SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form 6-K
Report
of Foreign Issuer
Pursuant
to Rule 13a-16 or 15d-16
under
the Securities Exchange Act of 1934
For
the month of March 2010
Commission
File Number 001-32640
DHT
HOLDINGS, INC.
(Translation
of Registrant’s name into English)
26 New
Street
St.
Helier, Jersey JE23RA
Channel
Islands
(Address
of principal executive office)
Indicate
by check mark whether the registrant files or will file annual reports under
cover of Form 20-F or Form 40-F.
Form 20-F
þ
Form 40-F o
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(1):
Yes o No þ
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(7):
Yes o No þ
On March
1, 2010, DHT Holdings, Inc., a Marshall Islands corporation (“New DHT”),
became the successor to DHT Maritime, Inc., a Marshall Islands corporation (“Old
DHT”). This Report on Form 6-K is being filed for the purpose of
establishing New DHT as the successor issuer pursuant to Rule 12g-3(a) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and to timely
disclose events required to be disclosed on Form 6-K.
On March 1, 2010, Old DHT effected a
series of transactions (collectively, the “Holdings Dividend”) that resulted in
New DHT becoming the publicly held parent company of Old DHT. In
connection with the Holdings Dividend, each shareholder of Old DHT common stock
on March 1, 2010 received one share of New DHT common stock for each share of
Old DHT common stock held by such shareholder on such date. Following
the Holdings Dividend, shares of Old DHT common stock no longer trade on The New
York Stock Exchange (the “NYSE”). Instead, shares of common stock of
New DHT now trade on the NYSE under the ticker symbol “DHT”, which is the same
ticker symbol of Old DHT. While the shares of common stock of Old DHT
temporarily remain outstanding, these shares are uncertificated and do not trade
on the NYSE, have very little value and will likely be retired in the near
future. The economic value and voting power of shares of Old DHT
common stock have been transferred, on a one-for-one basis, to shares of New DHT
common stock.
The Holdings Dividend was effected
through a series of transactions. First, the board of directors of
Old DHT designated a new series of preferred stock, Series A Junior
Participating Preferred Stock, and declared a pro rata dividend of the shares of
such preferred stock to the holders of Old DHT common stock as of March 1,
2010. In connection with such dividend, the shares of preferred stock
were deposited in a trust for the benefit of the holders of Old DHT common
stock. By virtue of its dividend, voting and other rights, this
preferred stock of Old DHT reflects nearly all of the voting and economic value
of Old DHT. The Certificate of Designations of the Series A Junior
Participating Preferred Stock is filed as Exhibit 4.1 hereto and is incorporated
by reference herein. Second, the trust contributed the shares of the
preferred stock to New DHT in exchange for a number of shares of New DHT common
stock equal to the number of shares of Old DHT common stock outstanding
immediately prior to the Holdings Dividend. Third, the trust
distributed the shares of New DHT common stock to the holders of Old DHT common
stock (the beneficiaries of the trust) on a one-for-one basis, such that each
holder of Old DHT common stock received one share of New DHT common stock for
each share of Old DHT common stock held by such holder. As a result
of the Holdings Dividend, each Old DHT shareholder holds one share of New DHT
common stock for each share of Old DHT common stock held by such shareholder
immediately prior to the Holdings Dividend. Each outstanding
certificate for shares of Old DHT common stock has become a certificate for the
same number of shares of New DHT common stock. As a result of the
Holdings Dividend, shares of Old DHT common stock shall be
uncertificated.
The listing of New DHT common stock on
the NYSE will be effective immediately. The CUSIP number of the
common stock of New DHT remains Y2065G105.
Prior to the Holdings Dividend, shares
of Old DHT common stock were registered pursuant to Section 12(b) of the
Exchange Act and listed on the NYSE under the ticker symbol
“DHT”. Old DHT has requested that the NYSE file with the Securities
and Exchange Commission (the
“Commission”) a Form 25 to remove Old DHT’s common stock from listing on the
NYSE. Following the filing of the Form 25 by the NYSE, New DHT
expects to file a Form 15 with the Commission to terminate the registration of
Old DHT’s common stock.
Pursuant to Rule 12g-3(a) of the
Exchange Act, New DHT is the successor issuer to Old DHT and the shares of New
DHT common stock are deemed to be registered under Section 12(b) of the Exchange
Act.
A series of questions and answers about
the Holdings Dividend is filed as Exhibit 99.2 hereto and is incorporated by
reference herein.
After giving effect to the Holdings
Dividend, as of March 1, 2010, there are 48,702,181 shares of New DHT
common stock issued and outstanding. The description of the common
stock of New DHT is qualified in its entirety by reference to the Articles of
Incorporation and Bylaws of New DHT, which are filed as Exhibits 3.1 and 3.2 and
hereto, respectively, and are incorporated by reference herein.
Each of the directors and officers of
Old DHT immediately prior to the Holdings Dividend were appointed to the same
position with New DHT. In connection with the appointments described
above, New DHT entered into indemnification agreements with Ole Jacob Diesen,
New DHT’s Chief Executive Officer, and Eirik Ubøe, New DHT’s Chief Financial
Officer, which are filed as Exhibits 10.1 and 10.2 hereto, respectively, and are
incorporated by reference herein. Additionally, in connection with
the Holdings Dividend, Old DHT’s incentive compensation plan was assumed by New
DHT.
In connection with the Holdings
Dividend, New DHT provided a guaranty to the charterers of New DHT’s vessels on
time charter. The guaranty is filed as Exhibit 10.3 hereto and is
incorporated by reference herein. In addition, New DHT provided a
guaranty to Tanker Management Ltd., the ship manager of each of New DHT’s
vessels on time charter. The guaranty is filed as Exhibit 10.4 hereto
and is incorporated by reference herein. These guaranties are
substantially similar to the guaranties provided by Old DHT to the charterers of
New DHT’s vessels on time charter and to Tanker Management Ltd.,
respectively.
On March 1, 2010, New DHT issued a
press release announcing the completion of the Holdings Dividend. The
press release is filed as Exhibit 99.1 hereto and is incorporated by reference
herein.
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Exhibit
|
Description
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|
3.1
|
Articles
of Incorporation of DHT Holdings, Inc.
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3.2
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Bylaws
of DHT Holdings, Inc.
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4.1
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Certificate
of Designations of Series A Junior Participating Preferred Stock of DHT
Maritime, Inc.
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10.1
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Indemnification
Agreement, dated as of March 1, 2010, between DHT Holdings, Inc. and Ole
Jacob Diesen
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10.2
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Indemnification
Agreement, dated as of March 1, 2010, between DHT Holdings, Inc. and Eirik
Ubøe
|
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10.3
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Guaranty,
dated as of March 1, 2010, made by DHT Holdings, Inc. in favor of the
charterers listed on Schedule I thereto
|
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10.4
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Guaranty,
dated as of March 1, 2010, made by DHT Holdings, Inc. in favor of Tanker
Management Ltd.
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99.1
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Press
Release dated March 1, 2010
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99.2
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Questions
and Answers about DHT Holdings,
Inc.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
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DHT
Holdings, Inc.
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||
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Registrant
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||
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Date:
March 1, 2010
|
By:
|
/s/ Eirik Ubøe |
Exhibit
3.1
ARTICLES
OF INCORPORATION
OF
DHT
HOLDINGS, INC.
PURSUANT
TO
THE
MARSHALL ISLANDS BUSINESS CORPORATIONS ACT
ARTICLE
I.
Name
The name
of the Corporation shall be “DHT Holdings, Inc.”
ARTICLE
II.
Purpose
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may now or hereafter be organized under the Marshall Islands
Business Corporations Act (the “BCA”) and without in
any way limiting the foregoing, the Corporation shall have the
power:
(a) To
purchase or otherwise acquire, own, use, operate, pledge, hypothecate, mortgage,
lease, charter, sub-charter, sell, build, and repair steamships, motorships,
tankers, vessels, sailing vessels, tugs, lighters, barges, and all other vessels
and craft of any and all motive power whatsoever, including aircraft, landcraft,
and any and all means of conveyance and transportation by land, water or air,
together with engines, boilers, machinery equipment and appurtenances of all
kinds, including masts, sails, boats, anchors, cables, tackle, furniture and all
other necessities thereunto appertaining and belonging, together with all
materials, articles, tools, equipment and appliances necessary, suitable or
convenient for the construction, equipment, use and operation thereof; and to
equip, furnish, and outfit such vessels and ships.
(b) To engage
in ocean, coastwise and inland commerce, and generally in the carriage of
freight, goods, cargo in bulk, passengers, mail and personal effects by water
between the various ports of the world and to engage generally in waterborne
commerce.
(c) To
purchase or otherwise acquire, own, use, operate, lease, build, repair, sell or
in any manner dispose of docks, piers, quays, wharves, dry docks, warehouses and
storage facilities of all kinds, and any property, real, personal and mixed, in
connection therewith.
(d) To act as
ship’s husband, ship brokers, custom house brokers, ship’s agents, manager of
shipping property, freight contractors, forwarding agents, warehousemen,
wharfingers, ship chandlers, and general traders.
ARTICLE
III.
Address; Registered
Agent
The
registered address of the Corporation in the Republic of the Marshall Islands is
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
MH96960. The name of the Corporation’s registered agent at such address is The
Trust Company of the Marshall Islands, Inc.
ARTICLE
IV.
Capital
Stock
Section
4.01. Authorized Capital
Stock. The total number of shares of capital stock that the Corporation
shall have authority to issue is One Hundred One Million (101,000,000)
registered shares, consisting of One Hundred Million (100,000,000) registered
shares of common stock, par value of US$0.01 per share (“Common Stock”) and
One Million (1,000,000) registered shares of preferred stock, par value of $0.01
per share (“Preferred
Stock”).
Section
4.02. Preferred Stock. The
Board is hereby expressly authorized, by resolution or resolutions, to provide,
out of the unissued shares of Preferred Stock, for series of Preferred Stock
and, with respect to each such series, to fix the number of shares constituting
such series and the designation of such series, the voting powers (if any) of
the shares of such series, and the preferences and relative, participating,
optional or other special rights, if any, and any qualifications, limitations or
restrictions thereof, of the shares of such series. The powers, preferences and
relative, participating, optional and other special rights of each series of
Preferred Stock, and the qualifications, limitations or restrictions thereof, if
any, may differ from those of any and all other series at any time
outstanding.
Section
4.03. No preemptive rights.
Shareholders of the Corporation shall have no conversion, redemption or
preemptive rights to subscribe to any of the Corporation’s
securities.
ARTICLE
V.
Directors
Section
5.01. The
business and affairs of the Corporation shall be managed by or under the
direction of the Board, the exact number of directors comprising the entire
Board to be not less than three nor more than twelve (subject to any rights of
the holders of Preferred Stock to elect additional directors under specified
circumstances) as determined from time to time by resolution adopted by
affirmative vote of a majority of the Board. As used in these Articles of
Incorporation, the term “entire Board” means the total number of directors that
the Corporation would have if there were no vacancies or unfilled newly created
directorships.
Section
5.02. Number, election and
terms. The Board shall be divided into three classes, as nearly equal in
number as the then total number of directors constituting the entire Board
permits, with the term of office of one of the three classes expiring each year.
As soon as practicable after the effectiveness of these Articles of
Incorporation pursuant to the BCA (the “Effective Time”), the
incorporator of the Corporation shall hold an organization meeting to divide the
Board into three classes, with the term of office of the first class to expire
at the 2011 Annual Meeting of Shareholders, the term of office of the second
class to expire at the 2010 Annual Meeting of Shareholders and the term of
office of the third class to expire at the 2012 Annual Meeting of Shareholders.
Commencing with the 2010 Annual Meeting of Shareholders, the directors elected
at an annual meeting of shareholders to succeed those whose terms then expire
shall be identified as being directors of the same class as the directors whom
they succeed, and each of them shall hold office until the third succeeding
annual meeting of shareholders and until such director’s successor is duly
elected and has qualified. Cumulative voting, as defined in Division 7, Section
71(2) of the BCA, shall not be used to elect directors.
Section
5.03. Shareholder nomination of
Director candidates; shareholder proposal of business. Advance notice of
shareholder nominations for the election of Directors and of the proposal of
business by stockholders shall be given in the manner provided in the bylaws, as
amended and in effect from time to time.
2
Section
5.04. Newly created directorships
and vacancies. Any vacancies in the Board for any reason, other than
those specified in Section 5.05, and any created directorships resulting from
any increase in the number of directors, may be filled by the vote of not less
than a majority of the members of the Board then in office, although less than a
quorum, and any directors so chosen shall hold office until the next election of
the class for which such directors shall have been chosen and until their
successors shall be elected and qualified. Any Director elected in accordance
with the preceding sentence shall hold office for the remainder of the full term
of the class of Directors in which the new directorship was created or the
vacancy occurred and until such Director’s successor shall have been duly
elected and qualified. No decrease in the number of Directors constituting the
Board shall shorten the term of any incumbent Director. Notwithstanding the
foregoing, and except as otherwise required by law, whenever the holders of any
one or more series of Preferred Stock shall have the right, voting separately as
a class, to elect one or more directors of the Corporation, the then authorized
number of directors shall be increased by the number of directors so to be
elected, and the terms of the director or directors elected by such holders
shall expire at the next succeeding annual meeting of shareholders.
Section
5.05. Removal. (a)
Notwithstanding any other provisions of these Articles of Incorporation or the
bylaws of the Corporation (and notwithstanding the fact that some lesser
percentage may be specified by law, these Articles of Incorporation or the
bylaws of the Corporation), any Director or the entire Board may be removed at
any time, but only for cause and only by the affirmative vote of the holders of
a majority of the outstanding shares of Common Stock of the Corporation entitled
to vote generally in the election of directors cast at a meeting of the
shareholders called for that purpose. Notwithstanding the foregoing, and except
as otherwise required by law, whenever the holders of any one or more series of
Preferred Stock shall have the right, voting separately as a class, to elect one
or more directors of the Corporation, the provisions of this Section 5.05 of
this Article V shall not apply with respect to the director or directors elected
by such holders of Preferred Stock.
(b) In order
to remove a Director, a special general meeting shall be convened and held in
accordance with these Articles of Incorporation and the bylaws. Notice of such a
meeting convened for the purpose of removing a Director shall contain a
statement of the intention so to do and be served on such Director not less than
fourteen days before the meeting and at such meeting the Director shall be
entitled to be heard on the motion for such Director’s removal.
(c) For the
purpose of this Section 5.05, “cause” means (a) conviction of a felony,
indictable offence or similar criminal offence or (b) willful misconduct that
results in material injury (monetary or otherwise) to the Corporation or any of
its subsidiaries.
(d) If a
Director is removed from the Board under the provisions of this Section 5.05,
the shareholders may fill the vacancy at the meeting at which such Director is
removed. In the absence of such election or appointment, the Board may fill the
vacancy.
Section
5.06. Amendment, repeal,
etc. Notwithstanding any other provisions of these Articles of
Incorporation or the bylaws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, these Articles of
Incorporation or the bylaws of the Corporation), the affirmative vote of the
holders of a majority of the outstanding shares of Common Stock of the
Corporation entitled to vote generally in the election of directors (considered
for this purpose as one class) shall be required to amend, alter, change or
repeal this Article V.
ARTICLE
VI.
Bylaws
In
furtherance and not in limitation of the powers conferred upon it by law, the
Board shall have the authority to adopt, amend, alter or repeal the bylaws of
the Corporation by a vote of not less than a majority of the entire Board, but
any bylaw adopted by the Board may be amended or repealed by shareholders
entitled to vote thereon.
3
ARTICLE
VII.
Shareholder
Action
Section
7.01. Shareholder Meetings.
Any action required or permitted to be taken by the shareholders of the
Corporation must be effected at a duly called annual or special meeting of the
shareholders or by the unanimous written consent of the shareholders. Except as
otherwise required by law and subject to the rights of the holders of any series
of Preferred Stock, special meetings of the shareholders for any purpose or
purposes may be called only by (i) the Chairman of the Board or the chief
executive officer, at the direction of the Board as set forth in a resolution
stating the purpose or purposes thereof approved by a majority of the entire
Board or (ii) holders of not less than one-fifth of all outstanding shares of
Common Stock, who shall state the purpose or purposes of the proposed special
meeting. If there is a failure to hold the annual meeting within a period of
ninety (90) days after the date designated therefor, or if no date has been
designated for a period of thirteen (13) months after the Effective Time or
after the Corporation’s last annual meeting, holders of not less than one-fifth
of the shares entitled to vote in an election of directors may, in writing,
demand the calling of a special meeting in lieu of the annual meeting specifying
the time thereof, which shall not be less than two (2) nor more than three (3)
months from the date of such call. The Chairman of the Board or chief executive
officer of the Corporation upon receiving the written demand shall promptly give
notice of such meeting, or if the Chairman of the Board or chief executive
officer fails to do so within five (5) business days thereafter, any shareholder
signing such demand may give such notice. Such notice shall state the purpose or
purposes of the proposed special meeting. The business transacted at any special
meeting shall be limited to the purposes stated in the notice of such
meeting.
Section
7.02. Action by Unanimous Written
Consent. Any action required to be taken or which may be taken at any
annual or special meeting of shareholders of the Corporation may be taken
without a meeting if a consent in writing setting forth the action so taken, is
signed by all of the shareholders entitled to vote with respect to the subject
matter thereof.
ARTICLE
VIII.
Limitation of Director
Liability
A
Director shall not be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a Director, except, if
required by the BCA, as amended from time to time, for (i) liability for any
breach of the Director’s duty of loyalty to the Corporation or its shareholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, or (iii) for any transaction from
which the Director derived an improper personal benefit. Neither the amendment
nor repeal of this Article VIII shall eliminate or reduce the effect of this
Article VIII in respect of any matter occurring, or any cause of action, suit or
claim that, but for this Article VIII would accrue or arise, prior to such
amendment or repeal.
4
Exhibit
3.2
DHT
HOLDINGS, INC.
(the
“Corporation”)
BYLAWS
Adopted
February 16, 2010
ARTICLE
I
OFFICES
AND RECORD
Section 1.01. Address; Registered
Agent. The registered address of the Corporation in the
Republic of the Marshall Islands is Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro, Marshall Islands MH96960. The name of the
Corporation’s registered agent at such address is The Trust Company of the
Marshall Islands, Inc.
Section 1.02. Other
Offices. The Corporation may have such other offices, either
within or without the Republic of the Marshall Islands, as the Board of
Directors of the Corporation (the “Board”) may designate
or as the business of the Corporation may from time to time
require.
ARTICLE
II
SHAREHOLDERS
Section 2.01. Annual
Meeting. The annual meeting of shareholders of the Corporation
shall be held on such day and at such time and place within or without the
Republic of the Marshall Islands as the Board may determine for the purpose of
electing directors and/or transacting such other business as may properly be
brought before the meeting. The Chairman of the Board or, in the
Chairman’s absence, another person designated by the Board shall act as the
Chairman of all annual meetings of shareholders.
Section 2.02. Nature of Business at Annual
Meetings of Shareholders. (a) No business may be
transacted at an annual meeting of shareholders, other than business that is
either (i) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board (or any duly authorized committee
thereof), (ii) otherwise properly brought before the annual meeting by or
at the direction of the Board (or any duly authorized committee thereof) or
(iii) otherwise properly brought before the annual meeting by any
shareholder of the Corporation (A) who is a shareholder of record on the
date of the giving of the notice provided for in this Section 2.02 of this
Article II and has remained a shareholder of record through the record date
for the determination of shareholders entitled to vote at such annual meeting
and (B) who complies with the notice procedures set forth in
Section 2.02(b) of this Article II.
(b) In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a shareholder, such shareholder must have
given timely notice thereof in proper written form to the Secretary of the
Corporation. To be timely, a shareholder’s notice to the Secretary of
the Corporation must be delivered to or mailed and received at the principal
executive offices of the Corporation not less than ninety (90) days nor more
than one-hundred twenty (120) days prior to the anniversary date of the
immediately preceding annual general meeting. In the event the annual
general meeting is called for a date that is not within thirty (30) days before
or after such anniversary date, notice by the shareholder must be given not
later than ten days following the earlier of the date on which notice of the
annual general meeting was mailed to shareholders or the date on which public
disclosure of the date of the annual general meeting was made.
(c) To
be in proper written form, a shareholder’s notice to the Secretary of the
Corporation must set forth, as to each matter such shareholder proposes to bring
before the annual meeting, (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of such
shareholder, (iii) the class or series and number of shares of capital
stock of the Corporation which are owned beneficially or of record by such
shareholder, (iv) a description of all arrangements or understandings
between such shareholder and any other person or persons (including their names)
in connection with the proposal of such business by such shareholder and any
material interest of such shareholder in such business and (v) a
representation that such shareholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting. In
addition, notwithstanding anything in this Section 2.02 of this
Article II to the contrary, a shareholder intending to nominate one or more
persons for election as a director at an annual meeting must comply with
Article III of these Bylaws for such nomination or nominations to be
properly brought before such meeting.
(d) No
business shall be conducted at the annual meeting of shareholders except
business brought before the annual meeting in accordance with the procedures set
forth in this Article II; provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Article II shall be deemed to preclude
discussion by any shareholder of any such business. If the chairman
of an annual meeting determines that business was not properly brought before
the annual meeting in accordance with the foregoing procedures, the chairman of
the meeting shall declare to the meeting that the business was not properly
brought before the meeting and such business shall not be
transacted.
Section 2.03. Special
Meeting. Except as otherwise provided by applicable law,
special meetings of the shareholders shall be called only in accordance with the
provisions of the Articles of Incorporation of the Corporation. Only
such business as is specified in the notice of any special meeting of the
shareholders shall come before such meeting.
Section 2.04. Notice of
Meetings. Notice of every annual and special meeting of
shareholders, other than any meeting the giving of notice of which is otherwise
provided by law, stating the date, time, place and purpose thereof, and in the
case of special meetings, the name of the person or persons at whose direction
the notice is being issued, shall be given personally or sent by mail,
telegraph, cablegram, telex or teleprinter at least fifteen (15) but not more
than sixty (60) days before such meeting, to each shareholder of record entitled
to vote thereat and to each shareholder of record who, by reason of any action
proposed at such meeting would be entitled to have his shares appraised if such
action were taken, and the notice shall include a statement of that purpose and
to that effect. If mailed, notice shall be deemed to have been given
when deposited in the mail, directed to the shareholder at his address as the
same appears on the record of shareholders of the Corporation or at such address
as to which the shareholder has given notice to the Secretary of the
Corporation. Notice of a meeting need not be given to any shareholder
who submits a signed waiver of notice, whether before or after the meeting, or
who attends the meeting without protesting prior to the conclusion thereof that
he did not receive notice of such meeting.
Section 2.05. Organization; Place of
Meeting; Order of Business. (a) At every meeting
of shareholders, the Chairman of the Board, or in such person’s absence, the
Chief Executive Officer, or in the absence of both of them, any vice president,
shall act as chairman of the meeting. In the absence of the Chairman
of the Board, the Chief Executive Officers or a vice president to act as
Chairman, the Board, or if the Board fails to act, the shareholders may appoint
any shareholder, director or officer of the Corporation to act as chairman of
any meeting.
(b) Either
the Board or the Chairman of the Board may designate the place, if any, of
meeting for any annual meeting or for any special meeting of the
shareholders. If no designation is so made, the place of meeting
shall be the principal office of the Corporation.
(c) The
order of business at all meetings of shareholders, unless otherwise determined
by a vote of the holders of a majority of the number of shares present in person
or represented by proxy thereat, shall be determined by the chairman of the
meeting.
Section 2.06. Adjournments. Any
meeting of shareholders, annual or special, may adjourn from time to time to
reconvene at the same or some other place, and notice need not be given of any
such adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting
the Corporation may transact any business which might have been transacted at
the original meeting. If the meeting is adjourned for lack of quorum,
notice of the new meeting shall be given to each shareholder of record entitled
to vote at the meeting. If after an adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each shareholder of record on the new record date entitled to notice in
Section 2.04 of this Article II.
2
Section 2.07. Quorum. At
all meetings of shareholders, except as otherwise expressly provided by law,
there must be present either in person or by proxy shareholders of record
holding at least a majority of the shares issued and outstanding and entitled to
vote at such meetings in order to constitute a quorum, but if less than a quorum
is present, a majority of those shares present either in person or by proxy
shall have power to adjourn any meeting until a quorum shall be
present.
Section 2.08. Voting. If
a quorum is present, and except as otherwise expressly provided by law, the
Articles of Incorporation (including any Preferred Stock Designation) or
applicable stock exchange rules, the affirmative vote of a majority of the
shares of stock represented at the meeting shall be the act of the shareholders;
provided, however, that
directors shall be elected by a plurality of the votes cast by shareholders
entitled to vote thereat. At any meeting of shareholders, with
respect to a matter for which a shareholder is entitled to vote, each such
shareholder shall be entitled to one vote for each share it
holds. Each shareholder may exercise such voting right either in
person or by proxy; provided, however, that no
proxy shall be valid after the expiration of eleven months from the date such
proxy was authorized unless otherwise provided in the proxy. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in the law of the
Republic of the Marshall Islands to support an irrevocable power. A
shareholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary of
the Corporation. Any action required to be taken or which may be
taken at any annual or special meeting of the shareholders of the Corporation
may be taken without a meeting if a consent in writing, setting forth the action
so taken, is signed by all of the shareholders entitled to vote with respect to
the subject matter thereof.
Section 2.09. Fixing of Record
Date. The Board may fix a time not more than sixty (60) nor
less than fifteen (15) days prior to the date of any meeting of shareholders as
the time as of which shareholders entitled to notice of and to vote at such a
meeting shall be determined, and all persons who were holders of record of
voting shares at such time and no others shall be entitled to notice of and to
vote at such meeting. The Board may fix a time not exceeding sixty
(60) days preceding the date fixed for the payment of any dividend, the making
of any distribution, the allotment of any rights or the taking of any other
action, as a record time for the determination of the shareholders entitled to
receive any such dividend, distribution, or allotment or for the purpose of such
other action.
ARTICLE
III
DIRECTORS
Section 3.01. Powers;
Number. The business and affairs of the Corporation shall be
managed by or under the direction of the Board, which, subject to the provisions
of the Articles of Incorporation of the Corporation, shall consist of such
number of directors as shall be fixed by a vote of not less than a majority of
the entire Board or by the affirmative vote of holders of a majority of the
outstanding capital stock from time to time. Each director shall
serve his respective term of office until his successor shall have been elected
and qualified, except in the event of his death, resignation or
removal. No decrease in the number of directors shall shorten the
term of any incumbent director. The directors need not be residents
of the Republic of the Marshall Islands or shareholders of the
Corporation. As used in these Bylaws, the phrase “entire Board” means
the total number of directors that the Corporation would have if there were no
vacancies or unfilled newly created directorships.
Section 3.02. How
Elected. Except as otherwise provided by law or in
Section 3.05 of this Article III, the directors of the Corporation
(other than the first Board if named in the Articles of Incorporation or
designated by the incorporators) shall be elected at the annual meeting of
shareholders. Each director shall be elected to serve until the third
succeeding annual meeting of shareholders and until his successor shall have
been duly elected and qualified, except in the event of his death, resignation,
removal or the earlier termination of his term of office.
Section 3.03. Nomination of
Directors. (a) Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors of the Corporation, except as may be otherwise provided in the
Articles of Incorporation with respect to the right of holders of Preferred
Stock of the Corporation to nominate and elect a specified number of directors
in certain circumstances. Nominations of persons for election to the
Board may be made at any annual meeting of shareholders (i) by or at the
direction of the Board (or any duly authorized committee thereof) or
(ii) by any shareholder of the Corporation (A) who is a shareholder of
record on the date of the giving of the notice provided for in this
Section 3.03 of this Article III and on the record date for the
determination of shareholder entitled to vote at such meeting and (B) who
complies with the notice procedures set forth in Section 3.03(b) of this
Article III.
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(b) In
addition to any other applicable requirements, for a nomination to be made by a
shareholder, such shareholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation. To be timely, a
shareholder’s notice to the Secretary of the Corporation must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than ninety (90) days nor more than one-hundred twenty (120) days prior to
the anniversary date of the immediately preceding annual meeting of
shareholders. In the event the annual general meeting is called for a
date that is not within thirty (30) days before or after such anniversary date,
notice by the shareholder must be given not later than ten days following the
earlier of the date on which notice of the annual general meeting was mailed to
shareholders or the date on which public disclosure of the date of the annual
general meeting was made. In the case of a special general meeting
called for the purpose of electing directors, notice by the shareholder must be
given not later than ten days following the earlier of the date on which notice
of the special general meeting was mailed to shareholders or the date on which
public disclosure of the date of the special general meeting was
made.
(c) To
be in proper written form, a shareholder’s notice to the Secretary of the
Corporation must set forth: (i) as to each person whom the shareholder
proposes to nominate for election as a director (A) the name, age, business
address and residence address of the person, (B) the principal occupation
or employment of the person, (C) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of record by
the person and (D) any other information relating to the person that would
be required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the United States Securities Exchange Act of
1934, as amended (the “Exchange Act”), and
the rules and regulations promulgated thereunder applicable to issuers that are
not foreign private issuers and (ii) as to the shareholder giving the
notice (A) the name and record address of such shareholder, (B) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially and of record by such shareholder, (C) a description
of all arrangements or understandings between such shareholder and each proposed
nominee and any other person and persons (including their names) pursuant to
which the nomination(s) are to be made by such shareholder, (D) a
representation that such shareholder intends to appear in person or by proxy at
the meeting to nominate the person or persons named in its notice and
(E) any other information relating to such shareholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve as a
director if elected.
(d) No
person shall be eligible for election as a director of the Corporation unless
nominated in accordance with the procedures set forth in this Section 3.03
of this Article III. If the chairman of the meeting determines
that a nomination was not made in accordance with the foregoing procedures, the
chairman shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
Section 3.04. Removal. Except
as otherwise provided by applicable law, directors may only be removed by the
shareholders in accordance with the provisions of the Articles of Incorporation
of the Corporation.
Any or
all of the directors may be removed for cause by the shareholders, provided
notice is given to such director(s) of the shareholders meeting convened to
remove him or her provided such removal is approved by the affirmative vote of a
majority of the issued and outstanding shares of our capital stock entitled to
vote for those directors. The notice must contain a statement of the
intention to remove such director(s) and must be served on him or her not less
than fourteen days before such shareholders meeting. Any such
director is entitled to attend the meeting and be heard on the motion for his or
her removal. No director may be removed without cause by either the
shareholders or the Board of Directors.
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Section 3.05. Vacancies. Except
as otherwise provided by applicable law, vacancies in the Board shall be filled
as provided for in the Articles of Incorporation of the
Corporation.
Section 3.06. Regular
Meetings. Regular meetings of the Board shall be held in
Jersey, the Channel Islands at such time as may be determined by resolution of
the Board and no notice shall be required for any regular
meeting. Except as otherwise provided by law, any business may be
transacted at any regular meeting.
Section 3.07. Special
Meetings. Special meetings of the Board may, unless otherwise
provided by law, be called from time to time by the Chairman of the Board or the
Chief Executive Officer. The Chief Executive Officer or the Chairman
of the Board shall call a special meeting of the Board upon written request
directed to either of them by any two directors stating the time, place and
purpose of such special meeting. Special meetings of the Board shall
be held in Jersey, the Channel Islands on a date and at such time as may be
designated in the notice thereof.
Section 3.08. Notice of Special
Meeting. Notice of the date, time and place of each special
meeting of the Board shall be given to each director at least forty-eight (48)
hours prior to such meeting, unless the notice is given orally or delivered in
person, in which case it shall be given at least twenty-four (24) hours prior to
such meeting. For the purpose of this Section 3.08, notice shall
be deemed to be duly given to a director if given to him personally (including
by telephone) or if such notice be delivered to such director by mail,
telegraph, cablegram, telex or teleprinter to his last known
address. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board need be specified in the notice
of such meeting, except for amendments to these Bylaws. Notice of a
meeting need not be given to any director who submits a signed waiver of notice,
whether before or after the meeting, or who attends the meeting without
protesting, prior to the conclusion thereof, the lack of notice to
him.
Section 3.09. Quorum. A
whole number of directors equal to at least a majority of the directors at the
time in office, present in person or by proxy or conference telephone, shall
constitute a quorum for the transaction of business. If at any
meeting of the Board there shall be less than a quorum present, a majority of
the directors present may adjourn the meeting from time to time without further
notice. The act of the majority of the directors present at a meeting
at which a quorum is present shall be the act of the Board.
Section 3.10. Action By Consent of Board
of Directors. Any action required or permitted to be taken at
any meeting of the Board or any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
accordance with applicable law; provided, however, that a
majority of the members of the Board or such committee, as the case may be,
shall not be physically located in the same country when executing any consent
pursuant to this Section 3.10.
Section 3.11. Meetings by Conference
Telephone. Members of the Board or any committee thereof may
participate in a meeting of the Board or such committee by means of conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at such meeting; provided, however, that a
majority of the members of the Board or such committee, as the case may be,
shall not be physically located in the same country when acting pursuant to this
Section 3.11.
Section 3.12. Records. The
Board shall cause to be kept a record containing the minutes of the proceedings
of the meetings of the Board and of the shareholders, appropriate stock books
and registers and such books of records and accounts as may be necessary of the
proper conduct of the business of the Corporation. The books and
records of the Corporation may be kept outside the Republic of the Marshall
Islands at such place or places as may from time to time be designated by the
Board or as the business of the Corporation may from time to time
require.
Section 3.13. Interested
Directors. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, association or other organization in which one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board or committee thereof which authorizes the contract or transaction, or
solely because his or her or their votes are counted for such purpose, if:
(i) the material facts as to his or her relationship or interest and as to
the contract or transaction are disclosed or are known to the Board or the
committee and the Board or committee in good faith authorizes the contract or
transaction by the affirmative vote of a majority of the disinterested
directors, or, if the votes of the disinterested directors are insufficient to
constitute an act of the Board as defined in Section 55 of the Marshall
Islands Business Corporations Act, by unanimous vote of the disinterested
directors, (ii) the material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified by the Board, a committee thereof or the
shareholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board or of a committee
which authorizes the contract or transaction.
5
Section 3.14. Compensation of Directors
and Members of Committees. The Board may from time to time, in
its discretion, fix the amounts which shall be payable to members of the Board
and to members of any committee, for attendance at the meetings of the Board or
of such committee and for services rendered to the Corporation.
ARTICLE
IV
COMMITTEES
Section 4.01. Committees. The
Board may, by resolution or resolutions passed by a majority of the entire
Board, designate from among its members one or more committees; provided, however, that no
committee shall have the power or authority to (i) fill a vacancy in the
Board or in a committee thereof, (ii) amend or repeal any Bylaw or adopt
any new Bylaw, (iii) amend or repeal any resolution of the entire Board,
(iv) increase the number of directors on the Board or (v) remove any
director. The Board shall designate an Audit Committee, which shall
at all times be comprised of at least two members that are considered
“independent” under the rules of the stock exchange that the Corporation’s
common stock is listed on. Initially, the entire Board shall be the
audit committee. Members of any committee shall hold office for such
period as may be prescribed by the vote of the entire Board, subject, however,
to removal at any time by the vote of the Board. Vacancies in
membership of such committees shall be filled by vote of the
Board. Committees may adopt their own rules of procedure and may meet
at stated times or on such notice as they may determine. Each
committee shall keep a record of its proceedings and report the same to the
Board when required.
ARTICLE
V
OFFICERS
Section 5.01. Number and
Designation. The Board shall appoint a Chief Executive
Officer, Chief Financial Officer and Secretary and such other officers as it may
deem necessary. Officers may be of any nationality and need not be
residents of the Republic of the Marshall Islands; provided, however, that all
major decisions of the officers shall be made in Jersey, the Channel
Islands. The officers shall be appointed by the Board at its first
meeting following the appointment of directors, (except that the initial
officers may be named by the Board at its first meeting following such Board’s
appointment in the Articles of Incorporation or as designated by the
incorporators) but in the event of the failure of the Board to so appoint any
officer, such officer may be elected at any subsequent meeting of the
Board. The salaries of officers and any other compensation paid to
them shall be fixed from time to time by the Board. The Board may at
any meeting appoint additional officers. Each officer shall hold
office until his successor shall have been duly appointed and qualified except
in the event of the earlier termination of his term of office, through death,
resignation, removal or otherwise. Any officer may be removed by the
Board at any time with or without cause. Any vacancy in an office may
be filled for the unexpired portion of the term of such office by the Board at
any regular or special meeting.
Section 5.02. Chief Executive
Officer. In the absence of the Chairman of the Board or an
appointee of the Board, the Chief Executive Officer of the Corporation shall
preside at all meetings of the Board and of the shareholders at which he or she
shall be present. The Chief Executive Officer shall perform all
duties incident to the office of Chief Executive Officer of a corporation and
such other duties as may, from time to time, be assigned to him or her by the
Board or as may be provided by law.
6
Section 5.03. Chief Financial
Officer. The Chief Financial Officer shall have general
supervision over the care and custody of the funds, securities, and other
valuable effects of the Corporation and shall deposit the same or cause the same
to be deposited in the name of the Corporation in such depositories as the Board
may designate, shall disburse the funds of the Corporation as may be ordered by
the Board, shall have supervision over the accounts of all receipts and
disbursements of the Corporation, shall, whenever required by the Board, render
or cause to be rendered financial statements of the Corporation, shall have the
power and perform the duties usually incident to the office of Chief Financial
Officer and shall have such powers and perform other duties as may be assigned
to him by the Board or Chief Executive Officer.
Section 5.04. Secretary. The
Secretary shall act as secretary of all meetings of the shareholders and of the
Board at which he is present, shall have supervision over the giving and serving
of notices of the Corporation, shall be the custodian of the corporate records
and of the corporate seal of the Corporation, shall be empowered to affix the
corporate seal to those documents, the execution of which, on behalf of the
Corporation under its seal, is duly authorized and when so affixed may attest
the same, and shall exercise the powers and perform such other duties as may be
assigned to him by the Board or the Chief Executive Officer.
Section 5.05. Other
Officers. Officers other than those treated in
Sections 5.02 through 5.04 of this Article V shall exercise such
powers and perform such duties as may be assigned to them by the Board or the
Chief Executive Officer.
Section 5.06. Bond. The
Board shall have power to the extent permitted by law to require any officer,
agent or employee of the Corporation to give bond for the faithful discharge of
his duties in such form and with such surety as the Board may deem
advisable.
ARTICLE
VI
CERTIFICATES
FOR SHARES
Section 6.01. Form and
Issuance. (a) Every holder of stock in the
Corporation shall be entitled to have a certificate in form meeting the
requirements of law and approved by the Board that certifies the number of
shares owned by him or her in the Corporation. Certificates shall be
signed by (i) the Chief Executive Officer or the Chairman of the board and
(ii) by the Secretary or any Assistant Secretary or the Chief Financial
Officer or any Assistant Financial Officer. These signatures may be
facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar other than the Corporation itself or its employee.
(b) For
each class or series of stock that the Corporation shall be authorized to issue,
the powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences or rights shall
be set forth in full or summarized on the face or back of the certificate which
the Corporation shall issue to represent each class or series of stock; provided, however, that, except
as otherwise required by the Business Corporation Act of the Republic of the
Marshall Islands, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the Corporation will
furnish without charge to each shareholder that so requests the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences or rights.
Section 6.02. Transfer. The
Board shall have power and authority to make such rules and regulations as they
may deem expedient concerning the issuance, registration and transfer of
certificates representing shares of the Corporation’s stock, and may appoint
transfer agents and registrars thereof.
Section 6.03. Loss of Stock
Certificates. The Board may direct a new certificate of stock
to be issued in place of any certificate or certificates theretofore issued by
the Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be
lost or destroyed. When authorizing such issue of a new certificate
or certificates, the Board may, in its discretion and as a condition precedent
to the issuance thereof, require the owner of such lost or destroyed certificate
or certificates, or his legal representative, to advertise the same in such
manner as it shall require and/or give the Corporation a bond in such sum as it
may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost or
destroyed.
7
Section 6.04. Stock Certificates;
Uncertificated Shares. The interest of each stockholder of the
Corporation may also be evidenced by uncertificated shares of stock, whether
upon original issuance, re-issue, or subsequent transfer in such form as the
appropriate officer of the Corporation may from time to time
prescribe. The Board shall by resolution designate the classes of the
Corporation’s securities that may be represented by uncertificated
shares.
ARTICLE
VII
DIVIDENDS
Section 7.01. Declaration and
Form. Dividends may be declared in conformity with law by, and
at the discretion of, the Board at any regular or special
meeting. Dividends may be declared and paid in cash, stock or other
property of the Corporation.
ARTICLE
VIII
NEGOTIABLE
INSTRUMENTS, CONTRACTS, ETC.
Section 8.01. Signatures on Checks,
Etc. All checks, drafts, bills of exchange, notes or other
instruments or orders for the payment of money or evidences of indebtedness
shall be signed for or in the name of the Corporation by at least two officers,
or an officer and Corporation employee, as the Board may from time to time
designate by resolution.
Section 8.02. Execution of
Contracts. The Chief Executive Officer, the Chief Financial
Officer or any vice president, and any other officer or officers that the Board
may designate shall have full authority in the name of and on behalf of the
Corporation to enter into any contract or execute and deliver any instruments or
notes, or other evidences of indebtedness unless such authority shall be limited
by the Board to specific instances.
Section 8.03. Bank
Accounts. All funds of the Corporation shall be deposited from
time to time to the credit of the Corporation in such banks, trust companies or
other depositories as the Board may select or as may be selected by any two
officers or agents of the Corporation to whom such power may from time to time
be delegated by the Board.
ARTICLE
IX
INDEMNIFICATION
Section 9.01. Right to
Indemnification. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person (a “Covered Person”) who
was or is made or is threatened to be made a party to or a witness in or is
otherwise involved in any action, suit, claim, inquiry or proceeding, whether
civil, criminal, administrative or investigative (including an action by or in
the right of the Corporation) and whether formal or informal (a “Proceeding”), by
reason of the fact that he or she, or a person for whom he or she is the legal
representative, is or was a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, employee, trustee or agent of another
corporation or of a partnership, joint venture, trust, nonprofit entity or other
entity, including service with respect to employee benefit plans, against all
liability and loss suffered, and expenses (including attorneys’ fees) actually
and reasonably incurred, by such Covered Person in connection with such
Proceeding. Notwithstanding the preceding sentence, except as
otherwise provided in Section 9.03, the Corporation shall be required to
indemnify or advance expenses to a Covered Person in connection with a
Proceeding (or part thereof) commenced by such Covered Person (and not by way of
defense) only if the commencement of such Proceeding (or part thereof) by the
Covered Person (i) was authorized in the specific case by the Board, or
(ii) was brought to establish or enforce a right to indemnification under
these Bylaws, the Corporation’s Articles of Incorporation, any agreement, the
Business Corporations Act of the Republic of the Marshall Islands or
otherwise.
8
Section 9.02. Prepayment of
Expenses. The Corporation shall to the fullest extent not
prohibited by applicable law pay the expenses (including attorneys’ fees)
actually and reasonably incurred by a Covered Person who was or is made or is
threatened to be made a party to or a witness in or is otherwise involved in any
Proceeding, by reason of the fact that he or she, or a person for whom he or she
is the legal representative, is or was a director or officer of the Corporation
or, while a director or officer of the Corporation, is or was serving at the
request of the Corporation as a director, officer, employee, trustee or agent of
another corporation or of a partnership, joint venture, trust, nonprofit entity
or other entity, including service with respect to employee benefit plans in
advance of its final disposition; provided, however, that, to the
extent required by law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the Covered Person to repay all amounts advanced if it should be ultimately
determined that the Covered Person is not entitled to be indemnified under this
Article IX or otherwise.
Section 9.03. Claims. If
a claim for indemnification (following the final disposition of such action,
suit or proceeding) or advancement of expenses under this Article IX is not
paid in full within thirty days after a written claim therefor by the Covered
Person has been presented to the Corporation, the Covered Person may file suit
against the Corporation to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In addition, the Covered Person may file suit
against the Corporation to establish a right to indemnification or advancement
of expenses. In any such action the Corporation shall have the burden
of proving by clear and convincing evidence that the Covered Person is not
entitled to the requested indemnification or advancement of expenses under
applicable law.
Section 9.04. Nonexclusivity of
Rights. The rights conferred on any Covered Person by this
Article IX shall not be exclusive of any other rights which such Covered
Person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, these Bylaws, agreement, vote of shareholders or
disinterested directors or otherwise.
Section 9.05. Other
Sources. The Corporation’s obligation, if any, to indemnify or
to advance expenses to any Covered Person who was or is serving at its request
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, enterprise or nonprofit entity shall be reduced to the
extent such Covered Person has otherwise actually received payment (under any
insurance policy or otherwise) of the amounts otherwise payable by the
Corporation.
Section 9.06. Amendment or
Repeal. Any repeal or modification of the provisions of this
Article IX shall not adversely affect any right or protection hereunder of
any Covered Person in respect of any act or omission occurring prior to the time
of such repeal or modification.
Section 9.07. Other Indemnification and
Prepayment of Expenses. This Article IX shall not limit
the right of the Corporation, to the extent and in the manner permitted by law,
to indemnify and to advance expenses to persons other than Covered Persons when
and as authorized by appropriate corporate action.
Section 9.08. Insurance. The
Corporation shall have the power to purchase and maintain insurance on behalf of
any person who is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer against any
liability asserted against such person and incurred by such person in such
capacity whether or not the Corporation would have the power to indemnify such
person against such liability by law or under the provisions of these
Bylaws.
ARTICLE
X
GENERAL
PROVISIONS
Section 10.01. Form. The
Seal of the Corporation, if any, shall be circular in form, with the name of the
Corporation in the circumference and such other appropriate legend as the Board
may from time to time determine.
Section 10.02. Resignation and Removal of
Officers and Directors. Any director or officer of the
Corporation may resign as such at any time by giving written notice to the Board
or to the Chief Executive Officer or the Secretary of the Corporation, and any
member of any committee may resign by giving notice either as aforesaid or to
the committee of which he is a member or to the chairman thereof. Any
such resignation shall take effect at the time specified therein or, if the time
be not specified, upon receipt thereof; and unless otherwise specified therein,
acceptance of such resignation shall not be necessary to make it
effective.
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Section 10.03. Fiscal
Year. The fiscal year of the Corporation shall be such period
of twelve consecutive months as the Board may by resolution
designate. Initially, the fiscal year of the Corporation shall end on
December 31 of each year.
Section 10.04. Amendments. These
Bylaws may be amended, added to, altered or repealed, or new Bylaws may be
adopted, solely at any regular or special meeting of the Board by the
affirmative vote of a majority of the entire Board.
Section 10.05. Savings
Clause. These Bylaws are subject to the provisions of the
Articles of Incorporation of the Corporation and applicable law. If
any provision of these Bylaws is inconsistent with the Business Corporations Act
of the Republic of the Marshall Islands, such provision shall be invalid only to
the extent of such conflict, and such conflict shall not affect the validity of
any other provision of these Bylaws.
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Exhibit 4.1
CERTIFICATE
OF DESIGNATIONS
of
SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK
of
DHT
MARITIME, INC.
Pursuant to Section 35 of the Business
Corporations Act of the Republic of the Marshall Islands, DHT MARITIME, INC., a
corporation organized and existing under the laws of the Republic of the
Marshall Islands, in accordance with the provisions of Section 5 of such
Business Corporations Act, DOES HEREBY CERTIFY:
That, pursuant to the authority
conferred upon the Board of Directors of DHT Maritime, Inc. by Article IV of its
Restated Articles of Incorporation, such Board of Directors on February 26,
2010, adopted the following resolution designating a new series of preferred
stock as Series A Junior Participating Preferred Stock:
RESOLVED, that, pursuant to the
authority vested in the Board of Directors (the “Board”) of DHT
MARITIME, INC. (the “Company”) in
accordance with the provisions of the Restated Articles of Incorporation of the
Company (the “Articles”) and the
provisions of Section 35(5) of the Business Corporations Act of the Republic of
the Marshall Islands (the “BCA”), a series of
preferred stock of the Company is hereby authorized, and the number of shares
and designation thereof, and the voting powers, preferences and relative,
participating, optional and other special rights, and the qualifications,
limitations or restrictions thereof, shall be as follows (in addition to the
voting powers, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations or restrictions thereof, set
forth in the Articles which are applicable to shares of Preferred Stock, par
value $0.01 per share of the Company (the “Preferred
Stock”)):
SECTION 1. Designation and Number of
Shares. The shares of such series shall be designated as
“Series A Junior Participating Preferred Stock” (the “Series A Junior
Participating Preferred Stock”). The number of shares
constituting the Series A Junior Participating Preferred Stock shall be
100,000.
SECTION 2. Dividends or
Distributions. (a) The holders of shares of Series
A Junior Participating Preferred Stock shall be entitled to receive, when, as
and if declared by the Board, out of the assets of the Company legally available
therefor, (1) quarterly dividends payable in cash on the last day of each fiscal
quarter of the Company (or the next succeeding business day if such day is not a
business day) or such other date during a fiscal quarter as the Board may
specify from time to time (each such date being referred to herein as a “Quarterly Dividend Payment
Date”), commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share of Series A Junior Participating Preferred Stock, in
the amount of (x) $100.00 per share less (y) the amount of all cash
dividends declared on the Series A Junior Participating Preferred Stock pursuant
to the following clause (2) since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share of Series A Junior Participating Preferred
Stock (the total of which shall not, in any event, be less than zero) and (2)
dividends payable in cash on the payment date for each cash dividend declared on
the shares of Common Stock, par value $0.01 per share, of the Company (the
“Common Stock”)
in an amount per share equal to the Participation Factor (as hereinafter
defined) then in effect times the cash dividends then to be paid on each share
of Common Stock. In addition, if the Company shall pay any dividend
or make any distribution on the Common Stock payable in assets, securities or
other forms of noncash consideration (other than dividends or distributions
solely in shares of Common Stock or in shares of Series A Junior Participating
Preferred Stock), then, in each such case, the Company shall simultaneously pay
or make on each outstanding share of Series A Junior Participating Preferred
Stock a dividend or distribution in like kind equal to the product of
(x) the Participation Factor then in effect and (y) such dividend or
distribution on each share of Common Stock (or, if applicable, a share of such
dividend or distribution such that the value received per each outstanding share
of Series A Junior Participating Preferred Stock is equal to the product of
(A) the Participation Factor then in effect and (B) the value received
per each outstanding share of Common Stock). As used herein, the
“Participation
Factor” shall be 1,000,000; provided, however, that, if, at
any time after February 26, 2010, the Company shall (i) declare or pay any
dividend on the Common Stock payable in shares of Common Stock or make any
distribution on the Common Stock in shares of Common Stock, (ii) subdivide
(by a stock split or otherwise) the outstanding shares of Common Stock into a
larger number of shares of Common Stock or (iii) combine (by a reverse stock
split or otherwise) the outstanding shares of Common Stock into a smaller number
of shares of Common Stock, then in each such event the Participation Factor
shall be adjusted to a number determined by multiplying the Participation Factor
in effect immediately prior to such event by a fraction, the numerator of which
is the number of shares of Common Stock that are outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that are outstanding immediately prior to such event (and rounding the result to
the nearest whole number); and provided further
that, if, at any time after February 26, 2010, the Company shall issue any
shares of its capital stock in a merger, reclassification, or change of the
outstanding shares of Common Stock, then in each such event the Participation
Factor shall be appropriately adjusted by the Board, in its discretion, to
reflect such merger, reclassification or change so that each share of Preferred
Stock continues to be the economic equivalent of a Participation Factor of
shares of Common Stock prior to such merger, reclassification or
change.
2
(b) The Company shall
declare a cash dividend on the Series A Junior Participating Preferred Stock as
provided in Section 2(a) immediately prior to or at the same time it declares a
cash dividend on the Common Stock; provided, however, that, in the
event no cash dividend shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, during the period between the first issuance of any share or
fraction of a share of Series A Junior Participating Preferred Stock, a dividend
of $100.00 per share on the Series A Junior Participating Preferred Stock shall
nevertheless accrue on such subsequent Quarterly Dividend Payment Date or the
first Quarterly Dividend Payment Date, as the case may be. The Board
may fix a record date for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive a dividend or
distribution declared thereon, which record date shall be the same as the record
date for any corresponding dividend or distribution on the Common
Stock.
(c) Dividends shall begin to
accrue and be cumulative on outstanding shares of Series A Junior Participating
Preferred Stock from and after the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue and be
cumulative from and after the date of issue of such shares, or unless the date
of issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from and after such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior
Participating Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time
outstanding.
(d) So long as any shares of
Series A Junior Participating Preferred Stock are outstanding, no dividends or
other distributions shall be declared, paid or distributed, or set aside for
payment or distribution, on the Common Stock unless, in each case, the dividend
required by this Section 2 to be declared on the Series A Junior
Participating Preferred Stock shall have been declared and set
aside.
SECTION 3. Voting
Rights. The holders of shares of Series A Junior Participating
Preferred Stock shall have the following voting rights:
(a) Each holder of Series A
Junior Participating Preferred Stock shall be entitled to a number of votes
equal to the Participation Factor then in effect for each share of Series A
Junior Participating Preferred Stock held of record.
(b) Except as otherwise
herein provided or by the Articles or as otherwise required by the BCA, the
holders of shares of Series A Junior Participating Preferred Stock and the
holders of shares of Common Stock shall vote together as one class on all
matters submitted to a vote of stockholders of the Company, including the
election of directors, and shall be considered one class for purposes of
determining a quorum.
(c) Except as provided
herein or by the Articles or as otherwise required by the BCA, holders of Series
A Junior Participating Preferred Stock shall have no special voting rights and
their consent shall not be required for authorizing or taking any corporate
action.
SECTION 4. Certain
Restrictions. (a) Whenever quarterly dividends or
other dividends or distributions on the Series A Junior Participating Preferred
Stock as provided in Section 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on shares of
Series A Junior Participating Preferred Stock outstanding shall have been paid
in full, the Company shall not, without first obtaining the written consent of
each holder of shares of Series A Junior Participating Preferred
Stock:
3
(i) declare or pay dividends
on, make any other distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay
dividends on or make any other distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred Stock and all such parity
stock on which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or
otherwise acquire for consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock; provided, however, that the
Company may at any time redeem, purchase or otherwise acquire shares of any such
parity stock in exchange for shares of any stock of the Company ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to the
Series A Junior Participating Preferred Stock; or
(iv) purchase or otherwise
acquire for consideration any shares of Series A Junior Participating Preferred
Stock, or any shares of stock ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance with a purchase offer made
in writing or by publication (as determined by the Board) to all holders of such
shares upon such terms as the Board, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(b) The Company shall not
permit any subsidiary of the Company to purchase or otherwise acquire for
consideration any shares of stock of the Company unless the Company could, under
Section 4(a), purchase or otherwise acquire such shares at such time and in such
manner; provided, however, for the
avoidance of doubt, that such restriction shall not apply to any person that is
not a subsidiary of the Company.
SECTION 5. Liquidation
Rights. (a) Upon the liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, no distribution
shall be made (1) to the holders of any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock unless, prior thereto, the holders
of shares of Series A Junior Participating Preferred Stock shall have received
an amount equal to the accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment plus an amount equal to the
product of (x) the Participation Factor then in effect and (y) the
aggregate amount to be distributed per share to holders of Common Stock (or, if
applicable, a share of such distribution such that the value received per each
outstanding share of Series A Junior Participating Preferred Stock is equal
to the product of (A) the Participation Factor then in effect and
(B) the value received per each outstanding share of Common Stock) or (2)
to the holders of any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Junior Participating Preferred Stock, except distributions made ratably on the
Series A Junior Participating Preferred Stock and all other such parity stock in
proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up.
4
(b) For purposes of this
Section 5, the consolidation or merger of the Company with any other corporation
or entity, including a consolidation or merger in which the holders of Series A
Junior Participating Preferred Stock receive stock, securities, cash or other
property for their shares, or the sale, lease or exchange (for stock,
securities, cash or other property) of all or substantially all of the assets of
the Company, shall not constitute a liquidation, dissolution or winding up of
the Company.
SECTION 6. Consolidation, Merger,
etc. In case the Company shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash or any other
property, then in any such case the then outstanding shares of Series A Junior
Participating Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share equal to the Participation Factor then in
effect times the aggregate amount of stock, securities, cash or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is exchanged or changed. In the event both this
Section 6 and Section 2 appear to apply to a transaction, this Section 6 will
control.
SECTION 7. No Redemption; No Sinking
Fund. (a) The shares of Series A Junior
Participating Preferred Stock shall not be subject to redemption by the Company
or at the option of any holder of Series A Junior Participating Preferred Stock;
provided, however, that,
subject to Section 4(a)(iv), the Company or any of its subsidiaries may
purchase or otherwise acquire outstanding shares of Series A Junior
Participating Preferred Stock in the open market or by offer to any holder or
holders of shares of Series A Junior Participating Preferred Stock.
(b) The shares of Series A
Junior Participating Preferred Stock shall not be subject to or entitled to the
operation of a retirement or sinking fund.
SECTION 8. Ranking. The
Series A Junior Participating Preferred Stock shall rank, with respect to
payment of dividends and distribution of assets upon the liquidation,
dissolution or winding up of the Company, senior to the Common Stock, junior to
all other classes of Preferred Stock (unless any such class is declared
expressly to rank junior to or on a parity with the Series A Junior
Participating Preferred Stock) and junior to all existing and future debt
obligations or indebtedness of the Company.
5
SECTION 9. Reacquired
Shares. Any shares of Series A Junior Participating Preferred
Stock purchased or otherwise acquired by the Company in any manner whatsoever
shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock, without designation as to
series until such shares are once more designated as part of a particular series
by the Board pursuant to the provisions of the Articles.
SECTION 10. No Fractional
Shares. Fractional shares of Series A Junior Participating
Preferred Stock shall not be issued.
SECTION 11. Amendment. So
long as any shares of Series A Junior Participating Preferred Stock shall be
outstanding, none of the powers, preferences and relative, participating,
optional and other special rights of the Series A Junior Participating Preferred
Stock as herein provided shall be amended in any manner which would alter or
change the powers, preferences, rights or privileges of the holders of Series A
Junior Participating Preferred Stock so as to affect them adversely, unless each
holder thereof shall have consented to such amendment in writing.
SECTION 12. Form. The
Series A Junior Participating Preferred Stock certificate shall be substantially
in the form of Exhibit
A, which is hereby incorporated herein and expressly made a part
hereof. The Series A Junior Participating Preferred Stock certificate
may have notations, legends, or endorsements required by law, stock exchange
rule, agreements to which the Company is subject, if any, or usage (provided
such notation, legend or endorsement is in a form acceptable to the
Company).
SECTION 13. Declaration of a Stock
Dividend. Shares of Series A Junior Participating Preferred
Stock may be distributed pro rata to the holders of Common Stock pursuant to the
provisions of Section 44 of the BCA (the “Series A
Dividend”). In connection with the declaration of the Series A
Dividend, the Board, in its discretion and subject to the exercise of its
fiduciary duties, may specify in such declaration that any shares of Series A
Junior Participating Preferred Stock issued pursuant to the Series A Dividend
shall be held in trust (the “Series A Trust”) for
the benefit of those holders of Common Stock to whom such Series A Dividend has
been declared (the “Series A Beneficial
Holders”), provided that each
Series A Beneficial Holder shall have the absolute right to receive, upon
request and to the extent not previously distributed to such Series A Beneficial
Holder, a distribution from the Series A Trust equal to such Series A Beneficial
Holder’s beneficial interest in the Series A Trust (which beneficial interest
may consist of shares of Series A Junior Participating Preferred or, if such
shares have been disposed of by the trustees, such cash, securities, property or
other assets received in connection with such disposition). The
trustees of the Series A Trust shall have the customary powers, duties and
obligations of trustees, including the right to sell, lease, exchange, transfer,
pledge or otherwise dispose of the property of the Series A Trust, as such may
be further described, expanded or limited in the trust document, if any,
governing such Series A Trust. If any shares of Series A Junior
Participating Preferred Stock are issued pursuant to a Series A Dividend, the
Company shall record on its financial statements, contemporaneously with such
declaration, a transfer from surplus to stated capital of an amount equal to the
aggregate par value of any such shares.
6
IN
WITNESS WHEREOF, DHT Maritime, Inc. has caused this Certificate of Designations
of Series A Junior Participating Preferred Stock to be duly executed in its
corporate name on this 26th day of February, 2010.
| DHT MARITIME, INC., | |||
| by | |||
|
|
/s/ Ole Jacob Diesen
|
||
| Name: Ole Jacob Diesen | |||
| Title: Chief Executive Officer | |||
7
Exhibit
10.1
INDEMNIFICATION
AGREEMENT (the “Agreement”) effective
from March 1, 2010 between DHT Holdings, Inc., a corporation incorporated
under the laws of the Republic of the Marshall Islands (the “Corporation”), and
Ole Jacob Diesen, an individual (the “Covered
Person”).
WHEREAS, the Corporation desires to
employ the Covered Person as its Chief Executive Officer upon the consummation
of a series of transactions that resulted in the Corporation becoming the
publicly held parent company of DHT Maritime, Inc.; and
WHEREAS, the Covered Person is willing
to serve as the Chief Executive Officer pursuant to the terms of an employment
agreement between the Corporation and the Covered Person and this
Agreement.
NOW, THEREFORE, in consideration of the
foregoing and the terms set forth herein, the parties hereto hereby agree as
follows:
ARTICLE
I
INDEMNIFICATION
SECTION 1.01. Right to
Indemnification. The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, the Covered Person against all liability and loss
suffered, and expenses (including attorneys’ fees) actually and reasonably
incurred, by such Covered Person in connection with any action, suit, claim,
inquiry or proceeding, whether civil, criminal, administrative or investigative
(including an action by or in the right of the Corporation) and whether formal
or informal (a “Proceeding”) and by
reason of the fact that he, or a person for whom he is the legal representative,
is or was a director or officer of the Corporation or, while a director or
officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, employee, trustee or agent of another corporation or of
a partnership, joint venture, trust, nonprofit entity or other entity, including
service with respect to employee benefit plans. Notwithstanding the
preceding sentence, except as otherwise provided in Section 1.03, the
Corporation shall be required to indemnify or advance expenses to a Covered
Person in connection with a Proceeding (or part thereof) commenced by such
Covered Person (and not by way of defense) only if the commencement of such
Proceeding (or part thereof) by the Covered Person (i) was authorized in
the specific case by the Board, or (ii) was brought to establish or enforce
a right to indemnification under this Agreement, the Corporation’s Bylaws, the
Corporation’s Articles of Incorporation, any other agreement, the Business
Corporation Act of the Republic of the Marshall Islands or
otherwise.
SECTION 1.02. Prepayment of
Expenses. The Corporation shall to the fullest extent not
prohibited by applicable law pay the expenses (including attorneys’ fees)
actually and reasonably incurred by the Covered Person who was or is made or is
threatened to be made a party to or a witness in or is otherwise involved in any
Proceeding, by reason of the fact that he, or a person for whom he is the legal
representative,
is or was a director or officer of the Corporation or, while a director or
officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, employee, trustee or agent of another corporation or of
a partnership, joint venture, trust, nonprofit entity or other entity, including
service with respect to employee benefit plans in advance of its final
disposition, provided, however, that, to the extent required by law, such
payment of expenses in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Covered Person to repay all
amounts advanced if it should be ultimately determined that the Covered Person
is not entitled to be indemnified under this Agreement or
otherwise.
SECTION 1.03. Claims. If a
claim for indemnification (following the final disposition of such action, suit
or proceeding) or advancement of expenses under this Agreement is not paid in
full within thirty days after a written claim therefor by the Covered Person has
been presented to the Corporation, the Covered Person may file suit against the
Corporation to recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of prosecuting such
claim. In addition, the Covered Person may file suit against the
Corporation to establish a right to indemnification or advancement of
expenses. In any such action the Corporation shall have the burden of
proving by clear and convincing evidence that the Covered Person is not entitled
to the requested indemnification or advancement of expenses under applicable
law.
SECTION 1.04. Nonexclusivity of
Rights. The rights conferred on the Covered Person by this
Agreement shall not be exclusive of any other rights which such Covered Person
may have or hereafter acquire under any statute, provision of the certificate of
incorporation, the bylaws of the Corporation, any other agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 1.05. Other Sources.
The Corporation’s obligation, if any, to indemnify or to advance expenses to any
Covered Person who was or is serving at its request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
enterprise or nonprofit entity shall be reduced to the extent such Covered
Person has otherwise actually received payment (under any insurance policy or
otherwise) of the amounts otherwise payable by the Corporation.
ARTICLE II
GENERAL
PROVISIONS
SECTION 2.01. Amendments.
This Agreement may not be amended, added to, altered or repealed except by
written instrument signed by each of the parties hereto.
SECTION 2.02. Severability.
If any term, provision or covenant of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable in any
jurisdiction, then such term, provision or covenant 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.
2
SECTION 2.03. Survival. The
rights and obligations of each party to the this Agreement shall survive and
remain binding and enforceable, notwithstanding any termination of the Covered
Person’s employment with the Corporation, to the extent necessary to preserve
the intended benefits of such provisions.
SECTION 2.04. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the Republic of The Marshall Islands.
SECTION 2.05. 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.
SECTION 2.06. 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.
3
IN WITNESS WHEREOF, the parties have
duly executed this Agreement as of March 1, 2010.
|
DHT
HOLDINGS, INC.,
|
|||
| by | |||
| /s/ Erik Lind | |||
|
Erik
Lind, on behalf of the
Board
of Directors of DHT
Holdings,
Inc.
|
|||
| /s/ Ole Jacob Diesen | |||
|
Ole
Jacob Diesen
|
|||
4
Exhibit
10.2
INDEMNIFICATION AGREEMENT (the “Agreement”) effective
from March 1, 2010, between DHT Holdings, Inc., a corporation incorporated
under the laws of the Republic of the Marshall Islands (the “Corporation”), and
Eirik Ubøe, an individual (the “Covered
Person”).
WHEREAS, the Corporation desires to
employ the Covered Person as its Chief Financial Officer upon the consummation
of a series of transactions that resulted in the Corporation becoming the
publicly held parent company of DHT Maritime, Inc.; and
WHEREAS, the Covered Person is willing
to serve as the Chief Financial Officer pursuant to the terms of an employment
agreement between the Corporation and the Covered Person and this
Agreement.
NOW, THEREFORE, in consideration of the
foregoing and the terms set forth herein, the parties hereto hereby agree as
follows:
ARTICLE
I
INDEMNIFICATION
SECTION 1.01. Right to
Indemnification. The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, the Covered Person against all liability and loss
suffered, and expenses (including attorneys’ fees) actually and reasonably
incurred, by such Covered Person in connection with any action, suit, claim,
inquiry or proceeding, whether civil, criminal, administrative or investigative
(including an action by or in the right of the Corporation) and whether formal
or informal (a “Proceeding”) and by
reason of the fact that he, or a person for whom he is the legal representative,
is or was a director or officer of the Corporation or, while a director or
officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, employee, trustee or agent of another corporation or of
a partnership, joint venture, trust, nonprofit entity or other entity, including
service with respect to employee benefit plans. Notwithstanding the
preceding sentence, except as otherwise provided in Section 1.03, the
Corporation shall be required to indemnify or advance expenses to a Covered
Person in connection with a Proceeding (or part thereof) commenced by such
Covered Person (and not by way of defense) only if the commencement of such
Proceeding (or part thereof) by the Covered Person (i) was authorized in
the specific case by the Board, or (ii) was brought to establish or enforce
a right to indemnification under this Agreement, the Corporation’s Bylaws, the
Corporation’s Articles of Incorporation, any other agreement, the Business
Corporation Act of the Republic of the Marshall Islands or
otherwise.
SECTION 1.02. Prepayment of
Expenses. The Corporation shall to the fullest extent not
prohibited by applicable law pay the expenses (including attorneys’ fees)
actually and reasonably incurred by the Covered Person who was or is made or is
threatened to be made a party to or a witness in or is otherwise involved in any
Proceeding, by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, employee, trustee or agent of another
corporation or of a partnership, joint venture, trust, nonprofit entity or other
entity, including service with respect to employee benefit plans in advance of
its final disposition, provided, however, that, to the extent required by law,
such payment of expenses in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the Covered Person to repay
all amounts advanced if it should be ultimately determined that the Covered
Person is not entitled to be indemnified under this Agreement or
otherwise.
SECTION 1.03. Claims. If a
claim for indemnification (following the final disposition of such action, suit
or proceeding) or advancement of expenses under this Agreement is not paid in
full within thirty days after a written claim therefor by the Covered Person has
been presented to the Corporation, the Covered Person may file suit against the
Corporation to recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of prosecuting such
claim. In addition, the Covered Person may file suit against the
Corporation to establish a right to indemnification or advancement of
expenses. In any such action the Corporation shall have the burden of
proving by clear and convincing evidence that the Covered Person is not entitled
to the requested indemnification or advancement of expenses under applicable
law.
SECTION 1.04. Nonexclusivity of
Rights. The rights conferred on the Covered Person by this
Agreement shall not be exclusive of any other rights which such Covered Person
may have or hereafter acquire under any statute, provision of the certificate of
incorporation, the bylaws of the Corporation, any other agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 1.05. Other Sources.
The Corporation’s obligation, if any, to indemnify or to advance expenses to any
Covered Person who was or is serving at its request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
enterprise or nonprofit entity shall be reduced to the extent such Covered
Person has otherwise actually received payment (under any insurance policy or
otherwise) of the amounts otherwise payable by the Corporation.
ARTICLE II
GENERAL
PROVISIONS
SECTION 2.01. Amendments.
This Agreement may not be amended, added to, altered or repealed except by
written instrument signed by each of the parties hereto.
SECTION 2.02. Severability.
If any term, provision or covenant of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable in any
jurisdiction, then such term, provision or covenant 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 an shall in no way be
affected, impaired or invalidated.
2
SECTION 2.03. Survival. The
rights and obligations of each party to the this Agreement shall survive and
remain binding and enforceable, notwithstanding any termination of the Covered
Person’s employment with the Corporation, to the extent necessary to preserve
the intended benefits of such provisions.
SECTION 2.04. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the Republic of The Marshall Islands.
SECTION 2.05. 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.
SECTION 2.06. 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.
3
IN WITNESS WHEREOF, the parties have
duly executed this Agreement as of March 1, 2010.
|
DHT
HOLDINGS, INC.,
|
|||
|
by
|
|||
| /s/ Erik Lind | |||
|
Erik
Lind, on behalf of the
Board
of Directors of DHT
Holdings,
Inc.
|
|||
| /s/ Eirik Ubøe | |||
|
Eirik
Ubøe
|
|||
4
Exhibit
10.3
GUARANTY
GUARANTY, dated as of March 1, 2010 (as
amended, modified or supplemented from time to time, this “Guaranty”), made by
DHT Holdings, Inc., a company incorporated in the Marshall Islands (the “Guarantor”), in favor
of the charterers listed on Schedule I hereto (each, a “Charterer”).
RECITALS
WHEREAS, the Charterer and the vessel
owning subsidiaries of the Guarantor (the “Owners”) named on
Schedule I, have entered into Time Charter Parties (as amended from time to
time, each a “Charter”) pursuant to
which each of the Charterers has agreed to time charter the vessel owned by one
of the Owners, as specified on Schedule I (the “Vessels”);
WHEREAS, the Owners are subsidiaries of
Guarantor; and
WHEREAS, in order to induce each
Charterer to continue to perform its obligations pursuant to its Charter with
the applicable Owners, Guarantor desires to execute this Agreement to guarantee
the Owners’ payment and performance obligations under the Charters.
NOW, THEREFORE, in consideration of the
mutual covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
Section
1. Guaranty. The
Guarantor, as primary obligor and not merely as surety, hereby irrevocably,
unconditionally and absolutely hereby severally guarantees to each Charterer the
due and punctual payment of all obligations and liabilities owing by the
applicable Owner under its Charter with such Charterer and the due performance
and compliance by such Owner with all terms, conditions and agreements contained
therein (all such obligations and liabilities being herein collectively called
the “Guaranteed
Obligations”). In case of failure of an Owner punctually to
pay any of the amounts necessary to satisfy the Guaranteed Obligations, the
Guarantor shall cause such amounts to be paid punctually when and as the same
shall become due and payable as if such payment were made by such
Owner. The Guarantor also shall pay any and all expenses (including,
without limitation, reasonable attorneys’ fees and expenses) incurred by each
Charterer in enforcing its rights under this Guaranty provided that such
Charterer is successful in enforcing its rights hereunder.
Section
2. Unconditional
Obligations. The obligation of the Guarantor to guarantee the
Guaranteed Obligations set forth in Section 1 above shall be absolute and
unconditional irrespective of (i) any lack of enforceability against the Owners
of the Guaranteed Obligations, (ii) any change of the time, manner or place of
payment, or any other term, of the Guaranteed Obligations, (iii) the failure,
omission, delay or lack on the part of a Charterer to assert any claim or demand
or to enforce any right or remedy against the Guarantor or any Owner, (iv) any
reduction, limitation, impairment or termination of the Guaranteed Obligations
for any reason, including any claim of waiver, release, surrender, alteration or
compromise, (v) any invalidity, illegality or unenforceability in whole or in
part of any Charter and (vi) any law, regulation or order of any jurisdiction
affecting any term of the Guaranteed Obligations or a Charterer’s rights with
respect thereto. The Guarantor hereby waives promptness, diligence,
protest, demand of payment and notices with respect to the Guaranteed
Obligations and any requirement that a Charterer exhaust any right or take any
action against an Owner. Notwithstanding anything in this Guaranty to
the contrary, the Guarantor shall be entitled to the benefit of any right to or
claim of any defense, setoff, counterclaim, recoupment or termination to which
an Owner is entitled other than those referred to in clause (v) of this Section
2.
Section
3. Nature of Guaranteed
Obligations. (a) The Guarantor hereby agrees that
this Guaranty is a guaranty of payment and performance and not of collection
only.
(b) Any
and all payments by the Guarantor under the Guaranteed Obligations shall be made
free and clear of, and without deduction or withholding for or on account of,
any and all taxes, monetary transfer fees or other amounts except to the extent
such deduction or withholding of any tax is required by applicable
law. If the Guarantor shall be required by applicable law to deduct
or withhold any tax or other amount from or in respect of any sum payable
hereunder to or for the benefit of a Charterer, to the extent the amount to be
received from the Guarantor after such withholding is less than the amount that
would have been received from the applicable Owner, the Guarantor shall pay to
the Charterer such additional amount as shall be necessary to enable the
Charterer to receive, after such withholding (including any withholding with
respect to such additional amount), the amount it would have received if such
withholding had not been required.
Section
4. Insolvency. This
Guaranty shall continue to be effective, or be reinstated, as the case may be,
if at any time payment, in whole or in part of any of the Guaranteed Obligations
is rescinded or must otherwise be restored or returned by a Charterer upon the
bankruptcy, insolvency, reorganization, arrangements, adjustment, composition,
dissolution, liquidation, or the like, of any Owner or the Guarantor, or as a
result of the appointment of a custodian, receiver, trustee, or other officer
with similar powers with respect to any Owner or the Guarantor or any
substantial part of either person’s respective property, or otherwise, all as
though such payment had not been made notwithstanding any termination of this
Guaranty or the applicable Charter.
Section
5. Representations and
Warranties of the Guarantor. The Guarantor hereby represents
and warrants to the Charterer that this Guaranty has been duly executed and
delivered by the Guarantor and constitutes a valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its
terms.
2
Section
6. Waivers and Amendments;
Non-Contractual Remedies; Preservation of Remedies. This
Guaranty may be amended, superseded, canceled, renewed or extended, and the
terms hereof may be waived, only by a written instrument signed by the parties
or, in the case of a waiver, by the party waiving compliance. No
delay on the part of any party on exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any right, power or privilege, nor any single or partial exercise
of any such right, power or privilege, preclude any further exercise thereof or
the exercise of any other such right, power or privilege. The rights
and remedies herein provided are cumulative and are not exclusive of any rights
or remedies that any party may otherwise have at law or in equity.
Section
7. Governing
Law. This Guaranty shall be construed, performed and enforced
in accordance with the same laws and in the same manner as is set forth in the
applicable Charter.
Section
8. Notices. All
notices, requests, demands and other communications under this Guaranty must be
delivered in the same manner as set forth in the applicable
Charter.
Section
9. Counterparts. This
Guaranty may be executed by the parties hereto in counterparts, each of which,
when so executed and delivered, shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
Section
10. Assignment; Binding
Effect. This Guaranty shall be binding upon the Guarantor and
its successors, permitted assigns and legal representatives and shall inure to
the benefit of each Charterer and its successors, permitted assigns and legal
representatives. This Guaranty and any rights of either party
hereunder, may not be assigned, directly or indirectly, without the prior
written consent of the other party (which consent may be withheld at the sole
discretion of such other party), provided that each Charterer may assign its
rights hereunder as security to its lenders. Any assignment in
violation of this Section 10 shall be void and shall have no force and effect,
it being understood for the avoidance of doubt that in the event that a party
(the “Merging
Party”) shall consolidate with or merge with or into, or sell, convey,
transfer or lease all or substantially all of its properties and assets to,
another entity, such transaction shall constitute an assignment, unless the
Merging Party remains the surviving person or, directly or indirectly, the
transferee of such properties and assets, as the case may be, and the Merging
Party expressly affirms all of its obligations under this Guaranty.
Section
11. No Third-Party
Beneficiaries. Nothing in this Guaranty will confer any rights
or benefits upon any person or entity other than the Charterers and a successor
or permitted assignee of any Charterer.
Section
12. Negotiated
Agreement. This Guaranty has been negotiated by the parties
and the fact that the initial and final draft will have been prepared by either
party or an intermediary will not give rise to any presumption for or against
any party to this Guaranty or be used in any respect or forum in the
construction or interpretation of this Guaranty or any of its
provisions.
3
Section
13. Severability. If
any provision of this Guaranty is held to be void or unenforceable, in whole or
in part, (i) such holding shall not affect the validity and enforceability of
the remainder of this Guaranty, including any other provision, paragraph or
subparagraph and (ii) the parties agree to attempt in good faith to reform such
void or unenforceable provision to the extent necessary to render such provision
enforceable and to carry out its original intent.
4
IN WITNESS WHEREOF, the Guarantor has
caused this Guaranty to be executed on its behalf by its officer thereunto duly
authorized on the date first above written.
| DHT HOLDINGS, INC. | ||||
|
|
By:
|
/s/ Ole Jacob Diesen | ||
| Name Ole Jacob Diesen | ||||
| Title Chief Executive Officer | ||||
|
Accepted
and Agreed to this
1st day
of March, 2010
On
behalf of each of the Charterers
listed
on Schedule 1 hereto,
|
||||
| By: | /s/ James I. Edelson | |||
| Name: James I. Edelson | ||||
| Vice President and Secretary to each | ||||
| of the Charterers Listed on Schedule I hereto | ||||
5
SCHEDULE
I
|
Owners:
|
Charterer:
|
Vessel
|
|
|
1.
|
Ann
Tanker Corporation
|
DHT
Ann VLCC Corp.
|
Overseas
Ann
|
|
2.
|
Chris
Tanker Corporation
|
DHT
Chris VLCC Corp.
|
Overseas
Chris
|
|
3.
|
Regal
Unity Tanker Corporation
|
DHT
Regal Unity VLCC Corp.
|
Regal
Unity
|
|
4.
|
Cathy
Tanker Corporation
|
DHT
Cathy Aframax Corp.
|
Overseas
Cathy
|
|
5.
|
Sophie
Tanker Corporation
|
DHT
Sophie Aframax Corp.
|
Overseas
Sophie
|
|
6.
|
Rebecca
Tanker Corporation
|
DHT
Rebecca Aframax Corp.
|
Rebecca
|
|
7.
|
Ania
Aframax Corporation
|
DHT
Ania Aframax Corp.
|
Ania
|
6
Exhibit
10.4
GUARANTY
GUARANTY,
dated as of March 1, 2010 (as amended, modified or supplemented from time to
time, this “Guaranty”), made by
DHT Holdings, Inc., a company incorporated in the Marshall Islands (the “Guarantor”), in favor
of Tanker Management Ltd, a company formed in England (the “Manager”).
RECITALS
WHEREAS,
the Manager and the vessel owning subsidiaries of the Guarantor (the “Owners”) named on
Schedule I, have entered into Ship Management Agreements (as amended from time
to time, the “Ship
Management Agreements”) pursuant to which the Manager has agreed to
provide certain services with respect to the vessels owned by the Owners named
on Schedule I (the “Vessels”);
WHEREAS,
the Owners are subsidiaries of Guarantor; and
WHEREAS,
in order to induce the Manager to continue to provide services pursuant to the
Ship Management Agreements with the Owners, Guarantor desires to execute this
Agreement to guarantee the Owners’ payment and performance obligations under the
Ship Management Agreements.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Section
1. Guaranty. The
Guarantor, as primary obligor and not merely as surety, hereby irrevocably,
unconditionally and absolutely guarantees to the Manager the due and punctual
payment of all obligations and liabilities owing by the Owners under the Ship
Management Agreements and the due performance and compliance by the Owners with
all terms, conditions and agreements contained therein (all such obligations and
liabilities being herein collectively called the “Guaranteed
Obligations”). In case of failure of the Owners punctually to
pay any of the amounts necessary to satisfy the Guaranteed Obligations, the
Guarantor shall cause such amounts to be paid punctually when and as the same
shall become due and payable as if such payment were made by the
Owners. The Guarantor also shall pay any and all expenses (including,
without limitation, reasonable attorneys’ fees and expenses) incurred by the
Manager in enforcing its rights under this Guaranty provided that the Manager is
successful in enforcing its rights hereunder.
Section
2. Unconditional
Obligations. The obligation of the Guarantor to guarantee the
Guaranteed Obligations set forth in Section 1 above shall be absolute and
unconditional irrespective of (i) any lack of enforceability against the Owners
of the Guaranteed Obligations, (ii) any change of the time, manner or place of
payment, or any other term, of the Guaranteed Obligations, (iii) the failure,
omission, delay or lack on the part of the Manager to assert any claim or demand
or to enforce any right or remedy against the Guarantor or the Owners, (iv) any
reduction, limitation, impairment or termination of the Guaranteed Obligations
for any reason, including any claim of waiver, release, surrender, alteration or
compromise, (v) any invalidity, illegality or unenforceability in whole or in
part of the Ship Management Agreements and (vi) any law, regulation or order of
any jurisdiction affecting any term of the Guaranteed Obligations or the
Manager’s rights with respect thereto. The Guarantor hereby waives
promptness, diligence, protest, demand of payment and notices with respect to
the Guaranteed Obligations and any requirement that the Manager exhaust any
right or take any action against the Owners. Notwithstanding anything
in this Guaranty to the contrary, the Guarantor shall be entitled to the benefit
of any right to or claim of any defense, setoff, counterclaim, recoupment or
termination to which the Owners are entitled other than those referred to in
clause (v) of this Section 2.
Section
3. Nature of Guaranteed
Obligations. (a) The Guarantor hereby agrees that
this Guaranty is a guaranty of payment and performance and not of collection
only.
(b) Any and
all payments by the Guarantor under the Guaranteed Obligations shall be made
free and clear of, and without deduction or withholding for or on account of,
any and all taxes, monetary transfer fees or other amounts except to the extent
such deduction or withholding of any tax is required by applicable
law. If the Guarantor shall be required by applicable law to deduct
or withhold any tax or other amount from or in respect of any sum payable
hereunder to or for the benefit of the Manager, to the extent the amount to be
received from the Guarantor after such withholding is less than the amount that
would have been received from the Owners, the Guarantor shall pay to the Manager
such additional amount as shall be necessary to enable the Manager to receive,
after such withholding (including any withholding with respect to such
additional amount), the amount it would have received if such withholding had
not been required.
Section
4. Insolvency. This
Guaranty shall continue to be effective, or be reinstated, as the case may be,
if at any time payment, in whole or in part of any of the Guaranteed Obligations
is rescinded or must otherwise be restored or returned by the Manager upon the
bankruptcy, insolvency, reorganization, arrangements, adjustment, composition,
dissolution, liquidation, or the like, of the Owners or the Guarantor, or as a
result of the appointment of a custodian, receiver, trustee, or other officer
with similar powers with respect to the Owners or the Guarantor or any
substantial part of either person’s respective property, or otherwise, all as
though such payment had not been made notwithstanding any termination of this
Guaranty or the Ship Management Agreements.
Section
5. Representations and
Warranties of the Guarantor. The Guarantor hereby represents
and warrants to the Manager that this Guaranty has been duly executed and
delivered by the Guarantor and constitutes a valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its
terms.
2
Section
6. Waivers and Amendments;
Non-Contractual Remedies; Preservation of Remedies. This
Guaranty may be amended, superseded, canceled, renewed or extended, and the
terms hereof may be waived, only by a written instrument signed by the parties
or, in the case of a waiver, by the party waiving compliance. No
delay on the part of any party on exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any right, power or privilege, nor any single or partial exercise
of any such right, power or privilege, preclude any further exercise thereof or
the exercise of any other such right, power or privilege. The rights
and remedies herein provided are cumulative and are not exclusive of any rights
or remedies that any party may otherwise have at law or in equity.
Section
7. Governing
Law. This Guaranty shall be construed, performed and enforced
in accordance with the same laws and in the same manner as is set forth in the
Ship Management Agreements.
Section
8. Notices. All
notices, requests, demands and other communications under this Guaranty must be
delivered in the same manner as set forth in the Ship Management
Agreements.
Section
9. Counterparts. This
Guaranty may be executed by the parties hereto in counterparts, each of which,
when so executed and delivered, shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
Section
10. Assignment; Binding
Effect. This Guaranty shall be binding upon the Guarantor and
its successors, permitted assigns and legal representatives and shall inure to
the benefit of the Manager and its successors, permitted assigns and legal
representatives. This Guaranty and any rights of either party
hereunder, may not be assigned, directly or indirectly, without the prior
written consent of the other party (which consent may be withheld at the sole
discretion of such other party), provided that Manager may assign its rights
hereunder as security to its lenders. Any assignment in violation of
this Section 10 shall be void and shall have no force and effect, it being
understood for the avoidance of doubt that in the event that a party (the “Merging Party”) shall
consolidate with or merge with or into, or sell, convey, transfer or lease all
or substantially all of its properties and assets to, another entity, such
transaction shall constitute an assignment, unless the Merging Party remains the
surviving person or, directly or indirectly, the transferee of such properties
and assets, as the case may be, and the Merging Party expressly affirms all of
its obligations under this Guaranty.
Section
11. No Third-Party
Beneficiaries. Nothing in this Guaranty will confer any rights
or benefits upon any person or entity other than the Manager and a successor or
permitted assignee of the Manager.
Section
12. Negotiated
Agreement. This Guaranty has been negotiated by the parties
and the fact that the initial and final draft will have been prepared by either
party or an intermediary will not give rise to any presumption for or against
any party to this Guaranty or be used in any respect or forum in the
construction or interpretation of this Guaranty or any of its
provisions.
Section
13. Severability. If
any provision of this Guaranty is held to be void or unenforceable, in whole or
in part, (i) such holding shall not affect the validity and enforceability of
the remainder of this Guaranty, including any other provision, paragraph or
subparagraph and (ii) the parties agree to attempt in good faith to reform such
void or unenforceable provision to the extent necessary to render such provision
enforceable and to carry out its original intent.
3
IN
WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed on its
behalf by its officer thereunto duly authorized on the date first above
written.
| DHT HOLDINGS, INC. | |||
|
|
By:
|
/s/ Ole Jacob Diesen | |
| Name Ole Jacob Diesen | |||
| Title Chief Executive Officer | |||
Accepted
and Agreed to this
1st day
of March, 2010
TANKER
MANAGEMENT, LTD
| By: | /s/ Ian T. Blackley |
| Name: Ian T. Blackley | |
| Title: Director |
4
SCHEDULE
I
|
Owners:
|
Vessel
|
|
|
1.
|
Ann
Tanker Corporation
|
Overseas
Ann
|
|
2.
|
Chris
Tanker Corporation
|
Overseas
Chris
|
|
3.
|
Regal
Unity Tanker Corporation
|
Regal
Unity
|
|
4.
|
Cathy
Tanker Corporation
|
Overseas
Cathy
|
|
5.
|
Sophie
Tanker Corporation
|
Overseas
Sophie
|
|
6.
|
Rebecca
Tanker Corporation
|
Rebecca
|
|
7.
|
Ania
Aframax Corporation
|
Ania
|
5
Exhibit 99.1
DHT
Maritime, Inc. Announces Formation of Holding Company
ST.
HELIER, JERSEY, CHANNEL ISLANDS, March 1, 2010 — DHT Maritime, Inc. (NYSE:DHT)
announced today that it has completed a series of transactions that resulted in
DHT Holdings, Inc., a newly formed corporation organized in the Marshall
Islands, becoming the publicly held parent company of DHT Maritime,
Inc. As a result of the transactions, each shareholder of DHT
Maritime, Inc. holds one share of DHT Holdings, Inc. common stock for each share
of DHT Maritime, Inc. common stock held by such shareholder immediately prior to
the series of transactions.
At market
open on March 2, 2010, the new DHT Holdings, Inc. shares will trade on the NYSE
under the symbol “DHT”, the same symbol under which the shares of DHT Maritime,
Inc. common stock previously traded, and will retain the CUSIP number
Y2065G105.
Additional
information regarding the transactions can be found on our website at
www.dhtmaritime.com and in our filings with the Securities and Exchange
Commission at www.sec.gov.
About DHT
Holdings, Inc.
DHT
Maritime, Inc., a wholly owned subsidiary of DHT Holdings, Inc., operates a
fleet of double-hull crude oil tankers. The company’s fleet currently consists
of three very large crude carriers, which are tankers ranging in size from
200,000 to 320,000 deadweight tons, or ‘‘dwt,’’ two Suezmax tankers, which are
tankers ranging in size from 130,000 to 170,000 dwt, and four Aframax tankers,
which are tankers ranging in size from 80,000 to 120,000 dwt. The company’s
fleet principally operates on international routes and had a combined carrying
capacity of 1,656,921 dwt and a weighted average age of 9.7 years as of December
31, 2009.
CONTACT:
DHT Holdings, Inc.
Eirik Ubøe, +44 1534 639 759 and +47
412 92 712
info@dhtmaritime.com and
eu@tankersservices.com
SOURCE:
DHT Holdings, Inc.
Exhibit
99.2
Questions
and Answers about DHT Holdings, Inc.
1.
What is the
transaction?
After the close of business on March 1, 2010, we
completed a number of transactions that resulted in a new holding company
structure for the DHT business. We collectively refer to these
transactions as the Holdings Dividend. As a result of the Holdings
Dividend, a new company, DHT Holdings, Inc. (“DHT Holdings”), now holds nearly
all of the voting and economic interests of DHT Maritime, Inc. (“DHT
Maritime”). For trading and reporting purposes, DHT Holdings is the
successor to DHT Maritime. The existing shareholders of DHT Maritime
at the time of the Holdings Dividend became the shareholders of DHT
Holdings.
2.
What is the purpose of the Holdings
Dividend?
The
purpose of the Holdings Dividend is to provide the DHT business with additional
flexibility regarding growth and capital opportunities. The existing
DHT fleet will continue to be owned by DHT Maritime, but the new holding company
structure allows us to grow the DHT business outside of the current financing
structure applicable to the existing DHT fleet.
3.
Have
there been any changes to the governance documents or my rights as a
shareholder?
No. DHT
Holdings is a corporation incorporated under the laws of the Republic of the
Marshall Islands, just like DHT Maritime. In addition, the governance
documents of DHT Holdings are identical in all material respects to the existing
governance documents of DHT Maritime. For example, immediately
following the Holdings Dividend, DHT Holdings has the same number of authorized
but unissued shares of capital stock as DHT Maritime had prior to the Holdings
Dividend.
4.
As
a shareholder of DHT Maritime prior to the Holdings Dividend, what shares do I
now own?
For
each share of common stock of DHT Maritime held as of the close of business on
March 1, 2010, each shareholder of DHT Maritime received one share of DHT
Holdings common stock. Thus, if you held 1,000 shares of DHT Maritime
common stock as of such time, you now own 1,000 shares of DHT Holdings common
stock. The Holdings Dividend was completed on a one-for-one
basis. The CUSIP number remains unchanged.
5.
What is the ticker symbol?
Shares
of DHT Holdings common stock will be traded on The New York Stock Exchange
(“NYSE”) under the existing ticker symbol of “DHT”.
6.
Do I need to take any action?
No. The
issuance of shares of DHT Holdings common stock was automatic. We
suggest that you call your broker with any questions regarding ownership of your
shares.
7.
What
happens if I bought or sold DHT shares on the NYSE prior to the Holdings
Dividend but had not yet settled the
transaction?
Any
NYSE transactions of DHT Maritime common stock that were executed but not yet
settled prior to the Holdings Dividend will be settled in shares of DHT Holdings
common stock.
8.
Have there been any changes to the directors and officers?
No. The
existing directors and officers of DHT Maritime also are the directors and
officers of DHT Holdings.
9.
What
happens to my DHT Maritime common stock? Do I still own DHT Maritime
common stock, too?
As
a result of the Holdings Dividend, nearly all of the economic and voting power
of DHT Maritime is now held by DHT Holdings. Your shares of DHT
Maritime common stock remain outstanding but have very little value or voting
power. This value and voting power was effectively transferred to
your shares of DHT Holdings common stock. Shares of DHT Maritime
common stock will no longer trade or be listed on the NYSE. Instead,
the shares of DHT Holdings common stock now represent the trading security for
the DHT business. We expect to effect a reverse stock split of DHT
Maritime common stock in the near future, which will cause such shares to be
permanently retired. Shares of DHT Maritime common stock will be
uncertificated. As a result, if you wish to transfer any underlying
shares of DHT Maritime common stock, please contact the Company
directly. See Question #11 for the Company’s contact
information.
10. What
are the U.S. federal income tax consequences of the Holdings Dividend to
existing shareholders?
For
purposes of this answer, a “U.S. holder” is a holder of DHT Maritime common
stock that is an individual U.S. citizen or resident alien, a corporation (or
entity taxable as a corporation for U.S. federal income tax purposes) that was
created under U.S. law, or an estate or trust whose world-wide income is subject
to U.S. federal income tax. This answer assumes that the shares of
DHT Maritime common stock and the shares of DHT Holdings common stock are held
as capital assets.
For
U.S. federal income tax purposes, the Holdings Dividend is treated as a
distribution of DHT Maritime preferred stock to the DHT Maritime shareholders,
followed by a contribution by the DHT Maritime shareholders of the DHT Maritime
preferred stock to DHT Holdings in exchange for shares of DHT Holdings common
stock.
The
distribution of DHT Maritime preferred stock is not taxable to a U.S.
holder. A U.S. holder’s tax basis in the DHT Maritime common stock
held immediately before the distribution is allocated between that common stock
and the DHT Maritime preferred stock in proportion to the fair market value of
each on the date of the distribution. Since nearly all of the value
and voting power of DHT Maritime is applicable to the DHT Maritime preferred
stock, nearly all of the existing basis should be allocable to the DHT Maritime
preferred stock. A U.S. holder’s holding period for the DHT Maritime
preferred stock includes the holding period for the DHT Maritime common stock
held immediately prior to the distribution.
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The
contribution of the DHT Maritime preferred stock to DHT Holdings in exchange for
shares of DHT Holdings common stock is not taxable to a U.S.
holder. A U.S. holder’s tax basis in the DHT Holdings common stock
will equal the tax basis of the DHT Maritime preferred
stock. Accordingly, for a U.S. holder, nearly all of the existing
basis of such U.S. holder’s DHT Maritime common stock will carry over to such
U.S. holder’s DHT Holdings common stock. A U.S. holder’s holding
period for the DHT Holdings common stock will include the holding period of the
DHT Maritime preferred stock.
All
shareholders should consult their tax advisors for a full understanding of the
tax consequences of the Holdings Dividend.
11. Who
do I contact if I have other questions?
If
you have additional questions about the Holdings Dividend, please contact: DHT
Holdings, Inc., 26 New Street, St. Helier, Jersey JE23RA, Channel Islands,
Attention: Eirik Ubøe, Chief Financial Officer, Telephone: +47 412 92 712 or
American Stock Transfer & Trust Company, LLC, 10150 Mallard Creek Road,
Suite 307, Charlotte, NC 28262, Attention: Myron Gray.
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