GeoPark Ltd SC TO-I, filed Mar 20, 2024
GeoPark Ltd (GPRK)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1)
OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
GEOPARK LIMITED
(Name of Subject Company (Issuer) and Filing Person (Offeror))
COMMON SHARES, PAR VALUE U.S.$0.001 PER SHARE
(Title of Class of Securities)
G38327105
(CUSIP Number of Class of Securities)
Mónica Jiménez González
Chief Strategy, Sustainability and Legal Officer
GeoPark Limited
Calle 94 N° 11-30, 8o floor
Bogotá, Colombia
Phone: +57 1 743 2337
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Maurice Blanco, Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Phone: (212 ) 450-4000
Fax: (212) 701-5800
☐ Check
the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
Check the appropriate boxes to designate any transactions to which the statement relates:
| ☐ | third-party tender offer subject to Rule 14d-1. |
| ☒ | issuer tender offer subject to Rule 13e-4. |
| ☐ | going-private transaction subject to Rule 13e-3. |
| ☐ | amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| ☐ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ☐ | Rule 14d-1(d) (Cross-Border Third Party Tender Offer) |
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EX-99.(A)(1)(A)
EX-99.(A)(1)(B)
EX-99.(A)(1)(C)
EX-99.(A)(1)(D)
EX-99.(A)(1)(E)
EX-99.(A)(1)(F)
EX-99.(A)(1)(G)
EX-99.(A)(5)(A)
EX-99.(A)(5)(B)
EX-99.(A)(5)(C)
EX-99.(D)(1)
EX-99.(D)(2)
EX-99.(D)(3)
EX-107
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This Tender Offer Statement on Schedule TO relates to the offer by GeoPark Limited (the “Company”), an exempted company limited by shares incorporated under the laws of Bermuda, to purchase for cash up to an aggregate amount of U.S.$50,000,000 of its common shares, par value U.S.$0.001 per share, at a purchase price not greater than U.S.$10.00 nor less than U.S.$9.00 per share, in cash, less any applicable withholding taxes and without interest. The Company’s offer is being made upon the terms and subject to the conditions set forth in the Offer to Purchase dated March 20, 2024 (the “Offer to Purchase”), a copy of which is attached hereto as Exhibit (a)(1)(A), and in the related Letter of Transmittal (the “Letter of Transmittal”), a copy of which is attached hereto as Exhibit (a)(1)(B). This Tender Offer Statement on Schedule TO is intended to satisfy the reporting requirements of Rule 13e-4(c)(2) of the Securities Exchange Act of 1934, as amended. The information contained in the Offer to Purchase and the related Letter of Transmittal is incorporated herein by reference in response to all of the items of this Schedule TO, as more particularly described below.
The information set forth under “Summary Term Sheet” in the Offer to Purchase is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) The name of the Company is GeoPark Limited, an exempted company limited by shares incorporated under the laws of Bermuda. The address of the Company’s principal executive office is Calle 94 N° 11-30, 8th floor, Bogotá, Colombia, telephone number +57 1 743 2337.
(b) This Schedule TO relates to the common shares of GeoPark Limited. As of March 19, 2024, there were 55,470,850 common shares of the Company issued and outstanding (excluding 7,585,110 common shares held in treasury). The information set forth under “Summary Term Sheet” and “Introduction” in the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in the Offer to Purchase under Section 8 (“Price Range of Shares”) is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(a) The filing person to which this Schedule TO relates is the Company, the issuer of the common shares. The Company is both the filing person and the subject company. The Company’s name, address and telephone number are set forth in Item 2 above. The information set forth in the Offer to Purchase under Section 10 (“Certain Information Concerning the Company”), Section 11 (“Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”) and in Schedule I to the Offer to Purchase is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION.
(a) The following sections of the Offer to Purchase contain a description of the material terms of the transaction and are incorporated herein by reference:
| · | “Summary Term Sheet”; |
| · | “Introduction”; |
| · | Section 1 (“Number of Shares; Proration”); |
| · | Section 2 (“Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans”); |
| · | Section 3 (“Procedures for Tendering Shares”); |
| · | Section 4 (“Withdrawal Rights”); |
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| · | Section 5 (“Purchase of Shares and Payment of Purchase Price”); |
| · | Section 6 (“Conditional Tender of Shares”); |
| · | Section 7 (“Conditions of the Tender Offer”); |
| · | Section 9 (“Source and Amount of Funds”); |
| · | Section 11 (“Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”); |
| · | Section 14 (“Material U.S. Federal Income Tax Consequences”); and |
| · | Section 15 (“Extension of the Tender Offer; Termination; Amendment”). |
(b) The information set forth in the sections of the Offer to Purchase entitled “Introduction” and “Summary Term Sheet,” and in Section 2 (“Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans”) and Section 11 (“Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”) of the Offer to Purchase is incorporated herein by reference.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(e) The information set forth in the sections of the Offer to Purchase entitled “Summary Term Sheet,” and under Section 2 (“Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans”), Section 10 (“Certain Information Concerning the Company”) and Section 11 (“Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”) is incorporated herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(a) The information set forth in the section of the Offer to Purchase entitled “Summary Term Sheet,” and under Section 2 (“Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans”) of the Offer to Purchase is incorporated herein by reference.
(b) The information set forth under Section 2 (“Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans”) of the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in the sections of the Offer to Purchase entitled “Summary Term Sheet” and “Introduction,” and under Section 2 (“Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans”), Section 10 (“Certain Information Concerning the Company”) and Section 11 (“Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”) of the Offer to Purchase is incorporated herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a), (b) and (d). The information set forth in the section of the Offer to Purchase entitled “Summary Term Sheet,” Section 7 (“Conditions of the Tender Offer”) and Section 9 (“Source and Amount of Funds”) of the Offer to Purchase is incorporated herein by reference.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) and (b). The information set forth in the Offer to Purchase under Section 10 (“Certain Information Concerning the Company”) and Section 11 (“Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”) is incorporated herein by reference.
ITEM 9. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
(a) The information set forth in the sections of the Offer to Purchase entitled “Summary Term Sheet” and “Introduction,” and Section 16 (“Fees and Expenses”) is incorporated herein by reference.
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ITEM 10. FINANCIAL STATEMENTS.
(a) and (b). Not applicable. The consideration offered consists solely of cash. The Offer is not subject to any financing condition and GeoPark Limited is a public reporting company under Section 13(a) of the Exchange Act that files reports electronically on EDGAR.
ITEM 11. ADDITIONAL INFORMATION.
(a) The information set forth in the Offer to Purchase under Section 2 (“Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans”), Section 10 (“Certain Information Concerning the Company”), Section 11 (“Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”) and Section 13 (“Legal Matters; Regulatory Approvals”) is incorporated herein by reference.
(c) The information set forth in the Offer to Purchase and the related Letter of Transmittal, copies of which are filed as Exhibits (a)(1)(A) and (a)(1)(B) hereto, respectively, as each may be amended or supplemented from time to time, is incorporated herein by reference. The information contained in all of the exhibits referred to in Item 12 below is incorporated herein by reference.
| (a)(1)(A) | Offer to Purchase dated March 20, 2024. |
| (a)(1)(B) | Letter of Transmittal. |
| (a)(1)(C) | Notice of Guaranteed Delivery. |
| (a)(1)(D) | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
| (a)(1)(E) | Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
| (a)(1)(F) | Press Release dated March 20, 2024. |
| (a)(1)(G) | Summary Advertisement. |
| (a)(5)(A) | Annual Report on Form 20-F of GeoPark Limited for the year ended December 31, 2022, filed on March 30, 2023 (incorporated by reference to such filing). |
| (a)(5)(B) | Q4 2023 and FY 2023 Earnings Release issued on March 6, 2024 (incorporated by reference to Exhibit 99.1 to the Company’s Schedule TO-C, as filed with the SEC on March 6, 2024). |
| (b) | Not Applicable. |
| (d)(1) | GeoPark Limited 2018 Equity Incentive Plan (incorporated by reference to Exhibit 99.1 to the Company’s Registration Statement on Form S-8, filed December 12, 2018). |
| (d)(2) | GeoPark Limited 2016 Non-Executive Director Plan (incorporated by reference to Exhibit 99.1 to the Company’s Registration Statement on Form S-8, filed October 28, 2016). |
| (d)(3) | Compensation Recoupment Policy. |
| (g) | Not Applicable. |
| (h) | Not Applicable. |
| 107 | Filing Fee Table. |
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ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
Not applicable.
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After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: March 20, 2024
| GEOPARK LIMITED | |||
| By: | /s/ Jaime Caballero Uribe | ||
| Name: | Jaime Caballero Uribe | ||
| Title: | Chief Financial Officer | ||
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| (a)(1)(A) | Offer to Purchase dated March 20, 2024. |
| (a)(1)(B) | Letter of Transmittal. |
| (a)(1)(C) | Notice of Guaranteed Delivery. |
| (a)(1)(D) | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
| (a)(1)(E) | Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
| (a)(1)(F) | Press Release dated March 20, 2024. |
| (a)(1)(G) | Summary Advertisement. |
| (a)(5)(A) | Annual Report on Form 20-F of GeoPark Limited for the year ended December 31, 2022, filed on March 30, 2023 (incorporated by reference to such filing). |
| (a)(5)(B) | Q4 2023 and FY 2023 Earnings Release issued on March 6, 2024 (incorporated by reference to Exhibit 99.1 to the Company’s Schedule TO-C, as filed with the SEC on March 6, 2024). |
| (b) | Not Applicable. |
| (d)(1) | GeoPark Limited 2018 Equity Incentive Plan (incorporated by reference to Exhibit 99.1 to the Company’s Registration Statement on Form S-8, filed December 12, 2018). |
| (d)(2) | GeoPark Limited 2016 Non-Executive Director Plan (incorporated by reference to Exhibit 99.1 to the Company’s Registration Statement on Form S-8, filed October 28, 2016). |
| (d)(3) | Compensation Recoupment Policy. |
| (g) | Not Applicable. |
| (h) | Not Applicable. |
| 107 | Filing Fee Table. |
E-1
Exhibit (a)(1)(A)
Offer to Purchase for Cash
by
GEOPARK LIMITED
of
Up to U.S.$50,000,000 of its Common Shares
at a Per Share Purchase Price Not Greater Than
U.S.$10.00 Nor Less Than U.S.$9.00 Per Common Share
THE OFFER, PRORATION PERIOD AND WITHDRAWAL
RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON APRIL 17, 2024
UNLESS THE OFFER IS EXTENDED (THE “EXPIRATION TIME”).
GeoPark Limited, an exempted company limited by shares incorporated under the laws of Bermuda (the “Company,” “we,” or “us”), is offering to purchase its common shares, U.S.$0.001 par value per share (the “common shares” or the “shares”), pursuant to (i) auction tenders at prices specified by the tendering shareholders of not greater than U.S.$10.00 nor less than U.S.$9.00 per share (“Auction Tenders”) or (ii) purchase price tenders (“Purchase Price Tenders”) at the purchase price determined as provided herein, in either case in cash, less any applicable withholding taxes and without interest (the “Offer”), and upon the terms and subject to the conditions described in this Offer to Purchase and in the related Letter of Transmittal (the “Letter of Transmittal” and, together with this Offer to Purchase, as they may be amended or supplemented from time to time, the “Offer Documents”). We are offering to purchase shares having an aggregate purchase price of up to U.S.$50,000,000 in the Offer using cash and investments. Unless the context otherwise requires, all references to the shares shall refer to the common shares of the Company.
Shareholders who wish to tender shares without specifying a price at which such shares may be purchased by the Company should make a Purchase Price Tender. Under a Purchase Price Tender, shares will be purchased, upon the terms and subject to the conditions of the Offer, at the Purchase Price (as defined below) determined as provided herein. Shareholders who properly tender shares without specifying whether they are making an Auction Tender or a Purchase Price Tender will be deemed to have made a Purchase Price Tender.
After the Expiration Time, we will, upon the terms and subject to the conditions of the Offer, determine a single per share price, which will not be greater than U.S.$10.00 nor less than U.S.$9.00 per share, that we will pay for shares properly tendered and not properly withdrawn from the Offer, taking into account the total number of shares tendered and the prices specified by tendering shareholders. We will select the single lowest price per share (in multiples of U.S.$0.10) of not greater than U.S.$10.00 nor less than U.S.$9.00 per share (the “Purchase Price”) that will allow us to purchase the maximum number of shares properly tendered in the Offer and not properly withdrawn having an aggregate purchase price not exceeding U.S.$50,000,000. Only shares properly tendered at prices at or below the Purchase Price, and not properly withdrawn, will be eligible for purchase in the Offer. Shares properly tendered pursuant to an Auction Tender at a price that is greater than the Purchase Price determined pursuant to the terms of the Offer will not be purchased. Upon the terms and subject to the conditions of the Offer, if shares having an aggregate purchase price of less than U.S.$50,000,000 are properly tendered and not properly withdrawn, we will buy all shares properly tendered and not properly withdrawn.
All shares acquired in the Offer will be acquired at the same price regardless of whether the shareholder tendered at a lower price. However, because of the proration, “odd lot” priority and conditional tender provisions described in this Offer to Purchase, all of the shares tendered at or below the Purchase Price may not be purchased if, based on the Purchase Price, shares having an aggregate purchase price in excess of U.S.$50,000,000 are properly tendered and not properly withdrawn. Shares tendered but not purchased in the Offer will be returned to the tendering shareholders at our expense promptly after the Expiration Time. We reserve the right, in our sole
discretion, to change the per share purchase price range and to increase or decrease the aggregate purchase price of shares sought in the Offer, subject to applicable law. See Sections 1 and 3.
In accordance with the rules of the Securities and Exchange Commission (the “SEC”), in the event that shares having an aggregate purchase price of more than U.S.$50,000,000 are tendered in the Offer at or below the Purchase Price, we may purchase up to an additional 2.0% of our outstanding shares without extending the Expiration Time. We also expressly reserve the right, in our sole discretion, to purchase additional shares, subject to applicable law. See Sections 1 and 15.
At the maximum Purchase Price of U.S.$10.00 per share, we would purchase 5,000,000 shares if the Offer is fully subscribed, which would represent approximately 9.01% of our issued and outstanding common shares as of March 19, 2024. At the minimum Purchase Price of U.S.$9.00 per share, we would purchase 5,555,555 shares if the Offer is fully subscribed, which would represent approximately 10.02% of our issued and outstanding common shares as of March 19, 2024.
The Offer is not conditioned on the receipt of financing or any minimum number of shares being tendered. The Offer is, however, subject to other conditions. See Section 7.
The shares are listed and traded on the New York Stock Exchange (“NYSE”) under the symbol “GPRK.” On March 19, 2024, the last trading day before that announcement, the NYSE closing price of our shares was U.S.$9.46. Shareholders are urged to obtain current market quotations for the shares. See Section 8.
OUR BOARD OF DIRECTORS HAS APPROVED MAKING THE OFFER. HOWEVER, NEITHER WE NOR OUR BOARD OF DIRECTORS, BTG PACTUAL US CAPITAL, LLC, THE DEALER MANAGER FOR THE OFFER (THE “DEALER MANAGER”), THE INFORMATION AGENT OR THE DEPOSITARY MAKES ANY RECOMMENDATION TO YOU AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING YOUR SHARES AND WE HAVE NOT AUTHORIZED ANY PERSON TO MAKE ANY SUCH RECOMMENDATION. YOU MUST DECIDE WHETHER TO TENDER YOUR SHARES AND, IF SO, HOW MANY SHARES TO TENDER. IN DOING SO, YOU SHOULD READ AND EVALUATE CAREFULLY THE INFORMATION IN THIS OFFER TO PURCHASE AND IN THE RELATED LETTER OF TRANSMITTAL, INCLUDING OUR REASONS FOR MAKING THE OFFER, AND SHOULD DISCUSS WHETHER TO TENDER YOUR SHARES WITH YOUR BROKER OR OTHER FINANCIAL OR TAX ADVISOR. SEE SECTION 2.
Our directors and executive officers are entitled to participate in the Offer on the same basis as all other shareholders, subject to applicable law and internal compliance requirements. One of our executive officers has indicated that they intend to tender up to 20,000 shares in the Offer. See Section 11.
Neither the SEC nor any state securities commission has approved or disapproved of this transaction or passed upon the merits or fairness of such transaction or passed upon the adequacy or accuracy of the information contained in this document. Any representation to the contrary is a criminal offense.
The Dealer Manager for the Offer is:
BTG PACTUAL
______________________
March 20, 2024
IMPORTANT
If you desire to tender all or any portion of your shares, do one of the following before 5:00 p.m., New York City time, on April 17, 2024, or any later time and date to which the Offer may be extended: (1)(a) complete and sign the Letter of Transmittal in accordance with the instructions to the Letter of Transmittal, have your signature thereon guaranteed if Instruction 1 to the Letter of Transmittal so requires, mail or deliver the Letter of Transmittal, together with any other required documents, including the share certificates, to the Depositary (as defined herein) or (b) tender the shares in accordance with the procedure for book-entry transfer set forth in Section 3, or (2) request that your bank, broker, dealer, trust company or other nominee effect the transaction for you. If you have shares registered in the name of a bank, broker, dealer, trust company or other nominee, you must contact that institution if you desire to tender those shares.
Beneficial owners should be aware that their broker, dealer, commercial bank, trust company or other nominee may establish its own earlier deadline for participation in the Offer. Accordingly, beneficial owners wishing to participate in the Offer should contact their broker, dealer, commercial bank, trust company or other nominee as soon as possible in order to determine the times by which such owner must take action in order to participate in the Offer.
If you desire to tender shares and your certificates for those shares are not immediately available or the procedure for book-entry transfer cannot be completed on a timely basis, or time will not permit all required documents to reach the Depositary prior to the Expiration Time (as defined herein), your tender may be effected by following the procedure for guaranteed delivery set forth in Section 3.
To properly tender shares, you must validly complete the Letter of Transmittal.
Under a Purchase Price Tender, shares will be purchased upon the terms and subject to the conditions of the Offer, at the Purchase Price. If you wish to maximize the chance that your shares will be purchased by us, you should check the box in the section of the Letter of Transmittal captioned “Shares Tendered at a Price Determined Pursuant to the Offer.” If you agree to accept the purchase price determined in the Offer, your shares will be deemed to be tendered at the minimum price of U.S.$9.00 per share. You should understand that this election may lower the purchase price paid for all purchased shares in the Offer and could result in your shares being purchased at a price as low as U.S.$9.00 per share. See Section 3.
WE ARE NOT MAKING THE OFFER TO, AND WILL NOT ACCEPT ANY TENDERED SHARES FROM, SHAREHOLDERS IN ANY JURISDICTION WHERE IT WOULD BE ILLEGAL TO DO SO. HOWEVER, WE MAY, AT OUR DISCRETION, TAKE ANY ACTIONS NECESSARY FOR US TO MAKE THIS OFFER TO SHAREHOLDERS IN ANY SUCH JURISDICTION IN COMPLIANCE WITH APPLICABLE LAWS. IN ANY JURISDICTION WHERE THE SECURITIES OR BLUE SKY LAWS REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE OFFER IS BEING MADE ON OUR BEHALF BY THE DEALER MANAGER OR ONE OR MORE REGISTERED BROKERS OR DEALERS, WHICH ARE LICENSED UNDER THE LAWS OF SUCH JURISDICTION.
SUBJECT TO APPLICABLE LAW (INCLUDING RULE 13E–4(D)(2) UNDER THE EXCHANGE ACT, WHICH REQUIRES THAT MATERIAL CHANGES IN THE TENDER OFFER BE PROMPTLY DISSEMINATED TO SECURITY HOLDERS IN A MANNER REASONABLY DESIGNED TO INFORM THEM OF SUCH CHANGES), DELIVERY OF THIS OFFER TO PURCHASE SHALL NOT UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED IN OR INCORPORATED BY REFERENCE IN THIS OFFER TO PURCHASE IS CORRECT AS OF ANY TIME AFTER THE DATE OF THIS OFFER TO PURCHASE OR THAT THERE HAS BEEN NO CHANGE IN THE INFORMATION INCLUDED OR INCORPORATED BY REFERENCE HEREIN OR IN OUR AFFAIRS SINCE THE DATE HEREOF.
WE HAVE NOT AUTHORIZED ANY PERSON TO MAKE ANY RECOMMENDATION ON OUR BEHALF AS TO WHETHER YOU SHOULD TENDER OR REFRAIN FROM TENDERING YOUR SHARES IN THE OFFER. YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR TO WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION OR TO MAKE ANY REPRESENTATION IN CONNECTION WITH THE OFFER OTHER THAN THOSE CONTAINED IN THIS OFFER TO
PURCHASE AND IN THE RELATED LETTER OF TRANSMITTAL. IF ANYONE MAKES ANY RECOMMENDATION OR GIVES ANY INFORMATION OR REPRESENTATION, YOU MUST NOT RELY UPON THAT RECOMMENDATION, INFORMATION OR REPRESENTATION AS HAVING BEEN AUTHORIZED BY US, THE DEALER MANAGER, THE INFORMATION AGENT OR THE DEPOSITARY.
Questions and requests for assistance may be directed to Georgeson LLC, the Information Agent for the Offer, or BTG Pactual US Capital, LLC, the Dealer Manager for the Offer, at their respective addresses and telephone numbers set forth on the back cover page of this document. Requests for additional copies of this document, the related Letter of Transmittal or the Notice of Guaranteed Delivery may be directed to the Information Agent.
EXCHANGE CONTROL
The permission of the Bermuda Monetary Authority is required, under the provisions of the Exchange Control Act 1972 and related regulations, for all issuances and transfers of shares (which includes our common shares) of Bermuda companies to or from a non-resident of Bermuda for exchange control purposes, other than in cases where the Bermuda Monetary Authority has granted a general permission. The Bermuda Monetary Authority, in its notice to the public dated June 1, 2005, has granted a general permission for the issue and subsequent transfer of any securities of a Bermuda company from and/or to a non-resident of Bermuda for exchange control purposes for so long as any “Equity Securities” of the company (which would include our common shares) are listed on an “Appointed Stock Exchange” (which would include the NYSE). In granting the general permission the Bermuda Monetary Authority accepts no responsibility for our financial soundness or the correctness of any of the statements made or opinions expressed herein.
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We are providing this summary term sheet for your convenience. The Company is at times referred to as “we,” “our” or “us.” We refer to our common shares as the “shares.” This summary term sheet highlights certain material information in the remainder of this Offer to Purchase, but you should realize that it does not describe all of the details of the tender offer to the same extent described in the remainder of this Offer to Purchase. We urge you to read the entire Offer Documents because they contain the full details of the Offer. We have included references to the sections of this document where you will find a more complete discussion.
Who is offering to purchase my shares?
The Company is offering to purchase for cash up to U.S.$50,000,000 of its common shares, par value U.S.$0.001 per share. See Section 1.
What will the purchase price for the shares be and what will be the form of payment?
We are conducting this Offer through a procedure commonly called a “modified Dutch auction.” Upon the terms and subject to the conditions of the Offer, we are offering to purchase for cash shares pursuant to (i) Auction Tenders at prices specified by the tendering shareholders of not greater than U.S.$10.00 nor less than U.S.$9.00 per share or (ii) Purchase Price Tenders. Shares tendered pursuant to Purchase Price Tenders will be deemed to have been tendered at a price of U.S.$9.00 per share (which is the minimum price per Share under the Offer) for purposes of determining the Purchase Price (as defined below). See Section 1.
We will select the single lowest purchase price (in multiples of U.S.$0.10) (the “Purchase Price”) within the specified price range for the Offer that will allow us to purchase the maximum number of shares having an aggregate purchase price of U.S.$50,000,000 or, if a lesser number of shares are properly tendered, such lesser number of shares as are properly tendered and not properly withdrawn. We will publicly announce the Purchase Price promptly after we have determined it. We will purchase all shares acquired in the Offer at the Purchase Price, even if you have selected a purchase price lower than the Purchase Price, but we will not purchase any shares tendered at a price above the Purchase Price.
If you wish to maximize the chance that your shares will be purchased, you should check the box in the section on the Letter of Transmittal indicating that you will accept the Purchase Price we determine. You should understand that this election may lower the purchase price paid for all purchased shares in the Offer and could result in your shares being purchased at a price as low as U.S.$9.00 per share.
The minimum Purchase Price of U.S.$9.00 per share could be below the closing market price for the shares on the NYSE on the date on which the Expiration Time occurs. See Section 8. Shareholders are urged to obtain current market quotations for the shares before deciding whether to tender their shares.
If your shares are purchased in the Offer, you will receive the Purchase Price, net to the seller in cash, less any applicable withholding taxes and without interest, promptly after the Expiration Time. Under no circumstances will we pay interest on the Purchase Price, including but not limited to, by reason of any delay in making payment. The Offer is scheduled to expire at 5:00 p.m., New York City time, on April 17, 2024, unless the Offer is extended or terminated by us. See Sections 1 and 5.
How many shares will the Company purchase in the Offer?
We are offering to purchase, at the Purchase Price, shares having an aggregate purchase price of up to U.S.$50,000,000 in the Offer, or a lower amount if not enough shares are properly tendered and not properly withdrawn to allow us to purchase shares having an aggregate purchase price of U.S.$50,000,000. Upon the terms and subject to the conditions of the Offer, if shares having an aggregate purchase price of less than U.S.$50,000,000 are properly tendered and not properly withdrawn, we will buy all shares properly tendered at prices at or below the Purchase Price and not properly withdrawn prior to the Expiration Time. See Section 1.
Because the Purchase Price will only be determined after the Expiration Time, the number of shares that will be purchased will not be known until after that time. Assuming the Offer is fully subscribed, at the maximum Purchase
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Price of U.S.$10.00 per share, we would purchase 5,000,000 shares, which would represent approximately 9.01% of our issued and outstanding shares as of March 19, 2024. At the minimum Purchase Price of U.S.$9.00 per share, we would purchase 5,555,555 shares if the Offer is fully subscribed, which would represent approximately 10.02% of our issued and outstanding common shares as of March 19, 2024.
In addition, if shares having an aggregate purchase price of more than U.S.$50,000,000 are tendered in the Offer at or below the Purchase Price, we may exercise our right to purchase up to an additional 2.0% of our outstanding shares without extending the Expiration Time. We also expressly reserve the right, in our sole discretion, to purchase additional shares, subject to applicable law. See Section 15.
The Offer is not conditioned on any minimum number of shares being tendered by shareholders but is subject to certain other conditions. See Section 7.
How will the Company pay for the shares?
The maximum aggregate purchase price of shares purchased in the Offer will be U.S.$50,000,000. We expect that expenses for the Offer will be approximately U.S.$800,000. We anticipate that we will pay for the shares tendered in the Offer and all expenses applicable to the Offer from our cash and investments. As of March 19, 2024, we had approximately U.S.$153.2 million in cash and investments. See Section 9. The Offer is not separately conditioned upon the receipt of financing.
What is the accounting treatment of the Offer?
The accounting for the purchase of shares pursuant to the Offer will result in a reduction of our shareholders’ equity in an amount equal to the aggregate purchase price of the shares we purchase and a corresponding reduction in cash and investments, being amounts the Company would otherwise have available for dividend or distribution. See Section 2.
How long do I have to tender my shares?
You may tender your shares until the Offer expires. The Offer will expire on April 17, 2024, at 5:00 p.m., New York City time, unless we extend it. See Section 1. If a broker, dealer, commercial bank, trust company or other nominee holds your shares, it is likely that they have an earlier deadline for administrative reasons, such as four business days before the expiration of the Offer (e.g., 5:00 p.m., New York City time, on April 11, 2024), for you to act to instruct them to accept the Offer on your behalf. We urge you to contact the broker, dealer, commercial bank, trust company or other nominee to find out their deadline. See Section 3.
Can the Offer be extended, amended or terminated?
We may choose to extend the Offer at any time and for any reason, subject to applicable laws. We cannot assure you that we will extend the Offer or indicate the length of any extension that we may provide. If we extend the Offer, we will delay the acceptance of any shares that have been tendered. We can also amend the Offer in our sole discretion or terminate the Offer under certain circumstances. See Section 15.
How will I be notified if the Company extends the Offer or amends the terms of the Offer?
If we extend the Offer, we will issue a press release announcing the extension and the new Expiration Time by 9:00 a.m., New York City time, on the business day after the previously scheduled Expiration Time (as defined herein). We will announce any amendment to the Offer by making a public announcement of the amendment. See Section 15.
What is the purpose of the Offer?
We are offering to purchase up to an aggregate amount of U.S.$50,000,000 of our shares at a price per share not greater than U.S.$10.00 nor less than U.S.$9.00 to be funded from our cash and investments. As of March 19, 2024, we had approximately U.S.$153.2 million in cash and investments. We will use a portion of our cash and investments to fund the Offer. Our Board of Directors, after evaluating the expected capital requirements of our operations and other expected cash commitments, believes that purchasing our shares in the Offer is consistent with our strategic allocation of capital. The Offer represents an opportunity for us to return capital to our shareholders
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who elect to tender their shares, subject to the terms and conditions of the Offer. Additionally, shareholders who do not participate in the Offer will automatically increase their relative percentage interest in us and our future operations at no additional cost to them. The Offer also provides shareholders (particularly those who, because of the size of their shareholdings, might not be able to sell their shares without potential disruption to the share price) with an opportunity to obtain liquidity with respect to all or a portion of their shares, without potential disruption to the share price and the usual transaction costs associated with market sales. See Section 2.
What are the significant conditions to the Offer?
Our obligation to accept and pay for your tendered shares depends upon a number of conditions that must be satisfied or waived prior to the Expiration Time, including, but not limited to:
| · | No significant changes in the general political, market, economic or financial conditions in the United States or abroad that are reasonably likely to adversely affect our business or the trading in the shares shall have occurred. |
| · | No general suspension of, or general limitation on prices for, or trading in, securities on any national securities exchange in the United States or in the over-the-counter market or the declaration of a banking moratorium or any suspension of payment in respect of banks in the United States shall have occurred. |
| · | No legal action shall have been taken, and we shall not have received notice of any legal action, that could reasonably be expected to adversely affect the Offer. |
| · | No one shall have proposed, announced or made a tender or exchange offer (other than this Offer), merger, business combination or other similar transaction involving us. |
| · | No one shall have filed a Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or made a public announcement reflecting an intent to acquire us or any of our subsidiaries. |
| · | No material adverse change in our business, condition (financial or otherwise), assets, management, income, operations, prospects or stock ownership shall have occurred. |
| · | Our determination that the consummation of the Offer and the purchase of shares pursuant to the Offer will not cause our shares (1) to be delisted from the NYSE or to be eligible for deregistration under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or (2) to be held of record by fewer than 300 persons. |
| · | No decrease of more than 10% of the Dow Jones Industrial Average, the NYSE Composite or the S&P 500 Index, in each case measured from the close of trading on March 19, 2024 (Dow Jones Industrial Average: 39,110.76; NYSE Composite: 17,975.79; S&P 500 Index: 5,178.51), shall have occurred. |
| · | No decrease of 10% or more of the NYSE closing price for the shares as of March 19, 2024 (U.S.$9.46 per share) shall have occurred. |
The Offer is subject to a number of other conditions described in greater detail in Section 7.
How will the Offer affect the number of shares outstanding and the number of record holders of the Company?
As of March 19, 2024, we had 55,470,850 issued and outstanding common shares (excluding 7,585,110 common shares held in treasury). At the maximum Purchase Price of U.S.$10.00 per share, we would purchase 5,000,000 shares if the Offer is fully subscribed, which would represent approximately 9.01% of our issued and outstanding common shares as of March 19, 2024. At the minimum Purchase Price of U.S.$9.00 per share, we would purchase 5,555,555 shares if the Offer is fully subscribed, which would represent approximately 10.02% of our issued and outstanding common shares as of March 19, 2024.
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If the Offer is fully subscribed at the maximum Purchase Price of U.S.$10.00 per share and we do not exercise our right to purchase any additional shares, we will have approximately 50,470,850 shares outstanding following the purchase of shares tendered in the Offer. If the Offer is fully subscribed at the minimum Purchase Price of U.S.$9.00 per share and we do not exercise our right to purchase any additional shares, we will have approximately 49,915,295 shares outstanding following the purchase of shares tendered in the Offer. The actual number of shares outstanding will depend on the number of shares tendered and purchased in the Offer. See Section 2.
If any of our shareholders who (i) hold shares in their own name as holders of record or (ii) are “registered holders” as participants in The Depository Trust Company’s (“DTC”) system whose names appear on a security position listing tender their shares in full and that tender is accepted in full, the number of our record holders would be reduced. See Section 2.
Shareholders who do not have their shares purchased in the Offer will realize a proportionate increase in their relative ownership interest in the Company. See Section 2.
Following the Offer, will the Company continue as a public company?
Yes. The completion of the Offer in accordance with its terms and conditions is not expected to cause the Company to be delisted from the NYSE or to stop being subject to the periodic reporting requirements of the Exchange Act. It is a condition to our obligation to purchase shares pursuant to the Offer that the consummation of the Offer and the purchase of the shares is not reasonably likely to cause the shares (1) to be held of record by fewer than 300 persons; or (2) to be delisted from the NYSE or to be eligible for deregistration under the Exchange Act. See Section 7.
How do I tender my shares?
If you want to tender all or part of your shares, you must do one of the following before 5:00 p.m., New York City time, on April 17, 2024, or any later time and date to which the Offer may be extended:
| · | If your shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you must contact the nominee and request that the nominee tender your shares for you. |
| · | If you hold certificates in your own name, you must complete and sign a Letter of Transmittal according to its instructions, and deliver it, together with any required signature guarantees, the certificates for your shares and any other documents required by the Letter of Transmittal, to Computershare Trust Company, N.A., the Depositary for the Offer. |
| · | If you are an institution participating in the book-entry transfer facility (as defined herein), you must tender your shares according to the procedure for book-entry transfer described in Section 3. |
| · | If you are unable to deliver the certificates for the shares or the other required documents to the Depositary or you cannot comply with the procedure for book-entry transfer within the required time, you must comply with the guaranteed delivery procedure outlined in Section 3. |
You may contact the Information Agent, the Dealer Manager or your broker for assistance. The contact information for the Information Agent and the Dealer Manager appears on the back cover of this Offer to Purchase. See Section 3 and the Instructions to the Letter of Transmittal.
In what order will tendered shares be purchased? Will tendered shares be prorated? What happens if more than U.S.$50,000,000 in aggregate purchase price of shares are tendered at or below the Purchase Price?
If the terms and conditions of the Offer have been satisfied or waived and shares having an aggregate purchase price of less than U.S.$50,000,000 are properly tendered and not properly withdrawn, we will buy all shares properly tendered and not properly withdrawn.
If the terms and conditions of the Offer have been satisfied or waived and shares having an aggregate purchase price of more than U.S.$50,000,000 (or such greater aggregate purchase price of shares as we may elect to purchase,
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subject to applicable law) are properly tendered and not properly withdrawn, we will purchase shares in the following order of priority:
| · | First, we will purchase all “odd lots” of fewer than 100 shares at the Purchase Price from shareholders who properly tender all of their shares owned beneficially or of record by such odd lot holder at or below the Purchase Price and who do not properly withdraw them before the Expiration Time (tenders of fewer than all of the shares owned, beneficially or of record, by such odd lot holder will not qualify for this preference); |
| · | Second, after purchasing all the odd lots that were properly tendered at or below the Purchase Price, subject to the conditional tender provisions described in Section 6, we will purchase shares at the Purchase Price from all other holders who properly tender shares at or below the Purchase Price and who do not properly withdraw them before the Expiration Time (except for shareholders who tendered shares conditionally for which the condition was not satisfied), on a pro rata basis, with appropriate adjustments to avoid purchases of fractional shares, until we have acquired shares having an aggregate purchase price of U.S.$50,000,000 (or such greater aggregate purchase price of shares as we may elect to purchase, subject to applicable law); and |
| · | Third, only if necessary to permit us to purchase shares having an aggregate purchase price of U.S.$50,000,000 (or such greater aggregate purchase price of shares as we may elect to purchase, subject to applicable law), we will purchase shares at the Purchase Price from shareholders who have properly tendered shares at or below the Purchase Price conditionally (for which the condition was not initially satisfied) by random lot, to the extent feasible. To be eligible for purchase by random lot, shareholders whose shares are conditionally tendered must have properly tendered all of their shares and not properly withdrawn them before the Expiration Time. |
Therefore, we may not purchase all of the shares that you tender even if you tender them at or below the Purchase Price. See Section 1.
If I own fewer than 100 shares and I tender all of my shares, will I be subject to proration?
If you own beneficially or of record fewer than 100 shares in the aggregate, you properly tender all of those shares before the Offer expires and you complete the section entitled “Odd Lots” in the Letter of Transmittal and, if applicable, in the Notice of Guaranteed Delivery, we will purchase all of your shares without subjecting them to the proration procedure. See Section 1.
Once I have tendered shares in the Offer, can I withdraw my tender?
Yes. You may withdraw any shares you have tendered at any time before 5:00 p.m., New York City time, on April 17, 2024, unless we extend the Offer, in which case you can withdraw your shares until the expiration of the Offer as extended. If we have not accepted for payment the shares you have tendered to us, you may also withdraw your shares at any time after 5:00 p.m., New York City time, on May 15, 2024. See Section 4.
How do I withdraw shares I previously tendered?
To withdraw shares, you must deliver a written notice of withdrawal with the required information to the Depositary during the time period in which you still have the right to withdraw the shares. Your notice of withdrawal must specify your name, the number of shares to be withdrawn and the name of the registered holder of these shares. Some additional requirements apply if the share certificates to be withdrawn have been delivered to the Depositary or if your shares have been tendered under the procedure for book-entry transfer set forth in Section 3. See Section 4. If you have tendered your shares by giving instructions to a bank, broker, dealer, trust company or other nominee, you must instruct that person to arrange for the withdrawal of your shares. We will decide, in our sole discretion, all questions as to the form and validity, including time of receipt, of notices of withdrawal, and each such decision will be final and binding on all parties, subject to a shareholder’s right to challenge our determination in a court of competent jurisdiction.
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Has the Company or its Board of Directors adopted a position on the Offer?
Our Board of Directors approved making the Offer on March 6, 2024. However, neither we nor our Board of Directors, the Dealer Manager, the Information Agent or the Depositary makes any recommendation to you as to whether you should tender or refrain from tendering your shares. You must make your own decision as to whether to tender your shares and, if so, how many shares to tender. In so doing, you should read carefully the information in this Offer to Purchase and in the related Letter of Transmittal, including our reasons for making the Offer.
Will the Company’s directors and executive officers tender shares in the tender offer?
Our directors and executive officers are entitled to participate in the Offer on the same basis as all other shareholders, subject to applicable law and internal compliance requirements. One of our executive officers has indicated that they intend to tender up to 20,000 shares in the Offer. No other directors or executive officers have indicated that they intend to tender any of their shares in the Offer. As a result, the Offer will increase the proportional holdings of our directors and executive officers as a group. Our other employees, including officers who are not executive officers, are also permitted to participate in the Offer on the same terms as other shareholders and may do so in their discretion, subject to applicable law and internal compliance requirements. Assuming that the Offer is fully subscribed and that we purchase 5,555,555 common shares in the Offer at the minimum Purchase Price, and that one executive officer tenders 20,000 shares, the Offer will increase the proportional holdings of (i) our directors and executive officers (excluding our deputy chairman, director and co-founder, Mr. James F. Park) to approximately 2.14% and (ii) our deputy chairman, director and co-founder, Mr. James F. Park to approximately 17.66% of the total number of outstanding common shares as of March 19, 2024. Assuming that the Offer is fully subscribed and that we purchase 5,000,000 common shares in the Offer at the maximum Purchase Price, and that one executive officer tenders 20,000 shares, the Offer will increase the proportional holdings of (x) our directors and executive officers (excluding our deputy chairman, director and co-founder, Mr. James F. Park) to approximately 2.12% and (y) our deputy chairman, director and co-founder, Mr. James F. Park to approximately 17.47% of the total number of outstanding common shares as of March 19, 2024. However, after termination of the Offer, our directors and executive officers may, in compliance with applicable law, sell their shares in open market transactions at prices that may or may not be more favorable than the purchase price to be paid to our shareholders in the Offer. See Section 11.
If I decide not to tender, how will the Offer affect my shares?
Shareholders who choose not to tender their shares will own a greater percentage interest in our outstanding share capital following the consummation of the Offer. See Section 2.
What is the recent market price of my shares?
On March 19, 2024, the last trading day before that announcement, the NYSE closing price of our shares was U.S.$9.46.
You are urged to obtain current market quotations for the shares before deciding whether to tender your shares. See Section 8.
When and how will the Company pay for the shares I tender?
We will pay the Purchase Price, in cash, less any applicable withholding taxes and without interest, for the shares we purchase promptly after the Expiration Time and the acceptance of the shares for payment. We will publicly announce the preliminary results of the Offer, including the Purchase Price and preliminary information about any expected proration, on the business day following the Expiration Time. We do not expect, however, to announce the final results of any proration or the Purchase Price and begin paying for tendered shares until approximately three business days after the Expiration Time. We will pay for the shares accepted for purchase by depositing the aggregate Purchase Price with the Depositary after the Expiration Time. The Depositary will act as your agent and will transmit to you the payment for all of your shares accepted for payment. See Section 5.
Will I have to pay brokerage commissions if I tender my shares?
If you are the record owner of your shares and you tender your shares directly to the Depositary, you will not have to pay brokerage fees or similar expenses. If you own your shares through a bank, broker, dealer, trust
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company or other nominee and that person tenders your shares on your behalf, that person may charge you a fee for doing so. You should consult with your bank, broker, dealer, trust company or other nominee to determine whether any charges will apply. See Section 3.
What are the U.S. federal income tax consequences if I am a U.S. taxpayer and I tender my shares?
Generally, if you are a U.S. taxpayer, you will be subject to U.S. federal income taxation when you receive cash from us in exchange for the shares you tender in the Offer. The receipt of cash for your tendered shares will generally be treated for U.S. federal income tax purposes either as (1) a sale or exchange or (2) a distribution in respect of stock from the Company. See Section 14. We recommend that you consult with your tax advisor with respect to your particular situation.
Will I have to pay stock transfer tax if I tender my shares?
We will pay all stock transfer taxes unless payment is made to, or if shares not tendered or accepted for payment are to be registered in the name of, someone other than the registered holder, or tendered certificates are registered in the name of someone other than the person signing the Letter of Transmittal. See Section 5.
Who can I talk to if I have questions?
If you have any questions regarding the Offer, please contact Georgeson LLC, the Information Agent, or BTG Pactual US Capital, LLC, the Dealer Manager for the Offer at their respective addresses and telephone numbers set forth on the back cover of this Offer to Purchase.
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This Offer to Purchase contains statements that constitute forward-looking statements. Many of the forward-looking statements contained in this Offer to Purchase can be identified by the use of forward-looking words such as “anticipate,” “believe,” “could,” “expect,” “should,” “plan,” “intend,” “will,” “estimate” and “potential,” among others.
Forward-looking statements appear in a number of places in this Offer to Purchase and include, but are not limited to, statements regarding our intent, belief or current expectations. Forward-looking statements are based on our management’s beliefs and assumptions and on information currently available to our management. Such statements are subject to risks and uncertainties, and actual results may differ materially from those expressed or implied in the forward-looking statements due to various factors, including, but not limited to, those identified under the section “Item 3. Key Information—D. Risk factors” in Item 3. Key Information––D. Risk Factors” of our Annual Report on Form 20-F for the fiscal year ended December 31, 2022, which we filed with the SEC on March 30, 2023 (including any amendments thereto filed with the SEC from time to time, whether before, on or after the date hereof, the “2022 20-F”). These risks and uncertainties include factors relating to:
| · | the volatility of oil and natural gas prices; |
| · | operating risks, including equipment failures and the amounts and timing of revenues and expenses; |
| · | termination of, or intervention in, concessions, rights or authorizations granted by the Colombian, Ecuadorian, and Brazilian governments to us; |
| · | uncertainties inherent in making estimates of our oil and natural gas data; |
| · | environmental constraints on operations and environmental liabilities arising out of past or present operations; |
| · | discovery and development of oil and natural gas reserves; |
| · | climate change related risks; |
| · | project delays or cancellations; |
| · | financial market conditions and the results of financing efforts; |
| · | political, legal, regulatory, governmental, administrative and economic conditions and developments in the countries in which we operate; |
| · | social and political unrest in many countries in which we operate; |
| · | fluctuations in inflation and exchange rates in Colombia, Ecuador and Brazil and in other countries in which we may operate in the future; |
| · | availability and cost of drilling rigs, production equipment, supplies, personnel and oil field services; |
| · | contract counterparty risk; |
| · | projected and targeted capital expenditures and other cost commitments and revenues; |
| · | pandemics, or the future outbreak of any other highly infectious or contagious disease, including the COVID-19 pandemic; |
| · | weather and other natural phenomena; |
| · | armed conflicts, including the current armed conflicts in Ukraine and Israel; |
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| · | the impact of recent and future regulatory proceedings and changes, changes in environmental, health and safety and other laws and regulations to which our company or operations are subject, as well as changes in the application of existing laws and regulations; |
| · | current and future litigation; |
| · | our ability to successfully identify, integrate and complete pending or future acquisitions and dispositions; |
| · | our ability to retain key members of our senior management and key technical employees; |
| · | competition from other similar oil and natural gas companies; |
| · | market or business conditions and fluctuations in global and local demand for energy; |
| · | the direct or indirect impact on our business resulting from terrorist incidents or responses to such incidents, including the effect on the availability of and premiums on insurance; |
| · | the adverse effect which a substantial or extended decline in oil and natural gas price may have on our business; |
| · | the difficulty in integrating significant acquisitions or unexpected contingencies or changes in reserves estimates we discover following the completion of such acquisitions; and |
| · | other factors discussed under “Item 3. Key Information––D. Risk Factors” of our 2022 20-F. |
The forward-looking statements included in this Offer to Purchase are made only as of the date of this Offer to Purchase. Except as required by law or regulation, we do not undertake any obligation to update any forward-looking statements to reflect subsequent events or circumstances.
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To the Holders of our Common Shares:
We hereby offer to purchase shares of the Company having an aggregate purchase price of up to U.S.$50,000,000 of its common shares (or a lower amount if not enough shares are properly tendered and not properly withdrawn to allow us to purchase shares having an aggregate purchase price of U.S.$50,000,000) using cash and investments. Upon the terms and subject to the conditions of this Offer to Purchase and the Letter of Transmittal, we are offering to purchase shares pursuant to (i) Auction Tenders at prices specified by the tendering shareholders of not greater than U.S.$10.00 nor less than U.S.$9.00 per share or (ii) Purchase Price Tenders. After the Expiration Time, we will, upon the terms and subject to the conditions of the Offer, determine a single per share price, which will not be greater than U.S.$10.00 nor less than U.S.$9.00 per share, that we will pay for shares properly tendered and not properly withdrawn from the Offer, taking into account the total number of shares tendered and the prices specified by tendering shareholders. We will select the single lowest price per share (in multiples of U.S.$0.10) of not greater than U.S.$10.00 nor less than U.S.$9.00 per share that will allow us to purchase the maximum number of shares properly tendered in the Offer and not properly withdrawn having an aggregate purchase price not exceeding U.S.$50,000,000. Shares tendered pursuant to Purchase Price Tenders will be deemed to have been tendered at a price of U.S.$9.00 per share (which is the minimum price per share under the Offer) for purposes of determining the Purchase Price. All shares acquired in the Offer will be acquired at the Purchase Price, even if you have selected a purchase price lower than the Purchase Price, but we will not purchase any shares tendered at a price above the Purchase Price. Our Offer is being made upon the terms and subject to the conditions set forth in this Offer to Purchase and in the related Letter of Transmittal which, as amended or supplemented from time to time, together constitute the Offer.
The Offer is not conditioned on the receipt of financing or any minimum number of shares being tendered. The Offer, however, is subject to other conditions. Our obligation to accept and pay for shares properly tendered at or below the Purchase Price and not properly withdrawn pursuant to the Offer is conditioned upon satisfaction or waiver of these conditions. See Section 7.
The Offer will expire at 5:00 p.m., New York City time, on April 17, 2024, unless extended (such date and time, as they may be extended, the “Expiration Time”). You may withdraw shares that you have previously tendered under the Offer according to the procedures we describe below at any time prior to the Expiration Time for all shares. You may also withdraw your previously tendered shares at any time after 5:00 p.m., New York City time, on May 15, 2024, unless such shares have been accepted for payment as provided in the Offer Documents.
Only shares properly tendered at prices at or below the Purchase Price we select, and not properly withdrawn, will be purchased. However, because of the proration, “Odd Lot” priority and conditional tender provisions described in this Offer to Purchase, all of the shares tendered at or below the Purchase Price we select will not be purchased if more than the aggregate purchase price of shares we seek are tendered. We will return any shares that we do not purchase, including shares that are tendered at prices in excess of the Purchase Price and not properly withdrawn and shares not purchased because of proration or conditional tenders, in each case, promptly following the Expiration Time. See Section 1.
In accordance with the rules of the SEC, we may amend the Offer to purchase up to an additional 2.0% of the outstanding shares, without extending the Expiration Time. See Sections 1 and 15.
Tendering shareholders whose shares are registered in their own names and who tender directly to Computershare Trust Company, N.A., the Depositary for the Offer, will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 to the Letter of Transmittal, stock transfer taxes on the purchase of shares by us under the Offer. If you own your shares through a bank, broker, dealer, trust company or other nominee and that person tenders your shares on your behalf, that person may charge you a fee for doing so. You should consult your bank, broker, dealer, trust company or other nominee to determine whether any charges will apply.
Shareholders must complete the section of the Letter of Transmittal relating to the price at which they are tendering shares in order to properly tender shares.
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OUR BOARD OF DIRECTORS HAS APPROVED MAKING THE OFFER. HOWEVER, NEITHER WE NOR OUR BOARD OF DIRECTORS, THE DEALER MANAGER, THE INFORMATION AGENT OR THE DEPOSITARY IS MAKING ANY RECOMMENDATION WHETHER YOU SHOULD TENDER OR REFRAIN FROM TENDERING YOUR SHARES. WE HAVE NOT AUTHORIZED ANY PERSON TO MAKE ANY RECOMMENDATION. YOU MUST DECIDE WHETHER TO TENDER YOUR SHARES AND, IF SO, HOW MANY SHARES TO TENDER. IN SO DOING, YOU SHOULD READ AND EVALUATE CAREFULLY THE INFORMATION IN THIS OFFER TO PURCHASE AND IN THE RELATED LETTER OF TRANSMITTAL AND SHOULD DISCUSS WHETHER TO TENDER YOUR SHARES WITH YOUR BROKER OR OTHER FINANCIAL OR TAX ADVISOR. SEE SECTION 2.
Our directors and executive officers are entitled to participate in the Offer on the same basis as all other shareholders, subject to applicable law and internal compliance requirements. One of our executive officers has indicated that they intend to tender up to 20,000 shares in the Offer. No other directors or executive officers have indicated that they intend to tender any of their shares in the Offer. As a result, the Offer will increase the proportional holdings of our directors and executive officers as a group. Our other employees, including officers who are not executive officers, are also permitted to participate in the Offer on the same terms as other shareholders and may do so in their discretion, subject to applicable law and internal compliance requirements. Assuming that the Offer is fully subscribed and that we purchase 5,555,555 common shares in the Offer at the minimum Purchase Price, and that one executive officer tenders 20,000 shares, the Offer will increase the proportional holdings of (i) our directors and executive officers (excluding our deputy chairman, director and co-founder, Mr. James F. Park) to approximately 2.14% and (ii) our deputy chairman, director and co-founder, Mr. James F. Park to approximately 17.66% of the total number of outstanding common shares as of March 19, 2024. Assuming that the Offer is fully subscribed and that we purchase 5,000,000 common shares in the Offer at the maximum Purchase Price, and that one executive officer tenders 20,000 shares, the Offer will increase the proportional holdings of (x) our directors and executive officers (excluding our deputy chairman, director and co-founder, Mr. James F. Park) to approximately 2.12% and (y) our deputy chairman, director and co-founder, Mr. James F. Park to approximately 17.47% of the total number of outstanding common shares as of March 19, 2024. However, after termination of the Offer, our directors and executive officers may, in compliance with applicable law, sell their shares in open market transactions at prices that may or may not be more favorable than the purchase price to be paid to our shareholders in the Offer. See Section 11.
Section 14 of this Offer to Purchase describes material U.S. federal income tax consequences to U.S. taxpayers of a sale of shares under the Offer.
We will pay the fees and expenses of BTG Pactual US Capital, LLC, the Dealer Manager, Georgeson LLC, the Information Agent, and Computershare Trust Company, N.A., the Depositary, incurred in connection with this Offer. See Section 16.
If any of our shareholders who hold shares in their own name as holders of record or who are “registered holders” as participants in DTC’s system whose names appear on a security position listing tender their shares in full and that tender is accepted in full, the number of our record holders would be reduced.
At the maximum Purchase Price of U.S.$10.00 per share, we would purchase 5,000,000 shares if the Offer is fully subscribed, which would represent approximately 9.01% of our issued and outstanding common shares as of March 19, 2024. At the minimum Purchase Price of U.S.$9.00 per share, we would purchase 5,555,555 shares if the Offer is fully subscribed, which would represent approximately 10.02% of our issued and outstanding common shares as of March 19, 2024.
The shares are listed and traded on the New York Stock Exchange (“NYSE”) under the symbol “GPRK.” On March 19, 2024, the last trading day before that announcement, the NYSE closing price of our shares was U.S.$9.46. Shareholders are urged to obtain current market quotations for the shares before deciding whether to tender their shares. See Section 8.
This Offer to Purchase and the Letter of Transmittal contain important information that you should read carefully before you make any decision regarding the Offer.
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| 1. | Number of Shares; Proration |
General. Upon the terms and subject to the conditions of the Offer, we will purchase shares having an aggregate purchase price of up to U.S.$50,000,000 that are properly tendered and not properly withdrawn in accordance with Section 4 before the Expiration Time, as defined below, at a Purchase Price not greater than U.S.$10.00 nor less than U.S.$9.00 per share, in cash, less any applicable withholding taxes and without interest. If, based on the Purchase Price, shares having an aggregate purchase price of less than U.S.$50,000,000 are properly tendered and not properly withdrawn, we will buy all shares properly tendered and not properly withdrawn (upon the terms and subject to the conditions of the Offer).
The term “Expiration Time” means 5:00 p.m., New York City time, on April 17, 2024, unless we, in our sole discretion, shall have extended the period of time during which the Offer will remain open, in which event the term “Expiration Time” shall refer to the latest time and date at which the Offer, as so extended by us, shall expire. See Section 15 for a description of our right to extend, delay, terminate or amend the Offer. In accordance with the rules of the SEC, we may amend the Offer to purchase up to an additional 2.0% of the outstanding shares, without extending the Expiration Time. See Section 15.
If the Offer is over-subscribed as described below, shares properly tendered at or below the Purchase Price and not properly withdrawn will be subject to proration, except for odd lots. The proration period and, except as described herein, withdrawal rights expire at the Expiration Time.
In accordance with Instruction 3 to the Letter of Transmittal, shareholders desiring to tender shares must either:
| · | specify that they are willing to sell their shares to us at the price determined in the Offer (a “Purchase Price Tender”); or; |
| · | specify the price, not greater than U.S.$10.00 nor less than U.S.$9.00 per share (in multiples of U.S.$0.10), at which they are willing to sell their shares to us in the Offer (an “Auction Tender”). |
Promptly following the Expiration Time, we will, upon the terms and subject to the conditions of the Offer, determine a single per share price that we will pay for shares properly tendered and not properly withdrawn pursuant to the Offer, taking into account the number of shares tendered and the prices at which they are tendered. We will select the lowest purchase price specified by tendering shareholders that will allow us to buy the maximum number of shares having an aggregate purchase price of U.S.$50,000,000 (or a lower amount if not enough shares are properly tendered and not properly withdrawn to allow us to purchase shares having an aggregate purchase price of U.S.$50,000,000). All shares purchased in the Offer will be purchased at the same Purchase Price. If tendering shareholders wish to maximize the chance that their shares will be purchased, they should check the box in the section of the Letter of Transmittal captioned “Shares Tendered at a Price Determined Pursuant to the Offer.” Note that this election could result in the tendered shares being purchased at a price as low as U.S.$9.00 per share.
Only shares properly tendered at prices at or below the Purchase Price and not properly withdrawn will be purchased. Shares properly tendered pursuant to an Auction Tender will not be purchased if the price specified in the Auction Tender is greater than the Purchase Price. However, because of the “Odd Lot” priority, proration and conditional tender provisions of the Offer, all of the shares tendered at or below the Purchase Price will not be purchased if shares having an aggregate purchase price of more than U.S.$50,000,000 are properly tendered and not properly withdrawn. All shares tendered and not purchased in the Offer, including shares tendered at or below the Purchase Price and shares not purchased because of proration or conditional tenders, will be returned to the tendering shareholders at our expense promptly following the Expiration Time.
If we (i) increase the price that may be paid for the shares above U.S.$10.00 per share or decrease the price that may be paid for the shares below U.S.$9.00 per share, (ii) increase the maximum number of shares that we may purchase in the Offer by more than 2.0% of our outstanding shares or (iii) decrease the amount of shares that we may purchase in the Offer, then the Offer must remain open for at least ten business days following the date that notice of the increase or decrease is first published, sent or given in the manner specified in Section 15.
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THE OFFER IS NOT CONDITIONED ON THE RECEIPT OF FINANCING OR ANY MINIMUM NUMBER OF SHARES BEING TENDERED. OUR OBLIGATION TO ACCEPT AND PAY FOR SHARES PROPERLY TENDERED PURSUANT TO THE OFFER IS, HOWEVER, SUBJECT TO OTHER CONDITIONS. SEE SECTION 7.
Priority of Purchases. Upon the terms and subject to the conditions of the Offer, if shares having an aggregate purchase price of less than U.S.$50,000,000 are properly tendered and not properly withdrawn, we will buy all shares properly tendered and not properly withdrawn. Upon the terms and subject to the conditions of the Offer, if shares having an aggregate purchase price of more than U.S.$50,000,000 (or such greater aggregate purchase price of shares as we may elect to purchase, subject to applicable law) are properly tendered and not properly withdrawn, we will purchase shares in the following order of priority:
| · | First, we will purchase all Odd Lots of fewer than 100 shares at the Purchase Price from shareholders who properly tender all of their shares owned beneficially or of record by such odd lot holder at or below the Purchase Price and who do not properly withdraw them before the Expiration Time (tenders of fewer than all of the shares owned, beneficially or of record, by such Odd Lot Holder will not qualify for this preference). |
| · | Second, after purchasing all the Odd Lots that were properly tendered at or below the Purchase Price, subject to the conditional tender provisions described in Section 6, we will purchase shares at the Purchase Price from all other holders who properly tender shares at or below the Purchase Price and who do not properly withdraw them before the Expiration Time (except for shareholders who tendered shares conditionally for which the condition was not satisfied), on a pro rata basis, with appropriate adjustments to avoid purchases of fractional shares, until we have acquired shares having an aggregate purchase price of U.S.$50,000,000 (or such greater aggregate purchase price of shares as we may elect to purchase, subject to applicable law). |
| · | Third, only if necessary to permit us to purchase Shares having an aggregate purchase price of U.S.$50,000,000 (or such greater aggregate purchase price of shares as we may elect to purchase, subject to applicable law), we will purchase shares at the Purchase Price from shareholders who have properly tendered shares at or below the Purchase Price conditionally (for which the condition was not initially satisfied) by random lot, to the extent feasible. To be eligible for purchase by random lot, shareholders whose shares are conditionally tendered must have properly tendered all of their shares and not properly withdrawn them before the Expiration Time. |
Therefore, we may not purchase all of the shares that you tender even if you tender them at or below the Purchase Price. As we noted above, we may elect to purchase shares having an aggregate purchase price of more than U.S.$50,000,000 in the Offer, subject to applicable law. If we do so, the preceding provisions will apply to the greater aggregate purchase price.
Odd Lots. The term “Odd Lots” means all shares tendered by any person (an “Odd Lot Holder”) who owned beneficially or of record an aggregate of fewer than 100 shares and so certifies in the appropriate place on the Letter of Transmittal and, if applicable, the Notice of Guaranteed Delivery. This preference is not available to partial tenders or beneficial or record holders of 100 or more shares, even if such holders have separate accounts representing fewer than 100 shares. Odd Lots will be accepted for payment at the same time as other tendered shares. To qualify for this priority, an Odd Lot Holder must tender all shares owned by the Odd Lot Holder in accordance with the procedures described in Section 3. By tendering in the Offer, an Odd Lot Holder who holds shares in its name and tenders its shares directly to the Depositary would also avoid any applicable Odd Lot discounts in a sale of the holder’s shares. Any Odd Lot Holder wishing to tender all of its shares pursuant to the Offer should complete the section entitled “Odd Lots” in the Letter of Transmittal and, if applicable, in the Notice of Guaranteed Delivery.
Proration. If proration of tendered shares is required, we will determine the proration factor promptly following the Expiration Time. Proration for each shareholder tendering shares (excluding Odd Lot Holders) will be based on the ratio of the number of shares properly tendered and not properly withdrawn by the shareholder to the total number of shares properly tendered and not properly withdrawn by all shareholders (excluding Odd Lot Holders), subject to conditional tenders. Because of the difficulty in determining the number of shares properly tendered and not properly withdrawn, and because of the conditional tender procedure described in Section 6, we do not expect
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that we will be able to announce the final proration factor or commence payment for any Shares purchased pursuant to the Offer until approximately three business days after the Expiration Time. The preliminary results of any proration will be announced by press release promptly after the Expiration Time. Shareholders may obtain preliminary proration information from the Information Agent and also may be able to obtain the information from their brokers.
As described in Section 14, the number of shares that we will purchase from a shareholder pursuant to the Offer may affect the U.S. federal income tax consequences to U.S. shareholders of the purchase and, therefore, may be relevant to a shareholder’s decision whether or not to tender shares. The Letter of Transmittal affords each shareholder who tenders shares registered in such shareholder’s name directly to the Depositary the opportunity to designate the order of priority in which shares tendered are to be purchased in the event of proration as well as the ability to condition such tender on a minimum number of shares being purchased.
This Offer to Purchase and the Letter of Transmittal will be mailed to record holders of the shares and will be furnished to brokers, dealers, commercial banks, trust companies or other nominee shareholders and similar persons whose names, or the names of whose nominees, appear on our shareholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing for subsequent transmittal to beneficial owners of shares.
| 2. | Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans |
Purpose of the Tender Offer. We are offering to purchase up to an aggregate amount of U.S.$50,000,000 of our shares at a price per share not greater than U.S.$10.00 nor less than U.S.$9.00 to be funded from our cash and investments. As of March 19, 2024, we had approximately U.S.$153.2 million in cash and investments. We will use a portion of our cash and investments to fund the Offer. Our Board of Directors, after evaluating the expected capital requirements of our operations and other expected cash commitments, believes that purchasing shares in the Offer is consistent with our strategic allocation of capital.
Our management and Board of Directors have evaluated our operations, strategy and expectations for the future and have carefully considered our business profile, assets and recent market prices for our shares. In considering the Offer, our management and Board of Directors took into account the expected financial impact of the Offer, including the reduction in the amount of our cash and investments as described in Section 9. Our Board of Directors believes that investing in our shares at this time is consistent with our strategic allocation of capital. We believe that our current financial resources, including debt capacity, will allow us to fund capital requirements for improving our operations as well as providing appropriate financial flexibility for general corporate purposes. However, actual experience may differ significantly from our expectations. See “Forward-Looking Statements.”
The Offer represents an opportunity for us to return capital to our shareholders who elect to tender their shares, subject to the terms and conditions of the Offer. Additionally, shareholders who do not participate in the Offer will automatically increase their relative percentage interest in us and our future operations at no additional cost to them. The Offer also provides shareholders (particularly those who, because of the size of their shareholdings, might not be able to sell their shares without potential disruption to the share price) with an opportunity to obtain liquidity with respect to all or a portion of their shares, without potential disruption to the share price and the usual transaction costs associated with market sales. In addition, the Offer provides our shareholders with an efficient way to sell their shares without incurring brokers’ fees or commissions. Where shares are tendered by the registered owner of those shares directly to the Depositary, the sale of those shares in the Offer will permit the seller to avoid the usual transaction costs associated with open market sales. Furthermore, Odd Lot Holders who hold shares registered in their names and tender their shares directly to the Depositary and whose shares are purchased under the Offer will avoid not only the payment of brokerage commissions but also any applicable odd lot discounts that might be payable on sales of their shares in NYSE transactions.
Neither we nor any member of our Board of Directors, the Dealer Manager, the Information Agent or the Depositary makes any recommendation to any shareholder as to whether to tender or refrain from tendering any shares. We have not authorized any person to make any such recommendation. Shareholders should carefully evaluate all information in the Offer. Shareholders are also urged to consult with their tax advisors to determine the consequences to them of participating or not participating in the Offer, and should make their own decisions about whether to tender shares and, if so, how many shares to tender. In doing so, you should read carefully the information in this Offer to Purchase and in the related Letter of Transmittal.
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Certain Effects of the Offer. Shareholders who do not tender their shares pursuant to the Offer and shareholders who otherwise retain an equity interest in the Company as a result of a partial tender of shares or proration will continue to be owners of the Company. As a result, those shareholders will realize a proportionate increase in their relative equity interest in the Company, if any, and will bear the attendant risks associated with owning our equity securities, including risks resulting from our purchase of shares. We can give no assurance, however, that we will not issue additional shares or equity interests in the future. Shareholders may be able to sell non-tendered shares in the future on the NYSE or otherwise, at a net price significantly higher or lower than the purchase price in the Offer. We can give no assurance, however, as to the price at which a shareholder may be able to sell his or her shares in the future.
Shares we acquire pursuant to the Offer will be held as treasury shares and would, if subsequently cancelled and returned to the status of authorized but unissued shares, be available for us to transfer or issue, as applicable, without further shareholder action (except as required by applicable law or the rules of the NYSE) for purposes including, without limitation, acquisitions, raising additional capital and the satisfaction of obligations under existing or future employee benefit or compensation programs, stock plans or compensation programs for directors.
The Offer will reduce our “public float” (the number of shares owned by non-affiliate shareholders and available for trading in the securities markets), and is likely to reduce the number of our shareholders. These reductions may result in lower stock prices and/or reduced liquidity in the trading market for our shares following completion of the Offer.
We believe that there will be a sufficient number of shares outstanding and publicly traded following completion of the Offer to ensure a continued trading market for the shares. Based upon published guidelines of the NYSE, we do not believe that our purchase of shares under the Offer will cause the remaining outstanding shares to be delisted from the NYSE. The Offer is conditioned upon there not being any reasonable likelihood, in our reasonable judgment, that the consummation of the Offer and the purchase of shares will cause the shares to be delisted from the NYSE or to be held of record by fewer than 300 persons. See Section 7.
If any of our shareholders who (i) hold shares in their own name as holders of record or (ii) are “registered holders” as participants in The Depository Trust Company’s (“DTC”) system whose names appear on a security position listing tender their shares in full and that tender is accepted in full, the number of our record holders would be reduced.
For information regarding the intentions of our directors and executive officers to tender in the Offer or sell shares in the open market during the pendency of the Offer, see Section 11.
Other Plans. We may in the future conduct certain corporate reorganizations, corporate restructurings or other intra-group transactions (including, without limitation, transactions which may reduce or increase our equity interests in our principal subsidiaries, joint ventures and affiliates) aimed at simplifying or optimizing our corporate structure.
As part of our long-term corporate goal of increasing shareholder value, we regularly consider alternatives, including repurchases of our shares in the open market, through block trades or in private transactions, and strategic acquisitions, business combinations, additional listings and corporate restructurings (including by means of acquisitions or disposals of assets or companies), and we are currently pursuing and considering alternatives to enhance shareholder value. Additionally, from time to time the Company may liquidate, merge, reorganize or increase or decrease its equity interest in its subsidiaries, joint ventures and affiliates for tax or corporate-related purposes.
Nevertheless, except as otherwise disclosed in this Offer to Purchase, as of the date hereof, no agreements or decisions have been reached and there can be no assurance that we will decide to undertake:
| · | any extraordinary transaction, such as a merger, amalgamation, reorganization or liquidation, involving us or any of our subsidiaries; |
| · | any purchase, sale or transfer of an amount of our assets or any of our subsidiaries’ assets which is material to us and our subsidiaries, taken as a whole; |
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| · | any change in our present Board of Directors or management or any plans or proposals to change the number or the term of directors or to fill any vacancies on the board (except that we may fill vacancies arising on the board in the future) or to change any material term of the employment contract of any executive officer; |
| · | any material change in our present dividend rate or policy, our indebtedness or capitalization, our corporate structure or our business; |
| · | any class of our equity securities ceasing to be authorized to be quoted on the NYSE; |
| · | any class of our equity securities becoming eligible for termination of registration under Section 12(g) of the Exchange Act; |
| · | the suspension of our obligation to file reports under Section 13 of the Exchange Act; |
| · | the acquisition or disposition by any person of our securities; or |
| · | any changes in our charter or by-laws that could impede the acquisition of control of us. |
Nothing in the tender offer will preclude us from pursuing, developing or engaging in future plans, proposals or negotiations that relate to or would result in one or more of the foregoing events, subject to applicable law. Although we may not currently have any plans, other than as disclosed or incorporated by reference in this Offer to Purchase, that relate to or would result in any of the events discussed above, we may undertake or plan actions that relate to or could result in one or more of these events. Shareholders tendering shares in the tender offer may run the risk of foregoing the benefit of any appreciation in the market price of the shares resulting from such potential future events.
| 3. | Procedures for Tendering Shares |
Valid Tender. For a shareholder to make a valid tender of shares under the Offer, (i) the Depositary must receive, at one of its addresses set forth on the back cover of this Offer to Purchase and prior to the Expiration Time:
| · | a Letter of Transmittal properly completed and duly executed, together with any required signature guarantees or, in the case of a book-entry transfer, an “agent’s message” (see “—Book-Entry Transfer” below), and any other required documents; and |
| · | either certificates representing the tendered shares or, in the case of tendered shares delivered in accordance with the procedures for book-entry transfer we describe below, a book-entry confirmation of that delivery (see “—Book-Entry Transfer” below); or |
(ii) the tendering shareholder must, before the Expiration Time, comply with the guaranteed delivery procedures we describe below.
If a broker, dealer, commercial bank, trust company or other nominee holds your shares, it is likely that they have an earlier deadline for you to act to instruct them to accept the Offer on your behalf. We urge you to contact your broker, dealer, commercial bank, trust company or other nominee to find out their applicable deadline.
The valid tender of shares by you by one of the procedures described in this Section 3 will constitute a binding agreement between you and us on the terms of, and subject to the conditions to, the Offer.
We urge shareholders who hold shares through brokers or banks to consult the brokers or banks to determine whether transaction costs are applicable if they tender shares through the brokers or banks and not directly to the Depositary.
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Odd Lot Holders who tender all their shares must also complete the section captioned “Odd Lots” in the Letter of Transmittal and, if applicable, in the Notice of Guaranteed Delivery, to qualify for the preferential treatment available to Odd Lot Holders as set forth in Section 1.
Book-Entry Transfer. For purposes of the Offer, the Depositary will establish an account for the shares at The Depository Trust Company (the “book-entry transfer facility”) within two business days after the date of this Offer to Purchase. Any financial institution that is a participant in the book-entry transfer facility’s system may make book-entry delivery of shares by causing the book-entry transfer facility to transfer those shares into the Depositary’s account in accordance with the book-entry transfer facility’s procedures for that transfer. Although delivery of shares may be effected through book-entry transfer into the Depositary’s account at the book-entry transfer facility, the Letter of Transmittal properly completed and duly executed, with any required signature guarantees, or an agent’s message, and any other required documents must, in any case, be transmitted to, and received by, the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase prior to the Expiration Time, or the tendering shareholder must comply with the guaranteed delivery procedures we describe below.
The confirmation of a book-entry transfer of shares into the Depositary’s account at the book-entry transfer facility as we describe above is referred to herein as a “book-entry confirmation.” Delivery of documents to the book-entry transfer facility in accordance with the book-entry transfer facility’s procedures will not constitute delivery to the Depositary.
The term “agent’s message” means a message transmitted by the book-entry transfer facility to, and received by, the Depositary and forming a part of a book-entry confirmation, stating that the book-entry transfer facility has received an express acknowledgment from the participant tendering shares through the book-entry transfer facility that the participant has received and agrees to be bound by the terms of the Letter of Transmittal and that we may enforce that agreement against that participant.
Method of Delivery. The method of delivery of shares, the Letter of Transmittal and all other required documents, including delivery through the book-entry transfer facility, is at the election and risk of the tendering shareholder. Shares will be deemed delivered only when actually received by the Depositary (including, in the case of a book-entry transfer, by book-entry confirmation). If you plan to make delivery by mail, we recommend that you deliver by registered mail with return receipt requested and obtain proper insurance. In all cases, sufficient time should be allowed to ensure timely delivery.
Signature Guarantees. No signature guarantee will be required on a Letter of Transmittal for shares tendered thereby if:
| · | the “registered holder(s)” of those shares signs the Letter of Transmittal and has not completed either the box entitled “Special Delivery Instructions” or the box entitled “Special Payment Instructions” in the Letter of Transmittal; or |
| · | those shares are tendered for the account of an “eligible institution.” |
For purposes hereof, a “registered holder” of tendered shares will include any participant in the book-entry transfer facility’s system whose name appears on a security position listing as the owner of those shares, and an “eligible institution” is a “financial institution,” which term includes most commercial banks, savings and loan associations and brokerage houses, that are participants in any of the following: (i) the Securities Transfer Agents Medallion Program; (ii) the New York Stock Exchange, Inc. Medallion Signature Program; or (iii) the Stock Exchange Medallion Program.
Except as we describe above, all signatures on any Letter of Transmittal for shares tendered thereby must be guaranteed by an eligible institution. See Instructions 1, 5 and 7 to the Letter of Transmittal. If the certificates for shares are registered in the name of a person other than the signer of the Letter of Transmittal, or if payment is to be made or certificates for shares not tendered or not accepted for payment are to be returned to a person other than the registered holder of the certificates surrendered, then the tendered certificates must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name or names of the registered holders or owners appear on the certificates, with the signatures on the certificates or stock powers guaranteed as aforesaid. See Instructions 1, 5 and 7 to the Letter of Transmittal.
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Guaranteed Delivery. If you wish to tender shares under the Offer and your certificates for shares are not immediately available or the procedures for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the Depositary prior to the Expiration Time, your tender may be effected if all the following conditions are met:
| · | your tender is made by or through an eligible institution; |
| · | a properly completed and duly executed Notice of Guaranteed Delivery in the form we have provided is received by the Depositary, as provided below, prior to the Expiration Time; and |
| · | the Depositary receives, at one of its addresses set forth on the back cover of this Offer to Purchase and within the period of two trading days after the date of execution of that Notice of Guaranteed Delivery, either: (i) the certificates representing the shares being tendered, in the proper form for transfer, together with (1) a Letter of Transmittal relating thereto, which has been properly completed and duly executed and includes all signature guarantees required thereon, and (2) all other required documents; or (ii) confirmation of book-entry transfer of the shares into the Depositary’s account at the book-entry transfer facility, together with (1) either a Letter of Transmittal relating thereto, which has been properly completed and duly executed and includes all signature guarantees required thereon or an agent’s message, and (2) all other required documents. |
For these purposes, a “trading day” is any day on which the NYSE is open for business.
A Notice of Guaranteed Delivery must be delivered to the Depositary by hand, overnight courier, facsimile transmission or mail before the Expiration Time and must include a guarantee by an eligible institution in the form set forth in the Notice of Guaranteed Delivery.
Return of Unpurchased Shares. The Depositary will return certificates for unpurchased shares promptly after the expiration or termination of the Offer or the proper withdrawal of the shares, as applicable or, in the case of shares tendered by book-entry transfer at the book-entry transfer facility, the Depositary will credit the shares to the appropriate account maintained by the tendering shareholder at the book-entry transfer facility, in each case without expense to the shareholder.
Tendering Shareholder’s Representation and Warranty; Our Acceptance Constitutes an Agreement. It is a violation of Rule 14e-4 promulgated under the Exchange Act for a person acting alone or in concert with others, directly or indirectly, to tender shares for such person’s own account unless at the time of tender and at the Expiration Time such person has a “net long position” in (a) the shares that is equal to or greater than the amount tendered and will deliver or cause to be delivered such shares for the purpose of tendering to us within the period specified in the Offer or (b) other securities immediately convertible into, exercisable for or exchangeable into shares (“Equivalent Securities”) that is equal to or greater than the amount tendered and, upon the acceptance of such tender, will acquire such shares by conversion, exchange or exercise of such Equivalent Securities to the extent required by the terms of the Offer and will deliver or cause to be delivered such shares so acquired for the purpose of tender to us within the period specified in the Offer. Rule 14e-4 also provides a similar restriction applicable to the tender or guarantee of a tender on behalf of another person. A tender of shares made pursuant to any method of delivery set forth herein will constitute the tendering shareholder’s acceptance of the terms and conditions of the Offer, as well as the tendering shareholder’s representation and warranty to us that (a) such shareholder has a “net long position” in shares or Equivalent Securities at least equal to the shares being tendered within the meaning of Rule 14e-4, and (b) such tender of shares complies with Rule 14e-4. Our acceptance for payment of shares tendered pursuant to the Offer will constitute a binding agreement between the tendering shareholder and us upon the terms and subject to the conditions of the Offer.
Determination of Validity; Rejection of Shares; Waiver of Defects; No Obligation to Give Notice of Defects. All questions as to the number of shares to be accepted, the price to be paid for shares to be accepted and the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of shares will be determined by us, in our sole discretion, and our determination will be final and binding on all parties, subject to a shareholder’s right to challenge our determination in a court of competent jurisdiction. We reserve the absolute right prior to the Expiration Time to reject any or all tenders we determine not to be in proper form or the acceptance for payment of or payment for which may, in the opinion of our counsel, be unlawful. We also reserve the absolute right, subject to applicable law, to waive any conditions of the Offer with respect to all shareholders or any defect or irregularity in
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any tender with respect to any particular shares or any particular shareholder whether or not we waive similar defects or irregularities in the case of other shareholders. No tender of shares will be deemed to have been validly made until all defects or irregularities relating thereto have been cured or waived. None of us, the Dealer Manager, the Information Agent, the Depositary or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Our interpretation of the terms of and conditions to the Offer, including the Letter of Transmittal and the instructions thereto, will be final and binding on all parties, subject to a shareholder’s right to challenge our determination in a court of competent jurisdiction. By tendering shares to us, you agree to accept all decisions we make concerning these matters and waive any right you might otherwise have to challenge those decisions.
U.S. Federal Backup Withholding. Under the U.S. federal income tax laws, payments to a tendering shareholder may be subject to “backup withholding” at the applicable statutory rate (currently 24%), unless a tendering shareholder
| · | provides a correct taxpayer identification number and any other required information and otherwise complies with applicable requirements of the backup withholding rules; or |
| · | is an exempt recipient and, when required, demonstrates this fact. |
A shareholder that does not provide a correct taxpayer identification number may be subject to penalties imposed by the U.S. Internal Revenue Service (the “IRS”). To prevent backup withholding on cash payable under the Offer to Purchase, each shareholder that is a U.S. person (as defined in the instructions to the IRS Form W-9) should provide the Depositary or other applicable withholding agent with his or her correct taxpayer identification number and certify that he or she is not subject to backup withholding by completing the IRS Form W-9 included in the Letter of Transmittal. In order to eliminate any U.S. backup withholding, a shareholder that is not a U.S. person should provide the Depositary or other applicable withholding agent with the appropriate IRS Form W-8, attesting to that shareholder’s non-U.S. status.
Backup withholding is not an additional tax. Taxpayers may use amounts withheld as a credit against their U.S. federal income tax liability, and may claim a refund if they timely provide certain required information to the IRS.
For a discussion of U.S. federal income tax consequences to tendering U.S. shareholders, see Section 14.
Lost Certificates. If the share certificates which a registered holder wants to surrender have been lost, destroyed or stolen, the shareholder should promptly notify the Depositary at 1-855-807-3166. The Depositary will instruct the shareholder as to the steps that must be taken in order to replace the certificates.
| 4. | Withdrawal Rights |
Except as this Section 4 otherwise provides, tenders of shares are irrevocable. You may withdraw shares that you have previously tendered under the Offer according to the procedures we describe below at any time prior to the Expiration Time for all shares. You may also withdraw your previously tendered shares at any time after 5:00 p.m., New York City time, on May 15, 2024, unless such shares have been accepted for payment as provided in the Offer.
For a withdrawal to be effective, a written, telegraphic or facsimile transmission notice of withdrawal must:
| · | be received in a timely manner by the Depositary at one of its addresses or its facsimile number set forth on the back cover of this Offer to Purchase; and |
| · | specify the name of the person having tendered the shares to be withdrawn, the number of shares to be withdrawn and the name of the registered holder of the shares to be withdrawn, if different from the name of the person who tendered the shares. |
If certificates for shares have been delivered or otherwise identified to the Depositary, then, prior to the physical release of those certificates, the serial numbers shown on those certificates must be submitted to the Depositary and, unless an eligible institution has tendered those shares, an eligible institution must guarantee the signatures on the notice of withdrawal.
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If a shareholder has used more than one Letter of Transmittal or has otherwise tendered shares in more than one group of shares, the shareholder may withdraw shares using either separate notices of withdrawal or a combined notice of withdrawal, so long as the information specified above is included. If shares have been delivered in accordance with the procedures for book-entry transfer described in Section 3, any notice of withdrawal must also specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn shares and otherwise comply with the book-entry transfer facility’s procedures.
Withdrawals of tendered shares may not be rescinded, and any shares properly withdrawn will thereafter be deemed not validly tendered for purposes of the Offer. Withdrawn shares may be retendered at any time prior to the Expiration Time by again following one of the procedures described in Section 3.
We will decide, in our sole discretion, all questions as to the form and validity, including time of receipt, of notices of withdrawal, and each such decision will be final and binding on all parties, subject to a shareholder’s right to challenge our determination in a court of competent jurisdiction. We also reserve the absolute right to waive any defect or irregularity in the withdrawal of shares by any shareholder, whether or not we waive similar defects or irregularities in the case of any other shareholder. None of us, the Dealer Manager, the Information Agent, the Depositary or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification.
If we extend the Offer, are delayed in our purchase of shares, or are unable to purchase shares under the Offer as a result of the occurrence of a condition disclosed in Section 7, then, without prejudice to our rights under the Offer, the Depositary may, subject to applicable law, retain tendered shares on our behalf, and such shares may not be withdrawn except to the extent tendering shareholders are entitled to withdrawal rights as described in this Section 4. Our reservation of the right to delay payment for shares which we have accepted for payment is limited by Rule 13e-4(f)(5) promulgated under the Exchange Act, which requires that we must pay the consideration offered or return the shares tendered promptly after termination or withdrawal of a tender offer.
| 5. | Purchase of Shares and Payment of Purchase Price |
Upon the terms and subject to the conditions of the Offer, promptly following the Expiration Time, we will (i) determine the Purchase Price we will pay for shares properly tendered and not properly withdrawn prior to the Expiration Time, taking into account the number of shares tendered and the prices specified by tendering shareholders and (ii) accept for payment and pay for (and thereby purchase) shares having an aggregate purchase price of up to U.S.$50,000,000 (or such greater aggregate purchase price of shares as we may elect to purchase, subject to applicable law) which are properly tendered at prices at or below the Purchase Price and not properly withdrawn before the Expiration Time. For purposes of the Offer, we will be deemed to have accepted for payment (and therefore purchased), subject to the Odd Lot priority, proration and conditional tender provisions of the Offer, shares that are properly tendered at or below the Purchase Price and not properly withdrawn only when, as and if we give oral or written notice to the Depositary of our acceptance of the shares for payment in the Offer.
Upon the terms and subject to the conditions of the Offer, promptly following the Expiration Time, we will accept for payment and pay the Purchase Price for (and thereby purchase) up to U.S.$50,000,000 (or such greater aggregate purchase price of Shares as we may elect to purchase, subject to applicable law) properly tendered and not properly withdrawn before the Expiration Time.
For purposes of the Offer, we will be deemed to have accepted for payment (and therefore purchased), subject to the “odd lot” priority, proration and conditional tender provisions of this Offer, shares that are properly tendered and not properly withdrawn only when, as and if we give oral or written notice to the Depositary of our acceptance of the shares for payment pursuant to the Offer.
In all cases, payment for shares tendered and accepted for payment pursuant to the Offer will be made promptly, subject to possible delay in the event of proration, but only after timely receipt by the Depositary of:
| · | certificates for shares (if any), or a timely book-entry confirmation of the deposit of shares into the Depositary’s account at the book-entry transfer facility; |
| · | a properly completed and duly executed Letter of Transmittal or, in the case of a book-entry transfer, an agent’s message; and |
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| · | any other required documents. |
We will pay for shares purchased pursuant to the Offer by depositing the aggregate purchase price for the shares with the Depositary, which will act as agent for tendering shareholders for the purpose of receiving payment from us and transmitting payment to the tendering shareholders.
In the event of proration, we will determine the proration factor and pay for those tendered shares accepted for payment promptly after the expiration of the Offer. Certificates for all shares tendered and not purchased, including shares not purchased due to proration or conditional tender, will be returned or, in the case of shares tendered by book-entry transfer, will be credited to the account maintained with the book-entry transfer facility by the participant who delivered the shares, to the tendering shareholder at our expense promptly after the expiration or termination of the Offer.
Under no circumstances will we pay interest on the Purchase Price, including but not limited to, by reason of any delay in making payment. In addition, if certain events occur, we may not be obligated to purchase shares pursuant to the Offer. See Section 7.
We will pay all stock transfer taxes, if any, payable on the transfer to us of shares purchased pursuant to the Offer. If, however, payment of the purchase price is to be made to, or (in the circumstances permitted by the Offer) if unpurchased shares are to be registered in the name of, any person other than the registered holder, or if tendered certificates are registered in the name of any person other than the person signing the Letter of Transmittal, the amount of all stock transfer taxes, if any (whether imposed on the registered holder or the other person), payable on account of the transfer to the person will be deducted from the purchase price unless satisfactory evidence of the payment of the stock transfer taxes, or exemption from payment of the stock transfer taxes, is submitted. See Instruction 6 of the Letter of Transmittal.
Any tendering shareholder or other payee who fails to properly complete, sign and return to the Depositary or other applicable withholding agent the IRS Form W-9 included with the Letter of Transmittal (in the case of a tendering shareholder who is a U.S. person) or the appropriate IRS Form W-8 (in the case of a tendering shareholder who is not a U.S. person) may be subject to U.S. federal backup withholding tax of 24% of the gross proceeds paid to the shareholder or other payee pursuant to the Offer. See Section 3.
| 6. | Conditional Tender of Shares |
Subject to the exception for Odd Lot Holders, in the event of an over-subscription of the Offer, shares tendered prior to the Expiration Time will be subject to proration. See Section 1. As discussed in Section 14, the number of shares to be purchased from a particular U.S. shareholder may affect the U.S. federal income tax treatment of the purchase to the shareholder and the shareholder’s decision whether to tender. The conditional tender alternative is made available for shareholders seeking to take steps to have shares sold pursuant to the offer treated as a sale or exchange of such shares by the shareholder, rather than a distribution to the shareholder, for U.S. federal income tax purposes. Accordingly, a shareholder may tender shares subject to the condition that a specified minimum number of the shareholder’s shares tendered pursuant to a Letter of Transmittal must be purchased if any shares tendered are purchased. Any shareholder desiring to make a conditional tender must so indicate in the box entitled “Conditional Tender” in the Letter of Transmittal, and, if applicable, in the Notice of Guaranteed Delivery. It is the tendering shareholder’s responsibility to calculate the minimum number of shares that must be purchased from the shareholder in order for the shareholder to qualify for sale or exchange (rather than distribution) treatment for U.S. federal income tax purposes. Shareholders are urged to consult with their tax advisors. No assurances can be provided that a conditional tender will achieve the intended U.S. federal income tax result in all cases.
Any tendering shareholder wishing to make a conditional tender must calculate and appropriately indicate the minimum number of shares that must be purchased from that shareholder if any are to be purchased. After the Expiration Time, if shares having an aggregate purchase price of more than U.S.$50,000,000 (or such greater aggregate purchase price of shares as we may elect to purchase, subject to applicable law) are properly tendered and not properly withdrawn, so that we must prorate our acceptance of and payment for tendered shares, we will calculate a preliminary proration percentage based upon all shares properly tendered, conditionally or unconditionally, and not properly withdrawn (including shares of Odd Lot Holders). If the effect of this preliminary proration would be to reduce the number of shares to be purchased from any shareholder tendered pursuant to a
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Letter of Transmittal below the minimum number specified, the shares conditionally tendered will automatically be regarded as withdrawn (except as provided in the next paragraph). All shares tendered by a shareholder subject to a conditional tender and that are withdrawn as a result of proration will be returned at our expense to the tendering shareholder promptly after the Expiration Time.
After giving effect to these withdrawals, we will accept the remaining shares properly tendered, conditionally or unconditionally, on a pro rata basis, if necessary. If conditional tenders that would otherwise be regarded as withdrawn would cause the total number of shares to be purchased to fall below an aggregate purchase price of U.S.$50,000,000 (or such greater amount as we may elect to pay, subject to applicable law) then, to the extent feasible, we will select enough of the shares conditionally tendered that would otherwise have been withdrawn to permit us to purchase such number of shares. In selecting among the conditional tenders, we will select by random lot, treating all tenders by a particular taxpayer as a single lot, and will limit our purchase in each case to the designated minimum number of shares to be purchased. To be eligible for purchase by random lot, shareholders whose shares are conditionally tendered must have tendered all of their shares.
We note that in accordance with the rules of the SEC, in the event that shares having an aggregate purchase price of more than U.S.$50,000,000 are tendered in the Offer at or below the Purchase Price, we may purchase up to an additional 2.0% of our outstanding shares without extending the Expiration Time.
| 7. | Conditions of the Tender Offer |
Notwithstanding any other provision of the Offer (but subject to the provisions of Section 15), we will not be required to accept for payment, purchase or pay for any shares tendered, and may terminate or amend the Offer or may postpone the acceptance for payment of, or the purchase of and the payment for, shares tendered, subject to Rule 13e-4(f) under the Exchange Act (which requires that the issuer making the tender offer either pay the consideration offered or return tendered securities promptly after the termination or withdrawal of the tender offer), if at any time on or after the commencement of the Offer and prior to the Expiration Time, any of the following events has occurred (or shall have been reasonably determined by us to have occurred) that, in our reasonable judgment and regardless of the circumstances giving rise to the event or events (other than any such event or events that are proximately caused by our action or failure to act), make it inadvisable to proceed with the Offer or with acceptance for payment:
| · | there has occurred any change in the general political, market, economic or financial conditions, in the United States or abroad, that could reasonably be expected to materially and adversely affect our business or the trading in the shares, including, but not limited to, the following: |
| · | any general suspension of, or general limitation on prices for, or trading in, securities on any national securities exchange in the United States or in the over-the-counter market; |
| · | a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States or any limitation (whether or not mandatory) by any governmental agency or authority on, or any other event that, in our reasonable judgment, could reasonably be expected to adversely affect, the extension of credit by banks or other financial institutions in the United States; |
| · | the commencement or escalation of a war, armed hostilities or other similar national or international calamity directly or indirectly involving the United States; |
| · | a decrease of more than 10% in the Dow Jones Industrial Average, the NYSE Composite or the S&P 500 Index, in each case measured from the close of trading on March 19, 2024 (Dow Jones Industrial Average: 39,110.76; NYSE Composite: 17,975.79; S&P 500 Index: 5,178.51); or |
| · | a decrease of 10% or more of the NYSE closing price for the shares as of March 19, 2024 (U.S.$9.46 per share); |
| · | any change or combination of changes (or condition, event or development involving a prospective change) has occurred or been threatened in the business, properties, assets, liabilities, capitalization, shareholders’ equity, condition (financial or other), operations, licenses, management or results of operations |
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of us or any of our subsidiaries or affiliates that is or may be reasonably likely to (i) have a material adverse effect on us or any of our subsidiaries or affiliates; (ii) have a material adverse effect on the value of the shares; or (iii) materially impair the contemplated benefits of the Offer to us or be material to holders of the shares in deciding whether to tender in the Offer;
| · | legislation in any jurisdiction has been passed or becomes pending, the effect of which would be to change the tax consequences of the consummation of the Offer in any manner that would adversely affect us or any of our affiliates; |
| · | there has been threatened in writing, instituted, or pending any action, proceeding, application or counterclaim by or before any court or governmental, administrative or regulatory agency or authority, domestic or foreign, or any other person or tribunal, domestic or foreign, which: |
| · | challenges or seeks to challenge, restrain, prohibit or delay the making of the Offer, the acquisition by us of the shares in the Offer, or any other matter relating to the Offer, or seeks to obtain any material damages or otherwise relating to the Offer; |
| · | seeks to make the purchase of, or payment for, some or all of the shares pursuant to the Offer illegal or results in a delay in our ability to accept for payment or pay for some or all of the shares; |
| · | seeks to require us to repurchase or redeem any of our outstanding securities other than the shares; |
| · | otherwise could reasonably be expected to materially adversely affect the business, properties, assets, liabilities, capitalization, shareholders’ equity, financial condition, operations, licenses, or results of operations of us or any of our subsidiaries or affiliates, taken as a whole, or the value of the shares; |
| · | any action has been taken or any statute, rule, regulation, judgment, decree, injunction or order (preliminary, permanent or otherwise) has been proposed, sought, enacted, entered, promulgated, enforced or deemed to be applicable to the Offer or us or any of our subsidiaries or affiliates by any court, government or governmental agency or other regulatory or administrative authority, domestic or foreign, which, in our reasonable judgment: |
| · | indicates that any approval or other action of any such court, agency or authority may be required in connection with the Offer or the purchase of shares thereunder; |
| · | could reasonably be expected to prohibit, restrict or delay consummation of the Offer; or |
| · | otherwise could reasonably be expected to materially adversely affect the business, properties, assets, liabilities, capitalization, shareholders’ equity, financial condition, operations, licenses or results of operations of us or any of our subsidiaries or affiliates, taken as a whole; |
| · | a tender or exchange offer for any or all of our outstanding shares (other than this Offer), or any merger, acquisition, business combination or other similar transaction with or involving us or any subsidiary, has been proposed, announced or made by any person or entity or has been publicly disclosed or we shall have entered into a definitive agreement or an agreement in principle with any person with respect to any merger, acquisition, business combination or other similar transaction; |
| · | any person, entity or group has filed a Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, reflecting an intent to acquire us or any of our shares, or has made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of our or their respective assets or securities; |
| · | any approval, permit, authorization, favorable review or consent of any governmental entity required to be obtained in connection with the Offer, and of which we have been notified after the date of the Offer, has not been obtained on terms satisfactory to us in our reasonable discretion; or |
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| · | we determine that the consummation of the Offer and the purchase of the shares is reasonably likely to: |
| · | cause the shares to be held of record by fewer than 300 persons; or |
| · | cause the shares to be delisted from the NYSE or to be eligible for deregistration under the Exchange Act. |
The conditions referred to above are for our sole benefit and may be asserted by us regardless of the circumstances giving rise to any of these conditions (other than conditions that are proximately caused by our action or failure to act), and may be waived by us, in whole or in part, at any time and from time to time in our reasonable discretion before the Expiration Time. Any determination by us concerning the events described in this section will be final and binding upon all persons.
| 8. | Price Range of Shares; Dividends |
The shares are traded on the NYSE under the symbol “GPRK.” The following table sets forth the high and low closing sales prices for our shares on the NYSE for the periods indicated.
| NYSE | ||||||||
| High | Low | |||||||
| (U.S.$ per common share) | ||||||||
| GEOPARK LIMITED COMMON SHARES; TICKER: GPRK | ||||||||
| Year Ended December 31, 2022: | ||||||||
| First Quarter | 16.02 | 11.32 | ||||||
| Second Quarter | 18.52 | 12.09 | ||||||
| Third Quarter | 13.55 | 10.26 | ||||||
| Fourth Quarter | 16.38 | 12.22 | ||||||
| Year Ended December 31, 2023: | ||||||||
| First Quarter | 16.17 | 10.20 | ||||||
| Second Quarter | 12.06 | 9.11 | ||||||
| Third Quarter | 10.74 | 8.83 | ||||||
| Fourth Quarter | 10.95 | 8.05 | ||||||
| Year Ended December 31, 2024: | ||||||||
| First Quarter (through March 19, 2024) | 9.46 | 8.20 | ||||||
On March 19, 2024, the last full trading day before commencement of the Offer, the NYSE closing price per share was U.S.$9.46. The minimum Purchase Price of U.S.$9.00 per share could be below the closing market price for the shares on the NYSE on the date on which the Expiration Time occurs. We urge shareholders to obtain a current market price for the shares before deciding whether to tender their shares.
Dividends. We have declared or paid cash dividends on shares in the past. In the last three years, we have declared and paid cash dividends as follows:
| · | On March 7, 2024, we announced that our Board of Directors has declared a quarterly cash dividend of U.S.$0.136 per share (U.S.$7.5 million in the aggregate) payable on March 28, 2024, to the shareholders of record at the close of business on March 20, 2024. |
| · | On March 31, 2023, and May 31, 2023, we paid dividends of U.S.$0.13 per share, on September 7, 2023, we paid dividends of U.S.$0.132 per share and, on December 11, 2023, we paid dividends of U.S.$0.134 per share. |
| · | On March 31, 2022, and June 10, 2022, we paid dividends of U.S.$0.082 per share and, on September 8, 2022, and December 7, 2022, we paid dividends of U.S.$0.127 per share. |
| · | On April 13, 2021, and May 28, 2021, we paid dividends of U.S.$0.0205 per share. On August 31, 2021, and December 7, 2021, we paid dividends of U.S.$0.041 per share. |
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We are subject to Bermuda legal constraints that may affect our ability to pay dividends on our common shares and make other payments. Under the Companies Act, 1981 (as amended) of Bermuda (the “Companies Act”), we may not declare or pay a dividend or make a distribution out of contributed surplus, if there are reasonable grounds for believing that (i) we are, or would after the payment be, unable to pay our liabilities as they become due; or (ii) that the realizable value of our assets would thereby be less than our liabilities. We are also subject to contractual restrictions under certain of our indebtedness, as described below. “Contributed surplus” is defined for purposes of section 54 of the Companies Act to include the proceeds arising from donated shares, credits resulting from the redemption or conversion of shares at less than the amount set up as nominal capital and donations of cash and other assets to the company.
The indenture governing our 2020 issuance of U.S.$350.0 million aggregate principal amount of 5.50% senior notes due 2027 (the “Notes due 2027”) includes covenants restricting dividend payments, including customary covenants, which include, among others, limitations on the incurrence of debt and disqualified or preferred stock, restricted payments (including restrictions on our ability to pay dividends), incurrence of liens, guarantees of additional indebtedness, the ability of certain subsidiaries to pay dividends, asset sales, transactions with affiliates, engaging in certain businesses and merger or consolidation with or into another company.
| 9. | Source and Amount of Funds |
The maximum aggregate purchase price of shares purchased in the Offer will be U.S.$50,000,000. We expect that expenses for the Offer will be approximately U.S.$800,000.
We anticipate that we will pay for the shares tendered in the Offer and all expenses applicable to the Offer from our cash and investments, being from amounts otherwise available for dividend or distribution. As of March 19, 2024, we had approximately U.S.$153.2 million in cash and investments. The Offer is not conditioned upon the receipt of financing. See Section 7.
| 10. | Certain Information Concerning the Company |
Overview
We are a leading independent oil and natural gas exploration and production (“E&P”) company with operations in Latin America. We currently operate in Colombia, Ecuador and Brazil. We are focused on Latin America because we believe it is one of the richest and most underexplored hydrocarbon regions globally, with less presence of independent E&P companies compared to the United States and Canada. In this region, much of the acreage has historically been controlled or owned by state-owned companies. We believe that these factors create an opportunity for smaller, more agile companies like us to build a long-term business.
Where You Can Find More Information
We file annual and current reports and other information with the SEC relating to our business, financial condition and other matters. You can also read and copy any materials we file with the SEC at its Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You can obtain information about the operation of the SEC’s Public Reference Room by calling the SEC at 1-800-SEC-0330. Copies can be obtained from the SEC upon payment of the prescribed fees. The SEC maintains an internet website that contains reports, proxy, information statements and other information about issuers, like us, that file electronically with the SEC. The address of that website is www.sec.gov. The Company’s investor relations website address is https://ir.geo-park.com/overview/default.aspx.
The information contained on our website, any website mentioned in this Offer to Purchase, or any website directly or indirectly linked to these websites, is not part of and is not incorporated by reference in, this Offer to Purchase, and investors should not rely on such information.
We also have filed an Issuer Tender Offer Statement on Schedule TO with the SEC that includes additional information relating to the Offer. The Issuer Tender Offer Statement on Schedule TO, together with any exhibits and amendments thereto, may be examined and copies may be obtained at the same places and in the same manner as set forth above.
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Incorporation by Reference
The rules of the SEC allow us to “incorporate by reference” information into this Offer to Purchase, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The following documents that have been previously filed with the SEC contain important information about us and we incorporate them by reference (other than any portions of the respective filings that were furnished to, rather than filed with, the SEC under applicable SEC rules):
| · | our Annual Report on Form 20-F for the fiscal year ended December 31, 2022, which we filed with the SEC on March 30, 2023 (including any amendments thereto filed with the SEC from time to time, whether before, on or after the date hereof, the “2022 20-F”); |
| · | our report on Form 6-K for the month of March 2024 furnished to the SEC on March 7, 2024, containing our earnings release for the fourth quarter of 2023 and the full year of 2023 and the supplement thereto; |
| · | our report on Form 6-K for the month of March 2024 furnished to the SEC on March 7, 2024, containing a press release regarding our declaration of dividends payable on March 28, 2024 to holders of record on March 20, 2024; |
| · | our report on Form 6-K for the month of December 2023 furnished to the SEC on December 21, 2023, relating to the appointment of Jaime Caballero Uribe to the position of Chief Financial Officer; |
| · | any future Annual Reports on Form 20-F that we file with the SEC after the date of this Offer to Purchase until the closing of the Offer; and |
| · | any future reports on Form 6-K that we furnish to the SEC after the date of this Offer to Purchase until the closing of the Offer that are identified in such reports as being incorporated by reference in this Offer to Purchase. |
Any statement contained in any document incorporated by reference into this Offer to Purchase shall be deemed to be modified or superseded to the extent that an inconsistent statement is made in this Offer to Purchase. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Offer to Purchase.
You can obtain any of the documents incorporated by reference in this Offer to Purchase from the SEC’s website at www.sec.gov. You may also request a copy of these filings, at no cost, by writing or telephoning the Information Agent at its address and telephone number set forth below:
Georgeson
LLC
1290 Avenue of the Americas, 9th Floor
New York, NY 10104
Shareholders, Banks and Brokers may call toll free: (866) 356-2715
| 11. | Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares |
Interests of Directors, Executive Officers and Affiliates
As of March 19, 2024, there were 55,470,850 common shares issued and outstanding (excluding 7,585,110 common shares held in treasury). As of March 19, 2024, 30,168 shares were subject to outstanding restricted stock units and there were also approximately 1,850,149 outstanding shares that had been awarded but which had not yet vested under our other equity-incentive plans, representing approximately 3.4% of the total issued and outstanding share capital as of that date.
We are offering to purchase up to U.S.$50,000,000 in value of common shares. At the maximum Purchase Price of U.S.$10.00 per share, we would purchase 5,000,000 shares if the Offer is fully subscribed, which would represent approximately 9.01% of our issued and outstanding common shares as of March 19, 2024. At the minimum Purchase Price of
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U.S.$9.00 per share, we would purchase 5,555,555 shares if the Offer is fully subscribed, which would represent approximately 10.02% of our issued and outstanding common shares as of March 19, 2024.
As of March 19, 2024, our directors and executive officers as a group (excluding Mr. James F. Park) owned an aggregate of 1,089,389 shares and Mr. James F. Park beneficially owned an aggregate of 8,817,251 shares, representing approximately 1.96% and 15.90%, respectively, of the total number of outstanding shares. Our directors and executive officers are entitled to participate in the Offer on the same basis as all other shareholders, subject to applicable law and internal compliance requirements. One of our executive officers has indicated that they intend to tender up to 20,000 shares in the Offer. No other directors or executive officers have indicated that they intend to tender any of their shares in the Offer. As a result, the Offer will increase the proportional holdings of our directors and executive officers as a group. Our other employees, including officers who are not executive officers, are also permitted to participate in the Offer on the same terms as other shareholders and may do so in their discretion, subject to applicable law and internal compliance requirements. Assuming that the Offer is fully subscribed and that we purchase 5,555,555 common shares in the Offer at the minimum Purchase Price, and that one executive officer tenders 20,000 shares, the Offer will increase the proportional holdings of (i) our directors and executive officers (excluding our deputy chairman, director and co-founder, Mr. James F. Park) to approximately 2.14% and (ii) our deputy chairman, director and co-founder, Mr. James F. Park to approximately 17.66% of the total number of outstanding common shares as of March 19, 2024. Assuming that the Offer is fully subscribed and that we purchase 5,000,000 common shares in the Offer at the maximum Purchase Price, and that one executive officer tenders 20,000 shares, the Offer will increase the proportional holdings of (x) our directors and executive officers (excluding our deputy chairman, director and co-founder, Mr. James F. Park) to approximately 2.12% and (y) our deputy chairman, director and co-founder, Mr. James F. Park to approximately 17.47% of the total number of outstanding common shares as of March 19, 2024. However, after termination of the Offer, our directors and executive officers may, in compliance with applicable law, sell their shares in open market transactions at prices that may or may not be more favorable than the purchase price to be paid to our shareholders in the Offer.
A list of our directors and executive officers as of March 19, 2024 is attached to this Offer to Purchase as Schedule I.
Security Ownership by Principal Shareholders and Management
As of March 19, 2024, we had an authorized share capital of 5,171,949,000 common shares. Of these, 55,470,850 common shares were issued and outstanding as of March 19, 2024 (excluding 7,585,110 common shares held in treasury). Each of our common shares entitles its holder to one vote.
The following table presents the beneficial ownership of our common shares as of March 19, 2024, except for certain shareholders whose last available data is as of December 31, 2023. The percentages reported herein are based on the shares outstanding as of March 19, 2024.
| 5% Shareholders | Common shares | Percentage of outstanding common shares | ||||||
| James F. Park (1) | 8,817,251 | 15.90 | % | |||||
| Compass Group LLC (2) | 3,312,589 | 5.97 | % | |||||
| Renaissance Technologies LLC (3) | 3,091,863 | 5.57 | % | |||||
| Socoservin Overseas SPF S.à.r.l. (4) | 2,889,315 | 5.21 | % | |||||
| Cobas Asset Management, SGIIC, SA (5) | 2,808,406 | 5.06 | % | |||||
| Gerald E. O’Shaughnessy (6) | 2,793,392 | 5.04 | % | |||||
| Other shareholders | 31,758,034 | 57.25 | % | |||||
| Total | 55,470,850 | 100.00 | % | |||||
_______________
| (1) | 7,305,133 shares are held by GoodRock, LLC, which is controlled by James F. Park. The information set forth above and listed in the table is based solely on the disclosure set forth in Mr. Park’s most recent Schedule 13G filed with the SEC on February 14, 2024. 352,400 of Mr. Park´s shares have been pledged pursuant to lending arrangements. |
| (2) | The information listed in the table is based solely on the disclosure set forth in Compass Group LLC´s most recent Schedule 13G filed with the SEC on February 14, 2024. |
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| (3) | The information listed in the table is based solely on the disclosure set forth in Renaissance´s most recent Schedule 13G filed with the SEC on February 13, 2024. |
| (4) | The information set forth above and listed in the table is based solely on the disclosure set forth in Socoservin Overseas’ most recent Schedule 13G filed with the SEC on July 25, 2023. |
| (5) | The information set forth above and listed in the table is based solely on the disclosure set forth in Cobas Asset Management’s most recent Schedule 13G filed with the SEC on February 12, 2024. |
| (6) | Held by Mr. O’Shaughnessy directly and indirectly through GP Investments LLP; GPK Holdings, LLC; The Globe Resources Group, Inc.; and other investment vehicles. The information listed in the table is based solely on the disclosure set forth in Mr. O´Shaughnessy’s most recent Schedule 13D filed with the SEC on March 15, 2024. 2,700,000 of Mr. O´Shaughnessy´s shares have been pledged pursuant to lending arrangements. |
Principal shareholders do not have any different or special voting rights in comparison to any other common shareholder.
The following table shows the share ownership of each member of our Board of Directors and executive officers as of March 19, 2024.
As of March 19, 2024, our directors and executive officers as a group (excluding Mr. James F. Park) owned an aggregate of 1,089,389 shares and Mr. James F. Park beneficially owned an aggregate of 8,817,251 shares, representing approximately 1.96% and 15.90%, respectively, of the total number of outstanding shares.
| Board of Directors and Executive Officers | Common shares | Percentage of outstanding common shares | ||||||
| James F. Park (1) | 8,817,251 | 15.90 | % | |||||
| Sylvia Escovar | 61,610 | * | ||||||
| Robert Bedingfield | 172,296 | * | ||||||
| Constantin Papadimitriou | 73,664 | * | ||||||
| Somit Varma | 72,876 | * | ||||||
| Brian Maxted | 13,816 | * | ||||||
| Carlos Macellari | 13,816 | * | ||||||
| Marcela Vaca | 12,656 | * | ||||||
| Andrés Ocampo | * | * | ||||||
| Jaime Caballero Uribe | * | * | ||||||
| Augusto Zubillaga | * | * | ||||||
| James Deckelman | * | * | ||||||
| Rodolfo Martín Terrado | * | * | ||||||
| Mónica Jiménez | * | * | ||||||
| Agustina Wisky | * | * | ||||||
| Sub-total executive officers’ ownership | 668,655 | 1.21 | % | |||||
| Total | 9,906,640 | 17.86 | % | |||||
_______________
| * | Indicates ownership of less than 1% of outstanding common shares. |
| (1) | 7,305,133 shares are held by GoodRock, LLC, which is controlled by James F. Park. The information set forth above and listed in the table is based solely on the disclosure set forth in Mr. Park’s most recent Schedule 13G filed with the SEC on February 14, 2024. 352,400 of Mr. Park’s shares have been pledged pursuant to lending arrangements. |
Certain members of our Board of Directors have, since the time of our initial public offering in the U.S., entered into certain pledges of Company securities in order to access some liquidity with respect to those shares and/or to diversify their holdings. On June 29, 2021, the Board of Directors, based on the recommendation of the Nomination and Corporate Governance Committee, revised its Insider Trading Policy with respect to securities pledging and prohibited employees and directors from pledging Company securities in any circumstance, including by purchasing Company securities on margin or holding Company securities in a margin account. In the event that an employee or director pledged any Company securities prior to June 29, 2021, and provided that any such pledges were made in
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compliance with the Insider Trading Policy of the Company effective at the time such securities were pledged, the employee or director must terminate any such arrangements by June 29, 2024.
Director and Officer Compensation and Other Arrangements
GeoPark Limited 2018 Equity Incentive Plan
Given the expiration of our Stock Awards Plan on November 3, 2018, on November 5, 2018, we adopted the 2018 Equity Incentive Plan (the “Plan”) to motivate and reward those participating employees and executives to perform at the highest level and to further the best interests of the Company and our shareholders. The Plan is designed as an omnibus plan, pursuant to which we may grant awards in the form of options, share appreciation rights, restricted shares, restricted stock units, performance awards, other share-based awards or other cash-based awards throughout the ten (10)-year term of the Plan. Subject to adjustments as set forth in the Plan, the maximum number of shares available for issuance under the Plan is 5,000,000 shares. The applicable award documentation will set forth the terms and conditions of the awards granted under the Plan, including, but not limited to, the vesting conditions and the effect on a termination of service or a Change in Control on awards.
The following table sets forth the common share awards granted to our employees and executive officers under the Plan which are outstanding as of the date hereof:
| Number of underlying common shares outstanding | Grant date | Vesting date | ||
| 800,000(1) | 01/01/2020 | 01/02/2023 | ||
| 215,000(2) | 03/31/2022 | 03/31/2025(3) | ||
| 25,000(4) | 03/31/2022 | 03/31/2025 | ||
| 571,984(5) | 10/01/2022 | 01/02/2025 | ||
| 197,197(6) | 02/14/2023 | 01/02/2026 | ||
| 1,000,000(7) | 01/02/2023 | 01/02/2026 | ||
| 5,968(8) | 10/01/2023 | 01/02/2026 | ||
| 20,000(9) | 10/01/2023 | 10/01/2026 | ||
| 25,000(10) | 01/15/2024 | 01/15/2027 | ||
| 351,971(11) | 02/14/2024 | 01/02/2027 |
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| (1) | On November 6, 2019, our Board of Directors approved a share-based compensation program for approximately 800,000 shares to be granted in 2020. Considering the performance conditions, the Compensation Committee determined that only a total of 152,030 shares have vested. As of December 31, 2023, 61,980 shares have been exercised, with a remaining amount of 90,050 shares to be exercised. |
| (2) | Awards corresponding to the Retention and Hiring Bonus scheme. |
| (3) | The vesting date is March 31, 2025, or 3 years from grant date. |
| (4) | Service agreement. The awards granted under this agreement vest in three annual installments (March 31, 2023, March 31, 2024, and March 31, 2025). As of December 31, 2023, 8,333 shares have been exercised, with a remaining amount of 16,666 shares to be exercised. |
| (5) | Awards corresponding to the LTIP Executives. The vesting date of the RSUs is annually during a three-year period and the vesting date of the PSUs will be on January 2, 2025. |
| (6) | Awards corresponding to the LTIP Executives. The vesting date of the RSUs will be annually during a three-year period and the vesting date of the PSUs will be on January 2, 2026. |
| (7) | Awards corresponding to LTIP Employees approved in December 2022. The vesting date of the RSUs is annually during a three-year period and the vesting date of the PSUs will be on January 2, 2026. |
| (8) | Awards corresponding to the LTIP Executives. The vesting date of the RSUs is annually during a three-year period and the vesting date of the PSUs will be on January 2, 2026. |
| (9) | Awards corresponding to the Hiring Bonus scheme. |
| (10) | Awards corresponding to the Hiring Bonus scheme. |
| (11) | Awards corresponding to the LTIP Executives. The vesting date of the RSUs is annually during a three-year period and the vesting date of the PSUs will be on January 2, 2027. |
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Currently, we have the following incentive equity programs in place under the Plan: the Stock Awards Program (“Stock Awards Program”), the Retention and Hiring Bonus Scheme, the Long-Term Incentive Program for Executives (“LTIP Executives”) and the Long-Term Incentive Program for Employees (“LTIP Employees”).
Executive officers
Long-Term Incentive Program to Executive Officers (“LTIP Executives”). In March 2022, our Board of Directors, based on the recommendation of the Compensation Committee, approved a new Long-Term Incentive program for the executive officers. Main characteristics of the program are:
| · | All executive officers are eligible. |
| · | Grants are awarded annually to executive officers. |
| · | The components of the program are the following: |
| · | 20% Time-based Restricted Share Units (RSUs) vesting ratably in three equal installments on each of the first three anniversaries of the grant date; |
| · | 35% Relative Performance Share Units based on relative total shareholder return (TSR) and measured over three-year performance period relative to peer group; and |
| · | 45% Absolute Performance Share Units (PSUs) based on absolute total shareholder return (TSR) and measured over three-year performance period. |
In 2022, the Compensation Committee approved grants with respect to the LTIP Executives of an estimated 571,984 total shares, to vest during a three-year period. On February 17, 2023, the Compensation Committee approved a new grant, effective as of February 14, 2023, of 197,197 shares to vest during a three-year period. On February 26, 2024, the Compensation Committee approved a new grant, effective as of February 14, 2024, of 351,971 shares to vest during a three-year period.
On January 25, 2023, and February 26, 2024, the Compensation Committee determined that 246,110 and 86,602 shares, respectively, should be delivered to the participants according to the first and second vesting periods of the abovementioned grants.
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Employees
Long-Term Incentive Program to Employees (“LTIP Employees”). In December 2022, our Board of Directors, based on the recommendation of the Compensation Committee, approved a new Long-Term Incentive program for employees and new hirings. Main characteristics of the program are:
| · | All employees (non-top management) and new hirings are eligible. |
| · | 3-year program, with a grant date of January 2, 2023, or the date on which the employees are hired. |
| · | The components of the program are the following: |
| · | 30% Time-based RSUs: vesting annually ratably in three equal installments; |
| · | 30% Company Performance: measured over three-year performance period (December 2022-December 2025); and |
| · | 40% Absolute Performance Shares: share price at the date of vesting must be higher than the share price at the date of grant or date of hiring. |
| · | The vesting date of the Performance Shares (Company and Absolute) will be on January 2, 2026. |
CEO Transition Agreement
Mr. James F. Park (former Chief Executive Officer of the Company and current non-executive member of the Board of Directors and consultant of the Company, advising on M&A and strategic matters) has a consulting agreement with the Company, approved by the Board of Directors on March 2022, as part of the transition of the CEO position. Such agreement governs his consulting services and does not provide for payments upon a termination of service (other than previously earned or accrued amounts). Pursuant to the terms of his transition agreement, James F. Park was provided certain severance benefits, including (i) cash severance payments, payable in a combination of cash and stock, (ii) accelerated vesting of unvested equity awards, and (iii) administrative support for 1-2 years, reimbursement for reasonable relocation costs and 12 months of health and life insurance premiums.
Senior Management Severance
Our Board of Directors determined that it is in the best interests of the Company and its shareholders to provide certain members of the Company’s senior management with payments and benefits in connection with certain qualified terminations and/or in connection with certain change in control scenarios. Therefore, the Board of Directors approved the adoption of an Executive Termination and Change in Control Benefits Plan (the “Severance Plan”). In addition, the Board of Directors approved an employment agreement with our current Chief Executive Officer, Andrés Ocampo, which provides for severance benefits consistent with those provided under the Severance Plan.
Pursuant to the Severance Plan, in the event of a change in control, outstanding performance equity awards will convert into a number of time-based equity awards based on actual performance through the date of the change in control and, except as set forth below, will vest in accordance with the awards’ original schedule, subject to the executive’s continued service through such date. In the event of a termination of the executive’s employment without cause, resignation for good reason or termination due to the executive’s death or disability within 24 months following a change in control: (i) all outstanding time-vesting equity awards will fully accelerate and vest; and (ii) performance equity awards, as converted in accordance with clause (i) above, will fully accelerate and vest. In the event that the acquiror cashes out outstanding equity awards at closing of the change in control, then, at closing, (i) performance awards will accelerate, and vest based on actual performance through the date of the change in control and (ii) all outstanding time-vesting equity awards will fully accelerate and vest.
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Non-Executive Director Plan
In August 2014, our Board of Directors adopted the Non-Executive Director Plan in order to grant shares to non-executive directors as part of their compensation program for serving as directors (the “Non-Executive Director Plan”). The Non-Executive Director Plan was amended and restated in October 2016, when additional 1,000,000 shares were registered as the maximum number of shares available to be issued under this plan. In accordance with the resolutions adopted by our Board of Directors on May 20, 2014, our non-executive directors are paid their quarterly fees in the form of equity awards granted under the Non-Executive Director Plan. Under the Non-Executive Director Plan, the compensation committee may award common shares, restricted share units and other share-based awards that may be denominated or payable in common shares or factors that influence the value of common shares.
Stock Ownership Guidelines
In December 2022, to further align the interests of our executive officers with those of the Company’s shareholders, our Board of Directors approved minimum stock ownership guidelines applicable to the Company’s executive officers, as determined by the Board of Directors. Each such executive officer is required to hold, within five years after the adoption of the guidelines or, if later, within five years after becoming subject to the policy, a number of shares with an aggregate value of at least three times his or her annual base salary. Shares beneficially owned by the applicable officer or held in a family trust established by the applicable executive officer and shares underlying vested equity awards (which, in the case of stock options, are at- or in-the-money) are taken into account for purposes of determining compliance with these guidelines. Until an officer has met his or her ownership requirement, he or she is required to retain at least 50% of shares received from the vesting, settlement or exercise of equity awards (and which remain outstanding after tax withholding and payment of any applicable exercise price).
Compensation Recoupment Policy
Our Board of Directors adopted a policy to recover any incentive-based compensation from our executive officers if we are required to prepare an accounting restatement due to material noncompliance with financial reporting requirements, and the incentive-based compensation paid during the preceding three-year period would have been lower had the compensation been based on the restated financial results. No recoupments were made in 2023. This policy is intended to comply with the requirements of Section 10D of the Exchange Act and Section 303A.14 of the NYSE Listed Company Manual. The foregoing description is qualified in its entirety by reference to the text of our Compensation Recoupment Policy, a copy of which has been filed as an exhibit to the Schedule TO-I to which this Offer to Purchase is an exhibit.
Share Repurchase Programs
We have recurring programs to repurchase our own shares. The latest renewal took place on November 8, 2023, and established a program to repurchase up to 10% of our shares outstanding, or approximately 5,611,797 shares, until December 31, 2024.
Since the renewal of our repurchase plan on November 8, 2023 we have repurchased 850,000 shares under the plan. The dollar value of shares that may yet be purchased by us under our share repurchase program is approximately U.S.$7.6 million based on the closing price of our common shares on March 19, 2024.
During the 60 days prior to the date hereof, we did not repurchase any shares. Following the completion or termination of the Offer, we intend to, from time to time, continue to repurchase shares. The amount of shares we buy and timing of any such repurchases depends on a number of factors, including our stock price, the availability of cash and/or financing on acceptable terms, the amount and timing of dividend payments, if any, and blackout periods in which we are restricted from repurchasing shares as well as any decision to use cash for other strategic objectives. Rule 13e-4 under the Exchange Act generally prohibits us and our affiliates from purchasing any Shares, other than in the Offer, until at least ten business days after the Expiration Date.
Recent Securities Transactions
Based on our records and to the best of our knowledge, the following transactions in our shares have been effected in the 60 days prior to March 19, 2024 by us or our executive officers, directors, affiliates or subsidiaries or by the executive officers or directors of our subsidiaries.
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|
Date of Transaction |
Identity of Transacting Party |
Number and Type of Securities |
Price per Share |
Nature of the Transaction |
| February 8, 2024 | Agustina Wisky | 15,000 | U.S.$8.55 | Sale of shares on stock exchange |
| 12. | Effects of the Tender Offer on the Market for Shares; Registration under the Exchange Act |
The purchase by us of shares under the Offer will reduce the number of shares that might otherwise be traded publicly and is likely to reduce the number of shareholders. As a result, trading of equivalent volumes of the shares after consummation of the Offer may have a greater impact on trading prices than would be the case prior to consummation of the Offer.
We believe that there will be a sufficient number of shares outstanding and publicly traded following completion of the Offer to ensure a continued trading market for the shares. Based upon published guidelines of the NYSE, we do not believe that our purchase of shares under the Offer will cause the remaining outstanding shares to be delisted from the NYSE. The Offer is conditioned upon there not being any reasonable likelihood, in our reasonable judgment, that the consummation of the Offer and the purchase of shares will cause the shares to be delisted from the NYSE or to be held of record by fewer than 300 persons. See Section 7.
The shares are registered under the Exchange Act, which requires, among other things, that we furnish certain information to our shareholders and the Commission and comply with the Commission’s proxy rules in connection with meetings of our shareholders. We believe that our purchase of shares under the Offer pursuant to the terms of the Offer will not result in the shares becoming eligible for deregistration under the Exchange Act.
| 13. | Legal Matters; Regulatory Approvals |
We are not aware of any license or regulatory permit that is material to our business that might be adversely affected by our acquisition of shares as contemplated by the Offer or of any approval or other action by any government or governmental, administrative or regulatory authority or agency, domestic, foreign or supranational, that would be required for the acquisition or ownership of shares by us as contemplated by the Offer. Should any such approval or other action be required, we presently contemplate that we will seek that approval or other action. We are unable to predict whether we will be required to delay the acceptance for payment of or payment for shares tendered under the Offer pending the outcome of any such matter. There can be no assurance that any such approval or other action, if needed, would be obtained or would be obtained without substantial cost or conditions or that the failure to obtain the approval or other action might not result in adverse consequences to our business and financial condition. Our obligations under the Offer to accept for payment and pay for shares is subject to conditions. See Section 7.
| 14. | Material U.S. Federal Income Tax Consequences |
The following is a description of material U.S. federal income tax consequences of the Offer to Purchase. This description addresses only the U.S. federal income tax considerations applicable to U.S. Holders (described below) that hold the shares as capital assets (generally, assets held for investment). This description does not describe all of the tax consequences that may be relevant to U.S. Holders in light of their particular circumstances, including alternative minimum tax consequences, the application of the “Medicare contribution tax” and differing tax consequences applicable to U.S. Holders subject to special tax rules, such as:
| · | banks and certain financial institutions; |
| · | insurance companies; |
| · | real estate investment trusts or regulated investment companies; |
| · | dealers or certain traders in securities; |
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| · | tax-exempt entities; |
| · | persons that hold the shares as part of a “straddle,” constructive sale, conversion transaction or an integrated transaction; |
| · | persons that own or are deemed to own 10% or more of the shares, by vote or value; |
| · | persons the “functional currency” of which is not the U.S. dollar for U.S. federal income tax purposes; or |
| · | partnerships or other entities classified as partnerships for U.S. federal income tax purposes. |
No ruling has been or will be sought from the IRS regarding any tax consequences relating to the matters discussed herein. Consequently, no assurance can be given that the IRS will not assert, or that a court will not sustain, a position contrary to any of those summarized below.
This description is based on the Internal Revenue Code of 1986, as amended (the “Code”), final, proposed and temporary U.S. Treasury regulations and judicial and administrative interpretations thereof, all as of the date hereof, changes to any of which subsequent to the date of this Offer to Purchase may affect the tax consequences described herein, possibly with retroactive effect. This discussion does not address any aspect of state, local or non-U.S. taxation, or any U.S. federal tax considerations other than income taxation. You should consult your tax advisor concerning the U.S. federal, state and local, and non-U.S. tax consequences of the sale of the shares pursuant to the Offer to Purchase in your particular circumstances.
For purposes of this description, a “U.S. Holder” is, for U.S. federal income tax purposes, a beneficial owner of shares that is:
| · | a citizen or individual resident of the United States; |
| · | a corporation created or organized in or under the laws of the United States, any state therein, or the District of Columbia; or |
| · | an estate or trust the income of which is subject to U.S. federal income taxation regardless of its source. |
The U.S. federal income tax treatment of a partner in a partnership (for U.S. federal income tax purposes) that holds shares will depend on the status of the partner and the activities of the partnership. Partners in partnerships holding shares should consult their tax advisors concerning the U.S. federal income tax consequences to them of the sale of the shares pursuant to the Offer to Purchase.
As indicated in our prior annual reports on Forms 20-F, we believe that we have not been a passive foreign investment company (a “PFIC”) for U.S. federal income tax purposes for any prior taxable year since our shares were listed on the NYSE. Except as described below, this discussion assumes that the Company has not been a PFIC for any prior taxable year and will not become a PFIC for the current taxable year.
Tax Consequences to Tendering U.S. Holders
Treatment of Our Repurchase of Shares Pursuant to the Offer to Purchase as a Sale or as a Distribution
Our repurchase of tendered shares pursuant to the Offer to Purchase may be treated either as a sale of those shares by you or as a distribution in respect of our equity, depending upon the circumstances at the time the shares are purchased. Our repurchase of shares from you will generally be treated as a sale if it (i) results in a “complete redemption” of your interest in our equity, (ii) is a “substantially disproportionate” redemption with respect to you, or (iii) is “not essentially equivalent to a dividend” with respect to you, each within the meaning of Section 302(b) of the Code, as described below (the “Section 302 tests”). If the Depositary or other applicable withholding agent is unable to determine whether sale treatment or distribution treatment should apply to you, such Depositary or withholding agent may be required to report the transaction as resulting in a distribution. In such event, if you believe that sale treatment is the proper treatment in your circumstances, you should consult with your own tax advisor about how to report the transaction on your tax return.
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| · | Complete Redemption. The transaction will be a “complete redemption” of your equity interest in us if either (i) you own none of our shares, actually or constructively, immediately after the shares redeemed pursuant to the Offer to Purchase, or (ii) you actually own none of our shares immediately after the shares are redeemed pursuant to the Offer to Purchase and, with respect to any shares you constructively own immediately after the Offer to Purchase, you are eligible to waive, and effectively waive, constructive ownership of all such shares under procedures described in Section 302(c) of the Code and applicable U.S. Treasury Regulations. If you wish to satisfy the “complete redemption” test through waiver of attribution, you are urged to consult your tax advisor regarding the requirements, mechanics and desirability of such a waiver. |
| · | Substantially Disproportionate. In general, the cash you receive will be “substantially disproportionate” if (1) by vote and value, the percentage of our shares you actually and constructively own immediately following the redemption of the shares pursuant to the Offer to Purchase is less than 80% of the percentage of our shares you actually and constructively own immediately before the sale of shares pursuant to the Offer to Purchase, and (2) after the sale, you actually and constructively own less than 50% of our outstanding shares. |
| · | Not Essentially Equivalent to a Dividend. The transaction will be “not essentially equivalent to a dividend” if the redemption of shares pursuant to the Offer to Purchase results in a “meaningful reduction” in your equity interest in us, given the particular facts and circumstances that apply to you. The IRS has indicated in published guidance that even a small reduction in the proportionate interest of a small minority shareholder in a publicly and widely held corporation who exercises no control over corporate affairs may constitute a “meaningful reduction.” You should consult your own tax advisor regarding the application of this test to your particular circumstances. |
| · | Contemporaneous dispositions or acquisitions of our shares by you or related individuals or entities may be deemed to be part of a single integrated transaction and may be taken into account in determining whether the Section 302 tests have been satisfied. You should be aware that, because proration may occur in the Offer to Purchase, even if all the shares you actually and constructively own are tendered pursuant to the Offer to Purchase, fewer than all of these shares may be purchased by us. Accordingly, proration may affect whether your surrender of shares pursuant to the Offer to Purchase will meet any of the Section 302 tests. You should consult your own tax adviser regarding the applicability of these rules to your particular situation. |
Sale of Shares Pursuant to the Offer to Purchase
If you satisfy any of the Section 302 tests, you generally will recognize taxable gain or loss equal to the difference between the amount realized on the redemption and your adjusted tax basis in the tendered shares. Your adjusted tax basis will generally be the amount you paid to acquire the shares. Any gain or loss will be capital gain or loss and will be long-term capital gain or loss if your holding period for the shares is longer than one year at the time of the sale. If you are a non-corporate U.S. Holder, any long-term capital gain you recognize is generally eligible for a reduced rate of taxation. The deductibility of capital losses is subject to limitations.
Any gain or loss recognized generally will be treated as U.S.-source gain or loss for U.S. foreign tax credit purposes. The rules governing foreign tax credits are complex, and you should consult your tax advisor regarding the creditability of foreign taxes, if any, in your particular circumstances.
Distribution in Respect of Shares Pursuant to the Offer to Purchase
If none of the Section 302 tests is satisfied by you, the full amount you receive pursuant to the Offer to Purchase will be treated as a distribution to you with respect to your shares, and your tax basis in the redeemed shares generally will be added to any other shares of ours that you retain. This distribution will be treated as a dividend to the extent paid out of our current or accumulated earnings and profits, if any, as determined under U.S. federal income tax principles. The dividend will be includible in your gross income without reduction for the tax basis of the surrendered shares, and no current loss will be recognized. To the extent that the amount you receive exceeds your share of our current and accumulated earnings and profits, the excess first will be treated as a tax-free return of capital to the extent of your tax basis in your shares and then as capital gain from the sale or exchange of your shares as described above under “—Sale of Shares Pursuant to the Offer to Purchase.” However, because we do not maintain calculations of our earnings and profits under U.S. federal income tax
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principles, you should expect that the entire amount you receive pursuant to the Offer to Purchase will be taxed as a dividend if it is treated as a distribution as described above.
Subject to applicable limitations, dividends paid to certain non-corporate U.S. Holders will be eligible for taxation as “qualified dividend income” and therefore will be taxable at rates applicable to long-term capital gains, provided that (1) our shares are readily tradable on an established securities market in the United States (which the shares should be considered to be, so long as they are listed on NYSE) and (2) certain holding period and other requirements are satisfied. The amount of the dividend will be treated as foreign-source dividend income to you and will not be eligible for the dividends-received deduction generally allowed to U.S. corporations under the Code.
Passive Foreign Investment Company Rules
In general, a non-U.S. corporation will be a PFIC for U.S. federal income tax purposes for any taxable year in which, after applying certain look-through rules, either (1) at least 75% of its gross income is “passive income” or (2) at least 50% of the average quarterly value of its assets consists of assets that produce “passive income” or are held for the production of “passive income.” Passive income for this purpose generally includes dividends, interest, royalties, rents and gains from foreign currency, securities and certain commodities transactions. As indicated in our prior annual reports on Forms 20-F, we believe that we have not been a PFIC for any prior taxable year since our shares were listed on the NYSE. However, because PFIC status depends upon the composition of our income and assets and the market value of our assets (including, among others, goodwill and less than 25% owned equity investments) from time to time, we cannot assure you that we have not been, or will not be, a PFIC for any taxable year.
If we were a PFIC for any taxable year in which you held shares, your shares will be treated as PFIC stock, even if we thereafter ceased to meet the threshold requirements for PFIC status, and you will generally be subject to adverse tax consequences on the sale of your shares pursuant to the Offer to Purchase.
If we were a PFIC for any taxable year in which you held our shares, and our repurchase of tendered shares pursuant to the Offer to Purchase were treated as a sale of those shares by you, as described above under “—Distribution in Respect of Shares Pursuant to the Offer to Purchase,” any gain recognized by you on that sale would generally be allocated ratably over your holding period for the shares. The amounts allocated to the taxable year of the sale or other disposition and to any year before we became a PFIC would be taxed as ordinary income. The amount allocated to each other taxable year would be subject to tax at the highest rate in effect for individuals or corporations for that year, as appropriate, and an interest charge would be imposed on the tax on such amount. Further, if you were treated as receiving a distribution with respect to your shares, as described above under “—Distribution in Respect of Shares Pursuant to the Offer to Purchase,” to the extent that any distribution received by you on your shares exceeded 125% of the average of the annual distributions on the shares received during the preceding three years or your holding period, whichever is shorter, that distribution would be subject to taxation in the same manner as gain, as described immediately above. Certain elections may be available that would result in alternative treatments (such as mark-to-market treatment) of our shares. You should consult your own tax adviser to determine whether any of these elections would be available and, if so, what the consequences of the alternative treatments would be in your particular circumstances.
You should consult your tax advisor concerning our PFIC status for any relevant taxable year and the tax considerations relevant to a sale of the shares pursuant to the Offer to Purchase.
Information Reporting and Backup Withholding
See Section 3 with respect to the U.S. federal backup withholding requirements.
Tax Consequences to Non-tendering U.S. Holders
If you do not tender your shares pursuant to the Offer to Purchase, you will not recognize any gain or loss for U.S. federal income tax purposes. In this case, you will have the same adjusted tax basis and holding period in your shares following the consummation of the Offer to Purchase as you had in your shares immediately prior to the consummation.
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| 15. | Extension of the Tender Offer; Termination; Amendment |
Notwithstanding anything to the contrary contained herein, we expressly reserve the right, in our sole discretion, at any time and from time to time, and regardless of whether or not any of the events set forth in Section 7 shall have occurred or shall be deemed by us to have occurred, to extend the period of time during which the Offer is open and thereby delay acceptance for payment of, and payment for, any shares by giving oral or written notice of such extension to the Depositary and making a public announcement of such extension. We also expressly reserve the right, in our sole discretion, to terminate the Offer and not accept for payment or pay for any shares not theretofore accepted for payment or paid for or, subject to applicable law, to postpone payment for shares upon the occurrence of any of the conditions specified in Section 7 hereof by giving oral or written notice of such termination or postponement to the Depositary and making a public announcement of such termination or postponement. Our reservation of the right to delay payment for shares which we have accepted for payment is limited by Rule 13e-4(f)(5) promulgated under the Exchange Act, which requires that we pay the consideration offered or return the shares tendered promptly after termination or withdrawal of a tender offer. Subject to compliance with applicable law, we further reserve the right, in our sole discretion, and regardless of whether any of the events set forth in Section 7 shall have occurred or shall be deemed by us to have occurred, to amend the Offer in any respect, including, without limitation, by decreasing or increasing the consideration offered in the Offer to holders of shares or by decreasing or increasing the aggregate amount of shares being sought in the Offer. Amendments to the Offer may be made at any time and from time to time effected by public announcement, such announcement, in the case of an extension, to be issued no later than 9:00 a.m., New York City time, on the next business day after the last previously scheduled or announced Expiration Time. Any public announcement made under the Offer will be disseminated promptly to shareholders in a manner reasonably designed to inform shareholders of such change. Without limiting the manner in which we may choose to make a public announcement, except as required by applicable law, we shall have no obligation to publish, advertise or otherwise communicate any such public announcement other than by making a release through Business Wire or another comparable service. In addition, we would file such press release as an exhibit to the Schedule TO.
If we materially change the terms of the Offer or the information concerning the Offer, we will extend the Offer to the extent required by Rules 13e-4(d)(2), 13e-4(e)(3) and 13e-4(f)(1) promulgated under the Exchange Act. These rules and certain related releases and interpretations of the Commission provide that the minimum period during which a tender offer must remain open following material changes in the terms of the Offer or information concerning the Offer (other than a change in price or a change in percentage of securities sought) will depend on the facts and circumstances, including the relative materiality of such terms or information; however, in no event will the Offer remain open for fewer than five business days following such a material change in the terms of, or information concerning, the Offer. If (1)(a) we increase or decrease the price to be paid for shares, (b) we decrease the number of shares being sought in the Offer, or (c) we increase the number of shares being sought in the Offer by more than 2.0% of our outstanding shares and (2) the Offer is scheduled to expire at any time earlier than the expiration of a period ending on the tenth business day from, and including, the date on which such notice of an increase or decrease is first published, sent or given to security holders in the manner specified in this Section 15, the Offer will be extended until the expiration of such period of ten business days.
| 16. | Fees and Expenses |
We have retained BTG Pactual US Capital, LLC to act as the Dealer Manager in connection with the Offer. The Dealer Manager may communicate with brokers, dealers, commercial banks and trust companies with respect to the Offer. The Dealer Manager will receive a reasonable and customary fee for these services. We have also agreed to reimburse the Dealer Manager for its reasonable and documented out-of-pocket expenses incurred in connection with the Offer, and to indemnify the Dealer Manager against liabilities in connection with the Offer, including liabilities under the federal securities laws.
The Dealer Manager and its affiliates have provided, and may in the future provide, various investment banking, commercial banking and other services to us for which they have received, or we expect they will receive, customary compensation from us.
In the ordinary course of business, including in their trading and brokerage operations and in a fiduciary capacity, the Dealer Manager and its affiliates may hold positions, both long and short, for their own accounts and for those of their customers, in our securities. The Dealer Manager may from time to time hold shares in its
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proprietary accounts, and, to the extent it owns shares in these accounts at the time of the Offer, the Dealer Manager may tender the shares pursuant to the Offer.
We have retained Georgeson LLC to act as Information Agent and Computershare Trust Company, N.A. to act as Depositary in connection with the Offer. The Information Agent may contact holders of shares by mail, facsimile and personal interviews and may request brokers, dealers and other nominee shareholders to forward materials relating to the Offer to beneficial owners. The Information Agent and the Depositary will each receive reasonable and customary compensation for their respective services, will be reimbursed by us for reasonable out-of-pocket expenses and will be indemnified against certain liabilities in connection with the Offer, including certain liabilities under the federal securities laws.
Certain officers and employees of the Company may render services in connection with the Offer but they will not receive any additional compensation for such services.
We will not pay any fees or commissions to brokers, dealers or other persons (other than the fees of the Dealer Manager, the Information Agent and the Depositary as described above) for soliciting tenders of shares pursuant to the Offer. Shareholders holding shares through brokers or banks are urged to consult the brokers or banks to determine whether transaction costs may apply if shareholders tender shares through the brokers or banks and not directly to the Depositary. We will, however, upon request, reimburse brokers, dealers and commercial banks for customary mailing and handling expenses incurred by them in forwarding the Offer and related materials to the beneficial owners of shares held by them as a nominee or in a fiduciary capacity. No broker, dealer, commercial bank or trust company has been authorized to act as our agent or the agent of the Dealer Manager, Information Agent or the Depositary for purposes of the Offer. We will pay or cause to be paid all stock transfer taxes, if any, on our purchase of shares, except as otherwise provided in Instruction 6 in the Letter of Transmittal.
Specifically, and assuming the Offer is fully subscribed, we expect that the aggregate of all fees and expenses related to the Offer will be approximately U.S.$800,000. These fees and expenses include amounts payable to the Dealer Manager and the Company’s counsel, the Depositary and the Information Agent, expenses associated with financial printing and the publication of our summary advertisement and SEC filing fees.
| 17. | Miscellaneous |
We are not aware of any U.S. state where the making of the Offer is not in compliance with applicable law. If we become aware of any U.S. state where the making of the Offer or the acceptance of shares pursuant thereto is not in compliance with applicable law, we will make a good faith effort to comply with the applicable law. If, after such good faith effort, we cannot comply with the applicable law, the Offer will not be made to (nor will tenders be accepted from or on behalf of) the holders of shares in such U.S. state.
Pursuant to Rule 13e-4(c)(2) under the Exchange Act, we have filed with the Commission an Issuer Tender Offer Statement on Schedule TO, which contains additional information with respect to the Offer (the “Schedule TO”). The Schedule TO, including the exhibits and any amendments and supplements thereto, may be examined, and copies may be obtained, at the same places and in the same manner as is set forth in Section 10 with respect to information concerning us.
You should only rely on the information contained in this document or to which we have referred you. We have not authorized any person to make any recommendation on behalf of us as to whether you should tender or refrain from tendering your shares in the Offer. We have not authorized any person to give any information or to make any representation in connection with the Offer other than those contained in this document or in the related Letter of Transmittal. If given or made, any recommendation or any such information or representation must not be relied upon as having been authorized by us, the Dealer Manager, the Information Agent or the Depositary.
March 20, 2024
29
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF GEOPARK LIMITED
Directors
The following table lists the members of our Board of Directors:
|
Name |
Position |
Age |
At
the Company |
| Sylvia Escovar Gómez(1)(2) | Chair and Director | 62 | 2020 |
| James F. Park | Deputy Chair, Director and Co-founder | 68 | 2002 |
| Robert Bedingfield(1)(2) | Director | 75 | 2015 |
| Constantin Papadimitriou(1)(2) | Director | 63 | 2018 |
| Somit Varma(1) | Director | 63 | 2020 |
| Brian F. Maxted(1) | Director | 66 | 2022 |
| Carlos E. Macellari(1) | Director | 70 | 2022 |
| Marcela Vaca | Director | 55 | 2012 |
| Andrés Ocampo | Chief Executive Officer and Director | 45 | 2010 |
_______________
| (1) | Independent director under SEC Audit Committee rules. |
| (2) | Member of the Audit Committee. |
Biographical information of the current members of our Board of Directors is set forth below. Unless otherwise indicated, the current business address for our directors is Calle 94 No. 11-30, 8th floor, Bogotá, Colombia.
Sylvia Escovar Gómez has been a member of our Board of Directors since August 2020 and was appointed as Chair on June 6, 2021. An economist by training, she received her undergraduate degree from the Universidad de Los Andes in Colombia. She has had a long and prestigious career in both the public and private sectors, having worked for the World Bank, the Central Bank of Colombia and the Colombian National Department of Planning. Previously, she served as Deputy Secretary of Education and Deputy Secretary of Finance for Bogota’s government as well as Vice President of Finance of Fiduciaria Bancolombia. Ms. Escovar was the CEO of Terpel S.A., a fuel distribution company that operates in Colombia, Ecuador, Panama, Peru and the Dominican Republic from 2012 until December 2020. In 2014, Ms. Escovar was named the top businessperson of the year by Portafolio, Colombia’s leading financial daily. In 2018, she received the National Order of Merit for spearheading private sector support for peacebuilding and reconciliation in Colombia. In 2020, she was the only woman on the Corporate Reputation Business Monitor’s list of Colombian leaders with the best reputation to rank in the top 10. In 2023, Forbes named Sylvia Escovar as one of the 100 most powerful women in Colombia. Ms. Escovar’s other Board memberships include Grupo Bancolombia, Empresa de Telecomunicaciones de Bogotá, Organización Corona S.A. and Compañía de Medicina EPS Sanitas, where she serves as Chairperson of the board with strategic and external relations functions.
James F. Park since co-founding the Company in 2002, James F. Park served for 20 years as our Chief Executive Officer until his retirement effective June 30, 2022. He initially funded, built the team, and led the strategy and growth of GeoPark from its small footprint at the southern tip of South America into becoming one of the leading oil and gas companies operating across Latin America today. He continues to serve as Vice Chair of our Board of Directors and advisor to the team. Beginning as a drilling rig roughneck in his teenage years, Mr. Park has more than 50 years of experience in all phases of the upstream oil and gas business, with a record of achievement in the acquisition, technical operation, and management of international projects and teams across the globe - including projects in North America, Central America, South America, Asia, Europe, Africa, and the Middle East - and with a successful emphasis on people, communities, and the environment. He earned a Bachelor of Science in Geophysics from the University of California at Berkeley and previously worked as a research scientist focused on earthquakes and tectonics at the University of Texas. Mr. Park is a member of the Board of Directors of GoodRock LLC and Spark Resources LLC and is a former Board member of the humanitarian non-profit SEE (Surgical Eye
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Expeditions) International, and the service and advocacy non-profit Girls, Inc. He is a member of the AAPG and SPE, has a degree in environmental management, and has lived in Latin America since 2002.
Robert Bedingfield has been a member of our Board of Directors since March 2015. He holds a degree in Accounting from the University of Maryland and is a Certified Public Accountant. Until his retirement in June 2013, he was one of Ernst & Young’s most senior Global Lead Partners with more than 40 years of experience, including 32 years as a partner in Ernst & Young’s accounting and auditing practices, as well as serving on Ernst & Young’s Senior Governing Board. He has extensive experience serving Fortune 500 companies; including acting as Lead Audit Partner or Senior Advisory Partner for Lockheed Martin, AES, Gannett, General Dynamics, Booz Allen Hamilton, Marriott and the US Postal Service. Since 2000, Mr. Bedingfield has been a Trustee, and at times an Executive Committee Member, and the Audit Committee Chair of the University of Maryland at College Park Board of Trustees. Mr. Bedingfield served on the National Executive Board (1995 to 2003) and National Advisory Council (since 2003) of the Boy Scouts of America. From 2013 to 2023, Mr. Bedingfield served as Board Member and Chairman of the Audit Committee of NYSE-listed Science Applications International Corp (SAIC). Mr. Bedingfield became age ineligible to serve on SAIC’s board on June 7, 2023.
Constantin Papadimitriou has been a member of our Board of Directors since May 2018. He is a respected and successful international investor and businessman, with more than 30 years of investment experience in global capital markets and in resource and industrial projects and was an early investor in GeoPark. Mr. Papadimitriou was for 18 years the Head of General Oriental Investments S.A., the Investment Manager of the Cavenham Funds, as part of the Cavamont Group founded by the Late Sir James Goldsmith. During his tenure at the Cavamont group, Mr. Papadimitriou was initially responsible for Treasury Management, then the Private Equity Portfolio as well as representing the group on the Boards of associated companies including investments in the oil and gas, mining, real estate, and gaming sectors (including Basic Petroleum, a Nasdaq-listed Guatemalan oil and gas company). He is a founding partner of Diorasis International, a company mainly focusing on investments in Greece and the broader Balkans in Aquaculture, and he also chairs the Greek Language School of Geneva and Lausanne. Mr. Papadimitriou holds an Economics and Finance degree and a post-graduate Diploma in European Studies from Geneva University.
Somit Varma has been a member of our Board of Directors since August 2020. He has been a proven and respected investor in oil, gas, mining, and infrastructure projects across the globe for more than three decades. During his time at the International Finance Corporation (IFC), he was the Global Head of Oil, Gas, Mining and Chemicals, Chairman of the IFC Oil, Gas, Mining and Chemicals Investment Committee and Chairman of the Global Gas Flaring Reduction Partnership. From 2011 until July 2020, Mr. Varma was a Managing Director of the Energy Group at Warburg Pincus LLC, one of the world’s premier private equity firms. Throughout his tenure at Warburg Pincus, Mr. Varma served on the boards of several international energy companies where he worked with management teams on a diverse set of issues including new acquisitions, strategic partnerships, capital allocation, risk management, succession planning, and growing and mentoring teams. Mr. Varma is Chairman of the Energy and Infrastructure Council of EMPEA, the global industry association for private capital in emerging markets. He is also currently an advisor to a global private equity firm and a family office. Mr. Varma earned his MBA at Boston University before attending the Executive Development Program at Harvard Business School.
Brian F. Maxted has been a member of our Board of Directors since July 2022. He holds a bachelor’s degree in geology from the University of Sheffield and a master’s degree in organic geochemistry and petrology from the University of Newcastle-upon-Tyne. Mr. Maxted is a proven oil and gas explorer, private equity entrepreneur and public company leader in the upstream E&P business, with a global track record of significant basin and play discoveries over 30 years. He spent the first part of his professional life from the late 1970s working for BP in locations including Europe, Africa, North America and South America, where he was involved in the discovery of Colombia’s giant Cusiana and Cupiagua oil fields in the early 1990s. During the second half of his career from the mid-1990s through the 2010s Mr. Maxted held various exploration leadership roles for US-based independents, including Triton Energy and Hess Corporation. In 2003, Mr. Maxted became a founding partner and later the CEO/CXO and Board Director of Kosmos Energy. Mr. Maxted retired from Kosmos in 2019 and established Limatus Energy Advisory Limited to provide strategic counsel to upstream E&P companies. In addition, he led the formation of Lapis Energy, a company focused on carbon solutions in the US Lower 48, where he currently serves as Chair of the Board.
Carlos E. Macellari has been a member of our Board of Directors since July 2022. He holds a bachelor’s degree in
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geology from the Universidad Nacional de La Plata in Argentina, and a master´s degree and a PhD in geology from Ohio State University. He has over 30 years of successful exploration, development and management experience in the oil and gas industry across several continents, at Tecpetrol, Repsol YPF, Hocol, Benton Oil & Gas, Enron Oil & Gas International and Pecten International (Shell Oil). As Director of Exploration and Development for Tecpetrol, he led the subsurface team responsible for making Fortín de Piedra the largest gas producing block in Argentina, and the discovery and development of the Pendare Field in Colombia. As Worldwide Director of Geology, he also led the technical group behind Repsol’s exploration success in locations such as Libya, Algeria, Pre-Salt Brazil, the Gulf of Mexico, Venezuela and Peru. He has published over 50 technical papers and has been guest lecturer in numerous international forums. He is the founder of the Journal of South American Earth Sciences, has lectured several courses in the USA, Colombia, Spain and Argentina and is currently a professor for postgraduate students at Universidad Nacional de La Plata. At present he is an independent consultant on oil and gas exploration and production after founding and managing Andes Energy Consulting, since 2020 he has been a Board member at Inverban, Tecpetrol Investments, Tecpetrol International and Suizum and since 2024 an independent board member of Olympic Peru.
Marcela Vaca joined GeoPark in August 2012 and served as General Director until August 2022. She has been a member of our Board of Directors since July 2022. She has more than 20 years of experience in planning, legal, environmental and social articulation and management of hydrocarbon exploration and production projects in Colombia and elsewhere in Latin America. Under her leadership as Director for Colombia and General Director, GeoPark became one of the leading oil and gas companies in the country. She plays a crucial role in advancing GeoPark’s diversity, equality and inclusion efforts, and promotes female empowerment as a key to the economic development of Latin America. Prior to joining our company, for nine years Ms. Vaca was the CEO of the Hupecol Group, where her achievements included leading the development of the Caracara field and the construction of the Jaguar–Santiago Pipeline. From November 2000 to June 2003, she worked as Legal, Administrative and External Affairs Manager at GHK Company Colombia. Bloomberg Linea includes Ms. Vaca in its 500 most influential people in Latin America, and in 2020, 2021 and 2022 Forbes named her as one of the 50 most powerful women in Colombia. Ms. Vaca was a member of the Board of Directors of the Colombian Oil Association (ACP, Asociación Colombiana de Petróleo) from 2010 to 2021 and served as Chair of the Board until March 2022. Ms. Vaca graduated in Law with a specialization in Commercial Law from the Pontificia Universidad Javeriana in Colombia and is a Fulbright Scholar with a Summa Cum Laude Master (LLM) from Georgetown University in the USA.
Andrés Ocampo has served as our Chief Executive Officer and as a member of our Board of Directors since July 2022. He previously served as our Chief Financial Officer (from November 2013 through June 2022) and Director of Growth and Capital Markets (from January 2011 through October 2013), and has been with our company since July 2010. Mr. Ocampo holds a Bachelor’s degree in Economics from Universidad Católica Argentina, has more than 17 years of experience in business and finance. Mr. Ocampo has been instrumental in helping GeoPark reach some of its greatest milestones, including its entry into Colombia and Brazil, the initial public offering on the New York Stock Exchange, the acquisition of Amerisur Resources and significant acreage expansion in Colombia. Our Board of Directors appointed Mr. Ocampo to serve as Chief Executive Officer of the Company effective July 1, 2022, by virtue of his wide experience in business management and finance together with his character, vision, knowledge of the Company and his proven ability to lead successful teams. Before joining our Company, Mr. Ocampo worked at Crédit Agricole Corporate & Investment Bank and Citigroup, focusing on the oil and gas and commodities industries.
Executive Officers
The following table lists our current executive officers:
|
Name |
Position |
Age |
At
the Company |
| Andrés Ocampo | Chief Executive Officer and Director | 45 | 2010 |
| Jaime Caballero Uribe | Chief Financial Officer | 49 | 2024 |
| Augusto Zubillaga | Chief Technical Officer | 54 | 2006 |
| James Deckelman | Chief Exploration Officer | 67 | 2023 |
| Rodolfo Martín Terrado | Chief Operating Officer | 49 | 2018 |
| Mónica Jiménez | Chief Strategy, Sustainability and Legal Officer | 48 | 2022 |
| Agustina Wisky | Chief People Officer | 47 | 2002 |
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Biographical information of our executive officers is set forth below. Unless otherwise indicated, the current business address of our executive officers is Calle 94 No. 11-30, 8th floor, Bogotá, Colombia.
Jaime Caballero Uribe has served as our Chief Financial Officer since January 2024. He has more than 25 years of industry and finance experience, including senior positions in large corporations as well as in start-ups and entrepreneurial businesses. Until August 2023, Mr. Caballero was Group Chief Financial Officer at Ecopetrol, the largest corporation in Colombia and one of the 400 largest companies in the world where he helped the management team achieve various performance records, including the delivery of more than U.S.$20 billion in growth financing and debt refinance. During his tenure, he was recognized by the Institutional Investor publication as one of the top three sector Chief Financial Officer s in Latin America. Previously, he held multiple positions at BP plc over 17 years, where his most recent appointment was Chief Financial Officer for the Brazil Region, which includes Colombia, Uruguay and Venezuela. Mr. Caballero holds a degree in Law from Universidad de Los Andes, an MBA in Energy Business from Fundação Getulio Vargas, and certificates in CFO Excellence from Wharton and Energy Innovation and Emerging Technologies from Stanford.
Augusto Zubillaga has served as our Chief Technical Officer since July 2022. He previously served in other management positions throughout the Company including as Chief Operating Officer, Operations Director, Argentina Director and Production Director. He is a petroleum engineer with more than 26 years of experience in production, engineering, well completions, corrosion control, reservoir management and field development. He has a degree in petroleum engineering from the Instituto Tecnológico de Buenos Aires. Prior to joining our company, Mr. Zubillaga worked for Petrolera Argentina San Jorge S.A. and Chevron San Jorge S.A. At Chevron San Jorge S.A., he led multi-disciplinary teams focused on improving production, costs and safety, and was the leader of the Asset Development Team, which was responsible for creating the field development plan and estimating and auditing the oil and gas reserves of the Trapial field in Argentina. Mr. Zubillaga was also part of a Chevron San Jorge S.A. team that was responsible for identifying business opportunities and working with the head office on the establishment of best business practices. He has authored several industry papers, including papers on electrical submersible pump optimization, corrosion control, water handling and intelligent production systems.
James Deckelman has served as our Chief Exploration Officer since October 2023. He is a highly successful explorer with over 25 years of experience in Latin America, the Middle East, Africa, Southeast Asia and North America, leading projects ranging from ultra-deepwater to unconventional. Mr. Deckelman added over a billion barrels of recoverable resources for companies including ConocoPhillips, BP and Talisman Energy. In Latin America, he has led projects and transactions in Colombia, Venezuela, Peru, Ecuador, Mexico, Brazil and Argentina. Mr. Deckelman is highly experienced in investment evaluation, new asset capture, and delivering production and reserve growth. He has a Master´s degree in geology from Utah State University and has authored over 15 industry publications focused on Latin America. Among other awards, in 2021, he was recognized as one of “Industry’s 100 Who Made a Difference” by the American Association of Petroleum Geologists.
Rodolfo Martín Terrado has served as our Chief Operating Officer since July 2022. He previously served as our Director of Operations since he joined GeoPark in August 2018. Mr. Terrado has more than 25 years of experience in in the oil industry, working in field development and operations. Mr. Terrado has a degree in Petroleum Engineering from the Instituto Tecnológico de Buenos Aires (ITBA) and an MBA from the IAE Business School at the Universidad Austral in Buenos Aires. He is a member of the Society of Petroleum Engineers (SPE). Prior to joining GeoPark, Mr. Terrado worked for Petrolera Argentina San Jorge and Chevron San Jorge S.A. in different international operations, including in Argentina, the United States and Venezuela. Mr. Terrado previously led heavy oil operations in Venezuela assets and his prior responsibilities include waterflooding, CO2 flooding and unconventionals.
Mónica Jiménez has served as our Chief Strategy, Sustainability and Legal Officer and Company Secretary since August 2022. She leads the definition and implementation of our strategy, ingrains sustainability (ESG) within the Company and leads the legal team. Mrs. Jiménez is an experienced attorney in corporate and international law in Canada and Colombia with extensive experience in corporate law and international commercial and investment arbitration. After living in Canada for more than 15 years, Mrs. Jiménez was Vice President of Corporate Affairs and Secretary General of Ecopetrol for six years before joining GeoPark. Mrs. Jiménez studied Law at Universidad the Los Andes, has a postgraduate degree in Civil Liability and Damages from the Universidad Externado de Colombia, and a Master of Science in Development Studies from the London School of Economics (LSE). Recognized as one of the leading in-house lawyers in Colombia by The Legal 500 GC Powerlist: Colombia 2022, Mrs. Jiménez is a current member of the International Court of Arbitration of the International Chamber of
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Commerce (ICC) and is on the Corporate Governance Council at the Universidad de Los Andes. She has served as a director of several organizations, and is currently on the Board of TSX-listed Mineros S.A.
Agustina Wisky is GeoPark’s Chief People Officer, responsible for enriching and promoting an organizational culture based on trust, teamwork, continuous improvement, mutual respect, and diversity. Ms. Wisky has been with the Company since it was founded in 2002, and she created and has led the People department for over 15 years, guided by the principles of attracting, motivating and developing the best professionals, and ensuring the comprehensive wellbeing of staff and their families. She previously held the position of Performance Director at GeoPark. Before joining GeoPark, Ms. Wisky worked at PricewaterhouseCoopers and AES Gener in Argentina. Ms. Wisky is a Public Accountant and has a Master’s degree in Human Resources from the IAE Business School of the Universidad Austral in Buenos Aires, Argentina. Thanks to Ms. Wisky’s leadership in the implementation of inclusion and diversity best practices, GeoPark won the Equipares Silver Award in 2020, which is given by the Government of Colombia with technical support from the United Nations Development Program. GeoPark was furthermore included in the Bloomberg Gender-Equality Index (GEI) in 2022, which evaluates the performance of listed companies that are committed to transparency in gender reporting.
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GEOPARK LIMITED
March 20, 2024
The Letter of Transmittal, certificates for shares and any other required documents should be sent or delivered by each shareholder of the Company or his or her bank, broker, dealer, trust company or other nominee to the Depositary as follows:
The Depositary for the Offer is:
Computershare Trust Company, N.A.
|
By Express Mail, Courier, or Other Expedited Service: Company, N.A. c/o Voluntary Corporate Actions, 150 Royall Street, Suite V Canton, MA 02021 |
By Mail: Company, N.A. c/o Voluntary Corporate Actions, P.O. Box 43011 Providence, RI 02940-3011 |
DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY.
Questions and requests for assistance or for additional copies of this Offer to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may be directed to the Information Agent or the Dealer Manager at their respective telephone numbers and locations listed below. You may also contact your bank, broker, dealer, trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
Georgeson LLC
1290 Avenue of the Americas, 9th Floor
New York, NY 10104
Shareholders, Banks and Brokers call toll-free: (866) 356-2715
The Dealer Manager for the Offer is:
BTG Pactual US Capital, LLC
601 Lexington Avenue, 57th Floor
New York, NY 10022
Attn: Equity Capital Markets
Collect: +1 (212) 293-4600
Email: ol-ecm@btgpactual.com
Exhibit (a)(1)(B)
Letter of Transmittal
To Tender common shares
Pursuant to the Offer to Purchase
Dated March 20, 2024
by
GEOPARK LIMITED
of
Up to U.S.$50,000,000 of its Common Shares
at a Per Share Purchase Price Not Greater Than
U.S.$10.00 Nor Less Than U.S.$9.00 Per Common Share
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON APRIL 17, 2024, UNLESS THE OFFER IS EXTENDED.
|
By Express Mail, Courier or Other Expedited Service: Company, N.A. c/o Voluntary Corporate Actions, 150 Royall Street, Suite V Canton, MA 02021
|
By Mail: Company, N.A. c/o Voluntary Corporate Actions, P.O. Box 43011 Providence, RI 02940-3011 | |
The instructions set forth in this Letter of Transmittal should be read carefully before this Letter of Transmittal is completed.
| ☐ Lost Certificates. I have lost my certificate(s) for shares and require assistance in replacing the shares. (See Instruction 11). |
| DESCRIPTION OF SHARES TENDERED (See Instructions 3 and 4) | |||
| Name(s) and Address(es) of Registered Holders(s) (Please fill in, if blank, exactly as name(s) appear(s) on certificate(s)) |
Common Shares Tendered (Attach Additional Signed List if Necessary) | ||
| Certificate Number(s) | Total Number of Shares Represented by Certificate(s) | Number of Shares Tendered* | |
| * Unless otherwise indicated, it will be assumed that all shares described above are being tendered. See Instruction 4. | |||
Corporate Actions Voluntary GPKL
1
This Letter of Transmittal is to be used either if certificates for shares (as defined below) are to be forwarded herewith or, unless an agent’s message (as defined in Section 3 of the Offer to Purchase (as defined below)) is utilized, if delivery of shares is to be made by book-entry transfer to an account maintained by the Depositary (as defined below) at the book-entry transfer facility (as defined in Section 3 of the Offer to Purchase) pursuant to the procedures set forth in Section 3 of the Offer to Purchase. Tendering shareholders whose certificates for shares are not immediately available or who cannot deliver either the certificates for, or a book-entry confirmation (as defined in Section 3 of the Offer to Purchase) with respect to, their shares and all other documents required hereby to the Depositary prior to the Expiration Time (as defined in Section 1 of the Offer to Purchase) must tender their shares in accordance with the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. See Instruction 2.
Your attention is directed in particular to the following:
1. If you want to retain your shares, you do not need to take any action.
2. If you want to participate in the Offer (as defined below), you should complete this Letter of Transmittal.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
| ☐ | CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER): |
Name of Tendering Institution: |
| Account Number: |
Transaction Code Number: |
| ☐ | CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY. ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING: |
If delivered by book-entry transfer, check box: ☐
Name(s) of Registered Owner(s): |
| Date of Execution of Notice of Guaranteed Delivery: |
Name of Institution that Guaranteed Delivery: |
Corporate Actions Voluntary GPKL
2
PRICE PER SHARE AT WHICH SHARES ARE BEING TENDERED (See Instruction 3)
CHECK ONLY ONE BOX UNDER 1 OR 2 BELOW.
IF MORE THAN ONE BOX IS CHECKED BELOW, THERE IS NO PROPER TENDER OF SHARES. IF NO BOX IS CHECKED, YOU WILL BE DEEMED TO HAVE MADE A PURCHASE PRICE TENDER.
1. SHARES TENDERED AT A PRICE DETERMINED PURSUANT TO THE OFFER.
| ☐ | The undersigned wants to maximize the chance of having GeoPark Limited purchase all of the shares tendered by the undersigned (subject to the possibility of proration). Accordingly, by checking this box INSTEAD OF ONE OF THE BOXES UNDER 2 BELOW, the undersigned hereby tenders shares at, and is willing to accept the Purchase Price determined by GeoPark Limited in accordance with the terms of the Offer. The undersigned understands that this election may lower the Purchase Price paid for all purchased shares in the Offer and could result in the tendered shares being purchased at a price as low as the minimum Purchase Price of U.S.$9.00 per share. |
— OR —
2. SHARES TENDERED AT A PRICE DETERMINED BY YOU
By checking ONE, and only ONE, of the boxes below INSTEAD OF THE BOX UNDER 1 ABOVE, the undersigned hereby tenders shares at the price checked. This action could result in none of your shares being purchased if the Purchase Price selected by GeoPark Limited for the shares is less than the price checked below. If the Purchase Price for the shares is equal to or greater than the price checked, then the shares purchased by GeoPark Limited will be purchased at the Purchase Price. All shares so purchased by GeoPark Limited will be purchased at the same price regardless of whether the shareholder tendered at a lower price. A shareholder who wishes to tender shares at more than one price must complete a separate Letter of Transmittal for each price at which shares are being tendered. The same shares cannot be tendered (unless previously properly withdrawn in accordance with the terms of the Offer) at more than one price.
PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED.
CHECK ONLY ONE BOX BELOW. IF MORE THAN ONE BOX IS CHECKED BELOW, THERE IS NO PROPER TENDER OF SHARES. IF NO BOX IS CHECKED, YOU WILL BE DEEMED TO HAVE MADE A PURCHASE PRICE TENDER.
| ☐ U.S.$9.00 | ☐ U.S.$9.10 | ☐ U.S.$9.20 |
| ☐ U.S.$9.30 | ☐ U.S.$9.40 | ☐ U.S.$9.50 |
| ☐ U.S.$9.60 | ☐ U.S.$9.70 | ☐ U.S.$9.80 |
| ☐ U.S.$9.90 | ☐ U.S.$10.00 |
ODD LOTS
(See Instruction 13)
To be completed ONLY if shares are being tendered by or on behalf of a person owning, beneficially or of record, an aggregate of fewer than 100 shares. The undersigned either (check one box):
Corporate Actions Voluntary GPKL
3
| ☐ | is the beneficial or record owner of an aggregate of fewer than 100 shares, all of which are being tendered; or |
| ☐ | is a broker, dealer, commercial bank, trust company or other nominee that (a) is tendering for the beneficial owner(s), shares with respect to which it is the record holder, and (b) believes, based upon representations made to it by the beneficial owner(s), that each such person is the beneficial owner of an aggregate of fewer than 100 shares and is tendering all of the shares. |
CONDITIONAL
TENDER
(See Instruction 12)
A tendering shareholder may condition his or her tender of shares upon the Company purchasing a specified minimum number of the shares tendered, all as described in Section 6 of the Offer to Purchase. Unless at least the minimum number of shares you indicate below is purchased by the Company pursuant to the terms of the Offer, none of the shares tendered by you will be purchased. It is the tendering shareholder’s responsibility to calculate the minimum number of shares that must be purchased if any are purchased, and each shareholder is urged to consult his or her own tax advisor before completing this section. Unless this box has been checked and a minimum specified, your tender will be deemed unconditional.
| ☐ | The minimum number of shares that must be purchased from me, if any are purchased from me, is: _________ shares. |
If, because of proration, the minimum number of shares designated will not be purchased, the Company may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, the tendering shareholder must have tendered all of his or her shares and checked this box:
| ☐ | The tendered shares represent all shares held by the undersigned. |
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Ladies and Gentlemen:
The undersigned hereby tenders to GeoPark Limited (the “Company”) the above-described common shares, par value U.S.$0.001 per share (the “shares”), of the Company, at the price per share indicated in this Letter of Transmittal, in cash, less any applicable withholding taxes and without interest, on the terms and subject to the conditions set forth in the Company’s Offer to Purchase dated March 20, 2024 (the “Offer to Purchase”), and this Letter of Transmittal (which, together with any amendments or supplements thereto or hereto, collectively constitute the “Offer Documents”), receipt of which is hereby acknowledged, relating to the Company’s offer to purchase its common shares, U.S.$0.001 par value per share, having an aggregate purchase price of up to U.S.$50,000,000, in cash, less any applicable withholding taxes and without interest, upon the terms and subject to the conditions of the Offer Documents (the “Offer”). Unless the context otherwise requires, all references to the shares shall refer to the common shares of the Company.
Subject to and effective on acceptance for payment of, and payment for, the shares tendered with this Letter of Transmittal in accordance with the terms and subject to the conditions of the Offer Documents, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Company, all right, title and interest in and to all the shares that are being tendered hereby and irrevocably constitutes and appoints the Company, the true and lawful agent and attorney-in-fact of the undersigned, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to the full extent of the undersigned’s rights with respect to such shares, to (a) deliver certificates for such shares or transfer ownership of such shares on the account books maintained by the book-entry transfer facility, together, in any such case, with all accompanying evidences of transfer and authenticity to, or upon the order of, the Company, (b) present such shares for cancellation and transfer on the Company’s books and (c) receive all benefits and otherwise exercise all rights of beneficial ownership of such shares, all in accordance with the terms and subject to the conditions of the Offer Documents.
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the shares tendered hereby and that, when the same are accepted for purchase by the Company, the Company will acquire good title thereto, free and clear of all security interests, liens, restrictions, claims and encumbrances, and the same will not be subject to any adverse claim or right. The undersigned will, on request by Computershare Trust Company, N.A. (the “Depositary”) or the Company, execute and deliver any additional documents deemed by the Depositary or the Company to be necessary or desirable to complete the sale, assignment and transfer of the shares tendered hereby, all in accordance with the terms of the Offer.
All authority conferred or agreed to be conferred pursuant to this Letter of Transmittal shall be binding on the successors, assigns, heirs, personal representatives, executors, administrators and other legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. Except as stated in the Offer to Purchase, this tender is irrevocable.
The undersigned understands that the valid tender of shares pursuant to any of the procedures described in Section 3 of the Offer to Purchase and in the instructions to this Letter of Transmittal will constitute a binding agreement between the undersigned and the Company on the terms and subject to the conditions of the Offer Documents.
It is a violation of Rule 14e-4 promulgated under the Exchange Act (as defined in the Offer to Purchase) for a person acting alone or in concert with others, directly or indirectly, to tender shares for such person’s own account unless at the time of tender and at the expiration date such person has a “net long position” in (a) the shares that is equal to or greater than the amount tendered and will deliver or cause to be delivered such shares for the purpose of tender to the Company within the period specified in the Offer, or (b) other securities immediately convertible into, exercisable for or exchangeable into shares (“Equivalent Securities”) that is equal to or greater than the amount tendered and, upon the acceptance of such tender, will acquire such shares by conversion, exchange or exercise of such Equivalent Securities to the extent required by the terms of the Offer and will deliver or cause to be delivered such shares so acquired for the purpose of tender to the Company within the period specified in the Offer Documents. Rule 14e-4 also provides a similar restriction applicable to the tender or guarantee of a tender on behalf of another person. A tender of shares made pursuant to any method of delivery set forth in this Letter of Transmittal will constitute the undersigned’s representation and warranty to the Company that (a) the undersigned has a “net long position” in shares or Equivalent Securities being tendered within the meaning of Rule 14e-4, and (b) such tender of shares complies with Rule 14e-4.
The undersigned agrees to all of the terms and conditions of the Offer, including its proration provisions, “odd lot” provisions and conditional tender provisions, and that the Company will return at its expense all other shares including shares not purchased because of proration or conditional tenders, promptly following the Expiration Time.
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Unless otherwise indicated herein under “Special Payment Instructions,” please issue the check for payment of the purchase price and/or return any certificates for shares not tendered or accepted for payment in the name(s) of the registered holder(s) appearing under “Description of Shares Tendered.” Similarly, unless otherwise indicated under “Special Delivery Instructions,” please mail the check for payment of the purchase price and/or return any certificates for shares not tendered or accepted for payment (and accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing under “Description of Shares Tendered.” In the event that both the “Special Delivery Instructions” and the “Special Payment Instructions” are completed, please issue the check for payment of the purchase price and/or return any certificates for shares not tendered or accepted for payment (and any accompanying documents, as appropriate) in the name(s) of, and deliver such check and/or return such certificates (and any accompanying documents, as appropriate) to, the person or persons so indicated. Please credit any shares tendered herewith by book-entry transfer that are not accepted for payment by crediting the account at the book-entry transfer facility designated above. The undersigned recognizes that the Company has no obligation pursuant to the “Special Payment Instructions” to transfer any shares from the name of the registered holder(s) thereof if the Company does not accept for payment any of the shares so tendered.
NOTE: SIGNATURE MUST BE PROVIDED ON PAGE 7 BELOW.
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SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 5, 6 and 7)
To be completed ONLY if certificates for shares not tendered or not accepted for payment and/or the check for payment of the purchase price of shares accepted for payment are to be issued in the name of someone other than the undersigned, or if shares tendered hereby and delivered by book-entry transfer which are not purchased are to be returned by crediting them to an account at the book-entry transfer facility other than the account designated above.
Issue: ☐ Check ☐ Certificate(s) to:
| Name: | |
| (Please Print) | |
| Address: | |
| (Include Zip Code) | |
| (Taxpayer Identification or Social Security Number) |
(See IRS Form W-9 Included Herewith)
Check and complete if applicable:
☐ Credit shares delivered by book-entry transfer and not purchased to the account set forth below:
| Account Number: | |
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5, 6 and 7)
To be completed ONLY if certificates for shares not tendered or not accepted for payment and/or the check for payment of the purchase price of shares accepted for payment are to be sent to someone other than the undersigned or to the undersigned at an address other than that above.
Mail: ☐ Check ☐ Certificate(s) to:
| Name: | |
| (Please Print) | |
| Address: | |
| (Include Zip Code) | |
| (Taxpayer Identification or Social Security Number) |
(See IRS Form W-9 Included Herewith)
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SIGN HERE
(Also Complete IRS Form W-9 Below)
(Signature(s) of Shareholder(s))
Dated:
(Must be signed by registered holder(s) exactly as name(s) appear(s) on stock certificate(s) for the shares or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, please provide the following information and see Instruction 5.)
| Name(s): | |
| (Please Print) | |
| Capacity (full title): | |
| Address: | |
| (Include Zip Code) | |
| Daytime Area Code and Telephone Number: | |
| Taxpayer Identification or Social Security Number: | |
(Also Complete IRS Form W-9 below)
GUARANTEE OF SIGNATURE(S)
(If Required — See Instructions 1 and 5)
| Authorized Signature: |
| Name(s): | |
| (Please Print) | |
| Name of Firm: | |
| Title: |
| Address: | |
| (Include Zip Code) | |
| Daytime Area Code and Telephone Number: | |
Dated:
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INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
1. Guarantee of Signatures. No signature guarantee is required on this Letter of Transmittal if either (a) this Letter of Transmittal is signed by the registered holder(s) (which term, for purposes of this Instruction 1, includes any participant in the book-entry transfer facility’s system whose name appears on a security position listing as the owner of the shares) of shares tendered herewith, unless such registered holder(s) has completed either the box entitled “Special Payment Instructions” or the box entitled “Special Delivery Instructions” on this Letter of Transmittal or (b) such shares are tendered for the account of a firm that is a member in good standing of a recognized Medallion Program approved by the Securities Transfer Association, Inc., including the Securities Transfer Agents Medallion Program, the New York Stock Exchange, Inc. Medallion Signature Program or the Stock Exchange Medallion Program, or is otherwise an “eligible guarantor institution,” as that term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (each, an “eligible institution”). In all other cases, all signatures on this Letter of Transmittal must be guaranteed by an eligible institution. Shareholders may also need to have any certificates they deliver endorsed or accompanied by a stock power, and the signatures on these documents also may need to be guaranteed. See Instruction 5.
2. Requirements of Tender. This Letter of Transmittal is to be completed by shareholders either if certificates are to be forwarded herewith or, unless an agent’s message (as defined below) is utilized, if delivery of shares is to be made pursuant to the procedures for book-entry transfer set forth in Section 3 of the Offer to Purchase. For a shareholder validly to tender shares pursuant to the Offer, either (a) a Letter of Transmittal properly completed and duly executed, together with any required signature guarantees or, in the case of a book-entry transfer, an agent’s message, and any other required documents, must be received by the Depositary at one of its addresses set forth on the back of this Letter of Transmittal prior to the Expiration Time and either certificates for tendered shares must be received by the Depositary at one of such addresses or shares must be delivered pursuant to the procedures for book-entry transfer set forth herein (and a book-entry confirmation must be received by the Depositary), in each case prior to the Expiration Time, or (b) the tendering shareholder must comply with the guaranteed delivery procedures set forth below and in Section 3 of the Offer to Purchase.
Shareholders whose certificates for shares are not immediately available or who cannot deliver their certificates and all other required documents to the Depositary or complete the procedures for book-entry transfer prior to the Expiration Time may tender their shares by properly completing and duly executing the Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Pursuant to those procedures, (a) tender must be made by or through an eligible institution, (b) a properly completed and duly executed Notice of Guaranteed Delivery, in the form provided by the Company, must be received by the Depositary prior to the Expiration Time and (c) the certificates for all tendered shares in proper form for transfer (or a book-entry confirmation with respect to all such shares), together with a Letter of Transmittal, properly completed and duly executed, with any required signature guarantees or, in the case of a book-entry transfer, an agent’s message, and any other required documents, must be received by the Depositary, in each case within two trading days after the date of execution of the Notice of Guaranteed Delivery as provided in Section 3 of the Offer to Purchase. A “trading day” is any day on which the NYSE is open for business. The term “agent’s message” means a message transmitted by the book-entry transfer facility to, and received by, the Depositary and forming a part of a book-entry confirmation, which states that such book-entry transfer facility has received an express acknowledgment from the participant in the book-entry transfer facility tendering the shares that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that the Company may enforce such agreement against such participant.
The method of delivery of shares, this Letter of Transmittal and all other required documents, including delivery through the book-entry transfer facility, is at the sole election and risk of the tendering shareholder. Shares will be deemed delivered only when actually received by the Depositary (including, in the case of a book-entry transfer, by book-entry confirmation). If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
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Except as specifically provided by the Offer to Purchase, no alternative, conditional or contingent tenders will be accepted. No fractional shares will be purchased. All tendering shareholders, by execution of this Letter of Transmittal, waive any right to receive any notice of the acceptance for payment of their shares.
3. Inadequate Space. If the space provided in the box entitled “Description of Shares Tendered” in this Letter of Transmittal is inadequate, the certificate numbers and/or the number of shares should be listed on a separate signed schedule attached hereto.
4. Partial Tenders (Not Applicable to Shareholders Who Tender by Book-Entry Transfer). If fewer than all the shares represented by any certificate submitted to the Depositary are to be tendered, fill in the number of shares that are to be tendered in the box entitled “Number of Shares Tendered.” In that case, if any tendered shares are purchased, new certificate(s) for the remainder of the shares that were evidenced by the old certificate(s) will be sent to the registered holder(s), unless otherwise provided in the appropriate box on this Letter of Transmittal, as soon as practicable after the acceptance for payment of, and payment for, the shares tendered herewith. All shares represented by certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated.
5. Signatures on Letter of Transmittal, Stock Powers and Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the shares tendered hereby, the signature(s) must correspond exactly with the name(s) as written on the face of the certificate(s) without any change whatsoever.
If any of the shares tendered hereby are owned of record by two or more joint owners, all such persons must sign this Letter of Transmittal.
If any shares tendered hereby are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, he or she should so indicate when signing, and proper evidence satisfactory to the Company of his or her authority to so act must be submitted with this Letter of Transmittal.
If this Letter of Transmittal is signed by the registered owner(s) of the shares tendered hereby, no endorsements of certificates or separate stock powers are required unless payment of the purchase price is to be made, or certificates for shares not tendered or accepted for payment are to be issued, to a person other than the registered owner(s). Signatures on any such certificates or stock powers must be guaranteed by an eligible institution.
If this Letter of Transmittal is signed by a person other than the registered owner(s) of the shares tendered hereby, or if payment is to be made or certificate(s) for shares not tendered or not purchased are to be issued to a person other than the registered owner(s), the certificate(s) representing such shares must be properly endorsed for transfer or accompanied by appropriate stock powers, in either case signed exactly as the name(s) of the registered owner(s) appear(s) on the certificate(s). The signature(s) on any such certificate(s) or stock power(s) must be guaranteed by an eligible institution. See Instruction 1.
6. Stock Transfer Taxes. The Company will pay any stock transfer taxes with respect to the transfer and sale of shares to it pursuant to the Offer. If, however, payment of the purchase price is to be made to, or if shares not tendered or accepted for payment are to be registered in the name of, any person(s) other than the registered owner(s), or if shares tendered hereby are registered in the name(s) of any person(s) other than the person(s) signing this Letter of Transmittal, the amount of any stock transfer taxes (whether imposed on the registered owner(s) or such person(s)) payable on account of the transfer to such person(s) will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted with this Letter of Transmittal.
Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the certificates listed in this Letter of Transmittal.
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7. Special Payment and Delivery Instructions. If a check for the purchase price of any shares accepted for payment is to be issued in the name of, and/or certificates for any shares not accepted for payment or not tendered are to be issued in the name of and/or returned to, a person other than the signer of this Letter of Transmittal or if a check is to be sent, and/or such certificates are to be returned, to a person other than the signer of this Letter of Transmittal or to an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed and signatures must be guaranteed as described in Instructions 1 and 5.
8. Irregularities. The Company will determine in its sole discretion all questions as to the number of shares to accept, and the validity, eligibility (including time of receipt), and acceptance for payment of any tender of shares. Any such determinations will be final and binding on all parties, subject to a shareholder’s right to challenge our determination in a court of competent jurisdiction. The Company reserves the absolute right to reject any or all tenders of shares it determines not to be in proper form or the acceptance of which or payment for which may, in the Company’s opinion, be unlawful. The Company also reserves the absolute right to waive any defect or irregularity in the tender of any particular shares, and the Company’s interpretation of the terms of the Offer, including these instructions, will be final and binding on all parties. No tender of shares will be deemed to be properly made until all defects and irregularities have been cured or waived. Unless waived, any defects or irregularities in connection with tenders must be cured within such time as the Company shall determine. None of the Company, the Dealer Manager, the Depositary, the Information Agent (each as defined in the Offer to Purchase) or any other person is or will be obligated to give notice of any defects or irregularities in tenders and none of them will incur any liability for failure to give any such notice.
9. U.S. Federal Backup Withholding. Under the U.S. federal income tax laws, payments to a tendering shareholder may be subject to “backup withholding” at the applicable statutory rate (currently 24%), unless a tendering shareholder
| · | provides a correct taxpayer identification number and any other required information and otherwise complies with applicable requirements of the backup withholding rules; or |
| · | is an exempt recipient and, when required, demonstrates this fact. |
A shareholder that does not provide a correct taxpayer identification number may be subject to penalties imposed by the U.S. Internal Revenue Service (the “IRS”). To prevent backup withholding on cash payable under the Offer to Purchase, each shareholder that is a U.S. person (as defined in the instructions to the IRS Form W-9) should provide the Depositary or other applicable withholding agent with his or her correct taxpayer identification number and certify that he or she is not subject to backup withholding by completing the IRS Form W-9 included in the Letter of Transmittal. In order to eliminate any U.S. backup withholding, a shareholder that is not a U.S. person should provide the Depositary or other applicable withholding agent with the appropriate IRS Form W-8, attesting to that shareholder’s non-U.S. status.
Backup withholding is not an additional tax. Taxpayers may use amounts withheld as a credit against their U.S. federal income tax liability, and may claim a refund if they timely provide certain required information to the IRS.
For a discussion of U.S. federal income tax consequences to tendering U.S. shareholders, see Section 14 of the Offer to Purchase.
10. Requests for Assistance or Additional Copies. Questions and requests for assistance or additional copies of the Offer to Purchase, this Letter of Transmittal and the Notice of Guaranteed Delivery may be directed to the Information Agent or the Dealer Manager at their respective addresses set forth on the last page of this Letter of Transmittal.
11. Lost, Destroyed or Stolen Certificates. If your certificate(s) for part or all of your shares has been lost, stolen, destroyed or mutilated, you should contact the Depositary at (855) 807 3166 for information regarding replacement of lost securities. You should also check the box for “Lost Certificates” in the appropriate box on page 1 and promptly send the completed Letter of Transmittal to the Depositary. Upon receipt of your request by phone or Letter of Transmittal, the Depositary will provide you with instructions on how to obtain a replacement
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certificate. You may be asked to post a bond to secure against the risk that the certificate may be subsequently recirculated. There may be a fee and additional documents may be required to replace lost certificates. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, stolen, destroyed or mutilated certificates have been followed. You are urged to send the properly completed Letter of Transmittal to the Depositary immediately to ensure timely processing of documentation. If you have questions, you may contact the Information Agent toll free at (866) 356-2715.
12. Conditional Tenders. As described in Sections 1 and 6 of the Offer to Purchase, shareholders may condition their tenders on all or a minimum number of their tendered shares being purchased.
If you wish to make a conditional tender, you must indicate this in the box captioned “Conditional Tender” in this Letter of Transmittal and, if applicable, in the Notice of Guaranteed Delivery. In the box in this Letter of Transmittal and, if applicable, in the Notice of Guaranteed Delivery, you must calculate and appropriately indicate the minimum number of shares that must be purchased from you if any are to be purchased from you.
As discussed in Sections 1 and 5 of the Offer to Purchase, proration may affect whether the Company accepts conditional tenders and may result in shares tendered pursuant to a conditional tender being deemed withdrawn if the required minimum number of shares would not be purchased. If, because of proration, the minimum number of shares that you designate will not be purchased, the Company may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, you must have tendered all your shares and checked the box so indicating. Upon selection by lot, if any, the Company will limit its purchase in each case to the designated minimum number of shares.
All tendered shares will be deemed unconditionally tendered unless the “Conditional Tender” box is completed.
The conditional tender alternative is made available so that a shareholder may seek to structure the purchase of shares pursuant to the Offer in such a manner that the purchase will be treated as a sale of such shares by the shareholder, rather than the payment of a dividend to the shareholder, for U.S. federal income tax purposes. If you are an odd lot holder and you tender all of your shares, you cannot conditionally tender, since your shares will not be subject to proration. It is the tendering shareholder’s responsibility to calculate the minimum number of shares that must be purchased from the shareholder in order for the shareholder to qualify for sale (rather than distribution) treatment for U.S. federal income tax purposes. Each shareholder is urged to consult his or her own tax advisor. No assurances can be provided that a conditional tender will achieve the intended U.S. federal income tax results in all cases. See Section 14 of the Offer to Purchase.
13. Odd Lots. As described in Section 1 of the Offer to Purchase, if the Company is to purchase fewer than all shares properly tendered before the Expiration Time and not properly withdrawn, the shares purchased first will consist of all shares properly tendered by any shareholder who owned, beneficially or of record, an aggregate of fewer than 100 shares, and who tenders all of the holder’s shares. This preference will not be available to you unless you complete the section captioned “Odd Lots” in this Letter of Transmittal and, if applicable, in the Notice of Guaranteed Delivery.
14. Order of Purchase in Event of Proration. As described in Section 1 of the Offer to Purchase, shareholders may designate the order in which their shares are to be purchased in the event of proration. The order of purchase may have an effect on the U.S. federal income tax classification of any gain or loss on the shares purchased. See Section 1 and Section 14 of the Offer to Purchase.
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IMPORTANT. This Letter of Transmittal, together with any required signature guarantees or, in the case of a book-entry transfer, an agent’s message, and any other required documents, must be received by the Depositary prior to the Expiration Time and either certificates for tendered shares must be received by the Depositary or shares must be delivered pursuant to the procedures for book-entry transfer, in each case prior to the Expiration Time, or the tendering shareholder must comply with the procedures for guaranteed delivery.
What Number to Give the Depositary
A U.S. shareholder is required to give the Depositary the social security number or employer identification number of the record holder of the shares tendered hereby. If the shares are in more than one name or are not in the name of the actual owner, consult the enclosed instructions to IRS Form W-9 for additional guidance on which number to report. If the tendering shareholder has not been issued a TIN and has applied for a number or intends to apply for a number in the near future, the shareholder should write “Applied For” in Part I, and sign and date the IRS Form W-9. If “Applied For” is written in Part I and the Depositary is not provided with a TIN by the time for payment, the Depositary will withhold 24% of all payments of the purchase price to such shareholder until a TIN is provided.
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W-9 (Rev. March 2024) Request for Taxpayer Identification Number and Certification Department of the Treasury Internal Revenue Service Go to www.irs.gov/FormW9 for instructions and the latest information. Give form to the requester. Do not send to the IRS. Before you begin. For guidance related to the purpose of Form W-9, see Purpose of Form, below. Print or type. See Specific Instructions on page 3. 1 Name of entity/individual. An entry is required. (For a sole proprietor or disregarded entity, enter the owner’s name on line 1, and enter the business/disregarded entity’s name on line 2.) 2 Business name/disregarded entity name, if different from above. 3a Check the appropriate box for federal tax classification of the entity/individual whose name is entered on line 1. Check only one of the following seven boxes. Individual/sole proprietor C corporation S corporation Partnership Trust/estate LLC. Enter the tax classification (C = C corporation, S = S corporation, P = Partnership) . . . . Note: Check the “LLC” box above and, in the entry space, enter the appropriate code (C, S, or P) for the tax classification of the LLC, unless it is a disregarded entity. A disregarded entity should instead check the appropriate box for the tax classification of its owner. Other (see instructions) 3b If on line 3a you checked “Partnership” or “Trust/estate,” or checked “LLC” and entered “P” as its tax classification, and you are providing this form to a partnership, trust, or estate in which you have an ownership interest, check this box if you have any foreign partners, owners, or beneficiaries. See instructions . . . . . . . .. . 4 Exemptions (codes apply only to certain entities, not individuals; see instructions on page 3): Exempt payee code (if any) Exemption from Foreign Account Tax Compliance Act (FATCA) reporting code (if any) (Applies to accounts maintained outside the United States.) 5 Address (number, street, and apt. or suite no.). See instructions. 6 City, state, and ZIP code Requester’s name and address (optional) 7 List account number(s) here (optional) Part I Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later. Note: If the account is in more than one name, see the instructions for line 1. See also What Name and Number To Give the Requester for guidelines on whose number to enter. Social security number – – or Employer identification number – Part II Certification Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and 2. I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and 3. I am a U.S. citizen or other U.S. person (defined below); and 4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and, generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later. Sign Here Signature of U.S. person Date General Instructions Section references are to the Internal Revenue Code unless otherwise noted. Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9. What’s New Line 3a has been modified to clarify how a disregarded entity completes this line. An LLC that is a disregarded entity should check the appropriate box for the tax classification of its owner. Otherwise, it should check the “LLC” box and enter its appropriate tax classification. New line 3b has been added to this form. A flow-through entity is required to complete this line to indicate that it has direct or indirect foreign partners, owners, or beneficiaries when it provides the Form W-9 to another flow-through entity in which it has an ownership interest. This change is intended to provide a flow-through entity with information regarding the status of its indirect foreign partners, owners, or beneficiaries, so that it can satisfy any applicable reporting requirements. For example, a partnership that has any indirect foreign partners may be required to complete Schedules K-2 and K-3. See the Partnership Instructions for Schedules K-2 and K-3 (Form 1065). Purpose of Form An individual or entity (Form W-9 requester) who is required to file an information return with the IRS is giving you this form because they Cat. No. 10231X Form W-9 (Rev. 3-20
Form W-9 (Rev. 3-2024) Page 2 must obtain your correct taxpayer identification number (TIN), which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following. • Form 1099-INT (interest earned or paid). • Form 1099-DIV (dividends, including those from stocks or mutual funds). • Form 1099-MISC (various types of income, prizes, awards, or gross proceeds). • Form 1099-NEC (nonemployee compensation). • Form 1099-B (stock or mutual fund sales and certain other transactions by brokers). • Form 1099-S (proceeds from real estate transactions). • Form 1099-K (merchant card and third-party network transactions). • Form 1098 (home mortgage interest), 1098-E (student loan interest), and 1098-T (tuition). • Form 1099-C (canceled debt). • Form 1099-A (acquisition or abandonment of secured property). Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN. Caution: If you don’t return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later. By signing the filled-out form, you: 1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued); 2. Certify that you are not subject to backup withholding; or 3. Claim exemption from backup withholding if you are a U.S. exempt payee; and 4. Certify to your non-foreign status for purposes of withholding under chapter 3 or 4 of the Code (if applicable); and 5. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting is correct. See What Is FATCA Reporting, later, for further information. Note: If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the requester’s form if it is substantially similar to this Form W-9. Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are: • An individual who is a U.S. citizen or U.S. resident alien; • A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States; • An estate (other than a foreign estate); or • A domestic trust (as defined in Regulations section 301.7701-7). Establishing U.S. status for purposes of chapter 3 and chapter 4 withholding. Payments made to foreign persons, including certain distributions, allocations of income, or transfers of sales proceeds, may be subject to withholding under chapter 3 or chapter 4 of the Code (sections 1441–1474). Under those rules, if a Form W-9 or other certification of non-foreign status has not been received, a withholding agent, transferee, or partnership (payor) generally applies presumption rules that may require the payor to withhold applicable tax from the recipient, owner, transferor, or partner (payee). See Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities. The following persons must provide Form W-9 to the payor for purposes of establishing its non-foreign status. • In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the disregarded entity. • In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the grantor trust. • In the case of a U.S. trust (other than a grantor trust), the U.S. trust and not the beneficiaries of the trust. See Pub. 515 for more information on providing a Form W-9 or a certification of non-foreign status to avoid withholding. Foreign person. If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person (under Regulations section 1.1441-1(b)(2)(iv) or other applicable section for chapter 3 or 4 purposes), do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Pub. 515). If you are a qualified foreign pension fund under Regulations section 1.897(l)-1(d), or a partnership that is wholly owned by qualified foreign pension funds, that is treated as a non-foreign person for purposes of section 1445 withholding, do not use Form W-9. Instead, use Form W-8EXP (or other certification of non-foreign status). Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a saving clause. Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes. If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items. 1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien. 2. The treaty article addressing the income. 3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions. 4. The type and amount of income that qualifies for the exemption from tax. 5. Sufficient facts to justify the exemption from tax under the terms of the treaty article. Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if their stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first Protocol) and is relying on this exception to claim an exemption from tax on their scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption. If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233. Backup Withholding What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 24% of such payments. This is called “backup withholding.” Payments that may be subject to backup withholding include, but are not limited to, interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, payments made in settlement of payment card and third-party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding. You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return. Payments you receive will be subject to backup withholding if: 1. You do not furnish your TIN to the requester; 2. You do not certify your TIN when required (see the instructions for Part II for details); 3. The IRS tells the requester that you furnished an incorrect TIN; 4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only); or 5. You do not certify to the requester that you are not subject to backup withholding, as described in item 4 under “By signing the filledout form” above (for reportable interest and dividend accounts opened after 1983 only).
Certain payees and payments are exempt from backup withholding. See Exempt payee code, later, and the separate Instructions for the Requester of Form W-9 for more information. See also Establishing U.S. status for purposes of chapter 3 and chapter 4 withholding, earlier. What Is FATCA Reporting? The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all U.S. account holders that are specified U.S. persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code, later, and the Instructions for the Requester of Form W-9 for more information. Updating Your Information You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you are no longer tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account, for example, if the grantor of a grantor trust dies. Penalties Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. Misuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties. Specific Instructions Line 1 You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax return. If this Form W-9 is for a joint account (other than an account maintained by a foreign financial institution (FFI)), list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must provide a Form W-9. • Individual. Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name. Note for ITIN applicant: Enter your individual name as it was entered on your Form W-7 application, line 1a. This should also be the same as the name you entered on the Form 1040 you filed with your application. • Sole proprietor. Enter your individual name as shown on your Form 1040 on line 1. Enter your business, trade, or “doing business as” (DBA) name on line 2. • Partnership, C corporation, S corporation, or LLC, other than a disregarded entity. Enter the entity’s name as shown on the entity’s tax return on line 1 and any business, trade, or DBA name on line 2. • Other entities. Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. Enter any business, trade, or DBA name on line 2. • Disregarded entity. In general, a business entity that has a single owner, including an LLC, and is not a corporation, is disregarded as an entity separate from its owner (a disregarded entity). See Regulations section 301.7701-2(c)(2). A disregarded entity should check the appropriate box for the tax classification of its owner. Enter the owner’s name on line 1. The name of the owner entered on line 1 should never be a disregarded entity. The name on line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owner’s name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity’s name on line 2. If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9. This is the case even if the foreign person has a U.S. TIN. Line 2 If you have a business name, trade name, DBA name, or disregarded entity name, enter it on line 2. Line 3a Check the appropriate box on line 3a for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box on line 3a. IF the entity/individual on line 1 is a(n) . . . THEN check the box for . . . • Corporation Corporation. • Individual or • Sole proprietorship Individual/sole proprietor. • LLC classified as a partnership for U.S. federal tax purposes or • LLC that has filed Form 8832 or 2553 electing to be taxed as a corporation Limited liability company and enter the appropriate tax classification: P = Partnership, C = C corporation, or S = S corporation. • Partnership Partnership. • Trust/estate Trust/estate. Line 3b Check this box if you are a partnership (including an LLC classified as a partnership for U.S. federal tax purposes), trust, or estate that has any foreign partners, owners, or beneficiaries, and you are providing this form to a partnership, trust, or estate, in which you have an ownership interest. You must check the box on line 3b if you receive a Form W-8 (or documentary evidence) from any partner, owner, or beneficiary establishing foreign status or if you receive a Form W-9 from any partner, owner, or beneficiary that has checked the box on line 3b. Note: A partnership that provides a Form W-9 and checks box 3b may be required to complete Schedules K-2 and K-3 (Form 1065). For more information, see the Partnership Instructions for Schedules K-2 and K-3 (Form 1065). If you are required to complete line 3b but fail to do so, you may not receive the information necessary to file a correct information return with the IRS or furnish a correct payee statement to your partners or beneficiaries. See, for example, sections 6698, 6722, and 6724 for penalties that may apply. Line 4 Exemptions If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space on line 4 any code(s) that may apply to you. Exempt payee code. • Generally, individuals (including sole proprietors) are not exempt from backup withholding. • Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends. • Corporations are not exempt from backup withholding for payments made in settlement of payment card or third-party network transactions. • Corporations are not exempt from backup withholding with respect to attorneys’ fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are not exempt with respect to payments reportable on Form 1099-MISC. The following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space on line 4. 1—An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2).
2—The United States or any of its agencies or instrumentalities. 3—A state, the District of Columbia, a U.S. commonwealth or territory, or any of their political subdivisions or instrumentalities. 4—A foreign government or any of its political subdivisions, agencies, or instrumentalities. 5—A corporation. 6—A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or territory. 7—A futures commission merchant registered with the Commodity Futures Trading Commission. 8—A real estate investment trust. 9—An entity registered at all times during the tax year under the Investment Company Act of 1940. 10—A common trust fund operated by a bank under section 584(a). 11—A financial institution as defined under section 581. 12—A middleman known in the investment community as a nominee or custodian. 13—A trust exempt from tax under section 664 or described in section 4947. The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13. IF the payment is for . . . THEN the payment is exempt for . . . • Interest and dividend payments All exempt payees except for 7. • Broker transactions Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012. • Barter exchange transactions and patronage dividends Exempt payees 1 through 4. • Payments over $600 required to be reported and direct sales over $5,0001 Generally, exempt payees 1 through 5.2 • Payments made in settlement of payment card or third-party network transactions Exempt payees 1 through 4. 1See Form 1099-MISC, Miscellaneous Information, and its instructions. 2However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys’ fees, gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency. Exemption from FATCA reporting code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate that a code is not required by providing you with a Form W-9 with “Not Applicable” (or any similar indication) entered on the line for a FATCA exemption code. A—An organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37). B—The United States or any of its agencies or instrumentalities. C—A state, the District of Columbia, a U.S. commonwealth or territory, or any of their political subdivisions or instrumentalities. D—A corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations section 1.1472-1(c)(1)(i). E—A corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i). F—A dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state. G—A real estate investment trust. H—A regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940. I—A common trust fund as defined in section 584(a). J—A bank as defined in section 581. K—A broker. L—A trust exempt from tax under section 664 or described in section 4947(a)(1). M—A tax-exempt trust under a section 403(b) plan or section 457(g) plan. Note: You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be completed. Line 5 Enter your address (number, street, and apartment or suite number). This is where the requester of this Form W-9 will mail your information returns. If this address differs from the one the requester already has on file, enter “NEW” at the top. If a new address is provided, there is still a chance the old address will be used until the payor changes your address in their records. Line 6 Enter your city, state, and ZIP code. Part I. Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. If you are a resident alien and you do not have, and are not eligible to get, an SSN, your TIN is your IRS ITIN. Enter it in the entry space for the Social security number. If you do not have an ITIN, see How to get a TIN below. If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN. If you are a single-member LLC that is disregarded as an entity separate from its owner, enter the owner’s SSN (or EIN, if the owner has one). If the LLC is classified as a corporation or partnership, enter the entity’s EIN. Note: See What Name and Number To Give the Requester, later, for further clarification of name and TIN combinations. How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local SSA office or get this form online at www.SSA.gov. You may also get this form by calling 800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/EIN. Go to www.irs.gov/Forms to view, download, or print Form W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderForms to place an order and have Form W-7 and/or Form SS-4 mailed to you within 15 business days. If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and enter “Applied For” in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, you will generally have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester. Note: Entering “Applied For” means that you have already applied for a TIN or that you intend to apply for one soon. See also Establishing U.S. status for purposes of chapter 3 and chapter 4 withholding, earlier, for when you may instead be subject to withholding under chapter 3 or 4 of the Code. Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8
Part II. Certification To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4, or 5 below indicates otherwise. For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must sign. Exempt payees, see Exempt payee code, earlier. Signature requirements. Complete the certification as indicated in items 1 through 5 below. 1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification. 2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form. 3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification. 4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. “Other payments” include payments made in the course of the requester’s trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third-party network transactions, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations). 5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), ABLE accounts (under section 529A), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification. What Name and Number To Give the Requester For this type of account: Give name and SSN of: 1. Individual The individual 2. Two or more individuals (joint account) other than an account maintained by an FFI The actual owner of the account or, if combined funds, the first individual on the account1 3. Two or more U.S. persons (joint account maintained by an FFI) Each holder of the account 4. Custodial account of a minor (Uniform Gift to Minors Act) The minor2 5. a. The usual revocable savings trust (grantor is also trustee) The grantor-trustee1 b. So-called trust account that is not a legal or valid trust under state law The actual owner1 6. Sole proprietorship or disregarded entity owned by an individual The owner3 7. Grantor trust filing under Optional Filing Method 1 (see Regulations section 1.671-4(b)(2)(i)(A))** The grantor* For this type of account: Give name and EIN of: 8. Disregarded entity not owned by an individual The owner 9. A valid trust, estate, or pension trust Legal entity4 10. Corporation or LLC electing corporate status on Form 8832 or Form 2553 The corporation 11. Association, club, religious, charitable, educational, or other tax-exempt organization The organization 12. Partnership or multi-member LLC The partnership 13. A broker or registered nominee The broker or nominee 14. Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments The public entity 15. Grantor trust filing Form 1041 or under the Optional Filing Method 2, requiring Form 1099 (see Regulations section 1.671-4(b)(2)(i)(B))** The trust 1 List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person’s number must be furnished. 2Circle the minor’s name and furnish the minor’s SSN. 3You must show your individual name on line 1, and enter your business or DBA name, if any, on line 2. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN. 4 List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) *Note: The grantor must also provide a Form W-9 to the trustee of the trust. **For more information on optional filing methods for grantor trusts, see the Instructions for Form 1041. Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed. Secure Your Tax Records From Identity Theft Identity theft occurs when someone uses your personal information, such as your name, SSN, or other identifying information, without your permission to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund. To reduce your risk: • Protect your SSN, • Ensure your employer is protecting your SSN, and • Be careful when choosing a tax return preparer. If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter. If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity, or a questionable credit report, contact the IRS Identity Theft Hotline at 800-908-4490 or submit Form 14039. For more information, see Pub. 5027, Identity Theft Information for Taxpayers
The Letter of Transmittal, certificates for shares and any other required documents should be sent or delivered by each shareholder of the Company or such shareholder’s bank, broker, dealer, trust company or other nominee to the Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
Computershare Trust Company, N.A.
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By Registered, Certified or Express Mail or Overnight Courier: Computershare Trust Company, N.A. c/o Voluntary Corporate Actions, 150 Royall Street, Suite V Canton, MA 02021
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By Mail: Computershare Trust Company, N.A. c/o Voluntary Corporate Actions, P.O. Box 43011 Providence, RI 02940-3011
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Delivery of this Letter of Transmittal to an address other than as set forth above will not constitute a valid delivery to the Depositary.
Questions and requests for assistance may be directed to the Information Agent or the Dealer Manager at their respective addresses set forth below. Additional copies of the Offer to Purchase, this Letter of Transmittal and the Notice of Guaranteed Delivery may be obtained from the Information Agent. You may also contact your bank, broker, dealer, trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
Georgeson LLC
1290 Avenue of the Americas, 9th Floor
New York, NY 10104
Shareholders, Banks and Brokers call toll-free: (866) 356-2715
The Dealer Manager for the Offer is:
BTG Pactual US Capital, LLC
601 Lexington Avenue, 57th Floor
New York, NY 10022
Attn: Equity Capital Markets
Collect: +1 (212) 293-4600
Email: ol-ecm@btgpactual.com
Exhibit (a)(1)(C)
NOTICE OF GUARANTEED DELIVERY
(Not to be used for Signature Guarantee)
for
Tender of Common Shares
of
GEOPARK LIMITED
Pursuant to its Offer to Purchase Dated March 20, 2024
For Cash up to U.S.$50,000,000 of Common Shares
At a Per Share Purchase Price Not Greater Than U.S.$10.00 Nor Less Than U.S.$9.00 Per Share
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON APRIL 17, 2024, UNLESS THE OFFER IS EXTENDED.
As set forth in Section 3 of the Offer to Purchase (as defined below) this form must be used to accept the Offer (as defined below) if (1) certificates representing your common shares, par value U.S.$0.001 per share of GeoPark Limited, an exempted company limited by shares incorporated under the laws of Bermuda, are not immediately available or cannot be delivered to the Depositary prior to the Expiration Time (as defined in the Offer to Purchase), (2) the procedures for book-entry transfer cannot be completed before the Expiration Time or (3) time will not permit all required documents to reach the Depositary prior to the Expiration Time. This form may be delivered by hand or transmitted by facsimile transmission or mail to the Depositary. See Section 3 of the Offer to Purchase. Unless the context otherwise requires, all references to the shares shall refer to the common shares of the Company.
The Depositary for the Offer is:
Computershare Trust Company, N.A.
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By Registered, Certified or Express Mail or Overnight Courier: Computershare Trust Company, N.A. c/o Voluntary Corporate Actions, 150 Royall Street, Suite V Canton, MA 02021
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By Email Transmission
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By Mail: Company, N.A. c/o Voluntary Corporate Actions, P.O. Box 43011 Providence, RI 02940-3011 |
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This Notice is not to be used to guarantee signatures. If a signature on a Letter of Transmittal is required to be guaranteed by an eligible institution under the instructions in the Letter of Transmittal, the signature guarantee must appear in the applicable space provided in the signature box on the Letter of Transmittal.
Corporate Actions Voluntary GPKL
Ladies and Gentlemen:
The undersigned hereby tenders to GeoPark Limited, an exempted company limited by shares incorporated under the laws of Bermuda (the “Company”), on the terms and subject to the conditions set forth in the Offer to Purchase dated March 20, 2024 (the “Offer to Purchase”), and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”), receipt of which is hereby acknowledged, the number of shares set forth below, all pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Unless the context otherwise requires, all references to the shares shall refer to the common shares of the Company.
Number of shares to be tendered: __________ shares*
* Unless otherwise indicated, it will be assumed that all shares held by the undersigned are to be tendered.
CHECK ONLY ONE BOX. IF MORE THAN ONE BOX IS CHECKED BELOW, THERE IS NO PROPER TENDER OF SHARES. IF NO BOX IS CHECKED, YOU WILL BE DEEMED TO HAVE MADE A PURCHASE PRICE TENDER.
SHARES
TENDERED AT A PRICE DETERMINED PURSUANT TO THE OFFER
(See Instruction 3 of the Letter of Transmittal)
| ☐ | The undersigned wishes to maximize the chance of having GeoPark Limited purchase all of the shares the undersigned is tendering (subject to the possibility of proration). Accordingly, by checking this ONE box INSTEAD OF ONE OF THE BOXES BELOW, the undersigned hereby tenders shares at and is willing to accept the Purchase Price determined by GeoPark Limited pursuant to the Offer. Note that this election may lower the Purchase Price paid for all purchased shares in the Offer and could result in the tendered shares being purchased at a price as low as U.S.$9.00 per share (the minimum Purchase Price in the Offer). |
— OR —
SHARES TENDERED AT A PRICE DETERMINED BY SHAREHOLDER
(See Instruction 3 of the Letter of Transmittal)
By checking ONE, and only ONE, of the boxes below INSTEAD OF THE BOX ABOVE, the undersigned hereby tenders shares at the price checked. This action could result in none of the shares being purchased if the Purchase Price for the shares is less than the price checked. If the Purchase Price for the shares is equal to or greater than the price checked, then the shares purchased by GeoPark Limited will be purchased at the Purchase Price. A shareholder who wishes to tender shares at more than one price must complete a separate Notice of Guaranteed Delivery and/or Letter of Transmittal for each price at which shares are being tendered. The same shares cannot be tendered (unless previously properly withdrawn in accordance with the terms of the Offer) at more than one price.
PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED
| ☐ U.S.$9.00 | ☐ U.S.$9.10 | ☐ U.S.$9.20 |
| ☐ U.S.$9.30 | ☐ U.S.$9.40 | ☐ U.S.$9.50 |
| ☐ U.S.$9.60 | ☐ U.S.$9.70 | ☐ U.S.$9.80 |
| ☐ U.S.$9.90 | ☐ U.S.$10.00 |
Corporate Actions Voluntary GPKL
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ODD LOTS
(See Instruction 13 of the Letter of Transmittal)
To be completed only if shares are being tendered by or on behalf of a person owning, beneficially or of record, an aggregate of fewer than 100 shares. The undersigned either (check one box):
| ☐ | is the beneficial or record owner of an aggregate of fewer than 100 shares, all of which are being tendered; or |
| ☐ | is a broker, dealer, commercial bank, trust company, or other nominee that (a) is tendering for the beneficial owner(s), shares with respect to which it is the record holder, and (b) believes, based upon representations made to it by the beneficial owner(s), that each such person is the beneficial owner of an aggregate of fewer than 100 shares and is tendering all of the shares. |
CONDITIONAL TENDER
(See Instruction 12 of the Letter of Transmittal)
A tendering shareholder may condition his or her tender of shares upon the Company purchasing a specified minimum number of the shares tendered, all as described in Section 6 of the Offer to Purchase. Unless at least the minimum number of shares you indicate below is purchased by the Company pursuant to the terms of the Offer, none of the shares tendered by you will be purchased. It is the tendering shareholder’s responsibility to calculate the minimum number of shares that must be purchased if any are purchased, and each shareholder is urged to consult his or her own tax advisor before completing this section. Unless this box has been checked and a minimum specified, your tender will be deemed unconditional.
| ☐ | The minimum number of shares that must be purchased from me, if any are purchased from me, is: _______________ shares. |
| ☐ | If, because of proration, the minimum number of shares designated will not be purchased, the Company may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, the tendering shareholder must have tendered all of his or her shares and checked this box: |
| ☐ | The tendered shares represent all shares held by the undersigned. |
Corporate Actions Voluntary GPKL
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| Certificate Nos. (if available): |
| Name(s) of Record Holder(s): | |
| (Please Type or Print) | |
| Address(es): | |
| Zip Code: |
| Daytime Area Code and Telephone Number: |
| Signature(s): | |
Dated:
If shares will be tendered by book-entry transfer, check this box ☐ and provide the following information:
| Name of Tendering Institution: |
| Account Number at Book-Entry Transfer Facility: |
THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED.
GUARANTEE
(Not To Be Used For Signature Guarantee)
The undersigned, a firm that is a member in good standing of a recognized Medallion Program approved by the Securities Transfer Association, Inc., including the Securities Transfer Agents Medallion Program, the New York Stock Exchange, Inc. Medallion Signature Program or the Stock Exchange Medallion Program, or is otherwise an “eligible guarantor institution,” as that term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), hereby guarantees (1) that the above named person(s) “own(s)” the shares tendered hereby within the meaning of Rule 14e-4 under the Exchange Act, (2) that such tender of shares complies with Rule 14e-4 under the Exchange Act and (3) to deliver to the Depositary either the certificates representing the shares tendered hereby, in proper form for transfer, or a book-entry confirmation (as defined in the Offer to Purchase) with respect to such shares, in any such case together with a properly completed and duly executed Letter of Transmittal, with any required signature guarantees, or an agent’s message (as defined in the Offer to Purchase) in the case of a book-entry delivery, and any other required documents, within two trading days (as defined in the Offer to Purchase) after the date hereof.
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The eligible institution that completes this form must communicate the guarantee to the Depositary and must deliver the Letter of Transmittal and certificates for shares to the Depositary within the time period shown herein. Failure to do so could result in financial loss to such eligible institution.
| Name of Firm: |
| Authorized Signature: |
| Name: | |
| (Please Type or Print) | |
| Title: |
| Address: |
| Zip Code: |
| Area Code and Telephone Number: |
Dated:
Note: Do not send certificates for shares
with this Notice.
Certificates for Shares should be sent with your Letter of Transmittal.
Corporate Actions Voluntary GPKL
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Exhibit (a)(1)(D)
Offer to Purchase for Cash
by
GEOPARK LIMITED
of
Up to U.S.$50,000,000 of its Common Shares
at a Per Share Purchase Price Not Greater Than
U.S.$10.00 Nor Less Than U.S.$9.00 Per Common Share
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON APRIL 17, 2024, UNLESS THE OFFER IS EXTENDED.
March 20, 2024
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by GeoPark Limited, an exempted company limited by shares incorporated under the laws of Bermuda (the “Company”), to act as Dealer Manager in connection with its offer to purchase for cash up to U.S.$50,000,000 of its common shares, U.S.$0.001 par value per share, pursuant to (i) auction tenders at prices specified by the tendering shareholders of not greater than U.S.$10.00 nor less than U.S.$9.00 per share (“Auction Tenders”) or (ii) purchase price tenders (“Purchase Price Tenders”) at the purchase price determined as provided herein, in either case in cash, less any applicable withholding taxes and without interest, and upon the terms and subject to the conditions described in this Offer to Purchase and in the related Letter of Transmittal (the “Letter of Transmittal” and, together with this Offer to Purchase, as they may be amended or supplemented from time to time, the “Offer”). Please furnish copies of the enclosed materials to those of your clients for whom you hold shares registered in your name or in the name of your nominee. Unless the context otherwise requires, all references to the shares shall refer to the common shares of the Company.
After the Expiration Time, the Company will, upon the terms and subject to the conditions of the Offer, determine a single per Share price, which will not be greater than U.S.$10.00 nor less than U.S.$9.00 per share, that it will pay for shares properly tendered and not properly withdrawn from the Offer, taking into account the number of shares tendered and the prices specified by tendering shareholders. The Company will select the single lowest price per share (in multiples of U.S.$0.10) of not greater than U.S.$10.00 nor less than U.S.$9.00 per share (the “Purchase Price”) that will allow it to purchase the maximum number of shares properly tendered in the Offer and not properly withdrawn having an aggregate purchase price not exceeding U.S.$50,000,000 Shares tendered pursuant to Purchase Price Tenders will be deemed to have been tendered at a price of U.S.$9.00 per share (which is the minimum price per Share under the Offer) for purposes of determining the Purchase Price. Only shares properly tendered at prices at or below the Purchase Price, and not properly withdrawn, will be eligible for purchase in the Offer. Shares properly tendered pursuant to an Auction Tender at a price that is greater than the Purchase Price we determine pursuant to the terms of the Offer will not be purchased. Upon the terms and subject to the conditions of the Offer, if Shares having an aggregate purchase price of less than U.S.$50,000,000 are properly tendered and not properly withdrawn, the Company will buy all the shares properly tendered and not properly withdrawn.
In addition, the Company has reserved the right, if more than U.S.$50,000,000 in value of shares are tendered in the Offer at or below the Purchase Price, to accept for purchase at the Purchase Price pursuant to the Offer up to an additional 2.0% of its outstanding Shares without extending the Expiration Time.
All shares acquired in the Offer will be acquired at the same price regardless of whether the shareholder tendered at a lower price. However, because of the proration, “odd lot” priority and conditional tender provisions described in the Offer to Purchase, all of the Shares tendered at or below the Purchase Price may not be purchased if, based on the Purchase Price, shares having an aggregate purchase price in excess of U.S.$50,000,000 are properly tendered and not properly withdrawn. Shares tendered but not purchased in the Offer will be returned to the tendering shareholders at the Company’s expense promptly after the Expiration Time.
On the terms and subject to the conditions of the Offer, if shares having an aggregate purchase price of more than U.S.$50,000,000 (or such greater aggregate purchase price of shares as the Company may elect to purchase, subject to applicable law) are properly tendered and not properly withdrawn, the Company will purchase shares at the Purchase Price in the following order of priority: First, the Company will purchase all “odd lots” of fewer than 100 shares at the Purchase Price from shareholders who properly tender all of their shares owned beneficially or of record by such odd lot holder at or below the Purchase Price and who do not properly withdraw them before the Expiration Time (tenders of fewer than all of the Shares owned, beneficially or of record, by such odd lot shareholders will not qualify for this preference);
Second, after purchasing all the odd lots that were properly tendered at or below the Purchase Price, subject to the conditional tender provisions described in Section 6 of the Offer to Purchase, the Company will purchase shares at the Purchase Price from all other holders who properly tender shares at or below the Purchase Price and who do not properly withdraw them before the Expiration Time (except for shareholders who tendered Shares conditionally for which the condition was not satisfied), on a pro rata basis, with appropriate adjustments to avoid purchases of fractional shares, until the Company has acquired Shares having an aggregate purchase price of U.S.$50,000,000 (or such greater aggregate purchase price of shares as the Company may elect to purchase, subject to applicable law); and
Third, only if necessary to permit the Company to purchase shares having an aggregate purchase price of U.S.$50,000,000 (or such greater aggregate purchase price of shares as the Company may elect to purchase, subject to applicable law), the Company will purchase shares at the Purchase Price from shareholders who have properly tendered Shares at or below the Purchase Price conditionally (for which the condition was not initially satisfied) by random lot, to the extent feasible. To be eligible for purchase by random lot, shareholders whose shares are conditionally tendered must have properly tendered all of their Shares and not properly withdrawn them before the Expiration Time.
Enclosed with this letter are copies of the following documents:
1. Offer to Purchase dated March 20, 2024;
2. Letter of Transmittal, for your use in accepting the Offer and tendering shares of and for the information of your clients;
3. A form of letter that may be sent to your clients for whose account you hold shares registered in your name or in the name of a nominee, with an Instruction Form provided for obtaining such client’s instructions with regard to the Offer;
4. Notice of Guaranteed Delivery with respect to shares, to be used to accept the Offer in the event you are unable to deliver the share certificates, together with all other required documents, to the Depositary before the Expiration Time, or if the procedure for book-entry transfer cannot be completed before the Expiration Time; and
5. Return envelope addressed to Computershare Trust Company, N.A. as the Depositary.
The Offer is not conditioned on the receipt of financing or any minimum value or number of Shares being tendered. The Offer, however, is subject to other conditions set forth in Section 7 of the Offer to Purchase. The Company’s obligation to accept and pay for Shares properly tendered at or below the Purchase Price and not properly withdrawn pursuant to the Offer is conditioned upon satisfaction or waiver of these conditions.
We urge you to contact your clients as promptly as possible. Please note that the Offer, proration period and withdrawal rights will expire at 5:00 p.m., New York City time, on April 17, 2024, unless the Offer is extended.
Under no circumstances will interest be paid on the purchase price of the shares regardless of any extension of, or amendment to, the Offer or any delay in paying for such shares.
The Company will not pay any fees or commissions to any broker or dealer or other person (other than the fees of the Dealer Manager, the Information Agent and the Depositary, as described in the Offer to Purchase) in connection with the solicitation of tenders of shares pursuant to the Offer. However, the Company will, on request,
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reimburse you for customary mailing and handling expenses incurred by you in forwarding copies of the enclosed Offer materials to your clients. The Company will pay or cause to be paid any stock transfer taxes applicable to its purchase of shares pursuant to the Offer, except as otherwise provided in the Offer to Purchase and Letter of Transmittal (see Instruction 6 of the Letter of Transmittal).
THE COMPANY’S BOARD OF DIRECTORS HAS AUTHORIZED THE COMPANY TO MAKE THE OFFER. HOWEVER, NEITHER THE COMPANY NOR THE COMPANY’S BOARD OF DIRECTORS NOR THE DEALER MANAGER, INFORMATION AGENT OR DEPOSITARY MAKES ANY RECOMMENDATION TO ANY SHAREHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING SHARES OR AS TO THE PRICE OR PRICES AT WHICH SHAREHOLDERS MAY CHOOSE TO TENDER THEM. SHAREHOLDERS MUST MAKE THEIR OWN DECISION AS TO WHETHER TO TENDER THEIR SHARES AND, IF SO, HOW MANY SHARES TO TENDER AND THE PRICE OR PRICES AT WHICH THEY WILL TENDER THEM. IN DOING SO, SHAREHOLDERS SHOULD READ CAREFULLY THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL, INCLUDING THE PURPOSES AND EFFECTS OF THE OFFER. SEE SECTION 2 OF THE OFFER TO PURCHASE. SHAREHOLDERS SHOULD DISCUSS WHETHER TO TENDER THEIR SHARES WITH THEIR BROKER, IF ANY, AND/OR OTHER FINANCIAL OR TAX ADVISOR.
Questions and requests for additional copies of the enclosed material may be directed to the Dealer Manager or the Information Agent at their respective addresses and telephone numbers set forth on the back cover of the Offer to Purchase.
| Very truly yours, BTG Pactual US Capital, LLC as Dealer Manager |
NOTHING CONTAINED IN THIS LETTER OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR ANY OTHER PERSON THE AGENT OF THE COMPANY, THE DEPOSITARY, THE DEALER MANAGER, THE INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THEM OR AUTHORIZE YOU OR ANY OTHER PERSON TO GIVE ANY INFORMATION OR USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM WITH RESPECT TO THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
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Exhibit (a)(1)(E)
Offer to Purchase for Cash
by
GEOPARK LIMITED
of
Up to U.S.$50,000,000 of its Common Shares
at a Per Share Purchase Price Not Greater Than
U.S.$10.00 Nor Less Than U.S.$9.00 Per Common Share
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON APRIL 17, 2024, UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated March 20, 2024 (the “Offer to Purchase”), and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”), in connection with the offer by GeoPark Limited, an exempted company limited by shares incorporated under the laws of Bermuda (the “Company”), to purchase for cash up to U.S.$50,000,000 of its shares, U.S.$0.001 par value per share, pursuant to (i) auction tenders at prices specified by the tendering shareholders of not greater than U.S.$10.00 nor less than U.S.$9.00 per share (“Auction Tenders”) or (ii) purchase price tenders (“Purchase Price Tenders”) at the purchase price determined as provided herein, in either case in cash, less any applicable withholding taxes and without interest, and upon the terms and subject to the conditions described in this Offer to Purchase and in the related Letter of Transmittal (the “Letter of Transmittal” and, together with this Offer to Purchase, as they may be amended or supplemented from time to time, the “Offer”). Unless the context otherwise requires, all references to the shares shall refer to the common shares of the Company.
After the Expiration Time, the Company will, upon the terms and subject to the conditions of the Offer, determine a single per Share price, which will not be greater than U.S.$10.00 nor less than U.S.$9.00 per share, that it will pay for shares properly tendered and not properly withdrawn from the Offer, taking into account the number of shares tendered and the prices specified by tendering shareholders. The Company will select the single lowest price per share (in multiples of U.S.$0.10) of not greater than U.S.$10.00 nor less than U.S.$9.00 per share (the “Purchase Price”) that will allow it to purchase the maximum number of shares properly tendered in the Offer and not properly withdrawn having an aggregate purchase price not exceeding U.S.$50,000,000. Shares tendered pursuant to Purchase Price Tenders will be deemed to have been tendered at a price of U.S.$9.00 per share (which is the minimum price per share under the Offer) for purposes of determining the Purchase Price. Only shares properly tendered at prices at or below the Purchase Price, and not properly withdrawn, will be eligible for purchase in the Offer. Shares properly tendered pursuant to an Auction Tender at a price that is greater than the Purchase Price we determine pursuant to the terms of the Offer will not be purchased. Upon the terms and subject to the conditions of the Offer, if shares having an aggregate purchase price of less than U.S.$50,000,000 are properly tendered and not properly withdrawn, the Company will buy all the shares properly tendered and not properly withdrawn.
In addition, the Company has reserved the right, if more than U.S.$50,000,000 in value of shares are tendered in the Offer at or below the Purchase Price, to accept for purchase at the Purchase Price pursuant to the Offer up to an additional 2.0% of its outstanding Shares without extending the Expiration Time.
All shares acquired in the Offer will be acquired at the same price regardless of whether the shareholder tendered at a lower price. However, because of the proration, “odd lot” priority and conditional tender provisions described in the Offer to Purchase, all of the Shares tendered at or below the Purchase Price may not be purchased if, based on the Purchase Price, shares having an aggregate purchase price in excess of U.S.$50,000,000 are properly tendered and not properly withdrawn. Shares tendered but not purchased in the Offer will be returned to the tendering shareholders at the Company’s expense promptly after the Expiration Time.
On the terms and subject to the conditions of the Offer, if shares having an aggregate purchase price of more than U.S.$50,000,000 (or such greater aggregate purchase price of shares as the Company may elect to purchase,
subject to applicable law) are properly tendered and not properly withdrawn, the Company will purchase shares at the Purchase Price in the following order of priority:
First, the Company will purchase all “odd lots” of fewer than 100 shares at the Purchase Price from shareholders who properly tender all of their shares owned at or below the Purchase Price and who do not properly withdraw them before the Expiration Time (tenders of fewer than all of the shares owned, beneficially or of record, by such odd lot holder will not qualify for this preference);
Second, after purchasing all the odd lots that were properly tendered at or below the Purchase Price, subject to the conditional tender provisions described in Section 6 of the Offer to Purchase, the Company will purchase shares at the Purchase Price from all other holders who properly tender shares at or below the Purchase Price and who do not properly withdraw them before the Expiration Time (except for shareholders who tendered Shares conditionally for which the condition was not satisfied), on a pro rata basis, with appropriate adjustments to avoid purchases of fractional Shares, until the Company has acquired shares having an aggregate purchase price of U.S.$50,000,000 (or such greater aggregate purchase price of shares as the Company may elect to purchase, subject to applicable law); and
Third, only if necessary to permit the Company to purchase shares having an aggregate purchase price of U.S.$50,000,000 (or such greater aggregate purchase price of shares as the Company may elect to purchase, subject to applicable law), the Company will purchase shares at the Purchase Price from shareholders who have properly tendered Shares at or below the Purchase Price conditionally (for which the condition was not initially satisfied) by random lot, to the extent feasible. To be eligible for purchase by random lot, shareholders whose shares are conditionally tendered must have properly tendered all of their Shares and not properly withdrawn them before the Expiration Time.
We are the owner of record of shares held for your account. As such, we are the only ones who can tender your shares, and then only pursuant to your instructions. We are sending you the Letter of Transmittal for your information only; you cannot use it to tender shares we hold for your account.
Please instruct us as to whether you wish us to tender any or all of the shares we hold for your account on the terms and subject to the conditions of the Offer.
Please note the following:
1. Shares may be tendered at a price not greater than U.S.$10.00 nor less than U.S.$9.00 per share or at the price determined pursuant to the Offer, as indicated in the attached Instruction Form, in cash, less any applicable withholding taxes and without interest.
2. You should consult with your broker or other financial or tax advisor on the possibility of designating the priority in which your shares will be purchased in the event of proration.
3. The Offer is not conditioned on the receipt of financing or any minimum number of shares being tendered. However, the Offer is subject to other conditions. The Company’s obligation to accept and pay for shares properly tendered at or below the Purchase Price and not properly withdrawn pursuant to the Offer is conditioned upon satisfaction or waiver of these conditions. See Section 7 of the Offer to Purchase.
4. The Offer, withdrawal rights and proration period will expire at 5:00 p.m., New York City time, on April 17, 2024, unless the Company extends the Offer.
5. The Offer is for Shares having an aggregate purchase price of U.S.$50,000,000 which, if fully subscribed and depending on the Purchase Price determined in the Offer, constitutes approximately 9.01% to 10.02% of the Company’s issued and outstanding shares as of March 19, 2024 based on the maximum Purchase Price of U.S.$10.00 per share and the minimum Purchase Price of U.S.$9.00 per share, respectively.
6. Tendering shareholders who are registered shareholders or who tender their shares directly to the Depositary will not be obligated to pay any brokerage commissions or fees to the Company, solicitation fees or, except as set forth in the Offer to Purchase and the Letter of Transmittal, stock transfer taxes on the Company’s purchase of shares under the Offer.
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7. If you are an Odd Lot Holder and you instruct us to tender on your behalf all of the shares that you own before the expiration of the Offer and check the box captioned “Odd Lots” on the attached Instruction Form, the Company, on the terms and subject to the conditions of the Offer, will accept all such shares for purchase before proration, if any, of the purchase of other shares properly tendered and not properly withdrawn.
8. If you wish to condition your tender upon the purchase of all shares tendered or upon the Company’s purchase of a specified minimum number of the shares which you tender, you may elect to do so and thereby avoid possible proration of your tender. The Company’s purchase of shares from all tenders which are so conditioned, to the extent necessary, will be determined by random lot. To elect such a condition, complete the section captioned “Conditional Tender” in the attached Instruction Form.
If you wish to have us tender any or all of your shares, please so instruct us by completing, executing, detaching and returning to us the attached Instruction Form. If you authorize us to tender your shares, we will tender all your shares unless you specify otherwise on the attached Instruction Form.
Your prompt action is requested. Your Instruction Form should be forwarded to us in ample time to permit us to submit a tender on your behalf before the Expiration Time of the Offer. Please note that the Offer, proration period and withdrawal rights will expire at 5:00 p.m., New York City time, on April 17, 2024, unless the Offer is extended.
The Offer is being made solely under the Offer to Purchase and the related Letter of Transmittal and is being made to all record holders of the Company’s shares. The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of shares residing in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. In any jurisdiction where the securities or blue sky laws require the Offer to be made by a licensed broker or dealer, the Offer is being made on our behalf by BTG Pactual US Capital, LLC, the Dealer Manager for the Offer, or one or more registered brokers or dealers, which are licensed under the laws of such jurisdiction.
The Company’s Board of Directors has approved making the Offer. However, neither the Company nor any member of its Board of Directors, the Dealer Manager, the Information Agent or the Depositary makes any recommendation to shareholders as to whether they should tender or refrain from tendering their shares. Shareholders must make their own decision as to whether to tender their shares and, if so, how many shares to tender. In doing so, shareholders should read carefully the information in the Offer to Purchase and in the related Letter of Transmittal, including the Company’s reasons for making the Offer. See Section 2 of the Offer to Purchase. Shareholders should discuss whether to tender their shares with their broker or other financial or tax advisor. The Company’s directors and executive officers are entitled to participate in the Offer on the same basis as all other shareholders, subject to applicable law and internal compliance requirements. One of our executive officers has indicated that they intend to tender up to 20,000 shares in the Offer. In addition, after termination of the Offer, the Company’s directors and executive officers may, in compliance with applicable law, sell their shares in open market transactions at prices that may or may not be more favorable than the purchase price to be paid to our shareholders in the Offer. See Section 11 of the Offer to Purchase.
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INSTRUCTION FORM WITH RESPECT TO
Offer to Purchase for Cash
by
GEOPARK LIMITED
of
Up to U.S.$50,000,000 of its Common Shares
at a Per Share Purchase Price Not Greater Than
U.S.$10.00 Nor Less than U.S.$9.00 Per Common Share
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer to Purchase, dated March 20, 2024 (the “Offer to Purchase”), and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”), in connection with the offer by GeoPark Limited, an exempted company limited by shares incorporated under the laws of Bermuda (the “Company”), to purchase for cash up to U.S.$50,000,000 of its common shares (the “shares”), U.S.$0.001 par value per share, pursuant to (i) auction tenders at prices specified by the tendering shareholders of not greater than U.S.$10.00 nor less than U.S.$9.00 per share (“Auction Tenders”) or (ii) purchase price tenders (“Purchase Price Tenders”) at the purchase price determined as provided herein, in either case in cash, less any applicable withholding taxes and without interest, and upon the terms and subject to the conditions described in this Offer to Purchase and in the related Letter of Transmittal. Unless the context otherwise requires, all references to the shares shall refer to the common shares of the Company.
The undersigned hereby instruct(s) you to tender to the Company the number of shares indicated below or, if no number is indicated, all shares you hold for the account of the undersigned, on the terms and subject to the conditions of the Offer.
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Number of shares to be tendered by you for the account of the undersigned: ________________ shares*
* Unless otherwise indicated, it will be assumed that all shares held by us for your account are to be tendered.
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CHECK ONLY ONE BOX. IF MORE THAN ONE BOX IS CHECKED BELOW, THERE IS NO PROPER TENDER OF SHARES. IF NO BOX IS CHECKED, YOU WILL BE DEEMED TO HAVE MADE A PURCHASE PRICE TENDER.
SHARES
TENDERED AT A PRICE DETERMINED PURSUANT TO THE OFFER
☐ The undersigned wishes to maximize the chance of having GeoPark Limited purchase all the shares the undersigned is tendering (subject to the possibility of proration). Accordingly, by checking this ONE box INSTEAD OF ONE OF THE BOXES BELOW, the undersigned hereby tenders shares at and is willing to accept the Purchase Price determined by GeoPark Limited pursuant to the Offer. Note that this election may lower the Purchase Price paid for all purchased shares in the Offer and could result in the tendered shares being purchased at a price as low as U.S.$9.00 per share (the minimum Purchase Price per share).
— OR —
SHARES TENDERED AT A PRICE DETERMINED BY SHAREHOLDER
By checking ONE, and only ONE, of the boxes below INSTEAD OF THE BOX ABOVE, the undersigned hereby tenders shares at the price checked. This action could result in none of the shares being purchased if the Purchase Price for the shares is less than the price checked. If the Purchase Price for the shares is equal to or greater than the price checked, then the shares purchased by GeoPark Limited will be purchased at the Purchase
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Price. A shareholder who wishes to tender shares at more than one price must complete a separate Instruction Form for each price at which shares are being tendered. The same shares cannot be tendered (unless previously properly withdrawn in accordance with the terms of the Offer) at more than one price.
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| ☐ U.S.$9.00 | ☐ U.S.$9.10 | ☐ U.S.$9.20 |
| ☐ U.S.$9.30 | ☐ U.S.$9.40 | ☐ U.S.$9.50 |
| ☐ U.S.$9.60 | ☐ U.S.$9.70 | ☐ U.S.$9.80 |
| ☐ U.S.$9.90 | ☐ U.S.$10.00 |
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ODD LOTS
To be completed only if shares are being tendered by or on behalf of a person owning, beneficially or of record, an aggregate of fewer than 100 shares.
☐ By checking this box, the undersigned represents that the undersigned owns, beneficially or of record, an aggregate of fewer than 100 shares and is tendering all of those shares.
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CONDITIONAL TENDER
A tendering shareholder may condition his or her tender of shares upon the Company purchasing a specified minimum number of the shares tendered, all as described in Section 6 of the Offer to Purchase. Unless at least the minimum number of shares you indicate below is purchased by the Company pursuant to the terms of the Offer, none of the shares tendered by you will be purchased. It is the tendering shareholder’s responsibility to calculate the minimum number of shares that must be purchased if any are purchased, and you are urged to consult your own tax advisor before completing this section. Unless this box has been checked and a minimum specified, the tender will be deemed unconditional.
☐ The minimum number of shares that must be purchased from me, if any are purchased from me, is: ______________ shares.
If, because of proration, the minimum number of shares designated will not be purchased, the Company may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, the tendering shareholder must have tendered all of his or her shares and checked this box:
☐ The tendered shares represent all shares held by the undersigned.
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The method of delivery of this document is at the election and risk of the tendering shareholder. If delivery is by mail, then registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
| Signature(s): |
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| Name(s): | |
| (Please Print) | |
| Taxpayer Identification or Social Security Number: |
| Address(es): | |
| (Including Zip Code) | |
| Area Code/Phone Number: |
| Date: |
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Exhibit (a)(1)(F)
| FOR IMMEDIATE DISTRIBUTION |
GEOPARK ANNOUNCES COMMENCEMENT OF TENDER OFFER TO PURCHASE UP TO U.S.$50,000,000 OF ITS COMMON SHARES AT PRICE NOT GREATER THAN U.S.$10.00 NOR LESS THAN U.S.$9.00 PER COMMON SHARE
Bogota, Colombia – March 20, 2024 - GeoPark Limited (“GeoPark” or the “Company”) (NYSE: GPRK), a leading independent Latin American oil and gas explorer, operator and consolidator, today announced that it has commenced a tender offer to purchase up to U.S.$50,000,000 of its common shares, or the shares, at (i) prices specified by the tendering shareholders of not greater than U.S.$10.00 nor less than U.S.$9.00 per common share or (ii) at the purchase price determined in accordance with the tender offer. The NYSE closing price of the shares on March 19, 2024, the last full trading day before the commencement of the tender offer, was U.S.$9.46 per share.
When the tender offer expires, GeoPark will determine the lowest price per share within the range of prices specified above that will enable it to purchase the maximum number of shares having an aggregate purchase price not exceeding U.S.$50,000,000. All shares purchased in the tender offer will be purchased at the same price. All shares tendered at prices higher than the purchase price will be promptly returned to shareholders. If the tender offer is fully subscribed, GeoPark would repurchase between 9.01% and 10.02% of its issued and outstanding shares as of March 19, 2024, depending on the purchase price payable in the tender offer.
The tender offer will expire at 5:00 p.m., New York City time, on April 17, 2024, unless extended by GeoPark. Tenders of shares must be made on or prior to the expiration of the tender offer and may be withdrawn at any time on or prior to the expiration of the tender offer. The tender offer is subject to a number of terms and conditions described in the Offer to Purchase that is being distributed to shareholders.
Shareholders will receive the purchase price in cash, subject to applicable withholding and without interest, for shares tendered at prices equal to or less than the purchase price, subject to the conditions of the tender offer, including the provisions relating to proration, “odd lot” priority and conditional tenders in the event that the aggregate cost to purchase all of the shares validly tendered and not validly withdrawn at or below the purchase price exceeds U.S.$50,000,000. Those provisions will be described in the Offer to Purchase, the related Letter of Transmittal and other materials relating to the tender offer that will be distributed to shareholders upon commencement of the offer. The tender offer will not be conditioned upon any minimum number of shares being tendered. The tender offer will, however, be subject to certain conditions described in the tender offer documents. The tender offer documents will also contain tendering instructions and a complete explanation of the tender offer’s terms and conditions.
GeoPark will use a portion of its cash and investments to fund the tender offer.
The Dealer Manager for the Offer is BTG Pactual US Capital, LLC. The Information Agent for the tender offer is Georgeson LLC. The Depositary is Computershare Trust Company, N.A. The Offer to Purchase, Letter of Transmittal and related documents are being mailed to shareholders of record and also will be made available for distribution to beneficial owners of common shares. For questions and information, please call the Information Agent toll free at (866) 356-2715 or the Dealer Manager at (212) 293-4600.
None of GeoPark, its Board of Directors, the Dealer Manager, the Information Agent or the Depositary is making any recommendations to shareholders as to whether to tender or refrain from tendering their shares into the tender offer. Shareholders must make their own decisions as to how many shares they will tender, if any. In so doing, shareholders should read and evaluate carefully the information in the Offer to Purchase and in the related Letter of Transmittal.
NOTICE
THIS PRESS RELEASE IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE AN OFFER TO BUY OR THE SOLICITATION OF AN OFFER TO SELL GEOPARK LIMITED’S COMMON SHARES. THE TENDER OFFER IS BEING MADE ONLY PURSUANT TO THE OFFER TO
PURCHASE, LETTER OF TRANSMITTAL AND RELATED MATERIALS THAT GEOPARK WILL SHORTLY BE DISTRIBUTING TO ITS SHAREHOLDERS AND FILING WITH THE SECURITIES AND EXCHANGE COMMISSION. SHAREHOLDERS AND INVESTORS SHOULD READ CAREFULLY THE OFFER TO PURCHASE, LETTER OF TRANSMITTAL AND RELATED MATERIALS BECAUSE THEY CONTAIN IMPORTANT INFORMATION, INCLUDING THE VARIOUS TERMS OF, AND CONDITIONS TO, THE TENDER OFFER. SHAREHOLDERS AND INVESTORS MAY OBTAIN A FREE COPY OF THE TENDER OFFER STATEMENT ON SCHEDULE TO, THE OFFER TO PURCHASE, LETTER OF TRANSMITTAL AND OTHER DOCUMENTS THAT GEOPARK WILL SHORTLY BE FILING WITH THE SECURITIES AND EXCHANGE COMMISSION AT THE COMMISSION’S WEBSITE AT WWW.SEC.GOV OR BY CALLING GEORGESON LLC, THE INFORMATION AGENT FOR THE TENDER OFFER, TOLL-FREE AT (866) 356-2715. SHAREHOLDERS ARE URGED TO CAREFULLY READ THESE MATERIALS PRIOR TO MAKING ANY DECISION WITH RESPECT TO THE TENDER OFFER.
CAUTIONARY STATEMENTS RELEVANT TO FORWARD-LOOKING INFORMATION
All statements contained in this press release, other than statements of historical fact, are forward-looking statements including those regarding the expected timing of the tender offer described in this press release. These statements speak only as of the date of this press release and are based on our current plans and expectations and involve risks and uncertainties that could cause actual future events or results to be different from those described in or implied by such forward-looking statements, including risks and uncertainties regarding: changes in financial markets; changes in economic, political or regulatory conditions or other trends affecting the ethanol, sugar and logistics industries; and changes in facts and circumstances and other uncertainties concerning the completion of the tender offer. Further information about these matters can be found in our Securities and Exchange Commission filings. Except as required by applicable law or regulation, we do not undertake any obligation to update our forward-looking statements to reflect future events or circumstances.
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Exhibit (a)(1)(G)
This announcement is neither an offer to purchase nor a solicitation of an offer to sell shares. The Offer (as defined below) is made solely by the Offer to Purchase, dated March 20, 2024, and the related Letter of Transmittal, and any amendments or supplements thereto. The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of common shares in any jurisdiction in which the making or acceptance of offers to sell shares would not be in compliance with the laws of that jurisdiction. In any jurisdiction where the securities or blue sky laws require the Offer to be made by a licensed broker or dealer, the Offer is being made on behalf of GeoPark Limited by the Dealer Manager (as defined below) or one or more registered brokers or dealers, which are licensed under the laws of such jurisdiction.
Notice of Offer
to Purchase for Cash
by
GeoPark Limited
of
Up to U.S.$50,000,000 of its Common Shares
at a Per Share Purchase Price Not Greater Than
U.S.$10.00 Nor Less Than U.S.$9.00 Per Common Share
GeoPark Limited, an exempted company limited by shares incorporated under the laws of Bermuda (the “Company”), is offering to purchase for cash up to U.S.$50,000,000 of its common shares, par value U.S.$0.001 per share (the “shares”), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 20, 2024 (the “Offer to Purchase”), and in the related Letter of Transmittal (the “Letter of Transmittal,” which together, as they may be amended and supplemented from time to time, constitute the “Offer Documents”). The Company is inviting its shareholders to tender their shares pursuant to (i) auction tenders at prices specified by the tendering shareholders of not greater than U.S.$10.00 nor less than U.S.$9.00 per share (“Auction Tenders”) or (ii) purchase price tenders (“Purchase Price Tenders”) at the purchase price determined in accordance with the Offer Documents, in either case in cash, less any applicable withholding taxes and without interest (the “Offer”), and upon the terms and subject to the conditions described in the Offer to Purchase and in the related Letter of Transmittal.
The purpose of the Offer is to provide the Company an opportunity to return capital to its shareholders who elect to tender their shares, subject to the terms and conditions of the Offer Documents. Additionally, shareholders who do not participate in the Offer will automatically increase their relative percentage interest in us and our future operations at no additional cost to them. The Offer also provides shareholders (particularly those who, because of the size of their shareholdings, might not be able to sell their shares without potential disruption to the share price) with an opportunity to obtain liquidity with respect to all or a portion of their shares, without potential disruption to the share price and the usual transaction costs associated with market sales.
The Offer is not conditioned upon obtaining financing or any minimum number of shares being tendered. The Offer is, however, subject to a number of other terms and conditions as specified in Section 7 of the Offer to Purchase.
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS
WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME, ON APRIL 17, 2024,
UNLESS THE OFFER IS EXTENDED.
The Board of Directors of the Company has approved the Offer. However, none of the Company, its Board of Directors, BTG Pactual US Capital, LLC, the Dealer Manager for this Offer (the “Dealer Manager”), the Information Agent or the Depositary is making any recommendation to any shareholder as to whether to tender or refrain from tendering shares, and the Company has not authorized any person to make any such recommendation. Shareholders must make their own decisions as to whether to tender their shares and, if so, how many shares to tender. In so doing, shareholders should read and evaluate carefully the information in the Offer to Purchase and in
the related Letter of Transmittal, including the Company’s reasons for making the Offer, and should consult with their own investment and tax advisors.
The Company will purchase the shares at the single lowest purchase price (in multiples of U.S.$0.10) (the “Purchase Price”) within the specified price range for the Offer that will allow the Company to purchase the maximum number of shares having an aggregate purchase price of U.S.$50,000,000 or, if a lesser number of shares are properly tendered, such lesser number of shares as are properly tendered and not properly withdrawn prior to the “Expiration Time” (as defined below), upon the terms and subject to the conditions of the Offer Documents, including the “odd lot,” proration and conditional tender provisions (as described in the Offer to Purchase). Under no circumstances will the Company pay interest on the purchase price for the shares, regardless of any delay in making payment. The Company reserves the right, in its sole discretion, to purchase more than an aggregate amount of U.S.$50,000,00.00 of shares under the Offer, subject to applicable law.
The term “Expiration Time” means 5:00 p.m., New York City time, on April 17, 2024, unless the Company, in its sole discretion, shall have extended the period of time during which the Offer will remain open, in which event the term “Expiration Time” shall refer to the latest time and date at which the Offer, as so extended by the Company, shall expire.
For a shareholder to make a valid tender of shares under the Offer, (i) Computershare Trust Company, N.A., as the Depositary for the Offer (the “Depositary”), must receive, at one of its addresses set forth on the back cover of the Offer to Purchase and prior to the Expiration Time:
| · | a Letter of Transmittal properly completed and duly executed, together with any required signature guarantees or, in the case of a book-entry transfer, an “agent’s message,” and any other required documents; and |
| · | either certificates representing the tendered shares or, in the case of tendered shares delivered in accordance with the procedures for book-entry transfer we describe below, a book-entry confirmation of that delivery; or |
(ii) the tendering shareholder must, before the Expiration Time, comply with the guaranteed delivery procedures described in the Offer to Purchase.
For purposes of the Offer, the Company will be deemed to have accepted for payment, and therefore purchased, shares properly tendered (and not properly withdrawn), subject to the “odd lot,” proration and conditional tender provisions of the Offer Documents, only when, as and if the Company gives oral or written notice to the Depositary, of its acceptance of such shares for payment under the Offer. The Company will make payment for shares tendered and accepted for payment under the Offer only after timely receipt by the Depositary of certificates for such shares or of timely confirmation of a book-entry transfer of such shares into the Depositary’s account at the “book-entry transfer facility” (as defined in the Offer to Purchase), a properly completed and duly executed Letter of Transmittal or, in the case of a book-entry transfer, an “agent’s message” (as defined in the Offer to Purchase), and any other documents required by the Letter of Transmittal.
In accordance with the rules of the SEC, the Company may, without amending or extending the Offer, increase the amount of shares accepted for payment in the Offer by no more than 2.0% of the number of its issued and outstanding shares, thereby increasing the aggregate purchase price of shares to be purchased in the Offer.
As of March 19, 2024, there were 55,470,850 common shares issued and outstanding. Assuming that the conditions to the Offer are satisfied or waived, at the minimum Purchase Price of U.S.$9.00 per share, the maximum number of shares we will purchase is 5,555,555 if the Offer is fully subscribed and we do not increase the amount of shares sought in the Offer, which would represent approximately 10.02% of our issued and outstanding common shares as of March 19, 2024.
Upon the terms and subject to the conditions of the Offer Documents, if shares having an aggregate purchase price of less than U.S.$50,000,000 are properly tendered and not properly withdrawn, the Company will buy all shares properly tendered and not properly withdrawn. Upon the terms and subject to the conditions of the Offer Documents, if shares having an aggregate purchase price of more than U.S.$50,000,000 (or such greater aggregate purchase price of shares as we
may elect to purchase, subject to applicable law) are properly tendered and not properly withdrawn, the Company will purchase shares in the following order of priority:
| · | First, the Company will purchase all odd lots of fewer than 100 shares at the Purchase Price from shareholders who properly tender all of their shares owned at or below the Purchase Price and who do not properly withdraw them before the Expiration Time (tenders of fewer than all of the shares owned, beneficially or of record, by such odd lot holder will not qualify for this preference). |
| · | Second , after purchasing all the odd lots that were properly tendered at or below the Purchase Price, subject to the conditional tender provisions described in Section 6 of the Offer to Purchase, the Company will purchase shares at the Purchase Price from all other holders who properly tender shares at or below the Purchase Price and who do not properly withdraw them before the Expiration Time (except for shareholders who tendered shares conditionally for which the condition was not satisfied), on a pro rata basis, with appropriate adjustments to avoid purchases of fractional shares, until the Company has acquired shares having an aggregate purchase price of U.S.$50,000,000 (or such greater aggregate purchase price of shares as the Company may elect to purchase, subject to applicable law). |
| · | Third, only if necessary to permit the Company to purchase shares having an aggregate purchase price of U.S.$50,000,000 (or such greater aggregate purchase price of shares as the Company may elect to purchase, subject to applicable law), the Company will purchase shares at the Purchase Price from shareholders who have properly tendered shares at or below the Purchase Price conditionally (for which the condition was not initially satisfied) by random lot, to the extent feasible. To be eligible for purchase by random lot, shareholders whose shares are conditionally tendered must have properly tendered all of their shares and not properly withdrawn them before the Expiration Time. |
Therefore, the Company may not purchase all of the shares that you tender even if you tender them at or below the Purchase Price. As noted above, the Company may elect to purchase shares having an aggregate purchase price of more than U.S.$50,000,000 in the Offer, subject to applicable law. If the Company does so, the preceding provisions will apply to the greater aggregate purchase price.
The Company will return all tendered shares that it has not purchased in the Offer to the tendering shareholders or, in the case of shares delivered by book-entry transfer, will credit the account at the book-entry facility from which the transfer has been previously made at the Company’s expense promptly after the Expiration Time.
The Company expressly reserves the right, in its sole discretion, at any time and from time to time, to extend the period of time during which the Offer is open and thereby delay acceptance for payment of, and payment for, any shares by giving oral or written notice of such extension to the Depositary and making a public announcement thereof no later than 9:00 a.m., New York City time, on the next business day after the last previously scheduled or announced Expiration Time. During any such extension, all shares previously tendered and not properly withdrawn will remain subject to the Offer and to the right of a tendering shareholder to withdraw such shareholder’s shares. The Company also expressly reserves the right to terminate the Offer, as described in the Offer to Purchase. Subject to compliance with applicable law, the Company further reserves the right, regardless of whether any of the circumstances described in the Offer to Purchase shall have occurred or shall be deemed by the Company to have occurred, to amend the Offer in any respect, including without limitation by increasing or decreasing the consideration offered. The Company will announce any such termination or amendment to the Offer by making a public announcement of the termination or amendment in accordance with applicable law.
As of March 19, 2024, the Company had approximately U.S.$153.2 million in cash and investments. The Company will use a portion of its cash and investments to fund the Offer. The Company’s Board of Directors, after evaluating the expected capital requirements of the Company’s operations and other expected cash commitments, believes that purchasing the Company’s shares in the Offer is consistent with our strategic allocation of capital.
Generally, a U.S. shareholder will be subject to U.S. federal income taxation when the shareholder receives cash from the Company in exchange for the shares that the shareholder tenders. Shareholders are strongly encouraged to read the Offer to Purchase for additional information regarding the U.S. federal income tax consequences of participating in the Offer and to consult their tax advisors.
Tenders of shares under the Offer are irrevocable, except that such shares may be withdrawn at any time prior to the Expiration Time, and, unless previously accepted for payment by the Company under the Offer, may also be withdrawn at any time after 5:00 p.m., New York City Time, on May 15, 2024. For such withdrawal to be effective, the Depositary must timely receive a written, telegraphic or facsimile transmission notice of withdrawal at the respective addresses or facsimile number specified for such manner of delivery set forth on the back cover page of the Offer to Purchase. Any such notice of withdrawal must specify the name of the tendering shareholder, the number of shares to be withdrawn and the name of the registered holder of such shares. If the certificates for shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such certificates, the serial numbers shown on such certificates must be submitted to the Depositary and the signature(s) on the notice of withdrawal must be guaranteed by an “eligible institution” (as defined in the Offer to Purchase), unless such shares have been tendered for the account of an eligible institution. If more than one Letter of Transmittal has been used or shares have been otherwise tendered by a shareholder in more than one group of shares, shares may be withdrawn by such shareholder using either separate notices of withdrawal or a combined notice of withdrawal, so long as the information specified above is included. If shares have been tendered pursuant to the procedure for book-entry transfer set forth in the Offer to Purchase, any notice of withdrawal also must specify the name and the number of the account at the book-entry transfer facility to be credited with the withdrawn shares and must otherwise comply with such book-entry transfer facility’s procedures.
The Company will determine, in its sole discretion, all questions as to the form and validity of any notice of withdrawal, including the time of receipt, and such determination will be final and binding, subject to a shareholder’s right to challenge the Company’s determination in a court of competent jurisdiction. None of the Company, the Dealer Manager, Georgeson LLC, as the Information Agent, Computershare Trust Company, N.A., as the Depositary, or any other person will be under any duty to give notification of any defects or irregularities in any tender or notice of withdrawal or incur any liability for failure to give any such notification.
The Offer to Purchase and the related Letter of Transmittal contain important information that shareholders should read carefully before making any decision with respect to the Offer. Copies of the Offer to Purchase and the related Letter of Transmittal will be mailed to record holders of shares whose names appear on the Company’s shareholder list and will be furnished to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the shareholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing for subsequent transmittal to beneficial owners of shares. Persons who hold vested rights to purchase or otherwise acquire shares will be provided a copy of the Offer to Purchase and the related Letter of Transmittal upon request to the Information Agent at the telephone numbers and address set forth below. Such persons should read the Offer to Purchase for further information regarding how they can participate in the Offer.
The information required to be disclosed by Rule 13e-4(d)(1) under the Exchange Act, is contained in the Offer to Purchase and is incorporated herein by reference. The Company is also filing with the SEC an Issuer Tender Offer Statement on Schedule TO, which includes additional information relating to the Offer.
Please direct any questions or requests for assistance to the Dealer Manager or the Information Agent at their respective telephone numbers and addresses set forth below. Please direct requests for additional copies of the Offer to Purchase, the Letter of Transmittal or the Notice of Guaranteed Delivery to the Information Agent at the telephone number and address set forth below. The Information Agent will promptly furnish to shareholders additional copies of these materials at the Company’s expense. Shareholders may also contact their broker, dealer, commercial bank, trust company or nominee for assistance concerning the Offer. To confirm delivery of shares, please contact the Depositary at the addresses set forth below.
The Information Agent for the Offer is:
Georgeson LLC
1290 Avenue of the Americas, 9th Floor
New York, NY 10104
Shareholders, Banks and Brokers Call Toll-Free: (866) 356-2715
The Dealer Manager for the Offer is:
BTG Pactual US Capital, LLC
601 Lexington Avenue, 57th Floor
New York, NY 10022
Attn: Equity Capital Markets
Collect: +1 (212) 293-4600
Email: ol-ecm@btgpactual.com
The Depositary for the Offer is:
Computershare Trust Company, N.A.
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By Express Mail, Courier, or Other Expedited Service: Company, N.A. c/o Voluntary Corporate Actions, 150 Royall Street, Suite V Canton, MA 02021
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By Mail: Company, N.A. c/o Voluntary Corporate Actions, P.O. Box 43011 Providence, RI 02940-3011
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March 20, 2024
Exhibit (d)(3)
GEOPARK LIMITED
COMPENSATION RECOUPMENT POLICY
This GeoPark Compensation Recoupment Policy (the “Clawback Policy” or the “Policy”) has been adopted by the Board of Directors (the “Board”) of GeoPark Limited (the “Company ”) on 7 November 2023, following the recommendation of the Compensation Committee of the Company. This Policy provides for the recoupment of certain executive compensation in the event of an accounting restatement resulting from material noncompliance with financial reporting requirements under U.S. federal securities laws in accordance with the terms and conditions set forth herein. This Policy is intended to comply with the requirements of Section 10D of the Exchange Act (as defined below) and Section 303A.14 of the NYSE Listed Company Manual (the “Listing Rule”).
| 1. | Definitions. For the purposes of this Policy, the following terms shall have the meanings set forth below. |
| (a) | “Committee” means the Compensation Committee of the Board or any successor committee thereof. |
| (b) | “Covered Compensation” means any Incentive-based Compensation “received” by a Covered Executive during the applicable Recoupment Period; provided that: |
| (i) | Such Covered Compensation was received by such Covered Executive: (A) after the Effective Date, (B) after he or she commenced service as an Executive Officer, and (C) while the Company had a class of securities publicly listed on a United States national securities exchange; and |
| (ii) | Such Covered Executive served as an Executive Officer at any time during the performance period applicable to such Incentive-based Compensation. |
For purposes of this Policy, Incentive-based Compensation is “received” by a Covered Executive during the fiscal period in which the Financial Reporting Measure applicable to such Incentive-based Compensation (or portion thereof) is attained, even if the payment or grant of such Incentive-based Compensation is made thereafter.
| (c) | “Covered Executive” means any current or former Executive Officer. |
| (d) | “Effective Date” means the date on which Listing Rule becomes effective. |
| (e) | “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended. |
| (f) | “Executive Officer” means, with respect to the Company, (i) its chief executive officer, (ii) its chief financial officer, (iii) its principal accounting officer or, if there is no accounting officer, its controller, (iv) its chief people officer, (v) its chief technical officer, (vi) its chief operational officer, (vii) its chief exploration officer, and (viii) its chief strategy, sustainability and legal officer; or any other officer or |
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GeoPark Limited Compensation Recoupment Policy |
person that succeeds any of the above or that perform policy-making functions for the Company or otherwise meet the definition of “executive officer” under the Listing Rule. Policy-making function is not intended to include policy-making functions that are not significant. The determination as to an individual’s status as an Executive Officer shall be made by the Committee and such determination shall be final, conclusive, and binding on such individual and all other interested persons.
Only for the purposes of this Policy, the principal accounting officer or if there is no accounting officer, its controller, shall be considered as Executive Officers.
| (g) | “Financial Reporting Measure” means any: (i) measure that is determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements, (ii) stock price measure, or (iii) total shareholder return measure (and any measures that are derived wholly or in part from any measure referenced in clause (i), (ii) or (iii) above). For the avoidance of doubt, any such measure does not need to be presented within the Company’s financial statements or included in a filing with the U.S. Securities and Exchange Commission to constitute a Financial Reporting Measure. |
| (h) | “Financial Restatement” means a restatement of the Company’s financial statements due to the Company’s material noncompliance with any financial reporting requirement under U.S. federal securities laws that is required in order to correct: |
| (i) | an error in previously issued financial statements that is material to the previously issued financial statements; or |
| (ii) | an error that would result in a material misstatement if (A) the error was corrected in the current period, or (B) left uncorrected in the current period. |
For purposes of this Policy, a Financial Restatement shall not be deemed to occur in the event of a revision of the Company’s financial statements due to an out-of-period adjustment (i.e., when the error is immaterial to the previously issued financial statements and the correction of the error is also immaterial to the current period), or a retrospective (1) application of a change in accounting principles; (2) revision to reportable segment information due to a change in the structure of the Company’s internal organization; (3) reclassification due to a discontinued operation; (4) application of a change in reporting entity, such as from a reorganization of entities under common control; (5) revision for stock splits (share subdivisions), reverse stock splits (share consolidations), stock dividends (bonus issues) or other changes in capital structure; or (6) adjustment to provisional amounts in connection with a prior business combination.
| (j) | “Incentive-based Compensation” means (i) awards under the Annual Long Term Incentive Program, (ii) awards under the Annual Performance Cash Bonus, (iii) benefits under the Executive Termination and Change in Control Benefits Plan, and (iv) any other compensation (including, for the avoidance of doubt, any cash or equity or equity-based compensation, whether deferred or current), in each case that is granted, earned and/or vested based wholly or in part upon the achievement of a Financial Reporting Measure. For purposes of this Policy, “Incentive-based |
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GeoPark Limited Compensation Recoupment Policy |
Compensation” shall also be deemed to include any amounts which were determined based on (or were otherwise calculated by reference to) Incentive-based Compensation (including, without limitation, any amounts under any long-term disability, life insurance or supplemental retirement or severance plan or agreement or any notional account that is based on Incentive-based Compensation, as well as any earnings accrued thereon).
| (k) | “NYSE” means the New York Stock Exchange, or any successor thereof. |
| (l) | “Recoupment Period” means the three fiscal years completed immediately preceding the date of any applicable Recoupment Trigger Date. Notwithstanding the foregoing, the Recoupment Period additionally includes any transition period (that results from a change in the Company’s fiscal year) within or immediately following those three completed fiscal years, provided that a transition period between the last day of the Company’s previous fiscal year end and the first day of its new fiscal year that comprises a period of nine (9) to twelve (12) months would be deemed a completed fiscal year. |
| (m) | “Recoupment Trigger Date” means the earlier of: (i) the date that the Board (or a committee thereof or the officer(s) of the Company authorized to take such action if Board action is not required) concludes, or reasonably should have concluded, that the Company is required to prepare a Financial Restatement, and (ii) the date on which a court, regulator or other legally authorized body directs the Company to prepare a Financial Restatement. |
2. Recoupment of Erroneously Awarded Compensation.
| (a) | In the event of a Financial Restatement, if the amount of any Covered Compensation received by a Covered Executive (the “ Awarded Compensation”) exceeds the amount of such Covered Compensation that would have otherwise been received by such Covered Executive if calculated based on the Financial Restatement (the “Adjusted Compensation”), the Company shall reasonably promptly recover from such Covered Executive an amount equal to the excess of the Awarded Compensation over the Adjusted Compensation, each calculated on a pre-tax basis (such excess amount, the “Erroneously Awarded Compensation”). |
| (b) | If: (i) the Financial Reporting Measure applicable to the relevant Covered Compensation is stock price or total shareholder return (or any measure derived wholly or in part from either of such measures), and (ii) the amount of Erroneously Awarded Compensation is not subject to mathematical recalculation directly from the information in the Financial Restatement, then the amount of Erroneously Awarded Compensation shall be determined (on a pre-tax basis) based on the Company’s reasonable estimate of the effect of the Financial Restatement on the Company’s stock price or total shareholder return (or the derivative measure thereof) upon which such Covered Compensation was received. |
| (c) | For the avoidance of doubt, the Company’s obligation to recover Erroneously Awarded Compensation is not dependent on: (i) if or when the restated financial |
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GeoPark Limited Compensation Recoupment Policy |
statements are filed; or (ii) any fault of any Covered Executive for the accounting errors or other actions leading to a Financial Restatement.
| (d) | Notwithstanding anything to the contrary in Sections 2(a) through (c) hereof, the Company shall not be required to recover any Erroneously Awarded Compensation if both (x) the conditions set forth in either of the following clauses (i), (ii), or (iii) are satisfied, and (y) the Committee (or a majority of the independent directors serving on the Board) has determined that recovery of the Erroneously Awarded Compensation would be impracticable: |
| (i) | the direct expense paid to a third party to assist in enforcing the recovery of the Erroneously Awarded Compensation under this Policy would exceed the amount of such Erroneously Awarded Compensation to be recovered; provided that, before concluding that it would be impracticable to recover any amount of Erroneously Awarded Compensation pursuant to this Section 2(d)(i), the Company shall have first made a reasonable attempt to recover such Erroneously Awarded Compensation, document such reasonable attempt(s) to make such recovery and provide that documentation to the NYSE; |
| (ii) | recovery of the Erroneously Awarded Compensation would violate Bermuda law to the extent such law was adopted prior to November 28, 2022 (provided that, before concluding that it would be impracticable to recover any amount of Erroneously Awarded Compensation pursuant to this Section 2(d)(ii)), the Company shall have first obtained an opinion of home country counsel of Bermuda, that is acceptable to the NYSE, that recovery would result in such a violation, and the Company must provide such opinion to the NYSE; or |
| (iii) | recovery of the Erroneously Awarded Compensation would likely cause an otherwise tax-qualified retirement plan, under which benefits are broadly available to employees of the Company, to fail to meet the requirements of Sections 401(a)(13) or 411(a) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). |
| (e) | The Company shall not indemnify any Covered Executive, directly or indirectly, for any losses that such Covered Executive may incur in connection with the recovery of Erroneously Awarded Compensation pursuant to this Policy, including through the payment of insurance premiums or gross-up payments. |
| (f) | The Committee shall determine, in its sole discretion, the manner and timing in which any Erroneously Awarded Compensation shall be recovered from a Covered Executive in accordance with applicable law, including, without limitation, by (i) requiring reimbursement of Covered Compensation previously paid in cash; (ii) seeking recovery of any gain realized on the vesting, exercise, settlement, sale, transfer or other disposition of any equity or equity-based awards; (iii) offsetting the Erroneously Awarded Compensation amount from any compensation otherwise owed by the Company or any of its affiliates to the Covered Executive; (iv) cancelling outstanding vested or unvested equity or equity-based awards; and/or (v) taking any other remedial and recovery action permitted by applicable |
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law. For the avoidance of doubt, except as set forth in Section 2(d), in no event may the Company accept an amount that is less than the amount of Erroneously Awarded Compensation; provided that, to the extent necessary to avoid any adverse tax consequences to the Covered Executive pursuant to Section 409A of the Code, any offsets against amounts under any nonqualified deferred compensation plans (as defined under Section 409A of the Code) shall be made in compliance with Section 409A of the Code.
| 3. | Administration. This Policy shall be administered by the Committee. All decisions of the Committee shall be final, conclusive and binding upon the Company and the Covered Executives, their beneficiaries, executors, administrators and any other legal representative. The Committee shall have full power and authority to: (i) administer and interpret this Policy; (ii) correct any defect, supply any omission and reconcile any inconsistency in this Policy; and (iii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of this Policy and to comply with applicable law (including Section 10D of the Exchange Act) and applicable stock market or exchange rules and regulations. Notwithstanding anything to the contrary contained herein, to the extent permitted by Section 10D of the Exchange Act and Section 303A.14 of the NYSE Listed Company Manual, the Board may, in its sole discretion, at any time and from time to time, administer this Policy in the same manner as the Committee. |
| 4. | Amendment/Termination. Subject to Section 10D of the Exchange Act and Section 303A.14 of the NYSE Listed Company Manual, this Policy may be amended or terminated by the Committee at any time. To the extent that any applicable law, or stock market or exchange rules or regulations require recovery of Erroneously Awarded Compensation in circumstances in addition to those specified herein, nothing in this Policy shall be deemed to limit or restrict the right or obligation of the Company to recover Erroneously Awarded Compensation to the fullest extent required by such applicable law, stock market or exchange rules and regulations. Unless otherwise required by applicable law, this Policy shall no longer be effective from and after the date that the Company no longer has a class of securities publicly listed on a United States national securities exchange. |
| 5. | Interpretation. Notwithstanding anything to the contrary herein, this Policy is intended to comply with the requirements of Section 10D of the Exchange Act and Section 303A.14 of the NYSE Listed Company Manual (and any applicable regulations, administrative interpretations or stock market or exchange rules and regulations adopted in connection therewith). The provisions of this Policy shall be interpreted in a manner that satisfies such requirements and this Policy shall be operated accordingly. If any provision of this Policy would otherwise frustrate or conflict with this intent, the provision shall be interpreted and deemed amended to avoid such conflict. |
| 6. | Other Compensation Clawback/Recoupment Rights. Any right of recoupment under this Policy is in addition to, and not in lieu of, any other remedies, rights or requirements with respect to the clawback or recoupment of any compensation that may be available to the Company pursuant to the terms of any other recoupment or clawback policy of the Company (or any of its affiliates) that may |
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be in effect from time to time, any provisions in any employment agreement, offer letter, equity plan, equity award agreement or similar plan or agreement, and any other legal remedies available to the Company, as well as applicable law, stock market or exchange rules, listing standards or regulations; provided, however, that any amounts recouped or clawed back under any other policy that would be recoupable under this Policy shall count toward any required clawback or recoupment under this Policy and vice versa.
| 7. | Exempt Compensation. Notwithstanding anything to the contrary herein, the Company has no obligation to seek recoupment of amounts paid to a Covered Executive which are granted, vested or earned based solely upon the occurrence or non-occurrence of nonfinancial events. Such exempt compensation includes, without limitation, base salary, time-vesting awards, compensation awarded on the basis of the achievement of metrics that are not Financial Reporting Measures or compensation awarded solely at the discretion of the Committee or the Board, provided that such amounts are in no way contingent on, and were not in any way granted on the basis of, the achievement of any Financial Reporting Measure. |
| 8. | Miscellaneous. |
| (a) | Any applicable award agreement or other document setting forth the terms and conditions of any compensation covered by this Policy shall be deemed to include the restrictions imposed herein and incorporate this Policy by reference and, in the event of any inconsistency, the terms of this Policy will govern. For the avoidance of doubt, this Policy applies to all compensation that is received on or after the Effective Date, regardless of the date on which the award agreement or other document setting forth the terms and conditions of the Covered Executive’s compensation became effective or was first granted or awarded, including, without limitation, compensation received under the GeoPark Limited 2018 Equity Incentive Plan with registration No. 333-228763 and filed with the SEC on December 12, 2018 and its related programs and any successor plan. |
| (b) | This Policy shall be binding and enforceable against all Covered Executives and their beneficiaries, heirs, executors, administrators or other legal representatives. |
| (c) | All issues concerning the construction, validity, enforcement and interpretation of this Policy and all related documents, including, without limitation, any employment agreement, offer letter, equity award agreement or similar agreement, shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. |
| (d) | The Covered Executives, their beneficiaries, executors, administrators and any other legal representative and the Company shall initially attempt to resolve all claims, disputes or controversies arising under, out of or in connection with this Policy by conducting good faith negotiations amongst themselves. To ensure the timely and economical resolution of disputes that arise in connection with this Policy, any controversy or claim arising out of or relating to this Policy shall be settled by binding and confidential arbitration before a single arbitrator |
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administered by Judicial Arbitration and Mediation Services under its Employment Arbitration Rules & Procedures taking place in the State of New York, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. To the fullest extent permitted by law, the Covered Executives, their beneficiaries, executors, administrators and any other legal representative and the Company, shall waive (and shall hereby be deemed to have waived): (1) the right to resolve any such dispute through a trial by jury or judge or administrative proceeding; and (2) any objection to arbitration taking place in the State of New York.
| (e) | If any provision of this Policy is determined to be unenforceable or invalid under any applicable law, such provision will be applied to the maximum extent permitted by applicable law and shall automatically be deemed amended in a manner consistent with its objectives to the extent necessary to conform to any limitations required under applicable law. |
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