Navigator Holdings Ltd 6-K, filed Aug 4, 2021
Navigator Holdings Ltd. (NVGS)
About this 6-K
Navigator Holdings Ltd filed this 6-K on August 4, 2021.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13-16 or 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of August 2021
Commission File Number 001-36202
NAVIGATOR HOLDINGS LTD.
(Exact name of Registrant as specified in its Charter)
c/o NGT Services UK Ltd
10 Bressenden Place
London, SW1E 5DH
United Kingdom
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101 (b)(1). Yes ☐ No ☒
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101 (b)(7). Yes ☐ No ☒
ITEM 1—INFORMATION CONTAINED IN THIS FORM 6-K REPORT
Effective August 4, 2021, Navigator Holdings Ltd. (“Navigator”) completed the previously announced transaction (the “Transaction”) with Naviera Ultranav Limitada (“Ultranav”) to merge Ultragas ApS’ (“Ultragas”) fleet and business activities with Navigator pursuant to a Share Purchase Agreement, dated August 4, 2021 (the “Share Purchase Agreement”), among Navigator, Ultranav International S.A. (“Seller A”), Ultranav Denmark ApS (“Seller B” and, together with Seller A, the “Sellers”) and Ultranav, as guarantor. Pursuant to the Share Purchase Agreement, Navigator purchased the entire issued share capital of Othello Shipping Company S.A. and Ultragas ApS (collectively, the “Targets”) from the Sellers, in exchange for the issuance of an aggregate of approximately 21.2 million shares of common stock of Navigator (the “Consideration Shares”) to the Sellers and assumption of net debt of approximately $180 million, as well as net working capital, related to the Targets and their subsidiaries. A copy of the Share Purchase Agreement is attached hereto as Exhibit 4.1.
In connection with the Transaction, Navigator has entered into an Investor Rights Agreement with the Sellers (the “Ultranav Investor Rights Agreement”), which provides the Sellers with the right to designate a total of two members of the board of directors of Navigator (provided that the Sellers maintain certain shareholding thresholds) and with limited registration and informational rights. Navigator has also amended and restated its Investor Rights Agreement with BW Group Limited (as amended and restated, the “BW Investor Rights Agreement”) to conform the terms of such agreement with the Ultranav Investor Rights Agreement.
Copies of the BW Investor Rights Agreement and the Ultranav Investor Rights Agreement are attached hereto as Exhibit 4.2 and Exhibit 4.3, respectively.
Attached to this Report on Form 6-K as Exhibit 99.1 is a copy of the press release issued by Navigator and Ultranav on August 4, 2021.
ITEM 2—EXHIBITS
The following exhibits are filed as part of this Report on Form 6-K:
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| NAVIGATOR HOLDINGS LTD. | ||||||||
| Date: August 4, 2021 | By: | /s/ Dr. Henry Deans | ||||||
| Name: | Dr. Henry Deans | |||||||
| Title: | Chief Executive Officer | |||||||
Exhibit 4.1
[EXECUTION VERSION]
Dated 4 August 2021
ULTRANAV INTERNATIONAL S.A.
as Seller A
and
ULTRANAV DENMARK APS
as Seller B
and
NAVIERA ULTRANAV LIMITADA
as Guarantor
and
NAVIGATOR HOLDINGS LTD
as Buyer
SHARE PURCHASE AGREEMENT
relating to
the sale and purchase of the entire issued share capital of
each of Othello Shipping Company S.A. and Ultragas ApS
Index
| Clause | Page | |||||
| 1 |
Definitions and Interpretation | 3 | ||||
| 2 |
Agreement for Sale | 15 | ||||
| 3 |
Consideration | 16 | ||||
| 4 |
Completion | 16 | ||||
| 5 |
Sellers Warranties | 18 | ||||
| 6 |
Buyer Warranties | 19 | ||||
| 7 |
Limits on Liability | 19 | ||||
| 8 |
Restrictions on Sellers | 19 | ||||
| 9 |
Guarantee | 22 | ||||
| 10 |
Danish Joint Taxation Scheme | 25 | ||||
| 11 |
Implementation and Other Post-Completion Obligations | 25 | ||||
| 12 |
Costs | 26 | ||||
| 13 |
Confidentiality and Announcements | 27 | ||||
| 14 |
Other Provisions | 28 | ||||
| 15 |
Notices | 31 | ||||
| 16 |
Governing Law and Disputes | 34 | ||||
Schedules
| Schedule 1 |
36 | |||
| Part A Details of Target A |
36 | |||
| Details of Target B |
37 | |||
| Part C Details of the Target A Subsidiaries |
38 | |||
| Part D |
56 | |||
| Details of the Target B Subsidiaries |
56 | |||
| Schedule 2 Completion Obligations |
58 | |||
| Schedule 3 Sellers Warranties |
61 | |||
| Schedule 4 Buyer Warranties |
85 | |||
| Schedule 5 Limitations of Liability |
97 | |||
| Schedule 6 Target Group Vessels |
102 | |||
| Schedule 7 Director Resignation Letters for Target Group Companies |
103 | |||
| Schedule 8 Danish Joint Taxation Scheme |
104 |
Execution
| Execution Pages |
108 |
2
THIS AGREEMENT is made on 4 August 2021
PARTIES
| (1) | ULTRANAV INTERNATIONAL S.A., a corporation duly registered in the Republic of Panama at Microjacket number 66420, Roll 5321, Frame 117 as of 29 January 1981, whose resident agent’s office is at Towerbank Building, 50 Street and Elvira Mendez, Panama, Republic of Panama (“Seller A”) |
| (2) | ULTRANAV DENMARK APS, registered in Denmark with number 32 94 95 41, whose registered office is at Smakkedalen 6, 2820 Gentofte, Denmark (“Seller B” and together with Seller A, the “Sellers”) |
| (3) | NAVIERA ULTRANAV LIMITADA, registered in Chile with number 92.513.000-1, whose registered office is at Av. El Bosque Norte 500 P. 20 7550092, Las Condes, Santiago—Chile (the “Guarantor”) |
| (4) | NAVIGATOR HOLDINGS LTD., incorporated in the Republic of the Marshall Islands with number 29140, whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majaro, Marshall Islands, MH96960 (the “Buyer”) |
BACKGROUND
| (A) | Seller A is the legal and beneficial owner of the entire issued share capital of Target A. |
| (B) | Seller B is the legal and beneficial owner of the entire issued share capital of Target B. |
| (C) | Seller A has agreed to sell, and the Buyer has agreed to purchase, the Target A Shares, on and subject to the terms and conditions of this Agreement. |
| (D) | Seller B has agreed to sell, and the Buyer has agreed to purchase, the Target B Shares, on and subject to the terms and conditions of this Agreement. |
| (E) | Each of the Sellers is a wholly owned subsidiary of the Guarantor and, as such, the Guarantor has agreed to guarantee the obligations of the Sellers under the Transaction Documents, all on and subject to the terms and conditions of this Agreement. |
OPERATIVE PROVISIONS
| 1 | DEFINITIONS AND INTERPRETATION |
| 1.1 | Definitions |
In this Agreement, including the Schedules and the recitals, unless provided, or the context requires, otherwise:
“Adequate Procedures” means adequate policies, procedures, processes and systems designed to ensure, and which are reasonably expected to continue to ensure, compliance with the applicable Anti-Corruption Legislation including devising and maintaining a system of internal accounting controls.
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“Anti-Corruption Legislation” means all laws relating to relating to money laundering or the proceeds of criminal activity or bribery or corruption (governmental or commercial), including, without limitation, laws that prohibit the corrupt payment, offer, promise, or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any Government Official, commercial entity, or any other person to: (a) obtain a (business) advantage; or (b) improperly influence them or reward them for improper performance of a duty; including the UK Bribery Act 2010, the U.S. Foreign Corrupt Practices Act of 1977, and any other applicable anti-corruption legislation to which the parties may be subject.
“Associated Person” means in relation to a company, a person (including an employee, agent or subsidiary) who performs or has performed services for or on that company’s behalf.
“Business Day” means a day (other than a Saturday or Sunday) on which banks in Chile, Denmark, England, Panama and New York are open for the transaction of normal banking business (other than solely for trading and settlement in Euro) or, for the purposes of Clause 15, a day on which banks are open for the transaction of normal banking business in the country of receipt of a notice.
“Buyer Claim” means a Buyer Tax Warranty Claim, Buyer General Warranty Claim or Buyer Fundamental Warranty Claim.
“Buyer Data Room” means the
electronic data room made available by the Buyer to the Sellers, including at
https://navigatorgas1.sharepoint.com/sites/NGT-ExCo/Project%20Indigo/Forms/AllItems.aspx?csf=1&web=1&e=mHHi1p&cid
=e1432ffb%2Df7ec%2D4b3a%2Da3cc%2D57fe1c2bbac0&FolderCTID=
0x01200057199C1BE6933A4AA0B9F7194A115883&viewid=2fdcaa79%2D2c84%2D4fb5%2Daae7%2D46d0abc0a323&id=%2Fsites%2FNGT%2DExCo%2FProject%20Indigo%2FDue%20Dilligence,
containing documents and information relating to, inter alia, the Buyer, copies of which are contained in electronic format on a USB thumb drive in the approved form and listed in the index attached to the Buyer Disclosure Letter.
“Buyer Disclosure Documents” means:
| (a) | the documents made available via the Buyer Data Room and contained on the duplicate USB drives which have been provided by or on behalf of the Buyer to the Sellers or their advisers prior to the date of this Agreement; and |
| (b) | the Buyer Disclosure Letter. |
“Buyer Disclosure Letter” means the disclosure letter in the approved form of even date with this Agreement from the Buyer to the Sellers in connection with the Buyer Warranties.
“Buyer Election Notice” has the meaning given to that term in Schedule 5.
“Buyer Financial Statements” has the meaning given to that term in Schedule 4.
“Buyer Fundamental Warranties” means the warranties set out in paragraphs 1 and 2 of Schedule 4.
“Buyer Fundamental Warranty Claim” means a claim for breach of any Buyer Fundamental Warranty.
“Buyer General Warranty Claim” means a claim for breach of any Buyer Warranty (other than a Buyer Tax Warranty Claim or a Buyer Fundamental Warranty Claim).
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“Buyer Group” means the Buyer and any subsidiary undertaking or parent undertaking of the Buyer, or any subsidiary undertaking of any such parent undertaking of the Buyer, from time to time (including, following Completion, the Target Group but excluding, for the avoidance of doubt, BW Group Limited), and “Buyer Group Company” means any of them.
“Buyer Payment Default Date” has the meaning given to that term in Schedule 5.
“Buyer SEC Documents” has the meaning given to that term in Schedule 4.
“Buyer Settlement Shares” has the meaning given to that term in Schedule 5.
“Buyer Target Date” has the meaning given to that term in Schedule 5.
“Buyer Tax Warranty Claim” means a claim for beach of a Buyer Tax Warranty.
“Buyer Tax Warranties” means the Buyer Warranties set out in paragraph 13 of Schedule 3 and Clause 6.1 (to the extent it relates to paragraph 13 of Schedule 4) and “Buyer Tax Warranty” means any of them.
“Buyer Warranties” means the warranties set out in Clause 6 and Schedule 4.
“Claim” means a Buyer Claim or a Sellers Claim, as the context may require.
“Class and International Trading Certificates” means, in relation to a Vessel, all documents to be maintained in accordance with: (i) the requirements of the Vessel’s flag state; (ii) relevant Classification Society; (iii) all international regulations and treaties per the International Maritime Organization (IMO); and (iv) the documents necessary to meet the operational and safety requirements of local port authorities and the Vessel’s flag state.
“Classification Society” means a classification society which is a member of the International Association of Classification Societies.
“Companies Act” means Companies Act 2006.
“Competing Business” has the meaning given to that term in Clause 8.5.
“Completion” means completion of the sale and purchase of the Shares in accordance with Clause 4.
“Completion Date” means the date of Completion.
“Connected Person” means, with respect to any person, any other person directly or indirectly Controlling, Controlled by or under common Control with such person.
“Consideration” means the consideration payable by the Buyer for the Shares as stated in Clause 3.1.
“Consideration Shares” means 21,202,671 shares of common stock, par value $0.01 per share, of the Buyer.
“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through ownership of voting securities, by contract or otherwise.
5
“Danish GAAP” means Generally Accepted Accounting Principles as applied in the Kingdom of Denmark.
“Danish Tonnage Tax Regime” means the elective corporation tax regime for the purposes of taxing shipping activity set out in the Danish Tonnage Tax Act (Lovbekendtgørelse 2021-03-22 nr. 500 om beskatning af rederivirksomhed samt tidligere versioner heraf).
“DIS Taxation Scheme” means the Danish International Ship Register regime relating to the taxation of seafarers as set out in the Danish Taxation of Seafarers Act (Lovbekendtgørelse 2020-02-07 nr. 131 om beskatning af søfolk samt tidligere versioner heraf)
“Disclosed” means fairly disclosed in such manner and in such detail or with sufficient explanation as to enable a reasonable person to identify and assess the nature and scope of the matter disclosed.
“Disclosure Documents” means, together, the Sellers Disclosure Documents and the Buyer Disclosure Documents.
“Disclosure Letters” means the Sellers Disclosure Letter and the Buyer Disclosure Letter.
“Disposal” means directly or indirectly, unconditionally or conditionally, transfer, sell, assign, swap, charge, mortgage, pledge, grant options or other rights over, encumber or otherwise dispose of (or agree to transfer, sell, assign, swap, charge, mortgage, pledge, grant options or other rights over, encumber or otherwise dispose of) and the expressions “Dispose of” and “Disposal” shall be construed accordingly.
“Economic Sanctions Law” means economic or financial sanctions, restrictive measures, trade embargoes or export control laws imposed, administered or enforced from time to time by any Sanctions Authority.
“End of Life Vessel” or “ELV” means any Former Vessel which reached the end of its operational life or where its value as scrap was close to or exceeded its value as an operational vessel at the point of disposal by the Seller.
“EU Ship Recycling Regulation” means Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC.
“EU Waste Shipment Regulation” means Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste.
“Exchange Act” has the meaning given to that term in Clause 11.4(b).
“Exchange Act Report” has the meaning given to that term in Clause 11.4(b).
“Former Vessel” means any Vessel formerly owned, chartered, managed or leased by the Target Group in the three years prior to the date of this Agreement.
“General Warranty Claim” means a Buyer General Warranty Claim or a Sellers General Warranty Claim, as the context may require.
6
“Government Entity” means:
| (a) | any national, state, regional, or local government, and any government agency or department, or political party; |
| (b) | any entity or business that is owned or controlled by any of those bodies listed in subcategory (a); or |
| (c) | any international organisation such as the United Nations or the World Bank. |
“Government Official” means:
| (a) | any officer, employee, or representative (including anyone elected, nominated, or appointed to be an officer, employee, or representative) of any Government Entity, or anyone otherwise acting in an official capacity on behalf of a Government Entity; |
| (b) | any political party, political party official, or political party employee; |
| (c) | any candidate for public office; |
| (d) | any royal or ruling family member; |
| (e) | any agent or representative of any of those persons listed in subcategories (a) through (d). |
“Group Relief” means any Relief available between members of a group (including any fiscal unity) for Tax purposes.
“Hong Kong Convention” means the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships.
“Indebtedness” means any borrowings or other indebtedness in the nature of borrowings owed by a Target Group Company (for the avoidance of doubt, excluding trading debts arising in the ordinary course of business).
“Intellectual Property” means copyright and related rights, moral rights, patents, utility models, trademarks, trade names, service marks, domain name registrations, design rights, database rights, rights to inventions, rights in undisclosed or confidential information (such as Know How, trade secrets and inventions (whether patentable or not)), trademark-related goodwill and the right to sue for passing off or unfair competition and other intellectual property rights having equivalent or similar effect to any of the foregoing (whether registered or not) and applications for such rights as may exist anywhere in the world, together with any rights of action for infringement of such rights, whether existing or arising in the future and “Intellectual Property Rights” shall be construed accordingly.
“Investor Rights Agreement” means an investor rights agreement, dated the same date as the Completion Date, and entered into between the Buyer and the Sellers, in the approved form and substantially the same form as the amended and restated investor rights agreement, dated the same date as the Completion Date, entered into between the Buyer and BW Group Limited.
“IT Systems” means the hardware, software, network and telecommunications equipment and Internet-related information technology infrastructure owned or leased by a person or any of its Subsidiaries and used in their respective businesses.
7
“Know How” means any skills, knowledge, experience, technical information or techniques of whatsoever nature utilised or gained by the relevant person in the course of its business.
“Letter of Intent” means the letter of intent entered into between the parties dated 9 April 2021.
“Losses and Expenses” means any liabilities, losses, damages, fines, penalties, charges, claims, demands, awards, costs and expenses including all reasonably incurred legal costs.
“Pension Schemes” means the pension schemes operated for the benefit of any of the Target Group Companies or the Buyer Group Companies employees, as the context may require.
“Pool Operator” means Unigas International B.V.
“Prohibited Person” means any person (whether designated by name or by reason of being included in a class of persons):
| (i) | listed on, or owned or controlled (as such terms, including any applicable ownership and control requirements, are defined and construed in the applicable Economic Sanctions Law or in any related official guidance) by a person or organisation listed on, a Sanctions List, |
| (ii) | a government of a Sanctioned Territory, |
| (iii) | an agency or instrumentality of, or an entity directly or indirectly owned or controlled by, a government of a Sanctioned Territory, |
| (iv) | resident or located in, operating from, or incorporated under the laws of, a Sanctioned Territory, or |
| (v) | otherwise is subject to Sanctions or a target of any Economic Sanctions Law or that is acting on behalf of any of the persons listed in paragraphs (i) to (iv) above, for the purpose of evading or avoiding, or having the intended effect of or intending to evade or avoid, or facilitating the evasion or avoidance of any Economic Sanctions Law. |
“Registration Statement & Prospectus or Offering Memorandum” has the meaning given to that term in Clause 11.4(b).
“Relief” means any loss, relief, allowance or credit in respect of any Tax, any deduction in computing income, profits or gains for the purposes of any Tax and any repayment of Tax.
“Sanctioned Territory” means any country or other territory subject to a general export, import, financial or investment embargo under any Economic Sanctions Law, which, as of the date of this Agreement, include Crimea, Cuba, Iran, North Korea and Syria.
“Sanctions” means any sanctions, embargoes, freezing provisions, prohibitions or other restrictions relating to trading, doing business, investment, exporting, financing or making assets available (or other activities similar to or connected with any of the foregoing) imposed by any Economic Sanctions Law.
8
“Sanctions Authority” means (i) the United States, (ii) the United Nations Security Council, (iii) the European Union (iv) France, (v) the United Kingdom or (vi) the respective governmental institutions of any of the foregoing including, without limitation, OFAC, the U.S. Department of Commerce, the U.S. Department of State, any other agency of the U.S. government, and Her Majesty’s Treasury.
“Sanctions List” means any of the lists of designated or sanctioned individuals or entities (or equivalent) issued by any Sanctions Authority, each as amended, supplemented or substituted from time to time.
“SEC” has the meaning given to that term in Clause 11.4(b).
“Securities Act” has the meaning given to that term in Clause 11.4(b).
“Security Interest” means any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, encumbrance, assignment, right of set-off, trust arrangement, title retention or other security interest or other arrangement of any kind having a similar effect to any of the foregoing.
“Sellers Claim” means a Sellers Tax Warranty Claim, Sellers General Warranty Claim, or a Sellers Fundamental Warranty Claim.
“Sellers Data Room” means the electronic data room made available by the Sellers to the Buyer, including at https://navigatorgas1.sharepoint.com/sites/NGT-ExCo/Project%20Indigo/Forms/AllItems.aspx?csf=1&web=1&e=mHHi1p&cid=e1
432ffb%2Df7ec%2D4b3a%2Da3cc%2D57fe1c2bbac0&FolderCTID=0x01200057199C1BE6933A4AA0B9F7194A115883&viewid=2fdcaa79%2D2c84%2D4fb5%2Daae7%2D46d0abc0a323&id=%2Fsites%2FNGT%2DExCo%2FProject%20Indigo%2FDue%20Dilligence,
containing documents and information relating to, inter alia, the Targets and the Shares, copies of which are contained in electronic format on a USB thumb drive in the approved form and listed in the index attached to the Sellers Disclosure
Letter.
“Sellers Disclosure Documents” means:
| (a) | the documents made available via the Sellers Data Room and contained on the duplicate USB drives which have been provided by or on behalf of the Sellers to the Buyer or its advisers prior to the date of this Agreement; and |
| (b) | the Sellers Disclosure Letter. |
“Sellers Disclosure Letter” means the disclosure letter in the approved form of even date with this Agreement from the Sellers to the Buyer in connection with the Sellers Warranties.
“Sellers Election Notice” has the meaning given to that term in Schedule 5.
“Sellers Fundamental Warranties” means the Warranties set out in paragraphs 1 (excluding paragraph 1.4), 2 (excluding paragraph 2.2) and 3 (excluding paragraph 3.3(d)) of Schedule 3.
“Sellers Fundamental Warranty Claim” means a claim for breach of any Sellers Fundamental Warranty.
“Sellers General Warranty Claim” means a claim for breach of any Sellers Warranty (other than a Sellers Tax Warranty Claim or a Sellers Fundamental Warranty Claim).
9
“Sellers Group” means each of the Guarantor, each Sellers and any subsidiary undertaking or parent undertaking of any Sellers, or any subsidiary undertaking of any such parent undertaking of any Sellers, from time to time (except, with effect from Completion, the Target Group), and “Sellers Group Company” means any of them.
“Sellers Payment Default Date” has the meaning given to that term in Schedule 5.
“Sellers Settlement Shares” has the meaning given to that term in Schedule 5.
“Sellers Target Date” has the meaning given to that term in Schedule 5.
“Sellers Tax Warranties” means the Sellers Warranties set out in paragraph 19 of Schedule 3 and Clause 5.1 (to the extent it relates to paragraph 19 of Schedule 3) and “Sellers Tax Warranty” means any of them.
“Sellers Tax Warranty Claim” means a claim for beach of a Sellers Tax Warranty.
“Sellers Warranties” means the warranties set out in Clause 5.1 and Schedule 3.
“Services Agreements Termination Deeds” means:
| (a) | a deed of termination in respect of a bunker procurement service agreement dated 1 January 2016 entered into between (i) Ultrabulk A/S and (ii) Target B; |
| (b) | a deed of termination in respect of a technical supervision agreement dated 1 July 2018 entered into between (i) Ultrabulk Shipholding A/S and (ii) Target B, and |
| (c) | a deed of partial termination in respect of a services agreement dated 1 January 2016, as amended by (i) an addendum to the services agreement dated 22 June 2018 and (ii) an addendum to the services agreement dated 1 July 2020 and entered into between (i) Ultranav Business Support ApS, (ii) Ultrabulk A/S, (iii) Seller B, (iv) Ultratank Shipping ApS, (v) Ultraship ApS and (vi) Target A. |
in each case, in the approved form.
“Senior Management Representatives” means:
| (a) | in relation to the Buyer, the person who holds the position of Chief Executive Officer (or equivalent officer) of the Buyer from time to time or such other member of senior management with a similar level of responsibility in the Buyer Group as notified to the Sellers and the Guarantor from time to time; and |
| (b) | in relation to Sellers, the person who holds the position of CEO of the Guarantor (or equivalent officer) in the Sellers Group from time to time or such other member of senior management with a similar level of responsibility in the Sellers Group as notified to the Buyer. |
“Shares” means, together, the Target A Shares and the Target B Shares.
“Subsidiaries” means, together, the Target A Subsidiaries and the Target B Subsidiaries and “Subsidiary” shall mean any of them.
10
“Target A” means Othello Shipping Company S.A., basic details of which are set out in Part A of Schedule 1.
“Target A Shares” means Ten (10) shares of One Thousand Dollars (US$1,000.00) each in the capital of Target A owned by Seller A and to be sold by Seller A to the Buyer pursuant to this Agreement.
“Target A Subsidiaries” means the subsidiary undertakings of Target A, brief details of which are set out in Part C of Schedule 1.
“Target B” means Ultragas ApS, basic details of which are set out in Part B of Schedule 1.
“Target B Shares” means 21,000 shares of nominally DKK 10 each in the capital of Target B owned by Seller B and to be sold by Seller B to the Buyer pursuant to this Agreement.
“Target B Subsidiaries” means the subsidiary undertakings of Target B, brief details of which are set out in Part D of Schedule 1 (and “Target B Subsidiary” shall mean any of them).
“Target Group” means each of Target A, Target B and the Subsidiaries and “Target Group Company” means any of them.
“Target Group Accounts” means the audited consolidated accounts of Target A and the Target A Subsidiaries and the audited accounts of each of Target B and each of the Target B Subsidiaries, in each case for the accounting period ended on the Target Group Accounts Date, and the related notes to such accounts as required by any applicable legislation and accounting standards, copies of which are included in the Sellers Disclosure Documents.
“Target Group Accounts Date” means 31 December 2020.
“Target Group Business Information” means all information, Know How and records (in whatever form held and whether commercial, financial, technical or otherwise) relating to the Target Group or the business or activities or affairs of the Target Group, which can be reasonably considered to be confidential to the Target Group.
“Target Group Guarantees” means any guarantees, indemnities, contractual obligations or Security Interests given by a Target Group Company in respect of any liabilities or obligations of any Sellers Group Company (other than the Target Group).
“Target Group Management Accounts” means the unaudited consolidated balance sheets and the unaudited consolidated income statement of each Target (including any related notes) for the month ended 30 June 2021 (a copy of which is included in the Sellers Disclosure Documents).
“Target Group Personnel” means persons employed by any member of the Target Group.
“Targets” means, together, Target A and Target B, and “Target” shall mean any of them.
“Tax” or “Taxation” means:
| (a) | all taxes, levies, duties and imposts and any charges, contributions, deductions or withholdings in each case in the nature of taxation regardless of whether any such taxes, levies, duties, imposts, charges, contributions, deductions and withholdings are chargeable directly or primarily against, or attributable directly or primarily to, the Target Group or any other person and of whether any amount in respect of any of them is recoverable from any other person; and |
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| (b) | all penalties, charges, fines and interest relating to any of the above or in relation to any failure to comply with any law relating to any of the above. |
“Taxation Authority” means any taxing, revenue or other authority competent to impose any liability to, or entitled to assess or collect, any Tax falling with paragraph (a) of the definition of Tax.
“Tax Warranty Claim” means a Buyer Tax Warranty Claim or Sellers Tax Warranty Claim.
“Transaction” means the sale and purchase of the Shares and the ancillary arrangements that are the subject of this Agreement and the other Transaction Documents.
“Transaction Documents” means this Agreement and the other documents delivered at Completion pursuant to Clause 4, but shall exclude any of the Disclosure Documents other than the Disclosure Letters.
“Transitional Services Agreement” means the transitional services agreement in the approved form to be entered into between (i) Ultranav Business Support ApS, (ii) the Guarantor (iii) UltraShip ApS and (iv) Target B.
“VAT” means:
| (a) | any Tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); |
| (b) | any similar sales or turnover Tax, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such Taxes referred to in paragraph (a) above, or imposed elsewhere. |
“VAT Group” means a group or fiscal unity for the purposes of VAT.
“Vessels” means the vessels listed in Schedule 6 of this Agreement, and “Vessel” has a corresponding meaning.
“Warranties” means the Sellers Warranties and Buyer Warranties, and “Warranty” means any of them.
“$” and “Dollars” means the lawful currency of the United States of America.
| 1.2 | Construction of certain terms |
In this Agreement, including the schedules and recitals, unless the context requires otherwise:
“agreement” includes any commitment or arrangement, whether legally binding or not, and references to being party to an agreement or having agreed to anything shall be construed accordingly.
“approved form” in relation to a document, means in a form agreed between the Buyer and the Sellers.
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“breach of Warranty” in relation to any Warranty shall mean that the relevant Warranty is untrue, inaccurate or misleading in some respect, whether or not material, and “breached” in the context of a Warranty shall be construed accordingly.
“company” includes any company, corporation or other body corporate, wherever and however incorporated or established, and any unincorporated association.
“expense” means any kind of cost, charge or expense (including all reasonable legal and other professional costs, charges and expenses).
“legislation” means any enactment or subordinate legislation in force in the United Kingdom, any law, decree or regulation in force in a country or territory outside the United Kingdom and any law, decree or regulation adopted in accordance with or having the force of law under any international treaty or convention.
“liability” includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or otherwise.
“person” includes any individual, firm, company, government, state or agency of a state or any joint venture, association, partnership or other body corporate or unincorporate (whether or not having separate legal personality).
“property” or “properties” means freehold, leasehold or other immoveable property anywhere in the world.
“regulation” includes any regulation, rule, directive, request or guideline (either having the force of law or compliance with which is reasonable in the ordinary course of business of the party concerned) of any governmental, intergovernmental or international body, agency, department or regulatory, self-regulatory or other authority or organisation.
“variation” includes any variation, supplement, deletion or replacement however effected.
“waiver” includes an agreement not to rely on or assert certain provisions or rights during a specified period, until further notice or while or if specified conditions are satisfied.
“written” in relation to a notice, consent, demand or other communication under this Agreement, or an amendment or waiver concerning it, includes sent by e-mail or facsimile transmission and any other mode of reproducing words in a legible and permanent form and “in writing” should be construed accordingly.
| 1.3 | Interpretation |
In this Agreement, unless the context requires otherwise:
| (a) | unless otherwise defined in this Agreement, words and expressions defined in or for the purposes of the Companies Act in force as at the date of this Agreement (including “subsidiary undertaking” and “parent undertaking”) shall, where the context permits, bear the same meanings in this Agreement and the other Transaction Documents; |
| (b) | the expression “with full title guarantee” in relation to the sale of any Shares shall import the covenants implied by sections 2 and 3 of the Law of Property (Miscellaneous Provisions) Act 1994, but so that the operation of such covenants shall be extended so as to apply regardless of and shall not be affected by: |
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| (i) | the fact (if such is the case) that any Sellers does not know or could not reasonably be expected to know about any charges, encumbrances or rights affecting such property; or |
| (ii) | anything which at the time of the disposition is within the actual knowledge of the Buyer or which is a necessary consequence of facts that are then within the actual knowledge of the Buyer; |
| (c) | any reference to, or to a provision of, an enactment (other than the Companies Act) is a reference to it as it is in force from time to time and as from time to time amended, extended, re-enacted (with or without modification), consolidated or replaced or to any enactment which it re-enacts or supersedes (with or without modification) and includes all instruments or orders made under it except to the extent that any amendment, consolidation or re-enactment made after the date of this Agreement would increase the liability of any of the parties to this Agreement; |
| (d) | references to Clauses, recitals and Schedules are to clauses of and recitals and schedules to this Agreement and any reference to a paragraph is to a paragraph of the relevant Schedule; |
| (e) | words importing the singular include the plural and vice versa and words importing a gender include every gender; |
| (f) | references to times of day are to London time; |
| (g) | references to any particular law, statute, statutory provision or accounting principle applying in the United Kingdom or to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official, or to any legal concept, principle or state of affairs or thing shall be deemed to include a reference to any equivalent or substantially similar law, statute, statutory provision, accounting principle or legal term, concept, principle or state of affairs (if any) applying at the date of this Agreement or Completion in the country in which the relevant person is incorporated or resident for Tax purposes or trading or has previously traded, but so that in case there is no equivalent or substantially similar law, statute, statutory provision, accounting principle or legal term, concept or principle or state of affairs, or in case of conflict, any definition or meaning of or contained in the United Kingdom statute, statutory provision or accounting principle or English legal term, concept or principle or state of affairs shall apply or prevail, as the case may be; |
| (h) | references to any particular governmental, administrative or other authority or agency shall include references to any successor to any such authority or agency or any equivalent or substantially similar authority or agency in the country in which the relevant person is incorporated or trading or resident for Tax purposes or has previously traded; |
| (i) | reference to the memorandum and/or articles of association of a body corporate or unincorporate includes reference to its certificate or memorandum or articles of incorporation, by-laws and/or other constitutional documents; |
| (j) | any phrases introduced by the terms “including”, “include”, or any similar expression are to be construed without limitation and accordingly the rule known as the ejusdem generis rule shall not apply to this Agreement; |
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| (k) | references to, or to a provision of, this Agreement or any Transaction Document or any other document are references to it as amended, restated, novated, substituted or supplemented from time to time, whether before or after the date of this Agreement; |
| (l) | references to any person include that person’s legal personal representatives and successors and any permitted assignee or transferee of such person; |
| (m) | references in this Agreement to any person shall, when construing any provision in relation to VAT or amounts in respect of VAT, be deemed at any time when such person (the “Relevant Person”) is a member of a VAT Group in relation to such VAT or amount in respect of VAT, to include a reference, where appropriate, to any other member of such VAT Group at such time; |
| (n) | references to Losses and Expenses incurred by a person shall not include any amount in respect of VAT included in such Losses and Expenses for which that person or a member of the same VAT Group is entitled to credit or repayment from any Taxation Authority; |
| (o) | any indemnity given pursuant to this Agreement is given on an after-Tax basis; |
| (p) | where any indemnity is given, or any amount is payable (the “Payment”) under this Agreement (the “Payment Obligation”) and such Payment Obligation is stated as being given on an “after-Tax basis”, that Payment shall be calculated in such a manner as will ensure that, after taking into account: |
| (i) | any Tax required to be deducted or withheld from the Payment; |
| (ii) | the amount and timing of any additional Tax which becomes payable by the recipient of the Payment as a result of the Payment’s being subject to Tax in the hands of the recipient of the Payment; and |
| (iii) | the amount and timing of any Tax benefit which is obtained by the recipient of the Payment to the extent that such Tax benefit is attributable to the matter giving rise to the Payment Obligation or to the entitlement to, or receipt of, the Payment, or to any Tax required to be deducted or withheld from the Payment, |
the recipient of the Payment is in the same after-Tax position as that in which it would have been if the matter giving rise to the Payment Obligation had not occurred.
| 1.4 | Headings |
Headings are inserted for convenience only and shall not affect the construction of this Agreement.
| 2 | AGREEMENT FOR SALE |
| 2.1 | Sale and purchase of Shares |
Subject to the other provisions of this Agreement:
| (a) | Seller A shall sell the Target A Shares with full title guarantee to the Buyer and the Buyer shall purchase the Target A Shares; and |
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| (b) | Seller B shall sell the Target B Shares with full title guarantee to the Buyer and the Buyer shall purchase the Target B Shares. |
| 2.2 | Absolute title to Shares; no security over Shares |
The Sellers shall procure that the Buyer will duly obtain absolute title to the entire legal and beneficial interest in all of the Target A Shares (in the case of Seller A) and the Target B Shares (in the case of Seller B), and all rights (whether in respect of distributions, voting or otherwise) which at the date of this Agreement or any later time are conferred on or by any of the Shares, free from any Security Interest or other adverse interest, right, equity, claim or potential claim of any description.
| 2.3 | Waiver of pre-emption rights |
Each Sellers gives, and undertakes to procure before Completion, any waiver of any pre-emption or other similar right over any of the Target A Shares (in the case of Seller A) and the Target B Shares (in the case of Seller B), and any consent, which may be necessary under the constitutional documents of any Target or otherwise in connection with the matters contemplated by this Agreement.
| 2.4 | Sale of all Shares |
The Buyer shall not be obliged to complete the purchase of any of the Shares unless the purchase of all the Shares is completed simultaneously, but completion of the purchase of some of the Shares shall not affect the rights of the Buyer with respect to the purchase of the others.
| 3 | CONSIDERATION |
| 3.1 | Payment of Consideration |
The Consideration shall be the sum of $356,664,000 which shall be satisfied on Completion by the Buyer issuing the Consideration Shares to the Sellers in accordance with Clauses 4.4(b)(i) and 4.4(b)(ii).
| 4 | COMPLETION |
| 4.1 | Timing and place of Completion |
Subject to the provisions of this Agreement, Completion shall be effected by the Sellers satisfying their obligations under Clauses 4.2 and 4.3 and Part A of Schedule 2 and by the Buyer satisfying its obligations under Clause 4.4 and Part B of Schedule 2.
| 4.2 | Sellers’ Completion obligations |
On the Completion Date the Sellers shall deliver or procure that there are delivered to the Buyer each of the items set out in Part A of Schedule 2.
| 4.3 | Events at Completion |
On the Completion Date the Sellers shall procure that (to the extent not already done):
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| (a) | the directors of Target A approve for registration the transfers of the Target A Shares, subject to their being duly executed; |
| (b) | the persons specified in Schedule 7 have duly resigned as directors of each Target Group Company with effect from Completion, subject to Clause 4.5 below; |
| (c) | the person nominated by the Buyer is duly appointed as secretary of each Target Group Company (other than Target B and UltraShip ApS) with effect from Completion; and |
| (d) | any indebtedness in the nature of borrowings or other liability of the Sellers or any Sellers Group Company (excluding the Target Group) or any of their Connected Persons owed to the Target Group (whether due for payment or not but excluding trading debts arising in the ordinary course of business) is fully discharged in cash, with all interest accrued up to the date of Completion. |
| 4.4 | Buyer’s Completion obligations |
On the Completion Date the Buyer shall:
| (a) | deliver or procure that there are delivered to the Sellers each of the items set out in Part B of Schedule 2; and |
| (b) | issue the Consideration Shares to the Sellers (or as the Sellers may direct in writing) in the following proportions (in book-entry form, together with an executed certificate of the transfer agent of the Buyer certifying as to the book-entry issuance thereof), free from all Security Interests or other adverse interests, rights, equities, claims or potential claims of any description: |
| (i) | 97.5% Consideration Shares to be issued to Seller A; and |
| (ii) | 2.5% Consideration Shares to be issued to Seller B. |
| 4.5 | Follow-up after Completion |
As soon as reasonably practicable following Completion, the Buyer shall:
| (a) | procure that the Buyer’s ownership of the Target B Shares as well as the resignation of the board members and the auditors of Target B are duly registered with the Danish Business Authority; |
| (b) | hold a general meeting of Target A and Target B for the purposes of appointing new directors; |
| (c) | notify the Danish Business Authority of the appointments referred to in clause 4.5(b); and |
| (d) | forward documentation of the registration with the Danish Business Authority to Seller B and new auditors. |
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| 4.6 | Replacement guarantees |
Insofar as any of the Target Group Guarantees cannot be released on or before Completion, the Sellers shall use all reasonable endeavours to procure the release of each Target Group Company from the Target Group Guarantees on or as soon as practicable after Completion and, with effect from Completion, covenants to pay to the Buyer (or as the Buyer may direct) on demand and on an after-Tax basis an amount equal to any and all Losses and Expenses which the Buyer and/or any Target Group Company may suffer or incur in respect of the obligations and liabilities arising under any of the Target Group Guarantees whether arising from acts or omissions of any person occurring before or after Completion. The Sellers shall be responsible for all costs relating to release of the Target Group Guarantees.
| 5 | SELLERS WARRANTIES |
| 5.1 | General |
The Sellers warrant, subject to Clauses 5.6 and 7 and Schedule 5, that each statement in Schedule 3 is true, accurate and not misleading in any respect at the date of this Agreement.
| 5.2 | No claim for contribution |
The Sellers shall not make any claim for an indemnity or a contribution or otherwise against the Target Group or any person (or the estate of any person) who on the Completion Date is, or at any earlier date was, an officer, employee, agent or consultant of the Target Group in connection with any liability which the Sellers have or may have in respect of a Sellers Warranty.
| 5.3 | Warranties are separate and independent |
Each Sellers Warranty shall be construed as a separate and independent warranty and, save as expressly provided otherwise, shall not be limited or restricted by reference to or inference from any other terms of this Agreement or any other Sellers Warranty or anything contained in the Sellers Disclosure Documents.
| 5.4 | Reduction in Consideration |
Any payments made by the Sellers to the Buyer in respect of any Claim shall, to the extent lawfully possible, be treated by the parties as a reduction in the Consideration provided that this Clause 5.4 shall not in any way limit or restrict the amount recoverable by the Buyer or any other person under this Agreement to the amount of the Consideration or any other amount.
| 5.5 | Awareness of Sellers |
Where any Sellers Warranty is qualified by reference to the awareness, knowledge, information or belief of the Sellers (or any similar expression) the Sellers shall be deemed to have such awareness, knowledge, information or belief as it would have after reasonable enquiry of each of Michael Schröder, Martin Bork, Jan Vermeij, Francisco Larrain, Raimundo Sanchez, Captain Jeffrey M. Rodriguez, Dag Von Appen, Kaj Pilemand, Oskar Fabricius and Gerardo Hune.
| 5.6 | Disclosure in Sellers Disclosure Letter |
The Sellers shall have no liability whatsoever in respect of any Claim (other than a Sellers Fundamental Warranty Claim) if and to the extent that any fact, matter or circumstance which causes any of the Sellers Warranties to be breached or which might result in such Claim or such possible Claim has been Disclosed in the Sellers Disclosure Documents.
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| 6 | BUYER WARRANTIES |
| 6.1 | General |
The Buyer warrants, subject to Clauses 6.4 and 7 and Schedule 5, that each statement in Schedule 4 is true, accurate and not misleading in any respect at the date of this Agreement.
| 6.2 | Warranties are separate and independent |
Each Buyer Warranty shall be construed as a separate and independent warranty and, save as expressly provided otherwise, shall not be limited or restricted by reference to or inference from any other terms of this Agreement or any other Buyer Warranty or anything contained in the Buyer Disclosure Documents.
| 6.3 | Awareness of Buyer |
Where any Buyer Warranty is qualified by reference to the awareness, knowledge, information or belief of the Buyer (or any similar expression) the Buyer shall be deemed to have such awareness, knowledge, information or belief as it would have after having made all reasonable enquiry of Harry Deans, Georgi Yarmov, Niall Nolan, John Reay, David J. Butters, Paul Flaherty, Oeyvind Lindeman and Barre Browne.
| 6.4 | Disclosure in Buyer Disclosure Letter |
The Buyer shall have no liability whatsoever in respect of any Claim (other than a Buyer Fundamental Warranty Claim) if and to the extent that any fact, matter or circumstance which causes any of the Buyer Warranties to be breached or which might result in such Claim or such possible Claim has been Disclosed in the Buyer Disclosure Documents.
| 7 | LIMITS ON LIABILITY |
| 7.1 | Limits on liability |
The provisions of Schedule 5 shall apply as if set out in this Clause 7 in full.
| 8 | RESTRICTIONS ON SELLERS |
| 8.1 | Non-disclosure of Target Group Business Information |
The Sellers shall, and shall procure that each of their respective officers, employees and agents shall, keep confidential and shall not, without the prior written consent of the Buyer disclose or make available to any person or use for any purpose of itself or any other person any Target Group Business Information.
| 8.2 | General commercial information |
Following the third anniversary of the Completion Date, Clause 8.1 will not apply to any Target Group Business Information that is solely comprised of general commercial information and does not include any technical information that is sensitive from a competition perspective or is a trade secret under applicable law.
| 8.3 | Permitted disclosures |
Clause 8.1 does not apply to any Target Group Business Information:
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| (a) | which is already in or subsequently enters into the public domain other than following a breach by the disclosing party of Clause 8.1; or |
| (b) | a bona fide disclosure of which is: |
| (i) | required to be made to a court, governmental, official, regulatory or stock exchange authority or to inspectors or others authorised by such an authority or by or under any legislation to carry out any enquiries or investigation or as otherwise required by any applicable legislation; or |
| (ii) | made to the employees, officers, agents or professional advisers of the Sellers to the extent necessary for such persons to obtain the same for the purpose of discharging their responsibilities to the Sellers; or |
| (iii) | to a Taxation Authority in connection with the management of the Tax affairs of the disclosing party or any person connected with that party, |
provided always that the disclosing party shall use its best endeavours to procure that any Target Group Business Information so disclosed is only used for the purposes for which it was disclosed and is kept confidential by the person to whom it is disclosed.
| 8.4 | No holding out |
The Sellers shall not, and shall procure that no Sellers Group Company shall, at any time after Completion:
| (a) | have any authority to act on behalf of the Target Group other than through the exercise of its governance rights under the Investor Rights Agreement or any other agreement with the Target Group entered into following Completion; or |
| (b) | in any way, whether directly or indirectly, use the Target Group Intellectual Property for business purposes other than to disclose its affiliation with the Target Group following Completion. |
| 8.5 | Non-competition |
The Sellers shall not, and shall procure that no Sellers Group Company or Connected Person of any Sellers Group Company shall, at any time before the earlier to occur of:
(A) after 1 August 2024, the Sellers and the Sellers’ Affiliates ceasing to own any shares in the Buyer and ceasing to have any appointee on the board of the Buyer; and
(B) 1 August, 2026,
compete with the Target Group in the transport of liquefied gases and petrochemical gases on vessels below 25.000 CBM or in any other industry that can reasonably be regarded as being or likely to be in competition with any trade or business in the relevant markets as understood by the business concerned or the industry in which the Target Group carries on its business at the Completion Date (“Competing Business”). Notwithstanding the foregoing:
| (i) | nothing in this Agreement shall prohibit, preclude or in any way restrict the Sellers Group Company or its Connected Persons, from: (i) purchasing or acquiring, or being the holder or beneficial owner of, up to five percent (5%) of the outstanding equity |
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| securities of any Person, including a Competing Business; (ii) acquiring and, after such acquisition, owning an interest in any Person (or its successor) that conducts a Competing Business if the annual revenue generated by such Competing Business in the last completed fiscal year of such Person did not exceed ten percent (10%) of such Person’s consolidated annual revenues for such fiscal year, and (iii) conducting any local trades (cabotage) in Latin American countries. |
| (ii) | subject to applicable anti-trust laws, nothing in this Agreement shall prohibit, preclude or in any way restrict any director of the Sellers Group Company or its Connected Persons from, whether in such director’s personal capacity or as a manager, partner, director, officer or other control person of an investment fund, investing in, participating in or directing the investment in, serving on the board of directors or similar governing body of, receiving information rights in or participating in other customary activities related to investments in, any Person that is engaged in a Competing Business. |
| 8.6 | Non solicitation |
Without prejudice to its common law duties the Sellers shall not, and shall procure that no Sellers Group Company shall at any time before 1 August, 2024, in any way, whether directly or indirectly, invite any person who, as at the date of this Agreement, is an employee of the Target Group who is employed in an executive or managerial capacity or any director (or director equivalent) of the Target Group to become an employee or contractor of or in any other way associated in business with the Sellers or any Sellers Group Company whether or not such person would commit any breach of his contract of employment or other contract by doing so or otherwise.
| 8.7 | Restrictions generally |
The Sellers agree that:
| (a) | the restrictions set out in this Clause 8 operate as separate restrictions in relation to each Target Group Company or, in the case of Clause 8.6, each trade or business of the Target Group; |
| (b) | the restrictions set out in this Clause 8 taken separately and together, are not more onerous or extensive than is necessary to protect the value of the Shares and the ability of the Buyer to sell, or procure the sale of, the Shares or the shares or business of any Target Group Company or any part of them/or any part of the business of the Target Group, and are also fair and reasonable, having regard to all the circumstances, including the amount which it is to receive under this Agreement; |
| (c) | in the event that a court holds that any of the restrictions set out in this Clause 8 would be unenforceable unless some part of it were deleted or its scope were reduced (by being limited to a specific type of business, by its duration or geographic extent being reduced or in any other way), the restriction shall have effect, and shall be deemed always to have had effect, subject to such alterations to the extent they are necessary to prevent it from being unenforceable; and |
| (d) | each of the restrictions set out in this Clause 8 is separate from the others so that it will not be rendered unenforceable if (despite the above) all or any of the other restrictions is unenforceable. |
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| 8.8 | Indemnity for breach of restrictions |
The Sellers covenant to pay to the Buyer on demand and on an after-Tax basis an amount equal to any and all Losses and Expenses which the Buyer and/or the Target Group may incur as a result of a breach by the Sellers or any Sellers Group Company to any of the restrictions set out in this Clause 8.
| 8.9 | Other existing or future obligations |
The restrictions set out in this Clause 8 shall neither affect nor be affected by any obligations which the Sellers may have under any contract now or after the date of this Agreement in force between it and any Target Group Company or the Buyer Group.
| 9 | GUARANTEE |
| 9.1 | Guarantor’s obligations |
In consideration of the Buyer entering into this Agreement and other good and valuable consideration, the Guarantor hereby unconditionally and irrevocably covenants with the Buyer as a primary obligation of the Guarantor:
| (a) | to procure that the Sellers shall perform punctually all of their obligations under the Transaction Documents and under all agreements entered into pursuant to them (including all variations, extensions and renewals of any such agreement); |
| (b) | that, if and whenever the Sellers shall be in default in the payment when due of any amount payable under any such agreement, the Guarantor shall immediately on demand pay all amounts then payable by the Sellers as though the Guarantor instead of the Sellers were expressed to be the principal debtor; and |
| (c) | to pay to the Buyer on demand an amount equal to any and all Losses and Expenses which it may pay or incur in collecting any amount payable by the Sellers or the Guarantor in connection with any matter referred to in this Clause 9.1 including: |
| (i) | the disputing and/or settlement of any claim under Clause 9.1 and any steps taken to avoid and advice sought in connection with any actual, threatened or anticipated claim; |
| (ii) | any legal proceedings in which the Buyer makes a claim under Clause 9.1; and |
| (iii) | the enforcement of any such settlement or judgment. |
| 9.2 | Guarantor’s liability not discharged |
The Guarantor acknowledges that its liability as guarantor under this Clause 9 shall not be discharged or impaired in any way by:
| (a) | any release of or granting of time to the Sellers or other person or any other indulgence, waiver, consent, or concession being granted to the Sellers or other person; |
| (b) | the release of the Sellers or any other person under the terms of any composition or arrangement with any creditor of any Sellers Group Company; |
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| (c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights against, or security over assets of, the Sellers or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
| (d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Sellers or any other person; |
| (e) | any amendment, variation, renewal, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any agreement referred to in Clause 9.1(a) or any other document or security including any change in the purpose of any agreement referred to in Clause 9.1(a) or other document or security (other than an express release or variation of this guarantee); and |
| (f) | any other act, omission, dealing or matter of the Sellers (including any change in the constitutional documents of the Sellers) or the insolvency, liquidation, dissolution, reconstruction, amalgamation or bankruptcy or other similar proceedings of the Sellers. |
| 9.3 | Release of Guarantor’s obligations |
Any release, compromise or discharge (in whole or in part) of the obligations of the Guarantor under this Agreement shall be deemed to be made subject to the condition that it will be void if any payment or security which the Buyer may receive or has received from the Sellers or the Guarantors or on their behalf is set aside or proves invalid for whatever reason and the liability of the Guarantor under this Clause 9 shall continue or be reinstated as if the release, compromise or discharge had not occurred.
| 9.4 | Continuing guarantee |
| (a) | The guarantee contained in this Clause 9 is a continuing guarantee and will extend to the ultimate balance of sums payable by the Sellers under any Transaction Documents, regardless of any intermediate payment or discharge in whole or in part. |
| (b) | The guarantee contained in this Clause 9 is in addition to and not in substitution for any other security which the Buyer may now or after the date of this Agreement hold for the obligations of the Sellers under any agreement referred to in Clause 9.1(a). The Guarantor waives any right it may have of first requiring the Buyer to proceed against or enforce any other rights or security or claim payment from any person (including to commence any proceedings under any Transaction Document) before claiming or commencing proceedings under this Clause 9. This waiver applies irrespective of any law or any provision of a Transaction Document to the contrary. |
| 9.5 | Payment |
All payments to be made by any party under any Transaction Document pursuant to the terms thereof shall be made on the due date in cleared funds and to such account as the party entitled to such payment shall specify in writing reasonably in advance of the due date.
| 9.6 | Guarantor’s warranties |
The Guarantor warrants to the Buyer that each of the following statements is at the date of this Agreement true, accurate and not misleading in any respect:
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| (i) | it has the requisite capacity, power and authority, and has taken all necessary corporate action to enable it, to enter into, and perform all its obligations under, this Agreement; |
| (ii) | this Agreement constitute its legal, valid and binding obligations enforceable against it in accordance with its terms; |
| (iii) | the execution and delivery of, and performance by, it of this Agreement does not and will not result in a breach of, or constitute any default under, any law or regulation applicable to it, any order, judgement or decree by any court or governmental agency to which it is a party or by which it is bound, its constitutional documents or any agreement to which it is a party; |
| (iv) | all consents, licences, approvals and authorisations required for it to enter into and perform its obligations under this Agreement and the transactions contemplated by it have been obtained and are in full force and effect; |
| (v) | no action, suit, proceeding, litigation or dispute against it is presently taking place or pending or, to its knowledge, threatened which would or might reasonably be expected to inhibit its ability to perform its obligations under this Agreement; and |
| (vi) | in so far as it is a body corporate: |
| (A) | it is a body corporate duly incorporated and existing under the laws of the jurisdiction in which it is incorporated; |
| (B) | no order has been made or petition presented or resolution passed for its winding up, no provisional liquidator has been appointed in relation to it, and no meeting has been convened for the purpose of its winding up, and it is not insolvent or unable to pay its debts as they fall due within the meaning of any insolvency legislation applicable to it; |
| (C) | no administration order has been made and no petition for such an order has been presented in respect of it and no notice has been given or filed in relation to the appointment of an administrator of it; |
| (D) | no receiver (which expression shall include an administrative receiver) has been appointed over the whole or any part of it’s property, assets and/or undertaking and there is no unfulfilled or unsatisfied judgment or court or tribunal order outstanding against it in relation to the foregoing; |
| (E) | no voluntary arrangement has been proposed or entered into by it with any of their respective creditors under any insolvency legislation applicable to it, nor has any scheme of arrangement of its affairs or other scheme or compromise or arrangement, in each case between it and its creditors or any class of its creditors been proposed, approved or sanctioned in respect of it; and |
| (F) | so far the Guarantor is aware, no events or circumstances have arisen which entitle or would reasonably be expected to entitle any person to take any action, appoint any person, commence proceedings or obtain any order of the type mentioned in paragraphs 9.6(vi)(B) to (E) (inclusive) above. |
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| 10 | DANISH JOINT TAXATION SCHEME |
The provisions of Schedule 8 shall apply as if set out in this Clause 10 in full.
| 11 | IMPLEMENTATION AND OTHER POST-COMPLETION OBLIGATIONS |
| 11.1 | Further assurances |
Each of the parties (at their own cost) shall and shall cause any of their respective Connected Persons to execute any deeds or documents and exercise or waive any rights and generally take any action, including passing (or procuring that there is passed) any resolution which the other party may reasonably require, which may be necessary for the Transaction Documents to be carried into effect.
| 11.2 | Release of claims and liabilities |
With effect from Completion, each of the Guarantor and the Sellers hereby:
| (a) | unconditionally releases each Target Group Company from all claims by, and all liabilities and obligations to, each Sellers Group Company and any of their Connected Persons (and each shall procure that each Sellers Group Company shall unconditionally release each Target Group Company from all claims by, and all liabilities and obligations to, each Sellers Group Company and any of their Connected Persons); and |
| (b) | confirms that no agreement or arrangement is outstanding as at the Completion Date under which such a claim against, liability of, or obligation by, any Target Group Company could arise. |
| 11.3 | Release of guarantees |
With effect from Completion, each of the Guarantor and the Sellers hereby releases each Target Group Company from any securities, guaranties or indemnities given by or binding upon any Target Group Company in respect of any Losses and Expenses of any Sellers Group Companies or any of their Connected Persons.
| 11.4 | Provision of information to satisfy regulatory requirements |
| (a) | At all times following Completion, the Sellers undertake to provide the Buyer as soon as reasonably practicable on request with all information in Sellers’ possession in relation to the Target Group if it is required for the purposes of complying with any requirement to make a bona fide disclosure to a court, governmental, official, regulatory or stock exchange authority or to inspectors or others authorised by such an authority or by or under any legislation to carry out any enquiries or investigation or as otherwise required by any applicable legislation or to a Taxation Authority in connection with the management of the Tax affairs of the Target Group or any entity within the Buyer Group. |
| (b) | From and after the date of this Agreement, the Sellers shall, and shall procure that each of their respective officers, employees and agents shall, provide the Buyer or any officer, employee or agent of the Buyer, at the sole expense of the Buyer and to the extent reasonably obtainable by the Sellers, with reasonable access to the data and financial information of the Targets and the Shares, as the Buyer may require in order to obtain or develop historical and/or pro forma financial information and other disclosures required by the Buyer to comply with the Buyer’s public reporting obligations under the Securities Act of |
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| 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the United States Securities and Exchange Commission (the “SEC”) promulgated thereunder, including but not limited to the requirements of Form F-3, Rule 3-05 of Regulation S-X, Article 11 of Regulation S-X, Section 14(a) and any related interpretive guidance promulgated by the SEC, including in connection with any report required to be filed under the Exchange Act or, if applicable, in any proxy statement required to be furnished to the Buyer’s stockholders (each, an “Exchange Act Report”) or any registration statement (including any pre- or post-effective amendment thereto or any prospectus or prospectus supplement in respect thereof) or any private placement offering memorandum or supplement in respect thereof (each a “Registration Statement & Prospectus or Offering Memorandum”), it being understood that such reporting obligations are the sole obligation of the Buyer. Each of the Sellers and their respective officers, employees and agents (at the sole expense of the Buyer) shall: |
| (i) | provide reasonable cooperation in connection with the preparation of each Exchange Act Report and Registration Statement & Prospectus or Offering Memorandum, including providing reasonable access to auditors, employees, books and records, and any financial data reasonably requested by the Buyer in connection therewith, but solely to the extent that any such information and/or cooperation is (A) reasonably necessary to include in an Exchange Act Report or Registration Statement & Prospectus or Offering Memorandum and (B) reasonably obtainable by the Sellers; and |
| (ii) | use commercially reasonable efforts to cause its independent public accountants to provide any consent necessary for the filing of such documents and to deliver a customary comfort letter to the Buyer (in each case, at the sole expense of the Buyer) with respect to financial information for time periods before the Completion Date relating to the Transaction included as part of such documents. |
| 11.5 | To the extent not resolved prior to the Completion Date, the Sellers shall (at no cost to the Buyer or Ultraship Crewing Philippines, Inc) provide all reasonable assistance requested by the Buyer in order to ensure (and the Sellers shall exercise any rights either holds so as, to the extent possible, procure) that all necessary invoicing formalities are correctly completed and/or corrected in connection with the provision of services under the Manning Agreement dated 8 February 2018 and made between Ultraship ApS and Ultraship Crewing Philippines, Inc. In particular, but without limitation, the Sellers shall assist the Buyer and Ultraship Crewing Philippines, Inc. so as to ensure that the advice provided to Ultraship Crewing Philippines, Inc. by M. Ng & T. Lopez Partnership Firm in a letter dated 13 July 2021 and headed “Taxability on Proceeds of Advances for Manning Fees and Operating Expense Funds” is followed and implemented |
| 12 | COSTS |
| 12.1 | Responsibility for costs |
| (a) | Each party shall pay its own costs, charges and expenses in relation to the negotiation, preparation, execution and implementation of the Transaction Documents and any related matters and investigating the affairs of the Target Group. All stamp, transfer and registration taxes, duties and charges and all (if any) notarial fees payable in connection with the sale of Shares or the issuance of the Consideration Shares will be payable by the Buyer. |
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| (b) | Each of the Sellers undertakes to the Buyer and agrees that that none of the costs referred to in Clause 12.1(a) and incurred by any Sellers Group Company shall be borne or otherwise payable by any Target Group Company (whether before or after Completion). |
| 13 | CONFIDENTIALITY AND ANNOUNCEMENTS |
| 13.1 | Non-disclosure |
The Sellers and the Buyer shall, and shall procure that the officers, employees and agents of each Sellers Group Company (in the case of the Sellers) and each Buyer Group Company (in the case of the Buyer) respectively shall, keep confidential and shall not disclose or make available to any person, for a period of three years, after the date of this Agreement, and shall use only for the purpose of exercising or performing its rights and obligations under or as otherwise contemplated by this Agreement, (a) the Transaction Documents, (b) the terms of the Transaction Documents and/or the negotiations relating to the Transaction Documents, and (c) any information acquired by that party which relates to the business or activities or affairs of the other party or, in the case of the Sellers, any Sellers Group Company, or, in the case of the Buyer, any Buyer Group Company.
| 13.2 | Restriction not applicable |
Clause 13.1 shall not apply:
| (a) | if and to the extent agreed in writing by the Sellers and the Buyer, but such agreement shall not be unreasonably withheld or delayed; |
| (b) | to information that is already or subsequently enters into the public domain other than following a breach by the disclosing party of Clause 13.1; or |
| (c) | to information acquired by a party from an unconnected source free from any obligation of confidence to any other person. |
| 13.3 | Permitted disclosures |
Clause 13.1 shall not apply to:
| (a) | the extent necessary to vest the full benefit of this Agreement in the Buyer including informing trade connections of the Target Group after Completion of the change of ownership of the Targets; |
| (b) | the extent necessary to obtain any consents to the transactions contemplated by the Transaction Documents; |
| (c) | information, including, without limitation, any Transaction Document, required to be disclosed by the Sellers and/or the Buyer by or to a court, governmental, official, regulatory or stock exchange authority or to inspectors or others authorised by such an authority or by or under any applicable legislation to carry out any enquiries or investigation or as otherwise required by any applicable legislation, including, without limitation, any such information or Transaction Document required to be disclosed in order to comply with all applicable disclosure laws and regulations; |
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| (d) | information disclosed to the employees, officers, agents, professional advisers of any party to the extent necessary or reasonable for such persons to obtain the same for the purpose of discharging their responsibilities; |
| (e) | information disclosed to or used only by any permitted assignee, or any prospective Buyer of any of the Shares or any material assets of any Buyer Group Company, or any prospective investor in any Buyer Group Company after Completion insofar as it is required for them to evaluate the proposed purchase and/or investment; |
| (f) | information disclosed in connection with any proceedings arising out of or in connection with this Agreement or any other Transaction Document to the extent necessary to protect its interests; or |
| (g) | information disclosed to a Taxation Authority in connection with the management of the Tax affairs of the disclosing party or any person connected with that party, |
provided always that the disclosing party shall use all reasonable endeavours to procure that any information so disclosed is used only for the purposes for which it was disclosed and is kept confidential by the person to whom it is disclosed.
| 13.4 | Press announcement |
The parties agree to release a press announcement as soon as reasonably practicable following the date of this Agreement in the approved form.
| 14 | OTHER PROVISIONS |
| 14.1 | Entire agreement |
This Agreement together with the other Transaction Documents constitutes the entire agreement between the parties regarding the sale and purchase of the Shares and related matters and supersedes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any kind, whether or not in writing, regarding the same (including the Letter of Intent), all of which (except in the case of fraud) are terminated by this Agreement and shall cease to have effect in all respects, and the parties confirm that there are no collateral or supplemental agreements relating to the Transaction Documents.
| 14.2 | Non-reliance and waiver |
Each party acknowledges that it does not rely on, and it has not been induced to enter into this Agreement and the other Transaction Documents by, any warranty, representation, statement, agreement or undertaking of any nature whatsoever, other than as are expressly set out in this Agreement. Each party irrevocably and unconditionally waives any right it may have to damages or rescission or any other remedy in respect of any misrepresentation, warranty or undertaking, including by way of a claim or defence based on estoppel by convention, representation or otherwise, not contained in this Agreement or any other Transaction Document unless such misrepresentation, warranty or undertaking was made fraudulently.
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| 14.3 | Assignment |
| (a) | This Agreement shall be binding on and enure for the benefit of each party’s successors and assigns. No party shall without the prior written consent of the other parties assign, transfer, charge or deal in any other manner with this Agreement or any of its rights (whether to damages or otherwise) arising under or in connection with this Agreement, or purport to do any of the same, nor sub-contract any or all of its obligations under this Agreement, and any such assignment, transfer, charge or dealing shall be void for all purposes. |
| 14.4 | Right of set off, deductions and withholdings and Tax on payments |
| (a) | All amounts due from one party (the “payer”) to another (the “payee”) in connection with any Transaction Document shall be paid in full, without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax required by law). |
| (b) | If any deductions or withholdings are required by law to be made from any of the sums payable in connection with any Transaction Document, (excluding the Consideration where the deduction or withholding is not a Payer-Linked Deduction) the payer shall provide any evidence of the relevant withholding as the payee may reasonably require and shall pay to the payee any sum as will, after the deduction or withholding is made, leave the payee with the same amount as it would have been entitled to receive without that deduction or withholding. |
For the purposes of this Clause, a “Payer-Linked Deduction” means any deduction or withholding imposed on the Consideration that would not have arisen but for a connection of the payer with the jurisdiction imposing it.
| (c) | If any sum payable by the payor to the payee under this Agreement (but, for the avoidance of doubt, excluding Consideration) is subject to Tax in the hands of the payee, the payor shall pay any additional amount required to ensure that the net amount received by the payee shall be the amount that the payee would have received if the payment was not subject to Tax. |
| (d) | If the payer makes an increased payment pursuant to Clause 14.4(b) or (c) and the payee receives a Relief in respect of the Tax that gives rise to such increased payment, the payee shall reimburse the payer such amount as shall leave the payee in the same position as it would have been in had no such deduction or withholding been required to be made. |
| 14.5 | Waivers, rights and remedies |
| (a) | No failure, omission or delay (in whole or in part) on the part of any person in exercising, enforcing or pursing any right or remedy provided by law or under any Transaction Document shall impair such right or remedy or operate as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude or restrict any other or further exercise of it or the exercise of any other right or remedy. |
| (b) | A waiver by any person of a breach of or default under any Transaction Document shall not constitute a waiver of any other breach or default, shall not affect the other terms of any Transaction Document or the rights of any other person to any Transaction Document and shall not prevent a party from subsequently requiring compliance with the waived obligation. |
| (c) | Any waiver (in whole or in part) of any right or remedy under this Agreement must be set out in writing, signed by or on behalf of the person granting the waiver and may be given subject to any conditions thought fit by the grantor and, unless otherwise expressly stated, any waiver shall be effective only in the instance and only for the purpose for, and in favour of the person to, which it is given. |
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| (d) | Unless specifically provided otherwise, the rights and remedies of any person under or pursuant to any Transaction Document are cumulative, may be exercised as often as such person considers appropriate and are in addition to its rights and remedies under the general law. |
| (e) | Notwithstanding any express remedy provided under this Agreement and without prejudice to any other right or remedy which any party may have, each party acknowledges and agrees that damages alone may not be an adequate remedy for any breach by it of the provisions of this Agreement, so that in the event of a breach or anticipated breach of such provision, the remedies of injunction and/or an order for specific performance or other equitable relief would in appropriate circumstances be available. |
| 14.6 | Variations |
No variation of any Transaction Document shall be valid unless it is agreed in writing and signed by or on behalf of each of the parties to such Transaction Document, unless specifically provided otherwise in such Transaction Document.
| 14.7 | Provisions of Agreement or Transaction Documents severable |
If any term or provision of this Agreement and/or any other Transaction Document is, or becomes, invalid, unenforceable or illegal, in whole or in part, under any applicable legislation, such term or provision or part shall to that extent be deemed not to form part of this Agreement and/or the relevant Transaction Document (as the case may be), but the validity, enforceability or legality of the remaining provisions of this Agreement and/or the relevant Transaction Document shall not be impaired.
| 14.8 | Counterparts |
This Agreement and each of the other Transaction Documents may be entered into in any number of counterparts and by the parties to each such agreement on separate counterparts, each of which when so executed and delivered shall be an original but each such Transaction Document shall not be effective until each party to such Transaction Document has executed at least one counterpart, but all the counterparts for each Transaction Document shall together constitute one and the same instrument. The exchange of a fully executed version of a Transaction Document (in counterparts or otherwise) by electronic transmission in PDF format shall be sufficient to bind the parties to the terms and conditions of such agreement and no exchange of hard copy originals is necessary.
| 14.9 | Third party rights |
This Agreement and the other Transaction Documents are made for the benefit of the respective parties to it and to them and their successors and permitted assigns only and are not intended to benefit, and no term of it or them shall be enforceable by, any other person by virtue of the Contracts (Rights of Third Parties) Act 1999.
| 14.10 | Sellers jointly and severally liable |
Every obligation of the Sellers or any of them under the Transaction Documents is undertaken by all the Sellers jointly and severally and any and all rights which the Buyer has against the Sellers or any of them under the Transaction Documents shall be rights against all the Sellers jointly and severally and each Sellers is and shall remain an absolute and original obligor under the Transaction Documents and not merely a surety for the others or some or one of them.
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| 14.11 | Invalidity, waiver etc.; no effect on joint and several obligations |
Notwithstanding the provisions of this Agreement or any other Transaction Document which provide for joint and several liability on the part of the Sellers:
| (a) | if any provision of any of the Transaction Documents is or becomes invalid or unenforceable as regards a Sellers, that shall not impair its validity or enforceability as regards the other Sellers; and |
| (b) | the Buyer is entitled to grant any time, indulgence, waiver or release (total or partial) to, or enter into any compromise or agreement with, any Sellers, and that shall not affect the liabilities or the obligations of the other Sellers. |
| 15 | NOTICES |
| 15.1 | General |
Any notice under or in connection with this Agreement shall be in writing in the English language and may be served by leaving it at or sending it by pre-paid special or recorded delivery (or by registered airmail, if applicable) or e-mail to the address of the relevant party which is set out below or to such other address as that party may have notified in writing from time to time to the party serving the notice for the purposes of receiving notices under this Agreement:
| (a) | Seller A |
Name: ULTRANAV INTERNATIONAL S.A.
Address: Towerbank Building, 50 Street and Elvira Mendez, Panama, Republic of Panama
E-mail: raimundo.sanchez@ultranav.cl
in each case marked for the attention of Raimundo Sanchez
with a copy to:
Name: Debevoise & Plimpton LLP
Attn: Gregory Gooding
Address: 919 Third Avenue, New York, NY, 10022
E-mail: ggooding@debevoise.com
| (b) | Seller B |
Name: ULTRANAV DENMARK APS
Address: Smakkedalen 6, 2820 Gentofte, Denmark
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E-mail: raimundo.sanchez@ultranav.cl
in each case marked for the attention of Raimundo Sanchez
with a copy to:
Name: Debevoise & Plimpton LLP
Attn: Gregory Gooding
Address: 919 Third Avenue, New York, NY, 10022
E-mail: ggooding@debevoise.com
| (c) | Guarantor |
Name: NAVIERA ULTRANAV LIMITADA
Address: Av. El Bosque Norte 500 P. 20 7550092, Las Condes, Santiago—Chile
E-mail: raimundo.sanchez@ultranav.cl
with a copy to:
Name: Debevoise & Plimpton LLP
Attn: Gregory Gooding
Address: 919 Third Avenue, New York, NY, 10022
E-mail: ggooding@debevoise.com
| (d) | the Buyer |
Name: NAVIGATOR HOLDINGS LTD
Address: Navigator Holdings Ltd., c/o NGT Services (UK) Limited, 10 Bressenden Place, London SW1E 5DH
E-mail: harry.deans@navigatorgas.com
legal.notices@navigatorgas.com
in each case marked for the attention of Harry Deans and John Reay
with a copy to:
Name: Watson Farley & Williams LLP
Attn: Mark Tooke
Address: 15 Appold Street, London EC2A 2HB, United Kingdom
E-mail: mtooke@wfw.com
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in each case marked for the attention of Mark Tooke Ref: 23846.50048
| 15.2 | Effective date or time of notices |
Subject to Clauses 15.3 and 15.5:
| (a) | a notice which is left at an address specified for the purposes of notices under this Agreement shall be deemed to be served, and shall take effect, at the time when it is delivered; |
| (b) | a notice which is sent by special delivery or recorded delivery (or by registered airmail, if applicable) is deemed to have been served, and shall take effect, at 10.00 am on the third Business Day after the date on which it was posted. |
| (c) | a notice which is sent by e-mail shall be deemed to be served, and shall take effect, after its transmission is completed. |
| 15.3 | Evidence of service |
In proving the giving of notice under this Clause 15, it shall be conclusive evidence to prove that it was left at the appropriate address or that the envelope containing it was properly addressed and delivered into the custody of the postal authorities or that the e-mail was despatched and no delivery failure report was received.
| 15.4 | Service outside business hours |
If under Clause 15.2 a notice would be deemed to be served:
| (a) | on a day which is not a Business Day; or |
| (b) | on a Business Day, but after 5.00 pm, |
the notice shall (subject to Clause 15.5) be deemed to be served, and shall take effect, at 10.00 am on the next Business Day.
| 15.5 | Illegible notices |
A notice shall not be deemed to have been served in accordance with Clauses 15.2 and 15.3, and shall not take effect, if the recipient of a notice notifies the sender within one hour after the time at which the notice would otherwise be deemed to be served that the notice has been received in a form which is illegible in a material respect.
| 15.6 | Valid notices |
A notice under or in connection with this Agreement shall not be invalid by reason of any mistake or typographical error or if the contents are incomplete if it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars should have been. In circumstances where a notice is or appears to be incorrect or unclear, the recipient of the notice shall take reasonable steps to ascertain as soon as possible from the sender of the notice the incorrect or unclear information.
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| 15.7 | Meaning of “notice” and “address” |
In this Clause 15, “notice” includes any demand, consent, authorisation, approval, instruction, waiver or other communication and “address” includes e-mail address.
| 15.8 | Interference with notices |
No party shall prevent or delay service or deemed service on it of a notice connected with this Agreement or attempt to do so.
| 15.9 | Provisions not applicable to court proceedings |
For the avoidance of doubt, the parties agree that the provisions of this Clause shall not apply in relation to the service of any writ, summons, order, judgment or other document relating to or in connection with any court proceedings.
| 16 | GOVERNING LAW AND DISPUTES |
| 16.1 | English law |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.
| 16.2 | Escalation to Senior Management Representatives |
In the event of a dispute arising out of or relating to this Agreement, including any question regarding its existence, validity or termination, the Buyer or the Sellers may (but shall not be obliged to) first seek settlement of that dispute by negotiation between Senior Management Representatives (“Negotiation”) in which case:
| (a) | the party seeking to commence such Negotiation shall give the other party written notice of the dispute, following which both parties’ Senior Management Representatives shall meet within 7 days of the notice being provided to discuss the dispute and seek to agree a resolution of the same within 21 days from that meeting; and |
| (b) | if the relevant Senior Management Representatives for both parties have agreed to enter into Negotiation but are unable to resolve the relevant dispute within the time period specified in Clause 16.2(a), then the matter shall be referred to and finally resolved by LCIA arbitration in accordance with Clause 16.3. |
Nothing in this Clause 16.2 shall prevent either parties’ right to choose to immediately commence arbitration in accordance with clause 16.3 below in respect of a dispute arising out of or in connection with this Agreement.
| 16.3 | LCIA arbitration |
Subject to the option available to either party under Clause 16.2 above, any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Arbitration Rules in force at the date of this Agreement, which Rules are deemed to be incorporated by reference into this clause, and the following shall apply:
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| (a) | the number of arbitrators shall be three. The Sellers shall nominate one arbitrator and the Buyer shall nominate the second arbitrator. If the Sellers or the Buyer fail to appoint an arbitrator within 28 days of receiving notice of the appointment of an arbitrator by the other party, such arbitrator shall be appointed by the LCIA Court. The two arbitrators nominated by or on behalf of the parties to the arbitration together shall provide to the parties a list identifying candidates that the two arbitrators recommend those parties consider appointing to be the third and presiding arbitrator, who shall act as chairperson of the tribunal. If the parties do not agree on the third arbitrator within 14 days of receiving the list of recommendations, then the third arbitrator shall be chosen by the LCIA Court (as defined in the LCIA Arbitration Rules); |
| (b) | the seat, or legal place, of arbitration shall be London; and |
| (c) | the language to be used in the arbitral proceedings shall be English. |
This Agreement has been executed as a Deed by or on behalf of the parties and has, on the date stated at the beginning of this Agreement, been delivered as a Deed.
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SCHEDULE 1
PART A
DETAILS OF TARGET A
| Name | Othello Shipping Company S.A. | |
| Date and country of incorporation | 26 November 1980 / Republic of Panama | |
| Registered number | Microjacket 63655, Roll 4973, Frame 32 | |
| Resident Agent’s office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Ten (10) shares of One Thousand Dollars (US$1,000) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 4 for 10 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Ultranav International, S.A. / 10 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 4973-32-63655 | |
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PART B
DETAILS OF TARGET B
| Name | Ultragas ApS | |
| Date and jurisdiction of incorporation | 29 December 2011, Denmark | |
| Registered number | 34 09 34 82 | |
| Registered office | Smakkedalen 6, 2820 Gentofte, Denmark | |
| Directors | Dag Karl Albert Von Appen Burose (Chairman) Jan Vincent Vermeij Chamy Peter Stokes Raimundo Sanchez Hanisch | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
21,000 shares of nominally DKK 10 each | |
| Registered shareholders (with numbers of shares and beneficial owners) |
ULTRANAV Denmark ApS (sole shareholder).
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | DKK-34 09 34 82 | |
| Accounting reference date | 31 December | |
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PART C
DETAILS OF THE TARGET A SUBSIDIARIES
| Name | Adela Shipping And Finance, Inc. | |
| Date and country of incorporation | 20 April 1987 / Republic of Panama | |
| Registered number | Microjacket 191043, Roll 21225, Frame 61 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into One Thousand (1,000) shares of Ten Dollars (US$10) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 3 for 1,000 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 1,000 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 2441679-1-810930 | |
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| Name | Adriaticgas Shipping Inc. | |
| Date and country of incorporation | 07 August 2013 / Republic of Panama | |
| Registered number | Jacket 810928, Document 2441673 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 2441673-1-810928 | |
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| Name | Alameda Shipping Inc. | |
| Date and country of incorporation | 27 August 2001 / Republic of Panama | |
| Registered number | Jacket 405097, Document 264615 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Five Hundred (500) without nominal or par value | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 2 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 264615-1-405097 | |
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| Name | Arcticgas Shipping Inc. | |
| Date and country of incorporation | 04 December 2014 / Republic of Panama | |
| Registered number | Folio 155587903 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 155587903-2-2014 | |
41
| Name | Atlanticgas Shipping Inc. | |
| Date and country of incorporation | 07 August 2013 / Republic of Panama | |
| Registered number | Jacket 810932, Document 2441682 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 2441682-1-810932 | |
42
| Name | Balearicgas Shipping Inc. | |
| Date and country of incorporation | 07 August 2013 / Republic of Panama | |
| Registered number | Jacket 810930, Document 2441679 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%)
| |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 2441679-1-810930 | |
43
| Name | Beringgas Shipping Inc. | |
| Date and country of incorporation | 04 December 2014 / Republic of Panama | |
| Registered number | Folio 155587907 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 155587907-2-2014 | |
44
| Name | Celticgas Shipping Inc. | |
| Date and country of incorporation | 07 August 2013 / Republic of Panama | |
| Registered number | Jacket 810931, Document 2441680 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 2441680-1-810931 | |
45
| Name | Falstria Shipping Company S.A. | |
| Date and country of incorporation | 04 April 2013 / Republic of Panama | |
| Registered number | Jacket 799280, Document 2360953 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 2360953-1-799280 | |
46
| Name | Fionia Shipping Company Inc. | |
| Date and country of incorporation | 2 January 2019 / Republic of Panama | |
| Registered number | Folio 155674263 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 155674263-2-2019 | |
47
| Name | Highland Shipping Company S.A. | |
| Date and country of incorporation | 02 April 2002 / Republic of Panama | |
| Registered number | Jacket 415043, Document 332882 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into One Thousand (1,000) shares of Ten Dollars (US$10) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 2 for 1,000 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 1,000 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 332882-1-415043 | |
48
| Name | Lalandia Shipping Company S.A. | |
| Date and country of incorporation | 22 August 2012 / Republic of Panama | |
| Registered number | Jacket 778062, Document 2231128 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 2231128-1-778062 | |
49
| Name | Langelandia Shipping Company Inc. | |
| Date and country of incorporation | 2 January 2019 / Republic of Panama | |
| Registered number | Folio 155674262 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%) • Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 155674262-2-2019 | |
50
| Name | Mona Shipping Company S.A. | |
| Date and country of incorporation | 28 December 2018 / Republic of Panama | |
| Registered number | Folio 155674256 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 155674256-2-2018 | |
51
| Name | Pacificgas Shipping Inc. | |
| Date and country of incorporation | 04 December 2014 / Republic of Panama | |
| Registered number | Folio 155587896 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 155587896-2-2014 | |
52
| Name | Pentland Shipping Company S.A. | |
| Date and country of incorporation | 02 April 2002 / Republic of Panama | |
| Registered number | Jacket 415050, Document 332896 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into One Thousand (1,000) shares of Ten Dollars (US$10) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 2 for 1,000 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 1,000 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 332896-1-415050 | |
53
| Name | Zeeland Shipping Company S.A. | |
| Date and country of incorporation | 1 December 2004 / Republic of Panama | |
| Registered number | Jacket 469152, Document 703123 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 703123-1-469152 | |
54
| Name | Zelandia Shipping Company S.A. | |
| Date and country of incorporation | 30 March 2011 / Republic of Panama | |
| Registered number | Jacket 731295, Document 1948088 | |
| Registered office | Tower Financial Center, 50 Street and Elvira Mendez, Panama, Republic of Panama | |
| Directors | Dag Von Appen Burose / President
Enrique Ide Valenzuela / Secretary / Treasurer
Michael Schroder Seemann
Jan Vermeij Chamy
Raimundo Sanchez Hanisch | |
| Secretary | Enrique Ide Valenzuela | |
| Authorised share capital | Ten Thousand Dollars (US$10,000) divided into Five Hundred (500) shares of Twenty Dollars (US$20) each | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
Certificate No. 1 for 500 shares, fully paid and non assessable | |
| Registered shareholders (with numbers of shares and beneficial owners) |
Othello Shipping Company, S.A. / 500 shares
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | RUC: 1948088-1-731295 | |
55
PART D
DETAILS OF THE TARGET B SUBSIDIARIES
| Name | ULTRASHIP ApS | |
| Date and jurisdiction of incorporation | 7 February 2014, Denmark | |
| Registered number | 32 33 39 23 | |
| Registered office | Smakkedalen 6, 2820 Gentofte, Denmark | |
| Directors | Christian Harald Csaszar Giesecke
Jan Vincent Vermeij Chamy
Dag Karl Albert Von Appen Burose | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
5,000 shares of nominally DKK 10 each | |
| Registered shareholders (with numbers of shares and beneficial owners) |
ULTRAGAS ApS (sole shareholder)
The beneficial owners are the following:
• Per Albert Karl von Appen Burose (20%)
• Birgit Irma von Appen Burose (20%)
• Sylvia Katarina von Appen Burose (20%)
• Dag Karl Albert von Appen Burose (20%) | |
| Auditors | EY Godkendt Revisionspartnerselskab, Dirch Passers Allé 36, 2000 Frederiksberg, Denmark | |
| VAT registration number | DKK-32 33 39 23 | |
56
| Name | Ultraship Crewing Philippines, Inc. | |
| Date and jurisdiction of incorporation | 23 August 2017, Republic of the Philippines | |
| Registered number | 143733 | |
| Registered office | 2215 Leon Guinto St., Malate, Manila, | |
| Directors | Pedro Miguel F. Oca – Chairman/ President
Josefina M. Buenaseda—Treasurer
Jose Angelo Rafael E. Agcaoili—Corporate Secretary
Martin Bork | |
| Authorised Share Capital | PhP8,000,000.00 divided into 8,000 shares with a par value of PhP1,000.00 per share | |
| Issued share capital (showing if fully paid up or credited as fully paid up or not) |
PhP8,000,000.00 divided into 8,000 shares with a par value of PhP1,000.00 per share | |
| Registered shareholders (with numbers of shares and beneficial owners) |
||
| Name |
No. of shares |
|||
| Pedro Miguel F. Oca |
3,920 | |||
| Ultragas ApS |
1,999 | |||
| Josefina M. Buenaseda |
1,920 | |||
| Victor T. Gomez |
80 | |||
| Jose Angelo Rafael E. Agcaoili |
80 | |||
| Martin Bork |
1 | |||
57
SCHEDULE 2 COMPLETION OBLIGATIONS
PART A – SELLERS’ COMPLETION OBLIGATIONS
| 1 | Transfers in respect of the Target A Shares duly executed by Seller A as the registered holder in favour of the Buyer or an entity of the Buyer Group designated by the Buyer. |
| 2 | All certificates for the Target A Shares, together showing that the Target A Shares are registered in the name of Seller A or an indemnity in approved form for any lost certificates. |
| 3 | In respect of Target B, the original shareholders’ register with the Buyer duly registered as the holder of the Target B Shares. |
| 4 | A copy of the resolutions of the directors of Seller A, authorising the execution of this Agreement, and the other Transaction Documents which it is to execute pursuant to this Agreement. |
| 5 | Certificates or transcripts of registry (or the equivalent) from the relevant flag state authorities of each Vessel for the main registry of each Vessel dated not earlier than seven Business Days prior to Completion evidencing the registered ownership of the Vessels. |
| 6 | Class maintenance certificates (or equivalent) from the relevant classification society of each Vessel dated not earlier than seven Business Days prior to Completion showing that the Vessels are “in class” or “class maintained” without condition or recommendation. |
| 7 | A copy of the resignation letters in the approved form duly executed by the directors of the Target Group Companies listed at Schedule 7. |
| 8 | Evidence of any required corporate approvals to the transfer of the Target B Shares, including without limitation any approvals required pursuant to the articles of association of Target B. |
| 9 | A copy of the resolutions of the directors of Seller B, authorising the execution of this Agreement, and the other Transaction Documents which it is to execute pursuant to this Agreement. |
| 10 | A copy of the resolutions of the directors of the Guarantor, authorising the execution of this Agreement, and any other Transaction Documents which it is to execute pursuant to this Agreement. |
| 11 | A copy of any power of attorney or other instrument under which this Agreement, any transfer of any Shares or any other Transaction Document is executed on behalf of any Seller or the Guarantor. |
| 12 | Certificates in respect of all issued shares in the capital of each of the Subsidiaries, to the extent they are required to be certificated under each relevant organizational document. |
| 13 | Confirmations satisfactory to the Buyer in respect of the balances on each bank account of each Target Group Company at the close of business on the Business Day before the Completion Date. |
| 14 | To the extent not in the possession of a Target Group Company, all statutory and minute books (in every case written up to, but not including, the Completion Date), common seals, certificates of incorporation, certificates of incorporation on change of name, cheque books, bank mandates, government tax clearance and annual franchise duty tax receipts and other books and records (whether statutory, financial or otherwise) of each Target Group Company, and all certificates and documents of title relating to all the investments of each Target Group Company. |
58
| 15 | A copy of the Buyer Disclosure Letter duly acknowledging receipt of the same and the Buyer Disclosure Documents. |
| 16 | The duly executed Sellers Disclosure Letter and the other Sellers Disclosure Documents. |
| 17 | The duly executed Transitional Services Agreement. |
| 18 | The duly executed Investor Rights Agreement |
| 19 | The Services Agreements Termination Deeds duly executed in each case. |
| 20 | Amendment and restatement agreements in the approved form for each of the Target Group’s five secured financing facilities, duly executed by all parties thereto. |
| 21 | Evidence satisfactory to the Buyer that all conditions precedent contained in the amendment and restatement agreements referred to in paragraph 20 above have been satisfied. |
59
PART B – BUYER COMPLETION OBLIGATIONS
| 1 | A copy of the minutes of a meeting of the directors of the Buyer, authorising the execution of this Agreement and any other Transaction Document which it is to execute pursuant to this Agreement. |
| 2 | A copy of the Sellers Disclosure Letter duly acknowledging receipt of the same and the Sellers Disclosure Documents. |
| 3 | The duly executed Buyer Disclosure Letter and the other Buyer Disclosure Documents. |
| 4 | The duly executed Investor Rights Agreement. |
| 5 | A copy of any power of attorney or other instrument under which this Agreement or any other Transaction Document is executed on behalf of the Buyer. |
| 6 | New guarantees in the approved form in relation to each of the amended and restated finance agreements in respect of the Target Group’s five secured financing facilities, duly executed by all parties thereto. |
60
SCHEDULE 3
SELLERS WARRANTIES
| 1 | THE TARGETS AND THE SHARES |
| 1.1 | Information |
| (a) | The information set out in Parts A, B, C and D of Schedule 1 regarding the Target Group Companies is true and accurate. |
| (b) | Each Target Group Company is duly incorporated or formed and validly exists under the laws of its jurisdiction of incorporation or formation. |
| 1.2 | Title to Shares |
| (a) | The Shares constitute one hundred per cent of the issued and allotted share capital of the Targets. |
| (b) | Seller A is the sole legal and beneficial owner of Target A Shares. |
| (c) | Seller B is the sole legal and beneficial owner of the Target B Shares. |
| (d) | The Shares have been properly allotted and issued and are fully paid or credited as fully paid. |
| (e) | There is no Security Interest, option, conversion right, right to acquire, or other adverse interest, right, equity, claim or potential claim of any description on or over or affecting any of the Shares nor are there any agreements, arrangements or commitments to give or create any such encumbrance and, as far as the Sellers are aware, no claim has been made by any person to be entitled to any of the foregoing. |
| (f) | Target B is the legal owner of shares representing 25% of the entire issued share capital of Ultraship Crewing Philippines, Inc. |
| (g) | No share certificates have been issued in respect of the Target B Shares. |
| 1.3 | No arrangements relating to share capital |
There is no agreement, arrangement, obligation or commitment (including an option or right of pre-emption or conversion) requiring or granting any person the right to require the creation, allotment, issue, transfer, redemption or repayment of, or creating or requiring the creation of any Security Interest over, or requiring the grant to a person of the right (conditional or not) to require the allotment, issue, transfer, redemption or repayment of, any shares or loan capital or other securities in the Targets now or at any time in the future and neither of the Targets has agreed to do or enter into any of the above and, as far as the Sellers are aware, no person has made any claim to be entitled to any of the above.
| 1.4 | Dividends |
All dividends or other distributions declared or due in respect of the Shares have been paid in full and have been declared, made and paid in accordance with the Targets’ constitutional documents and all applicable legislation.
61
| 1.5 | No agreement/arrangement |
Neither Target is a party to any agreement, arrangement or restriction concerning:
| (a) | the transfer or disposal of any Shares or any interest in such Shares or any restriction on them or obligation relating to them; |
| (b) | the exercise of votes at meetings of the board of the Target or of the holders of any class of Shares; or |
| (c) | the right to appoint or remove any directors of the Target. |
| 1.6 | Joint ventures etc. |
No Target Group Company:
| (a) | has, and none has agreed to, act or carry on business in partnership with any other person who is not another Target Group Company; and |
| (b) | is, and none has agreed to become, a member of any joint venture, corporate or unincorporated body, or undertaking (excluding in each case any other Target Group Company). |
| 2 | THE SELLERS |
| 2.1 | Capacity of Sellers |
As regards each of the Sellers:
| (a) | it has the requisite capacity, power and authority, and has taken all necessary corporate action to enable it, to enter into, and perform all its obligations under, the Transaction Documents to which it is a party; |
| (b) | the Transaction Documents to which it is a party constitute (or will constitute when executed) its legal, valid and binding obligations enforceable against it in accordance with their terms subject to the following matters: |
| (i) | each other party to the Transaction Documents to which it is a party having the capacity, power and authority to enter into and perform its obligations under the Transaction Documents to which it is a party; |
| (ii) | the due execution and delivery of the Transaction Documents to which it is a party by all other parties to such Transaction Documents; and |
| (iii) | applicable legislation relating to bankruptcy, fraudulent conveyance, moratorium, insolvency, liquidation, reorganisation and other legislation of general application relating to or affecting the enforcement of creditors’ rights generally or by equitable principals relating to enforceability, whether considered in a proceeding in equity or law. |
| (c) | it is entitled to sell and transfer the full legal and beneficial ownership in the Shares owned by such Seller to the Buyer on the terms set out in this Agreement; |
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| (d) | the execution and delivery of, and performance by, it of the Transaction Documents to which it is a party does not and will not result in a breach of, or constitute any default under, any law or regulation applicable to it, any order, judgement or decree by any court or governmental agency to which it is a party or by which it is bound, its constitutional documents or any agreement to which it is a party; |
| (e) | all consents, licences, approvals and authorisations required for it to enter into and perform its obligations under the Transaction Documents to which it is a party and the transactions contemplated by them have been obtained and are in full force and effect; |
| (f) | No action, suit, proceeding, litigation or dispute against it or any Seller Group Company and/or any of its Connected Persons is presently taking place or pending or, to its knowledge, threatened which would or might reasonably be expected to inhibit its ability to perform its obligations under the Transaction Documents to which it is a party; and |
| (g) | in so far as it is a body corporate: |
| (i) | it is a body corporate duly incorporated and existing under the laws of the jurisdiction in which it is incorporated; |
| (ii) | no order has been made or petition presented or resolution passed for winding up either of the Sellers, no provisional liquidator has been appointed in relation to it, and no meeting has been convened for the purpose of winding up either of the Sellers, and neither Seller is insolvent or unable to pay its debts as they fall due within the meaning of any insolvency legislation applicable to such Seller; |
| (iii) | no administration order has been made and no petition for such an order has been presented in respect of either of the Sellers and no notice has been given or filed in relation to the appointment of an administrator of either of the Sellers; |
| (iv) | no receiver (which expression shall include an administrative receiver) has been appointed over the whole or any part of the Sellers’ property, assets and/or undertaking and there is no unfulfilled or unsatisfied judgment or court or tribunal order outstanding against it in relation to the foregoing; |
| (v) | no voluntary arrangement has been proposed or entered into by either of the Sellers with any of their respective creditors under any insolvency legislation applicable to the relevant Seller, nor has any scheme of arrangement of its affairs or other scheme or compromise or arrangement, in each case between it and its creditors or any class of its creditors been proposed, approved or sanctioned in respect of either of the Sellers; and |
| (vi) | so far as the Sellers are aware, no events or circumstances have arisen which entitle or would reasonably be expected to entitle any person to take any action, appoint any person, commence proceedings or obtain any order of the type mentioned in paragraphs 2.1(g)(i) to (v) (inclusive) above. |
| 2.2 | Sellers/Targets relationship |
Neither the Sellers nor any Sellers Group Company and none of their Connected Persons:
| (a) | owe any indebtedness or other liability to any Target Group Company whether actually or contingently, whether solely or jointly with any other person and whether as principal or surety, and there is no such indebtedness or liability due or owing by any Target Group Company to the Sellers or any Sellers Group Company or any of their Connected Persons and there is no guarantee or Security Interest in respect of any such indebtedness or liability outstanding; or |
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| (b) | is entitled to a claim of any nature against any Target Group Company or has assigned to any person the benefit of a claim against any Target Group Company to which it would otherwise be entitled. |
| 3 | THE SUBSIDIARIES |
| 3.1 | Subsidiaries |
| (a) | Each Subsidiary is duly incorporated or formed and validly exists under the laws of its jurisdiction of incorporation or formation. |
| 3.2 | No other subsidiaries |
Neither of the Targets is (except in relation to the Subsidiaries or as otherwise Disclosed) the holder or beneficial owner of any shares or securities of, or of any other interest in, any undertaking (whether incorporated or unincorporated) and has not agreed to acquire any such shares, securities or interest.
| 3.3 | Title to shares of Subsidiaries |
| (a) | One of the Targets or the relevant Target Group Company is the sole legal and beneficial owner of the whole of the issued share capital of each of the Subsidiaries as shown in Parts C and D of Schedule 1, and no claim has been made by any person to be entitled to any such share capital. |
| (b) | There is no Security Interest, option, conversion right, right to acquire, or other adverse interest, right, equity, claim or potential claim of any description on or over or affecting any of the shares in the capital of any of the Subsidiaries (excluding any such interest, option, right, equity or claim in favour of another Target Group Company) nor are there any agreements, arrangements or commitments to give or create any such encumbrance. |
| (c) | No historic share transfers made in respect of any Target Group Company constitutes a breach of, or constitutes any default under, any law or regulation applicable to such Target Group Company or any order, judgement or decree by any court or governmental agency to which such Target Group Company is a party or by which it is bound, its constitutional documents or any agreement to which it is a party at the time such transfers were made and all taxes due in respect of all such share transfers have been duly paid. |
| (d) | The execution and delivery , and performance by it, of the Transaction Documents to which it is a party do not and will not result in a breach of, or constitute any default under, any agreement to which Ultraship Crewing Philippines, Inc. is a party. |
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| 3.4 | No arrangements relating to share capital |
There is no agreement, arrangement, obligation or commitment (including an option or right of pre-emption or conversion) requiring or granting any person (other than a Target Group Company) the right to require, the creation, allotment, issue, transfer, redemption or repayment of, or creating or requiring the creation of any Security Interest over, or requiring the grant to a person (other than a Target Group Company) of the right (conditional or not) to require the allotment, issue, transfer, redemption or repayment of, any shares or loan capital of any Subsidiary (or any unissued shares, loan capital or other securities of any Subsidiary) now or at any time in the future and no Subsidiary has agreed to do or to enter into any of the above and no person has commenced any claim with respect to its entitlement to any of the above.
| 4 | ACCOUNTS AND FINANCIAL MATTERS |
| 4.1 | Target Group Accounts |
The Target Group Accounts:
| (a) | show a true and fair view of the state of affairs of each Target Group Company as at the Target Group Accounts Date, and of their profit or loss and total comprehensive income for the accounting period ended on the Target Group Accounts Date; |
| (b) | have been properly prepared in accordance with: |
| (i) | Danish GAAP, in the case of the consolidated Target Group Accounts relating to Target A and the Target A Subsidiaries; |
| (ii) | Danish GAAP, in the case of each of Ultragas ApS and Ultraship ApS; |
| (iii) | Philippine Financial Reporting Standards for small Entities, in the case of Ultraship Crewing Philippines Inc.; and |
| (c) | in respect of each other Target Group Company, the generally acceptable accounting principles applicable to the jurisdiction of that Target Group Company; and |
| (d) | have been audited by an individual or firm registered to act as auditors in the jurisdiction of incorporation or formation of the relevant Target Group Company and the auditors’ reports on the Target Group Accounts are unmodified. |
| 4.2 | Target Group Management Accounts |
Having regard to the purpose for which they have been prepared, the Target Group Management Accounts have been prepared on a basis consistent in all material respects with that employed in preparing the Target Group Accounts and fairly represent the financial position of the Target Group as at the date and in respect of the period to which they relate.
| 5 | POSITION SINCE ACCOUNTS DATE |
| 5.1 | Events since Target Group Accounts Date |
Since the Target Group Accounts Date:
| (a) | there has been no material adverse change in the financial position of the Target Group taken as a whole; |
| (b) | the business of the Target Group has been carried on in the ordinary and usual course without interruption and as a going concern and in the same manner (including nature and scope) as immediately before the Target Group Accounts Date; |
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| (c) | no Target Group Company has acquired or disposed of any material assets or assumed or incurred any liabilities of a material amount, or agreed to do any of the foregoing, in each case other than in the ordinary and usual course of its business; |
| (d) | no Target Group Company has entered into, or agreed to enter into, any commitments involving capital expenditure exceeding $1,000,000 in the aggregate; |
| (e) | no change has been made in the annual base salary, benefits or other terms of employment of any director or employee of any Target Group Company which would increase the aggregate annual employment-related costs of any Target Group Company by more than 5% per annum; |
| (f) | save as provided in the Target Group Accounts, no dividend, bonus issue or other distribution of capital or income has been declared, made or paid by any Target Group Company, other than to another Target Group Company; and |
| (g) | other than as Disclosed, no Target Group Company has (i) made any payments to the Sellers or any Sellers Group Company (other than another Target Group Company) or any of their Connected Persons or any director of any such person, in each case other than payments for goods or services in the ordinary course of business and payments of salary, bonus, fees, costs and expenses and other amounts paid pursuant to a director’s terms of engagement, or (ii) so far as the Sellers are aware, sold any material property at a price less than the full market value of such property to any such person. |
| 6 | AGREEMENTS |
| 6.1 | Unusual agreements |
Other than as Disclosed, no Target Group Company is a party to any outstanding agreement (whether oral or documented):
| (a) | for the grant or creation by any Target Group Company of any Security Interest over any of its assets; |
| (b) | whether by way of guarantee, indemnity or otherwise, under which any Target Group Company is or may become liable for any obligation of any other person; |
| (c) | for any partnership, joint venture, European Economic Interest Grouping or consortium arrangement or similar or any arrangement with shareholders or for sharing commissions or other income; |
| (d) | appointing any person not in the Target Group as agent of or for any Target Group Company; |
| (e) | excluding drydocking-related expenses, which involves or is likely to involve an aggregate expenditure in excess of $1,000,000; |
| (f) | which includes the payment by the relevant Target Group Company of any commission, finder’s fee, royalty or the like, other than in the ordinary course of business; |
| (g) | which includes the payment by the relevant Target Group Company of any retention or loyalty payment or similar to an employee or any other person other than ordinary course bonuses; |
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| (h) | containing covenants limiting or excluding any Target Group Company’s rights to do business and/or to compete in any area or in any field or with any person; and |
| (i) | for the postponement or subordination of any Indebtedness. |
| 6.2 | Disclosure of material contracts |
Complete and accurate copies of all Material Contracts to which any of the Targets or the Subsidiaries is a party have been Disclosed. “Material Contract” means a contract or arrangement:
| (i) | relating to the employment of a Vessel for a period of longer than six calendar weeks where all parties’ obligations and/or liabilities thereunder have not been fully discharged or satisfied; |
| (ii) | relating to the financing of a Vessel where all parties’ obligations and/or liabilities thereunder have not been fully discharged or satisfied; and/or |
| (iii) | which represents an actual, contingent or potential benefit or liability to the relevant Target Group Company of $2,500,000 or more. |
| 6.3 | Enforceability of and compliance with agreements |
In relation to each Material Contract to which a Target Group Company is a party:
| (a) | there are no written or oral agreements which derogate from the obligations of any person other than the relevant Target Group Company or increase the obligations of the relevant Target Group Company under such Material Contract; |
| (b) | each such Material Contract is valid and subsisting and has not been terminated and is fully enforceable in accordance with its terms and none of such Material Contracts is subject to a Security Interest granted or created by the relevant Target Group Company other than under the terms of the relevant Material Contract; |
| (c) | no Target Group is, and so far as the Sellers are aware, no counterparty to a Material Contract with a Target Group Company is, in material breach of, or material default under, the terms of any such Material Contract and no material time or indulgence has been granted by the relevant Target Group Company to any such counterparty in relation to any such Material Contract; |
| (d) | the relevant Target Group Company has fulfilled in all material respects all of its obligations and performed and observed in all material respects all warranties, undertakings, covenants and agreements on its part to be fulfilled, performed and observed under each of such Material Contracts and, so far as the Sellers are aware, there are no circumstances likely to give rise to a material default by the relevant Target Group Company; |
| (e) | so far as the Sellers are aware there are no grounds upon which, on the basis of circumstances which have existed or are now existing, any counterparty to a Material Contract could terminate its obligations to the relevant Target Group Company or rescind or avoid or repudiate or unilaterally change the terms of any Material Contract by reason of any default in, or non-performance of, or fundamental breach or repudiation by the relevant Target Group Company of, its obligations under such Material Contract. No written notice of any intention to terminate, repudiate, rescind or disclaim any Material Contract has been given by any Target Group Company or received by any Target Group Company from the counterparty to such Material Contract; |
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| (f) | all necessary licences, approvals and consents required by the relevant Target Group Company prior to the entry into of each of relevant Material Contract and for its continuation were duly obtained and are subsisting and, so far as the Sellers are aware, no circumstances have arisen which would reasonably be expected to lead to withdrawal or failure to renew, if applicable, of any such licence, approval or consent; and |
| (g) | there are no outstanding claims, separately or in the aggregate, of material amounts brought by any counterparty to a Material Contract against the relevant Target Group Company under such Material Contracts and, so far as the Sellers are aware, no counterparty to any Material Contract has threatened in writing to make a claim against the relevant Target Group Company in respect of any representation, breach of condition or warranty or other express or implied term relating to any such Material Contracts. |
| 6.4 | No powers of attorney |
There are in force no powers of attorney given by any Target Group Company other than to the holder of a Security Interest solely to facilitate its enforcement, nor any other authority given by any Target Group Company to or in favour of any person (as agent or otherwise) to enter into any agreement, contract or commitment or to do anything on its behalf other than any authority of directors or employees to enter into routine trading contracts in the normal course of their duties. The Sellers Disclosure Letters set out details of all persons who have authority to bind the Targets in the ordinary course of business.
| 6.5 | Offers and tenders |
No material offer or tender or similar arrangement given or made by any Target Group Company is capable of giving rise to an agreement solely by the unilateral act of any person other than the relevant Target Group Company.
| 6.6 | Directors |
There is no outstanding contract, commitment or arrangement (other than any service agreement or similar) or any outstanding indebtedness or other liability (actual or contingent) between any Target Group Company and any director of any Target Group Company or any Connected Person of any such director or any Target Group Company (other than liability for any director remuneration or other fees and expenses payable pursuant to any service agreement or similar).
| 7 | CHANGE OF CONTROL |
| 7.1 | The sale of the Shares under this Agreement will not: |
| (a) | entitle any person to determine or terminate any material contract or arrangement with any Target Group Company; |
| (b) | result in the breach by any Target Group Company under any of the terms, conditions or provisions of any Material Contract to which any Target Group Company is now a party or any loan to or mortgage created by any Target Group Company; |
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| (c) | result in any present or future Indebtedness becoming due and payable or capable of being declared due and payable prior to its stated maturity; and |
| (d) | entitle any person to receive from any Target Group Company any finder’s fee, brokerage or other commission in connection with the sale of the Shares. |
| 8 | FINANCIAL ARRANGEMENTS |
| 8.1 | Indebtedness |
| (a) | Other than as Disclosed, no Target Group Company has outstanding nor has it agreed to incur any Indebtedness. |
| (b) | There is no outstanding guarantee, indemnity or Security Interest given by any Target Group Company in respect of any Indebtedness or liability of any other person which is not a Target Group Company. |
| 8.2 | Loans by the Targets |
| (a) | Save as Disclosed, no Target Group Company has made any loans which have not been repaid to it (other than normal trade credit). |
| (b) | No Target Group Company have any liabilities under any loan facilities or credit (other than normal trade credit). |
| 9 | ASSETS |
| 9.1 | Title to assets |
The Targets or one of their respective Subsidiaries has legal and beneficial title to all material assets which are included in the Target Group Accounts.
| 9.2 | All assets required for business |
Except as Disclosed, the assets of the Target Group Companies, together with assets which they have a contractual right to use, comprise all the tangible assets necessary for the carrying on of the business of the Target Group at the date of this Agreement.
| 10 | REAL ESTATE |
| 10.1 | Properties owned |
| (a) | No Target Group Company owns any freehold property. |
| (b) | Details of the leasehold property occupied by the Target Group Companies have been Disclosed and comprise all the properties owned, occupied or used by the Target Group or in which the Target Group has any interest and the description of the properties Disclosed is true, complete and accurate. |
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| 11 | INTELLECTUAL PROPERTY RIGHTS |
| 11.1 | Ownership of Intellectual Property |
All Intellectual Property which is used in the conduct of the business of the Target Group is:
| (a) | legally and beneficially vested in a Target Group Company as the sole owner; or |
| (b) | licensed to the appropriate Target Group Companies under valid licenses, the effectiveness of which is not affected by Completion, |
and, so far as the Sellers are aware, (i) is not being infringed, attacked, disputed or opposed by any third party and (ii) is not the subject of any claim contesting ownership or compensation.
| 11.2 | Registered Trade Marks |
Details of the registered trademarks held by any Target Group Company have been Disclosed.
| 11.3 | No infringements |
So far as the Sellers are aware, the operations of the Target Group do not infringe any Intellectual Property of a third party.
| 11.4 | Target Group IP Licences |
No Target Group Company has granted any licence to any third party to use any Intellectual Property owned by it.
| 12 | IT SYSTEMS |
| 12.1 | Target Group IT Systems owned |
The IT Systems of the Target Group are either owned by or validly licensed or leased to a Target Group Company. No Target Group Company is in material default under any such licences or leases and, so far as the Sellers are aware, there are no grounds on which they would reasonably be expected to be terminated in accordance with their terms.
| 12.2 | No failure of Target Group IT Systems |
In the last 12 months, the IT Systems of the Target Group have not failed to any material extent.
| 12.3 | Adequate capability |
The IT Systems of the Target Group (including those services to be provided under the Transitional Services Agreement) have adequate capability and capacity for the projected requirements of the business of the Target Group for not less than the last service termination date set out at Schedule 2 of the Transitional Services Agreement.
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| 13 | ENVIRONMENTAL/HEALTH AND SAFETY |
| 13.1 | End of Life Vessels |
| (d) | So far as the Sellers are aware, any Former Vessel which became an ELV while in UK or EEA waters has been recycled in accordance with the EU Ship Recycling Regulation or in compliance with the EU Waste Shipment Regulation (as the case may be). |
| (e) | So far as the Sellers are aware, any Former Vessels which were not registered under a flag of the UK or EEA at the point they became an ELV have been recycled in yards which conform to the Hong Kong Convention. |
| 14 | INSURANCE |
| 14.1 | Insurance policies in place |
Each Target Group Company has effected all insurances required by any applicable legislation to be effected by it.
| 14.2 | Policies valid and in force |
Details of the insurances maintained by the Target Group Companies have been Disclosed and such details are true and accurate and:
| (a) | nothing has been done or has been omitted to be done as a result of which any of such insurance policies has or may become void or voidable or which would affect renewal of the policies or increase premiums to a higher level than would be expected compared to normal increases due to market conditions; and |
| (b) | all premiums payable in respect of such insurance policies have been duly paid. |
| 14.3 | No claims |
All claims made by each Target Group Company under its past and present insurances during the period of 36 months ending on the date of this Agreement have been settled in full by the relevant insurers. The Sellers Disclosure Letter contains complete and accurate details of all insurance claims made by the Target Group during the period of 12 months ending on the date of this Agreement. There is no claim outstanding by any Target Group Company under, or in respect of the validity of, any such policies of insurance and, so far as the Sellers are aware, there are no circumstances which would be required under any such policies of insurance to be notified to the insurers.
| 15 | LITIGATION AND OTHER DISPUTES |
| 15.1 | No proceedings |
No Target Group Company is, and no director, officer or employee of any Target Group Company (in relation to the Target Group’s affairs and for whom the Target Group is vicariously liable) is, engaged in or a party to any litigation, arbitration, prosecution, mediation, hearing before any tribunal or any statutory, regulatory, governmental or supranational body, department, board or agency or any other official body or other legal, regulatory, administrative, alternative dispute resolution or enforcement proceedings nor, so far as the Sellers are aware, are any of the above pending or threatened against any Target
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Group Company or any such person and, so far as the Sellers are aware, there is no fact or circumstance which would reasonably be expected to give rise to the same, or form the basis of any criminal prosecution against any Target Group Company or any such person.
| 15.2 | No orders or judgements |
There is no order, decree or judgement of any court, tribunal or any governmental agency of any jurisdiction outstanding against any Target Group Company (i) which would reasonably be expected to have a material adverse effect upon the assets or business of any Target Group Company or (ii) which requires continuing compliance by any Target Group Company, in each case which remains unfulfilled or unsatisfied. No injunction or order of a court or tribunal of competent jurisdiction restraining any Target Group Company from doing anything or mandatorily requiring any Target Group Company to do anything or freezing any of its assets has been granted against any Target Group Company which is still in force. No Target Group Company has given or is bound by any undertaking or assurance to any court, tribunal, governmental agency or to any third party arising out of any legal or other proceedings which is still in force.
| 15.3 | No claims |
All claims made by each Target Group Company under its past and present insurances during the period of 36 months ending on the date of this Agreement have been settled in full by the relevant insurers. The Sellers Disclosure Letter contains complete and accurate details of all insurance claims made by the Target Group during the period of 12 months ending on the date of this Agreement. There is no claim outstanding by any Target Group Company under, or in respect of the validity of, any such policies of insurance and, so far as the Sellers are aware, there are no circumstances which would be required under any such policies of insurance to be notified to the insurers.
| 16 | COMPLIANCE WITH LEGAL REQUIREMENTS |
| 16.1 | Compliance by Target Group and officers |
Each Target Group Company is in compliance in all material respects and, so far as the Sellers are aware, every officer of the Target Group Companies (in his or her capacity as such) has complied and is continuing to comply in all material respects with all relevant legislation and regulations in any part of the world applicable to it and/or its business and/or its assets.
| 16.2 | Filings |
All material forms, particulars, resolutions and other documents required to be filed with or delivered to any governmental or regulatory authority by any Target Group Company have been properly prepared and duly filed or delivered.
| 16.3 | Constitutional documents |
The constitutional documents of each Target Group Company have been complied with in all material respects. A copy of the constitutional documents of each Target Group Company is Disclosed and is complete and accurate in all material respects.
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| 16.4 | Books and records |
The statutory books and all other registers and minute books, books of account and other statutory records of each Target Group Company required to be kept by applicable legislation are up to date in all material respects (but not including the date of this Agreement) and comprise complete and accurate records in all material respects of all information required by applicable legislation to be recorded in them other than to the extent that they are not material to the business of the Target Group.
| 16.5 | Licences and consents |
| (a) | Each Target Group Company has obtained all material licences (including statutory licences), permissions, authorisations, consents, registrations and exemptions (for purposes of this warranty 16.5(a), “licences”) required by law for the operation of its business (including in all places in which it is carried on) as currently operated and has complied in all material respects with such licences. Such licences are in full force and effect. |
| (b) | No Target Group Company has received any written notice relating to the non-compliance with, or continuation or renewal on less favourable terms of or modifications, revocation or non-renewal of, any such licences. |
| 16.6 | Anti-corruption |
| (a) | No Target Group Company or, so far as the Sellers are aware, director, officer, employee or any other Associated Person of any Target Group Company has at any time in the last three years engaged in any activity, practice or conduct which would constitute an offence under Anti-Corruption Legislation. |
| (b) | The Target Group has in place Adequate Procedures designed to prevent its Associated Persons from undertaking any conduct which would constitute an offence under Anti-Corruption Legislation. |
| (c) | No Target Group Company nor, so far as the Sellers are aware, any of their respective Associated Persons is or has been in the last three years the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body or any customer regarding any offence or alleged offence under Anti-Corruption Legislation. So far as the Sellers are aware, no such investigation, inquiry or proceedings have been threatened or are pending and, so far as the Sellers are aware, there are no circumstances likely to give rise to any such investigation, inquiry or proceedings. |
| (d) | No contract or commitment which has been entered into by any Target Group Company has been procured or obtained as the consequence of the payment to or receipt by any of the Sellers or any persons who are or were directors, officers, employees or other Associated Persons of any Target Group Company (or any person connected with any of the same) of any bribe or other corrupt payment or benefit. |
| 16.7 | No investigations and inquiries |
No investigations, inquiries or reviews by or on behalf of any Government Entity in respect of any Target Group Company or its business, assets, products or services are pending or in existence or have been conducted or threatened.
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| 17 | PUBLIC GRANTS AND SUBSIDIES |
| 17.1 | No grants |
Save as Disclosed, no Target Group Company has applied for, or received directly or indirectly, any payment, grant, subsidy, guarantee, allowance or financial assistance or other direct or indirect aid from any government department or agency or any supranational, national, local or other authority in connection with which (i) such grant is or may be liable to be repaid in whole or (ii) in part or a Target Group Company has outstanding obligations.
| 18 | EMPLOYMENT |
| 18.1 | Employees |
| (a) | The Target Group Companies are in material compliance with all applicable laws relating to labor, employment, fair employment practices, terms and conditions of employment, workers’ compensation, occupational safety and health requirements, plant closings, wages and hours, employment discrimination, disability rights or benefits, equal opportunity, labor relations, employee leave issues and unemployment insurance and related matters. |
| (b) | Except for instances that would not be, individually or in the aggregate, material to the Target Group, taken as a whole, no Target Group Company has received notice of (i) any unfair labor practice charge or complaint against such Target Group Company pending before the National Labor Relations Board or any other Government Entity, (ii) any charge or complaint against such Target Group Company pending before any Government Entity responsible for the prevention of unlawful employment practices or (iii) any complaint or lawsuit against such Target Group Company concerning employees or former employees of such Target Group Company alleging employment discrimination or violations of occupational safety and health requirements pending before a court of competent jurisdiction. To the knowledge of the Sellers, all individuals who provide services to the Target Group Companies have at all times been accurately classified by the Target Group Companies with respect to such services as an employee or a non-employee. |
| 18.2 | No collective bargaining |
No Target Group Company recognises any trade union or other body representing its employees or any of them for the purpose of collective bargaining or negotiating.
| 18.3 | No industrial action |
No strikes, lock-outs or other forms of industrial action or trade disputes affecting any Target Group Company are ongoing or, so far as the Sellers are aware, pending or threatened or contemplated nor have there been any such strikes, lock-outs or other forms of industrial action or trade disputes in the 12 months prior to the date of this Agreement.
| 18.4 | Share options/incentive plans |
No Target Group Company has and none is currently proposing to introduce any share incentive scheme, share option scheme or profit-sharing bonus or other incentive scheme for any of its employees.
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| 19 | PENSIONS |
| 19.1 | Pension schemes |
| (a) | The Pension Schemes of the Target Group Companies are the only arrangements under which any Target Group Company has or may have any obligation to provide or contribute towards pension, lump-sum, death, ill-health, disability or accident benefits in respect of its past or present officers and employees. |
| (b) | Details of the Pension Schemes of the Target Group Companies are set out in the Sellers Disclosure Documents. |
| (c) | No proposal or announcement has been made to any Target Group Personnel as to the introduction, continuance, increase or improvement of, or the payment of a contribution towards, any other pension, lump-sum, death, ill-health, disability or accident benefit. |
| 19.2 | Compliance |
Each Pension Scheme of the Target Group complies with all applicable legislation affecting pensions schemes, where applicable, and has been administered in all material respects accordance with its rules and governing documentation.
| 19.3 | No defined benefit schemes |
No Target Group Company participates, nor has any ever participated, in a defined benefit pension scheme or has any liability in respect of any such scheme.
| 19.4 | No liabilities |
All contributions, insurance premiums, tax and expenses due by any Target Group Company to and in respect of the Pension Schemes have been duly paid. There are no liabilities of any Target Group Company outstanding in respect of the Pension Schemes at the date of this Agreement.
| 19.5 | No claims |
No claims or complaints have been made or are pending or threatened in relation to the Pension Schemes or otherwise in respect of the provision of (or failure to provide) pension, lump-sum, death, ill-health, disability or accident benefits by any Target Group Company in relation to any of the Target Group Personnel. There are no facts or circumstances likely to give rise to such claims or complaints.
| 20 | TAXATION |
| (a) | All Tax for which each Target Group Company is liable, or has been liable, to account within the four years prior to the date of this Agreement has been duly paid or has been provided for in the Target Group Accounts. |
| (b) | Each Target Group Company has, in the four years prior to the date of this Agreement, made all deductions, withholdings or retentions on account of Tax that it was obliged to make from any payments made and has correctly accounted to the appropriate authority for all amounts so deducted, withheld or retained within all applicable time limits. |
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| (c) | Each Target Group Company has, in the four years prior to the date of this Agreement, maintained all records, invoices, and information in relation to Tax which it is required to maintain in accordance with applicable law. |
| (d) | All returns required to be submitted and all information required to be supplied to a Taxation Authority in the four years prior to the date of this Agreement, have been submitted, supplied, or made in accordance with applicable law and within applicable time limits. |
| (e) | No Target Group Company is involved in any dispute in relation to Tax with any Taxation Authority and no notice has been received by a Target Group Company of any audit, examination, or enquiry in relation to Tax with any Taxation Authority. |
| (f) | All financing costs, including interest, discounts and premiums payable by any Target Group Company in respect of its loans and amounts payable by any Target Group Company in respect of its derivatives contracts, are deductible in computing their profits, gains or losses for Tax purposes. |
| (g) | The Sellers Disclosure Letter contains details of any concessions, agreements, and arrangements that any Target Group Company has entered into with a Taxation Authority in the four years prior to the date of this Agreement. |
| (h) | Except for the Danish Target Group Companies, no Target Group Company: |
| (i) | is a member of a consolidated group or fiscal unity for Tax purposes nor has it been a member within the four years prior to the date of this Agreement; |
| (ii) | is a party to any agreement relating to the use of Group Relief (nor has any Target Group Company been a party to any such agreement within the four years prior to the date of this Agreement); and |
| (iii) | has entered into any arrangements for the payment of Tax liabilities which are the primary obligation of any other party in the four years prior to the date of this Agreement. |
| (i) | Each Target Group Company is treated as resident for Tax purposes only in its jurisdiction of incorporation and has not, at any time in the four years prior to the date of this Agreement, been treated as resident or as having a permanent establishment or subject to Tax in any other jurisdiction for the purposes of any double taxation agreement or for any other Tax purposes. |
| (j) | All transactions or arrangements entered into in the four years prior to the date of this Agreement between, on the one hand, any Target Group Company and, on the other hand, any other Target Group Company or any Seller Group Company, have been made on arm’s length terms and the processes by which prices and terms have been arrived at have, in each case, been fully documented to the extent required by applicable law. No notice, enquiry or adjustment has been made by any Taxation Authority in connection with any such transactions or arrangements. |
| (k) | No Target Group Company has been involved in any transaction or series of transactions the main purpose, or one of the main purposes of which, was the avoidance of Tax and no Target Group Company is aware or has been notified that a disclosure under EU Council Directive of 25 May 2018 (2018/822/EU) amending Directive 2011/16/EU is or will be required in relation to any transaction entered into by any Target Group Company. |
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| (l) | Each member of the Target Group Company which is required to be registered for VAT purposes in any jurisdiction is so registered. |
| (m) | No Target Group Company is, or has in the four years prior to the date of this Agreement been, a member of a group for the purposes of VAT other than with companies that are Target Group Companies. |
| (n) | Any document that may be necessary in proving the title of any Target Group Company to any asset which it owns at Completion (and which was subject to stamp duty or a transfer or registration tax) is duly stamped for stamp duty purposes or has had any transfer or registration tax due in respect of it paid. |
| (o) | No charge to Tax will arise on a Target Group Company by virtue of the entering into and/or completion of this Agreement. |
| (p) | Target B and each of the Target B Subsidiaries has validly elected for entry into the Danish Tonnage Tax Regime and have conducted their business in accordance with the qualifying conditions for that regime such that income, profits and gains of its shipping related activity fall only to be taxed in accordance the Danish Tonnage Tax Regime. The strategic and commercial management of the qualifying vessels operated by Target B and the Target B Subsidiaries has, since 2017 always taken place in Denmark or another EU member state for the purposes of the Danish Tonnage Tax Regime. |
| (q) | All income and expenses of Target B and the Target B Subsidiaries have been appropriately allocated as either falling inside or outside of the Danish Tonnage Tax Regime. |
| (r) | All Tax and other contributions deductible and payable under the equivalent Danish tax PAYE system (including employer tax obligations such as withholding taxes on payment of salary, including but not limited to A tax (A-skat) and labour market contributions, the DIS Taxation Scheme and/or any other Tax legislation have, so far as required to be deducted, been deducted from all payments made (or treated as made) by Target B and the Target B Subsidiaries. All amounts due to be paid to the relevant Taxation Authority in relation to the taxation of seafarers and other employees prior to the date of this agreement have been so paid by the due date, including, without limitation, all Tax chargeable on benefits provided for directors, employees or former employees of Target B and the Target B Subsidiaries or any persons required to be treated as such. |
| (s) | Target A and the Target A subsidiaries are not treated as tax resident in Chile, or otherwise subject to tax in Chile, as a result of holding board meetings within Chile (or otherwise) and have not received any Chilean source income that may have given rise to a liability to tax in Chile. |
| (t) | The appointment of Danish resident attorneys-in-fact for the purposes of conducting the business of Target A and the Target A subsidiaries has not created any liability to tax, or an obligation to register for tax, in Denmark, for Target A or any Target A subsidiary. |
| (u) | Target A and the Target A Subsidiaries have not made any intercompany loans to, and are not otherwise entitled to receive payments of interest or dividends from, Target B or the Target B Subsidiaries or any other company resident in Denmark for tax purposes. |
| (v) | Ultraship ApS has no liability under the Manning Agreement dated 8 February 2018 and made between Ultraship ApS and Ultraship Crewing Philippines, Inc. to make any additional payments to Ultraship Crewing Philippines, Inc. in relation to Taxation for any period prior to the Completion. |
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| 21 | MISCELLANEOUS |
| 21.1 | Effect of entering into this Agreement |
Compliance with the terms of this Agreement or Completion does not and will not:
| (a) | conflict with or result in the breach of or constitute a default under any of the terms, conditions or provisions of: |
| (i) | any agreement or instrument to which any Target Group Company is now a party; |
| (ii) | the constitutional documents of any Target Group Company or give rise to or cause to become exercisable any right of pre-emption or right of first refusal; or |
| (iii) | any loan to or mortgage created by any Target Group Company or any lien, lease, order, judgment, award, injunction, decree, ordinance or regulation or any other restriction of any kind or character to which any property of any Target Group Company is subject or by which any Target Group Company is bound; |
| (b) | result in any present or future Indebtedness becoming due or capable of becoming due and payable prior to its stated maturity; |
| (c) | relieve any other party to an agreement or arrangement with any Target Group Company of its obligations under such agreement or arrangement (whether contractual or otherwise) or enable it to vary or terminate its rights or obligations under such agreement or arrangement or determine any right or benefit enjoyed by any Target Group Company or to exercise any right, whether under an agreement with, or otherwise in respect of, any Target Group Company; and |
| (d) | result in the creation or imposition of any Security Interest on any assets of any Target Group Company. |
| 21.2 | No brokers fees |
No one is entitled to receive from any Target Group Company any finder’s fee, brokerage, success fee or other commission in connection with the purchase of the Shares or the Transaction.
| 22 | INSOLVENCY |
| 22.1 | No winding up |
No order has been made or petition presented or resolution passed for winding up any Target Group Company, no provisional liquidator has been appointed in relation to any Target Group Company and no meeting has been convened for the purpose of winding up any Target Group Company, nor is any Target Group Company is insolvent or unable to pay its debts as they fall due within the meaning of any insolvency legislation applicable to such Target Group Company.
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| 22.2 | No administration order |
No administration order has been made and no petition for such an order has been presented in respect of any Target Group Company. No notice has been given or filed in relation to the appointment of an administrator of any Target Group Company.
| 22.3 | No receiver |
No receiver (which expression shall include an administrative receiver) has been appointed over the whole or any part of the property, assets and/or undertaking of any Target Group Company.
| 22.4 | No arrangements with creditors |
No voluntary arrangement has been proposed or entered into by any Target Group Company with any of its creditors under any applicable insolvency legislation, nor has any scheme of arrangement of its affairs or other scheme or compromise or arrangement, in each case between a Target Group Company and its creditors or any class of its creditors been proposed, approved or sanctioned in respect of any Target Group Company.
| 22.5 | No charging or garnishee order, etc. |
No distress, distraint, charging order, garnishee order, execution or other process has been levied or applied for in respect of the whole or any part of the property, assets and/or undertaking of any Target Group Company.
| 22.6 | No circumstances arisen |
So far as the Sellers are aware, no events or circumstances have arisen which entitle or would reasonably be expected to entitle any person to take any action, appoint any person, commence proceedings or obtain any order of the type mentioned in paragraphs 22.1 to 22.5 (inclusive) above.
| 23 | VESSELS |
| 23.1 | General |
The details of the Vessels set out in Schedule 6 are correct.
| 23.2 | Ownership of Vessels etc. |
| (a) | The relevant Target Group Company identified in Schedule 1 is the registered owner of each of the Vessels in the relevant flag free of all maritime liens, liens, encumbrances, mortgages and any other debts whatsoever and other Security Interests and each Vessel is in the possession and control of such Target Group Company. |
| (b) | So far as the Sellers are aware: (i) no events have occurred which could reasonably be expected to give rise to the assertion of a lien (whether or not a maritime lien), any other debts whatsoever or any other Security Interest over a Vessel and (ii) there are no actual or pending or threatened claims, actions or proceedings against any of the Vessels. |
| 23.3 | Registration, classification, compliance etc. |
In relation to the Vessels:
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| (a) | each Vessel is registered in the name of the relevant Target Group Company under and pursuant to the flag and law of the jurisdiction applicable thereto and all current fees due and payable in connection with such registration have been, or will at Completion be, paid; |
| (b) | each Vessel is entered with a Classification Society and has the appropriate classification rating issued by such Classification Society for a vessel of the type, age and class of such Vessel; |
| (c) | each Vessel is currently within present class, fully maintained, and free of any recommendation or requirement of the relevant Classification Society; and if any such vessel is in a port, it is in such condition that it will not be detained by any port state authority or the flag state authority for any deficiency; |
| (d) | all Class and International Trading Certificates required by applicable law for the continued operation of the Vessels (as cargo carrying ships worldwide) are valid and unextended and each Vessel has on board all Class/International Trading Certificates necessary for such operation, which certificates are valid and unextended and free of all conditions and recommendations and any notices. |
| (e) | each Vessel has been properly maintained in accordance with internationally accepted standards for good ship maintenance, is in good operating order, condition and repair and is seaworthy and has been submitted for such periodic or other survey as may be required by class and flag state or other appropriate international bodies; |
| (f) | no Vessel is (i) under arrest or otherwise detained, (ii) other than in the ordinary course of business in the possession of any person (other than her master and crew) or subject to a possessory lien; or (iii) other than in the ordinary course of business subject to any other lien; |
| (g) | each Vessel is in compliance in all material respects with all applicable legislation relating to, and the requirements of any government agency having jurisdiction over, the Vessel, the provisions of all international conventions applicable to that Vessel and the provisions of the rules and regulations issued under international conventions applicable to that Vessel; |
| (h) | each Vessel has on board valid and up-to-date Safety Construction, Safety Equipment, Radio, Loadline, Health, Tonnage, Trading and other certificates or documents as may for the time being be prescribed by the law of the flag of the Vessel or of any other pertinent jurisdiction, or which would otherwise be deemed necessary by a shipowner acting in accordance with internationally accepted standards for good ship management and operations; |
| (i) | no blacklisting or boycotting of any description whatsoever has been applied or currently exists against or in respect of any Vessel; |
| (j) | each Vessel is properly manned by a certificated master, and certificated ship’s officers and crew in compliance with the Safe Manning Certificate issued by the relevant flag state; |
| (k) | each Vessel has on board a valid Safety Management Certificate (with a copy of the relevant Document of Compliance attached) in compliance with the International Safety Management Code; |
| (l) | each vessel has on board a valid International Ship Security Certificate (“ISSC”) in accordance with the International Ship and Port Security Code; |
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| (m) | each Vessel is fully insured against all applicable risks including Hull and Machinery, Protection and Indemnity War Risks (the “Insurances” and individually the “Insurers”); |
| (n) | Schedule 6 hereto sets forth all material repairs made to each Vessel during the last year, all known scheduled repairs due to be made (either class or otherwise). |
| (o) | No charterer or other party has the right to direct any Vessel to trade with any country or entity that would cause the Buyer or any Buyer Group Company to violate applicable sanctions. |
| (p) | where it is a requirement of any applicable legislation or of the Insurances that any declarations are made or any certificates, returns or forms filed with any government entity or any of the insurers for the Vessel from time to time in connection with the Vessel, the relevant Target Group Company has promptly completed and submitted or shall promptly complete and submit (within any applicable time limits) to the relevant government entity or (as the case may be) the relevant insurers all such declarations, certificates, returns and forms especially to ensure coverage in respect of any voyage to or within the USA Exclusive Economic Zone (as defined in the USA Oil Pollution Act 1990). |
| 23.4 | Modification and removal of parts |
| (a) | There has been no modification or repairs to, or replacement of, any of the Vessels or equipment installed on any Vessel which would or might materially alter the structure, type or performance characteristics of any Vessel or materially reduce its value. |
| 23.5 | Pool Arrangements |
| (a) | Target B owns shares representing 33.3% of the entire issued share capital of the Pool Operator. Each of (i) Sloman Neptun Schiffahrts-Aktiengesellscaft and (ii) Bernhard Schedulte Shipmanagement (Isle of Man) Ltd and Hanseatic Chartering Ltd (jointly), own 33% of the shares representing the entire issued share capital of the Pool Operator. The pool points allocated to Target B is at least 33% of the total pool points available in the Unigas Pool. |
| (b) | The Pool Operator owns 100% of the entire issued share capital of each of Unigas Trading B.V., Unigas International Inc. and Unigas International Limited. |
| (c) | No withdrawal notices been issued or deemed given in respect of any Vessels. |
| (d) | There have been no variations of the Pool Agreement and/or the Operating Agreement and there have been no decisions of the pool members of the Unigas Pool which have the effect of varying terms of the Pool Agreement and/or the Operating Agreement. |
| (e) | No Target Group Company has agreed to take on any liability with respect to the Unigas Pool in excess of Target A’s obligations under the Pool Agreement. |
| (f) | There are no standing pool member proxies for any Target Group Company as a pool member. |
| 23.6 | Surveys |
Each relevant Target Group Company has submitted each Vessel owned by it regularly to all periodical or other surveys which may be required for classification.
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| 23.7 | Dry-docking |
The relevant Target Group Company has dry-docked the Vessel and cleaned and painted her underwater parts in accordance with internationally accepted standards and in any event, as often as may be required to ensure that the Vessel maintained its classification.
| 23.8 | Ballast Tanks |
Each relevant Target Group Company has ensured that the coatings to all ballast and waste water tanks have been maintained in good order and condition and that such coatings are repaired or reapplied as often as is required and with such quality of coating in accordance with class requirements so as to use all reasonable efforts to minimise corrosion.
| 23.9 | Manuals and Technical Records |
Each relevant Target Group Company has maintained all such records, logs, manuals, technical data and other materials and documents which are required to be maintained in respect of the Vessel in the English language and so as to comply with any applicable legislation or the requirements of the Classification Society and maintained up to date logs and records of all voyages made by the Vessel and of all maintenance, repairs, alterations, modifications and additions to the Vessel.
| 23.10 | Regulatory |
The Target Group complies in all material respects with the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention constituted pursuant to Resolution A.741 (18) of the International Maritime Organisation.
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| 23.11 | Compliance with laws |
Each relevant Target Group Company has taken all reasonable steps to comply with all applicable national, international and state conventions and legislation including all applicable environmental legislation and all requirements under any applicable legislation relating to manning and the establishment of financial responsibility applicable to the Target Group Company and/or the Vessel, and including the Merchant Shipping Acts of the relevant flag state, the Oil Pollution Act 1990 of the USA, the Comprehensive Environmental Response Compensation and Liability Act of the USA, other relevant federal and state laws of the United States of America and US Coastguard regulations applicable to the Vessel or her crew or her navigation or operation and MARPOL and all other applicable international conventions, laws, rules and regulations relating to environmental matters, including those relating to discharges of oil, petroleum, petroleum products and distillates, chemicals, pollutants, waste materials or products and other substances and the relevant Target Group Company has taken all reasonable steps to comply with the terms of all environmental permits applicable to it or the Vessels.
| 23.12 | Certificates and licences |
Each relevant Target Group Company has obtained and maintained in full force and effect at all times all class, applicable SOLAS, passenger and other certificates and licenses which are required to be maintained in accordance with the legislation of the flag state and if, following any reflagging of the Vessels at any time, any such certificates have been issued in provisional form, permanent certificates are to be issued in replacement for such provisional certificates or licences prior to expiry thereof.
| 23.13 | Employment |
No Target Group Company has ever knowingly employed any Vessel or permitted its employment in any manner, trade or business which is forbidden by any applicable legislation, or was otherwise illicit or in carrying any drugs (other than drugs carried for medicinal purposes) or other illicit or prohibited goods, or in any manner whatsoever which may render her liable to condemnation in a Prize Court, or which may render the Vessels liable to destruction, seizure, confiscation, penalty or sanctions and, in relation to hostilities in any part of the world (whether war had been declared or not), not knowingly employed the Vessels or permitted its employment in carrying any contraband goods, or entered or traded to or continued to trade in any zone which is or was declared a war zone by any government entity in a relevant jurisdiction unless such special insurance cover as may reasonably have been required had been effected by the relevant Target Group Company and at its expense.
| 23.14 | Anti-drug abuse |
If (a) any Vessel is or was trading to the USA or within US territorial waters and (b) the owners or operators of other Vessels which trade to the USA or in US territorial waters are party to a “Carrier Initiative Agreement” with the United States Customs Service, the relevant Target Group Company entered into and, for so long as conditions (a) and (b) above remained satisfied, has remained party to either the same agreement or an equivalent agreement (or any similar agreement hereafter introduced by any relevant Government Entity of the USA).
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| 23.15 | Sub-chartering |
The relevant Target Group Company has not at any time parted with the possession or operational control of the Vessels (except for the purpose of maintenance, service, repair or overhaul work or any modifications, changes or alterations) nor sub-chartered the Vessels.
| 23.16 | Sanctions |
| (a) | No Target Group Company, and no director, employee, agent or any other person with authority to act on behalf of a Target Group Company, is a Prohibited Person. |
| (b) | No Target Group Company, and no director, employee, agent or any other person acting on behalf of a Target Group Company, has or has permitted or authorised any other person to do anything in connection with a Target Group Company or a Vessel (i) involving or for the benefit of a Prohibited Person which would result in a breach of Sanctions by a Vessel or a Target Group Company, or (ii) that in any other manner would, or would reasonably be expected to, result in a Vessel or a Target Group Company being in breach of any Sanctions (if and to the extent applicable to either of them) or becoming a Prohibited Person. |
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SCHEDULE 4
BUYER WARRANTIES
| 1 | Information |
Each Buyer Group Company is duly incorporated or formed, and validly exists under the laws of its jurisdiction of incorporation or formation.
| 2 | THE BUYER |
| 2.1 | Capacity of the Buyer |
| (a) | The Buyer has the requisite capacity, power and authority, and has taken all necessary corporate action to enable it, to enter into, and perform all its obligations under, the Transaction Documents to which it is a party. |
| (b) | The Transaction Documents to which the Buyer is a party constitute (or will constitute when executed) its legal, valid and binding obligations enforceable against it in accordance with their terms subject to the following matters: |
| (i) | each other party to the Transaction Documents to which it is a party having the capacity, power and authority to enter into and perform its obligations under the Transaction Documents to which it is a party; |
| (ii) | the due execution and delivery of the Transaction Documents to which it is a party by all other parties to such Transaction Documents; and |
| (iii) | applicable legislation relating to bankruptcy, fraudulent conveyance, moratorium, insolvency, liquidation, reorganisation and other legislation of general application relating to or affecting the enforcement of creditors’ rights generally or by equitable principals relating to enforceability, whether considered in a proceeding in equity or law. |
| (c) | The Buyer is entitled to issue the full legal and beneficial ownership in the Consideration Shares to the Sellers on the terms set out in this Agreement. |
| (d) | The execution and delivery of, and performance by, the Buyer of the Transaction Documents to which it is a party does not and will not result in a breach of, or constitute any default under, any law or regulation applicable to it, any order, judgement or decree by any court or governmental agency to which it is a party or by which it is bound, its constitutional documents or any agreement to which it is a party. |
| (e) | All consents, licences, approvals and authorisations required for the Buyer to enter into and perform its obligations under the Transaction Documents to which it is a party and the transactions contemplated by them have been obtained and are in full force and effect. |
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| (f) | No action, suit, proceeding, litigation or dispute against it or any Buyer Group Company and/or any of its Connected Persons is presently taking place or pending or, to its knowledge, threatened which would or might reasonably be expected to inhibit its ability to perform its obligations under the Transaction Documents to which it is a party. |
| (g) | In so far as it is a body corporate: |
| (i) | it is a body corporate duly incorporated and existing under the laws of the jurisdiction in which it is incorporated; |
| (ii) | no order has been made or petition presented or resolution passed for winding up the Buyer, no provisional liquidator has been appointed in relation to it, and no meeting has been convened for the purpose of winding up the Buyer, and the Buyer is not insolvent or unable to pay its debts as they fall due within the meaning of any insolvency legislation applicable to the Buyer; |
| (iii) | no administration order has been made and no petition for such an order has been presented in respect of the Buyer and no notice has been given or filed in relation to the appointment of an administrator of the Buyer; |
| (iv) | no receiver (which expression shall include an administrative receiver) has been appointed over the whole or any part of the Buyer’s property, assets and/or undertaking and there is no unfulfilled or unsatisfied judgment or court or tribunal order outstanding against it in relation to the foregoing; |
| (v) | no voluntary arrangement has been proposed or entered into by the Buyer with any of their respective creditors under any insolvency legislation applicable to the Buyer, nor has any scheme of arrangement of its affairs or other scheme or compromise or arrangement, in each case between it and its creditors or any class of its creditors been proposed, approved or sanctioned in respect of the Buyer; and |
| (vi) | so far as the Buyer is aware, no events or circumstances have arisen which entitle or would reasonably be expected to entitle any person to take any action, appoint any person, commence proceedings or obtain any order of the type mentioned in paragraphs 2.1(g)(ii) to (v) (inclusive) above. |
| 3 | Regulatory Requirements |
| 3.1 | SEC Reports; Financial Statements |
| (a) | The Buyer has filed or furnished all forms, reports, schedules, statements and other documents (including any exhibits thereto) required to be filed or furnished by it with the SEC (all such documents and reports publicly filed or furnished by the Buyer, the “Buyer SEC Documents”). |
| (b) | As of their respective dates or, if amended, as of the date of the last such amendment, the Buyer SEC Documents complied as to form in all material respects with all the applicable requirements of the Securities Act and the Exchange Act, as the case may be, and the applicable rules and regulations promulgated thereunder, each as in effect on the date so filed, and none of the Buyer SEC Documents at the time they were filed or furnished contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. |
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| (c) | The certifications and statements required by (i) Rule 13a-14 under the Exchange Act and (ii) 18 U.S.C. §1350 (Section 906 of the Sarbanes-Oxley Act) relating to the Buyer SEC Documents are accurate and complete as of the dates made and comply as to form and content with all applicable laws. |
| (d) | The financial statements (including all related notes and schedules) included in the Buyer SEC Documents (the “Buyer Financial Statements”) at the time they were filed or furnished: |
| (i) | fairly present in all material respects the consolidated financial position of the Buyer and its consolidated subsidiaries, as at the respective dates thereof, and the consolidated results of their operations and their consolidated cash flows for the respective periods then ended (except, in the case of unaudited statements, subject to normal year-end audit adjustments, the absence of notes and to any other adjustments described therein, including in any notes thereto); |
| (ii) | were prepared in conformity with U.S. generally accepted accounting principles applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto and except, in the case of unaudited statements, subject to normal year-end audit adjustments, the absence of notes and to any other adjustments described therein, including in any notes thereto); and |
| (iii) | comply as to form in all material respects with the published rules and regulations of the SEC applicable thereto. |
| (e) | Since the date of the Buyer Financial Statements, there has been no material adverse change in the financial position of the Buyer Group taken as a whole. |
| (f) | There are no outstanding or unresolved comments in any comment letters of the staff of the SEC received by the Buyer relating to the Buyer SEC Documents. |
| (g) | None of the Buyer SEC Documents is, to the Buyer’s knowledge, the subject of ongoing review by the SEC. |
| (h) | Neither the Buyer nor any other Buyer Group Company are a party to, nor do they have any commitment to become a party to: (a) any joint venture or off-balance sheet partnership; or (b) any similar contract, agreement, lease, license, commitment, understanding, franchise, warranty, guaranty, mortgage, note, bond or other instrument or consensual obligation that is legally binding (including any of the arrangements in sub-paragraph (b) of this paragraph relating to any transaction or relationship between or among the Buyer or one of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand) or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the Exchange Act), where the result, purpose or effect of such arrangements in sub-paragraph (b) of this paragraph is to avoid disclosure of any material transaction involving, or material liabilities of, the Buyer or any of its subsidiaries in the Buyer Financial Statements or other the Buyer SEC Documents. |
| 3.2 | Registration |
| (a) | As of the date hereof, the Buyer Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the New York Stock Exchange under the symbol “NVGS”. |
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| (b) | The Buyer is in compliance in all material respects with the current listing and governance rules and regulations of the New York Stock Exchange applicable to the Buyer. |
| (c) | As of the date hereof, none of the Buyer or any other Buyer Group Company has taken any action in an attempt to terminate the registration of Buyer Shares under the Exchange Act. |
| 4 | ASSETS |
| 4.1 | Title to assets |
| (a) | The Buyer or one of its respective Subsidiaries has legal and beneficial title to all material assets which are included in the Buyer Financial Statements. |
| 4.2 | All assets required for business |
| (a) | The assets of the Buyer Group, together with assets which they have a contractual right to use, comprise all the tangible assets necessary for the carrying on of the business of the Buyer Group at the date of this Agreement. |
| 5 | INTELLECTUAL PROPERTY RIGHTS |
| 5.1 | Ownership of Intellectual Property |
All Intellectual Property which is used in the conduct of the business of the Buyer Group is:
| (a) | legally and beneficially vested in a Buyer Group Company as the sole owner; or |
| (b) | licensed to the appropriate Buyer Group Companies under valid licenses, the effectiveness of which is not affected by Completion, |
and, so far as the Buyer is aware, (i) is not being infringed, attacked, disputed or opposed by any third party and (ii) is not the subject of any claim contesting ownership or compensation.
| 5.2 | Registered Trade Marks |
Details of the registered trademarks held by any Buyer Group Company have been Disclosed.
| 5.3 | No infringements |
So far as the Buyer is aware, the operations of the Buyer Group do not infringe any Intellectual Property of a third party.
| 5.4 | Buyer Group IP Licences |
No Buyer Group Company has granted any licence to any third party to use any Intellectual Property owned by it.
| 6 | IT SYSTEMS |
| 6.1 | Buyer Group IT Systems owned |
The IT Systems of the Buyer Group are either owned by or validly licensed or leased to a Buyer Group Company. No Buyer Group Company is in material default under any such licences or leases and, so far as the Buyer is aware, there are no grounds on which they would reasonably be expected to be terminated in accordance with their terms.
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| 6.2 | No failure of Buyer Group IT Systems |
In the last 12 months, the IT Systems of the Buyer Group have not failed to any material extent.
| 7 | CHANGE OF CONTROL |
| 7.1 | The sale of the Shares under this Agreement will not: |
| (a) | entitle any person to determine or terminate any material contract or arrangement with any Buyer Group Company; |
| (b) | result in the breach by any Buyer Group Company under any of the terms, conditions or provisions of any material contract or instrument to which any Buyer Group Company is now a party or any loan to or mortgage created by any Buyer Group Company, other than such breach as would not reasonably be expected to have a material adverse impact on the Buyer Group Companies taken as a whole;. |
| (c) | result in any present or future indebtedness in the nature of borrowings owed by a Buyer Group Company (for the avoidance of doubt, excluding trading debts arising in the ordinary course of business) becoming due and payable or capable of being declared due and payable prior to its stated maturity; and |
| (d) | entitle any person to receive from any Buyer Group Company any finder’s fee, brokerage or other commission in connection with the acquisition of the Shares or the issuance of the Consideration Shares. |
| 8 | INSURANCE |
| 8.1 | Insurance Policies in Place |
Each Buyer Group Company has effected all insurances required by any applicable legislation to be effected by it.
| 8.2 | Policies valid and in force |
A list of the insurances maintained by the Buyer Group Companies and details of outstanding F,D&D claims and P&I claims have been Disclosed and such details are true and accurate and:
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| (a) | nothing has been done or has been omitted to be done as a result of which any of such insurance policies has or may become void or voidable or which would affect renewal of the policies or increase premiums to a higher level than would be expected compared to normal increases due to market conditions; and |
| (b) | all premiums payable in respect of such insurance policies have been duly paid. |
| 9 | LITIGATION AND OTHER DISPUTES |
| 9.1 | No proceedings |
No Buyer Group Company is, and no director, officer or employee of any Buyer Group Company (in relation to the Buyer Group’s affairs and for whom the Buyer Group is vicariously liable) is, engaged in or a party to any litigation, arbitration, prosecution, mediation, hearing before any tribunal or any statutory, regulatory, governmental or supranational body, department, board or agency or any other official body or other legal, regulatory, administrative, alternative dispute resolution or enforcement proceedings nor, so far as the Buyer is aware, are any of the above pending or threatened against any Buyer Group Company or any such person and, so far as the Buyer is aware, there is no fact or circumstance which would reasonably be expected to give rise to the same, or form the basis of any criminal prosecution against any Buyer Group Company or any such person.
| 9.2 | No orders or judgements |
There is no order, decree or judgement of any court, tribunal or any governmental agency of any jurisdiction outstanding against any Buyer Group Company (i) which would reasonably be expected to have a material adverse effect upon the assets or business of the Buyer Group Companies or (ii) which requires continuing compliance by any Buyer Group Company, in each case which remains unfulfilled or unsatisfied. No injunction or order of a court or tribunal of competent jurisdiction restraining any Buyer Group Company from doing anything or mandatorily requiring any Buyer Group Company to do anything or freezing any of its assets has been granted against any Buyer Group Company which is still in force. No Buyer Group Company has given or is bound by any undertaking or assurance to any court, tribunal, governmental agency or to any third party arising out of any legal or other proceedings which is still in force.
| 10 | COMPLIANCE WITH LEGAL REQUIREMENTS |
| 10.1 | Compliance by Buyer Group and officers |
Each Buyer Group Company is in compliance in all material respects and, so far as Buyer is aware, every officer of the Buyer Group Companies (in his or her capacity as such) has complied and is continuing to comply in all material respects with all relevant legislation and regulations in any part of the world applicable to it and/or its business and/or its assets.
| 10.2 | Filings |
All material forms, particulars, resolutions and other documents required to be filed with or delivered to any governmental or regulatory authority by any Buyer Group Company have been properly prepared and duly filed or delivered.
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| 10.3 | Constitutional documents |
The constitutional documents of each Buyer Group Company have been complied with in all material respects. A copy of the constitutional documents of the Buyer has been Disclosed and is complete and accurate in all material respects.
| 10.4 | Books and records |
| (a) | The statutory books and all other registers and minute books, books of account and other statutory records of each Buyer Group Company required to be kept by applicable legislation are up to date in all material respects (but not including the date of this Agreement) and comprise complete and accurate records in all material respects of all information required by applicable legislation to be recorded in them other than to the extent that they are not material to the business of the Buyer Group. |
| 10.5 | Licences and consents |
| (a) | Each Buyer Group Company has obtained all material licences (including statutory licences), permissions, authorisations, consents, registrations and exemptions (for purposes of this warranty 10.5, “licences”) required by law for the operation of its business (including in all places in which it is carried on) as currently operated and has complied in all material respects with such licences. Such licences are in full force and effect. |
| (b) | No Buyer Group Company has received any written notice relating to the non-compliance with, or continuation or renewal on less favourable terms of or modifications, revocation or non-renewal of, any such licences. |
| 10.6 | Anti-corruption |
| (a) | No Buyer Group Company or, so far as the Buyer is aware, director, officer, employee or any other Associated Person of any Buyer Group Company has at any time in the last three years engaged in any activity, practice or conduct which would constitute an offence under Anti-Corruption Legislation. |
| (b) | The Buyer has in place Adequate Procedures designed to prevent its Associated Persons from undertaking any conduct which would constitute an offence under Anti-Corruption Legislation. |
| (c) | No Buyer Group Company nor, so far as the Buyer is aware, any of their respective Associated Persons is or has been in the last three years the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body or any customer regarding any offence or alleged offence under Anti-Corruption Legislation. So far as the Buyer is aware, no such investigation, inquiry or proceedings have been threatened or are pending and, so far as the Buyer is aware, there are no circumstances likely to give rise to any such investigation, inquiry or proceedings. |
| (d) | No contract or commitment which has been entered into by any Buyer Group Company has been procured or obtained as the consequence of the payment to or receipt by the Buyer or, so far as the Buyer is aware, any persons who are or were directors, officers, employees or other Associated Persons of any Buyer Group Company (or any person connected with any of the same) of any bribe or other corrupt payment or benefit. |
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| 11 | PUBLIC GRANTS AND SUBSIDIES |
| 11.1 | No grants |
No Buyer Group Company has applied for, or received directly or indirectly, any payment, grant, subsidy, guarantee, allowance or financial assistance or other direct or indirect aid from any government department or agency or any supranational, national, local or other authority in connection with which (i) such grant is or may be liable to be repaid in whole or (ii) in part or a Buyer Group Company has outstanding obligations.
| 12 | EMPLOYMENT |
| 12.1 | Employees |
| (a) | The Buyer Group Companies are in material compliance with all applicable laws relating to labor, employment, fair employment practices, terms and conditions of employment, workers’ compensation, occupational safety and health requirements, plant closings, wages and hours, withholding of taxes, employment discrimination, disability rights or benefits, equal opportunity, labour relations, employee leave issues and unemployment insurance and related matters. |
| (b) | Except for instances that would not be, individually or in the aggregate, material to the Buyer Group, taken as a whole, no Buyer Group Company has received notice of (i) any unfair labor practice charge or complaint against such Buyer Group Company pending before the National Labor Relations Board or any other Governmental Entity, (ii) any charge or complaint against such Buyer Group Company pending before any Governmental Entity responsible for the prevention of unlawful employment practices or (iii) any complaint or lawsuit against such Buyer Group Company concerning employees or former employees of such Buyer Group Company alleging employment discrimination or violations of occupational safety and health requirements pending before a court of competent jurisdiction. To the knowledge of the Buyer, all individuals who provide services to the Buyer Group Companies have at all times been accurately classified by the Buyer Group Companies with respect to such services as an employee or a non-employee. |
| 12.2 | No collective bargaining |
No Buyer Group Company recognises any trade union or other body representing its employees or any of them for the purpose of collective bargaining or negotiating.
| 12.3 | No industrial action |
No strikes, lock-outs or other forms of industrial action or trade disputes affecting any Buyer Group Company are ongoing or, so far as the Sellers are aware, pending or threatened or contemplated nor have there been any such strikes, lock-outs or other forms of industrial action or trade disputes in the 12 months prior to the date of this Agreement.
| 13 | PENSIONS |
| (a) | The Pension Schemes of the Buyer Group Companies are the only arrangements under which any Buyer Group Company has or may have any obligation to provide or contribute towards pension, lump-sum, death, ill-health, disability or accident benefits in respect of its past or present officers and employees. |
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| (b) | No proposal or announcement has been made to any employee of the Buyer Group as to the introduction, continuance, increase or improvement of, or the payment of a contribution towards, any other pension, lump-sum, death, ill-health, disability or accident benefit. |
| 13.2 | Compliance |
Each Pension Scheme of the Buyer Group complies with all applicable legislation affecting pensions schemes, where applicable, and has been administered in all material respects accordance with its rules and governing documentation.
| 13.3 | No defined benefit schemes |
No Buyer Group Company participates, nor has any ever participated, in a defined benefit pension scheme or has any liability in respect of any such scheme.
| 13.4 | No liabilities |
All contributions, insurance premiums, tax and expenses due by any Buyer Group Company to and in respect of the Pension Schemes have been duly paid. There are no liabilities of any Buyer Group Company outstanding in respect of the Pension Schemes at the date of this Agreement.
| 13.5 | No claims |
No claims or complaints have been made or are pending or threatened in relation to the Pension Schemes or otherwise in respect of the provision of (or failure to provide) pension, lump-sum, death, ill-health, disability or accident benefits by any Buyer Group Company in relation to any of the Buyer Group employee. There are no facts or circumstances likely to give rise to such claims or complaints.
| 14 | TAXATION |
| (a) | All Tax for which each Buyer Group Company is liable, or has been liable, to account within the four years prior to the date of this Agreement has been duly paid or has been provided for in the Buyer Financial Statements. |
| (b) | Each Buyer Group Company has, in the four years prior to the date of this Agreement, made all deductions, withholdings or retentions on account of Tax that it was obliged to make from any payments made and has correctly accounted to the appropriate authority for all amounts so deducted, withheld or retained within all applicable time limits. |
| (c) | All returns required to be submitted and all information required to be supplied to a Taxation Authority in the four years prior to the date of this Agreement, have been submitted, supplied, or made in accordance with applicable law and within applicable time limits. |
| (d) | No Buyer Group Company is involved in any dispute in relation to Tax with any Taxation Authority and no notice has been received by a Buyer Group Company of any audit, examination, or enquiry in relation to Tax with any Taxation Authority. |
| (e) | All financing costs, including interest, discounts and premiums payable by any Buyer Group Company in respect of its loans and amounts payable by any Buyer Group Company in respect of its derivatives contracts, are deductible in computing their profits, gains or losses for Tax purposes. |
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| (f) | Each Buyer Group Company is treated as resident for Tax purposes only in its jurisdiction of incorporation and has not, at any time in the four years prior to the date of this Agreement, been treated as resident or as having a permanent establishment or subject to Tax in any other jurisdiction for the purposes of any double taxation agreement or for any other Tax purposes. |
| (g) | All transactions or arrangements entered into in the four years prior to the date of this Agreement between, on the one hand, any Buyer Group Company and, on the other hand, any other Buyer Group Company, have been made on arm’s length terms and the processes by which prices and terms have been arrived at have, in each case, been fully documented to the extent required by applicable law. No notice, enquiry or adjustment has been made by any Taxation Authority in connection with any such transactions or arrangements. |
| (h) | No Buyer Group Company has been involved in any transaction or series of transactions the main purpose, or one of the main purposes of which, was the avoidance of Tax and no Buyer Group Company is aware or has been notified that a disclosure under EU Council Directive of 25 May 2018 (2018/822/EU) amending Directive 2011/16/EU is or will be required in relation to any transaction entered into by any Buyer Group Company. |
| 15 | MISCELLANEOUS |
| 15.1 | Effect of entering into this Agreement |
Compliance with the terms of this Agreement or Completion does not and will not:
| (a) | conflict with or result in the breach of or constitute a default under any of the terms, conditions or provisions of: |
| (i) | any agreement or instrument to which any Buyer Group Company is now a party; |
| (ii) | the constitutional documents of any Buyer Group Company or give rise to or cause to become exercisable any right of pre-emption or right of first refusal; or |
| (iii) | any loan to or mortgage created by any Buyer Group Company or any lien, lease, order, judgment, award, injunction, decree, ordinance or regulation or any other restriction of any kind or character to which any property of any Buyer Group Company is subject or by which any Buyer Group Company is bound; |
| (b) | result in any present or future indebtedness in the nature of borrowings owed by a Buyer Group Company (for the avoidance of doubt, excluding trading debts arising in the ordinary course of business) becoming due or capable of becoming due and payable prior to its stated maturity; |
| (c) | relieve any other party to an agreement or arrangement with any Buyer Group Company of its obligations under such agreement or arrangement (whether contractual or otherwise) or enable it to vary or terminate its rights or obligations under such agreement or arrangement or determine any right or benefit enjoyed by any Buyer Group Company or to exercise any right, whether under an agreement with, or otherwise in respect of, any Buyer Group Company; and |
| (d) | result in the creation or imposition of any Security Interest on any assets of any Buyer Group Company. |
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| 15.2 | No brokers fees |
No one is entitled to receive from any Buyer Group Company any finder’s fee, brokerage, success fee or other commission in connection with the transfer of the Consideration Shares or the Transaction.
| 16 | INSOLVENCY |
| 16.1 | No winding up |
No order has been made or petition presented or resolution passed for winding up any Buyer Group Company, no provisional liquidator has been appointed in relation to any Buyer Group Company and no meeting has been convened for the purpose of winding up any Buyer Group Company, nor is any Buyer Group Company is insolvent or unable to pay its debts as they fall due within the meaning of any insolvency legislation applicable to such Buyer Group Company.
| 16.2 | No administration order |
No administration order has been made and no petition for such an order has been presented in respect of any Buyer Group Company. No notice has been given or filed in relation to the appointment of an administrator of any Buyer Group Company.
| 16.3 | No receiver |
No receiver (which expression shall include an administrative receiver) has been appointed over the whole or any part of the property, assets and/or undertaking of any Buyer Group Company.
| 16.4 | No arrangements with creditors |
No voluntary arrangement has been proposed or entered into by any Buyer Group Company with any of its creditors under any applicable insolvency legislation, nor has any scheme of arrangement of its affairs or other scheme or compromise or arrangement, in each case between a Buyer Group Company and its creditors or any class of its creditors been proposed, approved or sanctioned in respect of any Buyer Group Company.
| 16.5 | No charging or garnishee order, etc. |
No distress, distraint, charging order, garnishee order, execution or other process has been levied or applied for in respect of the whole or any part of the property, assets and/or undertaking of any Buyer Group Company.
| 16.6 | No circumstances arisen |
So far as the Buyer is aware, no events or circumstances have arisen which entitle or would reasonably be expected to entitle any person to take any action, appoint any person, commence proceedings or obtain any order of the type mentioned in paragraphs 16.1 to 16.4 (inclusive) above.
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| 16.7 | Sanctions |
| (a) | No Buyer Group Company, and no director, employee, agent or any other person with authority to act on behalf of a Target Group Company, is a Prohibited Person. |
| (b) | No Buyer Group Company, and no director, employee, agent or any other person acting on behalf of a Buyer Group Company, has or has permitted or authorised any other person to do anything in connection with a Buyer Group Company or a vessel owned by it (i) involving or for the benefit of a Prohibited Person which would result in a breach of Sanctions by a vessel or a Buyer Group Company, or (ii) that in any other manner would, or would reasonably be expected to, result in a vessel or a Buyer Group Company being in breach of any Sanctions (if and to the extent applicable to either of them) or becoming a Prohibited Person. |
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SCHEDULE 5
LIMITATIONS OF LIABILITY
| 1 | Application of limits |
The liability of a party in respect of any Claim (for the purposes of this Schedule 5, the “defaulting party”) shall be limited as provided in this Schedule provided always that the provisions of this Schedule shall not apply, and nor shall any other limitation of any kind whatsoever apply, to any Claim made against a defaulting party to the extent the same is proven to have resulted from any fraudulent act, fraudulent misrepresentation or wilful misconduct by or on behalf such defaulting party.
| 2 | Notice and amounts of Claim |
No Claim shall be brought against a defaulting party nor shall a defaulting party be liable to the other party (for the purposes of this Schedule 5, the “non-defaulting party”) or any other person for any Claim unless:
| (a) | the non-defaulting party shall have served upon the defaulting party written notice containing such details as may be known by the non-defaulting party as to the nature and the estimated amount of the relevant Claim on or before: |
| (i) | in the case of a Sellers Tax Warranty Claim or a Buyer Tax Warranty Claim, the day that is 20 Business Days following the fourth anniversary of the end of the accounting period in which Completion falls; |
| (ii) | in the case of a Sellers Fundamental Warranty Claim or a Buyer Fundamental Warranty Claim, the third anniversary of the Completion Date; |
| (iii) | in the case of a Sellers General Warranty Claim or a Buyer General Warranty Claim, the second anniversary of the Completion Date; |
| (b) | in the case of Sellers General Warranty Claims and/or Sellers Tax Warranty Claims, the amount of all such Claims exceeds $15,000,000, in which case the whole of such aggregate amount and not just the excess shall, subject to the other provisions of this Agreement, be payable; |
| (c) | in respect of any single Sellers General Warranty Claim or Sellers Tax Warranty Claim, the amount of that Claim exceeds $1,000,000; |
| (d) | in the case of Buyer General Warranty Claims and/or Buyer Tax Warranty Claims, the amount of all such Claims exceeds $15,000,000, in which case the whole of such aggregate amount and not just the excess shall, subject to the other provisions of this Agreement, be payable; and |
| (e) | in respect of any single Buyer General Warranty Claim or Buyer Tax Warranty Claim, the amount of that Claim exceeds $1,000,000. |
| 3 | Aggregate amount of Claims |
| (a) | The aggregate amount of the liability of the Sellers for all Claims, other than a Sellers Fundamental Warranty Claim, shall not in any event exceed $50,000,000. |
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| (b) | The aggregate amount of the liability of the Buyer for all Claims, other than a Buyer Fundamental Warranty Claim, shall not in any event exceed $50,000,000. |
| (c) | The aggregate amount of the liability of the Sellers for all Sellers Fundamental Warranty Claims shall not in any event exceed $356,664,000. |
| (d) | The aggregate amount of the liability of the Buyer for all Buyer Fundamental Warranty Claims shall not in any event exceed $356,664,000. |
| 4 | Settlement of Sellers’ liability for Claims |
| (a) | Any liability of the Sellers in respect of a Claim shall be satisfied at the sole option of the Buyer, either in cash or by the transfer by the Sellers of a number of Consideration Shares to the Buyer, calculated in accordance with paragraph 4(b) below, with a value equal to such liability of the Sellers (any fraction of a Consideration Share being rounded up), or a combination of cash or Consideration Shares, with stamp duty and/or any other taxes arising in relation to such transfer of Consideration Shares being for the sole account of the Buyer (the “Sellers Settlement Shares”). |
| (b) | The parties agree that, for the purposes of paragraphs 4 and 5 of this Schedule 5 only, each Sellers Settlement Share will have a deemed value of $16.82 per share. The Sellers shall make its election pursuant to paragraph 4(a) above by giving a notice in writing to the Buyer (the “Sellers Election Notice”) no later than five Business Days immediately following the final determination of, or agreement to, the Claim, failing which the Sellers shall be deemed to have elected to satisfy the Claim referred to in paragraph 4(a) in cash. |
| (c) | Where the Sellers elect or are deemed to have elected pursuant to paragraph 4(b) above to satisfy any liability for a Claim in cash, the Sellers shall make their best efforts to satisfy the relevant liability in cash as soon as possible after the earliest of the date of the relevant Sellers Election Notice and the expiration of the five Business Days period set forth in paragraph 4(b) above (“Sellers Target Date”). In the event that any of the Sellers fails to satisfy any liability for a Claim in cash where required to do so in accordance with the terms of this Agreement by the date that falls 20 Business Days after the Sellers Target Date (the “Sellers Payment Default Date”), at any time after the Sellers Payment Default Date the Buyer may elect to require the relevant Seller to settle such Claim by the transfer of Sellers Settlement Shares to the Buyer as provided for in paragraph 4(d) by giving notice in writing to the relevant Seller, and such transfer will occur as soon as reasonably practicable but in no event later than 15 days thereafter. |
| (d) | The Sellers shall make their best efforts to procure that the transfer of any Sellers Settlement Shares they elect or are deemed to have elected pursuant to paragraph 4(b) above to transfer in settlement of a Claim is completed no later than three Business Days following the Sellers Target Date, provided that the Buyer shall have confirmed the identity of the Buyer’s nominated transferee to the Sellers in writing, and without limitation of the foregoing: |
| (i) | the Sellers shall deliver to the Buyer a duly executed instrument of transfer in respect of the Sellers Settlement Shares in book-entry form, together with an executed certificate of the transfer agent of the Buyer certifying as to the book-entry issuance thereof (provided that the Buyer shall reasonably cooperate with the Sellers in obtaining such transfer agent certificate); and |
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| (ii) | all Sellers Settlement Shares shall be transferred with full title guarantee together with all rights conferred thereon and free from all Security Interests or other adverse interests, rights, equities, claims or potential claims of any description, |
and, without limiting the effect of paragraph 4(e) below, the parties shall do all such other things and execute such other agreements and documents as may reasonably be required to give effect to the transfer of the Sellers Settlement Shares and, subject to payment by the Buyer of any relevant stamp duties, the Buyer or its nominee shall be registered as the holder of the relevant Sellers Settlement Shares.
| (e) | Each Seller appoints the Buyer (or any officer of the Buyer as may be nominated by the Buyer) irrevocably, and by way of security for the performance of the Sellers’ obligations under this Schedule 5 to transfer Sellers Settlement Shares to the Buyer in settlement of a Claim, as its attorney or attorneys to execute any agreement or document required to be executed by any Seller pursuant to this Schedule 5 in order to effect the transfer of Sellers Settlement Shares to the Buyer including, without limitation, any transfer of Sellers Settlement Shares, provided always that no Seller shall be required to give any warranties regarding any Sellers Settlement Shares other than warranties regarding the capacity of that Seller to enter into such documentation, title to the relevant Sellers Settlement Shares, that the Sellers Settlement Shares are not subject to any Security Interest and are freely transferable. |
| 5 | Settlement of Buyer’s liability for Claims |
| (a) | Any liability of the Buyer in respect of a Claim shall be satisfied at the sole option of the Sellers, either in cash or by the issue by the Buyer of new shares of the Buyer’s common stock to the Sellers (or to any nominee of any Seller) of the number of new shares of the Buyer’s common stock with a deemed value of $12.20 per share equal to such liability of the Buyer (any fraction of a new shares of the Buyer’s common stock being rounded up), or a combination of cash or new shares of the Buyer’s common stock, with any taxes arising in relation to such issue of shares of the Buyer’s common stock being for the exclusive account of the Sellers (the “Buyer Settlement Shares”). |
| (b) | The parties agree that each Buyer Settlement Share will have a deemed value of $12.20 per share. The Buyer shall make its election pursuant to paragraph 5(a) above by giving a notice in writing to the Sellers (the “Buyer Election Notice”) no later than five Business Days immediately following the final determination of, or agreement to, the Claim, failing which the Buyer shall be deemed to have elected to satisfy the Claim referred to in paragraph 5(a) in cash. |
| (c) | Where the Buyer elects or is deemed to have elected pursuant to paragraph 5(a) above to satisfy any liability for a Claim in cash, the Buyer will make its best efforts to satisfy the relevant liability in cash as soon as possible after the earliest of the date of the relevant Buyer Election Notice and the expiration of the five Business Days period set forth in paragraph 5(b) above (“Buyer Target Date”). In the event that the Buyer fails to satisfy any liability for a Claim in cash where required to do so in accordance with the terms of this Agreement by the date that falls 20 Business Days after the Buyer Target Date (the “Buyer Payment Default Date”), at any time after the Buyer Payment Default Date the Sellers may elect to require the Buyer to settle such Claim by the issue of Buyer Settlement Shares to the Sellers as provided for in paragraph 5(d) by giving notice in writing to the Buyer, and such issuance will occur as soon as reasonably practicable but in no event later than 15 days thereafter. |
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| (d) | The Buyer shall make its best efforts to procure that the issue of any Buyer Settlement Shares it elects or is deemed to have elected pursuant to paragraph 5(b) above to issue in settlement of a Claim is completed no later than three Business Days following the Buyer Target Date, provided that each Seller shall have confirmed the identity of its nominated holder of Buyer Settlement Shares to the Buyer in writing, and without limitation of the foregoing: |
| (i) | the Buyer shall deliver to the Sellers or their nominees a duly executed instrument of transfer in respect of the Buyer Settlement Shares in book-entry form, together with an executed certificate of the transfer agent of the Buyer certifying as to the book-entry issuance thereof; and |
| (ii) | all Buyer Settlement Shares shall be transferred with full title guarantee together with all rights conferred thereon and free from all Security Interests or other adverse interests, rights, equities, claims or potential claims of any description, other than restrictions under applicable state and federal securities laws, |
and, without limiting the effect of paragraph 5(e) below, the parties shall do all such other things and execute such other agreements and documents as may reasonably be required to give effect to the issuance of the Buyer Settlement Shares and, subject to payment by the Sellers of any relevant stamp duties, the Sellers or their nominees shall be registered as the holder of the relevant Buyer Settlement Shares.
| (e) | The Buyer appoints each of the Sellers (or any officer of any Seller as may be nominated by that Seller) irrevocably, and by way of security for the performance of the Buyer’s obligations under this Schedule 5 to issue Buyer Settlement Shares to the Sellers in settlement of a Claim, as its attorney or attorneys to execute any agreement or document required to be executed by the Buyer pursuant to this Schedule 5 in order to effect the issue of Buyer Settlement Shares to the Sellers, including, without limitation, any transfer of Buyer Settlement Shares, provided always that the Buyer shall not be required to give any warranties regarding any Buyer Settlement Shares other than warranties regarding the capacity of the Buyer to enter into such documentation, title to the relevant Buyer Settlement Shares, that the Buyer Settlement Shares are not subject to any Security Interest and are freely transferable other than restrictions under applicable state and federal securities laws. |
| 6 | General |
A defaulting party shall have no liability in respect of any General Warranty Claim or Tax Warranty Claim if and to the extent that:
| (a) | the matter or liability giving rise to the General Warranty Claim or Tax Warranty Claim arises wholly from, or, having arisen, is increased as a result of, a voluntary act, omission or transaction carried out after Completion by the non-defaulting party (or, in the event that the Sellers are the non-defaulting party, any Sellers Group Company or any of their directors, employees, agents or successors in title or, in the event that the Buyer is the non-defaulting party, any Buyer Group Company or any of their directors, employees, agents or successors in title) unless the act or omission or transaction is: |
| (A) | required by any applicable legislation or regulation in force at Completion; |
| (B) | required by this Agreement or any other Transaction Document; or |
| (C) | at the written request of the defaulting party; or |
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| (b) | in the event that the Sellers are the defaulting party, the Target Group Accounts make a specific identifiable disclosure of or provision for the liability, fact, matter, event or circumstance giving rise to the Sellers General Warranty Claim or Sellers Tax Warranty Claim or to the extent that payment or discharge of the relevant matter has been taken into account in the Target Group Accounts; or |
| (c) | in the event that the Buyer is the defaulting party, the Buyer SEC Documents make a specific identifiable disclosure of or provision for the liability, fact, matter, event or circumstance giving rise to the Buyer General Warranty Claim or to the extent that payment or discharge of the relevant matter has been taken into account in the Buyer Financial Statements; or |
| (d) | the matter or liability giving rise to the General Warranty Claim or Tax Warranty Claim would not have occurred but for: |
| (i) | the passing of, or any change in, any applicable legislation or regulation after the date of this Agreement; or |
| (ii) | any change after the date of this Agreement of any generally accepted interpretation or application of any legislation. |
| 7 | Third party recoveries |
| (a) | If, in respect of any matter which constitutes, or the non-defaulting party reasonably considers is likely to give rise to, a General Warranty Claim or Tax Warranty Claim, a Buyer Group Company (in the event that a Seller is the defaulting party) or a Seller Group Company (in the event that the Buyer is the defaulting party) has a right of action or other right of recovery against, or indemnification from, a third party an amount which is referable to that General Warranty Claim or Tax Warranty Claim, the non-defaulting party shall (prior to making or bring such General Warranty Claim or Tax Warranty Claim) use its reasonable endeavours to exercise and enforce such rights of recovery and/or indemnification in full (and the time during which such rights are being exercised and/or enforced shall be disregarded for the purposes of calculating the period referred to in paragraph 2 of this Schedule 5.If a defaulting party pays to the non-defaulting party an amount pursuant to a General Warranty Claim or Tax Warranty Claim and the non-defaulting party subsequently recovers from a third party an amount which is referable to that General Warranty Claim or Tax Warranty Claim, then the non-defaulting party shall repay to the defaulting party so much of the amount paid by the defaulting party as does not exceed the amount recovered from the third party, less: |
| (i) | all proper and reasonable expenses incurred by the non-defaulting party in obtaining that payment and in recovering that amount from the third party; |
| (ii) | any Tax chargeable on that amount (or any Tax that would have been chargeable on that amount but for the use or set off of a Relief). |
| 8 | Non-defaulting party can only recover once for a Claim |
In respect of any Claims made, a non-defaulting party shall not in any circumstances be entitled to recover more than once under any Transaction Document in respect of the same loss or liability.
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SCHEDULE 6
TARGET GROUP VESSELS
| Vessel Name |
IMO |
Registered Owner |
Bareboat Charterer |
Underlying |
Bareboat Flag Registry |
Technical and | ||||||
| Adriatic Gas |
9662021 | AdriaticGas Shipping INC. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Artic Gas |
9745512 | ArcticGas Shipping INC. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Atlantic Gas |
9662019 | AtlanticGas Shipping INC. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Balearic Gas |
9682253 | BalearicGas Shipping INC. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Bering Gas |
9745536 | BeringGas Shipping INC. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Celtic Gas |
9682265 | CelticGas Shipping INC. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Pacific Gas |
9745524 | PacificGas Shipping INC. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Happy Albatross |
9675066 | Lalandia Shipping Company S.A. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Happy Avocet |
9694373 | Falstria Shipping Company S.A. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Happy Condor |
9368780 | Alameda Shipping INC. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Happy Falcon |
9227261 | Adela Shipping and Finance, INC. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Happy Kestrel |
9543043 | Fionia Shipping Company S.A. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Happy Osprey |
9553646 | Langelandia Shipping Company S.A. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Happy Peregrine |
9553660 | Mona Shipping Company S.A. | Ultragas ApS | Panama | Denmark | UltraShip Aps | ||||||
| Happy Bird |
9197727 | Petland Shipping Company S.A. | Ultragas ApS | Isle of Man | None | UltraShip Aps | ||||||
| Happy Pelican |
9618850 | Zeeland Shipping Company S.A. | Ultragas ApS | Isle of Man | None | UltraShip Aps | ||||||
| Happy Penguin |
9623996 | Zelandia Shipping Company S.A | Ultragas ApS | Isle of Man | None | UltraShip Aps | ||||||
| Happy Bride |
9181900 | Highland Shipping Company S.A. | Ultragas ApS | Isle of Man | None | UltraShip Aps |
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SCHEDULE 7
DIRECTOR RESIGNATION LETTERS FOR TARGET GROUP COMPANIES
| TARGET GROUP COMPANY |
RESIGNATIONS | |
| Ultraship ApS | Members of the board of directors:
• Christian Harald Csaszar Giesecke – (Chairman)
• Jan Vincent Vermeij Chamy
• Dag Karl Albert Von Appen Burose | |
| Ultragas ApS | Members of the board of directors:
• Dag Karl Albert Von Appen Burose – (Chairman)
• Jan Vincent Vermeij Chamy
• Peter Stokes
• Raimundo Sanchez Hanisch | |
| Othello Shipping Company S.A. | • Dag von Appen Burose – (Director, President)
• Enrique Ide Valenzuela – (Director,Secretary,Treasurer)
• Jan Vermeij Chamy – (Director)
• Raimundo Sanchez Hanisch – (Director) | |
| Zeeland Shipping Company S.A.
Alameda Shipping Inc.
Atlanticgas Shipping Inc.
Balearicgas Shipping Inc.
Beringgas Shipping Inc.
Celticgas Shipping Inc.
Falstria Shipping Company S.A.
Highland Shipping Company S.A.
Lalandia Shipping Company S.A.
Arcticgas Shipping Inc.
Fionia Shipping Company S.A.
Langelandia Shipping Company S.A.
Mona Shipping Company S.A.
Pacificgas Shipping Inc.
Pentland Shipping Company S.A.
Adela Shipping and Finance Inc.
Zelandia Shipping Company S.A.
Adriaticgas Shipping Inc. |
• Dag von Appen Burose – (Director, President)
• Enrique Ide Valenzuela – (Director, Secretary, Treasurer)
• Michael Schroder Seemann – (Director)
• Jan Vermeij Chamy – (Director)
• Raimundo Sanchez Hanisch – (Director) | |
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SCHEDULE 8
DANISH JOINT TAXATION SCHEME
| 1.1 | Ultragas ApS and UltraShip ApS (“Danish Target Group”) are part of the compulsory Danish joint taxation of the Danish entities in Seller B’s group. Consequently, the income of the Danish Target Group is subject to joint taxation with the Danish entities in Seller B’s group until the control of the Danish Target Group is transferred from Seller B to the Buyer. Pursuant to section 31(6) of the Danish Corporate Tax Act (“Selskabsskatteloven”), Seller B is the administrative company (in Danish “Administrationsselskab”) of the Danish Target Group. In order to neutralize the effects of the Danish joint taxation and to ensure that the transfer of the Danish Target Group from Seller B to the Buyer—to the extent possible—has the same tax implications as if the Danish Target Group had not been subject to compulsory Danish joint taxation, the parties agree as follows: |
| (i) | The Buyer and Seller B agree that the Danish Target Group is consolidated with Seller B under section 31C of the Danish Corporate Tax Act until Completion and, consequently, that the joint taxation of the Danish Target Group and the Danish entities in Seller B’s group will cease as of Completion. |
| (ii) | Seller B shall no later than 1 month after Completion notify the Danish Tax Agency of the date of the Danish Target Group’s withdrawal from the joint taxation with Seller B and of the period in which the Danish Target Group’s income is to be included in Seller B’s joint taxation income. The Buyer shall no later than 1 month after Completion notify the Danish Tax Agency of the date of commencement of the Danish Target Group’s new joint taxation with the Buyer and of the period in which the Danish Target Group’s income is to be included in the Buyer’s joint taxation income. |
| (iii) | Seller B shall ensure that all tax returns of the Danish Target Group for all income periods ending on or before Completion are prepared and timely filed with the Danish Tax Agency. Seller B may reasonably choose the principles to be applied when preparing the tax returns, provided, however, that these are in accordance with applicable tax law and the practice hitherto reasonably applied when preparing the Danish Target Group’s tax returns. The Buyer acknowledges and accepts that some of the choices made and principles applied in the tax returns are also binding with respect to the assessment of the Danish Target Group’s taxable income after Completion. The tax return for the interim period must be drafted in accordance with the same principles and choices which has been used so far by the Danish Target Group. If Seller B can prove that the choice of principles which has been made for the draft of the tax return for the interim period is consistent with the choice of principles made so far, the Buyer must accept Seller B’s choice of principles. The Buyer shall not accept a choice of principles that is inconsistent with the principles used so far. As for choices of principles where Seller B cannot prove previous practices, the choice must take both Seller B’s and the Buyer’s fiscal interests into consideration to the extent that their fiscal interests are conflicting. |
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| (iv) | Seller B is entitled to request the Danish tax authorities to allocate the Danish Target groups’ on-account tax payments in the interim period to the interim period in accordance with the Danish Corporate Tax Act section 29B(2). |
| (v) | The Buyer agrees to make such information available to Seller B and Seller B’s advisors as may reasonably be required in order to prepare the Danish Target Group’s tax returns for income periods ending on or before Completion. Seller B will pay all reasonable out-of-pocket costs and expenses related to Seller B’s advisors in connection with the preparation of the Danish Target Group’s tax returns for income periods ending on or before Completion. Seller B shall provide a draft of the income statement and a draft of the tax return regarding the period since the end of the latest income year and until Closing (i.e., the interim period) to the Buyer no later than 60 days after Closing. Seller B shall pay all expenses for this purpose. If the Buyer does not provide any comments to the draft income tax return for the interim period within 30 days after having received the draft, the draft is considered approved by the Buyer and may as such be sent to the Danish tax authorities. If the Buyer does provide comments to the draft within 30 days after having received the draft, Seller B and the Buyer shall seek to find a settlement on how to draft the tax return. If the Parties cannot find a settlement, Seller B is entitled to submit the tax return in the form that Seller B finds appropriate, and the dispute between the Buyer and Seller B must be solved in accordance with the terms mentioned in the Agreement regarding resolution of disputes. |
| (vi) | Seller B shall no later than on 1 March 2022 submit the Danish Target Group’s tax returns for the period from 1 January 2021 to Completion to the Buyer (“Interim Tax Period”). |
| (vii) | Seller B agrees to make such information available to the Buyer and the Buyer’s advisors as may reasonably be required in order to prepare the Danish Target Group’s tax returns for periods ending after Completion. The Buyer will pay all reasonable out-of-pocket costs and expenses related to the Buyer’s advisors in connection with the preparation of the Danish Target Group’s tax returns for periods ending after Completion. |
| (viii) | Seller B shall in accordance with section 31 of the Danish Corporate Tax Act: |
| (A) | compensate the Danish Target Group for the Tax value of losses (reasonably agreed by the parties) in the Danish Target Group, to the extent such losses are used by companies in Seller B’s joint taxation, |
| (B) | repay amounts to the extent the Danish Target Group has paid excess Tax amounts to Seller B, |
| (C) | pay any further amounts under section 31 of the Danish Corporate Tax Act, |
| (ix) | The Buyer shall exercise its influence in the Danish Target Group to ensure that the Danish Target Group in accordance with section 31 of the Danish Corporate Tax Act: |
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| (A) | pays an amount to Seller B corresponding to the final Tax on the Danish Target Group’s income in the relevant income year(s) including the Interim Tax Period (after deduction of relevant prepayments of tax from the Danish Target Group to Seller B), subject to Seller B providing the Buyer with evidence (satisfactory to the Buyer) that such amount has been paid to the Danish tax authorities, |
| (B) | compensates Seller B for the tax value of losses (reasonably agreed by the parties) in Seller B and/or other companies which are jointly taxed with Seller B (except for the Danish Target Group), to the extent that such losses are used by the Danish Target Group, and |
| (C) | pays any further amounts under section 31 of the Danish Corporate Tax Act, subject to Seller B providing the Buyer with evidence (satisfactory to the Buyer) that such amount has been paid to the Danish tax authorities, |
it being understood that the Buyer shall be liable for the Danish Target Group’s payments in accordance with this Clause (viii).
| (x) | Payment in accordance with the above item (vii)(C) shall be made not later than 10 days after Seller B has received repayment from the Danish Tax Agency of the excess tax in question. Other payments in accordance with the above Clauses (vii) and (viii) shall be made not later than on 20 November in the year following the relevant income year, provided, however, that payments that are a consequence of an increase or a decrease of taxable income shall be made not later than 14 days after the final decision on such increase or decrease. |
| (xi) | If a decrease of Ultragas ApS’ or UltraShip ApS’ taxable income for a period ending on or prior to Completion is effected, and such decrease implies (i) repayment of tax to Ultragas ApS or UltraShip ApS, or (ii) repayment of joint taxation contribution from Seller B (or companies that are jointly taxation with Seller B) to Ultragas ApS or UltraShip ApS, the Buyer shall pay a corresponding amount to Seller B as an adjustment of the purchase price. |
| (xii) | During the joint taxation between the Danish Target Group and Seller B, the Danish Target Group and Seller B (and any other group companies under the joint taxation) have been jointly and severally liable to the Danish tax authorities. Following the cessation of the joint taxation between the Danish Target Group and Seller B, the Danish Target Group are only liable for the part of the income Tax, prepaid Tax, and outstanding Tax including interests, that concern the part of the income which is apportioned to the Danish Target Group in accordance with the Danish Corporate Tax Act section 30 (6). With respect to the inter-relation between the Buyer and Seller B, Seller B must bear the reasonable costs and expenses of any such liability for the Danish Target Group to the extent that the liability relates to any period prior to Completion. |
| (xiii) | In the event the Danish Tax Agency finds that for joint taxation purposes the control of the Danish Target Group is transferred from Seller B to the Buyer at a date other than the Completion Date (the “Alternative Change-of-Control Date”), the above Clauses shall apply with such changes as are necessary, and Seller B shall submit to the Buyer, as soon as possible after the date of the Danish Tax Agency’s decision on the Alternative Change-of-Control Date, the Danish Target Group’s tax returns for the period from 1 January 2021 until the Alternative Change-of-Control Date. |
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| (xiv) | Neither Seller B nor the Buyer are allowed to make contact to the Danish tax authorities and ask for a change in the income for the Danish Target Group regarding any period that ends prior to or at Completion unless both parties agree in writing. Each party can make an enquiry to the Danish tax authorities and ask for an increase if such an enquiry is required by law and if that party provides a copy of the enquiry to the other party. |
| (xv) | If the Danish Tax Agency should seek to increase Ultragas ApS’ or UltraShip ApS’ taxable income for a period ending on or prior to Completion, Seller B shall have an exclusive right to handle and make decisions on the matter, provided that Seller B accepts to indemnify the Buyer (to its reasonable satisfaction) for such increase. Provided that Seller B accepts to indemnify the Buyer and hereby undertakes to keep the Buyer informed of all information relating to the matter and deliver to the Buyer copies of all material correspondence relating to the matter, Seller B shall furthermore have an exclusive right to reasonably seek the Danish Target Group’s tax returns for periods ending on or prior to Completion changed and otherwise to handle and decide on the Danish Target Group’s tax matters for periods ending on or prior to Completion. The Buyer shall—on Seller B’s request—take such reasonable steps (including ensure that Danish Target Group takes such reasonable steps) as deemed necessary to ensure the above, and Seller B shall indemnify the Buyer (to its reasonable satisfaction) and the Danish Target Group for any costs and expenses related thereto. The Buyer shall not be obliged to take any action in relation to a matter under this paragraph 1.1(xv) where there has been fraudulent conduct or conduct involving dishonestly by Seller B in relation to the matter under this paragraph 1.1(xv). |
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EXECUTION PAGES
| EXECUTED as a DEED by |
) | |
| ULTRANAV INTERNATIONAL S.A. |
) | |
| acting by [Raimundo Sánchez / Francisco Larraín] |
) /s/ Raimundo Sánchez /s/ Francisco Larraín | |
| expressly authorised in accordance |
) | |
| with the laws of Panama |
) | |
| such execution being witnessed by: |
) | |
| Witness’ signature: /s/ Paulina Godoy Muñoz |
||
| Witness’ name: Paulina Godoy Muñoz |
||
| Witness’ address: Av. El Bosque Norte No. 500, Piso 19, Las Condes, Santiago, Chile | ||
| EXECUTED as a DEED by |
) | |
| ULTRANAV DENMARK APS |
) | |
| acting by [Raimundo Sánchez / Francisco Larraín] |
) /s/ Raimundo Sánchez /s/ Francisco Larraín | |
| expressly authorised in accordance |
) | |
| with the laws of Denmark |
) | |
| such execution being witnessed by: |
) | |
| Witness’ signature: /s/ Paulina Godoy Muñoz |
||
| Witness’ name: Paulina Godoy Muñoz |
||
| Witness’ address: Av. El Bosque Norte No. 500, Piso 19, Las Condes, Santiago, Chile | ||
| EXECUTED as a DEED by |
) | |
| NAVIERA ULTRANAV LIMITADA |
) | |
| acting by [Raimundo Sánchez / Francisco Larraín] |
) /s/ Raimundo Sánchez /s/ Francisco Larraín | |
| expressly authorised in accordance |
) | |
| with the laws of Chile |
) | |
| such execution being witnessed by: |
) | |
Witness’ signature: /s/ Paulina Godoy Muñoz
Witness’ name: Paulina Godoy Muñoz
Witness’ address: Av. El Bosque Norte No. 500, Piso 19, Las Condes, Santiago, Chile
108
| EXECUTED as a DEED by |
) | |||
| NAVIGATOR HOLDINGS LTD |
) | |||
| acting by [John Reay] |
) | /s/ John Reay | ||
| expressly authorised in accordance |
) | |||
| with the laws of the |
) | |||
| Republic of the Marshall Islands |
) | |||
| such execution being witnessed by: |
) |
Witness’ signature: /s/ Michelle Reay
Witness’ name: Michelle Reay
Witness’ address: 76 Fordwich Rise Hertford SG14 2DE UK
109
Exhibit 4.2
Execution Version
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this “Agreement”), dated August 4, 2021 (the “Effective Date”), is among Navigator Holdings Ltd., a corporation incorporated under the laws of the Republic of the Marshall Islands (together with its successors and permitted assigns, the “Company”), and BW Group Limited (together with its successors and permitted assigns, the “Investor”).
RECITALS
A. The Investor owns 21,868,857 common shares of the Company, par value $0.01 per share (such shares, together with any equity securities issued or issuable directly or indirectly with respect to such shares by way of share dividend or share split or in connection with a combination of shares, recapitalization, reclassification, merger, amalgamation, arrangement, consolidation or other reorganization, the “Shares”).
B. The Investor and the Company are parties to an Investor Rights Agreement, dated December 22, 2020 (the “Existing Investor Rights Agreement”).
C. The Investor and the Company have agreed to amend and restate in its entirety the Existing Investor Rights Agreement.
NOW, THEREFORE, the parties hereby agree that on the Effective Date the Existing Investor Rights Agreement shall be amended and restated in its entirety as follows:
1. Definitions.
1.1 Other Defined Terms. In addition to the terms defined elsewhere in the Agreement, the following terms have the meanings indicated when used in this Agreement with initial capital letters:
“Affiliate” means with respect to any specified Person, any other Person that directly or indirectly controls, is controlled by or is under common control with such specified Person. For this purpose, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided, however, that for purposes of this Agreement, the Company and its Subsidiaries will not be deemed to be Affiliates of the Investor.
“Beneficial Owner” or “Beneficially Own” has the meaning given to such terms under Rule 13d-3 of the Exchange Act.
“Board” means the Board of Directors of the Company.
“Change of Control” means an event or series of events by which (a) any Person (other than the Investor or another entity sponsored by or Affiliated with the Investor) acquires Beneficial Ownership of 50% or more of the outstanding Common Shares, (b) all or substantially all of the consolidated assets of the Company are sold, leased, exchanged or transferred to any Person or group of Persons, (c) the Company is consolidated, merged, amalgamated, reorganized or otherwise enters into a similar transaction in which it is combined with another Person, unless the Persons who Beneficially Own the outstanding Voting Securities of the Company immediately before consummation of the transaction Beneficially Own a majority of the outstanding Voting Securities of the combined or surviving entity immediately thereafter in substantially the same proportion among such Persons as prior to giving effect to such transaction, or (d) the Shareholders approve of any plan or proposal for the liquidation or dissolution of the Company.
“Common Shares” means the Company’s common shares, par value $0.01 per share.
“Material Disclosure Event” means (a) a material transaction in which the Company or any of its Subsidiaries proposes to engage or is engaged, including a purchase or sale of assets or securities, financing, merger,
consolidation, tender offer or other material corporate development, or (b) another material non-public event or development, and with respect to which the Board has determined in good faith that compliance with this Agreement may reasonably be expected to either materially interfere with the Company’s or such Subsidiary’s ability to consummate such transaction in a timely fashion (in the case of clause (a)) or require the Company to disclose material, non-public information or such material corporate event or development prior to such time as it would otherwise be required to be disclosed.
“Outstanding” means, at any given time, Common Shares actually outstanding at such time, excluding treasury shares and shares issuable upon conversion or exercise of securities or other contractual rights.
“Person” means an individual, corporation, partnership, limited liability company, joint stock company, joint venture, association, trust or other entity or organization.
“Public Offering” means any primary or secondary public offering of equity securities of the Company pursuant to an effective registration statement under the Securities Act, other than pursuant to a registration statement on Form S-4, Form F-4 or Form S-8 or any successor or similar form.
“Registrable Securities” means (a) all Shares and (b) any equity securities issued or issuable directly or indirectly with respect to the securities referred to in the foregoing clause by way of share dividend or share split or in connection with a combination of shares, recapitalization, reclassification, merger, amalgamation, arrangement, consolidation or other reorganization; provided, however, that such securities will cease to be Registrable Securities (i) when such securities have been sold or transferred pursuant to a Registration Statement, (ii) when such securities have been transferred in compliance with Rule 144 under the Securities Act, or are transferable by a Person who is not an Affiliate of the Company pursuant to Rule 144 without any volume or manner of sale restrictions thereunder, or (iii) if such securities have ceased to be outstanding.
“Registration Statement” means a registration statement filed with the SEC on which it is permissible to register securities for sale to the public under the Securities Act.
“Ultranav Investor Rights Agreement” means the Investor Rights Agreement, dated August 4, 2021, among the Company and the Ultranav Investors.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933.
“Shareholders” means the holders of Voting Securities as of the applicable time.
“Shelf Period” has the meaning set forth in Section 4.3(b).
“Shelf Registration” means a Registration Statement effected pursuant to Section 4.3.
“Shelf Registration Statement” means a Registration Statement of the Company filed with the SEC on Form F-3 (or any successor form under the Securities Act) providing for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (or any similar rule that may be adopted by the SEC) covering the Registrable Securities, as applicable.
“Shelf Suspension” has the meaning set forth in Section 4.3(c).
“Subsidiary” means, with respect to any Person, any corporation, partnership, trust, limited liability company or other non-corporate business enterprise in which such Person (or another Subsidiary of such Person) holds stock or other ownership interests representing (a) more than 50% of the voting power of all outstanding stock or ownership interests of such entity, (b) the right to receive more than 50% of the net assets of such entity available for distribution to the holders of outstanding stock or ownership interests upon a liquidation or dissolution of such entity, or (c) a general or managing partnership interest in such entity; provided, however, that, notwithstanding the foregoing, (i) PT Navigator Khatulistiwa will be deemed to be a Subsidiary of the Company and (ii) for purposes of this Agreement, the Company and its Subsidiaries will not be deemed to be Subsidiaries of the Investor.
2
“Ultranav Investors” means Ultranav International S.A. and Ultranav Denmark ApS.
“Voting Securities” means any securities, including Common Shares, of the Company or its successor having the power generally to vote in the election of members of the Board or the equivalent of its successor.
2. Corporate Governance Rights.
2.1 Board Designees. (a) Until (i) the date on which the Investor ceases to Beneficially Own at least 10% of the Outstanding Shares, the Investor will be entitled to designate one designee to be nominated by the Company to serve as a director of the Company and (ii) the date on which the Investor ceases to Beneficially Own at least 20% of the Outstanding Shares, the Investor will be entitled to designate a total of two designees (such individuals, the “Board Designees”) to be nominated by the Company to serve as directors of the Company. The Investor agrees that, without the consent of the Company, it will not nominate more than one Board Designee who is a United States citizen or resident. The Company will take all actions necessary to provide the Investor with the representation on the Board contemplated by this Section 2.1, including (A) causing the Board Designees to be included in the slate of nominees recommended by the Board to the Shareholders for election as directors, (B) causing the election of such Board Designees, including using its reasonable efforts to cause officers of the Company who hold proxies (unless otherwise directed by the Shareholder submitting such proxy) to vote such proxies in favor of the election of such Board Designees, and (C) using the same efforts to cause the Board Designees to be elected to the Board as it uses to cause other nominees of the Board to be elected.
(b) If any Board Designee ceases to serve as a director for any reason, the Company will use its reasonable efforts to cause any vacancy resulting thereby to be filled by another designee designated by the Investor.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Company will provide such indemnification, reimbursement and compensation to the Board Designees as is consistent with the indemnification, reimbursement and compensation provided to other non-executive members of the Board. The Company will maintain its directors and officers liability insurance policies in such amounts and on such terms as approved by the Board, including the Board Designees.
2.2 Confidentiality. The Investor agrees, and will cause its Affiliates, to (a) keep confidential all proprietary or non-public information of the Company and its Subsidiaries received by participation in the activities of the Board (whether from a Board Designee or otherwise) or otherwise received by it from the Company, its Subsidiaries or their respective representatives, (b) not disclose or reveal any such information to any Person without the prior written consent of the Company other than to the Investor’s and its Affiliates’ directors, officers, employees, attorneys, accountants and financial advisors (the “Permitted Representatives”) whom the Investor determines in good faith need to know such information for the purpose of evaluating, monitoring or taking any other action with respect to the investment by the Investor in the Company, and (c) use reasonable efforts to cause those Permitted Representatives to observe the terms of this Section 2.2; provided however, that nothing herein will prevent the Investor or any of its Affiliates from disclosing any information that (i) is or becomes generally available to the public in accordance with law, other than (A) as a result of any action or inaction by the Investor or its Affiliates, the Permitted Representatives or Subsidiaries, in violation of this Section 2.2, (B) in violation of any other confidentiality agreement between the Company and such Person or the Investor, or (C) in violation of any other contractual, legal or fiduciary duty of such Person or the Investor, (ii) was within the Investor’s or its Affiliates’ possession or developed by such Person prior to being furnished with such information, (iii) becomes available to the Investor or its Affiliates on a non-confidential basis from a source other than the Company, or (iv) that the Investor or any of its Affiliates determines in good faith after consultation with counsel is required to be disclosed by law (provided that, prior to such disclosure, the Investor or such Affiliate will, unless prohibited by law, make reasonable efforts to notify the Company of any such disclosure, use reasonable efforts to limit the disclosure requirements of such law and maintain the confidentiality of such information to the maximum extent permitted by law). For as long as any employee of the Investor is serving as a Board Designee, the Investor will, and will cause its Affiliates to, endeavor in good faith to comply with the Company’s policies applicable to transactions in Company securities by officers and directors.
3
2.3 Rights Solely for the Investor. The rights and obligations of the Investor pursuant to this Section 2 will only apply to the Investor, and may not be transferred to any other Person; provided, however, that the Investor may transfer such rights and obligations to (a) an Affiliate of the Investor to whom the Investor transfers its Shares and (b) with the consent of the Board, any Person to whom the Investor transfers more than 10,000,000 Common Shares.
3. Certain Covenants and Other Agreements.
3.1 Legends; Securities Act Compliance. (a) The Investor acknowledges that certain of the Shares have not been registered under the Securities Act or under any state securities laws and agrees that it will not sell or otherwise dispose of any of the Shares, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities laws. The Investor agrees that all certificates, book-entry shares or other instruments representing such Shares will bear a legend substantially to the following effect:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT.”
(b) Subject to Section 4.8(b), upon the request of the Investor, upon receipt by the Company of an opinion of counsel reasonably satisfactory to the Company to the effect that such legend is no longer required under the Securities Act or applicable state laws, as the case may be, the Company will promptly cause the legend to be removed from any certificate or book-entry share for any Shares to be so transferred.
3.2 Competitive Operations. The Company hereby acknowledges and agrees that, to the fullest extent permitted by applicable law:
(a) the Investor and its Affiliates (including any Board Designee) are free to engage in (i) any investment or business opportunity or activity that may be competitive or otherwise similar to the business of the Company or its Subsidiaries or (ii) a prospective economic or competitive advantage in which the Company or any Subsidiary could have an interest or expectancy, and neither the Investor nor any of its Affiliates (including any Board Designees) will have any duty (either fiduciary, contractual or otherwise) to the Company or its Subsidiaries, the other Shareholders, or any of their respective Affiliates with respect to any such opportunity, including any obligation to communicate or present such opportunity to the Company or its Subsidiaries; and
(b) the Investor and its Affiliates (including any Board Designees) are not otherwise restricted from using any knowledge acquired in connection with their access to information about the Company or in their capacity as a Shareholder (or in the case of any Board Designee, in their role as a director of the Company) in making investment, voting, monitoring, governance or other decisions relating to the Company or any other entities or securities.
3.3 Certain Tax Matters. (a) The Company will, and will cause each of its Subsidiaries to, provide all information with respect to the Company and its Subsidiaries which is requested by the Investor to enable the Investor (or its direct or indirect owners) to comply with their U.S. federal income tax reporting obligations, including but not limited to rules relating to “controlled foreign corporations” (each a “CFC”) and “passive foreign investment companies” (each, a “PFIC”). Such assistance will include providing information to enable the Investor (or their direct or indirect owners) to comply with its obligations under Sections 1248, 6038, 6038B, 6038D, 6046 and 6046A of the Code, including information relating to earnings and profits as computed for U.S. federal income tax purposes. The Company will determine annually if it or any of its Subsidiaries is a CFC or PFIC, and if the Company or the Investor determines that any such corporation is a PFIC, the Company will permit the Investor (or its direct or indirect owners) to make a “Qualified Electing Fund” election with respect to its interest in such corporation pursuant to Section 1295 of the Code, and will cause to be furnished to the Investor no later than 60 days following the end of the Company’s taxable year the relevant PFIC annual information statement pursuant to U.S. Treasury Regulation Section 1.1295-1(g).
(b) In addition to the foregoing covenants set forth in this Section 3.3, the Company (i) will not take any action that would cause the Company not to be classified as a corporation for U.S. federal income tax purposes and (ii) will use commercially reasonable efforts to not take any action that would cause the Company to become a PFIC;
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provided, however, that the foregoing covenants under clauses (i) and (ii) of this sentence will not require the Company or any of its Subsidiaries to incur any significant additional cost or expense, or to forego any significant benefit, not expressly provided for in this Agreement.
4. Registration Rights.
4.1 Registration on Request. (a) Subject to Section 4.1(c) and Section 4.3(a), if, at any time there is no currently effective Shelf Registration Statement on file with the SEC, the Company receives a written request from the Investor that the Company file a Registration Statement covering the registration of at least 10% of the then-Outstanding Registrable Securities, then the Company will, as expeditiously as possible, use its commercially reasonable efforts to effect the registration of such portion of the Registrable Securities that the Investor requests, pursuant to a Registration Statement. Each request for a registration pursuant to this Section 4.1 will be in writing and will specify the approximate number of Registrable Securities requested to be registered and the intended method of distribution. Notwithstanding the foregoing, the Company will not be obligated to file a registration requested pursuant to this Section 4.1:
(i) within a period of 90 calendar days after the effective date of any other registration requested pursuant to this Section 4.1;
(ii) on a total of more than five occasions;
(iii) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification, or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act; or
(iv) if the Investor proposes to dispose of shares of Registrable Securities that may be registered at such time pursuant to a Registration Statement contemplated in Section 4.2.
(b) A registration requested pursuant to this Section 4.1 will not be deemed to have been effected unless the Registration Statement has become effective; provided, however, that if, within the period ending on the earlier to occur of (i) 90 days after the applicable Registration Statement has become effective and (ii) the date on which the distribution of the securities covered thereby has been completed, the offering of securities pursuant to such Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such Registration Statement will be deemed not to have been effected; provided, further, that if the Investor, after exercising its right to request a registration pursuant to this Section 4.1, withdraws from a registration so requested after the filing thereof, such registration will be deemed to have been effective with respect to the Investor in accordance with this Section 4.1.
(c) Subject to Section 4.2, if, within five Business Days of receipt of a Registration Request, the Investor is advised in writing (the “Underwriter’s Advice”) that the Company has in good faith commenced the preparation of a Registration Statement for an underwritten Public Offering prior to receipt of such request and the managing underwriter of the proposed Public Offering has determined that in such firm’s good faith opinion, a registration at the time and on the terms requested would materially and adversely affect such underwritten Public Offering, then the Company will not be required to effect such requested registration pursuant to this Section 4.1 until the earliest of:
(i) the abandonment of such underwritten Public Offering by the Company;
(ii) 60 days after receipt of the Underwriter’s Advice by the Investor, unless the Registration Statement for such offering has become effective and such Public Offering has commenced on or prior to such 60th day; and
(iii) if the Registration Statement for such Public Offering has become effective and such Public Offering has commenced on or prior to such 60th day, the day on which the restrictions on the Investor contained in the related lock-up agreement lapse with respect to such offering.
Notwithstanding the foregoing, the Company will not be permitted to defer a registration requested pursuant to this Section 4.1 in reliance on this Section 4.1(c) more than once in any 365-day period.
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(d) The Company may postpone the filing or effectiveness of any Registration Statement and suspend the Investor’s use of any prospectus which is a part of the Registration Statement (in which event the Investor will discontinue sales of the Registrable Securities pursuant to the Registration Statement) for a period of up to an aggregate of 90 days in any 365-day period, exclusive of days covered by any lock-up agreement executed by the Investor in connection with any underwritten Public Offering, after the request for registration pursuant to this Section 4.1 if a Material Disclosure Event exists or is pending at such time.
(e) The Company will have the right to cause the registration of additional securities for sale for the account of any Person other than the Investor (including the Company) in any registration requested pursuant to this Section 4.1 to the extent the managing underwriter or other independent marketing agent for such offering (if any) determines that, in its opinion, the additional securities proposed to be sold will not materially and adversely affect the offering and sale of the Registrable Securities to be registered in accordance with the intended method or methods of disposition then contemplated by such registration requested pursuant to this Section 4.1.
4.2 Piggyback Registration. (a) If the Company proposes or is required to file a Registration Statement under the Securities Act or any other securities Laws with respect to an offering of any Common Shares, whether or not for sale for its own account or that of a selling stockholder (other than a registration statement (i) on Form S-4, Form F-4, Form S-8 or any similar form under non-U.S. Laws or (ii) filed solely in connection with any employee benefit or dividend reinvestment plan), then the Company will give prompt written notice of such proposed filing at least 10 Business Days before the anticipated filing date (the “Piggyback Notice”) to the Investor. The Piggyback Notice will offer the Investor the opportunity to include in such Registration Statement the number of Registrable Securities as they may request (a “Piggyback Registration”), subject to Section 4.2(b). The Company will include in each such Piggyback Registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein by the Investor subject to Section 4.2(b). The Investor will be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time at least five Business Days prior to the effective date of the Registration Statement relating to such Piggyback Registration. The Company will be required to maintain the effectiveness of the Registration Statement for a Piggyback Registration for a period of 60 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold.
(b) If the managing underwriter or underwriters of a proposed underwritten offering advise the Company and the holders of such Registrable Securities that, in their judgment, because of the size of the offering which the Investor, the Company and such other Persons intend to make, the success of the offering would be materially and adversely affected by inclusion of the Registrable Securities requested to be included (taking into account, in addition to any considerations that the managing underwriter or underwriters deem relevant in its or their sole discretion, the timing and manner to effect the offering), then the amount of Registrable Securities to be offered for the account of the Investor will be reduced pro rata to the extent necessary to reduce the total amount of Registrable Securities to be included in such offering to the amount recommended by such managing underwriter or underwriters; provided that if one or both of the Ultranav Investors is also offering Common Shares in such offering pursuant to its registration rights under the Ultranav Investor Rights Agreement, then the amount of Registrable Securities to be offered for the account of the Investor will be reduced to the extent necessary to reduce the total amount of Registrable Securities to be included in such offering to the amount recommended by such managing underwriter or underwriters, with such reduction made proportionally according to the ratio of (i) the number of Registrable Securities requested to be included in such offering by the Investor to (ii) the aggregate number of Registrable Securities requested to be included in such offering by both the Investor and the Ultranav Investors; provided further that if Common Shares are being offered for the account of other Persons (other than the Ultranav Investors) as well as the Company, then the Common Shares intended to be offered for the account of such other Persons will be reduced pro rata to the extent necessary to permit the Investor to include all of their Registrable Securities in such offering.
4.3 Shelf Registration. (a) Filing. Upon written request by the Investor, and so long as the Company is eligible, the Company will, as expeditiously as possible, use its commercially reasonable efforts to file with the SEC a Shelf Registration Statement relating to the offer and sale of all Registrable Securities held by the Investor from time to time in accordance with the methods of distribution elected by such Investor and set forth in the Shelf Registration Statement and, as promptly as practicable thereafter, shall use its reasonable efforts to cause such Shelf Registration Statement to become effective under the Securities Act. If, on the date of any such request, the Company does not qualify to file a Shelf Registration Statement under the Securities Act, the provisions of this Section 4.3 shall not apply, and the provisions of Section 4.1 shall apply instead.
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(b) Continued Effectiveness. The Company shall use its reasonable efforts to keep such Shelf Registration Statement continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be usable by Investor until the earlier of (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration Statement or another Registration Statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder) and (ii) the date as of which the Investor is permitted to sell its Registrable Securities without Registration pursuant to Rule 144 under the Securities Act without volume limitation or other restrictions on transfer thereunder (such period of effectiveness, the “Shelf Period”). Subject to Section 4.3(d), the Company shall not be deemed to have used its reasonable best efforts to keep the Shelf Registration Statement effective during the Shelf Period if the Company voluntarily takes any action or omits to take any action that would result in holders of Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to such Shelf Registration Statement during the Shelf Period, unless such action or omission is required by applicable law.
(c) Suspension of Registration. If the continued use of such Shelf Registration Statement at any time would require the Company to disclose a Material Disclosure Event, the Company may, upon giving at least ten (10) days’ prior written notice of such action to Investor, suspend use of the Shelf Registration Statement (a “Shelf Suspension”); provided, that the Company shall not be permitted to exercise a Shelf Suspension for a total period exceeding ninety (90) days in any 365-day period. In the case of a Shelf Suspension, the Investor agrees to suspend use of the applicable prospectus in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon receipt of the notice referred to above. The Company shall promptly notify the Investor upon the termination of any Shelf Suspension, amend or supplement the prospectus if necessary, so it does not contain any untrue statement or omission and furnish to the Investor such numbers of copies of the prospectus as so amended or supplemented as the Investor may reasonably request. The Company shall, if necessary, supplement or make amendments to the Shelf Registration Statement, if required by the registration form used by the Company for the Shelf Registration or by the instructions applicable to such registration form or by the Securities Act or the rules or regulations promulgated thereunder or as may reasonably be requested by the Investor.
(d) Underwritten Offering. If the Investor elects, an offering of Registrable Securities pursuant to the Shelf Registration Statement shall be in the form of an underwritten offering, and the Company shall amend or supplement the Shelf Registration Statement for such purpose, such Investor shall jointly have the right to select the managing underwriter or underwriters to administer such offering.
4.4 Registration Procedures. The Company agrees to:
(a) before filing a Registration Statement or any amendments or supplements thereto, the Company will furnish the Investor with copies of all such documents proposed to be filed, which documents will be subject to review of the Investor;
(b) subject to Section 4.1(e), prepare and, if the registration is pursuant to notice given under Section 4.1, or 4.3 in any event within 60 days after the giving of notice pursuant to Section 4.1 or 4.3, file with the SEC a Registration Statement with respect to such Registrable Securities on any form for which the Company then qualifies or which counsel for the Company deems appropriate and which form will be available for the sale of such Registrable Securities in accordance with the intended methods of distribution thereof, and use its best efforts to cause such Registration Statement to become and remain effective;
(c) prepare and file with the SEC or other Governmental Entity having jurisdiction such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective continuously for the period referred to in the last sentence of Section 4.2(a);
(d) furnish to the Investor such number of copies, without charge, of such Registration Statement, each amendment and supplement thereto, including each preliminary prospectus, final prospectus, any other prospectus (including any prospectus filed under Rule 424, Rule 430A or Rule 430B under the Securities Act and any “issuer free writing prospectus” as such term is defined under Rule 433 promulgated under the Securities Act), all exhibits and other documents filed therewith and such other documents as the Investor may reasonably request including in order to facilitate the disposition of its Registrable Securities;
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(e) register or qualify such Registrable Securities under such other securities or blue sky Laws of such jurisdictions as the Investor reasonably requests and do any and all other acts and things that may be reasonably necessary or reasonably advisable to enable the Investor to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Investor (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction);
(f) notify the Investor at any time when a prospectus relating to the Registrable Securities is required to be delivered under the Securities Act, upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, as soon as reasonably practicable, prepare and furnish to the Investor a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(g) notify the Investor (i) when such Registration Statement or the prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or other Governmental Entity for amendments or supplements to such Registration Statement or to amend or to supplement such prospectus or for additional information, and (iii) of the issuance by the SEC or other Governmental Entity of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for any of such purposes;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed, if applicable;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement; and
(j) make available for inspection by the Investor and its counsel, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Investor or underwriter, all financial and other records, pertinent corporate documents and documents relating to the business of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by the Investor, underwriter, attorney, accountant or agent in connection with such Registration Statement, provided that it will be a condition to such inspection and receipt of such information that the inspecting Person (i) enter into a confidentiality agreement in form and substance reasonably satisfactory to the Company and (ii) agree to minimize the disruption to the Company’s business in connection with the foregoing.
(k) if requested, obtain a “comfort” letter or letters from the Company’s independent public accountants in customary form and covering matters of the type customarily covered by “comfort” letters as the Investor reasonably requests;
(l) if requested, obtain a legal opinion of the Company’s outside counsel in customary form and covering such matters of the type customarily covered by legal opinions of such nature and reasonably satisfactory to the Investor, which opinion will be addressed to any underwriters and the Investor; and
(m) if applicable, cooperate with the Investor and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority.
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4.5 Provision of Information. As a condition to registering Registrable Securities, the Company may require the Investor to furnish the Company with such information regarding the Investor and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as the Company may from time to time reasonably request in writing.
4.6 Registration Expenses. Except as otherwise provided in this Agreement, all expenses incidental to the Company’s performance of or compliance with this Agreement, including all registration and filing fees, fees and expenses of compliance with securities or blue sky Laws, word processing, duplicating and printing expenses, messenger and delivery expenses, and fees and disbursements of counsel for the Company and counsel (limited to one law firm) for the Investor and all independent certified public accountants and other Persons retained by the Company (all such expenses, “Registration Expenses”), will be borne by the Company. The Company will, in any event, pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit or quarterly review, the expenses of any liability insurance and, if applicable, the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed. The Investor will pay all underwriting discounts, selling commissions and transfer taxes applicable to the sale of Registrable Securities hereunder, the fees and expenses of counsel beyond the one law firm paid for by the Company and any other Registration Expenses required by Law to be paid by the Investor pro rata on the basis of the amount of proceeds from the sale of their securities so registered.
4.7 Participation Conditions. (a) The Investor may not participate in any registration hereunder that is underwritten unless the Investor (i) agrees to sell its Registrable Securities on the basis provided in any underwriting arrangements approved by the Investor (including pursuant to the terms of any over-allotment or “green shoe” option requested by the managing underwriter(s), provided that the Investor will not be required to sell more than the number of Registrable Securities that the Investor has requested the Company to include in any registration), (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up or holdback agreements and other documents reasonably required under the terms of such underwriting arrangements, so long as such provisions are substantially the same for all selling shareholders, and (iii) cooperates with the Company’s reasonable requests in connection with such registration or qualification. Notwithstanding the foregoing, the liability of the Investor or any transferee participating in such an underwritten registration will be limited to an amount equal to the amount of gross proceeds attributable to the sale of the Investor’s Registrable Securities.
(b) If the Investor participates in any registration hereunder, it agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4.4(f), such Person will forthwith discontinue the disposition of its Registrable Securities pursuant to the Registration Statement until such Person receives copies of a supplemented or amended prospectus as contemplated by such Section 4.4(f). In the event the Company gives any such notice, the applicable time period mentioned in Section 4.4(c) during which a Registration Statement is to remain effective will be extended by the number of days during the period from and including the date of the giving of such notice pursuant to this Section 4.7(b) to and including the date when the Investor will have received the copies of the supplemented or amended prospectus contemplated by Section 4.4(f).
4.8 Rule 144. (a) The Company will use its reasonable best efforts to, upon the request of the Investor or any transferee, make publicly available such information as necessary to permit sales pursuant to Rule 144, and will use reasonable best efforts to take such further action as the Investor or any transferee may reasonably request, all to the extent required from time to time to enable such Person to sell shares of Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144. Upon the request of the Investor or any transferee, the Company will deliver to such Person a written statement as to whether it has complied with such information requirements.
(b) The Company will not issue new certificates or enter any book-entry shares for Registrable Securities without a legend restricting further transfer unless (i) such shares have been sold to the public pursuant to an effective Registration Statement under the Securities Act or Rule 144, or (ii) (x) otherwise permitted under the Securities Act, (y) the holder of such shares has delivered to the Company an opinion of counsel, which opinion and counsel is reasonably satisfactory to the Company, to such effect, and (z) the holder of such shares expressly requests the issuance of such certificates or book-entry shares in writing.
4.9 Holdback. In consideration for the Company agreeing to its obligations under this Agreement, the Investor (and any transferee) agrees in connection with any registration of the Company’s securities (whether or not such
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Person is participating in such registration) upon the request of the Company and the underwriters managing any underwritten offering of the Company’s securities, on the same terms as all directors, officers and greater than 5% holders agree, not to effect (other than pursuant to such registration) any public sale or distribution of Registrable Securities or make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any Registrable Securities, any other equity securities of the Company or any securities convertible into or exchangeable or exercisable for any equity securities of the Company without the prior written consent of the Company or such underwriters, as the case may be, during such period as may be required by the managing underwriter.
5. Information Rights. The Company agrees to furnish the Investor with: (i) as soon as practicable, but in any event within forty-five (45) days before the end of each fiscal year, a copy of the Company’s annual business plan and budget for the next fiscal year, (ii) as soon as practicable, a monthly management report of the Company’s operations, including a profit and loss account, a balance sheet and a cashflow statement and (iii) such other information relating to the financial condition, business, prospects, or corporate affairs of the Company as the Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Section 5 to provide information to the Investor the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel.
6. Miscellaneous.
6.1 Termination. This Agreement will terminate, except for this Section 6 and as otherwise provided in this Agreement, on the earlier of (a) the date that the Investor no longer Beneficially Owns any Common Shares and (b) upon the written consent of the Company and the Investor.
6.2 Expenses. (a) Except as otherwise provided herein, all expenses incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the party incurring such expenses.
(a) In the event that the Board or the chief executive officer of the Company requests that the Investor considers any action that would be reasonably likely to require a change or amendment to this Agreement or affect their rights in any manner that is different than or in addition to the effect on shareholders generally, the Company will pay on behalf of or reimburse the Investor for all of its reasonable out-of-pocket costs and expenses incident thereto, or incurred or to be incurred in connection therewith, including the actual and reasonable fees of counsel, accountants and/or other consultants to the Investor billed at standard hourly rates and disbursements.
6.3 Notice. All notices, requests, demands and other communications made under or by reason of the provisions of this Agreement must be in writing and be given by hand delivery, email, facsimile or next Business Day courier to the affected party at the addresses and facsimile numbers set forth below or at such other addresses or facsimile numbers as such party may have provided to the other parties in accordance herewith. Such notices will be deemed given at the time personally delivered (if delivered by hand with receipt acknowledged), upon issuance by the transmitting machine of confirmation that the number of pages constituting the notice has been transmitted without error and confirmed telephonically (if sent by email or facsimile), and the first Business Day after timely delivery to the courier (if sent by next-Business Day courier specifying next-Business Day delivery).
(a) If to the Company, to:
Navigator Holdings Ltd. Verde, 10 Bressenden Place
London, SW1E 5DH
United Kingdom
Attention: Harry Deans
Email: harry.deans@navigatorgas.com
(with copy to legal.notices@navigatorgas.com)
With a copy (which will not constitute notice) to:
Baker Botts L.L.P.
30 Rockefeller Plaza
New York, New York 10112
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Attention: Adorys Velazquez and Michael Swidler
Fax No.: 212.259.2511
Email: adorys.velazquez@bakerbotts.com and michael.swidler@bakerbotts.com
(b) If to the Investor:
BW Group Limited
#18-01, 10 Pasir Panjang Road
Singapore, 117438
Fax: +65 6337 1623
Email: bwlegal@bw-group.com
With a copy (which will not constitute notice) to:
Cleary Gottlieb Steen & Hamilton LLP
2 London Wall Place
London EC2Y 5AU, England
Attention: Sebastian Sperber and Benet J. O’Reilly
Email: ssperber@cgsh.com and boreilly@cgsh.com
6.4 Interpretation. This Agreement has been freely and fairly negotiated among the parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement. When a reference is made in this Agreement to an Article or Section, such reference will be to an Article or Section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” “$” refers to U.S. dollars. Words used in the singular form in this Agreement will be deemed to include the plural, and vice versa, as the context may require. If the date upon or by which any party hereto is required to perform any covenant or obligation hereunder falls on a day that is not a Business Day, then such date of performance will be automatically extended to the next Business Day thereafter. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless the context otherwise requires, (i) “or” is disjunctive but not necessarily exclusive, (ii) the use in this Agreement of a pronoun in reference to a party hereto includes the masculine, feminine or neuter, as the context may require, and (iii) unless otherwise defined herein, terms used herein which are defined in GAAP have the meanings ascribed to them therein. All Exhibits hereto will be deemed part of this Agreement and included in any reference to this Agreement. Any agreement, instrument or law defined or referred to herein means such agreement, instrument or law as from time to time amended, modified or supplemented (and, in the case of any law, the rules and regulations promulgated thereunder), including (in the case of agreements or instruments) by waiver or consent and (in the case of laws) by succession of comparable successor laws.
6.5 Governing Law. This Agreement, any claims, causes of actions or disputes (whether in contract or tort) based upon, arising out of or relating to this Agreement or the negotiation, execution or performance of this Agreement will be governed by and construed in accordance with the laws applicable to contracts made and to be performed entirely in the State of New York, United States of America, without regard to any applicable conflict of laws principles. The parties hereto agree that any action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement will only be brought in any United States District Court located in New York County, New York so long as such court has subject matter jurisdiction over such action, or alternatively in any New York State Court located in New York County, New York if the aforesaid United States District Courts do not have subject matter jurisdiction, and that any cause of action arising out of this Agreement will be deemed to have arisen from a transaction of business in the State of New York, and each of the parties hereby irrevocably consents to the jurisdiction of such court (and of the appropriate appellate courts therefrom) in any such action and irrevocably waives any objection that it may now or hereafter have to the laying of the venue of any such action in any such court or that any such action which is brought in such court has been brought in an inconvenient forum. Process in any such action may be served on any party anywhere in the world, whether within or without the jurisdiction of such court. Without limiting the foregoing, each party agrees that service of process on
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such party as provided in Section 6.3 will be deemed effective service of process on such party. In the event of litigation relating to this Agreement, the non-prevailing party will be liable and pay to the prevailing party the reasonable costs and expenses (including attorney’s fees) incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
6.6 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, that monetary damages may be inadequate and that a party may have no adequate remedy at law. Notwithstanding Section 6.5, the parties accordingly agree that the parties will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in action instituted in a United States District Court located in New York County, New York, this being in addition to any other remedy to which such party is entitled at law or in equity. In the event that a party seeks in equity to enforce the provisions of this Agreement, no party will allege, and each party hereby waives the defense or counterclaim that, there is an adequate remedy at law.
6.7 Successors and Assigns; Assignment. Except as otherwise expressly provided herein, the provisions hereof will inure to the benefit of, and be binding upon, the successors, permitted assigns, heirs, executors and administrators of the parties hereto. This Agreement may not be assigned by (a) the Company (other than by operation of law, including in connection with a Change of Control), without the prior written consent of the Investor, or (b) the Investor without the prior written consent of the Company, except that the Investor may assign its rights and obligations without such consent in connection with a transfer of its Shares to an Affiliate of the Investor, including any Affiliated fund.
6.8 Amendment and Waiver. No amendment, waiver or other modification of, or consent under, any provision of this Agreement will be effective against the Company, unless it is approved in writing by the Company, and no amendment, waiver or other modification of, or consent under, any provision of this Agreement will be effective against the Investor, unless it is approved in writing by the Investor; provided that the Investor may also waive any rights or provide consent with respect to itself; provided further that notwithstanding the foregoing, the addition of the Investor as a party hereto will not constitute an amendment hereto and may be effected by the execution of a counterpart hereto by the Investor and the Company. If any amendment, waiver or other modification of the Ultranav Investor Rights Agreement is made or provided that is more beneficial to the Ultranav Investors than then-effective Ultranav Investor Rights Agreement, then such amendment, waiver or modification shall be deemed to apply equally to this Agreement, unless the Investor provides a written waiver to the contrary. No waiver of any breach of any agreement or provision herein contained will be deemed a waiver of any preceding or succeeding breach thereof or of any other agreement or provision herein contained. The failure or delay of any of the parties to assert any of its rights or remedies under this Agreement will not constitute a waiver of such rights nor will it preclude any other or further exercise of the same or of any other right or remedy.
6.9 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties and their permitted assigns and nothing herein expressed or implied will give or be construed to give any Person, other than the parties and such assigns, any legal or equitable rights hereunder.
6.10 Entire Agreement. This Agreement (including any exhibits hereto) constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all prior agreements, understandings, representations and undertakings, both written and oral, among the parties with respect to the subject matter hereof and thereof, including any confidentiality agreements previously entered into by the Company, on the one hand, and the Investor, on the other hand.
6.11 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy in any jurisdiction, all other terms and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions and the intention of the parties with respect to the transactions contemplated hereby is not affected in any manner materially adverse to any of the parties. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
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6.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which will constitute one and the same agreement. This Agreement may be executed by any party hereto by means of a facsimile, email or PDF transmission of an originally executed counterpart, the delivery of which facsimile, email or PDF transmission will have the same force and effect, except as specified in any document executed and delivered pursuant to the immediately preceding sentence, as the delivery of the originally executed counterpart.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.
| NAVIGATOR HOLDINGS LTD. | ||||
| By: | /s/ Dr. Henry Deans | |||
| Name: | Dr. Henry Deans | |||
| Title: | Chief Executive Officer | |||
| INVESTOR: | ||||
| BW GROUP LIMITED | ||||
| By: | /s/ Nicholas Fell | |||
| Name: | Nicholas Fell | |||
| Title: | General Counsel & Executive Vice President | |||
[Signature Page to the Amended and Restated Investor Rights Agreement]
Exhibit 4.3
Execution Version
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT (this “Agreement”), dated August 4, 2021, is among Navigator Holdings Ltd., a corporation incorporated under the laws of the Republic of the Marshall Islands (together with its successors and permitted assigns, the “Company”), and the persons signing this Agreement as “Investors” on the signature page hereto (together with their successors and permitted assigns, each, an “Investor” and collectively, the “Investors”).
RECITALS
A. The Investors and the Company entered into a Share Purchase Agreement, dated August 4, 2021 (the “Share Purchase Agreement”), pursuant to which, among other things, the Company has purchased the entire issued share capital of each of Othello Shipping Company SA and Ultragas ApS from Ultranav International S.A. and Ultranav Denmark ApS, respectively, for consideration consisting of an aggregate of 21,202,671 common shares of the Company, par value $0.01 per share (such shares, together with any equity securities issued or issuable directly or indirectly with respect to such shares by way of share dividend or share split or in connection with a combination of shares, recapitalization, reclassification, merger, amalgamation, arrangement, consolidation or other reorganization, the “Shares”).
B. The parties desire to enter into this Agreement with respect to certain arrangements relating to the rights and obligations of the Company and the Investors with respect to the Shares.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions.
1.1 Other Defined Terms. In addition to the terms defined elsewhere in the Agreement, the following terms have the meanings indicated when used in this Agreement with initial capital letters:
“Affiliate” means with respect to any specified Person, any other Person that directly or indirectly controls, is controlled by or is under common control with such specified Person. For this purpose, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided, however, that for purposes of this Agreement, the Company and its Subsidiaries will not be deemed to be Affiliates of the Investors.
“Beneficial Owner” or “Beneficially Own” has the meaning given to such terms under Rule 13d-3 of the Exchange Act.
“Board” means the Board of Directors of the Company.
“BW” means BW Group Limited.
“BW Investor Rights Agreement” means the Amended and Restated Investor Rights Agreement, dated August 4, 2021, among the Company and BW.
“Change of Control” means an event or series of events by which (a) any Person (other than the Investors or another entity sponsored by or Affiliated with the Investors) acquires Beneficial Ownership of 50% or more of the outstanding Common Shares, (b) all or substantially all of the consolidated assets of the Company are sold, leased, exchanged or transferred to any Person or group of Persons, (c) the Company is consolidated, merged, amalgamated, reorganized or otherwise enters into a similar transaction in which it is combined with another Person, unless the Persons who Beneficially Own the outstanding Voting Securities of the Company immediately before consummation of the transaction Beneficially Own a majority of the outstanding Voting Securities of the combined or surviving entity immediately thereafter in substantially the same proportion among such Persons as prior to giving effect to such transaction, or (d) the Shareholders approve of any plan or proposal for the liquidation or dissolution of the Company.
“Common Shares” means the Company’s common shares, par value $0.01 per share.
“Material Disclosure Event” means (a) a material transaction in which the Company or any of its Subsidiaries proposes to engage or is engaged, including a purchase or sale of assets or securities, financing, merger, consolidation, tender offer or other material corporate development, or (b) another material non-public event or development, and with respect to which the Board has determined in good faith that compliance with this Agreement may reasonably be expected to either materially interfere with the Company’s or such Subsidiary’s ability to consummate such transaction in a timely fashion (in the case of clause (a)) or require the Company to disclose material, non-public information or such material corporate event or development prior to such time as it would otherwise be required to be disclosed.
“Outstanding” means, at any given time, Common Shares actually outstanding at such time, excluding treasury shares and shares issuable upon conversion or exercise of securities or other contractual rights.
“Person” means an individual, corporation, partnership, limited liability company, joint stock company, joint venture, association, trust or other entity or organization.
“Public Offering” means any primary or secondary public offering of equity securities of the Company pursuant to an effective registration statement under the Securities Act, other than pursuant to a registration statement on Form S-4, Form F-4 or Form S-8 or any successor or similar form.
“Registrable Securities” means (a) all Shares and (b) any equity securities issued or issuable directly or indirectly with respect to the securities referred to in the foregoing clause by way of share dividend or share split or in connection with a combination of shares, recapitalization, reclassification, merger, amalgamation, arrangement, consolidation or other reorganization; provided, however, that such securities will cease to be Registrable Securities (i) when such securities have been sold or transferred pursuant to a Registration Statement, (ii) when such securities have been transferred in compliance with Rule 144 under the Securities Act, or are transferable by a Person who is not an Affiliate of the Company pursuant to Rule 144 without any volume or manner of sale restrictions thereunder, or (iii) if such securities have ceased to be outstanding.
“Registration Statement” means a registration statement filed with the SEC on which it is permissible to register securities for sale to the public under the Securities Act.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933.
“Shareholders” means the holders of Voting Securities as of the applicable time.
“Shelf Period” has the meaning set forth in Section 4.3(b).
“Shelf Registration” means a Registration Statement effected pursuant to Section 4.3.
“Shelf Registration Statement” means a Registration Statement of the Company filed with the SEC on Form F-3 (or any successor form under the Securities Act) providing for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (or any similar rule that may be adopted by the SEC) covering the Registrable Securities, as applicable.
“Shelf Suspension” has the meaning set forth in Section 4.3(c).
“Subsidiary” means, with respect to any Person, any corporation, partnership, trust, limited liability company or other non-corporate business enterprise in which such Person (or another Subsidiary of such Person)
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holds stock or other ownership interests representing (a) more than 50% of the voting power of all outstanding stock or ownership interests of such entity, (b) the right to receive more than 50% of the net assets of such entity available for distribution to the holders of outstanding stock or ownership interests upon a liquidation or dissolution of such entity, or (c) a general or managing partnership interest in such entity; provided, however, that, notwithstanding the foregoing, (i) PT Navigator Khatulistiwa will be deemed to be a Subsidiary of the Company and (ii) for purposes of this Agreement, the Company and its Subsidiaries will not be deemed to be Subsidiaries of the Investors.
“Ultranav” means Naviera Ultranav Limitada.
“Voting Securities” means any securities, including Common Shares, of the Company or its successor having the power generally to vote in the election of members of the Board or the equivalent of its successor.
2. Corporate Governance Rights.
2.1 Board Designees. (a) Until (i) the date on which the Investors cease to Beneficially Own (in the aggregate) at least 10% of the Outstanding Shares, the Investors will be entitled to designate one designee to be nominated by the Company to serve as a director of the Company and (ii) the date on which the Investors cease to Beneficially Own (in the aggregate) at least 20% of the Outstanding Shares, the Investors will be entitled to designate a total of two designees (such individuals, the “Board Designees”) to be nominated by the Company to serve as directors of the Company. The Investors agree that, without the consent of the Company, they will not nominate more than one Board Designee who is a United States citizen or resident. The Company will take all actions necessary to provide the Investors with the representation on the Board contemplated by this Section 2.1, including (A) causing the Board Designees to be included in the slate of nominees recommended by the Board to the Shareholders for election as directors, (B) causing the election of such Board Designees, including using its reasonable efforts to cause officers of the Company who hold proxies (unless otherwise directed by the Shareholder submitting such proxy) to vote such proxies in favor of the election of such Board Designees, and (C) using the same efforts to cause the Board Designees to be elected to the Board as it uses to cause other nominees of the Board to be elected.
(b) If any Board Designee ceases to serve as a director for any reason, the Company will use its reasonable efforts to cause any vacancy resulting thereby to be filled by another designee designated by the Investors.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Company will provide such indemnification, reimbursement and compensation to the Board Designees as is consistent with the indemnification, reimbursement and compensation provided to other non-executive members of the Board. The Company will maintain its directors and officers liability insurance policies in such amounts and on such terms as approved by the Board, including the Board Designees.
2.2 Confidentiality. Each Investor agrees, and will cause its Affiliates, to (a) keep confidential all proprietary or non-public information of the Company and its Subsidiaries received by participation in the activities of the Board (whether from a Board Designee or otherwise) or otherwise received by it from the Company, its Subsidiaries or their respective representatives, (b) not disclose or reveal any such information to any Person without the prior written consent of the Company other than to such Investor’s and its Affiliates’ directors, officers, employees, attorneys, accountants and financial advisors (the “Permitted Representatives”) whom such Investor determines in good faith need to know such information for the purpose of evaluating, monitoring or taking any other action with respect to the investment by such Investor in the Company, and (c) use reasonable efforts to cause those Permitted Representatives to observe the terms of this Section 2.2; provided however, that nothing herein will prevent any Investor or any of its Affiliates from disclosing any information that (i) is or becomes generally available to the public in accordance with law, other than (A) as a result of any action or inaction by an Investor or its Affiliates, the Permitted Representatives or Subsidiaries, in violation of this Section 2.2, (B) in violation of any other confidentiality agreement between the Company and such Person, Ultranav or any Investor, or (C) in violation of any other contractual, legal or fiduciary duty of such Person, Ultranav or any Investor, (ii) was within an Investor’s or its Affiliates’ possession or developed by such Person prior to being furnished with such information, (iii) becomes available to an Investor or its Affiliates on a non-confidential basis from a source other than the Company, or (iv) that any Investor or any of its Affiliates determines in good faith after consultation with counsel is required to be disclosed by law (provided that, prior to such disclosure, the applicable Investor or such Affiliate will, unless prohibited by law, make reasonable efforts to notify the Company of any such disclosure, use reasonable efforts to
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limit the disclosure requirements of such law and maintain the confidentiality of such information to the maximum extent permitted by law). For as long as any employee of Ultranav or any Investor is serving as a Board Designee, each Investor will, and will cause its Affiliates to, endeavor in good faith to comply with the Company’s policies applicable to transactions in Company securities by officers and directors.
2.3 Rights Solely for the Investors. The rights and obligations of the Investors pursuant to this Section 2 will only apply to the Investors, and may not be transferred to any other Person; provided, however, that any Investor may transfer such rights and obligations to (a) another Investor or to an Affiliate of Ultranav or an Investor to whom such Investor transfers its Shares and (b) with the consent of the Board, any Person to whom such Investor transfers more than 10,000,000 Common Shares.
3. Certain Covenants and Other Agreements.
3.1 Legends; Securities Act Compliance. (a) Each Investor acknowledges that the Shares have not been registered under the Securities Act or under any state securities laws and agrees that it will not sell or otherwise dispose of any of the Shares, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities laws. Each Investor agrees that all certificates, book-entry shares or other instruments representing such Shares will bear a legend substantially to the following effect:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT.”
(b) Subject to Section 4.8(b), upon the request of an Investor, upon receipt by the Company of an opinion of counsel reasonably satisfactory to the Company to the effect that such legend is no longer required under the Securities Act or applicable state laws, as the case may be, the Company will promptly cause the legend to be removed from any certificate or book-entry share for any Shares to be so transferred.
3.2 Competitive Operations. The Company hereby acknowledges and agrees that, to the fullest extent permitted by applicable law:
(a) the Investors and their Affiliates (including any Board Designee) are free to engage in (i) any investment or business opportunity or activity that may be competitive or otherwise similar to the business of the Company or its Subsidiaries or (ii) a prospective economic or competitive advantage in which the Company or any Subsidiary could have an interest or expectancy, and neither the Investors nor any of their Affiliates (including any Board Designees) will have any duty (either fiduciary, contractual or otherwise) to the Company or its Subsidiaries, the other Shareholders, or any of their respective Affiliates with respect to any such opportunity, including any obligation to communicate or present such opportunity to the Company or its Subsidiaries; and
(b) the Investors and their Affiliates (including any Board Designees) are not otherwise restricted from using any knowledge acquired in connection with their access to information about the Company or in their capacity as a Shareholder (or in the case of any Board Designee, in their role as a director of the Company) in making investment, voting, monitoring, governance or other decisions relating to the Company or any other entities or securities.
3.3 Certain Tax Matters. (a) The Company will, and will cause each of its Subsidiaries to, provide all information with respect to the Company and its Subsidiaries which is requested by an Investor to enable such Investor (or its direct or indirect owners) to comply with its U.S. federal income tax reporting obligations, including but not limited to rules relating to “controlled foreign corporations” (each a “CFC”) and “passive foreign investment companies” (each, a “PFIC”). Such assistance will include providing information to enable the Investors (or their direct or indirect owners) to comply with their obligations under Sections 1248, 6038, 6038B, 6038D, 6046 and 6046A of the Code, including information relating to earnings and profits as computed for U.S. federal income tax purposes. The Company will determine annually if it or any of its Subsidiaries is a CFC or PFIC, and if the Company or any Investor determines that any such corporation is a PFIC, the Company will permit such Investor (or its direct or indirect owners) to make a “Qualified Electing Fund” election with respect to its interest in such corporation pursuant to Section 1295 of the Code, and will cause to be furnished to such Investor no later than 60 days following the end of the Company’s taxable year the relevant PFIC annual information statement pursuant to U.S. Treasury Regulation Section 1.1295-1(g).
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(b) In addition to the foregoing covenants set forth in this Section 3.3, the Company (i) will not take any action that would cause the Company not to be classified as a corporation for U.S. federal income tax purposes and (ii) will use commercially reasonable efforts to not take any action that would cause the Company to become a PFIC; provided, however, that the foregoing covenants under clauses (i) and (ii) of this sentence will not require the Company or any of its Subsidiaries to incur any significant additional cost or expense, or to forego any significant benefit, not expressly provided for in this Agreement.
4. Registration Rights.
4.1 Registration on Request. (a) Subject to Section 4.1(c) and Section 4.3(a), if, at any time there is no currently effective Shelf Registration Statement on file with the SEC, the Company receives a written request from an Investor or Investors (the “Initiating Investors”) that the Company file a Registration Statement covering the registration of at least 10% of the then-Outstanding Registrable Securities, then the Company will, as expeditiously as possible, use its commercially reasonable efforts to effect the registration of such portion of the Registrable Securities that such Investor or Investors request, pursuant to a Registration Statement. Each request for a registration pursuant to this Section 4.1 will be in writing and will specify the approximate number of Registrable Securities requested to be registered and the intended method of distribution. Notwithstanding the foregoing, the Company will not be obligated to file a registration requested pursuant to this Section 4.1:
(i) within a period of 90 calendar days after the effective date of any other registration requested pursuant to this Section 4.1;
(ii) on a total of more than five occasions;
(iii) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification, or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act; or
(iv) if the Investors propose to dispose of shares of Registrable Securities that may be registered at such time pursuant to a Registration Statement contemplated in Section 4.2.
(b) A registration requested pursuant to this Section 4.1 will not be deemed to have been effected unless the Registration Statement has become effective; provided, however, that if, within the period ending on the earlier to occur of (i) 90 days after the applicable Registration Statement has become effective and (ii) the date on which the distribution of the securities covered thereby has been completed, the offering of securities pursuant to such Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court, such Registration Statement will be deemed not to have been effected; provided, further, that if an Investor, after exercising its right to request a registration pursuant to this Section 4.1, withdraws from a registration so requested after the filing thereof, such registration will be deemed to have been effective with respect to such Investor in accordance with this Section 4.1.
(c) Subject to Section 4.2, if, within five Business Days of receipt of a Registration Request, the Initiating Investors are advised in writing (the “Underwriter’s Advice”) that the Company has in good faith commenced the preparation of a Registration Statement for an underwritten Public Offering prior to receipt of such request and the managing underwriter of the proposed Public Offering has determined that in such firm’s good faith opinion, a registration at the time and on the terms requested would materially and adversely affect such underwritten Public Offering, then the Company will not be required to effect such requested registration pursuant to this Section 4.1 until the earliest of:
(i) the abandonment of such underwritten Public Offering by the Company;
(ii) 60 days after receipt of the Underwriter’s Advice by the Initiating Investors, unless the Registration Statement for such offering has become effective and such Public Offering has commenced on or prior to such 60th day; and
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(iii) if the Registration Statement for such Public Offering has become effective and such Public Offering has commenced on or prior to such 60th day, the day on which the restrictions on the Investors contained in the related lock-up agreement lapse with respect to such offering.
Notwithstanding the foregoing, the Company will not be permitted to defer a registration requested pursuant to this Section 4.1 in reliance on this Section 4.1(c) more than once in any 365-day period.
(d) The Company may postpone the filing or effectiveness of any Registration Statement and suspend any Investor’s use of any prospectus which is a part of the Registration Statement (in which event the Investors will discontinue sales of the Registrable Securities pursuant to the Registration Statement) for a period of up to an aggregate of 90 days in any 365-day period, exclusive of days covered by any lock-up agreement executed by such Investor in connection with any underwritten Public Offering, after the request for registration pursuant to this Section 4.1 if a Material Disclosure Event exists or is pending at such time.
(e) The Company will have the right to cause the registration of additional securities for sale for the account of any Person other than an Investor (including the Company) in any registration requested pursuant to this Section 4.1 to the extent the managing underwriter or other independent marketing agent for such offering (if any) determines that, in its opinion, the additional securities proposed to be sold will not materially and adversely affect the offering and sale of the Registrable Securities to be registered in accordance with the intended method or methods of disposition then contemplated by such registration requested pursuant to this Section 4.1.
4.2 Piggyback Registration. (a) If the Company proposes or is required to file a Registration Statement under the Securities Act or any other securities Laws with respect to an offering of any Common Shares, whether or not for sale for its own account or that of a selling stockholder (other than a registration statement (i) on Form S-4, Form F-4, Form S-8 or any similar form under non-U.S. Laws or (ii) filed solely in connection with any employee benefit or dividend reinvestment plan), then the Company will give prompt written notice of such proposed filing at least 10 Business Days before the anticipated filing date (the “Piggyback Notice”) to the Investors. The Piggyback Notice will offer the Investors the opportunity to include in such Registration Statement the number of Registrable Securities as they may request (a “Piggyback Registration”), subject to Section 4.2(b). The Company will include in each such Piggyback Registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein by the Investors subject to Section 4.2(b). The Investors will be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time at least five Business Days prior to the effective date of the Registration Statement relating to such Piggyback Registration. The Company will be required to maintain the effectiveness of the Registration Statement for a Piggyback Registration for a period of 60 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold.
(b) If the managing underwriter or underwriters of a proposed underwritten offering advise the Company and the holders of such Registrable Securities that, in their judgment, because of the size of the offering which the Investors, the Company and such other Persons intend to make, the success of the offering would be materially and adversely affected by inclusion of the Registrable Securities requested to be included (taking into account, in addition to any considerations that the managing underwriter or underwriters deem relevant in its or their sole discretion, the timing and manner to effect the offering), then the amount of Registrable Securities to be offered for the accounts of the Investors will be reduced pro rata to the extent necessary to reduce the total amount of Registrable Securities to be included in such offering to the amount recommended by such managing underwriter or underwriters; provided that if BW is also offering Common Shares in such offering pursuant to its registration rights under the BW Investor Rights Agreement, then the amount of Registrable Securities to be offered for the account of the Investors will be reduced to the extent necessary to reduce the total amount of Registrable Securities to be included in such offering to the amount recommended by such managing underwriter or underwriters, with such reduction made proportionally according to the ratio of (i) the aggregate number of Registrable Securities requested to be included in such offering by the Investors to (ii) the aggregate number of Registrable Securities requested to be included in such offering by both the Investors and BW; provided further that if Common Shares are being offered for the account of other Persons (other than BW) as well as the Company, then the Common Shares intended to be offered for the account of such other Persons will be reduced pro rata to the extent necessary to permit the Investors to include all of their Registrable Securities in such offering.
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4.3 Shelf Registration. (a) Filing. Upon written request by Initiating Investors, and so long as the Company is eligible, the Company will, as expeditiously as possible, use its commercially reasonable efforts to file with the SEC a Shelf Registration Statement relating to the offer and sale of all Registrable Securities held by the Initiating Investors from time to time in accordance with the methods of distribution elected by the Initiating Investors and set forth in the Shelf Registration Statement and, as promptly as practicable thereafter, shall use its reasonable efforts to cause such Shelf Registration Statement to become effective under the Securities Act. If, on the date of any such request, the Company does not qualify to file a Shelf Registration Statement under the Securities Act, the provisions of this Section 4.3 shall not apply, and the provisions of Section 4.1 shall apply instead.
(b) Continued Effectiveness. The Company shall use its reasonable efforts to keep such Shelf Registration Statement continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be usable by the Initiating Investors until the earlier of (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration Statement or another Registration Statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder) and (ii) the date as of which the Initiating Investors are permitted to sell their Registrable Securities without Registration pursuant to Rule 144 under the Securities Act without volume limitation or other restrictions on transfer thereunder (such period of effectiveness, the “Shelf Period”). Subject to Section 4.3(d), the Company shall not be deemed to have used its reasonable best efforts to keep the Shelf Registration Statement effective during the Shelf Period if the Company voluntarily takes any action or omits to take any action that would result in holders of Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to such Shelf Registration Statement during the Shelf Period, unless such action or omission is required by applicable law.
(c) Suspension of Registration. If the continued use of such Shelf Registration Statement at any time would require the Company to disclose a Material Disclosure Event, the Company may, upon giving at least ten (10) days’ prior written notice of such action to the Investors, suspend use of the Shelf Registration Statement (a “Shelf Suspension”); provided, that the Company shall not be permitted to exercise a Shelf Suspension for a total period exceeding ninety (90) days in any 365-day period. In the case of a Shelf Suspension, the Initiating Investors agree to suspend use of the applicable prospectus in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon receipt of the notice referred to above. The Company shall promptly notify the Investors upon the termination of any Shelf Suspension, amend or supplement the prospectus if necessary, so it does not contain any untrue statement or omission and furnish to the Investors such numbers of copies of the prospectus as so amended or supplemented as the Investors may reasonably request. The Company shall, if necessary, supplement or make amendments to the Shelf Registration Statement, if required by the registration form used by the Company for the Shelf Registration or by the instructions applicable to such registration form or by the Securities Act or the rules or regulations promulgated thereunder or as may reasonably be requested by the Investors.
(d) Underwritten Offering. If the Initiating Investors elect, an offering of Registrable Securities pursuant to the Shelf Registration Statement shall be in the form of an underwritten offering, and the Company shall amend or supplement the Shelf Registration Statement for such purpose, the Initiating Investors shall jointly have the right to select the managing underwriter or underwriters to administer such offering.
4.4 Registration Procedures. The Company agrees to:
(a) before filing a Registration Statement or any amendments or supplements thereto, the Company will furnish to each Investor copies of all such documents proposed to be filed, which documents will be subject to review of the Investors;
(b) subject to Section 4.1(e), prepare and, if the registration is pursuant to notice given under Section 4.1, or 4.3 in any event within 60 days after the giving of notice pursuant to Section 4.1 or 4.3, file with the SEC a Registration Statement with respect to such Registrable Securities on any form for which the Company then qualifies or which counsel for the Company deems appropriate and which form will be available for the sale of such Registrable Securities in accordance with the intended methods of distribution thereof, and use its best efforts to cause such Registration Statement to become and remain effective;
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(c) prepare and file with the SEC or other Governmental Entity having jurisdiction such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective continuously for the period referred to in the last sentence of Section 4.2(a);
(d) furnish to each Investor such number of copies, without charge, of such Registration Statement, each amendment and supplement thereto, including each preliminary prospectus, final prospectus, any other prospectus (including any prospectus filed under Rule 424, Rule 430A or Rule 430B under the Securities Act and any “issuer free writing prospectus” as such term is defined under Rule 433 promulgated under the Securities Act), all exhibits and other documents filed therewith and such other documents as such Investor may reasonably request including in order to facilitate the disposition of its Registrable Securities;
(e) register or qualify such Registrable Securities under such other securities or blue sky Laws of such jurisdictions as an Investor reasonably requests and do any and all other acts and things that may be reasonably necessary or reasonably advisable to enable the Investors to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Investors (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction);
(f) notify each Investor at any time when a prospectus relating to the Registrable Securities is required to be delivered under the Securities Act, upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, as soon as reasonably practicable, prepare and furnish to each Investor a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(g) notify each Investor (i) when such Registration Statement or the prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to such Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or other Governmental Entity for amendments or supplements to such Registration Statement or to amend or to supplement such prospectus or for additional information, and (iii) of the issuance by the SEC or other Governmental Entity of any stop order suspending the effectiveness of such Registration Statement or the initiation of any proceedings for any of such purposes;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed, if applicable;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement; and
(j) make available for inspection by each Investor and its respective counsel, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by an Investor or underwriter, all financial and other records, pertinent corporate documents and documents relating to the business of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by an Investor, underwriter, attorney, accountant or agent in connection with such Registration Statement, provided that it will be a condition to such inspection and receipt of such information that the inspecting Person (i) enter into a confidentiality agreement in form and substance reasonably satisfactory to the Company and (ii) agree to minimize the disruption to the Company’s business in connection with the foregoing.
(k) if requested, obtain a “comfort” letter or letters from the Company’s independent public accountants in customary form and covering matters of the type customarily covered by “comfort” letters as the applicable Investor or Investors reasonably request;
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(l) if requested, obtain a legal opinion of the Company’s outside counsel in customary form and covering such matters of the type customarily covered by legal opinions of such nature and reasonably satisfactory to the applicable Investor or Investors, which opinion will be addressed to any underwriters and such Investor or Investors; and
(m) if applicable, cooperate with the applicable Investor or Investors and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority.
4.5 Provision of Information. As a condition to registering Registrable Securities, the Company may require an Investor to furnish the Company with such information regarding such Investor and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as the Company may from time to time reasonably request in writing.
4.6 Registration Expenses. Except as otherwise provided in this Agreement, all expenses incidental to the Company’s performance of or compliance with this Agreement, including all registration and filing fees, fees and expenses of compliance with securities or blue sky Laws, word processing, duplicating and printing expenses, messenger and delivery expenses, and fees and disbursements of counsel for the Company and counsel (limited to one law firm) for Ultranav or the Investors and all independent certified public accountants and other Persons retained by the Company (all such expenses, “Registration Expenses”), will be borne by the Company. The Company will, in any event, pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit or quarterly review, the expenses of any liability insurance and, if applicable, the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed. Each Investor will pay all underwriting discounts, selling commissions and transfer taxes applicable to the sale of Registrable Securities hereunder, the fees and expenses of counsel beyond the one law firm paid for by the Company and any other Registration Expenses required by Law to be paid by such Investor pro rata on the basis of the amount of proceeds from the sale of their securities so registered.
4.7 Participation Conditions. (a) No Investor may participate in any registration hereunder that is underwritten unless such Investor (i) agrees to sell its Registrable Securities on the basis provided in any underwriting arrangements approved by the Investors (including pursuant to the terms of any over-allotment or “green shoe” option requested by the managing underwriter(s), provided that an Investor will not be required to sell more than the number of Registrable Securities that such Investor has requested the Company to include in any registration), (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up or holdback agreements and other documents reasonably required under the terms of such underwriting arrangements, so long as such provisions are substantially the same for all selling shareholders, and (iii) cooperates with the Company’s reasonable requests in connection with such registration or qualification. Notwithstanding the foregoing, the liability of an Investor or any transferee participating in such an underwritten registration will be limited to an amount equal to the amount of gross proceeds attributable to the sale of such Investor’s Registrable Securities.
(b) Each Investor that is participating in any registration hereunder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4.4(f), such Person will forthwith discontinue the disposition of its Registrable Securities pursuant to the Registration Statement until such Person receives copies of a supplemented or amended prospectus as contemplated by such Section 4.4(f). In the event the Company gives any such notice, the applicable time period mentioned in Section 4.4(c) during which a Registration Statement is to remain effective will be extended by the number of days during the period from and including the date of the giving of such notice pursuant to this Section 4.7(b) to and including the date when the Investors will have received the copies of the supplemented or amended prospectus contemplated by Section 4.4(f).
4.8 Rule 144. (a) The Company will use its reasonable best efforts to, upon the request of an Investor or any transferee, make publicly available such information as necessary to permit sales pursuant to Rule 144, and will use reasonable best efforts to take such further action as an Investor or any transferee may reasonably request, all to the extent required from time to time to enable such Person to sell shares of Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144. Upon the request of an Investor or any transferee, the Company will deliver to such Person a written statement as to whether it has complied with such information requirements.
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(b) The Company will not issue new certificates or enter any book-entry shares for Registrable Securities without a legend restricting further transfer unless (i) such shares have been sold to the public pursuant to an effective Registration Statement under the Securities Act or Rule 144, or (ii) (x) otherwise permitted under the Securities Act, (y) the holder of such shares has delivered to the Company an opinion of counsel, which opinion and counsel is reasonably satisfactory to the Company, to such effect, and (z) the holder of such shares expressly requests the issuance of such certificates or book-entry shares in writing.
4.9 Holdback. In consideration for the Company agreeing to its obligations under this Agreement, each Investor (and any transferee) agrees in connection with any registration of the Company’s securities (whether or not such Person is participating in such registration) upon the request of the Company and the underwriters managing any underwritten offering of the Company’s securities, on the same terms as all directors, officers and greater than 5% holders agree, not to effect (other than pursuant to such registration) any public sale or distribution of Registrable Securities or make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any Registrable Securities, any other equity securities of the Company or any securities convertible into or exchangeable or exercisable for any equity securities of the Company without the prior written consent of the Company or such underwriters, as the case may be, during such period as may be required by the managing underwriter.
5. Information Rights. The Company agrees to furnish the Investors with: (i) as soon as practicable, but in any event within forty-five (45) days before the end of each fiscal year, a copy of the Company’s annual business plan and budget for the next fiscal year, (ii) as soon as practicable, a monthly management report of the Company’s operations, including a profit and loss account, a balance sheet and a cashflow statement and (iii) such other information relating to the financial condition, business, prospects, or corporate affairs of the Company as an Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Section 5 to provide information to the Investors the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel.
6. Miscellaneous.
6.1 Termination. This Agreement will terminate, except for this Section 6 and as otherwise provided in this Agreement, on the earlier of (a) the date that the Investors no longer Beneficially Own any Common Shares and (b) upon the written consent of the Company and the Investors.
6.2 Expenses. (a) Except as otherwise provided herein, all expenses incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the party incurring such expenses.
(a) In the event that the Board or the chief executive officer of the Company requests that one or more of the Investors considers any action that would be reasonably likely to require a change or amendment to this Agreement or affect their rights in any manner that is different than or in addition to the effect on shareholders generally, the Company will pay on behalf of or reimburse each of the Investors for all of its reasonable out-of-pocket costs and expenses incident thereto, or incurred or to be incurred in connection therewith, including the actual and reasonable fees of counsel, accountants and/or other consultants to the Investors billed at standard hourly rates and disbursements.
6.3 Notice. All notices, requests, demands and other communications made under or by reason of the provisions of this Agreement must be in writing and be given by hand delivery, email, facsimile or next Business Day courier to the affected party at the addresses and facsimile numbers set forth below or at such other addresses or facsimile numbers as such party may have provided to the other parties in accordance herewith. Such notices will be deemed given at the time personally delivered (if delivered by hand with receipt acknowledged), upon issuance by the transmitting machine of confirmation that the number of pages constituting the notice has been transmitted without error and confirmed telephonically (if sent by email or facsimile), and the first Business Day after timely delivery to the courier (if sent by next-Business Day courier specifying next-Business Day delivery).
(a) If to the Company, to:
Navigator Holdings Ltd.
Verde, 10 Bressenden Place
10
London, SW1E 5DH
United Kingdom
Attention: Harry Deans
Email: harry.deans@navigatorgas.com
(with copy to legal.notices@navigatorgas.com)
With a copy (which will not constitute notice) to:
Baker Botts L.L.P.
30 Rockefeller Plaza New York,
New York 10112
Attention: Adorys Velazquez and Michael Swidler
Fax No.: 212.259.2511
Email: adorys.velazquez@bakerbotts.com and michael.swidler@bakerbotts.com
(b) If to the Investors:
Ultranav International S.A.
Tower Financial Center, 16th Floor, 50th Street and Elvira Mendez
Panama, Republic of Panama.
ID: RUC N° 5321-117-66420 (Panamá)
Attention: Raimundo Sanchez and Francisco Larrain
Email: raimundo.sanchez@ultranav.cl ; francisco.larrain@ultranav.cl
Ultranav Denmark ApS
Smakkedalen 6, 2820
Gentofte, Denmark
ID: 32949541 (Denmark)
Attention: Raimundo Sanchez and Francisco Larrain
Email: raimundo.sanchez@ultranav.cl; francisco.larrain@ultranav.cl
With a copy (which will not constitute notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Tel: +1 212 909 6000
Fax: +1 212 909 6836
Attention: Gregory V Gooding and Sergio Torres
Email: ggooding@debevoise.com; storres@debevoise.com
6.4 Interpretation. This Agreement has been freely and fairly negotiated among the parties. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement. When a reference is made in this Agreement to an Article or Section, such reference will be to an Article or Section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” “$” refers to U.S. dollars. Words used in the singular form in this Agreement will be deemed to include the plural, and vice versa, as the context may require. If the date upon or by which any party hereto is required to perform any covenant or obligation hereunder falls on a day that is not a Business Day, then such date of performance will be automatically extended to the next Business Day thereafter. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless the context otherwise requires, (i) “or” is disjunctive but not necessarily exclusive, (ii) the use in this Agreement of a pronoun in reference to a party hereto includes the masculine, feminine or neuter, as the context may require, and (iii) unless otherwise
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defined herein, terms used herein which are defined in GAAP have the meanings ascribed to them therein. All Exhibits hereto will be deemed part of this Agreement and included in any reference to this Agreement. Any agreement, instrument or law defined or referred to herein means such agreement, instrument or law as from time to time amended, modified or supplemented (and, in the case of any law, the rules and regulations promulgated thereunder), including (in the case of agreements or instruments) by waiver or consent and (in the case of laws) by succession of comparable successor laws.
6.5 Governing Law. This Agreement, any claims, causes of actions or disputes (whether in contract or tort) based upon, arising out of or relating to this Agreement or the negotiation, execution or performance of this Agreement will be governed by and construed in accordance with the laws applicable to contracts made and to be performed entirely in the State of New York, United States of America, without regard to any applicable conflict of laws principles. The parties hereto agree that any action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement will only be brought in any United States District Court located in New York County, New York so long as such court has subject matter jurisdiction over such action, or alternatively in any New York State Court located in New York County, New York if the aforesaid United States District Courts do not have subject matter jurisdiction, and that any cause of action arising out of this Agreement will be deemed to have arisen from a transaction of business in the State of New York, and each of the parties hereby irrevocably consents to the jurisdiction of such court (and of the appropriate appellate courts therefrom) in any such action and irrevocably waives any objection that it may now or hereafter have to the laying of the venue of any such action in any such court or that any such action which is brought in such court has been brought in an inconvenient forum. Process in any such action may be served on any party anywhere in the world, whether within or without the jurisdiction of such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 6.3 will be deemed effective service of process on such party. In the event of litigation relating to this Agreement, the non-prevailing party will be liable and pay to the prevailing party the reasonable costs and expenses (including attorney’s fees) incurred by the prevailing party in connection with such litigation, including any appeal therefrom.
6.6 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, that monetary damages may be inadequate and that a party may have no adequate remedy at law. Notwithstanding Section 6.5, the parties accordingly agree that the parties will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in action instituted in a United States District Court located in New York County, New York, this being in addition to any other remedy to which such party is entitled at law or in equity. In the event that a party seeks in equity to enforce the provisions of this Agreement, no party will allege, and each party hereby waives the defense or counterclaim that, there is an adequate remedy at law.
6.7 Successors and Assigns; Assignment. Except as otherwise expressly provided herein, the provisions hereof will inure to the benefit of, and be binding upon, the successors, permitted assigns, heirs, executors and administrators of the parties hereto. This Agreement may not be assigned by (a) the Company (other than by operation of law, including in connection with a Change of Control), without the prior written consent of the Investors, or (b) any Investor without the prior written consent of the Company, except that each Investor may assign its rights and obligations without such consent in connection with a transfer of its Shares to an Affiliate of such Investor, including any Affiliated fund.
6.8 Amendment and Waiver. No amendment, waiver or other modification of, or consent under, any provision of this Agreement will be effective against the Company, unless it is approved in writing by the Company, and no amendment, waiver or other modification of, or consent under, any provision of this Agreement will be effective against any Investor, unless it is approved in writing by such Investor; provided that any Investor may also waive any rights or provide consent with respect to itself; provided further that notwithstanding the foregoing, the addition of an Investor as a party hereto will not constitute an amendment hereto and may be effected by the execution of a counterpart hereto by such Investor and the Company. If any amendment, waiver or other modification of the BW Investor Rights Agreement is made or provided that is more beneficial to BW than then-effective BW Investor Rights Agreement, then such amendment, waiver or modification shall be deemed to apply equally to this Agreement, unless the Investors provide a written waiver to the contrary. No waiver of any breach of any agreement or provision herein contained will be deemed a waiver of any preceding or succeeding breach thereof or of any other
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agreement or provision herein contained. The failure or delay of any of the parties to assert any of its rights or remedies under this Agreement will not constitute a waiver of such rights nor will it preclude any other or further exercise of the same or of any other right or remedy.
6.9 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties and their permitted assigns and nothing herein expressed or implied will give or be construed to give any Person, other than the parties and such assigns, any legal or equitable rights hereunder.
6.10 Entire Agreement. This Agreement (including any exhibits hereto) constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all prior agreements, understandings, representations and undertakings, both written and oral, among the parties with respect to the subject matter hereof and thereof, including any confidentiality agreements previously entered into by the Company, on the one hand, and Ultranav or any Investor, on the other hand.
6.11 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy in any jurisdiction, all other terms and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions and the intention of the parties with respect to the transactions contemplated hereby is not affected in any manner materially adverse to any of the parties. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
6.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which will constitute one and the same agreement. This Agreement may be executed by any party hereto by means of a facsimile, email or PDF transmission of an originally executed counterpart, the delivery of which facsimile, email or PDF transmission will have the same force and effect, except as specified in any document executed and delivered pursuant to the immediately preceding sentence, as the delivery of the originally executed counterpart.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.
| NAVIGATOR HOLDINGS LTD. | ||||
| By: | /s/ Dr. Henry Deans | |||
| Name: | Dr. Henry Deans | |||
| Title: | Chief Executive Officer | |||
[Signature Page to the Investor Rights Agreement]
| INVESTORS: | ||||||
| ULTRANAV INTERNATIONAL S.A. | ||||||
| By: |
/s/ Raimundo Sánchez H. /s/ Francisco Larraín E. | |||||
| Name: | Raimundo Sánchez H. / | Francisco Larraín E. | ||||
| Title: | Attorneys-in-fact | |||||
| ULTRANAV DENMARK APS | ||||||
| By: |
/s/Raimundo Sánchez H. /s/ Francisco Larraín E. | |||||
| Name: | Raimundo Sánchez H. / | Francisco Larraín E. | ||||
| Title: | Attorneys-in-fact | |||||
[Signature Page to the Investor Rights Agreement]
Exhibit 99.1
|
|
NEWS RELEASE
August 4th, 2021
NAVIGATOR HOLDINGS LTD COMPLETES ON THE TRANSACTION TO MERGE THE FLEET &
BUSINESSES OF ULTRAGAS APS, EFFECTIVE AUGUST 4, TO CREATE THE HANDYSIZED
SEGMENT MARKET LEADER WITH A COMBINED FLEET OF 56 VESSELS
Navigator Holdings Ltd. (“Navigator”) (NYSE: NVGS) is pleased to announce that, effective August 4, 2021 (the “Effective Date”), it has entered into the previously announced transaction with Naviera Ultranav Limitada (“Ultranav”) to merge the Ultragas ApS (“Ultragas”) fleet and business activities with Navigator. The transaction unites two leading gas shipping companies, enhancing their safe, reliable, energy and environmentally efficient, marine transport services. The combined fleet of 56 vessels will enhance our capability to provide flexibility, choice and support to our customers.
Key benefits of the transaction
| • | The transaction is expected to be accretive compared to Navigator’s standalone budgets, in terms of anticipated revenue, EBITDA and EPS. |
| • | Broadens the service offering for the combined fleet positioning Navigator to engage new clients and new markets through increased coverage and geographical reach: |
| ○ | Ultragas’ fleet, which has a broker assessed value of $529.5 million includes: |
| ◾ | seven modern 22,000 cbm semi-refrigerated vessels; |
| ◾ | five 12,000 cbm ethylene vessels and; |
| ◾ | six gas carriers in the 3,770-9,000 cbm range, which will broaden the service offering for the combined fleet. |
| • | The combined fleet and increased scale will provide significant cost synergies and efficiencies throughout the business. |
| • | Navigator maintains its financial strength and a strong balance sheet through the issue of shares in consideration for the 18 vessels, in addition to assuming net debt of approximately $180 million, as well as net working capital, on closing. |
| • | The combination adds another major shareholder with long-standing experience in the maritime industry, which Navigator believes will benefit all shareholders. |
In line with the original terms of the deal, Navigator has issued approximately 21.2 million new shares of its common stock to Ultranav, in consideration for its vessels, less its debt, giving a calculated value of $16.82 per share in Navigator. The combined entity has an aggregate net asset value of approximately $1.3 billion, based on internal/external estimates of the fleet, including an appraised $260 million valuation representing Navigator’s 50% ownership of the Export Terminal Joint Venture at Morgans Point, Texas.
After giving effect to this issuance of new shares of common stock to Ultranav, Navigator has a total of approximately 77 million shares of common stock outstanding, of which Ultranav owns approximately 27.5% and BW Group owns approximately 28.4%.
As of the transaction close, the Board of Directors of Navigator consists of:
| • | Mr David J. Butters, Chairman |
| • | Dr Harry Deans, CEO |
| • | Mr Andreas Beroutsos |
| • | Dr Heiko Fischer |
| • | Mr David Kenwright |
| • | Mr Alexander Oetker |
| • | Mr Andreas Sohmen-Pao |
| • | Mr Peter Stokes |
| • | Mr Dag von Appen |
| • | Mr Florian Weidinger |
Biographies and information relating to the Board Members of Navigator can be found at https://navigatorgas.com/about-us/#team effective from 4th August 2021.
David Butters, Executive Chairman of the Board of Navigator, commented:
“We are delighted to have completed this exceptional and shareholder accretive transaction at such rapid pace to create an unmatched LPG and petrochemical shipping company in terms of both scale and diversification.
“The Ultragas fleet will significantly strengthen our position in the handysize sector and provide our customers with greater flexibility in transporting smaller parcels in a cost-advantaged basis.”
Dag von Appen, Chairman of the Board of Ultranav, commented:
“Ultragas was founded 60 years ago, and we are very proud to have come this far and are now able to create an unparalleled market leader in the handysize gas carrier segment together with Navigator.”
“We look forward to joining Navigator Gas with its sound values and strong governance which fit well with our mission to be “a partner you can trust” in all respects. We believe this new setup will provide a more competitive service to our customers by increasing flexibility, geographical coverage and access to a modern fleet of 56 vessels.”
Navigator’s results for the third quarter 2021 will incorporate the results of the combined entity with effect from the Effective Date, comprising consolidated income and cash flow statements and a consolidated balance sheet.
Advisors
Watson Farley & Williams LLP and Baker Botts LLP acted as legal advisors for Navigator.
Debevoise & Plimpton LLP acted as legal advisors for Ultragas.
No Offer or Solicitation
This press release shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of any securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
Forward-Looking Statements
This press release contains certain forward-looking statements concerning plans, expectations and objectives of management for future operations or economic performance, or assumptions related thereto, the anticipated synergies of the transaction, the benefits of the transaction to shareholders of Navigator and the valuation of Navigator’s fleet and other assets. In addition, we and our representatives may from time to time make other oral or written statements that are also forward-looking statements. In some cases, you can identify the forward-looking statements by the use of words such as “may,” “could,” “should,” “would,” “expect,” “plan,” “anticipate,” “intend,” “forecast,” “believe,” “estimate,” “predict,” “propose,” “potential,” “continue,” “scheduled,” or the negative of these terms or other comparable terminology. Forward-looking statements appear in a number of places in this press release. These forward-looking statements involve many risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such statements. These risks and uncertainties include but are not limited to those set forth in the periodic reports Navigator files with the Securities and Exchange Commission.
All forward-looking statements included in this press release are made only as of the date of this press release. New factors emerge from time to time, and it is not possible for us to predict all of these factors. Further, we cannot assess the impact of each such factor on our business or the extent to which any factor, or combination of factors, may cause actual results to be materially different from those contained in any forward-looking statement. We expressly disclaim any obligation to update or revise any forward-looking statements, whether because of future events, new information, a change in our views or expectations, or otherwise. We make no prediction or statement about the performance of our common stock.
About Ultragas
Since 1960, Ultragas has been in gas tanker shipping and is today a leading provider of marine transportation of liquefied petroleum and petrochemical gases in the small and handysize segments. Ultragas owns and operates a modern fleet of 18 Liquefied Petroleum Gas Carriers. Commercial management is handled from the office in Copenhagen, and technical management is provided inhouse by UltraShip, a 100% owned subsidiary that is also responsible for approx. 650 officers and crew providing a safe and efficient service to their customers.
About Ultranav Group
Ultranav is a privately owned shipping group with offices in 15 countries. Through eleven business units, Ultranav operates in the market segments of tankers, dry bulk, regional trades in the Americas and towage & offshore. Ultranav operates a global fleet of more than 300 vessels, of which 73 are fully owned. Via Ultratug, Ultranav also operates more than 100 tugs and offshore supply vessels in the Latin American region.
About Navigator Holdings Ltd
Navigator Holdings Ltd. is the owner and operator of the world’s largest fleet of handysize liquefied gas carriers and a global leader in the seaborne transportation services of petrochemical gases, such as ethylene and ethane, liquefied petroleum gas (“LPG”) and ammonia and owns a 50% share, through a joint venture, in an ethylene export marine terminal at Morgan’s Point, Texas on the Houston Ship Channel, USA. Navigator’s fleet consists of 38 semi- or fully-refrigerated liquefied gas carriers, 14 of which are ethylene and ethane capable. The Company plays a vital role in the liquefied gas supply chain for energy companies, industrial consumers and commodity traders, with its sophisticated vessels providing an efficient and reliable ‘floating pipeline’ between the parties, connecting the world today, creating a sustainable tomorrow.
For further information
| Navigator |
| Investor Relations Department – investorrelations@navigatorgas.com David Butters, Executive Chairman +1 (212) 355 5893 Harry Deans, Chief Executive Officer +44 20 7045 4120 |
| Ultragas |
| Michael Schroder, Chief Executive Officer Ultragas ApS, +45 6996 2110
Ultranav Raimundo Sanchez, Chief Executive Officer, Ultranav Chile +56 2630 1100 |