Parent Company or any of their
affiliates in each case whether patentable or unpatentable, whether or not
reduced to writing or other tangible medium of expression and whether or
not reduced to practice, and all similar and related information in any
form; provided, however, that Confidential
Information shall not include information that is generally known to the
public other than as a result of disclosure by Executive in breach of this
Agreement or in breach of any similar covenant made by Executive or any
other duty of
confidentiality.
|
|
4.4.
|
Non-Disparagement
|
After the date
hereof, Executive shall not, whether in writing or orally, criticize or
disparage Employer, the Parent Company or any of their affiliates, their
businesses or any of their customers, clients, suppliers or vendors or any of
their current or former, stockholders, directors, officers, employees, agents or
representatives or any affiliates, directors, officers or employees of any of
the foregoing, provided that
Executive may provide critical assessments of Employer to Employer.
|
4.5.
|
Non-Competition
|
|
|
a.
|
For the
Restricted Period (as defined below) and subject to any limitations set by
Norwegian law, Executive shall not directly or indirectly, without the
prior written consent of the Board:
|
|
|
(i)
|
engage in any
activity or business, or establish any new business, in any location that
is involved with the voyage, chartering or time chartering of crude oil
tankers, including assisting any person in any way to do, or attempt to
do, any of the foregoing;
|
|
|
(ii)
|
solicit any
person that is a customer or client (or prospective customer or client) of
Employer, Parent Company or any of their affiliates to purchase any goods
or services of the type sold by Employer, Parent Company or any of their
affiliates from any person other than Employer, Parent Company or any of
their affiliates or to reduce or refrain from doing (or otherwise change
the terms or conditions of) any business with Employer, Parent Company or
any of their affiliates, (B) interfere with or damage (or attempt to
interfere with or damage) any relationship between Employer, Parent
Company or any of their affiliates and their respective employees,
customers, clients, vendors or suppliers (or any person that Employer,
Parent Company or any of their affiliates have approached or have made
significant plans to approach as a prospective employee, customer, client,
vendor or supplier) or any governmental authority or any agent or
representative thereof or (C) assist any person in any way to do, or
attempt to do, any of the foregoing;
or
|
Page 8 of
13
|
|
(iii)
|
form, or
acquire a two (2%) percent or greater equity ownership, voting or profit
participation interest in, any
Competitor.
|
|
|
b.
|
For purposes
of this Agreement, the term “Restricted Period” shall mean a
period commencing on June 16, 2008 and terminating one year from the date
Executive ceases to be an employee of Employer for any reason, The
Restricted Period shall be tolled during (and shall be deemed
automatically extended by) any period in which Executive is in violation
of this Section 4.5.
|
|
|
c.
|
For purposes
of this Agreement, the term “Competitor” means any person
that engages in any activity, or owns or controls a significant interest
in any person that engages in any activity, in the voyage, chartering and
time chartering of crude oil tankers; provided that a Competitor shall not
include any person who the Board has deemed, through its prior written
approval, not to be a Competitor,
|
|
4.6.
|
Records
|
All memoranda,
books, records, documents, papers, plans, information, letters, computer
software and hardware, electronic records and other data relating to
Confidential Information, whether prepared by Executive or otherwise, in
Executive’s possession shall be and remain the exclusive property of Employer
and/or the Parent Company, and Executive shall not directly or indirectly assert
any interest or property rights therein. Upon termination of employment with
Employer for any reason, and upon the request of Employer at any time, Executive
will immediately deliver to Employer all such memoranda, books, records,
documents, papers, plans, information, letters, computer software and hardware,
electronic records and other data, and all copies thereof or therefrom, and
Executive will not retain, or cause or permit to be retained, any copies or
other embodiments of such materials.
|
4.7.
|
Executive
Representations and Warranties
|
Executive
represents and warrants to Employer that the execution and delivery of this
Agreement by Executive and the performance by Executive of Executive’s duties
hereunder shall not constitute a breach of, or otherwise contravene, or conflict
with the terms of any contract, agreement, arrangement, policy or understanding
to which executive is a party or otherwise bound.
|
4.8.
|
Cooperation
|
Following the
termination of Executive’s employment, Executive shall provide reasonable
assistance to and cooperation with Employer in connection with any suit, action
or proceeding (or any appeal therefrom) relating to acts or omissions that
occurred during the period of Executive’s employment with Employer. Employer
shall reimburse Executive for any reasonable expenses incurred by Executive in
connection with the provision of such assistance and cooperation.
Page 9 of
13
|
5.1.
|
The
Employer’s and/or the Parent Company’s internal and external information
system (e.g. electronic mail system, data bases and other computer
based systems for internet and intranet) are the exclusive property of the
Employer and the Parent Company. The Executive shall, as a general rule,
use the Employer’s and Parent Company’s information systems exclusively in
connection with his work.
|
|
5.2.
|
The Employer
and the Parent Company may without prior warning access and take printouts
of all business-related data which the Employer and/or the Parent Company
has a justified interest in having access to or taking printouts of. The
term data includes incoming and outgoing electronic mail, documents, data
bases and other electronically stored material. Data may typically be
accessed if the Executive is absent from work due to illness, holiday etc,
but also in other circumstances if the Employer and/or the Parent Company
in its sole discretion considers that it has justifiable
grounds.
|
|
5.3.
|
If the
Executive uses the Employer’s and/or the Parent Company’s information
systems for private purposes, he shall ensure that data is marked so that
it is visible for the Employer and/or the Parent Company that it is of a
private nature. The Employer and/or the Parent Company reserves the right
to access and take printouts of data that appears to be or is marked
private if the Employer and/or the Parent Company has reasonable grounds
to believe that there is a breach of this employment contract that can
give grounds for dismissal or summary dismissal or there are other weighty
reasons for access.
|
|
5.4.
|
Where
practicable and there are no justifiable reasons to the contrary, the
Employer and/or the Parent Company shall endeavour to notify the Executive
before data is accessed in order that the Executive or his representative
may attend.
|
|
5.5.
|
The Executive
acknowledges that the Employer and/or the Parent Company keeps an
automatic log of the Executive’s internet activity through the Employer’s
and/or Parent Company’s information systems for the purpose of
administrating the information systems and detecting and resolving
security violations.
|
|
5.6.
|
The Executive
also acknowledges that use of the Employer’s and/or the Parent Company’s
information systems will be reviewed at regular intervals to ascertain
whether it is suited to the Employer’s and/or the Parent Company’s needs
and whether the safety strategy is sufficiently secure, The Executive also
acknowledges that all attempts at unauthorised use of the Employer’s
and/or the Parent Company’s information systems are
registered.
|
|
5.7.
|
The Executive
hereby acknowledges and consents that the Employer and/or the Parent
Company can handle personal information, including accessing and taking
printouts of documents described above, and can access the Executive’s use
of the Employer’s and/or the Parent Company’s information system for
internet etc.
|
|
5.8.
|
The Executive
shall familiarise himself with and at all times keep himself up-to-date on
the Employer’s and/or the Parent Company’s guidelines for use of the
Employer’s and/or the Parent Company’s internal and external information
systems and the consequences of breach of these
guidelines.
|
Page 10
of 13
|
6.1.
|
Assignment
|
This Agreement is
personal to Executive and shall not be assignable by Executive. The parties
agree that any attempt by Executive to delegate Executive’s duties hereunder
shall be null and void. Employer may assign this Agreement and its rights and
obligations thereunder, in whole or in part, to any person that is an affiliate,
or a successor in interest to substantially all the business or assets, of
Employer or Parent Company. Upon such assignment, the rights and obligations of
Employer hereunder shall become the rights and obligations of such affiliate or
successor person, and Executive agrees that Employer shall be released and
novated from any and all further liability hereunder. For purposes of this
Agreement, the term “Employer” shall mean Employer as hereinbefore defined in
the recitals to this Agreement and any permitted assignee to which this
Agreement is assigned.
|
6.2.
|
Successors
|
This Agreement
shall be binding upon and shall inure to the benefit of the
successors and permitted assigns of Employer and the personal and legal
representatives, executors, administrators, successors, distributees, devisees
and legatees of Executive. Executive acknowledges and agrees that all
Executive’s covenants and obligations to Employer, as well as the rights of
Employer under this Agreement, shall run in favour of and will be enforceable by
Employer, its affiliates and their successors and permitted
assigns.
|
6.3.
|
Entire
Agreement
|
This Agreement
contains the entire understanding of Executive, on the one hand, and Employer on
the other hand, with respect to the subject matter hereof, and all oral or
written agreements or representations, express or implied, with respect to the
subject matter hereof are set forth in this Agreement.
|
6.4.
|
Amendment
|
This Agreement may
not be altered, modified or amended except by written instrument signed by the
parties hereto.
|
6.5.
|
Notice
|
All notices,
requests, demands and other communications required or permitted to be given
under the terms of this Agreement shall be in writing and shall be deemed to
have been duly given when delivered by hand or overnight courier, return receipt
requested, postage prepaid, addressed to the other party as set forth
below:
|
If to
Employer:
If to
Executive;
|
Tankers
Services AS
P.O. Box 2039
Vika, 0125 Oslo, Norway.
Attn: Board
of Directors
Eirik Ubøe
Jacob
Neumanns v 42
1384 Asker,
Norway.
|
The parties may
change the address to which notices under this Agreement shall be sent by
providing written notice to the other in the manner specified
above.
|
6.6.
|
Governing
Law; Jurisdiction;
|
This Agreement
shall be governed by and construed in accordance with the laws of Norway, and
both Employer and Executive submit to the exclusive jurisdiction of the Oslo
District Court in all matters arising out of or in connection with this
Agreement.
Page 11
of 13
|
6.7.
|
Severability
|
If
any term, provision, covenant or condition of this Agreement is held by a court
of competent jurisdiction to be invalid, illegal, void or unenforceable in any
jurisdiction, then such provision, covenant or condition shall, as to such
jurisdiction, be modified or restricted to the extent necessary to make such
provision valid, binding and enforceable, or if such provision cannot be
modified or restricted, then such provision shall, as to such jurisdiction, be
deemed to be excised from this Agreement and any such invalidity, illegality or
unenforceability with respect to such provision shall not invalidate or render
unenforceable such provision in any other jurisdiction, and the remainder of the
provisions hereof shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
|
6.8.
|
Survival
|
Subject to Section
1.1 the rights and obligations of Employer and Executive under the provisions of
this Agreement, including Section 4 and 5 of this Agreement, shall survive
and remain binding and enforceable, notwithstanding any termination of
Executive’s employment with Employer for any reason, to the extent necessary to
preserve the intended benefits of such provisions.
|
6.9.
|
No
Waiver
|
The failure of a
party to insist upon strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver of such party’s rights or deprive such
party of the right thereafter to insist upon strict adherence to that term or
any other term of this Agreement.
|
6.10.
|
Counterparts
|
This Agreement may
be signed in counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
|
6.11.
|
Construction
|
|
|
a.
|
The headings
in this Agreement are for convenience only, are not a part of this
Agreement and shall not affect the construction of the provisions of this
Agreement.
|
|
|
b.
|
For purposes
of this Agreement, the words “include” and “including”, and variations
hereof, shall not be deemed to be terms of limitation but rather will be
deemed to be followed by the words “without
limitation”.
|
|
|
c.
|
For purposes
of this Agreement, the term “person” means any individual, partnership,
company, corporation or other entity of any
kind.
|
|
|
d.
|
For purposes
of this Agreement, the term “affiliate”, with respect to any person, means
any other person that controls, is controlled by or is under common
control with such person.
|
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
For and on behalf
of Tankers Services AS
|
/s/
Ole Jacob Diesen
|
/s/ Eirik
Ubøe
|
|||
|
Name:
Ole Jacob Diesen
|
Eirik Ubøe
|
|||
|
Title:
Director
|
|
Page
13 of 13
Exhibit
10.2
ADDENDUM
TO
EMPLOYMENT
AGREEMENT
between
Tankers
Services AS
and
Tom
R. Kjeldsberg
Wiersholm,
Melibye & Bech, advokatfirma AS - M.N.A
Ruseløkkveien 26. P O
Box 1400 Vika, N-0115 Oslo, Norway. T: +47 210 210 00. F: +47 210 210 01.
www.wiersholm.no
Bank
Account No: 6011.05.43908. Reg. No. 981 371 593 MVA
This
addendum agreement (the “Addendum”) has been made on
this 29th of May, 2008, by and between:
Tankers Services AS, a company
incorporated under the laws of Norway having its registered office at Haakon
VII’s gt 1, Oslo, Norway (“Employer”), and
Tom R. Kjeldsberg, an
individual having his address in Suhmsgate 28, 0362 Oslo, Norway (“Executive”).
hereinafter
referred to as “Party” in the singular and the “Parties” in the
plural:
|
1.
|
BACKGROUND
|
On the
19th of March, 2007, the Parties entered into an employment agreement (the
“Agreement”).
Now, the
Parties have agreed to make this Addendum to the Agreement.
|
2.
|
DEFINITIONS
|
Unless
otherwise provided for herein, all definitions in this Addendum shall have the
same meaning as set out in the Agreement.
|
3.
|
TERMINATION
UPON DEATH OR DISABILITY
|
This
clause 3 shall replace clause 3.6 of the Agreement.
|
|
a.
|
Executive’s
employment with Employer shall terminate immediately upon Executive’s
death or Disability (as defined below). In the event Executive’s
employment terminates due to death or Disability, then Employer shall
continue to pay Executive’s Salary through the first anniversary of the
effective date of such termination of
employment.
|
|
|
b.
|
For
purposes of this Agreement, the term “Disability” shall mean the inability
of Executive, due to illness, accident or any other physical or mental
incapacity, to perform Executive’s duties in a normal manner for a period
of 365 days or such longer period required for the Employer to be entitled
to lawfully terminate the Executive’s employment under Section 15-8 of the
Employment Act.
|
|
4.
|
USE
OF DATA SYSTEMS, E-MAIL AND
INTERNET
|
|
4.1.
|
The
Employer’s and/or the Parent Company’s internal and external information
system (e.g. electronic mail system, data bases and other computer based
systems for internet and intranet) are the exclusive property of the
Employer and the Parent Company. The Executive shall, as a general rule,
use the Employer’s and Parent Company’s information systems exclusively in
connection with his work.
|
|
4.2.
|
The
Employer and the Parent Company may without prior warning access and take
printouts of all business-related data which the Employer and/or the
Parent Company has a justified interest in having access to or taking
printouts of. The term data includes incoming and outgoing electronic
mail, documents, data bases and other electronically stored material, Data
may typically be accessed if the Executive is absent from work due to
illness, holiday etc, but also in other circumstances if the Employer
and/or the Parent Company in its sole discretion considers that it has
justifiable grounds.
|
|
4.3.
|
If
the Executive uses the Employer’s and/or the Parent Company’s information
systems for private purposes, he shall ensure that data is marked so that
it is visible for the Employer and/or the Parent Company that it is of a
private nature. The Employer and/or the Parent Company reserves the right
to access and take printouts of data that appears to be or is marked
private if the Employer and/or the Parent Company has reasonable grounds
to believe that there is a breach of this employment contract that can
give grounds for dismissal or summary dismissal or there are other weighty
reasons for access.
|
2
|
4.4.
|
Where
practicable and there are no justifiable reasons to the contrary, the
Employer and/or the Parent Company shall endeavour to notify the Executive
before data is accessed in order that the Executive or his
representative may attend
|
|
4.5.
|
The
Executive acknowledges that the Employer and/or the Parent Company keeps
an automatic log of the Executive’s Internet activity through the
Employer’s and/or Parent Company’s information systems for the purpose of
administrating the information systems and detecting and resolving
security violations.
|
|
4.6.
|
The
Executive also acknowledges that use of the Employer’s and/or the Parent
Company’s information systems will be reviewed at regular intervals to
ascertain whether it is suited to the Employer’s and/or the Parent
Company’s needs and whether the safety strategy is sufficiently secure.
The Executive also acknowledges that all attempts at unauthorised use of
the Employer’s and/or the Parent Company’s information systems are
registered.
|
|
4.7.
|
The
Executive hereby acknowledges and consents that the Employer and/or the
Parent Company can handle personal information, including accessing and
taking printouts of documents described above, and can access the
Executive’s use of the Employer’s [and/or the Parent Company’s information
system for Internet etc.
|
|
4.8.
|
The
Executive shall familiarise himself with and at all times keep himself
up-to-date on the Employer’s and/or the Parent Company’s guidelines for
use of the Employer’s and/or the Parent Company’s internal and external
information systems and the consequences of breach of these
guidelines.
|
|
5.
|
THE
AGREEMENT
|
The
Agreement shall otherwise continue in full force and effect.
* * *
This
Addendum is signed in two original counterparts, of which the parties keep one
counterpart each.
|
For
and on behalf Tankers Services AS
|
Tom
R. Kjeldsberg
|
| /s/ Ole Jacob Diesen | /s/ Tom R. Kjeldsberg |
| Ole Jacob Diesen | Tom R. Kjeldsberg |
3
Exhibit
12.1
Ratio
of earnings to fixed charges
|
Period
($000)
|
3
months ended
March
31, 2008
|
Year
ended
Dec.
31, 2007
|
Year
ended
Dec.
31, 2006
|
Successor
Oct.
18 to
Dec.
31, 2005
|
Predecessor
Jan.
1 to
Oct.
17, 2005
|
Year
ended
Dec.
31, 2004
|
Year
ended
Dec.
31, 2003
|
|||||||||||||||||||||
|
Earnings:
|
||||||||||||||||||||||||||||
|
Net
Income
|
$ |
7,625
|
$ |
27,463
|
$ |
35,750
|
$ |
9,469
|
$ |
43,641
|
$ |
86,690
|
$ |
29,431
|
||||||||||||||
|
Fixed
Charges
|
5,505
|
14,457
|
13,957
|
2,872
|
3,596
|
8,645
|
5,933
|
|||||||||||||||||||||
|
Total
Earnings
|
$ |
13,130
|
$ |
41,920
|
$ |
49,707
|
$ |
12,341
|
$ |
47,237
|
$ |
95,335
|
$ |
35,364
|
||||||||||||||
|
Fixed
Charges:
|
||||||||||||||||||||||||||||
|
Interest including
amortization of debt
issuance
cost
|
$ |
5,505
|
$ |
14,457
|
$ |
13,957
|
$ |
2,872
|
$ |
3,596
|
$ |
8,645
|
$ |
5,933
|
||||||||||||||
|
Total
Fixed Charges
|
$ |
5,505
|
$ |
14,457
|
$ |
13,957
|
$ |
2,872
|
$ |
3,596
|
$ |
8,645
|
$ |
5,933
|
||||||||||||||
|
Ratio
of Earnings to Fixed Charges
|
2.39
|
2.90
|
3.56
|
4.30
|
13.14
|
11.03
|
5.96
|
|||||||||||||||||||||
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the reference to our firm under the caption “Experts” in the
Registration Statement on Form F-3 (No.
333- )
and related Prospectus of DHT Maritime, Inc. for the registration of up to
$200,000,000 of its securities and to the incorporation by reference therein of
our reports dated March 10, 2008 and March 31, 2006, with respect to the
consolidated financial statements of DHT Maritime, Inc. (formerly Double Hull
Tankers, Inc.) and its predecessor OSG Crude and our report dated March 10,
2008 with respect to the effectiveness of internal control over financial
reporting of DHT Maritime, Inc. (formerly Double Hull Tankers, Inc.) as of
December 31, 2007 included in DHT Maritime, Inc.’s Annual Report on Form 20-F
for the year ended December 31, 2007, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young
LLP
New York,
New York
August 7,
2008