Scorpio Tankers Inc 6-K, filed Jan 12, 2021
Scorpio Tankers Inc. (STNG)
6-K
2021-01-12
For: 2021-01-31
View Original
Added on
April 11, 2026
About this 6-K
Scorpio Tankers Inc filed this 6-K on January 12, 2021.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13A-16 OR 15D-16 OF THE SECURITIES EXCHANGE ACT OF 1934
For the month of January 2021
Commission File Number: 001-34677
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Scorpio Tankers Inc.
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(Translation of registrant's name into English)
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9, Boulevard Charles III, Monaco 98000
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(Address of principal executive office)
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Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F [X] Form 40-F [ ]
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): [ ].
Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security
holders.
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): [ ].
Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant
foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant's "home country"), or under the rules of the home country exchange on which
the registrant's securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant's security holders, and, if discussing a material event, has already been the
subject of a Form 6-K submission or other Commission filing on EDGAR.
INFORMATION CONTAINED IN THIS FORM 6-K REPORT
On January 12, 2021, Scorpio Tankers Inc. (the “Company”) launched an offering program (the “Program”), pursuant to which the Company may
sell, from time to time, up to $75.0 million aggregate principal amount of its 7.00% Fixed Rate Senior Unsecured Notes due 2025 (the “Notes”). In connection with the Program, the Company has entered into a Note Distribution Agreement (the
“Distribution Agreement”) with B. Riley Securities, Inc., as sales agent (the “Agent”).
In accordance with the terms of the Distribution Agreement, the Company may offer and sell its Notes at any time, and from
time to time, through the Agent. Sales of the Notes, if any, will be made through the Agent in transactions involving an offering of the Notes into the existing trading market for the Initial Notes (as defined below) at other than a fixed price,
pursuant to Rule 415 under the Securities Act of 1933, as amended. The Agent is not required to sell any specific number of the Notes, but the Agent will make all sales using commercially reasonable efforts consistent with its normal trading and
sales practices on mutually agreed terms between the Agent and the Company. The Company intends to use the net proceeds from any sales under the Program for general corporate purposes and working capital.
The Notes that the Company may offer and sell under the Program constitute a further issuance of and are fungible with the
$28.1 million aggregate principal amount of 7.00% Fixed Rate Senior Unsecured Notes due 2025 previously issued by the Company on May 29, 2020 (the “Initial Notes”). The Notes will, immediately upon issuance, have the same terms as (other than date
of issuance), form a single series of debt securities with, and and have the same CUSIP number and be fungible with, the Initial Notes immediately upon issuance.
The Initial Notes are, and the Notes (when issued) will be, listed on the New York Stock Exchange under the symbol “SBBA.”
Attached to this Report on Form 6-K (this “Report”) as Exhibit 1.1 is a copy of the Distribution Agreement, dated January 12, 2021, by and between the Company and the Agent.
Attached to this Report as Exhibit 5.1 is the opinion of Seward & Kissel LLP relating to the legality and validity of the Notes.
Attached to this Report as Exhibit 8.1 is the opinion of Seward & Kissel LLP relating to certain tax matters.
The information contained in this Report on Form 6-K is hereby incorporated by reference into the Company's registration statement on Form F-3 (File No. 333-230469) that was filed with the U.S. Securities and Exchange Commission with an effective date of March 22, 2019.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
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SCORPIO TANKERS INC.
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(registrant)
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Dated: January 12, 2021
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By:
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/s/ Brian Lee
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Brian Lee
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Chief Financial Officer
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Exhibit 1.1
Execution Version
SCORPIO TANKERS INC.
7.00% FIXED RATE SENIOR UNSECURED NOTES DUE 2025
Note Distribution Agreement
January 12, 2021
B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, NY 10171
Ladies and Gentlemen:
Scorpio Tankers Inc., a Republic of the Marshall Islands corporation (the “Company”), confirms its agreement (this “Agreement”) with B. Riley Securities, Inc. (the “Agent”) as follows:
1. Issuance and Sale of Notes. The
Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, as sales agent and/or principal, the Company’s 7.00% Fixed Rate
Senior Unsecured Notes due 2025 (the “Notes”) to be issued under the Indenture dated as of May 12, 2014 (the “Base Indenture”), as amended and supplemented by the Fourth Supplemental Indenture dated as of May 29, 2020 (the “Supplemental Indenture”
and, together with the Base Indenture, the “Indenture”), between the Company and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”), from time to time during the term of this Agreement (the “Placement Notes”); provided however, that in no event shall the Company issue or sell through the Agent such aggregate principal amount of Placement Notes that would exceed
the lesser of (a) the aggregate principal amount of Notes registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made and (b) the aggregate principal amount of Notes set forth on the cover page
of the Prospectus Supplement (as defined below) (the lesser of (a) or (b), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the
parties hereto agree that compliance with the limitations set forth in this Section 1 on the aggregate principal amount of Placement Notes issued and sold under this
Agreement shall be the sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Notes through the Agent will be effected pursuant to the Registration
Statement (as defined below), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Notes.
The Placement Notes will be issued to Cede & Co., as nominee of the Depository Trust Company (“DTC”) pursuant to a blanket letter of representations (the “DTC Agreement”) to be
dated on or prior to the date hereof between the Company and DTC. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (the “Securities Act”), with the United States Securities and Exchange Commission (the “Commission”), a registration statement on Form F-3 (File No. 333-230469), including a base prospectus, relating to certain securities, including the Placement Notes, to be issued from time to time by the Company, and
which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended and the rules and regulations thereunder (the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of such registration statement specifically relating to the Placement Notes (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as
supplemented by the Prospectus Supplement, relating to the Placement Notes. Except where the context otherwise requires, such registration statement, and any post-effective amendment thereto, including all documents filed as part thereof or
incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration
statement pursuant to Rule 430B of the Securities Act, or any subsequent registration statement on Form F-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Notes, is herein called the “Registration Statement.” The base prospectus, including all documents incorporated or deemed incorporated therein by reference to the extent such information has not been
superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which
such base prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference
herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission incorporated by
reference therein (the “Incorporated Documents”).
For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or
supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by
the Commission (collectively, “EDGAR”).
2. Placements. Each time that the
Company wishes to issue and sell Placement Notes hereunder (each, a “Placement”), it will notify the Agent by electronic mail (or other method mutually agreed to in
writing by the parties) of the aggregate principal amount of Placement Notes, the time period during which sales are requested to be made, any limitation on the aggregate principal amount of Placement Notes that may be sold in any one day and any
minimum price below which sales may not be made (a “Placement Notice”), the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company set forth on Schedule 3 (with a copy
to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from the Agent set forth on Schedule 3,
as such Schedule 3 may be amended from time to time. The Placement Notice shall be effective immediately upon receipt by the Agent unless and until (i) the Agent
declines in writing to accept the terms contained therein for any reason, in its sole discretion, (ii) the entire aggregate principal amount of the Placement Notes set forth in such Placement Notice has been sold, (iii) the Company suspends or
terminates the Placement Notice pursuant to Section 4, which suspension and termination rights may be exercised by the Company in its sole discretion, or (iv) this
Agreement has been terminated under the provisions of Section 12. The amount of any discount, commission or other compensation to be paid by the Company to the Agent
in connection with the sale of the Placement Notes shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed
that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement or any Placement Notes unless and until the Company delivers a Placement Notice to the Agent and the Agent does not decline such Placement Notice
pursuant to clause (i) above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of Sections 2 or 3 of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale of Placement Notes by the Agent.
Subject to the terms and conditions of this Agreement, for the period specified in a Placement Notice, the Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal
laws, rules and regulations and the rules of the New York Stock Exchange (the “Exchange”) and the Financial Industry Regulatory Authority, Inc. (“FINRA”), to sell the Placement Notes up to the aggregate principal amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Agent
will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Notes hereunder setting forth the aggregate principal
amount of Placement Notes sold on such day, the compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the Net
Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Agent (as set forth in Section 5(b)) from the gross proceeds
that it receives from such sales. Subject to the terms of a Placement Notice, the Agent may sell Placement Notes by any method permitted by law. “Trading Day” means
any day on which Notes may be purchased and sold on the Exchange.
4. Suspension of Sales. The Company
or the Agent may, upon notice to the other party in writing (including by email correspondence to each of the individuals of the other party set forth on Schedule 3,
if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of
the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Notes (a “Suspension”); provided, however, that such Suspension shall not affect or impair any party’s obligations with respect to any
Placement Notes sold hereunder prior to the receipt of such notice. While a Suspension is in effect, any obligation under Sections 7(l), 7(m), and 7(n) with respect to the delivery of certificates, opinions, or comfort letters to the Agent,
shall be waived. Each of the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of the
individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time.
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5. Sale and Delivery to the Agent; Settlement.
(a) Sale of Placement Notes. On the
basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Notes described therein has
been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales
practices and applicable state and federal laws, rules and regulations and the rules of the Exchange to sell such Placement Notes up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company
acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in selling Placement Notes, (ii) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement
Notes for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the Exchange to
sell such Placement Notes as required under this Agreement and (iii) the Agent may, but shall be under no obligation to, purchase Placement Notes on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the
Company.
(b) Settlement of Placement Notes.
Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Notes will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such
sales are made (each, a “Settlement Date”). The Agent shall notify the Company of each sale of Placement Notes no later than opening of trading on the Trading Day
following the Trading Day that the Agent sold Placement Notes. The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Notes sold (the “Net Proceeds”) will be equal to the aggregate sales price received by the Agent, after deduction for (i) the Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Schedule 2
hereof, and (ii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.
(c) Delivery of Placement Notes. On
or before each Settlement Date, the Company will, or will cause the Trustee to, electronically transfer the Placement Notes being sold by crediting the Agent’s or its designee’s account (provided the Agent shall have given the Company written notice
of such designee and such designee’s account information at least two Trading Days prior to the Settlement Date) at DTC through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the
parties hereto which in all cases shall be freely tradable, transferable, registered Notes in good deliverable form. On each Settlement Date, the Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company
on, or prior to, the Settlement Date. The Company agrees that if the Company, or the Trustee (if applicable), defaults in its obligation to deliver Placement Notes on a Settlement Date through no fault of the Agent, then in addition to and in no way
limiting the rights and obligations set forth in Section 11(a) hereto, it will (i) hold the Agent harmless against any loss, claim, damage, or reasonable, documented
expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such default by the Company or the Trustee (if applicable) and (ii) pay to the Agent (without duplication) any commission,
discount, or other compensation to which it would otherwise have been entitled absent such default.
(d) Limitations on Offering Size.
Under no circumstances shall the Company cause or request the offer or sale of any Placement Notes if, after giving effect to the sale of such Placement Notes, the aggregate principal amount of Placement Notes sold pursuant to this Agreement would
exceed the Maximum Amount. Under no circumstances shall the Company cause or request the offer or sale of any Placement Notes pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s board of
directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agent in writing.
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6. Representations and
Warranties of the Company. Except as disclosed in the Registration Statement or Prospectus (including the Incorporated Documents), the Company represents and warrants to, and agrees with the Agent that as of the date of this Agreement
and as of each Applicable Time (as defined below), unless such representation, warranty or agreement specifies a different date or time:
(a) Registration Statement. All of
the conditions to the use of Form F-3 in connection with the offering and sale of the Placement Notes as contemplated hereby have been satisfied. The Registration Statement has become effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement. The Company has paid, or if
the Prospectus has not yet been filed with the Commission will pay, the required Commission filing fees relating to the Placement Notes within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective
amendment to the Registration Statement or on the cover page of the Prospectus).
(b) No Material Misstatement or Omission.
(i) Each Incorporated Document complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part
became effective, did not contain, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission
thereunder and (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to (A) statements or omissions in the Registration Statement or the Prospectus based upon information
relating to the Agent furnished to the Company in writing by the Agent expressly for use therein or (B) that part of the Registration Statement that constitutes the Statement of Eligibility (Form T‑1) under the Trust Indenture Act, of the Trustee.
For purposes of this Agreement, the only information furnished to the Company by the Agent is the information in the second sentence of the first paragraph in the Prospectus Supplement under the heading “Plan of Distribution.”
(c) Ineligible Issuer. The Company
is not an “ineligible issuer” in connection with the offering of the Placement Notes pursuant to Rules 164, 405 and 433 under the Securities Act. The Company has not prepared, used or referred to, and will not, without the prior written consent of
the Agent, prepare, use or refer to, any free writing prospectus. The Company has not, directly or indirectly, distributed and will not distribute any offering
material in connection with this offering other than the Registration Statement and the Prospectus.
(d) Organization of the Company.
The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the Republic of the Marshall Islands, has the corporate power and authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a Material Adverse Effect (as defined below).
(e) Subsidiaries. Each subsidiary
of the Company has been duly incorporated, is validly existing as a corporation, limited partnership or limited liability company, as the case may be, in good standing under the laws of the jurisdiction of its incorporation, has the corporate,
limited partnership or limited liability company power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned, directly or indirectly, by the Company, free and clear of all liens, encumbrances, equities or claims.
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(f) Underwriting Agreement. This
Agreement has been duly authorized, executed and delivered by the Company.
(g) Indenture. The Indenture has
been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors’ rights generally and equitable principles of general applicability.
(h) Placement Notes. The Placement
Notes have been duly authorized and, when issued, executed and authenticated in accordance with the provisions of the Indenture and delivered against payment therefor as provided by this Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability, and will be entitled to the benefits of the
Indenture.
(i) Absence of Conflicts and Further
Requirements; No Consents. The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture, the Placement Notes and each Incorporated Document will not (i)
contravene any provision of applicable law or the amended and restated articles of incorporation or by‑laws of the Company or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, (ii) conflict with or constitute a breach of, or Default (as defined below) or a
Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, or require the consent of
any other party to, any Existing Instrument (as defined below), except, with respect to this clause (ii), for such conflicts, breaches, Defaults, Debt Repayment Triggering Events that would not, individually or in the aggregate, have a Material
Adverse Effect, and (iii) require any consent, approval, authorization or order of, or qualification with, any governmental body or agency, except such as may be required by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Placement Notes or FINRA. As used herein, a “Debt
Repayment Triggering Event” means any event or condition which gives, or with the giving of notice or lapse of time or both would give, the holder of
any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf), issued by the Company, the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any
of its significant subsidiaries.
(j) Absence of Defaults. Neither
the Company nor any subsidiary is (i) in breach or violation of its certificate or articles of incorporation, charter, bylaws, limited liability company agreement, limited partnership agreement, certificate or agreement of limited or general
partnership, memorandum and articles of association, or other similar organizational documents, as the case may be, of such entity, (ii) in material breach of or in default (or, with the giving of notice or lapse of time or both, would be in default)
(“Default”) under any indenture, mortgage, loan or credit agreement, deed of trust, note, contract, franchise, lease or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject (each, an “Existing Instrument”), or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of their properties, as applicable, except, with respect to clauses (ii) and (iii) only, for such breaches, violations or Defaults
that would not, individually or in the aggregate, have a Material Adverse Effect.
(k) Material Adverse Effect. There
has not occurred any material adverse change, or any development involving a prospective material adverse change, (i) in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus or (ii) that would prevent, materially interfere with or materially delay consummation of the transactions contemplated hereby (the effects described in the foregoing clauses (i) and (ii) being herein
referred to as a “Material Adverse Effect”).
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(l) Absence of Proceedings. There
are no legal or governmental investigations, claims, actions, suits or proceedings (“Proceedings”) pending or threatened to which the Company or any of its
subsidiaries or solely in connection with the Company or any of its subsidiaries, each of Scorpio Ship Management S.A.M. (“SSM”), Scorpio Commercial Management S.A.M.
(“SCM”) and Scorpio Services Holding Limited (“SSH” and together with SSM and SCM,
the “Scorpio Managers”) or any of their respective affiliates is a party, or to which any of the properties of the Company or any of its subsidiaries is subject,
including without limitation, Proceedings relating to Environmental Laws (as defined below) or any other environmental or regulatory matters, (1) other than Proceedings accurately described in all material respects in the Prospectus and Proceedings
that would not have a Material Adverse Effect, or on the power or ability of the Company to perform its obligations under this Agreement, the Indenture, the Notes, the Incorporated Documents or to consummate the transactions contemplated by the
Prospectus or (2) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(m) Taxes. The Company and its
subsidiaries have filed all U.S. federal, state, local and foreign tax returns which have been required to be filed and have paid all taxes indicated by such returns and all assessments received by them or any of them to the extent that such taxes
have become due. All tax liabilities have been adequately provided for in the financial statements of the Company, and the Company does not know of any actual or proposed additional material tax assessments.
(n) Investment Company Act. The
Company is not, and after giving effect to the offering and sale of the Placement Notes and the application of the proceeds thereof as described in the Prospectus will not be, required to register as an “investment company” as such term is defined in
the Investment Company Act of 1940, as amended.
(o) FINRA Exemption. To enable the
Agent to rely on Rule 5110(b)(7)(C)(i) of the FINRA rules, the Company represents that the Company (i) has a non-affiliate, public common equity float of at least $300 million and (ii) has been subject to the Exchange Act reporting requirements for a
period of at least 36 months prior to the date of this Agreement and has filed in a timely manner all reports required to be filed during the 12 calendar months and any portion of a month immediately preceding the filing of the Registration
Statement.
(p) Environmental Laws. The
Company, its subsidiaries and, solely in connection with the Company and its subsidiaries, the Scorpio Managers and each of their respective affiliates (i) are in compliance with any and all applicable international, foreign, federal, state and local
laws, regulations, conventions and treaties (including those promulgated by the International Maritime Organization) relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or
contaminants, including petroleum, petroleum products or other hydrocarbons (“Environmental Laws”), (ii) have received all permits, licenses, certificates or other
approvals required of them under applicable Environmental Laws to conduct their respective businesses, (iii) are in compliance with all terms and conditions of any such permit, license, certificate or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses, certificates or other approvals or failure to comply with the terms and conditions of such permits, licenses, certificates or approvals would not, singly or in the aggregate, have a
Material Adverse Effect and (iv) are not subject to any pending or, to the Company’s knowledge, threatened Proceeding under Environmental Laws to which a governmental authority is a party and which is reasonably likely to result in monetary sanctions
of $100,000 or more. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up or remediation of releases, closure of properties or compliance with
Environmental Laws or any permit, license, certificate or approval, any related constraints on operating activities and any potential liabilities to third parties whether statutory, contractually or otherwise) which would, singly or in the aggregate,
have a Material Adverse Effect, and there are no events or circumstances that would reasonably be expected to result in such costs or liabilities.
(q) No Registration Rights; No Commissions.
There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or
to require the Company to include such securities with the Placement Notes registered pursuant to the Registration Statement.
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(r) Anti-Corruption Laws. Neither
the Company nor any of its subsidiaries, nor any director, officer or employee, nor, to the Company’s knowledge, any affiliate, agent or representative of the Company or of any of its subsidiaries or affiliates, has taken or will take any action in
furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or
employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate
for political office) to influence official action or secure an improper advantage or to any person in violation of any applicable anti-corruption laws; and the Company and its subsidiaries and affiliates have conducted their businesses in compliance
with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representations and warranties contained herein, and
neither the Company nor its subsidiaries will use, directly or indirectly, the proceeds of the offering of the Placement Notes in furtherance of an offer, payment, promise to pay or authorization of the payment or giving of money, or anything else of
value, to any person in violation of any applicable anti-corruption laws.
(s) Anti-Money Laundering Laws. The
operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of
the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”), and the applicable
anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(t) Sanctions. (i) The Company
represents that neither the Company nor any of its subsidiaries (collectively, the “Entity”), nor any director or officer of the Entity, nor to the knowledge of the
Company, any employee, agent, affiliate or representative of the Entity, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is:
(1) the subject of any sanctions administered or enforced by the U.S. Government, including the U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”),
or other relevant sanctions authority (collectively, “Sanctions”), nor
(2) solely with respect to any Entity or Person, located, organized or resident in a country or
territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria and Venezuela).
(ii) The Entity represents and covenants that it will not, directly or indirectly, use the proceeds of
the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(1) to fund or facilitate any activities or business of or with any Person or in any country or
territory that, at the time of such funding or facilitation, is the subject of Sanctions, except as would be permitted for a Person required to comply with Sanctions; or
(2) in any other manner that will result in a violation of Sanctions by any Person (including any
Person participating in the offering, whether as agent, advisor, investor or otherwise).
(iii) For the past five (5) years, the Entity has not knowingly engaged in, is not knowingly engaged
in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions, except as would have been, or would be, permitted for a
Person required to comply with Sanctions.
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(u) Absence of Certain Changes.
Subsequent to the respective dates as of which information is given (including information incorporated by reference) in each of the Registration Statement and the Prospectus, (i) the Company and its subsidiaries have not incurred any material
liability or obligation, direct or contingent, nor entered into any material transaction; (ii) the Company has not purchased any of its outstanding capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and (iii) there has not been any material change in the capital stock, short‑term debt or long‑term debt of the Company and its subsidiaries; neither the Company nor any of the subsidiaries
has sustained since the date of the most recent audited financial statements included in the Registration Statement and the Prospectus any loss or interference with its respective business from the actual or constructive loss of or to any vessel, the
requisition for title of any vessel, fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree that resulted in a Material Adverse Effect.
(v) Property. The Company and its
subsidiaries have good and marketable title in fee simple to all real property, if any, and good and marketable title to all personal property owned by them which is material to the business of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances and defects except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(w) Intellectual Property. The
Company and its subsidiaries own or possess, or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know‑how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and trade names currently employed by them in connection with the business now operated by them, and neither the Company nor any of its subsidiaries has received any notice
of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.
(x) Labor Disputes. No material
labor dispute with the employees of the Company, its subsidiaries and, solely in connection with the Company and its subsidiaries, the Scorpio Managers and each of their respective affiliates exists, or, to the knowledge of the Company, is imminent;
and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its or any of the Scorpio Managers or their respective affiliates, principal suppliers, shipyards, manufacturers, contractors or
customers that could have a Material Adverse Effect.
(y) Insurance. The Company and each
of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged, including, but not limited to, policies
covering real and personal property owned or leased by the Company and its subsidiaries against theft, damage, destruction, acts of vandalism, war risks, and earthquakes and total loss from collision, fire, grounding and engine breakdown; neither the
Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; neither the Company nor any of its subsidiaries is currently required to make any payment, or is aware of any facts which would require the Company or
any of its subsidiaries to make any payment, in respect of a call by, or a contribution to, any insurance club; and neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(z) Possession of Licenses and Permits.
The Company and its subsidiaries possess all licenses, certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company nor
any of its subsidiaries has received any notice of Proceedings relating to the revocation or modification of any such license, certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a Material Adverse Effect.
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(aa) Accounting Controls and Disclosure
Controls. The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board (“IFRS”) and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting.
(bb) Independent Accountants.
PricewaterhouseCoopers Audit (“PWC France”), which expressed its
opinion with respect to the financial statements (which term as used in this Agreement includes the related notes thereto) of the Company and its subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus, is
an independent registered public accounting firm within the meaning of the Securities Act and the Exchange Act.
(cc) Financial Statements. The
historical consolidated financial statements of the Company, together with the related schedules and notes, included in the Registration Statement and the Prospectus present fairly in all material respects the financial position of the entities to
which they relate as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements have been prepared in conformity with IFRS applied on a consistent basis throughout the
periods involved, except as may be expressly stated in the related notes thereto. The summary consolidated historical financial data of the Company set forth (or incorporated by reference) in the Registration Statement and the Prospectus presents
fairly in all material respects the information set forth therein on a basis consistent with that of the audited financial statements contained in the Registration Statement and the Prospectus. The statistical and market-related data and forward
looking statements included in the Registration Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable and are accurate in all material respects and represent their good faith estimates that are
made on the basis of data derived from such sources. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement or the
Prospectus under the Securities Act or the applicable rules and regulations of the Commission thereunder. All disclosures contained in the Registration Statement or the Prospectus, or incorporated by reference therein, regarding “non-IFRS financial
measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. The interactive data in eXtensible
Business Reporting Language incorporated by reference in the Registration Statement and the Prospectus fairly present the information called for in all material respects and have been prepared in accordance with the Commission’s rules and guidelines
applicable thereto.
(dd) Fair Summary. The statements
included in or incorporated by reference into the Registration Statement and the Prospectus under the headings “Enforcement of Civil Liabilities,” “Description of Notes,” “Description of Other Indebtedness,” “Material United States Federal Income Tax
Considerations,” “Marshall Islands Tax Considerations,” “Management,” “Service of Process and Enforcement of Civil Liabilities” “Description of Capital Stock,” “Information on the Company – Business Overview – Environmental and Other Regulations in
the Shipping Industry,” “Information on the Company – Business Overview – Inspection by Classification Societies,” “Information on the Company – Business Overview – Risk of Loss and Liability Insurance,” “Operating and Financial Review and Prospects
– Liquidity and Capital Resources – Long-Term Debt Obligations and Credit Arrangements,” “Directors, Senior Management and Employees – Compensation,” “Major Shareholders and Related Party Transactions – Related Party Transactions,” “Financial
Information – Consolidated Statements and Other Financial Information – Legal Proceedings,” “Financial Information – Consolidated Statements and Other Financial Information – Dividend Policy,” “Corporate Governance” and “Additional Information –
Taxation,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.
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(ee) Distributions. No subsidiary
of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company, and all such dividends and other distributions are not subject to income withholding or other taxes under the
current laws and regulations of the jurisdictions where such subsidiaries are organized. All dividends and other distributions declared and payable on the shares of capital stock of the Company may under the current laws and regulations of the
Republic of the Marshall Islands be paid in United States dollars and may be freely transferred out of the Republic of the Marshall Islands, and all such dividends and other distributions are not subject to income withholding or other taxes under the
current laws and regulations of the Republic of the Marshall Islands and the Principality of Monaco or any political subdivision or taxing authority thereof or therein and are otherwise free and clear of any other tax, withholding or deduction in,
and without the necessity of obtaining any consents, approvals, authorizations, orders, licenses, registrations, clearances and qualifications of or with any court or governmental agency or body or any stock exchange authorities in, the Republic of
the Marshall Islands and the Principality of Monaco or any political subdivision or taxing authority thereof or therein.
(ff) No Immunity. Neither the
Company nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) under the laws of the Republic of the Marshall Islands.
(gg) Foreign Private Issuer. The
Company is a “foreign private issuer” as defined in Rule 405 of the Securities Act.
(hh) Passive Foreign Investment Company.
Based on current law and the Company’s current operations and future projections, the Company does not believe it would be treated as a passive foreign investment company (“PFIC”)
within the meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended (the “Code”), with respect to any taxable year. Although the
Company intends to conduct its affairs in a manner to avoid being classified as a PFIC with respect to any taxable year, the Company can make no assurances that the nature of its operations will not change in the future.
(ii) Federal Income Tax. The
Company believes that it and its subsidiaries will qualify for the exemption from U.S. federal income tax on their U.S. source international transportation income under Section 883 of the Code for the taxable year ending December 31, 2020 and future
taxable years.
(jj) Vessels. All of the vessels
described in the Registration Statement and the Prospectus are owned or time chartered in or bareboat chartered directly or indirectly by subsidiaries of the Company; each of the vessels described in the Registration Statement and the Prospectus as
owned by one of the Company’s subsidiaries has been and is as of the date hereof duly registered, and is in good standing with respect to the payment of past and current taxes, fees and other amounts, except where the failure to be in such good
standing would not adversely affect its registry with such ship registry of such jurisdiction, in the name of the relevant entity that owns it under the laws and regulations and the flag of the nation of its registration, as disclosed in the
Prospectus, and no other action is necessary to establish such entity’s title to and interest in such vessel as against any charterer or third party and all of the vessels described in the Prospectus as owned by one of the Company’s subsidiaries will
be owned directly by such subsidiary of the Company free and clear of all liens, claims, security interests or other encumbrances.
(kk) No Tax. No stamp duty, stock
exchange tax, value-added tax, withholding tax or any other similar duty or tax is payable in the United States, the Republic of the Marshall Islands, or the Principality of Monaco, or any political subdivision thereof, or to any authority therein
having power to tax, in connection with the execution, delivery or performance of this agreement by the parties hereto or the issuance, sale or delivery of the Placement Notes to be sold by the Company to the Agent in the manner contemplated by this
Agreement and the Prospectus.
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(ll) Cybersecurity. (A) There has
been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company or its subsidiaries information technology and computer systems, networks, hardware, software, data and databases (including the
data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company and its subsidiaries, and any such data processed or stored by third parties on behalf of the
Company and its subsidiaries), equipment or technology (collectively, “IT Systems and Data”), (B) neither the Company nor its subsidiaries have been notified of, and
each of them have no knowledge of any event or condition that could result in, any security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data and (C) the Company and its subsidiaries have
implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and
practices, or as required by applicable regulatory standards. The Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or
governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or
modification.
(mm) No Reliance. The Company has
not relied upon the Agent or its legal counsel for any legal, tax or accounting advice in connection with the offering and sale of the Placement Notes.
(nn) Incorporated Documents. Each
of the Incorporated Documents has been duly authorized, executed and delivered by the respective parties thereto, and (i) in respect of the Company and any subsidiary and (ii) in respect of any third party, to the Company’s knowledge, is a valid and
binding agreement of each such party enforceable against each such party in accordance with its terms and the Prospectus, and each contains a summary of their terms which summary is accurate, complete and fair; and neither the Company nor any
subsidiary has sent or received any communication regarding termination of any of the Incorporated Documents and no such termination has been threatened by the Company or any subsidiary or, to the Company’s knowledge, by any third party.
Any certificate signed by an officer of the Company and delivered to the Agent or to counsel for the Agent pursuant to or
in connection with this Agreement shall be deemed to be a representation and warranty by the Company to the Agent as to the matters set forth therein as of the date or dates indicated therein.
7. Covenants of the
Company. The Company covenants and agrees with the Agent that:
(a) Registration Statement Amendments.
After the date of this Agreement and during any period in which a prospectus relating to any Placement Notes is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”) (i) the Company will notify the Agent promptly of the time when any subsequent
amendment to the Registration Statement, other than documents incorporated by reference or amendments not related to any Placement, has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been
filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus related to the Placement or for additional information related to the Placement, (ii) the Company will prepare and file with the
Commission, promptly upon the Agent’s request, any amendments or supplements to the Registration Statement or Prospectus that, upon the advice of the Company’s legal counsel, may be necessary or advisable in connection with the distribution of the
Placement Notes by the Agent (provided, however, that the failure of the Agent to make such request shall not relieve the Company of any obligation or
liability hereunder, or affect the Agent’s right to rely on the representations and warranties made by the Company in this Agreement and provided, further, that the only remedy the Agent shall have with respect to the failure to make such filing
shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Notes or a security
convertible into the Placement Notes (other than an Incorporated Document) unless a copy thereof has been submitted to the Agent within a reasonable period of time before the filing and the Agent has not reasonably objected thereto (provided, however, that (A) the failure of the Agent to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect
the Agent’s right to rely on the representations and warranties made by the Company in this Agreement and (B) the Company has no obligation to provide the Agent any advance copy of such filing or to provide the Agent an opportunity to object to such
filing if the filing does not name the Agent or does not relate to the transaction herein provided; and provided, further, that the only remedy the Agent shall have with respect to the failure by the Company to obtain such consent shall be to cease
making sales under this Agreement) and the Company will furnish to the Agent at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for
those documents available via EDGAR; and (iv) the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the case
of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination to file or not file any amendment or supplement with the
Commission under this Section 7(a), based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the Company).
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(b) Notice of Commission Stop Orders.
During the Prospectus Delivery Period, the Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof, of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the Placement Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and it will use its commercially reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agent promptly after it receives any request by the Commission for any amendments to the Registration
Statement or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Notes or for additional information related to the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery of Prospectus; Subsequent Changes.
During the Prospectus Delivery Period, the Company will comply with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information from the Registration
Statement pursuant to Rule 430A under the Securities Act, it will use its commercially reasonable efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Agent promptly
of all such filings. If during the Prospectus Delivery Period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then existing, not misleading, or if during such Prospectus Delivery Period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act,
the Company will promptly notify the Agent to suspend the offering of Placement Notes during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance; provided, however, that the Company may delay the filing of any amendment or supplement, if in the
judgment of the Company, it is in the best interest of the Company.
(d) Listing of Placement Notes.
During the Prospectus Delivery Period, the Company will use its commercially reasonable efforts to cause the Placement Notes to be listed on the Exchange and to qualify the Placement Notes for sale under the securities laws of such jurisdictions in
the United States as the Agent reasonably designates and to continue such qualifications in effect so long as required for the distribution of the Placement Notes; provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation or dealer in securities, file a general consent to service of process, or subject itself to taxation in any
jurisdiction if it is not otherwise so subject.
(e) Delivery of Registration Statement and
Prospectus. The Company will furnish to the Agent and its counsel (at the reasonable expense of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all
amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during the Prospectus Delivery Period (including all documents filed with the Commission during such period that are deemed to be incorporated
by reference therein), in each case as soon as reasonably practicable and in such quantities as the Agent may from time to time reasonably request and, at the Agent’s request, will also furnish copies of the Prospectus to each exchange or market on
which sales of the Placement Notes may be made; provided, however, that the Company shall not be required to furnish any document (other than the
Prospectus) to the Agent to the extent such document is available on EDGAR.
(f) Earnings Statement. The Company
will make generally available to its security holders as soon as practicable, an earnings statement (which need not be audited) that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act. The terms “earnings statement” and
“make generally available to its security holders” shall have the meanings set forth in Rule 158.
(g) Use of Proceeds. The Company
will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
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(h) Notice of Other Sales. During
the pendency of any Placement Notice given hereunder and during the Prospectus Delivery Period, the Company shall provide the Agent notice as promptly as reasonably possible before it directly or indirectly, offers to sell, sell, contracts to sell,
grants any option to sell or otherwise disposes of any Notes (other than the Placement Notes offered pursuant to this Agreement) or securities convertible into or exchangeable for Notes, warrants or any rights to purchase or acquire, Notes during the
period beginning on the date on which any Placement Notice is delivered to the Agent hereunder and ending on the second (2nd) Trading Day immediately following the final Settlement Date with respect to Placement Notes sold pursuant to such Placement
Notice (or, if the Placement Notice has been terminated or suspended prior to the sale of all Placement Notes covered by a Placement Notice, the date of such suspension or termination); and will not, without the prior written consent of the Agent,
directly or indirectly in any other “at the market” or continuous debt transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Notes (other than the Placement Notes offered pursuant to this Agreement)
or securities convertible into or exchangeable for Notes, warrants or any rights to purchase or acquire, Notes prior to the termination of this Agreement.
(i) Change of Circumstances. The
Company will, at any time during the pendency of a Placement Notice advise the Agent promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any
opinion, certificate, letter or other document required to be provided to the Agent pursuant to this Agreement.
(j) Due Diligence Cooperation.
During the term of this Agreement, the Company will cooperate with any reasonable due diligence review conducted by the Agent or its representatives in connection with the transactions contemplated hereby, including, without limitation, providing
information and making available documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as the Agent may reasonably request.
(k) Required Filings Relating to Placement of
Placement Notes. The Company agrees that on such dates as the Securities Act shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act
(each and every date a filing under Rule 424(b) is made, a “Filing Date”), which prospectus supplement will set forth, within the relevant period, the aggregate
principal amount of Placement Notes sold through the Agent, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to such Placement Notes, and (ii) deliver such number of copies of each such prospectus
supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or market.
(l) Representation Dates; Certificate.
Each time during the term of this Agreement that the Company:
(i) amends or supplements (other than a prospectus supplement relating solely to an offering of securities other than
the Placement Notes) the Registration Statement or the Prospectus relating to the Placement Notes by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration
Statement or the Prospectus relating to the Placement Notes;
(ii) files an annual report on Form 20-F under the Exchange Act (including any Form 20-F/A containing amended audited
financial information or a material amendment to the previously filed Form 20-F);
(iii) files its quarterly or semi-annual financial statements on Form 6-K under the Exchange Act; or
(iv) files a report on Form 6-K containing amended financial information under the Exchange Act;
(Each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “Representation Date.”)
the Company shall furnish the Agent (but in the case of clause (iv) above only if the Agent reasonably determines that the information
contained in such Form 6-K is material) with a certificate, in the form attached hereto as Exhibit 7(l). The requirement to provide a certificate under this Section 7(l) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver shall continue until the earlier to
occur of the date the Company delivers a Placement Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date on which the Company files its annual report on Form 20-F.
Notwithstanding the foregoing, (i) upon the delivery of the first Placement Notice hereunder and (ii) if the Company subsequently decides to sell Placement Notes following a Representation Date when the Company relied on such waiver and did not
provide the Agent with a certificate under this Section 7(l), then before the Agent sells any Placement Notes, the Company shall provide the Agent with a
certificate, in the form attached hereto as Exhibit 7(l), dated the date of the Placement Notice.
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(m) Legal Opinion. On or prior to
the date of the first Placement Notice given hereunder the Company shall cause to be furnished to the Agent a written opinion and a negative assurance letter of Seward & Kissel, LLP (“Company Counsel”), or other counsel reasonably satisfactory to the Agent, each in form and substance reasonably satisfactory to the Agent. Thereafter, within five (5) Trading Days of each Representation Date with respect to
which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(l) for which no waiver is applicable, and not more than once per calendar quarter, the Company shall cause to be furnished to the Agent a negative
assurance letter of Company Counsel in form and substance reasonably satisfactory to the Agent; provided that, in lieu of such negative assurance for subsequent periodic filings under the Exchange Act, counsel may furnish the Agent with a letter (a “Reliance Letter”) to the effect that the Agent may rely on the negative assurance letter previously delivered under this Section 7(m) to the same extent as if it were dated the date of such letter (except that statements in such prior letter shall be deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented as of the date of the Reliance Letter).
(n) Comfort Letter. On or prior to
the date of the first Placement Notice given hereunder and within five (5) Trading Days after each subsequent Representation Date, other than pursuant to Section 7(l)(iii),
the Company shall cause its independent accountants to furnish the Agent letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall
meet the requirements set forth in this Section 7(n). The Comfort Letter from the Company’s independent accountants shall be in a form and substance reasonably
satisfactory to the Agent, (i) confirming that they are an independent public accounting firm within the meaning of the Securities Act and the Public Company Accounting Oversight Board (the “PCAOB”), (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in
connection with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information
that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(o) Market Activities. The Company
will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or would constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes
or (ii) sell, bid for, or purchase Notes in violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Notes other than the Agent.
(p) Investment Company Act. The
Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor the Subsidiaries will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is defined in the
Investment Company Act.
(q) No Offer to Sell. Other than an
Issuer Free Writing Prospectus approved in advance by the Company and the Agent in its capacity as agent hereunder pursuant to Section 23, neither of the Agent nor
the Company (including its agents and representatives, other than the Agent in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405), required to be filed with the Commission,
that constitutes an offer to sell or solicitation of an offer to buy Placement Notes hereunder.
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(r) Sarbanes-Oxley Act. The Company
will maintain and keep accurate books and records reflecting its assets and maintain internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with IFRS and including those policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the
assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in accordance with IFRS, (iii) that receipts and expenditures of the
Company are being made only in accordance with management’s and the Company’s directors’ authorization, and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s
assets that could have a material effect on its financial statements. The Company will maintain disclosure controls and procedures that comply with the requirements of the Exchange Act.
8. Representations and Covenants of the Agent.
The Agent represents and warrants that it is duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and regulations of each state in which the Placement Notes will be offered and sold, except such states in which
the Agent is exempt from registration or such registration is not otherwise required. The Agent shall continue, for the term of this Agreement, to be duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and
regulations of each state in which the Placement Notes will be offered and sold, except such states in which it is exempt from registration or such registration is not otherwise required, during the term of this Agreement. The Agent shall comply
with all applicable law and regulations in connection with the transactions contemplated by this Agreement, including the issuance and sale through the Agent of the Placement Notes.
9. Payment of Expenses.
The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, filing, including any fees required by the Commission, and printing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment and supplement thereto and each Issuer Free Writing Prospectus, in such number as the Agent shall deem reasonably necessary, (ii) the printing and delivery to the Agent of
this Agreement and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Notes, (iii) the preparation, issuance and delivery of the certificates, if any, for the Placement Notes
to the Agent, including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Notes to the Agent, (iv) the fees and disbursements of the counsel,
accountants, trustee and other advisors to the Company, (v) reasonable expenses and out-of-pocket fees of the Agent, including reimbursement of fees of Agent’s counsel not to exceed $75,000 in relation to this Agreement, the Prospectus Supplement,
the Placement Notes, and the transactions contemplated herein, and thereafter not to exceed $5,000 per subsequent Representation Date so long as this Agreement remains in effect and excluding any period during which a Suspension is in place pursuant
to Section 4 (provided that such additional fee shall be paid upon the resumption of sale upon the ending of any Suspension); (vi) the fees and expenses of the transfer agent and registrar for the Placement Notes, (vii) the filing fees incident to
any review by FINRA of the terms of the sale of the Placement Notes, and (viii) the fees and expenses incurred in connection with the listing of the Placement Notes on the Exchange.
10. Conditions to the
Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will be subject to the continuing accuracy and completeness of the representations and warranties made by the Company herein (other than those
representations and warranties made as of a specified date or time), to the due performance in all material respects by the Company of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory to it in its
reasonable judgment, and to the continuing reasonable satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) Registration Statement Effective.
The Registration Statement shall remain effective and shall be available for the sale of all Placement Notes contemplated to be issued by any Placement Notice.
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(b) No Material Notices. None of the
following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the
Registration Statement, the response to which would require any post‑effective amendments or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any
stop order suspending the effectiveness of the Registration Statement or receipt by the Company of notification of the initiation of any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Placement Notes for sale in any jurisdiction or receipt by the Company of notification of the initiation of, or a threat to initiate, any proceeding for such purpose; or (iv) the
occurrence of any event that makes any material statement made in the Registration Statement or the Prospectus or any material Incorporated Document untrue in any material respect or that requires the making of any changes in the Registration
Statement, the Prospectus or any material Incorporated Document so that, in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus or any material Incorporated Document, it will not contain any materially untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) No Misstatement or Material Omission.
The Agent shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable opinion is material, or omits to state a fact that
in the Agent’s reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d) Material Changes. Except as
contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall not have been any Material Adverse Effect, or any development that would cause a Material Adverse Effect, or a downgrading in or withdrawal
of the rating assigned to any of the Company’s securities (other than asset backed securities) by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act (a “Rating Organization”), or a public announcement by any Rating Organization that it has under surveillance or review its rating of any of the
Company’s securities (other than asset backed securities), the effect of which, in the case of any such action by a Rating Organization described above, in the reasonable judgment of the Agent (without relieving the Company of any obligation or
liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Notes on the terms and in the manner contemplated in the Prospectus.
(e) Legal Opinion. The Agent shall
have received the opinion and negative assurance letter of Company Counsel required to be delivered pursuant to Section 7(m) on or before the date on which such
delivery of such opinion and negative assurance letter are required pursuant to Section 7(m).
(f) Comfort Letter. The Agent shall
have received the Comfort Letter required to be delivered pursuant Section 7(n) on or before the date on which such delivery of such letter is required pursuant to Section 7(n).
(g) Representation Certificate. The
Agent shall have received the certificate required to be delivered pursuant to Section 7(l) on or before the date on which delivery of such certificate is required
pursuant to Section 7(l).
(h) Secretary’s Certificate. On or
prior to the first Representation Date, the Agent shall have received a certificate, signed on behalf of the Company by its corporate Secretary, in form and substance satisfactory to the
Agent and its counsel.
(i) No Suspension. Trading in the
Notes shall not have been suspended on the Exchange and the Notes shall not have been delisted from the Exchange.
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(j) Other Materials. On each date on
which the Company is required to deliver a certificate pursuant to Section 7(l), the Company shall have furnished to the Agent such appropriate further information,
certificates and documents as the Agent may reasonably request and which are usually and customarily furnished by an issuer of securities in connection with a securities offering of the type contemplated hereby. All such opinions, certificates,
letters and other documents will be in compliance with the provisions hereof.
(k) Securities Act Filings Made. All
filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(l) Approval for Listing. The
Placement Notes shall either have been approved for listing on the Exchange, subject only to notice of issuance, or the Company shall have filed an application for listing of the Placement Notes on the Exchange at, or prior to, the issuance of any
Placement Notice.
(m) No Termination Event. There
shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section 13(a).
11. Indemnification and
Contribution.
(a) The Company agrees to indemnify and hold harmless the Agent, each person, if any, who controls the Agent within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of Agent within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, an Issuer Free Writing Prospectus, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Agent
furnished to the Company in writing by the Agent through you expressly for use therein.
(b) The Agent agrees, severally and not jointly, to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to the Agent, but only with reference to information relating to the Agent furnished to the Company in writing by the Agent through you expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, or
the Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 11(a) or 11(b), such person (the “indemnified party”) shall promptly notify the
person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by the Agent authorized to appoint counsel under this Section set forth in Schedule I hereto, in the case of parties indemnified pursuant to Section 11(a), and by the Company, in the case of parties indemnified pursuant to Section 11(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
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(d) To the extent the indemnification provided for in Section 11(a) or 11(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the Agent on the other hand from the offering of the Placement Notes or (ii) if the allocation provided by clause 11(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause 11(d)(i) above but also the relative fault of the Company on the one hand and of the Agent on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Agent on the other hand in connection with the sales of the
Placement Notes shall be deemed to be in the same proportion as the net proceeds from the sales of the Placement Notes (before deducting expenses) received by the Company bear to the total compensation received by the Agent (before deducting
expenses) from the sale of the Placement Notes on behalf of the Company. The relative fault of the Company on the one hand and the Agent on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Agent and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Agent agree that it would not be just or equitable if contribution pursuant to this Section
11 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 11(d). The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 11(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 11, the Agent shall not be required to contribute any amount in excess of the of the commissions actually received by it under this Agreement. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 11 are not
exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 11 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of the Agent, any controlling persons, or the Company (or any of their respective officers, directors or controlling
persons) or (iii) acceptance of and delivery of any Placement Notes and payment therefor.
12. Termination.
(a) The Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there
has been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any Material Adverse Effect, or any development that would have a Material Adverse Effect that, in the sole reasonable
judgment of the Agent, is material and adverse and makes it impractical or inadvisable to market the Placement Notes or to enforce contracts for the sale of the Placement Notes, (2) if there has occurred any material adverse change in the financial
markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as to make it, in the reasonable judgment of the Agent, impracticable or inadvisable to market the Placement Notes or to enforce contracts for the sale of the Placement Notes,
(3) if trading in the Notes has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension
of trading of any securities of the Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if a major disruption of securities settlements or clearance services in the United States shall have occurred
and be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 16 (Governing Law and Time; Waiver of Jury Trial) and Section 17 (Consent to
Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination. If the Agent elects to terminate this Agreement as provided in this Section 12(a), the Agent shall provide the required notice as specified in Section 13
(Notices).
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(b) The Company shall have the right, by giving at least ten (10) days’ notice as hereinafter specified to terminate this
Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 16 (Governing Law and Time; Waiver of Jury Trial) and Section 17 (Consent to Jurisdiction) hereof shall remain in
full force and effect notwithstanding such termination.
(c) The Agent shall have the right, by giving at least ten (10) days’ notice as hereinafter specified to terminate this
Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 16 (Governing Law and Time; Waiver of Jury Trial) and Section 17 (Consent to Jurisdiction) hereof shall remain in
full force and effect notwithstanding such termination.
(d) Unless earlier terminated pursuant to this Section
12, this Agreement shall automatically terminate upon the issuance and sale of all of the Placement Notes through the Agent on the terms and subject to the conditions set forth herein except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 16 (Governing Law and Time; Waiver of Jury Trial) and Section 17 (Consent to
Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
(e) This Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), (c),
or (d) above or otherwise by mutual agreement of the parties; provided,
however, that any such termination by mutual agreement shall in all cases be deemed to provide that Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 16 (Governing Law and Time;
Waiver of Jury Trial) and Section 17 (Consent to Jurisdiction) shall remain in full force and effect. Upon termination of this Agreement, the Company shall not have
any liability to the Agent for any discount, commission or other compensation with respect to any Placement Notes not otherwise sold by the Agent under this Agreement.
(f) Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however, that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or the
Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Notes, such Placement Notes shall settle in accordance with the provisions of this Agreement.
13. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:
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B. Riley Securities, Inc.
299 Park Avenue, 21st Floor New York, NY 10171 Attention: General Counsel |
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with a copy to:
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Hunton Andrews Kurth LLP
200 Park Avenue New York, NY 10166 Attention: Richard Kronthal and Philip Haines Email: richardkronthal@huntonak.com; philiphaines@huntonak.com |
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and if to the Company, shall be delivered to:
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Scorpio Tankers Inc.
150 E. 58th Street, New York, New York 10022 Attention: Brian M. Lee |
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with a copy to:
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Seward & Kissel LLP
One Battery Park Plaza New York, NY 10004 Attention: Edward S. Horton Email: horton@sewkis.com |
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Each party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address
for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally, by email, or by verifiable facsimile transmission on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a
Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered
mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange and commercial banks in the
City of New York are open for business.
14. Successors and
Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective successors and the affiliates, controlling persons, officers and directors referred to in Section 11 hereof. References to any of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in
this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except
as expressly provided in this Agreement. Neither the Company nor the Agent may assign its rights or obligations under this Agreement without the prior written consent of the other party.
15. Entire Agreement;
Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices issued pursuant hereto), together with that certain letter agreement between the Agent and the Company dated as of the
date hereof, constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any
term hereof may be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein
shall be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with
the intent of the parties as reflected in this Agreement.
16. GOVERNING LAW AND
TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME. THE COMPANY AND THE AGENT EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
17. CONSENT TO
JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF
PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
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18. Use of Information.
The Agent may not use any information gained in connection with this Agreement and the transactions contemplated by this Agreement, including due diligence, to advise any party with respect to transactions not expressly approved by the Company.
19. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by
facsimile transmission or email of a .pdf attachment.
20. Effect of Headings.
The section, Schedule and Exhibit headings herein are for convenience only and shall not affect the construction hereof.
21. Permitted Free
Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior consent of the Agent, and the Agent represents, warrants and agrees that, unless it obtains the prior consent of the Company, it has
not made and will not make any offer relating to the Placement Notes that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the Agent or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including
timely filing with the Commission where required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit 21 hereto are Permitted Free Writing Prospectuses.
22. Absence of Fiduciary
Relationship. The Company acknowledges and agrees that:
(a) the Agent is acting solely as agent in connection with the public offering of the Placement Notes and in connection
with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or
employees or any other party, on the one hand, and the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not the Agent has advised or is advising the
Company on other matters, and the Agent has no obligation to the Company with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the
transactions contemplated by this Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions
contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against the Agent for breach of fiduciary
duty or alleged breach of fiduciary duty in connection with the sale of Placement Notes under this Agreement and agrees that the Agent shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such
a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of the Agent’s obligations under this Agreement and to keep information
provided by the Company to the Agent and its counsel confidential to the extent not otherwise publicly-available.
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23. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable Time” means (i) each
Representation Date and (ii) the time of each sale of any Placement Notes pursuant to this Agreement.
“Issuer Free Writing Prospectus” means
any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement Notes that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written communication” within the meaning of Rule
433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Notes or of the offering that does not reflect the final terms, in
each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act.
“Rule 158,” Rule 172,” “Rule 405,” “Rule 415,”
“Rule 424,” “Rule 424(b),” “Rule 430B,” and “Rule 433” refer to such rules under the Securities Act.
All references in this Agreement to financial statements and schedules and other information that is “contained,”
“included” or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that is incorporated by reference
in the Registration Statement or the Prospectus, as the case may be.
All references in this Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not
required to be filed with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the Prospectus shall include, without limitation, any
supplements, “wrappers” or similar materials prepared in connection with any offering, sale or private placement of any Placement Notes by the Agent outside of the United States.
[Remainder of the page intentionally left blank]
21
If the foregoing correctly sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company and the Agent.
| Very truly yours, |
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SCORPIO TANKERS INC.
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By:
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/s/ Brian M. Lee
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Brian M. Lee
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Chief Financial Officer
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ACCEPTED as of the date first-above written:
B. RILEY SECURITIES, INC.
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By:
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/s/ Patrice McNicoll
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Patrice McNicoll
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Co-Head of Investment Banking
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Signature Page to Note Distribution Agreement
SCHEDULE 1
________________________
FORM OF PLACEMENT NOTICE
________________________
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From:
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Scorpio Tankers Inc.
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To:
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B. Riley Securities, Inc.
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Attention:
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[•]
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Subject:
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Note Distribution Issuance — Placement Notice
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Ladies and Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Note Distribution Agreement between Scorpio Tankers
Inc., a Republic of the Marshall Islands corporation (the “Company”),
and B. Riley Securities, Inc. (the “Agent”), dated January 12, 2021 (the “Agreement”),
the Company hereby requests that the Agent sell up to $[____] aggregate principal amount of the Company’s 7.00% Fixed Rate Senior Unsecured Notes due 2025, at a minimum market price of $[___] per Placement Note, during the time period beginning
[month, day, time] and ending [month, day, time].
[The Company may include such other sales parameters as it deems appropriate, subject to the terms and conditions of the
Agreement.]
Notwithstanding anything to the
contrary herein, the Company shall not request the Agent to sell, and the Agent shall not sell, Placement Notes unless such Placement Notes are issued in a “qualified reopening” as provided for in Treasury Regulation Section 1.1275-2(k)(3).All
capitalized terms used but not defined herein shall have the meanings given to such terms in the Agreement.
SCHEDULE-1
SCHEDULE 2
________________________
Compensation
________________________
The Company shall pay to the Agent in cash, upon each sale of Placement Notes pursuant to this Agreement, an amount equal
to 2.5% of the gross proceeds from each sale of Placement Notes.
SCHEDULE-2
SCHEDULE 3
________________________
Notice Parties
________________________
The Company
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Brian M. Lee
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blee@scorpiogroup.net
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Cameron Mackey
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cmackey@scorpiogroup.net
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B. Riley Securities, Inc.
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Scott Ammaturo
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sammaturo@brileyfin.com
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Seth Appel
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sappel@brileyfin.com
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Ernie Dahlman
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edahlman@brileyfin.com
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Patrice McNicoll
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pmcnicoll@brileyfin.com
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Keith Pomplianot
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kpompliano@brileyfin.com
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with a copy to atmadmin@brileyfin.com
SCHEDULE-3
EXHIBIT 7(l)
Form of Representation Date Certificate
Form of Representation Date Certificate
___________, 20___
This Representation Date Certificate (this “Certificate”)
is executed and delivered in connection with Section 7(l) of the Note Distribution Agreement (the “Agreement”), dated January 12, 2021, and entered into between Scorpio Tankers Inc. (the “Company”) and B. Riley Securities, Inc. All
capitalized terms used but not defined herein shall have the meanings given to such terms in the Agreement.
The Company hereby certifies as follows:
1. As of the date of this Certificate (i) the
Registration Statement does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (ii) neither the Registration
Statement nor the Prospectus contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading and (iii) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading for this paragraph 1 to be true.
2. Each of the representations and warranties of the
Company contained in the Agreement were, when originally made, and are, as of the date of this Certificate, true and correct in all material respects.
3. Except as waived by the Agent in writing, each of
the covenants required to be performed by the Company in the Agreement on or prior to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement, has been duly, timely and
fully performed in all material respects and each condition required to be complied with by the Company on or prior to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the
Agreement has been duly, timely and fully complied with in all material respects.
4. Subsequent to the date of the most recent
financial statements in the Prospectus, and except as described in the Prospectus, including Incorporated Documents, there has been no Material Adverse Effect.
5. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued, and, to the Company’s knowledge, no proceedings for that purpose have been instituted or are pending or threatened by any securities or other governmental authority (including, without
limitation, the Commission).
6. No order suspending the effectiveness of the
Registration Statement or the qualification or registration of the Placement Notes under the securities or Blue Sky laws of any
EXHIBIT 7 (1)
jurisdiction are in effect and no proceeding for such purpose is pending before, or threatened, to the Company’s knowledge or in writing by, any securities or
other governmental authority (including, without limitation, the Commission).
7. Seward & Kissel LLP is entitled to rely upon this Certificate in connection with the opinions given pursuant to the Agreement.
The undersigned has executed this Certificate as of the date first written above.
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SCORPIO TANKERS INC.
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||
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By:
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||
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Name:
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||
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Title:
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EXHIBIT 7 (1)
EXHIBIT 21
Permitted Issuer Free Writing Prospectuses
None.
Exhibit 21
Exhibit 5.1
|
Seward & Kissel llp
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
|
||
|
|
TELEPHONE: (212) 574-1200
FACSIMILE: (212) 480-8421
WWW.SEWKIS.COM
|
901 K Street, NW
WASHINGTON, D.C. 20001
TELEPHONE: (202) 737-8833
FACSIMILE: (202) 737-5184
|
|
January 12, 2021
|
Scorpio Tankers Inc.
9, Boulevard Charles III
MC 98000 Monaco
|
Re:
|
Scorpio Tankers Inc.
|
Ladies and Gentlemen:
We have acted as special counsel to Scorpio Tankers Inc., a corporation organized under the laws of
the Republic of the Marshall Islands (the “Company”), in connection with (i) the Company’s offer and sale, from time to time (the “Offering”), of its 7.00% Fixed Rate Senior Unsecured Notes due 2025, having an aggregate principal amount of up to $75,000,000 (the “Notes”); (ii) the Note Distribution Agreement, dated January 12, 2021 (the “Distribution Agreement”), between the Company and
B. Riley Securities, Inc., as sales agent (the “Agent”), including any amendments or supplements thereto, pursuant to which the Company may offer the Notes
through the Agent, from time to time, (iii) the registration statement under the Securities Act of 1933, as amended (the “Securities Act”), on Form F-3 (File
No. 333-230469) (the “Registration Statement”), and the prospectus contained therein, as amended and supplemented by a prospectus supplement dated January 12,
2021 (together, the “Prospectus”), and (iv) an indenture dated as of May 12, 2014 (the “Base
Indenture”), as amended and supplemented by the Fourth Supplemental Indenture dated as of May 29, 2020 (the “Supplemental Indenture” and,
together with the Base Indenture, the “Indenture”), between the Company and Deutsche Bank Trust Company Americas, as Trustee (the “Trustee”).
In formulating our opinion, we have examined (a) the Registration Statement, including the
Prospectus, (b) the Indenture, (c) the form of the Notes attached to the Supplemental Indenture, (d) the Distribution Agreement, and (e) the originals, or copies identified to our satisfaction, of such corporate records and corporate actions of
the Company, certificates of public officials, officers of the Company and other persons, and such other documents, agreements and instruments as we have deemed necessary as a basis for the opinions expressed below. In our examination, we have
assumed the authenticity of all documents submitted to us as originals, the conformity with the originals of all documents submitted to us as copies, the genuineness of the signatures of persons signing all documents, the persons identified as
officers of the Company are serving as such and, as to factual matters, the truth, accuracy and completeness of the information, representations and warranties contained in the Registration Statement, including the Prospectus, the Distribution
Agreement and such other documents, agreements and instruments.
We have further assumed for the purposes of this opinion, without investigation, that (i) all
documents contemplated by the Prospectus to be executed in connection with the Offering have been duly authorized, executed and delivered by each of the parties thereto other than the Company, and (ii) the terms of the Offering comply in all
respects with the terms, conditions and restrictions set forth in the Prospectus and all of the instruments, agreements and other documents relating thereto or executed in connection therewith.
In connection with our opinion expressed below, we have assumed that, at or prior to the time of the
execution and delivery of the Notes, there will not have occurred any change in the law or the facts affecting the validity of the Notes.
Based on and subject to the foregoing and the other assumptions, exclusions and qualifications in
this letter, we are of the opinion that when the Notes have been duly executed by the Company and authenticated by the Trustee in accordance with the Base Indenture and the Supplemental Indenture and delivered to and paid for by the purchasers
thereof pursuant to the Distribution Agreement and as contemplated by the Registration Statement and the Prospectus, the Notes will constitute binding obligations of the Company.
This opinion is limited to the laws of the State of New York, the federal laws of the United States
of America and the laws of the Republic of the Marshall Islands as in effect on the date hereof. This opinion is as of the date hereof and we have no responsibility to update this opinion for events and circumstances occurring after the date
hereof or as to facts relating to prior events that are subsequently brought to our attention.
We hereby consent to the filing of this opinion as an exhibit to the Company’s Report on Form 6-K to
be filed with the U.S. Securities and Exchange Commission (the “Commission”) on the date hereof, and to each reference to us and the discussions of advice
provided by us under the heading “Legal Matters” in the Prospectus, without admitting we are “experts” within the meaning of the Securities Act or the rules and regulations of the Commission promulgated thereunder with respect to any part of
the Registration Statement.
|
Very truly yours,
|
|
|
/s/ Seward & Kissel LLP
|
|
Exhibit 8.1
|
Seward & Kissel llp
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
|
||
|
|
TELEPHONE: (212) 574-1200
FACSIMILE: (212) 480-8421
WWW.SEWKIS.COM
|
901 K Street, NW
WASHINGTON, D.C. 20001
TELEPHONE: (202) 737-8833
FACSIMILE: (202) 737-5184
|
|
January 12, 2021
|
Scorpio Tankers Inc.
9, Boulevard Charles III
MC 98000 Monaco
|
Re:
|
Scorpio Tankers Inc.
|
Ladies and Gentlemen:
We have acted as special counsel to Scorpio Tankers Inc., a corporation organized under the laws of the Republic of
the Marshall Islands (the “Company”), in connection with (i) the Company’s offer and sale, from time to time (the “Offering”), of its 7.00% Fixed Rate Senior Unsecured Notes due 2025, having an aggregate principal amount of up to
$75,000,000 (the “Notes”); (ii) the Note Distribution Agreement, dated January 12, 2021 (the “Distribution Agreement”), between the Company and B. Riley Securities, Inc., as sales agent (the “Agent”), including any
amendments or supplements thereto, pursuant to which the Company may offer the Notes through the Agent, from time to time, (iii) the registration statement under the Securities Act of 1933, as amended (the “Securities Act”), on Form F-3
(File No. 333-230469) (the “Registration Statement”), and the prospectus contained therein, as amended and supplemented by a prospectus supplement dated January 12, 2021 (together, the “Prospectus”), and (iv) an indenture dated as
of May 12, 2014 (the “Base Indenture”), as amended and supplemented by the Fourth Supplemental Indenture dated as of May 29, 2020 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”),
between the Company and Deutsche Bank Trust Company Americas, as Trustee.
In formulating our opinions, we have examined (a) the Registration Statement, including the Prospectus, (b) the
Indenture, (c) the form of the Notes attached to the Supplemental Indenture, (d) the Distribution Agreement, and (e) the originals, or copies identified to our satisfaction, of such corporate records and corporate actions of the Company,
certificates of public officials, officers of the Company and other persons, and such other documents, agreements and instruments as we have deemed necessary as a basis for the opinions expressed below. In our examination, we have assumed the
authenticity of all documents submitted to us as originals, the conformity with the originals of all documents submitted to us as copies, the genuineness of the signatures of persons signing all documents, the persons identified as officers of
the Company are serving as such and, as to factual matters, the truth, accuracy and completeness of the information, representations and warranties contained in the Registration Statement, including the Prospectus, the Distribution Agreement
and such other documents, agreements and instruments.
Based on and subject to the foregoing and the other assumptions,
exclusions and qualifications in this letter, and in particular, on the representations, covenants, assumptions, conditions and qualifications described in the Prospectus under the headings “Material United
States Federal Income Tax Considerations” and “Marshall Islands Tax Considerations,” we hereby confirm that the opinions and discussions of United States federal income tax matters and Marshall Islands tax matters expressed in the Prospectus in
the sections entitled “Material United States Federal Income Tax Considerations” and “Marshall Islands Tax Considerations,” are our opinions and accurately state our views as to the tax matters discussed therein.
Our opinions are based on the current provisions of the U.S. Internal Revenue Code of 1986, as amended, the Treasury
Regulations promulgated thereunder, published pronouncements of the Internal Revenue Service, which may be cited or used as precedents, and case law, any of which may be changed at any time with retroactive effect. No opinion is expressed on
any matters other than those specifically referred to above.
We hereby consent to the filing of this opinion as an exhibit to the Company’s Report on Form 6-K to be filed with
the U.S. Securities and Exchange Commission (the “Commission”) on the date hereof, and to each reference to us under the headings “Material United States Federal Income Tax Considerations” and “Marshall Islands Tax Considerations” in the
Prospectus, without admitting we are “experts” within the meaning of the Securities Act or the rules and regulations of the Commission promulgated thereunder with respect to any part of the Registration Statement.
|
Very truly yours,
|
|
|
/s/ Seward & Kissel LLP
|