Teekay Corp Ltd F-3, filed Dec 29, 2020
Teekay Corp Ltd (TK)
Table of Contents
As filed with the Securities and Exchange Commission on December 29, 2020
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TEEKAY CORPORATION
(Exact name of registrant as specified in its charter)
| Republic of the Marshall Islands |
98-0224774 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
4th Floor, Belvedere Building,
69 Pitts Bay Road,
Hamilton HM 08, Bermuda
Telephone: (441) 298-2530
(Address and telephone number of registrant’s principal executive offices)
Watson Farley & Williams LLP
Attention: Daniel C. Rodgers
250 West 55th Street
New York, New York 10019
(212) 922-2200
(Name, address and telephone number of agent for service)
Copy to:
David S. Matheson
Joseph F. Bailey
Perkins Coie LLP
1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128
(503) 727-2008
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective, as determined by market conditions.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
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If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☑
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933. ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price(2) |
Amount of Registration Fee(2) | ||||
| Common stock |
(1) | (1) | $65,000,000 | $219 | ||||
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| (1) | There are being registered hereunder such indeterminate number of shares of common stock to be sold by the registrant which shall have an aggregate initial offering price not to exceed $65,000,000. The proposed maximum offering price per share will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the shares registered hereunder. |
| (2) | Pursuant to Rule 415(a)(6) under the Securities Act, the registrant is carrying forward to this registration statement (i) $52,500,000 in aggregate offering price of unsold securities that were previously registered on the registrant’s Registration Statement on Form F-3 (File No. 333-221806), which was filed on November 29, 2017 and amended by Amendment No. 1 to Registration Statement on Form F-3 on December 22, 2017 and Amendment No. 2 to Registration Statement on Form F-3 on January 11, 2018, and declared effective by the Securities and Exchange Commission on January 12, 2018, and (ii) $10,500,000 in aggregate offering price of unsold securities that were previously registered on the registrant’s Registration Statement on Form F-3MEF (File No. 333-231003), which was filed and effective on April 24, 2019 in accordance with Rule 462(b) under the Securities Act (collectively, the “Prior Registration Statements”), and the $7,810 of registration fees that were previously paid in connection with those unsold securities pursuant to Rule 457(o). Accordingly, the amount of the fee for registering the offer and sale of securities under this registration statement has been calculated based on the proposed maximum offering price of the additional $2,000,000 of securities being registered pursuant to this registration statement. In accordance with Securities and Exchange Commission rules, the registrant may continue to offer and sell the unsold securities during the grace period afforded by Rule 415(a)(5). If the registrant sells any unsold securities during the grace period, the registrant will identify in a pre-effective amendment to this registration statement the new amount of unsold securities to be carried forward to this registration statement in reliance upon Rule 415(a)(6) and any filing fee paid in connection with such unsold securities and the amount of any new securities to be registered. Pursuant to Rule 415(a)(6), the offering of the unsold securities registered under the Prior Registration Statements described herein will be deemed terminated as of the effective date of this Registration Statement. |
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the U.S. Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
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PROSPECTUS
Teekay Corporation
Common Stock
Having an Aggregate Offering Price of up to $65,000,000
We have entered into an equity distribution agreement with Citigroup Global Markets Inc., or the “Agent,” relating to the shares of common stock of Teekay Corporation offered by this prospectus. In accordance with the terms of the equity distribution agreement, we may offer and sell shares of common stock having an aggregate offering price of up to $65,000,000 from time to time through the Agent, as our sales agent, or directly to the Agent acting as principal. This new equity distribution agreement replaces our prior equity distribution agreement with Citigroup Global Markets Inc. entered into on April 24, 2019, which had provided for a $63,000,000 at-the-market offering program that was never utilized and was scheduled to expire in January 2021.
Sales of common stock, if any, made by the Agent, as our sales agent, as contemplated by this prospectus, may be made by means of ordinary brokers’ transactions on the New York Stock Exchange at market prices, in block transactions, or as otherwise agreed between us and the Agent. We will pay the Agent a commission of up to 2.0% of the gross sales price per share of common stock sold through the Agent, as our sales agent, under the equity distribution agreement.
Under the terms of the equity distribution agreement, we also may sell shares of common stock to the Agent as principal at a price to be agreed upon at the time of sale. If we sell shares of common stock to the Agent as principal, we will enter into a separate terms agreement with the Agent, and we will describe the public offering price, underwriting discount (which may exceed 2.0% of the public offering price) and other terms of the offering of those shares of common stock in a separate prospectus supplement or pricing supplement.
The Agent is not required to sell any specific number of shares or dollar amount of our common stock but will use its reasonable efforts, as our sales agent, and on the terms and subject to the conditions of the equity distribution agreement, to sell the common stock offered on terms agreed by the Agent and us. The offering of shares of our common stock pursuant to the equity distribution agreement will terminate upon the earlier of (1) the sale of all of the common stock subject to the equity distribution agreement and (2) the termination of the equity distribution agreement by either the Agent or us.
Our common stock trades on the New York Stock Exchange (or NYSE) under the symbol “TK.” The last reported sale price of our common stock on the NYSE on December 28, 2020 was $2.33 per share.
Investing in our common stock involves a high degree of risk. You should carefully consider the section entitled “Forward-Looking Statements” beginning on page 1 and each of the factors described under “Risk Factors” beginning on page 6 of this prospectus before you make an investment in our common stock.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Citigroup
The date of this prospectus is December 29, 2020
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You should rely only on the information contained in this prospectus, any prospectus supplement, the documents incorporated by reference into this prospectus and any free writing prospectus. We have not authorized anyone else to give you different information. If anyone provides you with additional, different or inconsistent information, you should not rely on it. We are not offering to sell or seeking offers to buy these securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information in this prospectus or any prospectus supplement or any free writing prospectus, as well as the information we previously filed or hereafter file with the U.S. Securities and Exchange Commission (or SEC) that is incorporated by reference into this prospectus or any prospectus supplement, is accurate as of any date other than its respective date. We will disclose material changes in our affairs in an amendment to this prospectus, a prospectus supplement or a future filing with the SEC incorporated by reference into this prospectus.
We are offering to sell shares of our common stock, and are seeking offers to buy shares of our common stock, only in jurisdictions where offers and sales are permitted. The distribution of this prospectus and the offering of shares of our common stock in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus must inform themselves about and observe any restrictions relating to the offering of the common stock and the distribution of this prospectus outside the United States. This prospectus does not constitute, and may not be used in connection with, an offer or solicitation by anyone in any jurisdiction in which such offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful to make such offer or solicitation
Any statement made in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document that is also incorporated by reference into this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
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This prospectus is part of a registration statement on Form F-3 that we have filed with the SEC. Under the registration statement, we may sell shares of our common stock having an aggregate offering price of up to $65,000,000 from time to time pursuant to an equity distribution agreement with Citigroup Global Markets Inc. This prospectus provides you with a general description of our common stock and the terms of the offering. From time to time we may provide a prospectus supplement that contains additional information about the terms of the offering. Such prospectus supplement may also add, update or change information contained in this prospectus and, accordingly, to the extent inconsistent, information in this prospectus is superseded by the information in the applicable prospectus supplement.
You should read carefully this prospectus, any prospectus supplement, and the additional information described below under the headings “Where You Can Find More Information” and “Incorporation of Documents by Reference.”
All statements, other than statements of historical fact, included in or incorporated by reference into this prospectus are forward-looking statements. In addition, we and our representatives may from time to time make other oral or written statements that are also forward-looking statements. Such statements include, in particular, statements about our future or anticipated operations, cash flows, financial position, plans, strategies, business prospects, changes and trends in our business, and the markets in which we operate. In some cases, you can identify the forward-looking statements by the use of words such as “may,” “will,” “could,” “should,” “would,” “expect,” “plan,” “anticipate,” “intend,” “forecast,” “believe,” “estimate,” “predict,” “propose,” “potential,” “continue” or the negative of these terms or other comparable terminology.
These and other forward-looking statements reflect management’s current plans, expectations, estimates, assumptions and beliefs concerning future events affecting us. Forward-looking statements involve known and unknown risks and are based upon a number of assumptions and estimates that are inherently subject to significant uncertainties and contingencies, many of which are beyond our control. We caution that forward-looking statements are not guarantees and that actual results may differ materially from those expressed or implied by such forward-looking statements. Important factors that could cause actual results to differ materially include, but are not limited to, those factors discussed under the heading “Risk Factors” set forth in this prospectus and those factors discussed in our most recent Annual Report on Form 20-F and other reports we file with or furnish to the SEC and that are incorporated into this prospectus by reference.
We undertake no obligation to update any forward-looking statement to reflect any change in our expectations or events or circumstances that may arise after the date on which such statement is made. New factors emerge from time to time, and it is not possible for us to predict all of these factors. In addition, we cannot assess the effect of each such factor on our business or the extent to which any factor, or combination of factors, may cause actual results to be materially different from those contained in any forward-looking statement.
Forward-looking statements in this prospectus or incorporated by reference herein include, among others, statements about: the timing and amount of sales of our common stock pursuant to the equity distribution agreement, and the expected use of any sales proceeds; and our expectations regarding tax liabilities and classifications.
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This summary highlights selected information contained elsewhere in this prospectus and the documents incorporated by reference in this prospectus and does not contain all the information you will need in making an investment decision. You should carefully read this entire prospectus and the documents incorporated by reference into this prospectus.
Unless otherwise indicated, references in this prospectus to “Teekay Corporation,” “Teekay,” “we,” “us” and “our” and similar terms refer to Teekay Corporation and/or its subsidiaries, except that those terms, when used in this prospectus in connection with the common stock described herein, shall mean specifically Teekay Corporation. References in this prospectus to (a) “Teekay LNG” refer to Teekay LNG Partners L.P. (NYSE: TGP), a subsidiary of Teekay Corporation, (b) “Teekay Tankers” refer to Teekay Tankers Ltd. (NYSE: TNK), a subsidiary of Teekay Corporation, and (c) “Teekay Parent” refer to Teekay Corporation and its remaining subsidiaries. In this prospectus, we refer to Teekay LNG and Teekay Tankers as the “Daughter Entities,” and references to the “Teekay group” include Teekay Parent and the Daughter Entities.
Unless otherwise indicated, all references in this prospectus to “dollars” and “$” are to, and amounts are presented in, U.S. Dollars. Teekay Corporation prepares its financial statements in accordance with United States generally accepted accounting principles (or GAAP). References to “independent” fleet owners or operators mean companies other than private or state-controlled entities that operate their own fleets. Unless otherwise indicated, we include as long-term contracts those with an initial term of at least three years.
Overview
Teekay Corporation is an operational leader, project developer and portfolio manager in the oil and gas marine transportation space. We primarily provide oil and gas transportation services to the world’s leading oil and gas companies. We generate a significant portion of revenue from long-term, fixed-rate contracts with a diverse base of energy and utility companies. Over the past 20 years, we have undergone a major transformation from being primarily an owner of ships in the cyclical spot tanker business to being an asset manager in the oil and gas marine transportation sector. This transformation has included our expansion into the liquefied natural gas (or LNG) and liquefied petroleum gas (or LPG) shipping sectors through Teekay LNG, and the continuation of our conventional tanker business through Teekay Tankers. Our ownership of Teekay Tankers was 28.6% as of December 1, 2020. We maintain voting control of Teekay Tankers through our ownership of shares of Class A and Class B Common Stock and continue to consolidate this subsidiary. Our ownership of Teekay LNG was 42.4% (including our 1.76% general partner interest) as of December 1, 2020. We maintain control of Teekay LNG by virtue of our control of the general partner and continue to consolidate this subsidiary.
The combined Teekay entities operate total assets under management of approximately $9 billion, comprised of approximately 140 vessels, a majority of which are liquefied gas and conventional tanker vessels (excluding vessels managed for third parties). With offices in 10 countries and approximately 5,500 seagoing and shore-based employees, Teekay provides a comprehensive set of marine transportation services to the world’s leading oil and gas companies. We are one of the world’s largest independent owners and operators of LNG carriers and one of the world’s largest owners and operators of mid-sized crude tankers.
Risk Factors Summary
Our business is subject to a number of risks and uncertainties of which you should be aware before making a decision to invest in our common stock. These risks are more fully described in the section titled “Risk Factors” in our latest Annual Report on Form 20-F filed with the SEC and incorporated by reference into this prospectus.
| • | Changes in the oil and natural gas markets could result in decreased demand for our vessels and services. A decline in natural gas or oil prices may adversely affect our growth prospects and results of operations. |
| • | The novel coronavirus (COVID-19) pandemic is dynamic and expanding. The continuation of this outbreak likely will have, and the emergence of other epidemic or pandemic crises could have, material adverse effects on our business, results of operations, or financial condition. |
| • | Adverse economic conditions, including disruptions in the global credit markets, could adversely affect our business, financial condition and results of operations. |
| • | Adverse economic conditions or other developments may affect our customers’ ability to charter our vessels and pay for our services and may adversely affect our business and results of operations. |
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| • | Current market conditions limit our access to capital and our growth. |
| • | Exposure to interest rate fluctuations will result in fluctuations in our cash flows and operating results and subject us to risks related to the phasing out of LIBOR. |
| • | Our ability to repay or refinance debt obligations and to fund capital expenditures will depend on certain financial, business and other factors, many of which are beyond our control. We will need to obtain additional financing, which financing may limit our ability to make cash dividends and distributions, increase our financial leverage and result in dilution to our equityholders. |
| • | We have substantial debt levels and may incur additional debt. Financing agreements containing operating and financial restrictions may restrict our business and financing activities. |
| • | Our cash flow depends substantially on the ability of our subsidiaries, primarily our Daughter Entities, to make distributions to us. |
| • | The cyclical nature of the tanker industry may lead to volatile changes in charter rates and significant fluctuations in the utilization of our vessels, which may adversely affect our earnings and profitability. |
| • | Reduction in oil produced from offshore oil fields may adversely affect the results of operations from our floating production, storage and off-loading (or FPSO) unit. |
| • | The redeployment risk of FPSO units is high given their lack of alternative uses and significant costs. |
| • | The costs associated with the asset retirement obligations relating to our FPSO units, and the decommissioning, recycling, or redeploying of our FPSO units after their contracts expire, may exceed our estimates. |
| • | Charter rates for conventional oil and product tankers may fluctuate substantially over time and may be lower when we are attempting to re-charter these vessels, which could adversely affect our operating results. Any changes in charter rates for LNG carriers, LPG carriers, or FPSO units could also adversely affect redeployment opportunities for those vessels. |
| • | Over time, the value of our vessels may decline, which could adversely affect our operating results. Declining market values of our vessels could adversely affect our liquidity and result in breaches of our financing agreements. |
| • | Our future performance and ability to secure future employment for our vessels depends on continued growth (including any continued growth) in LNG production, demand and supply for LNG and LPG, and associated demand and supply for LNG and LPG shipping. |
| • | The intense competition in our markets may lead to reduced profitability or reduced expansion opportunities. |
| • | We no longer control Altera Infrastructure L.P. (formerly Teekay Offshore Partners L.P.), which may engage in competition with us. |
| • | The loss of any key customer or its inability to pay for our services could result in a significant loss of revenue in a given period. |
| • | Our operations are subject to substantial environmental and other regulations, which may significantly increase our expenses. Climate change and greenhouse gas restrictions may adversely impact our operations and markets. |
| • | We may be unable to make or realize expected benefits from acquisitions and implementing our long-term strategy of growth through acquisitions may harm our financial condition and performance. |
| • | Our insurance may not be sufficient to cover losses that may occur to our property or as a result of our operations. |
| • | Past port calls by our vessels, or third-party vessels from which we derived revenue sharing agreement revenues, to countries that are subject to sanctions imposed by the United States and the European Union may impact investors’ decisions to invest in our securities. |
| • | Marine transportation and oil production are inherently risky, and an incident involving loss or damage to a vessel, significant loss of product or environmental contamination by any of our vessels could harm our reputation and business. |
| • | Our operating results are subject to seasonal fluctuations. |
| • | We and the Daughter Entities may expend substantial sums during the construction of future new buildings or upgrades to our or their existing vessels, including upgrades to our FPSO unit, without earning revenue and without assurance that they will be completed. |
| • | Actual results of new technologies or technologies upgrades may differ from expected results and affect our results of operations. |
| • | We may make substantial capital expenditures to expand the size of our fleet and generally are required to make significant installment payments for acquisitions of newbuilding vessels. Depending on whether we finance our expenditures through cash from operations or by incurring debt or issuing equity securities, our financial leverage could increase, or our shareholders could be diluted. |
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| • | Exposure to currency exchange rate fluctuations results in fluctuations in our cash flows and operating results. |
| • | Teekay LNG may have more difficulty entering into long-term, fixed-rate LNG time-charters if the active short-term, medium-term or spot LNG shipping markets continue to develop. |
| • | Many of our seafaring employees are covered by collective bargaining agreements and the failure to renew those agreements or any future labor agreements may disrupt operations and adversely affect our cash flows. |
| • | We and certain of our joint venture partners may be unable to attract and retain qualified, skilled employees or crew necessary to operate our business. |
| • | Terrorist attacks, increased hostilities, political change or war could lead to further economic instability, increased costs and disruption of business. Acts of piracy on ocean-going vessels continue to be a risk, which could adversely affect our business. |
| • | Our and many of our customers’ substantial operations outside the United States expose us to political, governmental and economic instability, which could harm our operations. |
| • | A cyber-attack could materially disrupt our business. |
| • | Our failure to comply with data privacy laws could damage our customer relationships and expose us to litigation risks and potential fines. |
| • | Sanctions against key participants in the Yamal LNG Project could impede performance of the Yamal LNG Project, which could have a material adverse effect on us. |
| • | Failure of the Yamal LNG Project to achieve expected results could lead to a default under the time-charter contracts by the charter party. |
| • | Maritime claimants could arrest, or port authorities could detain, our vessels, which could interrupt our cash flow. |
| • | Teekay LNG or its joint venture partners may be unable to operate an LNG receiving and regasification terminal and may be exposed from time to time to conditions, developments, or requirements that may adversely affect Teekay LNG or its joint venture. |
| • | Because we are organized under the laws of the Marshall Islands, it may be difficult to serve us with legal process or enforce judgments against us, our directors or our management. |
| • | As a Marshall Islands corporation with our headquarters in Bermuda, and with a majority of our subsidiaries being Marshall Islands entities and also having subsidiaries in other offshore jurisdictions, our operations may be subject to economic substance requirements, which could harm our business. |
| • | Our joint venture arrangements impose obligations upon us but limit our control of the joint ventures, which may affect our ability to achieve our joint venture objectives. We depend on certain joint venture partners to assist us in operating our businesses and competing in our markets. |
| • | We may experience operational problems with vessels that reduce revenue and increase costs. |
| • | Teekay Tankers’ U.S. Gulf lightering business competes with alternative methods of delivering crude oil to ports, which may limit its earnings in this area of its operations. |
| • | Teekay Tankers’ full service lightering operations are subject to specific risks that could lead to accidents, oil spills or property damage. |
| • | Failure to comply with the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and other similar legislation in other jurisdictions could result in fines, criminal penalties, contract terminations and an adverse effect on our business. |
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The Offering
| Issuer |
Teekay Corporation |
| Common stock offered by us |
Shares of common stock having an aggregate offering price of up to $65,000,000. |
| Use of proceeds |
We intend to use the net proceeds from this offering, if any, after deducting the Agent’s commission and our offering expenses, for general corporate purposes, which may include, among other things, repaying a portion of our outstanding indebtedness. Please read “Use of Proceeds.” |
| New York Stock Exchange Symbol |
TK |
| Risk factors |
Investing in our common stock involves risks. You should carefully consider each of the factors described or referred to under “Risk Factors” beginning on page 6 of this prospectus and in the documents incorporated by reference into this prospectus before you make an investment in our common stock. |
| Equity distribution agreement |
We have entered into an equity distribution agreement with Citigroup Global Markets Inc. relating to the shares of our common stock offered by this prospectus. This new equity distribution agreement replaces our prior equity distribution agreement with Citigroup Global Markets Inc. entered into on April 24, 2019, which had provided for a $63,000,000 at-the-market offering program that was never utilized and was scheduled to expire in January 2021. |
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An investment in our common stock involves risk. Before investing in our common stock, you should carefully consider the following risk factors, together with all the information included or incorporated by reference in this prospectus, including the risks discussed in our latest Annual Report on Form 20-F filed with the SEC and incorporated by reference into this prospectus. For more information, please read “Where You Can Find More Information” and “Incorporation of Documents by Reference” in this prospectus. In addition, you should read “Material United States Federal Income Tax Considerations” in this prospectus for a more complete discussion of expected material U.S. federal income tax consequences of owning and disposing of our common stock.
If any of these risks were to occur, our business, financial condition, operating results or cash flows could be materially adversely affected. The risks and uncertainties we have described are not the only ones we face.
Additional risks and uncertainties that are not yet identified may also materially harm our business, financial condition, operating results and cash flows. In that case, the trading price of our common stock could decline, you could lose all or part of your investment and our ability to pay dividends on shares of our common stock may be reduced or restricted.
U.S. tax authorities could treat us as a “passive foreign investment company,” which could have adverse U.S. federal income tax consequences to U.S. shareholders.
A non-U.S. entity treated as a corporation for U.S. federal income tax purposes will be treated as a “passive foreign investment company” (or PFIC) for such purposes in any taxable year in which, after taking into account the income and assets of the corporation and, pursuant to a “look-through” rule, any other corporation or partnership in which the corporation directly or indirectly owns at least 25% of the stock or equity interests (by value), either (i) at least 75% of its gross income consists of “passive income,” or (ii) at least 50% of the average value of the entity’s assets is attributable to assets that produce or are held for the production of “passive income.” For purposes of these tests, “passive income” includes dividends, interest, gains from the sale or exchange of investment property and rents and royalties other than rents and royalties that are received from unrelated parties in connection with the active conduct of a trade or business. By contrast, income derived from the performance of services does not constitute “passive income.”
There are legal uncertainties involved in determining whether the income derived from our and our look-through subsidiaries’ time-chartering activities constitutes rental income or income derived from the performance of services, including the decision in Tidewater Inc. v. United States, 565 F.3d 299 (5th Cir. 2009), which held that income derived from certain time-chartering activities should be treated as rental income rather than services income for purposes of a foreign sales corporation provision of the Internal Revenue Code of 1986, as amended (or the Code). However, the Internal Revenue Service (or the IRS) stated in an Action on Decision (AOD 2010-01) that it disagrees with, and will not acquiesce to, the way that the rental versus services framework was applied to the facts in the Tidewater decision, and in its discussion stated that the time charters at issue in Tidewater would be treated as producing services income for PFIC purposes. The IRS’s statement with respect to Tidewater cannot be relied upon or otherwise cited as precedent by taxpayers. Consequently, in the absence of any binding legal authority specifically relating to the statutory provisions governing PFICs, there can be no assurance that the IRS or a court would not follow the Tidewater decision in interpreting the PFIC provisions of the Code. Nevertheless, based on our and our look-through subsidiaries’ current assets and operations, we intend to take the position that we are not now and have never been a PFIC, and our counsel, Perkins Coie LLP, is of the opinion that it is more likely than not we are not a PFIC based on representations we have made to them regarding the composition of our and our look-through subsidiaries’ assets, source of income and nature of activities and operations. No assurance can be given, however, that the opinion of Perkins Coie LLP would be sustained by a court if contested by the IRS, or that we would not constitute a PFIC for any future taxable year if there were to be changes in our and our look-through subsidiaries’ assets, income or operations.
If the IRS were to determine that we are or have been a PFIC for any taxable year during which a U.S. Holder (as defined below under “Material United States Federal Income Tax Considerations”) held common stock, such U.S. Holder would face adverse U.S. federal income tax consequences. For a more comprehensive discussion regarding our status as a PFIC and the tax consequences to U.S. Holders if we are treated as a PFIC, please read “Material United States Federal Income Tax Considerations — United States Federal Income Taxation of U.S. Holders — Consequences of Possible PFIC Classification.”
We are subject to taxes, which reduces our cash flow.
We are subject to tax in certain jurisdictions in which we or our subsidiaries are organized, own assets or have operations, which reduces our cash flow. In computing our tax obligations in these jurisdictions, we are required to take various tax accounting and reporting positions, including in certain cases estimates, on matters that are not entirely free from doubt and for which we have not received rulings from the governing authorities. We cannot assure you that upon review of these positions, the applicable authorities will agree with our positions.
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A successful challenge by a tax authority could result in additional tax imposed on us or our subsidiaries, further reducing our cash flow. We have established reserves in our financial statements that we believe are adequate to cover our liability for any such additional taxes. We cannot assure you, however, that such reserves will be sufficient to cover any additional tax liability that may be imposed on our subsidiaries. In addition, changes in our operations or ownership could result in additional tax being imposed on us or on our subsidiaries in jurisdictions in which operations are conducted. For example, changes in the ownership of our stock may cause us to be unable to claim an exemption from U.S. federal income tax under Section 883 of the Code. If we were not exempt from tax under Section 883 of the Code, we would be subject to U.S. federal income tax on income we earn from voyages into or out of the United States, the amount of which is not within our complete control. In addition, we rely on an exemption to be deemed non-resident in Canada for Canadian tax purposes under subsection 250(6) of the Canada Income Tax Act for (i) corporations whose principal business is international shipping and that derive all or substantially all of their revenue from international shipping, and (ii) corporations that are holding companies that have over half of the cost base of their investments in eligible international shipping subsidiaries and receive substantially all of their revenue as dividends from those eligible international shipping subsidiaries exempt under subsection 250(6). If we were to cease to qualify for the subsection 250(6) exemption, we could be subject to Canadian income tax and also Canadian withholding tax on outbound distributions, which could have an adverse effect on our operating results. In addition, to the extent Teekay Corporation were to distribute dividends as a corporation determined to be resident in Canada, shareholders who are not resident in Canada for purposes of the Canada Income Tax Act would generally be subject to Canadian withholding tax in respect of such dividends paid by Teekay Corporation.
Typically, most of our and our subsidiaries time-charter and spot-voyage charter contracts require the charterer to reimburse us for a certain period of time in respect of taxes incurred as a consequence of the voyage activities of our vessels, while performing under the relevant charter. However, our rights to reimbursement under charter contracts may not survive for as long as the applicable statutes of limitations in the jurisdictions in which we operate. As such, we may not be able to obtain reimbursement from our charterers where any applicable taxes that are not paid before the contractual claim period has expired.
We intend to use the net proceeds from this offering of shares of our common stock, if any, after deducting the Agent’s commission and our offering expenses, for general corporate purposes, which may include, among other things, repaying a portion of our outstanding indebtedness.
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The following table sets forth our capitalization on a consolidated basis as of September 30, 2020.
The data in the table is derived from, and should be read in conjunction with, our historical financial statements, including accompanying notes, and the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” from our Report on Form 6-K for the nine months ended September 30, 2020, which is incorporated by reference herein.
| As of September 30, 2020 |
||||
| (in thousands) |
||||
| Cash and cash equivalents(1) |
$ | 376,563 | ||
| Restricted cash (including current and non-current) |
65,984 | |||
|
|
|
|||
| Total cash and restricted cash |
$ | 442,547 | ||
| Debt (including current portion) |
||||
| Short-term debt(2) |
20,000 | |||
| 9.25% Senior Notes due 2022(3) |
250,000 | |||
| 5.00% Convertible Senior Notes Due 2023(4) |
114,184 | |||
| Obligations related to finance leases(5) |
1,754,557 | |||
| Other long-term secured debt(5) |
1,274,913 | |||
| Other long-term unsecured debt(5) |
451,820 | |||
| Less unamortized discount and debt issuance costs |
(36,045 | ) | ||
|
|
|
|||
| Total debt(1) |
3,829,429 | |||
| Equity |
||||
| Common stock and additional paid-in capital |
1,056,113 | |||
| Accumulated deficit |
(507,462 | ) | ||
| Non-controlling interest |
2,033,112 | |||
| Accumulated other comprehensive (loss) |
(51,833 | ) | ||
|
|
|
|||
| Total equity |
2,529,930 | |||
| Total capitalization |
6,359,359 | |||
|
|
|
|||
| (1) | The following table reconciles our consolidated and Teekay Parent’s cash and cash equivalents and total debt, respectively, as of September 30, 2020. |
| As of September 30, 2020 | ||||||||||||
| (in thousands) |
Teekay consolidated |
Controlled Daughter Entities |
Teekay Parent |
|||||||||
| Cash and cash equivalents |
376,563 | 321,908 | 54,655 | |||||||||
|
|
|
|
|
|
|
|||||||
| Total debt |
3,829,429 | 3,483,251 | 346,178 | |||||||||
|
|
|
|
|
|
|
|||||||
| (2) | As of December 18, 2020, there was $10.0 million outstanding. |
| (3) | As of December 18, 2020, there was approximately $243.4 million in aggregate principal amount of 9.25% Senior Notes due 2022 outstanding. |
| (4) | As of December 18, 2020, there was approximately $112.2 million in aggregate principal amount of 5.00% Convertible Senior Notes due 2023 outstanding. |
| (5) | Amounts do not reflect borrowings and repayments subsequent to September 30, 2020. From September 30, 2020 to December 18, 2020, long-term debt increased by approximately $33 million due to unrealized foreign currency exchange losses relating to our Euro and NOK-denominated debt. |
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General
We may issue common stock or one or more distinct series of preferred stock from time to time. This section summarizes the material terms of our common stock and material terms that would be common to all series of our preferred stock. The following description of our common stock, preferred stock and provisions of our Amended and Restated Articles of Incorporation, as amended (or Articles), and our Amended and Restated Bylaws (or Bylaws), are summaries and are qualified by reference to our Articles and our Bylaws. A copy of our Articles is filed as an exhibit to our Annual Report on Form 20-F for the year ended December 31, 2019, which is incorporated by reference herein. A copy of our Bylaws is filed as an exhibit to our Report on Form 6-K filed with the SEC on May 27, 2020, which is incorporated by reference herein.
Our authorized capital stock consists of 725 million shares of common stock, with a par value of $0.001 per share and 25 million shares of preferred stock, with a par value of $1 per share. As of December 29, 2020, there were 101,108,886 shares of our common stock outstanding and no preferred shares outstanding.
Exchange Listing.
Shares of our common stock are listed on the NYSE, where they trade under the symbol “TK.”
Transfer Agent and Registrar.
Computershare Inc. serves as registrar and transfer agent for our common stock.
Common Stock
Each outstanding share of our common stock entitles its holder to one vote on all matters submitted to a vote of shareholders. Subject to preferences that may be applicable to any outstanding shares of our preferred stock, holders of common stock are entitled to receive ratably (based on number of shares held and participating in dividends, which could include one or more series of preferred shares) any dividends declared from time to time by our Board of Directors out of funds legally available therefor. Holders of our common stock generally do not have conversion, redemption or preemptive rights to subscribe for any of our securities. All outstanding shares of common stock are fully paid and nonassessable. The rights, preferences and privileges of holders of our common stock are subject to the rights of the holders of any shares of preferred stock that we may issue.
Preferred Stock
Our Board of Directors may from time to time, and without further action by our shareholders, direct the issuance of shares of preferred stock in one or more series and may, at the time of issuance, determine the rights, preference and limitations of each such series. Satisfaction of any dividend preferences of outstanding shares of preferred stock would reduce the amount of funds available for the payment of dividends on shares of common stock. Holders of shares of our preferred stock may be entitled to receive a preference payment in the event of any liquidation, dissolution or winding-up of Teekay Corporation before any payment is made to the holders of shares of our common stock. The voting, dividend, liquidation, redemption, conversion or other rights of any preferred stock we may issue could adversely affect the voting power and other rights of the holders of our common stock and may have the effect of decreasing the market price of our common stock. Under certain circumstances, the issuance of shares of our preferred stock may render more difficult or tend to discourage a merger, tender offer, proxy contest, the assumption of control by a holder of a large block of our securities or the removal of incumbent management.
Anti-Takeover Provisions
Preferred Stock Authorization.
As noted above, our Board of Directors, without shareholder approval, has the authority under our Articles to issue preferred stock with rights superior to the rights of the holders of common stock. As a result, preferred stock could be issued quickly and easily, could adversely affect the rights of holders of common stock and could be issued with terms calculated or which have a tendency to delay or prevent a change of control of Teekay Corporation or make removal of management more difficult.
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Shareholder Meetings, Quorum, Voting and Consents.
Our Bylaws establish advance notice procedures with respect to business brought before an annual meeting by a shareholder and the nomination of candidates for election as directors, other than nominations made by or at the direction of our Board of Directors. Under our Bylaws, unless otherwise prescribed by law, special meetings of the shareholders may be called only by our Board of Directors. The Company’s Bylaws provide that no business other than that stated in the notice of meeting may be transacted at any special meeting. Our Articles provide that a majority of the shares entitled to vote on any matter shall constitute a quorum at a meeting of shareholders, unless (a) the matter has been submitted to the shareholders at any meeting and recommended by a majority of our Continuing Directors (as defined in our Articles) or (b) the meeting is an election of directors, and all nominees for election as directors are recommended by a majority of Continuing Directors, in which case one-third of the shares entitled to vote on the matter shall constitute a quorum. In addition, under Marshall Islands law, unless the articles of incorporation provide otherwise (which ours do not), shareholder actions taken without a shareholder meeting or a vote must be taken by unanimous written consent of the shareholders entitled to vote with respect to the subject matter thereof. These provisions may have the effect of delaying or preventing consideration of certain shareholder proposals until the next annual meeting, if at all, unless a special meeting is called by our Board of Directors.
Election of Directors.
Our Bylaws provide for a “staggered board,” with our Board of Directors divided into three classes, as nearly equal in number as possible, and the directors in each class serving three-year terms and one class being elected each year by our shareholders. Vacancies on the Board of Directors are filled by our Board of Directors. Because this system of electing directors and filling vacancies generally makes it more difficult for shareholders to replace a majority of the Board of Directors, it may tend to discourage a third party from making a tender offer or otherwise attempting to gain control of us.
Other Matters
Sales of Assets, Mergers and Dissolution.
Under the Marshall Islands Business Corporations Act, the sale of all or substantially all of Teekay Corporation’s assets not made in the usual or regular course of Teekay Corporation’s business or the non-judicial dissolution and liquidation of Teekay Corporation is required to be approved by the holders of two-thirds of the outstanding shares of our capital stock entitled to vote on such matter or by a unanimous written consent of all holders of capital stock entitled to vote on the matter. In addition, the holders of one-half of the outstanding shares of capital stock entitled to vote may institute judicial dissolution proceedings in specified circumstances in accordance with the Marshall Islands Business Corporations Act. In the event of the dissolution of Teekay Corporation, the holders of our common stock will be entitled to share pro rata (based on the total number of shares held and participating in distributions upon liquidation, which could include one or more series of preferred shares) in our net assets available for distribution, after payment to all creditors and the liquidation preferences of any of our outstanding preferred stock.
Under the Marshall Islands Business Corporations Act, a merger or consolidation involving Teekay Corporation (other than with subsidiaries at least 90% of whose shares are owned by Teekay Corporation) is required to be approved by the holders of a majority of the outstanding shares of our capital stock entitled to vote on the matter.
A class of shares may be entitled to vote separately as a class on various corporate activities. The vote for such class will be determined by the Marshall Islands Business Corporations Act and, if applicable, our Articles and Bylaws.
Dissenters’ Rights of Appraisal and Payment.
Under the Marshall Islands Business Corporations Act, our shareholders have the right to dissent from various corporate actions, including certain mergers or sales of all or substantially all of our assets not made in the usual course of our business, and receive payment of the fair value of their shares. The right of a dissenting shareholder to receive payment of the fair value of such shareholder’s shares shall not be available for the shares of any class or series of stock, which shares, at the record date fixed to determine the shareholders entitled to receive notice of and to vote at the meeting of shareholders to act upon the agreement of merger or consolidation or any sale or exchange of all or substantially all of the property and assets of the corporation not made in the usual course of its business, were either (i) listed on a securities exchange or admitted for trading on an interdealer quotation system or (ii) held of record by more than 2,000 holders. In the event of any amendment of our Articles, a shareholder also has the right to dissent and receive payment for his or her shares if the amendment alters certain rights in respect of those shares. A condition for such payment is that the dissenting shareholders follow the procedures set forth in the Marshall Islands Business Corporations Act. In the event that we fail to agree with any dissenting shareholder(s) on a price for the shares, such procedures involve, among other things, the institution of court proceedings in either the Marshall Islands or the country where our shares are primarily traded, which is the United States. The value of the shares of a dissenting shareholder is fixed by the court after reference, if the court so elects, to the recommendations of a court-appointed appraiser.
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Amendment of Articles of Incorporation.
Under the Marshall Islands Business Corporations Act, amendments to the articles of incorporation of a Marshall Islands corporation generally may be authorized by vote of the holders of a majority of all outstanding shares entitled to vote. The approval of the holders of a majority of the outstanding shares of an adversely affected class or series of stock is also required for certain amendments.
Limitations on Ownership and Dividends.
Neither Marshall Islands law nor our Articles or Bylaws limit the right to own our securities, including the rights of non-resident or foreign shareholders to hold or exercise voting rights on the securities. Certain of our debt facilities, and Marshall Islands law, impose limitations on our ability to pay dividends.
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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a discussion of the material U.S. federal income tax considerations that may be relevant to prospective holders of our common stock and, unless otherwise noted in the following discussion, is the opinion of Perkins Coie LLP, our U.S. counsel, insofar as it relates to matters of U.S. federal income tax law and legal conclusions with respect to those matters. The opinion of our counsel is dependent on the accuracy of representations made by us to them, including descriptions of our operations contained herein. This discussion is based upon provisions of the Code, legislative history, applicable U.S. Treasury Regulations (or Treasury Regulations), judicial authority and administrative interpretations, all as in effect on the date of this prospectus, and which are subject to change, possibly with retroactive effect, or are subject to different interpretations. Changes in these authorities may cause the tax consequences to vary substantially from the consequences described below. Unless the context otherwise requires, references in this section to “we,” “our” or “us” are references to Teekay Corporation.
This discussion is limited to shareholders who hold their common stock as a capital asset for tax purposes. This discussion does not address all tax considerations that may be important to a particular shareholder in light of the shareholder’s circumstances, or to certain categories of shareholders that may be subject to special tax rules, such as:
| • | dealers in securities or currencies; |
| • | traders in securities that have elected the mark-to-market method of accounting for their securities; |
| • | persons whose functional currency is not the U.S. dollar; |
| • | persons holding our common stock as part of a hedge, straddle, conversion or other “synthetic security” or integrated transaction; |
| • | certain U.S. expatriates; |
| • | financial institutions; |
| • | insurance companies; |
| • | persons subject to the alternative minimum tax; |
| • | persons that actually or under applicable constructive ownership rules own 10% or more of our stock (by vote or value); and |
| • | entities that are tax-exempt for U.S. federal income tax purposes. |
If a partnership (including any entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds our common stock, the tax treatment of a partner generally will depend upon the status of the partner and the activities of the partnership. Partners in partnerships holding our common stock should consult their tax advisors to determine the appropriate tax treatment of the partnership’s ownership of our common stock.
No ruling has been or will be requested from the IRS regarding any matter affecting us or our shareholders. Instead, we will rely on the opinion of Perkins Coie LLP. Unlike a ruling, an opinion of counsel represents only that counsel’s legal judgment and does not bind the IRS or the courts. Accordingly, the opinions and statements made herein may not be sustained by a court if contested by the IRS.
This discussion does not address any U.S. estate tax considerations or tax considerations arising under the laws of any state, local or non-U.S. jurisdiction. Each shareholder is urged to consult its tax advisor regarding the U.S. federal, state, local, non-U.S. and other tax consequences of the ownership or disposition of our common stock.
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United States Federal Income Taxation of U.S. Holders
As used herein, the term U.S. Holder means a beneficial owner of our common stock that is, for U.S. federal income tax purposes: (i) a U.S. citizen or U.S. resident alien (or a U.S. Individual Holder), (ii) a corporation or other entity taxable as a corporation that was created or organized under the laws of the United States, any state thereof or the District of Columbia, (iii) an estate whose income is subject to U.S. federal income taxation regardless of its source, or (iv) a trust that either is subject to the supervision of a court within the United States and has one or more U.S. persons with authority to control all of its substantial decisions or has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person.
Distributions
Subject to the discussion of passive foreign investment companies (or PFICs) below, any distributions made by us to a U.S. Holder generally will constitute dividends, which may be taxable as ordinary income or “qualified dividend income” as described in more detail below, to the extent of our current and accumulated earnings and profits allocated to the U.S. Holder’s common stock, as determined under U.S. federal income tax principles. Distributions in excess of our current and accumulated earnings and profits allocated to the U.S. Holder’s common stock will be treated first as a nontaxable return of capital to the extent of the U.S. Holder’s tax basis in our common stock and thereafter as capital gain, which will be either long term or short term capital gain depending upon whether the U.S. Holder has held the common stock for more than one year. U.S. Holders that are corporations for U.S. federal income tax purposes generally will not be entitled to claim a dividends received deduction with respect to any distributions they receive from us. For purposes of computing allowable foreign tax credits for U.S. federal income tax purposes, dividends received with respect to our common stock will be treated as foreign source income and generally will be treated as “passive category income”.
Subject to holding period requirements and certain other limitations, dividends received with respect to our common stock by a U.S. Holder who is an individual, trust or estate (a Non-Corporate U.S. Holder) will be treated as “qualified dividend income” that is taxable to such Non-Corporate U.S. Holder at preferential capital gain tax rates provided that we are not classified as a PFIC for the taxable year during which the dividend is paid or the immediately preceding taxable year (we intend to take the position that we are not now and have never been classified as a PFIC, as discussed below). Any dividends received with respect to our common stock not eligible for these preferential rates will be taxed as ordinary income to a Non-Corporate U.S. Holder.
Special rules may apply to any “extraordinary dividend” paid by us. Generally, an extraordinary dividend is a dividend with respect to a share of common stock if the amount of the dividend is equal to or in excess of 10% of a common stockholder’s adjusted tax basis (or fair market value in certain circumstances) in such common stock. In addition, extraordinary dividends include dividends received within a one-year period that, in the aggregate, equal or exceed 20% of a stockholder’s adjusted tax basis (or fair market value in certain circumstances). If we pay an “extraordinary dividend” on our common stock that is treated as “qualified dividend income,” then any loss recognized by a Non-Corporate U.S. Holder from the sale or exchange of such common stock will be treated as long-term capital loss to the extent of the amount of such dividend.
Certain Non-Corporate U.S. Holders are subject to a 3.8% tax on certain investment income, including dividends. Non-Corporate U.S. Holders should consult their tax advisors regarding the effect, if any, of this tax on their ownership of our common stock.
Sale, Exchange or Other Disposition of Common Stock
Subject to the discussion of PFICs below, a U.S. Holder generally will recognize capital gain or loss upon a sale, exchange or other disposition of our common stock in an amount equal to the difference between the amount realized by the U.S. Holder from such sale, exchange or other disposition and the U.S. Holder’s tax basis in such stock. Subject to the discussion of extraordinary dividends above, such gain or loss generally will be treated as (i) long-term capital gain or loss if the U.S. Holder’s holding period is greater than one year at the time of the sale, exchange or other disposition, or short term capital gain or loss otherwise and (ii) U.S. source gain or loss, as applicable, for foreign tax credit purposes. Non-Corporate U.S. Holders may be eligible for preferential rates of U.S. federal income tax in respect of long-term capital gains. A U.S. Holder’s ability to deduct capital losses is subject to certain limitations.
Certain Non-Corporate U.S. Holders are subject to a 3.8% tax on certain investment income, including capital gains from the sale or other disposition of stock. Non-Corporate U.S. Holders should consult their tax advisors regarding the effect, if any, of this tax on their disposition of our common stock.
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Consequences of Possible PFIC Classification
A non-U.S. entity treated as a corporation for U.S. federal income tax purposes will be treated as a PFIC in any taxable year in which, after taking into account the income and assets of the corporation and, pursuant to a “look-through” rule, any other corporation or partnership in which the corporation directly or indirectly owns at least 25% of the stock or equity interests (by value), either: (a) at least 75% of its gross income is “passive” income; or (b) at least 50% of the average value of its assets is attributable to assets that produce or are held for the production of passive income. For purposes of these tests, “passive income” includes dividends, interest, gains from the sale or exchange of investment property and rents and royalties (other than rents and royalties that are received from unrelated parties in connection with the active conduct of a trade or business). By contrast, income derived from the performance of services does not constitute “passive income.”
There are legal uncertainties involved in determining whether the income derived from our and our look-through subsidiaries’ time-chartering activities constitutes rental income or income derived from the performance of services, including legal uncertainties arising from the decision in Tidewater Inc. v. United States, 565 F.3d 299 (5th Cir. 2009), which held that income derived from certain time-chartering activities should be treated as rental income rather than services income for purposes of a foreign sales corporation provision of the Code. However, the IRS stated in an Action on Decision (AOD 2010-01) that it disagrees with, and will not acquiesce to, the way that the rental versus services framework was applied to the facts in the Tidewater decision, and in its discussion stated that the time charters at issue in Tidewater would be treated as producing services income for PFIC purposes. The IRS’s statement with respect to Tidewater cannot be relied upon or otherwise cited as precedent by taxpayers. Consequently, in the absence of any binding legal authority specifically relating to the statutory provisions governing PFICs, there can be no assurance that the IRS or a court would not follow the Tidewater decision in interpreting the PFIC provisions of the Code. Moreover, the market value of our common stock and our publicly traded look-through subsidiaries may be treated as reflecting the value of our assets, and our publicly traded look-through subsidiaries’ assets, respectively, at any given time. Therefore, a decline in the market value of our common stock, or the stock of our publicly traded look-through subsidiaries, which is not within our control, may impact the determination of whether we are a PFIC. Nevertheless, based on our and our look-through subsidiaries’ current assets and operations, we intend to take the position that we are not now and have never been a PFIC, and our counsel, Perkins Coie LLP, is of the opinion that it is more likely than not that we are not a PFIC based on applicable law, including the Code, legislative history, published revenue rulings and court decisions, and representations we have made to them regarding the composition of our and our look-through subsidiaries’ assets, source of income and nature of activities and other operations, including (for purposes of the description below, references to “our” and “us” include our pro rata share of our look-through subsidiaries):
| • | the total payments due to us under each of our time charters are substantially in excess of the current bareboat charter rate for comparable vessels; |
| • | the income derived from our participation in revenue sharing arrangements, and from our other time and voyage charters will be greater than 25% of our total gross income at all relevant times; and |
| • | the gross value of our vessels participating in revenue sharing arrangements, and servicing our other time and voyage charters will exceed the gross value of all other assets we own at all relevant times. |
An opinion of counsel represents only that counsel’s best legal judgment and does not bind the IRS or the courts. Accordingly, the opinion of Perkins Coie LLP may not be sustained by a court if contested by the IRS. No assurance can be given that the IRS or a court of law will accept our position or that we would not constitute a PFIC for any future taxable year if there were to be changes in our or our look-through subsidiaries’ assets, income or operations.
As discussed more fully below, if we were to be treated as a PFIC for any taxable year, a U.S. Holder generally would be subject to different taxation rules depending on whether the U.S. Holder makes a timely and effective election to treat us as a “qualified electing fund” (or a QEF election). As an alternative to making a QEF election, a U.S. Holder should be able to make a “mark-to-market” election with respect to our common stock, as discussed below.
Taxation of U.S. Holders Making a Timely QEF Election
A U.S. Holder who makes a timely QEF election (an Electing Holder) must report the Electing Holder’s pro rata share of our ordinary earnings and net capital gain, if any, for each taxable year for which we are a PFIC that ends with or within the Electing Holder’s taxable year, regardless of whether or not the Electing Holder received distributions from us in that year. Such income inclusions would not be eligible for the preferential tax rates applicable to qualified dividend income. The Electing Holder’s adjusted tax basis in our common stock will be increased to reflect taxed but undistributed earnings and profits. Distributions of earnings and profits that were previously taxed will result in a corresponding reduction in the Electing Holder’s adjusted tax basis in our common stock and will not be taxed again once distributed. An Electing Holder generally will recognize capital gain or loss on the sale, exchange or other disposition of our common stock. A U.S. Holder makes a QEF election with respect to any year that we are a PFIC by filing IRS Form 8621 with the U.S. Holder’s timely filed U.S. federal income tax return (including extensions).
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If a U.S. Holder has not made a timely QEF election with respect to the first year in the U.S. Holder’s holding period of our common stock during which we qualified as a PFIC, the U.S. Holder may be treated as having made a timely QEF election by filing a QEF election with the U.S. Holder’s timely filed U.S. federal income tax return (including extensions) and, under the rules of Section 1291 of the Code, a “deemed sale election” to include in income as an “excess distribution” (described below) the amount of any gain that the U.S. Holder would otherwise recognize if the U.S. Holder sold the U.S. Holder’s common stock on the “qualification date.” The qualification date is the first day of our taxable year in which we qualified as a “qualified electing fund” with respect to such U.S. Holder. In addition to the above rules, under very limited circumstances, a U.S. Holder may make a retroactive QEF election if the U.S. Holder failed to file the QEF election documents in a timely manner. If a U.S. Holder makes a timely QEF election for one of our taxable years, but did not make such election with respect to the first year in the U.S. Holder’s holding period of our common stock during which we qualified as a PFIC and the U.S. Holder did not make the deemed sale election described above, the U.S. Holder also will be subject to the more adverse rules described below.
A U.S. Holder’s QEF election will not be effective unless we annually provide the U.S. Holder with certain information concerning our income and gain, calculated in accordance with the Code, to be included with the U.S. Holder’s U.S. federal income tax return. We have not provided our U.S. Holders with such information in prior taxable years and do not intend to provide such information in the current taxable year. Accordingly, U.S. Holders will not be able to make an effective QEF election at this time. If, contrary to our expectations, we determine that we are or will be a PFIC for any taxable year, we will provide U.S. Holders with the information necessary to make an effective QEF election with respect to our common stock.
Taxation of U.S. Holders Making a “Mark-to-Market” Election
If we were to be treated as a PFIC for any taxable year and, as we anticipate, our common stock was treated as “marketable stock,” then, as an alternative to making a QEF election, a U.S. Holder would be allowed to make a “mark-to-market” election with respect to our common stock, provided the U.S. Holder completes and files IRS Form 8621 in accordance with the relevant instructions and related Treasury Regulations. If that election is made for the first year a U.S. Holder holds or is deemed to hold our common stock and for which we are a PFIC, the U.S. Holder generally would include as ordinary income in each taxable year that we are a PFIC the excess, if any, of the fair market value of the U.S. Holder’s common stock at the end of the taxable year over the U.S. Holder’s adjusted tax basis in the common stock. The U.S. Holder also would be permitted an ordinary loss in respect of the excess, if any, of the U.S. Holder’s adjusted tax basis in the common stock over the fair market value thereof at the end of the taxable year that we are a PFIC, but only to the extent of the net amount previously included in income as a result of the mark-to-market election. A U.S. Holder’s tax basis in our common stock would be adjusted to reflect any such income or loss recognized. Gain recognized on the sale, exchange or other disposition of our common stock in taxable years that we are a PFIC would be treated as ordinary income, and any loss recognized on the sale, exchange or other disposition of our common stock in taxable years that we are a PFIC would be treated as ordinary loss to the extent that such loss does not exceed the net mark-to-market gains previously included in income by the U.S. Holder. Because the mark-to-market election may not be applicable to marketable stock held indirectly through a foreign corporation that is not a controlled foreign corporation, however, it may not apply to a U.S. Holder’s indirect interest in any of our subsidiaries that were also determined to be PFICs.
If a U.S. Holder makes a mark-to-market election for one of our taxable years and we were a PFIC for a prior taxable year during which such U.S. Holder held our common stock and for which (a) we were not a QEF with respect to such U.S. Holder and (b) such U.S. Holder did not make a timely mark-to-market election, such U.S. Holder would also be subject to the more adverse rules described below in the first taxable year for which the mark-to-market election is in effect and also to the extent the fair market value of the U.S. Holder’s common stock exceeds the U.S. Holder’s adjusted tax basis in the common stock at the end of the first taxable year for which the mark-to-market election is in effect.
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Taxation of U.S. Holders Not Making a Timely QEF or Mark-to-Market Election
If we were to be treated as a PFIC for any taxable year, a U.S. Holder who does not make either a QEF election or a “mark-to-market” election for that year (a Non-Electing Holder) would be subject to special rules resulting in increased tax liability with respect to (a) any “excess distribution” (i.e., the portion of any distributions received by the Non-Electing Holder on our common stock in a taxable year in excess of 125% of the average annual distributions received by the Non-Electing Holder in the three preceding taxable years, or, if shorter, the Non-Electing Holder’s holding period for our common stock), and (b) any gain realized on the sale, exchange or other disposition of our common stock. Under these special rules:
| • | the excess distribution or gain would be allocated ratably over the Non-Electing Holder’s aggregate holding period for our common stock; |
| • | the amount allocated to the current taxable year and any taxable year prior to the taxable year we were first treated as a PFIC with respect to the Non-Electing Holder would be taxed as ordinary income in the current taxable year; |
| • | the amount allocated to each of the other taxable years would be subject to U.S. federal income tax at the highest rate of tax in effect for the applicable class of taxpayer for that year; and |
| • | an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year. |
Additionally, for each year during which a U.S. Holder holds our common stock, we are a PFIC, and the total value of all PFIC stock that such U.S. Holder directly or indirectly holds exceeds certain thresholds, such U.S. Holder will be required to file IRS Form 8621 with its annual U.S. federal income tax return to report its ownership of our common stock. In addition, if a Non-Electing Holder who is an individual dies while owning our common stock, such Non-Electing Holder’s successor generally would not receive a step-up in tax basis with respect to such common stock.
U.S. Holders are urged to consult their tax advisors regarding the PFIC rules, including the PFIC annual reporting requirements, as well as the applicability, availability and advisability of, and procedure for, making QEF, mark-to-market and other available elections with respect to us and our subsidiaries, and the U.S. federal income tax consequences of making such elections.
U.S. Return Disclosure Requirements for U.S. Individual Holders
U.S. Individual Holders who hold certain specified foreign financial assets, including stock in a foreign corporation that is not held in an account maintained by a financial institution, with an aggregate value in excess of $50,000 on the last day of a taxable year, or $75,000 at any time during that taxable year, may be required to report such assets on IRS Form 8938 with their U.S. federal income tax return for that taxable year. This reporting requirement does not apply to U.S. Individual Holders who report their ownership of our common stock under the PFIC annual reporting rules described above. Penalties apply for failure to properly complete and file IRS Form 8938. U.S. Individual Holders are encouraged to consult with their tax advisors regarding the possible application of this disclosure requirement to their investment in our common stock.
United States Federal Income Taxation of Non-U.S. Holders
A beneficial owner of our common stock (other than a partnership, including any entity or arrangement treated as a partnership for U.S. federal income tax purposes) that is not a U.S. Holder is a Non-U.S. Holder.
Distributions
In general, a Non-U.S. Holder will not be subject to U.S. federal income tax on distributions received from us with respect to our common stock unless the distributions are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, are attributable to a permanent establishment that the Non-U.S. Holder maintains in the United States). If a Non-U.S. Holder is engaged in a trade or business within the United States and the distributions are deemed to be effectively connected to that trade or business (and, if required by an applicable income tax treaty, are attributable to a permanent establishment that the Non-U.S. Holder maintains in the United States), the Non-U.S. Holder generally will be subject to U.S. federal income tax on those distributions in the same manner as if it were a U.S. Holder. In addition, a Non-U.S. Holder that is a foreign corporation for U.S. federal income tax purposes may be subject to branch profits tax at a rate of 30% (or lower applicable treaty rate) on the after-tax earnings and profits attributable to such distributions.
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Sale, Exchange or Other Disposition of Common Stock
In general, a Non-U.S. Holder is not subject to U.S. federal income tax on any gain resulting from the disposition of our common stock unless (i) such gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment that the Non-U.S. Holder maintains in the United States) or (ii) the Non-U.S. Holder is an individual who is present in the United States for 183 days or more during the taxable year in which such disposition occurs and meets certain other requirements. If a Non-U.S. Holder is engaged in a trade or business within the United States and the disposition of our common stock is deemed to be effectively connected to that trade or business (and, if required by an applicable income tax treaty, are attributable to a permanent establishment that the Non-U.S. Holder maintains in the United States), the Non-U.S. Holder generally will be subject to U.S. federal income tax on the resulting gain in the same manner as if it were a U.S. Holder. In addition, a Non-U.S. Holder that is a foreign corporation for U.S. federal income tax purposes may be subject to branch profits tax at a rate of 30% (or lower applicable treaty rate) on the after-tax earnings and profits attributable to such gain.
Information Reporting and Backup Withholding
In general, distributions taxable as dividends with respect to, or the proceeds from a sale, redemption or other taxable disposition of, our common stock held by a Non–Corporate U.S. Holder will be subject to information reporting requirements, unless such distribution taxable as a dividend is paid and received outside the United States by a non-U.S. payor or non-U.S. middleman (within the meaning of U.S. Treasury Regulations), or such proceeds are effected through an office outside the U.S. of a broker that is considered a non-U.S. payor or non-U.S. middleman (within the meaning of U.S. Treasury Regulations). These amounts also generally will be subject to backup withholding if the Non–Corporate U.S. Holder:
| • | fails to timely provide an accurate taxpayer identification number; |
| • | is notified by the IRS that it has failed to report all interest or distributions required to be shown on its U.S. federal income tax returns; or |
| • | in certain circumstances, fails to comply with applicable certification requirements. |
Information reporting and backup withholding generally will not apply to distributions taxable as dividends on our common stock to a Non–U.S. Holder if such dividend is paid and received outside the United States by a non-U.S. payor or non-U.S. middleman (within the meaning of U.S. Treasury Regulations) or the Non-U.S. Holder properly certifies under penalties of perjury as to its non-U.S. status (generally on IRS Form W-8BEN, W-8BEN-E, W-8ECI, or W-8EXP, as applicable) and certain other conditions are met or the Non-U.S. Holder otherwise establishes an exemption.
Payment of proceeds to a Non-U.S. Holder from a sale, redemption or other taxable disposition of our common stock to or through the U.S. office of a broker, or through a broker that is considered a U.S. payor or U.S. middleman (within the meaning of U.S. Treasury Regulations), generally will be subject to information reporting and backup withholding, unless the Non-U.S. Holder properly certifies under penalties of perjury as to its non-U.S. status (generally on IRS Form W-8BEN, W-8BEN-E, W-8ECI, or W-8EXP, as applicable) and certain other conditions are met or the Non-U.S. Holder otherwise establishes an exemption.
Backup withholding is not an additional tax. Rather, a Non-Corporate U.S. Holder or Non-U.S. Holder generally may obtain a credit for any amount withheld against its liability for U.S. federal income tax (and obtain a refund of any amounts withheld in excess of such liability) by accurately completing and timely filing a U.S. federal income tax return with the IRS.
NON-UNITED STATES TAX CONSIDERATIONS
The following discussion is based upon the opinion of Watson Farley & Williams LLP, our counsel as to matters of the laws of the Republic of the Marshall Islands, and the current laws of the Republic of the Marshall Islands and is applicable only to persons who do not reside in, maintain offices in or engage in business, operations or transactions in the Republic of the Marshall Islands and are not citizens of the Republic of the Marshall Islands.
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Because we and our subsidiaries do not, and we do not expect that we or any of our subsidiaries will, conduct business, transactions or operations in the Republic of the Marshall Islands, and because all documentation related to this offering will be executed outside of the Republic of the Marshall Islands, under current Marshall Islands law holders of our common stock will not be subject to Marshall Islands taxation or withholding on dividends. In addition, holders of our common stock will not be subject to Marshall Islands stamp, capital gains or other taxes on the purchase, ownership or disposition of shares of common stock, and you will not be required by the Republic of the Marshall Islands to file a tax return relating to the shares of common stock.
It is the responsibility of each shareholder to investigate the legal and tax consequences, under the laws of pertinent jurisdictions, including the Marshall Islands, of its investment in us. Accordingly, each shareholder is urged to consult its tax counsel or other advisor with regard to those matters. Further, it is the responsibility of each shareholder to file all state, local and non-U.S., as well as U.S. federal, tax returns which may be required of such shareholder.
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We have entered into an equity distribution agreement with Citigroup Global Markets Inc., or the “Agent,” under which we may offer and sell shares of common stock having an aggregate offering price of up to $65,000,000 from time to time through the Agent, as our sales agent. We have filed the equity distribution agreement as an exhibit to the registration statement of which this prospectus is part. The sales, if any, of shares of our common stock made under the equity distribution agreement will be made by means of ordinary brokers’ transactions on the NYSE at market prices, in block transactions, or as otherwise agreed upon by the Agent and us. As sales agent, the Agent will not engage in any transactions that stabilize the price of our common stock.
This new equity distribution agreement replaces our prior equity distribution agreement with Citigroup Global Markets Inc. entered into on April 24, 2019, which had provided for a $63,000,000 at-the-market offering program that was never utilized and was scheduled to expire in January 2021.
Under the terms of the equity distribution agreement, we also may sell shares of our common stock to the Agent as principal for its own account at a price agreed upon at the time of sale. If we sell shares of our common stock to the Agent as principal, we will enter into a separate agreement with the Agent, and we will describe this agreement in a separate prospectus supplement or pricing supplement.
We will designate the maximum amount of common stock to be sold through the Agent on a daily basis or otherwise as we and the Agent agree and the minimum price per share at which such common stock may be sold. Subject to the terms and conditions of the equity distribution agreement, the Agent will use its reasonable efforts to sell on our behalf all of the designated shares of common stock. We may instruct the Agent not to sell any common stock if the sales cannot be effected at or above the price designated by us in any such instruction. We or the Agent may suspend the offering of common stock at any time and from time to time by notifying the other party.
The Agent will provide to us written confirmation following the close of trading on the NYSE each day on which common stock is sold under the equity distribution agreement. Each confirmation will include the number of shares sold on that day, the gross sales proceeds, the net proceeds to us (after regulatory transaction fees, if any, but before other expenses) and the compensation payable by us to the Agent. We will report at least quarterly the number of shares sold through the Agent under the equity distribution agreement, the net proceeds to us (before expenses) and the compensation paid by us to the Agent in connection with the sales of common stock.
We will pay the Agent a commission of up to 2% of the gross sales price per share sold through it as our agent under the equity distribution agreement. We have agreed to reimburse the Agent for certain of its expenses.
Settlement for sales of shares of our common stock will occur on the second business day following the date on which any sales were made in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
If we or the Agent have reason to believe that our common stock is no longer an “actively-traded security” as defined under Rule 101(c)(l) of Regulation M under the U.S. Securities Exchange Act of 1934, as amended, that party will promptly notify the other and sales of common stock pursuant to the equity distribution agreement or any terms agreement will be suspended until in our collective judgment Rule 101(c)(1) or another exemptive provision has been satisfied.
The offering of shares of our common stock pursuant to the equity distribution agreement will terminate upon the earlier of (1) the sale of all common stock subject to the equity distribution agreement and (2) the termination of the equity distribution agreement by us or by the Agent.
In connection with the sale of the shares of our common stock on our behalf, the Agent may be deemed to be an “underwriter” within the meaning of the Securities Act of 1933, as amended (or the Securities Act), and the compensation paid to the Agent may be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to the Agent against certain liabilities, including liabilities under the Securities Act.
Citigroup Global Markets Inc. and its affiliates have, from time to time, performed, and may in the future perform, various financial advisory and commercial and investment banking services for us and our affiliates, for which they have received and in the future will receive customary compensation and expense reimbursement. Affiliates of Citigroup Global Markets Inc. are lenders under certain of our and our affiliates’ credit facilities, including the Margin Loan Agreement, dated September 29, 2020. To the extent we use proceeds from this offering to repay indebtedness under our credit facilities, affiliates of Citigroup Global Markets Inc. may receive a portion of the proceeds from this offering.
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SERVICE OF PROCESS AND ENFORCEMENT OF CIVIL LIABILITIES
Teekay Corporation is a Republic of the Marshall Islands corporation. The Republic of the Marshall Islands has a less developed body of securities laws as compared to the United States and provides protections for investors to a significantly lesser extent.
Most of our directors and officers and those of our controlled affiliates are residents of countries other than the United States. Substantially all of our and our subsidiaries’ assets and a substantial portion of the assets of our directors and officers are located outside of the United States. As a result, it may be difficult or impossible for United States investors to effect service of process within the United States upon us, our subsidiaries or our directors and officers or to realize against us or them judgments obtained in United States courts, including judgments predicated upon the civil liability provisions of the securities laws of the United States or any state in the United States.
Watson Farley & Williams LLP, our counsel as to Marshall Islands law, has advised us that there is uncertainty as to whether the courts of the Republic of the Marshall Islands would (1) recognize or enforce against us or our directors and officers judgments of courts of the United States based on civil liability provisions of applicable U.S. federal and state securities laws or (2) impose liabilities against us or our directors and officers or those of our controlled affiliates in original actions brought in the Republic of the Marshall Islands, based on these laws.
Certain legal matters will be passed upon for us by Perkins Coie LLP, Portland, Oregon. The validity of the shares of our common stock offered hereby and certain other legal matters with respect to the laws of the Republic of the Marshall Islands will be passed upon for us by Watson Farley & Williams LLP. Baker Botts L.L.P., Washington, D.C., will pass upon certain legal matters in connection with the offering on behalf of the Agent.
The consolidated financial statements of Teekay Corporation as of December 31, 2019 and 2018, and for each of the years in the three-year period ended December 31, 2019, and management’s assessment of the effectiveness of internal control over financial reporting of Teekay Corporation as of December 31, 2019, have been incorporated by reference herein in reliance upon the reports of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
KPMG LLP’s audit report on the 2019 consolidated financial statements includes an explanatory paragraph that states, without qualifying KPMG LLP’s opinion, that as discussed in Note 1 to the consolidated financial statements, Teekay Corporation has changed its accounting policies as of January 1, 2018 for revenue recognition due to adoption of ASU 2014-09 — Revenue from Contracts with Customers, and has changed its accounting policies as of January 1, 2019 for leases due to the adoption of ASU 2016-02 — Leases and for hedge accounting due to the adoption of ASU 2017-12 — Derivatives and Hedging – Targeted Improvements to Accounting for Hedging Activities.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form F-3 regarding the securities covered by this prospectus. This prospectus does not contain all of the information found in the registration statement. For further information regarding us and the securities offered in this prospectus, you may wish to review the full registration statement, including its exhibits. In addition, we file and furnish annual and other reports with the SEC. The SEC maintains a website that contains reports and other information about issuers, like us, that file electronically with the SEC. The address of that website is www.sec.gov. You can also obtain information about us at the offices of the New York Stock Exchange, Inc., 11 Wall Street, New York, New York 10005.
As a foreign private issuer, we are exempt under the Exchange Act from, among other things, certain rules prescribing the furnishing and content of proxy statements, and our executive officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act, including the filing of quarterly reports or current reports on Form 8-K. However, we intend to make available quarterly reports containing our unaudited interim financial information for the first three fiscal quarters of each fiscal year.
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This prospectus is part of a registration statement on Form F-3 filed by us with the SEC under the Securities Act. As permitted by the SEC, this prospectus does not contain all the information in the registration statement filed with the SEC. For a more complete understanding of this offering, you should refer to the complete registration statement (including exhibits) on Form F-3 that may be obtained from the locations described above. Statements contained in this prospectus or in any prospectus supplement about the contents of any contract or other document are not necessarily complete. If we have filed any contract or other document as an exhibit to the registration statement or any other document incorporated by reference in the registration statement, you should read the exhibit for a more complete understanding of the document or matter involved. Each statement regarding a contract or other document is qualified in its entirety by reference to the actual document.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” into this prospectus information that we file with the SEC. This means that we can disclose important information to you without actually including the specific information in this prospectus by referring you to other documents filed separately with the SEC. The information incorporated by reference is an important part of this prospectus. Information that we later provide to the SEC, and which is deemed to be “filed” with the SEC, automatically will update information previously filed with the SEC, and may replace information in this prospectus.
We incorporate by reference into this prospectus the documents listed below:
| • | our Annual Report on Form 20-F for the fiscal year ended December 31, 2019; |
| • | all subsequent Annual Reports on Form 20-F filed with the SEC prior to the termination of this offering; |
| • | our Reports on Form 6-K filed with the SEC on May 15, 2020, May 27, 2020, May 29, 2020, August 27, 2020, November 24, 2020 and December 29, 2020; |
| • | all reports on Form 6-K that we expressly identify in such reports as being incorporated by reference into the registration statement of which this prospectus is a part, that we file with or furnish to the SEC pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act subsequent to the date of this prospectus and prior to completion of this offering; and |
| • | the description of our common stock contained in our Registration Statement on Form 8-A filed on February 11, 2003, including any subsequent amendments or reports filed for the purpose of updating such descriptions. |
These reports contain important information about us, our financial condition and our results of operations. You may obtain any of the documents incorporated by reference in this prospectus from the SEC through its public reference facilities or its website at the addresses provided above. You also may request a copy of any document incorporated by reference in this prospectus (excluding any exhibits to those documents, unless the exhibit is specifically incorporated by reference in this document), at no cost, by visiting our internet website at www.teekay.com, or by writing or calling us at the following address:
Teekay Corporation
4th Floor, Belvedere Building,
69 Pitts Bay Road
Hamilton HM 08, Bermuda
Attn: Corporate Secretary
(441) 298-2530
In reviewing any agreements included as exhibits to the registration statement relating to the shares of common stock covered by this prospectus or to other SEC filings incorporated by reference into this prospectus, please be aware that these agreements are attached as exhibits to provide you with information regarding their terms and are not intended to provide any other factual or disclosure information about us or the other parties to the agreements. The agreements may contain representations and warranties by each of the parties to the applicable agreement, which representations and warranties may have been made solely for the benefit of the other parties to the applicable agreement and, as applicable:
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| • | should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; |
| • | have been qualified by disclosures that may have been made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement; |
| • | may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and |
| • | were made only as of the date of the applicable agreement (or such other date or dates as may be specified in the agreement) and are subject to more recent developments. |
Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time and should not be relied upon by investors in considering whether to invest in our securities.
The following table sets forth costs and expenses we expect to incur in connection with the issuance and distribution of our common stock covered by this prospectus. All amounts are estimated except the SEC registration fee.
| U.S. Securities and Exchange Commission registration fee |
$ | 8,029 | * | |
| Legal fees and expenses |
$ | 95,000 | ||
| Accounting fees and expenses |
$ | 20,000 | ||
| Printing costs |
$ | 25,000 | ||
| Miscellaneous |
$ | 1,971 | ||
|
|
|
|||
| Total |
$ | 150,000 | ||
|
|
|
*$7,810 of which has been previously paid.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 8. Indemnification of Directors and Officers
The Marshall Islands Business Corporations Act restricts corporations from limiting or eliminating the personal liability of directors to corporations and their shareholders for monetary damages for certain breaches of directors’ fiduciary duties. Our Articles include a provision that eliminates the personal liability of directors for monetary damages for actions taken as a director to the fullest extent permitted by law.
Our bylaws also provide that we must indemnify our directors and officers to the fullest extent permitted by law. We are also expressly authorized to advance certain expenses (including attorneys’ fees) to our directors and officers and to carry directors’ and officers’ insurance providing indemnification for our directors and officers for some liabilities. We believe that these indemnification provisions and insurance are useful to attract and retain qualified directors and officers.
The limitation of liability and indemnification provisions in our Articles and Bylaws may discourage shareholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us and our shareholders. In addition, your investment may be adversely affected to the extent that we pay the costs of settlement and damage awards against our directors and officers pursuant to these indemnification provisions.
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ITEM 9. Exhibits and Financial Statement Schedules
(a) Exhibits
(b) Financial Statement Schedules.
All supplemental schedules are omitted because of the absence of conditions under which they are required or because the information is shown in the financial statements or notes thereto.
(c) Reports, Opinions, and Appraisals
The following reports, opinions and appraisals are included herein: None.
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ITEM 10. Undertakings
The Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
a. to include any prospectus required by section 10(a)(3) of the Securities Act of 1933, as amended (the Securities Act);
b. to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
c. to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, That: paragraphs 1(a), 1(b) and 1(c) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
4. To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by section 10(a)(3) of the Securities Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph 4 and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by section 10(a)(3) of the Securities Act or Item 8.A. of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
5. That, for the purpose of determining liability under the Securities Act to any purchaser:
a. each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
b. each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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6. That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
a. any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424;
b. any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant;
c. the portion of any other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and
d. any other communication that is an offer in the offering made by the Registrant to the purchaser.
The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vancouver on December 29, 2020.
| TEEKAY CORPORATION | ||
| By: | /s/ Kenneth Hvid | |
| Kenneth Hvid, President and Chief Executive Officer | ||
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Each person whose signature appears below appoints Kenneth Hvid and Vincent Lok, or either of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him and in his name or her and in her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or any of his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed on December 29, 2020 by the following persons in the following capacities:
| Signature | Title | |
| /s/ Kenneth Hvid Kenneth Hvid |
Director, President and Chief Executive Officer (Principal Executive Officer) | |
| /s/ Vincent Lok Vincent Lok |
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | |
| /s/ David Schellenberg David Schellenberg |
Director, Chairman of the Board | |
| /s/ Peter Antturi Peter Antturi |
Director | |
| /s/ Rudolph Krediet Rudolph Krediet |
Director | |
| /s/ Alan Semple Alan Semple |
Director | |
| /s/ Heidi Locke Simon Heidi Locke Simon |
Director | |
II-6
Table of Contents
SIGNATURE OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Teekay Corporation, has signed this registration statement in Newark, Delaware, on December 29, 2020.
| PUGLISI & ASSOCIATES | ||
| By: | /s/ Donald J. Puglisi | |
| Name: | Donald J. Puglisi | |
| Title: | Managing Director | |
II-7
Exhibit 1.1
Execution Version
TEEKAY CORPORATION
Common Stock
Having an Aggregate Offering Price of up to
$65,000,000
Equity Distribution Agreement
December 29, 2020
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York, 10013
Ladies and Gentlemen:
Teekay Corporation is a Marshall Islands corporation (the “Company”). The Company and the Operating Subsidiaries (as defined below) are hereinafter referred to collectively as the “Teekay Entities.” The Company confirms its agreement (this “Agreement”) with Citigroup Global Markets Inc. (the “Manager”) as follows:
1. Description of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal, common stock of the Company, par value $0.001 per share (the “Common Stock”), having an aggregate gross sales price of up to $65,000,000 (the “Shares”), from time to time during the term of this Agreement and on the terms set forth in Section 3 of this Agreement. For avoidance of doubt, the capitalized term “Shares” as used in this Agreement refers only to the Common Stock to be sold pursuant to this Agreement. For purposes of selling the Shares through the Manager, the Company hereby appoints the Manager as exclusive agent of the Company for the purpose of soliciting purchases of the Shares from the Company pursuant to this Agreement and the Manager agrees to use its reasonable efforts to solicit purchases of the Shares on the terms and subject to the conditions stated herein. The Company agrees that whenever it determines to sell the Shares directly to the Manager as principal, the Company’s board of directors (the “Board”) will authorize entry into a separate agreement (each, a “Terms Agreement”) in substantially the form of Annex B hereto, relating to such sale in accordance with Section 3 of this Agreement. Certain terms used herein are defined in Section 19 hereof.
2. Representations and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time as set forth below.
| 2.1 | Registration. The Company meets the requirements for use of Form F-3 under the Act and has prepared and filed with the Commission the Original Registration Statement, which was declared effective by the Commission on January 12, 2018. On the date hereof, the Company has made an initial filing with the Commission of a Replacement Registration Statement, which has not yet been declared effective by the Commission. Copies of the Registration Statement and each of the amendments thereto, if any, which are not publicly available at www.sec.gov have been delivered by the Company to you. |
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Any reference to the Base Prospectus, the Original Prospectus Supplement, any Replacement Prospectus Supplement, the Replacement Prospectus or the Prospectus shall be deemed to refer to and include any documents or information incorporated by reference therein pursuant to Item 6 of Form F-3 under the Act, as of the date of such Base Prospectus, the Original Prospectus Supplement, any Replacement Prospectus Supplement, the Replacement Prospectus or the Prospectus, as the case may be. Any reference to any amendment or supplement to the Base Prospectus, the Original Prospectus Supplement, any Replacement Prospectus Supplement, the Replacement Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Exchange Act, after the date of the Base Prospectus, the Original Prospectus Supplement, any Replacement Prospectus Supplement, the Replacement Prospectus or the Prospectus, as the case may be, and incorporated by reference in the Base Prospectus, the Original Prospectus Supplement, any Replacement Prospectus Supplement, the Replacement Prospectus or the Prospectus, as the case may be. Any reference to any amendment to the Original Registration Statement, the Replacement Registration Statement or the Registration Statement shall be deemed to include any periodic report of the Company filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date that is incorporated by reference in the Original Registration Statement, the Replacement Registration Statement or the Registration Statement, as the case may be.
The Commission has not issued any order preventing or suspending the use of the Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or examination for such purpose has been instituted or, to the knowledge of the Company, threatened by the Commission.
| 2.2 | Ineligible Issuer. At the time of filing each of the Original Registration Statement and the Replacement Registration Statement, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Act) of the Shares and at the date hereof, the Company was not and is not an “Ineligible Issuer” (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer. |
| 2.3 | Form of Documents. The Registration Statement conformed when filed and will conform in all material respects on each Effective Date, at the Execution Time, at each Applicable Time, at each Settlement Date and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 or any similar rule) in connection with any offer of Shares, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, with the applicable requirements of the Act and the rules and regulations thereunder. The Prospectus conformed or will conform in all material respects when filed with the Commission pursuant to Rule 424(b), and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 or any similar rule) in connection with any offer or sale of the Shares, to the requirements of the Act and the rules and regulations thereunder. The documents incorporated by reference in the Prospectus conformed, and any further documents so incorporated will conform, when filed with the Commission, in all material respects to the requirements of the Exchange Act or the Act, as applicable, and the rules and regulations of the Commission thereunder. |
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| 2.4 | No Material Misstatements or Omissions in the Registration Statement. The Registration Statement, as of each Effective Date, at the Execution Time, and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 or any similar rule) in connection with any offer or sale of Shares, did not and will not contain an 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; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Manager specifically for inclusion therein. |
| 2.5 | No Material Misstatements or Omissions in the Prospectus. The Prospectus, at the Execution Time, at each Applicable Date, on each Settlement Date and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 or any similar rule) in connection with any offer or sale of Shares, did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Manager specifically for inclusion therein. |
| 2.6 | No Material Misstatements or Omissions in Documents Incorporated by Reference. The documents incorporated by reference in the Prospectus did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
| 2.7 | Proceedings Under the Act. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection with the offering of the Shares. |
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| 2.8 | Regulation M Exceptions. The Common Stock is an “actively-traded security” exempted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule. |
| 2.9 | Other Sales Agency Agreements. The Company is not party to any other sales agency agreements or other similar arrangements with any agent or any other representative in respect of at the market offerings of the Shares in accordance with Rule 415(a)(4) of the Act. |
| 2.10 | Formation and Qualification. Each of the Teekay Entities has been duly formed, domesticated or incorporated and is validly existing as a limited partnership, limited liability company or corporation, as the case may be, in good standing under the laws of its respective jurisdiction of formation, domestication or incorporation, and is duly registered or qualified to do business and is in good standing as a foreign limited liability company, limited partnership or corporation, as the case may be, in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such registration or qualification, except where the failure so to register or qualify would not reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect,” as used throughout this Agreement, means a material adverse effect on the condition (financial or otherwise), results of operations, business, properties, assets or prospects of the Teekay Entities, taken as a whole, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). Each of the Teekay Entities has all limited liability company, limited partnership or corporate, as the case may be, power and authority necessary to own or lease its properties currently owned or leased or to be owned or leased at each Settlement Date, and to conduct its business in all material respects as described in the Registration Statement and the Prospectus. |
| 2.11 | Valid Issuance of the Shares. At each Settlement Date and each Time of Delivery, if any, the Shares to be issued and sold on such date will be duly authorized by the Company and, when issued and delivered to the Manager simultaneously with payment therefor in accordance with the terms hereof, will be (i) validly issued, (ii) not subject to any preemptive right, resale right, right of first refusal or similar right, (iii) fully paid and nonassessable, and (iv) will conform to the description thereof in the Registration Statement and the Prospectus. |
| 2.12 | Ownership of Teekay Holdings. The Company directly owns 100% of the equity interests in Teekay Holdings Limited, a Bermuda company (“Teekay Holdings”); such equity interests have been duly authorized and validly issued in accordance with the organizational documents of Teekay Holdings and are fully paid and nonassessable; and the Company owns such equity interests free and clear of all pledges, liens, encumbrances, security interests, charges, equities or other claims (collectively, “Liens”). |
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| 2.13 | Ownership of General Partner. Teekay Holdings directly owns a 100% membership interest in Teekay GP L.L.C., a limited liability company organized under the laws of the Marshall Islands (“TGP GP”); such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of TGP GP, as amended or restated on or prior to the date hereof (the “TGP GP LLC Agreement”), and is fully paid (to the extent required under the TGP GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 20, 31, 40 and 49 of the Marshall Islands Limited Liability Company Act of 1996 and except as may be provided in the TGP GP LLC Agreement); and Teekay Holdings owns such membership interest free and clear of all Liens. |
| 2.14 | Ownership of GP Interest in TGP. TGP GP is the sole general partner of Teekay LNG Partners L.P., a limited partnership organized under the laws of the Marshall Islands (“TGP”), with a 1.76% general partner interest in TGP (excluding any preferred units in such calculation); such general partner interest has been duly authorized and validly issued in accordance with the partnership agreement of TGP, as amended or restated on or prior to the date hereof (the “TGP LPA”); and TGP GP owns such general partner interest free and clear of all Liens (except restrictions on transferability contained in the TGP LPA or under applicable securities laws). |
| 2.15 | Ownership of Sponsor Interests in TGP and Tankers. |
| a) | The Company indirectly owns 35,958,274 common units representing limited partner interests in TGP (the “TGP Sponsor Units”), free and clear of all Liens, except (i) restrictions on transferability contained in the TGP LPA or under applicable securities laws, (ii) pursuant to the Margin Loan Agreement dated as of September 29, 2020 by and among Teekay Finance Limited, the lenders party thereto, and Citibank, N.A., as administrative agent (the “Margin Loan Agreement”) and (iii) pursuant to the Company’s 9.250% Senior Secured Notes due 2022 (the “2022 Secured Notes”). |
| b) | The Company indirectly owns 4,625,997 shares of Class B Common Stock, $0.01 par value, of Teekay Tankers Ltd., a corporation incorporated under the laws of the Marshall Islands (“Tankers”), and 5,036,306 shares of Class A Common Stock of Tankers. All such shares of Class A Common Stock and Class B Common Stock (collectively, the “Tankers Sponsor Shares”) have been duly authorized and are validly issued, fully paid and nonassessable; and, as applicable, the Company indirectly owns all such Tankers Sponsor Shares free and clear of all Liens, except (i) restrictions on transferability under applicable securities laws, (ii) pursuant to the Margin Loan Agreement and (iii) pursuant to the 2022 Secured Notes. |
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| 2.16 | Ownership of TGP Operating Company. TGP owns a 100% membership interest in Teekay LNG Operating L.L.C., a Marshall Islands limited liability company (“TGP Operating Company”); such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of TGP Operating Company, as amended or restated on or prior to the date hereof (the “TGP Operating Company LLC Agreement”), and is fully paid (to the extent required under the TGP Operating Company LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 20, 31, 40 and 49 of the Marshall Islands Limited Liability Company Act of 1996 and except as may be provided in the TGP Operating Company LLC Agreement); and TGP owns such membership interest free and clear of all Liens, except for Liens pursuant to credit agreements and related security agreements disclosed or referred to in the Registration Statement and Prospectus. |
2.17 Ownership of Operating Subsidiaries.
| a) | TGP Operating Company owns, directly or indirectly, the equity interests in each of the entities set forth in Schedule I-A (the “TGP Operating Subsidiaries”) as described on Schedule I-A; such equity interests owned by TGP Operating Company are duly authorized and validly issued in accordance with the respective organizational documents of each TGP Operating Subsidiary, as amended or restated on or prior to the date hereof (the “TGP Operating Subsidiaries’ Organizational Documents”), and are fully paid (to the extent required under the TGP Operating Subsidiaries’ Organizational Documents) and, with respect to interests that are not general partner interests, nonassessable (except as such nonassessability may be affected by the applicable statutes of the jurisdiction of formation of the applicable TGP Operating Subsidiary and except as may be provided in the TGP Operating Subsidiaries’ Organizational Documents); and TGP Operating Company owns such equity interests free and clear of all Liens, except for Liens pursuant to credit agreements and related security agreements disclosed or referred to in the Registration Statement and Prospectus. |
| b) | Tankers owns, directly or indirectly, the equity interests in each of the entities set forth in Schedule I-B (the “Tankers Operating Subsidiaries”) as described on Schedule I-B; such equity interests are duly authorized and validly issued in accordance with the respective organizational documents of each Tankers Operating Subsidiary, as amended or restated on or prior to the date hereof (the “Tankers Operating Subsidiaries’ Organizational Documents”), and are fully paid (to the extent required under the Tankers Operating Subsidiaries’ Organizational Documents) and, with respect to interests that are not general partner interests, nonassessable (except as such nonassessability may be affected by the applicable statutes of the jurisdiction of formation of the applicable Tankers Operating Subsidiary and except as may be provided in the Tankers Operating Subsidiaries’ Organizational Documents); and Tankers owns such equity interests free and clear of all Liens, except for Liens pursuant to credit agreements and related security agreements disclosed or referred to in the Registration Statement and Prospectus. |
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| c) | The Company owns, directly or indirectly, the equity interests in each of the entities set forth in Schedule I-C (the “Company Operating Subsidiaries”) as described on Schedule I-C; such equity interests are duly authorized and validly issued in accordance with the respective organizational documents of each Company Operating Subsidiary, amended or restated on or prior to the date hereof (the “Company Operating Subsidiaries’ Organizational Documents”), and are fully paid (to the extent required under the Company Operating Subsidiaries’ Organizational Documents) and, with respect to interests that are not general partner interests, nonassessable (except as such nonassessability may be affected by the applicable statutes of the jurisdiction of formation of the applicable Company Operating Subsidiary and except as may be provided in the Company Operating Subsidiaries’ Organizational Documents); and the Company owns such equity interests free and clear of all Liens, other than Liens pursuant to credit agreements and related security agreements disclosed or referred to in the Registration Statement and the Prospectus (including Liens incurred pursuant to the 2022 Secured Notes). |
| 2.18 | No Other Subsidiaries. Other than its interests in (i) Teekay Holdings, (ii) Teekay Finance Limited (iii) TGP GP, (iv) TGP, (v) Tankers, (vi) TGP Operating Company, (vii) the TGP Operating Subsidiaries, (viii) the Tankers Operating Subsidiaries and (ix) the Company Operating Subsidiaries ((i) through (ix), collectively, the “Operating Subsidiaries”), the Company does not own, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity except as described in the Registration Statement and the Prospectus and except for entities that do not, directly or indirectly, own any vessels or conduct any operations. |
| 2.19 | No Preemptive Rights or Options. Except as described in the Registration Statement, the Prospectus and the TGP LPA, there are no preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any equity interests of the Teekay Entities, except in relation to the Teekay Entities that are not wholly owned, and except as provided in Section 78 of the Marshall Islands Business Corporations Act. Except as described in the Registration Statement, the Prospectus and the TGP LPA, and except in relation to the Operating Subsidiaries that are not wholly owned, there are no outstanding options or warrants to purchase any Common Stock or other interests in the Company or, to the Company’s knowledge, any equity interests in any Operating Subsidiary. |
| 2.20 | No Registration Rights. No holder of securities of the Company has rights to the registration of such securities under the Registration Statement, except for any rights pursuant to the Registration Rights Agreement among Teekay Corporation, Tradewinds Trust Co. Ltd., as Trustee for the Cirrus Trust, and Worldwide Trust Services Ltd., as Trustee for the JTK Trust (the “Registration Rights”), which Registration Rights have been waived or do not apply with respect to the offering and sale of the Shares. |
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| 2.21 | Capitalization. The issued and outstanding equity interests of the Company consist of the number of shares of Common Stock specified in the Prospectus, as adjusted for the sale of any Shares pursuant to this Agreement or any Terms Agreement and any equity awards granted under or exercised pursuant to the Company’s 2013 Equity Incentive Plan (as it may be amended). All of such Common Stock has been duly authorized, validly issued and is fully paid and nonassessable. |
| 2.22 | Authority. The Company has all requisite corporate power and authority to issue, sell and deliver the Shares in accordance with and upon the terms and conditions set forth in this Agreement and the Prospectus. All corporate, partnership and limited liability company action, as the case may be, required to be taken by the Company or any of its stockholders for the authorization, issuance, sale and delivery of the Shares, the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated by this Agreement shall have been validly taken. |
| 2.23 | Execution and Delivery of this Agreement. This Agreement has been duly authorized, validly executed and delivered by the Company. |
| 2.24 | No Conflicts. None of the offering, issuance and sale by the Company of the Shares, the execution, delivery and performance of this Agreement by the Company, the consummation of the transactions contemplated hereby, or the application of the proceeds from the sale of the Shares as described under “Use of Proceeds” in the Prospectus, (i) conflicts or will conflict with or constitutes or will constitute a violation of any organizational document of any Teekay Entity, (ii) conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a default (or an event that, with notice or lapse of time or both, would constitute such a default) under, any indenture, contract, mortgage, deed of trust, note agreement, loan agreement, lease or other agreement, or instrument to which any of the Teekay Entities is a party or by which any of them or any of their respective properties may be bound, (iii) violates or will violate any statute, law, rule, regulation, or judgment, order or decree applicable to any of the Teekay Entities of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over any of the Teekay Entities or any of their properties, or (iv) results or will result in the creation or imposition of any Lien upon any property or assets of any of the Teekay Entities (other than Liens referred to or described in the Registration Statement or the Prospectus), which conflicts, breaches, violations, defaults or Liens, in the case of clauses (ii), (iii) or (iv), could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or could materially impair the ability of any of the Teekay Entities to perform their obligations under this Agreement, except as set forth in the Registration Statement and the Prospectus. |
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| 2.25 | No Consents. Except for (i) the registration of the Shares under the Act, (ii) such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities or “Blue Sky” laws in connection with the purchase and distribution of Shares by the Manager, and under applicable stock exchange requirements, and (iii) such consents that, if not obtained, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or could not reasonably be expected to materially impair the ability of the Company to perform its obligations under this Agreement, no permit, consent, approval, authorization, order, registration, filing or qualification (“consent”) of or with any court, governmental agency or body having jurisdiction over any of the Teekay Entities or any of their respective properties is required in connection with the offering, issuance and sale by the Company of the Shares, the execution, delivery and performance of this Agreement by the parties hereto (other than the Manager), or the consummation of the transactions contemplated by this Agreement. |
| 2.26 | No Default. None of the Teekay Entities is (i) in violation of its organizational documents, (ii) in breach of or in default under (and no event that, with notice or lapse of time or both, would constitute such a default has occurred or is continuing under) any term, covenant, obligation, agreement or condition contained in any indenture, mortgage, deed of trust, note agreement, loan agreement, lease or other agreement, obligation, condition, covenant or instrument to which it is a party or by which it is or may be bound or to which any of its properties or assets is subject or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree applicable to any of the Teekay Entities of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over any of the Teekay Entities or any of their properties, which breach, default or violation, in the case of clause (ii) or (iii), would, if continued, reasonably be expected to have a Material Adverse Effect, or could reasonably be expected to materially impair the ability of any of the Teekay Entities to perform their obligations under this Agreement. To the knowledge of the Company, no third party to any indenture, contract, mortgage, deed of trust, note agreement, loan agreement, lease or other agreement, obligation, condition, covenant or instrument to which any of the Teekay Entities is a party or by which any of them are bound or to which any of their properties are subject, is in default under any such agreement, which breach, default or violation would, if continued, reasonably be expected to have a Material Adverse Effect. |
| 2.27 | Conformity of Securities to Description. The Shares, when issued and delivered in accordance with the terms of this Agreement simultaneously with payment therefor as provided herein, will conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus. |
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| 2.28 | No Material Adverse Change. Since the date of the latest financial statements included in the Prospectus, (i) no Teekay Entity has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, investigation, order or decree, (ii) there has not been any material change in the capitalization or material increase in the short-term debt or long-term debt of the Teekay Entities or any material adverse change, or any development involving or which could reasonably be expected to involve, individually or in the aggregate, a prospective material adverse change in or affecting the general affairs, condition (financial or otherwise), results of operations, business, properties, assets or prospects of the Teekay Entities, taken as a whole, and (iii) none of the Teekay Entities has incurred any liability or obligation, direct, indirect or contingent, or entered into any transactions, whether or not in the ordinary course of business, that, individually or in the aggregate, is material to the Teekay Entities, taken as a whole, or otherwise than as set forth or contemplated in the Registration Statement and the Prospectus. |
| 2.29 | Financial Statements. The consolidated historical financial statements (including the related notes and supporting schedules) included or incorporated by reference into the Registration Statement and the Prospectus (i) present fairly in all material respects the financial condition, results of operations and cash flows of the entities purported to be shown thereby on the basis stated therein, at the respective dates or for the respective periods indicated, (ii) comply as to form in all material respects with the applicable accounting requirements of the Act and (iii) have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The selected financial data included or incorporated by reference into the Registration Statement and the Prospectus is accurately presented in all material respects and prepared on a basis consistent with the audited historical consolidated financial statements from which it has been derived. |
| 2.30 | Independent Registered Public Accounting Firm. KPMG LLP, who have certified the financial statements of the Company and delivered their report with respect to such audited consolidated financial statements included in the Registration Statement and the Prospectus, are the independent registered public accounting firm with respect to such entities within the meaning of the Act and the applicable published rules and regulations thereunder and the rules and regulations of the Public Company Accounting Oversight Board. |
| 2.31 | Transfer Taxes. Assuming that none of the Manager nor initial or subsequent purchasers of Shares are citizens of or resident or conducting business, operations or transactions in the Marshall Islands, there are no transfer taxes or other similar fees or charges required to be paid in connection with the execution and delivery of this Agreement, the issuance by the Company or sale by the Company of the Shares or the consummation of the transactions contemplated by this Agreement. |
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| 2.32 | Title to Properties. The Operating Subsidiaries have good and marketable title to all real property and good title to all personal property described in the Registration Statement and the Prospectus as owned by the Operating Subsidiaries. Each Operating Subsidiary identified on Annex A is the owner, lessee or charterer, as indicated, of the vessel set forth opposite its name on Annex A (the “Vessels”), in each case free and clear of all Liens except (i) as described, and subject to the limitations contained, in the Registration Statement and the Prospectus (including Liens incurred pursuant to the 2022 Secured Notes) or (ii) as do not materially affect the value of such property, taken as a whole, and do not materially interfere with the use of such properties, taken as a whole, as they have been used in the past and are proposed to be used in the future, as described in the Registration Statement and the Prospectus (the Liens described in clauses (i) and (ii) above being “Permitted Liens”); provided that with respect to any interest in real property, vessels and buildings held under lease by any of the Operating Subsidiaries, such real property, vessels and buildings are held under valid and subsisting and enforceable leases (except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)), with such exceptions as do not materially interfere with the use of the properties of the Teekay Entities, taken as a whole as they have been used in the past as described in the Registration Statement and the Prospectus and are proposed to be used in the future as described in the Registration Statement and the Prospectus. |
| 2.33 | Vessel Registration. Each vessel identified in Annex A is duly registered under the laws of the jurisdiction set forth on Annex A in the name of the applicable Operating Subsidiary, free and clear of all Liens except for Permitted Liens. |
| 2.34 | Permits. Each of the Teekay Entities has such permits, consents (as defined above), licenses, franchises, concessions, certificates and authorizations (“permits”) of, and has made all declarations and filings with, all Federal, provincial, state, local or foreign governmental or regulatory authorities, all self-regulatory organizations and all courts and other tribunals, as are necessary to own or lease its properties and to conduct its business in the manner described in the Prospectus, subject to such qualifications as may be set forth in the Prospectus and except for such permits, declarations and filings that, if not obtained, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; except as set forth in the Prospectus, each of the Teekay Entities has fulfilled and performed all its material obligations with respect to such permits which are or will be due to have been fulfilled and performed by such date and no event has occurred that would prevent the permits from being renewed or reissued or that allows, or after notice or lapse of time would allow, revocation or termination thereof or results or would result in any impairment of the rights of the holder of any such permit, except for such non-renewals, non-issues, revocations, terminations and impairments that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and none of such permits contains any restriction that is materially burdensome to the Teekay Entities, taken as a whole. |
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| 2.35 | Insurance. Except as set forth in the Registration Statement and the Prospectus, the Teekay Entities are insured by insurers of recognized financial responsibility covering against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance insuring the Teekay Entities or their respective businesses, assets, employees, officers and directors are in full force and effect; the Teekay Entities are in compliance with the terms of such policies and instruments in all material respects; and there are no claims by any of the Teekay Entities under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; none of the Teekay Entities has been refused any insurance coverage sought or applied for; and the Company believes that each of the Teekay Entities will 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 reasonably be expected to have a Material Adverse Effect. |
| 2.36 | Contracts to be Described or Filed. To the knowledge of the Company, there is no agreement, franchise, contract, indenture, lease or other document or instrument of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required. |
| 2.37 | Litigation. There is (i) no action, suit or proceeding before or by any court, arbitrator or governmental agency, body or official, domestic or foreign, now pending or, to the knowledge of the Company, threatened, to which any of the Teekay Entities is or could reasonably be expected to be made a party or to which the business or property of any of the Teekay Entities is or could reasonably be expected to be made subject or that would be required to be disclosed in the Registration Statement and the Prospectus which is not adequately disclosed in the Registration Statement or the Prospectus as required, (ii) no statute, rule, regulation or order that has been enacted, adopted or issued by any governmental agency or, to the knowledge of the Company, that has been proposed by any governmental agency, and (iii) no injunction, restraining order or order of any nature issued by a Federal or state court or foreign court of competent jurisdiction to which any of the Teekay Entities is or may be subject, that, in the case of clauses (i), (ii) and (iii) above, (A) could reasonably be expected to (1) individually or in the aggregate have a Material Adverse Effect, except as set forth in the Registration Statement and the Prospectus or (2) prevent or result in the suspension of the offering and issuance of the Shares, or (B) questions the validity of this Agreement. |
| 2.38 | Summaries. The statements in the Registration Statement and the Prospectus under the headings “Material United States Federal Income Tax Considerations” and “Non-United States Tax Considerations,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries, in all material respects, of such legal matters, agreements, documents or proceedings. |
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| 2.39 | Certain Relationships and Related Transactions. No relationship, direct or indirect, exists between or among any Teekay Entity, on the one hand, and the directors, officers, members, partners, stockholders, customers or suppliers of any Teekay Entity on the other hand that is required to be described in the Registration Statement and the Prospectus that is not so described. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees of indebtedness by any Teekay Entity to or for the benefit of any of the officers, directors or managers of any Teekay Entity or their respective family members, except as disclosed in the Registration Statement and the Prospectus. No Teekay Entity has, in violation of the Sarbanes-Oxley Act of 2002, directly or indirectly, extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director or executive officer of any Teekay Entity. |
| 2.40 | Sarbanes-Oxley Act of 2002. The Teekay Entities are in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission and the New York Stock Exchange (“NYSE”) that are effective and applicable to the Company. |
| 2.41 | Internal Controls. Each of the Teekay Entities 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 generally accepted accounting principles 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. The Teekay Entities’ “internal controls over financial reporting” (as such term is defined in Rule 13a-15(f) and Rule 15d-15(f) under the Exchange Act) are effective and none of the Teekay Entities is aware of any material weakness in their internal controls over financial reporting. |
| 2.42 | Disclosure Controls. The Teekay Entities maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) and Rule 15d-15(e) under the Exchange Act); such disclosure controls and procedures are effective. |
| 2.43 | No Labor Dispute. No labor problem or dispute with the employees of the Teekay Entities exists or is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, contractors or customers, that, in each case, could reasonably be expected to have a Material Adverse Effect, except as set forth in the Registration Statement and the Prospectus. |
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| 2.44 | Tax Returns. Each of the Teekay Entities has timely filed all foreign, federal, state and local tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file could not reasonably be expected to have a Material Adverse Effect or as set forth in the Registration Statement and the Prospectus) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as could not reasonably be expected to have a Material Adverse Effect or as set forth in the Prospectus. |
| 2.45 | Environmental Compliance. Except as described in the Registration Statement and the Prospectus, each Teekay Entity (i) is in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or Hazardous Materials (as defined below) (“Environmental Laws”), (ii) has received and is in compliance with all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business, (iii) has not received notice of any actual or potential liability under any environmental law, and (iv) is not a party to or affected by any pending or, to the knowledge of the Company, threatened action, suit or proceeding, is not bound by any judgment, decree or order, and has not entered into any agreement, in each case relating to any alleged violation of any Environmental Law or any actual or alleged release or threatened release or cleanup at any location of any Hazardous Materials, except where such noncompliance, deviation, violation, release or cleanup from that described in (i)—(iv) above could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. None of the Teekay Entities has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”). The term “Hazardous Materials” means (A) any “hazardous substance” as defined in CERCLA, (B) any “hazardous waste” as defined in the Resource Conservation and Recovery Act, as amended, (C) any petroleum or petroleum product, (D) any polychlorinated biphenyl and (E) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material, waste or substance regulated under or within the meaning of any other Environmental Law. |
| 2.46 | Effect of Environmental Laws. In the ordinary course of its business, each Teekay Entity periodically reviews the effect of Environmental Laws on its business, operations and properties, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, each Teekay Entity has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in the Registration Statement and the Prospectus. |
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| 2.47 | Intellectual Property. Each of the Teekay Entities owns or possesses rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, technology, know-how and other intellectual property necessary for the conduct of their respective businesses, except where the failure to possess such rights could not reasonably be expected to have a Material Adverse Effect and except as set forth in the Registration Statement and the Prospectus, and the Company believes that the conduct by the Teekay Entities of their respective businesses will not conflict with, and the Teekay Entities have not received any notice of any claim of conflict with, any such rights of others. |
| 2.48 | No Distribution of Other Offering Materials. None of the Teekay Entities has distributed or will distribute, any offering material (as defined under the Act) in connection with the offering and sale of the Shares other than the Registration Statement, the Base Prospectus, the Original Prospectus Supplement, the Replacement Prospectus and any Replacement Prospectus Supplement, and other materials, if any, permitted by the Act, including Rule 134 under the Act. |
| 2.49 | NYSE Listing. The Shares will be approved for listing on the NYSE prior to the issuance and sale thereof. |
| 2.50 | Investment Company. None of the Teekay Entities is now, and after the sale of the Shares to be sold by the Company hereunder and application of the net proceeds from such sale as described in the Prospectus under the caption “Use of Proceeds” and after giving effect to the offering will be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder (the “1940 Act”). |
| 2.51 | Passive Foreign Investment Company. To the knowledge of the Company, the Company is not a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1297 of the Internal Revenue Code of 1986, as amended (the “Code”). |
| 2.52 | Foreign Corrupt Practices Act. No Teekay Entity, nor any director, officer, or employee, nor, to the knowledge of the Company, any affiliate, agent or representative of the Teekay Entities, has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended (such act, including the rules and regulations thereunder, the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving 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; and the Teekay Entities 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 representation and warranty contained herein. Neither the Company nor its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws. |
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| 2.53 | Sanctions Laws and Regulations. Neither the sale of the Shares by the Company hereunder nor the use of the proceeds thereof will cause any U.S. person participating in the offering, either as underwriter and/or purchasers of the Shares, to violate the Trading With the Enemy Act, as amended, the International Emergency Economic Powers Act, as amended, or any foreign asset control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) (all such laws and regulations collectively referred to as the “Sanctions Laws and Regulations”) or any enabling legislation or executive order relating thereto. |
| 2.54 | Sanctions Authorities. None of the Teekay Entities is, and, to the knowledge of the Company, no director, officer, agent, employee or affiliate of any of the Teekay Entities is, currently the subject of, or in possession of written notice from a governmental authority asserting that it may become the subject of, any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority; and the Teekay Entities will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (“Person”), for the purpose of financing the activities of or with any Person, or in any country or territory that, at the time of such funding or facilitation, is the subject of any sanctions administered or enforced by such authorities, in each case in a manner that violates any Sanctions Laws and Regulations. |
| 2.55 | Money Laundering Laws. The operations of the Teekay Entities are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any of the Teekay Entities with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened. |
| 2.56 | Brokers. Except as described in the Prospectus, there are no contracts, agreements or understandings between any Teekay Entity and any person that would give rise to a valid claim against any Teekay Entity or the Manager for a brokerage commission, finder’s fee or other like payment in connection with any of the transactions contemplated by this Agreement. |
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| 2.57 | Market Stabilization. None of the Teekay Entities has taken, and none will take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares. |
| 2.58 | No Restrictions on Subsidiaries. Except (i) as provided in the credit and loan agreements described in the Registration Statement and the Prospectus and by Section 51 of the Marshall Islands Limited Partnership Act, Section 40 of the Marshall Islands Limited Liability Company Act of 1996 and Sections 43 and 44 of the Marshall Islands Business Corporations Act, (ii) as otherwise mandated by the laws of the Operating Subsidiaries’ jurisdiction of formation or (iii) as provided in the organizational documents of non-wholly owned Operating Subsidiaries (or any shareholder or similar agreements between the shareholders of such Operating Subsidiaries), no subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock or similar ownership interest, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company. |
| 2.59 | Cybersecurity; Data Protection. The Teekay Entities’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Teekay Entities as currently conducted, and to the Company’s knowledge are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Teekay Entities have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses, and there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person, nor any incidents under internal review or investigations relating to the same. The Teekay Entities 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 Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification. The Teekay Entities have taken all necessary actions to prepare to comply with the European Union General Data Protection Regulation. |
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| 2.60 | Statistical and Market Data. The statistical and market-related data included in the Registration Statement and the Prospectus are based on or derived from sources which the Company believes to be reliable and accurate in all material respects. |
| 2.61 | XBRL Information. The interactive data in eXtensible Business Reporting Language included or 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. |
| 2.62 | 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 Marshall Islands. |
Any certificate signed by any officer of any Teekay Entity and delivered to the Manager or to counsel for the Manager in connection with this Agreement or any Terms Agreement shall be deemed a representation and warranty by such Teekay Entity, as to matters covered thereby, to the Manager.
3. Sale and Delivery of Shares.
| 3.1 | Sale of Shares by Manager, as Sales Agent. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, and only on or before the date of expiration of the Replacement Registration Statement, the Company agrees to issue and sell Shares from time to time through the Manager, acting as sales agent, and the Manager agrees to use its reasonable efforts to sell, as sales agent for the Company, the Shares on the following terms. |
| a) | The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Chief Executive Officer or Chief Financial Officer of the Company and the Manager on any day that (A) is a trading day for the NYSE, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Chief Executive Officer or Chief Financial Officer of the Company will designate the maximum amount of the Shares to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement) and the minimum price per Share at which such Shares may be sold, which minimum price shall not be less than $0.01 per Share. Subject to the terms and conditions hereof, the Manager shall use its reasonable efforts to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3.1 shall be the market price for the Company’s Common Stock sold by the Manager under this Section 3.1 on the NYSE at the time of sale of such Shares. In any event, the Manager cannot and will not sell fractional Shares, nor sell Shares after earlier of (i) the expiration of the effectiveness of the Replacement Registration Statement and (ii) December 23, 2024. |
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| b) | The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company. |
| c) | The Company shall not authorize the issuance and sale of, and the Manager shall not sell, any Share at a price lower than (A) $0.01 or (B) any higher minimum price therefor designated, if any, from time to time by the Board, a duly authorized committee thereof, or any individual to whom such authority has been duly and properly delegated by the Board or a duly authorized committee thereof, and notified to the Manager in writing (which, as of the date of this Agreement, is currently the Chief Executive Officer and Chief Financial Officer). The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the offering of the Shares for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. During any such period of suspension, the Company shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4.11—4.19, be deemed to affirm any of the representations or warranties contained in this Agreement pursuant to Sections 2 or 4 hereof, or be obligated to conduct any due diligence session as referred to in Section 4.21 until the termination of the suspension and the recommencement of the offering of the Shares pursuant to this Agreement (which recommencement shall constitute a Representation Date, as defined in Section 4.11). |
| d) | The Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3.1, other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under of the Act and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Manager pursuant to a Terms Agreement. |
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| e) | The compensation to the Manager for sales of the Shares with respect to which the Manager acts as sales agent under this Agreement shall be up to 2% of the gross sales price of the Shares sold pursuant to this Section 3.1 and payable as described in the succeeding subsection 3.1(f) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales (the “Transaction Fees”), shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”). |
| f) | The Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close of trading on the NYSE each day in which the Shares are sold under this Section 3.1 setting forth the number of the Shares sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the Manager with respect to such sales. Such compensation shall be set forth and invoiced in periodic statements from the Manager to the Company, with payment to be made by the Company promptly after its receipt thereof. |
| g) | Settlement for sales of the Shares pursuant to this Section 3.1 will occur on the second Business Day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Shares sold through the Manager for settlement on such date shall be issued and delivered by the Company to the Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to the Manager’s or the Manager’s designee’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the Company by federal funds wire transfer to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, the Company shall (A) indemnify and hold the Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay the Manager any commission to which it would otherwise be entitled absent such default. If the Manager breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Company on any Settlement Date for the Shares delivered by the Company, the Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Manager. The applicable sales proceeds on any Settlement Date shall be delivered simultaneously with the Shares delivered by the Company. |
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| h) | At each Applicable Time, Settlement Date and Representation Date (as defined in Section 4.11), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented as of such date. Any obligation of the Manager to use its reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. |
| 3.2 | Sale of Shares by Manager, as Principal. If the Company wishes to issue and sell Shares pursuant to this Agreement but other than as set forth in Section 3.1 of this Agreement (each, a “Placement”), it will notify the Manager of the proposed terms of such Placement, which terms shall be approved by the Board. If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. |
| 3.3 | Terms Agreement. Each sale of the Shares to the Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, the Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Manager. No terms Agreement may authorize the sale of fractional Shares. |
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| 3.4 | Limitation on Number and Amount of Shares Sold. Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement (in the aggregate) exceed (i) the aggregate amount set forth in Section 1, (ii) the shares of Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Manager in writing. |
| 3.5 | Regulation M Exemption. If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. |
| 4. | Agreements. Each of the Teekay Entities agrees with the Manager that: |
| 4.1 | Filing of Amendment or Supplement. During any period when the delivery of a prospectus relating to the Shares is required under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), the Company will not file any amendment of the Registration Statement or supplement to the Prospectus (including any prospectus supplement to the Base Prospectus or any Replacement Prospectus Supplement to the Replacement Prospectus) or any Rule 462(b) Registration Statement unless the Company has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which the Manager reasonably objects. The Company has properly completed the Base Prospectus, as supplemented by the Original Prospectus Supplement, in a form approved by the Manager, and filed such documents, as amended at the Execution Time, with the Commission pursuant to the applicable paragraph of Rule 424(b) by the Execution Time and will cause any supplement to such documents to be properly completed, in a form approved by the Manager, and will file such supplement, if any, with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will provide evidence satisfactory to the Manager of such timely filing. After the Replacement Registration Statement has been declared effective, the Company will properly complete the Replacement Prospectus in a form approved by the Manager, and file such Replacement Prospectus with the Commission pursuant to the applicable paragraph of Rule 424(b), and any supplement to such Replacement Prospectus (including any Replacement Prospectus Supplement) will be properly completed, in a form approved by the Manager, and filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby, and the Company will provide evidence satisfactory to the Manager of such timely filing, if any. The Company will promptly advise the Manager (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (ii) when, during any period when the delivery of a prospectus (whether physically or through compliance with Rule 172 or any similar rule) is required under the Act in connection with the offering or sale of the Shares, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its commercially reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to use promptly its commercially reasonable efforts to obtain the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable. |
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| 4.2 | Notice of Material Change. If, at any time on or after an Applicable Time but prior to the related Settlement Date or Time of Delivery, any event occurs as a result of which the Prospectus, as supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Manager so that any use of the Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Manager in such quantities as the Manager may reasonably request. |
| 4.3 | Material Misstatements or Omissions in Prospectus. During any period when the delivery of a prospectus relating to the Shares is required under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), if any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Company promptly will (i) notify the Manager of any such event, (ii) prepare and file with the Commission, subject to the second sentence of Section 4.1, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its commercially reasonable efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus to the Manager in such quantities as the Manager may reasonably request. |
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| 4.4 | Reports to Security Holders and Manager. As soon as practicable, the Company will make generally available, via the Commission’s Electronic Data Gathering Analysis and Retrieval (EDGAR) System, to its security holders and to the Manager an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158. |
| 4.5 | Signed Copies of Registration Statement. The Company will furnish, or otherwise make available upon request, to the Manager and counsel for the Manager, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Manager or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of the Prospectus and any supplement thereto as the Manager may reasonably request. |
| 4.6 | Qualifications. The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of such jurisdictions as the Manager may reasonably designate and will maintain such qualifications in effect so long as reasonably required for the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. |
| 4.7 | No Issuer Free Writing Prospectus. Each of the Company and the Manager agree that it has not made and will not make any offer relating to the Shares 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 by the Company with the Commission or retained by the Company under Rule 433. |
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| 4.8 | Limitation on Sale of Common Stock. If sales of the Shares have been made but not settled, or the Company has had outstanding with the Manager any instructions to sell the Shares, in either case, within the prior five Business Days, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition of (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any Common Stock or any securities convertible into, or exercisable, or exchangeable for, Common Stock; or publicly announce an intention to effect any such transaction without (i) giving the Manager at least five Business Days’ prior written notice specifying the nature of the proposed transaction and the date of such proposed transaction and (ii) the Manager suspending acting under this Agreement for such period of time requested by the Company or as deemed appropriate by the Manager in light of the proposed transaction; provided, however, that the Company may (i) issue and sell Shares pursuant to this Agreement or any Terms Agreement, (ii) grant equity awards under the Company’s 2013 Equity Incentive Plan, as it may be amended, and issue Common Stock upon exercise or vesting thereof and (iii) issue shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof which is disclosed in the Registration Statement and the Prospectus. |
| 4.9 | Market Stabilization. The Company will not (i) take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) sell, bid for, purchase or pay any person (other than as contemplated by this Agreement or any Terms Agreement) any compensation for soliciting purchases of the Shares; provided that nothing herein shall prevent the Company from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business. |
| 4.10 | Notifications to Manager. The Company will, at any time during the term of this Agreement, as supplemented from time to time, advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information or fact that would materially alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6 herein. |
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| 4.11 | Certificates. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder), and each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented (other than an amendment or supplement effected by the filing with the Commission of any document incorporated by reference therein which shall be subject to the provisions of subclauses (ii), (iii), (iv), (vi) or (vii) below), (ii) the Company shall file an Earnings 6-K (defined below) (the date of each such filing, and any date on which an amendment to any such document is filed, an “Earnings Filing Date”) (iii) the Company shall file a Report on Form 6-K (each a “Quarterly Report”) containing reviewed quarterly financial statements for the three months ended March 31, June 30 or September 30 (other than an Earnings 6-K) (the date of each such filing, and any date on which an amendment to any such document is filed, a “Quarterly Filing Date”) (iv) the Company shall file an Annual Report on Form 20-F (the date of each such filing, and any date on which an amendment to any such document is filed, an “Annual Filing Date”), (v) the Shares are delivered to the Manager as principal at the Time of Delivery pursuant to a Terms Agreement, (vi) the Company shall file a Report on Form 6-K containing financial statements, which is incorporated by reference into the Registration Statement, or (vii) otherwise as the Manager may reasonably request upon reasonable advance notice to the Company (such commencement or recommencement date and each such date referred to in (i)—(vii) above, a “Representation Date”), the Company shall furnish or cause to be furnished to the Manager forthwith a certificate dated and delivered the date of such commencement or recommencement, effectiveness of such amendment, the date of filing with the Commission of such supplement or other document, the Time of Delivery, or promptly upon request, as the case may be, in form satisfactory to the Manager to the effect that the statements contained in the certificate referred to in Section 6.4 of this Agreement which were last furnished to the Manager are true and correct at the time of such commencement or recommencement, amendment, supplement, filing, or delivery, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 6.4, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate. Notwithstanding the foregoing or anything in this Agreement to the contrary, (i) no “Representation Date” shall be deemed to occur during any period where either the Company or the Manager has suspended sales hereunder and (ii) the period from and including the Execution Time until the date that the Company notifies the Manager that it intends to commence sales under this Agreement shall be deemed to be such a period of suspended sales and no commencement of the offering of the Shares shall be deemed to occur during such period. |
| 4.12 | Opinion of Company Counsel. At each Representation Date, the Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of Perkins Coie LLP, counsel to the Company, dated and delivered the date of such Representation Date and addressed to the Manager, in form and substance satisfactory to the Manager, of the same tenor as the opinion provided in Annex C, but modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion. |
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| 4.13 | Opinion of Watson Farley & Williams LLP. At each Representation Date, the Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of Watson Farley & Williams LLP (or other counsel satisfactory to the Manager), counsel relating to Marshall Islands law for the Company, or its affiliate, dated and delivered the date of such Representation Date and addressed to the Manager, in form and substance satisfactory to the Manager, of the same tenor as the opinion provided in Annex D, but modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion. |
| 4.14 | Opinion of Alexanders. At each Representation Date (excluding any Quarterly Filing Date if the opinion in this Section 4.14 was previously provided at the corresponding Earnings Filing Date), the Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of Alexanders (or other counsel satisfactory to the Manager), special Bermuda counsel for the Company, dated and delivered the date of such Representation Date and addressed to the Manager, in form and substance satisfactory to the Manager. |
| 4.15 | Opinion of PwC Legal. At each Representation Date (excluding any Quarterly Filing Date if the opinion in this Section 4.15 was previously provided at the corresponding Earnings Filing Date), if requested by the Manager, the Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of PwC Legal (or other counsel satisfactory to the Manager), special Luxembourg counsel for the Company, dated and delivered the date of such Representation Date and addressed to the Manager, in form and substance satisfactory to the Manager. |
| 4.16 | Opinion of Houthoff. At each Representation Date (excluding any Quarterly Filing Date if the opinion in this Section 4.16 was previously provided at the corresponding Earnings Filing Date), if requested by the Manager, the Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of Houthoff (or other counsel satisfactory to the Manager), special Netherlands counsel for the Company, dated and delivered the date of such Representation Date and addressed to the Manager, in form and substance satisfactory to the Manager. |
| 4.17 | Opinion of Watson Farley & Williams LLP. At each Representation Date (excluding any Quarterly Filing Date if the opinion in this Section 4.17 was previously provided at the corresponding Earnings Filing Date), if requested by the Manager, the Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of Watson Farley & Williams LLP (or other counsel satisfactory to the Manager), special Spain counsel for the Company, dated and delivered the date of such Representation Date and addressed to the Manager, in form and substance satisfactory to the Manager. |
| 4.18 | Opinion of Watson Farley & Williams LLP. At each Representation Date (excluding any Quarterly Filing Date if the opinion in this Section 4.18 was previously provided at the corresponding Earnings Filing Date), if requested by the Manager, the Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of Watson Farley & Williams LLP (or other counsel satisfactory to the Manager), special English counsel for the Company, dated and delivered the date of such Representation Date and addressed to the Manager, in form and substance satisfactory to the Manager. |
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| 4.19 | Opinion of Manager Counsel. At each Representation Date, Baker Botts L.L.P., counsel to the Manager, shall deliver a written opinion, dated and delivered the date of such Representation Date and addressed to the Manager, in form and substance satisfactory to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion. The Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. |
| 4.20 | Letters of Independent Accountant. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder), and at each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented to include additional amended financial information, (ii) the Shares are delivered to the Manager as principal at a Time of Delivery pursuant to a Terms Agreement, (iii) the Company files an Earnings 6-K, a Quarterly Report on Form 6-K, or an Annual Report on Form 20-F, or (iv) at the Manager’s request and upon reasonable advance notice to the Company, there is filed with the Commission any document which contains financial information (other than an Annual Report on Form 20-F) incorporated by reference into the Prospectus, the Company shall cause KPMG LLP or other independent accountants satisfactory to the Manager forthwith, to furnish the Manager a letter, dated the date of commencement or recommencement, effectiveness of such amendment, the date of filing of such supplement or other document with the Commission, or the Time of Delivery, as the case may be, in form satisfactory to the Manager, of the same tenor as the letters referred to in Section 6.5 but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter. |
| 4.21 | Due Diligence. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder), and at each Representation Date, the Company will conduct a due diligence session, in form and substance satisfactory to the Manager, which shall include representatives of the management and the independent accountants of the Company. The Company shall cooperate timely with any reasonable due diligence request from or review conducted by the Manager or its agents from time to time in connection with the transactions contemplated by this Agreement, including, without limitation, providing information and available documents and access to appropriate corporate officers and the Company’s agents during regular business hours and at the Company’s principal offices, and timely furnishing or causing to be furnished such certificates, letters and opinions from the Company, its officers and its agents, as the Manager may reasonably request. |
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| 4.22 | Manager Trading. The Company consents to the Manager trading in the Common Stock for the Manager’s own account and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement. |
| 4.23 | Disclosures in Periodic Reports. At all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 or any similar rule) in connection with any offer of Shares, the Company shall file its Annual Reports on Form 20-F within the periods required under the Exchange Act and, for each of the first three fiscal quarters of the Company’s fiscal year, Quarterly Reports within 90 days after the end of the period covered under such Quarterly Report, each setting forth consolidated financial statements and financial schedules of the Company and the subsidiaries of the Company, together with related notes, prepared in accordance with Regulation S-X under the Act and with United States generally accepted accounting principles consistently applied at the times and during the periods involved. The Company shall disclose in such Annual Reports on Form 20-F and such Quarterly Reports the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the compensation paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant period. |
| 4.24 | Failure of Certain Conditions. If to the knowledge of the Company, the conditions set forth in Sections 6.1, 6.6 or 6.7 shall not be true and correct on the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result of an offer to purchase solicited by the Manager the right to refuse to purchase and pay for such Shares. |
| 4.25 | Affirmation of Representations and Warranties. At each Applicable Time, Settlement Date and Representation Date, the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented as of such date; and each execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager that the representations and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance or of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be true and correct as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such sale, as the case may be, as though made at and as of such date, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented as of such date. |
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| 4.26 | Sufficient Common Stock for Issuance. The Company shall ensure that there is at all times sufficient Common Stock to provide for the issuance, free of any preemptive rights, out of its authorized but unissued Common Stock or Common Stock held in treasury, of the Shares that the Company agrees to issue and sell pursuant to the terms of this Agreement. The Company will use its commercially reasonable efforts to cause the Shares to be listed for trading on the NYSE and to maintain such listing. |
| 4.27 | Delivery of Prospectus. During any period when the delivery of a prospectus relating to the Shares is required under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the regulations thereunder. |
| 4.28 | DTC. The Company shall cooperate with Manager and use its reasonable efforts to permit the Shares to be eligible for clearance and settlement through the facilities of DTC. |
| 4.29 | Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus. |
| 4.30 | Investment Company; PFIC. For a period of four years after any Settlement Date, the Company will use its commercially reasonable efforts to ensure that no Teekay Entity, nor any subsidiary thereof, shall become required to register as an “investment company” under the 1940 Act. For a period of three years after any Settlement Date, the Company will use its commercially reasonable efforts to ensure that no Teekay Entity, nor any subsidiary thereof, shall become a PFIC that would require action on the part of a shareholder to make an election to treat the PFIC as a “qualified electing fund” with respect to such shareholder. |
| 4.31 | PFIC Notice to Shareholders. If the Company notifies its shareholders that it or a subsidiary will be a PFIC, it will contemporaneously give similar notice to the Manager, along with information concerning the potential availability of a “qualified electing fund” election (or elections) under Section 1295 of the Code or any other applicable election with respect to each Teekay Entity that is a PFIC. |
| 4.32 | Sanctions Laws and Regulations. The Company will not take, and will cause each subsidiary not to take, directly or indirectly, any action that would reasonably be expected to result in a violation by any U.S. person participating in the offering of the Sanctions Laws and Regulations with respect to the sale of the Shares hereunder. Further, the Company will not use, and will cause each subsidiary not to use, the proceeds from the sale of the Shares, directly or indirectly, (i) for any purpose or activity that would reasonably be expected to cause the Manager or any purchaser of the Shares to be in violation of the Sanctions Laws and Regulations or (ii) to fund or facilitate the activities or business of or with any agent or “Specially Designated National” of any country the subject of the Sanctions Laws and Regulations, or any person or entity of any country the subject of the Sanctions Laws and Regulations where such activities or business is prohibited or restricted by Sanctions Laws and Regulations. |
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5. Payment of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto) and the Prospectus, and each amendment or supplement thereto; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement and the Prospectus, and all amendments or supplements thereto, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange Act and the listing of the Shares on the NYSE; (vi) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Manager relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the Manager relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Shares; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. It is understood however, that except as provided in Sections 3.1(e), 5 and 7 hereof, the Manager will pay all of its own out of pocket costs and expenses incurred in connection with entering into this Agreement and the transactions contemplated by this Agreement. If Shares having an aggregate offering price of at least $25,000,000 have not been offered and sold under this Agreement and all Terms Agreements by the Manager prior to the first anniversary of the effective date of the Replacement Registration Statement (or such earlier date on which the Company terminates this Agreement), the Company shall reimburse the Manager for all of its reasonable and documented out-of-pocket expenses, including the reasonable and documented fees and disbursements of a single counsel for the Manager, incurred by it in connection with the offering contemplated by this Agreement, including, without limitation, the preparation and negotiation of this Agreement, the original closing with respect to this Agreement and the periodic delivery of documents hereunder; provided however, that such reimbursement obligation of the Company shall not exceed $100,000.
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6. Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
| 6.1 | The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, threatened. |
| 6.2 | The Company shall have furnished or caused to be furnished the opinions and letters from its counsel and accountants as set forth in Section 4, on the dates as set forth in Section 4. |
| 6.3 | The Manager shall have received from Baker Botts L.L.P., counsel for the Manager, an opinion as set forth in Section 4.19, on the dates as set forth in Section 4, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. |
| 6.4 | The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4.11 of this Agreement, a certificate by its principal executive officer or principal financial officer dated as of such date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: |
| a) | the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; |
| b) | no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to such officer’s knowledge, threatened; |
| c) | since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the general affairs, condition (financial or otherwise), results of operations, business, properties, assets or prospects of the Teekay Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus, as amended or supplemented; and |
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| d) | on those Representation Dates when the opinions referred to in Section 4.14 through Section 4.18 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Section 4.14 through Section 4.18 are based. |
| 6.5 | The Company shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.20 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares a comfort letter, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager. |
| 6.6 | Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter referred to in Section 6.5 or (ii) any adverse change, or any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the Manager’s opinion, would materially and adversely affect the market for Shares. |
| 6.7 | Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. |
| 6.8 | FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. |
| 6.9 | The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. |
| 6.10 | Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. |
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered to the office of Baker Botts L.L.P., counsel for the Manager, at 700 K Street NW, Washington, DC 20001, or electronically to Baker Botts L.L.P. at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.
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7. Indemnification and Contribution.
| 7.1 | The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees and agents of the Manager and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Original Registration Statement, the Replacement Registration Statement, or in any amendment thereof, or in the Base Prospectus, Replacement Prospectus, Original Prospectus Supplement or any Replacement Prospectus Supplement, or in any amendment thereof or supplement thereto or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Manager specifically for inclusion therein. This indemnity agreement will be in addition to any liability that the Company may otherwise have. |
| 7.2 | The Manager agrees to indemnify and hold harmless the Company, its directors, officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information relating to the Manager furnished to the Company by or on behalf of the Manager specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which the Manager may otherwise have. |
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| 7.3 | Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under Section 7.1 or 7.2 above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in Section 7.1 or 7.2. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded, based on the advice of counsel, that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel) in any one action or series of related actions in the same jurisdiction representing the indemnified parties who are parties to such action). An indemnifying party will not, without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld, conditioned or delayed), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. |
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| 7.4 | In the event that the indemnity provided in Sections 7.1, 7.2 or 7.3 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to which the Company and the Manager may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Manager on the other hand from the offering of the Shares; provided, however, that in no case shall the Manager be responsible for any amount in excess of total discounts and commissions received by the Manager with respect to the offering of the Shares pursuant to this Agreement and any Terms Agreements. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Manager severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Manager on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds (before deducting expenses) received by the Company from sales of the Shares pursuant to this Agreement and any Terms Agreements, and benefits received by the Manager shall be deemed to be equal to the total discounts and commissions received by the Manager in connection therewith. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Manager on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Manager agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this Section 7.4, no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls the Manager within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of the Manager shall have the same rights to contribution as the Manager, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 7.4. |
8. Termination.
| 8.1 | The Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability of any party to any other party except that (i) if Shares have been sold through the Manager, then Section 4.25 shall remain in full force and effect, (ii) with respect to any pending sale of Shares through the Manager, the obligations of the Company, including in respect of compensation of the Manager, shall remain in full force and effect notwithstanding the termination and (iii) the provisions of Sections 5, 7, 10, 11, 13, 15 and 16 of this Agreement shall remain in full force and effect notwithstanding such termination. |
36
| 8.2 | The Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability of any party to any other party except that the provisions of Sections 5, 7, 10, 11, 13, 15 and 16 of this Agreement shall remain in full force and effect notwithstanding such termination. |
| 8.3 | This Agreement shall remain in full force and effect unless terminated pursuant to Sections 8.1 or 8.2 above or otherwise by mutual agreement of the parties; provided that any such termination by mutual agreement shall in all cases be deemed to provide that Sections 5, 7 and 10 shall remain in full force and effect. |
| 8.4 | Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale shall settle in accordance with the provisions of Section 3.1(g) of this Agreement. |
| 8.5 | In the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to such Terms Agreement shall be subject to termination, in the absolute discretion of the Manager, by notice given to the Company prior to the Time of Delivery relating to such Shares, if at any time prior to such delivery and payment (i) trading in the Company’s Common Stock shall have been suspended by the Commission or the NYSE or trading in securities generally on the NYSE shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Prospectus. |
9. Recognition of the U.S. Special Resolution Regimes.
(a) In the event the Manager is a Covered Entity and becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from the Manager of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that the Manager is a Covered Entity or a BHC Act Affiliate of the Manager becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against the Manager are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
37
10. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Shares.
11. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Manager, will be mailed, delivered or telefaxed to Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 10013 Attention: General Counsel, (fax no. 646-291-1469) or, if sent to the Company, will be mailed, delivered or telefaxed to Teekay Corporation, 4th Floor, Belvedere Building, 69 Pitts Bay Road, Hamilton, HM 08, Bermuda, Attn. Corporate Secretary (fax no. 441-292-3931) with a copy to Perkins Coie LLP, 1120 N.W. Couch Street, 10th Floor, Portland, Oregon 97209-4128, Attn: David Matheson (fax no. 503-346-2048).
12. Successors and Parties in Interest. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors, and no other person shall have any right or obligation hereunder. This Agreement has been and is made solely for the benefit of the Manager and the Company and, to the extent provided in Section 7 of this Agreement, the officers, directors, employees, agents and controlling persons referred to in Section 7 and their respective successors, assigns, heirs, personal representatives and executors and administrators. No other person shall acquire or have any right under or by virtue of this Agreement.
13. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which it may be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase and sale of the Shares and not as a fiduciary of the Company and (c) the Company’s engagement of the Manager in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether the Manager has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transactions contemplated by this Agreement.
14. Integration. This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral) between the Company and the Manager with respect to the subject matter hereof.
15. Applicable Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
38
16. Waiver of Jury Trial. The Company 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, any Terms Agreement or the transactions contemplated hereby or thereby.
17. Counterparts. This Agreement and any Terms Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
18. Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the construction hereof.
19. Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Applicable Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms Agreement.
“Base Prospectus” shall mean the base prospectus referred to in Section 2.1 above contained in the Original Registration Statement at the Execution Time.
“BHC Act Affiliate” shall mean “affiliate” as defined in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Covered Entity” shall mean any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b) or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” shall mean default right as defined and interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Earnings Announcement” shall mean a press release or other public announcement of the Company containing its earnings, revenues or other results of operations for a quarterly or annual period.
39
“Earnings 6-K” shall mean a Report on Form 6-K which includes substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data, officers’ quotations and non-GAAP measures and related disclosure) that the Company identifies in such Report on Form 6-K as being incorporated by reference into the Registration Statement.
“Effective Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Original Prospectus Supplement” shall mean the latest prospectus supplement to the Base Prospectus included as part of the Original Registration Statement filed pursuant to Rule 424(b) of the rules and regulations under the Act prior to the relevant Applicable Time.
“Original Registration Statement” shall mean the registration statement (File No. 333-221806) on Form F-3, including the Base Prospectus, for registration under the Act of the offering and sale of certain securities, including the Shares, including exhibits and financial statements and all documents filed as part thereof or incorporated by reference therein, and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be. For the avoidance of doubt, the Original Registration Statement includes registration statement File No. 333-231003 that was filed pursuant to Rule 462(b) on April 24, 2019.
“Prospectus” shall mean (i) initially, the Base Prospectus, as supplemented by the Original Prospectus Supplement, and the Replacement Prospectus as supplemented by any Replacement Prospectus Supplement, and (ii) on and after the date on which the Shares may no longer be offered and sold pursuant to the Original Registration Statement, the Replacement Prospectus, as supplemented by any Replacement Prospectus Supplement.
40
“Registration Statement” shall mean (i) initially, the Original Registration Statement and the Replacement Registration Statement and (ii) on and after the date on which the Shares may no longer be offered and sold pursuant to the Original Registration Statement, the Replacement Registration Statement, in each case, as amended when it became effective and including exhibits and financial statements and all documents filed as part thereof or incorporated by reference therein, and any Prospectus relating to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be.
“Replacement Prospectus” shall mean the latest Prospectus filed with the Commission pursuant to Rule 424(b) or deemed to be part of the Replacement Registration Statement.
“Replacement Prospectus Supplement” shall mean the latest Prospectus Supplement, if any, to the Replacement Prospectus included as part of the Replacement Registration Statement filed pursuant to Rule 424(b) of the rules and regulations under the Act prior to the relevant Applicable Time.
“Replacement Registration Statement” shall mean the registration statement on Form F-3, including a related Replacement Prospectus, for registration under the Act of the offering of the Shares, including exhibits and financial statements and all documents filed as part thereof or incorporated by reference therein, and any Replacement Prospectus or Replacement Prospectus Supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B”, “Rule 433” and “Rule 462” refer to such rules under the Act.
“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the Registration Statement.
“U.S. Special Resolution Regime” shall mean each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
41
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the Manager.
| Very truly yours, | ||||
| TEEKAY CORPORATION | ||||
| By: | /s/ Kenneth Hvid | |||
| Name: | Kenneth Hvid | |||
| Title: | President and Chief Executive Officer | |||
| The foregoing Agreement is hereby | ||
| confirmed and accepted as of the | ||
| date first written above. | ||
| By: | CITIGROUP GLOBAL MARKETS INC. | |
| By: | /s/ Christa T. Volpicelli | |
| Name: Christa T. Volpicelli | ||
| Title: Managing Director | ||
SCHEDULE I-A
TGP OPERATING SUBSIDIARIES
| Company Name |
Ownership % | Country | ||||
| Al Areesh L.L.C. |
100 | % | MI | |||
| Al Daayen L.L.C. |
100 | % | MI | |||
| Al Huwaila Inc. |
100 | % | MI | |||
| Al Kharsaah Inc. |
100 | % | MI | |||
| Al Khuwair Inc. |
100 | % | MI | |||
| Al Marrouna L.L.C. |
100 | % | MI | |||
| Al Shamal Inc. |
100 | % | MI | |||
| Alexander Spirit L.L.C. |
100 | % | MI | |||
| Arctic Spirit L.L.C. |
100 | % | MI | |||
| Bahrain LNG W.L.L. |
30 | % | Bahrain | |||
| Bahrain Spirit L.L.C. (was: DSME Hull No. 2461 L.L.C.) |
100 | % | MI | |||
| Bermuda Spirit L.L.C. |
100 | % | MI | |||
| Creole Spirit L.L.C. |
100 | % | MI | |||
| DHJS Hull No. 2007-001 L.L.C. |
100 | % | MI | |||
| DHJS Hull No. 2007-002 L.L.C. |
100 | % | MI | |||
| European Spirit L.L.C. |
100 | % | MI | |||
| Exmar Gas Shipping Limited |
100 | % | Hong Kong | |||
| Exmar LPG BVBA |
50 | % | Belgium | |||
| Exmar Shipping BVBA |
100 | % | Belgium | |||
| Good Investment Limited |
100 | % | Hong Kong | |||
| Macoma L.L.C. (was: DSME Hull No. 2417 L.L.C.) |
100 | % | MI | |||
| Magdala L.L.C. (was: DSME Option Vessel No.1 L.L.C.) |
100 | % | MI | |||
| Magellan Spirit APS |
100 | % | Denmark | |||
| Malt LNG Holdings APS |
100 | % | Denmark | |||
| Malt LNG Netherlands Holdings B.V. |
52 | % | Netherlands | |||
| Malt LNG Transport APS |
100 | % | Denmark | |||
| Malt Singapore Pte Ltd. |
100 | % | Singapore | |||
| Megara L.L.C. (was: DSME Option Vessel No.3 L.L.C.) |
100 | % | MI | |||
| Membrane Shipping Limited |
100 | % | MI | |||
| Meridian Spirit APS |
100 | % | Denmark | |||
| Methane Spirit L.L.C. |
100 | % | MI | |||
| MiNT LNG I, Ltd. |
33 | % | Bahamas | |||
| MiNT LNG II, Ltd. |
33 | % | Bahamas | |||
| MiNT LNG III, Ltd. |
33 | % | Bahamas | |||
| MiNT LNG IV, Ltd. |
33 | % | Bahamas | |||
| Murex L.L.C. (was: DSME Hull No. 2416 L.L.C.) |
100 | % | MI | |||
| Myrina L.L.C. (was: DSME Option Vessel No.2 L.L.C.) |
100 | % | MI | |||
| Nakilat Holdco L.L.C. |
100 | % | MI | |||
| Naviera Teekay Gas II, S.L.U. |
100 | % | Spain | |||
| Naviera Teekay Gas III, S.L.U. |
100 | % | Spain | |||
| Naviera Teekay Gas IV, S.L.U. |
100 | % | Spain | |||
| Naviera Teekay Gas, S.L.U. |
100 | % | Spain | |||
| Oak Spirit L.L.C. |
100 | % | MI | |||
| Pan Africa LNG Transportation Company Limited |
20 | % | Hong Kong | |||
| Pan Americas LNG Transportation Company Limited |
30 | % | Hong Kong | |||
| Pan Asia LNG Transportation Company Limited |
30 | % | Hong Kong | |||
| Pan Europe LNG Transportation Company Limited |
20 | % | Hong Kong | |||
| Polar Spirit L.L.C. |
100 | % | MI | |||
| Sean Spirit L.L.C. (was: H.H.I. Hull No. S856 L.L.C.) |
100 | % | MI | |||
| Solaia Shipping L.L.C. |
50 | % | Liberia | |||
| Sonoma L.L.C. |
100 | % | MI | |||
| Taizhou Hull No. WZL 0501 L.L.C. |
100 | % | MI | |||
| Taizhou Hull No. WZL 0502 L.L.C. |
100 | % | MI | |||
| Taizhou Hull No. WZL 0503 L.L.C. |
100 | % | MI | |||
| Tangguh Hiri Finance Limited |
100 | % | UK | |||
| Tangguh Hiri Operating Limited |
100 | % | UK | |||
| Tangguh Sago Finance Limited |
100 | % | UK | |||
| Tangguh Sago Operating Limited |
100 | % | UK | |||
| TC LNG EXPLORER I L.L.C. (formerly DSME Hull No. 2423 L.L.C.) |
100 | % | MI | |||
| TC LNG EXPLORER II L.L.C. (formerly DSME Hull No. 2425 L.L.C.) |
100 | % | MI | |||
| TC LNG EXPLORER III L.L.C. (formerly DSME Hull No. 2430 L.L.C.) |
100 | % | MI | |||
| TC LNG EXPLORER IV L.L.C. (formerly DSME Hull No. 2431 L.L.C.) |
100 | % | MI | |||
| TC LNG EXPLORER V L.L.C. (formerly DSME Hull No. 2433 L.L.C.) |
100 | % | MI | |||
| TC LNG EXPLORER VI L.L.C. (formerly DSME Hull No. 2434 L.L.C.) |
100 | % | MI | |||
| TC LNG Shipping L.L.C. |
50 | % | MI | |||
| Teekay BLT Corporation |
70 | % | MI | |||
| Teekay BLT Finance Corporation |
100 | % | MI | |||
| Teekay Gas Group Ltd. |
100 | % | MI | |||
| Teekay LNG Bahrain Operations L.L.C. |
100 | % | MI | |||
| Teekay LNG Chartering L.L.C. |
100 | % | MI | |||
| Teekay LNG Holdco L.L.C. |
100 | % | MI | |||
| Teekay LNG Operating L.L.C. |
100 | % | MI |
| Teekay LNG Project Services L.L.C. |
100 | % | MI | |||
| Teekay LNG US GP L.L.C. |
100 | % | MI | |||
| Teekay Luxembourg S.a.r.l. |
100 | % | Luxembourg | |||
| Teekay Nakilat (II) Limited |
100 | % | UK | |||
| Teekay Nakilat (III) Corporation |
40 | % | MI | |||
| Teekay Nakilat Corporation |
70 | % | MI | |||
| Teekay Nakilat Holdings (III) Corporation |
100 | % | MI | |||
| Teekay Nakilat Holdings Corporation |
100 | % | MI | |||
| Teekay Spain, S.L.U. |
100 | % | Spain | |||
| Teekay Tangguh Borrower L.L.C. |
100 | % | MI | |||
| Teekay Tangguh Holdings Corporation |
100 | % | MI | |||
| Torben Spirit L.L.C. (was: DSME Hull No. 2411 L.L.C.) |
100 | % | MI | |||
| Yamal Spirit L.L.C. (H.H.I. Hull No. S857 L.L.C.) |
100 | % | MI | |||
| Zhonghua Hull NO. 451 L.L.C. |
100 | % | MI |
SCHEDULE I-B
TANKERS OPERATING SUBSIDIARIES
| Company Name |
Ownership % | Country | ||||
| Americas Spirit L.L.C. |
100 | % | MI | |||
| Athens Spirit L.L.C. |
100 | % | MI | |||
| Atlanta Spirit L.L.C. |
100 | % | MI | |||
| Australian Spirit L.L.C. |
100 | % | MI | |||
| Axel Spirit L.L.C. |
100 | % | MI | |||
| Barcelona Spirit L.L.C. |
100 | % | MI | |||
| Beijing Spirit L.L.C. |
100 | % | MI | |||
| Dilong Spirit L.L.C. |
100 | % | MI | |||
| Donegal Spirit L.L.C. |
100 | % | MI | |||
| Erik Spirit L.L.C. |
100 | % | MI | |||
| Esther Spirit L.L.C. |
100 | % | MI | |||
| Everest Spirit Holding L.L.C. |
100 | % | MI | |||
| Explorer Spirit L.L.C. |
100 | % | MI | |||
| Freeport Landholdings LLC |
100 | % | USA | |||
| Galway Spirit L.L.C. |
100 | % | MI | |||
| Helga Spirit L.L.C. |
100 | % | MI | |||
| High-Q Investments Limited |
50 | % | Hong Kong | |||
| Jiaolong Spirit L.L.C. |
100 | % | MI | |||
| Kaveri Spirit L.L.C. |
100 | % | MI | |||
| Limerick Spirit L.L.C. |
100 | % | MI | |||
| London Spirit L.L.C. |
100 | % | MI | |||
| Los Angeles Spirit L.L.C. |
100 | % | MI | |||
| Matterhorn Spirit L.L.C. |
100 | % | MI | |||
| Montreal Spirit L.L.C. |
100 | % | MI | |||
| Moscow Spirit L.L.C. |
100 | % | MI | |||
| Navigator Spirit L.L.C. |
100 | % | MI | |||
| Pinnacle Spirit L.L.C. |
100 | % | MI | |||
| Rio Spirit L.L.C. |
100 | % | MI | |||
| Seoul Spirit L.L.C. |
100 | % | MI | |||
| Shenlong Spirit L.L.C. |
100 | % | MI | |||
| STX Hull No. S1672 L.L.C. |
100 | % | MI | |||
| Summit Spirit L.L.C. |
100 | % | MI | |||
| Sydney Spirit L.L.C. |
100 | % | MI | |||
| T.I.L. Holdings Limited |
100 | % | MI | |||
| T.I.L. I L.L.C. |
100 | % | MI | |||
| T.I.L. II L.L.C. |
100 | % | MI | |||
| T.I.L. III L.L.C. |
100 | % | MI | |||
| T.I.L. IV L.L.C. |
100 | % | MI | |||
| T.I.L. IX L.L.C. |
100 | % | MI | |||
| T.I.L. V L.L.C. |
100 | % | MI | |||
| T.I.L. VI L.L.C. |
100 | % | MI | |||
| T.I.L. VII L.L.C. |
100 | % | MI | |||
| T.I.L. VIII L.L.C. |
100 | % | MI | |||
| T.I.L. X L.L.C. |
100 | % | MI | |||
| T.I.L. XI L.L.C. |
100 | % | MI | |||
| T.I.L. XII L.L.C. |
100 | % | MI | |||
| T.I.L. XIII L.L.C. |
100 | % | MI | |||
| T.I.L. XIV L.L.C. |
100 | % | MI | |||
| Tanker Investments Ltd. |
100 | % | MI | |||
| Taurus Tankers LLC |
100 | % | MI | |||
| Teekay Chartering Limited |
100 | % | MI | |||
| Teekay Marine (Singapore) Pte. Ltd. |
100 | % | Singapore | |||
| Teekay Marine Holdings Limited |
100 | % | MI | |||
| Teekay Marine Ltd |
100 | % | MI | |||
| Teekay Marine Solutions Inc. |
100 | % | USA | |||
| Teekay Tanker Operations Ltd. |
100 | % | MI | |||
| Teekay Tankers Chartering L.L.C. |
100 | % | MI | |||
| Teekay Tankers Chartering Pte. Ltd. |
100 | % | Singapore | |||
| Teekay Tankers Holdings Limited |
100 | % | MI | |||
| Teekay Tankers HZ Hull No. H-1586 L.L.C. |
100 | % | MI | |||
| Teekay Tankers HZ Hull No. H-1587 L.L.C. |
100 | % | MI | |||
| Teekay Tankers HZ Hull No. H-1592 L.L.C. |
100 | % | MI | |||
| Teekay Tankers HZ Hull No. H-1593 L.L.C. |
100 | % | MI | |||
| Teekay Tankers TS Hull No. S-1415 L.L.C. |
100 | % | MI | |||
| Teekay Workboats L.L.C. |
100 | % | USA | |||
| Tianlong Spirit L.L.C. |
100 | % | MI | |||
| Tokyo Spirit L.L.C. |
100 | % | MI | |||
| Yamuna Spirit L.L.C. |
100 | % | MI | |||
| Zenith Spirit L.L.C. |
100 | % | MI |
SCHEDULE I-C
COMPANY OPERATING SUBSIDIARIES
| Company Name |
Ownership % | Country | ||||
| Reference is made to the TGP Operating Subsidiaries on Schedule I-A | ||||||
| Reference is made to the Tankers Operating Subsidiaries on Schedule 1-B | ||||||
| Alta Shipping, S.A. |
50 | % | Spain | |||
| Banff L.L.C. |
100 | % | MI | |||
| Hummingbird Holdings L.L.C. |
100 | % | MI | |||
| Hummingbird Spirit L.L.C. |
100 | % | MI | |||
| Petrojarl 4 DA |
100 | % | Norway | |||
| Petrotrans Holdings Limited |
50 | % | Bermuda | |||
| Remora AS |
89 | % | Norway | |||
| SPT Ltd. |
100 | % | Bermuda | |||
| Teekay Business Process Services, Inc. |
100 | % | Philippines | |||
| Teekay Cyprus Limited |
100 | % | Cyprus | |||
| Teekay Finance Limited |
100 | % | Bermuda | |||
| Teekay GP L.L.C. |
100 | % | MI | |||
| Teekay Holdings Australia Pty Ltd. |
100 | % | Australia | |||
| Teekay Holdings Limited |
100 | % | Bermuda | |||
| Teekay Hummingbird Production Limited |
100 | % | UK | |||
| Teekay Lightering Services LLC |
100 | % | MI | |||
| Teekay LNG Partners L.P. |
42.4 | % | MI | |||
| Teekay Marine Resources Pty Ltd. |
100 | % | Australia | |||
| Teekay Marine Services (Shanghai) Co., Ltd. |
100 | % | China | |||
| Teekay Petrojarl Floating Production UK Ltd. |
100 | % | UK | |||
| Teekay Service Holdings Cooperatief U.A. |
100 | % | Netherlands | |||
| Teekay Shipbuilding Supervision Services LLC |
100 | % | MI | |||
| Teekay Shipping (Australia) Pty Ltd |
100 | % | Australia | |||
| Teekay Shipping (Canada) Ltd. |
100 | % | Canada | |||
| Teekay Shipping (Glasgow) Limited |
100 | % | UK | |||
| Teekay Shipping (India) Pvt. Ltd. |
100 | % | India | |||
| Teekay Shipping (Singapore) Pte Ltd |
100 | % | Singapore | |||
| Teekay Shipping (UK) Limited |
100 | % | UK | |||
| Teekay Shipping (USA), Inc. |
100 | % | USA | |||
| Teekay Shipping Limited |
100 | % | Bermuda | |||
| Teekay Shipping Philippines, Inc. |
25 | % | Philippines | |||
| Teekay Tankers Ltd. |
28.6 | % | MI | |||
| TPO AS |
100 | % | Norway | |||
| TPO Investments Inc. |
100 | % | MI | |||
| Ugland Stena Storage AS |
100 | % | Norway | |||
ANNEX A
TEEKAY CORPORATION
LIST OF VESSELS AND OWNERS
TEEKAY CORPORATION.—FLEET LIST
| Fixed-Rate Floating Production Storage Offtake Vessels—Owned |
Percent Ownership | Flag | Year Built | |||||
| Petrojarl Foinaven |
100 | % | Bahamas | 1998 | ||||
| Petrojarl Banff |
100 | % | Isle of Man | 1998 | ||||
| Sevan Hummingbird |
100 | % | Bahamas | 2007 | ||||
TEEKAY LNG PARTNERS L.P.—FLEET LIST
| Fixed-Rate LNG Carriers |
Percent Ownership | Flag | Year Built | |||||
| Arctic Spirit |
100 | % | Bahamas | 1993 | ||||
| Polar Spirit |
100 | % | Bahamas | 1993 | ||||
| Excalibur |
50 | % | Belgium | 2002 | ||||
| Hispania Spirit |
100 | % | Spain | 2002 | ||||
| Catalunya Spirit |
100 | % | Spain | 2003 | ||||
| Galicia Spirit |
100 | % | Spain | 2004 | ||||
| Madrid Spirit |
100 | % | Spain | 2004 | ||||
| Al Marrouna |
70 | % | Bahamas | 2006 | ||||
| Al Areesh |
70 | % | Bahamas | 2007 | ||||
| Al Daayen |
70 | % | Bahamas | 2007 | ||||
| Methane Spirit |
52 | % | Singapore | 2008 | ||||
| Marib Spirit |
52 | % | Marshall Islands | 2008 | ||||
| Arwa Spirit |
52 | % | Marshall Islands | 2008 | ||||
| Tangguh Hiri |
70 | % | Bahamas | 2008 | ||||
| Al Huwaila |
40 | % | Bahamas | 2008 | ||||
| Al Kharsaah |
40 | % | Bahamas | 2008 | ||||
| Al Shamal |
40 | % | Bahamas | 2008 | ||||
| Al Khuwair |
40 | % | Bahamas | 2008 | ||||
| Magellan Spirit |
52 | % | Danish Int’l Reg. | 2009 | ||||
| Tangguh Sago |
70 | % | Bahamas | 2009 | ||||
| Woodside Donaldson |
52 | % | Singapore | 2009 | ||||
| Meridian Spirit |
52 | % | Danish Int’l Reg. | 2010 | ||||
| Soyo |
33 | % | Bahamas | 2011 | ||||
| Malanje |
33 | % | Bahamas | 2011 | ||||
| Lobito |
33 | % | Bahamas | 2011 | ||||
| Cubal |
33 | % | Bahamas | 2012 | ||||
| Creole Spirit |
100 | % | Bahamas | 2016 | ||||
| Oak Spirit |
100 | % | Bahamas | 2016 | ||||
| Torben Spirit |
100 | % | Bahamas | 2017 | ||||
| Pan Asia |
30 | % | Hong Kong | 2017 | ||||
| Macoma |
100 | % | Bahamas | 2017 | ||||
| Murex |
100 | % | Bahamas | 2017 | ||||
| Bahrain Spirit |
100 | % | Bahamas | 2018 | ||||
| Eduard Toll |
50 | % | Bahamas | 2018 | ||||
| Magdala |
100 | % | Bahamas | 2018 | ||||
| Megara |
100 | % | Bahamas | 2018 | ||||
| Myrina |
100 | % | Bahamas | 2018 | ||||
| Pan Americas |
30 | % | Hong Kong | 2018 | ||||
| Pan Europe |
20 | % | Hong Kong | 2018 | ||||
| Rudolf Samoylovich |
50 | % | Bahamas | 2018 | ||||
| Pan Africa |
20 | % | Hong Kong | 2019 | ||||
| Sean Spirit |
100 | % | Bahamas | 2019 | ||||
| Yamal Spirit |
100 | % | Bahamas | 2019 | ||||
| Nikolay Yevgenov |
50 | % | Bahamas | 2019 | ||||
| Vladimir Voronin |
50 | % | Bahamas | 2019 | ||||
| Georgiy Ushakov |
50 | % | Bahamas | 2019 | ||||
| Yakov Gakkel |
50 | % | Bahamas | 2019 | ||||
| LPG Carrier—Owned |
Percent Ownership | Flag | Year Built | |||||
| Temse |
50 | % | Belgium | 1995 | ||||
| Touraine |
50 | % | Hong Kong | 1996 | ||||
| Brussels |
50 | % | Belgium | 1997 | ||||
| Eupen |
50 | % | Belgium | 1999 | ||||
| Bastogne |
50 | % | Belgium | 2002 | ||||
| Napa Spirit |
100 | % | Singapore | 2003 | ||||
| Sonoma Spirit |
100 | % | Singapore | 2003 | ||||
| Libramont |
50 | % | Belgium | 2006 | ||||
| Sombeke |
50 | % | Belgium | 2006 | ||||
| Pan Spirit |
100 | % | Singapore | 2009 | ||||
| Cathinka Spirit |
100 | % | Singapore | 2009 | ||||
| Camilla Spirit |
100 | % | Singapore | 2011 | ||||
| Unikum Spirit |
100 | % | Singapore | 2011 | ||||
| Vision Spirit |
100 | % | Singapore | 2011 | ||||
| Waasmuntster |
50 | % | Belgium | 2014 | ||||
| Warinsart |
50 | % | Belgium | 2014 | ||||
| Waregem |
50 | % | Belgium | 2014 | ||||
| Warisoulx |
50 | % | Belgium | 2015 | ||||
| Kaprijke |
50 | % | Belgium | 2015 | ||||
| Knokke |
50 | % | Belgium | 2016 | ||||
| Kontich |
50 | % | Belgium | 2016 | ||||
| Kortrijk |
50 | % | Belgium | 2016 | ||||
| Kallo |
50 | % | Belgium | 2017 | ||||
| Kruibeke |
50 | % | Belgium | 2017 | ||||
| Kapellen |
50 | % | Belgium | 2018 | ||||
| Koksijde |
50 | % | Belgium | 2018 | ||||
| Wepion |
50 | % | Belgium | 2018 | ||||
| LPG Carrier—In-chartered |
Percent Ownership | Flag | Year Built | |||||
| Antwerpen |
* | Hong Kong | 2005 | |||||
| BW Tokyo |
* | Singapore | 2009 | |||||
| Sylvie |
* | Hong Kong | 2007 | |||||
TEEKAY TANKERS LTD.—FLEET LIST
| Conventional Tankers—Owned |
Percent Ownership | Flag | Year Built | |||||||||
| Product Tanker |
||||||||||||
| Donegal Spirit |
100 | % | Bahamas | 2006 | ||||||||
| Galway Spirit |
100 | % | Bahamas | 2007 | ||||||||
| Limerick Spirit |
100 | % | Bahamas | 2007 | ||||||||
| Seletar Spirit |
100 | % | Bahamas | 2010 | ||||||||
| Sebarok Spirit |
100 | % | Bahamas | 2011 | ||||||||
| Luzon Spirit |
100 | % | Bahamas | 2011 | ||||||||
| Leyte Spirit |
100 | % | Bahamas | 2011 | ||||||||
| Hovden Spirit |
100 | % | Marshall Islands | 2012 | ||||||||
| Trysil Spirit |
100 | % | Marshall Islands | 2012 | ||||||||
| Aframax |
||||||||||||
| Americas Spirit |
100 | % | Bahamas | 2003 | ||||||||
| Australian Spirit |
100 | % | Bahamas | 2004 | ||||||||
| Everest Spirit |
100 | % | Bahamas | 2004 | ||||||||
| Axel Spirit |
100 | % | Bahamas | 2004 | ||||||||
| Esther Spirit |
100 | % | Bahamas | 2004 | ||||||||
| Matterhorn Spirit |
100 | % | Bahamas | 2005 | ||||||||
| Helga Spirit |
100 | % | Bahamas | 2005 | ||||||||
| Erik Spirit |
100 | % | Bahamas | 2005 | ||||||||
| Navigator Spirit |
100 | % | Bahamas | 2008 | ||||||||
| Yamato Spirit |
100 | % | Bahamas | 2008 | ||||||||
| Tarbet Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Emerald Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Garibaldi Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Whistler Spirit |
100 | % | Bahamas | 2010 | ||||||||
| Peak Spirit |
100 | % | Hong Kong | 2011 | ||||||||
| Suezmax |
||||||||||||
| Kaveri Spirit |
100 | % | Bahamas | 2004 | ||||||||
| Seoul Spirit |
100 | % | Bahamas | 2005 | ||||||||
| Montreal Spirit |
100 | % | Bahamas | 2006 | ||||||||
| Tokyo Spirit |
100 | % | Bahamas | 2006 | ||||||||
| Los Angeles Spirit |
100 | % | Bahamas | 2007 | ||||||||
| Pinnacle Spirit |
100 | % | Bahamas | 2008 | ||||||||
| Summit Spirit |
100 | % | Bahamas | 2008 | ||||||||
| Zenith Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Tianlong Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Jiaolong Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Shenlong Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Dilong Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Baker Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Cascade Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Aspen Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Vail Spirit |
100 | % | Bahamas | 2009 | ||||||||
| Copper Spirit |
100 | % | Bahamas | 2010 | ||||||||
| Tahoe Spirit |
100 | % | Bahamas | 2010 | ||||||||
| Beijing Spirit |
100 | % | Bahamas | 2010 | ||||||||
| Moscow Spirit |
100 | % | Bahamas | 2010 | ||||||||
| Atlanta Spirit |
100 | % | Bahamas | 2011 | ||||||||
| London Spirit |
100 | % | Bahamas | 2011 | ||||||||
| Barcelona Spirit |
100 | % | Bahamas | 2011 | ||||||||
| Athens Spirit |
100 | % | Bahamas | 2012 | ||||||||
| Sydney Spirit |
100 | % | Bahamas | 2012 | ||||||||
| Rio Spirit |
100 | % | Bahamas | 2013 | ||||||||
| VLCC |
||||||||||||
| Hong Kong Spirit |
50 | % | Hong Kong | 2013 | ||||||||
| Conventional Tankers—In-chartered |
Percent Ownership | Flag | Year Built | |||||||||
| Aframax |
||||||||||||
| Bergitta |
* | Bahamas | 2007 | |||||||||
ANNEX B
TEEKAY CORPORATION
Common Stock
TERMS AGREEMENT
[__]
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York, 10013
Dear Sirs:
Teekay Corporation, a Marshall Islands corporation (the “Company”), proposes, subject to the terms and conditions stated herein and in the Equity Distribution Agreement, dated December 29, 2020 (the “Equity Distribution Agreement”), between the Company and Citigroup Global Markets Inc., to issue and sell to Citigroup Global Markets Inc. (“Citigroup”) the securities specified in the Schedule I hereto (the “Purchased Shares”) [, and solely for the purpose of covering over-allotments, to grant to Citigroup the option to purchase the additional securities specified in the Schedule I hereto (the “Additional Shares”)].
[Citigroup shall have the right to purchase from the Company all or a portion of the Additional Shares as may be necessary to cover over-allotments made in connection with the offering of the Purchased Shares, at the same purchase price per share to be paid by Citigroup to the Company for the Purchased Shares. This option may be exercised by Citigroup at any time (but not more than once) on or before the thirtieth day following the date hereof, by written notice to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised, and the date and time when the Additional Shares are to be delivered (such date and time being herein referred to as the “Option Closing Date”); provided, however, that the Option Closing Date shall not be earlier than the Time of Delivery (as set forth in the Schedule I hereto) nor earlier than the second business day after the date on which the option shall have been exercised nor later than the fifth business day after the date on which the option shall have been exercised. Payment of the purchase price for the Additional Shares shall be made at the Option Closing Date in the same manner and at the same office as the payment for the Purchased Shares.]
Each of the provisions of the Equity Distribution Agreement not specifically related to the solicitation by Citigroup, as agent of the Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement [and] [,] the Time of Delivery [and any Option Closing Date], except that each representation and warranty in Section 2 of the Equity Distribution Agreement which makes reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the Equity Distribution Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement [and] [,] the Time of Delivery [and any Option Closing Date] in relation to the Prospectus as amended and supplemented to relate to the Purchased Shares.
An amendment to the Registration Statement (as defined in the Equity Distribution Agreement), or a supplement to the Prospectus, as the case may be, relating to the Purchased Shares [and the Additional Shares], in the form heretofore delivered to the Manager is now proposed to be filed with the Securities and Exchange Commission.
Subject to the terms and conditions set forth herein and in the Equity Distribution Agreement which are incorporated herein by reference, the Company agrees to issue and sell to Citigroup and the latter agrees to purchase from the Company the number of the Purchased Shares at the time and place and at the purchase price set forth in the Schedule I hereto.
Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Equity Distribution Agreement.
If the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions of the Equity Distribution Agreement incorporated herein by reference, shall constitute a binding agreement between the Manager and the Company.
| TEEKAY CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
ACCEPTED as of the date
first written above.
| Citigroup Global Markets Inc. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| [Form of Terms Agreement] |
Schedule I to the Terms Agreement |
| Title of Purchased Shares [and Additional Shares]: | Common Stock |
| Number of Purchased Shares: | ||
| [Number of Additional Shares:] | ||
| [Price to Public:] | ||
| Purchase Price by Citigroup Global Markets Inc.: | ||
| Method of and Specified Funds for Payment of Purchase Price: | ||
| By wire transfer to a bank account specified by the Company in same day funds. | ||
| Method of Delivery: | ||
| Free delivery of the Shares to the Manager’s account at The Depository Trust Company in return for payment of the purchase price. | ||
| Time of Delivery: | ||
| Closing Location: | ||
| Documents to be Delivered: | ||
| The following documents referred to in the Equity Distribution Agreement shall be delivered as a condition to the closing at the Time of Delivery [and on any Option Closing Date]:
(1) The opinions referred to in Sections 4.12-4.18.
(2) The opinion referred to in Section 4.19.
(3) The accountant’s letter referred to in Section 4.20.
(4) The officers’ certificate referred to in Section 4.11.
(5) Such other documents as the Manager shall reasonably request. | ||
ANNEX C
OPINION FROM COMPANY’S U.S. COUNSEL
Opinion should be to the effect that:
| 1. | The statements with respect to legal matters or legal conclusions in the (a) Registration Statement and the Prospectus under the caption “Material United States Federal Income Tax Considerations” and (b) Company’s Annual Report on Form 20-F for the year ended December 31, 20[__], filed with the Commission on [_____________] (the “Form 20-F”) under the captions “Item 4. Information on the Company—E. Taxation of the Company—United States Taxation” and “Item 10. Additional Information—Material U.S. Federal Income Tax Considerations” are, in all material respects, an accurate discussion of the material U.S. federal income tax considerations addressed therein. (We do not opine or comment on the representations and statements of fact of the Company included in such discussion.) |
| 2. | Our opinion filed as Exhibit 8.1 to the Registration Statement is confirmed and you may rely upon such opinion as if it were addressed to you. |
| 3. | To our knowledge and except as described in the Registration Statement, the Prospectus, and the TGP LPA, there are no outstanding options or warrants to purchase (a) any Common Stock or other interests in the Company, or (b) any equity interests in the Operating Subsidiaries. |
| 4. | To our knowledge, there are no contracts, agreements or understandings between any of the Teekay Entities and any person granting such person the right to require the Company to include any securities of any of the Teekay Entities owned or to be owned by such person in the securities registered pursuant to the Registration Statement, except for any rights pursuant to the Registration Rights Agreement among Teekay Corporation, Tradewinds Trust Co. Ltd., as Trustee for the Cirrus Trust, and Worldwide Trust Services Ltd., as Trustee for the JTK Trust, with respect to common stock of the Company (collectively, the “Registration Rights”), which Registration Rights have been waived or do not apply with respect to the Offering. |
| 5. | The statements in the Registration Statement and the Prospectus under the caption “Description of Capital Stock” and in the Form 20-F under the captions “Item 7. Major Shareholders and Certain Relationships and Related Party Transactions” under the subheadings “—Competition with Teekay Tankers, Teekay LNG and Altera” and “—Services, Management and Pooling Arrangements”, insofar as the statements purport to describe the provisions of documents and laws referred to therein, are accurate in all material respects. |
| 6. | [The Registration Statement became effective under the Act on [________]; the Registration Statement pursuant to Rule 462(b) became effective under the Act on [_________]]; the Prospectus has been filed with the Commission pursuant to Rule 424(b) under the Act in a manner and within the time period required by Rule 424(b); and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceeding for that purpose has been instituted or is pending or threatened by the Commission. |
| 7. | Without independent verification of the factual accuracy, completeness or fairness of any statements made in the Registration Statement, [the Registration Statement pursuant to Rule 462(b)] or the Prospectus, each of the Registration Statement [and the Registration Statement pursuant to Rule 462(b)], on the Effective Date, and the Prospectus, when filed with the Commission pursuant to Rule 424(b) under the Act and on the date hereof (except for the financial statements and financial schedules, and other financial and statistical information included therein, as to which we express no opinion) appears on its face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations of the Commission thereunder. |
| 8. | The Company’s offering, issuance and sale of the Shares, and the Company’s execution and delivery of the Equity Distribution Agreement, and consummation of the transactions contemplated by the Equity Distribution Agreement do not (a) violate statutory or regulatory U.S. federal laws or statutory or regulatory laws of the State of New York that counsel exercising customary professional judgment would in our experience reasonably recognize as typically applicable to agreements similar to the Equity Distribution Agreement and transactions similar to the transactions contemplated by the Equity Distribution Agreement, or (b) conflict with or constitute a breach or violation of, or a default under (or an event which, with notice or lapse of time or both, would constitute such a default), any Material Agreement. (We do not comment or opine as to compliance with any financial covenants or financial ratios contained in any such documents.) “Material Agreement” means any indenture, contract, mortgage, deed of trust, note agreement, loan agreement, lease or other agreement or instrument filed by the Company as an exhibit to the Registration Statement (including any document filed as an exhibit to any document incorporated by reference into the Registration Statement). |
| 9. | Without independent verification of the factual accuracy, completeness or fairness of the documents incorporated by reference in the Registration Statement and the Prospectus or any further amendment or supplement thereto made by the Company prior to the date hereof (other than exhibits thereto and the financial statements and financial schedules, and other financial and statistical information included therein, as to which we express no opinion), when they became effective or were filed with the Commission, as the case may be, each of such documents appears on its face to be appropriately responsive in all material respects to the applicable requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder. |
| 10. | To our knowledge, (a) there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any Teekay Entity or its property of a character required to be disclosed in the Registration Statement or the Prospectus that is not disclosed in the Registration Statement or the Prospectus as required and (b) there is no agreement, franchise, contract, indenture, lease or other document or instrument of a character that is required to be described in the Registration Statement or the Prospectus by the Act or to be filed by the Act as an exhibit to the Registration Statement that is not described or filed as required. |
| 11. | The Company is not, and immediately upon giving effect to the Offering, the sale of the Shares and the application of the proceeds thereof as described under “Use of Proceeds” in the Prospectus, will not be, required to register as an “investment company” under the Investment Company Act of 1940, as amended. |
| 12. | All consents, approvals, authorizations or other orders of, or registrations or filings on the part of the Company with any United States federal or New York governmental or regulatory authority required for the issuance of securities, the execution and delivery by the Company of the Equity Distribution Agreement and the consummation of the transactions contemplated by the Equity Distribution Agreement have been made or obtained, except those that may be required under applicable state securities laws and regulations. |
Such counsel shall also state:
We have participated in conferences with officers and other representatives of the Company, representatives of the Manager and representatives of the independent auditors of the Company at which the contents of the Registration Statement and the Prospectus were discussed. Although we assume no responsibility for the factual accuracy, completeness or fairness of any statements (other than as set forth in paragraphs 1 and 5 above, which remain subject to the assumptions, exclusions and qualifications set forth in this opinion) made in (a) the Registration Statement, (b) the Prospectus, or (c) the documents incorporated by reference in the Registration Statement, nothing has come to our attention that causes us to believe that:
(a) the Registration Statement or the prospectus included therein (except for the financial statements and financial schedules and other financial information included therein, as to which we make no statement), at the most recent date upon which the Registration Statement was deemed to have become effective under the Act, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or
(b) the Prospectus (except for the financial statements and financial schedules and other financial information included therein, as to which we make no statement) as of its date or as of the date hereof contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
ANNEX D
OPINION FROM COMPANY’S MARSHALL ISLANDS COUNSEL
Opinion should be to the effect that:
| 1. | The Company is a corporation domesticated, validly existing and in good standing under Marshall Islands Law and has the corporate power and authority to own or lease its properties and to conduct its business, in each case in all material respects, as described in the Registration Statement and Prospectus. |
| 2. | The Agreement has been duly authorized, validly executed and delivered by the Company. |
| 3. | The Company has all requisite corporate power to execute and deliver the Agreement, to perform its obligations thereunder, including without limitation the issuance, sale and delivery of the Shares as contemplated thereunder, and to consummate the other transactions contemplated thereby, all in accordance with and upon the terms and conditions set forth in the Agreement. |
| 4. | The Shares have been duly authorized and, when issued and delivered by the Company after full payment therefor pursuant to and in compliance with the Agreement, will be validly issued, fully paid and nonassessable. |
| 5. | The execution, delivery and performance of the Agreement by the Company, including without limitation the offering, issuance and sale of the Shares as contemplated thereunder, or the consummation of the transactions contemplated thereby, do not and will not (i) conflict with or constitute a violation of the organizational documents of the Company or any Marshall Islands Entity, (ii) violate any judgment, order or decree of which we are aware of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority situated in the Republic of the Marshall Islands directed to the Company, (iii) violate Marshall Islands Law, or (iv) to our knowledge, result in the creation or imposition of any pledges, liens, encumbrances, security interests, charges, equities or other claims, in each case by operation of law of the Republic of the Marshall Islands upon any property or assets of the Company or the Marshall Islands Entities. |
| 6. | The choice of New York law to govern the Agreement constitutes a valid choice of law under Marshall Islands Law. |
| 7. | Teekay Holdings Limited, a Bermuda company (“Teekay Holdings”), owns of record 100% of the membership interests in Teekay GP L.L.C., a Marshall Islands limited liability company (“TGP GP”). Such membership interests have been duly authorized and validly issued in accordance with the limited liability company agreement of TGP GP, as amended or restated prior to the date hereof, and are fully paid (to the extent required under the TGP GP limited liability company agreement) and nonassessable (except as such nonassessability may be affected by Sections 20, 31, 40 and 49 of the Marshall Islands Limited Liability Company Act of 1996 and except as may be provided in the TGP GP limited liability company agreement). |
| 8. | TGP GP owns of record a 1.76% general partner interest (excluding preferred units) in Teekay LNG Partners L.P., a Marshall Islands limited partnership (“TGP”), and is the sole general partner of TGP. Such general partner interest has been duly authorized and validly issued in accordance with the partnership agreement of TGP (as amended or restated prior to the date hereof, the “TGP LPA”). To our knowledge, TGP GP beneficially owns such general partner interest free and clear of all pledges, liens, encumbrances, security interests or other claims, except for the Claim Exceptions. The term “Claim Exceptions” with respect to any limited liability company membership interest, shareholding interest, limited partnership interest or other interest as used herein shall mean: (i) pledges, liens, encumbrances, security interests or other claims as described in, referred to (including by incorporation by reference) or disclosed in the Registration Statement and the Prospectus, (ii) any liens pursuant to credit agreements, security agreements or financing documents described in, referred to (including by incorporation by reference) or disclosed in the Registration Statement and the Prospectus, and (iii) restrictions on transferability contained in the relevant organizational documents or under applicable securities laws, as applicable. |
| 9. | As of the date hereof, 35,958,274 common units of TGP are owned by Teekay Finance Limited, a Bermuda company (“Teekay Finance”), through brokerage accounts. These common units of TGP have been duly authorized and validly issued in accordance with the TGP LPA, and, with respect to the limited partner interests, are fully paid (to the extent required under the TGP LPA) and nonassessable (except as such nonassessability may be affected by Sections 30, 41, 51 and 60 of the Marshall Islands Limited Partnership Act and except as may otherwise be provided in the TGP LPA). |
| 10. | TGP owns of record a 100% membership interest in Teekay LNG Operating L.L.C., a Marshall Islands limited liability company (“TGP Operating Company”). Such membership interest has been duly authorized and validly issued in accordance with the limited liability company agreement of TGP Operating Company, as amended or restated prior to the date hereof, and is fully paid (to the extent required under such limited liability company agreement) and nonassessable (except as such nonassessability may be affected by Sections 20, 31, 40 and 49 of the Marshall Islands Limited Liability Company Act of 1996 and except as may be provided in the limited liability company agreement of TGP Operating Company). To our knowledge, TGP beneficially owns such membership interest free and clear of all pledges, liens, encumbrances, security interests or other claims, except for the Claim Exceptions. |
| 11. | Teekay Finance owns 5,036,306 shares of Class A Common Stock, par value $0.01 per share, of Teekay Tankers Ltd., a corporation incorporated under Marshall Islands Law (“TNK”), through brokerage accounts. Teekay Holdings owns of record 4,625,997 shares of Class B Common Stock, par value $0.01 per share, of TNK. All such shares of Class A Common Stock and shares of Class B Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. |
| 12. | The entities formed or incorporated under Marshall Islands Law (the “Marshall Islands Operating Subsidiaries”) and identified in Schedule A hereto under the heading “Marshall Islands Operating Subsidiary” are owned of record as described on Schedule A hereto. The equity interests in each of the Marshall Islands Operating Subsidiaries have been duly authorized and validly issued in accordance with the respective organizational documents of each such Marshall Islands Operating Subsidiary, as amended or restated prior to the date hereof, and are fully paid (to the extent required under the applicable organizational document) and nonassessable (except as such nonassessability may be affected by applicable Marshall Islands Law and except as may be provided in the applicable organizational documents). To our knowledge, Schedule A sets forth the beneficial and record owners of the stock or membership interests, as applicable, of each of the Marshall Islands Operating Subsidiaries as set forth in Schedule A, free and clear of all pledges, liens, encumbrances, security interests or other claims, except for Claim Exceptions. |
| 13. | Each of TGP GP, TGP, TNK, and TGP Operating Company has been duly formed or incorporated and each such entity and each of the Marshall Islands Operating Subsidiaries (collectively, the “Marshall Islands Entities”) is validly existing and in good standing as a limited liability company, limited partnership or corporation, as applicable, under Marshall Islands Law, and each has the limited liability company, limited partnership or corporate, as applicable, power and authority to own or lease its properties and to conduct its business, in each case in all material respects, as described in the Registration Statement and the Prospectus, and, in each instance the documents incorporated by reference therein. |
| 14. | Except as described in or incorporated by reference in the Registration Statement and the Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase any equity interests in the Company, in each case pursuant to the organizational documents of the Company. |
| 15. | Except as referred to (including by incorporation by reference) or described in the Registration Statement and the Prospectus, no permit, consent, approval, authorization, order, registration, filing or qualification of or with any court, governmental agency or body of the Republic of the Marshall Islands having jurisdiction over the Company, any of the Marshall Islands Entities, or any of their respective properties is required in connection with the execution and delivery of the Agreement by the Company, or the performance of the transactions contemplated thereby, including without limitation the issuance and sale of the Shares as contemplated thereunder. |
| 16. | To our knowledge, no permits, consents, licenses, franchises, concessions, certificates and authorizations (collectively, “Permits”) of, or declarations or filings with, any governmental or regulatory authorities of the Republic of the Marshall Islands are required for any of the Company or the Marshall Islands Entities to own or lease its properties and to conduct its business in the manner described in the Registration Statement and Prospectus, other than such Permits, declarations or filings with any Republic of the Marshall Islands governmental authority currently held or previously obtained, applied, received or filed by any of the Company or the applicable Marshall Islands Entity or required for the ownership, management, charter or operations of vessels or rigs that are flagged in the Marshall Islands. |
| 17. | The statements (i) in the Registration Statement and Prospectus under the captions “Non-United States Tax Considerations”, “Service of Process and Enforcement of Civil Liabilities” and “Description of Capital Stock” and (ii) in the Company’s Form 20-F for the year ended December 31, 20[•] under the captions “Item 4. Information on the Company — E. Taxation of the Company — Marshall Islands Taxation” and “Item 10. Additional Information — Non-United States Tax Considerations — Marshall Islands Tax Considerations”, insofar as they purport to constitute summaries of Marshall Islands Law or legal conclusions of Marshall Islands Law, fairly describe in all material respects the portions of the statutes addressed thereby, subject to the qualifications and assumptions stated therein. For the avoidance of doubt, we take no view on the accuracy of descriptions of any contracts or organizational documents which may be included under such captions. |
| 18. | A judgment granted by a foreign court against the Company may be recognized in the Republic of the Marshall Islands, to the extent that the foreign judgment grants or denies recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial matters, and so long as the judgment is final and conclusive and enforceable where rendered even though an appeal therefrom is pending, or subject to appeal (although the court may stay in proceedings until the relevant appeal has been determined or until the expiration of a period of time sufficient to enable the defendant to prosecute the appeal). A foreign judgment is not conclusive if: (i) the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law, (ii) the foreign court did not have personal jurisdiction over the defendant, or (iii) the foreign court did not have jurisdiction over the subject matter. A foreign judgment need not be recognized if: (i) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend, (ii) the judgment was obtained by fraud, (iii) the cause of action on which the judgment is based is repugnant to the public policy of the Republic of the Marshall Islands, (iv) the judgment conflicts with another final and conclusive judgment, (v) the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in the court, (vi) in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action, or (vii) the foreign state does not recognize or enforce the judgments of any other foreign nation. |
Exhibit 5.1
Teekay Corporation
Suite 2000, Bentall 5
550 Burrard Street
Vancouver, BC, V6C 2K2, Canada
Our reference: 25245.50096/80444283v2
December 29, 2020
Registration Statement on Form F-3 – Exhibit 5.1 Opinion
Dear Sirs:
We have acted as special counsel as to matters of the law of the Republic of the Marshall Islands (“Marshall Islands Law”) for Teekay Corporation, a Marshall Islands corporation (the “Company”), in connection with the registration of the issuance and sale from time to time by the Company of common shares, par value $0.001 per share, having an aggregate gross sales price of up to $65,000,000 (the “Shares”) pursuant to the Company’s registration statement on Form F-3 filed by the Company with the Securities and Exchange Commission on the date hereof (as amended or supplemented from time to time, the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), including the prospectus contained therein (as amended or supplemented from time to time, the “Prospectus”).
The Shares will be sold from time to time as set forth in the Registration Statement and the Prospectus and pursuant to an Equity Distribution Agreement, dated December 29, 2020 (the “Distribution Agreement”), between the Company and Citigroup Global Markets Inc.
As such counsel, we have examined originals or copies (certified or otherwise identified to our satisfaction) of the following documents:
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| (i) | the Registration Statement; |
| (ii) | the Prospectus; |
| (iii) | the Distribution Agreement; and |
| (iv) | such corporate records, certificates, agreements, documents or other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company as we have deemed relevant and necessary. |
In such examination, we have assumed: (a) the legal capacity of each natural person, (b) the genuineness of all signatures and the authenticity of all documents submitted to us as originals, (c) the conformity to original documents of all documents submitted to us as conformed or photostatic copies, (d) that the documents reviewed by us in connection with the rendering of the opinion set forth herein are true, correct, and complete, and (e) the truthfulness of each statement as to all factual matters contained in any document or certificate encompassed within the due diligence review undertaken by us.
In rendering this opinion, we have also assumed:
| (i) | that the issuance and sale of the Shares complies in all respects with the terms, conditions and restrictions set forth in the Registration Statement, Prospectus, the Prospectus Supplement, the Distribution Agreement and all of the instruments and other documents relating thereto or executed in connection therewith; |
| (ii) | that the Distribution Agreement has been duly and validly authorized, executed and delivered by the parties thereto (other than the Company); and |
| (iii) | the validity and enforceability of the Distribution Agreement against the parties thereto. |
As to any questions of fact material to our opinion, we have, when relevant facts were not independently established, relied upon the aforesaid certificates or comparable documents, and the representations and warranties of the Company contained in the Distribution Agreement. We have not independently verified the facts so relied on.
We have assumed that the Company will have sufficient authorized but unissued common shares on the date of any issuance of the Shares registered pursuant to the Registration Statement (after taking into account any shares reserved for issuance).
This opinion letter is limited to Marshall Islands Law. We expressly disclaim any responsibility to advise of any development or circumstance of any kind, including any change of law or fact that may occur after the date of this opinion letter that might affect the opinion expressed herein.
Based on the foregoing, and having regard to legal considerations which we deem relevant, and subject to the qualifications, limitations and assumptions set forth herein, we are of the opinion that when the Shares are issued and delivered against receipt of full payment therefor by the Company in accordance with the terms of the Distribution Agreement, the Registration Statement, and the Prospectus, the Shares will be validly issued, fully paid and nonassessable.
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We consent to the filing of this opinion as an exhibit to the Registration Statement and to the discussion of this opinion in the Registration Statement, and to the references to our firm in the Registration Statement and the Prospectus. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, nor do we admit that we are experts with respect to any part of the Registration Statement within the meaning of the term “expert” as used in the Securities Act.
Very truly yours,
Watson Farley & Williams LLP
/s/ Watson Farley & Williams LLP
Exhibit 8.1
December 29, 2020
Teekay Corporation
4th Floor, Belvedere Building
69 Pitts Bay Road
Hamilton, HM08
Bermuda
Re: Teekay Corporation Registration Statement on Form F-3
Ladies and Gentlemen:
We have acted as counsel to Teekay Corporation, a Republic of the Marshall Islands corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”) of a registration statement on Form F-3 dated December 29, 2020 (the “Registration Statement”) for the registration from time to time of securities of the Company with an aggregate offering price of up to $65,000,000.
You have requested our opinion regarding certain United States federal income tax considerations that may be relevant to prospective common stockholders. In rendering our opinion, we have examined and relied upon the truth, accuracy, and completeness of the facts, statements and representations contained in (i) the Registration Statement, (ii) the certificate of the Company and certain affiliates of the Company (the “Tax Certificate”), and (iii) such other documents, certificates, records, statements and representations made by the Company as we have deemed necessary or appropriate as a basis for the opinion set forth below. We have not, however, undertaken an independent investigation of any factual matter set forth in any of the foregoing.
In addition, we have assumed, with your permission, (i) that the statements and representations concerning the Company and its operations contained in the Registration Statement and the statements and representations contained in the Tax Certificate are true, correct and complete and will remain true, correct and complete at all relevant times, (ii) the authenticity of original documents submitted to us and the conformity to the originals of documents submitted to us as copies and (iii) that any statement or representation contained in the Tax Certificate with the qualification “to the knowledge of” or “based on the belief of” or other similar qualification, is true, correct and complete and will remain true, correct and complete at all relevant times, in each case without such qualification.
Based upon the foregoing, and subject to the limitations, qualifications, assumptions and caveats set forth herein and in the Registration Statement, we hereby confirm, as of the date hereof, our opinions set forth in the Registration Statement under the heading “Material United States Federal Income Tax Considerations.”
This opinion addresses only the matters of United States federal income taxation specifically described under the heading “Material United States Federal Income Tax Considerations” in the Registration Statement. This opinion does not address any other United States federal tax consequences or any state, local or foreign tax consequences that may be relevant to prospective common stockholders.
We hereby consent to the discussion of this opinion in the Registration Statement, to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the captions “Risk Factors,” “Legal Matters” and “Material United States Federal Income Tax Considerations” in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, nor do we admit that we are experts with respect to any part of the Registration Statement within the meaning of the term “expert” as used in the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Perkins Coie LLP
Perkins Coie LLP
Exhibit 8.2
Teekay Corporation
Suite 2000, Bentall 5
550 Burrard Street
Vancouver, BC, V6C 2K2, Canada
Our reference: 25245.50096/US/80774079v3
December 29, 2020
Registration Statement on Form F-3 – Exhibit 8.2 Opinion
Dear Sirs:
We have acted as special counsel as to matters of the law of the Republic of the Marshall Islands (“Marshall Islands Law”) for Teekay Corporation, a Marshall Islands corporation (the “Company”), in connection with the registration of the issuance and sale from time to time by the Company of common shares, par value $0.001 per share (the “Shares”) pursuant to the Company’s registration statement on Form F-3 filed by the Company with the Securities and Exchange Commission on the date hereof (as amended or supplemented from time to time, the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), including the prospectus contained therein (as amended or supplemented from time to time, the “Prospectus”).
The Shares will be sold from time to time as set forth in the Registration Statement and the Prospectus.
As such counsel, we have examined originals or copies (certified or otherwise identified to our satisfaction) of the following documents:
| (i) | the Registration Statement; |
| (ii) | the Prospectus; and |
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| (iii) | such corporate records, certificates, agreements, documents or other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company and other affiliates of the Company as we have deemed relevant and necessary. |
In such examination, we have assumed: (a) the legal capacity of each natural person, (b) the genuineness of all signatures and the authenticity of all documents submitted to us as originals, (c) the conformity to original documents of all documents submitted to us as conformed or photostatic copies, (d) that the documents reviewed by us in connection with the rendering of the opinion set forth herein are true, correct, and complete, and (e) the truthfulness of each statement as to all factual matters contained in any document or certificate encompassed within the due diligence review undertaken by us.
This opinion letter is limited to Marshall Islands Law. We expressly disclaim any responsibility to advise of any development or circumstance of any kind, including any change of law or fact that may occur after the date of this opinion letter that might affect the opinion expressed herein.
Based on the facts as set forth in the Registration Statement and the Prospectus, and having regard to legal considerations which we deem relevant, and subject to the qualifications, limitations and assumptions set forth herein, we hereby confirm that we have reviewed the discussion set forth in the Prospectus under the caption “Non-United States Tax Considerations” and we confirm that the statements in such discussion, to the extent they constitute legal conclusions, unless otherwise noted, are the opinion of Watson Farley & Williams LLP with respect to Marshall Islands tax consequences as of the date of the Prospectus (except for the representations and statements of fact of the Company included under such caption, as to which we express no opinion).
We consent to the filing of this opinion as an exhibit to the Registration Statement, the discussion of this opinion in the Registration Statement, and to the references to our firm in the Registration Statement and the Prospectus. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, nor do we admit that we are experts with respect to any part of the Registration Statement within the meaning of the term “expert” as used in the Securities Act.
Very truly yours,
Watson Farley & Williams LLP
/s/ Watson Farley & Williams LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors and Shareholders
Teekay Corporation
We, KPMG LLP, consent to the use of our report dated April 8, 2020, on the consolidated financial statements of Teekay Corporation, which comprise the consolidated statements of financial position as at December 31, 2019 and December 31, 2018, the related consolidated statements of loss, comprehensive loss, cash flows, and changes in total equity for each of the years in the three-year period ended December 31, 2019, and the related notes and financial statement schedule I, and our audit report dated April 8, 2020 on the effectiveness of internal control over financial reporting which is incorporated by reference and to the reference to our firm under the heading “Experts” in the prospectus.
Our report refers to a change in accounting policies as of January 1, 2018 due to the adoption of ASU 2014-09 Revenue from Contracts with Customers, and a change in accounting policies as of January 1, 2019 due to the adoption of ASU 2016-02 Leases and ASU 2017-12 Derivatives and Hedging – Targeted Improvements to Accounting for Hedging Activities.
/s/ KPMG LLP
Chartered Professional Accountants
Vancouver, Canada
December 29, 2020