Frontline plc 6-K, filed Jun 8, 2020
Frontline plc (FRO)
6-K
2020-06-08
For: 2020-06-30
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April 10, 2026
About this 6-K
Frontline plc filed this 6-K on June 8, 2020.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO
RULE 13A-16 OR 15D-16 UNDER THE SECURITIES
EXCHANGE ACT OF 1934
RULE 13A-16 OR 15D-16 UNDER THE SECURITIES
EXCHANGE ACT OF 1934
For the month of June 2020
Commission File Number: 001-16601
Frontline Ltd.
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(Translation of registrant's name into English)
Par-la-Ville Place
14 Par-la-Ville Road
Hamilton, HM 08, Bermuda
14 Par-la-Ville Road
Hamilton, HM 08, Bermuda
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(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F [ X ] Form 40-F [ ]
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):
________.
Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form
6-K if submitted solely to provide an attached annual report to security holders.
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):
________.
Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if
submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant's "home
country"), or under the rules of the home country exchange on which the registrant's securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant's
security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR.
INFORMATION CONTAINED IN THIS FORM 6-K REPORT
On June 3, 2020, Frontline Ltd. (the "Company") entered into a sales agreement (the "Sales Agreement") with Morgan Stanley & Co. LLC,
as sales agent ("Morgan Stanley"), pursuant to which the Company may offer and sell, from time to time, up to an aggregate of $100 million of its common shares, par value $1.00 per share (the "Common Shares") under the Company's "at-the-market"
offering program (the "Program").
Attached to this Report on Form 6-K (this "Report") as Exhibit 1.1 is a copy of the Sales Agreement, dated June 3, 2020, by and between the Company and Morgan Stanley.
Attached to this Report as Exhibit 5.1 is the opinion of MJM Limited, relating to the Common Shares.
Attached to this Report as Exhibit 99.1 is a copy of the press release of the Company, dated June 3, 2020, announcing the launch of the Program.
The information contained in this Report on Form 6-K is hereby incorporated by reference into the Company's registration statement on Form
F-3 (File No. 333-232567) that was filed with the U.S. Securities and Exchange Commission effective July 5, 2019.
Forward-Looking Statements
Matters discussed in this Report on Form 6-K may constitute forward-looking statements. Forward-looking statements reflect management's
current expectations and observations with respect to future events and financial performance. Where the Company expresses an expectation or belief as to future events or results, such expectation or belief is expressed in good faith and believed to
have a reasonable basis. However, the Company's forward-looking statements are subject to risks, uncertainties, and other factors, which could cause actual results to differ materially from future results expressed, projected, or implied by those
forward-looking statements. The Company's actual results may differ materially from those anticipated in these forward-looking statements as a result of certain factors, including changes in the Company’s financial resources and operational
capabilities and as a result of certain other factors listed from time to time in the Company's filings with the U.S. Securities and Exchange Commission.
The Company disclaims any intent or obligation to update publicly any forward-looking statements, whether as a result of new information,
future events or otherwise, except as may be required under applicable securities laws.
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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FRONTLINE LTD.
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Date: June 5, 2020
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By:
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/s/ Inger M. Klemp
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Name:
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Inger M. Klemp
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Title:
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Frontline Ltd.
(Principal Executive Officer)
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Exhibit 1.1
FRONTLINE LTD.
ORDINARY SHARES ($1.00 PAR VALUE PER SHARE)
EQUITY DISTRIBUTION AGREEMENT
ORDINARY SHARES ($1.00 PAR VALUE PER SHARE)
EQUITY DISTRIBUTION AGREEMENT
June 3, 2020
June 3, 2020
To Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Frontline Ltd., a Bermuda exempted company (the “Company”), proposes to issue and sell through
Morgan Stanley & Co. LLC, as sales agent (the “Manager”), on the terms set forth in this equity distribution agreement (this “Agreement”), ordinary shares, par value
$1.00, having an aggregate gross sales price of up to $100 million, but in no event more than 100,000,000 shares (the “Shares”). The ordinary shares, par value $1.00, of the Company are hereinafter referred to
as the “Ordinary Shares”.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement (File No. 333-232567), including a prospectus, (on Form F-3), relating to the securities registered thereby (the “Shelf Securities”), including the Shares, to be issued from time to time by the
Company. The registration statement as of its most recent effective date, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of
1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement”, and the related prospectus covering the Shelf Securities and filed as
part of the Registration Statement, together with any amendments or supplements thereto as of the most recent effective date of the Registration Statement, is hereinafter referred to as the “Basic Prospectus”.
“Prospectus Supplement” means the final prospectus supplement, relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act on or before the second business
day after the date hereof, in the form furnished by the Company to the Manager in connection with the offering of the Shares. Except where the context otherwise requires, “Prospectus” means the Basic
Prospectus, as supplemented by the Prospectus Supplement and the most recent Interim Prospectus Supplement (as defined in Section 6(c) below), if any. For purposes of this Agreement, “free writing prospectus”
has the meaning set forth in Rule 405 under the Securities Act. “Permitted Free Writing Prospectuses” means the documents listed on Schedule I hereto or otherwise approved in writing by the Manager in
accordance with Section 6(b), and “broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction
to any person. As used herein, the terms “Registration Statement”, “Basic Prospectus”, “Prospectus Supplement”, “Interim Prospectus Supplement” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date
hereof. The terms “supplement”, “amendment” and “amend” as used herein with respect to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement, any Interim Prospectus Supplement or the Prospectus shall include all
documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein (the “Incorporated Documents”).
1. Representations and Warranties. The Company represents and warrants to and agrees with the Manager that:
(a) The
Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect; and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or
threatened by the Commission. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the Securities Act, the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act)
eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
(b) (i) (A)
At the respective times the Registration Statement and each amendment thereto became effective, (B) at each deemed effective date with respect to the Manager pursuant to Rule 430B(f)(2) under the Securities Act (each, a “Deemed Effective Time”), (C) as of each time Shares are sold pursuant to this Agreement (each, a “Time of Sale”), (D) at each Settlement Date (as defined below) and (E) at all times during
which a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares (the “Delivery
Period”), the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act and the rules and regulations under the Securities Act; (ii) the Basic Prospectus complied, or will comply,
at the time it was, or will be filed, with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale and at all times during the Delivery Period, will comply in all
material respects with the rules and regulations under the Securities Act; (iii) each of the Prospectus Supplement, any Interim Prospectus Supplement and the Prospectus will comply, as of the date that such document is filed with the Commission, as
of each Time of Sale, as of each Settlement Date and at all times during the Delivery Period, in all material respects with the rules and regulations under the Securities Act; and (iv) the Incorporated Documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any further Incorporated Documents so filed and incorporated by reference, when they are filed
with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(c) (i) As
of the date hereof, at the respective times the Registration Statement and each amendment thereto became effective and at each Deemed
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Effective Time, the Registration Statement did not and will not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading; (ii) as of each Time of Sale, the Prospectus (as amended and supplemented at such Time of Sale) and any Permitted Free Writing Prospectus then in use,
considered together (collectively, the “General Disclosure Package”), did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; (iii) as of its date, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) at any Settlement Date, the Prospectus (as amended and supplemented at such Settlement Date) did not and will not contain an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Manager expressly for
use in the Prospectus or in the General Disclosure Package.
(d) Any free
writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the
Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Shares or until any earlier date that the Company notified or notifies the Manager, did not, does not and will not include any material information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus. Each broadly available road show, if any, when considered together with the General Disclosure Package, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Except for the Permitted Free Writing Prospectuses, if any, and electronic road shows, if
any, furnished to and approved by the Manager in accordance with Section 6(b), the Company has not prepared, used or referred to, and will not, prepare, use or refer to, any free writing prospectus.
(e) (i)(A) At
the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of
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the Exchange Act or form of prospectus) and (C) at the time the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c)) made any offer relating to the Shelf Securities in reliance on the exemption of Rule 163 under the Securities Act, the Company was not an “ineligible issuer” as defined in Rule 405 of the Securities Act; and (ii)(A) at
the time of filing of the Registration Statement, (B) at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Shares and (C) at the
date hereof, the Company was not and is not an “ineligible issuer” as defined in Rule 405 under the Securities Act.
(f) The
Company has been duly incorporated, is validly existing as a company in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in
each of the Registration Statement, the Prospectus and the General Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(g) Each
subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its
business as described in each of the Registration Statement, the Prospectus and the General Disclosure Package and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company, free and clear of all liens, encumbrances, equities or
claims.
(h) This
Agreement has been duly authorized, executed and delivered by the Company.
(i) The
authorized share capital of the Company conforms as to legal matters to the description thereof contained in each of the Registration Statement, the Prospectus and the General Disclosure Package.
(j) The
Ordinary Shares outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable.
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(k) The
Shares have been duly authorized and, when issued and delivered and upon receipt of payment in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject
to any preemptive or similar rights.
(l) The
execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not (i) contravene any provision of applicable law or the memorandum of association or bye-laws of the Company or (ii) any
agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (iii) any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, except with respect to such agreements and instruments set forth in clause (ii), as would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; and no consent,
approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Company of its obligations under this Agreement, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Shares.
(m) There has
not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the General Disclosure Package.
(n) There
are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject (i) other than proceedings accurately
described in all material respects in the General Disclosure Package and proceedings that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its
obligations under this Agreement or to consummate the transactions contemplated by this Agreement and the General Disclosure Package or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described;
and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as
required.
(o) The
Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the General Disclosure Package will not be, required to register as an “investment company” as such term is
defined in the Investment Company Act of 1940, as amended.
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(p) It is not
necessary under the laws of Bermuda (i) to enable the Manger to enforce its rights under this Agreement, to enable any holder of Shares to enforce their respective rights thereunder, provided that they are
not otherwise engaged in business in Bermuda, or (ii) solely by reason of the execution, delivery or consummation of this Agreement, for the Manager or any holder of Shares of the Company to be qualified or entitled to carry out business in
Bermuda.
(q) This
Agreement is in proper form under the laws of Bermuda for the enforcement thereof against the Company, and to ensure the legality, validity, enforceability or admissibility into evidence in Bermuda of this Agreement.
(r) The
Company is a “foreign private issuer” as defined in Rule 405 of the 1933 Act.
(s) The
courts of Bermuda would recognize as a valid judgment any final monetary judgment obtained against the Company in the courts of the State of New York.
(t) Except
as described in the Registration Statement, the Prospectus and the General Disclosure Package, all dividends and other distributions declared and payable on the Ordinary Shares may under the current laws and regulations of Bermuda be paid in United
States dollars and may be freely transferred out of Bermuda, and all such dividends and other distributions will not be subject to withholding or other taxes under the current laws and regulations of Bermuda and are otherwise free and clear of any
other tax, duty, withholding or deduction in Bermuda and without the necessity of obtaining any consents, approvals, authorizations, orders, licenses, registrations, clearances and qualifications of or with any court or governmental agency or body
or any stock exchanges authorities in Bermuda.
(u) None of
the Company or its subsidiaries or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or
otherwise) under the laws of the United States or the Islands of Bermuda. The irrevocable and unconditional waiver and agreement of the Company contained in Section 14 not to plead or claim any such immunity in any legal action, suit or proceeding
based on this Agreement is valid and binding under the laws of the United States or the Islands of Bermuda.
(v) The
choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Bermuda and will be honored by the courts of Bermuda. The Company has the power to submit, and pursuant to Section 14 has, to
the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 14), and has the power to designate, appoint and empower, and pursuant to Section 14, has
legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or
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proceeding based on or arising under this Agreement in any of the Specified Courts.
(w) To ensure
the legality, validity, enforceability and admissibility into evidence of each of this Agreement, the Ordinary Shares and any other document to be furnished hereunder in Bermuda, it is not necessary that this Agreement, the Ordinary Shares or such
other document be filed or recorded with any court or other authority in Bermuda or any stamp or similar tax be paid in Bermuda on or in respect of this Agreement, the Ordinary Shares or any such other document except that (i) the permission of the
Bermuda Monetary Authority is required for the sale and subsequent transferability of the Ordinary Shares (such permission having been granted through a notice to the public issued by the Bermuda Monetary Authority dated June 1, 2005); provided the Ordinary Shares remain listed on the New York Stock Exchange or another appointed stock exchange; and (ii) the Prospectus is required to be and will be filed with the Registrar of Companies in
Bermuda pursuant to Part III of the Companies Act 1981 of Bermuda.
(x) All of
the vessels described in the Registration Statement, the Prospectus and the General Disclosure Package are owned directly (or as set forth in the Registration Statement, the Prospectus and the General Disclosure Package) by the Company and its
subsidiaries; each of the vessels listed on Schedule IV (the “Owned Vessels”) hereto has been duly registered as a vessel under the laws and regulations and flag of the jurisdiction set forth opposite its
name on Schedule IV in the sole ownership of the Company or the subsidiary set forth opposite its name on Schedule IV hereto; the Company and its subsidiaries have good title to the applicable Owned Vessel, free and clear of all mortgages, pledges,
liens, security interests and claims and all defects of the title of record except as described in the Registration Statement, the Prospectus and the General Disclosure Package, and such other encumbrances that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and each such Owned Vessel is in good standing with respect to the payment of past and current taxes, fees and other amounts payable under the laws of the jurisdiction where it is
registered as would affect its registry with the ship registry of such jurisdiction except for failures to be in good standing that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(y) Each
Owned Vessel is operated in compliance with the rules, codes of practice, conventions, protocols, guidelines or similar requirements or restrictions imposed, published or promulgated by any international, national, state or local regulatory
agencies or bodies, classification society or insurer applicable to the respective vessel (collectively, “Maritime Guidelines”) and all applicable international, national, state and local conventions, laws,
regulations, orders, permits, licenses, certificates, approvals, financial assurances, consents and other authorizations and other requirements (including, without limitation, all Environmental Laws), except where such failure to be in compliance
would not have a material adverse effect on the Company and its subsidiaries, taken as a
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whole. The Company and each applicable subsidiary are qualified to own or lease, as the case may be, and operate such vessels under all
applicable international, national, state and local conventions, laws, regulations, orders, such permits, licenses, certificates, approvals, financial assurances, consents and other authorizations and other requirements (including, without
limitation, all Environmental Laws) and Maritime Guidelines, including the laws, regulations and orders of each such vessel’s flag state, except where such failure to be so qualified would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(z) Each
Owned Vessel is classed by a classification society which is a full member of the International Association of Classification Societies and each Owned Vessel is in class with valid class and trading certificates, without any overdue
recommendations.
(aa) Since the
date of the last audited Company financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (i) there has not been a material loss or total loss of or to any of the Owned Vessels, whether actual
or constructive, (ii) no Owned Vessel has been arrested or requisitioned for title or hire and (iii) neither the Company nor any of its subsidiaries has sustained any material loss or interference with its respective business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree.
(bb) Except as
described in the Registration Statement, the General Disclosure Package and the Prospectus, none of the contracts or agreements filed as an exhibit to the Registration Statement or the Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 on Form 20-F have been terminated, amended, modified, supplemented or waived; neither the Company nor any subsidiary has sent or received any communication regarding the termination, amendment, modification, supplementation or
waiver of, or an intention to terminate, amend, modify, supplement or waive, or not to consummate any transaction contemplated by, any such contract or agreement; and no such termination, amendment, modification, supplementation or waiver, or
intention to terminate, amend, modify, supplement or waive, or not to consummate any transaction contemplated by, any such contract or agreement has been threatened by the Company or any subsidiary or, to the knowledge of the Company, any other
party to any such contract or agreement.
(cc) Except as
described in the Registration Statement, the Prospectus and the General Disclosure Package, (A) neither the Company nor any of its subsidiaries is, or has been, in violation of any international, federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, and including conventions adopted by the International
Maritime Organization, relating to pollution or
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protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products,
asbestos-containing materials, oily bilge water, harmful organisms or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, “Environmental Laws”) and to the knowledge of the Company, there is no condition or circumstance that would reasonably be expected to prevent, impede or add
expense to compliance with applicable Environmental Laws in the future, (B) the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries, (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or
Governmental Entity, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws, (E) neither the Company nor any of its subsidiaries has been named as a “potentially responsible party” under
the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and (F) neither the Company nor its subsidiaries reasonably anticipates material capital expenditures relating to any Environmental Laws.
(dd) In the
ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on its business, operations and properties, in the course of which it identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for environmental remediation, for closure of properties or for compliance with Environmental Laws, any related constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ee) There are
no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares registered pursuant to the Registration Statement.
(ff) (i) None
of the Company or its subsidiaries or affiliates, or any director or officer, or, to the Company’s knowledge, any employee or agent or representative of the Company or of any of its subsidiaries or affiliates, has taken
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or will take any action that would result in a violation of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”) or any similar laws in other applicable jurisdictions, including, without limitation, any action in furtherance of an offer, payment, promise to pay, or authorization or
approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a
public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) in order to influence official action, or to any
person in violation of any applicable anti-corruption laws; (ii) the Company and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue
to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) neither the Company nor its subsidiaries will use, directly or indirectly, the
proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption law.
(gg) To the
best of the Company’s knowledge, the operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank
Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of
jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to
the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(hh) (i) None
of the Company, any of its subsidiaries, or any director, officer, or employee thereof, or, to the Company’s knowledge, any agent, affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by one or more Persons that are:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority
(collectively, “Sanctions”), or
10
(B) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The
Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund
or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any
other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) Except
as detailed in Schedule II, for the past 5 years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(ii) Subsequent
to the respective dates as of which information is given in each of the Registration Statement, the Prospectus and the General Disclosure Package, (i) the Company and its subsidiaries, taken as a whole, have not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction; (ii) the Company has not purchased any of its outstanding capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock
other than ordinary and customary dividends; and (iii) there has not been any material change in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, taken as a whole, except in each case as described in each of
the Registration Statement, the Prospectus and the General Disclosure Package, respectively.
(jj) The
Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the business of the Company and its subsidiaries, in each case
free and clear of all liens, encumbrances and defects except such as are described in the Registration Statement, the Prospectus and the General Disclosure Package or such as do not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere materially with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries, in each case
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except as described in the Registration Statement, the Prospectus and the General Disclosure Package.
(kk) The
Company and its subsidiaries own or possess, or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and trade names currently employed by them in connection with the business now operated by them, and neither the Company nor any of its subsidiaries has received any notice
of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(ll) (i) The
Company and its subsidiaries use and have used any and all software and other materials distributed under a “free,” “open source,” or similar licensing model (including but not limited to the MIT License, Apache License, GNU General Public License,
GNU Lesser General Public License and GNU Affero General Public License) (“Open Source Software”) in compliance with all license terms applicable to such Open Source Software; and (ii) neither the Company nor
any of its subsidiaries uses or distributes or has used or distributed any Open Source Software in any manner that requires or has required (A) the Company or any of its subsidiaries to permit reverse engineering of any software code or other
technology owned by the Company or any of its subsidiaries or (B) any software code or other technology owned by the Company or any of its subsidiaries to be (1) disclosed or distributed in source code form, (2) licensed for the purpose of making
derivative works or (3) redistributed at no charge.
(mm) (i) The
Company and each of its subsidiaries have complied and are presently in compliance with all internal and external privacy policies, contractual obligations, industry standards, applicable laws, statutes, judgments, orders, rules and regulations of
any court or arbitrator or other governmental or regulatory authority and any other legal obligations, in each case, relating to the collection, use, transfer, import, export, storage, protection, disposal and disclosure by the Company or any of
its subsidiaries of personal, personally identifiable, household, sensitive, confidential or regulated data (“Data Security Obligations”, and such data, “Data”); (ii)
the Company has not received any notification of or complaint regarding and is unaware of any other facts that, individually or in the aggregate, would reasonably indicate non-compliance with any Data Security Obligation; and (iii) of there is no
action, suit or proceeding by or before any court or governmental agency, authority or body pending or threatened alleging non-compliance with any Data Security Obligation.
(nn) The
Company and each of its subsidiaries have taken all technical and organizational measures necessary to protect the information technology systems and Data used in connection with the operation of the Company’s and its
12
subsidiaries’ businesses. Without limiting the foregoing, the Company and its subsidiaries have used reasonable efforts to establish and
maintain, and have established, maintained, implemented and complied with, reasonable information technology, information security, cyber security and data protection controls, policies and procedures, including oversight, access controls,
encryption, technological and physical safeguards and business continuity/disaster recovery and security plans that are designed to protect against and prevent breach, destruction, loss, unauthorized distribution, use, access, disablement,
misappropriation or modification, or other compromise or misuse of or relating to any information technology system or Data used in connection with the operation of the Company’s and its subsidiaries’ businesses (“Breach”).
There has been no such Breach, and the Company and its subsidiaries have not been notified of and have no knowledge of any event or condition that would reasonably be expected to result in, any such Breach.
(oo) No
material labor dispute with the employees of the Company or any of its subsidiaries exists, except as described in the Registration Statement, the Prospectus and the General Disclosure Package, or, to the knowledge of the Company, is imminent; and
the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that could have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(pp) (i) Each
employment, severance or similar contract, plan, arrangement or policy and each other plan or arrangement providing for cash or equity compensation, housing funds, fringe benefits, perquisites, profit-sharing, incentive or deferred compensation,
vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, disability or sick leave benefits and post-employment, retirement benefits, superannuation funds or pension schemes, in each case which is
maintained, administered or contributed to by the Company or any of its subsidiaries and covers any current or former employee, officer, director or individual consultant of the Company or a subsidiary (each an “Employee
Plan”) has been so maintained, administered or contributed to in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, such that any noncompliance would not reasonably be
expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; and (ii) no Employee Plan is subject to Title IV of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and none of the Company, any of its subsidiaries, or any ERISA Affiliates has any current or contingent liability or obligation with respect to any “defined benefit plan” (as defined in Section 3(35) of, and subject to,
ERISA) or “multiemployer plan” (as defined in Section 3(37) of, and subject to, ERISA). As used herein, “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with the
Company and any of its subsidiaries, is treated as a single employer under Section 414(b) or (c) of the Internal Revenue Code of 1986, as amended (the “Code”) (and Sections 414(m) and (o) of the Code for
purposes relating to Section 412 of the Code).
13
(qq) The
Company and each of its subsidiaries are insured by insurers of recognized financial responsibility (which term shall include P&I clubs) against such losses and risks and in such amounts as are prudent and customary in the businesses in which
they are engaged; neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, except as described in the Registration Statement, the Prospectus and the General Disclosure Package.
(rr) The
Company and its subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a material adverse effect on the Company and its subsidiaries, taken as a whole, except as described in the Registration Statement, the Prospectus and the General Disclosure Package.
(ss) The
Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with United States Generally Accepted Accounting Principles (“U.S. GAAP”) and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement is accurate. Except as described in the Registration
Statement, the Prospectus and the General Disclosure Package, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting.
(tt) The
Company maintains an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such
14
information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required
disclosure. The Company has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act and such disclosure controls and procedures were effective as of the end of the
Company’s most recently completed fiscal quarter.
(uu) The
Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof (except where the failure to file would not, singly or in
the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole) and have paid all taxes required to be paid thereon (except for cases in which the failure to pay would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a whole, or except as currently being contested in good faith and for which reserves required by U.S. GAAP have been created in the financial statements of the Company), and no
tax deficiency has been determined adversely to the Company or any of its subsidiaries which, singly or in the aggregate, has had (nor does the Company nor any of its subsidiaries have any notice or knowledge of any tax deficiency which could
reasonably be expected to be determined adversely to the Company or its subsidiaries and which could reasonably be expected to have) a material adverse effect on the Company and its subsidiaries, taken as a whole.
(vv) The
Company was not a passive foreign investment company (“PFIC”) within the meaning of Section 1297 of the Code, for its most recently completed taxable year and, based on the Company’s current projected income,
assets and activities, the Company does not expect to be classified as a PFIC for the current taxable year or any subsequent taxable year.
(ww) The
Ordinary Shares shall be “actively-traded securities” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act.
(xx) The
interactive data in eXtensbile Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the
Commission’s rules and guidelines applicable thereto.
2. Sale of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Manager agree that the Company
may from time to time seek to sell Shares through the Manager, acting as sales agent as follows:
(a) The
Company may submit its orders to the Manager by telephone (including any price, time or size limits or other customary parameters or conditions) to sell Shares on any Trading Day (as defined herein) which order shall be confirmed by the Manager
(and accepted by the Company) by electronic
15
mail using a form substantially similar to that attached hereto as Exhibit A. As used herein, “Trading
Day” shall mean any trading day on the New York Stock Exchange (the “Exchange”), other than a day on which the Exchange is scheduled to close prior to its regular weekday closing time.
(b) Subject
to the terms and conditions hereof, the Manager shall use its commercially reasonable efforts to execute any Company order submitted to it hereunder to sell Shares and with respect to which the Manager has agreed to act as sales agent. The Company
acknowledges and agrees that (i) there can be no assurance that the Manager will be successful in selling the Shares, (ii) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for
any reason and (iii) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement.
(c) The
Company shall not authorize the issuance and sale of, and the Manager shall not sell, any Share at a price lower than the minimum price therefor designated by the Company pursuant to Section 2(a) above. In addition, the Company or the Manager may,
upon notice to the other party hereto by telephone (confirmed promptly by email or facsimile), suspend an offering of the Shares pursuant to this Agreement; provided, however,
that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(d) The
Manager shall provide written confirmation (which may be by facsimile or email) to the Company following the close of trading on the Exchange each day in which Shares are sold under this Agreement setting forth (i) the amount of Shares sold on such
day, (ii) the gross offering proceeds received from such sale and (iii) the commission payable by the Company to the Manager with respect to such sales.
(e) At each
Time of Sale, Settlement Date and Representation Date (as defined below), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of the Manager to use its commercially reasonable
efforts to sell the Shares on behalf of the Company as sales agent shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the
continuing satisfaction of the additional conditions specified in Section 5 of this Agreement.
(f) Notwithstanding
any other provision of this Agreement, the Company and the Manager agree that no sales of Shares shall take place, the Company shall not request the sales of any Shares that would be sold and the Manager shall not be obligated to sell or offer to
sell, (1) during any period commencing on the first trading day following the 45th day after each fiscal quarter until the open of business of the commencement of trading on the second full trading day following the filing of a Quarterly
Form 6-K (as defined below)
16
or Annual Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 on Form 20-F, as applicable, or (2) during any
other period in which the Company is, or could be deemed to be, in possession of material non-public information.
3. Fee. The compensation to the Manager for sales of the Shares with respect to which the Manager acts as sales agent hereunder shall be up to 1.5% of the gross offering proceeds of the Shares sold pursuant to
this Agreement, as set forth in the Manager’s written confirmation to the Company pursuant to Section 2(d).
4. Payment, Delivery and Other Obligations. Settlement for sales of the Shares pursuant to this Agreement will occur on the third Trading Day (or such earlier day as is industry practice for regular-way trading)
following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by
the Company to the Manager against payment of the net proceeds from the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to the Manager’s or its designee’s
account (provided that the Manager shall have given the Company written notice of such designee prior to the Settlement Date) at The Depository Trust Company or by such other means of delivery as may be
mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payment in same day funds delivered to the account designated by the Company. If the
Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (i) hold the Manager harmless against any loss, claim, damage, or expense (including reasonable legal
fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Manager any commission, discount or other compensation to which it would otherwise be entitled absent such default.
5. Conditions to the Manager’s Obligations. The obligations of the Manager are subject to the following conditions:
(a) Since
the later of (A) the date of this Agreement and (B) the immediately preceding Representation Date:
(i) no
order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible
17
change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical
rating organization”, as such term is defined in Section 3(a)(62) of the Exchange Act; and
(iii) there
shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from the respective
dates of the Registration Statement, the Prospectus and the General Disclosure Package that, in the Manager’s judgment, is material and adverse and that makes it, in the Manager’s judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The
Manager shall have received on each date specified in Section 6(l) a certificate, dated such date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) and 5(a)(ii) above and to the effect that (i) the
representations and warranties of the Company contained in this Agreement are true and correct as of such date; (ii) the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before such date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by the
Commission; (iv) the Prospectus Supplement, any Interim Prospectus Supplement and each Permitted Free Writing Prospectus have been timely filed with the Commission under the Securities Act (in the case of a Permitted Free Writing Prospectus, to the
extent required by Rule 433 under the Securities Act), and all requests for additional information on the part of the Commission have been complied with or otherwise satisfied; (v) as of such date and as of each Time of Sale, if any, subsequent to
the immediately preceding Representation Date, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not
misleading; and (vi) as of such date and as of each Time of Sale, if any, subsequent to the immediately preceding Representation Date, the General Disclosure Package did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no such certificate shall apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Manager expressly for use in the General Disclosure
Package.
The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The
Manager shall have received on each date specified in Section 6(m), and on such other dates as may be reasonably requested by the Manager, an opinion and negative assurance letter of Seward & Kissel LLP,
18
outside counsel for the Company, and an opinion of (A) Seward & Kissel LLP, outside Liberia and Marshall Islands counsel for the
Company, and (B) MJM Limited, outside Bermuda counsel for the Company, as applicable, dated such date, to the effect set forth in Schedule V hereto.
The opinion of counsel for the Company described in Section 5(c) above shall be rendered to the Manager at the request of the Company and
shall so state therein.
(d) The
Manager shall have received on each date specified in Section 6(n), and on such other dates as may be reasonably requested by the Manager, an opinion and negative assurance letter of Simpson Thacher & Bartlett LLP, counsel for the Manager,
dated such date, in form and substance reasonably satisfactory to the Manager.
(e) The
Manager shall have received on each date specified in Section 6(o), a letter dated such date in form and substance satisfactory to the Manager, from PricewaterhouseCoopers AS, independent public accountants for the Company, (A) confirming that they
are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board, (B) stating, as of such date, the conclusions and findings of such firm with respect
to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”)
and (C) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement, the Prospectus
Supplement, the Prospectus or any issuer free writing prospectus, as amended and supplemented to the date of such letter.
(f) On each
date specified in Section 6(p), and only to the extent required by the terms of Section 6(p), the Manager shall have received a letter dated such date in form and substance satisfactory to the Manager, from the Chief Financial Officer of the
Company, stating, as of such date, the conclusions and findings of such individual, in her capacity as Chief Financial Officer of the Company, with respect to certain current financial information requested by the Manager.
(g) All
filings with the Commission required by Rule 424 under the Act to have been filed by each Time of Sale or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on
Rule 424(b)(8)).
(h) The
Shares shall have been approved for listing on the Exchange, subject only to a notice of issuance at or prior to the applicable Settlement Date.
6. Covenants of the Company. The Company covenants with the Manager as follows:
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(a) To
furnish to the Manager copies of the Registration Statement (excluding exhibits) and copies of the Prospectus (or the Prospectus as amended or supplemented) in such quantities as the Manager may from time to time reasonably request. In case the
Manager is required to deliver, under the Securities Act (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule), a prospectus relating to the Shares after the nine-month period referred to in
Section 10(a)(3) of the Securities Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Securities Act, upon the request of the Manager, and at its own
expense, the Company shall prepare and deliver to the Manager as many copies as the Manager may request of an amended Registration Statement or amended or supplemented prospectus complying with Item 512(a) of Regulation S-K or Section 10(a)(3) of
the Securities Act, as the case may be.
(b) Before
amending or supplementing the Registration Statement or the Prospectus, to furnish to the Manager a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Manager reasonably objects
(other than any prospectus supplement relating to the offering of Shelf Securities other than the Ordinary Shares); to furnish to the Manager a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred
to by the Company and not to use or refer to any proposed free writing prospectus to which the Manager reasonably objects; and not to take any action that would result in the Manager or the Company being required to file with the Commission
pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Manager that the Manager otherwise would not have been required to file thereunder.
(c) To file
with the Commission, subject to Section 6(b) above, subsequent to the date of the Prospectus Supplement and for the duration of the Delivery Period, promptly (1) all reports and any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and (2) a Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16 Under the Securities Exchange Act of 1934 on Form 6-K containing interim
financial statements and the information customarily contained in a “management’s discussion and analysis of financial condition and results of operations” in respect of such financial statements on at least a quarterly basis (each, a “Quarterly Form 6-K”), and for the duration of the Delivery Period, to include in its Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 on Form 20-F and each Quarterly Form 6-K,
a summary detailing, for the relevant reporting period, (i) the number of Shares sold through the Manager pursuant to this Agreement, (ii) the net proceeds received by the Company from such sales and (iii) the compensation paid by the Company to
the Manager with respect to such sales (or alternatively, to prepare a prospectus supplement (each, an “Interim Prospectus Supplement”) with such summary information and, at least once a quarter and
20
subject to Section 6(b) above, file such Interim Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the
time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act)).
(d) To file
with the Commission any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act and to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent
not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto) to the Manager via electronic mail in “.pdf” format on such filing date to an electronic mail account
designated by the Manager and, at the Manager’s request, to also furnish copies of the Prospectus and such Prospectus Supplement to the Exchange and each other exchange or market on which sales of the Shares were effected, in each case, as may be
required by the rules or regulations of the Exchange or such other exchange or market.
(e) During
the Delivery Period to advise the Manager, promptly after it receives notice thereof, of the issuance of any stop order by the Commission, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any order preventing or suspending the use of any prospectus relating to the Shares or suspending any such qualification, to promptly use its
best efforts to obtain its withdrawal.
(f) If,
after the date hereof and during the Delivery Period, either (i) any event shall occur or condition exist as a result of which the Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (ii) for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file with the
Commission any document in order to comply with the Securities Act or the Exchange Act, to promptly advise the Manager by telephone (with confirmation in writing or electronic mail) and to promptly prepare and file, subject to Section 6(b) above,
with the Commission an amendment or supplement to the Registration Statement or the Prospectus which will correct such statement or omission or effect such compliance and to furnish to the Manager as many copies as the Manager may reasonably
request of such amendment or supplement.
(g) To
endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Manager shall reasonably request and to continue such qualifications in effect so long as necessary under such laws for the
distribution of the Shares.
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(h) To make
generally available to the Company’s security holders and to the Manager as soon as practicable an earnings statement covering a period of at least 12 months beginning with the first fiscal quarter of the Company occurring after the date of this
Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158 under the Securities Act).
(i) Whether
or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing
of the Registration Statement, any Prospectus Supplement, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing
fees payable to the Commission relating to the Shares (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Manager, in the quantities
hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 6(g) above, including filing fees
and the reasonable fees and disbursements of counsel for the Manager in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum up to a maximum of $15,000, (iv) all filing fees and the reasonable fees
and disbursements of counsel to the Manager incurred in connection with the review and qualification by the Financial Industry Regulatory Authority up to a maximum of $10,000, (v) all costs and expenses incident to listing the Shares on the
Exchange and other national securities exchanges and foreign stock exchanges, as the case may be, (vi) the costs and charges of any transfer agent, registrar or depositary, and (vii) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section 6, Section 3 and Section 8, the Manager will pay all of its costs and expenses,
including any advertising expenses connected with any offers the Manager may make.
(j) If the
third anniversary of the initial effective date of the Registration Statement occurs before all the Shares have been sold, prior to such third anniversary, to file, subject to Section 6(b), a new shelf registration statement and to take any other
action necessary to permit the public offering of the Shares to continue without interruption (references herein to the Registration
22
Statement shall include the new registration statement declared effective by the Commission).
(k) To use
its commercially reasonable efforts to cause the Shares to be listed for trading on the Exchange and to maintain such listing.
(l) Upon
commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder), and each time that (i) the Registration
Statement or the Prospectus is amended or supplemented (other than by a prospectus supplement relating solely to the offering of Shelf Securities other than the Shares or the filing of any Report of Foreign Private Issuer pursuant to Rule 13a-16 or
15d-16 under the Securities Exchange Act of 1934 on Form 6-K (other than the filing of any Quarterly Form 6-K that is incorporated by reference into the Registration Statement)) or (ii) there is filed with the Commission an Annual Report Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 on Form 20-F or a Quarterly Form 6-K that is incorporated by reference into the Registration Statement (such commencement date (and any such recommencement date, if applicable) and each
such date referred to in (i) and (ii) above, a “Representation Date”), to furnish or cause to be furnished to the Manager forthwith a certificate dated and delivered as of such date, in form reasonably
satisfactory to the Manager, to the effect that the statements contained in the certificate referred to in Section 5(b) of this Agreement are true and correct at the time of such commencement, recommencement, amendment, supplement or filing, as the
case may be, as though made at and as of such time modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate.
(m) On each
Representation Date, the Company shall cause to be furnished to the Manager, dated as of such date, in form and substance satisfactory to the Manager, the written opinion and negative assurance letter of Seward & Kissel LLP, outside counsel for
the Company, and an opinion of (A) Seward & Kissel LLP, outside Liberia and Marshall Islands counsel for the Company, and (B) MJM Limited, outside Bermuda counsel for the Company, as described in Section 5(c), modified as necessary to relate to
the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion.
(n) On each
Representation Date, Simpson Thacher & Bartlett LLP, counsel to the Manager, shall furnish to the Manager a written opinion and negative assurance letter, dated as of such date in form and substance reasonably satisfactory to the Manager.
With respect to Sections 6(m) and 6(n) above, in lieu of delivering such an opinion for dates subsequent to the commencement of the
offering of the Shares under this Agreement such counsel may furnish the Manager with a letter (a “Reliance Letter”)
23
to the effect that the Manager may rely on a prior opinion delivered under Section 6(m) or Section 6(n), as the case may be, to the same extent as if it were
dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of such subsequent date).
(o) Upon
commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder) and each time that (i) the Registration
Statement or the Prospectus is amended or supplemented to include additional financial information (other than the filing of any Report of Foreign Private Issuer pursuant to Rule 13a-16 or 15d-16 under the Securities Exchange Act of 1934 on Form
6-K (other than the filing of any Report of Foreign Private Issuer pursuant to Rule 13a-16 or 15d-16 under the Securities Act Exchange of 1934 on Form 6-K containing financial statements of the Company that is incorporated by reference into the
Registration Statement)), (ii) the Company files with the Commission an Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 on Form 20-F or a Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16 Under
the Securities Exchange Act of 1934 on Form 6-K containing financial statements of the Company that is incorporated by reference into the Registration Statement, or (iii) on such other dates as may be reasonably requested by the Manager,
PricewaterhouseCoopers AS, independent public accountants of the Company, shall deliver to the Manager the comfort letter(s) described in Section 5(e).
(p) Upon
commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder) and each time that (i) the Registration
Statement or the Prospectus is amended or supplemented to include additional financial information (other than the filing of any Report of Foreign Private Issuer pursuant to Rule 13a-16 or 15d-16 under the Securities Exchange Act of 1934 on Form
6-K (other than the filing of any Report of Foreign Private Issuer pursuant to Rule 13a-16 or 15d-16 under the Securities Exchange Act of 1934 on Form 6-K containing financial statements of the Company that is incorporated by reference into the
Registration Statement)), (ii) the Company files with the Commission an Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 on Form 20-F or a Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16 Under
the Securities Exchange Act of 1934 on Form 6-K containing financial statements of the Company that is incorporated by reference into the Registration Statement, or (iii) on such other dates as may be reasonably requested by the Manager, the
Company shall deliver to the Manager the Chief Financial Officer’s certificate described in Section 5(f).
(q) To
comply with the Due Diligence Protocol attached hereto on Schedule III and any other due diligence review or call reasonably requested by the Manager.
24
(r) To
reserve and keep available at all times, free of preemptive rights, Shares for the purpose of enabling the Company to satisfy its obligations hereunder.
(s) That it
consents to the Manager trading in the Ordinary Shares for the Manager’s own account and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement.
(t) That
each acceptance by the Company of an offer to purchase the Shares hereunder shall be deemed to be an affirmation to the Manager that the representations and warranties of the Company contained in or made pursuant to this Agreement are true and
correct as of the date of such acceptance as though made at and as of such date, and an undertaking that such representations and warranties will be true and correct as of the Time of Sale and the Settlement Date for the Shares relating to such
acceptance as though made at and as of each of such dates (except that such representations and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).
(u) Prior to
instructing the Manager pursuant to Section 2 hereof to make sales on any given day (or as otherwise agreed between the Company and the Manager), an officer of the Company, authorized by either the Company’s board of directors (the “Board”) or any authorized committee of the Board, (i) shall have approved the minimum price and maximum number of Shares to be sold on such day and (ii) shall have provided to the Company authorization in such
form as is reasonably satisfactory to the Manager approving such price and number. The instructions provided to the Manager by the Company, pursuant to Section 2, on such day shall reflect the terms of such authorization.
(v) Not to,
or publicly disclose an intention to, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of or agree to dispose of, directly or indirectly, any Ordinary Shares or securities
convertible into or exchangeable or exercisable for the Ordinary Shares or warrants or other rights to purchase the Ordinary Shares or any other securities of the Company that are substantially similar to the Ordinary Shares or permit the
registration under the Securities Act of any Ordinary Shares, except for (i) the registration of the Shares and the sales through the Manager pursuant to this Agreement, (ii) any Ordinary Shares issued by the Company upon the exercise of an option
or warrant or the conversion of a security outstanding on the date hereof and referred to in the Prospectus, (iii) any Ordinary Shares issued or options to purchase Ordinary Shares granted pursuant to existing employee benefit plans of the Company
or (iv) any Ordinary Shares issued pursuant to any non-employee director stock plan, dividend reinvestment plan or stock purchase plan of the Company, during the Delivery Period, without (A) giving the Manager at least three business days’ prior
written notice specifying the nature of the proposed sale and the date of such proposed sale and (B) the Manager suspending activity under this program for such period of time as requested by the Company.
25
(w) All
payments to be made by the Company to the Manager under this Agreement will be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever, unless the Company is compelled by law
to deduct or withhold such taxes, duties or charges. In that event, the Company will pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have
been received if no withholding or deduction had been made.
7. Covenants of the Manager. The Manager covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus
prepared by or on behalf of the Manager that otherwise would not be required to be filed by the Company thereunder, but for the action of the Manager.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless the Manager, each person, if any, who controls the Manager within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and each affiliate of the Manager within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any such action or claim) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement,
the Prospectus, the Prospectus Supplement (including any Interim Prospectus Supplement), the General Disclosure Package, any free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act, or any amendment or supplement thereto, or arise out of, or are based upon, any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to the
Manager furnished to the Company in writing by the Manager expressly for use therein, it being understood and agreed that the only such information furnished by the Underwriters through Morgan Stanley consists of the information described as such
in paragraph (b) below.
(b) The
Manager agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the Company to the Manager, but only with reference to information relating to the Manager furnished to the Company in writing by the Manager expressly for use in the
Registration Statement, the Prospectus, the Prospectus Supplement (including any Interim Prospectus Supplement), the General Disclosure Package, any free writing prospectus that the Company has
26
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or any amendment or supplement thereto.
(c) In case
any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”)
shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, and the indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any
such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Manager, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
27
(d) To the
extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the Manager, on the other hand, from the offering of the Shares or (ii) if the allocation provided by Section 8(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in Section 8(d)(i) above but also the relative fault of the Company, on the one hand, and of the Manager, on the other hand, in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Manager, on the other hand, in connection with the offering of
the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company bear to the total commissions received by the Manager. The relative fault
of the Company, on the one hand, and the Manager, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or by the Manager and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) The
Company and the Manager agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, the Manager shall
not be required to contribute any amount in excess of the amount by which the total price at which the Shares sold by it were offered to the public exceeds the amount of any damages that the Manager has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the
28
Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of the Manager, any person controlling the Manager or any affiliate of the Manager or by or on behalf of the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
9. Effectiveness. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
10. Termination. (a) The Company shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time. Any such termination shall be without
liability of any party to any other party, except that (i) with respect to any pending sale through the Manager for the Company, the obligations of the Company, including, but not limited to, its obligations under Section 4 above, shall remain in
full force and effect notwithstanding such termination; and (ii) the provisions of Section 1, Section 3 and Section 8 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b) The
Manager shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time. Any such termination shall be without liability of any party to any other party except that (i) with
respect to any pending sale through the Manager for the Company, the obligations of the Company, including, but not limited to, its obligations under Section 4 above, shall remain in full force and effect notwithstanding such termination; and (ii)
the provisions of Section 1, Section 3 and Section 8 of this Agreement shall remain in full force and effect notwithstanding such termination.
(c) This
Agreement shall remain in full force and effect until and unless terminated pursuant to Section 10(a) or (b) or otherwise by mutual agreement of the parties; provided that any such termination by mutual
agreement or pursuant to this clause (c) shall in all cases be deemed to provide that Section 1, Section 3 and Section 8 of this Agreement shall remain in full force and effect.
(d) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination shall not be effective until the close of business on the date of receipt
of such notice by the Manager or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Shares, such sale shall settle in accordance with the provisions of Section 4.
11. Entire Agreement. (a) This Agreement represents the entire agreement between the Company and the Manager with respect to the preparation
29
of any Registration Statement, Prospectus Supplement or the Prospectus, the conduct of the offering and the sale and distribution of the
Shares.
(a) The
Company acknowledges that in connection with the offering of the Shares: (i) the Manager has acted and will act at arm’s length and owes no fiduciary duties to, the Company or any other person, (ii) the Manager owes the Company only those duties
and obligations set forth in this Agreement, any contemporaneous written agreement and prior written agreements (to the extent not superseded by this Agreement), if any, and (iii) the Manager may have interests that differ from those of the
Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Manager arising from an alleged breach of fiduciary duty in connection with the sale and distribution of the Shares.
12. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. The words
“execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of
records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the
parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
13. Applicable
Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
14. Submission
to Jurisdiction; Appointment of Agents for Service. The Company hereby submits to the non-exclusive jurisdiction of any New York State or United States Federal court sitting in The City of New York (the “Specified
Courts”) over any suit, action or proceeding arising out of or relating to this Agreement, the Prospectus, the Registration Statement or the offering of the Shares (each, a “Related Proceeding”).
The Company irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any Related Proceeding brought in such a court and any claim that any such Related Proceeding brought
in such a court has been brought in an inconvenient forum. To the extent that the Company has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with
respect to itself or its property, the Company irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding. The Company hereby irrevocably appoints Seward & Kissel LLP, with
offices at One Battery Park Plaza, New York, New York 10004 as its agent for service of process in any Related Proceeding and agrees that service of process in any such Related Proceeding may be made upon it at the office of such agent. The
Company waives, to the fullest extent permitted by law, any other requirements of or objections to specific personal jurisdiction
30
with respect to any Related Proceedings in any of the Specified Courts. The Company represents and warrants that such agent has agreed to act as the
Company’s agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect.
15. Judgment
Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the
rate of exchange used shall be the rate at which in accordance with normal banking procedures the Manager could purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final
judgment is given. The obligation of the Company with respect to any sum due from it to the Manager or any person controlling the Manager shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until
the first business day following receipt by the Manager or controlling person of any sum in such other currency, and only to the extent that the Manager or controlling person may in accordance with normal banking procedures purchase United States
dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to the Manager or controlling person hereunder, the Company agrees as a separate obligation and notwithstanding any such judgment, to
indemnify the Manager or controlling person against such loss. If the United States dollars so purchased are greater than the sum originally due to the Manager or controlling person hereunder, the Manager or controlling person agrees to pay to the
Company an amount equal to the excess of the dollars so purchased over the sum originally due to the Manager or controlling person hereunder.
16. Recognition of the U.S. Special Resolution Regimes. (a) In the event that the Manager is a Covered Entity that becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from the Manager of this
Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In the
event that the Manager is a Covered Entity or a BHC Act Affiliate of the Manager becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against the Manager are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section a “BHC Act Affiliate” has the meaning assigned to the term “affiliate”
in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 252.82(b); (ii) a “covered
31
bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and
the regulations promulgated thereunder.
17. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
18. Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Manager shall be delivered, mailed or sent to Morgan Stanley & Co. LLC, 1585 Broadway, New York, NY
10036 (Attn: Equity Capital Markets Syndicate Desk, with a copy to: Legal Department) with a copy to Lesley Peng, Esq., Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, NY 10017; and if to the Company shall be delivered, mailed
or sent to Frontline Ltd., Par-la-Ville Place, 14, Par-la-Ville Road, Hamilton, HM 08, Bermuda.
[Signature page follows]
32
|
Very truly yours,
FRONTLINE LTD. |
|||
|
By:
|
/s/ Inger M. Klemp
|
||
|
Name:
|
Inger M. Klemp
|
||
|
Title:
|
Chief Financial Officer
|
[Frontline Ltd. – Signature Page to the Equity Distribution Agreement]
|
Accepted as of the date first written above
MORGAN STANLEY & CO. LLC |
||
|
By:
|
/s/ Jeff Montero
|
|
|
Name:
|
Jeff Montero
|
|
|
Title:
|
Executive Director
|
|
[Frontline Ltd. – Signature Page to the Equity Distribution Agreement]
Exhibit 5.1
 |
 |
|
3 June 2020
|
Ref. 29058.0040
|
By Email and by Hand
Frontline Limited
Par-la-Ville Place
14 Par-la-Ville Road
Hamilton HM 08
Bermuda
Dear Sirs,
Frontline Ltd. (the “Company”)
| 1. |
Subject of Opinion
|
We are lawyers duly qualified to practise in Bermuda. This opinion as to the laws of Bermuda is addressed to you in
connection with (i) the Company’s at-the-market offering (the “Offering”) of 100,000,000 of the Company’s ordinary shares of par value US$1.00 (the “Shares”), having an
aggregate offering price of up to US$100,000,000; (ii) the equity distribution agreement (the “Agreement”) dated 3 June 2020 between the Company and Morgan Stanley & Co. LLC, as sales agent (the “Manager”), including any amendments or supplements thereto, pursuant to which the Company may offer the Shares through the Manager, from time to time; and (iii) the registration statement on Form F-3ASR (File No.
333-232567, such registration statement as amended and supplemented from time to time the “Registration Statement”, which term does not include any other document or agreement whether or not specifically
referred to therein or attached as an exhibit or schedule thereto) filed with the Securities and Exchange Commission (the “Commission”) on 5 July 2019 under the Securities Act of 1933, as amended (the “Act”) and the rules and regulations promulgated thereunder, and a base prospectus of the Company dated 5 July 2019 (the “Base Prospectus”), as supplemented by a prospectus
supplement thereto dated 3 June 2020 with respect to the issuance and sale of the Shares included therein (the “Supplement” and together with the Base Prospectus, the “Prospectus”).
| 2. |
Documents Examined
|
For the purposes of this opinion we have examined and relied upon the following (collectively, the “Documents”):
| 2.1. |
a copy of the Registration Statement;
|
| 2.2. |
a copy of the Prospectus;
|
| 2.3. |
a copy of the Agreement;
|
Page 2
| 2.4. |
a copy of the following documents of the Company, as certified by the Secretary thereof on 1 June 2020:
|
| (a) |
Certificate of Incorporation;
|
| (b) |
Certificates of Incorporation on Change of Name;
|
| (c) |
Certificates of Deposit of Memorandum of Increase of Share Capital;
|
| (d) |
Notification of Diminution of Authorised but Unissued Share Capital;
|
| (e) |
Certificate of Deposit of Memorandum of Reduction of Share Capital;
|
| (f) |
Memorandum of Association;
|
| (g) |
Bye-laws;
|
| (h) |
Resolutions passed by the Board of Directors of the Company on 1 June 2020 (the “Resolutions”);
|
| (i) |
Tax Assurance;
|
| (j) |
Register of Directors and Officers; and
|
| (k) |
Register of Members.
|
| 2.5. |
a Certificate of Compliance issued by the Bermuda Registrar of Companies (“ROC”) in respect of the Company dated 3 June 2020; and
|
| 2.6. |
such other documents as we have deemed necessary in order to render this opinion.
|
A reference to a document does not include any other instrument or agreement whether or not specifically referred to
therein or attached as an exhibit or schedule thereto. Except as stated in this paragraph 2, we have not examined any contract, instrument or other document entered into by, or affecting, the Company or any corporate records of the Company and have
not made any other enquiries concerning the Company.
| 3. |
Searches
|
We have also relied upon our searches of the documents of public record relating to the Bermuda Companies maintained
by the ROC and on our search of the Cause Book maintained by the Registrar of the Supreme Court of Bermuda, both made on 2 June 2020 (the “Searches”).
| 4. |
Opinion Limited to Bermuda Law
|
We have made no investigation of the laws of any jurisdiction other than Bermuda and this opinion is given only with
respect to Bermuda law as applied by the courts of Bermuda at the date thereof and is governed by, and should be construed in accordance with, those laws. This opinion is limited to the matters stated herein and does not extend to, and is not
intended to be extended by implication to, any other matters. We give this opinion on the basis that it will not give rise to any legal proceedings with respect thereto in any jurisdiction other than Bermuda.
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| 5. |
Assumptions
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In giving this opinion we have assumed:
| 5.1. |
the authenticity, accuracy and completeness of all Documents (including, without limitation, public records) submitted to us as originals and the conformity to authentic original documents
of all Documents submitted to us as certified, conformed, notarised or photo static copies;
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| 5.2. |
the genuineness of all seals, signatures and markings on the Documents;
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| 5.3. |
the authority, capacity and power of each of the persons signing the Documents (other than the Company);
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| 5.4. |
that any representation, warranty or statement of fact or law, other than the laws of Bermuda, made in any of the Documents, is true, accurate and complete;
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| 5.5. |
that each of the Documents which was received by electronic means is complete, intact and in conformity with the transmission as sent;
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| 5.6. |
that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would have any implication in relation to the opinions expressed herein;
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| 5.7. |
that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would be contravened by any actions taken by the Company in connection with the
Registration Statement or which would have any implication in relation to the opinion expressed herein and that, in so far as any obligation under, or action to be taken under, the Registration Statement is required to be performed or
taken in any jurisdiction outside Bermuda, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be
illegal by virtue of the laws of that jurisdiction;
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| 5.8. |
that the information disclosed by the Searches has not been materially altered and that the Searches did not fail to disclose any material information which had been delivered for filing
or registration, but was not disclosed or did not appear on the public files or on the Cause Book at the time of the Searches;
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| 5.9. |
that no litigation, administrative or other proceeding of or before any governmental authority of Bermuda is pending against or affecting the Company;
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| 5.10. |
that the Company has not passed a voluntary winding-up resolution and that no petition has been presented to or order made by a court for the winding-up or dissolution of the Company;
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| 5.11. |
that the Resolutions certified as being true and accurate and provided to us in connection with the giving of this opinion were duly adopted by the duly elected or appointed directors of
the Company or any duly constituted committee thereof; that any provisions contained in the Companies Act 1981 of Bermuda, as amended (the “Companies Act”), or the bye-laws of the Company relating
to the declaration of directors’ interests and the convening of, the quorum required for, and voting at the meetings of the directors and the adopting of written resolutions of the directors were duly observed; and that such
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Resolutions have not been amended or rescinded, either in whole or in part, and are in full force and effect;
| 5.12. |
when issued, all Shares will be issued in compliance with all matters of, and will represent valid and enforceable obligations under, applicable U.S. federal and state securities laws and
other laws (other than the laws of Bermuda, in respect of which we are opining); and
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| 5.13. |
that, as of each and every time any of the Shares are issued in accordance with the Agreement, the Company will have a sufficient number of authorised and unissued Shares available for
issuance.
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| 6. |
Opinion
|
Based upon and subject to the foregoing and subject to the reservations set out below and to any matters not disclosed
to us, we are of the opinion that:
| 6.1. |
the Company is duly incorporated for an indefinite period as an exempted limited company, and is validly existing and in ‘good standing’ under the laws of Bermuda;
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| 6.2. |
the Shares, when issued, sold and paid for as contemplated in the Prospectus and the Agreement, will be validly issued, fully paid and non-assessable; and
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| 6.3. |
so far as can be ascertained from the Searches, the Company is not engaged in or threatened with any action, suit, or proceeding before any court in Bermuda.
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| 7. |
Reservations
|
We have the following reservations:
| 7.1. |
we have relied upon searches of public records on file at the offices of the ROC and the Registry of the Supreme Court of Bermuda but we note that the records disclosed by those searches
may not be complete or up to date;
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| 7.2. |
any reference in this opinion to shares being “non-assessable” means, in relation to fully-paid shares of the Company and subject to any contrary provision in any agreement in writing
between the Company and the holder of shares, that: no shareholder shall be obliged to contribute further amounts to the capital of the Company, either in order to complete payment for their shares, to satisfy claims of creditors of the
Company, or otherwise; and no shareholder shall be bound by an alteration of the Memorandum of Association or Bye-Laws of the Company after the date on which he became a shareholder, if and so far as the alteration requires him to take,
or subscribe for additional shares, or in any way increases his liability to contribute to the share capital of, or otherwise to pay money to, the Company; and
|
| 7.3. |
any reference in this opinion to the Company being “in good standing” means having paid all fees and taxes and having made all filings required by the laws of Bermuda in order to maintain
the valid existence of the Company pursuant to such laws.
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| 8. |
Disclosure
|
This opinion has been prepared for use in connection with the filing by the Company of a current report on Form 6-K
which will be incorporated by reference into the Registration Statement and the prospectus thereto and is not to be relied upon in respect of any other matter.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the above-described Form 6-K and to the reference to
our firm under the caption “Legal Matters” in the prospectus attached to the Registration Statement, without admitting that we are “experts” within the meaning of the Act or the rules and regulations of the Commission thereunder, with respect to any
part of the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under section 7 of the Act.
This opinion speaks as of its date and is strictly limited to the matters stated in it and we assume no obligation to
review or update this opinion if applicable law or the existing facts or circumstances should change.
Yours faithfully,
/s/ MJM Limited
MJM LIMITED
Exhibit 99.1
Frontline Ltd. – Announces Launching of ATM Equity Offering
June 3, 2020.
Frontline Ltd. (NYSE: FRO) (“Frontline” or the “Company”) today announced the Company entered into an Equity
Distribution Agreement dated June 3, 2020, with Morgan Stanley & Co. LLC (“Morgan Stanley”) for the offer and sale of up to $100.0 million of common shares of Frontline.
In accordance with the terms of the Equity Distribution Agreement, the Company may offer and sell its common shares at
any time and from time to time through Morgan Stanley as its sales agent. Sales of the common shares, if any, will be made by means of ordinary brokers’ transactions on NYSE or otherwise at market prices prevailing at the time of sale, at prices
related to the prevailing market prices, or at negotiated prices.
The net proceeds of this offering will be used to opportunistically fund growth opportunities and for general corporate
purposes.
This press release does not constitute an offer to sell or the solicitation of an offer to buy securities and shall not
constitute an offer, solicitation or sale in any jurisdiction in which such offer, solicitation or sale is unlawful. The offering is being made by means of a prospectus and related prospectus supplement. A prospectus supplement related to the
offering has been filed with the Securities and Exchange Commission. Copies of the prospectus and prospectus supplement relating to the offering may be obtained from the offices of Morgan Stanley at 180 Varick Street, Second Floor, New York, New York
10014, Attention: Prospectus Department.
June 3, 2020
The Board of Directors
Frontline Ltd.
Hamilton, Bermuda
Frontline Ltd.
Hamilton, Bermuda
Questions should be directed to:
Robert Hvide Macleod: Chief Executive Officer, Frontline Management AS
+47 23 11 40 84
Inger M. Klemp: Chief Financial Officer, Frontline Management AS
+47 23 11 40 76
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Matters discussed in this document may constitute forward-looking statements. The Private Securities Litigation Reform
Act of 1995 provides safe harbor protections for forward-looking statements in order to encourage companies to provide prospective information about their business. Forward-looking statements include statements concerning plans, objectives, goals,
strategies, future events or performance, and underlying assumptions and other statements, which are other than statements of historical facts.
Frontline desires to take advantage of the safe harbor provisions of the Private Securities Litigation Reform Act of
1995 and is including this cautionary statement in connection with this safe harbor legislation. The words “believe,” “anticipate,” “intends,” “estimate,” “forecast,” “project,” “plan,” “potential,” “will,” “may,” “should,” “expect,” “targets,”
“likely,” “could,” “seeks,” “continue,” “possible,” “pending” and similar expressions identify forward-looking statements.
The forward-looking statements in this document are based upon various assumptions, many of which are based, in turn,
upon further assumptions, including without limitation, management’s examination of historical operating trends, data contained in Frontline’s records and other data available from third parties. Although Frontline believes that these assumptions
were reasonable when made, because these assumptions are
inherently subject to significant uncertainties and contingencies which are difficult or impossible to predict and are
beyond Frontline’s control, you cannot be assured that Frontline will achieve or accomplish these expectations, beliefs or projections. Frontline undertakes no duty to update any forward-looking statement to conform the statement to actual results or
changes in expectations.
Important factors that, in Frontline’s view, could cause actual results to differ materially from those discussed in the
forward-looking statements include, without limitation: the strength of world economies and currencies, general market conditions, including fluctuations in charterhire rates and vessel values, changes in demand in the tanker market, including but
not limited to changes in OPEC’s petroleum production levels and worldwide oil consumption and storage, the anticipated global economic uncertainty and financial market conditions caused by the COVID-19 pandemic, changes in Frontline’s operating
expenses, including bunker prices, drydocking and insurance costs, the market for Frontline’s vessels, availability of financing and refinancing, ability to comply with covenants in such financing arrangements, failure of counterparties to fully
perform their contracts with us, changes in governmental rules and regulations or actions taken by regulatory authorities, potential liability from pending or future litigation, general domestic and international political conditions, potential
disruption of shipping routes due to accidents or political events, vessel breakdowns, instances of off-hire and other important factors. For a more complete discussion of these and other risks and uncertainties associated with Frontline’s business,
please refer to Frontline’s filings with the Securities and Exchange Commission, including, but not limited to, its annual report on Form 20-F.
This information is subject of the disclosure requirements pursuant to section 5-12 of the Norwegian Securities Trading
Act.